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Ordinance chapter · Lincoln, California

CHAPTER 5.36 - LICENSING OF CABLE TELEVISION SERVICES

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Chapter 5.36 - Cable Television#

5.36.010 - Purposes.#

The purposes of this chapter include, but are not limited to, the promotion of the general health, safety and welfare of the citizens of the city of Lincoln as follows:

  1. Establishing a plan for the licensing of cable television ("CATV") services within the city;
  2. Promoting competition in CATV services among providers so that the residents of the city will benefit from the lowest possible price for CATV service;
  3. Providing for the equal and uniform provision of CATV services throughout the city, so that all residents of the city, regardless of income or minority status, have equal access to CATV services;
  4. Insuring that city property, as defined in this chapter, is protected from physical damage;
  5. To regulate the operations of licensees for the purpose of protecting and promoting the public health, peace, safety and welfare.

The provisions of this section shall not be deemed to confer any right upon a licensee which is not otherwise conferred by another express provision of this chapter.

(Ord. 747B §3(part), 2003)

5.36.020 - Definitions.#

As used in this chapter, the following terms, phrases, and words shall be ascribed the following meanings, unless the context indicates otherwise. The word "shall" is mandatory, and the word "may" is permissive. Words not defined in this chapter shall be given their common and ordinary meanings, consistent with the context in which such words are used and the purposes of this chapter.

"Cable television system" or "CATV system" means a system of antennae, cables, wires, lines, towers, waveguides, or other conductors, converters, amplifiers, headend equipment, master controls, earth stations, equipment and facilities designed and constructed for the purpose of producing, receiving, transmitting, amplifying and distributing audio, video and other forms of electronic or electrical signals within the city, some part or portion of which occupies the city property as defined in this chapter.

"City" means the city of Lincoln and its constituent bodies, officers and employees.

"City property" includes all property in which the city has an ownership interest, either in fee, by easement, by dedication, by implication, by lease, or by other legal means. It includes, but is not limited to, streets, easements, rights-of-way, buildings and unimproved property.

"Gross revenues" mean any and all revenue received by the licensee from the operation of the CATV system to provide cable service within the city, excluding, however:

  1. Any taxes, fees or assessments of general applicability collected by the licensee from its customers for pass-through to a government agency, including the FCC user fee; or
  2. Any PEG amounts recovered from customers.

Gross revenues shall include licensee fee revenue, noncash revenue, and an affiliate's cable-related revenues, where such revenues would be ordinarily generated in the operation of a CATV system used to provide cable services within the city. It is the intent of this definition that, within the exceptions set forth above, "gross revenues" shall be as broad a term as is permitted by law.

"License" means a permit issued to a licensee by the city which allows the person, firm, or entity to whom the license is issued the right to use city property for the installation and maintenance of a CATV system in accordance with the conditions and standards specified in this chapter.

"Licensee" means the person, firm, or entity holding a valid CATV license issued under the provisions of this chapter.

"Service activation plan" means the schedule of providing CATV services to individual customers.

"Telecommunications Act" means that portion of federal statute regulating the delivery of cable television systems and services, specifically Title VI of the Communications Act of 1934, as amended (47 U.S.C. §521, et seq.).

(Ord. 747B §3(part), 2003)

5.36.030 - License or franchise required.#

Except as otherwise provided by this Code, or by state or federal law, city property shall not be occupied by or used for a CATV system except under:

  1. A license issued pursuant to the provisions of this chapter; or
  2. A franchise issued pursuant to the provisions of Chapter 5.20 of this Code.

(Ord. 747B §3(part), 2003)

5.36.040 - Relationship to Chapter 5.20.#

(a) Notwithstanding anything in this Code, including, but not limited to, Chapter 5.20 of this Code, to the contrary, a licensee pursuant to the provisions of this chapter shall not be required to obtain a franchise pursuant to Chapter 5.20 of this Code, nor shall a franchisee pursuant to Chapter 5.20 of this Code be required to obtain a license pursuant to this chapter. Any person desiring to operate a new CATV system must obtain either a license pursuant to this chapter or a franchise pursuant to Chapter 5.20 of this Code, but such person may choose either regulatory scheme.

(b) Any franchisee pursuant to Chapter 5.20 of this Code may, at his or her option and in lieu of seeking renewal of the franchise, apply for a license pursuant to this chapter.

(c) This chapter is intended to provide an equivalent level of service and benefit to the city, its citizens and the customers of the cable television system as would a franchise issued pursuant to Chapter 5.20 of this Code.

(Ord. 747B §3(part), 2003)

5.36.050 - Licensee option to make payments; equivalence determinations.#

(a) With respect to the provisions of Section 5.36.340 of this chapter regarding connection to governmental facilities, the licensee at its sole option may choose to provide an equivalent in-lieu payment to the city in-lieu of the requirements of this chapter. The amount of the in lieu payment shall be determined by the city council following a noticed public hearing. No such optional in-lieu payment shall be used as a credit against the license fee required by this chapter.

(b) In any case in which a determination of the equivalency of regulations or requirements under this chapter and Chapter 5.20 of this Code is required, such determination shall be made by the city council. Such determination shall be legislative.

(Ord. 747B §3(part), 2003)

5.36.060 - Utility poles.#

No license issued under this chapter shall be deemed to expressly or impliedly authorize the licensee to utilize above ground poles owned by any public utility or any publicly regulated private utility. A licensee shall obtain the permission of the owner of any utility pole to utilize the same.

(Ord. 747B §3(part), 2003)

5.36.070 - Private property.#

No license issued under this chapter shall be deemed to expressly or impliedly authorize the licensee to enter on, or install any part of the CATV system on, any privately owned property without the express consent of the owner of such property.

