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HomeMy WebLinkAbout03 - Cable Communications Franchises OrdinanceCOUNCIL AGEN A N0.3 6 CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 19 May 11, 2004 TO: MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Robin L. Clauson, Assistant City Attorney, 949 - 644 -3131 rcla u son(a) city. newport- beach. ca. us Dave Kiff, Assistant City Manager, 949- 644 -3002 d kiff(ccilcity. newport- beach. ca. u s Marilee Jackson, Public Information Officer, 949 - 644 -3031 m viackson (a)city. newport- beach. ca. u s SUBJECT: Cable Communications Franchises Ordinance (1" Reading) ISSUE: • Should the City Council adopt a new ordinance relating to cable communications franchises? • RECOMMENDATION: 1. Introduce Ordinance No. 2004 -_ Franchises: and 2. Pass to second reading on May 25, 2004. DISCUSSION: relating to Cable Communications In the 1960s, when the City of Newport Beach entered into two separate franchise agreements with companies that provide cable television service, cities across the nation had a significant amount of say in cable companies' operations, including: • Rates and rate increases • Customer service standards • Channel selections and placement Cities were able to dictate these aspects of cable companies' operations because the cable companies used the public right -of -way to lay the cable "plant" (plant includes coaxial'cable, boxes in the rights -of -way, connections to homes, etc). Cable Comml itions Franchises Ordinance May 11, 2004 Page 2 Federal law has changed significantly since the City adopted its franchise agreements. • The changes, in part, took away almost all of cities' regulatory abilities relating to cable and moved them to the Federal Communications Commission (FCC or www.fcc.gov). Today, several different laws, ordinances, and agreements direct our decisions about cable television. Attachment A contains a summary of the federal Acts. The Effect of Changes in Law. It's important to remind the Council and Newport Beach residents that: • FCC regulates rates, not cities. The FCC alone has the power to regulate rates and channel selections, with the lone exception of rate regulation on the basic service tier of channels (typically Channels 2 -13 and PEG channels). Cities can only regulate basic tier rate increases if fully certified by the FCC to do so. Cable customers should note that cable companies rarely, if ever, raise the rates on this tier - much more frequent are rate increases on the larger (and unregulated) broadcast basic tier (Channels 14 -65 and up). • Other tiers are generally unregulated. In March 1999, the FCC (generally) deemed many cable systems subject to "effective competition" from satellite dish services and removed almost all rate regulation from cable TV. • Cable TV in Newport is not literally a monopoly. Cities like Newport Beach have non - exclusive franchise agreements. Any cable provider can come into the city • limits, negotiate a franchise agreement, lay new cable, and compete directly with either Cox or Adelphia. Similarly, Cox can attempt to compete directly with Adelphia and vice - versa. But doing so requires significant investment in new cable infrastructure, because each cable company owns the cable in the ground (and on poles). Very few companies anywhere in the nation "overbuild" other systems. • Denial of renewal is extremely difficult and expensive. Cities cannot typically deny a cable provider an opportunity to renew an existing franchise agreement. • Internet services are unregulated. Courts have ruled that the provision of Internet service over cable is not a cable - related service and therefore not subject to municipal regulation. Newport Beach can do very little to help cable customers interact with their Internet Service Providers (ISPs). Formation of Telecom Committee. With the franchise agreements about to expire, in November 2 000, t he C ity C ouncil f ormed the Telecommunications Ad Hoc Committee and directed it to address the following issues: 1. UPDATING THE CABLE TELEVISION ORDINANCE. Chapter 5.44 of the NBMC requires significant amendments before the City can enter into any effective franchise agreements with Adelphia and Cox. 2. UPDATING THE MUNICIPAL CODE AND ENACTING A COUNCIL POLICY RELATING TO WIRELESS TELECOM. Council and staff believed that the City • Cable Commune _)ns Franchises Ordinance May 11, 2004 Page 3 • should add a new section to the municipal code relating to telecommunication to effectively address: • Where to site new wireless antennas; • Whether and where to use City -owned property or rights -of -way for antennas; • What design and structural standards the City should apply to antennas, whether placed on rights -of -way or public or private property; • What fee should be levied for the use of the public property for antennas; • How to effectively ensure that the City's emergency radio network is not adversely impacted by siting activity. The Wireless Telecom Ordinance is now Chapter 15.70 of the NBMC. Council Policy L -23 (The Siting of Wireless Telecommunications Equipment on City -Owned Land) governs City actions relating to the use of City property for wireless telecom. 3. FRANCHISE RENEWAL NEGOTIATIONS. Given the pending expiration of the two cable television franchise agreements, the Committee was tasked with performing a community needs assessment and bringing to Council a Statement of Minimum Goals. The latter was accomplished in April 2003. The Telecom Committee includes Council members John Heffernan (Chair) and Richard Nichols and community members Leslie Daigle and Don Boortz. • Why do we need a new Cable Ordinance? The Municipal Code (Chapter 5.44 -- Community Antenna Television) relating to cable television is somewhat outdated. It was first adopted in 1966 and has changed since then in bits and pieces, even as: • Federal and state telecommunications and cable law dramatically changed — in doing so, the changes nullified portions sections of the code. • Technology dramatically changed (digital TV, satellite TV, cable- carried Internet, pay - per -view, digital cable radio, fiber optic lines, telephony over cable, etc); • The City saw a series of providers transfer their Franchise Agreements from one to another via consolidations and sales; and • Adelphia filed for reorganization. Further, advent of high -speed data, telephony, and other services over the cable system have led Special Counsel Bill Marticorena of Rutan and Tucker to advise a more comprehensive re -write and reorganization (and re- titling) of Chapter 5.44. A note about the Charter. The City Charter's section on franchises (Article XIII) requires the City Council to adopt franchises via ordinance and to hold a public hearing prior to granting a franchise. It limits all franchise terms to 25 years or less if a determinate term is stated. The Article