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CC Ordinance 2036 ORDINANCE NO. 2036 AN ORDINANCE OF THE CITY OF CAMPBELL AMENDING CHAPTER 5.20 OF TITLE 5 OF THE CAMPBELL MUNICIPAL CODE TO REGULATE THE OCCUPANCY AND USE OF PUBLIC RIGHTS-OF-WAY BY CABLE SYSTEMS AND OPEN VIDEO SYSTEMS, TO PROVIDE FOR ESTABLISHMENT OF CUSTOMER SERVICE STANDARDS; ESTABLISHING FRANCHISE AND LICENSING REQUIREMENTS FOR OPERATORS OF SUCH SYSTEMS AND TO PRESCRIBE MINIMUM CHARGES, TERMS, AND CONDITIONS FOR AND UPON THE CONSTRUCTION, MAINTENANCE, AND REPAIR OF SUCH SYSTEMS WHEREAS, it is anticipated that an ever-increasing number of companies will request access to and use of Public rights-of-way for provision of cable and other services to the public; and WHEREAS, the City of Campbell ("City") has the authority to regulate the use of streets, Public rights-of-way, and other City property, and to grant access thereto upon certain terms and conditions; and WHEREAS, the public streets, alleys, utility easements dedicated for compatible uses, and other rights-of-way within City: 1) are critical to the travel of Persons and the transport of goods and other tangibles in the business and social life of the community by all citizens; 2) are a unique and physically limited resource so that proper management by City is necessary to maximize the efficiency and to minimize the costs to the taxpayers of the foregoing uses, and to prevent harm to the community; and 3) are intended for public uses and must be managed and controlled consistent with that intent; and WHEREAS, the right to occupy the Public rights-of-way cannot be granted to all Persons, and those who are granted that right obtain significant benefits; and WHEREAS, the right to use the Public rights-of-way therefore must be exercised in a manner consistent with the public interest; and 1 WHEREAS, City wishes to promote the availability of high-quality and diverse services to City residents, businesses, City, and other public institutions; and to promote the availability of diverse information resources to the community, including through the development of advanced systems that can support public, educational, and governmental programming and high-speed access to the Internet; and WHEREAS, City wishes to provide opportunities to the public to obtain access to communications facilities for the purpose of disseminating and receiving information; to promote competitive cable rates and services; to take advantage of opportunities presented by cable and open video systems to provide for more open government; to enhance educational opportunities throughout the community and provide opportunities for building a stronger community; and to allow flexibility to respond to changes in technology, subscriber interests, and competitive factors that will affect the health, welfare, and well- being of the community; and WHEREAS, City finds that it is in the interest of the public to franchise and to establish standards for franchising such operators in a manner that promotes these objectives and otherwise protects the public interest; WHEREAS, this ordinance was found to be categorically exempt from environmental review, per the provisions of Section 15308 of the California Environmental Quality Act of 1970, as amended, on January 1,2003. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF CAMPBELL: SECTION 1. Chapter 5.20 of Title 5 of the Campbell Municipal Code is hereby amended to read in its entirety as follows: 2 CHAPTER 5.20 CABLE SYSTEMS AND OPEN VIDEO SYSTEMS Table of Contents SECTION 1........................ .......... ............ ........ ..... ................ ............... ....... .... ...2 Part 1 G EN ERAL.......................................................................................................... 7 5.20.010 Definitions........................................................ .................. ................7 5.20.020 Access, PEG access, or PEG Use.....................................................8 5.20.060 Affi I iate ....................... .... . .. .. . .... .... ... . ............ .... . . . .. ......... . . .. ...... . . . .. . . . . . 8 5.20.070 Basic Service ........................................................................... ..........8 5.20.080 Cable Act............ ......... ......................................... ...................... .......8 5.20.090 Cable Communications System......................................................... 9 5.20.100 Cable Service...... ................ ........................................................ .......9 5.20.110 Cable System.............. .......................................................................9 5.20.120 Channel... ............. .......... ..... ................................ ........ ................ .......10 5.20.130 City..................... ................................................................................1 0 5.20.140 City Manager.................. ............. .......................... .............................10 5.20.150 Construction, Operation or Repair .....................................................10 5.20.160 FCC... ....... ...................... ......................... .................... ................ .......11 5.20.170 Franchise ...........................................................................................11 5.20.180 Franchise Area..... .......... ..... ............................... ......... ..... ................. .11 5.20.190 Franchisee .... ............... ..... ..... .... .... ..... ........ .............. ..... ..... .... .......... .11 5.20.200 Gross Revenues.............................................................................. ..11 5.20.21 0 Operator............. ................ .............................. ......... ....... ......... .... .....12 5.20.220 OVS ......................... ........... ................................................. .......... ....12 5.20.230 OVS Agreement............... ................... .................. ............................ .13 5.20.240 Person...................... ..... ...... ....... ....................................................... .13 5.20.250 Public Property............... .................................................................. ..13 5.20.260 Public Right(s)-Of-Way ......................................................................13 5.20.270 Redevelopment Agency................................................................... ..14 5.20.280 School.......... ....................................... ...................... ........................ .14 5.20.290 Subscriber............ ............................... ..................... ............... .......... .14 3 5.20.310 User ................ ..... .... .... ....... .......... ........... ..... ................ .................... .14 Part 2 GEN ERAL PROViSiONS................................................................................. ..15 5.20.330 Franchise Required .............................................................. ............. .15 5.20.340 Form of Franchise....... ................. ........... ........... ........... ....... ............ ..15 5.20.350 Scope of Franchise ............................................................................15 5.20.360 Franchise Non-Exclusive.................................................................. .17 5.20.370 Franchise Term.. ............. ........... ............ .............................. ....... ...... .17 5.20.380 Costs Borne by Franchisee................................................................ 17 5.20.390 Failures to Perform...... ................. ............... ......... .......... .................. .17 5.20.400 Administration of Ordinance; Adoption of Regulations .......................18 5.20.410 Transfers.............. ................................................... ......... ............... ...18 5.20.420 General Conditions upon Construction, Operation and Repair ..........19 5.20.430 Protection of City and Residents...................................................... ..26 5.20.440 Enforcement and Remedies......................... ..................... ................ .31 5.20.450 Books and Records.............................................................. ............. .34 5.20.470 Reports.............................................................................................. 35 5.20.480 Maps Required................ ................................................................. ..36 5.20.490 Other Records Required.................................................................... 37 5.20.500 Exemptions.......... ............................................................................. .38 5.20.51 0 Privacy.. . . ...... .. . . . .... ... .. .......... . .. .. ... ...... . ... . .... ... . . . ... ... .. .. . . . . . .... . . . . . .. . . . . .. 38 5.20.520 Procedures for Paying Franchise Fees and Fees in Lieu of Franchise Fees................................................................................................................... 38 Part 3 SPECIAL RULES APPLICABLE TO CABLE SYSTEMS ...................................39 5.20.570 Applications - Generally.....................................................................40 5.20.580 Application for an Initial Franchise or Renewal Franchise .................41 5.20.590 Application for Renewal Franchise Filed Pursuant to 47 U.S.C. Section 546.................................................................................................................... .43 5.20.600 Application for Transfer................................................................ .... ..44 5.20.610 Legal Qualifications........ ....... ........ ....... ..............................................44 5.20.620 Franchise Fee................................................... .................................46 5.20.630 Right to Service.................... .................. ........................................... .46 5.20.640 Rate Regulation and Consumer Protection........................................47 4 Part 4 OPEN VIDEO SySTEMS............................ ........... ................................... ....... ..49 5.20.710 Applications for Grant or Renewal of Franchises ...............................49 5.20.720 Transfers........................................................................................... .51 5.20.740 Minimum Requirements .... ................................................................ .54 5.20.750 Fee in Lieu of Franchise Fee .............................................................55 Part 5 M ISC ELLAN EOUS............................................................................................. 56 5.20.800 Captions............................................................................................ .56 5.20.810 Calculation of Time.......................................................................... ..56 5.20.820 Severability........................................................................................ 57 5.20.830 Connections to Cable System; Use of Antennae. ..............................57 5.20.840 Discrimination Prohibited ................................................ .......... ........ .58 5.20.850 Transitional Provisions... ......................................... .......................... .58 Part 6 CUSTOMER SERVICE STANDARDS........... ....................................... ........ .....58 5.20.900 Office Availability... ...... ...................................................................... .58 5.20.910 Telephones............. ...... ......................................... .......................... .59 5.20.920 Scheduling Work.............. ........................ ......................................... .60 5.20.930 Service Standards... ................................. ..... ...................... .............. .61 5.20.940 Disabled Services ............................................................ ............... ...62 5.20.950 Notice to Subscribers Regarding Service...........................................63 5.20.960 Notices to City.. .......... ............................ ................ ........................... .64 5.20.970 Changes in Noticed Information....................................................... ..64 5.20.980 Truth in Advertising.......................................................................... ..64 5.20.990 Interruptions of Service.................................................................... ..65 5.20.1000 Prorated Billing................................. ...... ..... ................... ................. .65 5.20.1010 Billing Statement ............... ........... ...... ...... .............. ...................... ....65 5.20.1020 Credit for Service Improvement...................................................... .66 5.20.1030 Billing Complaints........................................................................... .66 5.20.1040 Billing Refunds................................................................................ .67 5.20.1050 Credits for Cable Service .................................................................67 5.20.1060 Disconnection and Downgrades.................................................... ..67 5.20.1070 Security Deposit. ...... ........ ............................................................... .68 5.20.1080 Disconnection Due to Nonpayment................................................. .68 5 5.20.1090 Immediate Disconnection.. ............... ...... ........................................ ..69 5.20.1100 Restoration of Service .......... ..... .................................. .................... .69 5.20.1110 Franchisee's Property......................................................................70 5.20.1120 Deposits.. ............................. ........... ....................................... ........ 70 5.20.1130 Parental Control Option.............. ................ ...................................... 70 5.20.1140 Relief from Obligations..................................................................... 71 6 Chapter 5.20 of Title 5 of the Campbell Municipal Code is hereby amended to read as follows: Part 1 GENERAL 5.20.010 Definitions A. The definitions set forth in this Part shall govern the application and interpretation of this Chapter. B. When not inconsistent with the context, words used in the present tense include the future tense; words in the plural number include the singular number; and words in the singular number include the plural number; and the masculine gender includes the feminine gender. C. Subject to the provisions of Section 1.01.050 of Title 1 of the Municipal Code, the words "shall" and "will" are mandatory, and "may" is permissive. D. Words not defined in this Chapter shall have the same meaning as in Title VI of Title 47 of the United States Code or Chapter 47 of the Code of Federal Regulations, as they were in effect on the effective date of the ordinance enacting this Chapter, and, if not defined therein, their common and ordinary meaning. E. References to governmental entities (whether Persons or entities) refer to those entities or their successors in authority. F. If specific provisions of law referred to herein are renumbered, then the reference shall be read to refer to the renumbered provision. 