Ordinance Number 528ORDINANCE NO. 528 1
NON-EXCLUSIVE FRANCHISE (TIMES MIRROR
CABLE TELEVISION)
AN ORDINANCE OF THE CITY OF SAN JUAN CAPISTRANO,
CALIFORNIA, RELATING TO THE NON-EXCLUSIVE
FRANCHISE OF TIMES MIRROR CABLE TELEVI-STON AND
AMENDINGORDINANCENO. 149 AND REPEALING
ORDINANCE NO. 389
THE CITY COUNCIL OF THE CITY OF SAN JUAN CAPISTRANO,
CALIFORNIA DOES ORDAIN AS FOLLOWS:
Section 1
Amendments
ordinance No. 149 is hereby amended to read as follows:
1. Section 1 is amended to read as follows:
Section 1. The right, privilege, and non-exclusive
franchise which was originally granted to Times-Mirror TV
Cable Company and is presently held by Times Mirror Cable
Television of Orange County, Inc., authorizes the construc-
tion, installation, operation and maintenance of a television
and FM reception and relay system, together with all wiring,
poles and equipment necessary or convenient to transmit tele-
vision and FM signals by coaxial cable, in, along or across,
over or under the public streets, highways, alleys, public
properties or public easements within the incorporated limits
of the City of San Juan Capistrano, State of California.
The said franchise and privilege shall be subordinate to
any public utility existing franchise or franchise herein-
after granted or lawful occupancy of any public highway,
street, road or other public property for the purpose of
erecting, operating and maintaining poles, lines, conduits,
cables, gas pipe lines and other necessary fixtures used in
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connection with the purpose of said existing franchise or
franchises hereafter granted or any extension thereof.
2. Section 3 is amended to read as follows:
Section 3. Definitions. For the purposes of this Ordi-
nance unless otherwise apparent from the context, certain
words and phrases are defined as follows:
(a) "Cable television system" shall mean and include
any facility that, in whole or in part, receives, directly or
indirectly, over the air and amplifies or otherwise modifies
the signals transmitting programs broadcast by one or more
television or radio stations and distributes such signals by
wire or cable to subscribing members of the public who pay
for such services.
Any modified definition of a cable television system
approved by the Federal Communications Commission ("FCC")
subsequent to the effective date of this Ordinance, shall im-
mediately apply to all the terms and conditions of this ordi-
nance and shall completely supersede all previous definitions
for the purposes of interpreting the provisions of this Ordi-
nance.
(b) "Cable TV Board" shall mean a body of persons act-
ing under Council authority and appointed by the Council.
The membership of the Board shall consist of persons from the
community and/or from the administrative staff of the City.
The powers and duties of the Board shall be determined by the
Council.
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(c) "City" shall mean the City of San Juan Capistrano,
State of California, in its present form or in any later
recognized, consolidated, or enlarged form.
(d) "City Manager" shall mean the City Manager of the
City or his designee.
(e) "Council" shall mean the City Council of San Juan
Capistrano.
(f) "Director of Administrative Services" shall mean
the Director of Administrative Services or his designee.
(g) "Grantee" shall mean Times Mirror Cable Television
of Orange County, Inc., and the lawful successor, transferee,
or assignee of such corporation.
(h) "Highways" shall mean and include public highways,
streets, alleys, roadways, or other public places, as the
same now or hereafter may be dedicated to the City for street
purposes in the City.
(i) "Materially alter" shall mean and apply to a change
that significantly and adversely affects the ability of
Grantee to provide the cable TV services in accordance with
its franchise at reasonable profit.
(j) "Gross revenues" shall mean any and all compensa-
tion received directly or indirectly by Grantee, including
the following:
(1) Installation fees;
(2) Disconnect and reconnect fees;
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(3) Rental fees, including, but not limited to,
deposits accepted by Grantee;
(4) Fees for the transmission of broadcast signals
and access and origination channels, if any;
(5) Per -program or per -channel charges;
(6) Leased channel or facility revenues;
(7) Advertising revenue; and,
(8) Any other income derived from the system.
Gross revenues shall exclude all sales taxes and excise
taxes payable by Grantee to Federal, State, or County govern-
ments as a direct result of Grantee's operation of its cable
television system. Refunds and deposits shall be deducted
from current gross revenues upon return.
(k) "Property of Grantee" shall mean all property
owned, installed, or used within the City by Grantee in the
conduct of a cable television system business under the
authority of the franchise granted by this Ordinance.
(1) "Street" shall mean the surface, the air space
above the surface, and the area below the surface of any pub-
lic street or other public right-of-way or public place,
including public utility easements.
(m) "Subscriber" or "user" shall mean any person or
entity receiving for any purpose any service of Grantee's
cable television system, including, but not limited to, the
conventional cable television system service of transmissions
of television broadcasts, radio signals, original cablecast-
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ing, and the local government, education, and public access
channels, or other services, such as leasing of channels,
data and facsimile transmissions, pay television, and police,
fire, and similar public service communications.
3. Ordinance No. 149 is hereby amended to add Section
19 through Section 44, which read as follows:
Section 19. Exclusive use of telephone facilities.
When and in the event that Grantee uses in its cable
television system distribution channels furnished to Grantee
by a telephone company pursuant to tariff or a contract on
file with a regulatory body having jurisdiction, and Grantee
makes no use of the streets independent of such telephone
company furnished facilities, Grantee shall be required to
comply with all of the provisions of this Ordinance as a
"licensee", and, in such event, wherever the term "Grantee"
is used in this Ordinance it shall be deemed to mean and
include "licensee".
Section 20. Supplemental rules, regulations, and
standards.
(a) Adoption: Authority. The Council shall have con-
tinuing regulatory jurisdiction and supervision over the
operation of Grantee's franchise and may from time to time
adopt such reasonable rules and regulations as it deems
necessary for the conduct of the cable television system.
The Council may adopt administrative procedures to ensure
compliance with the terms of the franchise and may assess
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penalties for noncompliance, which penalties may be specified
in the franchise.
(b) Adoption and amendments: Procedure. Provided they
do not materially alter the content of the franchise without
the consent of Grantee, the Council may at any time adopt new
rules, regulations, or standards, or may amend, modify,
delete, or otherwise change its respective rules, regula-
tions, or standards previously adopted as follows:
(1) Resolutions of intention. The Council shall
pass its resolution of intention stating or describing the
rules, regulations, or standards to be adopted, amended,
modified, deleted, or otherwise changed and fixing and set-
ting forth a day, hour, and place certain when and where any
persons having any interests therein or objections thereto
may appear before the Council and be heard. Such resolution
shall direct the City Clerk to publish such resolution at
least once within ten (10) days after the passage thereof and
to mail a copy of such resolution to Grantee not more than
thirty (30) days, nor less than fifteen (15) days, prior to
the time fixed for the hearing thereon.
(2) Hearings. At the time set for such hearing,
or at any adjournment thereof, the Council shall proceed to
hear and pass upon such comments as may be presented. There-
after, the Council, by resolution, may adopt, amend, modify,
delete, or otherwise change its respective rules, regula-
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tions, and standards
Such determination by the Council shall
be final and conclusive.
(3) Effective date. Any rule, regulation, or
standard as adopted, amended, modified, deleted, or otherwise
changed by the Council shall become effective upon the tenth
(10th) day following the adoption of such resolution, unless
a longer period shall be otherwise provided in such resolu-
tion.
Section 21. Franchises: Designated Service Areas.
(a) Grantee's franchise shall be nonexclusive and shall
authorize Grantee to construct, operate and maintain a cable
television system within the service area as shown on the map
attached hereto as Exhibit "A" ("Designated Service Area").
