HomeMy WebLinkAbout1975-12-16; City Council; 3549; Cable Television Ordinance"•?
CITY OF CARLSBAD
AGENDA BILL NO. J^5 ?Y ^ Initial:
Dept.Hd.
DATE: December 16, 1975
DEPARTMENT City ManagerC. Mgr.
Subject:
CABLE TELEVISION ORDINANCE
Statement of the Matter
In response to the Council's direction, we have prepared a Cable
Television Ordinance. As you will recall, a previous version
of the ordinance was submitted to the Council at a workship
session and forwarded to concerned private individuals. We
received extensive comments on the ordinance. With the Council's
concurrence, the ordinance and the comments were submitted to
the Cable Television Information Center, who has been acting as
the City's consultant. The approximately 40 pages of comments
resulted in over sixty pages of response from the consultant.
We have reviewed all of these materials on a point by point
basis and the ordinance has been revised. Without exception
where the consultant concurred with the comments received, the
ordinance was changed accordingly. A substantial majority of
the comments, particularly those from La Costa Cable,have been
incorporated in the revised ordinance. In those instances
where the consultant disagreed with the comments, the consultant's
advice has been followed. Copies of the revised ordinance have
been forwarded to concerned individuals.
Exhibit
Ordinance No. £) 0^5*ff" .
Recommendation
If the City Council desires to proceed with the franchising
of Cable Television Systems for the City of Carlsbad, your
action is to introduce Ordinance No. 6055
Council action
12-18-75 Following discussion Ordinance #6055 was introduced for a
first reading, establishing a procedure for the granting
of franchises for Cable Television Systems in the City.
1-6-76 Ordinance #6055 was given a second reading and adopted.
-
0» »03 g
_; CC CM"C < o>
1S <Ou- D i
g £ > £
° P 5 i
r~ jTi r-» •>Z ~ S QUJ Z ™ <O GC *"" mse 2>P c< gfc
0
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
n*i21
f\f\22
23
24
4\ f25
26
27
28
ORDINANCE 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 GRANTING 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:
"Chapter 5.28
CABLE TELEVISION
Sections :
5.28.010 Definitions.
5.28.020 Franchise to install and operate.
5.28.030 Cable television service.
5.28.040 Franchise payments.
5.28.050 Franchise term: duration, extension, termination.
5.28.060 Foreclosure.
5.28.070 Receivership.
5.28.080 Applications for franchise.
5.28.090 Bonds required.
5.28.100 Hold harmless agreement.
5.28.110 Defense of litigation.
5.28.120 Insurance required.
5.28.130 Acceptance of the franchise.
5.28.140 Limitations of franchise.
5.28.150 Rights reserved to the City.
5.28.160 Standards of operation.
5.28.170 Rates.
5.28.180 Accounting standards.
5.28.190 Annual financial report.
5.28.200 Permits and construction.
5.28.210 Additional franchise provisions.
5.28.220 Equal opportunity employment and affirmative
action plan.
5.28.230 Inadequate service - remedies.
5.28.240 Violations.
5.28.250 Serverability.
<
o o: -
o
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5.28.010 Definitions. For the purposes of this chapter
the following terms, phrases, words, abbreviations, and their
derivations 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) "City" 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
reincorporatsd fcr^n.
(4) "City Manager" shall mean the City's chief executive
officer or any designee thereof.-
(5) "Council" shall- mean the present governing body of
the City of Carlsbad or any future board constituting the
legislative body of the City.
(6) "Franchise" shall mean and include any authorization
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.
(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.
(8) "Gross annual basic subscriber revenues" shall mean
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
2.
O<•
°o ,3
o
8
10
11
12
13
14
15
16
17
S S 15 18gS'I
>% 5 19
^ o
20
21
22
23
24
.25
26
27
28
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.
(9) "Person" shall mean any natural person and all
domestic and foreign corporations, associations, syndicates, joint
stock corporations, partnerships of every kind, clubs, business or
common law trusts and societies.
(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.
(11) "Street" shall mean the surface, the air space above
the surface and the area below the surface of any public street,
other public right-of-way or public place, including public utility
easements.
(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.
(13) "User" shall mean any person or entity utilizing
any portion of the Grantee's cable television system for the trans-
mission of programming.
5.28.020 Franchise to install and operate*
(a) A non-exclusive franchise to install, construct,
operate, and maintain a cable television system on streets within
all or a specific portion of the City may be granted by the Council
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.