allows indeterminate terms but specifies that the City may end the franchise and possess the franchisee's property if the franchisee is out of compliance with the franchise agreement (Section 1302). • Cable CommL itions Franchises Ordinance May 11, 2004 Page 4 Preparing a New Ordinance. Since at least Fall 2000, the City has retained Mr. • Marticorena to assist us in our telecommunications work. Mr. Marticorena has extensive experience in all phases of franchise renewals and ordinance amendments. Additionally, upon recommendation of the Telecom Committee, we hired Sue Buske of the Buske Group to conduct a statistically valid Cable Needs Assessment (CNA) to determine the community's desires and concerns regarding cable TV (for more information about the Assessment itself, see the Agenda Item from April 8, 2003 whereby the City Council formally accepted the Assessment). The Assessment and the Statement of Minimum Goals will be used to negotiate a new Franchise Agreement with each of the two cable providers. A Franchise Agreement is separate and distinct from a new Cable Communications Ordinance as follows: • The Ordinance reflects the regulatory environment and practices that any cable provider must follow while doing business in the City. • The Agreement(s) reflects specific permission to a specific company to use the public right -of -way to operate a cable system. Included in the permission are negotiated terms by the company and the City as to adequate compensation paid to the City and its residents for the use of the right -of -way. Adequate compensation may include the 5% franchise fee, dedication of equipment, dedication of specific channels for Public, Educational, and Government ( PEG) services, and more. • More about the Proposed Cable Communications Franchises Ordinance. The proposed ordinance addresses the following issues (and others): • Definitions. Sets forth and updates definitions used in the Cabie Communications industry. • Authorization. Authorizes the City to grant non - exclusive franchises for cable communications services. • Rights. Reserves certain rights to the City and the cable subscriber; reserves certain rights for the Franchisee; • Finances. Explains how payments to the City are made in exchange for a cable company's use of the public right -of -way; requires a performance bond • Services. Explains the services that can be required of a provider; • Construction. Describes the construction standards that a provider must meet; • Customer Service. Describes the customer service obligations of a provider. • Records Inspection, Audit. Allows for the City's inspection of certain records, allows for the conduct of a bi- annual audit; and • Termination. Describes reasons for termination and process to terminate. Provider Review and Comment. Following a City Council hearing in November 2003, the Telecom Committee took testimony from cable providers and utility companies over a series of meetings up until April 29, 2004. In addition, since the Council's adoption of the • Statement of Minimum Goals in April 2003, a staff team (Mr. Marticorena, Ms. Clauson, Ms. Jackson, and Mr. Kiff) have met at least two times each with representatives Cable Commun. dns Franchises Ordinance May 11, 2004 Page 5 • (including counsel) of Adelphia and Cox. We have provided both companies with an opportunity to review the draft Ordinance and to discuss the Ordinance with us and have made substantive revisions that are in the version attached to this staff report. One significant change from the time that Council last heard this item (November 2003) is the complete separation of issues relating to the Public Right -of -Way. Both cable companies alleged in their correspondence with us that it would be unfair to place certain PROW requirements on them that we did not require of other providers. We agreed, and have prepared a complete P ROW Ordinance for your consideration (anticipated to be read for the first time on May 11, 2004). This Agenda Item asks the Council to review the proposed Cable Communications Franchises Ordinance, to read it for the first time, and to pass it to second reading and adoption (set for May 25, 2004). Ordinances like this one take effect 30 days following adoption. What's N ext. If the Council adopts this Ordinance, the staff team and the Telecom Committee would enter the final phase of their efforts -- the negotiation of new Franchise Agreements with Cox and Adelphia reflecting the Statement of Minimum Goals and the newly- adopted Cable Communications Ordinance. We anticipate bringing the negotiated Franchise Agreements to Council in Summer 2004. isEnvironmental Review: This Agenda Item does not require environmental review. Public Notice: This agenda item may be noticed according to the Ralph M. Brown Act (72 hours in advance of the public meeting at which the City Council considers the item). Submitted by: Robin Clauson Marilee Assistant City Manager Assistant City Attorney Public Information Officer Attachments: Attachment A -- FCC Authority Attachment B -- Proposed Ordinance on Cable Communications Franchises Cable Con7nh 3tions Franchises Ordinance May 11, 2004 Page 6 Attachment A • FEDERAL COMMUNICATIONS COMMISSION (FCC) AUTHORITY P 1984 Cable Act. The Federal Communications Commission (FCC) established new policies over cable TV via the Cable Communications Policy Act of 1984. Among other things, the 1984 Act began to define the boundaries between federal, state, and local governments. The 1984 Act requires cable companies to act under franchise agreements and prohibits local governments from offering exclusive franchise agreements. This Act also limited the cable franchise fee to 5% of the cable company's gross annual revenue. The 1984 Act also: • Allowed local agencies to require that cable companies set aside channels for public, educational, or governmental (PEG) use. • Established "leased commercial access" allowances so that parties other than the cable company could air video programming without cable company oversight. • Placed restrictions on telephone companies that wanted to provide television service. P 1992 Cable Act. In response to price hikes in the cable industry that far outpaced inflation, Congress passed the Cable Television Consumer Protection and • Competition Act of 1992. The 1992 Act stated the FCC's hope that the market would begin to regulate cable TV activities while still protecting consumer interests. Under the 1992 Act, local governments could select a cable franchisee and regulate in any areas that the FCC did not pre -empt. Prior to 1992, local governments could regulate all rates — but with the 1992 Act in place, the FCC took over rate regulation of the cable programming tier (see below) and allowed cable companies to be completely exempt from rate regulation if they could show that the cable companies were subject