(b) Grantee's franchise shall further authorize grantee
to extend cable television service, and as necessary to
construct, operate and maintain a cable television system,
within service areas of the City outside of its Designated
Service Area, without any prior authorization of the City.
Provided, however, that Grantee shall be required to obtain
authorization of the City before extending cable television
service to service areas of the City outside of its
Designated Service Area if in the twelve (12) months
immediately prior to the proposed extension of cable
television service there has been any of the following:
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(1) Three (3) or more fines have been imposed upon
Grantee pursuant to either the provisions of this Ordinance
or Government Code § 53066.1;
(2) Six (6) or more consumer complaints have been
reviewed by the City Manager and in each case a determination
reached, after Grantee has exhausted any available review or
appeal, adverse to Grantee; or
(3) Grantee falls below the FCC's minimum techni-
cal specifications as outlined in Part 76, Subpart K of the
FCC Cable Rules for more than a period of thirty (30) con-
secutive days.
(c) It is the City's intent to make cable television
service available to all citizens without placing an undue
burden on Grantee or subscribers. Grantee shall extend ser-
vice beyond the Designated Service Area in conformance with
the following Line Extension Policy:
(1) Service at the established connection fee.
(i) Any resident desiring service shall be
serviced upon request at the established connection fee pro-
vided the dwelling unit is located within 150 feet of the
cable feeder line in place.
(ii) Any group of residents located in an
unserviced area anywhere within the City boundaries, shall be
served upon request at the established connection fee provid-
ed the following density of participating subscribers exists:
Overhead cable: 40 or more per cable mile. Underground
cable: 80 or more per cable mile. Measurements shall be
made from the nearest distribution cable.
(2) Measurement: Footage shall be measured as
follows:
(i) Drop line extension: Measurement shall
be made from the nearest point on the cable line to a drop
entry point on the dwelling unit structure, even though
actual installation route may be longer. If any additional
easements are required, they shall be the responsibility of
the subscriber.
(ii) Cable line extension: Measurements shall
be made along the most practical route from the nearest point
on the cable line to the nearest property line of the dwel-
ling unit.
(3) Service on a cost-sharing basis: Upon request
from any residents or group of residents desiring service who
do not meet the conditions set forth in item (1), Grantee
shall extend service, but the cost of extension shall be paid
by each subscriber on a cost-sharing basis except that
Grantee shall provide at its own cost and expense up to 150
feet of drop line as required.
(4) Cost-sharing refunds: Where line extension
has been financed by one or more residents, any new subscrib-
ers taking advantage of the line extension shall be required
to pay a pro -rata share of the cost by refund to the resi-
dents who financed the extension, if occurring within three
(3) years of installation.
Any resident or group of residents may apply to the City
Manager for information or assistance in negotiations with
Grantee, and in any event, the City Manager must approve any
agreement reached between Grantee and residents for extension
of services to ensure that franchise terms are met.
In no case is any resident obligated to subscribe to
cable service.
The terms for line extension specified in this paragraph
apply to all areas of the City, including newly annexed
areas.
(5) Time limitations on line extension: Any
requests received by Grantee for line extension shall be
reported to the City Manager, responded to within thirty (30)
days, and construction commenced within one hundred -twenty
(120) days of obtaining necessary permits, and completed
within a reasonable time.
(6) Additional responsibilities of resident: In
the case of extensions made pursuant to (1) and (3) above in
underground areas, the resident shall be responsible for pro-
viding a trench, back fill and conduit for the drop cable
connection.
Section 22. Franchise: Payments.
(a) Amounts. In consideration of the granting and
exercise of a franchise to use the streets for the operation
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of a cable television system, Grantee shall pay to the City,
quarterly, during the life of the franchise three percent
(3%) of its annual gross revenues generated from its fran-
chise.
(b) Manner and time of payments. Grantee shall pay its
franchise fee to the Treasurer of the City on a quarterly
basis. The quarters shall end upon the following dates:
March 31, June 30, September 30, and December 31. Within
sixty (60) days after the close of each quarter, Grantee
shall file with the City a financial statement, certified by
an officer of Grantee or a certified public accountant show-
ing in detail the gross revenues of Grantee during the pre-
ceding quarter. Upon filing such financial statements,
Grantee shall pay to the Treasurer of the City a sum equal to
three percent (3%) of its gross revenues for the preceding
quarter. Any additional sum owed to the City or any overpay-
ment to be refunded by the City shall be paid or refunded as
provided in paragraph (c).
(c) Financial statements. Grantee shall file with the
City, within ninety (90) days after the expiration of any
calendar year during which such franchise is in force, a
financial statement, certified by an officer of Grantee or a
certified public accountant at the discretion of the Council,
showing in detail the gross receipts of Grantee during the
preceding calendar year. It shall be the duty of Grantee to
pay to the City, within ten (10) days after the time for fil-
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ing such statements, any unpaid balance for the calendar year
covered by such statements. The City shall, within ten (10)
days after the filing of such statement, refund any amount
paid for the calendar year covered by the statement which
exceeds three percent (3%) of annual gross revenues for that
year.
(d) Penalties. In the event the unpaid balance for any
calendar year is not received by the City within the time set
forth in subsection (c) of this section, Grantee shall pay to
the City a penalty of two (2%) percent per month on the
unpaid balance until paid, in addition to the unpaid balance
itself.
(e) Audits. The City shall have the right to inspect
the revenue records of Grantee under the franchise and the
right to audit and recompute any and all amounts payable pur-
suant to the provisions of this Ordinance. The cost of such
audits shall be borne by Grantee when the audits result in
increasing, by more than five (5%) percent, the annual pay-
ments of Grantee to the City.
(f) Acceptance effect. No acceptance of any payment
shall be construed as a release or as an accord and satisfac-
tion of any claim the City may have for further or additional
sums payable pursuant to the provisions of this Ordinance or
for the performance of any other obligation pursuant to the
provisions of this Ordinance.
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(g) Reporting requirements. In addition to the finan-
cial statement filed wih the City in connection with the
franchise payment, Grantee shall provide the following:
(1) Copies of all filings and reports to the FCC
at the time of filing with the FCC;
(2) An annual report containing financial and ser-
vice information in the content and form specified in the
franchise; and
(3) Interim reports as may be required by the
Council.
Section 23. Franchises: Uses permitted.
Grantee's franchise shall authorize and permit Grantee
to engage in the business of operating and providing a cable
television system in the City and, for that purpose, to
install, construct, repair, replace, reconstruct, maintain,
and retain in, on, under, upon, across, and along any street
such wires, cables, conductors, ducts, conduits, vaults, man-
holes, amplifiers, appliances, attachments, and other prop-
erty as may be necessary and appurtenant to the cable televi-
sion system, and in addition, so to use, operate and provide
similar facilities or properties rented or leased from other
persons, firms, or corporations, including, but not limited
to, any public utility or other person franchised or permit-
ted to do business in the City.
(a) Grantee's franchise shall be nonexclusive.
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(b) No privilege or exemption shall be granted or con-
ferred by Grantee's franchise except those privileges or
exemptions specifically set forth in this Ordinance.
(c) Any privilege claimed under Grantee's franchise by
Grantee in any street or other public property shall be sub-
ordinate to any prior lawful occupancy of the street or other
public property.
