5.16.490 - Applications—Generally.

A.

An application must be filed for an initial and renewal cable system franchise, or for approval of a transfer. All applications under the provisions of this chapter shall be in writing and shall be filed in the Office of the City Clerk. These requirements do not apply to a renewal proposal submitted pursuant to 47 U.S.C. Section 546(h) as may be amended.

1.

At a minimum, each application must identify the applicant, show that the applicant is financially, technically and legally qualified to construct, maintain and operate the cable system, contain a pro forma showing capital expenditures and expected income and expenses for the first five years the applicant is to hold the franchise, and show that the applicant is willing to comply unconditionally with this chapter and its franchise obligations. In addition, any application for an initial or renewal franchise must describe in detail the cable system that the applicant proposes to build or maintain, show where it is or will be located, set out the system construction or rebuild schedule, and show that the applicant will provide adequate channels, facilities and other support for public, educational and government use (including institutional network use) of the cable system. To be accepted for filing, an original and six copies of a complete application must be submitted. All applications shall include the names and addresses of persons authorized to act on behalf of the applicant with respect to the application.

2.

The city may demand, and applicant shall provide, such supplementary, additional or other information as the City Council may deem reasonably necessary to determine whether the application should be granted. An applicant (and the transferor and transferee, in the case of a transfer) shall respond to ay request for information from the city by the time specified by the city or by applicable law.

C.

An application may be rejected if it is incomplete.

(Ord. 12729 § 1 (part), 2006)

5.16.500 - Application for an initial franchise or renewal franchise.

A.

This section establishes additional provisions that apply to an application for an initial franchise, or a renewal franchise application that is not governed by 47 U.S.C. Section 546(a)—(h) as may be amended.

B.

Any person may apply for an initial or renewal franchise by submitting an application therefor on that person's own initiative, or in response to a request for proposals issued by the city. If the city receives an unsolicited application, it may choose to issue a request for additional proposals, and require the applicant to amend its proposal to respond thereto. The city may conduct such investigations as are necessary to act on an application.

C.

Before taking final action on an application, the city shall conduct a public hearing in accordance with applicable state and federal law.

D.

In determining whether to grant a franchise, the city may consider:

1.

The extent to which an applicant for renewal has substantially complied with the applicable law and the material terms of any existing cable franchise ordinance;

2.

Whether an applicant for renewal's quality of service under its existing franchise ordinance, including signal quality, response to customer complaints, billing practices, and the like has been reasonable in light of the needs of the community;

3.

Where the applicant has not previously held a cable system franchise in the city, whether the applicant's record in other communities indicates that it can be relied upon to provide high-quality service throughout any franchise term;

4.

Whether the applicant has the financial, legal, and technical ability to provide the services, facilities, and equipment set forth in an application, and to satisfy any minimum requirements established by the city;

5.

Whether the applicants application is reasonable to meet the future cable-related needs and interests of the city, taking into account the cost of meeting such needs and interests;

6.

Whether issuance of a franchise is warranted in the public interest considering the immediate and future effect on streets, public property, and private property that will be used by the applicant's cable system;

7.

Whether issuance of the franchise would reduce competition in the provision of cable service in the city;

8.

Whether the applicant has proposed to provide adequate facilities, equipment, channels and other support for PEG use of the cable system;

9.

Such other matters as the city is authorized or required to consider.

E.

It the city determines that issuance of a franchise would be in the public interest considering the factors described in this section, it may proffer a franchise ordinance to the applicant.

F.

Within thirty-one (31) days after the effective date of the ordinance awarding a franchise or franchise renewal, or within such extended period of time as the City Council in its discretion may authorize, the successful applicant or franchisee shall file with the City Clerk an unconditional written acceptance, in form satisfactory to the City Attorney, of the franchise or franchise renewal, together with an agreement to be bound by and to comply with all applicable provisions of the city's Charter, this chapter, and the franchise ordinance. Such acceptance and agreement shall be acknowledged before a notary public and shall in form and content be satisfactory to and approved by the City Attorney.

(Ord. 12729 § 1 (part), 2006)

5.16.510 - Application for renewal filed pursuant to 47 U.S.C. Section 546.

A.

This Section establishes provisions that apply to applications for renewal governed by 47 U.S.C. 546(a)—(g) as may be amended.

B.

