HomeMy WebLinkAbout2004-8 - Relating to Franchises for Cable Communications Systems.ORDINANCE NO. 2004-8
AN ORDINANCE OF THE CITY OF NEWPORT BEACH RELATING TO
FRANCHISES FOR CABLE COMMUNICATIONS SYSTEMS.
THE CITY COUNCIL OF NEWPORT BEACH DOES ORDAIN AS FOLLOWS:
Section 1, Chapter 5.44 of the Newport Beach Municipal Code entitled "Community
Antenna Television" is hereby repealed.
Section 2. Chapter 5.44 of the Newport Beach Municipal Code entitled "Cable
Communications Franchises" is hereby added and shall read as follows:
6Y h167171
Section 5.44.010
Section 5.44.020
Section 5.44.030
Section 5.44.040
Section 5.44.050
Section 5.44.060
Section 5.44.070
Section 5.44.080
Section 5.44.090
Section 5.44.100
Section 5.44.110
Section 5.44.120
Section 5.44.130
Section 5.44.135
Section 5.44.140
Section 5.44.010
Chapter 5.44
CABLE COMMUNICATIONS FRANCHISES
Title.
Definitions.
Grant of Franchise.
Rights Reserved to the City.
Rights of Subscribers.
Finance.
Services.
Design and Construction.
Operations And Maintenance.
Violations.
Termination and Related Rights.
Franchise Applications.
Records; Reports; Right to Inspect and Audit; Experts.
Indemnity and Liability Insurance
Miscellaneous Provisions.
Title.
This Chapter is known and may be cited as the "Cable Communications Franchises
Chapter."
Section 5.44.020 Definitions.
a. For the purposes of this Chapter, the following words, terms, phrases, and their
derivations have the meanings given herein. Terms defined in the Cable Act shall have the
same meanings herein unless expressly defined otherwise. When not inconsistent with the
context, words used in the present tense include the future tense, and words in the singular
number include the plural number.
"Affiliated Person" or "Affiliates" means each Person who falls into one or more of the
following categories: (i) each Person having, directly or indirectly, a Controlling Interest in
Company; (ii) each Person in which Company has, directly or indirectly, a Controlling Interest;
(iii) each officer, director, general partner, limited partner holding an interest of five percent (5 %)
or more in a joint venture, or joint venture partner in Company's Cable System in the City; and
(iv) each Person, directly or indirectly, controlling, controlled by, or under common Control with
Company; provided that "Affiliated Person" excludes the City, any limited partner holding an
interest of less than five percent (5 %) in a Company, or any creditor of Company, solely by
virtue of its status as a 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 Company.
"Basic Service" or "Basic Cable Service" or "Basic Service Tier" means the lowest
Service Tier which includes the retransmission of local television Broadcast Signals and Public,
Educational, and Governmental Access Channels.
"Broadcast Signal" means a signal transmitted over the air to a geographically dispersed
public audience and received by a Cable System.
"1984 Cable Act" means the Cable Communications Policy Act of 1984.
1992 Cable Act" means the Cable Television Subscriber Protection and Competition Act
of 1992.
"Cable Act" means the Cable Communications Policy Act of 1984, as amended by the
Cable Television Subscriber Protection and Competition Act of 1992 and by the
Telecommunications Act of 1996.
"Cable Operator" means any Person or group of Persons (i) who provides Cable Service
over a Cable System in the City and, directly or through one or more Affiliates, owns a significant
interest in that Cable System; or (ii) who otherwise controls or is responsible for, through any
arrangement, the management and operation of a Cable System in the City.
"Cable Review Board" shall mean an entity formed by resolution of the City that reviews
and hears issues relating to Cable Service, a Cable Franchise, or a Company's operations and
maintenance of Cable Services.
"Cable Service' or "Service" means (i) the one -way transmission to Subscribers of video
programming or other programming service; and (ii) subscriber interaction which is required for
the selection of or use of video programming or other programming service.
"Cable System" or "Cable Communications 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 the City; but this term does not include: (i) a
facility that serves only to retransmit the television signals of one or more television broadcast
stations; (ii) a facility that serves Subscribers without using any public right -of -way; (iii) a facility
of a common carrier which is subject, in whole or in part, to the provisions of Title II of the
Communications Act of 1934 (47 U.S.C. §201 et seq.), except that the facility shall be
considered a Cable System (other than for purposes of section 621(c) of the Cable Act) to the
extent the facility is used in the transmission of video programming directly to Subscribers,
unless the extent of the use is solely to provide interactive on- demand services; (iv) an open
video system that complies with section 653 of the Cable Act; or (v) any facilities of any electric
utility used solely for operating its electric utility systems.
-2-
"Channel" means a portion of the electromagnetic frequency spectrum which is used in a
cable system and which is capable of delivering a television channel (as television channel is
defined by the FCC by regulation).
"City" means the City of Newport Beach, California, acting by and through its City
Council, or a representative as the governing body may designate to act on cable matters on its
behalf.
"Company" means the Person granted a Franchise to install, operate, maintain, or
reconstruct a Cable System and the lawful successors, transferees, or assignees of that Person.
"Company Manager" means an employee of the Company who is designed by the
Company in writing to the City to be the contact person for Company in accordance with the
provisions of this Chapter.
"Complaint" means a dispute in which a Subscriber notifies Company of an outage or
degradation in picture quality, billing or other issue pertaining to the Subscriber's Cable Service
which is not corrected during the initial telephone or service call.
"Control" or "Controlling Interest" means actual working control in whatever manner
exercised, including, without limitation, working control through ownership, management, debt
instruments, or negative control, as the case may be, of the Cable System or a Company. A
rebuttable presumption of the existence of Control or a Controlling Interest shall arise from the
beneficial ownership, directly or indirectly, by any Person or group of Persons acting in concert
(other than underwriters during the period in which they are offering securities to the public) of
twenty -five percent (25 %) or more of any Person (which Person or group of Persons is referred
to as "Controlling Person "), or being a party to a management contract to manage the system, or
any material portion thereof, in lieu of the Company.
"Converter" or "Terminal" means a device located at a Subscriber's premises that
converts signals from one frequency to another or otherwise processes signals for use by
Subscribers.
"Director" means the Director of the City's Department of Public Works or his or her
designee.
"Drop" means the cable connecting the Cable System's plant to equipment at the
Subscriber's premises.
"Facilities" or "Facility" shall have the same meaning in this Chapter as these terms have
in Chapter 13.20 of the Newport Beach Municipal Code.
"FCC" means the Federal Communications Commission or its designated
representatives.
"Franchise" means a written legal undertaking or action of the City which authorizes a
specific Person to use the City's streets and public ways for the purpose of installing, operating,
maintaining, or reconstructing a Cable System to provide Cable Service.
"Gross Annual Revenue" or "Gross Annual Receipts" or "Gross Receipts" means all
revenue, as determined in accordance with Generally Accepted Accounting Principles, which is
received, directly or indirectly, by the Company and by each Affiliated Person from or in
-3-
connection with the distribution of any Cable Service, and any other Service which may, under
now or then applicable federal law, be included in the Cable Act definition for the purpose of
calculating and collecting the maximum allowable franchise fee for operation of the System,
whether or not authorized by any Franchise, including, without limitation, leased or access
channel revenues and programming fees of any kind, received, directly or indirectly, from or in
connection with the distribution of any Cable Service. It is intended that all revenue collected by
the Company, and by each Affiliated Person, from the provision of Cable Service over the
System, whether or not authorized by the Franchise, be included in this definition. Gross Annual
Revenue also specifically includes: (i) the fair market value of any non- monetary (i.e., barter)
transactions between Company and any Person, other than an Affiliated Person, but not less
than the customary prices paid in connection with equivalent transactions; (ii) the fair market
value of any non - monetary (i.e., barter) transaction between Company and any Affiliated
Persons, but not less than the customary prices paid in connection with equivalent transactions
conducted with Persons who are not Affiliated Persons; (iii) any revenues generated from the
provision of Internet services and /or broadband services which utilize the Cable System for
delivery and must not be excluded pursuant to applicable law; and (iv) any revenue received, as
reasonably determined from time to time by the City, through any means which is intended to
have the effect of avoiding the payment of compensation that would otherwise be paid to the
City for the Franchise granted. Gross Annual Revenue also includes any bad debts recovered.
Gross Annual Revenue also includes all (100 %) advertising revenue (without exclusions for any
commissions, fees, or other costs incurred in securing the revenue) which is received directly or
indirectly by the Company, any Affiliated Person, or any other Person from or in connection with
the distribution of any Service over the System or the provision of any Service - related activity in
connection with the System, or allocable thereto based upon subscriber counts. Gross Annual
Revenue does not include: (i) the revenue of any Person to the extent that the revenue is also
included in the Gross Annual Revenue of the Company; (ii) taxes imposed by law on
Subscribers which the Company is obligated to collect; and (iii) amounts which must be
excluded pursuant to applicable law.
"Pay Cable," 'Pay Service," 'Premium- Service" or 'Pay Television" means programming
choices (such as movie channels, pay - per -view, video on demand) offered to Subscribers on a
per - Channel, per - program or per -event basis.
'PEG Channel' means collectively, the channel capacity dedicated to non - commercial
public, education or government access programming.
"Person" means any person, corporation, partnership, proprietorship, individual, or
organization authorized to do business in the State of California.
"Plant" means the transmitting medium and related equipment which transmits signals
between the Headend and Subscribers, including Drops.
"Public Right -of -Way" or "Right of Way" shall have the same meaning in this Chapter as
the term or terms have in Chapter 13.20 of the Newport Beach Municipal Code.
"Residential Dwelling Unit" or 'Dwelling Unit' means a home, mobile home,
condominium, apartment, cooperative unit, and any other individual dwelling unit.
"Service Area" or "Franchise Service Area" means the entirety of the City of Newport
Beach, or as further defined in the Franchise.
"Service Interruption" means the loss of picture or sound on one or more cable channels.
-4-
"Service Tier' or "Tier' means a category of Cable Service or other Services provided by
a Cable Operator and for which a separate rate is charged by the Cable Operator, other than per
channel or per event programming or legitimate packages of per channel or per event
programming.
