HomeMy WebLinkAbout1976-01-06; City Council; 6055; CMC 5.28 add - Cable television franchisesORDINANCE NO. 6055
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, AMENDING TITLE 5 OF THE CARLSBAD MUNICIPAL CODE
BY THE ADDITION OF CHAPTER 5.28 TO ESTAB- LISH A PROCEDURE FOR THE GmJTING OF FRAN- CHISES FOR CABLE TELEVISION SYSTEMS IN
THE CITY OF CARLSBAD.
The City Council of the City of Carlsbad, California, does
ordain as follows:
SECTION 1: That Title 5 of the Carlsbad Municipal Code
is amended by the addition of Chapter 5.28 to read as follows:
“Chanter 5.28
CABLE TELEVISION
Sections :
5.28.010
5.28 .!I20
5.28.030
5.28.040
5.28.050
5.28.060
5.28.070
5.28.080
5.28.090
5.28 .lo0
5.28.110
5.28.120
5.28.130
5.28.140
5.28.150
5.28.160
5.28.170
5.28.180
5.28.190
5.28.200
5.28.210
5.28.220
5.28.230
5-28.240
5.28.250
Definitions.
Franchise to install and operate.
Cable television service.
Franchise payments. Franchise term: duration, extension, termination Foreclosure.
Receivership.
Applications for franchise.
Bonds required.
Hold harmless agreement.
Defense of litigation. Insurance required. Acceptance of the franchise. Limitations of franchise. Rights reserved to the City. Standards of operation. Rates. Accounting standards. Annual financial report. Permits and construction. Additional franchise provisions. Equal opportunity employment and affirmative action plan. Inadequate service - remedies. Violations. Serverability.
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5.28.010 Definitions, For the purposesof this Chapter
the following terms, phrases-,& words, abbreviations, and their der vations shall have the meaning given herein, When not incon-
sistent with the context, words used in the present tense include the future tense, words in the plural number include the singular
number, and words in the singular number include the plural number(
(1) "Cable Television System", ''CATV'' and ''CTV" shall
mean any facility that, in whole or in part, receives directly or indirectly over the air, and amplifies or otherwise modifies
the signals transmitting programs broadcasted 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 service.
(2) "Certificate of Compliance" shall mean that approval
or authorization required by the Federal Communications Commission
in order for a Grantee of a CATV franchise to begin and continue
operation with the City.
(3) ''CityWn shall mean the City of Carlsbad, a municipal
corporation of the State of California, in its present incorpor-
ated form or in any later reorganized, consolidated, enlarged or reincorporated form.
(4) "City Manager'? shall mean the City's chief executive
officer or any designee thereof.
the City of Carlsbad or any future board constituting the legislative body of the City.
granted hereunder in terms of a franchise, privilege, permit,
license or otherwise to construct, operate and maintain a cable
television system within all or a specified area in the City. Any
such authorization, in whatever form granted, shall not mean and include any license or permit required for the privilege of trans-
acting and carrying on a business within the City as required by
other ordinances and laws of this City.
(5) "Council" shall mean the present governing body of
(6) "Franchise" shall mean and include any authorization
(7) "Grantee" shall mean the person, firm or corporation granted a franchise by the Council under this ordinance, and the
lawful successor, transferee or assignee of said person, firm or
corporation.
any and all compensation and other consideration received directly
or indirectly by the Grantee from Subscribers in payment for regular monthly subscriber service; that is the installation fees,
disconnect and reconnect fees, and fees for regular cable benefits
(8) "Gross annual basic subscriber revenues" shall mean
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including the transmission of broadcast signals and access and origination channels, if any. It does not include revenues
derived from per program or per channel service charges, leased access channel revenue, advertising or any other income derived from the system. Any sales tax, service, rent, occupational or
other excise tax to the extent such taxes are charged separately
in addition to the regular monthly service charge and are remitted
by the Grantee to the taxing authority shall not be considered.
domestic and foreign corporations, associations, syndicates, joint stock corporations, partnerships of every kind, clubs, business or common law trusts and societies.
(9) "Person" shall mean any natural person and all
(10) "Property of Grantee" shall mean all property owned, installed, or used within the City by a Grantee in the conduct of a Cable Television System business under the authority of a franchise granted pursuant to this ordinance.
the surface and the area below the surface of any public street,
other public right-of-way or public place, including public utilit:
easements.
(11) "Street1' shall mean the surface, the air space above
(12)"Subscriber" shall mean any person or entity receiving for any purpose any service of the Grantee's cable television System service of retransmission of television broadcast, radio signals, Grantee's original cablecasting, and the local government education and public access channels, and other services, such as leasing of channels, date and facsimile transmission, pay tele- vision, and police, fire and similar public service communication.
any portion of the Grantee's Cable television system for the trans mission of programming.
(13) "User" shall mean any person or entity utilizing
5.28.020 Franchise to install and operate.
(a) A non-exclusive franchise to install, construct, operate, and maintain a kable television system on streets within all or a specific portion of the City may be granted by the Counci to any person, whether operating under an existing franchise, who or which offers to furnish and provide such system under and pursuant to the terms and provisions of this chapter.
No provision of this chapter may be deemed or construed
as to require the granting of a franchise when in the opinion of
the Council it is in the public interest to restrict the number
of Grantees to one or more.
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on
(b) When and in the event that the Grantee of any
franchise granted hereunder uses in his cable television System distribution channels furnished to the Grantee by a telephone company pursuant to tariff or contract on file with a regulatory body having jurisdiction and said Grantee makes no use of the streets independent of such telephone company-furnished facilities said Grantee shall be required to comply with all of the provision: hereof as a "Licensee" and in such event wherever the term "Grantee" is used herein it shall be deemed to mean and include "Licensee".
5.28.030 Cable television service.
(a) The sable television dystem permitted to be installed
(1) Be operationally capable of relaying to subscrib
and operated hereunder shall:
er terminals those television and radio broadcask signals for the carriage of which the Grantee is now or hereafter authorized by
the Federal Communications Commission;
non-voice return communication. Any applicant to operate a system
may include a provision for immediate implementation of the two- way capability. Such applicant shall include a demonstration of a
plan to implement this capability in the future. The Grantee shal provide non-voice return communication when the City Council so directs and the same is economically feasible;
receives in color:
(2) Be constructed with the capacity for two-way
(3) Distribute color television signals which it
(4) Have a minimum capacity of twen'ty channels;
(5) Provide at least one channel without charge for
(6) Provide at least one channel without charge for
(7) Provide at least one channel without charge for
local government access;
educational access;
use as a public access channel to be scheduled by the Grantee within existing or future Federal Communications Commission regulations pertaining to the operation of public access channels;
(8) When the cable system has reached 3500 subscrib- ers, the Grantee shall maintain a studio and a headend that will be capable of producing live or recorded programming to be cable- cast in color and/or black and white for distribution by cable
throughout the City.
