HomeMy WebLinkAboutOrdinance No. 95-O8ORDINANCE NO. 95-08
AN ORDINANCE OF THE COUNCIL OF THE CITY OF
AZUSA CALIFORNIA, PROVIDING FOR THE GRANTING
AND REGULATION OF FRANCHISES FOR CABLE
COMMUNICATIONS SYSTEMS.
This ordinance provides regulations for granting or renewing
a cable television franchise and operating and customer service
requirements for all cable operators.
THE CITY OF AZUSA DOES HEREBY ORDAIN AS FOLLOWS:
ARTICLE 1: TITLE.
This ordinance shall be known and may be cited as the "Cable
Communications Franchise Ordinance."
ARTICLE 2: DEFINITIONS.
For the purpose of this ordinance, the following words, terms,
phrases, and their derivations shall have the meanings given
herein, when not inconsistent with the context, words used in the
present tense include the future tense, words in singular number
include the plural number. The ward "shall" is always mandatory
and not merely directory.
"Additional Service" means any service not included in "Basic
Service" or "Institutional Service."
"Administrative Officer" means the City Manager or his/her
designee.
"Agency Subscriber" means a subscriber who receives a service
in a government or public agency, school, or nonprofit corporation
faci_'_tf.
"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
Grantee; (ii) each Person in which Grantee has, directly or
indirectly, a Controlling Interest; (iii) each officer, director,
general partner, limited partner holding an interest of five
percent (526) or more, joint venturer or joint venture partner, of
Grantee; and (iv) each Person, directly or indirectly, controlling,
controlled by, or under common Control with Grantee; provided that
"Affiliated Person" shall in no event mean the Grantor, any limited
partner holding an interest of less than five percent (51;) of
Grantee, or any creditor of Grantee solely by virtue of its status
as a creditor and which is not otherwise an Affiliated Person by
F=124\063850-0002\2139602.1 a03/22/95 —1—
reason of owning a Controlling Interest in, being owned by, or
being under common ownership, common management, or common Control
with Grantee.
"Attachment Point" means the point at which Grantee's drop
attaches to Subscriber -owned equipment.
"Basic Service" or "Basic Cable Service" or "Basic Service
Tier" means the lowest service tier which includes the retrans-
mission of local television broadcast signals.
"Broadcast Signal" means a signal transmitted over the air to
a wide public geographic audience and received by a Cable System.
111984 Cable Act" means the Cable communications Policy Act of
1984.
"1992 Cable Act" means the Cable Television Consumer
Protection and Competition Act of 1992.
"Cable Act" means the 1984 Cable Act as amended by the 1992
Cable Act.
"Cable Operator" means any Person or group of Persons (A) who
provides Cable Service over a Cable System and directly or through
one or more Affiliates owns a significant interest in such Cable
System, or (B) who otherwise controls or is responsible for,
through any arrangement, the management and operation of such a
Cable System.
"Cable Service" means (A) the one-way transmission to
Subscribers of (i) video programming, or (ii) other programming
service, and/or (B) subscriber interaction, if in conjunction with
subparagraph (A), which is required for the selection of such video
programming.
"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 a
community, but such term does not include (A) a facility that
serves only to retransmit the television signals of one or more
television broadcast stations; (B) a facility that serves only
Subscribers in one or more multiple unit dwellings under common
ownership, control, or management, unless such facility or
facilities uses any public right-of-way; (C) a facility of a common
carrier which is subject, in whole or in part, to the provisions of
Title II of the Cable Act, except that such facility shall be
considered a Cable System (other than for purposes of
section 621(c)) to the extent such facility is used in the
transmission of video programming directly to subscribers; or
PS2\124WOM-0002\2139602.1 &03/22/95 -2-
0
0
(D) any facilities of any electric utility used solely for
operating its electric utility systems.
"Cablecast Signal" means a non -broadcast signal that
originates within the facilities of the Cable System whether from
a live or recorded source.
"City" means the City of Azusa, California.
"Closed Circuit" or "Institutional Service" means services
provided to institutional users on an individual or collective
basis. The information contained in such a service may or may not
be simultaneously available to other system subscribers or users.
"Channel" means a frequency band capable of carrying a
standard video signal or some combination of video signals, or a
frequency band assigned to carry a non-standard video signal or
some combination of such video signals.
"Commercial Subscriber" means a Subscriber who receives a
cable service in a place other than a residential dwelling unit.
"Complaint" means a billing dispute or service call in which
a subscriber is notifying Grantee of an outage and/or degradation
in picture quality.
"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
System, the Franchise or Grantee. 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
five percent (50s) or more of any Person (which Person or group of
Persons is hereinafter referred to as ."Controlling Person") or
being a party to a management contract.
"Control" or "Controlling Interest" as used herein may be held
simultaneously by more than one Person or group of Persons.
"Converter" or "Terminal" means a device which converts
signals from one frequency to another or otherwise processes
signals for use by subscribers.
"Dro " means the cable and related equipment connecting the
system's plant to equipment at the subscriber's premises.
"Education Channel" means any channel where non-profit
educational institutions are the primary designated programmers.
PS2\124W63850-"2\2139602.1 W 22195 -3-
0 0
"FCC" means the Federal Communications Commission or its
designated representative(s).
"Franchise" means a written legal undertaking or action of the
Grantor which awards permission to a specific named person or
entity to use the streets and public ways for the purpose of
installing, operating and maintaining a Cable Television System to
provide Cable Service.
"Government Channel" means any channel where local government
agencies are the primary designated programmers and programming is
informational programming regarding government activities and
programs.
"Grantee" means the entity to which a Franchise is granted for
the construction, operation, maintenance, and reconstruction of a
Cable System and the lawful successors, transferees, or assignees
of said entity.
"Grantor" means the entity establishing this Ordinance for
territory within its present and future jurisdiction, its elected
governing body, and/or such representative person or entity as it
may designate to act on cable matters in its behalf.
"Gross Annual Revenue" or "Gross Annual Receipts" or "Gross
Receipts" means all revenue, as determined in accordance with
Generally Accepted Accounting Principles, including all revenues
designated or classified as set-aside or attributed for franchise
fees, which is received, directly or indirectly, by Grantee and by
each Affiliated Person from or in connection with the distribution
of any Service on the System or the provision of any Service
related activity in connection with the System, whether or not
authorized by any Franchise, including, without limitation, the
value of any free services provided by Grantee (other than those
provided to Grantor or those authorized or required by a Franchise
or those provided at the discretion of Grantee as a contribution to
a charitable or other organization exempt from taxation as an
entity described in Section 501(c)(3) of the Internal Revenue Code
of 1986, as amended). Gross Annual Revenue shall also include all
revenue of any other Person, including, without limitation, leased
or access channel programmers, which is received directly or
indirectly, 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. It is intended that all
revenue collected by the Grantee and each Affiliated Person from
any activity relating to the System, whether or not authorized, be
included in this definition. Gross Annual Revenue shall also
specifically include: (i) the fair market value of any nonmonetary
(i.e., barter) transactions between Grantee and any Person, other
than an Affiliated Person, but not less than the customary prices
paid in connection with equivalent transactions; (ii) the fair
F=1241063850-000=39602.1 .03/22/95 -4-
market value of any nonmonetary (i.e., barter) transaction between
Grantee 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; and (iii) any revenue
received reasonably determined from time to time by the Grantor,
through any means which is intended to have the effect of avoiding
the payment of compensation that would otherwise be paid to the
Grantor for the Franchise granted herein. Gross Annual Revenue
shall also include any bad debt recovered. Gross Annual Revenue
shall also include all advertising revenue which is received
directly or indirectly by Grantee, 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. Gross Annual Revenue shall
not include: (i) the revenue of any Person to the extent that said
revenue is also included in Gross Annual Revenue of Grantee; and
(ii) taxes imposed by law on Subscribers which Grantee is obligated
to collect.
"Headend" means that central portion(s) of the system where
signals are introduced into and received from the balance of the
system.
"Institutional Network" or "Institutional System" means a
system or portion of a system intended primarily to service non-
residential subscribers.
"Lease Channel" means any channel where someone other than
Grantor or Grantee is sold the rights to air programming.
"Local Origination Channel" means any channel where the
Grantee is the primary designated programmer.
"Monitoring" or "Tapping" means observing or receiving a
signal, or the absence of a signal, where the observer is neither
the sending nor receiving party and is not authorized by the
sending and/or receiving party to observe said signal, whether the
signal is observed or received by visual, electronic, or any other
means whatsoever.
"Non -Broadcast Signal" means a signal that is not involved in
over -the -air broadcast for general public reception.
"Open Channel" means any channel that can be received by all
Subscribers, without the use of special equipment not normally
possessed by, or available to, anyone who may become a Subscriber.
"Pay Cable" or "Pay Service," "Premium -Service" or "Pay
Television" means signals for which there is a fee or charge to
users over and above the charge for Basic Service including any
tiers of service; provided, however, the sale or lease of studio
MN124\063850-000=139602.1 &03122/95 -5-
0
0
facilities, equipment, and/or tapes to local users shall not be
deemed pay or premium services.
"PEG Channel" means a Public, Education or Government channel.
"Person" means any corporation, partnership, proprietorship,
individual or organization authorized to do business in the State
of California or any natural person.
"Plant" means the transmitting medium and related equipment
which transmits signals between the headend and subscribers,
including drops.
"Program" or "Programming" means the information content of a
signal and the act or process of creating such content, whether
that content is intended to be pictures and sound, sound only, or
any other form of information whatsoever.
"Programmer" means any person or entity who or which provides
program material or information for transmission by means of a
System.
"Property of Grantee" means all property owned or leased
within the Franchise area by Grantee in the conduct of its system
business under a Franchise granted hereunder.
"Public Channel," "Access Channel," "Community Service
Channel" or "Community Channel" means any channel for which members
of the public or any community organization may provide non -
advertiser supported programming; provided, however, sponsorship
identification fees may be paid and accepted to further community,
programming.
"Resident" means any person residing in the franchised area or
as otherwise defined by applicable law.
"Residential Dwellinc Unit" means a home, mobile home,
condominium, apartment, cooperative unit and any other individual
dwelling unit.
"Residential Subscriber" means a Subscriber who receives a
service in a dwelling unit.
