HomeMy WebLinkAbout1178 - Community Antenna Television SystemsTHSsmec
8/15/66
ORDINANCE NO. 1178
AN ORDINANCE OF THE CITY OF NEWPORT BEACH AMENDING
CERTAIN SECTIONS OF AND ADDING CERTAIN SECTIONS T0,
CHAPTER 5.44 OF TITLE 5 OF THE NEWPORT BEACH MUNICIPAL
• CODE RELATING TO COMMUNITY ANTENNA TELEVISION SYSTEMS
The City Council of the City of Newport Beach does
ordain as follows:
SECTION 1. Section 5.44.010 of the Newport Beach Muni-
cipal Code is amended to read:
"5.44.010 Definitions. For the purpose of this
chapter, the following terms, phrases, words and their
derivations shall have the meaning given herein. When
not inconsistent with the context, words used in the
present tense include the future, words in the plural
number include the singular number, and words in the
singular number include the plural number. The word
'shall' is always mandatory and not merely directory.
(a) CITY. The term 'City' shall mean the City of
Newport Beach in its present incorporated form or in any
later recognized, consolidated, enlarged or reincorpo-
rated form.
(b) COUNCIL. The term 'Council' shall mean the
present governing body of the City, or any future board
constituting the legislative body of the City.
(c) PERSON. The term 'person' shall mean any indi-
vidual, firm, partnership, association, corporation,
company or organization of any kind.
(d) GRANTEE. The term 'grantee' shall mean the
person, firm or corporation to whom or which a franchise
under this chapter is granted by the Council, and the
lawful successor or assignee of said person, firm or
corporation.
(e) COMMUNITY ANTENNA TELEVISION. The term 'Com-
munity Antenna Television System' or 'CATV' system shall
mean a system of antennae, coaxial cables, wave guides,
poles, wires, underground conduits, manholes and other
conductors, equipment or facilities designed, constructed
or used for the purpose of providing television, radio or
other service by cable or through its facilities as herein
contemplated. CATV shall not mean or include the trans-
mission of any special program or event for which a separ-
ate and distinct charge is made to the subscriber in the
manner commonly known and referred to as pay television.
(f) SUBSCRIBERS. The term 'subscribers' shall mean
any person or entity receiving for any purpose the CATV
service of the grantee herein,
(g) GROSS ANNUAL RECEIPTS. The term 'gross annual
receipts' shall mean any and all compensation in the form
of gross rental and /or service receipts;, including initial
installation charges, received directly or indirectly from
. subscribers or users in payment for CATV services received
within the City.
Gross annual receipts shall not include any taxes on
services furnished by the grantee imposed directly on any
subscriber or used by any city, state or other governmental
unit and collected by the grantee for such governmental
unit.
(h) FRANCHISE AREA. The term 'franchise area' shall
mean the territory within the City throughout which grantee
shall be authorized to construct, maintain and operate its
system and shall include any enlargements thereof and addi-
tions thereto."
SECTION 2. Section 5.44.030 of the Newport Beach Muni-
cipal Code, is amended to read-
"5.44.030 Uses Permitted. Any franchise granted
pursuant to the provisions of this chapter shall authorize
2.
and permit the grantee to engage in the business of operating
The grantee shall have authority to trim trees upon
and overhanging streets, alleys, sidewalks and public places
of the City so as to prevent the branches of such trees
from coming in contact with the wires and cables of grantee,
all trimming to be done under the supervision and direction
of the City and at the expense of grantee.t°
SECTION 3. Section 5.44.035 is added to the Newport
Beach Municipal Code to read;
3.
and providing a CATV system in the City of Newport Beach and
for that purpose to erect, install, construct, operate, re-
pair, replace, reconstruct, maintain and retain in, on, over,
under, upon, across and along any public highway, street,
alley, public way or public place, such poles, wires, cable,
conductors, ducts, conduits, vaults, manholes, amplifiers,
appliances, attachments and other property as may be
necessary and appurtenant to the CATV system; and, in ad-
dition, so to use, operate and provide similar facilities
on properties rented or leased from other persons, firms or
corporations including, but not limited to, a public utility
or other grantee franchised or permitted to do business in
the City of Newport Beach.