and assistance for the production of programming at its studio at
lease rates for use by access channel users. Additional equipment shall also be made available which will permit access users and Grantee to produce programming at locations other than the headend
studio. For public access channel users described in Subsection'
above, Grantee shall provide free use of the production facilities
and production assistance for the first five minutes of air time
for a period of five years after service is commenced. Any
applicant to operate a system under the provisions of this
The Grantee shall make available equipment
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ordinance shall demonstrate in its application how it plans to provide and make available the above facilities and services, (b) The cable television system permitted to be installed and operated hereunder 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 reception by only selected receivers or subscribers;
digital, voice and audio-visual,
and as designated by the Council, when the system passes within
500 feet of the lot line or boundary of any of the following facilities:
City;
for public purposes and not for residential use (fire and police stations excepted) ;
or all other cable systems in San Diego County, or elsewhere, as follows:
Council directs and may be done by direct cable connection, micro- wave link, satellite, or other appropriate method. Interconnectio
may be required for origination and access channels that are deter
mined by Grantee and City to be technically and economically feasible ;
connect, the Grantee shall immediately initiate negotiations with the other affected system or systems in order that costs may be shared equally for both construction and operation of the interconnection link;
(3) City may grant reasonable extensions of time to interconnect or rescind its request to interconnect upon petition
by the Grantee to the Council. The Council shall grant said
request if it finds that the Grantee has renegotiated in good faith and has failed to obtain approval from the system or systems
of the proposed interconnection, or that the cost of the inter- connection would cause an unreasonable or unacceptable increase in subscriber rates; (4) The Grantee shall cooperate with any inter- connection corporation, regional interconnection authority or county, state or federal regulatory agency which may be hereafter
established for the purpose of regulating, facilitating, financing or otherwise providing for the interconnection of cable systems beyond the boundaries of the City;
interconnection capability will be:
(3) Transmitting and receiving all other signals,
(c) The Grantee shall provide one connection without cost
(1) Public schools and community colleges within the
(2) Buildings owned and controlled by the City, used
(d) The Grantee shall interconnect the system with any
(1) Interconnection of systems shall occur when the
(2) Upon receiving the directive of City to inter-
(5) Initial technical requirements to assure future
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(i) All cable systems receiving franchises to operate within the City shall use the standard frequency
allocations for television signals,
signal processors at the headend for each television signal.
quired to be compatible in order that videocassettes, or video- tapes can be shared by various systems,
(e) Any franchise granted pursuant to the provisions of
this chapter shall authorize and permit the Grantee to engage in
the business of operating and providing a cable television system
in the City, and for that purpose to erect, install, construct,
repair, replace, reconstruct, maintain and retain in, on, over,
under, upon, across and along any street, such poles, wires,
cable, conductors, ducts, conduit, vaults, manholes, amplifiers,
and appliances, attachments and other property as may be necessary
and appurtenant to the cable television system; and, in addition,
to use, operate and provide similar facilities or properties rented or leased from other persons, firms or corporations, in- cluding but not limited to any public utility or other Grantee franchised or permitted to do business in the City.
of the cable system in good condition throughout the entire
franchise period.
make repairs promptly, and interrupt service only for good cause and for the shortest time possible, Such interruptions, insofar as possible, shall be preceded by notice and shall occur during periods of minimum system use. Grantee shall comply with the following procedure for service complaints:
(1) The Grantee shall maintain an office in the City which shall be open during all usual business hours, have a
publicly listed telephone, and be so operated that complaints and requests for repairs or adjustments may be received on a twenty-four hour basis;
(2) The Grantee shall maintain a capability to respond to subscriber complaints or requests for service within twenty-four hours after receipt of the complaint or request.
charge shall be made to the subscriber for this service;
(3) The Grantee shall establish procedures for receiving, acting upon and resolving sabscriber complaints in accord with Federal Communications Commission regulations and to
the satisfaction of the City Manager. The Grantee shall furnish a notice of such procedures to each subscriber at the time of initial subscription to the systems;
"log" listing date and time of customer complaints, identifying the subscriber and describing the nature of the complaints and
when and what action was taken by the Grantee in response thereto; such record shall be kept at Grantee's local office, reflecting the operations to date for a period of at least three years, and shall be available for inspection during regular business hours,
(ii) All cable systems are required to use
(iii) All local origination equipment is re-
(f) The Grantee shall put, keep, and maintain all parts
The Grantee shall render efficient service,
NO
(4) The Grantee shall maintain a written record, or
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without further notice or demand by the City Manager;
Comiss on regulations (76,31(a) (5) (iii), the City Manager is
designated by the City as having primary responsibility for the
continuing administration of the franchise and implementation of
complaint procedures;
resolved to the mutual satisfaction of the customer or the
Grantee, either the customer or the Grantee may request that the
matter be presented to the City Manager for a hearing and resolu-
tion:
(7) When there have been similar complaints made or where there exists other evidence, which, in the judgment of the
City Manager casts doubt on the reliability or quality of cable service, the City Manager shall have the right and authority to
compel the Grantee to test, analyze and report on the performance
of that part of the system involved in the problem. Such test or tests shall be made, and the reports of such test or tests shall
be delivered to the City no later than fourteen days after the City formally notifies the Grantee. Such report shall include the
following information: the nature of the complaint which pre-
cipitated 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 in which such complaints
were resolved. Any other information pertinent to the special test shall be recorded.
ed to requiring tests, analyses, and reports covering specific subjects and characteristics based on said complaints or other evidence when and under such circumstances as the City has reason- able grounds to believe that the complaints or other evidence require that tests be performed to protect the public against substandard cable service.
(5) In accordance with Federal Communication
(6) In the event that a customer complaint is not
The City's right under this provision shall be limit-
5.28.040 Franchise payments.
(a) In consideration of the granting and exercise of a franchise to use the streets, as herein defined, for the operation of a cable television system, any Grantee shall pay to the City,
during the life of the franchise in the manner, and at times
directed in a Council resolution, a franchise fee of three percent of its gross annual basic subscriber revenues.
(b) The City shall have the right to inspect the Grantee'! revenue records under the franchise and the right of audit and
recomputation of any and all amounts payable under this ordinance. The cost of said audi't shall be borne by Grantee if it results in an increase of more than two percent in the Grantee's annual payment to the City. City shall bear such costs if the audit results in a smaller payment to City or if such increase is less than two percent.
(c) No acceptance of any payment shall be construed as
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a release or as an accord and satisfaction of any claim the City may have for further or additional sums payable under this chapter or for the performance of any other obligation hereunder.
(d) The City reserves the right to increase both the fran- chise fee rate and the revenues on which such fee is based so as
to increase the franchise payments in the event that the current
Federal Communications Commission limitations as to the franchise
fee rate and the revenues on which such fee may be levied are eliminated, or changed, as a result of superseding regulations
or court action. Any change in franchise fee rate or the revenues on which such fee is based shall be accomplished by amendment to
this chapter and to any ordinance granting a franchise hereunder, provided that such amendments shall be preceded by a public hear- ing affording due process therein.
5.28.050 Franchise term: duration, extension, termination
(a) The franchise granted by the Council under this chap-
ter shall be for a term of fifteen years from the date of its acceptance by the Grantee. Five year extensions may be granted as hereinafter provided.
to the provisions of this chapter in the event of the willful
failure, refusal or neglect by Grantee to do, or comply with, any
material requirement or limitation contained in this chapter, or any material rule or regulation of the Council or City Manager adopted pursuant to this chapter. The City Manager may make written demand that the Grantee do, or comply with, any such requirement, limitation, term, condition, rule or regulation. If the failure, refusal or neglect of the Grantee continues for a period of thirty days following such written demand, the City Manager will place his
request for termination of the franchise on the agenda of the next regular Council meeting. The City Manager shall cause to be served upon such Grantee, at least ten days prior to the date of such Council meeting, a written notice of his 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 once ten days prior to the meeting, in a newspaper of general circulation within the City.
Manager and shall hear any persons interested therein, and shall
determine, in its discretion, whether or not any failure, refusal
or neglect by the Grantee was with just cause.
(e) If the Council determines that such failure, refusal or neglect by the Grantee was with just cause, the Council may
direct the Grantee to comply within such time and manner and upon such terms and conditions as are reasonable.