7 G. Unless otherwise specified, references to laws, ordinances or regulations shall include laws, ordinances and regulations now in force or hereinafter enacted or amended. 5.20.020 Access, PEG access, or PEG Use "Access," "PEG access," or "PEG use" refers to the use of a Cable Communications System for public, education or government purposes by eligible agencies, institutions, organizations, groups, and individuals, including the City and its designated access providers for distribution of video programming and other programming services. 5.20.060 Affiliate "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. 5.20.070 Basic Service "Basic service" means any service tier regularly provided on a Cable Communications System to all Subscribers that includes the retransmission of local television broadcast signals. 5.20.080 Cable Act "Cable Act" means the Cable Communications Policy Act of 1984,47 U.S.C. S 521 et seq., as amended by the Cable Television Consumer Protection and Competition Act of 1992, as further amended by the Telecommunications Act of 1996. 8 5.20.090 Cable Communications System "Cable Communications System" refers to open video systems (OVS) and Cable Systems. 5.20.100 Cable Service "Cable Service" means: A. The one-way transmission to Subscribers of (i) video programming, or (ii) other programming service; and B. Subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service. 5.20.110 Cable System "Cable System" means a facility, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide Cable Service which includes video programming and which is provided to multiple Subscribers within a community, but such term does not include: A. A facility that serves only to retransmit the television signals of one (1) or more television broadcast stations; 8. A facility that serves Subscribers without using, or connecting to a facility that uses any Public right-of-way within City; C. A facility of a common carrier which is subject, in whole or in part, to the provisions of Title II (Common Carriers) of the federal Communications Act of 1934, as amended, except that such facility shall be considered a Cable System 9 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; D. Any facilities of any electric utility used solely for operating its electric utility systems; or E. An OVS that is certified by the FCC. 5.20.120 Channel "Channel" means a portion of the electromagnetic frequency spectrum which is used in a Cable System or OVS and which is capable of delivering a standard NTSC broadcast video programming service whether in an analog or digital format. The definition does not restrict the use of any Channel to the transmission of analog television signals. 5.20.130 City "City" means the City of Campbell acting through its City Councilor its lawfully delegated department, division or agency thereof except that, when used to describe a geographic area, the term refers to the boundaries of the City of Campbell, California, as they exist now or may exist in the future. 5.20.140 City Manager "City Manager" means the City Manager or the City Manager's City staff designee. 5.20.150 Construction, Operation or Repair "Construction, operation or repair" and similar formulations of that term means the named actions interpreted broadly, encompassing, among other things, installation, 10 extension, maintenance, replacement of components, relocation, grading, site preparation, adjusting, testing, make-ready, excavation and the management of the cable system and its operations. 5.20.160 FCC "FCC" means the Federal Communications Commission. 5.20.170 Franchise "Franchise" refers to an authorization granted by City to the operator of a Cable Communications System giving the operator the non-exclusive right to occupy the space, or use facilities upon, across, beneath, or over Public rights-of-way in City, to construct, operate and maintain a Cable Communications System. A permit is not a Franchise. 5.20.180 Franchise Area "Franchise area" means the area of City that a Franchisee is authorized to serve by the terms of its Franchise ordinance or by operation of law. 5.20.190 Franchisee "Franchisee" refers to a Person holding a Cable Communications System franchise granted by City. 5.20.200 Gross Revenues "Gross revenues" means any and all revenue, of any kind, nature or form derived by Franchisee from the operation of a Cable Communications System to provide Cable Service. Gross revenues include, by way of example and not limitation, revenues from equipment rental and sales to Subscribers, services, installation, late fees and other 11 Subscriber charges, and advertising. "Gross revenues" shall be construed to include revenues of Affiliates (other than those revenues which are already treated as the revenues of the Franchisee), but only to the extent necessary to prevent avoidance of fees otherwise owed hereunder. Gross revenues shall only include revenues from cable modem services, to the extent such services are considered Cable Services under applicable law. Gross revenues shall not include: (1) any tax, fee or assessment of general applicability collected by the Grantee from Subscribers for pass-through to a governmental agency, including the FCC User Fee (the amount that the Operator pays as a franchise fee will not be considered such a tax, fee or assessment); and (2) bad debt. provided, however that all or any part of any such actual bad debt that is written off but subsequently collected shall be included in Gross Revenues in the period collected. 5.20.210 Operator "Operator," when used with reference to a Cable Communications System, refers to a Person (a) who directly or through one (1) or more Affiliates provides Cable Service over a Cable Communications System and directly or through one (1) or more Affiliates owns a significant interest in such system; or (b) who otherwise controls or is responsible for, through any arrangement, the management and operation of such a system. 5.20.220 OVS "ovs" means an open video system. A reference to an OVS includes pedestals, equipment enclosures (such as equipment cabinets), amplifiers. power guards, nodes, cables, fiber optics and other equipment necessary to operate the OVS, or installed in conjunction with the OVS. 12 5.20.230 OVS Agreement "QVS Agreement" means a Franchise entered into in accordance with the provisions ot this Chapter between City and an OVS Franchisee setting forth the terms and conditions under which the QVS Franchise will be exercised. 5.20.240 Person "Person," unless it otherwise appears trom the context as used, means and includes any person, individual, firm, organization, corporation, partnership, association, limited liability company, joint stock or other company, business or other trust, public agency, school district, the State of California, its political subdivisions and/or instrumentalities, or any other legal entity, but not City. 5.20.250 Public Property "Public Property" means any property that is owned or under the control of City, any agency of City, or the Redevelopment Agency, that is not a Public right-of-way, including but not limited to, buildings, parks, structures such as utility poles and light poles, or similar facilities or property located in a Public right-ot-way or owned by or leased to City or the Redevelopment Agency. 5.20.260 Public Right(s)-Of-Wav "Public rights-ot-way" means the surface ot and the space above and below any street, road, highway, freeway, bridge, lane, path, alley, court, sidewalk, parkway, park strip, drive, or right-of-way or easement now or hereafter existing within City which may be properly used tor the purpose ot installing, maintaining, and operating a Cable Communications System; and any other property that a Franchisee is entitled by state or federal law to use by virtue of the grant ot a Franchise. 13 5.20.270 Redevelopment Agency "Redevelopment Agency" means the Campbell Redevelopment Agency. 5.20.280 School "School" means any public or private primary or secondary school accredited by the State of California. 5.20.290 Subscriber "Subscriber" means the City or any Person who lawfully receives, for any purpose or reason, any Cable Service via a Cable Communications System, whether or not a fee is paid for such service, and does not further distribute such service. 5.20.300 Transfer "Transfer" means any transaction in which (a) an ownership or other interest in a Franchisee, its System, or any Person that is a Cable Operator of the System is transferred from one Person or group of Persons to another Person or group of Persons so that control of a Franchise is transferred; or (b) a Franchise and any of the rights granted by the Franchise are transferred or assigned to another Person or group of Persons. The term "control" as used in this definition, means working control, in whatever manner exercised. 5.20.310 User "User" means a Person or City utilizing a Channel, capacity or equipment and facilities of a Cable Communications System for purposes of producing or transmitting material, as contrasted with the receipt thereof in the capacity of a Subscriber. 14 Part 2 GENERAL PROVISIONS 5.20.330 Franchise Required No Person may construct, operate or repair a Cable Communications System in the City without first obtaining a Franchise therefore from the City pursuant to the terms and provisions of the City's Municipal Code and this Chapter. No Person may construct, operate or repair any facilities that are (i) located in the Public rights-of-way; and (ii) used to transmit video programming in connection with the delivery of Cable Service, whether in the City or in a neighboring jurisdiction, without also first obtaining a Franchise from the City. 5.20.340 Form of Franchise Any Franchise shall be issued in the form of an ordinance and must be accepted by the Franchisee pursuant to the terms of this Chapter and the Franchise ordinance to become effective. 5.20.350 Scope of Franchise Unless otherwise agreed to in a franchise ordinance, a Franchise granted pursuant to this Chapter shall authorize and permit a Franchisee to construct, operate and repair (i) a Cable System; (ii) an OVS; or (iii) facilities used to transmit video programming in connection with the delivery of Cable Service; (as applicable) pursuant to the terms of its Franchise ordinance and this Chapter to provide Cable Service in City, and for that purpose to erect, install, construct, repair, replace, reconstruct, maintain facilities appurtenant to such system in, on, over, under, upon, across, and along those Public rights-of-way that City may authorize a Franchisee to use. 15 A. A Franchise shall not convey rights other than as expressly specified in this Chapter, or in a Franchise ordinance; no rights shall pass by implication. B. A Franchise shall not include, or be a substitute for: 1. Complying with lawful requirements for the privilege of transacting and carrying on a business within City, including but not limited to complying with any conditions City may lawfully establish before constructing facilities for, or providing, non-Cable Services; 2. Any permit, agreement or authorization required pursuant to the generally applicable exercise of the City's police power in connection with construction, operation or repair on or in Public rights-of-way or Public Property, including by way of example and not limitation, street cut permits; 3. Any permits or agreements pursuant to the generally applicable exercise of the City's police power for occupying any other property of City or private. entities to which access is not specifically granted by the Franchise. C. A Franchise does not relieve a Franchisee of its duty to comply with City's Municipal Code, all City ordinances, resolutions, written policies, and regulations, and every Franchisee must comply with the same. The rights granted under a franchise ordinance are subject to the exercise of police and other powers City now has or may later obtain, including but not limited to the power of eminent domain. The terms of every Franchise granted shall be subordinate to all the requirements of the Campbell Municipal Code. D. A Franchise does not convey title, equitable or legal, in the Public rights-of-way or Public Property. The grant of a franchise shall not authorize any Person other than the Franchisee holding that Franchise to own or operate facilities in the 16 public rights-of-way, except in accordance with this chapter or the Franchisee's franchise ordinance. 5.20.360 Franchise Non-Exclusive No Franchise shall be exclusive, or prevent City from issuing other Franchises or authorizations, or prevent City from itself constructing, operating, or repairing its own Cable Communications System, with or without a Franchise. 5.20.370 Franchise Term Every Franchise shall be for a term of years set forth in the Franchise ordinance, which term shall be a maximum of fifteen (15) years. 5.20.380 Costs Borne by Franchisee The City shall not be liable for any cost or expense arising out of Franchisee's performance of its obligations under a Franchise or this Cable Ordinance, or incurred by the Franchisee in the course of performing such obligations. 5.20.390 Failures to Perform If a Cable Communications System Operator fails to perform work that it is required to perform within the time provided for performance, City may perform the work or cause the work to be performed and bill the Operator therefor. The Operator shall pay the amounts billed within thirty (30) days. Nothing in this section applies to work performed on subscriber premises. 17 5.20.400 Administration of Ordinance; Adoption of Regulations A. City may from time to time adopt regulations to implement the provisions of this Chapter. This Chapter, and any regulations adopted pursuant to this Chapter are not contracts with any Franchisee. B. The City Manager or its designees are hereby authorized to administer and enforce the provisions of this Chapter and any Franchise issued pursuant hereto, to provide any notices (including noncompliance notices), and to take action on City's behalf that may be required hereunder or under applicable law. C. The failure of City, upon one (1) or more occasions, to exercise a right or to require compliance or performance under a Franchise ordinance or any other applicable law shall not be deemed to constitute a waiver of such right ora waiver of compliance or performance, unless such right has been specifically waived in writing D. City may designate one (1) or more Persons, including itself, to control and manage the use of Public, Educational or Government access Channels, facilities and equipment. 