(Ord. 747B §3(part), 2003)

5.36.080 - Notices.#

All notices and other writings authorized or required by this chapter to be sent shall be deemed to have been given and served when deposited in the United States Mail, first class postage prepaid, and addressed to the address provided in the application made pursuant to this chapter in the case of a notice to a licensee or to the city manager at city hall, 640 Fifth Street, Lincoln, California in the case of a notice to the city.

(Ord. 747B §3(part), 2003)

5.36.090 - Authority.#

It is declared that the provisions of this chapter are enacted pursuant to the authority conferred on the city by the California Constitution and the State Legislature to exercise police powers for the general health, safety, and welfare of the residents of the city, including, but not limited to, Sections 53066 et seq. of the Government Code.

(Ord. 747B §3(part), 2003)

5.36.100 - Ordinances affecting license.#

All zoning and other land use ordinances, building, electrical, plumbing and mechanical codes, business license ordinances and all other ordinances of general application now in existence or hereafter enacted by the city, whether or not codified, shall be fully applicable to the exercise of any license issued pursuant to this chapter, and the licensee shall comply therewith. In the event of a conflict between the provisions of this chapter and those of an ordinance of general application, the provisions of such ordinance of general application shall prevail.

(Ord. 747B §3(part), 2003)

5.36.110 - Communications with regulatory agencies.#

Copies of all petitions, applications, communications, and reports submitted by a licensee to the FCC, or any other federal or state regulatory commission or agency having jurisdiction in respect to any matters affecting construction or operation of a CATV system or cable services provided through such a system, shall be filed simultaneously with the city clerk. Copies of responses or any other communications from the regulatory agencies to a licensee likewise shall be filed immediately on receipt with the city clerk.

(Ord. 747B §3(part), 2003)

5.36.120 - Possessory interest taxation.#

Any license issued pursuant to this chapter may result in a possessory interest in favor of the licensee which may subject the licensee to property taxation. The licensee, as the party in whom the possessory interest is vested, shall pay all property taxes levied upon that interest.

(Ord. 747B §3(part), 2003)

5.36.200 - Application for license.#

Applications for a license shall be made upon a form or format approved by the city manager.

(Ord. 747B §3(part), 2003)

5.36.210 - Contents of application.#

Applications for a license shall include such information as shall be required by the city manager in order for the city to make an informed judgment as to whether to grant a license. The application requirements shall include at least the following:

  1. The identity of the applicant;
  2. Evidence that the applicant has sufficient liability insurance to protect the interests of the city and its citizens from any bodily harm and/or property damage resulting from the operations of the licensee as set forth in article VII of this chapter;
  3. Evidence that the applicant will be able to file with the city a surety bond, or similar security instrument, in an amount of not less than $250,000.00, which will protect city property from a failure of the licensee to repair any damage to city property or private property occasioned by its operations;
  4. A service activation plan (SAP) utilizing census tract or similar demographic data that demonstrates that the applicant will provide CATV service throughout the city on a basis that does not discriminate against lower income or minority residents. Such a plan shall provide, among other things, which subareas of the city will be served in what sequence and over such period of time; provided, however, that unless otherwise authorized by the city council the SAP shall provide for complete activation of CATV service throughout the entire city within not more than five years.

(Ord. 747B §3(part), 2003)

5.36.220 - Application fee.#

Upon submitting an application for a license, or for the renewal or transfer of a license, an applicant shall submit an application fee deposit in the amount of $5,000.00. Applicants shall pay the full cost of the city's review of an application for issuance or renewal or a license, including the cost of any consultants or attorneys reasonably retained by the city. In the event that the city's cost of reviewing an application is less than the deposit, the city shall refund the difference. In the event that the city's cost of reviewing an application is greater than the deposit, the applicant shall pay the difference to the city prior to the issuance of the license.

(Ord. 747B §3(part), 2003)

5.36.230 - Issuance of license upon meeting conditions.#

(a) The city manager shall forward to the city council each application for a CATV license. The city council shall determine whether the conditions of this chapter are met and, if so, it shall issue the license.

(b) Granting of a license and the associated required construction permits are ministerial and are determined to be an exempt project for purposes of the California Environmental Quality Act pursuant to Public Resources Code Section 21080(a) and CEQA Guidelines Section 15268. The applicant shall be responsible for the city's cost of preparing and filing a notice of exemption, the cost for which shall be paid from the application fee deposit.

(c) No license shall be issued to any applicant who:

  1. Materially misrepresents any information on the license application or otherwise to the city in the course of pursuing a license;
  2. Fails to provide all information required by this chapter or as requested by the city manager;
  3. Is unable to demonstrate the ability to provide insurance as provided by article VII of this chapter or to provide a surety bond or other security instrument regarding the repair of city or private property;
  4. Who has been previously issued a license that has been terminated pursuant to article VIII of this chapter, or who has a financial interest in any such terminated license.

(Ord. 747B §3(part), 2003)

5.36.240 - Duration of license.#

A license granted under this chapter shall be valid for a period of five years, which shall be automatically extended for an additional ten years if the licensee has completed construction under its approved SAP.

(Ord. 747B §3(part), 2003)

5.36.250 - Universal service.#

Any CATV system licensed pursuant to the provisions of this chapter shall provide equal and uniform cable television service and rates, charges and fees throughout the city to all dwelling units which it serves, provided that a licensee shall be free to offer and/or charge non-uniform rates, charges and fees, consistent with federal law, to those customers or potential customers where:

  1. Cable television services are then presently available from another cable television provider offering such services pursuant to a franchise, license or other authorization issued by the city; and/or
  2. Promotional offers are offered with a reduced or waived rate, charge, or fee not to exceed 12 months for any customer for any given offer.