(d) Grantee's franchise shall be a privilege to be held
in personal trust by the original Grantee. Grantee's fran-
chise shall not in any event be sold, transferred, leased,
assigned, or disposed of, in whole or in part, either by
forced or involuntary sale, merger, consolidation, or other-
wise, without the prior consent of the Council expressed by
resolution following at least one public hearing, and then
only under such conditions as may therein be prescribed. Any
such transfer or assignment shall be made only by an instru-
ment in writing, such as a bill of sale or similar document,
a duly executed copy of which shall be filed in the office of
the City Clerk within thirty (30) days after any such trans-
fer or assignment. The consent of the Council may not be
unreasonably refused; provided, however, the proposed assign-
ee shall show financial responsiblity as determined by the
Council and shall agree, further, that no such consent shall
be required for a transfer in trust, mortgage, or other
hypothecation, in whole or in part, to secure an indebted-
ness, except that when such hypothecation shall exceed fifty
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(50%) percent of the market value of the property used by
Grantee in the conduct of the cable television system, the
prior consent of the Council shall be required for such
transfer. Such consent shall not be withheld unreasonably.
In the event Grantee is a corporation, the prior approv-
al of the Council, expressed by Ordinance, shall be required
where there is an actual change in control or where the
ownership of more than fifty (50%) percent of the voting
stock of Grantee is acquired by a person or a group of per-
sons acting in consent, none of whom already owns fifty (50%)
percent or more of the voting stock, singly or collectively.
Any such acquisition occurring without the prior approval of
the Council shall constitute a failure to comply with the
provisions of this Ordinance within the meaning of Section 26
of this Ordinance.
(e) Time shall be of the essence in Grantee's fran-
chise. Grantee shall not be relieved of its obligation to
comply promptly with any provision of this Ordinance by any
failure of the City to enforce prompt compliance.
(f) Any right or power in, or duty impressed upon, any
officer, employee, department, or board of the City shall be
subject to transfer by the City to any other officer, employ-
ee, department, or board of the City.
(g) Grantee shall have no recourse whatsoever against
the City for any loss, cost, expense, or damage arising out
of any provision or requirement of its franchise.
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(h) Grantee shall be subject to all requirements of
City laws, rules, regulations, and specifications enacted or
established.
(i) Grantee's franchise shall not relieve Grantee of
any obligation involved in obtaining conduit space from any
department of the City, from any utility company, or from
others maintaining utilities in streets.
Section 25. Franchises: Terms: Renewal: Renegotiation.
(a) Scope. Due to the rapid changes occurring in the
regulatory, technical, financial, marketing, and legal
aspects of cable communications, and in order to provide
maximum flexibility for the community as well as work toward
an advanced and modern cable television system for the City,
Grantee's franchise shall be subject to renewal and renegoti-
ation as herein provided.
(b) Renewal: Procedure. Grantee's franchise shall be
for the term to be set in the franchise. Thereafter, after
full public hearings, and in accordance with the franchise
renewal procedure set forth in this subsection, the franchise
may be renewed for a term not exceeding twelve (12) years as
in the opinion of the Council will serve the public interest.
The procedure to consider a franchise renewal shall be as
follows:
(1) Thirteen (13) months before the expiration of
the franchise, the Cable TV Board shall review the perfor-
mance of Grantee and the provisions of this Ordinance.
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(2) After giving public notice, the Cable TV Board
shall review the provisions of Grantee's franchise as well as
the performance of Grantee.
(3) The Cable TV Board shall complete and submit
its recommendations to the Council no later than six (6)
months prior to the expiration of the franchise.
(4) If the Council finds the performance of
Grantee to be satisfactory, a new franchise may be granted
pursuant to the provisions of this Ordinance.
(c) Renewal: Renegotiation. The City and Grantee, upon
the written request of either party, shall meet in scheduled
sessions for the review or renegotiation of any of the terms
and conditions of the franchise as follows:
(1) All sessions shall be scheduled at a mutually
convenient time and place and shall be conducted under an
agenda setting forth the topics to be discussed at each ses-
sion. Either party may add additional topics to the agenda
by providing prior written notice thereof to the other party.
(2) The sessions shall be scheduled at the earli-
est convenient date for the parties. Unless otherwise agreed
to by both parties, the sessions shall commence within ninety
(90) days after the date of the written request for such ses-
sions.
(3) All scheduled sessions may be conducted
informally, unless a prior written request is made by either
party for a formal public session, in which event such ses-
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sion shall be open to the public, and public notice shall be
given of the session and the topics to be discussed at least
five (5) days prior to the session.
(4) All scheduled sessions shall be conducted by
the Cable TV Board or the City staff appointed by the Council
which shall prepare and file with the Council a public report
of the sessions and any recommendations of change in the
terms and conditions of the franchise and the findings and
reasons therefor.
(5) Amendments to the provisions of this Ordinance
or to the franchise shall be adopted in accordance with the
procedures set forth by law.
Section 26. Franchises: Termination.
(a) Authority. The Council may terminate Grantee's
franchise in the event of the neglect, wilful failure, or
refusal by Grantee to do or comply with any material require-
ment or limitation set forth in this Ordinance or any mate-
rial rule or regulation of the Council validly adopted pursu-
ant to the provisions of this Ordinance. Such termination
shall be made only after full public hearings and in accor-
dance with the following procedures:
(b) Notices to comply. The Council or City Manager may
make a written demand that Grantee do or comply with any such
requirement, limitation, term, condition, rule, or regula-
tion.
(c) Requests to terminate. If the failure, refusal, or
neglect of Grantee continues for a period of thirty (30)
days, or an agreed upon additional period of time, following
such written demand, the Council or City Manager may place a
request for the termination of the franchise upon the next
regular Council meeting agenda. The Council or City Manager
shall cause to be served upon Grantee, at least ten (10) days
prior to the date of such Council meeting, a written notice
of the intent to request such termination and the time and
place of the meeting, notice of which shall be published by
the City Clerk at least ten (10) days before such meeting.
(d) Requests to terminate: Hearings. The Council shall
consider the request to terminate the franchise and shall
hear any person interested therein and determine in its dis-
cretion whether or not any failure, refusal, or neglect by
Grantee was material and without just cause.
(e) Compliance: Time limits. If such failure, refusal,
or neglect by Grantee was with just cause, the Council shall
direct Grantee to comply within such time and manner and upon
such terms and conditions as are reasonable. If the Council
shall determine such failure, refusal, or neglect by Grantee
was without just cause, the Council, by resolution, may
declare that the franchise of Grantee shall be terminated and
forfeited unless there shall be compliance by Grantee within
such period as the Council may fix_
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(f) Termination: Effect. The termination and forfei-
ture of any franchise shall in no way affect the rights of
the City under the franchise or any provision of law.
(g) Termination: Compensation. In the event of any
holding over after the expiration or termination of Grantee's
franchise without good cause, Grantee shall pay to the City,
as liquidated damages, the operating revenue it receives dur-
ing such period.
Section 27. Rights reserved to the City.
(a) The provisions of this Ordinance shall not be
deemed or construed to impair or affect in any way, to any
extent, the right of the City to acquire the property of
Grantee, either by purchase or through the exercise of the
right of eminent domain, at a fair and just value as a going
concern, which shall not include any amount for the franchise
itself or for any of the rights or privileges granted. The
provisions of this Ordinance shall not be construed to con-
tract away or to modify or abridge, either for a term or in
perpetuity, the City's right of eminent domain.
(b) There is hereby reserved to the City every right
and power which is required to be reserved or provided by the
provisions of this Ordinance or by any law, and Grantee
agrees to be bound thereby and to comply with any action or
requirement of the City in its exercise of such rights or
powers.
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(c) There is hereby reserved to the City the power to
amend any provision of this Ordinance so as to require addi-
tional or greater standards of construction, operation, main-
tenance, or otherwise on the part of Grantee, to reflect
technical and economic changes occurring during the franchise
term, and to enable the City and any Grantee to take advan-
tage of new developments in the cable television industry so
as to more effectively, efficiently, and economically serve
the public.
(d) No provision of this Ordinance shall constitute a
waiver or bar to the exercise of any governmental right or
power of the City.
