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HomeMy WebLinkAbout1890 - Amending Sections of Title 5, Chapter 5.44, Of the Newport Beach Municipal Code Entitled "Community Antenna Television”ORDINANCE NO. 1890 AN ORDINANCE OF THE CITY OF NEWPORT BEACH • AMENDING SECTIONS OF TITLE 5, CHAPTER 5.44, OF THE NEWPORT BEACH MUNICIPAL CODE ENTITLED "COMMUNITY ANTENNA TELEVISION" The City Council of the City of Newport Beach does ordain as follows: SECTION 1. The following sections of Newport Beach Municipal Code are hereby amended to read as follows: 58ctions: 5.44.010 Definitions. 5.44.020 Franchise to Operate. 5.44.030 Uses Permitted. 5.44.035 Regulation of Rates and Service.. 5.44.040 Duration of Franchise. 5.44.050 Franchise Payment. 5.44.060 Limitations of Franchise. • 5.44.070 Rights Reserved to City. 5.44.080 Permits, Installation and Service. 5.44.090 Location of Grantee's Properties. 5.44.100 Removal or Abandonment of Property of Grantee. 5.44.110 Failure to Perform Street Work. 5.44.120 Surety Bonds. 5.44.130 Protection of City Against Liability. 5.44.140 Inspection of Property and Records. 5.44.150 Operational Standards. 5.44.151 Technological Developments. 5.44.152 System Compatibility and Connectibility. 5.44.160 Miscellaneous Provisions. 5.44.165 Adoption of Rules and Regulations by the City Council. • 5.44.170 Application for Franchise. 5.44.172 Application Fee. 5.44.173 Affect of Annexation. 5.44.175 Affect of Preemption. 5.44.180 Franchise Renewal. • • 5.44.185 Locking Devices to Permit Exercise of Parental Discretion. 5.44.190 Violations. 5.44.010 Definitions. For the purpose of this Chapter, the following terms, phrases, words and their derivatives shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number and words in the singular number include the plural number. The word "shall" is always mandatory and not merely directory. To the extent any conflict exists between these definitions and the definitions as set forth in other ordinances, these definitions will control.. (a) CITY. The term "City" shall mean the City of Newport Beach in its present incorporated form or in any later recognized, consolidated, enlarged or reincorporated form. (b) COUNCIL. The term "Council" shall mean the present governing body of the City, or any future board constitu- ting the legislative body of the City. (c) PERSON. The term "Person" shall mean any indivi- dual, firm, partnership, association, corporation, company or organization of any kind. (d). GRANTEE. The term "Grantee" shall mean the person, firm or corporation to whom or which a franchise under this chapter is granted by the Council, and the lawful successor or assignee of said person, firm or corporation. (e) COMMUNITY ANTENNA TELEVISION SYSTEM. The term "Community Antenna Television System" or "CATV System" shall mean a system employing antennae, microwave, wires, waveguides, coaxial cables or other conductors, equipment or facilities designed, constructed or used for any or all of the following purposes: (1) collecting or amplifying local and distant broadcast television, satellite, microwave or radio signals and distributing and transmitting them; (2) transmitting original cablecast programming not received through television broadcast signals; -2- • • • (3) transmitting television pictures, film and video tape programs not received through broadcast television signals, whether or not encoded or processed to permit reception by only selected receivers; or transmissions; (4) transmitting or receiving two -way signals (5) providing data transfer capability in any shape or form, including that of a security system or a common carrier should CATV systems ever be so defined by Federal rule or regulation; (6) transmitting or receiving all other signals whether digital, voice or audio visual. (f) SUBSCRIBERS or USERS. The terms "Subscribers" or "Users" shall mean any person(s) or entity(ies) receiving, for any purpose,.any service of the Grantee's community antenna tele- vision system, including, but not limited to, the conventional cable television system service of retransmission of television broadcast, satellite, microwave or radio signals, Grantee's original cablecasting, local government, education and public access channel cabelcasting and other services such as leasing of channels, data and facsimile transmissions and police, fire and similar public service communications. (g) GROSS ANNUAL RECEIPTS. The term "Gross Annual Receipts" shall mean any and all compensation and other considera- tion, in any form whatsoever, and any contributing grant or subsidy received directly or indirectly by Grantee from: (1) subscribers or users in payment for any CATV system services including television broadcast, satellite, micro- wave, or FM radio signals, reception or service received within the City or transmitted in any shape or form, from the City, for which local subscribers or users make payment, whether said signals, reception or service is included within the terms "Basic Subscriber Services" or "Non Basic Services" as said terms