HomeMy WebLinkAboutOrd 03-01 CableRegulatoryOrd ORDINANCE NO. 3- 01
AN ORDINANCE OF THE CITY OF DUBLIN
CABLE SYSTEM REGULATORY ORDINANCE
(10 YEAR FRANCHISE AGREEMENT WITH AT&T BROADBAND
EFFECTIVE June 1, 2001)
THE CITY COUNCIL OF THE CITY OF DUBLIN DOES HEREBY ORDAIN AS
FOLLOWS:
SECTION 1. That existing Ordinance No. 30-85 is hereby repealed in its entirety.
SECTION 2. That Ordinance No. 3-01 is hereby enacted to supersede Ordinance No.
30-85.
SECTION 3. INTENT .......................................................................................2
3.1. Authority ..........................................................................................2
3.2 Findings ..........................................~ ................................................2
SECTION 4. SHORT TITLE .............................................................................3
SECTION 5. DEFINITIONS ..............................................................................4
SECTION 6. FRANCHISE TERMS AND CONDITIONS ..................................9
6.1. Franchise Purposes ........................................................................9
6.2. Franchise Required ........................................................................9
6.3. Term of the Franchise .....................................................................10
6.4. Franchise Territory .........................................................................10
6.5. Federal or State Jurisdiction ...........................................................10
6.6. Franchise Non-Transferable ...........................................................10
6.7. Geographical Coverage ..................................................................13
6.8. Nonexclusive Franchise .................................................................13
6.9. Multiple Franchises .........................................................................14
6.10. Franchise Modification ..................................................................15
SECTION 7. FRANCHISE APPLICATIONS AND RENEWAL ......................... 16
7.1. Filing of Applications ...........................: ...........................................16
7.2. Applications - Contents ...................................................................16
7.3. Consideration of Initial Applications ................................................17
7.4. Franchise Renewal .........................................................................18
SECTION 8. MINIMUM CONSUMER PROTECTION AND SERVICE
STANDARDS ...................................................: ................................................19
8.1. Operational Standards ...........~ .......................................................19
8.2. Service Standards ........................................................................21
8.3. Billing and Information Standards ...................................................22
8.4. Verification of Compliance with Standards .....................................24
8.5. Subscriber Complaints and Disputes .............................................25
8.6, Other Requirements .......................................................................27
SECTION 9. FRANCHISE FEE AND FINANCIAL REQUIREMENTS .............. 29
9.1. Franchise Fee ................................................................................29
9.2. Franchise Fee Audit ........................................................................30
9.3. Security Fund .................................................................................31
SECTION 10. CONSTRUCTION REQUIREMENTS ........................................32
10.1 . System Construction ....................................................................32
10.2. Multiple Franchises ......................~ ................................................36
SECTION 11. TECHNICAL STANDARDS .......................................................38
11.1. Applicable Technical Standards ...................................................38
11.2. Costs of Technical Assistance ......................................................38
SECTION 12. INDEMNIFICATION AND INSURANCE REQUIREMENTS ...... 39
12.1. Hold Harmless ..............................................................................39
12.2. Insurance ......................................................................................39
SECTION 13. RECORDS AND REPORTS ...........................................~ ...........42
13.1. Records Required ............................................: ............................42
13.2. Annual Reports .............................................................................43
13.3, Record Maps ........................................................'.: ......................46
13.4. Opinion Survey .............................................................................47
SECTION 14. REVIEW OF SYSTEM PERFORMANCE ..................................48
14.1. Triennial Review ...........................................................................48
14.2. Special Review ........: ....................................................................49
SECTION 15. FRANCHISE VIOLATIONS .......................................................50
15.1. Remedies for Violations ................................................................50
15,2. Procedure for Remedying Franchise Violations ...........................51
15.3. Grantor's Power to Revoke ..........................................................52
15.4, Appeal of Finding of Revocation ...................................................54
SECTION 16. FORCE MAJEURE; GRANTEE'S INABILITY TO PERFORM... 55
SECTION 17. ABANDONMENT OR REMOVAL OF FRANCHISE PROPERTY56
17.1. Abandonment or Removal ............................................................56
17.2, Restoration by Grantor: Reimbursement of Costs .......................57
17,3. Extended Operation and Continuity of Services ...........................58
17,4. Receivership and Foreclosure ......................................................58
SECTION 18. GRANTOR AND SUBSCRIBER RIGHTS .................................60
18,1. Reservation of Grantor Rights .....: ................................................60
18.2. Waiver ............................................' ..............................................60
18,3. Rights of Individuals .....................................................................60
SECTION 19. SEVERABILITY.~ .......................................................................63
,SECTION 3. INTENT
3.1. Authority
The City of Dublin pursuant to applicable Federal and State law, is
authorized to grant one or more non-exclusive franchises to construct, operate,
maintain and reconstruct Cable Systems within the City limits.
3.2 Findin,qs
The City Council finds that the development of Cable Systems has the
potential of having great benefit and impact upon the residents of the City.
Because of the complex and rapidly changing technology associated with Cable
Systems, the City Council further finds that the public convenience, safety and
general welfare can best be served by establishing regulatory powers which
should be vested in the City or such Persons as the City may designate. It is the
intent of this Ordinance and subsequent amendments to provide for and specify
the means to attain the best possible Cable Service to the public and any
Franchises issued pursuant to this Ordinance shall be deemed to include this as
an integral finding thereof. It is the further intent of this Ordinance to establish
regulatory provisions that permit the City to regulate Cable System Franchises to
the extent permitted by Federal and State law, .including but not limited to the
Federal Cable Communications Policy Act of 1984, the Federal Cable Television
Consumer Protection and Competition Act of 1992, the Federal
Telecommunications Act of 1996, applicable Federal Communications
Commission regulations and applicable California law.
SECTION 4. SHORT TITLE
This Ordinance shall constitute the "Cable System Regulatory Ordinance"
of the City of Dublin and may be referred to as such.
SECTION 5. DEFINITIONS
For the purposes of this Ordinance, the following terms, phrases, words
and their derivations shall have the meaning given herein. Words used in the
present tense include the future, words in the plural number include the singular
number, and words in the singular number include the plural number. Words not
defined shall be given their common and ordinary meaning.
5.1. "Basic Cable Service" means any service tier which includes the
retransmission of local television broadcast signals.
5.2. "Cable Operator" means any Person or group of Persons who:
(a) provides Cable Service over a Cable System and directly or
through one (1) or more affiliates owns a significant interest in such Cable
System; or
(b) otherwise controls or is responsible for, through any arrangement,
the management and operation of such Cable System.
5.3. "Cable Service" means:
(a) The one-way transmission to Subscribers of
(1) video programming; or
(2) other programming service; and
(b) Subscriber interaction, if any, which is required for the selection or
use of such video programming or other programming service.
5.4. "Cable System" or "System," means a facility, consisting of a set of
closed transmission paths and associated signal generation, receptior~, 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 television signals of one (1)
or more television broadcast stations;
(b)
of-Way;
a facility that serves Subscribers without using any Public Rights-
(c) a facility of a common carrier which is subject, in whole or in part, to
the provisions of Title II of the Communications Act of 1934, as amended, except
that such facility shall be considered a Cable System (other than for the
purposes of 47 USC 541) to the extent such facility is used in the transmission of
video programming directly to Subscribers; unless the extent of such use is
solely to provide interactive on-demand services;
(d) an open video system that complies with 47 USC 573; or
(e) any facilities of any electric utility used solely for operating its
electric utility system.
5.5. "Channel" or "Cable Channel" means a portion of the
electromagnetic frequency spectrum which is used in a Cable System and which
is capable of delivering a television channel as defined by the Federal
Communications Commission.
5.6. "Council" means the City Council of the City of Dublin.
5.7. "Franchise" means an initial authorization, or renewal thereof, issued
by the Council, whether such authorization is designated as a franchise, permit,
license, resolution, contract, certificate, agreement, or otherwise, which
authorizes the construction or operation of a Cable System. Any such
authorization, in whatever form granted, shall not supersede the requirement to
obtain any other license or permit ,required for the privilege of transacting
business within the City as required by the other ordinances and laws of the City.
5.8. "Franchise Agreement" means a franchise grant ordinance or a
contractual agreement, containing the specific provisions of the Franchise
granted, including references, specifications, requirements and other related
matters.
5.9. "Franchise Fee" means any fee or assessment of any kind imposed
by the City on a Grantee as compensation for the Grantee's use of the Public
Rights-of-Way for the provision of Cable Service. The term "Franchise Fee"
does not include:
(a) any tax, fee or assessment of general applicability (including any
such tax, fee, or assessment imposed on both utilities and Cable Operators or
their services, but not including a tax, fee or assessment which is unduly
discriminatory against Cable Operators or Cable Subscribers);
(b) capital costs which are required by the Franchise to be incurred by
Grantee for Public, Educational, or Governmental Access Facilities;
(c) requirements or charges incidental to the awarding or enforcing of
the Franchise, including payments for bonds, security funds, letters of credit,
insurance, indemnification, penalties, or liquidated damages; or
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(d) any fee imposed under Title 17, United States Code.
5.10. "Grantee" means any "Person" receiving a Franchise pursuant to
this Ordinance and under the granting Franchise ordinance or-agreement, and
its lawful successor, transferee or assignee.
