(A) Authority and findings.
(1) In accordance with applicable federal and state law, the city is authorized to grant one or more nonexclusive franchises to construct, reconstruct, operate, and maintain cable television systems within the city limits.
(2) The City Council finds that the development of cable television services may provide significant benefits for, and substantial impacts upon, the residents of the city. Because of the complex and rapidly changing technology associated with cable television, the City Council further finds that the public convenience, safety, and general welfare can best be served by establishing regulatory powers to be exercised by the city. This section is intended to specify the means for providing to the public the best possible cable television services, and every franchise issued in accordance with this section is intended to achieve this primary objective. It is the further intent of this section to adopt regulatory provisions that will enable the city to regulate cable television services to the maximum extent authorized by federal and state law.
(B) Franchise terms and conditions.
(1) Franchise purposes. A franchise granted by the city under the provisions of this section may authorize the grantee to do the following:
(a) To engage in the business of providing cable television services that are authorized by law and that the grantee elects to provide to its subscribers within the designated franchise service area.
(b) To erect, install, construct, repair, rebuild, reconstruct, replace, maintain, and retain cable lines, related electronic equipment, supporting structures, appurtenances, and other property in connection with the operation of the cable system in, on, over, under, upon, along and across streets and public rights-of-way within the designated franchise service area.
(c) To maintain and operate the franchise properties for the origination, reception, transmission, amplification, and distribution of television and radio signals, and for the delivery of cable services and such other services as may be authorized by law.
(2) Franchise required.
(a) It is unlawful for any person to construct, install or operate a cable television system within any street or public right-of-way in the city without first obtaining a franchise under the provisions of this § 5.14.020.
(b) The City Council finds and determines that certain multi-channel video programming distributors and video providers, as those terms are defined in § 5.14.050, provide cable service, including video programming, to subscribers within limited geographic areas where multi-family dwelling complexes and congregate-living complexes are located. That cable service, including video programming, is sometimes provided, in whole or in part, by the transmission of signals over wires or lines that are owned or controlled by telecommunications service providers or other public utilities and that are within or cross streets or public ways within the boundaries of a local franchising authority. The multi-channel video programming distributor or video provider may obtain from the telecommunications service provider or other public utility, by lease, license, or similar contractual arrangement, the right to use those wires or lines in order to provide cable service, including video programming, to subscribers or customers within the multi-family dwelling complexes and congregate-living complexes referenced above. The City Council further finds and determines that these contractual arrangements for signal transmission facilitate the provision of cable service, including video programming, and create a nexus between that cable service and the use of the streets and public rights-of-way of the city. Consequently, to the maximum extent authorized under California law, it is the intent of the City Council to subject multi-channel video programming distributors and video providers that intend to use this signal transmission methodology to the franchise requirements set forth in this § 5.14.020, subject to such waivers and modifications of those requirements as may, in the discretion of the City Council or its designee, be warranted in view of the limited geographic area that is proposed to be served.
(3) Term of the franchise.
(a) A franchise granted under this § 5.14.020 will be for the term specified in the franchise agreement, commencing upon the effective date of the resolution adopted by the City Council that authorizes the franchise.
(4) Franchise service area. A franchise is effective within the territorial limits of the city, and within any area added to the city during the term of the franchise, unless otherwise specified in the resolution granting the franchise or in the franchise agreement.
(5) Federal or state jurisdiction. This § 5.14.020 will be construed in a manner consistent with all applicable federal and state laws, and it applies to all franchises granted or renewed after the effective date of this chapter, to the extent authorized by applicable law.
(6) Franchise non-transferable.