to "effective competition" in a region. In the 1992 Act, the FCC defines three tiers of cable services: • the basic service tier (lower channels originating in the region which must be carried by the cable company). Local governments may regulate rates associated with this tier when certified by the FCC to do so. • the cable programming service tier ( "CPST ") — this includes all non -basic channels provided by a cable company but not sold on a pay - per -view basis. Effective March 31, 1999, the FCC has declared this tier of service subject to "effective competition" and NO LONGER regulates rate changes to this tier. • the per channel or per - program tier — provided as single channels for which the cable company charges a separate rate. This tier is unregulated. Per the 1992 Act, local governments must apply for certification with the Commission if they want to regulate rates in the basic service tier. We can do so by submitting a "Form • 328" to the FCC. The City has not asked the FCC to certify the City as a basic tier Cable Commun, ins Franchises Ordinance May 11, 2004 Page 7 • regulator. This is in part because cable companies rarely, if ever, increase their rates on the basic tier since the development of the 1992 Act — in recent years, cable companies have reduced and /or maintained their basic tier rates while increasing their CPST rates. Another important aspect of the 1992 Act set customer service standards for cable companies — all of which must be enforced by local franchise authorities. Pursuant to the standards, cable companies must: Phone and Billing Services • Maintain a local phone line available 24 hours, seven days a week. • Not use voice mail during working hours — a real person must answer the phone. • Place its bill payment office in a convenient location. The office must be open at least one night a week and /or some weekend hours. • Answer all calls to ttte cable company office within 30 seconds of the time that a connection is made. Installations and Service Calls • Complete a standard installation within seven days of a service call. • Begin working on a service interruption call within 24 hours of notification. • Offer specific appointment times or four -hour blocks of time for all service calls. • Have installers call if they are running late to reschedule at the customer's convenience. • Rate or Service Changes • Give 30 days advanced notice for all rate or service changes. • Respond to billing complaints within 30 days. P 1996 Telecom Act. Most recently, Congress amended the laws even further via the adoption of the Telecommunications Act of 1996. The 1996 Act was an attempt to accelerate private sector deployment of services to all residents by opening up all telecom markets to competition, including allowing cable companies to provide phone service and vice - versa. The 1996 Act provided that the CPST would be subject to FCC regulation until March 31, 1999. The Act also prohibited individuals from sending complaints directly to the FCC — instead, individuals must file complaints with the franchise authority (us) and we forward one or more complaints to the FCC for review via an FCC "Form 329." Before sending a complaint to the FCC, we must notify the cable company of the complaint and allow them 30 days to respond. We followed this process earlier this year in forwarding a rate complaint by a resident. The 1996 Act also: • Requires television manufacturers to equip their TVs with a V -Chip. • • Requires broadcast and cable industry representative to develop voluntary rules that rate programs for sexual or violent content. Cable COMML ,tions Franchises Ordinance May 11, 2004 Page 8 • Requires cable companies to fully scramble audio and video channels not • specifically subscribed by a household. • Allowed some telephone companies to provide video programming via open video systems (Pacific Bell Video Service [ "PBVS "] is an open video system that delivers both local programming and national channels via a small dish or antenna). The 1996 Act exempted these systems from city franchise requirements. • Limits local franchise authority fees to revenue derived from "cable services." is • • • u ORDINANCE NO. 2004 — AN ORDINANCE OF THE CITY OF NEWPORT BEACH RELATING TO FRANCHISES FOR CABLE COMMUNICATIONS SYSTEMS. THE CITY COUNCIL OF NEWPORT BEACH DOES ORDAIN AS FOLLOWS: Section 1. Chapter 5.44 of the Newport Beach Municipal Code entitled "Community Antenna Television" is hereby repealed. Section 2. Chapter 5.44 of the Newport Beach Municipal Code entitled "Cable Communications Franchises" is hereby added and shall read as follows: Sections: Section 5.44.010 Section 5.44.020 Section 5.44.030 Section 5.44.040 Section 5.44.050 Section 5.44.060 Section 5.44.070 Section 5.44.080 Section 5.44.090 Section 5.44.100 Section 5.44.110 Section 5.44.120 Section 5.44.130 Section 5.44.135 Section 5.44.140 Chapter 5.44 CABLE COMMUNICATIONS FRANCHISES Title. Definitions. Grant of Franchise. Rights Reserved to the City. Rights of Subscribers. Finance. Services. Design and Construction. Operations And Maintenance. Violations. Termination and Related Rights. Franchise Applications. Records; Reports; Right to Inspect and Audit; Experts. Indemnity and Liability Insurance Miscellaneous Provisions. Section 5.44.010 Title. This Chapter is known and may be cited as the "Cable Communications Franchises Chapter." Section 5.44.020 Definitions. a. For the purposes of this Chapter, the following words, terms, phrases, and their derivations have the meanings given herein. Terms defined in the Cable Act shall have the same meanings herein unless expressly defined otherwise. When not inconsistent with the context, words used in the present tense include the future tense, and words in the singular number include the plural number. "Affiliated Person" or "Affiliates" means each Person who falls into one or more of the following categories: (i) each Person having, directly or indirectly, a Controlling Interest in Company; (ii) each Person in which Company has, directly or indirectly, a Controlling Interest; • (iii) each officer, director, general partner, limited partner holding an interest of five percent (5 %) or more in a joint venture, or joint venture partner in Company's Cable System in the City; and (iv) each Person, directly or indirectly, controlling, controlled by, or under common Control with Company; provided that "Affiliated Person" excludes the City, any limited partner holding an interest of less than five percent (5 %) in a Company, or any creditor of Company, solely by virtue of its status as a creditor, and which is not otherwise an Affiliated Person by reason of owning a Controlling Interest in, being owned by, or being under common ownership, common management, or common Control with Company. "Basic Service" or "Basic Cable Service" or "Basic Service Tier" means the lowest Service Tier which includes the retransmission of local television Broadcast Signals and Public, Educational, and Governmental Access Channels. "Broadcast Signal" means a signal transmitted over the air to a geographically dispersed public audience and received by a Cable System. "1984 Cable Act" means the Cable Communications Policy Act of 1984. 