5.11o "Grantor" or "City" means the City of Dublin as represented by the
Council or any delegate, acting within the lawful scope of its jurisdiction.
5.12. "Gross Annual Cable Service Revenues" means the annual gross
revenues received by a Grantee from the operations of the Cable System within
the City to provide Cable Service utilizing the Public Rights-of-Way for which a
Franchise is required, excluding refundable deposits, rebates or credits, and any
sales, excise or other taxes or charges imposed externally to the Franchise, and
collected for direct pass-through to local, State or Federal government.
5.13. "Installation" means the connection of the System to Subscribers'
terminals, and the provision of service.
5.14. "Person" means an individual, partnership, association, joint stock
company, trust, corporation or governmental entity.
5.15. "Public, Educational or Government Access Facilities" or "PEG
Access Facilities" means the total of the following:
(a) Channel capacity designated for noncommercial public,
educational, or government use; and
(b) facilities and equipment for the use of such Channel capacity.
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5.16. "Section" means any section, subsection or provision of this
Ordinance.
5.17. "Service Area" or "Franchise Area" means the entire geographic
area within the municipal boundaries of the City as it is now constituted or may in
the future be constituted, unless otherwise specified in the Franchise.
5.18. "Service Tier" means a category of Cable Service or other services
provided by a Cable Operator and for which a separate rate is charged.
5.19. "State" means the State of California.
5.20. "Street" or "Public Way" or "Public Rights-of-Way" means each of
the following which have been dedicated to the public or are hereafter dedicated
to the public and maintained under public authority or by others and located
within the Service Area: streets, roadways, highways, avenues, lanes, alleys,
sidewalks, easements, rights-of-way and similar public property.
5.21. "Subscriber" or "Customer" or "Consumer" means any Person who
or which elects to subscribe to, for any purpose, Cable Service provided by the
Grantee by means of or in connection with the Cable System, and who pays the
charges therefor.
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SECTION 6. FRANCHISE TERMS AND CONDITIONS
6.1. Franchise Purposes
A Franchise granted by the City under the provisions of this Ordinance
shall encompass the following purposes:
(a) to permit the Grantee to engage in the business of providing Cable
Service, and such other services as may be' permitted by law which Grantee
provides to Subscribers within the designated Service Area.
(b) to permit the Grantee to erect, install, construct, repair, rebuild,
reconstruct, replace, maintain, and retain, cable lines, related electronic
equipment, supporting structures, appurtenances, and other property in
connection with the operation of the Cable System in, on, over, under, upon,
along and across streets or other public places within the designated Service
Area.
(c) to permit the Grantee to maintain and operate said Franchise
properties for the origination, reception, transmission, amplification, and
distribution of television and radio signals and for the delivery of Cable Services,
and such other services as may be permitted by law.
(d)
6.2.
To set forth the obligations of the Grantee under the Franchise.
Franchise Required
After the effective date of this Ordinance, it shall be unlawful for any
Person to construct, install or operate a Cable System in the City within any
Public Way without a properly granted Franchise awarded pursuant to the
provisions of this Ordinance.
6.3. Term of the Franchise
(a) A Franchise granted hereunder shall be for a term established in
the Franchise Agreement, commencing on the Grantor's adoption of an
ordinance or resolution authorizing the Franchise.
(b) A Franchise granted hereunder may be renewed upon application
by the Grantee pursuant to the provisions of applicable State and Federal law.
6.4. Franchise Territory
Any Franchise shall be valid within all the municipal limits of the City, and
within any area added to the City during the term of the Franchise, unless
otherwise specified in the Franchise Agreement.
6.5. Federal or State Jurisdiction
This Ordinance shall be construed in a manner consistent with all
applicable Federal and State laws, and shall apply to all Franchises granted or
renewed after the effective date of this Ordinance to the extent permitted by
applicable law.
6.6. Franchise Non-Transferable
(a) Grantee shall not sell, transfer, lease, assign or dispose of, in
whole or in part, either by forced or involuntary.sale, 0r by ordinary sale, contract,
consolidation or otherwise, the Franchise or any of the rights or privileges therein
granted, without the prior consent of the Council, which consent shall not be
unreasonably denied, withheld or delayed; provided, however, that the prior
consent of the Council shall not be required for an intracorporate or
intracompany transfer from one wholly-owned subsidiary to another wholly-
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owned subsidiary. Any attempt to sell, transfer, lease, assign or otherwise
dispose of the Franchise without the consent of the Council shall be null and
void. The granting of a security interest in any Grantee assets, or any mortgage
or other hypothecation or by assignment of any right, title or interest in the Cable
System in order to secure indebtedness, shall not be considered a transfer for
the purposes of this section.
(b) The requirements of Subsection (a) shall apply to any change in
control of Grantee. The word "control" as used herein includes majority
ownership, and actual working control in whatever manner exercised. In the
event that Grantee is a corporation, prior consent of the Council shall be required
where ownership or control of more than twenty percent (20%) of the voting
stock of the Grantee is acquired by a Person or group of Persons acting in
concert, none of whom own or control the voting stock of the Grantee as of the
effective date of the Franchise, singularly or collectively.
(c)' Grantee shall notify Grantor in writing of any foreclosure or any
other judicial sale of all or a substantial part of the Franchise property of the
Grantee or upon the termination of any lease or interest covering all or a
substantial part of said Franchise property. Such notification shall be considered
by Grantor as notice that a change in control of ownership of the Franchise has
taken place and the provisions under this Section governing the consent of
Grantor to such change in control of ownership shall apply.
(d) For the purpose of determining whether it shall consent to such
change, transfer, or acquisition of control, Grantor may inquire into the
qualifications of the prospective transferee or controlling party, and Grantee shall
assist Grantor in such inquiry. In seeking Grantor's consent to any change of
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ownership or control, Grantee shall have the responsibility of insuring that the
Grantee and/or the proposed transferee complete an application in accordance
with Federal Communications Commission Form 394 or equivalent. Grantor may
require Grantee to submit such additional information as the Grantor may
reasonably require to determine that the proposed transferee possesses the
legal, technical and financial qualifications, or that Grantee is in compliance with
all substantive Franchise requirements. An application shall be submitted to
Grantor not less than one hundred twenty (120) days prior to the proposed date
of transfer. If the legal, technical and financial qualifications of the applicant are
determined by the Grantor to be satisfactory, and if Grantor determines that
Grantee is in compliance with all substantive Franchise requirements, the
Grantor shall consent to the transfer of the Franchise. If the Grantor has not-
taken action on the Grantee's request for transfer within one hundred twenty
(1'20) days after receiving FCC Form 394 or equivalent, Grantor's consent to
such transfer shall be deemed given. The consent of the Grantor to such
transfer shall not be unreasonably denied or delayed. Grantor does not waive
any lawful authority it may have to impose conditions on the transfer.
(e) Any financial institution having a pledge of the Grantee or its assets
for the advancement of money for the construction and/or operation of the
Franchise shall have the right to notify the Grantor that it or its designee
satisfactory to the Grantor shall take control of and operate the Cable System, in
the event of a Grantee default of its financial obligations. Further, said financial
institution shall also agree in writing to continue Cable Service and comply with
all Franchise requirements during the term the financial institution exercises
control over the System.
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(f) Upon transfer, Grantee shall reimburse Grantor for Grantor's
reasonable processing and review expenses in connection with the transfer of
the Franchise, including without limitation, costs of administrative review,
financial, legal and technical evaluation of the proposed transfe~ee, consultants
(including technical and legal experts and all costs incurred by such experts),
noticeand publication costs and document preparation expenses. Any such
reimbursement shall not be charged against any Franchise Fee due to Grantor
during the term of the Franchise.
6.7. Geo.qraphical Covera.qe
(a) Grantee shall design, construct and maintain the Cable System to
have the capability to pass every residential dwelling unit in the Service Area,
subject to any Service Area line extension requirements of the Franchise
Agreement.
(b) After service has been established by activating trunk and/or
distribution cables for any Service Area, Grantee shall provide service to any
requesting Subscriber within that Service Area within thirty (30) days from the
date of request, provided that the Grantee is able to secure all rights-of-way
necessary to extend service to such Subscriber within such thirty (30) day period
on reasonable terms and conditions.
6.8. Nonexclusive Franchise
Any Franchise granted pursuant to this Ordinance shall be nonexclusive.
The Grantor specifically reserves the right to grant, at any time, such additional
Franchises for a Cable System, as it deems appropriate, subject to applicable
State and Federal law, provided that if the Grantor grants an additional
13.
Franchise, then the material provisions of any such additional Franchise shall be
reasonably comparable to the terms and conditions contained in the initial
Grantee's Franchise, so that all Grantees are accorded competitively neutral and
nondiscriminatory treatment.
6.9. Multiple Franchises'
(a) Grantor may grant any number of Franchises subject to applicable
State or Federal law. Grantor may limit the number of Franchises granted,
based upon, but not necessarily limited to, the requirements of applicable law
and specific local considerations, such as:
(1) The capacity of the Public Rights-of-Way to accommodate
multiple cables in addition to the cables, conduits and pipes of the utility
Systems, such as electrical power, telephone, gas and sewerage.
(2) The benefits that may accrue to Subscribers as a result of
Cable System competition, such as lower rates and improved service.