"Service" means any kind of service or type of benefit
provided by Grantee or group of related benefits or abilities,
obtained or made available to any person or entity, involving the
use of a signal transmitted via a cable communications system,
whether the signal and its content are the entire service or
comprise only a part of a service which involves other elements of
any number or kind.
I e03rM95 -6-
0
0
"Service Area" means the entirety of the City of Azusa.
"Service Interruption" means the loss of picture or sound on
one or more cable channels.
"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.
"Streets and Public Ways" means the surface and the space
above and below any public street, sidewalk, alley, or other public
way or right of way of any type whatsoever.
"Subscriber" means any person or other entity electing to
subscribe to, for any purpose, a service provided by Grantee by
means of or in connection with its cable system.
"Unit" means a discrete place where system services are used,
such as a residence, apartment, office, store, etc.
"User(s)" means any person or entity who either receives
services from a cable system or who accomplishes any purpose by, in
part or in whole, transmitting or receiving information via a cable
system, or who creates programming for that purpose, or who
receives and uses programming.
Terms Not Defined - Words, terms, or phrases not defined
herein shall first mean their definition in the Cable Act then
their special meanings or connotations in any industry, business,
trade or profession where they commonly carry such special
meanings. In the event such special meanings are not common, they
shall mean their standard definitions as set forth in commonly used
and accepted dictionaries of the English language.
ARTICLE 3: GRAINIT OF FRANCHISE.
3.1 Authority to Grant Franchises. The Grantor may grant a
Franchise to provide Cable Service to any Person who offers to
provide a System under and pursuant to this Ordinance.
3.2 Form. A Franchise may, at Grantor's sole option, take
the form of an ordinance, license, permit, contract, agreement,
resolution or any other form elected by Grantor.
3.3 Grants Not Reouired. Consistent with applicable state
and federal law, no provision of this ordinance shall require the
granting of a Franchise when, in the opinion of the Grantor, it is
in the public interest not to do so.
PS21126\063850-000212139602.1 +03122195 -7-
0 0
3.4 Purpose. The purpose of a Franchise shall be to identify
and authorize its specific Grantee and to identify and specify
those terms, conditions, definitions, itemizations, specifications
and other particulars of the agreement between the Grantor and
Grantee which it represents. In so doing, a Franchise may clarify,
extend and interpret the provisions of this Ordinance. Where a
Franchise and this Ordinance 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. However, no provision of this Ordinance shall be
deemed to be contractually incorporated into any Franchise granted
hereunder.
3.5 Mutual Consideration. The award of a Franchise
authorizing the use of public property or public rights for private
purposes shall be deemed consideration by the Grantee in the form
of agreement to provide the system and services offered in
accordance with the provisions hereof and of the Franchise.
3.6 Compliance with Law. Neither this Ordinance nor a
Franchise granted under it relieves Grantee of any requirement of
Grantor or of any ordinance, rule, regulation, or specification of
Grantor now or hereafter in effect, including, but not limited to,
the payment of all normal permit and inspection fees so long as
said ordinance, rules, regulations or specifications do not
materially conflict with or alter the express terms of this
ordinance, as amended, if applicable, and the Franchise.
3.7 Franchise Non -Exclusive. Grantor may, at its option,
grant one or more Franchises to construct, operate, maintain, and
reconstruct a System. Said Franchises shall constitute both a
privilege and an obligation to provide the system and services
required by this ordinance and the Franchise.
3.8 Limitation. No privilege shall be granted or conferred
by a Franchise except those specifically prescribed herein or in
the Franchise.
3.9 Duration. The term of any Franchise, and all rights,
privileges, obligations and restrictions pertaining thereto shall
be specified in the Franchise. The effective date of any Franchise
shall be as specified in the Franchise.
3.10 Use of Public Streets and Ways. For the purposes of
operating and maintaining a System in the franchised area, a
Grantee may place and maintain within the public rights of way such
property and equipment 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,
the Grantee shall apply for, pay all applicable fees, and receive
all necessary permits.
PS21124\063830-000212139602.1 +03122/95 -8-
3.11 Use of Other Utilities. Any person or entity who
provides a system or services as defined herein shall be deemed a
Grantee and shall not do so except in accordance with a Franchise
granted hereunder. If such Grantee uses distribution channels
furnished by a telephone company or other public utility, said
Grantee shall be required to comply with all of the provisions
hereof as a "Licensee," and the term "Grantee" herein shall include
"Licensee" in its meaning.
3.12 Assignment or Transfer or Sale of Franchise.
A. There shall be no assignment of a Franchise, in whole
or in part, or change in Control or the composition of ownership of
the Grantee without the prior express written approval of the
Grantor.
B. Any assignment or transfer without such prior written
consent shall constitute a default of such Franchise which will
cause a Franchise to terminate.
C. At least one hundred twenty (120) days before such a
proposed assignment of the Franchise is scheduled to become
effective, the Grantee shall petition in writing for the Grantor's
written consent for such a proposed assignment. It is specifically
noted that the Grantee shall submit to the Council (concurrently
with submission of its written petition) an FCC 394 Form (or
successor form) together with (1) any other information or
documentation required by the State or Federal government
(including the FCC), (2) the information referenced in subsections
(G) and (H) of this Section, (3) unedited and unredacted purchase
or transfer documents with all schedules and exhibits thereto, and
4) information regarding the financial ability and stability of the
proposed assignee with respect to being able to perform all
obligations of the existing Franchise.
D. The Council shall not unreasonably withhold its
consent to such an assignment. However, in evaluating the petition
for assignment, transfer, or sale, the Council/franchising
authority may, at its sole discretion, undertake a technical
inspection and audit of the system to determine whether the System
complies with all applicable technical and safety codes as well as
complies with this Ordinance and Franchise. Also, the technical
inspection and audit is designed to determine the technical
integrity and stability of the present System.
E. Should the Grantor determine (as a result of the
technical inspection and audit) that the System does not comply
with federal, state, or local standards, then the Grantee shall be
provided with an opportunity to correct or cure the area of non-
compliance or operational deficiency. In the alternative, the
Grantor may work with both the current and proposed Grantee to cure
M12aWOM-000212139602.1 .03/22195 -9-
0
0
the area of non-compliance or operational deficiency.
F. If the Grantor has not previously supplied the
Grantor with certain operational reports and data, then the
franchised Grantee shall submit the following reports at the time
it submits its FCC Form 394:
1. FCC Form 395-A relating to equal employment
opportunity, and fair contracting policies;
2. FCC Form 320 concerning cumulative leakage index
(CLI);
3. periodic revenue statements in the form and
format referenced to in this ordinance; and
4. preventive maintenance reports in the form and
degree referenced to in this ordinance; and
5. subscriber logs in the form and formate
referenced to in this ordinance.
G. At the time the Grantee submits its written petition, it
shall also submit a copy of the completed sales agreement, or a
functionally equivalent instrument, between the Grantee and
proposed assignee or transferee or buyer, so that the Grantor may
discover the assumption or obligations by the Grantee and proposed
assignee or transferee or buyer with respect to the System, the
acquisition price, and the potential impact of the transaction upon
rates. The Grantor may request additional information unless the
disclosure of such information is expressly prohibited by law.
H. Before an assignment is approved by the Grantor, the
proposed assignee, transferee, or buyer shall execute an affidavit,
acknowledging that it has read, understood, and will abide by both
this Ordinance and the applicable franchise agreement.
I. In the event of any approved assignment the assignee
shall assume all obligations and liabilities of the former Grantee
relating to the Franchise, unless specifically relieved by Federal
or State law, or unless specifically relieved by the Grantor at the
time the assignment is approved.
K. Should the Grantor not approve a petition for consent,
then the Grantee may immediately submit another petition or an
amended petition for consent. In such a situation, then the one
hundred twenty (120) day time -frame begins to run anew. In such a
situation, the (procedural and substantive provisions of both
federal and local law must again be followed and met.
FsnN124\063sw-00=2139e02.1 WN22195 _10-
0 0
3.13 Reimbursement of Transfer Costs. If Grantor approves a
transfer or sale as described in this Article, Grantee shall
reimburse Grantor for Grantor's reasonable processing and review
expenses in connection with a transfer of the Franchise or of
control of the Franchise, including without limitation, cost of
administrative review, financial, legal and technical evaluation of
the proposed transferee, consultants (including technical and legal
experts and all costs incurred by such experts), notice and
publication costs and document preparation expenses. In addition,
prior to any transfer, Grantee shall reimburse Grantor for all
Grantor's expenses in connection with evaluating and/or negotiating
a renewal of Grantee's franchise whether or not said renewal was
ever finalized or granted. Grantor may send Grantee an itemized
description of such charges and Grantee shall pay such amount
within twenty (20) days of the receipt of such description.
3.14 Violation. If the Grantee shall violate any or all of
Section 3.12 of this Article, the Franchise shall terminate. The
procedures contained in Article 15 of this Ordinance shall not
apply to a violation of this Article 3 and the termination of the
Franchise shall occur as a matter of law upon the occurrence of the
violation.
ARTICLE 4: RIGHTS RESERVED TO THE GRANTOR.
4.1 Reservation. There is hereby reserved to Grantor every
right it may have in relation to its power of eminent domain over
Grantee's Franchise and property.
4.2 Non -waiver or Bar. Neither the granting of any
Franchise, nor any provisions hereof, shall constitute a waiver or
bar to the exercise of any governmental right or power by Grantor.
4.3 Delegation of Powers. Any right or power in, or duty
retained by or imposed upon Grantor, or any commission, officer,
employee, department, or board of Grantor, may be assigned or
transferred by Grantor to any officer, employee, department or
board of Grantor or such other person or entity as Grantor may
designate to act on its behalf.
4.4 Right of Inspection of Construction. The Grantor shall
have the right to inspect all construction or installation or other
physical work performed by Grantee in connection with the
Franchise, and to make such tests as it shall find necessary to
ensure compliance with the terms of the Franchise and other
pertinent provisions of law, so long as said inspection and testing
does not unreasonably interfere with Grantee's operations.