(f) If the Council determines that such failure, refusal or neglect by the Grantee was material, and was without just
cause, then the Council may, hy resolution, declare that the
franchise of such Grantee shall be terminated and forfeited unless there be compliance by the Grantee within such period as the
(b) The City may terminate any franchise granted pursuant
(c)
(d) The Council shall consider the request of the City
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Council may fix.
The termination and forfeiture of any franchise shall
in no way affect any of the rights of the City under the franchise or any provision of law,
Upon written notice given by the City to the Grantee at the end of the fifth and tenth years of the franchise term,
the Grantee's performance shall be reviewed by the City. This performance review shall include Grantee's quality of service, Grantee's extensions of service and shall be directed toward effecting alterations of the terms and conditions of the franchise
to effect those technical and economic changes which have occurred
during the franchise period expired to date. If such review
does not result in mutually agreeable franchise amendments, the City and the Grantee shall appoint an arbitrator to determine
the matter. If the City and the Grantee cannot agree on an
arbitrator, each shall appoint one, the two shall select a third, and such arbitration shall proceed in accordance with the
California Code of Civil Procedure, Civil Code, and the rules
of the Superior Court of the Skate of California*in San Diego
County.
Upon written notice given by the City or the Grantee to the other not less than one year prior to the end of the initia
franchiseterm, or any extension thereof, the terms and conditions
of such franchise may be subject to renegotiation for an additiona term of five years. Renegotiation shall be directed toward
effecting alterations of the terms and conditions of the franchise
to reflect those technical and economic changes which have
occurred during the initial franchise period or any extension
thereof.
the City of an additional franchise term, the franchise shall
terminate without further action by the City at the end of the
initial fifteen year franchise term or any extension thereof.
Prior to making a decision to approve or disapprove an extension
of a franchise, the Council shall hold a noticed public hearing
on the question.
(j) Upon expiration or other termination of a franchise
granted herein, the Council may require that Grantee continue to
operate its cable television system upon the same terms and con- ditions as contained in the franchise until the effective date of any new franchise granted which includes the area of the old
franchise. Unless the old Grantee and the new Grantee otherwise
agree, the new Grantee shall purchase the old Grantee's cable, conduit, amplifiers, auxiliary equipment, headends and transmittin! equipment, etc. If the parties cannot agree on a price, then the matter shall be determined by arbitration as set forth in this section. In the case of an expiration, the arbitrator shall
determine the fair market value of the system as a going concern
with due consideration given to the then state of the art and any obsolescence of the assets and equipment concerned. In the case of a termination for a material breach, the arbitrator shall
determine the value of the system on the basis of its depreciated
(9)
(h)
(i)
If such renegotiation does not result in the grant by
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original cost with no value assigned to the franchise.
or other termination of any franchise granted hereunder, withou-
prior consent of the Council, the Grantee shall pay to the City reasonable compensation and damages of not less than one hundred (100%) percent of its gross revenue during said period.
(k) In the event of any holding over after expiration
5.28.060 Foreclosure. Upon the foreclosure or other judicial sale of all or a substantial part of the system, or upon
the termination of any lease covering all or a substantial part of the system, the company shall notify the Council of such fact,
and such notification shall be treated as a notification that a
change in control of the company has taken place, and the pro-
visions of this chapter, requiring the consent of the Council to such change in control, shall apply.
5.28.070 Receivership. The Council shall have the right to cancel this franchise ninety days after the appointment of a
receiver, or trustee, to take over and conduct the business of
the company, whether in receivership, reorganization, bankruptcy,
or other action or proceeding, unless such receivership or
trusteeship shall have been vacated prior to the expiration of sai ninety days, or unless: (1) Within ninety days after his election or appointment, such receiver or trustee shall have €ully complied with all the provisions of this chapter and remedied all defaults thereunder; and
shall have executed an agreement, duly approved by the court
having jurisdiction in the premises, whereby such receiver or
trustee assumes and agrees to be bound by each and every pro- vision of this chapter and the franchise granted to the company.
(2) Such receiver or trustee, within said ninety days
5.28.080 Applications for franchise.
(a) Each application for a franchise to construct, operat
or maintain any cable television systems in the City of Carlsbad shall be filed in a form prescr5bed by the City Manager, shall be filed with the City Clerk and shall be accompanied by a detailed statement of the corporate or other business entity organization and experience of the applicant, including but not limited to the following and to whatever extent required by the City Manager:
(1) The names, residence and business addresses of all officers, directors, and associates of the applicant;
(2) The names, residence and business addresses of all officers, persons and entities having, controlling or being entitled to have or control of five percent or more of the ownership of the applicant and the respective ownership share of
each such person or entity;
sidiary of the applicant, namely, any other business entity (3) The names and addresses of any parent or sub-
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owning or controlling applicant in whole or in part or owned or
controlled in whole or in part by the applicant, and a statement describing the nature of any such parent or subsidiary business entity, including but not limited to cable television systems owned or controlled by the applicant, its parent and subsidiary and the areas served thereby;
(4) A detailed description of all previous experi-
ence of the applicant in providing cable television system service
and in related or similar fields; (5) A detailed and complete financial statement of the applicant, prepared by a certified public accountant, for
the fiscal year next preceding the date of the application here-
under, or a letter or other acceptable evidence in writing from
a recognized lending institution or funding source, addressed to
both the applicant and the Council, setting forth the basis for a study performed by such lending institution or funding source, and a clear statement of its intent as a lending institution or funding source to provide whatever capital shall be required by the applicant to construct and operate the proposed system in the City, or a statement from a certified public accountant certifying that the applicant has available sufficient free, net and uncom- mitted cash resources to construct and operate the proposed
system in this City;
current or pending litigation against the applicant, its parent
or subsidiaries and of any municipal, state or federal adminis-
trative sanctions proposed or in force against it, its parent or subsidiaries;
(7) A statement identifying by place and date any
other cable television franchise awarded to the applicant, its
parent or subsidiary, the status of said franchise with respect
to completion thereof, the total cost of completion of such system and the amount of applicant's and its parent's or subsid- iary's resources committed to the completion thereof.
ation of the applicant shall also be filed which shall include,
but not be limited to, the following:
be served and a proposed time schedule for the installation of
all equipment necessary to become operational throughout the
entire area to be served;
(2) A statement or schedule setting forth all pro-
posed classifications of rates and charges to be made against
subscribers and all rates and charges as to each of said classi- fications, including installation charges and service charges;
(3) A detailed, informative and referenced statement
describing the actual equipment and operational standards proposed by the applicant. In no event shall said operational and per-
formance standards be less than those contained in Title 47, Sub-
part K (Sections 76.601, et seq.), Rules and Regulations, Federal
Communications Commission, adopted February 2, 1972, and as
(6) A statement identifying and describing any
(b) A detailed description of the proposed plan of oper-
(1) A detailed map indicating all areas proposed to
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amended, and such additional standards as the Council may have
adopted by resolution pursuant to this chapter;
(4) A copy of the form of any agreement, undertaking
or other instrument proposed to be entered into between the appli- cant and any subscriber;
(5) A detailed statement setting forth in its entire ty any and all agreements and undertakings, whether formal or
informal, written, oral or implied, existing or proposed to exist between the applicant and any person, firm or corporation which materially relate or pertain to or depend upon the application and the granting of the franchise.
