Ordinance No. 1071302
ORDINANCE NO. 1071
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF CYPRESS EXPANDING CHAPTER 6 OF THE CODE
OF THE CITY OF CYPRESS BY ADDING SECTIONS 6 -32
THROUGH 6 -50 TO BE ENTITLED "2005 CABLE SYSTEM
REGULATORY ORDINANCE."
WHEREAS, a cable system regulatory ordinance provides for and specifies the
means to attain the best possible cable service to the public by establishing regulatory
powers vested in the City; and
WHEREAS, because the development of Cable Systems has the potential of
having great benefit and impact upon the residents of the City; and
WHEREAS, the City Council recognizes that due to the complex and rapidly
changing technology associated with Cable Systems, the establishment and updates to
regulatory powers provides assurances for the City to fairly and responsibly protect the
public's convenience, safety and general welfare
WHEREAS, the City Council has determined that existing Ordinance 726,
adopted in 1984, is largely outdated and insufficiently addresses regulations related to
modern cable systems operating in today's era of technology and therefore, a parallel
ordinance is required to address cable system franchises granted or renewed
subsequent to the adoption of the new ordinance; and
NOW, THEREFORE, the City Council of the City of Cypress does ordain as
follows:
SECTION 6 -32.
That existing Ordinance No. 726, Sections 6 -1 through 6 -31, shall apply to any
Cable System Franchise in force prior to the effective date of this Ordinance.
SECTION 6 -33.
That this Ordinance No. 1071, Sections 6 -32 through 6 -50, is hereby enacted to
apply to any Cable System Franchise granted or renewed subsequent to the effective
date of this Ordinance.
SECTION 6 -34. INTENT
6 -34.1. Authority
The City of Cypress, pursuant to Applicable Law, is authorized to grant one or
more non - exclusive franchises to construct, operate, maintain and reconstruct Cable
Systems within the City limits.
6 -34.2 Findings
The City Council finds that the development of Cable Systems has the potential
of having great benefit and impact upon the residents of the City. Because of the
complex and rapidly changing technology associated with Cable Systems, the City
Council further finds that the public convenience, safety and general welfare can best
be served by establishing regulatory powers which should be vested in the City or such
Persons as the City may designate. It is the intent of this Ordinance and subsequent
amendments to provide for and specify the means to attain the best possible Cable
Service to the public and any Franchises issued pursuant to this Ordinance shall be
deemed to include this as an integral finding thereof. It is the further intent of this
Ordinance to establish regulatory provisions that permit the City to regulate Cable
System Franchises to the extent permitted by Applicable Law, including but not limited
to the Cable Communications Policy Act of 1984, the Cable Television Consumer
Protection and Competition Act of 1992, the Telecommunications Act of 1996 as
amended or hereafter amended, applicable Federal Communications Commission rules
and regulations and applicable California law.
SECTION 6 -35. SHORT TITLE
This Ordinance shall constitute the "2005 Cable System Regulatory Ordinance"
of the City of Cypress and may be referred to as such.
SECTION 6 -36. DEFINITIONS
For the purposes of this Ordinance, the following terms, phrases, words and their
derivations shall have the meaning given herein. Words used in the present tense
include the future, words in the plural number include the singular number, and words in
the singular number include the plural number. Words not defined shall be given their
common and ordinary meaning.
6 -36.1. "Applicable Law" means all lawfully enacted Federal, State and Local
laws, ordinances, codes, rules, regulations, orders and any amendments or successors
thereto.
6 -36.2. "Affiliate" or "Affiliated Person" means each Person who falls into one or
more of the following categories: (1) each person having, directly or indirectly a
controlling interest in Grantee; (2) each Person in which Grantee has, directly or
indirectly a controlling interest; (3) each officer, director, general partner, limited partner
holding an interest of thirty -five percent (35 %) or more, joint venturer, or joint venture
partner in Grantee's Cable System in the City; and (4) each Person, directly or
indirectly, controlling, controlled by, or under common control with Grantee; provided
that "Affiliated Person" excludes the Grantor, any limited partner holding an interest of
less than thirty -five percent (35 %) in the Grantee, or any creditor of Grantee, solely by
virtue of its status of creditor, and which is not otherwise an Affiliated Person by reason
of owning a controlling interest in, being owned by, or being under common ownership,
common management, or common control with Grantee. "Controlling interest" shall
have the same meaning as "control," as defined in Section 6 -37.7 herein.
6 -36.3. "Basic Cable Service" means any service tier which includes the
retransmission of local television broadcast signals.
6 -36.4. "Cable Operator" means any Person or group of Persons who:
(a) provides Cable Service over a Cable System and directly or through one
(1) or more affiliates owns a significant interest in such Cable System; or
(b) otherwise controls or is responsible for, through any arrangement, the
management and operation of such Cable System.
6 -36.5. "Cable Service" means:
(a) The one -way transmission to Subscribers of
(1) video programming; or
(2) 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.
6 -36.6. "Cable System" or "System," means a facility, consisting of a set of
closed transmission paths and associated signal generation, reception, and control
equipment that is designed to provide Cable Service which includes video programming
and which is provided to multiple Subscribers within a community, but such term does
not include:
2
(a) a facility that serves only to retransmit television signals of one (1) or more
television broadcast stations;
(b) a facility that serves Subscribers without using any Public Rights -of -Way;
(c) a facility of a common carrier which is subject, in whole or in part, to the
provisions of Title II of the Communications Act of 1934, as amended, except that such
facility shall be considered a Cable System (other than for the purposes of 47 U.S.C.
541) 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) an open video system that complies with Title VI of the Communications
Act of 1934 (47 U.S.C. 573) as amended; or
(e) any facilities of any electric utility used solely for operating its electric utility
system.
6 -36.7. "Channel" or "Cable Channel" means a portion of the electromagnetic
frequency spectrum which is used in a Cable System which is capable of delivering a
standard video signal as defined by the Federal Communications Commission.
6 -36.8. "City Manager" means the City Manager of the City of Cypress, or his or
her designee.
6 -36.9. "Council" or "City Council" means the City Council of the City of Cypress.
6- 36.10. "Franchise" means an initial authorization, or renewal thereof, issued
by the Council, whether such authorization is designated as a franchise, permit, license,
resolution, contract, certificate, agreement, or otherwise, which authorizes the
construction or operation of a Cable System. Any such authorization, in whatever form
granted, shall not supersede the requirement to obtain any license or permit required
for the privilege of transacting business within the City as required by the other
ordinances and laws of the City.
6- 36.11. "Franchise Agreement" means a franchise grant ordinance or a
contractual agreement, containing the specific provisions of the Franchise granted,
including references, specifications, requirements and other related matters.
6- 36.12. "Franchise Fee" means any fee or assessment of any kind imposed by
the City on a Grantee or Affiliated Person as compensation for the Grantee's use of the
Public Rights -of -Way. The term "Franchise Fee" does not include:
(a) any tax, fee or assessment of general applicability (including any such tax,
fee, or assessment imposed on both utilities and Cable Operators or their services, but
not including a tax, fee or assessment which is unduly discriminatory against Cable
Operators or Cable Subscribers);
(b) capital costs which are required by the Franchise to be incurred by
Grantee for Public, Educational, or Governmental Access Facilities;
(c) requirements or charges incidental to the awarding or enforcing of the
Franchise, including payments for bonds, security funds, letters of credit, insurance,
indemnification, penalties, or liquidated damages; or
(d) any fee imposed under Title 17, United States Code.
6- 36.13. "Grantee" means any "Person" receiving a Franchise pursuant to this
Ordinance and under the granting Franchise ordinance or agreement, and its lawful
successor, transferee or assignee.
6- 36.14. "Grantor" or "City" means the City of Cypress as represented by the
Council or such representative as the Council may designate to act on cable matters on
its behalf.
3
305
6- 36.15. "Gross Annual Revenue" or "Gross Annual Receipts" or "Gross
Receipts" means all revenue which is received, directly or indirectly, by Grantee and by
each Affiliated Person from or in connection with the distribution of any Cable Service,
and any other Service which may, under now or then applicable federal law, shall be
included in the revenue base definition for the purpose of calculating and collecting the
maximum allowable franchise fee for operation of the System whether or not authorized
by a Franchise. It is intended that all revenue collected by the Grantee or any Affiliated
Person from the provision of Cable Service over the System, whether or not authorized
by the Franchise, shall be included in this definition. Gross Annual Revenue also
specifically includes any revenue received, as reasonably determined from time -to -time
by the Grantor, through any means which is intended to have the effect of avoiding the
payment of compensation that would otherwise be paid to the Grantor for the Franchise
granted. Gross Annual Revenue does not include: (i) the revenue of any Person to the
extent that said revenue is also included in the Gross Annual Revenue of Grantee; (ii)
taxes imposed by law on Subscribers which Grantee is obligated to collect; (iii) amounts
which must be excluded pursuant to Applicable Law.
If Grantee, or any Affiliated Person, offers to individual Subscribers Cable
Services subject to the Franchise Fee that are bundled or combined with non -cable
services that are not subject to the Franchise Fee, Grantee shall not structure the
pricing of any bundled or combined services so as to cause a reduction in the Gross
Annual Revenue against which the Grantor may lawfully impose the franchise fee or
any otherwise lawful tax. Additionally, the revenue from those bundled or combined
services must be allocated on the basis of proportionality so that the percentage that
the price for all bundled services is discounted from the established retail rates for the
individual services, as those rates are advertised by Grantee in its marketing materials
or published rate cards, will be proportionately prorated across all services in the
bundled package.
6- 36.16. "Installation" means the connection of the System to Subscribers'
terminals, and the provision of service.
6- 36.17. "Normal Operating Conditions" means those service conditions which
are within the control of Grantee. Those conditions which are not within the control of
the Grantee include, but are not limited to, natural disasters, civil disturbances, power
outages, telephone network outages, and severe or unusual weather conditions. Those
conditions which are ordinarily within the control of the cable operator include, but are
not limited to, special promotions, pay - per -view events, rate increases, regular peak or
seasonal demand periods, and maintenance or upgrade of the Cable System.