(a) The grantee may not sell, transfer, lease, assign, sublet, or dispose of, in whole or in part, either by forced or involuntary sale, or by ordinary sale, contract, consolidation, or otherwise, the franchise or any of the rights or privileges therein granted, without the prior written consent of the City Council and then only upon such terms and conditions as may be prescribed by the City Council, which consent may not be unreasonably denied or delayed. Any attempt to sell, transfer, lease, assign, or otherwise dispose of the franchise or any of the rights or privileges therein granted, without the written consent of the City Council, is null and void. The granting of a security interest in any assets of the grantee, or any mortgage or other hypothecation, will not be deemed a transfer for the purposes of this subsection.
(b) The requirements of subsection (a) above apply to any change in control of the grantee. The word "control" as used herein is not limited to the ownership of major stockholder or partnership interests, but includes actual working control in whatever manner exercised. If the grantee is a partnership or a corporation, prior written authorization of the City Council is required where ownership or control of 25% or more of the partnership interests or of the voting stock of the grantee, or any company in the tier of companies controlling the grantee, whether directly or indirectly, is acquired by a person or a group of persons acting in concert, none of whom, individually or collectively, owns or controls those partnership interests or that voting stock of the grantee, or of the grantee's upper tier of controlling companies, as of the effective date of the franchise.
(c) The grantee must give prior written notice to the city of any proposed foreclosure or judicial sale of all or a substantial part of the grantee's franchise property. That notification will be considered by the city as notice that a change in control of ownership of the franchise will take place, and the provisions of this paragraph that require the prior written consent of the City Council to that change in control of ownership will apply.
(d) For the purpose of determining whether it will consent to an acquisition, transfer, or change in control, the city may inquire as to the qualifications of the prospective transferee or controlling party, and the grantee must assist the city in that inquiry. In seeking the city's consent to any change of ownership or control, the grantee or the proposed transferee, or both, must complete Federal Communications Commission Form 394 or its equivalent. This application must be submitted to the city not less than 120 days prior to the proposed date of transfer. The transferee must establish that it possesses the legal, financial, and technical qualifications to remedy all then existing defaults and deficiencies, and, during the remaining term of the franchise, to operate and maintain the cable system and to comply with all franchise requirements. If the legal, financial, and technical qualifications of the proposed transferee are determined to be satisfactory, then the city will consent to the transfer of the franchise.
(e) Any financial institution holding a pledge of the grantee's assets to secure the advance of money for the construction or operation of the franchise property has the right to notify the city that it, or a designee satisfactory to the city, will take control of and operate the cable television system upon the grantee's default in its financial obligations. Further, that financial institution must also submit a plan for such operation within ninety days after assuming control. The plan must ensure continued service and compliance with all franchise requirements during the period that the financial institution will exercise control over the system. The financial institution may not exercise control over the system for a period exceeding one year unless authorized by the city, in its sole discretion, and during that period of time it will have the right to petition the city to transfer the franchise to another grantee.
(f) Unless prohibited by applicable law, the grantee must reimburse the city for the city's reasonable review and processing expenses incurred in connection with any transfer or change in control of the franchise. These expenses include, without limitation, costs of administrative review, financial, legal, and technical evaluation of the proposed transferee, consultants (including technical and legal experts and all costs incurred by these experts), notice and publication costs, and document preparation expenses. No reimbursement may be offset against any franchise fee payable to the city during the term of the franchise.
(7) Geographical coverage.
(a) Unless otherwise provided in the franchise agreement, grantee must design, construct, and maintain the cable television system to have the capability to pass every dwelling unit and commercial building in the city, subject to any service-area line extension requirements set forth in the franchise agreement.
(b) After service has been established by activating trunk or distribution cables for any service area, the grantee must provide service to any subscriber requesting a standard installation within that activated part of the service area within seven days from the date of request, provided that the grantee is able to secure on reasonable terms and conditions all rights-of-way and permits necessary to extend service to that subscriber within that seven-day period. “Standard installations” are defined as installations that are located up to 125 feet from the existing distribution system.