(c) The applicant shall also file a copy of any agreement covering the franchise area, if existing, between the applicant and any public utility subject to regulation by the California Public Utilities Commission providing for the use of any facilitie of the public utility, including but not limited to poles, lines or conduits. (d) The Council may require an applicant to furnish any other details, statements, information or references pertinent to the subject matter of such application.
sum of $500.00 which shall be in the form of cash, certified or cashier's check, or money order, to pay the costs of studying, investigating and otherwise processing such application, and which shall be in consideration thereof and not returnable or refundable
in whole or in part, except to the extent that such fee exceeds
the actual costs incurred by the City in studying, investigating and otherwise processing the application, provided that any
applicant who shall deliver to the City Clerk a written withdrawal
of or cancellation of any application hereunder, not later than
the seventh day next following the day such application is received by the City Clerk, shall be entitled to have returned and refunded the sum of $250.00 less any actual costs or expenses
incurred by the City by reason of such application.
(f) The Council may, by advertisement or any other means,
solicit and call for applications for cable television system
franchises, and may determine and fix any date upon or after which
the same shall be received by the City, or the date before which
the same shall not be received, and may make any other determin-
ations and specify any other times, terms, conditions, or limi-
tations respecting the soliciting, calling for, making and receiv- ing of such applications.
sufficient to reimburse it for all publication expenses incurred
by it in connection with the granting of a franchise pursuant to the provisions of this chapter. Such payment shall be made within thirty days after the City furnishes the Grantee with a written statement of such expenses.
Council shall refer the same to the City Manager who shall prepare a report and make his recommendations respecting such application,
(e) The application shall be filed with a fee in the
The Grantee shall pay to the City Clerk a sum of money
(9) Upon receipt of any application for franchise, the
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and cause the same to be completed and filed with the Council with in one hundred-twenty days.
application the Council may give due consideration to the quality of the service proposed, rates to subscriber, experience, characte
background and financial responsibility of any applicant, and its management and owners, technical and performance quality of equipment, willingness and ability to meet construction and
physical requirements, and to abide by policy conditions, franchis limitations and requirements, and any other considerations deemed pertinent by the Council for safeguarding the interests of the City and the public. The Council, in its discretion, shall deter- mine the award of any franchise on the basis of such consideration and without competitive bidding.
If the Council shall determine to reject such application,
such determination shall be final and conclusive, and the same
shall be deemed rejected.
(i) If the Council shall determine to further consider
the application, the following shall be done:
and conditions of any franchise to be granted hereunder and as
herein provided;
to consider the granting of such a franchise, giving notice of receipt of the application, and describing the character of the franchise desired, stating the name of the proposed Grantee, the
character of the franchise, the terms and conditions upon which such franchise is proposed to be granted, that copies of the pro- posed franchise may be obtained at the office of the City Clerk,
fixing and setting forth a day, hour and place certain when and
where any persons having any interest therein or objection to the
granting thereof may file written protests and appear before the
Council and be heard, and directing the City Clerk to publish said resolution at least once within ten days of the passage thereof in a newspaper of general circulation within the City.
(j) At the time set for the hearing or at any adjourn-
ment thereof the Council shall proceed to hear all protests.
Thereafter, the Council shall make one of the following deter-
minations:
(h) In making any determination hereunder as to any
(1) The Council shall decide and specify the terms
(2) The Council shall pass a resolution of intention
(1) That such franchise be denied; or
(2) That such franchise be granted upon the terms
and conditions as specified in the resolution of intention to
grant the same; or (3) That such franchise be granted but upon the
terms and conditions different from those specified in the
resolution of intention to grant the same.
(k) If the Council shall determine that a franchise be
denied, such determination shall be expressed by resolution and
shall be final and conclusive. If the Council shall determine that a franchise be granted,such determination shall be expressed
by ordinance granting a franchise to the applicant which shall
include all terms and conditions thereof.
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5.28.090 Bonds required. Upon being granted a franchise ani upon the filing of the acceptance required under Section 5.28.130,
the Grantee shall file with the City Clerk and shall thereafter
annually, during the entire term of such franchise, maintain in full force and effect corporate surety bonds or other adequate surety agreements in such amounts and kinds as shall have been
approved by the Council. The bond or agreement shall be so
conditioned that in the event that Grantee shall fail to comply
with any one or more of the provisions of t.his chapter,or of such franchise, then there shall be recoverable jointly and severally from the principal and surety any damages or loss or costs sufferel or incurred by the City as a result thereof, including attorney's
fees and costs of any action or proceeding, and including the full amount of any compensation, indemnification, cost of removal
or abandonment of any property or other costs which may be in
default, up to the full principal amount of such bond. Said
condition shall be a continuing obligation during the entire term of such franchise and thereafter until Grantee shall have satisfie in full any and all obligations to the City which arise out of or pertain to said franchise. Neither the provisions of this
section nor any bond accepted by the City pursuant hereto nor any
damages recovered by the City thereunder shall be construed to excuse faithful performance by the Grantee or limit the liability
of the Grantee under any franchise issued pursuant to this chapter
or for damages either to the full amount of the bond or otherwise.
5.28.100 Hold harmless agreement. Grantee shall indemnif and hold harmless $the City, its officers, boards, commissions,
agents and employees against and from any and all claims, demands,
causes of actions, actions, suits, proceedings, damages (including
but not limited to damages to City property and damages arising
out of copyright infringements, and damages arising out of any failure by Grantee to secure consents from the owners, authorized
distributors or licensees of programs to be delivered by Grantee's
cable television system)-,costs or liabilities (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 injury or death or damage to person 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 reasonable attorney fees, reasonable accountant fees, reasonable expert witness or consultant fees, court costs, reasonable per diem expense, traveling and trans- portation expense or other provable and reasonable costs or expense arising out of or pertaining to the exercise or the enjoy- ment of any franchise hereunder by Grantee or the granting thereof by the City.
5.28-110 Defense of litigation. Grantee shall at the sole risk and expense of Grantee, upon demand of the City, made by and through the City Attorney, appear in and defend any and all suits, actions or other legal proceedings, whether judicial,
quasi-judicial, administrative, legislative or otherwise, brought
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or instituted or had by third persons or duly constituted author- ities, against or affecting the City, its officers, boards, commissions, agents or employees, and arising out of or pertaining to the exercise or the enjoyment of such franchise, or the grant-
ing thereof by the City, Grantee shall pay and satisfy and shall cause to be paid and satisfied any judgement, decree, order, directive or demand rendered, made or issued against Grantee, the City, its officers, boards, commissions, agents, or employees
in any of these premises; and such indemnity shall exist and con-
tinue without reference to or limitation by the amount of any bond policy of insurance, deposit, undertaking or other assurance required hereunder, or otherwise; provided, that neither Grantee nor City shall make or enter into any compromise or settlement of any claim, demand, cause of action, action, suit or other pro- ceeding without first obtaining the written consent of the other.
5.28.120 Insurance required. Upon being granted a
franchise and upon the filing of the acceptance required under
Section 5.28.130 hereof, the Grantee shall file with the City
Clerk and shall thereafter, during the entire term of such
franchise, maintain in full force and effect,at its own cost and expense, each of the following policies of insurance:
amount of $2,000,000;
less than $300,000, resulting from any one occurrence:
less than $100,000, resulting from any one occurrence;
and (31, Grantee may provide a combined single limits policy for bodily injury and property damage of not less than $500,000.
of said insurance policies. Where such insurance is provided by a policy which also covers Grantee, or any other entity or person,
it shall contain the standard cross-liability endorsement. All
insurance policies shall contain the following endorsement:
(1) General comprehensive liability insurance in the
(2) Bodily injury liability insurance in the amount not
(3) Property damage liability insurance in an amount not
(4) In lieu of the insurance required. by Subsections, (2)
The City shall be named as an additional insured. in any
It is hereby understood and agreed that this policy may not be cancelled nor the amount of coverage thereof reduced until ninety days after receipt by the City Manager by registered mail of two copies of a written notice of such intent to cancel or reduce the coverage.