(3) The disadvantages that may result from Cable System
competition, such as the requirement for multiple pedestals on residents'
property, and the disruption arising from numerous excavations of the Public
Rights-of-Way,
(b) Where electric and telephone utilities are to be placed underground
in any new residential housing developments, Grantor and the developer of such
new residential housing shall give each Grantee serving the Franchise Area
within which th;9 new residential housing development is located at least ten (10)
working days prior written notice of the date on which open trenching will be
available for the Grantee's installation of conduit, pedestals and vaults. On
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request of the Grantor or developer, the Grantee shall provide specifications
needed for trenching. *
(c) Grantor may require that any new entrant, non-incumbent Grantee
be responsible for its own underground trenching and the costs associated
therewith, if, in Grantor's opinion, the Public Rights-of-Way in any particular area
cannot feasibly and reasonably accommodate additional cables.
6.10. Franchise Modification
The Grantee may be required to pay any costs incurred by the Grantor in
processing a Grantee request for Franchise modification, lease, hypothecation or
trust of Franchise. Such costs may include the costs incurred for hiring
consultants to assist in evaluating the request. Such costs shall be paid by the
Grantee prior to final consideration of the request by the Grantor.
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SECTION 7. FRANCHISE APPLICATIONS AND RENEWAL
7.1. Filing of Applications
Any Person desiring an initial Franchise for a Cable System shall file an
application with the City. A reasonable nonrefundable initial application fee
established by the City shall accompany the initial Franchise application to cover
all validly documented reasonable costs associated with processing and
reviewing 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 validly
documented reasonable costs exceed the application fee, the selected
applicant(s) shall pay the difference to the City within thirty (30) days following
receipt of an itemized statement of such costs.
7.2. Applications - Contents
An application for an initial Franchise for a Cable System shall contain,
where applicable:
(a) A statement as to the proposed Franchise and Service Area;
(b) A resume of prior history of the applicant, including the expertise of
applicant in the Cable System field;
(c) A list of the partners, general and limited, of the applicant, if a
partnership, or the percentage of stock owned or controlled.by each stockholder,
if a corporation;
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(d) A list of officers, directors and managing employees of the
applicant, together with a description of the background of each such Person;
(e) The names and addresses of any parent or subsidiary of the
applicant or any other business entity owning or controlling the applicant in whole
or in part, or owned or controlled in whole or in part by the applicant;
(f)
A current financial statement of the applicant verified by a Certified
Public Accountant audit or otherwise certified to be true, complete and correct to
the reasonable satisfaction of the City;
(g) A proposed construction and service schedule;
(h)
applicable.
Any reasonable relevant additional information that the City deems
7.3. Consideration of Initial Applications
(a) Upon receipt of any application for an initial Franchise, the City
Manager or a delegate shall prepare a report and make recommendations
respecting such application to the Council.
(b) A public hearing shall be set prior to any initial Franchise grant, at a
time and date approved by the Council. Within sixty (60) days after the close of
the hearing, the Council shall make a decision based upon the evidence
received at the hearing as to whether or not the initial Franchise(s) should be
granted, and, if granted, subject to what conditions. The Council may grant one
(1) or more Franchises, or may decline to grant any Franchise.
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7.4. Franchise Renewal
Franchise renewals shall be in accordance with applicable law.' Grantor
and Grantee, by mutual consent, may enter into renewal negotiations at any time
during the term of the Franchise.
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SECTION 8. MINIMUM CONSUMER PROTECTION AND SERVICE STANDARDS
8.1. Operational Standards
(a) Except as otherwise provided in the Franchise Agreement, Grantee
shall maintain the necessary facilities, equipment and personnel to comply with
the following Consumer protection and service standards under normal
conditions of operation:
(1) Sufficient toll-free telephone line capacity during normal.
business hours to assure telephone answer time by a Customer service
representative, including wait time, shall not exceed thirty (30) seconds; and
callers needing to be transferred within Grantee's operation shall not be required
to wait more than thirty (30) seconds before being connected to a service
representative. Under normal operating conditions, a caller shall receive a busy
signal less than three percent (3%) of the time..
(2) Emergency toll-free telephone line capacity on a twenty-four
(24) hour basis, including weekends and holidays. After normal business hours,
the telephone calls may be answered by a service or an automated response
system, including an answering machine. Calls received after normal business
hours must be responded to by a trained company representative on the next
business day. During periods when an answering service or machine is used,
Grantee shall provide on-call personnel who shall contact the answering service
or machine, at a minimum, every four hours to check on requests for service or
complaints.
(3) A conveniently located local business and service and/or
payment office open during normal business hours at least eight (8) hours daily,
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and at least four (4) hours weekly on evenings or weekends, and adequately
staffed to accept Subscriber payments and respond to service requests and
complaints. The Grantee may petition the Grantor to reduce its business hours if
the extended hours are not justified by Subscriber demand.
(4) An emergency System maintenance and repair staff, capable
of responding to and repairing major System malfunction on a twenty-four (24)
hour per day basis.
(5) An installation staff, capable of installing service to any
Subscriber requiring a Standard Installation within seven (7) days after receipt of
a request, in all areas where trunk and feeder cable have been activated°
"Standard Installations" shall be those that are located up to one hundred
twenty-five (125) feet from the existing distribution System, unless otherwise
defined in any Franchise Agreement.
(6) Grantee shall schedule, within a specified four (4) hour time
period during normal business hours, all appointments with Subscribers for
installation of service, service calls and other activities at the Subscriber location.
Grantee may schedule installation and service .calls outside of normal business
hours for the express convenience of the Customer. Grantee shall not cancel an
appointment with a Customer after the close of business on the business day
prior to the scheduled appointment. If a Grantee representative is running late
for an appointment with a Customer and will not be able to keep the appointment
as scheduled, the Customer shall be contacted as soon as possible and the
appointment rescheduled, as necessary, at a time which is convenient for the
Customer, and within reason.
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(b) The standards of paragraphs (a)(1) and (a)(2) above shall be met
not less than ninety percent (90%) of the time measured on a quarterly basis.
The standards of paragraphs (a)(4)-(6) above shall be met not less than ninety-
five percent (95%) of the time measured on a quarterly basis.
(c) Grantee shall not be required to acquire equipment or perform
surveys to measure compliance with the telephone answering standards above
unless an historical record of complaints indicates a clear failure to comply.
8.2. Service Standards
(a) Grantee shall render efficient service, make repairs promptly, and
interrupt service only for good cause and for the shortest time possible.
Scheduled interruptions of an anticipated duration of two (2) consecutive hours
or longer, insofar as possible, shall be preceded by notice and shall occur during
a period of minimum use of the Cable System, .preferably between midnight and
six A.M. (6:00 A.M.) local time.
(b) The Grantee shall maintain a repair force of technicians normally
capable of responding to Subscriber requests for service within the following time
flames:
(1) For a System outage: Within two (2) hours, including
weekends, of receiving Subscriber calls or requests for service which by number
identify a system outage of sound or picture of one (1) or more channels,
affecting at least ten percent (10%) of the Subscribers of the System.
(2) For an isolated outage: Within twenty-four (24) hours,
including weekends, of receiving requests for service identifying an isolated
outage of sound or picture for one (1) or more channels that affects three (3) or
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more Subscribers. On weekends, an outage affecting fewer than three (3)
Subscribers shall result in a service call no later than the next business day.
(3) For inferior signal quality: Within two (2) business days of
receiving a request for service identifying a problem concerning picture or sound
quality.
(c) In the event a service problem requires a visit to a Subscriber's
residence, Grantee shall be deemed to have responded to a request for service
under the provisions of this Section when a technician arrives at the service
location and begins work on the problem. In the case of a Subscriber not being
home when the technician arrives, the technician shall leave written notification
of arrival.
(d) Grantee shall not charge for the repair or replacement of defective
or malfunctioning equipment provided by Grantee to Subscribers, unless the
defect was caused by the Subscriber.
(e) Unless excused, Grantee shall determine the nature of the problem
within two (2) business days of beginning work and resolve all Cable System
related problems within five (5) business days unless technically infeasible.
8.3. Billin.q and Information Standards
(a) Subscriber bills shall be clear, concise and understandable. Bills
shall be fully itemized, with itemizations including, but not limited to, basic and
premium service charges and equipment charges. Bills shall also clearly
delineate all activity during the billing period, including optional charges, rebates
and credits.
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(b) In case of a billing dispute, the Grantee shall respond to a written
complaint from a Subscriber within thirty (30) days.
(c) Upon request, Grantee shall provide credits or refunds to
Subscribers whose Cable Service has been interrupted for two (2) or more
consecutive hours for interruption(s) not caused by the affected Subscriber(s).
The minimum credit or refund issued pursuant to this Section shall be
equal to one (1) day's charge for Cable Service for the affected Subscriber.
In the event Grantee has improperly or inadvertently disconnected Cable
Services to a Subscriber, Grantee shall provide for restoration without charge to
Subscriber within two (2) days of discovery of disconnection. Grantee shall
credit or provide refunds to any Subscriber improperly or inadvertently
disconnected from receiving Cable Services for the period of time without Cable
Service.
All credits or refunds for service shall be issued no later than the
customer's next billing cycle following the determination that a 'credit is
warranted. For Subscribers terminating service, refunds shall be issued
promptly, but no later than thirty (30) days after the return of any Grantee-
supplied equipment.