(8) Nonexclusive franchise. Every franchise granted is nonexclusive. The city specifically reserves the right to grant, at any time, such additional franchises for a cable television system that it deems appropriate, subject to applicable state and federal law. If an additional franchise is proposed to be granted to a subsequent grantee, a noticed public hearing must first be held if required under the provisions of Government Code § 53066.3.
(9) Multiple franchises. The city may grant any number of franchises, subject to applicable state and federal law. The city may limit the number of franchises granted, based upon but not necessarily limited to the requirements of applicable law and the following specific local considerations:
(a) The capacity of the public rights-of-way to accommodate multiple cables in addition to the cables, conduits, and pipes of the existing utility systems, such as electrical power, telephone, gas, and sewerage.
(b) The benefits that may accrue to subscribers as a result of cable system competition, such as lower rates and improved service.
(c) The disadvantages that may result from cable system competition, such as the requirement for multiple pedestals on residents' property, and the disruption arising from numerous excavations within the public rights-of-way.
(C) Franchise applications and renewal.
(1) Filing of applications. Any person desiring an initial franchise for a cable television system must file an application with the city. An application fee deposit in an amount established by resolution of the City Council must accompany the application. That application fee deposit will cover all anticipated costs associated with reviewing and processing the application, including without limitation costs of administrative review, financial, legal, and technical evaluation of the applicant, consultants (including technical and legal experts and all costs incurred by those experts), notice and publication requirements, and document preparation expenses. If actual costs exceed the application fee deposit, the applicant must pay the difference to the city within 30 days following receipt of an itemized statement of those costs. If actual costs are less than the application fee deposit, the remaining balance will be refunded to the applicant.
(2) Applications; contents. An application for an initial franchise for a cable television system must contain, as applicable:
(a) A statement describing the proposed franchise service area and an explanation whether this proposed service area is, or will be, a part of a larger regional cluster of franchise service areas.
(b) A resume of the applicant's prior history, including the experience and expertise of the applicant in the cable television industry.
(c) A list of the partners, general and limited, of the applicant, if a partnership, or the percentage of stock owned or controlled by each stockholder, if a closely-held corporation. If the applicant is a publicly-owned partnership or corporation, each owner of 10% or more of the partnership interests, or of the issued and outstanding capital stock, must be identified. If the applicant is a limited liability company, the following information must be provided: the address of its principal executive office; the name and business or residence address of each member and of each holder of an economic interest in the limited liability company, together with the contribution and the share in profits and losses of each member and holder of an economic interest; the name and business or residence address of any manager or managers and the chief executive officer, if any, appointed or elected in accordance with the articles of organization or operating agreement.
(d) A list of officers and directors of the applicant, together with a description of the background and qualifications of each such person.
(e) A statement specifying the number of people employed by the applicant, whether on a full-time or part- time basis.
(f) The names and addresses of any parent or subsidiary of the applicant, or any other business entity owning or controlling applicant in whole or in part, or that is owned or controlled in whole or in part by the applicant.
(g) Financial statements prepared in accordance with generally accepted accounting principles that demonstrate the applicant's financial ability to:
1. Construct, operate, maintain and remove any new physical plant that is proposed to be constructed in the city.
2. Comply with the city's public, educational, and governmental access requirements.
3. Comply with the city's requirement that franchise fees be paid on the applicant's gross revenues derived from the operation of the cable system to provide cable services.
(h) An accurate map showing the location of any existing telecommunications facilities in the city that the applicant intends to use, to purchase, or to lease.
(i) A description of the cable services and any other services that will be offered by the applicant using existing or proposed facilities.
(j) The proposed construction and service schedule, the proposed rate structure for cable services, and the proposed commitment to provide public, educational, and governmental access capacity, services, facilities, and equipment.
(k) Any additional information that the city deems to be reasonably necessary to evaluate the applicant's qualifications.
(3) Consideration of initial applications.
(a) Upon receipt of an application for an initial franchise, the City Manager or the City Manager's designee must prepare a report and make recommendations to the City Council concerning that application.