(e) The Council may do all things which are necessary
and convenient in the exercise of its jurisdiction pursuant
to the provisions of Grantee's franchise and may determine
any question of fact which may arise during the existence of
said franchise. The City Manager is hereby authorized and
empowered to adjust, settle, or compromise any controversy or
charge arising from the operations of Grantee pursuant to the
provisions of this Ordinance, either on behalf of the City,
Grantee, or any subscriber, in the best interests of the pub-
lic. Either Grantee or any member of the public who may be
dissatisfied with the decision of the City Manager may appeal
the matter to the Council within thirty (30) days thereof,
for a hearing and determination. The Council may accept,
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reject, modify, or cancel any charge arising from the opera-
tions of Grantee or from any provision of its franchise.
(f) The City shall have the right, free of charge, to
make additional use, for any public or municipal purpose,
whether governmental or proprietary, of the conduits or other
similar facilities erected, controlled, or maintained exclu-
sively by or for Grantee in any street provided such use by
the City does not interfere with the use of Grantee.
(g) Notwithstanding any provision of Grantee's fran-
chise or any other law of.the City to the contrary, the City
shall not have the power to materially alter, the rights of
Grantee without the express consent of Grantee.
(h) The City shall have the right from time to time to
conduct an independent technical survey of any cable system
operating in the City. The survey will be conducted at the
sole expense of the City. Grantee will cooperate in provid-
ing information to the City.
Section 28. Properties of Grantees: Location.
(a) Grantee shall utilize existing conduits and other
facilities whenever possible and shall not construct or
install any new, different, or additional conduits or other
facilities, whether on public property or on privately -owned
property, unless and until first securing the written approv-
al of the City Manager. Provided, however, that written
approval shall not be required for any repairs to existing
conduits or to other facilities.
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(b) In those areas of the City where the transmission
or distribution facilities of the respective public utilities
providing telephone, communication, and electric services are
underground or are placed underground in the future, Grantee
shall construct, operate, and maintain all of its transmis-
sion and distribution facilities underground; provided, how-
ever, upon obtaining the written approvalof the City
Manager, amplifiers and taps in Grantee's transmission and
distribution lines may be placed in appropriate housings upon
the surface of the ground.
For the purposes of this section "underground" shall
include a partially underground system.
(c) Where the system is to be underground, the cable
shall be buried not less than eighteen (18") inches from the
surface and crossings of arterial highways as shown on the
City's circulation element and shall not be open -trenched,
unless specific approval is given by the Director of Public
Works.
(d) Grantee shall give at least two (2) days' notice on
cable burial and shall relocate, alter, or otherwise conform
to the needs of the City where the underground service facil-
ities of the City are involved.
(e) The poles, cable wires, conduits, and other proper-
ties of Grantee to be constructed or installed in streets
shall be so constructed or installed only at such locations
and in such manner as shall be approved by the Director of
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Public Works acting in the exercise of his reasonable discre-
tion.
(f) Grantee shall not install or erect any facility or
apparatus in or on other public property, places, or rights-
of-way or within any privately -owned area within the City
which has not yet become a public street but is designated or
delineated as a proposed public street on any tentative sub-
division map approved by the City, except those installed or
erected upon existing public utility facilities, without
obtaining the prior written approval of the Director of Pub-
lic Works.
(g) Grantee shall conform to all the relevant provi-
sions of all Federal, State, and City laws.
Section 29. Properties of Grantees: Removal and
abandonment.
(a) In the event the use of any part of the cable tele-
vision system of Grantee is discontinued for any reason for a
continuous period of twelve (12) months without prior written
notice to, and approval by, the City, or in the event any
part of such system or property has been installed in any
street or public place without complying with the provisions
of this Ordinance, or if such franchise shall be terminated,
cancelled, or expire, Grantee, upon being given fifteen (15)
days notice, shall promptly remove from any street or public
place all such property and poles of Grantee other than any
which the Director of Public Works may permit or require to
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be abandoned in place, and Grantee shall promptly restore the
street or other area from which such property has been
removed to a condition satisfactory to the Director of Public
Works.
(b) The Council upon written application therefor by
Grantee, may approve the abandonment of any of such property
in place by Grantee and under such terms and conditions as
the Council may prescribe. Upon the abandonment of any such
property in place, Grantee shall cause to be executed,
- acknowledged, and delivered to the City such instruments as
the City Attorney shall prescribe and approve transferring
and conveying the ownership of such property to the City.
(c) Any property of Grantee remaining in place sixty
(60) days after the termination or expiration of the fran-
chise shall be considered permanently abandoned. The City
Manager may extend such time not to exceed an additional
sixty (60) days.
(d) Any property of Grantee to be abandoned in place
shall be abandoned to the City in such manner as the Director
of Public Works shall prescribe. Upon the permanent abandon-
ment of the property of Grantee in place, the property shall
become that of the City, and Grantee shall submit to the
Director of Public Works an instrument in writing, to be
approved by the City Attorney, transferring to the City the
ownership of such property.
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Section 30. Changes required by public improvements.
Grantee, at its expense, shall protect, support, tempo-
rarily disconnect, relocate, or remove any property of
Grantee when, in the opinion of the City Manager or Director
of Public Works, the same is required by reason of traffic
conditions, public safety, street vacation, freeway or street
construction, the change or establishment of street grades,
or the installation of sewers, drains, waterpipes, power
lines, signal lines, transportation facilities, tracks, or
any other types of structures or improvements by governmental
agencies, whether acting in a governmental or a proprietary
capacity, or any other structure or public improvement,
including, but not limited to, the movement of buildings,
urban renewal and redevelopment, and any general program
under which the City shall undertake to cause all such prop-
erties to be located beneath the surface of the ground.
Grantee in all cases shall have the privilege, subject to the
corresponding obligations, to abandon any property of Grantee
in place as provided in its franchise. No such action shall
be deemed a taking of the property of Grantee, and Grantee
shall be entitled to no surcharge by reason of any such
action.
Section 31. Failure to perform street work.
Upon the failure, refusal, or neglect of Grantee to
cause any work or other act required by law or by the provi-
sions of this Ordinance to be properly completed in, on,
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27
over, or under any street to the satisfaction of the Director
of Public Works within any time prescribed therefor, or upon
notice given where no time is prescribed, the Director of
Public Works may cause such work or other act to be completed
in whole or in part and, upon so doing, shall submit to
Grantee an itemized statement of the costs thereof. Grantee,
within thirty (30) days after the receipt of .such statement,
shall pay to the City the entire amount thereof.
Section 32. Bonds and Security Deposits.
(a) Performance of law and franchise provisions.
Grantee shall keep on file with the City Clerk, during the
entire term of its franchise, a corporate surety bond in the
amount of One Thousand Dollars ($1,000.00).
The bond shall be so conditioned that in the event
Grantee shall fail to comply with any one or more of the pro-
visions of this Ordinance or of its franchise, there shall be
recoverable jointly and severally from the principal and
surety any damages, losses, or costs suffered or incurred by
the City as a result thereof, including attorney's fees if
Grantee is at fault and the costs of any action or proceed-
ing, and including the full amount of any compensation,
indemnification, or cost of the removal or abandonment of any
property or other costs which may be in default, up to the
full principal amount of such bond. Such condition shall be
a continuing obligation for the duration of such franchise
and thereafter until Grantee shall have satisfied in full any
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and all obligations to the City which shall arise out of or
pertain to such franchise. Neither the provisions of this
section, nor any bond accepted by the City pursuant to the
provisions of this section, nor any damages recovered by the
City thereunder shall be construed to excuse faithful per-
formance under the franchise issued pursuant to the provi-
sions of this Ordinance or for damages, either to the full
amount of the bond or otherwise.