The grantee shall have the authority to promulgate
such rules, regulations, terms and conditions governing the
•
conduct of its business as shall be reasonably necessary to
enable it to exercise its rights and perform its obligations
under the franchise, and to insure an uninterrupted service
to each and all of its customers; provided, however, that
such rules, regulations, terms and conditions shall not be
in conflict with the provisions hereof or of the laws of
the City of Newport Beach, the State of California or the
United States of America.
The grantee shall have authority to trim trees upon
and overhanging streets, alleys, sidewalks and public places
of the City so as to prevent the branches of such trees
from coming in contact with the wires and cables of grantee,
all trimming to be done under the supervision and direction
of the City and at the expense of grantee.t°
SECTION 3. Section 5.44.035 is added to the Newport
Beach Municipal Code to read;
3.
"5.44.035 Regulation of Rates and Service. (a) The
City Council shall at all times and from time to time during
the term of any franchise granted hereunder have the power
• to and shall adopt and enforce, and grantee shall conform to,
rules and regulations of the Council governing and establish-
ing reasonable rules, regulations, and standards of perform-
ance pertaining to the system of grantee.
(b) At the time of the granting of any franchise here-
under, the City Council shall establish or approve all rates
and charges allowable to grantee, including but not limited
to all such rates and charges for installation of equipment,
service charges for all classifications of service, including
additional connections at one location and any other rates or
charges of grantee to subscribers; and no such rates or
charges shall be changed at any time after the granting of a
franchise, except by authority of the Council, and upon writ-
ten request of the grantee; provided, that prior to author-
izing the change of any rates or charges of grantee to sub-
scribers, at any time after the granting of such franchise,
the Council shall first pass its resolution of intention to
do so, describing and stating.any.rates or charges to be
changed, the reasons of the Council therefor, fixing a day,
hour and place certain when and where any persons having any
interest therein may appear before the Council and be heard
and directing the City Clerk to publish said resolution at
least once, within fifteen (15) days of the passage thereof.
The City Clerk shall cause such resolution to be published
in a newspaper of general circulation within the City, and
the same shall be published and a copy thereof shall be mailed
to any grantee hereunder at least ten (10) days prior to the
4.
date specified
for
hearing thereon. At
the
time set
for such
hearing, or at
any
adjournment thereof,
the
Council
shall
4.
proceed to hear and pass on all presentations made before
it, and the decision of the Council thereon shall be final
and conclusive. If the Council shall find that the changing
• of any rates or charges of grantee to subscribers will not
be detrimental or injurious to the best interests and welfare
of the subscribers and of the City, then the Council may, by
resolution, authorize the change of any rates or charges of
grantee to subscribers as shall be deemed reasonable by the
Council in the premises; and such resolution shall there-
upon become and shall be a part of any franchise granted
hereunder and affected thereby."
SECTION 4. Section 5.44.040 of the Newport Beach Muni-
5.
cipal Code is amended to read:
"5.44.040 Duration of Franchise. Any franchise,
granted by the City Council pursuant to this chapter, shall
be for a term of not less than ten (10) years nor more than
•
twenty (20) years following the date of acceptance of such
franchise by the grantee or renewal thereof. Any such
franchise may be terminated prior to its date of expiration
by the City Council in the event that said Council shall
have found, after thirty (30) days' notice of proposed
termination and public hearing, that (a) the grantee has
failed to comply with any provision of this chapter, or has,
by act or omission, violated any term or condition of its
franchise or permit issued under this chapter; or (b) any
provision of this chapter has become invalid or unenforce-
able, and the Council further finds that such provision
constitutes a consideration material to the grant of said
franchise; or (c) the City acquires the CATV property of
grantee."
SECTION 5. Section 5.44.050 of the Newport Beach Muni -
cipal.Code is amended to read
5.
"5.44.050 Franchise Payments. (a) ACCEPTANCE FEE.
The grantee of any franchise granted pursuant to this
chapter shall pay to the City upon acceptance of such
• franchise a fee certain in an amount to be determined or
approved by the City Council.
(b) ANNUAL FRANCHISE FEE. The grantee of any fran-
chise under this chapter shall pay annually to the City
during the life of such franchise a fixed percentage of
the gross receipts of the grantee derived from subscrib-
ers within the City. Such percentage shall be at least
37. and shall be established by the City Council for the
life of the franchise by specifying such percentage in the
ordinance granting the franchise.