4.5 Right to Require Removal of Property. Consistent with
applicable law, at the expiration of the term or any renewal term
or extension for which the Franchise is granted, or upon its lawful
F52112410635504X)MU139602.1 x03/22/95 -11-
•
C1
revocation, expiration, or termination, the Grantor shall have the
right to require the Grantee to remove, at Grantee's expense, all
portions of its System and any other property from all streets and
public ways within the Franchise area within a reasonable period of
time.
4.6 Right of intervention. The Grantor shall have the right
of intervention in any suit, proceeding or other judicial or
administrative proceeding in which the Grantor has any material
interest, to which the Grantee is party.
4.7 Place of Inspection. The Grantor shall have the right to
inspect and request copies of all relevant information that is
reasonably necessary for the exercise of Grantor's regulatory
authority upon reasonable notice on Grantee's local premises at any
time during normal business hours, and any Grantee records kept at
another place shall, within ten (10) days of Grantor's request, be
made available at Grantee's local premises within the County of Los
Angeles for Grantor's inspection and or copying. All reports and
records required pursuant to this ordinance shall be furnished at
the sole expense of Grantee, except as otherwise provided in this
Ordinance or the Franchise.
ARTICLE 5: RIGHTS OF SUBSCRIBERS.
5.1 Discriminatory Practices Prohibited. The Grantee shall
not deny Cable Service or otherwise discriminate against
Subscribers or others on the basis of race, color, religion,
national origin, sex, age, handicap or other protected class(es).
The Grantee shall strictly adhere to the equal employment
opportunity requirements of federal, state or local governments and
shall comply with all applicable laws and executive and
administrative orders relating to non-discrimination.
5.2 Reserved.
5.3 Tapping and Monitoring. The Grantee shall not tap or
monitor or permit any other person controlled by Grantee to tap or
monitor any cable, line, signal input device or subscriber outlet
or receiver for any purpose whatsoever without the express written
consent of the Subscriber or a court order therefor; provided,
however, that the Grantee 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, controlling return path transmission, or checking for
unauthorized connections to the cable television system or service
levels or billing for pay services.
5.4 Data Collection.
A. Except for its own use, or in connection with the
MX124\063850-000212139602.1 e03122195 —12—
0 0
provision of Cable Services or for release to the Grantor, the
Grantee shall not permit its system to be used for data collection
purposes, nor shall it otherwise collect data which would reveal
the commercial product or other preferences or opinions of
individual subscribers, members of their families, or their guests,
licensees or employees, unless the Grantee shall have received the
prior affirmative written consent of such subscriber.
B. In any event, the Grantee shall not reveal or permit
the release or sale of data on individual subscribers or groups
thereof but may reveal or permit the release or sale of aggregate
data only.
5.5 Revealing Subscriber Preferences.
A. Grantee shall not reveal individual Subscriber
preferences, viewing habits, belief s, philosophy, creeds or
religious beliefs to any third person, firm, agency, governmental
unit or investigating agency without court authority or prior
written consent of the Subscriber.
B. Such written consent, if given, shall be limited to
a period of time not to exceed one (1) year or a term agreed upon
by the Grantee and Subscriber.
C. The Grantee shall not condition the delivery or
receipt of cable services to any Subscriber on any such consent.
D. Such a Subscriber may revoke without penalty or cost
any consent previously made by delivering to the Grantee in writing
a substantial indication of his/her intent to so revoke.
5.6 Revealing Subscriber Lists. The Grantee shall not
reveal, or sell, or permit the release or sale of its subscriber
list without the prior affirmative written consent of each
Subscriber on such list, provided that Grantee may use its
subscriber list as necessary for the construction, marketing, and
maintenance of the Grantee's services and facilities authorized by
a Franchise, and the billing of Subscribers for said Cable
Services; and further, provided that consistent with applicable
law, Grantor may use Grantee's subscriber list for the purpose of
communication with Subscribers in connection with matters relating
to operation, management, and maintenance of the Cable System.
5.7 Other Persons Affected. The prohibitions contained in
Sections 5.1 to 5.7, inclusive, of this Article 5 shall extend and
apply to Grantee as well as all of the following:
A. Officers, directors, employees and agents of General
and Limited Partners of the Grantee;
PS2U24\063856000212139602.1 +03/2295 -13-
B. General and Limited Partners of the Grantee;
C. Any person or combination of persons owning holding
or controlling five percent (5°s) or more of any corporate stock or
other ownership interest of the Grantee;
D. Any affiliated or subsidiary entity owned or
controlled by Grantee, 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 Grantee, shall own, hold or control five percent (5°s) or more
of any corporate stock or other ownership interest; and
E. Any person, firm or corporation acting or serving in the
capacity of holding or controlling company of the Grantee.
5.8 Subscriber Bill of Rights. Grantee shall provide, at the
time of initial connection and annually thereafter to all
Subscribers, a publication, in a form prior approved by Grantor,
delineating and describing, in clear and understandable language,
the consumer rights granted herein.
5.9 Notice to New Subscribers. Before providing cable
television service to any subscriber, Grantee shall provide a
written notice to the Subscriber covering substantially the
following information:
Customer understands that Company uses
telephone and power company facilities and
public rights of way in providing service and
that this continued use cannot be guaranteed.
Customer agrees not to make any claim against
company or the telephone company, or power
company, or counties and/or incorporated
cities of the franchise area or their officers
and/or employees in the event that such use is
denied for any reason and Company is unable,
in its discretion, to provide service over
alternate routes.
5.10 Complaint Advice. Grantor may require that Grantee
advise each Subscriber that complaints of poor service should be
made to Grantor's representative if such complaints of poor service
are not resolved by Grantee to the satisfaction of each Subscriber.
ARTICLE 6: FINANCE.
6.1 Payments to the Grantor.
A. As compensation for any Franchise to be granted, and
in consideration of permission to use the streets and public ways
PS21121106385(0 N2139602.1 W3l22195 -14-
0 •
of Grantor for the construction, operation, maintenance, and
reconstruction of a System, the Grantee shall pay to the Grantor
such amounts as specified in the Franchise.
B. Payments due the Grantor under this provision shall
be computed quarterly for the succeeding quarter, and shall be paid
within forty-five (45) days of 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 Grantor to determine the accuracy of a said payment.
C. In the event that any franchise payment or
recomputed amount is not made on or before the dates specified
herein, Grantee shall pay as additional compensation the greater of
the following:
1. An interest charge, computed from such due
date, at the annual rate equal to the prevailing commercial prime
interest rate in effect upon the due date plus one percent (1%).
2. A sum of money equal to $4,000 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%).
D. In addition to any late payment made pursuant to
section 6.1.C. above, if a payment is late by sixty days or more,
Grantee shall pay a sum of money equal to five percent (5a) of the
amount due in order to defray additional expenses and costs
incurred by Grantor by such delinquent payment.
E. If the FCC, Congress or other governmental entity
with appropriate authority ever allows a governmental entity to
increase the franchise fee beyond five percent (5°s), then that
governmental entity shall have the authority to increase the
franchise fee to the maximum percentage allowable.
F. The Grantee shall pass through to subscribers the
amount of any decrease in a franchise fee.
G. No acceptance of any payment shall be construed as
a release of, or an accord, or satisfaction of, any claim that the
Grantor might have for further or additional sums payable under the
terms of this Ordinance, or for any other performance or obligation
of a Grantee hereunder.
H. Payments of compensation made by a Grantee to the
Grantor pursuant to the provisions of this Ordinance shall be
considered in addition to, and exclusive of, any and all authorized
taxes, business license fees, other fees, other levies or
F=124\06.3850-0002\2139602.1 e03f22/93 —is—
assessments present in effect, or subsequently adopted.
I. A franchise fee does not include any items excluded
by Section 622(g)(2)(D) of the Cable Act (codified at 47 USC
542 (g) (2) (D) ) .
J. Nothing in this Section shall be construed to limit
the authority of the Grantor to impose a fee or other assessment of
any kind, on any person with respect to a Service or other
programming provided by such person over a System for which charges
are assessed to Subscribers, but not received by a Grantee
hereunder. For purposes of illustration only, this subsection
shall include the situation(s) where a premium service billing
directly to a Subscriber, or where a Person leases a channel for
commercial use and sells advertising or goods on that channel, and
receives the money directly or through a third party.
L. In light of subsection (K) of this Section, the
Franchise may contain express language which permits a different
method or manner for collection of franchise fees should the
applicable provision of the Franchise be ruled unconstitutional or
unenforceable, so that the City's source of revenue and
compensation for the use of the public right-of-way may be
protected.
6.2 Security Fund.
A. Within thirty (30) days after the effective date of
the Franchise, the Grantee shall deposit into a bank account
established by the Grantor, and maintain on deposit through the
term of the Franchise, a sum specified in the Franchise as security
for the faithful performance by it of all of the provisions of the
Franchise, and compliance with this Ordinance, and compliance with
all orders, permits and directions of any agency of the Grantor
having jurisdiction over its acts or defaults, and the payment by
the Grantee of any claims, fees, liens, taxes due the Grantor which
arise by reason of the construction, operation or maintenance of.
the System and to satisfy any actual or liquidated damages arising
out of a franchise breach.
B. Except as provided in the Franchise, if the Grantee
fails, after twenty (20) days notice, to pay to the Grantor any
fees due and unpaid, or fails to repay within such twenty (20)
days, any damages, costs or expenses which the Grantor shall be
compelled to pay by reason of any act or default of the Grantee in
connection with its Franchise; or fails to comply with any
provision of the Franchise or this Ordinance, upon a determination
by the Grantor that such failure was without just cause and which
the Grantor reasonably determines, in a manner consistent with the
procedures specified in Section 15.1 of this Ordinance, can be
remedied by an expenditure of the security or is nevertheless
,03122195 -16-
• 0
subject to liquidated damages, the Grantor may immediately withdraw
the amount thereof, with interest and/or any liquidated damages,
from the security fund. Upon such withdrawal, the Grantor shall
notify the Grantee of the amount and the date thereof.
C. within thirty (30) days after notice to it that any
amount has been withdrawn by Grantor from the security fund, the
Grantee shall deposit a sum of money sufficient to restore such
security fund to the original amount.
D. Grantee shall be entitled to the return of such
security fund, or portion thereof, with interest, if any, as
remains on deposit at the expiration of the Franchise, or its
termination, once all amounts due to the Grantor have been paid.
