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HomeMy WebLinkAbout1178 - Community Antenna Television SystemsTHSsmec 8/15/66 ORDINANCE NO. 1178 AN ORDINANCE OF THE CITY OF NEWPORT BEACH AMENDING CERTAIN SECTIONS OF AND ADDING CERTAIN SECTIONS T0, CHAPTER 5.44 OF TITLE 5 OF THE NEWPORT BEACH MUNICIPAL • CODE RELATING TO COMMUNITY ANTENNA TELEVISION SYSTEMS The City Council of the City of Newport Beach does ordain as follows: SECTION 1. Section 5.44.010 of the Newport Beach Muni- cipal Code is amended to read: "5.44.010 Definitions. For the purpose of this chapter, the following terms, phrases, words and their derivations shall have the meaning given herein. When not inconsistent with the context, 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. The word 'shall' is always mandatory and not merely directory. (a) CITY. The term 'City' shall mean the City of Newport Beach in its present incorporated form or in any later recognized, consolidated, enlarged or reincorpo- rated form. (b) COUNCIL. The term 'Council' shall mean the present governing body of the City, or any future board constituting the legislative body of the City. (c) PERSON. The term 'person' shall mean any indi- vidual, firm, partnership, association, corporation, company or organization of any kind. (d) GRANTEE. The term 'grantee' shall mean the person, firm or corporation to whom or which a franchise under this chapter is granted by the Council, and the lawful successor or assignee of said person, firm or corporation. (e) COMMUNITY ANTENNA TELEVISION. The term 'Com- munity Antenna Television System' or 'CATV' system shall mean a system of antennae, coaxial cables, wave guides, poles, wires, underground conduits, manholes and other conductors, equipment or facilities designed, constructed or used for the purpose of providing television, radio or other service by cable or through its facilities as herein contemplated. CATV shall not mean or include the trans- mission of any special program or event for which a separ- ate and distinct charge is made to the subscriber in the manner commonly known and referred to as pay television. (f) SUBSCRIBERS. The term 'subscribers' shall mean any person or entity receiving for any purpose the CATV service of the grantee herein, (g) GROSS ANNUAL RECEIPTS. The term 'gross annual receipts' shall mean any and all compensation in the form of gross rental and /or service receipts;, including initial installation charges, received directly or indirectly from . subscribers or users in payment for CATV services received within the City. Gross annual receipts shall not include any taxes on services furnished by the grantee imposed directly on any subscriber or used by any city, state or other governmental unit and collected by the grantee for such governmental unit. (h) FRANCHISE AREA. The term 'franchise area' shall mean the territory within the City throughout which grantee shall be authorized to construct, maintain and operate its system and shall include any enlargements thereof and addi- tions thereto." SECTION 2. Section 5.44.030 of the Newport Beach Muni- cipal Code, is amended to read- "5.44.030 Uses Permitted. Any franchise granted pursuant to the provisions of this chapter shall authorize 2. and permit the grantee to engage in the business of operating The grantee shall have authority to trim trees upon and overhanging streets, alleys, sidewalks and public places of the City so as to prevent the branches of such trees from coming in contact with the wires and cables of grantee, all trimming to be done under the supervision and direction of the City and at the expense of grantee.t° SECTION 3. Section 5.44.035 is added to the Newport Beach Municipal Code to read; 3. and providing a CATV system in the City of Newport Beach and for that purpose to erect, install, construct, operate, re- pair, replace, reconstruct, maintain and retain in, on, over, under, upon, across and along any public highway, street, alley, public way or public place, such poles, wires, cable, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, attachments and other property as may be necessary and appurtenant to the CATV system; and, in ad- dition, so to use, operate and provide similar facilities on properties rented or leased from other persons, firms or corporations including, but not limited to, a public utility or other grantee franchised or permitted to do business in the City of Newport Beach. The grantee shall have the authority to promulgate such rules, regulations, terms and conditions governing the • conduct of its business as shall be reasonably necessary to enable it to exercise its rights and perform its obligations under the franchise, and to insure an uninterrupted service to each and all of its customers; provided, however, that such rules, regulations, terms and conditions shall not be in conflict with the provisions hereof or of the laws of the City of Newport Beach, the State of California or the United States of America. The grantee shall