3.
COCO
1
2
3
4
5
6
7
8
9
10
11
12
13
14
I 15
I 16
i 17
I 18
i 19
20
21
22
23
24
25
26
27
28
(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 cable television s'ystem permitted to be installed
and operated hereunder shall:
(1) Be operationally capable of relaying to subscrib
er terminals those television and radio broadcast signals for the
carriage of which the Grantee is now or hereafter authorized by
the Federal Communications Commission;
(2) Be constructed with the capacity for two-way
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;
(3) Distribute color television signals which it
receives in color;
(4) Have a minimum capacity of twenty channels;
(5) Provide at least one channel without charge for
local government access;
(6) Provide at least one channel without charge for
educational access;
(7) Provide at least one channel without charge for
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. The Grantee shall make available equipment
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 7
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
4.
I
z a:
2^2
•- £
81*3
Z O OT
to
1
Z
3
4
5
6
7
8
9
10
11
12
13
14
-= I 15
"S *o'u. s iQ O 2 z 16
17
S 18
19
20
21
22
23
24
25
26
27
28
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;
(3) Transmitting and receiving all other signals,
digital, voice and audio-visual.
(c) The Grantee shall provide one connection without cost,
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:
(1) Public schools and community colleges within the
City;
(2) Buildings owned and controlled by the City, used
for public purposes and not for residential use (fire and police
stations excepted);
(d) The Grantee shall interconnect the system with any.
or all other cable systems in San Diego County, or elsewhere, as
follcws:
(1) Interconnection of systems shall occur when the
Council directs and may be done by direct cable connection, micro-
wave link, satellite, or other appropriate method. Interconnection
may be required for origination and access channels that are deter-
mined by Grantee and City to be technically and economically
feasible;
(2) Upon receiving the directive of City to inter-
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;
(5) Initial technical requirements to assure future
interconnection capability will be:
_; K KO- < a>
O u. % I
°° igot >°2 t < it
"-';l5
|ll< 18
Z P So
t
O
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
19
20
21
22
23
24
25
26
27
28
(i) All cable systems receiving franchises
to operate within the City shall use the standard frequency
allocations for television signals.
(ii) All cable systems are required to use
signal processors at the headend for each television signal.
(iii) All local origination equipment is re-
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.
(f) The Grantee shall put, keep, and maintain all parts
of the cable system in good condition throughout the entire
franchise period. The Grantee shall render efficient service,
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. No
charge shall be made to the subscriber for this service;
(3) The Grantee shall establish procedures for
receiving, acting upon and resolving subscriber 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;
(4) The Grantee shall maintain a written record, or
"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,
6.
o
m3
• OC5= <^ odu.Q O
SD
^_
^ UJUJ Z
z o
> t
^.o
I
o>VENUE:ORNIA< ±
5<E u
8 Q2 <mCO
tr
u
1
2
Z
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
without further notice or demand by the City Manager;
(5) In accordance with Federal Communication
Commission 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;
(6) In the event that a customer complaint is not
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.
The City's right under this provision shall be limit-
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.
5.28.040 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 Grantee1;
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 audit 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
7.
o
1IT
O>
UJ 5§11.
° 5£IM§• sdU. • -1 <^ uj O
2 "! 8 Dui z CM <roE-m
O
3
4
5
6
7
8
9
10
11
12
15
14
15
16
17
18
19
20
21
22
23
24
25
26
27
26
29
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 bajed 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.
(b) The City may terminate any franchise granted pursuant
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.
"(c) 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.
(d) The Council shall consider the request of 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, by 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
8.
o
.1' 1
=. BIONDO, JR- CITY OF CA.M AVENUEALIFORNIA 9:f- > " °z •" 8 oill>$ |
o
* , 1
1
z
3
4
5
6
7
8
9
10
11
12
13
14
15
' 16
17
18
19
20
21
22
23
24
25
26
27
28
on
Council may fix.
(g) 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.
(h) 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 State of California in San Diego
County.
(i) Upon written notice given by the City or the Grantee
to the other not less than one year prior to the end of the initial
franchise term, or any extension thereof, the terms and conditions
of such franchise may be subject to renegotiation for an additional
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. If such renegotiation does not result in the grant by
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 transmitting
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.