5.36.300 - Technical standards.#

Each licensee shall construct, install and maintain its CATV system in a manner consistent and in compliance with all applicable laws, ordinances, construction standards, governmental requirements, and technical standards. In any event, the CATV system shall not endanger or interfere with the safety of persons or property within the city.

(Ord. 747B §3(part), 2003)

5.36.310 - Public, educational and governmental access and interconnect.#

(a) Every CATV System licensed pursuant to the provisions of this chapter shall provide up to five video channels for public, educational and governmental (PEG) access pursuant to the provisions of the Communications Act §611 (47 U.S.C. 531) to customers whose signal, from inception through delivery, passes through any equipment or device which is located on city property. The PEG channels shall be assigned by the city in its sole discretion as public, educational or governmental. PEG channels may, in the city's sole discretion and to the extent permitted by law, be utilized for intranet purposes, provided, however, that the city shall not sell or lease capacity on the PEG channels except to other governmental agencies (including schools). PEG channel(s) shall be active on the CATV system within 60 days of receiving notice from the city to activate such channel.

(b) The city may operate the PEG channels directly or contract with outside entities (including the licensee) to do so. All PEG channels shall be carried by the licensee on its least expensive tier of services, including its basic tier or lifeline services.

(c) In the event that the licensee is providing services beyond the corporate limits of the city, it shall limit the distribution of the PEG channels to the city unless the city authorizes wider distribution. The city may designate one or more of the PEG channels to be shared with other governmental entities for regional programming purposes. The licensee shall provide regional interconnection of its CATV system to adjoining or neighboring jurisdictions within the region and shall carry such PEG content originating in regional systems or other cable television systems within the city as the city may designate. Provided, however, that the licensee shall not be bound by these interconnection requirements if interconnection is impractical or infeasible due to the refusal of other cable operators to share equitably in the cost of interconnection. Any denial of interconnection by a licensee shall be subject to the reasonable review and reversal of the city council.

(d) The licensee shall be responsible for providing and maintaining at least two programming sources for each PEG channel, at locations within the city designated by the city manager.

(e) The licensee shall not gain any ownership rights to any of the content required to be carried over the PEG channels by this section by reason of the requirement to carry or broadcast such content.

(Ord. 747B §3(part), 2003)

5.36.320 - Support for use of access.#

Nothing contained in this chapter shall be construed to limit the authority of the licensee to make payments in support of the use of the CATV system for public, educational and/or governmental purposes. However, such payments are expressly not a requirement of any license granted hereunder and shall in no event be considered in the calculation of license fees pursuant to this chapter.

(Ord. 747B §3(part), 2003)

5.36.330 - Availability of access facilities.#

Use of facilities of the licensee for public, educational and governmental access on the CATV system pursuant to Section 5.36.310 of this chapter shall be made available, without rental, deposits, or any other charge whatsoever, for use 24 hours per day, seven days a week in connection with the production of public, educational and/or governmental access programming cablecast upon the CATV system. A licensee shall:

  1. Allow all persons and entities desiring to cablecast public, educational and/or governmental access programming to produce programming upon and electronically interface directly with the CATV system of licensee so as to effectively cablecast the public, educational and/or governmental access programming, or, in the alternative;
  2. Establish such reasonable rules and procedures, designed to promote the utilization of such public, educational and/or governmental access programming and subject to the approval of the city council, which approval shall not be unreasonably withheld, whereby the licensee shall accept and cablecast such public, educational and/or governmental access programming upon the cable television system as shall be provided to the licensee by such persons and entities.
  3. Make all reasonable efforts to coordinate the cablecasting of public, educational and/or governmental access programming upon the cable television system at the same time and upon the same channel designations as such programming is cablecast upon other cable television systems with the city.

(Ord. 747B §3(part), 2003)

5.36.340 - Connection to government facilities.#

(a) A licensee shall provide a connection of its basic tier of video service (including, without limitation, all PEG channels) to every local governmental facility (whether county, city, school district, or special district) without cost to the government owner or operator of the facility. This requirement shall apply to any newly-constructed or newly-acquired facility during the term of the license, and licensee shall provide connections to such newly-constructed or acquired facilities within 90 days of a notice to do so from the city. The service required by this section shall be provided without cost during the entire term of the license. Nothing in this chapter shall prevent the licensee from agreeing to provide additional services and connections to those same facilities.

(b) In the event that licensee shall build a network capable of providing high speed access to the Internet or other nonvideo services, licensee shall, to the extent permitted by law, provide such services to every local governmental facility in the city without cost to the government owner or operator of the facility. This requirement shall apply to any newly-constructed or newly-acquired facility during the term of the license, and licensee shall provide connections to such newly-constructed or acquired facilities within 90 days of a notice to do so from the city. The service shall be provided without cost during the entire term of the license. Nothing in this chapter shall prevent the licensee from agreeing to provide additional services and connections to those same facilities.

(Ord. 747B §3(part), 2003)

5.36.350 - Use of licensee facilities by the city.#

Except as prohibited or regulated by state or federal law, the city shall have the right, free of charge, to make additional use, for public purposes only, of any poles, conduit, or similar facilities erected, controlled or maintained exclusively by or for the licensee on any city property, provided that such use does not interfere with the use of the same by the licensee.

(Ord. 747B §3(part), 2003)

5.36.400 - Dwelling units.#

As used in this chapter, the term "dwelling units" means residential living facilities, as distinguished from temporary lodging facilities such as hotel and motel rooms and dormitories, and includes single-family residential units and individual apartments, condominium units, mobile homes within mobile home parks, and other multiple-family residential units.