may be.defined in the Municipal Code, as well as any installation or line extension charges therefor "; -3- (2) any other compensation for utilization of or connection to the property of Grantee used within the City, including the sale, rental or provision of any equipment, parts • or add -ons to be used in connection with the CATV system; (3) notwithstanding the above, Gross Annual Receipts shall not include any taxes on services furnished by the Grantee and imposed directly.on any subscribers or users by any City, State or other governmental unit and collected by the Grantee for such governmental unit. (h) BASIC SUBSCRIBER SERVICES. The term "Basic Subscriber Services" shall mean and include the delivery, by the Grantee, to all subscribers within the confines of its franchise area of: (1) all signals of over - the - air - television broadcast, pursuant to FCC license, or all those over - the -air signals which are received and transmitted in the community without the aid of a.cable television system or similar apparatus; (2) all satellite signals received and transmitted • in the community by the Grantee as of the effective date of this Section; (3) all satellite signals received and trans- mitted in the community after the effective date of this Section, with the exception of those included under Section 5.44.010(il of "Non Basic Services" as defined herein; (4) all public, local education, local govern- ment, local origination and public access channels and signals; (5) other channels, signals,.'(.including micro- wave) programs and services, provided by the Grantee as part of the Basic Subscriber Service package. (i) NON BASIC SERVICES. The term "Non Basic Services" shall mean and include channels, signals, programs and services not provided as part of the "Basic Subscriber Services" package, • as defined herein above. These shall include: (1) pay or subscription television as defined by the FCC and radio services supplied by the Grantee; -4- • • • (2) satellite or microwave signals which are offered to subscribers as optional- tiered services for a separate fee or charge and which are independent of those satellite or microwave signals provided as part of the "Basic Subscriber Services" package as defined herein; (3) advertising or commercial messages; (4) equipment and appurtenances representing technological developments and enhancements in the field which the Grantee may, from time to.time, make available to subscribers, provided that subscribers have the option of not acquiring said additional equipment or appurtenances and further, provided that the exercise of the option not to purchase shall, in no way, affect a subscriber's existing service or preclude him from receiving "Basic Subscriber Services" as defined herein. (j) FRANCHISE AREA. The term "Franchise Area" shall mean the territory within the City throughout which. Grantee shall be authorized to construct, maintain and operate its system and shall include any enlargements thereof and additions thereto. 5.44.035 Regulation of Rates and Service. (a) The City Council shall, at all times and from time- to -time during the term of any franchise granted hereunder, have the power to and shall adopt and enforce and Grantee shall conform to rules and regulations of the Council governing and establishing reasonable rules, regulations and standards of performance pertaining to the system of Grantee. (b) The City Council shall establish or approve all subscriber, installation and other incidental rates and charges for "Basic Subscriber Services" as defined herein, and no such rates or charges shall be changed at any time except by authority of the Council and upon written request of the Grantee; provided, that prior to authorizing the change of any rates or charges of Grantee to Subscribers, at any time after the granting of such franchise, the Council shall first pass its resolution of intention to do.so, describing and stating any rates or charges to be changed, the reasons of the Council therefor, fixing a day, hour and place certain when and where any persons having any interest therein may -5- appear before the Council and be heard and directing the City Clerk to publish said resolution at least once, within fifteen (15) days of the passage thereof. The City Clerk shall cause such • resolution to be published in a newspaper of general circulation within the City, and the same shall be published and a copy thereof shall be mailed to any Grantee hereunder at least ten (10) days prior to the date specified for hearing thereon. At the time set for such hearing, or at any adjournment thereof, the Council shall proceed to hear and pass on all presentations made before it, and the decision of the Council thereon shall be final and con- clusive. If the Council shall find that the changing of any rates or charges of Grantee to Subscribers will not be detrimental or injurious to the best interests and welfare of the subscribers and of the City, then the Council may, by resolution, authorize the change of any rates or charges of Grantee