The grantee shall file with the City, within thirty
(30) days after the expiration of any calendar year during
which such franchise is in force, a financial statement
is prepared by a certified public accountant showing in detail
the gross annual receipts, as defined herein, of grantee,
its successors and assigns, during the preceding calendar
year. It shall be the duty of grantee to pay to the City,
within ten (10) days after the time for filing such state-
ment, any unpaid balance for the calendar year covered by
such statement.
In the event that the above payment is not received
by the City within the specified time, grantee shall pay to
the City a penalty of two percent (2 %) per month on the
unpaid balance in addition thereto.
In any year or portion thereof commencing at the con-
clusion of the first year that service is provided during
which payments to grantee for installation and services
Twenty -five Dollars ($25) per month.
6.
amount
to less
than
Fifteen
Hundred Dollars ($1500) per
month,
grantee
shall
pay to
the City a minimum amount of
Twenty -five Dollars ($25) per month.
6.
The right is reserved to the City of audit and recompu-
tation of any and all amounts paid under this chapter, and
no acceptance of any payment shall be construed as a release
• or as an accord and satisfaction of any claim the City may
have for further or additional sums payable under this
chapter or for the performance of any obligation thereunder.
In the event of any holding over after expiration or
other termination of said franchise, without the consent
of the City, the grantee shall pay to the City damages of
not less than twenty percent (20 %) of its gross profits
during said period."
SECTION 6. Section 5.44.080 of the Newport Beach Muni-
cipal Code is amended to read:
"5.44.080 Permits, Installation and Service. (a)
Within thirty (30) days after acceptance of any franchise
the grantee shall proceed with due diligence to obtain all
• necessary permits and authorizations which are required in
the conduct of its business, including but not limited to
any utility joint use attachment agreements, microwave
carrier licenses, and any other permits, licenses, and
authorizations to be granted by duly constituted regula-
tory agencies having jurisdiction over the operation of
CATV systems, or their associated microwave transmission
facilities.
(b) Within ninety (90) days after obtaining all
necessary permits, licenses and authorizations, grantee
shall commence construction and installation of the CATV
system.
(c) Within one hundred eighty (180) days after the
commencement of construction and installation of the
system, grantee shall proceed to render service to sub-
scribers, and the completion of the construction and
7.
installation shall be pursued with reasonable diligence to
the end that service shall be made available to all poten-
tial subscribers throughout the entire franchise area
• within such time and upon such conditions as shall be de-
termined by the City Council.
(d) Failure to do any of the foregoing shall be grounds
for termination of the franchise.
(e) The City Manager may extend.the time for obtaining
necessary permits and authorizations and for beginning con-
struction and installation for additional periods in the
event the grantee, acting in good faith, experiences delays
by reason of circumstances beyond his control.01
SECTION 7. Section 5.44.120 of the Newport Beach Muni-
cipal Code is amended to read:
°'5.44.120 Surety Bonds. (a) BOND FOR PROTECTION OF
CITY. The grantee shall, concurrently with the filing of
• an acceptance of award of the franchise granted under this
chapter, file with the City Clerk and at all times there-
after maintain in full force and effect for the term of
such franchise or renewal thereof, at grantee's sole
expense, a corporate surety bond in a company approved by,
and in a form to be approved by, the City Attorney, in the
amount of one hundred thousand dollars ($100,000), renew-
able annually, and conditioned upon the faithful perform-
ance of grantee., and upon the further condition that in
the event grantee shall fail to comply with any one or more
of the provisions of this chapter or of the franchise issued
to the grantee hereunder, there shall be recoverable jointly
and severally from the principal and surety of such bond
any damages or loss suffered by the City as a result thereof,
• including the full amount of any compensation, indemnifica-
tion, or cost of removal or abandonment of any property of
up
the grantee as prescribed hereby which may be in default,
plus a reasonable allowance for attorney's fees and costs,
up to the full amount of the bond, said condition to be a
• continuing obligation for the duration of such franchise or
any renewal thereof, and thereafter until the grantee has
liquidated all of its obligations with the City that may
have arisen from the acceptance of said franchise by the
grantee or from its exercise of any privilege therein
granted. The bond shall provide that thirty (30) days'
prior written notice of intention not to renew, cancella-
tion, or material change, be given to the City.
Neither the provisions of this section, nor any bond
accepted by the City pursuant thereto, nor any damage
recovered by the City thereunder, shall be construed to
excuse faithful performance by the grantee or limit the
liability of the grantee under any franchise issued here-
under or for damages, either to the full amount of the bond
or otherwise.