5.28.130 Acceptance of the franchise. (a) No franchise granted under this chapter shall become effective for any purpose unless and until written acceptance thereof shall have been filed with the City Clerk. Written accept ance, which shall be in the form and substance approved by the City Attorney, shall also be and operate as an acceptance of each and every term and condition and limitation contained in this
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chapter, or in such franchise, or otherwise specified as herein
provided.
not later than 12:Ol p.m. of the fortieth day next following the effective date of the ordinance granting such franchise.
(c) In default of the filing of such written acceptance
as herein required, the Grantee shall be deemed to have rejected and repudiated the franchise. Thereafter, the acceptance of the Grantee shall not be received nor filed by the City Clerk. The Grantee shall have no rights, remedies, or redress in the premises unless and until the Council, by resolution, shall determine that
such acceptance be received or filed, and then upon such terms
and conditions as the Council may impose.
(d) In any case, and in any instance, all rights, remedie and redress in these premises which may or shall be available to
the City shall at all times be available to the City, and shall be
preserved and maintained and shall continuously exist in and to
the City and shall not be in any manner or means modified,
abridged, altered, restricted or impaired by reason of any of
these premises or otherwise.
shall be in lieu of any and all other rights, privileges, powers, immunities and authorities owned, possessed, controlled or exercisable by the Grantee of or pertaining to the construction, operation or maintenance of any cable television systems in the
City.
(b) The written acceptance shall be filed by the Grantee
(e) Any franchise granted and accepted under this chapter
5.28.140 Limitations of franchise.
(a) Every franchise granted under this chapter shall be nonexclusive. (b) No privilege or exemption shall be granted or con-
ferred by any franchise granted under this chapter except those
specifically prescribed herein.
(c) Any privilege claimed under any such franchise by the Grantee in any street or other public property shall be sub- ordinate to any prior lawful occupancy of the streets or other public property.
in personal trust by the original Grantee. No transfer of control shall occur by sale, lease, assignment or other disposal, in whole or in part, either by forced or involuntary sale, or by voluntary sale, merger, consolidation or otherwise, without prior consent of the Council expressed by resolution, and then only under such conditions as may therein be prescribed. Any such transfer shall be made only by an instrument 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 days after any such transfer or assignment. The said consent of the Council may not be unreasonably refused, provided, however, the proposed transfere must show financial responsibility as determined by the Council and must agree to comply with all provisions of this ordinance,
(d) Any such franchise shall be a privilege to be held
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and provided, further, that no such consent shall be required for a transfer in trust, mortgage, or other hypothecation, in who1 or in part, to secure an indebtedness, except that when such
hypothecation shall exceed fifty percent of the market value of
the property used by the franchisee in the conduct of the cable television system, prior consent of the Council shall be required
for such a transfer. Such consent shall not be withheld unreason-
ably. The consent of the Council to a transfer of control shall not constitute a waiver of release of the rights of the City in and to the streets. For the purposes of this section, the term s'control'~ is not limited to majority stock ownership, but includes
actual working control in whatever manner exercised. A rebuttable
presumption that a transfer of control has occurred shall arise
upon the acquisition or accumulation by any person or group of persons of 10 percent of the voting shares of the Grantee. In the
absence of extraordinary circumstances, the Council will not approve any transfer or assignment of the franchise before com-
pletion of construction of the energized cable.
(e) Time shall be of the essence of any such franchise granted hereunder. The Grantee shall not be relieved of his obligation to comply promptly with any of the provisions of this chapter by any failure of the City to enforce prompt compliance.
officer, employee, department or board of the City shall be sub- ject to transfer by the City to any other officer, employee,
department or board of the City.
the City for any loss, cost, expense or damage arising out of any provision or requirement of this chapter or of any franchise issued hereunder or because of its enforcement.
(h) The Grantee shall be subject to all requirements of City laws, rules, regulations and specifications heretofore or hereafter enacted or established.
Grantee of any obligations involved in obtaining pole or conduit space from any department of the City, utility company or from
others maintaining utilities in streets.
any and all other rights, privileges, powers, immunities and
authorities owned, possessed, controlled or exercisable by
Grantee or any successor to any interest of Grantee of or per-
taining to the construction, operation, or maintenance of any
cable television system in the City; and the acceptance of any
franchise hereunder shall operate, as between Grantee and the
City, as an abandonment of any and all of such rights, privileges, powers, immunities and authorities within the City, to the effect that, as between Grantee and the City, and all construction,
operation and maintenance by any Grantee of any cable television system in the City shall be, and shall be deemed and construed in all instances and respects to be, under and pursuant to said franchise, and not under or pursuant to any other right, privilege
(f) Any right or power in, or duty impressed upon, any
(9) The Grantee shall have no recourse whatsoever against
(i) Any such franchise granted shall not relieve the
(j) Any franchise granted hereunder shall be in lieu of
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power, immunity or authority whatsoever.
5.28.150 Rights reserved to the City.
(a) Nothing herein shall be deemed or construed to impair or affect in any way, to any extent, the right of the
City to acquire the property of the Grantee, either by purchase or through the exercise of the right of eminent domain, at a fair and just value, which shall not include any amount for the franchise itself or for any of the rights or privileges granted thereunder; and nothing herein contained shall be construed to contract away or to modify or abridge, whether for a term or in perpetuity, the City's right of eminent domain.
power which is required to be herein reserved or provided by any
law, and the Grantee, by its acceptance of the franchise, agrees to be bound thereby and to comply with any action or requirements of the City in its exercise of such rights or power heretofore or hereafter enacted or established.
vision hereof shall constitute a waiver or bar to the exercise
of any governmental right or power of the City. (a) The Council may do all things which are necessary and convenient in the exercise of its jurisdiction under this chapter and may determine any question of fact which may arise during the existence of any franchise granted hereunder. The
City Manager, with the approval of the City Attorney, is hereby authorized and empowered to adjust, settle or comprcimise any
controversy or charge arising from the operations of any Grantee
under this chapter, either on behalf of the City, the Grantee or any subscriber, in the best inkerest of the public. Either the 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 for hearing andidetermination. The Council may accept,
reject or modify the decision of the City Manager, and the Council
may adjust, settle or compromise any controversy or cancel any
charge arising from the operations of the Grantee or from any
provision of this chapter.
(b) There is hereby reserved to the City every right and
(c) Neither the granting of any franchise nor any pro-
5.28.160 Standards of operation. (a) Prior to receiving any applications for franchises, the Council may adopt rules, regulations and standards governing
the operation of cable television systems in the City. Such rules
regulations and standards shall apply to and shall govern the oper-
ations of the Grantee of any franchise hereunder, and are express-
ly declared a part of any franchise hereunder.
(b) Rules, regulations and- standards not adopted prior to
receiving any application for a franchise shall be adopted by the
Council at the first regular meeting of the Council next following
the effective date of this ordinance, by resolution which shall
become effective upon adoption and shall be applicable to any
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application for a franchise previously received.