1992 Cable Act" means the Cable Television Subscriber Protection and Competition Act of 1992. "Cable Act" means the Cable Communications Policy Act of 1984, as amended by the Cable Television Subscriber Protection and Competition Act of 1992 and by the Telecommunications Act of 1996. "Cable Operator" means any Person or group of Persons (i) who provides Cable Service • over a Cable System in the City and, directly or through one or more Affiliates, owns a significant interest in that Cable System; or (ii) who otherwise controls or is responsible for, through any arrangement, the management and operation of a Cable System in the City. "Cable Review Board" shall mean an entity formed by resolution of the City that reviews and hears issues relating to Cable Service, a Cable Franchise, or a Company's operations and maintenance of Cable Services. "Cable Service" or "Service" means (i) the one -way transmission to Subscribers of video programming or other programming service; and (ii) subscriber interaction which is required for the selection of or use of video programming or other programming service. "Cable System" or "Cable Communications System" or "System" means a facility, consisting of a set of closed transmission paths and associated signal generation reception, and control equipment that is designed to provide Cable Service, which includes video programming, and which is provided to multiple Subscribers within the City; but this term does not include: (i) a facility that serves only to retransmit the television signals of one or more television broadcast stations; (ii) a facility that serves Subscribers without using any public right -of -way; (iii) a facility of a common carrier which is subject, in whole or in part, to the provisions of Title II of the Communications Act of 1934 (47 U.S.C. § 201 et seq.), except that the facility shall be considered a Cable System (other than for purposes of section 621(c) of the Cable Act) to the extent the facility is used in the transmission of video programming directly to Subscribers, unless the extent of the use is solely to provide interactive on- demand services; (iv) an open • video system that complies with section 653 of the Cable Act; or (v) any facilities of any electric utility used solely for operating its electric utility systems. -2- City of NB 05/03/2004 • "Channel" means a portion of the electromagnetic frequency spectrum which is used in a cable system and which is capable of delivering a television channel (as television channel is defined by the FCC by regulation). "City" means the City of Newport Beach, California, acting by and through its City Council, or a representative as the governing body may designate to act on cable matters on its behalf. "Company" means the Person granted a Franchise to install, operate, maintain, or reconstruct a Cable System and the lawful successors, transferees, or assignees of that Person. "Company Manager" means an employee of the Company who is designed by the Company in writing to the City to be the contact person for Company in accordance with the provisions of this Chapter. "Complaint" means a dispute in which a Subscriber notifies Company of an outage or degradation in picture quality, billing or other issue pertaining to the Subscriber's Cable Service which is not corrected during the initial telephone or service call. "Control" or "Controlling Interest" means actual working control in whatever manner exercised, including, without limitation, working control through ownership, management, debt instruments, or negative control, as the case may be, of the Cable System or a Company. A rebuttable presumption of the existence of Control or a Controlling Interest shall arise from the beneficial ownership, directly or indirectly, by any Person or group of Persons acting in concert (other than underwriters during the period in which they are offering securities to the public) of • twenty -five percent (25 %) or more of any Person (which Person or group of Persons is referred to as "Controlling Person "), or being a party to a management contract to manage the system, or any material portion thereof, in lieu of the Company. "Converter" or "Terminal" means a device located at a Subscriber's premises that converts signals from one frequency to another or otherwise processes signals for use by Subscribers. "Director" means the Director of the City's Department of Public Works or his or her designee. "Drop" means the cable connecting the Cable System's plant to equipment at the Subscriber's premises. "Facilities" or "Facility" shall have the same meaning in this Chapter as these terms have in Chapter 13.20 of the Newport Beach Municipal Code. "FCC" means the Federal Communications Commission or its designated representatives. "Franchise" means a written legal undertaking or action of the City which authorizes a specific Person to use the City's streets and public ways for the purpose of installing, operating, maintaining, or reconstructing a Cable System to provide Cable Service. "Gross Annual Revenue" or "Gross Annual Receipts" or "Gross Receipts" means all • revenue, as determined in accordance with Generally Accepted Accounting Principles, which is received, directly or indirectly, by the Company and by each Affiliated Person from or in -3- City of NB 05/03/2004 connection with the distribution of any Cable Service, and any other Service which may, under • now or then applicable federal law, be included in the Cable Act definition for the purpose of calculating and collecting the maximum allowable franchise fee for operation of the System, whether or not authorized by any Franchise, including, without limitation, leased or access channel revenues and programming fees of any kind, received, directly or indirectly, from or in connection with the distribution of any Cable Service. It is intended that all revenue collected by the Company, and by each Affiliated Person, from the provision of Cable Service over the System, whether or not authorized by the Franchise, be included in this definition. Gross Annual Revenue also specifically includes: (i) the fair market value of any non - monetary (i.e., barter) transactions between Company and any Person, other than an Affiliated Person, but not less than the customary prices paid in connection with equivalent transactions; (ii) the fair market value of any non - monetary (i.e., barter) transaction between Company and any Affiliated Persons, but not less than the customary prices paid in