5.20.410 Transfers A. Unless otherwise agreed to in a franchise ordinance, no transfer of a Franchise, Franchisee, or Cable Communications System, or of control over the same (including, but not limited to, transfer by forced or voluntary sale, merger, consolidation, receivership, or any other means) shall occur unless prior application is made by the franchisee to City and City's prior written consent is obtained, pursuant to this Chapter and the Franchise ordinance, and only then upon such lawful terms and conditions as City deems necessary and proper to protect the public interest. 18 Every Franchise shall be deemed to be held in trust, and to be personal to the Franchisee. Any transfer that is made without the prior approval of City shall be deemed to impair that trust. The granting of approval for a transfer in one instance shall not render unnecessary approval of any subsequent transfer. B. Unless other wise agreed to in a franchise ordinance, a change of control of a Franchise, occurs whenever there is a change in actual working control, in whatever manner exercised, over the affairs of a Franchisee or its direct or indirect parents. Without limiting the above, if a Franchisee is organized as a partnership, the substitution of a general partner of a Franchisee will be presumed a change in control. C. Notwithstanding any other provision of this Chapter, pledges in trust or mortgages of the assets of a Cable Communications System to secure the Construction, operation, or repair of the system may be made without application and without City's prior consent. However, no such arrangement may be made if it would in any respect under any condition: (1) prevent the Cable Communications System Operator or any successor from complying with, this Chapter, the Franchise ordinance or other applicable law or regulation; or (2) permit a third party to succeed to the interest of the Operator, or to own or control the system, without the prior consent of City. Any mortgage, pledge or lease shall be subject to and subordinate to the rights of City under any Franchise, this Chapter, or other applicable law. 5.20.420 General Conditions upon Construction, Operation and Repair A. The Construction, operation, and repair of Cable Communications Systems shall be performed in compliance with all applicable state and federal laws and generally applicable exercises of the City's police powers. By way of example, and not limitation, this includes Title 21 of the Campbell Municipal Code (i.e., the City's zoning ordinance), the City of Campbell Standard Specifications and Details 19 for Public Works Construction, IEEE standards, the National Electronic Code, and the National Electrical Safety Code. City shall have the right to restrict construction, operation, maintenance and/or repair of a Cable Communications System or of any of Franchisee's facilities located in the Public rights-of-way to certain specific days and hours as determined by City. Persons engaged in the Construction, operation, or repair of Cable Communications Systems shall exercise reasonable care within the meaning of applicable law in the performance of all their activities, and shall install and maintain in use commonly accepted methods and/or devices to reduce the likelihood of damage, injury, or nuisance to the public or to property. B. A Franchise is required before a permit may be issued for work associated with the construction, operation or repair of a Cable Communications System. Any permit issued for such work to a Person that does not hold a Franchise shall vest no rights in the permittee; the permit may be revoked at will, and the permittee shall remove all facilities installed under the permit upon and in full compliance with City's demand. C. Construction, operation, or repair of a Cable Communications System shall not commence until all required permits have been obtained from the proper City officials and all required fees have been paid. A Franchisee shall reimburse City for all costs associated with the review and inspection of the Franchisee's design and construction proposals. Such costs shall include but are not limited to administrative and engineering review, clerical costs, inspection costs during construction, and other related costs. All work performed will be performed in strict accordance with the conditions of the permit. Upon order of City, any work and/or construction undertaken that is not completed in compliance with City's requirements, or which is installed without obtaining necessary permits and approvals shall be removed in accordance with the reasonable time line set forth by City. A Franchisee shall reimburse the City for costs incurred in inspecting 20 construction undertaken in the course of major upgrades and/or installation of fiber optics. D. Not less than seven (7) days prior to beginning construction or installation that involves excavation, obstruction of or interference with a Public Right of Way, or which otherwise causes disruption or a nuisance to the immediate vicinity, a Franchisee shall provide written notice to all residences and businesses that are located within a node radius of the site of such construction or installation. The notice shall describe the nature of the construction or installation, the estimated time the project shall take, and the days and hours when construction and installation shall occur. The notice shall also provide an address and telephone number for the recipient to contact if they desire more information about the construction or installation project. E. Interference with the use of the Public rights-of-way by others, including others that may be installing Cable Communications Systems, must be minimized. City may require a person using the Public rights-of-way to cooperate with others through joint trenching and other arrangements to minimize adverse impacts on the Public rights-of-way. Franchisee shall be required, upon notice, to send a representative to all utility coordination meetings held by City and shall agree to honor City's 5-year "no cut" policy for overlaid and reconstructed streets. F. To the extent possible, Operators of Cable Communications Systems shall use existing poles and conduit. Additional poles may not be installed in the right-of- way, nor may pole capacity be increased by vertical or horizontal extenders, without the permission of the City Engineer. G. 1. Whenever all existing utilities are located underground in an area in City, every Cable Communications System Operator installing its system in the 21 same area must locate its Cable Communications System facilities underground. 2. Whenever the owner of a pole locates or relocates underground within an area of City, every Cable Communications System Operator in the same area shall concurrently relocate its facilities underground. 3. The City Engineer may exempt a particular Cable Communications System or facility or group of Cable Communications Systems or facilities from the obligation to locate or relocate the Cable Communications System or facility underground, where relocation is impractical, or where the interest in protecting against visual blight can be protected in another manner Nothing in this Section prevents City from ordering Cable Communications System facilities to be located or relocated underground under other provisions of the Municipal Code. H. An Operator shall repair any disturbance or damage to Public Property, or private property caused by the Operator's construction, operation or repair of a Cable Communications System. Public Property and Public rights-of-way must be restored to the satisfaction of City or to a condition as good or better than before the disturbance or damage occurred. I. 1. Except as otherwise provided in a franchise ordinance, a Franchisee will protect, support, temporarily disconnect, relocate, or remove any of its property at the time and in the manner required by the City or any other governmental entity by reason of traffic conditions, public safety, street vacation, freeway and street construction, change or establishment of street grade, installation of sewers, drains, water pipes, power lines, signal lines, and tracks or any other type of structures or improvements of public agencies. Except in an emergency, the City shall provide written notice describing where the work is to be performed at least two (2) weeks_before 22 the deadline for performing the work; a Franchisee may seek an extension of the time to perform the work where it cannot be performed by the deadline even with the exercise of due diligence, and such request for an extension will not be unreasonably refused. 2. If a Franchisee receives notice hereunder and does not receive an extension, and the Franchisee fails to take necessary action to protect, support, temporarily disconnect, relocate, or remove its property as required by City, then City may take whatever steps it deems necessary to protect, support, temporarily disconnect, relocate, or remove the Franchisee's property and the Franchisee shall be required to reimburse City upon written demand for the cost incurred in taking such action. If a Franchisee fails to pay City the amount of these costs within thirty (30) days of receiving such written demand, provided Franchisee has not exercised any rights it may have to lawfully challenge the costs, City shall be entitled to collect these costs from any Security Fund provided pursuant to the Franchisee's Franchise. J. 1. If any removal, relaying or relocation is required to accommodate the construction, operation or repair of the facilities of another Person authorized to use Public Rights-of-Way, Franchisee will, after fifteen (15) days' advance written notice, use reasonably good faith efforts to effect the necessary changes requested by such person. Unless the matter is governed by State law, or unless the Franchisee's Cable System was improperly installed and if installed properly, the removal, relocation or relaying would be unnecessary, the reasonable expense associated with such removal, relaying, or relocation will be borne by the Person requesting the removal, relaying, or relocation. The City may direct Franchisee to remove, relay, or relocate its facilities pending resolution of a dispute as to responsibility for costs upon posting of a bond by the Person requesting 23 such removal, relaying or relocation in the amount of Franchisee's estimated costs, and upon agreement by the requesting party to cover any reasonable expenses of franchisee related thereto. 2. A Cable Communications System Operator shall, on the request of any Person holding a valid building moving permit issued by a governmental authority, temporarily raise or lower its wires by a reasonable time specified to permit the moving of buildings or other objects. A Cable Communications System Operator shall be given not less than seven (7) days advance notice to arrange for such temporary wire changes. The expense of such temporary removal or raising or lowering of wires shall be paid by the Person requesting the same. K. 1. In the event of a relocation for the government pursuant to Section 420 11, a Franchisee may abandon any property in place in the Public rights-of- way or upon Public Property upon written notice to City. However, if the City determines, in the exercise of its reasonable discretion exercised, within ninety (90) days of the date the required written notices are received, that the safety, appearance, functioning or use of the Public right-of-way or Public Property and facilities in the Public right-of-way or on Public Property will be adversely affected, the property must be removed by a date specified by City. In the event that a Franchisee does not remove such property by the date specified by City, City may remove the property without any further notice and the Franchisee shall be required to reimburse City for the removal cost. 2. A Franchisee that abandons its property must, upon request, transfer ownership of the property to City at no cost, and execute necessary quitclaim deeds; whether or not ownership is transferred, the Franchisee 24 must indemnify City against future costs associated with mitigating or eliminating any hazard associated with the abandoned property. L. The City may inspect and conduct reasonable tests of the Cable System upon receipt of reasonable evidence of failure to meet applicable technical performance obligations, and to ensure compliance with the Cable Ordinance, this Franchise, and applicable provisions of local, State and Federal law. M. Each Franchisee that places facilities underground shall be a member of the regional notification center for subsurface installations (Underground Services Alert) and shall field mark the locations of its underground communications facilities upon request. The Franchisee shall locate its facilities for City at no charge. N. At least sixty (60) days prior to commencing construction, each Cable Communications System Franchisee shall provide City a plan for any initial Cable Communications System construction, operation or repair or for any substantial rebuild, upgrade or extension of its Cable Communications System, which shall show its timetable for construction of each phase of the project, and the areas of City that will be affected. o. A Franchisee shall use reasonable efforts to provide interconnections with all other cable systems and open video systems in the City, for the purpose of sharing institutional network and PEG access communications across networks, provided Franchisee is able to reach agreement with the other operator for the interconnection on reasonable terms and conditions and the City obtains any necessary consent from the adjacent cable system's franchising authority. P. A Franchisee shall provide free and useable access to its poles and conduits to the City and for PEG access provided that any out-of-pocket costs incurred by the Franchisee associated therewith shall be borne by City and such use does not 25 hinder the operations of the Franchisee, is used for solely governmental purposes, and is not used to compete against the Franchisee in any manner. Q. Franchisee shall notify the City if another party occupies Franchisee's poles or conduit within the City and will identify the identity of occupant and the location of occupant's facilities in or on such poles or conduit. 