The standards adopted shall govern the engineering, construction, installation, service and maintenance of all cable
television systems in the City, including but not limited to
standards governing carrier levels, signal-to-noise ratios, hum
modulation, distortion levels, channel interactions and inter- reactions.
of the franchise without consent of the Grantee, the Council may at any time adopt new rules or regulations or standards, or may
amend, modify, delete, or otherwise change its respective rules
or regulations or standards previously adopted, in the following
manner: The Council shall pass its resolution of intention statin: or describing the rules or regulations or standards to be adopted, amended, modified, Cteleted or otherwise changed, and fixing and
setting forth a day, hour and place certain when and where any
persons having any interest therein or objection thereto may appeal
before the Council and be heard. Such resolution shall direct the
City Clerk to publish the same at least once within ten days of
the passage thereof in a newspaper of general circulation within the City, and to mail a copy of the same to any Grantee or appli- cant for a franchise, not more than thirty days nor less than fifteen days prior to the time fixed for hearing thereon,
thereof, the Council shall proceed to hear and pass upon such
comments as may be presented. Thereafter, the Council, by resolu-
tion, may adopt, amend, modify, delete or otherwise change its respective rules, regulations and standards. Such determination by the Council shall be final and conclusive.
modified, deleted or otherwise change by the Council shall become effective upon the tenth day following the adoption of such resolution, unless a longer period shall be otherwise provided in such resolution.
(c)
(d) Provided the same to not materially alter the content
At the time set for such hearing, or at any adjournment
Any rule or regulation or standard as adopted, amended,
5.28.170 Rates. (a) Prior to, or as a part of, the granting of any fran- chise hereunder, the Council, by resolution, shall establish and
fix all rates and charges for the basic service, herein defined,
allowable to Grantee, such as:
(1) Charges for installation;
(2) Subscriber rates;
(3) Service charges for separate classifications of
service (e.g., additional connections, etc.).
award of a franchise pursuant to Section 5.28.060, the procedures of subsection (c) of this section shall apply. In the alternativt
the rates may be established as a part of the hearing on the franchise award. Once established, such rates or charges shall no1 be changed at any time after granting of a franchise, except after
due notice and hearing as provided herein.
If the rates are established prior to a hearing on the
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(b) Rates and charges for any services, other than the
basic service, shall also be filed with the City Clerk at least
thirty days prior to their effective date.
(c) At any time after the granthg of a franchise, the City Manager or the Grantee may initiate a change of any rates
or charges of Grantee to subscribers. A request for such change by Grantee shall be filed with the City Manager who shall conduct a preliminary evaluation of the request. The City Manager may require the Grantee to submit information regarding the efficiency
of operation, operating expenses, financial statements, and any other information necessary to a full evaluation of the request. When the Grantee has submitted all required information and the City Manager has completed his preliminary evaluation, he shall
issue his written notice fixing and setting forth the day, hour an place certain when and where any persons having any interest there
in may appear and be heard.
in a newspaper of general circulation within the City. The City
Clerk also shall cause a copy of such notice to be mailed to any Grantee at least ten days prior to the date specified for the hearing.
At the time set for such hearing, or at an$ adjournm&nt thereof, the City Manager shall proceed to hear the matter.
Following the close of such hearing, the City Manager shall prepare and file with the Council and the City Clerk his report of the hearing, his findings and an opinion containing his recom-
mendations and the reasons therefor. After the expiration of ten days following the filing of the City Manager's report and opinion, and if no objection has been filed thereto, the Council shall determine whether to adopt the opinion or to hold a further hearing. If an objection is filed in writing with the City Clerk
during said ten day period, the Council shall determine to hold a
hearing before adopting any changes in rates or charges. If the
Council determines to hold a hearing, they shall pass a resolution of intention to do so, describing and stating the proposed changes in any rates or charges and fixing and setting forth the
day, hour, and place certain when and where any persons having
any interest therein may appear before the Council and be heard.
Such resolution shall direct the City Clerk to publish the same
resolution at least once within ten days of the passage thereof in
a newspaper of general circulation within the City. The City Clerk also shall cause a copy of such resolution to be mailed to the Grantee at least ten days prior to the date specified for
hearing thereon. At the time set for any further hearing, or at any adjournment thereof, the Council shall proceed to hear the matter.
Upon receipt of the City Manager's report and opinion, and the expiration of said ten days without objection, or follow- ing the holding of a further hearing, the Council shall determine
whether or not to approve a11 or part of the proposed change in
The City Clerk shall cause such notice to be published
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rates and charges. In approving any such change the Council shall
first find that the changing of any rates or charges of Grantee to
subscribers will be fair to the system operator and not detrimenta. or injurious to the best interests and welfare of the subscribers and users, and of the City. If the Council so finds, they may by resolution authorize the change of rates or charges of Grantee
to subscribers and users as determined. Such resolution shall
thereupon become and shall be a part of any franchise granted hereunder and affected thereby. Such finding shall be at the
discretion of the Council which shall be exercised in a fair and
equitable manner. The Council may consider and evaluate all rele- vant information in reaching their decision, including but not limited to the following:
The quality of service being provided by Grantee
The rates and charges prevailing for other
systems operating in the San Diego County area and other comparablt
areas ;
complaints regarding service;
obligations to the City under this chapter and his franchise;
effective.
rates, charges, service, service facilities, rules, regulations or in any other respect, make or grant any preference or advantage to any person, or subject any person to prejudice or disadvantage.
(1) (2)
(3) The nature, number and status of subscriber
(4) The extent to which Grantee is current in all
(5) The term for which the changed rates will be
(d) Neither the Council nor the Grantee shall, as to
5.28.180 Accounting standards. (a) All financial reports prepared for the City by the Grantee and a11 records maintained by the Grantee shall conform to generally accepted accounting principles applied on a consistenl and fair basis. purposes of rate consideration shall be certified by an officer of the Company. (b) All accounting transactions shall include, but not be limited to, accounting assumptions and treatment, rates of deprec- iation, capitalization and expensing of costs, determination of
capital structure, and amortization of indebtedness and shall
be fully disclosed to City.
the treatment of said transactions for purposes of approval of
rates and charges.
assumptions and treatment, the City may refer to generally acceptec
accounting principles applied on a fair and consistent basis,
engineering estimates as to probable economic life of system
components, and standard accounting practices applied on an original cost basis.
All financial reports requested by the City for
The City may accept, reject or modify
(c) To determine the reasonableness of accounting
5.28.190 Annual financial report. Grantee shall file an annual financial report reflecting the operations of the Carlsbad
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system only and shall contain the following documents:
(1) Balance sheet,
(2) Income statement.
(35 Cash flow statement.
(4) Statement of sources and applications of funds, (5) Detailed supporting schedules of expense, income,
(6) Statement of current and projected subscribers and
The Grantee's accounting records applicable to the Carlsba
assets and other items as may be required.
penetration.
system shall be available for inspection by the City at all reasonable times. The City shall have access to records of financial transactions for the purpose of verifying burden rates
or other indirect costs prorated to the Carlsbad operation. The
documents listed above shall include sufficient detail and/or
footnotes as may be necessary to provide the City with the infor-
mation needed to make accurate determinations as to the financial
condition of the system. All financial statements shall be certified as accurate by the Treasurer of Grantee. Such annual financial statements shall be accompanied by the certification of an independent C.P.A. as to the appropriateness of accounting
methods used and the allocations made therein relative to the Carlsbad system.
the Grantee shall proceed with due diligence to obtain all neces- sary permits and authorizations which are required in the conduct of its business, including but not limited to certificates of compliance, or other federal authorization, any utility joint use attachment agreements, microwave carrier licenses, and any other permits, licenses and authorizations to be granted by duly con- stituted regulatory agencies having jurisdiction over the operatior of cable television systems, or associated microwave transmission facilities.
cations and communications submitted by the Grantee to the
Federal Communications Commission, Securities and Exchange
Commission, or any other federal or state regulatory commission or agency having jurisdiction in respect to any matters affecting Grantee's cable television operations, shall also be submitted simultaneously to the City Manager.
permits, licenses and authorizations, including right of access to poles and conduits, Grantee shall commence construction and installation of the cable television system. (c) Within one hundred-eighty days after the commence-
ment of construction and installation of the system, Grantee shall proceed to render service to subscribers, and the completion of the installation and construction shall be pursued with reasonable
diligence thereafter, so that service to all of the areas desig-
In connection therewith, copies of all petitions, appli-
(b) Within ninety days after obtaining all necessary
22.