(b) Performance of agreements and undertakings with
subscribers. Within thirty:.(:30) days after the adoption of
this section, Grantee shall keep and maintain a continuing
cash deposit of One Thousand Dollars ($1,000.00) with the
Director of Administrative Services. The initial deposit
shall be accompanied by a written agreement providing that if
Grantee shall fail to comply with any one or more provisions
of any agreement or undertaking made between Grantee and any
subscriber, any damages or costs suffered or incurred by any
such subscriber as a result thereof, including reasonable
attorney's fees if Grantee is at fault and the cost of any
action or proceeding may be recoverable from such deposit.
Grantee shall, moreover, replenish the aforesaid fund to
maintain the minimum balance at all times.
Section 33. Hold harmless agreements.
Grantee shall indemnify and hold harmless the City and
its officers, boards, commissions, agents, and employees
against and from any and all claims, demands, causes of
:=
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actions, actions, suits, proceedings, and damages, including,
but not limited to, damages to City property, damages arising
out of copyright infringements, and damage arising out of any
failure by Grantee to secure consents from the owners,
authorized distributors, or licensees of programs to be
delivered by the cable television system, costs or liabili-
ties, including costs or liabilities of the City with respect
to its employees, of every kind and nature whatsoever,
including, but not limited to, damages for injuries or death
or damages to persons or property, regardless of the merit of
any of the same, and against all liability to others, and
against any loss, cost, and expense resulting or arising out
of any of the same, including any attorney fees, accountant
fees, expert witness or consultant fees, court costs, per
diem expense, traveling and transportation expense, or other
costs or expenses arising out of, or pertaining to the exer-
cise or the enjoyment of its franchise. Provided, however,
that under no circumstances shall Grantee have any obligation
to indemnify or hold the City harmless for any negligent or
intentional act or omission of the City or any of the City's
agents, representatives, officers, employees, boards or com-
missions.
Section 34. Defense of litigation.
Grantee, at the sole risk and expense of Grantee, upon
the demand of the City made by and through the City Attorney,
shall appear in and defend any and all suits, actions and
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other legal proceedings, whether judicial, quasi-judicial,
administrative, legislative, or otherwise, brought or insti-
tuted or had by third persons or duly constituted authorities
against or affecting the City and its officers, boards, com-
missions, agents, or employees and arising out of or pertain-
ing to the exercise or the enjoyment of its franchise or the
granting thereof by the City.
Grantee shall pay and satisfy, or shall cause to be paid
and satisfied, any judgment, decree, order, directive, or
demand rendered, made, or issued against Grantee or the City
and its officers, boards, commissions, agents, or employees
arising out of or pertaining to the granting or exercise of
its franchise. Such payment or satisfaction shall exist and
continue without reference to or limitation by the amount of
any bond, policy of insurance, deposit, undertaking, or other
assurance required by the provisions of this Ordinance or
otherwise; provided, however, neither Grantee nor the City
shall make or enter into any compromise or settlement of any
claim, demand, cause of action, action, suit, or other pro-
ceeding arising out of or pertaining to the granting or exer-
cise of Grantee's franchise without first obtaining the writ-
ten consent of the other.
Section 35. Insurance.
Within thirty (30) days after the adoption of this sec-
tion, Grantee shall file with the City Clerk and shall there-
after during the entire term of such franchise maintain in
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31
full force and effect, at its own cost and expense, a general
comprehensive liability insurance policy in the amount of One
Million and no/100ths ($1,000,000.00) Dollars, together with
a bodily injury liability insurance policy in an amount not
less than Five Hundred Thousand and no/100ths ($500,000.00)
Dollars for injuries, including accidental death, to any one
person, and subject to the same limit for each person in an
amount not less than One Million and no/100ths
($1,000,000.00) Dollars on account of any one occurrence, and
a property damage liability insurance policy in an amount not
less than One Million and no/100ths ($1,000,000.00) Dollars
resulting from any one occurrence.
The policies required by the provisions of this section
shall name the City as an additional insured. If such insur-
ance is provided by a policy which also covers Grantee or any
other entity or person, such policy shall contain the stan-
dard cross -liability endorsement.
Section 36. Service standards.
(a) Technical standards. Cable television systems in
the City shall be constructed, installed, operated and main-
tained in a manner consistent with all applicable laws, ordi-
nances, construction standards, governmental requirements and
FCC technical standards. In addition, Grantee shall provide
the City, upon request, with a written report of the results
of the annual proof of performance tests conducted pursuant
to FCC standards and requirements.
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(b) Basic services. The cable television system per-
mitted to be installed and operated pursuant to Grantee's
franchise shall:
(1) Be operationally capable of relaying to sub-
scriber terminals those television and radio broadcast sig-
nals for the carriage of which Grantee is authorized by the
Federal Communications Commission;
(2) Be constructed with the potential of two (2)
way digital signal transmission;
(3) Distribute color television signals which it
receives in color;
(4) Provide, as a minimum, no less than one (1)
local access channel. Such channel capacity shall not be
less than one (1) VHF channel for composite use, including
use by local government, educational institutions, and the
public. Said channels shall be provided upon the lowest
level of basic service and for the lowest monthly basic ser-
vice fee. Provided, however, that Grantee shall not be
required to provide such local access channel if the require-
ment to do so is or becomes inconsistent with any state or
federal statute, rule, regulation or other law including, but
not limited to, Section 53066.1 of the California Government
Code, which expressly preempts or supersedes the provisions
of this Ordinance and, in particular, this subsection (b)(4)
of Section 36.
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33
(5) Have a minumum capacity of twenty (20) chan-
nels; and
(6) Include all the necessary equipment and opera-
tional capacity for the emergency transmission of audio and
video signals from the headend over all channels simultan-
eously; however, the City shall provide the diode switchings
and access equipment.
(c) Nonbasic services. The cable telelvision system
permitted to be installed and operated pursuant to the provi-
sions of this Ordinance may also engage in the business of:
(1) Transmitting original cablecast programming
not received through television broadcast signals;
(2) Transmitting television pictures, film, and
videotape programs not received through broadcast television
signals, whether or not encoded or processed to permit recep-
tion by only selected receivers or subscribers; and
(3) Transmitting and receiving all other digital,
voice, and audio-visual signals.
(d) Municipal service.
(1) With respect to the local access channel,
Grantee, at the request of the City Manager, shall provide
use of Grantee's studio, equipment, and technical services
for the production of live and video-tape municipal programs,
subject to the scheduling requirements of Grantee.
(2) With respect to the basic television services,
Grantee shall provide all subscriber services and a tie-in
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34
connection, without cost, when the system passes such facili-
ties and as designated by the Council to:
(i) Public schools and community colleges
within the City; and
(ii) Buildings owned and controlled by the
City or County used for public purposes and not for residen-
tial use.
(e) Compatibility. It is the desire of the City that
all cable television systems franchised within the City,
insofar as financially and technically possible, shall be
compatible one with another and with systems adjacent to the
City.
(f) Grantee's cable television system in the City
shall maintain equipment capable of providing standby power
for headend-transportation and trunk amplifiers for a minimum
of two hours within two years of the adoption of this sec-
tion.
(g) Security. Grantee's -cable television system in the
City shall maintain adequate security of all headend, hubsite
and other equipment so as to maintain system integrity and
prevent vandalism. Such equipment should be fenced or
secured in a manner acceptable to the City.
Section 37. Notification of Subscriber Rights.
Grantee shall provide at least annually a written state-
ment of subscriber rights and remedies to all subscribers.
Said written statement shall describe the service standards
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35
contained in this Ordinance, as well as those standards which
may, from time to time, be established by regulation of the
City Council as well as remedies available to subcribers
including, but not limited to, rebate and penalty provisions.