6- 36.18. "Person" means an individual, partnership, association, joint stock
company, trust, corporation, proprietorship or governmental entity.
6- 36.19. "Prime" or "Prime Rate" means the base rate on corporate loans
posted by at least seventy five percent (75 %) of the nation's thirty (30) largest banks,
which base rate is published in the Money Rates column of the Wall Street Journal on
the date nearest to the applicable due date of a payment obligation of the Grantee that
is subject to an interest charge determined, in whole or in part, by reference to the
prime rate.
6- 36.20. "Public, Educational or Government Access Facilities" or "PEG Access
Facilities" means the total of the following:
(a) Channel capacity designated for public, educational, or government use;
and
(b) facilities and equipment for the use of such Channel capacity.
6- 36.21. "Section" means any section, subsection or provision of this Ordinance.
6- 36.22. "Service Area" or "Franchise Area" means the entire geographic area
within the municipal boundaries of the City as it is now constituted or may in the future
be constituted, unless otherwise specified in the Franchise.
4
306
6- 36.23. "Service Tier" means a category of Cable Service or other services
provided by a Cable Operator and for which a separate rate is charged.
6- 36.24. "State" means the State of California.
6- 36.25. "Street" or "Public Way" or "Public Rights -of -Way" means each of the
following which have been dedicated to the public or are hereafter dedicated to the
public and maintained under public authority or by others and located within the Service
Area: streets, roadways, highways, avenues, lanes, alleys, sidewalks, easements,
rights -of -way and similar public property.
6- 36.26. "Subscriber" or "Customer" or "Consumer" means any Person who or
which elects to subscribe to, for any purpose, Cable Service provided by the Grantee by
means of or in connection with the Cable System, and who pays the charges therefor.
SECTION 6 -37. FRANCHISE TERMS AND CONDITIONS
6 -37.1. Franchise Purposes
A Franchise granted by the City under the provisions of this Ordinance shall
encompass the following purposes:
(a) To permit the Grantee to engage in the business of providing Cable
Service to Subscribers within the designated Service Area.
(b) To identify and specify those conditions, definitions, itemizations,
specifications and other particulars of the Franchise Agreement between Grantor and
Grantee.
(c) To identify and authorize the Grantee to erect, install, construct, repair,
rebuild, reconstruct, replace, maintain, and retain, cable lines, related electronic
equipment, supporting structures, appurtenances, and other property in connection with
the operation of the Cable System in, on, over, under, upon, along and across streets
or other public places within the designated Service Area.
(d) To permit the Grantee to maintain and operate said Franchise properties
for the origination, reception, transmission, amplification, and distribution of television
and radio signals and for the delivery of Cable Services.
(e) To set forth the obligations of the Grantee under the Franchise.
6 -37.2. Franchise Required
After the effective date of this Ordinance, it shall be unlawful for any Person to
construct, install or operate a Cable System in the City within any Public Way without a
properly granted Franchise awarded pursuant to the provisions of this Ordinance.
(a) Any person who violates this Section shall be deemed guilty of a
misdemeanor and, upon conviction thereof, shall be punishable by a fine of not more
than Five Thousand Dollars ($5,000), or by imprisonment in the County Jail for a term
not to exceed twelve (12) months, or both such fine and imprisonment.
(b) In addition to 6 -37.2 (a) herein, failure to obtain a franchise as required may
result in any or all of the following: 1) forfeiture of the Person's facilities located in the
public right -of -way; 2) the removal at the Person's expense any facilities from the Public
Rights -of -Way; or 3) damage awards.
6 -37.3. Term of the Franchise
(a) A Franchise granted hereunder shall be for a term established in the
Franchise Agreement, commencing on the Grantor's adoption of an ordinance or
resolution authorizing the Franchise.
307
(b) A Franchise granted hereunder may be renewed upon application by the
Grantee pursuant to the provisions of Applicable Law.
6 -37.4. Franchise Territory
Any Franchise shall be valid within all the municipal limits of the City, and within
any area added to the City during the term of the Franchise, unless otherwise specified
in the Franchise Agreement.
6 -37.5. Federal or State Jurisdiction
This Ordinance shall be construed in a manner consistent with all Applicable
Law, and shall apply to all Franchises granted or renewed after the effective date of this
Ordinance to the extent permitted by Applicable Law.
6 -37.6. Applicable Law; Police Power
(a) Except as specified in any Franchise, the Grantee shall be subject to all
Applicable Law.
(b) The City retains every power and right that the City has under Applicable
Law.
(c) Nothing in any Franchise shall be deemed to waive any of the City's
governmental rights or police powers.
6 -37.7. Franchise Non - Transferable
(a) Grantee shall not sell, transfer, assign or dispose of, in whole or in part,
either by forced or involuntary sale, or by ordinary sale, contract, consolidation or
otherwise (collectively "Transfer "), the Franchise any of the rights or privileges therein
granted, or the Cable System, without the prior written consent of the Council. The
granting of consent for a Transfer in one instance will not render unnecessary approval
of any subsequent transfer.
(b) The requirements of Subsection (a) shall apply to any change in control of
Grantee. The word "control" as used herein includes ownership interest of thirty -five
percent (35 %) or more, and actual working control in whatever manner exercised. In
the event that Grantee is a corporation, prior consent of the Council shall be required
where ownership or control of more than thirty -five percent (35 %) of the ownership or
voting stock of the Grantee, or Grantee's immediate, intermediate or ultimate parent is
acquired by a Person or group of Persons acting in concert, none of whom already own
or control the voting stock of the Grantee as of the effective date of the Franchise,
singularly or collectively.
(c) Grantee shall notify Grantor in writing of any foreclosure or any other
judicial sale of all or a substantial part of the Franchise property of the Grantee or upon
the termination of any lease or interest covering all or a substantial part of said
Franchise property. Such notification shall be considered by Grantor as notice that a
change in control or ownership of the Franchise has taken place and the provisions
under this Section governing the consent of Grantor to such change in control or
ownership shall apply.
(d) Grantee shall promptly notify Grantor of any proposed Transfer. If any
Transfer should take place without prior notice to Grantor, Grantee shall promptly notify
Grantor that such a Transfer has occurred. At least one hundred twenty (120) calendar
days before the contemplated effective date of a Transfer, Grantee will submit to
Grantor application (hereinafter "Application ") for approving the Transfer. Such
Application will provide the required complete information on the proposed transaction.
(e) The following information must be included in the Application, provided
that Grantee is not required to duplicate information that it submits to Grantor to comply
6
308
with its obligations under Applicable Law. No Application shall be considered complete
until all required information is received by the Grantor.
(1) All information and forms required under Applicable Law, including
Federal Communication Commission Form 394 or equivalent;
(2) All information required in this Section for Franchise grants,
renewals, modifications or Transfers;
(3) A detailed statement of the corporate or other business entity
organization and management structure of the proposed transferee, together with an
explanation of how decisions regarding the Cable System will be made if the proposed
transaction is approved;
(4) Any contracts or other documents that relate to the proposed
transaction, including unredacted copies of all documents, schedules, exhibits or the
like referred to therein;
(5) Any shareholder reports or filings with the Securities and Exchange
Commission that discuss the transaction;
(6) Complete information regarding any potential impact of the
Transfer on Subscriber rates and services;
(7) A summary of the proposed transferee's plans for at least the next
five (5) years regarding line extension, plant and equipment upgrades, channel
capacity, maintenance, expansion or elimination of services, customer service and any
other changes affecting or enhancing the performance of the Cable System; and
(8) Legal, technical and financial qualifications of the prospective
transferee.
(f) Grantor may require Grantee, or any prospective transferee, to provide
additional information as it may deem necessary to determine whether the Transfer is in
the public interest and should be approved, denied or conditioned. Grantee and any
prospective transferees shall assist Grantor in any such inquiry and provide information
requested. Failure to do so may result in the request for Transfer being denied.
(g) In determining whether to grant, deny or grant subject to conditions an
application for a Transfer of a Franchise, Grantor's consideration may include, but is not
necessarily limited to:
(1) The legal, financial and technical qualifications of the transferee to
operate the Cable System;
(2) Any potential impact of the Transfer on Subscriber rates or
services;
(3) Whether the incumbent Grantee is in compliance with its Franchise
and Applicable Law and, if not, the proposed transferee's written commitment to cure
such non - compliance;
(4) Whether the transferee owns or controls any other Cable System in
the Service Area and whether operation by the transferee may eliminate or reduce
competition in the delivery of the Cable Service in the Service Area; and
(5) Whether operation by the transferee or approval of the Transfer
would adversely affect Subscribers, the public or Grantor's interest in the Cable System
and /or Franchise.
(h) Any Transfer without Grantor's prior written approval constitutes a material
breach of a Franchise and will make a Franchise subject to revocation and to any other
remedies available under the Franchise or Applicable Law, except where a request for
approval or sale is subject to a deadline for action under 47 U.S.C. 537 and Grantor
fails to act by the time required under 47 U.S.C. 537.
(i) Grantor shall not approve a Transfer request unless the transferee agrees
in writing that it will abide by and accept all terms of the Cable Franchise Grant and
Applicable Law and that the transferee will assume the obligations, liabilities and
responsibility for all acts and omissions of the previous Grantee under the Franchise
grant and Applicable Law for all purposes, including renewal, unless Grantor, in its sole
discretion, expressly waives this requirement in whole or in part.
(j) Any submission of an application for transfer of a Franchise shall be
accompanied by a nonrefundable Franchise processing fee in the amount of Five
Thousand Dollars ($5,000) per proposed Transfer. Upon transfer, Grantee shall
reimburse Grantor for Grantor's processing and review expenses in connection with the
transfer of the Franchise including without limitation, costs of administrative review,
financial, legal and technical evaluation of the proposed transferee, consultants
(including technical and legal experts and all costs incurred by such experts), notice
and publication costs and document preparation expenses. Any such reimbursement
shall not be charged against any Franchise Fee due to Grantor during the term of the
Franchise.