5.20.430 Protection of City and Residents A. Unless otherwise agreed to in a franchise ordinance, each Franchise shall include an indemnity that must, to the extent permitted by law: 1. Release City and the Redevelopment Agency from and against any and all liability and responsibility in or arising out of the Construction, operation, repair or maintenance of the Cable Communications System. Each Cable Communications System Operator must further agree not to sue or seek any money or damages from City or the Redevelopment Agency in connection with the above mentioned matters; and 2. Indemnify, save and hold harmless, and faithfully defend the City, the Redevelopment Agency and each of their officers, commissions, commissioners, boards and employees, from and against any liability for damages resulting from, and for claims, suits, causes of action, proceedings and judgments arising from: (i) property damage; (ii) bodily injury (including accidental death); (iii) invasion of the right of privacy, defamation of any Person, firm or corporation; and (iv) violation or infringement of any copyright, trade mark, trade name, service mark, or patent, or of any other right of any Person, firm, or corporation, including a failure by the Franchisee to secure consents from the owners, authorized distributors, or licensees of programs to be delivered by the Cable System; which arise out of the Franchisee's construction, operation, or maintenance 26 of its Cable System, provided that the City shall give Franchisee written notice of its obligation to indemnify the City within fifteen (15) days of receipt of a claim or action pursuant to this subsection. Notwithstanding the foregoing, Franchisee shall not indemnify the City for any damages, liability or claims resulting from the willful misconduct or sole negligence of the City. B. A Franchisee (or those acting on its behalf) shall not commence construction or operation of the Cable Communications System without first obtaining insurance in amounts and of a type specified in the Franchise ordinance. The required insurance must be obtained and maintained for the entire period the Franchisee has facilities in the Public rights-of-way or on Public Property. If the Franchisee, its contractors, or subcontractors do not have the required insurance, City may order such Persons to stop operations until the insurance is obtained and approved. C. Unless otherwise agreed to in a franchise ordinance, certificates of insurance, reflecting evidence of the required insurance and naming City and the Redevelopment Agency as additional insureds, shall be filed with City Clerk. For Persons issued Franchises after the effective date of this Chapter, certificates shall be filed within thirty (30) days of the issuance of a Franchise, once a year thereafter, and whenever there is any change in coverage. For Persons that have facilities in the Public rights-of-way as of the effective date of this Chapter, the certificate shall be filed within thirty (30) days of the effective date of this Chapter, annually thereafter, and whenever there is any change in coverage, unless a pre- existing Franchise ordinance expressly provides for filing of certificates in a different manner. Each Franchisee's insurance coverage shall be primary insurance as respects the City. Any insurance or self -insurance maintained by the City shall be excess of the Franchisee's insurance and shall not contribute with it. 27 D. Unless otherwise agreed to in a franchise ordinance, certificates shall contain a provision that coverage afforded under these policies will not be canceled until at least sixty (60) days' prior written notice has been given to City. Policies shall be issued by companies authorized to do business under the laws of the State of California. Financial Ratings shall be no less than "A" in the latest edition of "Bests Key Rating Guide", published by A.M. Best Guide. Upon request, Franchisee shall provide City Clerk with written proof of such Financial Ratings. E. A Cable Communications System Operator shall maintain the following minimum insurance. City and the Redevelopment Agency shall be named as an additional insured on the general liability and automotive policies; those insurance policies shall be primary and contain a cross-liability clause. 1. COMPREHENSIVE GENERAL LIABILITY insurance to cover liability from bodily injury and property damage. Exposures to be covered shall include: premises, operations, products/completed operations, and certain contracts. Coverage must be written on an occurrence basis, with the following minimum limits of liability: 2. BODIL Y INJURY a. Each Occurrence $ 1,000,000 b. Annual Aggregate $ 3,000,000 Property Damaqe a. Each Occurrence $ 1,000,000 b. Annual Aggregate $ 3,000,000 Personallniurv Annual Aggregate $ 3,000,000 Completed Operations and Products Liability shall be maintained for two (2) years after the termination of the Franchise or License (in the case of the Cable Communications System owner or Operator) or completion of 28 the work for the Cable Communications System owner or Operator (in the case of a contractor or subcontractor). Property Damage Liability Insurance shall include Coverage for the following hazards: X - explosion, C - Collapse, U - underground. 3. WORKERS' COMPENSATION insurance shall be maintained during the life of the Franchise to comply with statutory limits for all employees, and in the case any work is sublet, each Cable Communications System Operator shall require the subcontractors similarly to provide workers' compensation insurance for all the latter's employees unless such employees are covered by the protection afforded by each Cable Communications System operator. Each Cable Communications System Operator and its contractors and subcontractors shall maintain during the life of this policy employers liability insurance. The following minimum limits must be maintained: Workers' Compensation Employer's Liability Statutory $ 1,000,000 per Occurrence 4. COMPREHENSIVE AUTO LIABILITY Bodily Injury a. Each Occurrence $ 1,000,000 b. Annual Aggregate $ 3,000,000 Property Damaqe a. Each Occurrence $ 1,000,000 b. Annual Aggregate $ 3,000,000 Coverage shall include owned, hired, and non-owned vehicles. 29 5. BROADCASTER'S LIABILITY COVERAGE, in amounts specified in a Franchise Ordinance, if an Operator of a Cable Communications system will be producing or originating programming. F. Every Franchisee shall obtain and maintain a performance bond to ensure the faithful performance of its responsibilities under this Chapter and any Franchise ordinance. In the case of any Franchise ordinance that requires a Franchisee to initially build, or to upgrade a system, the amount of the bond shall be in an amount sufficient to ensure that the required construction is satisfactorily completed. The amount of the bond may be reduced upon successful completion of the required construction. The amount of the performance bonds shall be set by the City Manager or may be set in a Franchise ordinance in light of the nature of the work to be performed pursuant to or under the Franchise. The bond is not in lieu of any additional bonds that may be required through any permitting process. The bond shall be in a form acceptable to the City Attorney. However, any performance bond issued hereunder must be issued by a surety with an A-1 rating or better rating of insurance in the latest edition of Best's Key Rating Guide, Property/Casual Edition. Bonds must be obtained prior to the effective date of any Franchise, transfer or Franchise renewal, unless a Franchise ordinance specifically provides otherwise. G. Every Franchisee shall establish and maintain a cash security fund or provide City an irrevocable letter of credit in an amount specified in the Franchise ordinance but no less than one hundred thousand dollars ($100,000) to secure the payment of fees owed, to secure any other performance promised in a Franchise ordinance, and to pay any taxes, fees or liens owed to City. The letter of credit shall be in a form and with an institution acceptable to City's Director of Finance and in a form acceptable to the City Attorney. Should City draw upon the cash security fund or letter of credit, the Franchisee shall, within fourteen (14) days, restore the fund or the letter of credit to the full required amount. This security fundlletter of credit may be waived or reduced by City for a Franchisee where City 30 determines in its discretion that a particular Franchisee's operations are sufficiently limited that a security fundlletter of credit is not necessary to secure the required performance. The cash security fund or letter of credit must be obtained prior to the effective date of any Franchise, transfer or Franchise renewal, unless a Franchise ordinance specifically provides otherwise. 5.20.440 Enforcement and Remedies A. The City Council may revoke a Franchise if it finds, after a hearing, that a Franchise has committed a material violation of any provision of this Chapter, committed a material breach of its Franchise ordinance or repeatedly failed to comply with its Franchise ordinance; has defrauded or attempted to defraud City or Subscribers; or has attempted to evade the requirements of this Chapter or its Franchise ordinance. Before conducting a hearing to revoke the Franchise: (1) the City Manager must have given notice of a claimed violation, breach, default or failure; and (2) the Franchisee must have been given thirty (30) days to: (a) cure the claimed default; or (b) in the event that, by the nature of the default, such default cannot be cured within the thirty (30) day period, initiate reasonable steps to remedy such default and notify the City of the steps being taken and the projected date that they will be completed. If the Franchisee challenges the assertion of violation, the Franchisee shall have ten (10) days from receipt of notice to respond to City challenging the assertion of violation, by providing evidence that there is no violation. If City rejects Franchisee's challenge, Franchisee will be notified of the rejection and start of the thirty (30) day cure period. The Franchisee will be given at least thirty (30) days notice of the hearing date, and will be provided an opportunity to be heard at the hearing. The City Council will consider evidence and testimony and render findings and its decision no more than ninety (90) days following conclusion of the hearing. Any revocation proceeding must be conducted in accordance with then applicable federal and state law, if any. 31 B. City may declare a Franchise forfeited without opportunity to cure where a Franchisee voluntarily stops providing service it is required to provide. C. To the extent not prohibited by the United States Bankruptcy Code, a Franchise will terminate automatically by force of law one hundred eighty (180) calendar days after an assignment for the benefit of creditors or the appointment of a receiver or trustee to take over the business of the Franchisee, whether in a receivership, reorganization, bankruptcy assignment for the benefit of creditors, or other action or proceeding. However, the Franchise may be reinstated within that one hundred eighty (180) day period, if: (1) such assignment, receivership or trusteeship has been vacated; or (2) such assignee, receiver or trustee has fully complied with the terms and conditions of this Chapter and the Franchise ordinance, and has executed an agreement, approved by any court having jurisdiction, assuming and agreeing to be bound by the terms and conditions of this Chapter and the Franchise ordinance. To the extent not prohibited by the United States Bankruptcy Code, in the event of foreclosure or other judicial sale of substantially all of the facilities, equipment or property of a Franchisee, City may revoke the Franchise following a public hearing before the City Council, by serving notice upon the Franchisee and the successful bidder at the sale, in which event the Franchise and all rights and privileges there under will be revoked and will terminate thirty (30) calendar days after serving such notice, unless: (1) City has approved the transfer of the Franchise to the successful bidder; and (2) the successful bidder has covenanted and agreed with City to assume and be bound by the terms and conditions of the Franchise ordinance and this Chapter. D. Upon termination or forfeiture of a franchise, whether by action of the City as provided above, or by passage of time, City may do one or a combination of the following. 32 1. The City may require the former Franchisee to remove all of a portion of its facilities and equipment at the former Franchisee's expense. If the former Franchisee fails to do so within a reasonable period of time, City may have the removal done at the former Franchisee's and/or surety's expense, subject to any right of abandonment provided for under applicable law. 2. The City, by resolution of the City Council, may acquire ownership or effect a transfer of all or a portion of the Cable Communications System at fair market value, or, if the Franchise terminates or is revoked for cause, an equitable price. The terms "equitable price" and fair market value shall be interpreted in accordance with 47 U.S.C. S 547. 3. Subsection 5.20.440(0)(3) of this section does not apply to an abandonment. If a cable communications system or any part thereof is abandoned by Franchisee, City may require the Franchisee to transfer title to the all of some of the abandoned portions to it at no charge, free and clear of encumbrances, and the same will become City's property and City may keep, sell, assign, or transfer all or part of the assets of the cable communications system, or otherwise dispose of those assets as it sees fit. 4. Notwithstanding the foregoing, City may not, pursuant to this section, issue an order that violates 47 U.S.C. S 541 (b)(3)(c). E. Remedies provided for under this Chapter, or under a Franchise ordinance shall be cumulative and are in addition to all other remedies which may be available at law or equity. Recovery by City of any amounts under insurance, the performance bond, the security fund or letter of credit, does not limit a Franchisee's duty to indemnify City; or relieve a Franchisee of its Franchise obligations or limit the amounts owed to City. 33 F. Each franchise shall contain a provision specifying liquidated damages payable to City in the event of a breach of a Franchise obligation where damages would otherwise be difficult to ascertain. 