(d) Grantee shall provide written information on each of the following
areas (i) at the time of the installation of Cable Service, (ii) at least annually to all
Subscribers, and (iii) at any time upon request:.
(1) Cable Services offered; and
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(2) Prices and options for programming services and conditions of
subscription to programming and other Cable Services; and .
(3) Installation and service maintenance policies; and
(4) Instructions on how to use the Cable Service; and
(5) Channel positions of programming carried on the System; and
(6) Billing and complaint procedures, including the address and
telephone number of the Grantor office designated for dealing with cable-related
issues.
(e) Subscribers shall be notified of any changes in rates, programming
services or channel positions as soon as possible in writing and in accordance
with State and Federal. Law. Notice must be given to Subscribers a minimum of
thirty (30) days in advance of such changes' if the change is within the control of
the Grantee. In addition, Grantee shall notify Subscribers thirty (30) days in
advance of any significant changes in the information required in paragraph
8.3(d) above.
8.4. Verification of Compliance with Standards
(a) Upon thirty (30) calendar days prior written notice, Grantee shall
respond to a request for information made by Grantor'regarding Grantee's
compliance with any or all of the standards required in Sections 8.1, 8.2 and 8.3
above. Grantee shall provide sufficient documentation to permit Grantor to verify
Grantee's compliance for the previous twenty-four (24) month period. Grantee
may request~ and Grantor shall not unreasonably deny, a request for a
reasonable extension of time in which to produce such documentation.
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(b) A repeated and verifiable pattern of non-compliance with the
Consumer protection standards of Sections 8.1 through 8.3 above, after
Grantee's receipt of due notice and a reasonable opportunity to cure, may be
deemed a material breach of the Franchise Agreement.
(c) I.n order to determine whether sufficient telephone lines are
provided, the Grantor may require~ upon thirty (30) calendar days written notice,
the Grantee to submit a report verifying the adequacy of its telephone line
capacity. If Grantee is unable to provide such a report, Grantor may require that
a busy study, traffic study or other study be conducted, at Grantee's expense, if
any, by the local telephone company. Should Grantee have its own telephone
equipment which can report on telephone line(s) usage, the Grantee may submit
such report from its own system. The Grantor, pursuant to Section 8.1 (c) of this
Ordinance, may require Grantee to acquire equipment to determine compliance
with the telephone answering standards of this Section 8.
(d) Should the Grantor determine that insufficient telephone lines or
inadequate staff exists, Grantee shall take necessary steps to ensure that
adequate telephone lines and/or staffing are available to permit Grantee to
satisfy its obligations under this Ordinance and. the Franchise. Consideration
shall be given for periods of promotional activities or outages. The monthly
billing period shall be considered as a normal, daily activity for purposes of
determining the availability of adequate telephone lines and/or staffing.
8.5. Subscriber Complaints and Disputes
(a) Grantee shall establish written procedures for receiving, acting
upon and resolving Subscriber complaints without intervention by the Grantor.
The written procedures shall prescribe the manner in which a Subscriber may
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submit a complaint either orally or in writing specifying the Subscriber's grounds
for dissatisfaction. Grantee shall file a copy of these procedures with ,Grantor.
The written procedures shall include a requirement that Grantee respond to any
written complaint from a Subscriber within thirty (30) days of receipt.
(b) Upon prior written request, Grantor shall have the right to review
Grantee's response to any Subscriber complaints in order to determine
Grantee's compliance with the Franchise requirements, subject to the
Subscriber's right to privacy.
(c) Subject to applicable law, it shall be the right of all Subscribers to
continue receiving Cable Service 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, or the Grantor gives notice of intent to terminate or
not to renew the Franchise, the Grantee shall act so as to ensure that all
Subscribers receive Cable Service so long as the Franchise remains in force.
(d) In the event of a change of control of Grantee, or in the event a
new operator acquires the System, the original Grantee shall cooperate with the
Grantor, new Grantee or operator in maintaining continuity of service to all
Subscribers. During such period, Grantee shall be entitled to the revenues for
any period during which it operates the System.
(e) Grantee response to Subscriber complaints, as well as complaints
made by Subscribers to Grantor and provided by Grantor to Grantee, shall be
initiated within one (1) business day of receipt by Grantee. The resolution of
Subscriber complaints shall be effected by Grantee not later than three (3)
business days after receipt of the complaint. Should a Grantee supervisor not
be available when requested by a Subscriber, a supervisor shall respond to the .
26
Subscriber's complaint at the earliest possible time, and in no event later than
the end of the next business day. For complaints received by Grantor. and
provided by Grantor to Grantee, Grantee shall notify Grantor of Grantee's
progress in responding to, and resolving, said complaints.
8.6. Other Requirements
(a) In the event Grantee fails to operate the System for seven (7)
consecutive days other than for reasons beyond the control of Grantee, without
prior approval or subsequent excuse of the Grantor, the Grantor may, at its sole
option, operate the System or designate an operator until such time as Grantee
restores service under conditions acceptable to the Grantor or a permanent
operator is selected. If the Grantor should fulfill this obligation for the Grantee,
then during such period as the Grantor fulfills such obligation, the Grantor shall
be entitled to collect all revenues from the System, and the Grantee shall
reimburse the Grantor for all reasonable costs or damages in excess of the
revenues collected by Grantor that are the result of Grantee's failure to perform.
(b) All officers, agents or employees of Grantee or its contractors or
subcontractors who, in the normal course of work come into contact with
members of the public or who require entry onto Subscribers' premises shall
carry a photo-identification card. Grantee shall account for all identification cards
at all times. Every vehicle of the Grantee or its major subcontractors shall be
clearly identified as working for Grantee.
(c) Additional Customer service standards and standards governing
Consumer protection and response by Grantee to Subscriber complaints not
otherwise provided for in this Ordinance may be established in the Franchise
Agreement or by separate ordinance. A verified and continuing pattern of
27
noncompliance may be deemed a material breach of the Franchise, provided
that Grantee shall receive due process, including prior written notification and a
reasonable opportunity to cure, prior to any sanction being imposed.
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SECTION 9. FRANCHISE FEE AND FINANCIAL REQUIREMENTS
9.1. Franchise Fee
(a) Following the issuance and acceptance of the Franchise, the
Grantee shall pay to the Grantor a Franchise Fee on Gross Annual Cable
Service Revenues in the amount and at the times set forth in the Franchise
Agreement.
(b) In the event that any Franchise Fee payment or payment of any
adjustment to any Franchise Fee is not made on or before the dates specified in
the Franchise Agreement, Grantee shall pay:
(1) an interest charge, computed from such due date, at an
annual rate equal to the highest of the most recently published prime lending
rate of any of the five (5) largest member banks of the New York Clearing House
Association, plus one percent (1%) during the .period for which payment was
due; and
(2) if the payment is late by ninety (90) days or more, a sum of
money equal to five percent (5%) of the amount due in order to defray those
additional expenses and costs incurred by the Grantor due to Grantee's
delinquent payment.
(c) In the event Grantee overpays its Franchise Fee, the Grantee shall
notify the Grantor in writing, and provide sufficient documentation to verify the
alleged overpayment. Upon written authorization by the Grantor, said
authorization not to be unreasonably withheld, the Grantee may begin deducting
the amount overpaid beginning with the next Franchise Fee payment due from
Grantee to Grantor, and Grantee may continue to deduct the amount paid on
29
subsequent Franc~qise Fee payments until the amount overpaid is fully
reimbursed to Grantee.
(d) The Grantor, on an annual basis, shall be furnished a statement
within ninety (90) days of the close of the calendar year, either audited and
certified by an independent certified public accountant or certified by an officer of
the Grantee, reflecting the total amounts of Gross Annual Cable Service
Revenues and all payments, deductions and computations for the period
covered by the payment.
(e) Franchise fee payments shall be made in accordance with the
schedule indicated in the Franchise Agreement.
(f) Except as otherwise provided by law, no acceptance of any
payment by the Grantor shall be construed as a release or as an accord and
satisfaction of any claim the Grantor may have for further or additional sums
payable as a Franchise Fee under this Ordinance or for the performance of any
other obligation of the Grantee.
9.2. Franchise Fee Audit
Upon thirty (30) days prior written notice, Grantor shall have the right to
conduct an independent financial audit of Grantee's Gross Annual Cable Service
Revenues and Franchise Fee records, in accordance with Generally Accepted
Accounting Procedures (GAAP), and if such audit indicates a Franchise Fee
underpayment of two percent (2%) or more, the Grantee shall assume all
reasonable documented costs of such audit.
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9.3. Security Fund
(a) Grantor may require Grantee to provide a security fund, i.n an
amount and form established in the Franchise Agreement. The amount of the
security fund shall be established based on the extent of the Grantee's
obligations under the terms of the Franchise.
(b) The security fund shall be available to Grantor to satisfy all claims,
liens and/or taxes due Grantor from Grantee which arise by reason of
construction, operation, or maintenance of the System, and to satisfy any actual
or liquidated damages arising out of a material breach of the Franchise
Agreement, subject to the procedures and amounts designated in the Franchise
Agreement.
(c) if the security fund is drawn upon by Grantor in accordance with
the procedures established in this Ordinance and the Franchise Agreement,'
Grantee shall cause the security fund to be replenished to the original amount no
later than thirty (30) days after receiving written confirmation from the bank
where such security fund is deposited that Grantor has made a draw against the
security fund. Failure to replenish the security fund shall be deemed a material
breach of the Franchise.