E. The rights reserved to the Grantor with respect to
the security fund are in addition to all other rights of the
Grantor and no action, proceeding or exercise of a right with
respect to such security fund shall affect any other right the
Grantor may have.
6.3 Faithful Performance Bond. Within thirty (30) days after
the effective date of the Franchise, the Grantee shall furnish
proof of the posting of a faithful performance bond in favor of the
Grantor, with corporate surety approved by the Grantor, which
approval shall not be unreasonably withheld, in the sum specified
in the Franchise conditioned that the Grantee shall well and truly
observe, fulfill, and perform each term and condition of the
Franchise, provided, however, that such bond shall not be required
upon certification by Grantor of completion of construction of
Grantee's Cable System. The corporate surety must be authorized to
issue such bonds in the State of California and secured through an
authorized agent in the County of Los Angeles. As defined in the
Franchise, during the course of construction, the amount of the
bond may from time to time be reduced as provided in the Franchise.
Written evidence of payment of premiums shall be filed and
maintained with the Grantor.
6.4 Letter of Credit.
A. At the option of the Grantor, it may allow the
Grantee to post in lieu of Security Fund and/or Faithful
Performance Bond, an irrevocable letter of credit, issued by a bank
approved by the Grantor, in the amount specified in the Franchise.
Said letter of credit shall incorporate wording approved by the
Grantor enabling it to draw such sums from time to time as the
Grantor may find necessary to satisfy any defaults of Grantee or to
meet any payments due Grantor under or in connection with this
ordinance or Grantee's Franchise upon ten (10) days written notice
to the letter of credit provider. Said letter of credit shall
further provide for sixty (60) days written notice by certified
PS21124\063850-0002\2139602.1 &03/22195 -17-
• 0
mail by its issuer to Grantor of any pending expiration or
cancellation, or other language acceptable to the City Attorney,
and said notice shall without further cause constitute reason for
the Grantor to draw the full sum to be held in its own accounts
until such letter shall be reestablished in good and satisfactory
form to Grantor.
B. If Grantor shall require such a letter of credit,
Grantee shall pay all fees or other charges required to keep it in
force and shall, within thirty (30) days of any draw by Grantor,
restore its face value to the original amount.
C. All provisions herein applying to bonds or security
funds shall also apply to letters of credit.
ARTICLE 7: ALTERNATIVE USER CHARGE.
A. This Section is applicable to any licensed but
unfranchised Cable Operator, and to any Cable Operator who has had
its franchise ruled unconstitutional, unenforceable, or invalid.
For all franchised Cable Operators the provisions concerning
franchise fees shall be applicable.
B. where not specifically prohibited by Federal or
State law, and as an alternative to the imposition of a franchise
fee as set forth in this ordinance, the Grantor may impose,
extract, and collect, a charge from an affected Cable Operator for
the use by such provider of the streets, rights-of-way, easements,
and public ways of the City.
C. Such an Alternative User Charge shall be based on
the value of the public rights-of-way being used by the affected
Cable Operator.
D. An Alternative User Charge is adopted in order to
receive fair compensation for the Cable Operator's use of the
public streets and public ways if such compensation cannot be
obtained by imposing a flat percentage fee on such Cable Operator's
annual gross revenue. However, an affected Cable Operator may
agree to an Alternative User Charge that is based on a flat
percentage of gross revenue.
E. Also, recognizing that an alternative user charge
may affect a Cable Operator, please note, that the Franchise may
contain express language which details a different method or manner
to handle a situation in which franchise fees as historically
calculated (as a percentage of gross revenue) are ruled
unconstitutional, or unenforceable, in order to protect, and
preserve the Grantor's source of revenue and compensation for the
use of the public rights-of-way.
PS2\124\063850.0002\2139602.1 &0322/95 -18-
E
0
F. It is expressly understood that a franchise fee and
an Alternative User Charge will not be imposed on the same Cable
Operator at the same time, for the same period of time.
G. An affected Cable Operator shall pay twenty-five
percent (250) of the Alternative User Charge at the end of every
three (3) months.
ARTICLE 8: SERVICES.
8.1 Services to be Provided. A Cable System shall provide,
as a minimum, the broad programming categories listed in the
Franchise.
8.2 Changes in Services. Grantee shall inform Grantor, at
least forty-five (45) days and Subscribers at least thirty (30)
days in advance of making any change in a Cable Service or in the
rates charged therefor, unless Grantor agrees to waive this
requirement in writing.
8.3 Non-discrimination. Grantee 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. No charges may be made for
services except as listed in published schedules which are
available to inspection by anyone at Grantee's office, quoted by
Grantee on the telephone, and displayed or communicated to all
potential subscribers.
8.4 Prepayment. Grantee 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, until the later of: (1) thirty (30)
days from postmark; or (2) service has actually been provided for
the billed period. All bills and billing statements shall clearly
indicate the billing period, the actual due date, and the
delinquent or late remedy or assessment.
8.5 Disconnect for Cause. Grantee may disconnect a
Subscriber only for cause, which shall include, without limitation,
the following:
A. Payment delinquency in excess of forty-five (45)
days.
B. Willful or negligent damage to or misappropriation
of Grantee property.
C_ Monitoring, tapping, or tampering with Grantee's
system, signals, or service.
P52\1261063850-0002\2139602.1 s03122f95 — 1 9 —
0
0
D. Threats of violence to Grantee's employees or
property.
8.6 Reconnection. Grantee shall, upon Subscriber's written
request, reconnect service which 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. Grantee 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
the past twenty-four (24) months. Reconnection for disconnects
covered by section 8.5(B), (C) or (D) shall be at Grantee's sole
discretion.
8.7 Installations.
A. Grantee shall promptly provide and maintain service
to the residential, commercial, and industrial structures as
provided in the Franchise, in the service area as defined in the
Franchise, upon request of the lawful occupant or owner.
B. In the case of a new drop, Grantee shall advise each
Subscriber that he/she has the right to require his/her
installation be done over any route on his/her property, and in any
manner he/she may elect which is technically feasible and
consistent with proper construction practices. If the subscriber
requests installation other than a standard installation, then the
subscriber may be required to pay a reasonable fee for the time and
materials occasioned by the installation.
C. For purposes of this section, a standard
installation shall include installation of drop cable with fittings
up to one hundred and fifty feet (150) feet from the CATV
distribution system measured along the cable from the center line
of the street or utility easement through the house wall or at the
customer's option through the floor from a house vent or crawl
space directly to the customer's television set with five feet of
cable from the wall or floor entry to the TV set. Also included as
part of a standard installation is the grounding cable, fine tuning
of the television set and the provision of the appropriate
literature.
D. After Cable Service has been established by
activating trunk and/or distribution cables for any area, Grantee
shall provide Service to any person requesting Service in that area
within seven days from the date of request, provided that the
Grantee is able to secure all rights-of-way necessary to extend
service to such potential subscriber within such seven (7) day
period on reasonable terms and conditions.
M 124X663 omo2%2139W2.3 amn2r95 -20-
8.8 Non -Standard Installations. For each non-standard drop
installed, the Grantee may charge the subscriber for the cost of
material and labor in excess of that for a standard drop. Grantee
shall provide each subscriber a written estimate of all charges
prior to installation and obtain subscriber's written authorization
in advance for all nonstandard drop charges.
8.9 Converters/Terminals. At such time as a converter or
terminal becomes necessary for Subscribers to have access to all
services on its system, Grantee shall make them available to
Subscribers. Grantee may require each Subscriber who elects to
take a converter or terminal to furnish a security deposit
therefor.
A. Each device shall be and remain the property of the
Grantee unless Grantor approves or requires its sale to the
Subscriber. Grantee shall be responsible for maintenance and
repair of all equipment owned by Grantee and may replace it as
Grantee may from time -to -time elect, except that Subscriber shall
be responsible for loss of or damage to any such device while in
his/her possession.
B. Upon termination or cancellation of Subscriber's
service, Subscriber shall promptly return Grantee's property to
Grantee in the same condition as received, reasonable wear and tear
excepted.
C. Grantee may apply the security deposit against any
sum due from Subscriber for loss of or damage to such converter
exceeding reasonable wear and tear. In the event that no security
deposit has been required, the Grantee may charge the Subscriber
for any such damage exceeding reasonable wear and tear.
D. If Grantee has no claim against the deposit, Grantee
shall return it, or the balance, to the Subscriber within twenty
(20) days of return of the converter.
ARTICLE 9: DESIGN AND CONSTRUCTION.
9.1 System Construction. The System shall be constructed in
accordance with the provisions of the Franchise.
9.2 Construction Components and Techniques. Construction
components and techniques shall be in accordance with the Franchise
and all applicable law.
9.3 Technical and Performance Standards. Grantee shall
construct, install, operate and maintain its System in a manner
consistent with all applicable laws, ordinances, construction
standards, construction specifications, governmental requirements,
FCC technical standards and any standards set forth in the
F52%1281063&5MW212139602.1 x03=95 _21-
0
Franchise.
0
9.4 Construction Codes. The Grantee shall strictly adhere to
all building and zoning codes currently or hereafter in force and
obtain all necessary permits. The Grantee shall arrange its lines,
cables, and other appurtenances, on both public and private
property, in such a manner as to cause no unreasonable interference
with the use of said property by any person. In the event of such
interference, the Grantor may require the removal of the Grantee's
lines, cables, and appurtenances from the property in question.
Grantee shall give at least forty-eight (48) hours advance notice
to all property owners and the Grantor prior to installing any
above -ground and/or underground structures upon easements located
on private property. Grantee shall be a member of Underground
Service Alert. Grantor shall not modify its construction
requirements subsequent to the completion of construction so as to
require reconstruction or retrofit unless the public health and
safety so requires.
9.5 System Construction Schedule.
A. The Grantee shall begin to offer Cable Service and
any service authorized by the Franchise no later than the schedule
contained in the Franchise.
B. The Grantee shall provide a detailed construction
plan indicating progress schedule, area construction or
reconstruction maps, test plan, and projected dates for offering
service.