(Ord. 747B §3(part), 2003)

5.36.410 - Use of streets—Interference.#

Each CATV system, including wires and appurtenances, shall be located and installed and maintained so that none of the facilities endanger or interfere with the lives or safety of persons, or interfere with any improvements the city, or other governmental agency, may deem proper to make, or unnecessarily hinder or obstruct the free use of the streets or other public property. All transmission and distribution structures, lines and equipment erected or installed by a licensee within the city shall be so located as to cause minimum interference with the rights and reasonable convenience of property owners who adjoin any of the streets or other public property.

(Ord. 747B §3(part), 2003)

5.36.420 - Permits and approvals.#

During the term of each license, in advance of occupying, working upon or otherwise utilizing any city property, the licensee shall apply for and obtain from the director of public works a permit which authorizes the licensee to do so. The director of public works, under administrative regulations adopted by him, shall limit the use of the amount of public property as necessary to:

  1. Insure that the requirement to provide universal CATV service within the city on a

5.36.430 - Construction standards.#

(a) It is the duty of a licensee to insure that all public property occupied by the licensee, and any private property occupied by the licensee as permitted by private landowners, to be restored, at the sole cost of the licensee, to a condition as close as is reasonably possible to the condition as it existed prior to any construction activity undertaken by the licensee in the installation of a CATV system.

(b) The director of public works shall adopt administrative regulations relating to the installation and maintenance of the CATV system installed by a particular licensee, which shall include, but not be limited to:

(1) A general timeline for construction throughout the city vis-a-vis the various residential areas;

(2) The number of dwelling units and/or other facilities that may be served under a single permit and the level of completion necessary under one permit before authorization to construct under another permit will be granted;

(3) The manner in which existing utility poles will be utilized for installation where no underground utility service is currently available;

(4) The manner in which improved city streets and easements will be physically utilized, including, but not limited to:

a. Whether trenching or boring should be utilized in a particular location,

b. The manner and method of backfilling trenches to insure the integrity and appearance of pavement;

(5) How notice will be provided to affected residents prior to the start of construction;

(6) A method for handling citizen complaints in an expeditious manner;

(7) Safety procedures during construction, including handling traffic detours;

(8) Handling of incidents where construction disrupts existing utility services;

(9) Parking of equipment and storage of materials during the construction process.

(Ord. 747B §3(part), 2003)

5.36.440 - Undergrounding.#

(a) Except as permitted by the director of public works where existing utility poles can be used for a CATV system in areas of the city which lack underground utilities, each licensee shall construct and install the various components of its CATV system underground. Amplifier boxes and pedestal mounted terminal boxes may be placed above ground if existing technology reasonably requires, but shall be of such size and design and shall be so located as not to be unsightly or unsafe.

(b) When an area of the city is served by utility poles and that area converts to underground utilities, it shall be the responsibility of the licensee, at its sole cost, to relocate its CATV facilities in a common underground facility along with other utility providers.

(Ord. 747B §3(part), 2003)

5.36.450 - Relocation.#

If during the term of a license the city, or any public entity owning and operating utility facilities within the city, reasonably requires that the CATV facilities of a licensee be moved to accommodate the needs of the city or other public entity in the delivery of utility services, the licensee shall relocate such facilities to a location to be determined by the director of public works at the sole cost of the licensee.

(Ord. 747B §3(part), 2003)

5.36.460 - Tree trimming.#

No licensee shall remove or trim any tree without the express written consent of the director of public works as to trees on city property or without the express written consent of the owner of any private property on which a tree is located.

(Ord. 747B §3(part), 2003)

5.36.470 - Building permits requiring temporary relocation.#

Each licensee shall, upon the request by any person holding a permit or license issued by the city to build, demolish, or move any building or structure, to temporarily remove, raise or lower its CATV facilities to accommodate the necessary construction activity. The expense incurred by the licensee shall be paid by the person requesting the accommodation and a licensee may require such payment in advance. A licensee shall be given not less than 48 hours of the need for such accommodation.

(Ord. 747B §3(part), 2003)

5.36.480 - Removal of CATV facilities; No further use of facilities.#

(a) Upon the expiration or termination of a license, a licensee shall either convey its CATV facilities to another licensee or remove all of its above ground CATV facilities within 30 days after the expiration or termination of the license. A licensee may remove only those underground CATV facilities as do not require any digging, trenching, or other physical disturbance of city property.

(b) No installed CATV facilities may be used by a former licensee for cable television service after the license has expired or has been terminated.

(Ord. 747B §3(part), 2003)

5.36.490 - Enforcement of licensee conditions.#

(a) The director of public works shall enforce all provisions of this chapter and of any administrative regulations adopted pursuant to this chapter pertaining to the installation and maintenance of CATV facilities by a licensee.

(b) If a licensee fails to comply with any written directive to do, or cease doing, any activity regulated by this chapter from the director of public works within five business days, the director may take such steps as are reasonably necessary to effectuate compliance, including, but not limited to:

(1) Stopping the construction activity of the licensee;

(2) Revoking any permit under which the licensee is then installing CATV facilities;

(3) Utilizing city forces, equipment and materials to remediate any situation which poses an imminent threat to the health, safety, and welfare of the residents of the city; provided that the licensee shall be responsible for reimbursement to the city of all costs reasonably incurred;

(4) Recommending to the city council revocation of the license.

(Ord. 747B §3(part), 2003)

5.36.500 - System ownership.#

Legal and equitable title to the CATV system, including any and all facilities and equipment provided for public, educational and governmental access, and all channels of whatever kind or nature shall be vested in the licensee.