connection with equivalent transactions conducted with Persons who are not Affiliated Persons; (iii) any revenues generated from the provision of Internet services and /or broadband services which utilize the Cable System for delivery and must not be excluded pursuant to applicable law; and (iv) any revenue received, as reasonably determined from time to time by the City, through any means which is intended to have the effect of avoiding the payment of compensation that would otherwise be paid to the City for the Franchise granted. Gross Annual Revenue also includes any bad debts recovered. Gross Annual Revenue also includes all (100 %) advertising revenue (without exclusions for any commissions, fees, or other costs incurred in securing the revenue) which is received directly or indirectly by the Company, any Affiliated Person, or any other Person from or in connection with the distribution of any Service over the System or the provision of any Service - related activity in connection with the System, or allocable thereto based upon subscriber counts. Gross Annual Revenue does not include: (i) the revenue of any Person to the extent that the revenue is also included in the Gross Annual Revenue of the Company; (ii) taxes imposed by law on • Subscribers which the Company is obligated to collect; and (iii) amounts which must be excluded pursuant to applicable law. "Pay Cable," "Pay Service," "Premium- Service" or "Pay Television" means programming choices (such as movie channels, pay - per -view, video on demand) offered to Subscribers on a per - Channel, per - program or per -event basis. "PEG Channel" means collectively, the channel capacity dedicated to non - commercial public, education or government access programming. "Person" means any person, corporation, partnership, proprietorship, individual, or organization authorized to do business in the State of California. "Plant" means the transmitting medium and related equipment which transmits signals between the Headend and Subscribers, including Drops. "Public Right -of -Way" or "Right of Way" shall have the same meaning in this Chapter as the term or terms have in Chapter 13.20 of the Newport Beach Municipal Code. "Residential Dwelling Unit" or "Dwelling Unit" means a home, mobile home, condominium, apartment, cooperative unit, and any other individual dwelling unit. "Service Area" or "Franchise Service Area" means the entirety of the City of Newport Beach, or as further defined in the Franchise. "Service Interruption" means the loss of picture or sound on one or more cable channels. • -4- City of NB 05/03/2004 • "Service Tier" or "Tier" means a category of Cable Service or other Services provided by a Cable Operator and for which a separate rate is charged by the Cable Operator, other than per channel or per event programming or legitimate packages of per channel or per event programming. "Subscriber" means any resident, business, or other Person that lawfully subscribes to and receives, a Cable Service provided by the Company by means of or in connection with its Cable System. "Telecommunications Act" means the Telecommunications Act of 1996. "Territory" shall mean land within the City's boundaries at the time of this Chapter's adoption and, if later annexed or reorganized into the City's boundaries, land added to the City at the time of annexation or reorganization. "Unit" means a discrete place where System Services are used, such as a residence, apartment, office, store, etc. b. Terms Not Defined. Words, terms, or phrases not defined herein shall first have the meaning as defined in the Cable Act, and then the special meanings or connotations used in any industry, business, trade, or profession where they commonly carry special meanings. If those special meanings are not common, they will have the standard definitions as set forth in commonly used and accepted dictionaries of the English language. Section 5.44.030 Grant of Franchise • a. Authority to Grant Franchises. Pursuant to the Newport Beach City Charter (commencing with Section 1300), the City may grant a Franchise to provide Cable Service to any Person who offers to provide a System pursuant to this Chapter. r 1 LJ b. Form. A Franchise may, at City's sole option, take the form of an ordinance, agreement, license, permit, contract, resolution, or any other form elected by City. c. Grants Not Required. Consistent with applicable state and federal law, no provision of this Chapter requires the granting of a Franchise when, in the opinion of the City, it is in the public interest not to do so. d. Franchise Purpose. The purpose of a Franchise is to identify and authorize the operation of a Cable Communications System by a specific Company, and to identify and specify those terms, conditions, definitions, itemizations, specifications and other particulars of the agreement between the City and a Company. In so doing, a Franchise may clarify, extend, and interpret the provisions of this Chapter. Where a Franchise and this Chapter conflict, both shall be liberally interpreted to achieve a common meaning or requirement. In the event this is not possible within reasonable limits, the Franchise shall prevail. e. Compliance with Law. Neither this Chapter nor a Franchise granted under it relieves a Company of any requirement of City, or of any ordinance, rule, regulation, or specification of City now or hereafter in effect pursuant to City's police power, including, but not limited to, the obtaining of a business license, and the payment of all permit and inspection fees required from time to time by the City. -5- City of NB 05/03/2004 f. Franchise Non - Exclusive. City may, at its option, grant one or more Franchises to construct, operate, maintain, and reconstruct a System. These Franchises shall constitute both • a privilege and an obligation to provide the System and Cable Services required by this Chapter and the Franchise. g. Duration. The term of any Franchise, and all rights, privileges, obligations and restrictions pertaining thereto, shall be specified in the Franchise. Pursuant to Section 1302 of the City Charter, in no event shall the term of any Franchise exceed 25 years. The effective date of any Franchise shall be as specified in the Franchise. h. Use of Public Rights- of -Way. Pursuant to Chapter 13.20 of the Newport Beach Municipal Code and for the purposes of operating and maintaining a System in the franchised Service Area, a Company may place and maintain within the Public Rights -of -Way the property and equipment that conforms to the laws and standards of the City and as are necessary and appurtenant to the operation of the Cable Communications System. Prior to construction or alteration of the Plant in Public Rights -of -Way, a Company shall comply with Chapter 13.20. L Use of Other Utilities. Any Person who provides a System or Services as defined herein