1
2
3
4
5
6
7
8
9
10
11
12
13
o 14
00in «J 8 15
-o 2f&il "ie;* 17CIALI
o
I 18
I 19
20
21
22
23
24
25
26
27
28
original cost with no value assigned to the franchise.
(k) In the event of any holding over after expiration
or other termination of any franchise granted hereunder, without
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.
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 saic
ninety days, or unless:
(1) Wichin ninety days after his election or appointment,
such receiver or trustee shall have fully complied with all the
provisions of this chapter and remedied all defaults thereunder;
and
(2) Such receiver or trustee, within said ninety days
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.
5.28.080 Applications for franchise.
(a) Each application for a franchise to construct, operate:
or maintain any cable television systems in the City of Carlsbad
shall be filed in a form prescribed 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; .
(3) The names and addresses of any parent or sub-
sidiary of the applicant, namely, any other business entity
10.
1
2
4
5
6
7
8
9
10
11
12
13
3 14
i § 15
1" <i&ii 16
l£>£
"5 2 3u: • 3<
i-> Sgi§i is
> t K 1Q<<•*•'
5 20
21
22
23
24
25
26
27
26
"o;^ 17
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;
(6) A statement identifying and describing any
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.
(b) A detailed description of the proposed plan of oper-
ation of the applicant shall also be filed which shall include,
but not be limited to, the following:
(1) A detailed map indicating all areas proposed to
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
11.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
|fei| 16
= G|| 17
|| I < 18
52 ^§>£ c 19
m •
o 20
21
22
23
24
25
26
27
28
PQ
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.
(e) The application shall be filed with a fee in the
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.
The Grantee shall pay to the City Clerk a sum of money
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.
(g) Upon receipt of any application for franchise, the
Council shall refer the same to the City Manager who shall prepare
a report and make his recommendations respecting such application,
12.
1
oil
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
m"^ 17
t>»*
2S8g 18
0 O " ™
*£ g 19
G 20
21
22
23
24
25
26
27
28
on
and cause the same to be completed and filed with the Council with-
in one hundred^twenty days.
(h) In making any determination hereunder as to any
application the Council may give due consideration to the quality
of the service proposed, rates to subscriber, experience, character
background and financial responsibility of any applicant, and its
management and ov/ners, technical and performance quality of
equipment, willingness and ability to meet construction and
physical requirements, and to abide by policy conditions, franchise
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 considerations
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:
(1) The Council shall decide and specify the terms
and conditions of any franchise to be granted hereunder and as
herein provided;
(2) The Council shall pass a resolution of intention
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 :
(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.
13.
05 _INCENT F. BIONDO, JR.'ORNEY - CITY OF CARLS1200 ELM AVENUE.SBAD, CALIFORNIA 92008< "
G
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5.28.090 Bonds required. Upon being granted a franchise and
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 this chapter,or of such
franchise, then there shall be recoverable jointly and severally
from the principal and surety any damages or loss or costs suffered
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 satisfied
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
14.
DQCO
ui O
.1
2
3
' 4
5
6
7
8
9
10
11
12
1
14
.c « 15
S=<
§°Ii 16
5oǤ 17
§ 18
I 19
20
21
22
23
24
25
26
27
28
Oft
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:
(1) General comprehensive liability insurance in the
amount of $2,000,000;
(2) Bodily injury liability insurance in the amount not
less than $300,000, resulting from any one occurrence;
(3) Property damage liability insurance in an amount not
less than $100,000, resulting from any one occurrence;
(4) In lieu of the insurance required by Subsections-. (2)
and (3), Grantee may provide a combined single limits policy
for bodily injury and property damage of not less than $500,000.
The City shall be named as an additional insured in any
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:
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
15.
2
3
4
5
6
7
8
9
10
11
12
13
14
.2 1 15
"3 5
foil 16
1^2CI
i-fc
o
17
|S 18
19
20
21
22
23
24
25
26
27
28
chapter, or in such franchise, or otherwise specified as herein
provided.
(b) The written acceptance shall be filed by the Grantee
not later than 12:01 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, remedies
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.
(e) Any franchise granted and accepted under this chapter
shall be in lieu of any and all other rights, privileges, powers,
immunities and authorities owned, possessed, controlled or
exercisable by the Grantee of cr pertaining to the construction,
operation or maintenance of any cable television systems in the
City.
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.