(Ord. 747B §3(part), 2003)

5.36.510 - Anti-competitive practices.#

No license issued pursuant to the provisions of this chapter shall be deemed to expressly or impliedly authorize the licensee to utilize its CATV system to provide any service in such a manner as to unlawfully damage any business competitor or other third party or violate any statutes or regulations of the United States or state of California. Nor shall any licensee, by act or omission, engage in any anti-competitive practice in violation of any statutes of regulations of the United States or state of California. The provisions of this section shall be enforceable in courts of competent jurisdiction against a licensee by any party who alleges injury as a result of an alleged violation thereof.

(Ord. 747B §3(part), 2003)

5.36.520 - Discrimination in service provided.#

No licensee shall deny service, deny access or otherwise discriminate against customers on the basis of race, sex, sexual preference, gender, national origin, religion or political affiliation.

(Ord. 747B §3(part), 2003)

5.36.530 - Privacy.#

Subject to federal and state law, each licensee shall operate in such a manner as to protect the privacy of its customers, including, but not limited to, the following:

(1) Neither the licensee nor any other person, agency, or entity shall tap, or arrange for the tapping or monitoring of any cable, line, signal input device, or customer outlet or receiver for any purpose whatsoever, except that the licensee may conduct tests of the functioning of the system where necessary in order to ensure proper maintenance of the system and to collect performance data for agencies regulating the quality of signals, and the licensee may conduct system-wide or individually addressed "sweeps" for the sole purpose of verifying system integrity (including individual security system integrity), controlling return path transmissions, billing for pay services, or collecting aggregate data on viewing patterns by channel.

"Tapping" means observing a communications signal exchange where the observer is neither of the communicating parties, whether the exchange is observed by visual, aural or electronic means, for any purpose whatsoever. The provision of interactive service shall not be construed to be "tapping" or "monitoring" under this section.

(2) The licensee shall not place in any dwelling unit or other facility any equipment capable of two-way communications without the written consent of the customer, and shall not utilize the two-way communications capability of the system for customer surveillance of any kind without the written consent of the customer specifying how the data collected will be used and by whom. Tenants who occupy premises connected by the CATV system shall be deemed to be customers within the meaning of this section regardless of who actually pays for the service. The written consents shall be, and shall show on their face that they are, revocable by the customer at any time by written communication mailed by the customer to the licensee. No penalty shall be invoked for a customer's failure to provide a written consent or for his or her revocation thereof, and all written consents shall so state on their face. The licensee shall not make such written consent a condition precedent to receipt by a customer of noninteractive service. The provisions of this section shall not be deemed to require consent as a condition precedent to system-wide or individually addressed "sweeps" for the sole purpose of verifying system integrity, controlling return-path transmissions, billing for pay services, or collecting aggregate data on viewing patterns by channel.

(3) No cable, line, wire, amplifier, converter, or other piece of equipment associated with CATV services shall be attached to any residence or other private property without first securing the written permission of the owner or tenant of the property. If such permission is later lawfully revoked, whether by the original or subsequent owner or tenant, the licensee shall remove forthwith all of the equipment and promptly restore the property to its original condition. The licensee shall perform all installations in a workmanlike manner and shall be responsible for any damage to residences or other property caused by the installation.

(4) No licensee or officer, agent or employee thereof shall sell, or otherwise make available, lists of the names and addresses of its customers, or any list which identifies, by name or otherwise individual subscriber viewing habits, to any person, agency, or entity for any purpose whatsoever except that the licensee shall, upon request, provide lists of names and addresses of its customers to authorized representatives of the city so that the city may enforce the conditions of any license or the provisions of this chapter. Names and addresses of customers within the possession of the city shall not be subject to public inspection or review.

(5) A licensee may release the number of customers, but only as a total number and as a percentage of the potential customers within the city or any given area within the city. When indicating the number of customers viewing a particular channel, a licensee shall indicate only the total number of customers viewing during the relevant time and, the percentage of all customers which they represent, but not the identity of any customer.

(6) No polls or other two-way responses of customers shall be conducted whether for commercial purposes, in connection with community use, or otherwise unless the program of which the poll is a part contains an explicit disclosure of the nature, purpose, and prospective use of the results of the poll. The licensee shall supervise and monitor all polls in which responses are received through the CATV system, and shall adopt and enforce measures which ensure that personally identifiable information concerning a customer, including his or her viewing habits and response or responses to the inquiry or inquiries, is not received by any third party, including the party sponsoring the poll.

(7) A licensee shall not tabulate any test results, nor permit the use of the system of such tabulation, which would reveal the commercial product preferences or opinions of individual customers, members of their families or their invitees, licensees or employees, without advance written authorization by the customers.

(Ord. 747B §3(part), 2003)

5.36.540 - Nondiscrimination.#

No licensee shall discriminate in employment or selection of contractors or subcontractors on any basis prohibited by state or federal law.

(Ord. 747B §3(part), 2003)

5.36.600 - License fees.#

For the use of city property each licensee shall pay license fees in the amount prescribed by Section 5.36.610 of this chapter.

(Ord. 747B §3(part), 2003)

5.36.610 - Amount and payment of license fees.#

(a) During the term of each license, each licensee shall pay to the city an amount equal to five percent per year of the licensee's annual gross revenue.

The fees shall be paid quarterly not later than August 1, November 1, February 1, and May 1 for the preceding three-month period ending, respectively, June 30, September 30, December 31 and March 31. Not later than the date of each payment, each licensee shall file with the city manager a written statement signed under penalty of perjury by an officer of the licensee which identifies in detail the sources and amounts of gross revenues received by a licensee during the quarter for which payment is made.

(b) No acceptance of any payment shall be construed as an accord that the amount paid is, in fact, the correct amount, nor shall such acceptance of payment be construed as a release of any claim which the city may have for further or additional sums payable under the provisions of this section.