(b) A public hearing will be noticed prior to any initial franchise grant, at a time and date approved by the City Council. Within 30 days after the close of the hearing, the City Council will make a decision based upon documents and testimony received at the hearing as to whether the franchise should be granted, and, if granted, subject to what conditions. The City Council may grant one or more franchises, or may decline to grant any franchise.
(c) Franchise renewal. Franchise renewals will be processed in accordance with then-applicable law and with the renewal terms, if any, of the franchise agreement. The city and the grantee, by mutual consent, may enter into renewal negotiations at any time during the term of the franchise. Unless prohibited by applicable law, a renewal application fee deposit in an amount established by resolution of the City Council must accompany the renewal application or the renewal request. That renewal application fee deposit will cover all anticipated costs associated with reviewing and processing the renewal application, including the review of the grantee's prior compliance with the franchise, the ascertainment of the community's cable related needs and interests, the engagement of technical and legal consultants, and expenses related to negotiations and document preparation. If actual costs exceed the renewal application fee deposit, the grantee must pay the difference to the city within 30 days following receipt of an itemized statement of those costs. If actual costs are less than the renewal application fee deposit, the remaining balance will be refunded to the grantee. No renewal application fee may be offset against any franchise fee payable to the city during the term of the franchise. The City Council may authorize the renewal of a cable television franchise agreement by resolution.
(D) Contents of cable television franchise agreements.
(1) The terms and provisions of a franchise agreement for the operation of a cable television system may relate to or include, without limitation, the following subject matters:
(a) The geographical area, duration, and nonexclusive nature of the franchise.
(b) The applicable franchise fee to be paid to the city, including the amount, the method of computation, and the time for payment.
(c) Requirements relating to compliance with and implementation of state and federal laws and regulations pertaining to the operation of the cable television system.
(d) Requirements relating to the construction, upgrade, or rebuild of the cable television system, as well as the provision of special services, such as outlets for public buildings, emergency alert capability, and parental control devices.
(e) Requirements relating to the maintenance of a performance bond, a security fund, a letter of credit, or similar assurances to secure the performance of the grantee's obligations under the franchise agreement.
(f) Requirements relating to comprehensive liability insurance, workers' compensation insurance, and indemnification.
(g) Requirements relating to consumer protection and customer service standards, which requirements may include, without limitation, compliance with the statutes, rules, and regulations set forth below in division (E) of this section.
(h) Requirements relating to the grantee's support of local cable usage, including the provision of public, educational, and governmental access channels, the coverage of public meetings and special events, and financial support for public, educational, and governmental access channels.
(i) Requirements relating to the grantee's obligation to provide an institutional network, and channel capacity on that institutional network for educational or governmental use, subject to the city's rules and procedures for the use of such channel capacity and for compatibility with any telecommunications network that has been or may be developed by the city.
(j) Requirements relating to construction, operation, and maintenance of the cable television system within the city's streets and public rights-of-way, including compliance with all applicable provisions of Chapters 12.32 and 17.65 of this Code, all applicable building codes and permit requirements of the city, the abandonment, removal, or relocation of facilities, and compliance with FCC technical standards.
(k) Requirements relating to recordkeeping, accounting procedures, reporting, periodic audits, and performance reviews, and the inspection of the grantee's books and records.
(l) Acts or omissions constituting material breaches of or defaults under the franchise agreement, and the applicable penalties or remedies for those breaches or defaults, including fines, penalties, liquidated damages, suspension, revocation, and termination.
(m) Requirements relating to the sale, assignment, or other transfer or change in control of the franchise.
(n) The grantee's obligation to maintain continuity of service and to authorize, under certain specified circumstances, the city's operation and management of the cable system.
(o) Such additional requirements, conditions, policies, and procedures as may be mutually agreed upon by the parties to the franchise agreement and that will, in the judgment of city staff and the City Council, best serve the public interest and protect the public health, welfare, and safety.