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(a) Within thirty days after acceptance of any franchise
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nated and scheduled on the map and. plan of construction made part of the franchise shall be provided as set forth therein. (d) Failure on the part of the Grantee to commence and diligently pursue each of the foregoing requirements and to
complete each of the matters set forth herein, shall be grounds
for termination of such franchise. By resolution the City
Council in its discretion may extend the time for the commencement
and completion of installation and construction for additional periods in the event the'Grantee, acting in good faith, experience5 delays by reason of circumstances beyond his control.
By acceptance of the franchise granted hereunder, Grantee
agrees that failure to comply with any time requirements referred
to in Subsection (a), (b) and (c) of this Sectioa will result
in damage to the the City, and that it is and will be impracticable to determine the actual amount of such damage in the event of delal and Grantee therefore agrees that, in addition to any other damage
suffered by the City, he will pay to the City the sum of $100.00 per day for each and every day of delay beyond the time prescribed,
plus authorized extensions thereof, for completion of any of the acts required to be done by this section.
other facilities whenever possible, and shall not construct or install any new, different or additional poles, conduits or other facilities whether on public property or on privately owned property unless and until first securing the written approval of
the City Manager. When ever Grantee shall not utilize existing poles, conduits and other facilities, or whenever existing conduit: and other facilities shall be located beneath the surface of the streets, or whenever the City shall undertake a program designed to cause all conduits and other facilities to be located beneath
the surface of the streets in any area or throughout the City, in
the exercise of its police power or pursuant to the terms hereof,
upon reasonable notice to Grantee, any such conduits or other
facilities of Grantee shall be constructed, installed, placed or
replaced beneath the surface of the streets. Any construction, installation, placement, replacement or changes which may be so
required shall be made at the expense of Grantee, whose costs shall be determined as in the case of public utilities.
make additional use, for any public or municipal purpose, whether governmental or proprietary, of any poles, conduits, or other similar facilities erected, controlled or maintained exclusively
by or for Grantee in any street, provided such use by City does not interfere with the use by Grantee.
distribution facilities of the respective public utilities pro- viding telephone, communication and electric services are under-
ground or hereafter are placed underground, the Grantee likewise
shall construct, operate and maintain all of his transmission
and distribution facilities underground. The term "underground" shall include a partial underground system, provided that upon obtaining the written approval of the City Manager, passive
(e) Grantee shall utilize existing poles, conduits and
(f) The City shall have the right, free of charge, to
(9) In those areas of the City where the transmission or
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devices, power supplies and future terminal equipment needed for
two-way communication in the Grantee’s transmission and distri- bution lines, may be placed in appropriate housings upon the sur- face of the groundr
temporarily disconnect, relocate or remove any property of Grantee
when, in the opinion of the City Manager the same is required by
reason of traffic conditions, public safety, street vacation,
freeway or street construction, change or establishment of street
grade, installation of sewers, drains, waterp’ipes, power line,
signal line, transportation facilities, tracks or any other type of structure or improvements by governmental agencies whether
acting in a governmental or proprietary capacity, or any other
structure of public improvement, including but not limited to
movement of buildings, urban renewal development and any general
program under which the City shall undertake to cause all such
properties to be located beneath the surface of the ground. The
Grantee shall in all cases have the privilege, subject to the
corresponding obligations, to abandon any property of Grantee in place, as herein provided. Nothing hereunder shall be deemed a taking of the property of Grantee, and the Grantee shall be entitled to no surcharge by reason of anything hereunder. (i) Upon the failure, refusal, or neglect of Grantee to cause any work or other act required by law or hereunder to be properly complete in, on, over or under any street within any time prescribed therefor, or upon notice given, where no time is prescribed, the City Manager 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. The
Grantee shall, within thirty days after receipt of such statement,
pay to the City the entire amount thereof.
of Grantee is discontinued for any reason for a continuous period of thirty days, without prior written notice to and approval by the City; or any part of such system has been installed in any street or other area without complying with the requirements hereof; or any franchise shall be terminated, cancelled or shall
expire, then the Grantee shall, at the option of the City, and
at the expense of Grantee and at no expense to the City, and
upon demand of the City, promptly remove from any streets or other area all property of Grantee, and Grantee shall promptly restore the street or other area from which such property has been re- moved to such condition as the City Manager may prescribe. The Council may, upon written application therefor by Grantee, approve
the abandonment of any of such property in place by Grantee and under such terms and conditions as the Council may prescribe. Upon 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.
(h) The Grantee at his expense shall protect, support-;
(j) In the event that the use of any part of the system
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(1) Engaging in the business of selling at retail, leasing, renting, repairing or servicing of television sets or
radios, not to include the selling, renting, leasing, repairing or servicing of converters, scramblers or other auxiliary equip-
ment or devices pertinent to and directly related to the reception or transmission of digital, voice or audiovisual signals as a use permitted herein; Imposing a fee or charge for any service or repair to subscriber-owned receiving devices except for the con-
nection, disconnection, and reconnection of its service or for the
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5.28.210 Additional, franchise provisit"
(a) A franchise aranted to provide servi'ce within the d City shall authorized and permit the- Grantee to' solicit I sell I
distribute and make a charge to subscribers within the City for connection to the cable television system of Grantee, and shall
authorize and permit the Grantee to traverse any portion of the City in order to provide service outside the City.
granted to anyone other than the Grantee to traverse any portion
of the City in order to provide service outside the City shall
not authorize nor permit said 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 service system of Grantee.
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 apartyor affected therein or thereby
If any federal or state body or agency shall now or here- after exercise any paramount jurisdiction over the subject matter of any franchise granted under this ordinance, then to the extent such jurisdiction shall preempt or preclude the exercise of like jurisdiction by the City, the' jurisdiction of the City shall cease
and no longer exist.
(d) Grantee shall be subject to all other provisions of the municipal code and to all other ordhances, rules, reguZati6as
and specifications of the City heretofore or hereafter adopted,
including but not limited to those pertaining to works and activ- ities in, on, over, under and about streets.
to this chapter in any street or other public property shall be subordinate to any prior lawful occupancy of the streets or other
public property.
laws of the State of California, or as hereafter amended, when
applicable to the exercise of any privilege contained in any
franchise granted under this ordinance, including but not limited to those pertaining to works and activities in and about state
(b) A franchise, easement, license or other permit
(c) No franchise granted under this chapter shall ever
Any privilege claimed under any franchise granted pursuant
Grantee also shall be subject to the provisions of general
highways.
(e) Grantee shall be prohibited from directly or indirect
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determination by Grantee of the quality of its signal to the recipients thereof;
the solicitation or referral of any subscriber to persons engaged in any business herein prohi'bited to be engaged in by Grantee;
(4) Providing information concerning the viewing
patterns of identifiable individual subscribers to any group,
person or organization for any purpose.