A franchisee that intends to exercise rights under 47 U.S.C. 546(a)—(g) as may be amended shall submit a notice in writing to the city in a timely manner clearly stating that it is activating the procedures set forth in those sections. The city shall thereafter commence any proceedings that may be required under federal law, and upon completion of those proceedings, the city may issue a request for proposals and an application may be submitted for renewal. The city may preliminarily deny the application by resolution, and if the application is preliminarily denied the city may conduct such proceedings and by resolution establish such procedures and appoint such individuals as may be necessary to conduct any proceedings to review the application.

C.

An application for renewal pursuant to 47 U.S.C. § 546(h) may be submitted at any time, and may be rejected by the city at any time after public hearing.

(Ord. 12729 § 1 (part), 2006)

5.16.520 - Application for transfer.

A.

This section establishes provisions that apply to applications for transfer approval.

B.

An application for transfer must contain all the information required by Section 5.16.490, all information, required by the FCC Form 394 as it existed on January 1, 1999, and all information that it is required to file under applicable federal or state law.

C.

Subject to limitations under applicable law, in determining whether a transfer application should be granted, denied, or granted subject to conditions, the city may consider the legal, financial, and technical qualifications of the transferee to operate the cable system any potential impact of the transfer on subscriber rates or services; whether the incumbent cable operator is in material compliance with its franchise, and if not any commitments to cure such non-compliance; whether the transfer may eliminate or reduce competition in the delivery of cable service in the city; and whether operation by the transferee or approval of the transfer would otherwise materially adversely affect subscribers, the public, or the city's interest under this chapter, the franchise ordinance, or other applicable law. The proposed transferee shall pay all reasonable costs incurred by the city in reviewing and evaluating the applications.

D.

No application shall be granted unless the transferee agrees in writing that it will abide by and accept all terms of this chapter and the franchise ordinance, and that it will assume the obligations, liabilities, and responsibility for all acts and omissions, known and unknown, of the previous franchisee for all purposes, except for purposes of Cable Act renewal proceedings to the extent that such a condition is prohibited by Section 626 of the Cable Act, 47 U.S.C. § 546.

(Ord. 12729 § 1 (part), 2006)

5.16.530 - Legal qualifications.

A.

1.

The applicant must be willing to comply with the provisions of this chapter and applicable laws; and to comply with such requirements of a franchise ordinance as the city may lawfully require.

2.

The applicant must not have had any cable system or OVS franchise revoked by the city within three years preceding the submission of the application. If franchisee challenges a revocation, it may not apply while the appeal is pending, or for three years after the final resolution of the appeal if the revocation is valid.

3.

The applicant may not have had an application to the city for an initial or renewal cable system franchise denied on the ground that the applicant failed to propose a cable system meeting the cable-related needs and interests of the community, or as to which any challenges to such franchising decision were finally resolved (including any appeals) adversely to the applicant, within three years preceding the submission of the application and may not have had an application for an initial or renewal OVS franchise denied on any ground within three years of the application.

4.

The applicant shall not be issued a franchise if at any time during the ten (10) years preceding the submission of the application, applicant was convicted of fraud, racketeering, anti-competitive actions, unfair trade practices or other conduct of such character that the applicant cannot be relied upon to deal truthfully with the city and the subscribers, or to substantially comply with its obligations.

5.

Applicant must have the necessary authority under California and federal law to operate a cable system, or show that it is in a position to obtain that authority.

6.

The applicant shall not be issued a franchise if it files materially misleading information in its application or intentionally withholds information that the applicant lawfully is required to provide.

7.

For purposes of Section 5.16.530(A)(1)—(4), the term applicant includes any affiliate of applicant.

B.

Notwithstanding Section 5.16.530(A), an applicant shall be provided a reasonable opportunity to show that a franchise should issue even if the requirements of Section 5.16.530(A)(2)—(4) are not satisfied, by virtue of the circumstances surrounding the matter and the steps taken by the applicant to cure all harms flowing therefrom and prevent their recurrence, the lack of involvement of the applicant's principals, or the remoteness of the matter from the operation of a cable system.

(Ord. 12729 § 1 (part), 2006)

5.16.540 - Franchise fee.

A cable system operator shall pay to the city a franchise fee in an amount equal to five percent of gross revenues from the provision of cable services, or such other amount as may be specified in the franchise ordinance.

(Ord. 12729 § 1 (part), 2006)

5.16.550 - No exclusivity.