(Ord. 747B §3(part), 2003)

5.36.620 - Interest on delinquent license fees.#

Any license fees which remain unpaid after the dates specified in Section 5.36.610 of this chapter shall be delinquent and shall thereafter accrue interest at the maximum legal rate until paid. As used in this section, the maximum legal rate shall be that rate set forth in Section 685.010 of the California Code of Civil Procedure, as amended from time to time, or any successor California statue establishing the rate interest accrues for money judgments.

(Ord. 747B §3(part), 2003)

5.36.630 - Accounting standards.#

Not less than annually, the licensee shall provide the city with an unqualified certification of an independent certified public accountant certifying the accuracy of the quarterly license fee payments paid within the preceding 12 months pursuant to Section 5.36.610 of this chapter. The certification shall be prepared in accordance with generally accepted accounting standards as established by the financial accounting standards board (FASB).

(Ord. 747B §3(part), 2003)

5.36.640 - Auditing and financial records.#

(a) The director of finance may, from time-to-time during the term of a license prescribe accounting standards and procedures for reporting CATV service gross revenue. During the term of each license, the city may, not more frequently than once each year, conduct an audit of the books, records and accounts of the licensee for the purpose of determining whether the licensee has paid license fees in the amounts prescribed by Section 5.36.610 of this chapter.

(b) The audit may be conducted by director of finance or by an independent certified public accounting firm retained by the director of finance and shall be conducted at the sole expense of the city. The party conducting the audit shall prepare a written report containing its findings, and the report shall be filed by the city manager.

(c) Each licensee shall make available for inspection by authorized representatives of the city its books, accounts, and all other financial records at reasonable times and upon reasonable advance notice for the purpose of permitting exercise of the authorities conferred by this section.

(Ord. 747B §3(part), 2003)

5.36.700 - Indemnification.#

(a) Each licensee shall defend, indemnify and hold harmless the city, its officer, agents, employees, representatives and volunteers from any and all claims, demands, suits, causes of action, damages, costs, expense, losses or liability, in law or in equity, of every kind and nature whatsoever ("claims"), arising out of or in connection with licensee's operations under this chapter, including, but not limited to:

(1) Injury or death to persons, including, but not limited to, licensee's officers, agents, contractors or employees, or damage to property, including loss of use, caused or alleged to be caused in whole or in part by any act or omission of licensee, its officers, agents, contractors, employees, or representatives or anyone for whose acts licensee may be liable;

(2) Injury or damage arising out of invasion of the right of privacy, libel, slander, defamation of any person, firm or corporation, or the violation or infringement of any copyright, patent, service mark, trademark, trade name, or of any other right of any person, firm or corporation;

(3) Injury or damage arising out of anti-competitive practices alleged against the licensee;

(4) Claims, damages or penalties arising out of licensee's failure to comply with the provisions of any statute, regulation or ordinance of the United States, state of California or any local agency applicable to the licensee in its business;

(5) Injury or damage arising out of licensee's failure to comply with the provisions of this chapter relating to procurement and maintenance of insurance;

(6) Injury or damage arising out of licensee's failure to fulfill any of the covenants set forth in this chapter;

(7) Claims, causes of action, proceedings, and judgments, including reasonable attorneys' fees and other reasonable defense costs, arising out of any allegation that the license granted pursuant to this chapter is inconsistent with or fails to meet the requirements of Government Code Section 53066 et seq. or any other state law or the Telecommunications Act of 1996, or any other federal law.

(b) Licensee shall pay and satisfy any judgment or decree that may be rendered against the city, its officers, agents, employees or representatives, or any of them, arising out of any such claims.

(c) Licensee shall reimburse the city, its members, their officials, agents, employees or representatives, for any and all legal expense incurred by any of them in connection herewith or in enforcing the indemnity granted in this section.

Indemnitees may, at their discretion, participate in the investigation and defense of any claims or litigation brought against them at any time, using legal counsel of their choice, and such expense shall be borne solely by licensee. Such participation shall not relieve licensee from its duty to defend, indemnify and hold harmless indemnitees as set forth in this section.

(d) The indemnification obligations of licensee set forth in this section shall apply regardless of any act or omission of the city, its officials, agents, employees, representatives or volunteers which may have contributed to the injury or damage, to the maximum extent allowed by California law.

(Ord. 747B §3(part), 2003)

5.36.710 - Licensee insurance.#

(a) Each licensee shall file with the application which it files pursuant to the provision of Section 5.36.210 of this chapter, and at all times thereafter maintain in full force and effect at its sole expense, the following insurance:

(1) General Liability. General liability insurance including, but not limited to, protection for claims of bodily injury and property damage liability, personal and advertising injury liability, and products and completed operations liability. Coverage shall be at least as broad as insurance services office commercial general liability coverage form GG 0001 (occurrence). The limits of liability shall be not less than:

Coverage Limit
Each occurrence $5,000,000.00
Personal and advertising injury $5,000,000.00
General aggregate $2,000,000.00
Products and complete operations aggregate $2,000,000.00

The policy shall cover contractual liability applicable to the licensee's assumed liability under this contract.

(2) Automobile Liability. Automobile liability insurance providing protection against claims of bodily injury and property damage arising out of ownership, operation, maintenance, or use of owned, hired, and non-owned automobiles. Coverage shall be at least as broad as insurance services office automobile liability coverage form CA 0001, symbol 1 (any auto). The limits of liability shall not be less than:

Coverage Limit
Bodily injury and property damage combined single limit $1,000,000.00

If general liability coverage, as required in subsection (a)(1) of this section, is provided by the commercial general liability form, the automobile liability policy shall include an endorsement providing automobile contractual liability.