(b) BOND FOR PROTECTION OF SUBSCRIBERS. The grantee
shall, concurrently with the filing of an acceptance of a
franchise granted under this chapter, file with the City
Clerk and shall thereafter during the entire term of such
franchise maintain in full force and effect a corporate
surety bond or other adequate surety agreement in a form
approved by the City Attorney in the amount of fifty thou-
sand dollars ($50,000), conditioned that in the event such
grantee shall fail to comply with any provision of this
chapter, term or condition of its franchise, or any pro-
vision of any agreement or undertaking made between grantee
and any subscriber, then there shall be recoverable jointly
• and severally from the principal and surety any damages or
costs suffered or incurred by any subscriber as a result
9.
thereof, including reasonable attorney's fees and costs of
any action or proceeding; and said condition shall be a
continuing obligation during the entire term of such franchise
and thereafter until grantee shall have satisfied in full any
and all obligations to any subscriber which arise out of or
pertain to any such agreement or undertaking.1/
SECTION 8. Section 5.44.150 of the Newport Beach Muni-
cipal Code is amended to read:
"5.44.150 Operational Standards. The CATV system shall
be installed and maintained in accordance with the highest and
best accepted standards of the industry to the effect that
subscribers shall receive the highest possible service. The
following minimum standards shall be required:
(a) The system shall be installed using all band equip-
ment capable of passing the entire VHF and FM spectrum, and
it shall have the further capability of converting UHF for
• distribution to subscribers on the VHF band.
(b) The system, as installed, shall be capable of pass-
ing standard color TV signals without the introduction of
material degradation on color fidelity and intelligence.
(c) The system and all equipment shall be designed and
rated for 24 -hour per day continuous operation.
(d) The system shall provide a signal level of 2000
microvolts at the input terminals of each TV receiver.
(e) The system signal -to -noise rate shall be not less
than 46 decibels.
(f) Hum modulation of the picture signal shall be less
than five percent (5 %).
(g) The system shall use components having a VSWR of
1.4 or less."
•
10.
SECTION 9, Section 5.44,160 of the Newport Beach Muni-
11.
cipal Code is amended to read:
°'5.44.160 Miscellaneous Provisions. (a) All
matters herein provided to be filed with the City shall
be filed with the City Clerk.
(b) The rate schedule for any connection fee or
monthly service charge, or change thereto, to subscribers
must have written approval of the City Council.
(c) The grantee must pay to the City a sum of money
sufficient to reimburse it for expenses incurred by it in
publishing legal notice and ordinances in connection with
the granting of a franchise pursuant to the provisions of
this chapter; such payment to be made within thirty (30)
days after the City shall furnish such grantee with a
written statement of such expense.
(d) The grantee shall maintain a toll free telephone
number within the City of Newport Beach so that CATV main-
•
tenance service shall be promptly available to subscribers.
(e) No person, firm or corporation in the existing
service area of grantee shall be arbitrarily refused ser-
vice; provided, however, that grantee shall not be
required to provide service to any subscriber who Zoes not
pay the applicable connection fee or the applicable monthly
service charge.
(f) The City Council may, upon finding that extraor-
dinary circumstances applying to the land, buildings or
CATV system do exist, waive any or all of the requirements
of this chapter.
(g) Any CATV system existing in the City prior to the
adoption of this chapter shall, within sixty (60) days
•
after the effective date of this chapter make application
for a franchise. Said system may continue its existing
11.
operations, but may not enlarge or expand same without
first securing a franchise from the City.
(h) Grantee shall, without charge, provide all sub-
scriber services of its system to all public school build-
ings, City police and fire stations, City recreation
centers and such other buildings owned or controlled by
the City as the City Manager shall designate. Such service
shall consist of a drop connection to the exterior of the
building or property involved and a connection to the
interior of the building or property to a television set
if desired."
SECTION 10. Section 5.44.165 is added to the Newport
Beach Municipal Code to read:
"5.44.165 Adoption of Rules and Regulations by the
City Council. (a) POWER TO ADOPT RULES AND REGULATIONS.
The City Council is authorized to adopt rules and regulations
• consistent with the provisions of this chapter governing the
operation of CATV systems in the City and such rules and
regulations shall apply to and shall govern the operations
of the grantee of any franchise granted pursuant to the pro-
visions of this chapter.