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SECTION 10. CONSTRUCTION REQUIREMENTS
10.1 . System Construction
(a) Grantee shall not construct any Cable'System facilities until
Grantee has secured the necessary permits from Grantor, or other responsible
public agencies. The Grantee shall be subject to all permit and bonding
requirements applicable to contractors working within the Public Rights-of-Way.
No provision of this Ordinance or the Franchise Agreement shall be deemed a
waiver of the obligation of a Grantee to pay Grantor for the issuance of a permit.
(b) In those areas of the City where transmission lines or distribution
facilities of the public utilities providing telephone and electric power service are
underground, the Grantee likewise shall construct, operate and maintain its
transmission and distribution facilities underground.
(c) In those areas of the City where the Grantee's cables are located
on the above-ground transmission or distribution facilities of the public and/or
municipal utility providing telephone or electric power service, and in the event
that the facilities of both the telephone and electric power utilities subsequently
are placed underground, then the Grantee likewise shall reconstruct, operate
and maintain its transmission and distribution facilities underground, at Grantee's
cost. Certain of Grantee's existing equipment, .such as pedestals, amplifiers and
power supplies, which normally are placed above ground, may continue to
remain in above-ground enclosures, unless otherwise provided in the Franchise
Agreement.
(d) Any changes in or extensions of any poles, anchors, wires, cables,
conduits, vaults, laterals or other fixtures and equipment (herein referred to as
32
"Structures"), or the construction of any additional Structures, in, upon, along,
across, under or over the Streets, alleys and Public Ways shall be made under
the direction of Grantor's City Manager or the City Manager's designee, who
shall, if the proposed change, extension or construction conforms to the
provisions hereof, issue written permits therefor within thirty (30) days of
receiving a complete permit application. The height above public thoroughfares
of all aerial wires shall conform to the requirements of the California regulatory
body having jurisdiction thereof.
(1) All transmission and distribution structures, lines and
equipment erected by the Grantee shall be located so as not to interfere with the
proper use of the Public Rights-of-Way, and to cause minimum interference with
the rights or reasonable convenience of property owners who adjoin any of the
said Public Rights-of-Way, and not to materially interfere with existing public and
municipal utility installations.
(2) Upon issuance of a written finding by the Grantor that any
property or improvement of the Grantor in the Public Rights-of-Way is disturbed
or damaged by the Grantee or any of its contractors, agents or employees in
connection with undertaking any and all work pursuant to the rights granted to
the Grantee pursuant to this Ordinance and the Franchise Agreement, the
Grantee shall promptly, at the Grantee's sole cost and expense, restore as
nearly as practicable to at least its former condition and to the Grantor's
reasonable satisfaction said property or improvement which was so disturbed or
damaged. If such property or improvement becomes uneven, unsettled or
otherwise require additional restorative work, repair or replacement because of
the initial disturbance or damage to the property by the Grantee, then the
Grantee, as soon as reasonably possible, shall, promptly upon receipt of written
33
notice from the Grantor and at the Grantee's sole cost and expense, restore as
nearly as practicable to at least its former condition and to the Grantor.'s
reasonable satisfaction said property or improvement which was disturbed or
damaged. Any such restoration by the Grantee shall be made in accordance
with such materials and specifications as may, from time to time, be established
by the Grantor.
(3) Prior to commencing any work on the System in the Public
Rights-of-Way, the Grantee shall obtain any and all permits, licenses and
authorizations lawfully required for such work, If emergency work on the System
in the Public Right-of-Way is required, the Grantee shall with all due diligence,
seek to obtain any and all such required permits, licenses and authorizations
within three (3) working days after commencing such emergency work.
(4) There shall be no unreasonable or unnecessary obstruction
of the Public Rights-of-Way by the Grantee in connection with any of the work
provided for herein. The Grantee shall maintain any barriers, signs and warning
signals during any work performed on or about. the Public Rights-of-Way or
adjacent thereto as may be necessary to reasonably avoid injury or damage to
life and property.
(5) If the Grantor lawfully elects to alter or change the grade or
location of any Public Right-of-Way, the Grantee shall: upon reasonable notice
by the Grantor, and in a timely manner, remove, relay and relocate its poles,
wires, cables, underground conduits, manholes and other fixtures at it own
expense. If, however, other similarly situated users of such Public Rights-of-Way
are compensated or reimbursed for any of the cost associated with the removal,
34
relay or relocation of any equipment or facilities, Grantee shall be entitled to
compensation in kind.
(6) The Grantee shall not place poles, conduits or other fixtures
above or below ground where the same will interfere with any gas, electric,
telephone fixtures, water hydrants or other utility, and all such poles, conduits or
other fixtures placed in any street shall be so placed as to comply with all
ordinances of the Grantor.
(7) In accordance with applicable law, the Grantee or any utility
user of the Public Rights-of-Way may be required by the Grantor to permit joint
use of its poles and/or conduit located in the Public Rights-of-Way, by any
authorized user insofar as such joint use may be reasonably practicable and
upon payment of a reasonable rental fee for such usage. In the absence of
agreement regarding such joint use, each party shall be entitled to exercise any
rights and defenses provided by applicable law.
(8) The Grantee, on request of any Person holding a moving
permit issued by the Grantor, shall temporarily 'raise or lower its wires or fixtures
to permit the moving of buildings. The expense of such temporary raising or
lowering of wires or fixtures shall be paid by the Person requesting the same,
and the Grantee shall have the authority to require such payment in advance.
The Grantee shall be given not less than ten (!0) business days prior written
notice to arrange for the temporary wire or equipment changes.
(9) The Grantee shall have the authority to trim any trees or
other natural growth overhanging the Public Rights-of-Way so as to prevent the
branches of such trees or other natural growth .from coming in contact with the
Grantee's wires, cables and other equipment. The Grantor may require all
35
trimming of trees and natural growth to be done under its supervision and
direction, at the expense of the Grantee.
(10) Grantee shall be subject to any and all requirements
established by the Grantor with regard to the location, either above ground or
underground, as well as screening of Grantee's facilities and equipment located
in the Public Rights-of-Way. Such requirements may include, but not be limited
to, use of landscaping to screen pedestals and cabinets and requiring that
construction be flush with the natural grade of the surrounding area.
10.2. Multiple Franchises
(a) Subject to applicable law, in the event that more than one (1)
Franchise is awarded, the Grantor reserves the right to limit the number of
unused drop cables per residence.
(b) The Grantor reserves the right to grant an encroachment permit to
a Cable Franchisee applicant to install conduit and/or cable in anticipation of the
granting of a Franchise. Such installations shall be at the applicant's risk, with
no recourse against the Grantor in the event th'e pending Franchise application is
not granted. The Grantor may require an applicant to provide a separate trench
for its conduit and/or cable, at the applicant's cost.
(c) If the Grantor authorizes or permits another Cable System to
operate within the municipal limits of the City, it shall do so on conditions that
such new Cable System entrant indemnify and hold harmless the initial Grantee
from and against all costs and expenses incurred in strengthening poles,
replacing poles, rearranging attachments, placing underground facilities and all
other costs including those of the initial Grantee, the City and utilities, incident to
36
inspections, make ready, and construction of an additional Cable System in the
Franchise Area; and the initial Grantee shall be designated a third party
beneficiary of such conditions as are incorporated into the authorization(s)
granted to such new entrant Cable System.
37
SECTION 11. TECHNICAL STANDARDS
11.1. Applicable Technical Standards
(a) The Grantee shall construct, install, operate and maintain its Cable
System in a manner consistent with all applicable laws, ordinances, construction
standards, governmental requirements, FCC technical standards, and any
detailed standards set forth in its Franchise Agreement. In addition, the Grantee
shall provide to the Grantor, upon written request, a written report of the results
of the Grantee's periodic proof of performance tests conducted pursuant to FCC
and Franchise standards and guidelines.
(b) Should the FCC no longer require proof of performance tests, the
Grantee shall make and submit such equivalent proof of performance tests and
reports in response to a written request from the Grantor. ,Such report shall be
submitted to the Grantor within sixty (60) days of issuance of the Grantor
request.
(c) Repeated and verified failure to maintain specified technical
standards shall constitute a material breach of the Franchise.
11.2. Costs of Technical Assistance
The Grantee shall pay all reasonable costs actually incurred by the
Grantor for obtaining any technical assistance deemed necessary by the Grantor
for independent verification of technical compliance with applicable technical
standards. The Grantee shall be obligated to pay for such technical review not
more frequently than once per any thirty-six (36) month period.
38
SECTION 12. INDEMNIFICATION AND INSURANCE REQUIREMENTS
12.1. Hold Harmless
Grantee shall indemnify, defend and hold Grantor, its officers, agents and
employees harmless from any liability, claims, damages, costs or expenses, to
the extent provided in the Franchise Agreement.