9.6 Geographical Coverage. The Grantee shall construct the
Cable System to service every Residential Dwelling Unit and other
structures specified in the Franchise within the Service Area of
the Franchise and any annexations thereto, as defined and provided
by the Franchise, with any exceptions requiring specific Grantor
approval. Service shall be provided to Subscribers in accordance
with the schedules specified in the Franchise. The route of
separate cables serving institutional subscribers shall be as
approved by Grantor and specified in the Franchise.
9.7 Reserved.
9.8 Construction Default. Upon the failure, refusal or
neglect of Grantee to cause any construction, repair, or other
necessary work to comply with the terms of the Franchise to be
properly completed in, on, over, or under any right of way within
a time prescribed in the Franchise or the construction permit,
Grantor may (but shall not be required to) cause such work to be
completed in whole or in part, and upon so doing shall submit to
Grantee an itemized statement of costs thereof. Grantee shall be
given reasonable notice of Grantor's intent to exercise this power
,03122/95 -22-
0
and fifteen (15) days to cure thereafter. Grantee shall, within
thirty (30) days of billing, pay to Grantor the actual costs
thereof.
9.9 Vacation or Abandonment_ In the event any street, alley,
public highway or portion thereof used by the Grantee shall be
vacated by the Grantor, or the use thereof discontinued by the
Grantee, upon reasonable notice, the Grantee shall forthwith remove
its facilities therefrom unless specifically permitted to continue
the same, and on the removal thereof restore, repair or reconstruct
the area where such removal has occurred, to such condition as may
be required by the Grantor not in excess of the original condition.
In the event of failure, neglect or refusal of the Grantee, after
thirty (30) days' notice by the Grantor to do such work, Grantor
may cause it to be done, and Grantee shall, within thirty (30) days
of billing, pay to Grantor the actual costs thereof.
9.10 Abandonment in Place.' Grantor may, upon written
application by Grantee, approve the abandonment of any property in
place by Grantee, under such terms and conditions as Grantor may
approve. Upon Grantor -approved abandonment of any property in
place, Grantee shall cause to be executed, acknowledged, and
delivered to Grantor such instruments as Grantor shall prescribe
and approve, transferring and conveying the ownership of such
property to Grantor.
9.11 Removal of System Facilities. In the event that
Grantee's plant is deactivated for a continuous period of thirty
(30) days except for reasons outside Grantee's control, without
prior written notice to and approval by Grantor then Grantee shall,
at Grantor's option, and at the expense of Grantee and at no
expense to Grantor, and upon demand of Grantor, promptly remove
from any streets or other area all property of Grantee, and Grantee
shall promptly restore the street or other area from which such
property has been removed to its condition prior to Grantee's use
thereof, provided that Grantee shall not be required to remove
conduit from underground, where Grantor may determine no damage to
the surface of any structures may result from such nonremoval.
9.12 Movement of Facilities. In the event it is necessary to
temporarily move or remove any of the Grantee's property at
Grantor's direction for a public purpose, Grantee, upon reasonable
notice, shall move, at the expense of Grantee, its property as may
be required to facilitate such public purpose. No such movement
shall be deemed a taking of Grantee's property. Nothing herein
shall limit the right of Grantee to seek reimbursement from any
party other than Grantor.
9.13 Undergrounding of Cable. Cables shall be installed
underground at Grantee's cost where substantially all existing
utilities are already underground. Previously installed aerial
PS21124N063850-0002\2139602.1 .03/22/95 -23-
0
cable shall be installed underground at Grantee's pro rata cost in
concert with other utilities when all such other utilities may
convert from aerial to underground construction.
9.14 Facility Agreements. No Franchise shall relieve Grantee
of any obligations involved in obtaining pole or conduit space from
any department of Grantor, utility company, or from others
maintaining utilities in streets.
9.15 Extension of Franchise Area. If Grantor elects to grant
one or more Franchises hereunder, and if thereafter one or more of
the Franchises expires or is otherwise ended, Grantor may, if it so
elects, require a remaining Grantee, or more than one, to extend
its System to provide service to the area served by the ended
Franchise unless Grantee demonstrates to Grantor's reasonable
satisfaction that it is not commercially practicable to do so,
provided, however, Grantee shall not be required to overbuild any
existing system. The terms and requirements of such extension
shall not exceed those contained herein or in Grantee's Franchise.
9.16 Repair of Streets and Public Ways. Any and all streets
and public ways and/or improvements located within such streets and
public ways disturbed or damaged by the Grantee or its contractors,
during the construction, operation, maintenance, or reconstruction
of the System, shall be restored within the time frame and limits
specified by Grantor or agent of Grantor, at Grantee's expense, to
their original condition unless otherwise authorized in writing by
Grantor.
9.17 Erection of Poles Prohibited. The Grantee shall not
erect any pole on or along any street or public way in an existing
aerial utility system. If additional poles in an existing aerial
route are required, Grantee shall negotiate with public utility for
their installation. Any such installation shall require the
advance written approval of the Grantor. Subject to applicable
federal and state law, the Grantee shall negotiate the lease of
pole space and facilities from the existing pole owners for all
aerial construction, under mutually acceptable terms and
conditions.
9.18 Reserved.
9.19 Reservation of Street Rights. Nothing in a Franchise
shall prevent the Grantor from constructing, repairing and/or
altering any public work. All such work shall be done, insofar as
practicable, in such manner as not to unnecessarily obstruct,
injure or prevent the free use and operation of any property of
Grantee. However, if any such property of Grantee shall interfere
with the construction, maintenance or repair of any public
improvement, all such property shall be removed or replaced in such
manner as directed by Grantor so that the same shall not interfere
PS211241063850-0002U139602.1 aW22195 —24—
0
with the said public work, and such removal or replacement shall be
at the expense of the Grantee.
ARTICLE 10: OPERATIONS AND MAINTENANCE.
10.1 Maintenance and Complaints.
A. The Grantee shall maintain an office in the Service
Area, or such other location approved by the Grantor in writing,
open during all usual business hours, but in no case less than
forty eight (48) hours per week, including at least one weekend day
per week. Grantor shall have a publicly listed non -toll -charge
telephone number, and operated to receive subscriber complaints and
requests on a 24-hour basis. Current information shall be
maintained of all complaints and their disposition, and a summary
thereof shall be submitted to Grantor upon request but no mare
often than monthly.
B. The Grantee shall respond within eight (8) hours
after receipt of request for repairs relating to a Service
Interruption affecting at least ten (10) percent of the Subscribers
of the System, within twenty-four (24) hours after receipt of
requests for service related to all other Service Interruptions and
within forty-eight (48) hours for all other complaints and requests
for repair. All Cable System related problems shall be resolved
within five (S) business days unless technically infeasible. No
charge shall be made to the Subscriber for such a service or repair
except that Grantee may charge for service calls not related to its
Cable System.
C. The Grantee shall provide a telephone system to
receive all construction and service complaints. A sufficient
number of customer service representatives shall be provided so
that callers are not required to wait beyond thirty (30) seconds
before being connected to a customer service representative ninety
percent (900) of the time measured quarterly or receive busy
signals more than three (3) percent of the time measured quarterly.
The telephone number of the local office shall be listed in the
telephone directory serving the City of Azusa. The telephone
service shall accept complaints twenty-four (24) hours a day, seven
(7) days a week. The telephone system shall be capable of self -
generating reports relating to answer times, response times, hold
times, and abandoned calls.
D. Customer service personnel shall identify themselves
by first names immediately.
E. 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.
PS211241063850-OW2\2139602.1 &03/27195 -25-
0 •
F. All officers, agents or employees of the Grantee,
its contractors or subcontractors who come into contact with
members of the public shall wear on their outer clothing a photo -
identification card in a form reasonably acceptable to Grantor.
Grantee shall account for all identification cards at all times.
Every vehicle of Grantee or its major subcontractors shall be
clearly identifiable as working for Grantee.
G. Grantee shall provide and guarantee Subscribers with
the option of scheduling a four (4) hour period, either in the
morning or afternoon, in which the service call will be made.
H. If a Grantee representative is running late for an
appointment with a customer and/or will not be able to keep the
appointment as scheduled, the customer will be contacted and the
appointment will be rescheduled, as necessary, at a time which is
convenient for the customer with the customer having the option of
rescheduling the appointment within a two (2) hour period.
10.2 Implementation of a Preventative Maintenance Program.
A. It shall be the duty of a Grantee to devise and
implement a periodic preventative maintenance program for the
System in order to ensure that there is no material degradation of
the System that would affect the citizens, health, safety, and
welfare, or negatively affect the quality of the Services being
provided.
B. Before the Grantee implements such a program, it
shall provide a copy of such program to the Grantor.
C. Although not exhaustive, the following ares shall be
included in a preventative maintenance program and subsequent
report:
1. daily inspection, and adjustment if necessary,
of the signal quality of each channel;
2. daily scan, and adjustment if necessary, of
carrier levels with spectrum analyzer;
3. daily logging of any, and all, adjustments made
to the headend, antenna tower, or distribution system;
4. daily monitoring, and logging, of signal
leakage, and repair if necessary, to ensure that the multi-
channel system is within FCC allowed levels;
5. inspection of drops as an integral part of every
service call, and schedule for replacement, if necessary;
aOMM95 —26—
6. inspection and recordation of signal levels at
the time of each service call;
7. weekly monitoring, and adjustment if necessary,
of headend audio and video carrier levels;
8. weekly monitoring, and adjustment if necessary,
of headend videocipher AGC levels;
9. weekly monitoring, and adjustment if necessary,
of satellite receiver input carrier noise;
10. monthly monitoring, and adjustment if
necessary, of headend audio and video modulation levels;
11. monthly performance measurements (and
adjustment if necessary) (at a minimum of 4 extremities) of
the distribution system to include:
a. video and audio signal levels;
b. overall difference in signal level or
response flatness;
C. hum modulation;
d. carrier:noise; and
e. signal ingress.
12. monthly monitoring, and adjustment if
necessary, of headend scrambler levels;
13. monthly testing, and repair if necessary, of
the emergency alert override supplies;
14. monthly inspection, and repair if necessary, of
1/3 of all standby power supplies;
15. semi-annual monitoring, and adjustment if
necessary, of headend radio frequency (RF) input levels to
off -air processors;
16. semi-annual inspections and repair if
necessary, of --
a. antenna tower;
b. any, and all, earth stations; and
c. buildings and fences;
FS2\1241063850-000212139602.1 e03/22/95 —27—
0
0
17. semi-annual inspections, and repair and/or re-
calibration if necessary, of all in-house, and field test or
measuring equipment;
18. semi-annual extremity tests (and adjustment if
necessary) of the distribution system to include:
and
a. cross modulation distortion;
b. composite second, and third order products;
c. RF sweep response.