shall be deemed a Company and must obtain a Franchise. If a Company uses distribution channels furnished by any telephone company, other public utility, or any other entity which are functionally equivalent to those used by a Cable Operator, the Company shall be required to comply with all of the provisions of this Chapter. j. Restrictions against Transfers. Unless prohibited by federal law, neither the franchise nor any rights or obligations of the Company in or pursuant to the franchise, or the System shall be transferred in part or as a whole, by assignment, trust, mortgage, lease, sublease, pledge or • other hypothecation, and shall not be sold, transferred, leased, assigned, or disposed of in part or as a whole, either by forced sale, merger, consolidation, or otherwise, nor shall title thereto, either legal or equitable, or any right or interest therein, pass to or vest in any Person, nor shall a transfer of Control of the Company or the System occur, either by act of the Company, by operation of law or otherwise, in each case without the prior written consent of the City, which consent shall not be unreasonably withheld, and which shall be expressed by Resolution and then only under conditions as may be therein prescribed. k. Effect of Unauthorized Action. 1. The taking of any action described in paragraph Q) without the prior consent of the City shall: L Be deemed a material breach of Franchise; and ii. Among other remedies available to the City, be subject to a liquidated damages assessment, which assessment shall be up to $5,000.00 a day until the taking of an action described in the foregoing paragraph Q) is approved, or if not approved, until the prior ownership, Control or other status quo ante is restored to a condition satisfactory to the City. The amount of the assessment shall be determined by the City. 2. If the City denies its consent to any action and the action has nevertheless been effected, the Council may revoke the Franchise unless the ownership of the Franchise and /or System or Control of the Company, the System or the Franchise is • -6- City of NB 05/03/2004 • promptly restored to its status prior to the unauthorized action or to a status acceptable to the City. The grant or waiver of any one or more consents shall not render unnecessary any subsequent consent or consents, nor shall the grant of any consent constitute a waiver of any other rights of the City. I. Additional Restrictions. 1. The Company shall not enter into any management contract or other arrangement for the management of the System, or sell or otherwise transfer the System, or any material portion thereof, with or without the Franchise, without the prior written consent of the City. 2. Any use by the Company of its own or an existing MAN, SMATV, MDS, DBS, or other system in any structure located in the Service Area for the distribution of any Service which would otherwise be distributed over the System, shall not relieve the Company of its obligation to construct, operate, and maintain the System in the structure pursuant to this Chapter and applicable law. m. Approval Procedure . 1. The Company shall promptly notify the City of any action or proposed action requiring consent of the City pursuant to this Section. The Company shall submit to the City an original and four copies, unless otherwise directed, of its petition on FCC Form • 394, requesting consent, which petition shall fully describe the action or proposed action and clearly state the basis on which the petition should be approved. The petition shall also contain all reasonably appropriate documentation. The 120 -day period to review a transfer request under Section 617 of the Cable Act shall not commence until all of the information required by FCC Form 394, any applicable State law, the Franchise and this Chapter is submitted to the City, including but not limited to: Name and address of the proposed transferee and identification of the ownership and control of the transferee, including: the names and addresses of the ten (10) largest holders of an ownership interest in the transferee and its cable affiliates and all persons with twenty (20 %) percent or more ownership interest in the transferee and its cable system; the Persons who Control the transferee; all officers and directors of the transferee and its cable affiliates; and any other Cable System ownership interest or each named Person; A demonstration of the transferee's technical ability and legal qualifications to construct, maintain, upgrade and operate the System, including identification of key personnel; iii. The transferee must show that it, as well as any person which Controls the transferee, has not, at any time during the ten (10) years preceding the submission of the petition, been convicted of any act or omission of character that the transferee cannot be relied upon to deal truthfully with the City and the Subscribers of the System, or to substantially comply with its lawful obligations • under applicable law, -7- City of NB 05/03/2004 iv. The transferee must certify that no elected official of the City holds an interest, • other than shares in a publicly traded company, in the transferee or an Affiliated Person of the transferee; V. Current financial statements showing the financial condition of the System as of the date of the petition. If a Company does not maintain financial records at the System level, then the Company may provide financial statements of the smallest reporting entity which includes the System; vi. A statement prepared by a certified public accountant or responsible official of the transferee regarding the transferee's or assignee's financial ability to Construct, upgrade, maintain and operate the System; vii. A description of the transferee's prior experience in Cable System ownership, construction and operation and identification of communities in which the transferee or assignee or entities under common Control with the transferee have a cable franchise or license; viii. A description of the transferee's plans for meeting any System obligations under the Franchise, including, but not limited to, any upgrade obligations, upgrade completion schedules, channel capacity requirements, technical design requirements, and performance characteristics; ix. An affidavit or declaration of the transferee or authorized officer certifying the truth and accuracy of the information in the petition or other written request, acknowledging the enforceability of the commitments of the petition or other • written request, and certifying that the proposal meets all federal and state law requirements; and X. A summary of the plans and commitments of the transferee to remedy specific and known defaults and violations, if any, in the operation of the System under the Franchise. 