(2) If there is any conflict or inconsistency between the provisions of a franchise agreement authorized by the City Council and the provisions of this chapter, the provisions of the franchise agreement will control.
(E) Consumer protection and service standards.
(1) Operational standards.
(a) The grantee must maintain the necessary facilities, equipment, and personnel to comply with the following consumer protection and service standards under normal operating conditions:
1. Sufficient toll-free telephone line capacity during normal business hours to ensure that telephone calls are answered before the fourth ring. Telephone answer time by a customer service representative, including wait time, may not exceed 30 seconds when the connection is made. If the call needs to be transferred, transfer time shall not exceed 30 seconds.
2. A caller must receive a busy signal less than 3% of the time.
3. Emergency toll-free telephone line capacity on a 24-hour basis, including weekends and holidays. After normal business hours, the telephone calls may be answered by a service or an automated response system, including an answering machine. Calls received after normal business hours must be responded to by a trained company representative on the next business day.
4. A conveniently-located local business and service or payment office open during normal business hours at least eight hours daily on weekdays, and at least four hours weekly on evenings or weekends, and adequately staffed with trained customer service representatives to accept subscriber payments and to respond to service requests, inquiries, and complaints.
5. An emergency system maintenance and repair staff, capable of responding to and repairing major system malfunctions on a 24-hour per day basis.
6. A trained installation staff must provide service to any subscriber requiring a standard installation within seven days after receipt of a request, in all areas where trunk and feeder cable have been activated.
7. The Grantee must schedule, within a specified four-hour time period Monday through Saturday (legal holidays excluded), all appointments with subscribers for installation of service, service calls, and other activities at the subscriber's location. The grantee may schedule installation and service calls outside of normal business hours for the convenience of the subscriber. The grantee may not cancel an appointment with a subscriber after the close of business on the business day prior to the scheduled appointment. If a grantee representative is delayed in keeping an appointment with a subscriber and will not be able to honor the scheduled appointment, the subscriber must be contacted prior to the time of the scheduled appointment, and the appointment must be rescheduled, as necessary, at a time that is convenient for the subscriber. The grantee must undertake appropriate quality control measures to ensure that the customer is satisfied with the work.
8. Subscribers who have experienced one missed appointment due to the fault of the grantee will receive an installation free of charge if the appointment was for an installation. If an installation was to have been provided free of charge, and for all other appointments, the subscriber will receive one month of the subscribed to service tier, free of charge. Subscribers also will be entitled to receive a free installation, or one month free service, as provided above, if the grantee fails to complete a standard installation within seven days of receiving an installation request due to its fault, its failure to schedule an appointment within a specified four-hour time period, or its failure to notify the subscriber that the grantee's representative will be late for an appointment. Subscribers who have experienced two missed appointments due to the fault of the grantee will receive two months of the subscribed-to service tier, free of charge, in addition to the free installation or free month of service provided for the first missed appointment.
9. Upon a subscriber's request, the grantee will arrange for pickup or replacement of converters or other equipment provided by the grantee at the subscriber's address within 14 days after the request is made if the subscriber is mobility-limited.
(b) Under normal operating conditions, the standards of subsections 1, 3, 6 and 7 above must be met not less than 90% of the time, measured on a quarterly basis.
(2) Service standards.
(a) The grantee will render efficient service, make repairs promptly, and interrupt service only for good cause and for the shortest time possible. Except in emergency situations, scheduled interruptions will occur during a period of minimum use of the cable system, preferably between 12:00 midnight and 6:00 a.m. Unless the scheduled interruption lasts for no more than two hours and occurs between 12:00 midnight and 6:00 a.m. (in which event 24-hours prior notice must be given to the city), 48 hours prior notice must be given to subscribers.
