Subject to the provisions of this section and the authority reserved by Section 5.28.1320 of this chapter, a franchisee shall be deemed to be vested with a contractual right and duty to provide those home educational and entertainment services identified in its application.
It is understood that with respect to home educational and entertainment programming on either the subscriber or institutional networks, tier arrangements, premium services, and program selection and content which a franchisee has elected to propose in its application are among the material factors which are considered in selecting the franchisee. The hierarchy of programming arranged within tiers of service, and placement of premium programs therein as shown by the application, cost relationships between tiers of service (other than basic service) to the extent an operator includes such rates in its application, and number of channels within tiers and programming thereon also constitute material factors considered in selection.
It is also understood that changing circumstances, including marketing strategy, program availability and other factors, will require that programming identified in the franchisee's application pursuant to Section 5.28.1280 of this chapter, will be changed from time to time during the term of the franchise.
Therefore, a franchise shall be authorized to alter the allocation of channels to tiers of service and home educational and entertainment programming from time to time during the term of the franchise from that identified in its application and provided at the times defined by subsections (A)(2), (3) and (4) of Section 5.28.950 of this chapter; provided that no such change shall materially reduce or eliminate programming of the nature, extent, volume or quality identified in the application or provided at the above times or materially alter the hierarchy of program relationships identified by the application or provided at the above times. A franchisee shall be authorized to move particular premium services from one tier of service to another during the term of a franchise if with respect to a specifically identified premium service, the application clearly shows that the franchisee has placed the premium service in a particular tier only for purposes of illustration, and reserves the right, in its sole discretion, to place the premium service in any tier which it elects from time to time during the term of the franchise.
If at any time the board of directors of the cable television commission asserts that a franchisee has violated the provisions of this section it shall be authorized to mail to the franchisee written notice of its demand for arbitration. The notice shall specify the particulars underlying the board's assertions.
If arbitration is requested, the arbitration panel shall be selected, the hearing scheduled within the time prescribed, notice given, the hearing conducted, decision made and costs divided in the manner prescribed by Sections 5.28.1920 through 5.28.1970 of this chapter. The discovery provisions of the California Arbitration Act (Code of Civil Procedure, Section 1280, et seq.) shall be applicable to arbitration proceedings under this section. The questions which may be submitted to the arbitration panel and jurisdiction of the arbitration panel shall be limited to the following:
A. The interpretation of the provisions of the franchise documents solely in relation to the decision required by subsection B of this section;
B. Determination of whether the franchisee has materially reduced or eliminated programming of the nature, extent, volume or quality identified in its application or provided at the times defined by subsections (A)(2), (3) or (4) of Section 5.28.950 of this chapter, or materially altered the programming relationships between tiers of service identified by the application or provided at the above times; and
C. In the event of an affirmative determination under subsection B of this section, the remedy, which may include, but is not limited to, the reallocation of channels among tiers of service, the reallocation of programming among tiers of service, increases of particular types of programming or reinstatement of terminated programming.
The arbitration award may be judicially enforced, shall be final, binding and conclusive upon the parties and shall not be subject to judicial review or vacation except on grounds set forth in Section 1286.2 of the Code of Civil Procedure. (Prior code § 20.06.510)