"Subscriber' means any resident, business, or other Person that lawfully subscribes to
and receives, a Cable Service provided by the Company by means of or in connection with its
Cable System.
"Telecommunications Act" means the Telecommunications Act of 1996
"Territory" shall mean land within the City's boundaries at the time of this Chapter's
adoption and, if later annexed or reorganized into the City's boundaries, land added to the City
at the time of annexation or reorganization.
"Unit." means a discrete place where System Services are used, such as a residence,
apartment, office, store, etc.
b. Terms Not Defined. Words, terms, or phrases not defined herein shall first have the
meaning as defined in the Cable Act, and then the special meanings or connotations used in
any industry, business, trade, or profession where they commonly carry special meanings. If
those special meanings are not common, they will have the standard definitions as set forth in
commonly used and accepted dictionaries of the English language.
Section 5.44.030 Grant of Franchise.
a. Authority to Grant Franchises. Pursuant to the Newport Beach City Charter
(commencing with Section 1300), the City may grant a Franchise to provide Cable Service to
any Person who offers to provide a System pursuant to this Chapter.
b. Form. A Franchise may, at City's sole option, take the form of an ordinance, agreement,
license, permit, contract, resolution, or any other form elected by City.
c. Grants Not Required. Consistent with applicable state and federal law, no provision of
this Chapter requires the granting of a Franchise when, in the opinion of the City, it is in the
public interest not to do so.
d. Franchise Purpose. The purpose of a Franchise is to identify and authorize the
operation of a Cable Communications System by a specific Company, and to identify and
specify those terms, conditions, definitions, itemizations, specifications and other particulars of
the agreement between the City and a Company. In so doing, a Franchise may clarify, extend,
and interpret the provisions of this Chapter. Where a Franchise and this Chapter conflict, both
shall be liberally interpreted to achieve a common meaning or requirement. In the event this is
not possible within reasonable limits, the Franchise shall prevail.
e. Compliance with Law. Neither this Chapter nor a Franchise granted under it relieves a
Company of any requirement of City, or of any ordinance, rule, regulation, or specification of City
now or hereafter in effect pursuant to City's police power, including, but not limited to, the
obtaining of a business license, and the payment of all permit and inspection fees required from
time to time by the City.
-5-
f. Franchise Non - Exclusive. City may, at its option, grant one or more Franchises to
construct, operate, maintain, and reconstruct a System. These Franchises shall constitute both
a privilege and an obligation to provide the System and Cable Services required by this Chapter
and the Franchise.
g. Duration. The term of any Franchise, and all rights, privileges, obligations and
restrictions pertaining thereto, shall be specified in the Franchise. Pursuant to Section 1302 of
the City Charter, in no event shall the term of any Franchise exceed 25 years. The effective
date of any Franchise shall be as specified in the Franchise.
h. Use of Public Rights -of -Way. Pursuant to Chapter 13.20 of the Newport Beach
Municipal Code and for the purposes of operating and maintaining a System in the franchised
Service Area, a Company may place and maintain within the Public Rights -of -Way the property
and equipment that conforms to the laws and standards of the City and as are necessary and
appurtenant to the operation of the Cable Communications System. Prior to construction or
alteration of the Plant in Public Rights -of -Way, a Company shall comply with Chapter 13.20.
i. Use of Other Utilities, Any Person who provides a System or Services as defined herein
shall be deemed a Company and must obtain a Franchise. If a Company uses distribution
channels furnished by any telephone company, other public utility, or any other entity which are
functionally equivalent to those used by a Cable Operator, the Company shall be required to
comply with all of the provisions of this Chapter.
j. Restrictions against Transfers. Unless prohibited by federal law, neither the franchise
nor any rights or obligations of the Company in or pursuant to the franchise, or the System shall
be transferred in part or as a whole, by assignment, trust, mortgage, lease, sublease, pledge or
other hypothecation, and shall not be sold, transferred, leased, assigned, or disposed of in part
or as a whole, either by forced sale, merger, consolidation, or otherwise, nor shall title thereto,
either legal or equitable, or any right or interest therein, pass to or vest in any Person, nor shall a
transfer of Control of the Company or the System occur, either by act of the Company, by
operation of law or otherwise, in each case without the prior written consent of the City, which
consent shall not be unreasonably withheld, and which shall be expressed by Resolution and
then only under conditions as may be therein prescribed.
k. Effect of Unauthorized Action.
1. The taking of any action described in paragraph Q) without the prior consent of the
City shall:
i. Be deemed a material breach of Franchise; and
Among other remedies available to the City, be subject to a liquidated damages
assessment, which assessment shall be up to $5,000.00 a day until the taking of
an action described in the foregoing paragraph Q) is approved, or if not approved,
until the prior ownership, Control or other status quo ante is restored to a
condition satisfactory to the City. The amount of the assessment shall be
determined by the City.
2. If the City denies its consent to any action and the action has nevertheless been
effected, the Council may revoke the Franchise unless the ownership of the
Franchise and /or System or Control of the Company, the System or the Franchise is
-6-
promptly restored to its status prior to the unauthorized action or to a status
acceptable to the City.
3. The grant or waiver of any one or more consents shall not render unnecessary any
subsequent consent or consents, nor shall the grant of any consent constitute a
waiver of any other rights of the City.
Additional Restrictions.
1. The Company shall not enter into any management contract or other arrangement for
the management of the System, or sell or otherwise transfer the System, or any
material portion thereof, with or without the Franchise, without the prior written
consent of the City.
2. Any use by the Company of its own or an existing MAN, SMATV, MDS, DBS, or
other system in any structure located in the Service Area for the distribution of any
Service which would otherwise be distributed over the System, shall not relieve the
Company of its obligation to construct, operate, and maintain the System in the
structure pursuant to this Chapter and applicable law.
m. Approval Procedure.
The Company shall promptly notify the City of any action or proposed action requiring
consent of the City pursuant to this Section. The Company shall submit to the City
an original and four copies, unless otherwise directed, of its petition on FCC Form
394, requesting consent, which petition shall fully describe the action or proposed
action and clearly state the basis on which the petition should be approved. The
petition shall also contain all reasonably appropriate documentation. The 120 -day
period to review a transfer request under Section 617 of the Cable Act shall not
commence until all of the information required by FCC Form 394, any applicable
State law, the Franchise and this Chapter is submitted to the City, including but not
limited to:
Name and address of the proposed transferee and identification of the
ownership and control of the transferee, including: the names and addresses
of the ten (10) largest holders of an ownership interest in the transferee and its
cable affiliates and all persons with twenty (20 %) percent or more ownership
interest in the transferee and its cable system; the Persons who Control the
transferee; all officers and directors of the transferee and its cable affiliates;
and any other Cable System ownership interest or each named Person;
ii. A demonstration of the transferee's technical ability and legal qualifications to
construct, maintain, upgrade and operate the System, including identification of
key personnel;
iii. The transferee must show that it, as well as any person which Controls the
transferee, has not, at any time during the ten (10) years preceding the
submission of the petition, been convicted of any act or omission of character
that the transferee cannot be relied upon to deal truthfully with the City and the
Subscribers of the System, or to substantially comply with its lawful obligations
under applicable law;
-7-
iv. The transferee must certify that no elected official of the City holds an interest,
other than shares in a publicly traded company, in the transferee or an
Affiliated Person of the transferee;
Current financial statements showing the financial condition of the System as
of the date of the petition. If a Company does not maintain financial records at
the System level, then the Company may provide financial statements of the
smallest reporting entity which includes the System;
vi. A statement prepared by a certified public accountant or responsible official of
the transferee regarding the transferee's or assignee's financial ability to
Construct, upgrade, maintain and operate the System;
vii. A description of the transferee's prior experience in Cable System ownership,
construction and operation and identification of communities in which the
transferee or assignee or entities under common Control with the transferee
have a cable franchise or license;
viii. A description of the transferee's plans for meeting any System obligations
under the Franchise, including, but not limited to, any upgrade obligations,
upgrade completion schedules, channel capacity requirements, technical
design requirements, and performance characteristics;
ix. An affidavit or declaration of the transferee or authorized officer certifying the
truth and accuracy of the information in the petition or other written request,
acknowledging the enforceability of the commitments of the petition or other
written request, and certifying that the proposal meets all federal and state law
requirements; and
X. A summary of the plans and commitments of the transferee to remedy specific
and known defaults and violations, if any, in the operation of the System under
the Franchise.
2. At any time during the review process, the City reserves the right to require additional
supporting documentation from the Company or any other Person involved in the
action or proposed action. The Company shall provide all reasonably requested
assistance to the City in connection with any inquiry and, as appropriate, shall use its
best efforts to secure the cooperation and assistance of all other Persons involved in
the action.
n. Conditions. As a condition to the granting of any consent required by this Section, the
City may require that the transferee execute an agreement, in a form and containing reasonable
conditions as may be required by the City, specifying that the transferee assumes and agrees to
be bound by all applicable provisions of the Franchise. The execution of the agreement by the
transferee shall in no way relieve the Company, or any other transferor involved in any the
action, of its obligations pursuant to the Franchise during its tenure as the franchisee up to and
including the date of execution of the Agreement without the consent of the City.
o. Reimbursement of Processing and Review Costs. To the extent not prohibited by
applicable law, a Company shall reimburse the City for the City's reasonable processing and
review expenses in connection with a transfer of the Franchise or a change in Control of the
Franchise, including without limitation, costs of administrative review, financial, legal, and
10
technical evaluation of the proposed transferee, costs of consultants (including technical and
legal experts), notice and publication costs, and document preparation expenses. A reasonable
deposit in an amount determined by the City may be required by the City. In addition, prior to
any transfer or change in Control, a Company shall reimburse the City for all of the City's
expenses in connection with evaluating or negotiating a renewal of a Company's franchise,
whether or not the renewal was ever finalized or granted. The City may send a Company an
itemized description of all charges, and that Company shall pay the amount within forty -five (45)
days after the receipt of the description.