(b) The grantee will maintain a repair force of technicians who will respond to subscriber requests for service within the following time frames:
1. For a system outage: Within two hours, including weekends, after receiving subscriber calls or requests for service that by number identify a system outage of sound or picture on one or more channels, affecting five or more subscribers to the system.
2. For an isolated outage: Within 24 hours, including weekends, after receiving requests for service identifying an isolated outage of sound or picture on one or more channels.
3. For inferior signal quality: No later than the following business day, excluding Sundays and holidays, after a request for service identifying a problem concerning picture or sound quality.
(c) The grantee will be deemed to have responded to a request for service under the provisions of this subsection (2) when a technician arrives at the service location and begins work on the problem. If a subscriber is not home when the technician arrives, the technician must leave written notification of arrival.
(d) The grantee may not charge for the repair or replacement of defective or malfunctioning equipment provided by the grantee to subscribers, unless the defect or malfunction was caused by the subscriber.
(e) The grantee must determine the nature of the problem within 24 hours after commencing work and resolve all cable system related problems within three business days, unless technically infeasible.
(3) Billing and information standards.
(a) Subscriber bills must be clear, concise, and understandable. Bills must be fully itemized, with itemizations including, but not limited to basic and premium service charges and equipment charges. Bills also must clearly delineate all activity during the billing period, including optional charges, rebates, and credits.
(b) The first billing to a subscriber after a new installation or service change must be prorated based upon when the new or changed service commenced. Subscribers must not be charged a late fee or otherwise penalized for any failure attributable to the grantee, including the failure to timely or correctly bill the subscriber.
(c) In case of a billing dispute, the grantee must respond in writing to a written complaint from a subscriber within 30 days after receiving the complaint at the office specified on the billing statement for receiving that complaint.
(d) Upon request by a subscriber, credits or refunds must be provided by the grantee to subscribers who experience an outage, interruption, or disconnection of service of four or more consecutive hours, provided that such loss of service is neither caused by the subscriber nor attributable to scheduled repairs, maintenance, or construction in circumstances where the grantee has provided advance written notice to subscriber, and the loss of service does not exceed the time period specified by the grantee. For subscribers terminating service, credits or refunds must be issued promptly, but no later than 30 days after the return of any grantee-supplied equipment.
(e) Subject to prior review by the city, the grantee must provide written information on each of the following matters at the time of the installation of service, at least annually to all subscribers, and at any time upon request:
1. Products and services offered.
2. Prices and options for programming services and conditions of subscription to programming and other services.
3. Installation and service maintenance policies.
4. Instructions on the use of the cable service.
5. Channel positions of programming carried on the system.
6. Billing and complaint procedures, including the address and telephone number of the city's office designated for dealing with cable-related issues.
7. Consumer protection and service standards and penalties for noncompliance.
(f) Subscribers must be notified in writing of any changes in rates, programming services, or channel positions as soon as possible. Notice must be given to subscribers a minimum of 30 days in advance of those changes if the change is within the control of the grantee. In addition, the grantee must notify subscribers in writing 30 days in advance of any significant changes in the information required above in subsection (e).
(g) The grantee must maintain a public file containing all written notices provided to subscribers under these consumer protection and service standards and all published promotional offers made by the grantee to subscribers. These documents must be maintained for a minimum period of two years.
(4) Verification of compliance with standards.
(a) Upon 30-days prior written notice, the city may require the grantee to provide a written report demonstrating its compliance with any of the consumer service standards specified in this section. The grantee must provide sufficient documentation to enable the city to verify compliance.
(b) A repeated and verifiable pattern of noncompliance with the consumer protection and service standards of this section, after the grantee's receipt of written notice and an opportunity to cure, may be deemed a material breach of the franchise agreement.
(5) Subscriber complaints and disputes.
(a) The grantee must establish written procedures for receiving, acting upon, and resolving subscriber complaints without intervention by the city. The written procedures must prescribe the manner in which a subscriber may submit a complaint, either orally or in writing, specifying the subscriber's grounds for dissatisfaction. The grantee must file a copy of these procedures with the city. These procedures must include a requirement consistent with division (E)(3)(c) above.