(d) Any such franchise shall be a privilege to be held
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 transferee
must show financial responsibility as determined by the Council
and must agree to comply with all provisions of this ordinance,
16.
-> o «,
QU.-I
00 n ~iW « —J«•': IS
O
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
|§ 18
19
20
21
22
23
24
25
26
27
28
and provided, 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 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
"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.
(f) Any right or power in, or duty impressed upon, any
officer, employee, department or board cf the City she'll be sub-
ject to transfer by the City to any other officer, employee,
department or board of the City.
.(g) The Grantee shall have no recourse whatsoever against
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.
(i) Any such franchise granted shall not relieve the
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.
(j) Any franchise granted hereunder shall be in lieu of
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
17.
m _to s
z£ 8 d8i~Sf 2 3> k tc.Is
o
3
4
5
6
7
8
9
10
11
12
13
14
! 15
16
17
18
19
20
21
22
23
24
25
26
27
28
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.
(b) There is hereby reserved to the City every right and
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.
(c) Neither the granting of any franchise nor any pro-
vision hereof shall constitute a waiver or bar to the exercise
of any governmental right or power of the City.
(d) The Council may do all things which are necessary
and convenient in the exercise of its jurisdiction nnder 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 compromise 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 interest 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 and determination. 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.
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
18.
Q
CD
(C K< 0)
O rf
z P
O
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
l&ll 16
^£ 17r < t
O -5 -d
^ uj O
z ^ 8 Q noUJ Z C4 ^ J-O
O flC *~ en
^ 19
5
20
21
22
23
24
25
26
£7
28
application for a franchise previously received.
(c) 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.
(d) Provided the same to not materially alter the content
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 stating
or describing the rules or regulations or standards to be adopted,
amended, modified, deleted 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.
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. 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.
Any rule or regulation or standard as adopted, amended,
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.
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.).
If the rates are established prior to a hearing on the
award of a franchise pursuant to Section 5.28.060, the procedures
of subsection (c) of this section shall apply. In the alternative
the rates may be established as a part of the hearing on the
franchise award. Once established, such rates or charges shall not
be changed at any time after granting of a franchise, except after
due notice and hearing as provided herein.
19.
•
a
m
NCENT F. BIONDO. JR.•ORNEY - CITY OF CARLS1200 ELM AVENUE.SBAD, CALIFORNIA 92008> < <
t °o
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
(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 granting 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 anc
place certain when and where any persons having any interest there-
in may appear and be heard.
The City Clerk shall cause such notice to be published
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 any adjournment
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 all or part of the proposed change in
20,
o-
CD
VINCENT F. BIONDO, JR.' ATTORNEY • CITY OF CARLS1200 ELM AVENUECARLSBAD, CALIFORNIA 9200EP
o
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
•
27
28
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 detrimental
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:
(1) The quality of service being provided by Grantee;
(2) The rates and charges prevailing for other
systems operating in the San Diego County area and other comparable
areas;
(3) The nature, number and status of subscriber
complaints regarding service;
(4) The extent to which Grantee is current in all
obligations to the City under this chapter and his franchise;
(5) The term for which the -changed rates will be
effective.
(d) Neither the Council nor the Grantee shall, as to
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.
5.28.180 Accounting standards.
(a) All financial reports prepared for the City by the
Grantee and all records maintained by the Grantee shall conform
to generally accepted accounting principles applied on a consistent
and fair basis. All financial reports requested by the City for
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 City may accept, reject or modify
the treatment of said transactions for purposes of approval of
rates and charges.
(c) To determine the reasonableness of accounting
assumptions and treatment, the City may refer to generally accepted
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.
5.28.190 Annual financial report. Grantee shall file an
annual financial report reflecting the operations of the Carlsbad
21.
•
Q
mw g
~j flc CM*? < o>CENT F. BIONDO, JiRNEY - CITY OF C1200 ELM AVENUEBAD, CALIFORNIA52 3
* <
o
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
system only and shall contain the following documents:
(1) Balance sheet.
(2) Income statement.
(3) Cash flow statement.
(4) Statement of sources and applications of funds.
(5) Detailed supporting schedules of expense, income,
assets and other items as may be required.
(6) Statement of current and projected subscribers and
penetration.
The Grantee's accounting records applicable to the Carlsbad
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.
5.28.200 Permits and construction.
(a) Within thirty days after acceptance of any franchise
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 operation
of cable television systems, or associated microwave transmission
facilities.