Section 5.44.040 Rights Reserved by the City.
a. Reservation. The grant of the Franchise does not limit the rights of City under state law
with respect to its power of eminent domain.
b. Non - waiver or Bar. Neither the granting of any Franchise, nor any provisions of this
Chapter, shall constitute or be construed as a waiver or bar to the exercise of any governmental
right or power by City.
c. Delegation of Powers. Any right or power in, or duty retained by or imposed upon City,
or any commission, officer, employee, department, or board of City, may be delegated by City to
any officer, employee, department or board of City, or to an other person or entity as City may
designate to act on its behalf.
d. Right of Inspection of Construction. Pursuant to Chapter 13.20, the City shall have the
right to inspect and approve all construction, installation, or other physical work performed by
Company in the Public Rights -of -Way and on private property consistent with standards
approved by the City.
e. Right to Require Removal and Repair of Property. Pursuant to Chapter 13.20 and
consistent with applicable law, upon the lawful revocation, expiration, or termination of the
Franchise, the City shall have the right to require a Company to remove, at Company's expense,
all portions of its System and any other property from all streets and public rights -of -way within
the Franchise Service Area and to require the repair of any public facility, right -of -way, or
property damaged during the removal process within a reasonable period of time.
f. Right of Intervention. The City shall have the right of intervention in any suit, proceeding
or other judicial or administrative proceeding in which the City has any material interest, and to
which a Company is party.
g. Place of Inspection. The City shall have the right to inspect Company's local premises,
and to request copies of all relevant information that is reasonably necessary for the exercise of
City's regulatory authority, upon reasonable notice at any time during normal business hours.
Any Company records kept at another place shall, within twenty (20) days of City's request, be
made available to City for City's inspection and copying. All reports and records required
pursuant to this Chapter shall be furnished at the sole expense of Company, except as
otherwise provided in this Chapter or the Franchise.
h. Printed Messages on Bills. The City shall have the right to limit printed messages on
subscriber bills to information applicable only to Subscribers within the Franchise Area.
-9-
Section 5.44.050 Rights of Subscribers.
a. Discriminatory Practices Prohibited. A Company shall not deny Cable Service or
otherwise discriminate against Subscribers or others on the basis of race, color, religion,
national origin, sex, age, disability, or characteristics of other protected classes.
b. Tapping and Monitoring. A Company shall not tap or monitor, or permit any other person
controlled by Company to tap or monitor, any cable, line, signal input device, or subscriber outlet
or receiver, to collect personally identifiable information (as defined in Section 631 of the Cable
Act) concerning any Subscriber whatsoever without the prior written consent of the Subscriber
or a court order; provided, however, that a Company may monitor customer service calls for
quality control purposes and may conduct system -wide or individually addressed "sweeps" for
the purpose of verifying system integrity, monitoring signal levels, or checking for unauthorized
connections to the Cable System, service levels, or billing- for -pay services.
c. Data Collection.
1. Except for its own use, or in connection with the provision of Cable Services or for
release of data to the City, the Company 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
Company shall have received the prior written consent of Subscriber.
2. The Company 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.
d. Disclosure of Subscriber Lists. The Company shall not disclose, or sell, or permit the
disclosure or sale of its subscriber list without the prior written consent of each Subscriber on a
list; provided that Company may use its subscriber list as necessary for the construction,
marketing, and maintenance of the Company's services and facilities authorized by a Franchise,
and the billing of Subscribers for Cable Services; and provided further, that consistent with
applicable law, City may use Company'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 and for the audit of financial and other obligations pursuant to this Chapter,
any franchise, or other applicable law.
e. Disclosure of Subscriber Preferences. Company 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.
f. Terms of Subscriber Consent.
1. Any written consent given in accordance with paragraph (d) shall be limited to a
period of time not to exceed one year, or a term agreed upon by the Company and
the Subscriber.
-10-
2. The Company shall not condition the delivery or receipt of Cable Services to any
Subscriber on any consent.
3. A Subscriber may at any time revoke, without penalty or cost, any consent previously
given by delivering to the Company in writing a statement of the Subscriber's intent to
so revoke.
g. Other Persons Affected. The prohibitions contained in paragraphs (a) through (e),
inclusive, of this Section apply to a Company, as well as to all of the following:
1. Officers, directors, employees, agents, and general and limited partners of the
Company;
2. Any person or combination of persons owning, holding, or controlling any corporate
stock or other ownership interests in the Company;
3. Any affiliated or subsidiary entity owned or controlled by a Company, or in which any
officer, director, stockholder, general, or limited partner, or person or group of
persons owning, holding or controlling any ownership interest in the Company, shall
own, hold or control any corporate stock or other ownership interests; and
4. Any person, firm, or corporation acting or serving in the capacity of a holding or
controlling company of the Company.
Section 5.44.060 Finance.
a. Payments to City.
1. As compensation for any Franchise to be granted, and in consideration of permission
to use the City's streets and public rights -of -way for the construction, operation,
maintenance, and reconstruction of a System, a Company shall pay to the City the
amounts and in the manner specified herein and in the Franchise.
Payments due the City shall be computed quarterly, and shall be paid within
forty -five (45) days after the close of each calendar quarter. The payment shall
be accompanied by a report showing the basis for the computation and such
other relevant facts as may be required by the City to determine the accuracy of
the payment. A final annual reconciliation, and payment if any, shall be
delivered to City by Company within ninety (90) days after the end of each
calendar year.
ii. If any franchise payment or recomputed amount is not made on or before the
dates specified above in subsection (i), Company shall pay as additional
compensation the greater of the following:
A. An interest charge, computed from the applicable due date, at an
annual rate equal to the prevailing commercial prime interest rate in
effect upon the due date, plus one percent (1 %).
B. A sum of money equal to $5,000 for each month, or part thereof, of
delay, which sum shall also bear interest from the due date at an
_»_
annual rate equal to the prevailing commercial prime interest rate in
effect upon the due date, plus one percent (1 %).
iii. In addition to any late payment made pursuant to subsection 3 above, if a
payment is late by sixty (60) days or more, Company shall pay a sum of money
equal to five percent (5 %) of the amount due in order to defray additional
expenses and costs incurred by City as a result of such delinquent payment.
iv. No acceptance of any payment shall be construed as a release of, or an
accord, or satisfaction of, any claim that the City might have for further or
additional sums payable under the terms of this Chapter, or for any other
performance by Company of an obligation hereunder.
2. Payments of compensation made by a Company to the City pursuant to the
provisions of this Chapter are in addition to, and exclusive of, any and all authorized
taxes, business license fees, and other fees, levies, or assessments now in effect or
subsequently adopted in accordance with state and federal law.
b. Financial Security_ The Franchise shall require that the Company provide Financial
Security pursuant to this section. The City shall determine the appropriate level of Financial
Security, which may include all of the following protections for the City against Company default
or failure to comply with this Chapter or the Franchise. The Director shall determine the
appropriate level of Financial Security to adequately repair Public Facilities or Public Rights -of-
Way. This Security shall include:
1. Security Fund.
The City shall require the Company to deposit into a bank account established
by the City, and to maintain on deposit through the duration of the Franchise
Term, security ( "Security Fund ") for the faithful performance by Company of
all of the provisions of the Company's Construction Plan, compliance with this
Chapter, with all orders, permits and directions of the City, or any designated
representative of the City having jurisdiction over Company's acts or defaults,
as security for the payment to the City of any claims, fees, liens, maintenance
obligations relating to above - ground facilities, or taxes due the City which
arise by reason of the construction, operation, and maintenance of the
Facilities, and to satisfy any actual or liquidated damages arising out of a
breach. In lieu of a Security Fund, the City may accept a Bond or Letter of
Credit for an equivalent amount in a form and from a financial institution
acceptable to the City.
If the Company fails, after forty -five (45) days written notice, to pay to the City
any fees that are due and unpaid, or fails to repay within such forty -five (45)
days, any damages, costs or expenses which the City is compelled to pay by
reason of any act or default of the Company; or if Company fails to comply
with any provision of this Chapter and the City determines that the failure was
withoutjust cause and, in a manner consistent with the procedures specified
in this Chapter, the Director reasonably determines that the default can be
remedied by a withdrawal from the Security Fund or is nevertheless subject to
liquidated damages, then, in any such event, the Director may immediately
-12-
withdraw the amount thereof from the Security Fund, with interest and any
liquidated damages. Upon such withdrawal, the Director shall notify the
Company of the amount and the date of withdrawal.
iii. Within thirty (30) days after notice to Company that any amount has been
withdrawn by City from the Security Fund, the Company shall deposit a sum
of money sufficient to restore the Security Fund to the original amount.
iv, The rights reserved to the City with respect to the Security Fund are in
addition to all other rights of the City, and no action, proceeding or exercise of
any right with respect to such security fund shall affect any other right the City
may have.
2. Faithful Performance Bond and Labor and Materials Bond. Prior to issuance of any
PROW Permit to construct Facilities in the Public Right of Way, the Director shall require
Company to furnish proof of the posting of a Faithful Performance Bond and /or Labor and
Materials Bond in favor of the City, with corporate surety approved by the Director in the sum
specified in any PROW Permit, and conditioned that the Company shall well and truly observe,
fulfill, and perform each term and condition of any PROW Permit; provided, however, that such
bond(s) shall not be required after certification by Director of the completion of construction. The
corporate surety must be authorized to issue such bonds in the State of California, and the bond
must be obtained and secured through an agent approved by the Director. During the course of
construction, the amount of the bond(s) may from time to time be reduced, as provided in any
PROW Permit. Written evidence of payment of premiums shall be filed with the Director.
Section 5.44.070 Services.
a. Services to be Provided. A Cable System shall provide, as a minimum, the broad
programming categories specified in the Franchise.
b. Changes in Services. Company shall follow Section 5.44.090 when making any changes
in rates, programming services or channel position in the System.
c. Non - discrimination.
A Company shall not discriminate between or among Subscribers within one type or
class in the availability of services, at either standard or differential rates according to
published rate schedules, except as otherwise authorized by law. No charges may
be made for services except as listed in published schedules which are available for
inspection by anyone at Company's office, quoted by Company on the telephone,
and displayed or communicated to all potential Subscribers.