(b) Upon request, and subject to applicable law protecting subscriber privacy rights, the city has the right to review the grantee's response to subscriber complaints.
(c) All subscribers have the right to continue receiving service so long as their financial and other obligations to the grantee are honored. If the grantee elects to rebuild, modify or sell the system, or if the city gives notice of intent to terminate or not to renew the franchise, the grantee must act so as to ensure that all subscribers receive service while the franchise remains in force.
(d) Upon a change of control of the grantee, or if a new operator acquires the cable system, the original grantee must cooperate with the city, the new grantee, or the new operator in maintaining continuity of service to all subscribers. During that transition period, the grantee is entitled to the revenues derived from its operation of the cable system.
(6) Disconnection/downgrades.
(a) A subscriber may terminate or downgrade service at any time, and the grantee must promptly comply with the subscriber's request within five days or at any later time requested by the subscriber. No period of notice prior to voluntary termination or downgrade of service may be required of subscribers. The grantee will impose no charges for the voluntary termination of service unless a visit to the subscriber's premises is required to remove a converter box or other equipment or property owned by the grantee.
(b) The grantee may disconnect a subscriber's service in compliance with paragraphs (i), (j), and (k) of Section 53088.2 of the California Government Code. If service is disconnected for nonpayment of past due fees or charges, the grantee must promptly reinstate service upon payment in full by the subscriber of all such fees and charges, including late charges.
(c) Notwithstanding the requirements of subsection (b) above, the grantee may immediately disconnect service to a subscriber if the subscriber is damaging or destroying the grantee's cable system or equipment. In the event of disconnection on such grounds, the grantee will resume service to the subscriber upon receiving adequate assurances that the subscriber has ceased the practices or conduct that resulted in disconnection and has paid all proper fees and charges, including any amounts reasonably owed the grantee for the damage caused by the subscriber.
(d) The grantee may also disconnect service to a subscriber when service causes signal leakage exceeding federal limits. If service is disconnected, the grantee will immediately resume service without charge upon the satisfactory correction of the signal leakage problem.
(e) Upon termination of service to a subscriber, the grantee will remove its equipment from the subscriber's premises within 30 days. The equipment will be deemed abandoned if it is not removed within such time period unless the grantee has been denied access to the subscriber's premises.
(7) Changes in service. Except as otherwise provided by federal or state law, subscribers must not be required to pay any additional fee or charge, other than the regular service fee, in order to receive the services selected. No charge may be imposed for any service or equipment that the subscriber has not affirmatively selected. Payment of the regular monthly bill will not by itself constitute an affirmative selection.
(8) Deposits. The grantee may require a reasonable, nondiscriminatory deposit on equipment provided to subscribers. Such deposits must be placed in an interest-bearing account. The deposit must be returned, with interest earned to the date of repayment, within 30 days after the equipment is returned to the grantee.
(9) Parental control option. The grantee must provide parental control devices to all subscribers who desire to block the video or audio portion of any programming that the subscriber finds objectionable. Such devices will be provided at no charge to the subscriber, unless otherwise required by federal or state law, or unless a converter box is required to be installed for the purpose of providing the parental control device.
(10) Additional requirements.
(a) All officers, agents, and employees of the grantee, or of its contractors or subcontractors, who, in the normal course of work come into contact with members of the public, or who require entry onto subscribers' premises, must carry a photoidentification card in a form approved by the city. The grantee must account for all identification cards at all times. All vehicles of the grantee or its subcontractors must be clearly identified as vehicles engaged in providing services for the grantee.