5.20.450 Books and Records A. The City shall, upon thirty (30) days' written notice to a Franchisee, have the right to inspect and copy books and records that are related in whole or in part to the construction, operation or repair of the Cable Communications System; that the City deems relevant to monitoring compliance with the terms of this ordinance, a franchise or applicable law; or that the City deems relevant to the exercise of any right or duty of the city under the same. Each cable communications system operator is responsible for maintaining control over such books and records, whether created by grantee, or by those acting on its behalf. It is responsible for producing these records upon City's request, for City's inspection and copying. Books and records must be maintained for a period five (5) years, except that a Franchise ordinance may specify a shorter period for certain categories of voluminous books and records where the information contained therein can be derived simply from other materials. The phrase "books and records" shall be read expansively to include information in whatever format stored. B. Books and records requested shall be produced for review at City Hall, or such other location, the parties may agree. However, if the requested books and records are too voluminous, or for security reasons cannot be copied and moved, then the Franchisee may request that the inspection take place at some other location mutually agreed to by City and the Franchisee, provided that (1) the Franchisee must make necessary arrangements for copying documents selected by City after its review; and (2) the Franchisee must pay all travel and additional copying expenses incurred by City (above those that would have been incurred had the documents been produced in City) in inspecting those documents or having those documents inspected by its designee. 34 5.20.470 Reports A. The City Manager may from time to time direct a Franchisee to prepare reports and to submit those reports by a date certain, in a format prescribed by the Manager, in addition to those required by this Chapter. B. Upon written request by the City Manager, within forty-five (45) days of the end of each calendar year, a Franchisee shall submit a report to City containing the following information: 1. the number of service calls (calls requiring a truck roll) received during the prior year and the percentage of service calls compared to the Subscriber base; and 2. the total estimated hours of known outages as a percentage of total hours of operation. An outage is a loss of all sound or video on any signal, affecting five (5) or more Subscribers. C. Unless an exemption is granted by the City Manager, no later than ninety (90) days after the end of its fiscal year, a Franchisee shall submit the following information, except that the information required by Section 5.20.470(C)(3) need only be provided where there has been a change from the preceding year: 1. A fully audited or certified revenue report from the previous calendar year for the Cable Communications System, to the extent prepared in the regular course of business and a certified statement setting forth the computation of Gross revenues used to calculate the Franchise fee for the preceding year and a detailed explanation of the method of computation showing (i) Gross revenues by category (e.g., basic, pay, pay-per-view, advertising, installation, equipment, late charges, miscellaneous, other); 35 l and (ii) what, if any, deductions were made from Gross revenues in calculating the Franchise fee (e.g., bad debt, credits and refunds), and the amount of each deduction. " 2. A report showing, for each applicable customer service standard, the Franchisee's performance with respect to that standard for each quarter of ~ the preceding year. In each case where Franchisee concludes it did not comply fully, the Franchisee will describe the corrective actions it is taking to assure future compliance. In addition, the report should identify the number and nature of the customer service complaints received and an explanation of their dispositions. 3. An ownership report, indicating all Persons who at the time of filing control or own an interest in the Franchisee of ten percent (10%) or more. D. Within ten (10) days of their receipt or (in the case of documents created by the Cable Communications System Operator or a Person acting on its behalf) filing, a Franchisee shall provide City: 1. notices of deficiency or forfeiture related to the operation of the Cable Communications System; and 2. any request for protection under bankruptcy laws, or any judgment related to a declaration of bankruptcy by the Franchisee or by any partnership or corporation that owns or controls the Franchisee directly or indirectly. 5.20.480 Maps Required Each Franchisee shall maintain accurate maps and improvement plans that show the location, size, and a general description of all facilities installed in the Public rights-of- way or on Public Property and any power supply sources (including voltages and 36 and (ii) what, if any, deductions were made from Gross revenues in calculating the Franchise fee (e.g., bad debt, credits and refunds), and the amount of each deduction. 2. A report showing, for each applicable customer service standard, the Franchisee's performance with respect to that standard for each quarter of the preceding year. In each case where Franchisee concludes it did not comply fully, the Franchisee will describe the corrective actions it is taking to assure future compliance. In addition, the report should identify the number and nature of the customer service complaints received and an explanation of their dispositions. 3. An ownership report, indicating all Persons who at the time of filing control or own an interest in the Franchisee of ten percent (10%) or more. D. Within ten (10) days of their receipt or (in the case of documents created by the Cable Communications System Operator or a Person acting on its behalf) filing, a Franchisee shall provide City: 1. notices of deficiency or forfeiture related to the operation of the Cable Communications System; and 2. any request for protection under bankruptcy laws, or any judgment related to a declaration of bankruptcy by the Franchisee or by any partnership or corporation that owns or controls the Franchisee directly or indirectly. 5.20.480 Maps ReQuired Each Franchisee shall maintain accurate maps and improvement plans that show the location, size, and a general description of all facilities installed in the Public rights-of- way or on Public Property and any power supply sources (including voltages and 36 connections). Upon thirty (30) days written notice, a Franchisee shall provide current strand and trench maps of the Cable System in the Franchise Area to the City. Copies of maps shall be provided on disk, in a mutually agreed upon format. Whenever requested to do so in writing by City's Director of Public Works, Franchisee shall pothole as necessary to verify the depth of certain specified existing facilities. Such pot-holing shall be completed within 30 days of Franchisee's receipt of such written request. 5.20.490 Other Records Required Franchisees shall not be required to maintain any books and records for franchise compliance purposes longer than five (5) years. Unless the City Manager specifically waives the requirement in writing, a Franchisee shall at all times maintain: A. Records of all written complaints received, including complaints received via electronic mail, their nature and resolution. The term "complaints" refers to complaints about any aspect of the Franchisee's construction, operations or repairs activities; B. Records of outages known to the Franchisee, their cause and duration; C. Records of service calls for repair and maintenance indicating the nature of the call for service, the date and time service was requested, the date of acknowledgment and date and time service was scheduled (if it was scheduled), and the date and time service was provided, and (if different) the date and time the problem was solved; D. Records of installationlreconnection and requests for service extension, indicating date of request, date of acknowledgment, and the date and time service was extended; 37 E. Records sufficient to show whether the Franchisee has complied with each customer service standard that apply to it. 5.20.500 Exemptions The City Manager may temporarily exempt any Franchisee from its obligations under Sections 5.20.470 - 5.20.490 if the City Manager determines that the requirement would be unduly burdensome or unnecessary, and that City and Subscriber interests may be adequately protected in some other manner. 5.20.510 Privacv A Franchisee shall take all reasonable steps required so that it is able to provide reports, books and records to City, including by providing appropriate Subscriber privacy notices. Each Franchisee shall be responsible for redacting data that applicable law prevents it from providing to City. Nothing in this Section shall be read to require a Franchisee to violate state or federal Subscriber privacy laws. 5.20.520 Procedures for Paving Franchise Fees and Fees in Lieu of Franchise Fees A. The Franchise fee paid pursuant to Part 3, and the fee in lieu of Franchise fee paid pursuant to Part 4 shall be paid quarterly unless otherwise specified in a Franchise. Payment for each quarter shall be made to City by check not later than thirty (30) days after the end of the respective calendar quarter. Upon receipt of written notice from the City Manager that future payments shall be made by electronic transfer, Franchisee shall be required to make all future payments by electronic transfer not later than the due date described above. B. Unless a Franchise ordinance expressly provides otherwise, a Franchisee or other Person subject to a fee under Part 3 or 4 shall file with City within thirty (30) 38 days of the end of each calendar quarter a statement showing Gross revenues during the preceding quarter and the number of Subscribers served. C. No acceptance by City of any payment shall be construed as an accord that the amount paid is in fact the correct amount, nor shall such acceptance of such payment be construed as a release of any claim City may have for additional sums payable or otherwise related to that payment. D. Neither the Franchise fee under Part 3, nor the fee paid in lieu of the Franchise fee under Part 4, is a payment in lieu of any tax, fee or other assessment. E. In the event that the full amount of any fee that is owed by Franchisee hereunder is not received by City on or before the due date set forth in this Section or in a Franchise ordinance, the Franchisee or Person subject to the fee shall be obligated to pay interest on the outstanding amount owed from the due date at an annual rate equal to. the higher of ten percent (10%) or the legal rate of interest then in force in the State of California. F. Within ninety (90) days of the date a Franchisee ceases operations under a Franchise (whether because of Franchise termination, transfer, bankruptcy or for any other reason), the Franchisee (or its successor in interest) shall: (A) make a final franchise fee payment, covering the period from the end of prior calendar month to date the Franchisee ceased operations; and (8) file a final statement of Gross revenues covering the period from the beginning of the calendar year in which the operations ceased to the date operations ceased. The statement shall contain the information and be certified as required by Section 5.20.470(C)(1). Part 3 SPECIAL RULES APPLICABLE TO CABLE SYSTEMS 39 5.20.570 Applications - Generally A. An application must be filed for an initial and renewal Cable System Franchise, or for approval of a transfer. All applications under this provisions of this chapter shall be in writing and shall be filed in the Office of the City Clerk. These requirements do not apply to a renewal proposal submitted pursuant to 47 U.S.C. Section 546(h) as may be amended. B. 1. The City Manager may specify the information that must be provided in connection with an application, and the form in which the information is to be provided. 2. At a minimum, each application must identify the applicant, show that the applicant is financially, technically and legally qualified to construct, maintain and operate the Cable System, and show that the applicant is willing to comply with this Chapter and its Franchise obligations. In addition, any application for an initial or renewal Franchise must describe in detail the Cable System that the applicant proposes to build or maintain, show where it is or will be located, set out the system construction or rebuild schedule, and show that the applicant will provide adequate Channels, facilities and other support for Public, Educational and Government use (including institutional network use) of the Cable System. To be accepted for filing, an original and six (6) copies of a complete application must be submitted. All applications shall include the names and addresses of Persons authorized to act on behalf of the applicant with respect to the application. 3. Subject to applicable law, City may at any time demand, and applicant shall provide, such supplementary, additional or other information as the City Council may deem reasonably necessary to determine whether the 40 application Franchise should be granted and an applicant (and the transferor and transferee, in the case of a transfer) shall respond to any request for information from City, by the time specified by City. C. Subject to applicable law, an application may be rejected if it is incomplete, or if the response to requests for information is not timely and complete. 5.20.580 Application for an Initial Franchise or Renewal Franchise A. This Section establishes additional provisions that apply to an application for an initial Franchise, or a renewal Franchise application that is not governed by 47 U.S.C. Section 546(a)-(h) as may be amended. B. Any Person may apply for an initial or renewal Franchise by submitting an application therefor on that Person's own initiative, or in response to a request for proposals issued by City. If City receives an unsolicited application, it may choose to issue a request for additional proposals, and require the applicant to amend its proposal to respond thereto. City may conduct such investigations as are necessary to act on an application. C. Before taking final action on an application, the City shall conduct a public hearing in accordance with applicable state and federal law. D. In determining whether to grant a Franchise, City may consider: 1. the extent to which an applicant for renewal has substantially complied with the applicable law and the material terms of any existing cable Franchise ordinance; 2. whether an applicant for renewal's quality of service under its existing Franchise ordinance, including signal quality, response to customer 41 complaints, billing practices, and the like has been reasonable in light of the needs of the community; 3. where the applicant has not previously held a Cable System Franchise in City, whether the applicant's record in other communities indicates that it can be relied upon to provide high-quality service throughout any Franchise term; 4. whether the applicant has the financial, legal, and technical ability to provide the services, facilities, and equipment set forth in an application, and to satisfy any minimum requirements established by City; 5. whether the applicant's application is reasonable to meet the future cable- related needs and interests of City, taking into account the cost of meeting such needs and interests; 6. whether issuance of a Franchise is warranted in the public interest considering the immediate and future effect on streets, Public Property, and Private property that will be used by the applicant's Cable System; 7. whether issuance of the Franchise would reduce competition in the provision of Cable Service in City; 8. whether the applicant has proposed to provide adequate facilities, equipment, Channels and other support for PEG use of the Cable System; 9. such other matters as City is permitted by applicable law to consider. E. If City determines that issuance of a Franchise would be in the public interest considering the factors described in this Section, it may proffer a Franchise ordinance to the applicant. 