12.2. Insurance
(a) On or before commencement of Franchise operations, the Grantee
shall furnish to Grantor Certificates of Insurance for liability, Workers'
Compensation and property insurance, in the coverage limits provided in the
Franchise Agreement, from appropriately qualified insurance companies, which
shall be "admitted" in the State of California. The Certificates of Insurance shall
provide that the insurance is in force and will not be cancelled or modified
without thirty (30) days prior written notice to Grantor. The Certificates of
Insurance shall be in a form satisfactory to Grantor. The Grantee shall maintain
at its cost throughout the term of the Franchise, the insurance required herein
and in any Franchise Agreement:
(b) The policy of liability insurance shall:
(1) Name Grantor, its officers, agents and employees as
additional insureds;
(2) Indemnify all liability for personal and bodily injury, death
and damage to property arising from activities conducted and premises used
pursuant to this Ordinance by providing coverage therefor, including but not
limited to:
39
Negligent acts or omissions of Grantee, and its
agents, servants and employees, committed in the
conduct of Cable System operations, and/or
- Use of motor vehicles;
(3) Provide a combined single limit for comprehensive general
liability and comprehensive automobile liability insurance in the amount provided
for in the Franchise Agreement.
(c) The policy of Workers' Compensation Insurance shall comply with
the laws of the State of California.
(d) The policy of property insurance shall provide fire insurance with
extended coverage on the Cable System property used by Grantee in the
conduct of Cable System operations in an amount adequate to enable Grantee
to resume Cable System operations following the occurrence of any risk covered
by this insurance.
The Certificates of Insurance shall indicate the following information:
(1) The policy number;
(2) The date upon which the policy will become effective and
the date upon which it will expire;
(3) The names of the primary insureds and any additional
insured required by the Franchise Agreement;
(4) The subject of the insurance;
(5) The type of coverage provided by the insurance; and
40
(6) The amount or limit of coverage provided by the insurance.
If the Certificates of Insurance do not provide all of the above information,
Grantor reserves the right to inspect the relevant insurance policies.
(e) The commencement of Franchise operations shall not begin until
Grantee has complied with the aforementioned provisions of this Section.
(f) In the event Grantee fails to maintain any of the above-described
policies in full force and effect, Grantor shall, upon three (3) business days notice
to Grantee, have the right to procure the required insurance and recover the cost
thereof from Grantee. Grantor shall also have the right to suspend the Franchise
during any period that Grantee fails to maintain said policies in full force and
effect. In order to account for increases in consumer prices, no more than once
during any five (5) year period, Grantor shall have the right to order Grantee to
increase the amounts of the insurance provided in the Franchise Agreement.
Such order may be made by Grantor after conducting a duly noticed public
hearing. Increases in insurance coverage shall be based upon current prudent
business practices of like enterprises involving the same or similar risks.
41
SECTION 13. RECORDS AND REPORTS
13.1. Records Required
(a) Grantee shall at all times maintain:
(1) A written or computer-stored record of all service calls and
interruptions or degradation of service experienced for the preceding two (2)
years, provided that such complaints result in or require a service call, subject to
the Subscriber's right of privacy.
(2) A full and complete set of record drawings showing the
locations of the Cable System installed or in use in the City, exclusive of
Subscriber service drops and equipment provided in Subscriber's homes.
(3) If requested by Grantor, a summary of service calls,
identifying the number, general nature and disposition of such calls, on a
monthly basis. A summary of such service calls shall be submitted to the
Grantor within thirty (30) days following any written request by Grantor, in a form
reasonably acceptable to the Grantor.
(4) If requested by Grantor, a complaint record which shall
contain a semi-annual (January 1 through June 30 and July 1 through December
31 ) breakdown indicating the total number of complaints received for the
preceding reporting period, and shall indicate the classifications of complaints as
follows: construction, billing, customer relations/service and miscellaneous.
(5) A full and complete record of rates for Cable Services, such
as programming services, equipment, installations and other Subscriber charges.
This information shall include, but not be limited to, rates for the Basic Service
42
Tier, Tiers of service beyond the Basic Tier, premium service, pay-per-view
services, late fees, additional outlets, converters, remote controls and ,any
charges for installation or service at the Subscriber premises.
(b) The Grantor may impose requests for additional .information,
records and documents from Grantee, provided they reasonably relate to the
scope of the City's rights under this Ordinance or the Grantee's Franchise
Agreement.
(c) Upon reasonable written notice, and during normal business hours,
Grantee shall permit examination by any duly authorized representative of the
Grantor of all:
(1) Cable System property and facilities, together with any
appurtenant property and facilities of Grantee situated within the Service Area;
and
(2) All records relating to the operation of the Cable System,
provided they are necessary to enable the Grantor to carry out its regulatory
responsibilities under this Ordinance or the Franchise Agreement. Grantee shall
have the right to be present at any such examination.
13.2. Annual Reports
(a) Within ninety (90) days after the end of the calendar year, Grantee
shall, upon written request made within thirty (30) days of the close of the
calendar year, submit a written report to Grantor with respect to the preceding
calendar year in a form approved by Grantor, including, but not limited to, the
following information:
43
(1) A summary of the previous year's (or in the case of the initial
reporting year, the initial year's) activities in development of the Cable.System,
including but not limited to, Cable Services begun or discontinued during the
reporting year;
directors;
(2)
A list of Grantee's officers and members of its board of
(3) A list of stockholders or other equity investors holding five
percent (5%) or more of the voting interest in Grantee;
(4) An indication of any residences in Grantee's Service Area
where service is not available, and a schedule for providing service;
(5) Information as to:
(i) the number of homes passed;
(ii) total Subscribers; and
(iii) the number of Basic and Pay Subscribers.
(6) Any otherinformation relevant to Franchise regulation which
the Grantor shall reasonably request, and which is relevant to its regulatory
responsibilities.
(b) Upon written request, Grantee shall submit to Grantor copies of all
pleadings, applications and reports submitted by Grantee to any Federal, State
or local court, regulatory agency, or other governmental body as well as copies
of all decisions issued in response to such pleadings, applications and reports,
44
which are non-routine in nature and which will materially affect its Cable System
within the Franchise Area.
(c) Information otherwise confidential by law and so designated by
Grantee, which is submitted to Grantor, shall be retained in confidence by
Grantor and its authorized agents and shall not be made available for public
inspection. Notwithstanding the foregoing, Grantee shall have'no obligation to
provide copies of documents to Grantor which contain trade secrets of Grantee
or which are otherwise of a confidential or proprietary nature to Grantee unless it
receives satisfactory assurances from Grantor that such information can and will
be held in strictest confidence and protected by the Grantor. To the extent
possible, Grantee may provide Grantor with summaries of any required
documents or copies thereof with trade secrets and proprietary matters deleted
therefrom. The burden of proof shall be on Grantee to establish the confidential
nature of any information submitted, to the reasonable satisfaction of the
Grantor.
(d) If Grantee or its parent is publicly held, Grantee shall, upon written
Grantor request, submit a copy of Grantee's or Grantee's parent's publicly filed
annual or quarterly financial statement within forty-five (45) days of such a
request.
(e) Upon Grantor's written request, .but no more than annually, Grantee
shall submit to Grantor a privacy report indicating the degree of compliance with
the provisions contained in Section 18.3(c), (d) and (f) herein and all steps taken
to assure that the privacy rights of individuals have been protected.
45
(f) All reports required under this Ordinance, except those required by
law to be kept confidential, shall be available for public inspection in the
Grantor's offices during normal business hours.'
(g) All reports and records required to be delivered to Grantor under
this Ordinance shall be furnished at the sole expense of Grantee, except as
otherwise provided in the Franchise Agreement.
(h) The willful refusal, failure, or willful negligence of Grantee to file any
of the reports required as and when due under this Ordinance, may be deemed
a material breach of the Franchise Agreement if such reports are not provided to
Grantor within sixty (60) days after written request therefor, and may subject the
Grantee to all remedies, legal or equitable, which are available to Grantor under
this Ordinance or the Franchise Agreement.
(i) Any materially false or misleading statement or representation
made knowingly and willfully by the Grantee in .any report required under this
Ordinance or under the Franchise Agreement may be deemed a material breach
of the Franchise and may subject Grantee to all remedies, legal or equitable,
which are available to Grantor.
13.3. Record Maps
Within sixty (60) calendar days of a written request from Grantor, Grantee
shall provide Grantor with a full and complete set of plans and record drawings
showing the locations of the Cable System installed or in use in the City, exclusive
of Subscriber service drops and equipment provided in Subscriber's homes. It is
the intent of this Section that the Grantor have a complete set of plans and record
drawings. After the initial submission of a complete set of drawings, the Grantee
46
shall provide to Grantor updated portions of those sections of the drawings that
have changed, within sixty (60) calendar days of the change.
13.4. Opinion Survey
Upon written request of the Grantor, but not more than once every two (2)
years, the Grantee shall conduct a Subscriber satisfaction survey pertaining to
quality of service, which may be transmitted to Subscribers in Grantee's invoice
for Cable Services. The results of such survey shall be provided to the Grantor
on a timely basis. The cost of such survey shall be borne by the Grantee.
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SECTION 14. REVIEW OF SYSTEM PERFORMANCE
14.1. Triennial Review
(a) Every three (3) years throughout the term of the Franchise, if
reasonably requested 'by prior written notice from the Grantor, Grantor and
Grantee shall meet publicly to review System performance and quality of service.