6 -37.8. Geographical Coverage
(a) Grantee shall design, construct and maintain the Cable System to pass
every residential dwelling unit in the Service Area, subject to any Service Area line
extension requirements of the Franchise Agreement.
(b) After service has been established by activating trunk and /or distribution
cables for any Service Area, Grantee shall provide service to any requesting Subscriber
within that Service Area within thirty (30) days from the date of request, provided that
the Grantee is able to secure all rights -of -way, permits and landlord agreements
necessary to extend service to such Subscriber within such thirty (30) day period on
reasonable terms and conditions.
6 -37.9. Nonexclusive Franchise
Any Franchise granted pursuant to this Ordinance shall be nonexclusive. The
Grantor specifically reserves the right to grant, at any time, such additional Franchises
for a Cable System, as it deems appropriate, subject to Applicable Law.
6- 37.10. Multiple Franchises
(a) Grantor may grant any number of Franchises subject to Applicable Law.
Grantor may limit the number of Franchises granted, based upon, but not necessarily
limited to, the requirements of Applicable Law and specific local considerations, such
as:
(1) The capacity of the Public Rights -of -Way to accommodate multiple
cables in addition to the cables, conduits and pipes of the utility Systems, such as
electrical power, telephone, gas and sewerage.
(2) The benefits that may accrue to Subscribers as a result of Cable
System competition, such as lower rates and improved service.
(3) The disadvantages that may result from Cable System competition,
such as the requirement for multiple pedestals on residents' property, and the disruption
arising from numerous excavations of the Public Rights -of -Way.
(b) Grantor may require that any new entrant, non - incumbent Grantee be
responsible for its own underground trenching and the costs associated therewith, if, in
Grantor's opinion, the Public Rights -of -Way in any particular area cannot feasibly
accommodate additional cables.
8
6- 37.11. Franchise Modification
The Grantee may be required to pay any costs incurred by the Grantor in
processing a Grantee request for Franchise modification. Upon written request from
the Grantee, the Grantor shall provide Grantee with an estimate of the total processing
costs prior to entering into the review of the request. Such costs shall be paid by the
Grantee prior to final consideration of the request by the Grantor.
6- 37.12. Contents of Franchise Agreements
If there is any conflict or inconsistency between the provisions of a Franchise
Agreement authorized by the City Council and provisions of this Ordinance as of the
effective date of the Franchise Agreement, the provisions of this Ordinance shall control
except where a provision of the Franchise Agreement expressly states otherwise.
SECTION 6 -38. FRANCHISE APPLICATIONS AND RENEWAL
6 -38.1. Filing of Applications
Any Person desiring an initial Franchise for a Cable System shall file an
application with the City. A nonrefundable initial application fee established by
resolution of the City shall accompany the initial Franchise application to cover all
validly documented costs associated with processing and reviewing the application,
including without limitation costs of administrative review, financial, legal and technical
evaluation of the applicant, notice and publication requirements with respect to the
consideration of the application and document preparation expenses. In the event such
validly documented costs exceed the application fee, the selected applicant(s) shall pay
the difference to the City within thirty (30) days following receipt of an itemized
statement of such costs.
6 -38.2. Applications - Contents
An application for an initial Franchise for a Cable System shall contain, where
applicable:
(a) The names and addresses of Persons authorized to act on behalf of the
Applicant with respect to the Application;
(b) The name and address of the applicant and identification of applicant's
ownership and control, including the names and addresses of the ten (10) largest
holders of an ownership interest in the applicant and all Persons in the applicant's direct
ownership chain; the names and addresses of all Persons owning ten percent (10 %) or
more in the applicant and in Persons in the applicant's direct ownership chain; the
Persons controlling the applicant and Persons in the applicant's direct ownership chain;
and all of applicant's officers and directors and Persons in the applicant's direct
ownership chain;
(c) A demonstration of the applicant's technical ability to construct and /or
operate the proposed Cable System, including identification of key personnel;
(d) A demonstration of the applicant's legal qualifications to construct and /or
operate the proposed Cable System;
(e) A statement prepared by an independent certified public accountant
regarding the applicant's financial ability to complete the construction and operation of
its proposed Cable System;
(f) A description of the applicant's prior experience in Cable System
ownership, construction, and operation;
(g) Identification of California cities and counties where the applicant or its
principals own, or have an interest in, a Cable Franchise. If an applicant does not have
9
311
a Cable Franchise in California, it will provide the information for its operations in other
States;
(h) Identification of the area of the City to be served by the proposed Cable
System, including a description of the boundaries of the proposed Service Area;
(i) A detailed description of the physical facilities proposed, including
Channel capacity, technical design, performance characteristics, headend, and PEG
Access facilities;
(j) A plan for constructing the proposed Cable System, including estimated
plant mileage and location; proposed construction schedule; a description, where
appropriate, of how services will be converted from existing facilities to new facilities;
(k) The proposed rate structure, including projected charges for each Service
Tier, installation, converters, and all other proposed equipment or services;
(I) A demonstration of how the applicant will meet the community's future
cable - related needs and interests, including descriptions of the capacity, facilities, and
support for public, educational, and governmental use of the Cable System (including
institutional networks);
(m) Pro forma financial projections for a minimum of five (5) years for the
proposed Cable Franchise term, including a statement of projected income and a
schedule of planned capital additions, with all significant assumptions explained in
notes or supporting schedules;
(n) If the applicant proposes to provide Cable Service to an area already
served by an existing Franchisee, the ability of Public Rights -of -Way and other property
that would be used by the applicant to accommodate an additional System;
(o) Any other information as may be necessary to demonstrate compliance
with the requirements of Applicable Law; and
(p) An affidavit or declaration of the applicant or its authorized officer
certifying the truth and accuracy of the information in the application, acknowledging the
enforceability of application commitments, and certifying that the Application meets all
requirements of Applicable Law.
6 -38.3. Consideration of Initial Applications
(a) Upon receipt of any application for an initial Franchise, the City Manager
shall prepare a report and make recommendations respecting such application to the
Council.
(b) A public hearing shall be set prior to any initial Franchise grant, at a time
and date approved by the Council. Within sixty (60) days after the close of the hearing,
the Council shall make a decision based upon the evidence received at the hearing as
to whether or not the initial Franchise(s) should be granted, and, if granted, subject to
what conditions. The Council may grant one (1) or more Franchises, or may decline to
grant any Franchise.
6 -38.4. Franchise Renewal
Franchise renewals shall be in accordance with Applicable Law. Grantor and
Grantee, by mutual consent, may enter into renewal negotiations at any time during the
term of the Franchise.
10
312
SECTION 6 -39. MINIMUM CONSUMER PROTECTION AND SERVICE STANDARDS
6 -39.1. Operational Standards
(a) Except as otherwise provided in the Franchise Agreement, Grantee shall
meet or exceed the following Consumer protection and service standards under Normal
Operating Conditions which standards may be modified by action of the City Council
from time to time:
(1) Sufficient toll -free telephone line capacity during normal business
hours to assure that telephone answer time by a Customer service representative,
including wait time, shall not exceed thirty (30) seconds; and callers needing to be
transferred shall not be required to wait more than thirty (30) seconds before being
connected to a service representative.
Under Normal Operating Conditions, a caller shall receive a busy signal less than
three percent (3 %) of the time. Grantee's Customer service telephone number(s) shall
be listed in the telephone directories of all telephone service providers serving the City
of Cypress.
(2) Emergency toll free telephone line capacity on a twenty -four (24)
hour basis, including weekends and holidays. After normal business hours, the
telephone calls may be answered by a service or an automated response system,
including an answering machine and calls received after normal business hours by such
service or automated response system must be responded to by a trained company
representative by the next business day. During periods when an answering device,
including, but not limited to voice -mail, is used, Grantee shall provide personnel who
shall contact the answering device or machine, at a minimum, every four (4) hours to
check on requests for service or complaints.
(3) A business and service and payment office conveniently located to
Subscribers open during normal business hours where Grantee provides adequate
staffing to accept Subscriber payments and the return or exchange of Subscriber
equipment. "Conveniently located" shall either be within the City, or at such different
location as may be detailed in Grantee's Franchise Agreement. Normal business hours
shall include some evening hours, at least one (1) night per week, and /or some
weekend hours, but in no case less than forty eight (48) hours per week. The Grantee
may petition the Grantor to reduce its business hours if the extended hours are not
justified by Subscriber demand, and Grantor may not unreasonably deny the petition.
(4) An emergency System maintenance and repair staff, capable of
responding to and repairing major System malfunction on a twenty -four (24) hour per
day basis.
(5) An installation staff, capable of installing service to any Subscriber
requiring a Standard Installation within seven (7) days after receipt of a request, in all
areas where trunk and feeder cable have been activated. "Standard Installations" shall
be those that are located up to one hundred twenty -five (125) feet from the existing
distribution System, unless otherwise defined in any Franchise Agreement.
(6) Grantee shall schedule, within a specified four (4) hour time period
during normal business hours, all appointments with Subscribers for installation of
service, service calls and other activities at the Subscriber location. Grantee may
schedule installation and service calls outside of normal business hours for the express
convenience of the Customer. Grantee shall not cancel an appointment with a
Customer after the close of business on the business day prior to the scheduled
appointment. If a Grantee representative is running late for an appointment with a
Customer and will not be able to keep the appointment as scheduled, the Customer
shall be contacted and the appointment rescheduled, as necessary, at a time which is
mutually agreeable to the Grantee and the Customer.
11
313
(b) Under Normal Operating Conditions, the standards of paragraphs (a)(1)-
(a)(2) above shall be met not less than ninety percent (90 %) of the time measured on a
quarterly basis. For the purposes of this Section, "quarterly" shall mean any
consecutive three (3) calendar month period and is not necessarily coincident with a
calendar quarter. The standards of paragraphs (a)(4) -(6) above shall be met not Tess
than ninety -five percent (95 %) of the time measured on a quarterly basis.
(c) Grantee shall not be required to acquire equipment or perform surveys to
measure compliance with the telephone answering standards above unless an
historical record of complaints indicates a clear failure to comply.