have authority to trim trees upon and overhanging streets, alleys, sidewalks and public places of the City so as to prevent the branches of such trees from coming in contact with the wires and cables of grantee, all trimming to be done under the supervision and direction of the City and at the expense of grantee.t° SECTION 3. Section 5.44.035 is added to the Newport Beach Municipal Code to read; 3. "5.44.035 Regulation of Rates and Service. (a) The City Council shall at all times and from time to time during the term of any franchise granted hereunder have the power • to and shall adopt and enforce, and grantee shall conform to, rules and regulations of the Council governing and establish- ing reasonable rules, regulations, and standards of perform- ance pertaining to the system of grantee. (b) At the time of the granting of any franchise here- under, the City Council shall establish or approve all rates and charges allowable to grantee, including but not limited to all such rates and charges for installation of equipment, service charges for all classifications of service, including additional connections at one location and any other rates or charges of grantee to subscribers; and no such rates or charges shall be changed at any time after the granting of a franchise, except by authority of the Council, and upon writ- ten request of the grantee; provided, that prior to author- izing the change of any rates or charges of grantee to sub- scribers, at any time after the granting of such franchise, the Council shall first pass its resolution of intention to do so, describing and stating.any.rates or charges to be changed, the reasons of the Council therefor, fixing a day, hour and place certain when and where any persons having any interest therein may appear before the Council and be heard and directing the City Clerk to publish said resolution at least once, within fifteen (15) days of the passage thereof. The City Clerk shall cause such resolution to be published in a newspaper of general circulation within the City, and the same shall be published and a copy thereof shall be mailed to any grantee hereunder at least ten (10) days prior to the 4. date specified for hearing thereon. At the time set for such hearing, or at any adjournment thereof, the Council shall 4. proceed to hear and pass on all presentations made before it, and the decision of the Council thereon shall be final and conclusive. If the Council shall find that the changing • of any rates or charges of grantee to subscribers will not be detrimental or injurious to the best interests and welfare of the subscribers and of the City, then the Council may, by resolution, authorize the change of any rates or charges of grantee to subscribers as shall be deemed reasonable by the Council in the premises; and such resolution shall there- upon become and shall be a part of any franchise granted hereunder and affected thereby." SECTION 4. Section 5.44.040 of the Newport Beach Muni- 5. cipal Code is amended to read: "5.44.040 Duration of Franchise. Any franchise, granted by the City Council pursuant to this chapter, shall be for a term of not less than ten (10) years nor more than • twenty (20) years following the date of acceptance of such franchise by the grantee or renewal thereof. Any such franchise may be terminated prior to its date of expiration by the City Council in the event that said Council shall have found, after thirty (30) days' notice of proposed termination and public hearing, that (a) the grantee has failed to comply with any provision of this chapter, or has, by act or omission, violated any term or condition of its franchise or permit issued under this chapter; or (b) any provision of this chapter has become invalid or unenforce- able, and the Council further finds that such provision constitutes a consideration material to the grant of said franchise; or (c) the City acquires the CATV property of grantee." SECTION 5. Section 5.44.050 of the Newport Beach Muni - cipal.Code is amended to read 5. "5.44.050 Franchise Payments. (a) ACCEPTANCE FEE. The grantee of any franchise granted pursuant to this chapter shall pay to the City upon acceptance of such • franchise a fee certain in an amount to be determined or approved by the City Council. (b) ANNUAL FRANCHISE FEE. The grantee of any fran- chise under this chapter shall pay annually to the City during the life of such franchise a fixed percentage of the gross receipts of the grantee derived from subscrib- ers within the City. Such percentage shall be at least 37. and shall be established by the City Council for the life of the franchise by specifying such percentage in the ordinance granting the franchise. The grantee shall file with the City, within thirty (30) days after the expiration of any calendar year during which such franchise is in force, a financial statement is prepared by a certified public accountant showing in detail the gross annual receipts, as defined herein, of grantee, its successors and assigns, during the preceding calendar year. It shall be the duty of grantee to pay to the City, within ten (10) days after the time for filing such state- ment, any unpaid balance for the calendar year covered by such statement. In the event that the above payment is not received by the City within the specified time, grantee shall pay to the City a penalty of two percent (2 %) per month on the unpaid balance in addition thereto. In any year or portion thereof commencing at the con- clusion of the first year that service is provided during which payments to grantee for installation and services Twenty -five Dollars ($25) per month. 