2. The Company shall furnish and maintain Cable Services to each person who makes
a bona fide request to receive any programming service. Nothing in this Chapter shall
limit the right of the Company to deny Cable Service to any household or individual
which has a negative credit or service history with the Company, which may include
non - payment of bills or theft or damage to the Company's equipment, or who has
threatened or assaulted employees of the Company in the course of their
employment.
-13-
d. Prepayment. Company may not charge Subscribers for services more than one (1)
month in advance unless an individual Subscriber requests a longer period. Bills may be due
and payable upon mailing but shall not be delinquent, and no late charge penalties shall be
assessed, except as provided in state law. All bills and billing statements shall clearly indicate
the billing period, and the actual due date.
e. Disconnect for Cause. Company may disconnect a Subscriber only for cause, which
shall include, without limitation, the following:
1. Payment delinquency in excess of forty -five (45) days.
2. Willful or negligent damage to or misappropriation of Company's property.
3. Monitoring, tapping, or tampering with Company's system, signals, or service.
4. Threats of violence to Company's employees or property.
f. Reconnection. Company shall, upon Subscriber's written request, reconnect service that
has been disconnected for payment delinquency when payment has removed the delinquency.
If authorized by applicable law, a published standard charge may be made for reconnection.
Company shall not be required to make more than three (3) reconnections for the same
subscriber if the disconnections involved were caused by payment delinquency within any
previous twenty -four (24) month period. Reconnection for disconnections covered by Section
5.44.070(e)(2), (3), and (4) shall be at Company's sole discretion.
g. Installations.
Company shall promptly provide and maintain service as specified in the Franchise
to the residential, commercial, and industrial structures in the Franchise Service
Area, as defined in the Franchise, upon request of the lawful occupant or owner.
2. Where a new Drop is required to provide service, Company shall advise each
Subscriber that the Subscriber has the right to require that installation be done over
any route on the Subscriber's property, and in any manner the Subscriber may elect
which is technically feasible, consistent with the Building Code, and consistent with
proper construction practices. If the Subscriber requests installation other than a
standard installation, then the Subscriber may be required to pay the fee required in
paragraph (h).
3. For purposes of this paragraph, a standard installation shall include installation of
drop cable with fittings up to one hundred and fifty feet (150) feet from the CAN
distribution system measured along the cable from the center line of the street or
utility easement through the house wall or, at the Subscriber's option, through the
floor from a house vent or crawl space directly to the Subscriber's television set with
five feet of cable from the wall or floor entry to the N set. Also included as part of a
standard installation is the grounding cable, fine tuning of the television set in order
to insure the reception of Cable Service, and the provision by the Company of the
appropriate literature and information.
4. After Cable Service has been established by activating trunk or distribution cables for
any area, Company shall provide Cable Service to any person requesting Cable
Service in that area within nine (9) calendar days from the date of request, provided
-ra-
that the Company is able to secure all access rights necessary to extend service to
that potential Subscriber within that nine (9) day period on reasonable terms and
conditions.
h. Non - Standard Installations. For each non - standard installation, a Company may charge
the Subscriber for the cost of material and labor in excess of that required for a Standard
Installation. Company shall provide each Subscriber a written estimate of all charges for a non-
standard installation prior to installation and obtain Subscriber's written authorization in advance
for all nonstandard installation charges.
i. Converters/Terminals. At the time a converter or terminal is required for Subscribers to
have access to all services on its System, Company shall make them available to Subscribers
for a fee. Company may require each Subscriber who elects to install a converter or terminal to
furnish a security deposit.
1. Each converter or terminal device shall be and remain the property of the Company.
Company shall be responsible for maintenance and repair of all equipment owned by
Company and may replace it as Company may from time -to -time elect, except that
Subscriber shall be responsible for loss of or damage to any device while in the
Subscriber's possession.
Upon termination or cancellation of a Subscriber's service, the Subscriber shall
promptly return Company's property to Company in the same condition as received
excepting reasonable wear and tear.
3. Company may apply the security deposit against any sum due from Subscriber for
loss of or damage to a converter or terminal exceeding reasonable wear and tear. In
the event that no security deposit has been required, the Company may charge the
Subscriber for any damage exceeding reasonable wear and tear.
4. If Company has no claim against the Subscriber's security deposit, Company shall
return it, or the balance, to the Subscriber within thirty (30) days of return of the
converter or terminal.
Section 5.44.080 Design and Construction of System.
The System shall be designed and constructed in accordance with the provisions of
Chapter 13.20 of the Newport Beach Municipal Code and the Franchise. Construction
components and techniques shall be in accordance with Chapter 13.20, the Franchise and all
applicable law.
Section 5.44.090 Operations and Maintenance.
a. Customer Service Standards. The Company shall comply with the following Standards
for Customer Service:
Service Area Office. The Company shall maintain an office in the Service Area, or at
another location as is approved by the City in writing. That office must be open
during all usual business hours, but in no case less than forty eight (48) hours per
week, including during at least one weekend day per week.
-Is-
2. Customer Service Center.
Company shall have a publicly listed, non -long- distance - charge telephone
number that is in operation to receive Subscriber Complaints and requests on a
24 -hour basis. This telephone number shall be listed prominently on the front
page of Subscribers' billing in bold print.
ii. A Company shall have a telephone service system to receive all construction
and service complaints. This telephone service shall be in operation no less
than 48 hours each week including eight hours at least one weekend day.
iii. A sufficient number of customer service representatives shall be provided so
that callers are not required to wait more than thirty (30) seconds before being
connected to a customer service representative ninety percent (90 %) of the
time, measured quarterly, or to receive busy signals more than three percent
(3 %) of the time, measured quarterly.
iv. The telephone number of the local office shall be listed in the telephone
directory serving the City of Newport Beach.
The telephone service system shall be capable of generating reports relating to
answer times, response times, hold times, and abandoned calls.
vi. Customer service personnel shall identify themselves immediately and when
requested, a Spanish- speaking representative will be available for non - English
speaking subscriber complaints.
vii. Customers shall have the right to speak with a supervisor, and if none is
available, a supervisor shall return the customer's call within one working day.
3. Subscriber Complaint Log_. The Company shall maintain information of all
Complaints and their disposition, and a summary thereof shall be submitted to City
on a quarterly basis.
4. Complaint Response Times and Verification. The Company shall respond to
complaints as follows:
Within eight (8) hours after receipt of a request for repairs relating to a Cable
Service Interruption affecting at least ten (10) percent of the Subscribers of the
System;
ii. Within twenty -four (24) hours after receipt of requests for service related to all
other Cable Service Interruptions; and
iii. Within forty -eight (48) hours for all other complaints and requests for repair.
All Cable System related problems shall be resolved within five (5) business days
unless technically infeasible. Verification of Subscriber complaints, including but not
limited to billing complaints, and resolution must occur within forty -eight (48) hours
(provided that the schedule or preferences of the person requesting installation have
not been responsible for the delay); and in any event, resolution must occur within
one (1) week. Those matters requiring additional maintenance, repair, or technical
-16-
adjustments that are documentable as necessitating in excess of one (1) week to
reasonably complete, must be finally resolved within thirty (30) days of the initial
complaint. The City Manager's office may require reasonable documentation to be
provided by the Company to substantiate the request for additional time to resolve a
complaint.
Identification. All officers, agents, or employees of a Company, including its
contractors or subcontractors, who come into contact with members of the public
shall wear on at all times on their outer clothing a photo- identification card in a form
reasonably acceptable to City. Company shall account for all identification cards at
all times. Every vehicle of Company, or its major subcontractors, shall be clearly
identifiable as working for that Company.
6. Charges for Repairs. No charge shall be made to a Subscriber for service or repairs,
except that Company may charge for service calls not related to its Cable System, or
that are caused by the Subscriber or members of its household, or the Subscriber's
agents or guests.
b. System Performance Audit. The Franchise shall direct the following:
City shall require that a System Performance Audit be conducted biannually at
Company's expense by an independent technical consultant selected by City to
verify that the System complies with all technical standards, including but not limited
to signal strength, and other specifications of the Franchise. Upon completion of an
Audit, the Company and City shall meet to review the performance of the Cable
System. The reports required by this Chapter regarding Subscriber complaints, the
records of performance audits and tests, and the opinion survey report shall be
utilized as the basis for review. In addition, any Subscriber may submit complaints
prior to or during the review meetings, either orally or in writing, and these shall also
be considered.
Within thirty (30) days after the conclusion of the System Performance Audit review
meetings, City shall issue findings with respect to the adequacy of System
performance and quality of service. If areas of non - compliance are found, City may
direct Company to correct the non - compliance within a period of time as City
determines is reasonable.
2. Participation by the City and the Company in this process shall not waive any rights
they may possess under applicable federal or state law.
In addition to the Performance Audit described above, City may conduct audits of the
same or lesser magnitude, at its sole expense, when and if determined necessary or
appropriate by City.
c. System Technical Data. Company shall provide and maintain system technical data,
including but not limited to signal strength testing information. All technical data
reasonably necessary to demonstrate a Company's compliance with FCC regulations,
this Chapter, and the Franchise shall be available for City's inspection during normal
business hours upon two (2) business days notice. In the event of System failure or
other operating emergency, the technical data will be made available at any time, so long
as the provision of the data does not unreasonably interfere with Company's operations.
n-
d. System Location Data. The Company shall provide the City with data in a digital or other
format specified by the City which details and documents all the geographic locations of
Facilities located in PROW. The computer disk or other record shall be updated
whenever there have been significant changes in the location of the Facilities or at the
Director's discretion. In addition, the Company shall maintain in its local office a
complete, fully- dimensioned, and up -to -date set of as -built system maps and drawings
upon completion of construction. As -built drawings shall show all Facilities. The scale of
maps and drawings shall be sufficient to show the required details in easily readable
form and size.
e. Emergency Repair Capability. It shall be Company's responsibility to assure that its
personnel, qualified to make repairs, are available at all reasonable times and that they
are supplied with keys, equipment location instructions, and technical information
necessary to begin repairs upon notification of the need to maintain or restore
continuous service to the System.
Refund. When a Subscriber voluntarily discontinues service, Company shall refund,
within thirty (30) days of the discontinuance of service, the unused portion of any
advance payments or deposits after deducting any charges currently due through the
date of discontinuance. Unused payment portions shall be the percentage of time for
which Subscriber has paid for service yet will not receive the service because of the
Subscriber's discontinuation of service.
f. Disabled Access.