(d) The Grantee shall offer and fully describe to those wishing to become a
Subscriber and existing Subscribers who have experienced a missed appointment
(where the missed appointment was not the Subscriber's fault) that the potential or
existing Subscriber may choose from at least the following options:
(1) Installation or service call free of charge, if the appointment was for
an installation or service call for which a fee was to be charged;
(2) An opportunity to elect remedies under California Civil Code
Section 1722, if applicable.
6 -39.2. Service Standards
(a) Grantee shall render efficient service, make repairs promptly, and
interrupt service only for good cause and for the shortest time possible. Scheduled
interruptions, insofar as possible, shall be preceded by notice and shall occur during a
period of minimum use of the Cable System, preferably between one A.M. (1:00 A.M.)
and five A.M. (5:00 A.M.) local time.
(b) The Grantee shall maintain a repair force of technicians normally capable
of responding to Subscriber requests for service within the following time frames:
(1) For a System outage: Within two (2) hours, including weekends, of
receiving Subscriber calls or requests for service which by number identify a system
outage of sound or picture of one (1) or more channels, affecting at least ten percent
(10 %) of the Subscribers of the System.
(2) For an isolated outage: Within twenty -four (24) hours, including
weekends, of receiving requests for service identifying an isolated outage of sound or
picture for one (1) or more channels that affects five (5) or more Subscribers. On
weekends, an outage affecting fewer than five (5) Subscribers shall result in a service
call no later than the next business day.
(3) For inferior signal quality: Within two (2) business days of receiving
a request for service identifying a problem concerning picture or sound quality.
(c) Grantee shall be deemed to have responded to a request for service
under the provisions of this Section when a technician arrives at the service location
and begins work on the problem. In the case of a Subscriber not being home when the
technician arrives, the technician shall leave written notification of arrival.
(d) Grantee shall not charge for the repair or replacement of defective or
malfunctioning equipment provided by Grantee to Subscribers, unless the defect was
caused by the Subscriber, or the equipment owned by the Subscriber requires repair or
replacement.
(e) With regard to Subscribers with mobility - limiting disabilities, upon
Subscriber request, each Grantee shall arrange for pickup and /or replacement of
converters or other Grantee equipment at the Subscriber's address or by a satisfactory
equivalent (such as providing postage - prepaid mailer).
(f) Unless excused, Grantee shall determine the nature of the problem
resulting in a request for service within two (2) business days of beginning work and
12
314
resolve all Cable System related problems within five (5) business days unless
technically infeasible.
6 -39.3. Billing and Information Standards
(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 Grantee's billing statement must show a specific payment due date not
earlier than the later of:
(1) Fifteen (15) days after the date the billing 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.
(1) A late fee may not be imposed unless the Subscriber is provided
written notice at least ten (10) days before 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).
(2) Subscribers shall not be charged a late fee or otherwise penalized
for any failure by a Grantee, 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 received by the due date.
(3) A Grantee's bill must permit a Subscriber to remit payment by mail
or in person at the Grantee's local office.
(d) In case of a billing dispute, the Grantee shall respond to a written
complaint from a Subscriber within thirty (30) days. Pending resolution of the billing
dispute, Grantee shall exercise care to ensure that no termination or late charge notices
are issued for the disputed portions of the bill.
(e) Credits or refunds shall automatically be provided by Grantee on a pro
rata basis to any Subscriber(s) affected by interruption(s) of service for more than three
(3) hours due to actions or outages under the control of the Grantee, exclusive of
scheduled repairs, maintenance or Franchise - required construction that Grantee has
provided advance written notice of to Subscribers. In cases where advance written
notice is provided to Subscribers, the time period detailed in said notice shall not
exceed six (6) hours in any twenty -four (24) hour period. In cases where said notice
has been given to Subscribers and the service interruption exceeds the period detailed
in said notice, the provisions of this Section shall apply.
In the event Grantee has improperly or inadvertently disconnected Cable
Services to a Subscriber, Grantee shall provide for restoration without charge to
Subscriber as soon as possible, but no later than within two (2) days of discovery of
disconnection. Grantee shall credit or provide refunds to any Subscriber improperly or
inadvertently disconnected from receiving Cable Services for the period of time without
Cable Service.
All credits or refunds for service shall be issued no later than the Customer's
next billing cycle following the determination that a credit is warranted. For Subscribers
terminating service, refunds shall be issued promptly, but no later than thirty (30) days
after the return of any Grantee - supplied equipment.
315
(f) Grantee shall provide written information on each of the following areas (i)
at the time of the installation of service, (ii) at least annually to all Subscribers, and (iii)
at any time upon request:
(1) Products and services offered; and
(2) Prices and options for programming services and conditions of
subscription to programming and other services; and
(3)
(4)
(5)
Installation and service maintenance policies; and
Instructions on how to use the Cable Service; and
Channel positions of programming carried on the System; and
(6) Billing and complaint procedures, including the time to pay
outstanding bills, the grounds for termination of service, the process for resolving billing
disputes, and the address and telephone number of the Grantor office designated for
dealing with cable - related issues.
(g) Upon the initial provision of Cable Service to any Subscriber, Grantee
shall pro rate the first invoice for Cable Service to reflect, to the extent appropriate, any
partial billing period due to the introduction of Service at a time other than the initiation
of a billing cycle.
(h) Upon the initial provision of Cable Service to any Subscriber, Grantee
shall provide a written notice to the Subscriber containing substantially the following
information:
"Subscriber understands that the Company uses public rights -of -way and
other facilities of the City of Cypress in providing service and that this
continued use cannot be guaranteed. Subscriber agrees not to make any
claims against the City of Cypress or its officers or employees in the event
that such use is denied for any reason, and Company is unable, in its
discretion, to provide service over alternate routes."
(i) Subscribers and Grantor shall be notified of any changes in rates,
programming services or channel positions as soon as possible in writing and in
accordance with Applicable Law. Notice must be given to Subscribers and Grantor a
minimum of thirty (30) days in advance of such changes if the change is within the
control of the Grantee. In addition, Grantee shall notify Subscribers and Grantor thirty
(30) days in advance of any significant changes in the information required in paragraph
6- 39.3(f) above.
6 -39.4. Verification of Compliance with Standards
(a) Upon ten (10) days prior written notice, Grantee shall respond to a
request for information made by Grantor regarding Grantee's compliance with any or all
of the standards required in Sections 6 -39.1, 6 -39.2 and 6 -39.3 above. Grantee shall
provide sufficient documentation related solely to the Franchise Area to permit Grantor
to verify Grantee's compliance within the Franchise Area.
(b) A repeated and verifiable pattern of non - compliance with the consumer
protection standards of Sections 6 -39.1 through 6 -39.3 above, after Grantee's receipt of
due notice and not less than a ten (10) day opportunity to cure, shall be deemed a
material breach of the Franchise Agreement.
(c) The Grantor, pursuant to Section 6- 39.1(c) of this Ordinance, may require
Grantee to acquire equipment to determine compliance with the telephone answering
standards of this Section 6 -39 on a Franchise -by- Franchise basis. Should Grantee
have its own telephone equipment which can report on telephone line(s) usage, the
Grantee, upon written request from the Grantor, shall submit such report from its own
system in order to verify compliance with the telephone answering standards of this
Section 6 -39.
14
316
(d) Grantee shall take necessary steps to ensure that adequate telephone
lines and /or staffing are available to permit Grantee to satisfy its obligations under this
Ordinance and the Franchise. Consideration shall be given for periods of promotional
activities or outages. The monthly billing period shall be considered as a normal, daily
activity for purposes of determining the availability of adequate telephone lines and /or
staffing.
6 -39.5. Subscriber Complaints and Disputes
(a) Grantee shall establish written procedures for receiving, acting upon and
resolving Subscriber complaints without intervention by the Grantor. The written
procedures shall prescribe the manner in which a Subscriber may submit a complaint
either orally or in writing specifying the Subscriber's grounds for dissatisfaction.
Grantee shall file a copy of these procedures with Grantor. The written procedures
shall include a requirement that Grantee respond to any written complaint from a
Subscriber within thirty (30) days of receipt.
(b) Upon prior written request, Grantor shall have the right to review
Grantee's response to any Subscriber complaints in order to determine Grantee's
compliance with the Franchise requirements, subject to the Subscriber's right to privacy.
(c) Subject to Applicable Law, it shall be the right of all Subscribers to
continue receiving Cable Service insofar as their financial and other obligations to the
Grantee are honored. In the event that the Grantee elects to rebuild, modify, or sell the
System, or the Grantor gives notice of intent to terminate or not to renew the Franchise,
the Grantee shall act so as to ensure that all Subscribers receive Cable Service so long
as the Franchise remains in force.
(d) In the event of a change of control of Grantee, or in the event a new
operator acquires the System, the original Grantee shall cooperate with the Grantor,
new Grantee or operator in maintaining continuity of service to all Subscribers. During
such period, Grantee shall be entitled to the revenues for any period during which it
operates the System.
(e) Grantee response to Subscriber complaints, as well as complaints made
by Subscribers to Grantor and provided by Grantor to Grantee, shall be initiated within
one (1) business day of receipt by Grantor. The resolution of Subscriber complaints
shall be effected by Grantee not later than three (3) business days after receipt of the
complaint, or a longer period if such complaint cannot reasonably be resolved within
three (3) business days. Should a Grantee supervisor not be available when requested
by a Subscriber, a supervisor shall respond to the Subscriber's complaint at the earliest
possible time, and in no event later than the end of the next business day. For
complaints received by Grantor and provided by Grantor to Grantee, Grantee shall
notify Grantor of Grantee's progress in responding to, and resolving, said complaints.
6 -39.6. Truth in Advertising
(a) Each Grantee shall take appropriate steps to ensure that all written
promotional materials, announcements, and advertising of 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 Grantee will take
appropriate steps to ensure that price terms are clearly and accurately disclosed to
potential Customers in advance of taking the order.
(b) Each Grantee will maintain a file available 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.