to Subscribers as shall be deemed reasonable by the Council in the premises; and such resolution shall thereupon become and 'shall be a part of • any franchise granted hereunder and affected thereby. (c) The rates and charges for those services included under the definition "Non Basic Services" as defined herein shall not require City Council review and approval. The Grantee shall, however, provide the City with 60 -day prior written notification of any new rates or charges associated with Non Basic Services to be provided within its franchise area. SECTION 2. The following Sections are hereby added to Chapter 5.44 of the Municipal Code: 5.44.151 Technological Developments. (a) It is the desire of the City that all CATV systems franchised to operate within the City shall maintain, operate and where feasible, modify the CATV system to ensure its performance • in accordance with the highest and best accepted standards of the industry. (b) Whenever the Grantee, in consultation with the City, has determined that it is financially and technically feasible -6- and appropriate within the context of local needs and demands, the Grantee shall provide technical improvements and modifications to ensure the operation of the CATV system in accordance with the highest and best accepted standards of the industry. Such improve- ments and modifications shall include, but not necessarily be limited to: (1) continued availability and enhancement of national or international transmission capabilities via communications satellites; (2) enhancement and expansion of system channel capacity and programming; (3) improvement of public access and local pro- gramming capabilities; (4) maintenance and improvement of system's physical plant in accordance with the highest and best accepted CATV industry practices and FCC regulations; (5) implementation of two -way, interactive capa- • bility; (6) provision of security systems; (7) application of technologies such as fiber optics or other such advances in the CATV.field. (c) In making determinations relative to the financial and technical feasibility or appropriateness of specific system improvements or modifications, the following factors shall be considered: (1) whether there exists a reasonable subscriber demand for the proposed improvements or modifications; (2) whether the technology associated with the proposed improvements or.modifications has been tested and proven reliable; (3) whether the Grantee is financially and • technically able to provide the proposed improvements or modifications; (4) whether the provision of the proposed improve- ments or modifications will allow the Grantee a reasonable return on its investment in such proposed improvements or modifications. -7- (d) In implementing the provisions of this section, the City may, from time -to -time, request, and the Grantee shall provide, information relative to the feasibility or appropriateness of implementing specific system improvements or modifications • deemed desirable by the City but Grantee shall not be required to incorporate technological developments into the CATV system which do not meet the provisions of Section 5.44.151 (c) above. (e) The Grantee shall provide the City with written notification of any system improvements or modifications proposed for implementation within its respective franchise area. (f) Any controversy between the parties hereto in volving the construction or application of any of the terms, covenants, or conditions of this Section, shall, on written request of one party served on the other, be submitted to arbitration, and such arbitration shall comply with and be governed by the provisions of the California Arbitration Act, Sections 1280 through 1294.2 of the California Code of Civil Procedure. 5.44.152 System Compatability and Connectibility, • (a) It is the desire of the City that all CATV systems franchised to operate within the City shall be compatible and interconnectible with one another and with systems in adjacent cities. (b) When it is financially and technically feasible, within the area served, the Grantee shall negotiate the construction, operation and modification of its system to interconnect same with all other systems within and adjacent to the City for the purpose of sharing locally originated public and educational programming. 5.44.185 Locking Devices to Permit Exercise of Parental Discretion. (a) Grantee shall make available to.its subscribers, upon request and for a reasonable charge, locking devices to permit parental control over programming. SECTION 4. This ordinance shall be published once in • the official newspaper of the City and same shall be effective thirty (30) days after the date of its adoption. ME This ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach held on the 9th day of November , 1981, and was adopted on the 23rd • day of November , 1981, by the following vote, to wit: AYES, COUNCILMEMBERS: Hummel, Cox, Heater;. S "tragss, Plummer, Maurer ATTEST: • CITY CLERK NOES, COUNCILMEMBERS: ABSENT COUNCILMEMBERS: c MA None Hart