(3) Workers' Compensation. Workers' compensation insurance, with coverage as required by the state of California (unless the licensee is a qualified self-insurer with the state of California), and employers liability coverage. The limits of employer's liability shall not be less than:

Coverage Limit
Each accident $1,000,000.00
Disease each employee $1,000,000.00
Disease policy limit $1,000,000.00

(4) Excess or Umbrella Liability. Excess or umbrella liability providing excess coverage at least as broad as the underlying coverage for general liability, automobile liability and employers liability with a limit of $4,000,000.00 per occurrence and in the aggregate.

(b) The licensee's general liability, automobile liability, and excess or umbrella liability policies, shall contain the following provisions:

(1) The city, its officers, agents, employees, representatives and volunteers, shall be covered as additional insureds as respects liability arising out of the activities performed by or on-behalf of the licensee, products and completed operations of the licensee, premises owned, occupied, or used by the licensee, or automobiles owned, leased, hired, or borrowed by the licensee. The policy shall contain no special limitations on the scope of coverage afforded to the commission, its members, their officials,

Chapter 5.36 - Cable Television Franchise (Continued)#

5.36.710 - Insurance Requirements (Continued)#

(b) Insurance Policy Requirements (Continued)#

(1) The licensee's insurance coverage shall include the city, its officers, agents, employees, representatives or volunteers as additional insureds.

(2) The licensee's insurance coverage shall be primary insurance as respects the city, its officers, agents, employees, representatives or volunteers. Any insurance or self-insurance maintained by city, its officers, agents, employees, representatives or volunteers shall be excess of the licensee's insurance and shall not contribute with it.

(3) Any failure to comply with reporting or other provisions of the policies on the part of the licensee, including breaches of warranties or unintentional misrepresentations, shall not affect coverage provided to the city, its officers, agents, employees, representatives or volunteers.

(4) The licensee's workers' compensation and employer's liability policies shall contain an endorsement that waives any rights or subrogation against the city, its officials, agents, employees, representatives or volunteers.

(5) Each insurance policy shall state that coverage shall not be suspended, voided, canceled by either party, reduced in scope or in limits, nonrenewed, or materially changed unless the insurer provides 30 days advance written notice by certified mail to the city manager prior to such change. The insurer shall provide ten days advance notice by certified mail to the city manager in the event of cancellation due to nonpayment of premium.

(6) All of the licensee's insurance coverage, except as noted below, shall be placed with insurance companies with a current A.M. Best's rating of at least A-VII.

Exceptions:

a. Underwriters at Lloyd's of London;

b. Workers' compensation which is provided through a State Compensation Insurance Fund;

c. Licensee's qualified workers' compensation self-insurance under California law.

(7) The city will accept licensee's self-insurance of its general or automobile liability risks only if the licensee has a minimum net worth of at least $10,000,000.00.

(8) The licensee shall furnish the commission with certificates of insurance, including copies of all endorsements specifically required hereunder, signed by a person authorized by the insurer to bind coverage on its behalf, as evidence of the coverage required by this section.

(9) For unforeseen risks, the city, at its discretion, may increase the amounts and types of insurance coverage required hereunder at any time during the term of the contract by giving written notice to the licensee. Licensee shall immediately procure such insurance or increase the amounts of insurance coverage, and provide certificates of insurance as required in subsection (b)(8) of this section.

(10) The form and substance of the insurance required of the licensee shall be subject to the approval of city attorney. Any acceptance of insurance certificates by the city shall in no way limit or relieve licensee of licensee's duties and responsibilities set forth in this chapter.

(11) The failure of the city to enforce in a timely manner any of the provisions of this section shall not act as a waiver to enforcement of any of these provisions at any time during the term of the franchise.

(Ord. 747B §3(part), 2003)

5.36.720 - Waiver of Subrogation#

Each licensee shall cause each insurance policy obtained by it to provide that the insurance company waives all right of recovery by way of subrogation against the city and its officers, agents, employees, representatives or volunteers in connection with any damage covered by any policy, whether for nonpayment of premium, or otherwise, and whether at the request of the licensee or for other reasons, except after 30 calendar days advance written notice mailed by the insurer to the city manager.

(Ord. 747B §3(part), 2003)

5.36.800 - Transfers Prohibited#

(a) Except as otherwise expressly provided in this chapter, all, or substantially all, of the assets of the licensee's CATV system shall not be sold, transferred, assigned, mortgaged, pledged, leased, sublet or otherwise encumbered for any purpose whatsoever, nor shall title thereto, either legal or equitable, or any right or interest therein pass to or vest in any party without the prior written consent of the city. Such consent of the city shall not be unreasonably withheld.

(b) A license issued pursuant to the provisions of this chapter shall not, either in whole or in part, be sold, transferred, assigned, mortgaged, pledged, leased, sublet, or otherwise encumbered for any purpose whatsoever; nor shall title thereto, either legal or equitable, or any right or interest therein, pass to or vest in any party, nor shall there be any transfer or change of control of the license without the prior written consent of the city. Such consent of the city shall not be unreasonably withheld.

Any such sale, transfer, assignment, mortgage, pledge, lease, sublease or other encumbrance of whatever kind or nature made in violation of the provisions of this section shall be void.

As used in this section, "transfer or change of control" shall mean the acquisition of sufficient dominance to determine the operational and financial policies of the licensee, including, but not limited to, the disposition of its assets. The word "control" as used in this section is not limited to major stockholders or financial interests, but also includes actual working control in whatever manner exercised, and includes, but is not limited to, (i) the acquisition of accumulation by any party or association of parties of ten percent or more of the voting shares or stock of the licensee or named owner of the licensee; (ii) a change in general partners of a licensee or named owner of the licensee; or (iii) a merger or consolidation of the licensee or named owner of the licensee.