6 -39.7. Other Requirements
317
(a) In the event Grantee fails to operate the System for seven (7) consecutive
days other than for reasons beyond the control of Grantee, without prior approval or
subsequent excuse of the Grantor, the Grantor may, at its sole option, operate the
System or designate an operator until such time as Grantee restores service under
conditions acceptable to the Grantor or a permanent operator is selected. If the
Grantor should fulfill this obligation for the Grantee, then during such period as the
Grantor fulfills such obligation, the Grantor shall be entitled to collect all revenues from
the System, and the Grantee shall reimburse the Grantor for all costs or damages in
excess of the revenues collected by Grantor that are the result of Grantee's failure to
perform.
(b) All officers, agents or employees of Grantee or its contractors or
subcontractors who, in the normal course of work come into contact with members of
the public or who require entry onto Subscribers' premises shall carry a company
issued photo- identification card. Every vehicle of the Grantee or its major
subcontractors shall be clearly identified as working for Grantee.
(c) Additional service standards and standards governing Consumer
protection and response by Grantee to Subscriber complaints not otherwise provided
for in this Ordinance may be established in the Franchise Agreement or by separate
ordinance as permitted by Applicable Law.
SECTION 6 -40. FRANCHISE FEE AND FINANCIAL REQUIREMENTS
6 -40.1. Franchise Fee
(a) Following the issuance and acceptance of the Franchise, the Grantee
shall pay to the Grantor a Franchise Fee on Gross Annual Cable Service Revenues in
the amount and at the times set forth in the Franchise Agreement.
(b) The Grantor, on an annual basis, shall be furnished a statement within
one hundred twenty (120) days of the close of the calendar year, either audited and
certified by an independent certified public accountant or certified by an officer or
authorized financial representative of the Grantee, reflecting the total amounts of gross
revenues and all payments, deductions and computations for the period covered by the
payment. Upon thirty (30) days prior written notice, Grantor shall have the right to
conduct an independent financial audit of Grantee's Gross Annual Cable Service
Revenue and Franchise Fee records for the preceding four (4) year period, and if such
audit indicates a Franchise Fee underpayment of three percent (3 %) or more, the
Grantee shall assume all costs of such audit.
(c) No acceptance of any payment by the Grantor shall be construed as a
release or as an accord and satisfaction of any claim the Grantor may have for further
or additional sums payable as a Franchise Fee under this Ordinance or for the
performance of any other obligation of the Grantee.
(d) In the event that any Franchise Fee payment or payment of any
adjustment to any Franchise Fee is not made on or before the dates specified in the
Franchise Agreement, unless otherwise excused, Grantee shall pay:
(1) an interest charge, computed from such due date, at an annual
rate equal to the prevailing commercial Prime Interest Rate in effect upon the due date,
plus one (1) percentage point ; and
(2) if the payment is late by thirty (30) days or more, a sum of money
equal to five percent (5 %) of the amount due in order to defray those additional
expenses and costs incurred by the Grantor due to Grantee's delinquent payment.
(e) Franchise Fee payments shall be made in accordance with the schedule
indicated in the Franchise Agreement.
16
318
6 -40.2. Security
(a) Grantor may require Grantee to provide security, in an amount and form
established in the Franchise Agreement. The amount of the security shall be
established based on the extent of the Grantee's obligations under the terms of the
Franchise or past performance.
(b) The security shall be available to Grantor to satisfy all claims, liens and /or
taxes due Grantor from Grantee which arise by reason of construction, operation, or
maintenance of the System, and to satisfy any actual or liquidated damages arising out
of a material breach of the Franchise Agreement, subject to the procedures and
amounts designated in the Franchise Agreement.
(c) If the security is drawn upon by Grantor in accordance with the
procedures established in this Ordinance and the Franchise Agreement, Grantee shall
cause the security to be replenished to the original amount no later than thirty (30) days
after receiving written confirmation from the issuer where such security is maintained
that Grantor has made a draw against the security. Failure to replenish the security
shall be deemed a material breach of the Franchise.
SECTION 6 -41. CONSTRUCTION REQUIREMENTS
6 -41.1. System Construction
(a) Grantee shall not construct any Cable System facilities until Grantee has
secured the necessary permits from Grantor, or other responsible public agencies. The
Grantee shall be subject to all permit and bonding requirements applicable to
contractors working within the Public Rights -of -Way. No provision of this Ordinance or
the Franchise Agreement shall be deemed a waiver of the obligation of a Grantee to
pay Grantor for the issuance of a permit.
(b) Prior to performing any work in the Public Right -of -Way, Grantee shall
give appropriate notice to the "Underground Service Alert" ( "USA "), or any similar type
service provider as designated by the Grantor.
(c) In those areas of the City where transmission lines or distribution facilities
of all public utilities providing telephone and electric power service are underground, the
Grantee likewise shall construct, operate and maintain its transmission and distribution
facilities underground.
(d) In those areas of the City where the Grantee's cables are located on the
above - ground transmission or distribution facilities of the public and /or municipal utility
providing telephone or electric power service, and in the event that the facilities of both
the telephone and electric power utilities subsequently are placed underground, then
the Grantee likewise shall reconstruct, operate and maintain its transmission and
distribution facilities underground, at Grantee's sole cost. Certain of Grantee's
equipment, such as pedestals, amplifiers and power supplies, which normally are
placed above ground, may continue to remain in above - ground enclosures, unless
otherwise required by the City.
(e) Any changes in or extensions of any poles, anchors, wires, cables,
conduits, vaults, laterals or other fixtures and equipment (herein referred to as
"Structures "), or the construction of any additional Structures, in, upon, along, across,
under or over the Streets, alleys and Public Ways shall be made under the direction of
Public Works Director or a designee, who shall, if the proposed change, extension or
construction conforms to the provisions hereof, issue written permits therefor. The
height above public thoroughfares of all aerial wires shall conform to the requirements
of the California regulatory body having jurisdiction thereof.
(1) All transmission and distribution structures, lines and equipment
erected by the Grantee shall be located so as not to interfere with the proper use of the
Public Rights -of -Way, and to cause minimum interference with the rights or reasonable
319
convenience of property owners who adjoin any of the said Public Rights -of -Way, and
not to materially interfere with existing public and municipal utility installations.
(2) In the event that any property or improvement of the Grantor in the
Public Rights -of -Way is disturbed or damaged by the Grantee or any of its contractors,
agents or employees in connection with undertaking any and all work pursuant to the
rights granted to the Grantee pursuant to this Ordinance and the Franchise Agreement,
the Grantee shall promptly, at the Grantee's sole cost and expense, restore to the
Grantor's satisfaction said property or improvement which was so disturbed or
damaged. If such property or improvement shall within three (3) years (or in the case of
street improvement, until the street is resurfaced if resurfaced prior to the expiration of
the three (3) years) of the date the restoration was completed, become uneven,
unsettled or otherwise require additional restorative work, repair or replacement
because of the initial disturbance or damage to the property by the Grantee, then the
Grantee, as soon as reasonably possible, shall, promptly upon receipt of written notice
from the Grantor and at the Grantee's sole cost and expense, restore to the Grantor's
satisfaction said property or improvement which was disturbed or damaged. Any such
restoration by the Grantee shall be made in accordance with such materials and
specifications as may, from time to time, be established by the Grantor.
(3) If emergency work on the System in the Public Right -of -Way is
required, the Grantee shall with all due diligence, seek to obtain any and all required
permits, licenses and authorizations within three (3) working days after commencing
such emergency work
(4) There shall be no obstruction of the Public Rights -of -Way by the
Grantee in connection with any of the work provided for herein. The Grantee shall
maintain any barriers, signs and warning signals during any work performed on or about
the Public Rights -of -Way or adjacent thereto as may be necessary to reasonably avoid
injury or damage to life and property.
(5) If the City Manager determines that the Grantee has created an
unsafe condition in the Public Right -of -Way or adjacent thereto, the City Manager shall
have the authority to issue a work stoppage order restricting any work by Grantee in the
Public Rights -of -Way until the unsafe condition has been corrected to the City's
reasonable satisfaction. In cases where unsafe conditions are found by the City
Manager, the Grantor shall correct the condition as soon as possible unless otherwise
permitted by the City.
(6) If the Grantor lawfully elects to alter or change the grade or location
of any Public Right -of -Way, the Grantee shall, upon reasonable notice by the Grantor,
and in a timely manner, remove, relay and relocate its poles, wires, cables,
underground conduits, manholes and other fixtures at it own expense.
(7) The Grantee shall not place poles, conduits or other fixtures above
or below ground where the same will interfere with any gas, electric, telephone fixtures,
sewer, water hydrants or other utility, and all such poles, conduits or other fixtures
placed in any street shall be so placed as to comply with all ordinances of the Grantor.
(8) In accordance with Applicable Law, the Grantee or any utility user
of the Public Rights -of -Way may be required by the Grantor to permit joint use of poles
located in the Public Rights -of -Way, insofar as such joint use may be reasonably
practicable and upon payment of a reasonable rental fee for such usage.
(9) The Grantee, on request of any Person holding a moving permit
issued by the Grantor, shall temporarily raise or lower its wires or fixtures to permit the
moving of buildings. The expense of such temporary raising or lowering of wires or
fixtures shall be paid by the Person, unless such person is the City, requesting the
same, and the Grantee shall have the authority to require such payment in advance.
The Grantee shall be given not Tess than five (5) business days prior written notice to
arrange for the temporary wire or equipment changes.
18
320
(10) Subject to provisions of City Code, the Grantee shall have the
authority to trim any trees or other natural growth overhanging the Public Rights -of -Way
so as to prevent the branches of such trees or other natural growth from coming in
contact with the Grantee's wires, cables and other equipment. The Grantor may require
all trimming of trees and natural growth to be done under its supervision and direction at
the expense of the Grantee.
(11) Grantee shall be subject to any and all requirements established by
the Grantor with regard to the placement and screening of facilities and equipment
located in the Public Rights -of -Way. Such requirements may include, but not be limited
to, use of landscaping to screen pedestals and cabinets and requiring that construction
be flush with the natural grade of the surrounding area.
(12) Grantee shall use only chalk -based paints to mark the Public
Rights -of -Way in connection with the construction or maintenance of the Cable System.
