At the time of issuance of any franchise under the provisions of this chapter, it will be impractical to reasonably ascertain the total extent of damages which may be incurred as a result of the breach by the franchisee of its obligations under the franchise documents as prescribed by Section 5.28.1810 of this chapter. The provisions of Section 5.28.1810 of this chapter, shall apply in the event of breach as liquidated damages therefor. Factors relating to the impracticality of ascertaining damages include, but are not limited to, the following:
A. The facts that:
1. The primary damage resulting from breaches by the franchisee of the schedules for construction and extension of the cable television system and provision of services prescribed by Sections 5.28.920 through 5.28.990, 5.28.1020 through 5.28.1060 and 5.28.1150 of this chapter, and of the duty prescribed pursuant to Section 5.28.1470 of this chapter, will be to members of the public who are denied services or denied quality or reliable services,
2. Such breaches cause inconvenience, anxiety, frustration and deprivation of the benefits of the franchise to individual members of the general public in subjective ways and in varying degrees of intensity which are incapable of measurement in precise monetary terms,
3. That services might be available through the cable television system which are both necessary and available at a substantially lower cost than alternative services, and the monetary loss resulting from denial of services or denial of quality or reliable services is impossible to calculate in precise monetary terms, and
4. Termination of a franchise for such breaches and other remedies are, at best, a means of future correction, and not remedies which make the public whole for past breaches,
B. The fact that the failure of a franchisee to make timely reports identifying its progress in installing its cable television system within service areas will make it difficult in ways which are not measurable for the commission to administer the construction schedule, delay initiation of enforcement proceedings, and impede compliance with the periods allowed for construction; and
C. The fact that the failure of a franchisee to file timely annual reports will deny information necessary to enable the commission to expeditiously, effectively and efficiently, administer the franchise and exercise its regulatory powers in relation thereto for the promotion and protection of the public convenience, health, safety and welfare.
Without the provisions of Section 5.28.1810 of this chapter, the actual damages for which a franchisee would be liable could greatly exceed the specified amount of liquidated damages. Therefore, the provisions of Section 5.28.1810 of this chapter, are of benefit to a franchisee. (Prior code § 20.10.802)