To the extent prohibited by applicable law, a franchisee may not directly or indirectly require a subscriber or building owner or manager to enter into an exclusive contract as a condition of providing or continuing to provide cable service. A franchisee must offer service on a month-to-month basis. Nothing in this section shall prevent a franchisee from entering into a longer term and/or exclusive contract with a subscriber or building owner in exchange for discounted rates or other consideration, to the extent permitted by applicable law.

A.

It is the policy of the city to ensure that every cable system provide service in its franchise area upon request to any residential dwelling unit. In addition, each franchisee shall provide service to any school or government building in the city, subject to written request from the city administrator and any applicable line extension policies in a franchise ordinance. Each franchisee shall extend service upon request within its franchise area, provided that, a franchise ordinance may permit a franchisee to require a potential subscriber to contribute a fair share of the capital costs of installation or extension as a condition of extension or installation in cases where such extension or installation may be unduly expensive. cable service must be provided within time limits specified in the franchise ordinance.

B.

A cable system within the city shall meet or exceed the technical standards set forth in 47 C.F.R. § 76.601 and any other applicable technical standards as may be amended.

C.

Each cable system operator shall perform at its expense such tests as may be necessary to show whether or not the franchisee is in compliance with its obligations under applicable FCC standards, this chapter or a franchise ordinance.

D.

Each franchisee shall, during the term of its franchise, ensure that subscribers are able to receive continuous service. In the event the franchise is revoked or terminated, the franchisee may be required to continue to provide service for a reasonable period to assure an orderly transition of service from the franchisee to another person. A franchise ordinance may establish more particular requirements under which these obligations will be satisfied.

(Ord. 12729 § 1 (part), 2006)

5.16.560 - Rate regulation.

A.

The city may regulate any of the cable communications system operator's rates and charges, except to the extent it is prohibited from doing so by law. The city will regulate rates in accordance with FCC rules and regulations, where applicable. Except to the extent FCC rules provide otherwise, all rates and charges that are subject to regulation, and changes in those rates or charges must be approved in advance. The City Administrator may take any required steps to file complaints, toll rates, issue accounting orders or take any other steps required to comply with FCC regulations. The City Council shall be responsible for issuing rate orders that establish rates or order refunds. A franchisee must comply with all rate orders issued by the City Council pending appeals by the franchisee unless a stay order has been issued by the FCC.

B.

Except to the extent the city may not enforce such a requirement, a cable communications system operator is prohibited from discriminating in its rates or charges or from granting undue preferences to any subscriber, potential subscriber, or group of subscribers or potential subscribers; provided, however, that a franchisee may offer temporary, bona fide promotional discounts in order to attract or maintain subscribers, so long as such discounts are offered on a non-discriminatory basis to similar classes of subscribers throughout the franchise area; and a franchisee may offer bulk discounts at negotiated rates; and a franchisee may offer discounts for the elderly, the disabled, or the economically disadvantaged; and such other discounts as it is permitted to provide under federal and state law, if such discounts are applied in a uniform and consistent manner.

C.

A cable communications system operator shall not deny access or charge different rates to any group of subscribers or potential subscribers because of the income of the residents of the local area in which such group resides.

(Ord. 12729 § 1 (part), 2006)

5.16.570 - Consumer protection and customer service.

A.

Each franchisee must comply with all applicable state and federal consumer protection provisions. In addition, each franchise ordinance shall set forth customer service standards which the franchisee must comply with.

B.

For each violation of an applicable consumer protection or customer service standard, the city may impose penalties as follows:

1.

Two hundred dollars ($200.00) for each day of each material breach, not to exceed six hundred dollars ($600.00) for each occurrence of the material breach).

2.

If there is a subsequent material breach of the same provision within twelve (12) months, four hundred dollars ($400.00) for each day of each material breach, not to exceed one thousand two hundred dollars ($1,200.00) for each occurrence of the material breach.

3.

If there is a third or additional material breach of the same provision within twelve (12) months of the first, one thousand dollars ($1,000.00) for each day of each material breach, not to exceed three thousand dollars (3,000.00) for each occurrence of the material breach.

C.

No penalty shall be assessed under this Section 5.16.570 for a breach where the city has the right to impose liquidated damages for the same occurrence.

D.

A citation may be served on the franchisee by providing a copy to the person to whom notices are to be sent under the franchise ordinance.

E.

Penalties under this Section 3.650 shall be imposed pursuant to the procedures set forth in Cal. Govt. Code Section 53088(r), and may be collected by the city from the security fund required under Section 2.430(G) of the ordinance codified in this chapter.

(Ord. 12729 § 1 (part), 2006)