Said written statement shall specify the name, title, mailing
address, and telephone number of Grantee's responsible offi-
cial for receipt and processing of subscriber complaints and
inquiries, as well as the official of the City of San Juan
Capistrano, as designated by the City, responsible for pro-
cessing consumer complaints or inquiries by name, title,
mailing address and telephone number. Grantee shall submit
its proposed written statement of subscriber rights to the
City Manager for review and approval no less than thirty (30)
days prior to distribution. In the event that the City
Manager determines that the proposed statement of subscriber
rights is insufficient in any respect, and after giving
Grantee reasonable time to revise said proposed written
statement of subscriber rights consistent with the City
Manager's directions, the City Manager may, but is not
required to, substitute his/her own statement of subscriber
rights in lieu of that submitted by Grantee.
Section 38. Subscribers: Rates and charges.
(a) Establishment. The Council, after due notice and
hearings as set forth in this section, by resolution, shall
establish and fix all rates and charges for the basic service
allowable to Grantee including, but not limited to,:
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(1) Charges for installations, connections, and
reconnections;
(2) Special installation charges for problem
sites;
(3) General subscriber rates;
(4) Service charges for separate classifications
of service (e.g., EM Radio broadcasts, additional connec-
tions, and the like);
(5) Preferential basic service rates; and
(6) Advance payments.
Once established, such rates or charges shall become
part of the franchise agreement and shall not be changed at
any time after the granting of a franchise, except after due
notice and hearing as set forth in this section. Any charge
for additional service or equipment, such as converters,
shall be approved by the Council.
At such time as the FCC shall permit, rates and charges
for services other than the basic service shall also be
approved by the Council by resolution, after due notice and
hearings as set forth in this section.
(b) Billing practices. The Council shall review any
proposed change to Grantee's billing practices as they affect
the subscriber rates or advance payments, and, once estab-
lished, such billing practices shall not be changed without
the prior consent of the Council in a public proceeding.
(c) Increases and decreases.
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37
(1) Authority. The City or Grantee may request
rate increases or decreases at any time during the term of
Grantee's franchise. Such consideration shall constitute a
renegotiation of the terms of the franchise and shall observe
the procedures set forth in Section 25 of this Ordinance.
(2) Considerations. The Council shall approve or
disapprove any increase or decrease of the basic service
rates or establish additional basic service areas on the
basis of what is fair to the subscriber and to Grantee and
may include the following considerations.; provided, however,
the provisions of this subsection shall not apply to promo-
tional sales campaigns which offer reduced rates;
(i) Value of the services;
(ii) Rates for comparable services in sur-
rounding communities;
(iii) Faithfulness of Grantee in abiding by the
provisions of this Ordinance;
(iv) Quality of service;
(v) Efficiency of Grantee's management;
(vi) Depreciated original cost of the cable
plant and associated equipment. All intangible assets for
which costs have not actually been expended, such as the
value of the franchise, goodwill, and the value of the going
concern shall not be amortized as an expense, and a return
shall not be paid on any of such values. Actual costs, such
as the purchase of a system above the net book value, may be
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amortized over a period of not less than twelve (12) years,
but the amortized portion shall not be included in any rate
base or rate of return calculations; and
(vii) A fair rate of return on Grantee's
investment compared to investments having corresponding
risks.
(3) Preliminary hearings: Council direction. In
connection with any proposed change of the rates or charges
of Grantee to subscribers or the approval of rates for addi-
tional services at any time after the granting of a fran-
chise, the Council may direct the Cable TV Board to conduct a
preliminary hearing into the matters.
(4) Preliminary hearings: Notices. If so direct-
ed by the Council, the Cable TV Board shall issue a written
notice fixing and setting forth the day, hour, and place cer-
tain when and where any person having any interest therein
may appear and be heard.
The City Clerk shall cause such notice to be published.
The City Clerk shall also cause such notice to be posted at
the designated official posting places within the City. The
City Clerk also shall cause a copy of such notice to be
mailed to Grantee at least ten (10) days prior to the date
specified for the hearing, as well as to civic and community
organizations.
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39
(5) Preliminary hearings. At the time set for
such hearing, or at any adjournment thereof, the Cable TV
Board shall proceed to hear the matter.
(6) Preliminary hearings: Reports. Following the
close of such hearing, the Cable TV Board shall prepare and
file with the Council a report of the hearing, the findings
of the Cable TV Board, an opinion containing the recommenda-
tions of the Cable TV Board, and the reasons therefor.
(7) Resolution of intention. After the expiration
of ten (10) days following the receipt of the report and
opinion of the Cable TV Board, and if no objection has been
filed thereto, the Council shall determine whether to adopt
the opinion or to hold a further hearing and shall pass its
resolution of intention to do so, describing and stating any
rates or charges to be changed, the reasons of the Council
therefor, and fixing and setting forth a day, hour, and place
certain when and where any person having any interest therein
may appear beforle the Council and be heard. Such resolution
shall direct the City Clerk to publish the resolution at
least once within ten (10) days after the passage thereof and
to post such resolution at the designated official posting
places within the City. The City Clerk may also be directed
by the Council to arrange for airing of the resolution on one
local community TV channel between the hours of 7:00 p.m. and
9:00 p.m. for five (5) consecutive days prior to the hearing.
In addition, the City Clerk also shall cause a copy of such
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resolution to be mailed to Grantee and to community and civic
organizations in the City at least ten (10) days prior to the
date specific for the hearing thereon.
(8) Hearings. At the time set for any further
hearings, or at any adjournment thereof, the Council shall
proceed to hear the matters.
If, upon the receipt of the report and opinion of the
Cable TV Board and the expiration such ten (10) days without
objection, or following the holding of a further hearing, if
the Council determines to-do so, the Council shall find that
the changing of any rates or charges of Grantee to subscrib-
ers will be fair to the system operator and not detrimental
or injurious to the best interests and welfare of the sub-
scribers and users and of the City, the Council, by resolu-
tion, shall authorize the change of the rates or charges of
Grantee to the subscribers and users as determined. Such
resolution shall thereupon become and shall be a part of
Grantee's franchise. Any such action taken by the Council
shall include detailed and specific findings.
(d) Increases and decreases: Grantee requests. Not-
withstanding the provisions of this section or any other law
to the contrary, Grantee shall be entitled to file a request
for a rate change, accompanied by financial information, in
the form specified in the franchise and current within the
last operating quarter, which such request shall be finally
acted upon within a period of 180 days. If no final decision
.M
41
has been made by the Council within such 180 day period, the
request shall be deemed granted.
(e) Increases. Stay of further action: Time limits.
In the event a rate increase is granted as requested, Grantee
shall refrain from applying for further increases for a
period of twenty-four (24) months after the date of the
granted increase. I£ a rate application is not granted as
requested, Grantee may file succeeding requests at any time.
(f) Applicability. So long as Grantee validly deregu-
lates its rates for basic service pursuant to the provisions
of Section 53066.1 of the California Government Code, the
provisions of Section 38 which are inconsistent with the pro-
visions of that statute have no present application to and
shall not be enforced against Grantee, and shall not have any
future application to and shall not be enforced against
Grantee provided Grantee's rates are validly, deregulated
under Section 53066.1 or any other applicable statute or
federal statute, rule, regulation or other law.
Section 39. Subscribers: Complaints.
(a) Office of Grantee: Hours: Telephone service.
Grantee shall maintain a local office which is no farther
from the City than is the current office. Such office shall
be open during all normal business hours, with a toll-free
telephone listed in the directories of the telephone company
serving the City, and shall be so operated that complaints
and requests for repairs may be received at any time of the
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day or night, seven (7) days a week. All complaints and
inquiries shall be investigated and acted upon as promptly as
practical, but in no event longer than twenty-four (24) hours
after their receipt and/or after the next normal shift.