42 F. Within thirty-one (31) days after the effective date of the ordinance awarding a Franchise or Franchise renewal, or within such extended period of time as the City Council in its discretion may authorize, the successful applicant or Franchisee shall file with the City Clerk an unconditional written acceptance, in form satisfactory to the City Attorney, of the Franchise or Franchise renewal, together with an agreement to be bound by and to comply with all applicable provisions of this Chapter, and the Franchise ordinance. Such acceptance and agreement shall be acknowledged before a notary public and shall in form and content be satisfactory to and approved by the City Attorney. 5.20.590 Application for Renewal Franchise Filed Pursuant to 47 U.S.C. Section 546 A. This Section establishes provisions that apply to applications for renewal governed by 47 U.S.C. 546(a)-(g) as may be amended. B. A Franchisee that intends to exercise rights under 47 U.S.C. 546(a)-(g) as may be amended shall submit a notice in writing to City in a timely manner clearly stating that it is activating the procedures set forth in those sections. City shall thereafter commence any proceedings that may be required under federal law, and upon completion of those proceedings, City may issue a request for proposals and an application may be submitted for renewal. City may preliminarily deny the application by resolution, and if the application is preliminarily denied, City shall conduct such proceedings and by resolution establish such procedures and appoint such individuals as may be necessary to conduct any proceedings to review the application, and otherwise comply with the requirements of 47 U.S.C. 9546. 43 5.20.600 Application for Transfer A. This Section establishes provisions that apply to applications for transfer approval. B. An application for transfer must contain all the information required by Section 5.20.570(B)(2), excluding Section 5.20.570 (B) (1), all information required by the FCC Form 394 as it existed on the date of adoption of this Chapter, and all information that it is required to file under applicable federal or state law. C. In determining whether a transfer application should be granted, denied, or granted subject to conditions, City may consider the legal, financial, and technical qualifications of the transferee to operate the Cable System; any potential impact of the transfer on Subscriber rates or services; whether the incumbent cable Operator is in compliance with its Franchise, and if not, the proposed Transferee's commitment to cure such noncompliance; and whether the transferee owns or controls any other Cable System in City. Unless otherwise agreed to in a franchise ordinance, the proposed transferee shall pay all reasonable costs incurred by City in reviewing and evaluating the applications. D. No application shall be granted unless the transferee, agrees in writing that it will abide by and accept all terms of this Chapter, as it existed on the date of adoption, and the Franchise ordinance, and that it will assume all the obligations, liabilities, and responsibilities of the previous Franchisee. 5.20.610 Legal Qualifications A. 1. The applicant must be willing to comply with the applicable provisions of this Chapter and applicable laws; and to comply with such requirements of a Franchise ordinance as City may lawfully require. 44 2. The applicant must not have had a final decision revoking any Cable System or OVS Franchise granted to it by City within three (3) years preceding the submission of the application. 3. The applicant shall not be issued a Franchise if, at any time during the ten (10) years preceding the submission of the application, applicant was convicted of fraud, racketeering, anti-competitive actions, unfair trade practices or other conduct of such character that the applicant cannot be relied upon to deal truthfully with City and the Subscribers, or to substantially comply with its obligations. 4. Applicant must have the necessary authority under California and federal law to operate a Cable System, or show that it is in a position to obtain that authority. 5. The Applicant shall not be issued a Franchise if it files materially misleading information in its application or intentionally withholds information that the applicant lawfully is required to provide. 6. For purposes of Section 5.20.610(A)(1)-(3), the term applicant includes any Affiliate of applicant. B. Notwithstanding Section 5.20.610(A), an applicant shall be provided a reasonable opportunity to show that a Franchise should issue even if the requirements of Section 5.20.610(A)(2)-(4) are not satisfied, by virtue of the circumstances surrounding the matter and the steps taken by the applicant to cure all harms flowing therefrom and prevent their recurrence, the lack of involvement of the applicant's principals, or the remoteness of the matter from the operation of a Cable System. 45 5.20.620 Franchise Fee A Cable System Operator shall pay to City a Franchise fee in an amount equal to five (5) percent of Gross revenues, or such other amount as may be specified in the Franchise ordinance. 5.20.630 Right to Service A. It is the policy of City to ensure that every Cable System provide service in its Franchise area upon request to any Person or any government building. Each Franchisee shall extend service as required in its Franchise ordinance. Cable Service must be provided within time limits specified in Section 5.20.930G of this chapter B. A Cable System within City shall meet or exceed the technical standards set forth in 47 C.F.R. 976.601 and any other applicable technical standards as may be amended. C. Each cable Operator shall perform at its expense such tests as may be necessary to show whether or not the Franchisee is in compliance with its obligations under applicable FCC technical standards. D. Each Franchisee shall, during the term of its Franchise, ensure that Subscribers are able to receive continuous service. In the event the Franchise is revoked or terminated, the Franchisee may be required to continue to provide service for a reasonable period to assure an orderly transition of service from the Franchisee to another Person. A Franchise ordinance may establish more particular requirements under which these obligations will be satisfied. 46 5.20.640 Rate Regulation and Consumer Protection A. City may regulate Operator's rates and charges, and order refunds of unreasonable rates charged, as permitted by and except to the extent it is prohibited from doing so by federal rate regulations. B. Except to the extent City may not enforce such a requirement, and subject to applicable law, a cable Operator is prohibited from discriminating in its rates or charges or from granting undue preferences to any Subscriber, potential Subscriber, or group of Subscribers or potential Subscribers; provided, however, that a Franchisee may offer temporary, bona fide promotional discounts in order to attract or maintain Subscribers, so long as such discounts are offered on a non- discriminatory basis to similar classes of Subscribers throughout the Franchise area; and a Franchisee may offer discounts for the elderly, the disabled, or the economically disadvantaged; and such other discounts as it is expressly entitled to provide under federal law, if such discounts are applied in a uniform and consistent manner. C. A cable Operator shall not deny access or charge different rates to any group of Subscribers or potential Subscribers because of the income of the residents of the local area in which such group resides. Nothing in the foregoing shall prevent a Franchisee from taking reasonable steps to insure against non-payment or equipment loss based on the credit history of an individual subscriber, including, but not limited to, denying service or requiring a security from subscribers that have a history of damaging cable system equipment or facilities or failing to make timely payments. D. 1. Each Cable System Operator must satisfy FCC, state and City Cable System customer service standards or consumer protection standards. City Cable System customer service standards may be adopted by 47 resolution. In the case of a conflict among standards, the stricter standard shall apply. 2. For each violation of a Cable System customer service standard, penalties may be imposed following written notice of the violation and thirty (30 days opportunity to cure the violation or contest the violation. If at the conclusion of the thirty day opportunity to cure period, the City Manager finds that the violation is not cured, penalties may be imposed, following a hearing where the Franchisee has an opportunity to be heard. Penalties may be imposed as follows and shall not be charged or passed-through to Subscribers: (i) Two hundred dollars ($200) for each day of each material breach not to exceed six hundred dollars ($600) for each occurrence of material breach. (ii) If there is a subsequent material breach of the same provision within twelve (12) months, four hundred dollars ($400) for each day of each material breach not to exceed twelve hundred dollars ($1200) for each occurrence of the material breach. (iii) If there is a third or additional material breach of the same provision within twelve (12) months of the first, one thousand dollars ($1000) for each day of each material breach not to exceed three thousand dollars ($3000) for each occurrence of the material breach. 3. Any penalty assessed under this Section will be reduced dollar for dollar to the extent any liquidated damage provision of a Franchise imposes a monetary obligation on a Franchisee for the same customer service failures, and no other monetary damages may be assessed. A citation may be served on the Franchisee by providing a copy to the person to whom notices are to be sent under the Franchise. Penalties will be 48 imposed pursuant to procedures set forth in the Municipal Code, applied in a manner consistent with Cal. Govt. Code Sec. 53088(2)(r). Part 4 OPEN VIDEO SYSTEMS. 5.20.710 Applications for Grant or Renewal of Franchises A. 1. A written application shall be filed with the City Clerk for grant of an initial or renewalOVS Franchise. 2. To be acceptable for filing, a signed original of the application shall be submitted together with six (6) copies. The application must conform to any applicable request for proposals, and contain all information required under Section 5.20.570(8)(2). All applications shall include the names and addresses of Persons authorized to act on behalf of the applicant with respect to the application. 8. The City Manager may specify the information that must be provided in connection with a request for proposals or an application for an initial or renewal OVS Franchise. At a minimum, each application must: identify the applicant, where it plans to construct its OVS. and the OVS construction schedule; show that the Applicant will provide adequate Channels, facilities and other support for Public, Educational and Government use (including institutional network use) of the OVS; and show that the applicant is financially, technically and legally qualified to construct and operate the OVS. C. 1. A Person may apply for an initial or renewal OVS Franchise on its own initiative or in response to a request for proposals. Upon receipt of an 49 application, City may conduct such investigations as are necessary to consider the application. City may request such additional information, as it deems appropriate. 2. An applicant shall respond to requests for information completely, and within the time directed by City, and must strictly comply with procedures, instructions, and requirements City may establish. 3. An application may be rejected if it is incomplete or the applicant fails to follow procedures or respond fully to information requests. D. In evaluating an OVS Franchise application, City may consider the following: 1. The extent to which the applicant has substantially complied with the applicable law and the material terms of any existing City OVS Franchise; 2. Whether the applicant has the financial, technical, and legal qualifications to hold an OVS Franchise; 3. Whether the application satisfies any minimum requirements established by City for, or will otherwise provide adequate Public, Educational, and Governmental use capacity, facilities, or financial support (including with respect to institutional networks); 4. Whether issuance of an OVS Franchise would require replacement of property or involve disruption of property, public services, or use of the Public rights-of-way; 5. Whether the approval of the application may eliminate or reduce competition in the delivery of Cable Service in City; and 50 6. Such other matters as it is required or entitled to consider. E. If City finds that it is in the public interest to issue an OVS Franchise considering the factors above, shall proffer an OVS Agreement to applicant, and if applicant is willing to unconditionally accept the terms thereof, and to comply with the requirements of applicable law, including this Chapter, it shall issue an OVS Franchise. 5.20.720 Transfers A. No transfer of an OVS Franchise shall occur without prior written notice to and approval of the City Council. B. 1. An OVS Franchisee shall promptly notify City of any proposed transfer, and submit an application for its approval at least 120 days in advance of the proposed and anticipated transfer date. 2. The City Manager may specify information that must be provided in connection with a transfer application. At a minimum, an application must: describe the Persons involved in the transaction and the Person that will hold the OVS Franchise; describe the chain of ownership before and after the proposed transaction; show that the Person that will hold the OVS Franchise will be legally, financially, and technically qualified to do so; attach complete information on the proposed transaction, including the contracts or other documents that relate to the proposed transaction, and all documents, schedules, exhibits, or the like referred to therein; and attach any shareholder reports or filings with the Securities and Exchange Commission ("SEC") that discuss the transaction. 