(b) PROCEDURE FOR ADOPTING RULES AND REGULATIONS. The
City Council may adopt rules or regulations or amend, modify,
delete or otherwise change such rules and regulations
previously adopted in the following manner:
1. The City Council shall pass a resolution of
intention describing the rules or regulations to be
adopted, amended, modified, deleted or otherwise changed
and set a day, hour and place for public hearing. Such
• resolution shall direct the City Clerk to publish the
same at least once within fifteen (15) days of the
passage thereof.
12.
r1
U
0
2. The City Clerk shall cause such resolution to
be published at least once in the official newspaper of
the City and shall cause a copy of same to be mailed or
delivered to any grantee not less than ten (10) days
prior to the time fixed for hearing thereon.
3. At the time for public hearing or at any ad-
journment thereof, the City Council shall proceed to
hear and pass upon such evidence, comments and objec-
tions as may be presented. Thereafter, the City Council,
by its resolution, may adopt, amend, modify, delete, or
otherwise change said rules and regulations."
SECTION 11. Section 5.44.172 is added to the Newport
Beach Municipal Code to read:
"5.44.172 Application Fee. Each application shall
be accompanied by an application fee in the sum of One
Thousand dollars ($_1000.00 ), which shall
be used by the City to cover the costs of studying, investi-
gating and processing such application."
SECTION 12. Section 5.44.173 is added to the Newport
Beach Municipal Code to read:
"5.44.173 Effect of Annexations. (a) In the event
any new territory shall be annexed to the City which is
contiguous to only one franchise area in the City, such
new territory shall become, by operation of law, a part of
said franchise area immediately upon the completion of such
annexation.
(b) In the event any new territory shall become an-
nexed to the City which is contiguous to more than one
franchise area in the City or is not contiguous to any
franchise area, then the City Council shall determine which
grantee or grantees shall serve such new territory.
13.
(c) Whenever any portion of unincorporated territory,
which is covered by an existing franchise granted by the
County of Orange, is annexed to the City, the rights re-
served under said franchise to the County of Orange or to
any officer thereof shall inure to the benefit of the City
of Newport Beach.B1
SECTION 13. Section 5.44.175 is added to the Newport
Beach Municipal Code to read;
015.44.175 Effect of Preemption. In the event the
Federal Communications Commission or the Public Utilities
Commission of the State of California or any other federal
or state body or agency shall now or hereafter exercise
any paramount jurisdiction over the subject matter of any
franchise hereunder, then to the extent such jurisdiction
shall preempt or preclude the exercise of like jurisdiction
by the City, the jurisdiction of the City shall, to the
• extent so preempted or precluded, cease and no longer exist;
provided, however, that the preemption or preclusion of the
exercise by the City of any of its police power shall not
diminish, impair, alter, or affect any contractual benefit
to the City nor any contractual obligation of the grantee
under any franchise issued hereunder; and in this respect,
any and all minimum standards governing the operation of
grantee and any and all maximum rates, ratios, and charges
specified herein or in any franchise issued hereunder,
existing now and at any time in the future, including such
time as any paramount jurisdiction shall preempt or pre-
clude that of the City, and any and all rights, powers,
privileges, and authorities of the City to determine, es-
tablish, or fix any of the same, are each and all hereby
• declared by the City and by any grantee accepting any
14.
le
franchise hereunder to be contractual in nature and to be
for the benefit of the City and all subscribers situated
therein, and the agreement of grantee to accept and conform
• to such standards, rates, ratios, and charges is hereby
declared by the City and by any grantee accepting any fran-
chise hereunder to be of the most material and essential
consideration for the granting of such franchise, in the
absence of which, in whole or in part, the City would not
grant such franchise."
SECTION 14. This ordinance shall be published once in
the official newspaper of the City, and the same shall be effec-
tive 30 days after the date of its adoption.
This ordinance was introduced at a regular meeting of
the City Council of the City of Newport Beach held on the 22d
day of August , 1966, and was adopted on the 12th day
of September , 1966, by the following vote, to wit:
•
ATTEST:
11
AYES, COUNCILMEN: Rogers, Parsons, Marshall,
Gruber, Cook, Shelton
NOES, COUNCILMEN:
None
ABSENT COUNCILMEN: For git
Acting City Clerk
15.
Mayor