All paint marks remaining after Grantee's clean -up following the completion of the
construction or maintenance work must be removed by Grantee by means of sand
blasting, non -toxic chemicals, water or high - pressure water within thirty (30) days
following receipt by Grantee of Grantor's written notice requiring such removal.
6 -41.2. Multiple Franchises
If the Grantor authorizes or permits another Cable System to operate within the
municipal limits of the City, Grantee shall cooperate with such franchisee to the extent
necessary in the event that the installation of such new Cable system requires the
strengthening of poles, replacing poles, rearranging attachments, placing underground
facilities incident to the construction of an additional Cable System in the Franchise
Area. The cost of the construction and installation of the new entrant Cable System
shall, however, be borne by the new cable franchisee.
SECTION 6 -42. STANDARDS
6 -42.1. Applicable Standards
(a) The Grantee shall construct, install, operate and maintain its Cable
System in a manner consistent with Applicable Law, and any detailed standards set
forth in its Franchise Agreement. In addition, the Grantee shall provide to the Grantor,
upon written request, a written report of the results of the Grantee's periodic proof of
performance tests conducted pursuant to FCC standards and guidelines.
(b) Should the FCC no longer require proof of performance tests, the Grantee
shall make and submit such proof of performance tests and reports in response to a
written request from the Grantor. Such report shall be submitted to the Grantor within
thirty (30) days of issuance of the Grantor request.
6 -42.2. Non - Compliance with Standards
Repeated failure to maintain specified technical standards shall constitute a
material breach of the Franchise.
SECTION 6 -43. INDEMNIFICATION AND INSURANCE REQUIREMENTS
6 -43.1. Hold Harmless
Grantee shall indemnify, defend and hold Grantor, its officers, agents and
employees harmless from any liability, claims, damages, costs or expenses, to the
extent provided in the Franchise Agreement.
6 -43.2. Insurance
(a) On or before commencement of Franchise operations, the Grantee shall
furnish to Grantor Certificates of Insurance for liability, Workers' Compensation and
321
property insurance from appropriately qualified insurance companies, which shall be
"admitted" in the State of California. The Certificates of Insurance shall provide that the
insurance is in force and will not be cancelled or modified without thirty (30) days prior
written notice to Grantor. The Certificates of Insurance shall be in a form satisfactory to
Grantor. The Grantee shall maintain at its cost throughout the term of the Franchise,
the insurance required herein and in any Franchise Agreement.
(b) The policy of liability insurance shall:
(1) Name Grantor, its officers, agents and employees as additional
insured;
(2) Indemnify all liability for personal and bodily injury, death and
damage to property arising from activities conducted and premises used pursuant to
this Ordinance by providing coverage therefor, including but not limited to:
- Negligent acts or omissions of Grantee, and its agents,
servants and employees, committed in the conduct of
Franchise operations, and /or
- Use of motor vehicles;
(3) Provide a combined single limit for comprehensive general liability
and comprehensive automobile liability insurance in the amount provided for in the
Franchise Agreement.
(c) The policy of Workers' Compensation Insurance shall comply with the
laws of the State of California.
(d) The policy of property insurance shall provide fire insurance with extended
coverage on the Franchise property used by Grantee in the conduct of Franchise
operations in an amount adequate to enable Grantee to resume Franchise operations
following the occurrence of any risk covered by this insurance.
The Certificates of Insurance shall indicate the following information:
(1) The policy number;
(2) The date upon which the policy will become effective and the date
upon which it will expire;
(3) The names of the primary insureds and any additional insured
required by the Franchise Agreement;
(4)
(5)
(6)
(7)
The subject of the insurance;
The type of coverage provided by the insurance; and
The amount or limit of coverage provided by the insurance.
Any cancellation provisions.
If the Certificates of Insurance do not provide all of the above information,
Grantor reserves the right to inspect the relevant insurance policies.
(e) The commencement of Franchise operations shall not begin until Grantee
has complied with the aforementioned provisions of this Section.
(f) In the event Grantee fails to maintain any of the above - described policies
in full force and effect, Grantor shall, upon forty -eight (48) hours notice to Grantee, have
the right to procure the required insurance and recover the cost thereof from Grantee.
Grantor shall also have the right to suspend the Franchise during any period that
Grantee fails to maintain said policies in full force and effect.
20
322
SECTION 6 -44. RECORDS AND REPORTS
6 -44.1. Records Required
(a) Grantee shall at all times maintain:
(1) A written or computer- stored record of all service calls and
interruptions or degradation of service experienced for the preceding two (2) years,
provided that such complaints result in or require a service call, subject to the
Subscriber's right of privacy.
(2) A full and complete set of "as- built" plans and record drawings
showing the locations of the Cable System and all aspects thereof, installed or in use in
the City, exclusive of Subscriber service drops and equipment provided in Subscriber's
homes.
(3) If requested by Grantor, a summary of service calls, identifying the
number, general nature and disposition of such calls, on a quarterly basis. A summary
of such service calls shall be submitted to the Grantor within thirty (30) days following
any written request by Grantor, in a form acceptable to the Grantor.
(4) If requested by Grantor, a complaint record which shall contain a
semi - annual (through June 30th and December 31st) breakdown indicating the total
number of complaints received for the preceding reporting period, and shall indicate the
classifications of complaints as follows: construction, billing, Customer relations /service
and miscellaneous.
(5) A full and complete record of rates for programming services,
equipment, installations and other Subscriber charges. This information shall include,
but not be limited to, rates for the Basic Service Tier, Tiers of service beyond the Basic
Tier, premium service, pay - per -view services, late fees, additional outlets, converters,
remote controls and any charges for installation or service at the Subscriber premises.
(b) The Grantor may impose requests for additional information, records and
documents from Grantee, provided they relate to the scope of the City's rights under
this Ordinance or the Grantee's Franchise Agreement.
(c) Upon reasonable notice, and during normal business hours, Grantee shall
permit examination, including the provision of copies, by any duly authorized
representative of the Grantor of all:
(1) Franchise property and facilities, together with any appurtenant
property and facilities of Grantee situated within the Service Area; and
(2) all records relating to the Franchise, provided they are necessary to
enable the Grantor to determine Grantee's compliance with the terms and conditions of
this Ordinance or the Franchise Agreement.
6 -44.2. Reports
(a) Within ninety (90) days after the end of the calendar year, Grantee shall
submit a written report to Grantor with respect to the preceding calendar year in a form
approved by Grantor, including, but not limited to, the following information:
(1) A summary of the previous year's (or in the case of the initial
reporting year, the initial year's) activities in development of the Cable System, including
but not limited to, services begun or discontinued during the reporting year;
(2) A list of Grantee's officers and members of its board of directors;
(3) A list of stockholders or other equity investors holding ten percent
(10 %) or more of the voting interest in Grantee;
323
(4) An indication of any residences in Grantee's Service Area where
service is not available, and a schedule for providing service;
(5) Information as to
(i) the number of homes passed;
(ii) total Subscribers; and
(iii) the number of Basic and Pay Subscribers.
(6) A full and complete set of maps showing the locations of the Cable
System installed or in use in the City, exclusive of Subscriber service drops and
equipment provided in Subscriber's homes. It is the intent of this Section that the
Grantor have a complete set of "as- built" trunk and feeder maps as well as maps
showing the location of all above and below ground ancillary equipment. After the initial
submission of a complete set of drawings, the Grantee may satisfy the provisions of this
Section by providing updated portions of those sections of the drawings which have
changed.
(7) Any other information relevant to Franchise regulation which the
Grantor shall request, and which is relevant to Grantor's regulatory responsibilities.
(b) The Grantor may impose requests for additional reports, information,
records and documents from Grantee, provided they relate to the scope of the City's
rights under this Ordinance or the Grantee's Franchise Agreement.
(c) Upon request, Grantee shall submit to Grantor copies of all pleadings,
applications and reports submitted by Grantee to any Federal, State or local court,
regulatory agency, or other governmental body as well as copies of all decisions issued
in response to such pleadings, applications and reports, which are non - routine in nature
and which will materially affect its Cable System within the Franchise Area.
(d) If Grantee is publicly held, a copy of each Grantee's annual and other
periodic reports and those of its parent, shall be submitted to Grantor upon request.
(e) Upon Grantor's request, but no more than annually, Grantee shall submit
to Grantor a privacy report indicating the degree of compliance with the provisions
contained in Section 6- 49.3(c), (d), (e), (f) and (h) herein and all steps taken to assure
that the privacy rights of individuals have been protected.
(f) All reports and records required to be delivered to Grantor under this
Ordinance shall be furnished at the sole expense of Grantee, except as otherwise
provided in the Franchise Agreement.
(g) The willful refusal, failure, or willful negligence of Grantee to file any of the
reports required as and when due under this Ordinance, may be deemed a material
breach of the Franchise Agreement if such reports are not provided to Grantor within
thirty (30) days after written request therefor, and may subject the Grantee to all
remedies, legal or equitable, which are available to Grantor under this Ordinance or the
Franchise Agreement.
(h) Any materially false or misleading statement or representation made
knowingly and willfully by the Grantee in any report required under this Ordinance, the
Franchise Agreement or Applicable Law, shall be deemed a material breach of the
Franchise and may subject Grantee to all remedies, legal or equitable, which are
available to Grantor.
22
324
SECTION 6 -45. REVIEW OF SYSTEM PERFORMANCE
6 -45.1. Review
(a) Throughout the term of the Franchise, but not more frequently than once
in any five (5) calendar year period, if requested by prior written notice from the Grantor,
Grantor and Grantee shall meet to review System performance and quality of service.
The various reports required pursuant to this Ordinance, results of technical
performance tests, the record of Subscriber complaints and Grantee's response to
those complaints, and the information acquired in any Subscriber surveys, shall be
utilized as the basis for review. In addition, any Subscriber may submit comments or
complaints during the review meetings, either orally or in writing, and these shall be
considered. Within thirty (30) days after the conclusion of such a review meeting,
Grantor may issue findings with respect to the Cable System's Franchise compliance.
Within thirty (30) days of the issuance of such findings, the Grantee shall provide the
Grantor with Grantee's written response to the findings.