In connection therewith, copies of all petitions, appli-
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.
(b) Within ninety days after obtaining all necessary
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-
22.
p'feil
It $2
"^si"• u! O
cc
5
o
I
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
2 £ 8 D T RUJ Z M ^ J.O
Ml ^19
20
21
22
23
24
25
26
27
28
on
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, experiences
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 Section 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 delay
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.
(e) Grantee shall utilize existing poles, conduits and
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 conduits
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.
(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 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.
(g) In those areas of the City where the transmission or
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
23.
IONDO,ITY OFAVENUEIFORNIACIo
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
"-'^2
i'S i § 18
19
20
21
22
23
24
25
26
27
28
29
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 ground.
(h) The Grantee at his expense shall protect, support,-.
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, waterpipes, power line,
signal line, transportation facilities, tracks 01 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.
(j) In the event that the use of any part of the system
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.
24.
OT
«r- * ""S Spu. Si
s o
Z O w
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
f*i| 16
5 t < - -17O ^ -J -L i
18
19
20
21
22
23
24
25
26
27
28
5.28.210 Additional franchise provisions.
(a) A franchise granted to provide service within the
City shall authorized and permit the Grantee to solicitf sell,
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.
(b) A franchise, easement, license or other permit
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.
(c) No franchise granted under this chapter shall ever
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,
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 ordinancesr rules, regulations"
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.
Any privilege claimed under any franchise granted pursuant
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.
Grantee also shall be subject to the provisions of general
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
highways.
(e) Grantee shall be prohibited from directly or indirect-
ly doing any of the following:
(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;
(2) 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
25.
PO
o2
u
§e*s
-V§s
0
i
2
3
4
5
6
7
8
9
10
11
12
13
14
15
I'll 16
17
z >» 8 o -] nUJ Z CM «( -LO
O ^ "~ CD- 8 !3> . 19
20
21
22
23
24
25
26
27
28
determination by Grantee of the quality of its signal to the
recipients thereof;
(3) Soliciting, referring or causing or permitting
the solicitation or referral of any subscriber to persons engaged
in any business herein prohibited 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.
(f) If the Federal Communications Commission or the
Public Utilities Commission of the State of California or any other
federal or state body or agency shall now or hereafter exercise
any paramount jurisdiction over the subject matter of any franchise
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 specified
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 be con-
tractual in nature and to be-for the benefit of the City.
(g) When not otherwise prescribed herein, all matters
herein required to be filed with the City shall be filed with the
City Clerk.
(h) No person, firm or corporation within the service
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.
(i) Before providing cable television service to any
subscriber, the Grantee shall provide a written notice to the sub-
scriber substantially as follows:
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,
26.
CD
CO
o 8
to
1
2
3
4
5
6
7
8
9
10
11
12
13
14
*« s 15S; < o»
gfcif '16
Ms«3|3 17"•V-S
5 ^ 1 § 18
| 19o
20
21
22
23
24
25
26
27
28
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 subscriber
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.
(b) The Grantee shall take affirmative action to ensure
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 Affirmative
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.
(d) The Grantee shall incorporate the foregoing require-
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.
(e) The Grantee shall post in conspicuous places, avail-
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.
(f) The Grantee shall, in all solicitations, advertise-
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.
27.
o
m3(C
o
u.O
3
1
I
O
'<•*
1
LU<
i z
iu U
8 o£ <mto_j
trs
*.
1
2
5
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5.28.230 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.
(b) In the event that its service to any subscriber is
interrupted for forty-eight or more 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 twenty percent rebate of the monthly
fees to affected subscribers.
(c) In the event that the system fails to meet any per-
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.
(e) For failure to begin service to subscribers or
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.
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 for 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
28.
>
O<CO</>
*$VINCENT F. BIONDO, JCITY ATTORNEY - CITY OF C1200 ELM AVENUE*•
00§s
. CARLSBAD, CALIFORNIA•*• »
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
on
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:
29
1
2
3
4
5
6
7
8
9
10
11
AYES; Councilmen Frazee, Chase, Lewis, Skotnicki and
Councilwoman Casler
NOES: None
ABSENT: None
ROBERT C E, Wayor
ATTEST :
MARGARET E. ADAMS, tity Clerk
(SEAL)
ffi3
DC
§y
o
o cc -z p
o
.1.3
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
30