The Company shall provide maximum practicable availability of the Services and
facilities of the System to disabled persons. At a minimum, the Company shall
provide a single remote control device for each television set connected to the
Service to those Subscribers who are paraplegic or quadriplegic.
2. Upon initiation of Service in the City, the Company shall submit to the City a plan
and /or report describing the equipment, facilities, and ongoing services the Company
intends to or does make available to disabled persons. Information regarding the
facilities, equipment, and ongoing services for disabled persons shall be kept
updated and the Company shall promptly submit to the City notification of any
deletions or additions to the information.
3. The Company shall provide within forty -five (45) days of a request from a Subscriber,
for rental or purchase, equipment which facilitates the reception of all cable channels
by hearing- impaired Subscribers in accordance with the FCC's regulations regarding
Closed Captioning. The Company shall also provide TDD (or equivalent) equipment
at the Company office that will allow the Subscribers to contact the Company for any
reason related to the System.
g. Installations.
All installations will include appropriate grounding, adjustment of the television set in
order to receive Service, and the provision of required Subscriber information and
literature to instruct the Subscriber in the utilization of the Services.
6CD
The Company shall offer Subscribers the option to receive an A/B switch at the time
of initial Service installation for no additional installation cost, and shall provide
Subscribers with written information on how to use an A/B switch.
3. Upon Subscriber request, the Company shall provide an A/B switch after the initial
installation of Service. If the Subscriber requests installation of the A/B switch, the
Company may charge reasonable fees for the installation which fee shall not exceed
the maximum rate permitted by applicable law.
4. When applicable, if the Company cannot perform standard installations within nine
(9) calendar days of request by a Subscriber (provided that the schedule or
preferences of the person requesting installation have not been responsible for the
delay), the Subscriber may request and is entitled to receive a $20.00 credit.
Repeated failure to perform standard installations within the nine (9) calendar days or
to provide the credit for late installations shall be grounds for Franchise revocation or
other enforcement actions.
h. Service Interruptions and Other Service Problems.
The Company shall render efficient service, make repairs promptly, and interrupt
Service only if unavoidably necessary and for the shortest period possible. The
interruptions, insofar as possible, shall be preceded by reasonable notice to each
affected person and shall occur during periods of minimum System use.
2. The Company shall promptly notify the City of any significant "Service Interruption" in
the operation of the System. For the purposes of this Section, a "significant Service
Interruption in the operation of the System" shall mean any interruption of Cable
Services of at least four (4) continuous hours to at least ten percent (10 %) of the
Subscribers in the area or areas of the Company served by the Company.
3. The Company shall exercise its best efforts to limit any Service Interruption for the
purpose of maintaining, repairing, or reconstruction of the System to periods of
minimum use. Except in an emergency or other situation necessitating a more
expedited or alternative notification procedure, the Company may schedule a Service
Interruption for a period of more than four (4) hours during any twenty -four (24) hour
period only after the Company and each affected Subscriber in the Company have
been given twenty -four (24) hours prior notice of the proposed interruption.
4. Technicians employed by the Company and capable of performing Service - related
emergency repairs and maintenance must be available twenty -four (24) hours a day,
every day, including weekends and holidays.
Excluding conditions beyond the control of the Company, the Company will begin
working on Service Interruptions promptly and in no event later than twenty -four (24)
hours after the interruption becomes known (including weekends and holidays).
"Working on" constitutes taking positive steps toward rectifying the problem and not
merely acknowledging the problem.
6. Automatic Credits. The Franchise shall require that:
Outage of All Channels. The Company shall provide an automatic credit to all
affected Subscribers within the Outage area when there is an Outage of all
-t9-
channels for a period of twenty -four (24) consecutive hours or more, regardless
of the cause of the Outage. The credit for an Outage shall equal, at a minimum,
the value of one - thirtieth (1/30) of each Subscriber's monthly bill for the first
twenty -four (24) consecutive hour period and prorated for each additional four (4)
hour period or portion thereof that the Outage continues.
Outage of Premium Service. The Company shall provide an automatic credit to
all affected Subscribers when there is an Outage of any Premium Service for a
period of twenty -four (24) consecutive hours or more which affects an entire
franchise area, or other discrete area of the Company served by the Company,
regardless of the cause of the Outage. The credit shall equal, at a minimum, the
value of one - thirtieth (1/30) of each Subscriber's monthly bill for that Premium
Service for the first twenty -four (24) hour consecutive hour period and prorated
for each additional four (4) hour period or portion thereof that the Outage
continues.
iii. Outage of Non - Premium Service. The Company shall provide a credit to a
Subscriber whenever an Outage or Outages of four or more hours in a twenty -
four (24) hour period has affected any of the non - premium channels received by
a Subscriber as part of their Service. The credit shall equal the value of one -
thirtieth (1/30) of each Subscriber's monthly bill for Outages of four (4) hours or
greater duration occurring in a twenty -four (24) hour period. In the event that a
premium channel is affected by the Outage, the credit shall equal the value of
one - thirtieth (1/30) the Subscriber's monthly premium rate for each Outage of
four (4) hours or greater duration occurring in a twenty -four (24) hour period. The
Company need not provide a credit under this paragraph (iii) if the Company has
provided a credit under paragraph (i) or (ii) to the same subscribers for the same
Outage.
7. Repeated failure to provide the proper credit for Outages shall be grounds for
Franchise revocation or other enforcement actions.
I. Service Appointments. The Franchise shall require the Company to comply with the
following:
The "appointment window" alternatives for installations, service calls for Cable
Service, and other installation activities will be either a specific time or, at maximum,
a four -hour time block during normal business hours. The Company may schedule
services calls for Cable Service and other installation activities outside or normal
business hours for the convenience of the Subscriber.
2. If the Company does not arrive for appointments for installations or service calls
within a designated 4 -hour time frame agreed to by the Subscriber, the Subscriber
may request and is entitled to receive a $20.00 credit. If the Company fails to
provide a credit, and the request was made by the Subscriber within 60 days of the
missed appointment, the City may direct the Company to issue the credit. Repeated
failure to provide the credit shall be grounds for Franchise revocation.
3. The Company may not cancel an appointment with a Subscriber after the close of
business on the business day prior to the scheduled appointment.
-20-
4. If the Company's representative is running late for an appointment with a Subscriber
and will not be able to keep the appointment as scheduled, the Company will
document a diligent effort to contact the Subscriber directly. If, however, the
Subscriber is unavailable at the time the contact attempt is made, the Company will
attempt a second documented contact at least one more time during the previously
agreed upon appointment window. The appointment will be rescheduled, as
necessary, at a time which is convenient to the Subscriber. Contacting the
Subscriber will not necessarily excuse a missed appointment. In the event that it is
necessary for Company to contact the Subscriber regarding the scheduled
appointment and Subscriber is not available, Company will use its best efforts to
provide the Subscriber with a phone number to contact Company.
j. Annual Notice. At least once a year, the Company shall communicate in writing with all
Subscribers. At a minimum, this communication shall comply with Federal regulations
and shall contain statements or provisions addressing each of the following issues:
1. Complaint Handling. Any complaints or inquiries not satisfactorily handled by the
Company may be referred to the Company Manager, whose phone number shall be
shown on the communication.
2. Schedule. A complete schedule of all current programming services, excluding pay -
per -view, rates and charges and promotional offers.
3. Subscriber Bill of Rights. The Company shall provide Subscribers with the
Subscriber Bill of Rights ( "SBR "). The SBR may be in a form commonly distributed
by a Company throughout its service area, provided that the SBR describes, in
understandable language:
i. The Subscriber's rights and obligations that are generally provided under the
Franchise and federal law, including a description of how to contact the Company
and, if necessary, the City, in the event of an unresolved Subscriber complaint;
ii. The Subscriber's rights to credits or free service when any of the conditions
described within Section 5.44.090 (h)(6) apply.
k. Notices of Rate, Pricing, or Services Changes,
1. Notice of any pricing changes or additional charges and /or any changes in
programming services must be made as soon as possible. In no instance shall a
company increase rates or change a programming schedule without at least thirty
(30) days advance notice of the changes.
2. Notices of changes in rates shall indicate the new rate inclusive of all fees and /or
other fees and the amount the rate has increased or decreased from the current rate.
Specific words such as "increase" or "decrease" must be used to describe the
changes (as opposed to less specific terms, such as "adjustment ").
3. Notices of changes of programming services and /or channel locations shall include a
description of the new programming service, the specific Channel Location, and the
hours of operation of that programming service. In addition, should the Channel
Location, hours of operation, or existence of other programming services be affected
-21-
by the introduction of a new service, this information must also be included in the
notice.
4. In order that Subscribers are fully apprised of the charges they may incur, the
Company shall advertise rates that include all costs and fees.
I. Other Notices.
1. Free Prociramming. If Company offers any channels with programming rated NC -17,
R, X, or the equivalents thereof full or part-time without charge, Company shall
include the rating(s) of the programming to be made available for viewing and the
right of the Subscriber to have the Company block the programming. The Company
shall provide, by sale or lease, a device for blocking this programming.
2. Notices about the Franchise Fee. Whenever a Company describes to Subscribers in
writing the City's collection or administration of the Franchise Fee, it shall do so in a
manner and form acceptable to the City.
3. Notices to New Subscribers. Before providing Cable Service to any Subscriber,
Company shall provide the Subscriber Bill of Rights to Subscriber and shall include a
written notice to the Subscriber containing substantially the following information:
"Subscriber understands that (insert Name of Company) uses public
rights -of -way and other facilities of the City of Newport Beach in providing
service and that this continued use cannot be guaranteed. Subscriber
agrees not to make any claims against the City of Newport Beach or its
officers or employees in the event that the use is denied for any reason,
and (insert Name of Company) is unable, in its discretion, to provide
service over alternate routes."
m. Disconnections /Denial of Service.
The Company shall not terminate residential Service for nonpayment of a delinquent
account unless the Company furnishes a notice of the delinquency and impending
termination at least fifteen (15) days prior to the proposed termination. The notice
shall be mailed, postage prepaid, to the Subscriber to whom the Service is billed.