19. annual testing for determining cumulative
leakage index (CLI);
20. annual extremity tests (and adjustment if
necessary) of the distribution system to include:
a. 24-hour signal level stability; and
b. channel response flatness; and
21. where required by local or State law, annual
inspection and repair (if necessary) of all Grantee owned or
leased vehicles.
D. Forty-five (45) days after each calendar quarter, the
Grantee shall notify the Grantor of the preventive maintenance
information available for that calendar quarter, and that such
information is available for inspection, examination, and review by
authorized personnel upon five (5) days notice.
10.3 Remedies for Inadequate Performance. Except for rebuild
or planned Service Interruptions for which Grantee receives prior
approval of Grantor, in the event that one-third or more of its
service(s) to any Subscriber is interrupted for six (6) consecutive
hours, or for a total of twelve (12) nonconsecutive hours within
any thirty (30) day period, and Subscriber notifies Grantee of said
Service Interruption within twenty-four (24) hours of Subscriber
discovery thereof, Grantee shall provide a ten percent (10%) rebate
of the monthly fees to affected Subscribers for each such
consecutive six hour and/or nonconsecutive twelve hour Service
Interruption period. Grantor shall provide a fifty percent (50%)
rebate of the monthly fees to all affected subscribers for failure
to arrive at a service call within the specified four (4) hour
period. In no case shall such rebate exceed the monthly fee
charged to the Subscriber.
PSZ1141063M-0002\2139602.1 .03=93 -28-
0 .
10.4 Biennial Audit of Performance.
A. Grantor may require, at its option, that performance
audits of the System be conducted every two (2) years by an
independent technical consultant, selected and employed by Grantor
and at Grantee's sole expense, to verify compliance of the System
to all technical standards and other specifications of the
Franchise, as provided in the Franchise Agreement.
B. Upon completion of a performance audit, the Grantor
and Grantee shall meet to review the performance of the Cable
System. The reports required herein regarding Subscriber
complaints, the records of performance audits, tests and the
opinion survey report shall be utilized as the basis for review.
In addition, any Subscriber may submit complaints during the review
meetings, either orally or in writing, and these shall be
considered.
C. Within thirty (30) days after the conclusion of the
System performance review meeting (s) , Grantor shall issue findings
with respect to the adequacy of System performance and quality of
service. If inadequacies are found, Grantor may direct Grantee to
correct the inadequacies within such period of time as Grantor
determines is reasonable.
D. Grantor's and Grantee's participation in this
process shall not waive any rights they may possess under
applicable federal and/or state law.
E. In addition to the Biennial Audit described above,
Grantor may conduct an annual audit of the same or lesser
magnitude, at its sole expense, when and if determined necessary or
appropriate by Grantor.
10.5 System Technical Data. Grantee shall provide Grantor
with a computer disk or other data storage device requested by
Grantor, in format approved by Grantor, which details and documents
all Grantee's equipment and facilities and their geographic
location in the City. Such computer disk or other device shall be
updated annually and whenever there have been significant changes
in the location of Grantee's equipment and facilities. In
addition, Grantee shall maintain in its local office, a complete
and up-to-date set of as -built system maps and drawings upon
completion of construction or reconstruction, equipment
specification and maintenance publications, and signal level
diagrams for each active electronic piece of equipment in the
system. As -built drawings shall show all lines and installed
equipment, and tap values and spigots. The scale of maps and
drawings shall be sufficient to show the required details in easily
readable form and size. Technical data at the local office shall
also include approved pole applications, details and documentation
PS2\124W63850-0002\2139602.1 .03/27/95 -29-
of satellite and microwave equipment, mobile radio units, heavy
construction vehicles and equipment, and video and audio equipment
normally used in the operation of the system. If Grantor requires
use of technical data in its own office, it may make copies of any
items at Grantor's expense.
10.6 Availability of Technical Data. All technical data
shall be available for Grantor's inspection during normal business
hours, upon reasonable notice, and, in the event of System failure
or other operating emergency, at any time, so long as the provision
of said data does not unreasonably interfere with Grantee's
operations.
10.7 Emergency Repair Capability. It shall be Grantee's
responsibility to assure that Grantee 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.
10.8 Customer Service Standards and Procedures.
A. Information to Customers. The Grantee shall, at the
time service is initiated, provide each new customer written
information covering:
1. The time allowed to pay outstanding bills.
2. Grounds for termination of service.
3. The steps the Grantee must take before
terminating service.
4. How the customer can resolve billing disputes.
5. The steps necessary to have service reconnected
after involuntary termination.
6. The fact that customer service personnel shall
identify themselves by first names immediately.
7. The fact that customers shall have the right to
speak with a supervisor, and if none is available, supervisor shall
return customer call within one (1) working day.
B. The appropriate regulatory authority with whom
to register a complaint and how to contact such authority.
In addition, at least once each calendar year, Grantee shall
notify each customer that information is available upon request
concerning items (1) through (8) above.
a 2112COMSO 000=139W2.1 ,03/22/95 -30-
0 0
B. Written Notices.
Written notice of all terms of the customer agreement,
the name, address and telephone number of company, all equipment
and fee options, the availability of A/B switches, the availability
of parental control devices, any reduced rates for seniors or other
Subscribers, company billing and credit practices, company
practices with respect to privacy of customer, the telephone
numbers for customer complaints of the company and the Grantor and
other relevant information, shall be made by Grantee to customers
before service is begun, at least once each calendar year, at any
time upon the request of the customer and whenever changes are
made.
C. Advanced Notice of Changes.
Except as provided in applicable law, advance notices of
changes, including increases in fees or charges and changes in
channel lineup of stations or services, shall be sent to Grantor at
least forty-five (45) days before the changes are made and to
Subscribers at least thirty (30) days before the changes are made,
except for changes not known sufficiently in advance by Grantee and
not under Grantee's control or where Grantor's waiver is obtained.
Notices should be clearly identified and in print large enough to
be easily readable.
D. Billing.
1. Bills for service shall be rendered monthly,
unless otherwise authorized by the Subscriber and the Grantee or
unless service is rendered for a period less than one (1) month.
All bills shall contain a telephone number and a mailing address
for billing inquiries or disputes and shall clearly delineate all
changes and the basis for those changes.
2. DiSDuted Bills.
a. In the event of a dispute between a
Subscriber and the Grantee regarding the bill, the Grantee shall
promptly make such investigation as is required by the particular
case and report the results to the Subscriber. In the event the
dispute is not resolved to the satisfaction of both parties, the
Grantee shall inform the Subscriber of the complaint procedures of
the Grantee. If the Subscriber wishes to obtain the benefits of
paragraphs (b) and (c) of this subsection, notification of the
disputed bill must be given to the Grantee in writing within thirty
(30) days after the bill date.
b. The Subscriber shall not be required to
pay the disputed portion of the bill until the earlier of the
following:
1=124W63M-0002\213960Y.1 n03/22195 —31—
(1) Resolution of the dispute,
(2) Expiration of the forty-five (45)
day period beginning on the date of issuance, provided that the
procedures established in sub -section (a) above have been followed.
C. Pending resolution of the bill dispute, Grantee
shall exercise reasonable care to ensure that no termination
notices shall be issued for the disputed portions of the bill, nor
shall any other collection procedures be initiated for said amount.
Any such activity may be interpreted as an attempt to avoid the
provisions of these rules and shall constitute violation of the
regulations.
E. Referral of Accounts to Collection Agencies.
1. Uncollected accounts maybe referred to private
collection agencies for appropriate action if the bill has not been
paid by the earlier of (a) thirty (30) days following date of
involuntary termination or (b) the sixty-first (61st) day following
the date of issuance of the original uncollected amount, provided
no notification of billing dispute has been made, or if procedures
for resolution of billing disputes have not been followed as
required above.
2. If the account was voluntarily terminated, for
any reason, the account may not be referred to a private collection
agency until at least thirty (30) days following rendering of the
final bill. If notification of a billing dispute is made, all
collection procedures shall be delayed as required in paragraph (c)
of subsection D.2. of this section, "Disputed Bills." Referral to
collection agent shall then occur no sooner than the ninety-first
(91st) day following issuance of the original uncollected amount.
F. Termination for Non -Payment.
Bilis shall not be delinquent earlier than thirty (30)
days from the date of the bill, which must be mailed to Subscribers
within five (5) working days prior to its dated date. Subscribers
must be notified in writing of a proposed disconnection for non-
payment at least fifteen (15) days prior to disconnection. Grantee
may not assess late charges of any amount earlier than the
thirtieth (30th) day from the date of the bill.
10.9 Refund. When a subscriber voluntarily discontinues
service, Grantee shall refund, within 20 days of the discontinuance
of service, the unused portion of any advance payments after
deducting any charges currently due through the date of such
discontinuance. Unused payment portions shall be the percentage of
time for which subscriber has paid for service and will not receive
it because of his/her discontinuation of service.
F=12C063850.00O N2I39602.1 &03/22/95 -32-
0 0
10.10 Ouality of Service. The quality of Grantee's
service refers to the services associated with day -today operations
(e.g., response to customer complaints, billing, Service
Interruptions, disconnection, rebates and credits, signal quality,
and the provision to customers or potential customers of
information on billing or services). In order to assess the
quality of service, at Grantor's request, Grantee shall survey, at
Grantee's cost, a statistically representative telephonic sample of
subscribers at least once every other calendar year. The form,
content, and methodology of the telephonic survey shall be prior
approved in writing by Grantor.
The results of said survey, including the raw data and
conclusions, shall be provided to Grantor within twenty (20) days
of completion and tabulation of results.
10.11 Minimum Requirement Re Public, Educational and
Governmental Access.
A. Each System franchised by the Grantor shall provide,
at a minimum, one (1) governmental access channel dedicated to the
Grantor; one (1) educational access channel under the control of
the Grantor and dedicated to educational programming; and one (1)
public access channel to be utilized by the public in accordance
with the rules, regulations, and procedures established by the
Grantor.