2. At any time during the review process, the City reserves the right to require additional supporting documentation from the Company or any other Person involved in the action or proposed action. The Company shall provide all reasonably requested assistance to the City in connection with any inquiry and, as appropriate, shall use its best efforts to secure the cooperation and assistance of all other Persons involved in the action. n. Conditions. As a condition to the granting of any consent required by this Section, the City may require that the transferee execute an agreement, in a form and containing reasonable conditions as may be required by the City, specifying that the transferee assumes and agrees to be bound by all applicable provisions of the Franchise. The execution of the agreement by the transferee shall in no way relieve the Company, or any other transferor involved in any the action, of its obligations pursuant to the Franchise during its tenure as the franchisee up to and including the date of execution of the Agreement without the consent of the City. o. Reimbursement of Processinq and Review Costs. To the extent not prohibited by applicable law, a Company shall reimburse the City for the City's reasonable processing and review expenses in connection with a transfer of the Franchise or a change in Control of the • Franchise, including without limitation, costs of administrative review, financial, legal, and -8- City of NB 05/03/2004 • technical evaluation of the proposed transferee, costs of consultants (including technical and legal experts), notice and publication costs, and document preparation expenses. A reasonable deposit in an amount determined by the City may be required by the City. In addition, prior to any transfer or change in Control, a Company shall reimburse the City for all of the City's expenses in connection with evaluating or negotiating a renewal of a Company's franchise, whether or not the renewal was ever finalized or granted. The City may send a Company an itemized description of all charges, and that Company shall pay the amount within forty -five (45) days after the receipt of the description. Section 5.44.040 Rights Reserved by the City a. Reservation. The grant of the Franchise does not limit the rights of City under state law with respect to its power of eminent domain. b. Non - waiver or Bar. Neither the granting of any Franchise, nor any provisions of this Chapter, shall constitute or be construed as a waiver or bar to the exercise of any governmental right or power by City. c. Delegation of Powers. Any right or power in, or duty retained by or imposed upon City, or any commission, officer, employee, department, or board of City, may be delegated by City to any officer, employee, department or board of City, or to an other person or entity as City may designate to act on its behalf. d. Right of Inspection of Construction. Pursuant to Chapter 13.20, the City shall have the right to inspect and approve all construction, installation, or other physical work performed by • Company in the Public Rights -of -Way and on private property consistent with standards approved by the City. e. Right to Require Removal and Repair of Propert y. Pursuant to Chapter 13.20 and consistent with applicable law, upon the lawful revocation, expiration, or termination of the Franchise, the City shall have the right to require a Company to remove, at Company's expense, all portions of its System and any other property from all streets and public rights -of -way within the Franchise Service Area and to require the repair of any public facility, right -of -way, or property damaged during the removal process within a reasonable period of time. f. Right of Intervention. The City shall have the right of intervention in any suit, proceeding or other judicial or administrative proceeding in which the City has any material interest, and to which a Company is party. g. Place of Inspection. The City shall have the right to inspect Company's local premises, and to request copies of all relevant information that is reasonably necessary for the exercise of City's regulatory authority, upon reasonable notice at any time during normal business hours. Any Company records kept at another place shall, within twenty (20) days of City's request, be made available to City for City's inspection and copying. All reports and records required pursuant to this Chapter shall be furnished at the sole expense of Company, except as otherwise provided in this Chapter or the Franchise. h. Printed Messages on Bills. The City shall have the right to limit printed messages on subscriber bills to information applicable only to Subscribers within the Franchise Area. -9- City of NB 05/0312004 Section 5.44.050 Rights of Subscribers. • a. Discriminatory Practices Prohibited. A Company shall not deny Cable Service or otherwise discriminate against Subscribers or others on the basis of race, color, religion, national origin, sex, age, disability, or characteristics of other protected classes. b. Tapping and Monitoring. A Company shall not tap or monitor, or permit any other person controlled by Company to tap or monitor, any cable, line, signal input device, or subscriber outlet or receiver, to collect personally identifiable information (as defined in Section 631 of the Cable Act) concerning any Subscriber whatsoever without the prior written consent of the Subscriber or a court order; provided, however, that a Company may monitor customer service calls for quality control purposes and may conduct system -wide or individually addressed "sweeps" for the purpose of verifying system integrity, monitoring signal levels, or checking for unauthorized connections to the Cable System, service levels, or billing- for -pay services. c. Data Collection. Except for its own use, or in connection with the provision of Cable Services or for release of data to the City, the Company shall not permit its system to be used for data collection purposes, nor shall it otherwise collect data which would reveal the commercial product or other preferences or opinions of an individual Subscriber, members of their families, or their guests, licensees or employees, unless the Company shall have received the priorwritten consent of Subscriber. 