This notice shall not be mailed until the sixteenth (1IP) day after the date the bill for
Services was mailed to the Subscriber. The notice of delinquency and impending
termination may be part of a billing statement.
2. Notice of Termination. Every notice of termination of Service shall include all of the
following information:
The name and address of the Subscriber whose account is delinquent;
The amount of the delinquency;
iii. The date by which payment is required in order to avoid termination of Service;
iv. The telephone number of a representative of the Company who can provide
additional information and handle complaints or initiate an investigation
concerning the Service and charges in question.
-22-
3. The Company shall only terminate Cable Service on days when the Subscriber can
reach a representative of the Company either in person or by telephone. Cable
Service terminated without good cause must be restored without charge for the
Cable Service restoration. Good cause includes, but is not limited to, failure to pay,
payment by check for which there are insufficient funds, theft of Service, abuse of
equipment or System personnel, or other similar Subscriber actions.
n. Deposits Refunds and Credits.
The Company may require refundable deposits in circumstances where deposits are
necessary to protect equipment or to ensure payment where there is reasonable
evidence of a risk of nonpayment, provided that the Company shall be required to
pay simple interest at a rate of one -half percent (1/2 %) per month (6% per year).
Interest shall be accrued and payable upon termination of Service. Upon termination
of Service for any reason, Subscribers will be entitled to receive a refund or credit
against amounts owed the Company equal to the deposit plus accumulated interest.
2. Refund checks will be issued promptly following the resolution of the event giving rise
to the refund; and by the earlier of either:
The Subscriber's next billing cycle; or
Thirty (30) days.
3. If the Company does not mail a check for a refund (including applicable interest) to
any Subscriber disconnecting Service with an outstanding credit within thirty (30)
days of the date Cable Service is ended, and the Subscriber has returned all
Company owned equipment, the Subscriber may request and is entitled to receive a
$4.75 (or such other amount as may be permitted pursuant to State law) payment, in
addition to the total refund (and applicable interest) due. If the Company fails to
provide the $4.75 payment and the request was made by the Subscriber within sixty
(60) days after failure to receive the refund, the City may direct the Company to
provide the $4.75 payment as well as any outstanding refund (and applicable
interest) due. Repeated failure to provide the $4.75 payment shall be grounds for
Franchise revocation and/or other enforcement actions.
4. Credits for Cable Service will be issued no later than the Subscriber's next billing
cycle following the determination that a credit is warranted.
o. Rates. Fees And Charges.
1. The Company shall not, except to the extent expressly permitted by law, impose any
fee or charge on any Subscriber for:
Any service call to a Subscriber's premises to perform any repair or maintenance
work related to Company, installed equipment necessary to receive Service,
except any work which was necessitated by a negligent or wrongful act of the
Subscriber: or
ii. The disconnection of any Services to a Subscriber, provided that the Company
may impose appropriate charges if, at the time of disconnection, some or all of
the Company's equipment is not returned to the Company or the Subscriber has
-23-
not paid all outstanding fees and charges due to the Company; or there is
damage to the equipment of the Company, excluding normal wear and tear and
the circumstances described in the next paragraph.
Where the actions of the Company, its agent(s) or subcontractor(s) can be shown
upon a reasonable demonstration of evidence to have contributed to the theft, loss or
damage of a converter or other equipment lawfully used by a Subscriber, the
Subscriber's liability with respect to the converter or other equipment shall be
reduced to the extent of the contributing actions.
3. All charges for Services must be applied on a nondiscriminatory basis recognizing
that the Cable Act allows for reasonable discounts to senior citizens and /or the
economically disadvantaged and that a Company may, upon reasonable notice to
Subscribers, conduct promotional campaigns in which rates are discounted or
waived, and may offer bulk rate discounts for multiple dwelling units, hotels, motels,
and similar institutions.
p. Enforcement.
Repeated failure to comply with any or all of the provisions delineated above shall be
grounds for Franchise revocation in accordance with the Franchise revocation
procedures and /or other enforcement actions.
2. The City may seek injunctive relief or any other judicial remedy available pursuant to
state or federal law in order to enforce compliance with these standards.
q. Rights Reserved By City.
1. Additional Subscriber Service Standards. The City reserves the right to establish
additional, reasonable Subscriber Cable Service standards from time to time, as may
be necessary, after making a finding of need and after notice to and opportunity to be
heard from the Company has been afforded.
2. Rate Regulation. The City reserves the right to regulate rates for Cable Service to
the fullest extent permitted by law. Notwithstanding anything in these standards to
the contrary, in the event that the Cable Act is amended or repealed, or restrictions
on the authority of the City to regulate rates are otherwise removed or lessened, or
the FCC or any court permits the City to regulate rates, the City may, at its discretion,
establish additional procedures and standards for rates and regulate rates to the
fullest extent of its regulatory authority under federal, State, and local laws.
3. Performance Meetings. Upon request of the City, the Company shall meet with the
City to review the requirements set forth in this Chapter or the Franchise.
4. Cable Review Board. The City reserves the right to create and maintain a Cable
Review Board. Upon request of City, the Company shall send a representative to
Cable Review Board meetings to provide cable related information and to respond to
Subscriber and City inquiries and complaints.
-24-
Section 5.44.100 Violations.
a. Use of Public Streets. Pursuant to Section 1300 of the City Charter, it is unlawful for any
person to construct, install, or maintain in any public place within the City's Territory, or upon
any easement owned or controlled by a public utility, or within any other public property of City,
or within any privately -owned area within City's jurisdiction which is not yet, but is designated as,
a proposed public place on a tentative subdivision map approved by City, any equipment,
Facilities, or System for distributing signals or services through a cable television system,
without a valid Franchise.
b. Unauthorized Connections. It shall be unlawful for any person to make or use any
unauthorized connection to, or to monitor, tap, receive or send any signal or service via a
franchised System, or to enable any Person to receive or use any service, television or radio
signal, picture, program, or sound, or any other signal without payment to the owner of the
System.
c. Tampering with Facilities. It shall be unlawful, without the consent of the owner, to
willfully attach to, tamper with, modify, remove or injure any physical part of or signals on a
franchised System. However, the City or its contractors may remove or modify franchised
System if Company fails to locate or relocate System provided that City has adequately notified
Company via the Underground Service Alert or similar system.
Section 5.44.110 Termination and Related Rights.
a. Material Breach.
1. In the event that the Company fails to comply with a material provision of any
franchise, then, in accordance with the procedures provided herein, the City may
revoke the franchise granted herein and terminate any franchise in accordance with
the procedure set forth below.
A failure to comply with a material provision of any Franchise shall include, without
limitation, any of the following acts or failures to act by the Company, an Affiliated
Person or the Guarantor of any of the following events, unless excused by the City.
Substantial failure to provide required financial information;
Substantial failure to satisfy the requirements regarding System
characteristics or repeated failure to meet the technical performance
standards, as provided in any franchise;
iii. Substantial or repeated failure to provide any Cable Service to any Person as
required by any franchise;
iv. Substantial failure to maintain the mix, level, and quality of Services within the
broad categories of video programming and other services as set forth in any
franchise;
V. Abandonment of the System, in whole or in material part, without the prior
written consent of the City;
-25-
vi. Substantial failure to supply the PEG Channels and related facilities and
equipment after the date by which the items must be supplied, as provided in
any franchise;
vii. Substantial failure to comply with interconnection requirements as provided in
any franchise;
viii. Substantial and repeated imposition of any nonstandard Installation and other
charges for Basic Service which are discriminatory;
ix. Substantial and repeated failure to comply with consumer service standards;
X. Substantial failure to comply with the privacy rights of Subscribers as
provided in this Chapter, any franchise, or Section 631 of the Cable Act or
Section 637.5 of the California Penal Code;
A. Substantial failure to make any of the Franchise Fee compensation payments
as provided herein, or any other payments required by this Chapter or any
franchise, or to maintain the bond or other instrument in the amount required
herein;
xii. Substantial failure to comply with any rules, laws, regulations, orders or other
directives of the City issued pursuant to the police powers or pursuant to this
Chapter or any franchise;
xiii. The taking of any material action which requires the approval or consent of
the City Council without having first obtained the approval or consent, as
provided in Section 5.44.030 of this Chapter;
xiv. Substantial failure to furnish and maintain throughout the term of any
franchise the liability and indemnification insurance coverage;
xv. To engage in a course of conduct intentionally designed to practice any fraud
or deceit upon the City, any Subscriber, or any other use of the System;
xvi. Failure to cooperate fully and faithfully with any lawful investigation, audit or
inquiry conducted by a governmental agency;
xvii. Any material written misrepresentation, intentionally made by or on behalf of
the Company in its proposal for the franchise granted pursuant to any
franchise, or in connection with the negotiation or renegotiation of, or any
amendment or other modification to any franchise, to the extent that any
misrepresentation was relied upon by the City;
xviii. The conviction or determination of factual guilt, of the Company, any Affiliated
Person, any director or executive officer of the Company or of an Affiliated
Person, any Person holding Control of or a Controlling Interest in the
Company, or any employee or agent of the Company or of any Affiliated
Person acting under the express direction or with the actual consent of the
Company, its directors or officers, of any criminal offense, including, without
limitation, bribery, fraud or misrepresentation arising out of or in connection
with the award, transfer, application for rate increase, or other regulation of
-26-
any franchise, provided that the right to terminate any franchise in the event
of the convictions shall arise only with respect to any of the foregoing
convictions of the Company itself and, in the event of the conviction of any
other Persons specified in this subsection, if the Company fails to
disassociate itself from, or terminate the employment of, other Persons with
respect to activities in the Franchise Area or any other activities affecting the
System, within thirty (30) days after the time in which appeals from a
conviction may be taken, or within thirty (30) days following the final
determination of all appeals which are in fact taken;
xix. The conviction of any City officer, City employee, or City agent of the offense
of bribery or fraud which arises out of or in connection with any intentional
action by the Company, any Affiliated Person, any director or executive officer
of the Company or of any Affiliated Person, any Person holding Control of or
a Controlling Interest in the Company, or of any employee or agent of the
Company or of any Affiliated Person acting under the express direction or
actual consent of the Company or any of the foregoing, which act was
undertaken for the benefit of the Company;
xx. Any material false entry knowingly made in the books or accounts or records
of the Company, or any substantial false statements knowingly made in any
report or filing to the City or any governmental agency or otherwise by the
Company, any director, officer, or other Person holding a Controlling Interest
in the Company, any Affiliated Person, or any employee or agent of the
Company acting under the express direction or with the actual consent of the
Company;
xxi. Failure to comply with a duly constituted lawful order or ruling of any City
regulatory body having jurisdiction over the Company;
xxii. Substantial failure to comply with the access origination point requirements as
set forth in any franchise; or
xxiii. Substantial failure to comply with the construction requirements set forth in
any franchise.