B. If any governmental, education, or public access
channel is being utilized more than four (4) hours per day, five
days a week between the hours of 6:00 and 11:00 p.m. for four (4)
consecutive weeks, a grantee shall, upon receipt of written notice
from the Grantor, provide an additional channel for each of the
original channels which achieve the usage factor above to the
Grantor, up to a maximum dedication of six (6) channels, which
shall be allocated by the Grantor between and among public,
educational, and governmental use. Said additional channels shall
be provided to Grantor upon an exclusive basis within ninety (90)
days of written request and certification as to compliance with the
above criteria. Under no circumstances shall the Grantee provide
to Grantor upon an exclusive and non -shared basis less than three
(3) channels for public, educational, and governmental use
("Minimum Dedicated Channels").
C. whenever any access channel, other than the three
absolute channels required pursuant to Subsection (A) above, is
utilized less than four (4) hours per day for five (5) days per
week for a continuous period of not less than twelve (12) con-
secutive weeks, the Grantor may permit different or additional
"interim" uses for said channel. The Grantee may be permitted to
utilize unused access channel capacity, over the above Minimum
Dedicated Channel, under rules and procedures established by the
P321124W63&%4=U139W2.1 W3n2/95 -33-
•
Grantor; provided, however, no access capacity shall be utilized by
the Grantee until all other channel capacity on the cable system
has been programmed.
D. Access channels permitted by the Grantor for
"interim" use by a cable operator are to be restored to
governmental, educational, or public access use, as designated by
the Grantor, upon ninety (90) days written notice by the City
without regard to a showing, of lack thereof, of compliance with
the criteria of Subsection B above.
E. The Grantee shall provide that level of PEG support,
included but not limited to the staffing and operation of a local
studio, as required by any Franchise, or as has or had been
provided by Grantee, or any predecessor -in -interest thereof, and
shall not reduce the said level of support without the prior
written consent of the Grantor.
ARTICLE 11: VIOLATIONS.
11.1 Use of Public Streets. From and after the effective
date of this ordinance, it shall be unlawful for any person to
construct, install, or maintain in any public place within
Grantor's territory, or upon any easement owned or controlled by a
public utility, or within any other public property of Grantor, or
within any privately -owned area within Grantor's jurisdiction which
is not yet, but is designated as, a proposed public place on a
tentative subdivision map approved by Grantor, any equipment,
facilities, or system for distributing signals or services through
a cable television system, unless a Franchise has first been
obtained hereunder, and is in full force and effect.
11.2 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 anyone to receive or use any
service, television or radio signal, picture, program, or sound, or
any other signal without payment to the owner of said System.
11.3 Tamperincr 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 a franchised cable
television system.
ARTICLE 12: TERMINATION AND FORFEITURE.
12.1 Revocation. Consistent with applicable law, in addition
to any rights set out elsewhere in this document, the Grantor
reserves the right to revoke a Franchise, subject to the procedural
guidelines set forth in Section 15.1 of this Ordinance, in the
event that:
FS2\124W638500002\2139602.1 .03122195 -34-
0 0
A. The Grantee willfully and/or negligently on a
repeated basis violates any material provision of its franchise.
B. The Grantee's construction schedule is
materially delayed as set forth in the Franchise and such delays
were within the control of Grantee.
12.2 Forfeiture. Upon failure of the Grantee to comply with
the material terms of its Franchise, the Grantor may, subject to
the procedural guidelines set forth in Section 15.1 of this
ordinance, declare a forfeiture, and the Grantee may be required to
remove its structures or property from the streets and restore the
streets to their prior condition within a reasonable period of time
and upon failure to do so, the Grantor may perform the work and
collect all actual costs, including all direct and indirect costs,
thereof from the Grantee. At Grantor's discretion, the cost
thereof may be a lien upon all plant, property, or other assets of
the Grantee.
ARTICLE 13: FRANCHISE APPLICATIONS.
13.1 Applications. Applicants for a Franchise, Franchise
Transfer, or renewal thereof, may submit to the Grantor, or to a
designated agency, written application in a format provided by the
Grantor, at the time and place designated by the Grantor for
accepting applications, and including the designated application
fee. A nonrefundable application fee established by Grantor shall
accompany the application to cover all costs associated with
processing and renewing the application, including without
limitation, costs of administrative review, financial, legal and
technical evaluation of the applicant, consultants (including
technical and legal experts and all costs incurred by such
experts), notice and publication requirements with respect to the
consideration of the application and document preparation expenses.
In the event such costs exceed the application fee, an applicant
shall pay the difference to Grantor within twenty (20) days
following receipt of an itemized statement of such costs. This
provision is deemed procedural and shall not constitute the grant
of any right to the Grantee.
ARTICLE 14: RECORDS: REPORTS: RIGHT TO INSPECT AND AUDIT:
EXPERTS.
14.1 Grantee Shall Provide Records. All reports or records
required under this Article shall be furnished at the sole expense
of Grantee.
14.2 Records. There shall be kept in the Grantor's local
offices, and available during normal business hours, a separate and
complete set of business records for the Franchise. The Grantee
shall provide such information in such form as may be required by
1 emnvss -35-
the Grantor for said records, as well as copies of any records of
Grantee upon Grantor's request, so long as said information is
reasonably related to the scope of Grantor's rights under this
Ordinance, the Franchise and/or Grantor's regulatory functions.
Grantee shall keep true and accurate books and records in
conformity with generally accepted accounting principles,
consistently applied, showing all income, expenses, and expense
transfers, borrowing, payments, investments of capital, and all
other transactions relating to the System. Grantor shall, upon
reasonable notice, have the right to inspect said records and
receive copies thereof to the extent said information is reasonably
related to the scope of the City's rights under this Ordinance, the
Franchise and/or the Grantor's regulatory functions. Any Grantee
records kept at another place shall, within ten (10) days of
Grantor's request, be made available at Grantee's local premises
within the County of Los Angeles.
14.3 Reports of Financial and Operating Activity.
A. No later than ninety (90) days after the close
of Grantee's fiscal years, Grantee shall present an audited written
report to the Grantor which shall include:
1. A financial report audited and certified
by an independent Certified Public Accountant for all Cable System
activity during the previous fiscal year including gross receipts
from all sources and gross subscriber revenues from each service,
and set out separately, gross receipts from all sources in the City
and gross subscriber revenues from each service in the City and all
payments, deductions, and computations of franchise fees.
2. A summary of the previous year's
activities, including, but not limited to, subscriber totals and
new services.
3. A list of Grantee's officers, members of
its board of directors and other principals of Grantee.
4. A list of stockholders or other equity
investors holding five (50) or more of the voting interest in
Grantee.
A summary of complaints received and
remedial actions taken.
B. Performance Tests and Compliance Reports. No
later than April 15th of each year, the Grantee shall provide a
written report of any FCC or other performance tests required or
conducted. In addition, the Grantee shall provide reports of the
Test and Compliance procedures established by its Franchise, or
,03/22/95 -36-
0 •
herein, no later than thirty (30) days after the completion of
tests.
C. Additional Reports. The Grantee shall prepare
and furnish to the Grantor in writing at the times and in the form
prescribed by Grantor, such additional reports with respect to its
operation, affairs, transactions, or property, as may be reasonably
necessary and appropriate to the performance of any of the rights,
functions or duties of the Grantor, as specified by Grantor.
14.4 Communications with Regulatory Agencies. Copies of all
communications between the Grantee and the Federal Communications
Commission or any other agency having jurisdiction in respect to
any matters affecting cable communications operations authorized
pursuant to a Franchise, shall be submitted promptly to the Grantor
upon receipt or mailing by Grantee.
14.5 Examination of Facilities. Upon reasonable notice, and
during normal business hours, Grantee shall permit examination by
any duly authorized representative of Grantor, of all franchise
property and facilities, together with any appurtenant property and
facilities of Grantee situated within the City.
14.6 Right to Audit. In addition to any other inspection
rights under the Ordinance or Franchise, upon ten (10) days prior
written notice, Grantor shall have the right to inspect, examine,
or audit, during normal business hours, all documents which pertain
to the Grantee or any Affiliated Person with respect to the System,
each Service distributed over the System and each service related
activity and which are reasonably necessary to the Grantor's
performance of its obligations and/or the Grantor's enforcement of
its rights under the terms of the Ordinance or Franchise; provided,
however, that the Grantor may not exercise said right more
frequently than once in any twelve (12) month period. All such
documents shall be made available at the local office of the
Grantee. All such documents which pertain to financial matters
which may be the subject of an audit by the Grantor shall be
retained by the Grantee for a minimum of five (5) years following
termination of any Franchise. Access by the Grantor to any of the
documents covered by this Section shall not be denied by the
Grantee on grounds that such documents are alleged by the Grantee
to contain proprietary information.
Grantor may require written certification by the Grantee's
appropriate directors, officers or other employees with respect to
all documents referred to in this Section.
Any audit conducted by the Grantor pursuant to this Section
shall be conducted at the sole expense of the Grantor and the
Grantor shall prepare a written report containing its findings, a
copy of which shall be mailed to the Grantee; provided, however,
M21124%063850-OW2Q139602.1 &03122/95 -37-
that the Grantee shall reimburse the Grantor for the expense of any
such audit if, as the result of said audit, it is determined that
there is a shortfall of more than two percent (29.) in the amount of
franchise fees or other payments which have been made or will be
made by the Grantee to the Grantor pursuant to the terms of any
Franchise.
14.7 Retention of Experts. In the exercise of its rights
under this ordinance, the Grantor 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, and operation and maintenance of the System, and all
parts thereof, to ensure compliance with and enforcement of the
provisions of this Ordinance and any Franchise. The Grantor shall
bear the cost of retaining such experts, provided that the Grantee
shall reimburse the Grantor for all expenses related to the
retention of said experts where this Ordinance or the Franchise so
provide or under either of the following circumstances:
(i) The Grantee has initiated proceedings which would
normally require the Grantor to retain such experts, such as
the filing of a request for approval of transfer, renewal,
expansion of the Service Area or of modification or amendment
of any Franchise;
(ii) The reports of such experts to the Grantor reveal
that the Grantee has failed to substantially comply with the
terms and conditions of this Ordinance or any Franchise.