(Ord. 747B §3(part), 2003)

5.36.810 - Termination of License#

The following material breaches of the obligation of a licensee under a license shall constitute grounds for termination of a license by the city:

(1) Any violation of Section 5.36.800 of this chapter;

(2) The failure to make any disclosure of fact within the application for the license which is required by this chapter, or the misrepresentation of such a fact in the application, or to the city in the process of applying for a license;

(3) The willful failure to make any payments required by Section 5.36.310 of this chapter; or

(4) The failure to comply with the provisions of the service activation plan submitted pursuant to Section 5.36.210 of this chapter having to do with activation of the licensee's CATV system for the entire city; or

(5) Any other act or omission by the licensee which materially violates the terms, conditions or requirements of this chapter or any order, directive, rule or regulation issued or adopted hereunder, and which is not corrected or remedied within the period specified in the written notice to the licensee of the violation.

(Ord. 747B §3(part), 2003)

5.36.820 - Commencement of Termination Proceedings#

The city council shall not determine that a license shall be terminated upon grounds identified by Section 5.36.810 of this chapter, until a hearing has been conducted upon the matter. Written notice of the time, date and place of the hearing shall be mailed to the licensee not later than 30 calendar days in advance of the date of commencement of the hearing. The notice shall state the reasons for the hearing, describe the basis for termination, and identify the terms, conditions or requirements with respect to which the breach has occurred.

The hearing may be conducted either by the city council or by a hearing officer appointed by the city council to conduct the hearing. Any such hearing officer shall be an attorney licensed to practice under the laws of the state of California.

The cost of providing facilities for the hearing, the compensation for the hearing officer, if any, and the per diem cost of any stenographic reporter retained to record the proceedings shall be borne by the city. The costs incurred by the parties for attorneys' fees, expert witness fees and other expenses shall be borne solely by the party incurring the costs.

(Ord. 747B §3(part), 2003)

5.36.830 - Conduct of Hearing#

(a) All witnesses testifying at the hearing concerning termination shall be sworn. Witnesses shall be subject to direct and cross-examination. However, formal rules of evidence applicable to the trial of civil or criminal proceedings in the trial courts of this state shall not be applicable to the hearing. The provisions of the Administrative Procedure Act, commencing at Section 11500 of the California Government Code, or any successor legislative enactment, shall not be applicable to any such hearing. The hearing may be continued from time to time.

If the hearing is conducted by a hearing officer, the officer shall, upon conclusion of the hearing, prepare a recommended decision which includes findings of fact and conclusions. The recommended decision shall be filed with the city clerk and mailed to the parties not later than 30 calendar days after conclusion of the hearing, unless the parties agree to extend such time. Upon receipt of such a recommended decision, the city council may, without a hearing except as otherwise required below, either:

(1) Adopt the recommended decision, including findings of fact and conclusions, submitted by the hearing officer;

(2) Adopt the findings of fact and conclusions contained in the recommended decision, modify the decision, and adopt the decision as so revised;

(3) Based upon the record of the hearing, modify the findings of fact, conclusions or decisions, and adopt the decision as so revised; or

(4) Reject the recommended decision and conduct a new hearing.

(b) If the hearing is conducted by the city council, upon conclusion of the hearing, the city council shall adopt a decision which includes findings of fact and conclusions.

(c) If the decision by the city council is that there are grounds for termination of the license and that the license shall be terminated, the city council shall adopt a resolution which terminates the license and includes its decision. The effective date of termination shall be such date as is prescribed by the city council within its sole discretion, in the resolution.

(d) Review of the actions of the city council under this section must be venued in the Superior Court of Placer County and are limited to the remedies provided in Code of Civil Procedure Section 1094.5 (Administrative Mandamus), subject to the limitation for filing an action within the time prescribed in Code of Civil Procedure Section 1094.6.

(Ord. 747B §3(part), 2003)

5.36.840 - Alternative Remedies; Licensee Remedies#

(a) No provision of this chapter shall be deemed to bar the right of the city to seek or obtain judicial relief from a violation of any provision of the license documents or any rule, regulation, requirement or directive promulgated thereunder. Neither the existence of other remedies identified in this chapter nor the exercise thereof shall be deemed to bar or otherwise limit the right of the city for such violation by the licensee, or judicial enforcement of the licensee's obligations by means of specific performance, injunction relief or mandate, or any other judicial remedy at law or in equity.

(b) No provision of this chapter shall be deemed to affect the right otherwise existing in law, if any, of a licensee to seek or obtain judicial relief from the enforcement of any provision of this chapter or any rule, regulation, requirement or directive promulgated thereunder, nor shall any provision of this chapter be construed to create such a right.

(c) As provided by federal law, an action by a licensee is limited to nonmonetary damages.

(Ord. 747B §3(part), 2003)

5.36.850 - Nonenforcement#

A licensee shall not be relieved of any obligation to comply with any of the provisions of the license or any rule, regulation, requirement or directive promulgated under this chapter by reason of any failure of the city to enforce prompt compliance.

(Ord. 747B §3(part), 2003)

5.36.860 - City Powers#

Except as otherwise expressly provided in this chapter, the city shall, to the full extent permitted by applicable law, be authorized to regulate all CATV operations and services provided by a licensee for the purpose of promoting and protecting the public convenience, health, safety and welfare. The regulatory powers of the city council shall include, but not be limited to, the authority to interpret, clarify, make specific and apply the provisions of this chapter and to enact rules and regulations which impose specific duties or prohibitions for the purpose of implementing the duties, responsibilities and restrictions set forth in this chapter or such duties, responsibilities and restrictions as may be authorized to be imposed by state or federal enactments. The foregoing shall include, but not be limited to, consumer protection regulations and, to the extent now or hereafter allowed by state and federal law, rate regulation. Each licensee shall comply with all such rules and regulations.

(Ord. 747B §3(part), 2003)