6. amount to less than Fifteen Hundred Dollars ($1500) per month, grantee shall pay to the City a minimum amount of Twenty -five Dollars ($25) per month. 6. The right is reserved to the City of audit and recompu- tation of any and all amounts paid under this chapter, and no acceptance of any payment shall be construed as a release • or as an accord and satisfaction of any claim the City may have for further or additional sums payable under this chapter or for the performance of any obligation thereunder. In the event of any holding over after expiration or other termination of said franchise, without the consent of the City, the grantee shall pay to the City damages of not less than twenty percent (20 %) of its gross profits during said period." SECTION 6. Section 5.44.080 of the Newport Beach Muni- cipal Code is amended to read: "5.44.080 Permits, Installation and Service. (a) Within thirty (30) days after acceptance of any franchise the grantee shall proceed with due diligence to obtain all • necessary permits and authorizations which are required in the conduct of its business, including but not limited to any utility joint use attachment agreements, microwave carrier licenses, and any other permits, licenses, and authorizations to be granted by duly constituted regula- tory agencies having jurisdiction over the operation of CATV systems, or their associated microwave transmission facilities. (b) Within ninety (90) days after obtaining all necessary permits, licenses and authorizations, grantee shall commence construction and installation of the CATV system. (c) Within one hundred eighty (180) days after the commencement of construction and installation of the system, grantee shall proceed to render service to sub- scribers, and the completion of the construction and 7. installation shall be pursued with reasonable diligence to the end that service shall be made available to all poten- tial subscribers throughout the entire franchise area • within such time and upon such conditions as shall be de- termined by the City Council. (d) Failure to do any of the foregoing shall be grounds for termination of the franchise. (e) The City Manager may extend.the time for obtaining necessary permits and authorizations and for beginning con- struction and installation for additional periods in the event the grantee, acting in good faith, experiences delays by reason of circumstances beyond his control.01 SECTION 7. Section 5.44.120 of the Newport Beach Muni- cipal Code is amended to read: °'5.44.120 Surety Bonds. (a) BOND FOR PROTECTION OF CITY. The grantee shall, concurrently with the filing of • an acceptance of award of the franchise granted under this chapter, file with the City Clerk and at all times there- after maintain in full force and effect for the term of such franchise or renewal thereof, at grantee's sole expense, a corporate surety bond in a company approved by, and in a form to be approved by, the City Attorney, in the amount of one hundred thousand dollars ($100,000), renew- able annually, and conditioned upon the faithful perform- ance of grantee., and upon the further condition that in the event grantee shall fail to comply with any one or more of the provisions of this chapter or of the franchise issued to the grantee hereunder, there shall be recoverable jointly and severally from the principal and surety of such bond any damages or loss suffered by the City as a result thereof, • including the full amount of any compensation, indemnifica- tion, or cost of removal or abandonment of any property of up the grantee as prescribed hereby which may be in default, plus a reasonable allowance for attorney's fees and costs, up to the full amount of the bond, said condition to be a • continuing obligation for the duration of such franchise or any renewal thereof, and thereafter until the grantee has liquidated all of its obligations with the City that may have arisen from the acceptance of said franchise by the grantee or from its exercise of any privilege therein granted. The bond shall provide that thirty (30) days' prior written notice of intention not to renew, cancella- tion, or material change, be given to the City. Neither the provisions of this section, nor any bond accepted by the City pursuant thereto, nor any damage recovered by the City thereunder, shall be construed to excuse faithful performance