Notwithstanding the foregoing, if, as a result of a failure or alleged failure to comply
with a material provision of any franchise as delineated in the foregoing subsections,
the Company is unable to comply with any other material provision(s) which
necessarily and directly arise(s) out of the failure or alleged failure as delineated in
the subsections, the inability to comply with the other provision(s) shall not be
deemed to be an independent failure to comply with a material provision of any
franchise.
3. The City Council may exercise its right to revoke and terminate the franchise for a
failure by the Company to comply with a material provision of this Chapter and /or any
franchise in accordance with the following procedures:
The City shall notify the Company, in writing, of an alleged failure to comply
with a material provision of the Franchise. The notice shall specify the
alleged failure with reasonable particularity. The Company shall, within forty -
five (45) days after receipt of the notice, either cure the alleged failure or, in
-27-
the event the failure cannot be reasonably cured within forty -five (45) days,
within a reasonable time, provided the Company commences to cure within
the forty -five (45) days and diligently pursues the cure to completion, or, in a
written response to the City, the Company shall either present facts and
arguments in refutation or excuse of the alleged failure or state that the
alleged failure will be cured and set forth the method and time schedule for
accomplishing the cure.
J. The City shall investigate: (a) whether a failure to comply with a material
provision has occurred; (b) whether the failure is excusable; and (c) whether
the failure has been cured or will be cured by the Company.
iii. If the City determines that a failure to comply with a material provision has
occurred and that either the failure is not excusable or has not been or will not
be cured by the Company, then the City shall so notify the Company.
iv. At the conclusion of or in the event that the investigation is not concluded, as
provided above, the City shall, within thirty (30) days, provide notice of a
public hearing at which the Company shall have the opportunity to respond to
the claim that a material breach has occurred and to present facts and
arguments in refutation or excuse of an alleged breach, or to demonstrate
that a failure shall be cured as provided in any franchise.
V. All final City determinations with respect to revocation or termination must be
made by the City Council. Notwithstanding any final determination by the City
Council, the Company maintains its rights of appeal, if any, under applicable
law.
4. Circumstances Beyond Control of the Company. The Company shall not be subject
to sanction when its performance is prevented for reasons beyond its control, unless
the occurrences or conditions are intentionally caused or created by the Company, or
by an Affiliated Person at the Company's express direction.
5. Pendina Litigation. Except when enjoined by a court of law, litigation pending against
the Company shall not excuse the Company from the performance of its obligations
under this Agreement. The Company may petition the City to be excused from the
performance of its obligation under this Chapter because of pending litigation which
the City may grant or deny in the exercise of its discretion.
b. Termination
The termination of any franchise and the Company's rights therein shall become
effective upon the earliest to occur of the:
i. Revocation of the franchise by action of the City Council;
ii. Abandonment of the System, in whole or material part, by the Company without
the express prior approval of the City; or
iii. Expiration of the term of the franchise, if not renewed or extended. In the event of
any termination, the City shall have all rights as provided in any franchise,
including, without limitation, the right to order the Company to continue to operate
-28-
the System or to then or thereafter remove the System, or to acquire or affect a
transfer of the System. In any event, the Company maintains its rights of appeal,
if any, under applicable law.
2. In the event of any termination of any franchise, the City Council may direct the
Company to operate the System on behalf of the City pursuant to the provisions of
this Chapter and additional terms and conditions as are equitable and mutually
agreeable to the City and the Company or a third party, for a period of up to twelve
(12) months, in which event the Company or third party, as applicable, shall be
entitled to all revenues generated by the System during a period of continued
operation. In the case of operation of the System by a third party, the Company shall
be entitled to a fair rental for use of the System.
3. Upon the termination of any franchise due to the expiration of the term of the
franchise granted herein, if not renewed or extended, the Company shall be entitled
to cancel the performance bond or letter of credit, after account is taken for all offsets
necessary to compensate the City for any uncured failure to comply with any
provision of any franchise as herein provided. If the Company continues to operate
the System following the termination of any franchise, the Company shall not be
entitled to cancel a bond or letter of credit until the end of continued operation. In the
event of a termination of any franchise for cause due to a material breach by the
Company or otherwise, the bond or letter of credit shall become the property of the
City to the extent necessary to cover any costs, loss, or damage incurred by the City
as a result of the termination or material breach, provided that any amounts in excess
of the costs, loss or damage shall be refunded to the Company or surety, as
applicable.
4. In the event of any termination, the City may purchase the Cable System in
accordance with the procedures of this section. In this event, the price to be paid for
the Cable System to Company shall be the price the Cable Act requires.
5. Upon any acquisition or transfer, and, if applicable, receipt of payment by the
Company from the City, the Company shall:
i. Cooperate with the City in maintaining the distribution of all Services over the
System during acquisition or transfer of ownership;
ii. Promptly execute all appropriate documents to transfer to the City or third party,
free of any and all encumbrances, title to the System, as well as all contracts,
leases, licenses, and rights necessary to maintain the System and the distribution
of Services over the System; and
iii. Promptly supply the City with all necessary records to operate the System,
including, without limitation, all Subscriber records and plant equipment layout
documents.
6. Upon any termination of any franchise, if so directed by the City, the Company shall,
at its own cost and expense, promptly remove that part of the System located in the
right -of -way and shall replace or repair and restore to serviceable condition each
affected Facility therein, in the manner as set forth in this Chapter and Chapter 13.20
of the Newport Beach Municipal Code.
-29-
7. In the event of any acquisition of the System by the City pursuant to this Chapter, and
subject to the requirements of applicable law the City:
Shall not be required to assume any of the obligations of any collective
bargaining agreements or any other employment contract held by the Company
or any other obligations of the Company to any of its officers, employees, or
agents, including, without limitation, any pension or other retirement, or any
insurance obligations; and
ii. May lease, sell, operate, or otherwise dispose of all or any part of the System in
any manner, provided that the Company may seek the award of any franchise to
construct, operate, or maintain the System in connection with any sale.
Section 5.44.120 Franchise Applications
Applicants for an initial franchise shall submit to the City, or to its designated
representative, written application in a format provided by the City, at the time and place
specified by the City for accepting applications, and accompanied by the designated application
fee. A nonrefundable application fee, established by resolution of the City, shall accompany the
application for an initial franchise to cover all costs associated with processing the application,
including without limitation, costs of administrative review, financial, legal and technical
evaluation of the applicant, the costs of consultants (including technical and legal experts),
notice and publication requirements, and document preparation expenses. In the event that
costs exceed the application fee, the applicant shall pay the difference to the City within twenty
(20) days following receipt of an itemized statement of the costs. This provision is procedural
and shall not constitute the grant of any right to a Company to renewal or otherwise. This
provision does not apply to any renewal of an existing franchise.
Section 5.44.130 Records; Reports; Right to Inspect and Audit; Experts.
a. Company to Provide Records. All reports and records required under this Section shall
be furnished at the sole expense of the Company.
b. Reports of Financial and Operating Activity. No later than ninety (90) days after the
close of a Company's fiscal year, the Company shall submit an audited written report to the City
which shall include:
A Financial Report, audited and certified by a financial officer of Company, for all Cable
System activity in the City during the previous fiscal year, including Gross Annual
Receipts from all sources and gross subscriber revenues from each service. The Report
must set out separately all gross receipts from all sources in the City and gross
subscriber revenues from each Cable Service in the City, and all payments, deductions,
and computations of franchise fees.
2. A summary of the previous year's subscriber totals, new services offered and System
construction activity.
3. A current list of Company's officers, directors, and other principals if there has been any
change in the previous year.
4. A list of stockholders or other equity investors holding five percent (5 %) or more of the
voting interests in Company if there has been any change in the previous year.
-30-
c. Performance Tests and Compliance Reports. Upon written request of City, a Company
shall provide a written report of any FCC or other performance tests conducted by the Company.
In addition, the Company shall provide reports of the test and compliance procedures required
by its franchise, or by this Chapter, no later than thirty (30) days after the completion of those
tests and compliance procedures.
d. Additional Reports and Data. The Company shall prepare and furnish to the City in
writing, at the times and in the form prescribed by City, such additional reports or data as City
may require to confirm and verify Company's compliance with the provisions of its franchise and
this Chapter.
e. Examination of Facilities. Upon two (2) business days notice, and during normal
business hours, a Company shall permit examination, by any duly authorized representative of
the City, of all Franchise property and facilities, together with any appurtenant property and
facilities of the Company situated within the Public Rights -of -Way which are related to the Cable
System.
f. Riaht to Audit.
In addition to any other inspection rights under this Chapter or the Franchise, upon
thirty (30) days prior written notice, the City shall have the right to inspect, examine, or
audit, during normal business hours, all documents pertaining to a Company or any
Affiliated Person which are reasonably necessary to ascertain a Company's
compliance with its Franchise or this Chapter. All documents pertaining to financial
matters which may be the subject of an audit by the City as set forth herein shall be
retained by a Company for a minimum of five (5) years during the term of and
following the termination of a Franchise. Access by the City to any of the documents
covered by this Section shall not be denied by the Company on grounds that the
documents are alleged by the Company to contain proprietary information.
2. The City may require written certification by a Company's directors, officers, or other
employees with respect to all documents referred to in this Section.