The various reports required pursuant to this Ordinance, results of technical
performance tests, the record of Subscriber complaints and Grantee's response
to those complaints, and the information acquired in any Subscriber surveys,
shall be utilized as the basis for review. In addition, any Subscriber may submit
comments or complaints during the review meetings, either orally or in writing,
and these shall be considered. Within thirty (30) days after the conclusion of
such a review meeting, Grantor may issue findings with respect to the Cable
System's Franchise compliance and quality of service°
(b) If Grantor determines that Grantee is not in compliance with the
requirements of this Ordinance or the Grantee'S Franchise Agreement, Grantor
shall provide Grantee, in the form of written findings, the specific details of each
alleged noncompliance. Grantor may then direct Grantee to correct the areas of
noncompliance within a reasonable period of time, but not less than thirty (30)
days. Failure of the Grantee, after due notice, .to:
(1) correct the area(s) of noncompliance within the period
specified therefor; or
(2) commence compliance within such period and diligently
achieve compliance thereafter; or
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incorrect;
(3)
demonstrate that the allegations of noncompliance are
shall be considered a material breach of the Franchise, and Grantor may
exercise any remedy within the scope of this Ordinance and the Franchise
Agreement considered appropriate under the circumstances.
14.2. Special Review
When there have been extensive complaints made or where there exists
other demonstrative evidence which, in the reasonable judgment of the Grantor,
casts reasonable doubt on the reliability or quality of Cable Service to the effect
that the Grantee is not in compliance with the requirements of this Ordinance or
its Franchise, the Grantor shall have the right to compel the Grantee to test,
analyze and report on the performance of the Cable System in order to protect
the public against substandard Cable Service. 'Grantor may not compel Grantee
to provide such tests or reports unless and until Grantor has provided Grantee
with at least thirty (30) days prior written notice' of its intention to exercise its
rights under this Section 14.2 and has provided Grantee with an opportunity to
be heard prior to its exercise of such rights. Such test or tests shall be made and
the report shall be delivered to the Grantor no later than thirty (30) days after the
Grantor notifies the Grantee in writing that it is exercising such right, and shall be
made at Grantee's sole cost. Such report shall include the following infor. mation:
The nature of the complaints which precipitated the special tests, what System
component was tested, the equipment used and procedures employed in said
testing, the results of such tests, and the method by which such complaints were
resolved. Any other information pertinent to the special test shall be recorded.
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SECTION 15. FRANCHISE VIOLATIONS
15.1. Remedies for Violations
If Grantee fails to perform in a timely manner any material obligation
required by this Ordinance or a Franchise granted hereunder, following
reasonable written notice from the Grantor and a reasonable opportunity to cure
such nonperformance in accordance with the provisions of Section 15 of this
Ordinance and the Franchise, Grantor may at its option and in its sole discretion:
(a) Cure the violation and recover the actual cost thereof from the
security fund established in the Franchise Agreement if such violation is not
cured within thirty (30) days after written notice to the Grantee of Grantor's
intention to cure and draw upon the security fund;
(b) Assess against Grantee liquidated damages in an amount set forth
in the Franchise Agreement for any such violations(s) if such violation is not
cured, or if Grantee has not commenced a cure, on a schedule reasonably
acceptable to Grantor, within thirty (30) days after written notice to the Grantee of
Grantor's intention to assess liquidated damages. Such assessment may be
withdrawn from the security fund, and shall not constitute a waiver by Grantor of
any other right or remedy it may have under the Franchise or applicable law,
including without limitation, its right to recover from Grantee such additional
damages, losses, costs and expenses, including actual attorney's fees, as may
have been suffered or incurred by Grantor by reason of or arising out of such
material breach of the Franchise,
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15.2. Procedure for Remedying Franchise Violations
Prior to imposing any remedy or other sanction against Grantee specified
in this Ordinance, Grantor shall give Grantee notice and opportunity to be heard
on the matter, in accordance with the following procedures:
(a) Grantor shall first notify Grantee of the alleged violation in writing
by personal delivery or registered or certified mail, and demand correction, or
evidence of non-viOlation, within a reasonable time, which shall not be less than
fifteen (15) business days in the case of the failure of the Grantee to pay any
sum or other amount due the Granl~or under this Ordinance or the Grantee's
Franchise and thirty (30) business days in all other cases. If Grantee fails to:
(1) correct the alleged violation within the time prescribed; or
(2) commence correction of the alleged violation within the time
prescribed and diligently remedy such alleged violation thereafter; or
(3) provide evidence that there is no violation,
the Grantor shall then give, by personal delivery or registered or certified
mail written notice of not less than thirty (30) days of a public hearing to be held
before the Council. Said notice shall set forth in detail each of the violations
alleged to have occurred.
(b) Subsequent to the public hearing, the Council shall hear and
consider all other relevant evidence, and thereafter render findings and its
decision.
(c) If the Council finds that
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(1) the Grantee has corrected the alleged violation; or
(2) the Grantee has diligently commenced correction ~f such
alleged violation after notice thereof and is diligently proceeding to fully remedy
such alleged violation; or
(3) no material violation has occurred,
the proceedings shall terminate and no penalty or other sanction shall be
imposed.
(d) If the Council finds that material violations exist and that Grantee:
(1) has not corrected the same in a satisfactory manner; or
(2). has not diligently commenced correction of such violation
after notice thereof and is not diligently proceeding to fully remedy such violation;
then the Council may impose one (1) or more of the remedies provided in
this Ordinance and the Franchise Agreement as it, in its discretion, deems
appropriate under the circumstances.
15.3. Grantor's Power to Revoke
(a) Grantor may revoke any Franchise granted pursuant to this
Ordinance and rescind all rights and privileges associated with it in the following
circumstances, each of which shall represent a default by Grantee and a material
breach under the Franchise:
(1) If Grantee fails to perform any of its material obligations
under this Ordinance or the Franchise Agreement and continues such failure to
perform after receipt of due notice and a reasonable opportunity to cure;
52
(2) If Grantee fails to provide or maintain in full force and effect
the insurance coverage or security fund as required in the Franchise Agreement;
(3) If Grantee violates any order or ruling of any regulatory body
having jurisdiction over the Grantee relative to the Grantee's Franchise, unless
such order or ruling is being contested by Grantee in good faith in an appropriate
proceeding;
(4)
upon Grantor;
If Grantee knowingly practices any material fraud or deceit
(5) If Grantee becomes insolvent, unable or unwilling to pay its
debts, or is adjudged a bankrupt.
(b) After completing the procedures set forth in Section 15.2 above,
the Grantor may make a formal request before the Council that the Grantee's
Franchise be revoked. The Council shall cause to be served on the Grantee
written notice of its intent to consider revoking Grantee's Franchise. Such notice
shall be served on Grantee at least sixty (60) days prior to the date of the
hearing on the issue. The notice shall contain the time and place of the hearing
and shall be published at least once in a newspaper of general circulation within
the Franchise area ten (10) days prior to the hearing date.
(c) The Council shall hear any Person(s) interested in the revocation
and within ninety (90) days after the date of the hearing shall make its
determination, based on a preponderance of the evidence, whether the Grantee
has committed a material breach of the Franchise.
(d) If the Grantor determines that the Grantee has committed a
material breach, then the Grantor may:
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(1) Declare the Franchise revoked and any security fund and
bonds forfeited; or
(2) If the material breach is curable by the Grantee, direct the
Grantee to take appropriate remedial action within the time and manner and
under the terms and conditions reasonably specified by the Grantor.
The termination and forfeiture of the Grantee's Franchise shall in no way
affect any right of Grantor to pursue any remedy under the Franchise or any
provision of law.
15.4. Appeal of Finding of Revocation
The Grantee may appeal a finding of revocation made pursuant to Section
15.3 to an appropriate court of jurisdiction, which shall have the power to review
"de novoo" Any such appeal must be initiated by the Grantee within sixty (60)
days of the issuance of the Grantor's decision to revoke the Franchise.
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SECTION 16. FORCE MAJEURE; GRANTEE'S INABILITY TO PERFORM
· In the event Grantee's performance of any of the terms, conditions or
obligations required by this Ordinance or a Franchise granted hereunder is
prevented by a cause or event not within Grantee's control, such inability to
perform shall be deemed excused and no penalties or sanctions shall be
imposed as a result thereof; provided, however, that such inability to perform
shall not relieve a Grantee from the obligations imposed by Section 8.3.(c).
pertaining to refunds and credits for interruptions in service. For the purpose of
this Section, causes or events not within the control of Grantee shall include
without limitation acts of God, war, strikes, sabotage, riots or civil disturbances,
labor disputes, restraints imposed by order of a governmental agency or court,
explosions, acts of public enemies, and natural disasters such as floods,
earthquakes, landslides, and fires, but shall not include financial inability of the
Grantee to perform or failure of the Grantee to obtain any necessary permits or
licenses from other governmental agencies or the right to use the facilities of any
public utility where such failure is due solely to the acts or omissions of Grantee,
or the failure of the Grantee to secure supplies, services or equipment necessary
for the installation, operation, maintenance or repair of the Cable System where
the Grantee has failed to exercise reasonable diligence to secure such supplies,
services or equipment.
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SECTION 17o ABANDONMENT OR REMOVAL OF FRANCHISE PROPERTY
17.1. Abandonment or Removal
(a) If the Grantee discontinues the use of any of its property within the
Public Rights:of-Way for a continuous period of twelve (12) months, such
property shall be deemed to have been abandoned by Grantee. Any part of the
Cable System that is parallel or re~lundant to other parts of the System and is
intended for use only when needed as a backup for the System or a part thereof,
shall not be deemed to have been abandoned because of its lack of use.