by the grantee or limit the liability of the grantee under any franchise issued here- under or for damages, either to the full amount of the bond or otherwise. (b) BOND FOR PROTECTION OF SUBSCRIBERS. The grantee shall, concurrently with the filing of an acceptance of a franchise granted under this chapter, file with the City Clerk and shall thereafter during the entire term of such franchise maintain in full force and effect a corporate surety bond or other adequate surety agreement in a form approved by the City Attorney in the amount of fifty thou- sand dollars ($50,000), conditioned that in the event such grantee shall fail to comply with any provision of this chapter, term or condition of its franchise, or any pro- vision of any agreement or undertaking made between grantee and any subscriber, then there shall be recoverable jointly • and severally from the principal and surety any damages or costs suffered or incurred by any subscriber as a result 9. thereof, including reasonable attorney's fees and costs of any action or proceeding; and said condition shall be a continuing obligation during the entire term of such franchise and thereafter until grantee shall have satisfied in full any and all obligations to any subscriber which arise out of or pertain to any such agreement or undertaking.1/ SECTION 8. Section 5.44.150 of the Newport Beach Muni- cipal Code is amended to read: "5.44.150 Operational Standards. The CATV system shall be installed and maintained in accordance with the highest and best accepted standards of the industry to the effect that subscribers shall receive the highest possible service. The following minimum standards shall be required: (a) The system shall be installed using all band equip- ment capable of passing the entire VHF and FM spectrum, and it shall have the further capability of converting UHF for • distribution to subscribers on the VHF band. (b) The system, as installed, shall be capable of pass- ing standard color TV signals without the introduction of material degradation on color fidelity and intelligence. (c) The system and all equipment shall be designed and rated for 24 -hour per day continuous operation. (d) The system shall provide a signal level of 2000 microvolts at the input terminals of each TV receiver. (e) The system signal -to -noise rate shall be not less than 46 decibels. (f) Hum modulation of the picture signal shall be less than five percent (5 %). (g) The system shall use components having a VSWR of 1.4 or less." • 10. SECTION 9, Section 5.44,160 of the Newport Beach Muni- 11. cipal Code is amended to read: °'5.44.160 Miscellaneous Provisions. (a) All matters herein provided to be filed with the City shall be filed with the City Clerk. (b) The rate schedule for any connection fee or monthly service charge, or change thereto, to subscribers must have written approval of the City Council. (c) The grantee must pay to the City a sum of money sufficient to reimburse it for expenses incurred by it in publishing legal notice and ordinances in connection with the granting of a franchise pursuant to the provisions of this chapter; such payment to be made within thirty (30) days after the City shall furnish such grantee with a written statement of such expense. (d) The grantee shall maintain a toll free telephone number within the City of Newport Beach so that CATV main- • tenance service shall be promptly available to subscribers. (e) No person, firm or corporation in the existing service area of grantee shall be arbitrarily refused ser- vice; provided, however, that grantee shall not be required to provide service to any subscriber who Zoes not pay the applicable connection fee or the applicable monthly service charge. (f) The City Council may, upon finding that extraor- dinary circumstances applying to the land, buildings or CATV system do exist, waive any or all of the requirements of this chapter. (g) Any CATV system existing in the City prior to the adoption of this chapter shall, within sixty (60) days • after the effective date of this chapter make application for a franchise. Said system may continue its existing 11. operations, but may not enlarge or expand same without first securing a franchise from the City. (h) Grantee shall, without charge, provide all sub- scriber services of its system to all public school build- ings, City police and fire stations, City recreation centers and such other buildings owned or controlled by the City as the City Manager shall designate. Such service shall consist of a drop connection to the exterior of the building or property involved and a connection to the interior of the building or property to a television set if desired." SECTION 10. Section 5.44.165 is added to the Newport Beach Municipal Code to read: "5.44.165 Adoption of Rules and Regulations by the City Council. (a) POWER TO ADOPT RULES AND REGULATIONS. The City Council is authorized to adopt rules and regulations • consistent with the provisions of this chapter governing the operation of CATV systems in the City and such rules and regulations shall apply to and shall govern the operations of the grantee of any franchise granted pursuant to the pro- visions of this chapter. (b) PROCEDURE FOR ADOPTING RULES AND REGULATIONS. The City Council may adopt rules or regulations or amend, modify, delete or otherwise change such rules and regulations previously adopted in the following manner: 1. The City Council shall pass a resolution of intention describing the rules or regulations to be adopted, amended, modified, deleted or otherwise changed and set a day, hour and place for public hearing. Such • resolution shall direct the City Clerk to publish the same at least once within fifteen (15) days of the passage thereof. 