51 3. For the purposes of determining whether it shall consent to a transfer, City or its agents may inquire into all qualifications of the prospective transferee and such other matters as City may deem necessary to determine whether the transfer is in the public interest and should be approved, denied, or conditioned. If the transferee or OVS Franchisee refuse to provide information, or provide incomplete information, the request for transfer may be denied. C. 1. In deciding whether a transfer application should be granted, denied or granted subject to conditions, City may consider the legal, financial, and technical qualifications of the transferee to operate the OVS; whether the incumbent OVS Operator is in compliance with its OVS Agreement and this Chapter and, if not, the proposed transferee's commitment to cure such noncompliance; whether the transferee owns or controls any other OVS or Cable System in City, and whether operation by the transferee may eliminate or reduce competition in the delivery of Cable Service in City; and whether operation by the transferee or approval of the transfer would adversely affect Subscribers, the public, or City's interest under this Chapter, the OVS Agreement, or other applicable law. 2. No application shall be granted unless the transferee agrees in writing that it will abide by and accept all terms of this Chapter and the OVS Agreement, and that it will assume the obligations, liabilities, and responsibility for all acts and omissions, known and unknown, of the previous Franchisee for all purposes. The proposed transferee shall pay all reasonable costs incurred by City in reviewing and evaluating the applications. 5.20.730 Legal Qualifications. 52 A. In order to be legally qualified: 1. The applicant must be willing to comply with the provisions of this Chapter and applicable laws, and to comply with such requirements of an OVS Agreement as City may lawfully require. 2. The applicant must not hold a Cable System Franchise, or have pending an application for a Cable System Franchise. 3. The applicant must not have had any Cable System or OVS Franchise revoked by City within three (3) years preceding the submission of the application. If Franchisee challenges a revocation, it may not apply while the appeal is pending, or for three years after the final resolution of the appeal if the revocation is valid. 4. The applicant may not have had an application for an initial or renewal Cable System Franchise to City denied on the ground that the applicant failed to propose a Cable System meeting the cable-related needs and interests of the community, or as to which any challenges to such franchising decision were finally resolved (including any appeals) adversely to the applicant, within three (3) years preceding the submission of the application. 5. The applicant may not have had an application for an initial or renewal OVS Franchise denied on any grounds within three (3) years of the applications. 6. The applicant shall not be issued an OVS Franchise if, at any time during the ten (10) years preceding the submission of the application, applicant was convicted of fraud, racketeering, anti-competitive actions, unfair trade practices or other conduct of such character that the applicant cannot be 53 relied upon to deal truthfully with City and the Subscribers, or to substantially comply with its obligations. 7. Applicant must have the necessary authority under California and federal law to operate an OVS, and must be certified by the FCC under Section 653 of the Cable Act as may be amended. 8. The Applicant shall not be issued an OVS Franchise if it files materially misleading information in its application or intentionally withholds information that the applicant lawfully is required to provide. 9. For purposes of Section 5.20.730(A)(2)-(6), the term applicant includes any Affiliate of applicant. B. Notwithstanding Section 5.20.730(A), an applicant shall be provided a reasonable opportunity to show that an OVS Franchise should issue even if the requirements of Section 5.20.730(A)(3)-(6) are not satisfied, by virtue of the circumstances surrounding the matter and the steps taken by the applicant to cure all harms flowing therefrom and prevent their recurrence, the lack of involvement of the applicant's principals, or the remoteness of the matter from the operation of an OVS. 5.20.740 Minimum Requirements A. No OVS Operator shall be issued a Franchise, or may commence construction of an OVS, until (A) it agrees to match in all respects the highest PEG obligations borne by any Cable System Operator in City; or (B) it agrees to PEG obligations acceptable to City. 54 B. Any OVS Operator that constructs an I-Net must match in all respects the highest I-Net obligations borne by any Cable System Operator in City, unless it agrees to alternative I-Net obligations acceptable to City. C. Every OVS Agreement shall specify the construction schedule that will apply to any required construction, upgrade, or rebuild of the OVS. The schedule shall provide for prompt completion of the project, considering the amount and type of construction required. D. Each OVS Operator shall perform at its expense such tests as may be necessary to show whether or not the OVS Franchisee is in compliance with its obligations under this Chapter or a Franchise or an OVS Agreement. E. Every OVS Franchisee must satisfy customer service consumer protection requirements established from time to time under state or local law and applicable to OVS. F. If an OVS Franchisee's FCC certification is revoked or otherwise terminates as a result of the passage of time or as a matter of law, City may revoke the OVS Franchise after a hearing. The OVS franchise may also be revoked if federal regulations or statutory provisions governing OVS are declared invalid or unenforceable, or are repealed. G. City may regulate an OVS Franchisee's rates and charges except as prohibited by law, and may do so by amendment to this Chapter, separate ordinance, by amendment to an OVS Agreement, or in any other lawful manner. 5.20.750 Fee in Lieu of Franchise Fee A. In lieu of the Franchise fee required by Part 3, an OVS Franchisee shall pay to City a fee of five percent (5%) of Gross Revenues. 55 B. 1. A Person leasing capacity from an OVS Operator, other than a Person whose revenues are included in the payment made under Section 5.20.750(A) shall pay City a fee in lieu of the Franchise fee required by Part 3 of five percent (5%) of the gross revenues of such Person. For purposes of this section 5.20.750(8)(1), the term gross revenues means all revenues, whether cash, in-kind or in any other form, of the Person leasing capacity, or its affiliates, derived from use of the OVS to provide cable service in the City. 2. Notwithstanding the foregoing, where a Person, other than an Affiliate, pays an OVS Franchisee to use its Franchisee's OVS (the "use payments"); and that Person recovers those use payments through charges to its Subscribers that are included in that Person's Gross revenues; and the OVS Franchisee pays a Franchise fee on those use charges; then that Person may deduct from its Gross revenues the use payments it makes. Part 5 MISCELLANEOUS 5.20.800 Captions The captions to sections throughout this Chapter are intended solely to facilitate reading and reference to the sections and provisions of this Chapter. Such captions shall not affect the meaning or interpretation of this Chapter. 5.20.810 Calculation of Time 56 Unless otherwise indicated, when the performance or doing of any act, duty, matter, or payment is required under this Chapter or any Franchise, and a period of time or duration for the fulfillment of doing thereof is prescribed and is fixed herein, the time shall be computed so as to exclude the first and include the last day of the prescribed or fixed period of time. 5.20.820 Severability If any section, subsection, sentence, paragraph, term, condition, or provision of this Chapter shall, to any extent, be illegal, held to be invalid or unconstitutional by a valid order of any court or regulatory agency or competent jurisdiction, the remainder hereof shall be valid in all other respects and continue to be effective. In the event of a subsequent change in applicable law so that the section, subsection, sentence, paragraph, term, condition or provision which had been held invalid is no longer invalid, said provision shall thereupon return to full force and effect without further action by City and shall thereafter be binding on the Franchisee and City. 5.20.830 Connections to Cable System; Use of Antennae. A. To the extent consistent with federal law, Subscribers shall have the right to attach VCR's, receivers, and other terminal equipment to a Franchisee's Cable Communications System. Subscribers also shall have the right to use their own remote control devices and converters, and other similar equipment. B. A Franchisee shall not, as a condition of providing service, require a Subscriber or potential Subscriber to remove any existing antenna or satellite dish, or disconnect an antenna or satellite dish except at the express direction of the subscriber or potential Subscriber, or prohibit installation of a new antenna or connection to any other multi-channel video provider's system. 57 5.20.840 Discrimination Prohibited A. A Cable Communications System Operator shall not discriminate among Persons or City or take any retaliatory action against a Person or City because ot that Person's exercise of any right it may have under applicable law relating to non- discrimination nor may Operator require a Person or City to waive such rights as a condition of taking service. B. A Cable Communications System Operator shall not refuse to employ, discharge from employment, or discriminate against any Person in compensation or in terms, conditions, or privileges ot employment because of race, color, creed, national origin, sex, age, disability, religion, ethnic background, marital status or sexual orientation. A Cable Communications System Operator shall comply with all applicable law governing employment non-discrimination and equal employment opportunities. 5.20.850 Transitional Provisions A. Pending applications shall be subject to this Chapter. A Person with a pending application shall have thirty (30) days from the effective date of this Chapter to submit additional information to comply with the requirements of this Chapter governing applications. Part 6 CUSTOMER SERVICE STANDARDS 5.20.900 Office Availability A. Each Franchisee shall maintain at least one office at a location convenient to subscribers who reside in the City. Such office shall be open tor walk-in traffic at 58 least eight (8) hours per day (except legal holidays) Monday through Friday, with some evening hours, and at least four (4) hours on Saturday to allow Subscribers to pay bills, drop off equipment and to pick up equipment. B. Each Franchisee shall perform service calls, installations, and disconnects at least eight (8) hours per day Monday through Saturday, except legal holidays, provided that a Franchisee shall respond to outages twenty-four (24) hours a day, seven (7) days a week. 5.20.910 Telephones A. Each Franchisee will establish a publicly listed local toll-free telephone number. Customer service representatives must answer the phone at least ten (10) hours per day, Monday through Saturday, except legal holidays, for the purpose of receiving requests for service, inquiries, and complaints from Subscribers. After such business hours, the phone shall be answered so that customers can register complaints and report service problems on a twenty-four (24) hour per day, seven (7) day per week basis, and so that the Franchisee can respond to service outages as required herein. B. Telephone answering time shall not exceed thirty (30) second or four (4) rings, and the time to transfer the call to a customer service representative (including hold time) will not exceed an additional thirty (30) seconds. C. Under normal operating conditions, customers shall receive a busy signal less than three percent (3%) of the time. D. Under normal operating conditions, the standards set out in Section Band C above will be met ninety percent (90%) of the time, measured quarterly. The phrase "of the time" refers to the percentage of calls to the Franchisee during normal operating conditions, so that if 1000 calls are received by the Franchisee, 59 900 If those calls must be answered within the time limits specified in Section B; and fewer than 30 should receive a busy signal as specified in Section C. 5.20.920 Scheduling Work A. All appointments for service, installation, or disconnection will be specified by date. Each Franchisee shall specify a specific time at which the work will be done, or offer a choice of time blocks, which will not exceed four (4) hours in length. A Franchisee may also, upon request, schedule service installation calls outside normal business hours, for the express convenience of the customer. B. If at any time an installer or technician anticipates that he or she will be late for an appointment and believes a scheduled appointment time will be missed, an attempt to contact the customer will be made and the appointment rescheduled at a time convenient to the customer, if rescheduling is necessary. It is the Operator's burden to prove it met the appointment. C. The Franchisee shall offer and fully describe to Subscribers who have experienced a missed appointment (where the missed appointment was not the Subscriber's fault) that the Subscriber may choose between the following options: 1. Installation free of charge, if the appointment was for an installation for which a fee was to be charged; 2. For service calls and all other missed appointments, a credit of $20.00 on the subscriber's bill; and 3. An opportunity to elect remedies under California Civil Code 1722 as may be amended, if applicable. 60 No penalty under this Chapter or liquidated damages may be assessed by the City for the failure of the Franchisee to meet any appointment if the affected Subscriber has been given the choice of one of the remedies listed in this Section. These remedies do not apply if the missed appointment resulted from a force majeure event. 