(b) If Grantor determines that Grantee is not in compliance with the
requirements of this Ordinance or the Grantee's Franchise Agreement, Grantor shall
provide Grantee, in the form of written findings, the specific details of each alleged
noncompliance. Grantor may then direct Grantee to correct the areas of
noncompliance within a reasonable period of time. Failure of the Grantee, after due
notice, to:
(1) correct the area(s) of noncompliance within the period specified
therefor; or
(2) commence compliance within such period and diligently achieve
compliance thereafter; or
(3)
demonstrate that the allegations of noncompliance are incorrect;
shall be considered a material breach of the Franchise, and Grantor may
exercise any remedy within the scope of this Ordinance and the Franchise Agreement
considered appropriate under the circumstances.
SECTION 6 -46. FRANCHISE VIOLATIONS
6 -46.1. Remedies for Violations
If Grantee fails to perform in a timely manner any material obligation required by
this Ordinance or a Franchise granted hereunder, following written notice from the
Grantor and an opportunity to cure such nonperformance in accordance with the
provisions of Section 6 -46 of this Ordinance, Grantor may at its option and in its sole
discretion:
(a) Cure the violation and recover the actual cost thereof from the security
fund established in the Franchise Agreement, unless Grantor, in its sole discretion, has
provided Grantee with additional time to effectuate a cure.
(b) Assess against Grantee liquidated damages in an amount set forth in the
Franchise Agreement for any such violations if such violation is not cured, or if Grantee
has not commenced a cure, on a schedule acceptable to Grantor. Such assessment
may be withdrawn from the security fund, and shall not constitute a waiver by Grantor of
any other right or remedy it may have under the Franchise or Applicable Law, including
without limitation, its right to recover from Grantee such additional damages, losses,
costs and expenses, including actual attorney's fees, as may have been suffered or
incurred by Grantor by reason of or arising out of such material breach of the
Franchise.
(1) Within three (3) days of a withdrawal from the security fund,
Grantor will mail, by certified mail, return receipt requested, written notification of the
amount, date and purpose of such withdrawal to Grantee.
325
(2) If at the time of Grantor's withdrawal, the amounts available are
insufficient to provide the total payment toward which the withdrawal is directed, the
balance of such payment will continue as Grantee's obligation to Grantor until it is paid.
(3) Not later than thirty (30) days after receipt of notification to Grantee
by certified mail, return receipt requested, of a withdrawal from the security fund,
Grantee will deliver to Grantor for deposit in the security fund an amount equal to the
amount so withdrawn.
(4) Failure to make timely delivery of such amount to Grantor or to
restore the letter of credit will constitute a material violation of the Cable Franchise.
6 -46.2. Procedure for Remedying Franchise Violations
Prior to imposing any remedy or other sanction against Grantee specified in this
Ordinance, Grantor shall give Grantee notice and opportunity to be heard on the matter,
in accordance with the following procedures:
(a) The City Manager shall first notify Grantee of the alleged violation in
writing by personal delivery or registered or certified mail, and demand correction, or
evidence of non - violation, within a reasonable time, which shall not be less than ten
(10) calendar days. If Grantee fails to:
(1) correct the alleged violation within the time prescribed; or
(2) commence correction of the alleged violation within the time
prescribed and diligently remedy such alleged violation thereafter; or
(3) provide evidence that there is no violation,
the City Manager shall then give, by personal delivery or registered or certified mail
written notice of not less than fifteen (15) days of a hearing. Said notice shall set forth
in detail each of the violations alleged to have occurred.
(b) Subsequent to the hearing, the City Manager shall hear and consider all
other relevant evidence, and thereafter render findings and its decision.
(c) If the City Manager finds that
(1) the Grantee has corrected the alleged violation; or
(2) the Grantee has diligently commenced correction of such alleged
violation after notice thereof and is diligently proceeding to fully remedy such alleged
violation; or
(3) no material violation has occurred,
the proceedings shall terminate and no penalty or other sanction shall be imposed.
(d) If the City Manager finds that a material violation exists and that Grantee:
(1) has not corrected the same in a satisfactory manner; or
(2) has not diligently commenced correction of such violation after
notice thereof and is not diligently proceeding to fully remedy such violation; then the
City Manager may impose one (1) or more of the remedies provided in this Ordinance
and the Franchise Agreement as the City Manager, in his or her discretion, deems
appropriate under the circumstances.
(e) Grantee may appeal any findings of the City Manager to the City Council.
The Council shall schedule a hearing on the issue within thirty (30) days of receipt by
the City Manager of Grantee's appeal. The hearing will provide Grantee with the full
opportunity to participate and present evidence. The City Council shall decide the
matter de novo based upon the evidence presented to the City Council.
24
6 -46.3. Grantor's Power to Revoke
(a) Grantor may revoke any Franchise granted pursuant to this Ordinance
and rescind all rights and privileges associated with it in the following circumstances,
each of which shall represent a default by Grantee and a material breach under the
Franchise:
(1) If Grantee fails to perform any of its material obligations under this
Ordinance or the Franchise Agreement and continues such failure to perform after
receipt of due notice and a reasonable opportunity to cure;
(2) If Grantee fails to provide or maintain in full force and effect the
insurance coverage or security fund as required in the Franchise Agreement;
(3) If Grantee violates any final order or ruling of any regulatory body
having jurisdiction over the Grantee relative to the Grantee's Franchise;
(4) If Grantee makes any material false statement to the Grantor.
(b) After completing the procedures set forth in Section 6 -46.2 above, the
Grantor shall cause to be served on Grantee written notice of Grantor's intent to revoke
Grantee's Franchise. Such notice shall be served on Grantee at least thirty (30) days
prior to the date of the hearing on the issue. The notice shall contain the time and
place of the hearing and shall be published at least once in a newspaper of general
circulation within the Franchise area ten (10) days prior to the hearing date.
(c) The Council shall hear any Person(s) interested in the revocation and
within ninety (90) days after the date of the hearing shall make its determination
whether the Grantee has committed a material breach of the Franchise.
(d) If the Grantor determines that the Grantee has committed a material
breach, then the Grantor may, in its discretion:
(1) Declare the Franchise revoked and /or any security fund and bonds
forfeited; or
(2) If the material breach is curable by the Grantee, direct the Grantee
to take appropriate remedial action within the time and manner and under the terms
and conditions specified by the Grantor.
The termination and forfeiture of the Grantee's Franchise shall in no way affect
any right of Grantor to pursue any remedy under the Franchise or any provision of law.
6 -46.4. Appeal of Council Finding
The Grantee may appeal any Council finding made pursuant to Sections 6 -46.2
and 6 -46.3 to an appropriate court of jurisdiction. The matter shall be heard pursuant to
the substantive and procedural standards set for in the Code of Civil Procedure
§1094.5. Any such appeal must be taken by the Grantee within sixty (60) days of the
issuance of the Council's written decision.
SECTION 6 -47. FORCE MAJEURE; GRANTEE'S INABILITY TO PERFORM
In the event Grantee's performance of any of the terms, conditions or obligations
required by this Ordinance or a Franchise granted hereunder is prevented by a cause
or event not within Grantee's control, such inability to perform shall be deemed excused
and no penalties or sanctions shall be imposed as a result thereof; provided, however,
that such inability to perform shall not relieve a Grantee from the obligations imposed
by Section 6- 39.3.(e) pertaining to refunds and credits for interruptions in service. For
the purpose of this Section, causes or events not within the control of Grantee shall
include without limitation acts of God, war, strikes, sabotage, riots or civil disturbances,
labor disputes, restraints imposed by order of a governmental agency or court,
explosions, acts of public enemies, and natural disasters such as floods, earthquakes,
landslides, and fires, but shall not include financial inability of the Grantee to perform or
25
327
failure of the Grantee to obtain any necessary permits or licenses from other
governmental agencies or the right to use the facilities of any public utility where such
failure is due solely to the acts or omissions of Grantee, or the failure of the Grantee to
secure supplies, services or equipment necessary for the installation, operation,
maintenance or repair of the Cable System where the Grantee has failed to exercise
reasonable diligence to secure such supplies, services or equipment.
SECTION 6 -48. ABANDONMENT OR REMOVAL OF FRANCHISE PROPERTY
6 -48.1. Abandonment or Removal
(a) If the Grantee discontinues the use of any of its property within the Public
Rights -of -Way for a continuous period of six (6) months, such property shall be deemed
to have been abandoned by Grantee. Any part of the Cable System that is parallel or
redundant to other parts of the System and is intended for use only when needed as a
backup for the System or a part thereof, shall not be deemed to have been abandoned
because of its lack of use.
(b) Grantor, upon such reasonable terms as Grantor may lawfully impose,
may give Grantee permission to abandon, without removing, any System facility or
equipment laid, directly constructed, operated or maintained under the Franchise.
Unless such permission is granted or unless otherwise provided in this Ordinance, the
Grantee shall remove all abandoned above - ground facilities and equipment upon
receipt of written notice from Grantor and shall restore to Grantor's satisfaction any
affected Public Right -of -Way. In removing its plant, structures and equipment, Grantee
shall refill, at its own expense, any excavation that shall be made by it and shall leave
all Public Rights -of -Way in as good condition as that prevailing prior to such removal
without materially interfering with any electrical or telephone cable or other utility wires,
poles, or attachments. Grantor shall have the right to inspect and approve the condition
of the Public Rights -of -Way, cables, wires, attachments and poles prior to and after
removal. The liability, indemnity and insurance provisions of this Ordinance and the
security fund as provided herein shall continue in full force and effect during the period
of removal and until full compliance by Grantee with the terms and conditions of this
Section 6 -48.1.
(c) Upon the approved abandonment of any Franchise property, the Grantee,
if required by the Grantor, shall submit to the Grantor an instrument, satisfactory in form
to the Grantor, transferring to the Grantor the ownership of the abandoned Franchise
property.