(b) Procedure. The following procedures shall be
adopted by Grantee and the City for the investigation and
resolution of complaints:
(1) Grantee shall maintain a written record or log
listing of all complaints received from individual subscrib-
ers, other than complaints regarding substantial system fail-
ures. The log shall show the date and time of the complaint,
the name and address of the complainant, the nature of the
failures, and recording when and what action was taken to
resolve the failures.
(2) Grantee shall maintain a separate written
record of substantial system failures, showing the date and
time of such failures, describing the nature of the failures,
and recording when and what action was taken to resolve the
failures.
(3) Such records shall show the disposition of the
complaints or substantial system failures and shall be main-
tained by Grantee for a period of three (3) years after the
receipt of such subscriber complaints or following such sub-
stantial system failures. A copy of any specific subscriber
complaint shall be submitted by Grantee to the City within
two (2) days following the receipt of a written request by
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the City official designated to handle complaints. Grantee's
records of complainants and substantial system failures shall
be open to inspection by the City during normal working
hours.
(c) Procedure: Notices. Grantee shall provide notice
of the procedures for reporting and resolving complaints to
each subscriber at the time of his initial subscription to
the cable television system and to each current subscriber on
an annual basis.
(d) Service Standards. The standards for rendering of
any single service or CATV service as a whole, whether said
service(s) are provided to an individual subscriber and/or to
all subscribers of the system as a whole, shall be as fol-
lows:
(1) The service shall operate in an efficient
technical manner.
(2) Down time or unavailability of service shall
not exceed three (3) hours of the total hours of service
available in any one week.
The total hours of service available shall be calculated
on the basis that service is available from 6:00 a.m. until
12:00 p.m. each day of the week.
(3) Visual and audio quality of television signals
delivered by a service shall meet or exceed the FCC's techni-
cal specifications as outlined in Part 76, Subpart K of the
FCC Cable Rules.
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(4) Repairs to or replacement of Grantee's equip-
ment involved in a service shall be made within the following
time periods except where said repairs or replacements are
barred by acts of God or other circumstances beyond Grantee's
control: (i) Within twenty-four (24) hours of a subscriber's
notification to Grantee of an outage or interruption of ser-
vice; or (ii) within forty-eight (48) hours of a subscriber's
notification to Grantee of all other system malfunctions.
Any periods during which Grantee is refused, or is
unable to obtain, access to subscriber premises shall be
added to the time periods specified above.
(5) Grantee shall instruct all subscribers care-
fully in detail in the use of the service. Grantee shall be
obligated to provide no more than four (4) repetitions of
such instruction.
(6) Grantee shall furnish to all subscribers a
written description of the service which shall set forth its
name, describe what it provides to the subscriber and what
the subscriber must do to operate the service, and set forth
a schedule of times when the service is available if it is
not continuously available.
(7) Grantee shall operate the service in the man-
ner and provide the materials or capacities described by
Grantee.
(8) Grantee shall make an annual demonstration at
any of the three (3) longest distribution paths in its system
UP
at Grantee's expense. Furthermore, Grantee shall conduct
additional demonstrations at its expense, upon request by the
City, whenever it is alleged that Grantee has failed to meet
technical performance standards as outlined in FCC Cable
Rules, Part 76, Subpart K.
(9) Notice of planned interruptions of service of
less than twelve (12) hours, other than interruptions between
the hours of 5:00 a.m. to 7:00 a.m., shall be preceded by
announcements of the period of the interruption as well as
its anticipated duration, at a frequency of every (2) hours
on the system's automated program log channel for at least
forty-eight (48) hours prior to the anticipated interruption.
For planned interruptions of service or more than twelve (12)
hours, Grantee shall provide written notice of the interrup-
tion and its length by mail to all affected subscribers or
users at least five (5) days prior to the interruption.
Written notices shall inform subscribers that because of the
length of the interruption they are eligible to receive, if
they so notify Grantee, billing credit for any period exceed-
ing twenty-four (24) hours in a one (1) month period during
which service will not be delivered.
(e) Credits and Refunds.
(1) In the event that service to a subscriber is
interrupted for twenty-four (24) consecutive or non-consecu-
tive hours in any seventy-two (72) hour period, except for
acts of God or other circumstances beyond Grantee's control
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and except in circumstances for which prior approval of the
interruption is obtained from the City Manager, Grantee shall
provide a ten percent (10%) rebate of the monthly fees to
affected subscribers.
(2) In the event that service to a subscriber is
interrupted for forty-eight (48) or more consecutive or non-
consecutive hours in any seven (7) day period, except for
acts of God or other circumstances beyond Grantee's control
and except in circumstances for which prior approval of the
interruption is obtained.from the City Manager, Grantee shall
provide a twenty percent (20%) rebate of the monthly fees to
affected subscribers.
(3) Rebates shall not exceed, in any given month,
actual charges paid by the subscriber.
(4) In the event that Grantee's system fails to
meet any FCC performance standards as set forth in Subsection
(d)(3) above for a full three (3) month consecutive period,
Grantee shall reduce all subscriber fees by twenty-five per-
cent (25%) until all such FCC performance standards are met.
The City Manager shall notify Grantee during the first month
of the three (3) month period that the system has failed to
meet performance standards.
(f) City procedure for handling complaints. It shall
be Grantee's responsibility to resolve subscriber complaints;
however, when the City is called on to help resolve a com-
plaint the following procedure will be used:
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4
(1) Upon receiving a complaint, the City will
notify Grantee as soon as possible of the circumstances.
Grantee will notify the City within twenty-four (24) hours of
the actions taken or to be taken.
(2) If complaints have not been resolved between
Grantee and subscriber and a request for resolution has been
received from either party, the Director of Administrative
Services shall forthwith notify the respondent of the nature
of the complaint or controversy, and the solution sought.
Such notification shall be made in writing and shall require
the respondent to reply within twenty-four (24) hours after
receipt.
If satisfactory resolution has still not resulted,
either party may request a conference before the Director of
Administrative Services who shall hear the matter and arbi-
trate the dispute.
(3) In the event that the decision of Director of
Administrative Services is not satisfactory to either party,
either party may request that the complaint be reviewed by
the City Manager as authorized in Section 27(e).
(4) The City Manager may also impose a penalty of
up to TWO HUNDRED DOLLARS ($200.00) for any occurrence giving
rise to the complaint upon a finding that Grantee acted with-
out good cause and in violation of any of the terms and pro-
visions of this Ordinance. Funds for the penalties shall be
taken from the security deposit established in Section 32.
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If a penalty is levied, Grantee will reimburse the security
fund within thirty (30) days.
(g) For purposes of this Section, the following defini-
tions shall apply:
(1) "Service" shall mean any service for which a
separate and distinct fee is charged. In cases where a ser-
vice includes more than one channel, service shall be deemed
interrupted if more than one-third of the channels are inter-
rupted; and
(2) "Down time" or "outage" shall refer to a situ-
ation where three (3) or more subscribers on the same street
are unable to receive service.
Section 40. Miscellaneous provisions.
(a) Grantee's franchise shall authorize and permit
Grantee to solicit, sell, distribute, and make a charge to
subscribers within the City for connections to the cable
television system of Grantee and shall also authorize and
permit Grantee to traverse any portion of the City in order
to provide service outside the City.
(b) A franchise, easement, license, or other permit
granted to anyone other than Grantee to traverse any portion
of the City in order to provide service outside the City
shall not authorize nor permit such person to solicit, sell,
distribute, or make any charge to subscribers within the
City, nor to render any service or connect any subscriber
within the City to the cable television system of Grantee.
sum
ER
(c) Grante$'s franchise shall never be given any value
by any court or other authority, public or private, in any
proceeding of any nature or character wherein or whereby the
City shall be a party or affected therein or thereby.