5.20.930 Service Standards A. Under normal operating conditions, requests for service, repair, and maintenance must be acknowledged by a trained customer service representative within twenty-four (24) hours, or before the end of the next business day, whichever is earlier. B. A Franchisee shall respond to all other inquiries (including billing inquiries) within five (5) business days of the inquiry or complaint. C. Under normal operating conditions, repairs and maintenance for outages or service interruptions must be completed within twenty-four (24) hours after the outage or interruption becomes known to Franchisee where the Franchisee has adequate access to facilities to which it must have access in order to remedy the problem. D. Under normal operating conditions, work to correct all other service problems must be begun by the next business day after notification of the service problem, and must be completed within five (5) business days from the date of the iniitla request. E. When normal operating conditions do not exist, a Franchisee shall complete the work in the shortest time possible. 61 F. A Franchisee shall not cancel a service or installation appointment with a customer after the close of business on the business day preceding the scheduled appointment. G. Except as a Franchise otherwise provides, service must be extended upon request to any residential dwelling unit or to any government building in a Franchisee's Franchise area (i) within seven (7) days of the request, where service can be provided by activating or installing a drop or within twenty-one (21) days of a request by a commercial establishment(ii) within ninety (90) days of the request where an extension of one-half mile or less is required; or (iii) within six (6) months where an extension of one-half mile or more is required. H. Requests for additional outlets, service upgrades or other connections (e.g., DMX, VCR, AfB switch) separate from the initial installation will be performed within seven (7) business days after an order has been placed. I. Under normal operating conditions, the service standards set out in Sections 5.20.930 A-H will be met at least ninety-five percent (95%) of the time, measured on a quarterly basis. The phrase "of the time" refers to the number of service requests received by the Franchisee, so that if Franchisee receives 100 service requests, at least 95 of those requests must be scheduled and/or completed within the time limits specified in Sections 5.20.930 A-H. J. The failure of the Franchisee to hire sufficient staff or to properly train its staff will not justify a Franchisee's failure to comply with this provision. 5.20.940 Disabled Services With regard to Subscribers with disabilities, upon Subscriber request, each Franchisee shall arrange for pickup and/or replacement of converters or other Franchisee equipment 62 at the Subscriber's address or by a satisfactory equivalent (such as the provision of a postage-prepaid mailer). 5.20.950 Notice to Subscribers Regarding Service A Franchisee shall provide each Subscriber at the time service is installed, and annually thereafter, clear and accurate written information: A. On placing a service call, filing a complaint, or requesting an adjustment (including when a Subscriber is entitled to refunds for outages and how to obtain them); B. Showing the telephone number of City office responsible for administering the Cable Television Franchise; C. Providing a schedule of rates and charges (which listing must identify any discounts offered), Channel positions, services provided, a copy of the service contract, delinquent Subscriber disconnect and reconnect procedures; notifying Subscribers of the availability of parental control devices, and the conditions under which they will be provided and the cost (if any) charged; D. Describing conditions that must be met to qualify for discounts; E. Describing any other of the Franchisee's policies in connection with its Subscribers; and F. Describing any discounts, services, or specialized equipment available to Subscribers with disabilities; explaining how to obtain them; and explaining how to use any accessibility features. 63 5.20.960 Notices to City Not less than five (5) days prior to providing its Subscribers with notices pursuant to section 6 above, Franchisee shall provide City with copies of all such notices. 5.20.970 Changes in Noticed Information Franchisee shall provide City Manager (or designee) advance notice by facsimile or electronic mail, and all Subscribers at least thirty (30) days, written notice of any material changes in the information required to be provided under this article, except that, if federal law establishes a shorter notice period and preempts this requirement, the federal requirement will apply. 5.20.980 Truth in Advertising Each Franchisee shall take appropriate steps to ensure that all written Franchisee promotional materials, announcements, and advertising of residential Cable Service to Subscribers and the general public, where price information is listed in any manner, clearly and accurately discloses price terms. In the case of telephone orders, a Franchisee will take appropriate steps to ensure that price terms are clearly and accurately disclosed to potential customers in advance of taking the order. A. Each Franchisee shall maintain a file open for public inspection containing all notices provided to Subscribers under these customer service standards, as well as all promotional offers made to Subscribers. The notices and offers will be kept in the file for at least one (1) year from the date of such notice or promotional offer. 64 5.20.990 Interruptions of Service A Franchisee shall provide forty-eight (48) hours prior notice to Subscribers and City before interrupting service for planned maintenance or construction; provided, however, that planned maintenance that does not require more than two (2) hours interruption of service and that occurs between the hours of 1 :00 a.m. and 5:00 a.m. shall not require such notice to Subscribers, and notice to City must be given no less than twenty-four (24) hours before the anticipated service interruption. 5.20.1000 Prorated Billing A Franchisee's first billing statement after a new installation or service change shall be prorated as appropriate and shall reflect any security deposit. 5.20.1010 Billing Statement A. A Franchisee's billing statement must be clear, concise, and understandable; must itemize each category of service and equipment provided to the Subscriber; and must state clearly the charges therefor. B. A Franchisee's billing statement must show a specific payment due date not earlier than the later of: 1. Fifteen (15) days after the date the statement is mailed; or 2. The tenth (10th) day of the service period for which the bill is rendered. C. A late fee or administrative fee (collectively referred to below as a "late fee") may not be imposed for payments earlier than twenty-seven (27) days after the due date specified in the bill. 65 D. A late fee may not be imposed unless the Subscriber is provided written notice at least ten (10) days prior to the date the fee is imposed that a fee will be imposed, the date the fee will be imposed and the amount of the fee that will be imposed if the delinquency is not paid. A late fee may not be imposed unless the outstanding balance exceeds ten dollars ($10.00). E. Subscribers shall not be charged a late fee or otherwise penalized for any failure by a Franchisee, including failure to timely or correctly bill the Subscriber, or failure to properly credit the Subscriber for a payment timely made. Payments shall be considered timely if postmarked on the due date. F. A Franchisees bill must permit a Subscriber to remit payment by mail or in person at the Franchisees local office. 5.20.1020 Credit for Service Improvement A. A Subscriber's account shall be credited a prorated share of the monthly charge for the service upon Subscriber request if a Subscriber is without service or if service is substantially impaired for any reason for a period exceeding four (4) hours during any twenty-four (24) hour period. B. A Franchisee need not credit Subscriber where it establishes that a Subscriber will obtain a refund for a loss of service or impairment caused by the Subscriber or by Subscriber-owned equipment (not including, for purposes of this Section, in-home wiring installed by the Franchisee). 5.20.1030 Billing Complaints Franchisee shall respond to all written billing complaints from Subscribers within thirty (30) days. 66 5.20.1040 Billing Refunds Refunds to Subscribers will be issued no later than: A. The earlier of the Subscribers next billing cycle following resolution of the refund request, or thirty (30) days; or B. The date of return of all equipment to Franchisee, if Cable Service has been terminated. 5.20.1050 Credits for Cable Service Credits for Cable Service shall be issued no later than the Subscriber's next billing cycle after the determination that the credit is warranted. 5.20.1060 Disconnection and Downgrades A. A Subscriber may terminate service at any time. B. A Franchisee shall promptly disconnect from the Franchisee's Cable System or downgrade any Subscriber who so requests. If a Subscriber requests a disconnect effective date of seven (7) or more days after Subscriber's request, Franchisee shall not charge for service beyond the Subscriber requested effective disconnect date. If a Subscriber requests a disconnect effective date of less than seven (7) days after Subscriber request, Franchisee shall charge Subscriber for no more than seven (7) days of service from the requested disconnect effective date. There will be no charge for disconnection, except for the collection fee authorized by state law, and any downgrade charges will conform to Applicable Law. 67 5.20.1070 Security Deposit Any security deposit and/or other funds, including interest, due a Subscriber that disconnects or downgrades service will be returned to the Subscriber within thirty (30) days or in the next billing cycle, whichever is later, from the date disconnection or downgrade was requested except in cases where the Subscriber does not permit the Franchisee to recover its equipment, in which case the amounts owed will be paid to subscribers within thirty (30) days of the date the equipment was recovered, or in the next billing cycle, whichever is later. 5.20.1080 Disconnection Due to Nonpayment A. A Franchisee may not disconnect a Subscriber's Cable Service for non-payment unless: 1. The Subscriber is delinquent in payment for Cable Service; 2. A separate, written notice of impending disconnection, postage prepaid, has been sent to the Subscriber at least twenty (20) days before the date on which service may be disconnected, at the premises where the Subscriber requests billing, which notice must identify the names and address of the Subscriber whose account is delinquent, state the date by which disconnection may occur if payment is not made, and the amount the Subscriber must pay to avoid disconnection, and a telephone number of a representative of the Franchisee who can provide additional information concerning and handle complaints or initiate an investigation concerning the services and charges in question; 3. The Subscriber fails to pay the amounts owed to avoid disconnection by the date of disconnection; and 68 4. No pending inquiry exists regarding the bill to which Franchisee has not responded in writing. B. If the Subscriber pays all amounts due, including late charges, before the date scheduled for disconnection, the Franchisee shall not disconnect service. 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. C. After disconnection (except as noted below), upon payment by the Subscriber in full of all proper fees or charges, including the payment of the reconnection charge, if any, the Franchisee shall promptly reinstate service. 5.20.1090 Immediate Disconnection A Franchisee may immediately disconnect a Subscriber if: A. The Subscriber is damaging, destroying, or unlawfully tampering with or has damaged or destroyed or unlawfully tampered with the Franchisee's Cable System; B. The Subscriber is not authorized to receive a service and is receiving it and/or is facilitating, aiding or abetting the unauthorized receipt of service by others; or C. Subscriber-installed or attached equipment is resulting in signal leakage that is in violation of FCC rules. 5.20.1100 Restoration of Service After disconnection, the Franchisee shall restore service after the Subscriber provides adequate assurance that it has ceased the practices that led to disconnection, and paid all proper fees and charges, including any reconnect fees and all amounts owed the 69 Franchisee for damage to its Cable System or equipment. Provided that, no reconnection fee may be imposed on a Subscriber disconnected pursuant to this article if the leakage was the result of the Franchisee's acts or omissions; or in any case unless the Franchisee notifies the Subscriber of the leakage at least three (3) business days in advance of disconnection, and the Subscriber has failed to correct the leakage within that time. 5.20.1110 Franchisee's Property Except as Applicable Law may otherwise provide, a Franchisee may remove its property from a Subscriber's premises within thirty (30) days of the termination of service. If a Franchisee fails to remove its property in that period, the property will be deemed abandoned unless the Franchisee has been denied access to the Subscriber's premises, or the Franchisee has a continuing right to occupy the premises under Applicable Law. 5.20.1120 Deposits A Franchisee may require a reasonable, non-discriminatory deposit on equipment provided to Subscribers. Deposits will be placed in an interest-bearing account, and the Franchisee will return the deposit, plus interest earned to the date the deposit is returned to the Subscriber, less any amount the Franchisee can demonstrate should be deducted for damage to such equipment. 5.20.1130 Parental Control Option Without limiting a Franchisee's obligations under Federal law, after March 1, 1999, a Franchisee must provide parental control devices at no charge to all Subscribers who request them that enable the Subscriber to block the video and audio portion of any Channel or Channels of programming. 70 5.20.1140 Relief from Obligations Notwithstanding the requirements of this article, the City Manager is authorized to relieve a Franchisee of its obligations under this article if: A. Franchisee shows that there is an alternative standard that is substantially similar to that established by this article. B. The City Manager determines that there is sufficient competition among cable operators that renders application of these standards unnecessary; or C. In light of the number of customers served by a cable Operator, the requirements of this article are, in the City Manager's sole discretion, unduly burdensome and there is an alternative way to serve the same interest. 71 PASSED FOR PUBLICATION OF TITLE this 5th day of August ~ 20 03 , by the following vote: AYES: Councilmembers: Watson, Kennedy, Dean, Burr, Furtado NOS: Councilmembers: None ABSENT: Councilmembers: None ~=~~~~ ATTEST: Ci~ c,t2-~h,-- Anne Bybee 72