Public Utilities Commission of the State of California or any othe federal or state body or agency shall now or hereafter exercise
any paramount jurisdiction over the subject matter of any franchis
granted under the chapter, the chapter itself or any regulations
adopted pursuant thereto, then to the extent such jurisdiction shall preempt or preclude the exercise of like jurisdiction by the
City, the jurisdiction of the City shall cease and no longer exist
Subject to the preemptive jurisdiction of the Federal Communications Commission as set forth in the preceding paragraph,
the exercise by the City of any of its'police power shall not
diminish, impair, alter or affect any contractual obligation of
the Grantee under any franchise issued hereunder.
Any and all minimum standards governing the operation of Grantee and any and all maximum rates, ratios and charges specifie herein or in any franchise issued hereunder, existing now and at any time in the future, including such time as any paramount jurisdiction shall preempt or preclude that of the City, and any and all rights, powers, privileges, and authorities of the City
and by any Grantee accepting any franchise hereunder to he con-
tractual in nature--and ta be far the benefit af the Oityi
herein required to be filed with the City shall be filed with the City Clerk.
area of the Grantee, and where trunk lines and feeder lines are
in place, shall be refused service, provided, however, that the
Grantee shall not be required to provide service to any subscriber
who does not pay the applicable connection fee or service charge.
subscriber, the Grantee shall provide a written notice to the sub- scriber substantially as follows:
(3) Soliciting, referring or causing or permitting
(f) If the Federal Communications Commission or the
(9) When not otherwise prescribed herein, all matters
(h) No person, firm or corporation within the service
(i) Before providing cable television service to any
Subscriber is hereby notified that in providing cable television service the Grantee is making use of public rights-of-way within the City of Carlsbad and that the continued use of such rights-of-way is in no way guar- anteed. In the event the continued 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, subscriber agrees he will make no claim nor undertake any action against the City of Carlsbad,
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its officers, or its employees if the service to be
provided hereunder is interrupted or discontinued.
(j) The form of the Grantee's contract with the subscribe
shall also be subject to approval of the City Attorney,
5.28.220 Equal opportunity employment and affirmative action plan.
(a) In the carrying out of the construction, maintenance and operation of the cable television system, the Grantee shall
not discriminate against any employee or applicant for employment because of race, creed, color, sex or national origin.
that applicants are employed and that employees are treated during employment without regard to their race, creed, color, sex or national origin. Such action shall include, but not be limited to the following: Employment, upgrading, demotion or transfer,
recruitment or recruitment advertising, layoff or termination,
rates of pay or other forms of compensation and selection for training, including apprenticeship.
(c) The Grantee shall file with the Federal Communication Commission and the City of Carlsbad copies of Grantee's Affirmativ Action Program as well as reports concerning complaints of discrimination and annual employment reports as may be required by the Federal Communications Commission, unless the Grantee fails to meet minimum full time employee criteria of the Federal Communications Commission.
ments in all of its contracts for work relative to construction, maintenance and operation of the cable television system, other
than contracts for standard commercial supplies of raw materials, and shall require all of its contractors for such work to incor- porate such requirements in all subcontracts for such work.
able to employees and applicants for employment, notices setting forth the provision of this non-discrimination clause and the employees right to notify the Federal Communications Commission
and the Equal Employment Opportunity Commission if he or she
believes that discrimination has occurred.
ments and applications for employment placed by or on behalf of
the Grantee, state that all qualified applicants will receive consideration for employment without regard to race, creed, color,
sex or national origin. Advertisement for such employment will
be through media having significant circulation among minority
groups in the recruiting area. The Grantee shall further
establish recruiting programs in educational institutions having
significant minority group enrollment and maintain systematic
contact with minority organizations.
(b) The Grantee shall take affirmative action to ensure
(d) The Grantee shall incorporate the foregoing require-
(e) The Grantee shall post in conspicuous places, avail-
(f) The Grantee shall, in all solicitations, advertise-
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5.28.230
(a)
Inadequate service - remedies. a-
In the event that its service to any subscriber is
interrupted for twenty-four consecutive hours, except for acts
of God, and except in circumstances for which the prior approval
of the interruption is obtained from the City Manager, Grantee
shall provide a ten percent rebate of the monthly fees to affected
subscribers.
interrupted for forty-eight or more consecutive hoursi,exeept-
for acts of God, and except in circumstances for which the prior approval of the interruption is obtained from the City Manager,
Grantee shall provide a twenty percent rebate of the monthly
fees to affected subscribers.
formance standards for a full three month period, Grantee shall
reduce all subscribers fees by twenty-five percent until all performance standards are met. The City Manager shall notify the Grantee during the first month of the three month period that the system has failed to meet performance standards. (d) For failure to commence construction in accordance with Section 5.28.200(b), unless the Council approves the delay
because of reasons beyond the control of the franchisee, the
franchise term shall be reduced four days for each day of delay.
complete construction and installation of the system as provided
for in Section 5.28.200(c), unless the Council approves the delay because of reasons beyond the control of the franchisee, the franchise term shall be reduced four days for each day of delay.
(b) In the event that its service to any subscriber is
(c) In the event that the system fails to meet any per-
(e) For failure to begin service to subscribers or
5.28.240 Violations.
(a) From and after the effective date of this chapter, it shall be unlawful for any person to construct, install or main- tain within any public street in the City, or within any other public property of the City, 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 subdivision map approved by the City, any equipment
or facilities for distributing any television signals or radio
signals through a cable television system, unless a franchise
authorizing such use of such street or property or area has first
been obtained pursuant to the provisions of this chapter, and unless such franchise is in full force and effect.
(b) It shall be unlawful for any person, firm or corpor- ation to make or use any unauthorized connection, whether
physically, electrically, acoustically, inductively or otherwise,
with any part of a franchised cable television system within this
City €or the purpose of enabling himself or others to receive or
use any television signal, radio signal, picture, program or sound
without payment to the owner of said system.
(c) It shall be unlawful for any person, without the
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consent of the owner, to willfully tamper with, remove or injure
any cables, wires or equipment used for distribution of television signals, radio signals, picture, programs or sound.
5.28.250 Severability. If any section, subsections, sentence, clause or phrase of this chapter is for any reason held illegal, invalid or unconstitutional or not to comply with the standards and requirements of the Federal Communications Commission
or violates its restrictions, as determined by the decision of any court of competent jurisdiction,or the Federal Communications Commission,such decision shall not affect the validity of the remaining portions of the ordinance thereof. The Council hereby declares that it would have passed this chapter in each section, subsection, sentence, clause and phrase hereof irrespective of the fact that any one or more sections, subsections, sentences, clauses
or phrases be declared illegal, invalid or unconstitutional or not to comply with requirements of the Federal Communications Commission nor to be in violation of its restrictions, The
invalidity for violation of Federal Communications Commission
restrictions or failure to comply with its requirements of any portion of this chapter shall not abate, reduce or otherwise affect
any consideration or other obligation required of the Grantee of
any franchise granted hereunder and any such portion shall be
subject to renegotiation by Grantee and City."
EFFECTIVE DATE: This ordinance shall be effective thirty
days after its adoption, and the City Clerk shall certify to the
adoption of this ordinance and cause it to be published at least
once in the Carlsbad Journal within fifteen days after its
adoption.
an adjourned
INTRODUCED AND FIRST READ at/ regular meeting of the
Carlsbad City Council held on the 18th day of December , 1975,
and thereafter
PASSED AND ADOPTED at a regular meeting of said City
Council held on the 6th day of January , 1976, by the
following vote, to wit:
///
///
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AYES; Councilmen Frazee, Chase, Lewis, Skotnicki and
NOES: None Counci 1 woman Cas1 er
ABSENT: None
P&cd-
ROBERT C . FRAZEE, mayor
ATTEST :
(SEAL)
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