(b) Grantor, upon such reasonable terms as Grantor may lawfully
impose, may give Grantee permission to abandon, without removing, any
System facility or equipment laid, directly constructed, operated or maintained
under the Franchise. Unless such permission is granted or unless otherwise
provided in this Ordinance, the Grantee shall remove all abandoned above-
ground facilities and equipment upon receipt of written notice from Grantor and
shall restore to Grantor's reasonable satisfaction any affected Public Right-of-
Way. In removing its plant, structures and equipment, Grantee shall refill, at its
own expense, any excavation that shall be made by it and shall leave all Public
Rights-of-Way in as good condition as that prevailing immediately prior to such
removal without materially interfering with any electrical or telephone cable or
other utility wires, poles, or attachments. Grantor shal'l have the right to inspect
and approve the condition of the Public Rights-of-Way, cables, wires,
attachments and poles prior to and after removal. The liability, indemnity and
insurance provisions"'0f this Ordinance and the security fund as provided herein
shall continue in full force and effect during the' period of removal and until full
compliance by Grantee with the terms and conditions of this Section 17.1.
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(c) Upon the approved abandonment of any Cable System property,
the Grantee, if required by the Grantor, shall submit to the Grantor an instrument,
satisfactory in form to the Grantor, transferring to the Grantor the ownership of
the abandoned Cable System property.
(d) At the expiration, without renewal or extension, of the term for
which the Franchise is granted, or. upon its revocation, as provided herein, the
Grantor shall have the right to require Grantee to remove, at its own expense, all
above-ground portions of the Cable System from all streets and public ways
within the Service Area within a reasonable period of time, which shall not be
less than one hundred eighty (180) days.
(e) Notwithstanding anything to the contrary set forth in this Ordinance,
the Grantee may abandon any underground Cable System property in place so
long as it does not materially interfere with the use of the Public Rights-of-Way in
which such property is located or with the use thereof by any public utility or
other Franchise holder.
1'7.2. Restoration by Grantor: Reimbursement of Costs
Upon reasonable written notice and upon the failure of the Grantee to
commence, pursue or complete any work to be done in any Public Right-of-Way
required by law or by the provisions of this Ordinance Or the Franchise
Agreement, within the time prescribed and to the reasonable satisfaction of the
Grantor, the Grantor may cause the work to be commenced and/or completed.
The Grantor shall provide to the Grantee an itemized work order setting forth in
detail the exact nature of the work completed and the supplies used in such
work. The Grantee shall pay to the Grantor the reasonable costs for such work
no later than thirty (30) days after receipt of the itemized work order.
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17.3. Extended Operation and Continuity of Services.
Upon expiration or revocation of the Franchise, the Grantor shall have the
discretion to permit Grantee to continue to operate the Cable System for an
extended period of time. Grantee shall continue to operate the 'System under
the terms and conditions of this Ordinance and the Franchise and to provide the
regular Subscriber service and any and all of the Cable Services that may be
provided at that time. It shall be the right of all Subscribers to continue to receive
all available Cable Services provided that financial and other obligations to
Grantee are honored. The Grantee shall use reasonable efforts to provide
continuous, uninterrupted service to its Subscribers, including operation of the
System during transition periods following Franchise expiration or termination.
17.4. Receivership and Foreclosure
(a) At the option of the Grantor and subject to applicable law, a
Franchise granted hereunder may be revoked one hundred twenty (120) days
after appointment of a receiver(s) or trustee(s) to take over and conduct the
business of Grantee, whether in a receivership, reorganization, bankruptcy or
other action or proceeding, unless:
(1) the receivership or trusteeship shall have been vacated
within said one hundred twenty (120) days; or
(2) such receivers or trustees within said one hundred twenty
(120) days shall have remedied all the defaults under the Franchise or provided
a plan for the remedy of such defaults which is satisfactory to the Grantor; or
(3) such receivers or trustees shall, within said one hundred
twenty (120) days, have executed an agreement duly approved by the court
58
having jurisdiction whereby such receivers or trustees assume and agree to be
bound by each and every term, provision and limitation of the Franchise.
(b) In the case of a foreclosure or other judicial sale of the Cable
System, in wh~le or in part, the Grantor may serve notice of revocation upon
Grantee and the successful bidder at such sale, and all rights and privileges of
the Grantee hereunder shall be revoked thirty (30) days after service of such
notice, unless:
(1) a bona fide transfer request has been submitted by Grantee
for Grantor review; or
(2) Grantor shall have approved the transfer of the Franchise, in
the manner provided by law; and
(3) the successful bidder shall have covenanted and agreed
with Grantor to assume and be bound by all terms and conditions of the
Franchise.
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SECTION 18. GRANTOR AND SUBSCRIBER RIGHTS
18.1. Reservation of Grantor Ri~hts
In addition to any rights specifically reserved to the Grantor by this
Ordinance, the Grantor reserves to itself every right and power which is required
to be reserved by a provision of any ordinance or under the Franchise.
18.2. Waiver
(a) The Grantor shall have the right to waive any provision of the
Franchise, except those required by Federal or State regulation, if the Grantor
determines (1) that it is in the public interest to do so, and (2) that the
enforcement of such provision will impose an undue hardship on the Grantee or
on the Subscribers. To be effective, such waiv.er shall be evidenced by a
statement in writing signed by a duly authorized representative of the Grantor.
Waiver of any provision in one (1) .instance shall not be deemed a waiver of such
provision subsequent to such instance nor be deemed a waiver of any other
provision of the Franchise unless the statement so recites.
(b) The Grantee shall not be excused from complying with any of the
requirements of this Ordinance or the Franchise Agreement by any failure of the
Grantor on any one or more occasions to require or seek compliance with any
such terms or conditions.
18.3. Rights of Individuals
(a) Grantee shall not deny service, deny access, or otherwise
discriminate against Subscribers, channel users, or general citizens on the basis
of race, color, religion, national origin, age or sex. Grantee shall comply at all
60
times with all other applicable Federal, State and local laws and regulations
relating to nondiscrimination. .
(b) Grantee shall adhere to the applicable equal employment
opportunity requirements of Federal, 8tare and local regulations, as now written
or as amended from time to time.
(c) Unless directed or conducted by an authorized law enforcement
agency, which has obtained all necessary permits, neither Grantee, nor any
Person, or entity shall, without the Subscriber's consent, tap, or arrange for the
tapping, of any cable, line, signal input device, or Subscriber outlet or receiver for
any purpose except routine maintenance of the System, detection of
unauthorized service, polling with audience participation, or audience viewing
surveys to support advertising research regarding viewers where individual
viewing behavior cannot be identified.
(d) In the conduct of providing its Cable Services or in pursuit of any
collateral commercial enterprise resulting therefrom, Grantee shall take
reasonable steps to prevent the invasion of a Subscriber's or general citizen's
right of privacy or other personal rights through the use of the System as such
rights are delineated or defined by applicable law. The Grantee shall not without
lawful court order or other applicable valid legal authority utilize the System's
interactive two-way equipment or capability, if such equipment or capability
exists, for unauthorized personal surveillance of any Subscriber or general
citizen.
(e) No cable line, wire amplifier, converter, or other piece of equipment
owned by Grantee shall be installed by Grantee in the Subscriber's premises,
other than in appropriate easements, without first securing any required consent.
61
If a Subscriber requests service, permission to install upon Subscriber's property
shall be deemed granted. '
(f) The Grantee, or any of its agents or employees, shall not sell, or
otherwise make available to any party without consent of the Subscriber
pursuant to State and Federal privacy laws:
(1) Any list of the names and addresses of'Subscribers
containing the names and addresses of Subscribers who request in writing to be
removed from such list; 'and
(2) Any list which identifies the viewing habits of individual
Subscribers, without the prior written consent of such Subscribers. This does not
prohibit the Grantee from providing composite ratings of Subscriber viewing to
any party.
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SECTION 19. SEVERABILITY
If any provision of this Ordinance is held by any court or by any Federal or
State agency of competent jurisdiction, to be invalid as conflicting with any
Federal or State law, rule or regulation now or hereafter in effect, or is held by
such court or agency to be modified in any way in order to conform to the
requirements of any such law, rule or regulation, such provision shall be
considered a separate, distinct, and independent part of this Ordinance, and
such holding shall not affect the validity and enforceability of all other provisions
hereof. In the event that such law, rule or regulation is subsequently repealed,
rescinded, amended or otherwise changed, so that the provision thereof which
had previously been held invalid or modified is no longer in conflict with such law,
rule or regulation, said provision shall thereupon return to full force and effect
and shall thereafter be binding on Grantor and 'Grantee, provided that Grantor
shall give Grantee thirty (30) days written notice of such change before requiring
compliance with said provision or such longer period of time as may be
reasonably required for Grantee to comply with such provision.
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SECTION 20. POSTING AND EFFECTIVE DATE
This Ordinance shall take effect and be enforced effective June 1, 2001. The City Clerk
of the City of Dublin shall cause this Ordinance to be posted in at least 3 public places in the City
of Dublin in accordance with Section 36933 of the Government Code of the State of California.
Pitssed, approved and adopted this 3rd day of April, 2001, by the following vote:
AYES:
Councilmembers Lockhart, McCormick, Oravetz, Zika and Mayor
Houston
NOES: None
ABSENT: None
ABSTAIN: None
ATTEST:
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