(d) At the expiration, without renewal or extension, of the term for which the
Franchise is granted, or upon its revocation, as provided herein, the Grantor shall have
the right to require Grantee to remove, at its own expense, all above - ground portions of
the Cable System from all streets and public ways within the Service Area within a
reasonable period of time, which shall not be more than one hundred eighty (180) days.
(e) Notwithstanding anything to the contrary set forth in this Ordinance, the
Grantee may abandon any underground Franchise property in place so long as it does
not materially interfere with the use of the Public Rights -of -Way in which such property
is located or with the use thereof by any public utility or other Franchise holder.
6 -48.2. Restoration by Grantor: Reimbursement of Costs
Upon written notice and upon the failure of the Grantee to commence, pursue or
complete any work to be done in any Public Right -of -Way required by law or by the
provisions of this Ordinance or the Franchise Agreement, within the time prescribed and
to the satisfaction of the Grantor, the Grantor may cause the work to be commenced
and /or completed. The Grantor shall provide to the Grantee an itemized work order
setting forth in detail the exact nature of the work completed and the supplies used in
such work. The Grantee shall pay to the Grantor the costs for such work no later than
thirty (30) days after receipt of the itemized work order.
26
328
6 -48.3. Extended Operation and Continuity of Services.
Upon expiration or revocation of the Franchise, the Grantor shall have the
discretion to permit Grantee to continue to operate the Cable System for an extended
period of time. Grantee shall continue to operate the System under the terms and
conditions of this Ordinance as of the effective date of the Franchise and the Franchise,
as existed immediately prior to said expiration or revocation, and to provide the regular
Subscriber service and any and all of the services that may be provided at that time. It
shall be the right of all Subscribers to continue to receive all available services provided
that financial and other obligations to Grantee are honored. The Grantee shall use
reasonable efforts to provide continuous, uninterrupted service to its Subscribers,
including operation of the System during transition periods following Franchise
expiration or termination.
6 -48.4. Receivership and Foreclosure
(a) At the option of the Grantor and subject to Applicable Law, a Franchise
granted hereunder may be revoked one hundred twenty (120) days after appointment
of a receiver(s) or trustee(s) to take over and conduct the business of Grantee, whether
in a receivership, reorganization, bankruptcy or other action or proceeding, unless:
(1) the receivership or trusteeship shall have been vacated within said
one hundred twenty (120) days; or
(2) such receivers or trustees within said one hundred twenty (120)
days shall have remedied all the defaults under the Franchise or provided a plan for the
remedy of such defaults which is satisfactory to the Grantor; or
(3) such receivers or trustees shall, within said one hundred twenty
(120) days, have executed an agreement duly approved by the court having jurisdiction
whereby such receivers or trustees assume and agree to be bound by each and every
term, provision and limitation of the Franchise.
(b) In the case of a foreclosure or other judicial sale of the Cable System, in
whole or in part, the Grantor may serve notice of revocation upon Grantee and the
successful bidder at such sale, and all rights and privileges of the Grantee hereunder
shall be revoked thirty (30) days after service of such notice, unless:
(1) Grantor shall have approved the transfer of the Franchise, in the
manner provided by law; and
(2) the successful bidder shall have covenanted and agreed with
Grantor to assume and be bound by all terms and conditions of the Franchise.
SECTION 6 -49. GRANTOR AND SUBSCRIBER RIGHTS
6 -49.1. Reservation of Grantor Rights
(a) In addition to any rights specifically reserved to the Grantor by this
Ordinance, the Grantor reserves to itself every right and power which is required to be
reserved by a provision of Applicable Law or under the Franchise.
(b) Any right or power in, or duty retained or imposed upon Grantor, or any
commission, officer, employee, department or board of Grantor; may be delegated by
Grantor, or to such other person or entity as Grantor may designate to act on its behalf.
6 -49.2. Waiver
(a) The Grantor shall have the right to waive any provision of the Franchise
imposing an obligation on Grantee, except those required by Applicable Law, if the
Grantor determines (1) that it is in the public interest to do so, or (2) that the
enforcement of such provision will impose an undue hardship on the Grantee or on the
Subscribers. To be effective, such waiver shall be evidenced by a statement in writing
329
signed by a duly authorized representative of the Grantor. Waiver of any provision in
one (1) instance shall not be deemed a waiver of such provision subsequent to such
instance nor be deemed a waiver of any other provision of the Franchise unless the
statement so recites.
(b) The Grantee shall not be excused from complying with any of the
requirements of this Ordinance or the Franchise Agreement by any failure of the
Grantor on any one or more occasions to require or seek compliance with any such
terms or conditions.
6 -49.3. Rights of Individuals
(a) Grantee shall not deny service, deny access, or otherwise discriminate
against Subscribers, channel users, or general citizens on the basis of race, color,
religion, national origin, age, sex, handicap, marital status or other protected classes.
Grantee shall comply at all times with all other Applicable Law relating to
nondiscrimination.
However, nothing in this Ordinance or the Franchise shall limit the right of the
Grantee to deny service to any household or individual who has a negative credit or
service history with the Grantee, which may include non - payment of bills or theft or
damage to Grantee's equipment, or who has threatened or assaulted employees of the
Grantee in the course of their employment. In cases of bad or negative credit, Grantee
may require the payment of a deposit.
(b) Grantee shall adhere to the applicable equal employment opportunity
requirements of Applicable Law, as now written or as amended from time to time.
(c) Without a lawful court order or applicable valid legal authority, neither
Grantee, nor any Person, agency, or entity shall, without the Subscriber's advance
written consent, tap, or arrange for the tapping, of any cable, line, signal input device, or
Subscriber outlet or receiver for any purpose except routine maintenance of the
System, detection of unauthorized service, polling with audience participation, or
audience viewing surveys to support advertising research regarding viewers where
individual viewing behavior cannot be identified.
(d) In the conduct of providing its Cable Services or in pursuit of any collateral
commercial enterprise resulting therefrom, Grantee shall take steps to prevent the
invasion of a Subscriber's or general citizen's right of privacy or other personal rights
through the use of the System as such rights are delineated or defined by Applicable
Law. The Grantee shall not without lawful court order or other applicable valid legal
authority utilize the System's interactive two -way equipment or capability, if such
equipment or capability exists, for unauthorized personal surveillance of any Subscriber
or general citizen.
(1) Except for its own use, or in connection with the provision of Cable
Services or for release of data to the Grantor, the Grantee shall not permit its system to
be used for data collection purposes, nor shall it otherwise collect data which would
reveal the commercial product or other preferences or opinions of an individual
Subscriber, members of their families, or their guests, licensees or employees, unless
the Grantee shall have received the prior written consent of such Subscriber which
written consent shall be maintained by Grantee in its files for at least three (3) years.
(2) In any event, the Grantee shall not disclose or permit the release or
sale of data on individual Subscribers or groups thereof, but may disclose or permit the
release or sale of aggregate data only.
(e) Grantee shall not disclose individual Subscriber preferences, viewing
habits, beliefs, philosophy, creeds, or religious beliefs to any third person, firm, agency,
governmental unit, or investigating agency without court authority or the prior written
consent of the Subscriber.
28
330
(1) Such written consent, if given, shall be limited to a period of time
not to exceed one (1) year, or a term agreed upon by the Grantee and the Subscriber.
(2) The Grantee shall not condition the delivery or receipt of Cable
Services to any Subscriber on any such consent.
(3) A Subscriber may revoke, without penalty or cost, any consent
previously given by delivering to the Grantee in writing a statement of the Subscriber's
intent to so revoke.
(f) The Grantee shall not disclose, or sell, or permit the disclosure or sale of
its Subscriber list without the prior written consent of each Subscriber on such list;
provided that Grantee may use its Subscriber list as necessary for the construction,
marketing, and maintenance of the Grantee's services and facilities authorized by a
Franchise, and the billing of Subscribers for Cable Services; and provided further, that
consistent with Applicable Law, Grantor may use Grantee's subscriber list for the
purpose of communication with Subscribers in connection with matters relating to the
operation, management, and maintenance of the Cable System.
(g) No cable line, wire amplifier, converter, or other piece of equipment
owned by Grantee shall be installed by Grantee in the Subscriber's premises, other
than in appropriate easements, without first securing any required consent. If a
Subscriber requests service, permission to install upon Subscriber's property shall be
deemed granted.
(h) In addition to the requirements above, Grantee shall comply with
Applicable Law regarding Subscriber privacy including, but not limited to, Section 631 of
the Cable Act (47 U.S.C. 551).
SECTION 6 -50. SEPARABILITY
If any provision of this Ordinance is held by any court or by any Federal or State
agency of competent jurisdiction, to be invalid as conflicting with any Applicable Law
now or hereafter in effect, or is held by such court or agency to be modified in any way
in order to conform to the requirements of Applicable Law, such provision shall be
considered a separate, distinct, and independent part of this Ordinance, and such
holding shall not affect the validity and enforceability of all other provisions hereof. In
the event that Applicable Law is subsequently repealed, rescinded, amended or
otherwise changed, so that the provision thereof which had previously been held invalid
or modified is no longer in conflict with Applicable Law, said provision shall thereupon
return to full force and effect and shall thereafter be binding on Grantor and Grantee,
provided that Grantor shall give Grantee thirty (30) days written notice of such change
before requiring compliance with said provision or such longer period of time as may be
reasonably required for Grantee to comply with such provision.
FIRST READ at a regular meeting of the City Council of said City held on the 28th
day of November, 2005, and finally adopted and order posted at a regular meeting held
on the 12th day of December, 2005.
ATTEST:
Clerk of the City
ypress
May
the City of Cypress
STATE OF CALIFORNIA )
COUNTY OF ORANGE )SS
I, JILL R. INGRAM , City Clerk of the City of Cypress, DO HEREBY CERTIFY that
the foregoing Ordinance was duly adopted at a regular meeting of the said City Council
held on the 12th day of December, 2005, by the following roll call vote:
AYES: 5 COUNCIL MEMBERS: McCoy, McGill, Seymore, Luebben and Sondhi
NOES: 0 COUNCIL MEMBERS: None
ABSENT: 0 COUNCIL MEMBERS: None
30
CLERK OF TIE C,i'Tlrfi OF CYPRESS
331