12. r1 U 0 2. The City Clerk shall cause such resolution to be published at least once in the official newspaper of the City and shall cause a copy of same to be mailed or delivered to any grantee not less than ten (10) days prior to the time fixed for hearing thereon. 3. At the time for public hearing or at any ad- journment thereof, the City Council shall proceed to hear and pass upon such evidence, comments and objec- tions as may be presented. Thereafter, the City Council, by its resolution, may adopt, amend, modify, delete, or otherwise change said rules and regulations." SECTION 11. Section 5.44.172 is added to the Newport Beach Municipal Code to read: "5.44.172 Application Fee. Each application shall be accompanied by an application fee in the sum of One Thousand dollars ($_1000.00 ), which shall be used by the City to cover the costs of studying, investi- gating and processing such application." SECTION 12. Section 5.44.173 is added to the Newport Beach Municipal Code to read: "5.44.173 Effect of Annexations. (a) In the event any new territory shall be annexed to the City which is contiguous to only one franchise area in the City, such new territory shall become, by operation of law, a part of said franchise area immediately upon the completion of such annexation. (b) In the event any new territory shall become an- nexed to the City which is contiguous to more than one franchise area in the City or is not contiguous to any franchise area, then the City Council shall determine which grantee or grantees shall serve such new territory. 13. (c) Whenever any portion of unincorporated territory, which is covered by an existing franchise granted by the County of Orange, is annexed to the City, the rights re- served under said franchise to the County of Orange or to any officer thereof shall inure to the benefit of the City of Newport Beach.B1 SECTION 13. Section 5.44.175 is added to the Newport Beach Municipal Code to read; 015.44.175 Effect of Preemption. In the event the Federal Communications Commission or the Public Utilities Commission of the State of California or any other federal or state body or agency shall now or hereafter exercise any paramount jurisdiction over the subject matter of any franchise hereunder, then to the extent such jurisdiction shall preempt or preclude the exercise of like jurisdiction by the City, the jurisdiction of the City shall, to the • extent so preempted or precluded, cease and no longer exist; provided, however, that the preemption or preclusion of the exercise by the City of any of its police power shall not diminish, impair, alter, or affect any contractual benefit to the City nor any contractual obligation of the grantee under any franchise issued hereunder; and in this respect, any and all minimum standards governing the operation of grantee and any and all maximum rates, ratios, and charges specified herein or in any franchise issued hereunder, existing now and at any time in the future, including such time as any paramount jurisdiction shall preempt or pre- clude that of the City, and any and all rights, powers, privileges, and authorities of the City to determine, es- tablish, or fix any of the same, are each and all hereby • declared by the City and by any grantee accepting any 14. le franchise hereunder to be contractual in nature and to be for the benefit of the City and all subscribers situated therein, and the agreement of grantee to accept and conform • to such standards, rates, ratios, and charges is hereby declared by the City and by any grantee accepting any fran- chise hereunder to be of the most material and essential consideration for the granting of such franchise, in the absence of which, in whole or in part, the City would not grant such franchise." SECTION 14. This ordinance shall be published once in the official newspaper of the City, and the same shall be effec- tive 30 days after the date of its adoption. This ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach held on the 22d day of August , 1966, and was adopted on the 12th day of September , 1966, by the following vote, to wit: • ATTEST: 11 AYES, COUNCILMEN: Rogers, Parsons, Marshall, Gruber, Cook, Shelton NOES, COUNCILMEN: None ABSENT COUNCILMEN: For git Acting City Clerk 15. Mayor