(d) Grantee shall be subject to all of the provisions
of the other laws, rules, regulations, and specifications of
the City heretofore or hereafter adopted including, but not
limited to, those pertaining to works and activities in, on,
over, under, and about streets. Any privilege claimed under
Grantee's franchise in any street or other public property
shall be subordinate to any prior lawful occupancy of the
street or other public property. Grantee shall also be sub-
ject to the provisions of the general laws of the State,
existing or as hereafter amended, when applicable to the
exercise of any privilege in its franchise, including, but
not limited to, laws pertaining to works and activities in
and about state highways.
(e) Grantee shall be prohibited from directly or indi-
rectly doing any of the following:
(1) Engaging in the business of selling at retail,
leasing, renting, repairing, or servicing television sets or
radios;
(2) Imposing a fee or charge for any service or
repair to subscriber -owned receiving devices, except for the
connection of its service, and imposing any fee or charge for
0
the determination of the quality of its signal to the recipi-
ents thereof;
(3) Soliciting or referring, or causing or permit-
ting the solicitation or referral, of any subscriber to per-
sons engaged in any business prohibited by the provisions of
this subsection to be engaged in by Grantee; and
(4) Providing information concerning the viewing
patterns of identifiable individual subscribers to any per-
son, group, or organization for any purpose. When two (2)
way cable services are offered the activation of the return
service shall always be at the subscriber's option. The sub-
scriber shall not be required to provide automatic readout
information as a condition of receiving basic services.
(f) When not otherwise set forth in this Ordinance, all
matters required by the provisions of this Ordinance to be
filed with the City shall be filed with the City Clerk.
(g) No person within the service area of Grantee, and
where trunk lines are in place, shall be refused service;
provided, however, Grantee shall not be required to provide
service to any subscriber who does not pay the applicable
connection fee or service charge. No person shall be refused
service where trunk lines are not in place if the applicant
for service consents to defray excessive costs of such exten-
sion, as in exceptionally difficult terrain or remote areas,
as set forth in the franchise.
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AN
(h) Before providing cable television service to any
subscriber, Grantee shall provide a written notice to the
subscriber substantially as follows: "The subscriber is
hereby notified that in providing cable television service
Grantee is making use of public rights-of-way within the City
of San Juan Capistrano and that the continued use of such
rights-of-way is in no way guaranteed. In the event the con-
tinued use of such rights-of-way is denied to Grantee for any
reason, Grantee will make every reasonable effort to provide
service over alternate routes. By accepting cable television
service, the subscriber agrees he will make no claim nor
undertake any action against the City of San Juan Capistrano,
or its officers or employees, if the service to be provided
hereunder is interrupted or discontinued."
(i) Grantee shall not perform, nor cause to be per-
formed, without first giving the City thirty (30) days prior
notification, any of the following:
(1) Add, delete or make any changes to channels
received or distributed;
(2) Change subscriber billing practices; or
(3) Relocate its office serving the City.
In instances where the FCC orders any of these changes,
a copy of the FCC order shall be provided to the City.
Grantee will maintain a local phone number with sufficient
lines to adequately handle subscriber calls.
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52
ection 41. Use of utility facilities: Agreements:
(a) When any portion of the cable television system is
to be installed on utility poles and facilities within public
property or rights-of-way, a copy of the agreement for the
use of such poles and facilities shall be filed with the
Director of Public Works.
(b) Where the system is to be installed overhead on
existing utility facilities, no additional poles shall be
installed either by Grantee or by the utility for the spe-
cific purpose of supporting or extending the cable television
system without the approval of the Director of Public Works.
Section 42. Effect of Annexations.
In the event any new territory shall become annexed to
the City, Grantee shall have the right to extend cable tele-
vision service to, and as necessary to construct, operate and
maintain a cable television system in, the annexed territory,
without prior authorization of the City, subject to the pro-
visions of Section 21(b).
Section 43. Equal opportunity employment: Affirmative
(a) In carrying out the construction, maintenance, and
operation of the cable television system, Grantee shall not
discriminate against any employee or applicant for employment
because of race, creed, color, sex, age, or national origin.
(b) Grantee shall take affirmative action to ensure
that applicants are employed, and that employees are treated
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53
during employment, without regard to their race, creed,
color, sex, or national origin. Such affirmative action
shall include, but not be limited to, the following: employ-
ment, upgrading, demotions, transfers, recruitment and re-
cruitment advertising, layoffs and termination, rates of pay
and other forms of compensation, and selection for training,
including apprenticeship.
(c) Grantee shall post in conspicuous places, available
to employees and applicants for employment, notices setting
forth the provisions of this section relating to nondiscrimi-
nation.
(d) Grantee, in all solicitations or advertisement for
employees placed by or on behalf of Grantee, shall state that
all qualified applicants will receive consideration for
employment without regard to race, creed, color, sex, age, or
national origin.
Section 44. Preemption
The provisions of this Ordinance are subject to all
applicable state and federal statutes, rules, regulations or
other laws including, but not limited to, Section 53066.1 of
the California Government Code and the Cable Franchise Policy
and Communications Act of 1984, and neither the City nor
Grantee shall be deemed to have excused the other from any
obligations imposed by any such laws, nor to have waived any
rights thereunder, by the enactment, enforcement or accept-
ance of any benefits of this Ordinance.
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Section 2. Deletions
The following Sections are hereby deleted from Ordinance
No. 149: Section 8, Section 11, Section 13, Section 14, and
Section 15.
Section 3. Repeal
Ordinance No. 389 is hereby repealed in its entirety.
Section 4. Statement of Understanding
This Ordinance amends Grantee's existing franchise
granted pursuant to Ordinance No. 149, and shall not be con-
strued as granting a new franchise to Grantee. This Ordi-
nance does not extend the term of the franchise granted by
Ordinance No. 149. This Ordinance and Ordinance No. 149, as
amended herein, establish and define Grantee's rights and
obligations under its franchise granted by the City of San
Juan Capistrano. It is recognized and agreed that Ordinance
No. 327 and Ordinance No. 494 shall have no present applica-
tion to Grantee's franchise.
Section 5. Effective Date
This Ordinance shall take effect and be in force thirty
(30) days after its passage.
Section 6. City Clerk's Certification
The City Clerk shall certify the adoption of this Ordi-
nance and cause the same to be posted at the duly designated
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posting places within the City and published once within fifteen
(15) days after passage and adoption as required by law; or, in
the alternative, the City Clerk may cause to be published a
summary of this Ordinance and a certified copy of the text of
this Ordinance shall be posted in the Office of the City Clerk
five (5) days prior to the date of adoption of this Ordinance;
and, within fifteen (15) days after adoption, the City Clerk
shall cause to be published, the aforementioned summary and shall
post a certified copy of this Ordinance, together with the vote
for and against the same, in the Office of the City Clerk.
PASSED, APPROVED AND ADOPTED this 8th day of
- January . 1985
ATTEST:
CITY CLE iY
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss.
CITY OF SAN JUAN CAPISTRANO )
I, MARY ANN HANOVER, City Clerk of the City of San Juan
Capistrano, California, DO HEREBY CERTIFY that the foregoing is a
true and correct copy of Ordinance No. 528 , which was
introduced at a meeting of the City Council of the City of San
Juan Capistrano, California, held on December 4 , 1984 , and
adopted at a meeting held on January -8 1985 by the
following vote:
AYES: Councilmen Friess, Bland, Buchheim,
Schwartze, and Mayor Hausdorfer
NOES: None
ABSENT: None
(SEAL) Y;Izle
MARY ANN N ER, C TY'CLERK
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12/4/84
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. Ord. #149