If Grantee is required to reimburse Grantor pursuant to this
section, Grantor shall send Grantee an itemized description of such
charges and Grantee shall pay such amount within twenty (20) days
of the receipt of such description.
ARTICLE 15: ENFORCEMENT MECHANISM.
15.1 Notice and Hearing for Franchise Default. Except as
provided in this Ordinance or in the Franchise, prior to formal
consideration by Grantor of termination, revocation, and/or
forfeiture of Grantee's Franchise and/or any other penalty or
administrative remedy available to the Grantor, including
liquidated damages, because of Grantee's failure, willful,
negligent or otherwise, to adhere to the terms and conditions of
the Franchise and/or this Ordinance, Grantor shall make written
demand on Grantee to correct the default alleged. Grantor and
Grantee shall expeditiously meet to discuss the alleged default, at
which time Grantee shall indicate, in writing, the amount of time
necessary to resolve the alleged problem. Giving due consideration
to Grantee's request, Grantor shall, in writing, state the amount
of time Grantor will allow Grantee to resolve the problem. During
this time period, but in no event fewer than ten (10) days before
F=1261063850P00=21396M.1 WW22/95 -38-
0 0
the final date for correction, Grantee may request additional time
to correct the problem and Grantor shall grant said request if
Grantor determines, in the exercise of its discretion, that such
time is necessary due to delays beyond Grantee's control. If the
default continues for a period of ten (10) days following such
deadline for corrections ' plus any extension thereof, a hearing on
such Franchise termination, revocation, forfeiture and/or any other
penalty or administrative remedy be scheduled by Grantor.
The Administrative officer shall provide written notice of
such hearing, including the grounds for the proposed action, to the
Grantee in writing no less than thirty (30) days before any hearing
on the matter. In addition, the Administrative Officer, as part of
said written notification, shall state the procedure to be utilized
by the Grantor to determine whether cause for termination,
revocation, forfeiture or other penalty exists. At a minimum, said
procedure shall afford the Grantee adequate notice and a fair
opportunity for full participation, including the right to
introduce evidence, to require the production of evidence, to
question witnesses, and to obtain a transcript of said proceeding
at Grantee's expense. Within ten (10) days of the receipt of said
notice, Grantee shall file written objections to said procedures.
The Administrative Officer shall notify Grantee of any modification
to the procedures and provide another ten (10) day objection
period. Any procedural defects not raised within said ten (10) day
periods shall be deemed waived. At the hearing, Grantor shall hear
Grantee and any person interested in the matter and shall
determine, at that or subsequent meetings, an appropriate course of
action for enforcement or termination of Grantee's Franchise.
15.2 Delegation of Enforcement Mechanisms. Such liquidated
damages as Grantor may assess against Grantee which do not include
loss of Franchise may, at Grantor's option, be determined by an
officer or agency of the Grantor to which it may delegate such
administrative considerations and decisions subject to due process
and the criteria contained in this Ordinance and the Franchise,
subject to appeal to the City Council.
ARTICLE 16: MISCELLANEOUS PROVISIONS.
16.1 Captions. The article, section and subsection numbers
and captions throughout this Ordinance are intended to facilitate
reading and reference. Such numbers and captions shall not affect
the meaning or interpretation of any part of this ordinance.
16.2 Franchise References. A Franchise which cites, refers to,
or otherwise incorporates this entire Ordinance or portions thereof
shall be deemed to be a Franchise issued under and subject to this
Ordinance. Such a franchise may employ, as sufficient for
citation, reference, or incorporation, the section or subsection
number and caption hereof, followed by a statement of the detail
PS311241063950-000212139W2.1 t03n2195 -39-
0
specification, or requirement of the Franchise pursuant to such
reference.
16.3 Filing. when not otherwise prescribed herein, all
matters herein required to be filed with Grantor shall be filed
with the Grantor's official or agency as designated by Grantor.
16.4 Non -enforcement by the Grantor. A Grantee shall not be
relieved of its obligation to comply with any of the provisions of
this ordinance, or of its franchise or any law or regulation, by
reason of any failure of the Grantor to force prompt compliance.
16.5 Continuity of Service. It shall be the right of all
Subscribers to receive all available services within the
obligations of the Franchise insofar as their financial and other
obligations to the Grantee are honored. In the event that the
Grantee elects to rebuild, modify, or sell the system, the Grantee
shall use due diligence and reasonable care to ensure that all
Subscribers receive continuous, uninterrupted service. In the
event of purchase by the Grantor, or a change of Grantee, the
current Grantee shall cooperate with the Grantor or new Grantee to
operate the System for a temporary period, to maintain continuity
of service to all Subscribers. In the event that Grantee, through
its own fault, discontinues system -wide service for seventy-two
(72) continuous hours and Grantee is in material default of its
Franchise or said Franchise is revoked by Grantor, but not if
Grantor fails to renew said Franchise Grantor may, by resolution
when it deems reasonable cause exists, assume operation of a System
for the purpose of maintaining continuity of service until any
circumstances which may, in the judgment of the Grantor, threaten
the continuity of service are resolved to Grantor's satisfaction.
Grantor shall be entitled to the revenues for any period during
which it operates the System.
16.6 Operation By Grantor. During any period when the system
is being operated by Grantor pursuant to section 17.5, Grantor
shall attempt to cause as little disruption of operations as is
consistent with the maintenance of continuing service to
Subscribers. Notwithstanding the foregoing, Grantor shall, as it
may deem necessary, make any changes in any aspect of operations
desirable, in Grantor's sole judgment, for the preservation of
quality of service and its continuity. Grantor shall further,
during any such period, maintain to the best of its ability the
System's records, physical plant, financial integrity and funds,
and other details and activities normally involved in operations.
16.7 Management By Grantor. Grantor may, upon assuming
operation of a System franchised hereunder, appoint a manager to
act for it in the overall as well as detailed direction and conduct
of the System's affairs. Such manager shall have the authority
delegated to him/her by Grantor and shall be solely responsible to
1 amnvvs -40-
0 •
Grantor for management of the System. Grantee shall reimburse
Grantor for all its reasonable costs or damages in excess of System
revenues during Grantor operation if the Franchise is in full force
and effect during the period of Grantor operation.
16.8 Notices. All notices and other communications to Grantee
shall be addressed to it at the local address at which Grantee
conducts its business. All notices and other communications to
Grantor shall be addressed to it at its published address for
receipt of public communications or such other address designated
by Grantor.
16.9 Force Maieure: Grantee's Inability to Perform. In the
event Grantee's performance of any of the terms, conditions,
obligations, or requirements of this ordinance or any Franchise
granted hereunder, is prevented or impaired due to any cause beyond
its reasonable control and not reasonably foreseeable, such
inability to perform shall be deemed to be excused, and no
penalties or sanctions shall be imposed as a result thereof. Such
causes beyond Grantee's reasonable control and not reasonably
foreseeable shall include, but not be limited to, any acts of God,
civil emergencies, labor unrest, strikes, inability to obtain
gratis access to an individual's property, and any inability of the
Grantee to secure all necessary permissions or permits to utilize
necessary poles or conduits so long as Grantee utilizes due
diligence to timely obtain said permissions or permits.
16.10 Application. All of the provisions of this ordinance
shall be applicable to all Cable Operators and Cable Systems to the
greatest extent permissible under applicable law.
16.11 Severability. If any provision of this Ordinance is
determined to be void or invalid by any administrative or judicial
tribunal, said provision shall be deemed severable and such
invalidation shall not invalidate the entirety of this ordinance or
any other provision thereof.
ARTICLE 17.
This Ordinance shall become effective at 12:01 a.m. of the
thirty-first day after adoption.
PASSED and ADOPTED thisl7th day of April 1995.
t
Mayor
ATTEST:
PS2\1241063850-000212139602.1 ¢03122195 -41-
i
STATE OF CALIFORNIA )
COUNTY OF LOS ANGELES ) ss.
CITY OF AZUSA )
I HEREBY CERTIFY that for foregoing Ordinance No. 95-08 was subject to a
first reading at a regular meeting of the City Council of the City of Azusa on
the 3rd day of April, 1995. That thereafter said Ordinance was duly adopted and
passed at a regular meeting of the City Council on the 17th day of April, 1995,
by the following vote to wit:
AYES: COUNCILMEMBERS: HARDISON, MADRID, BEEBE, NARANJO, ALEXANDER
NOES: COUNCILMEMBERS: NONE
ABSENT: COUNCILMEMBERS: NONE
ABSTAIN: COUNCILMEMBERS: NONE
-42-
•
ORDINANCE NO. 95-08
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
AZUSA, CALIFORNIA, PROVIDING FOR THE GRANTING
AND REGULATION OF FRANCHISES FOR CABLE
COMMUNICATIONS SYSTEMS
THE CITY OF AZUSA DOES HEREBY ORDAIN AS FOLLOWS:
ARTICLE 1:
TITLE.
This Ordinance
shall be known and may be cited as the "Cable Communications Franchise Ordinance."
*
ARTICLE 2:
DEFINITIONS.
*
ARTICLE 3:
GRANT OF FRANCHISE.
*
ARTICLE 4:
RIGHTS RESERVED TO GRANTOR.
*
ARTICLE 5:
RIGHTS OF SUBSCRIBERS.
*
ARTICLE 6:
FINANCE.
*
ARTICLE 7:
ALTERNATIVE USER CHARGE.
*
ARTICLE 8:
SERVICES.
*
ARTICLE 9:
DESIGN AND CONSTRUCTION.
*
ARTICLE 10:
OPERATIONS AND MAINTENANCE.
*
ARTICLE 11:
VIOLATIONS.
*
ARTICLE 12:
TERMINATION.
*
ARTICLE 13:
TERMINATION FORFEITURE.
*
ARTICLE 14:
RECORDS; REPORTS, RIGHTS TO INSPECT AND AUDIT; EXPERTS.
*
ARTICLE 15:
ENFORCEMENT MECHANISM.
*
ARTICLE 16:
MISCELLANEOUS PROVISIONS.
*Ordinance in its entirety is available for public inspection in the Office of the City Clerk, City of Azusa,
California.