Any audit conducted by the City pursuant to this Section shall be conducted at City's
expense. City shall prepare a written report containing its findings, a copy of which
shall be mailed to a Company. Company shall reimburse the City for the expense of
this audit if, as the result of the audit, it is determined that there is a shortfall of more
than two percent (2 %) in the amount of franchise fees or other payments which have
been made or will be made by a Company to the City pursuant to the terms of the
Franchise.
Retention of Experts. In the exercise of its rights under this Chapter, the City shall have
the further right to retain technical experts and other consultants on a periodic basis for
the purpose of monitoring, testing, and inspecting any construction, operation,
maintenance or reconstruction of the System, and all parts thereof, or to ensure
compliance with and enforcement of the provisions of this Chapter and the Franchise.
The City shall bear the cost of retaining the experts, provided that, unless prohibited by
applicable law, the Company shall reimburse the City for all expenses related to the
retention of the experts where this Chapter or the Franchise so provide, or under either
of the following circumstances:
-31-
The Company has initiated proceedings which would normally require the City to
retain the experts, such as the filing of a request for approval of a transfer or change
in Control, renewal to the extent allowed by law, expansion of the Franchise Service
Area, or the modification or amendment of the Franchise; or
The reports of the experts submitted to the City reveal that the Company has failed to
substantially comply with the terms and conditions of this Chapter or of the
Franchise.
If Company is required to reimburse City pursuant to this paragraph (g), City shall send
Company an itemized description of the charges, and Company shall pay the amount
within forty -five (45) days after the receipt of the description.
Section 5.44.135 Indemnity and Liability Insurance.
a. To the maximum extent permitted by applicable law, a Company shall at all times
defend, indemnify, protect, save harmless, and exempt the City, the City Council, its officers,
agents, servants, attorneys and employees, from any and all, penalties, damages or charges
arising out of claims, suits, demands, causes of action, award of damages, imposition of fines
and penalties, whether compensatory or punitive, or expenses arising therefrom, either at law or
in equity, which arise out of, or are caused by, the construction, erection, location, performance,
operation, maintenance, repair, installation, replacement, removal or restoration of Facilities
within the City based upon any act or omission of a Company, its agents or employees,
contractors, subcontractors, independent contractors, or representatives except for that which is
attributable to the sole negligence or willful misconduct of the City, the City Council, its officers,
agents, servants, attorneys and employees. With respect to the penalties, damages or charges
referenced herein, reasonable attorneys' fees, consultants' fees, and expert witness fees are
included as those costs which shall be recovered by the City.
b. Except as provided in or as supplemented by any Franchise Agreement, License or
Permit, a Company shall secure and maintain, public liability, property damage insurance, and
umbrella coverage in at least the following amounts:
Public liability: Two (2) million dollars per person /per occurrence;
2. Property Damage: Two (2) million dollars per any one claim;
3. Umbrella liability: Five (5) million dollars.
c. The public and personal liability and property damage insurance policy shall specifically
include the City, the City Council, its employees, and agents as additional insureds.
d. The public and personal liability and property damage insurance policies shall be issued
by an agent or representative of an insurance company licensed to do business in the State and
which has one of the three highest or best ratings from the Alfred M. Best Company.
e. The public liability and property damage insurance policies shall contain an endorsement
obligating the insurance company to furnish the Director with at least thirty (30) days written
notice in advance of the cancellation of the policy.
-32-
f. Renewal or replacement policies or certificates shall be delivered to the Director at least
fifteen (15) days before the expiration of the insurance which such policies are to renew or be
replaced.
g. Before a Company commences any construction, the Company shall deliver the policies
or certificates representing the insurance to the Director as required herein.
h. The Director may adjust the coverage amounts specified in paragraph (b) of this Section
provided that the adjustments result in the Company meeting or exceeding the coverage
specified in this Section.
Section 5.44.140 Miscellaneous Provisions.
a. Captions. The section, subsection, paragraph, and subparagraph numbers and letters,
and the captions throughout this Chapter, are intended to facilitate reading and reference. The
numbers, letters, and captions shall not affect the meaning or interpretation of any part of this
Chapter.
b. Franchise References. A Franchise which cites, refers to, or otherwise incorporates this
Chapter, or portions thereof, shall be deemed to be a Franchise issued under and subject to this
Chapter.
c. Filing. When not otherwise specified in this Chapter, all documents required to be filed
with City shall be filed with the City's representative as designated by City.
d. Non - enforcement by the City. A Company shall not be excused from complying with any
of the requirements of this Chapter, and of its Franchise, and all laws and regulations, or any
subsequently adopted amendments to this Chapter, by any failure of the City on any one or
more occasions to seek, or insist upon, compliance with the requirements or provisions of the
Chapter or Franchise.
e. Continuity of Service. It is the right of all Subscribers to receive Cable Services so long
as their financial and other obligations to a Company are honored. In the event that a Company
elects to rebuild, modify, or sell the System, a Company shall use due diligence and reasonable
care to ensure that all Subscribers receive continuous, uninterrupted service. In the event of a
transfer of the System by Company, the current Company shall cooperate with the City or new
Company to operate the System for a temporary period, in order to maintain continuity of service
to all Subscribers. In the event that Company, through its own fault, discontinues system -wide
service for seventy -two (72) continuous hours, and Company is in material default of its
Franchise, or if the Franchise is revoked by City (but not if City fails to renew the Franchise), City
may, by resolution, when it deems reasonable cause to exist, assume operation of the System
for the purpose of maintaining continuity of service. City's operation of the System may continue
until the circumstances which, in the judgment of the City, threaten the continuity of service are
resolved to City's satisfaction. City shall be entitled to the revenues for any period during which
it operates the System.
f. Operation by City. During any period when the System is being operated by City
pursuant to paragraph (e) above, City shall, as it may deem necessary, make any changes in
any aspect of operations that, in City's sole judgment, are required for the preservation of quality
of service and service continuity.
-33-
g. Management by City. City may, upon assuming operation of a System franchised
hereunder, appoint a manager to act for it in conducting the System's affairs. The manager shall
have the authority as may be delegated by City and shall be solely responsible to City for
management of the System. Company shall reimburse City for all its reasonable costs, in
excess of System revenues, incurred during City's operation if the Franchise is in full force and
effect during the period of City's operation.
h. Notices. All notices and other communications to Company and to City shall be set forth
in the Franchise.
i. Force Maieure: Company's Inability to Perform. In the event Company's performance of
any of the terms, conditions, obligations, or requirements of this Chapter, or any Franchise
granted hereunder, is prevented or impaired due to any cause beyond its reasonable control
and not reasonably foreseeable, the inability to perform shall be deemed to be excused, and no
penalties or sanctions shall be imposed as a result. The causes beyond Company's reasonable
control and not reasonably foreseeable shall include, but not be limited to, any acts of God, civil
emergencies, labor unrest, strikes, utility interruptions, inability to obtain access to an
individual's property on reasonable terms, and any inability of a Company to secure all required
authorizations or permits to utilize necessary poles or conduits, so long as Company uses due
diligence to timely obtain the authorization or permits.
j. Application. All of the provisions of this Chapter shall be applicable to all Cable
Operators, Cable Systems, OVS Operators and OVS Systems to the greatest extent permissible
under applicable law.
k. Severability. If any provision of this Chapter is determined to be void or invalid by any
administrative or judicial tribunal, the provision shall be deemed severable and the invalidation
shall not invalidate the entirety of this Chapter or any other provision.
I. Possessory Interest. By accepting any PROW Permit granted pursuant to this Chapter,
Company acknowledges that notice is and was hereby given to Company pursuant to California
Revenue and Taxation Code Section 107.6 that the use or occupancy of any Public Property
may cause certain taxes to be levied upon such interest. Company shall be solely liable for, and
shall pay and discharge prior to delinquency, any and all possessory interest taxes or other
taxes levied against its right to possession, occupancy or use of any PROW or Public Property
pursuant to any right of possession, occupancy or use created by any PROW Permit.
Section 3: That if any section, subsection, sentence, clause or phrase of this Ordinance is
for any reason held to be invalid or unconstitutional, such decision shall not affect the validity or
constitutionality of the remaining portions of this Ordinance. The City Council hereby declares that
it would have passed this Ordinance and each section, subsection, clause or phrase hereof,
irrespective of the fact that any one to more sections, subsections, sentences, clauses and phrases
be declared unconstitutional.
Section 4: The Mayor shall sign and the City Clerk shall attest to the passage of this
Ordinance. The City Clerk shall cause the same to be published once in the official newspaper
within fifteen (15) days after its adoption.
-34-
Section 5. The City Clerk is directed to certify to the passage and adoption of this
Chapter and to cause it to be published or posted as required by law.
PASSED, APPROVED and ADOPTED this 25'0 day of May, 2004.
ATTEST:
O -P �rw-)
bEpUi� CITY CLERK
MAYOR
W
o° o
�C /cppN�'
-35-
STATE OF CALIFORNIA }
COUNTY OF ORANGE
CITY OF NEWPORT BEACH
I, LEILANI I. BROWN, Deputy City Clerk of the City of Newport Beach, California,
do hereby certify that the whole number of members of the City Council is seven; that the foregoing
ordinance, being Ordinance No. 2004 -8 was duly and regularly introduced before and adopted by the
City Council of said City at a regular meeting of said Council, duly and regularly held on the 25th
day of May 2004, and that the same was so passed and adopted by the following vote, to wit:
Ayes: Heffernan, Rosansky, Bromberg, Webb, Nichols, Mayor Ridgeway
Noes: None
Absent: Adams
Abstain: None
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the
official seal of said City this 26th day of May 2004
MD Deputy City Clerk
City of Newport Beach, California
(Seal)
CERTIFICATE OF PUBLICATION
STATE OF CALIFORNIA }
COUNTY OF ORANGE } ss.
CITY OF NEWPORT BEACH }
I, LAVONNE M. HARKLESS, City Clerk of the City of Newport Beach, California, do hereby
certify that Ordinance No. 2004 -8 has been duly and regularly published according to law and the
order of the City Council of said City and that same was so published in The Daily Pilot, a daily
newspaper of general circulation on the following date, to wit: May 29, 2004.
In witness whereof, I have hereunto subscribed my name think day of
0111TI
�d� A, 4ah,
City Clerk
City of Newport Beach, California