(b) In addition to the consumer protection and service standards specified in this § 5.14.020(E), the grantee must comply with all applicable consumer protection and service standards that are imposed upon cable operators by the following:
1. Federal statutes, and the rules, regulations, and orders of the Federal Communications Commission, including the following:
a. The provisions of 47 CFR 76.630, as it now exists or may later be amended, which relate to compatibility with consumer electronics equipment.
b. The provisions of 47 USC 551 as it now exists or may later be amended, which relate to the protection of subscriber privacy.
2. The provisions of California Government Code Sections 53054 et seq., entitled the "Cable Television and Video Provider Customer Service and Information Act."
3. The provisions of California Government Code Section 53088, et seq., entitled the "Video Customer Service Act."
4. The provisions of California Civil Code Section 1722(b)(l) through (6), which relate to service or repair transactions between cable television companies and their subscribers.
5. The provisions of California Penal Code Section 637.5, which relate to subscribers' rights to privacy protection.
(c) If there is any conflict or inconsistency between a consumer protection and service standard specified in this § 5.14.020(E) and a standard set forth in the statutes, rules, regulations, and orders that are referenced above in division (E)(10)(b) of this section, then the standard that is specified in this § 5.14.020(E) will apply to the extent authorized by applicable law.
(11) Penalties for noncompliance.
(a) Purpose. The purpose of this subsection is to authorize monetary penalties for the violation of the customer service standards established by this section in a manner consistent with the Video Customer Service Act (Government Code Sections 53088 et seq.) and pursuant to the city's inherent police powers. The imposition of penalties authorized by this division (E)(11) will not prevent the city or any other affected party from exercising any other remedy to the extent permitted by law, including but not limited to any judicial remedy as provided below in division (E)(11)(b)4.
(b) Administration and appeals.
1. The City Manager or the City Manager's designee is authorized to administer this division (E)(11). Decisions by the City Manager to assess monetary penalties against the grantee must be in writing and must contain findings supporting the decisions. Decisions by the City Manager are final, unless appealed to the City Council.
2. If the grantee or any interested person is aggrieved by a decision of the City Manager, the aggrieved party may, within ten days of the written decision, appeal that decision in writing to the City Council. The appeal letter must be accompanied by the fee established by the City Council for processing the appeal. The City Council may affirm, modify, or reverse the decision of the City Manager.
3. Schedule of penalties. The following schedule of monetary penalties may be assessed against the grantee for the material breach of the provisions of the customer service standards set forth in this section, provided that the breach is within the reasonable control of the grantee:
a. For a first material breach: the maximum penalty is $200 for each day of material breach, but not to exceed a cumulative total of $600 for each occurrence of the material breach.
b. For a second material breach of the same nature within a 12-month period for which the city has provided notice and a penalty has been assessed, the maximum penalty is $400 for each day of the material breach, but not to exceed a cumulative total of $1,200 for each occurrence of the material breach.
c. For a third or further material breach of the same nature within a 12-month period for which the city has provided notice and a penalty has been assessed, the maximum penalty is $1,000 for each day of the material breach, but not to exceed a cumulative total of $3,000 for each occurrence of the material breach.
d. The maximum penalties referenced above may be increased by any additional amount authorized by state law.
4. Judicial remedy. This paragraph does not preclude any affected party from pursuing any judicial remedy available to that party without regard to this division (E)(11).
5. Notification of breach. The city must give the grantee written notice of any alleged breach of the consumer service standards and allow the grantee at least 30 days from receipt of the notice to remedy the specified breach. For the purpose of assessing penalties, a material breach is deemed to have occurred for each day, following the expiration of the period for cure specified herein, that any breach has not been remedied by the grantee, irrespective of the number of subscribers affected.
6. Limitations. With respect to any grantee that operates under a franchise or license agreement with the city, any monetary penalties assessed under this division (E)(11) must be reduced dollar for dollar to the extent that any liquidated damage or penalty provision of the franchise or license agreement imposes a monetary obligation on the grantee for the same customer service failure, and no other monetary damages may be assessed for that customer service failure.
(Ord. 2582 § 3, 2002.)