A. The purpose of this Section is to authorize the imposition of penalties for the violation of the consumer service standards established in §§ 11.21.300, 11.21.305, 11.21.310 and 11.21.315, in accordance with the Video Customer Service Act (Cal. Gov’t Code §§ 53088 et seq.). These penalties are in addition to any other remedies provided by this Chapter, the franchise agreement, or any other law, and the City has the sole discretion to elect the remedy that it will apply. The imposition of penalties authorized by this Section will not prevent the City or any other affected party for exercising any other remedy to the extent permitted by law, including but not limited to any judicial remedy as provided below.
B. The City Manager is authorized to administer this Section. Decisions by the City Manager to assess penalties against the grantee must be in writing and must contain findings supporting the decision. Decisions by the City Manager are final, unless appealed to the City Council.
1. If the grantee or any interested person is aggrieved by a decision of the City Manager, the aggrieved party may, within ten (10) days of the written decision, appeal that decision in writing to the City Council through the City Clerk's office. The fee established by the City Council for processing the appeal must accompany the appeal letter. The City Council may affirm, modify, or reverse the decisions of the City Manager.
2. The following schedule of monetary penalties may be assessed against the grantee for the material breach of the provisions of the consumer service standards set forth above, provided that the breach is within the reasonable control of the grantee.
a. The maximum penalty is two hundred dollars ($200) for each day of material breach, but not to exceed six hundred dollars ($600) for each occurrence of the material breach.
b. For a second material breach of the same nature within a twelve (12) month period for which the City has provided notice and a penalty has been assessed, the maximum penalty is four hundred dollars ($400) for each day of the material breach, but not to exceed one thousand two hundred dollars ($1,200) for each occurrence of the material breach.
c. For a third material breach of the same nature within a twelve (12) month period for which the City has provided notice and a penalty has been assessed, the maximum penalty is one thousand dollars ($1,000) for each day of the material breach, but not to exceed three thousand dollars ($3,000) for each occurrence of the material breach.
3. The maximum penalties referenced above shall be increased by any additional amount authorized by state law.
C. This Section does not preclude any affected party from pursuing any judicial remedy available to that party without regard to this Section.
D. Any penalty assessed under this Section will be reduced dollar for dollar to the extent any liquidated damage provision of a franchise imposes a monetary obligation on a franchisee for the same customer service failures, and no other monetary damages may be assessed. A citation may be served on the franchisee by providing a copy to the person to whom notices are to be sent under the franchise. Penalties will be imposed pursuant to procedures set forth in the municipal code, applied in a manner consistent with Cal. Gov’t Code § 53088(2)(q) and (r).
E. Notwithstanding any other penalties or remedies provided by this Section, the franchise agreement, or any other law, the grantee must provide the following months of free service to subscribers affected by the grantee's failure to comply with the specified consumer protection and service standards:
1. One month free service. The grantee will provide one month of free service to each subscriber affected by the failure of the grantee to timely and satisfactorily comply with any of the following requirements:
a. The pickup or replacement of converters or other equipment within fourteen (14) days after subscriber request is received.
b. Forty-eight (48) hour notice of service interruption.
c. Response time for system outages.
d. Resolution of cable system related problems within three (3) business days. One additional month of free service will be provided for each seven (7) day period that the problem remains unresolved.
e. Written response to billing complaints.
f. Credits and refunds.
g. Provisions of all required information to subscribers.
h. Notification of rate, service, or channel changes.
i. Completion of termination or downgrade of service.
j. Provision of parental control devices.
k. Provisions of customer privacy rights.
2. Three months free service. The grantee will provide three (3) months of free service to each subscriber affected by the grantee's disconnection of subscriber service without just cause, provided that the grantee fails to restore service within four (4) hours after the disconnect.
3. Definition of free service. The free service required by this Section relates to the service tier subscribed to by the affected subscriber at the time of the failure to comply.
F. Each franchise agreement shall contain a provision specifying liquidated damages payable to the City in the event of a significant material breach of a franchise obligation where damages are otherwise difficult to ascertain. Nothing in this Section shall preclude the addition of liquidated damages to the penalties otherwise contained herein.
(Ord. No. 2001-014 § 2; Ord. No. 2006-009 § 22 (part))