2. The Company shall not disclose or permit the release or sale of data on individual • Subscribers or groups thereof, but may disclose or permit the release or sale of aggregate data. d. Disclosure of Subscriber Lists. The Company shall not disclose, or sell, or permit the disclosure or sale of its subscriber list without the prior written consent of each Subscriber on a list; provided that Company may use its subscriber list as necessary for the construction, marketing, and maintenance of the Company's services and facilities authorized by a Franchise, and the billing of Subscribers for Cable Services; and provided further, that consistent with applicable law, City may use Company's subscriber list for the purpose of communication with Subscribers in connection with matters relating to the operation, management, and maintenance of the Cable System and for the audit of financial and other obligations pursuant to this Chapter, any franchise, or other applicable law. e. Disclosure of Subscriber Preferences. Company shall not disclose individual Subscriber preferences, viewing habits, beliefs, philosophy, creeds, or religious beliefs to any third person, firm, agency, governmental unit, or investigating agency without court authority or the prior written consent of the Subscriber. f. Terms of Subscriber Consent. 1. Any written consent given in accordance with paragraph (d) shall be limited to a period of time not to exceed one year, or a term agreed upon by the Company and the Subscriber. • -70- City of NB 05/03/2004 • 2. The Company shall not condition the delivery or receipt of Cable Services to any Subscriber on any consent. 3. A Subscriber may at anytime revoke, without penalty or cost, any consent previously given by delivering to the Company in writing a statement of the Subscriber's intent to so revoke. g. Other Persons Affected. The prohibitions contained in paragraphs (a) through (e), inclusive, of this Section apply to a Company, as well as to all of the following: 1. Officers, directors, employees, agents, and general and limited partners of the Company; 2. Any person or combination of persons owning, holding, or controlling any corporate stock or other ownership interests in the Company; 3. Any affiliated or subsidiary entity owned or controlled by a Company, or in which any officer, director, stockholder, general, or limited partner, or person or group of persons owning, holding or controlling any ownership interest in the Company, shall own, hold or control any corporate stock or other ownership interests; and 4. Any person, firm, or corporation acting or serving in the capacity of a holding or controlling company of the Company. Section 5.44.060 Finance. • a. Payments to City. 1. As compensation for any Franchise to be granted, and in consideration of permission to use the City's streets and public rights -of -way for the construction, operation, maintenance, and reconstruction of a System, a Company shall pay to the City the amounts and in the manner specified herein and in the Franchise. i. Payments due the City shall be computed quarterly, and shall be paid within forty -five (45) days after the close of each calendar quarter. The payment shall be accompanied by a report showing the basis for the computation and such other relevant facts as may be required by the City to determine the accuracy of the payment. A final annual reconciliation, and payment if any, shall be delivered to City by Company within ninety (90) days after the end of each calendar year. ii. If any franchise payment or recomputed amount is not made on or before the dates specified above in subsection (i), Company shall pay as additional compensation the greater of the following: A. An interest charge, computed from the applicable due date, at an annual rate equal to the prevailing commercial prime interest rate in effect upon the due date, plus one percent (1 %). • B. A sum of money equal to $5,000 for each month, or part thereof, of delay, which sum shall also bear interest from the due date at an >>- City of NB 05/03/2004 annual rate equal to the prevailing commercial prime interest rate in • effect upon the due date, plus one percent (1 %). iii. In addition to any late payment made pursuant to subsection 3 above, if a payment is late by sixty (60) days or more, Company shall pay a sum of money equal to five percent (5 %) of the amount due in order to defray additional expenses and costs incurred by City as a result of such delinquent payment. iv. No acceptance of any payment shall be construed as a release of, or an accord, or satisfaction of, any claim that the City might have for further or additional sums payable under the terms of this Chapter, or for any other performance by Company of an obligation hereunder. 2. Payments of compensation made by a Company to the City pursuant to the provisions of this Chapter are in addition to, and exclusive of, any and all authorized taxes, business license fees, and other fees, levies, or assessments now in effect or subsequently adopted in accordance with state and federal law. b. Financial Security The Franchise shall require that the Company provide Financial Security pursuant to this section. The City shall determine the appropriate level of Financial Security, which may include all of the following protections for the City against Company default or failure to comply with this Chapter or the Franchise. The Director shall determine the appropriate level of Financial Security to adequately repair Public Facilities or Public Rights -of- Way. This Security shall include: 1. Security Fund. • i. The City shall require the Company to deposit into a bank account established by the City, and to maintain on deposit through the duration of the Franchise Term, security ( "Security Fund ") for the faithful performance by Company of all of the provisions of the Company's Construction Plan, compliance with this Chapter, with all orders, permits and directions of the City, or any designated representative of the City having jurisdiction over Company's acts or defaults, as security for the payment to the City of any claims, fees, liens, maintenance obligations relating to above - ground facilities, or taxes due the City which arise by reason of the construction, operation, and maintenance of the Facilities, and to satisfy any actual or liquidated damages arising out of a breach. In lieu of a Security Fund, the City may accept a Bond or Letter of Credit for an equivalent amount in a form and from a financial institution acceptable to the City. ii. If the Company fails, after forty -five (45) days written notice, to pay to the City any fees that are due and unpaid, or fails to repay within such forty-five (45) days, any damages, costs or expenses which the City is compelled to pay by reason of any act or default of the Company; or if Company fails to comply with any provision of this Chapter and the City determines that the failure was without just cause and, in a manner consistent with the procedures specified in this Chapter, the Director reasonably determines that the default can be remedied by a withdrawal from the Security Fund or is nevertheless subject to • liquidated damages, then, in any such event, the Director may immediately -72- City of NB 05/03/2004 • withdraw the amount thereof from the Security Fund, with interest and any liquidated damages. Upon such withdrawal, the Director shall notify the Company of the amount and the date of withdrawal. iii. Within thirty (30) days after notice to Company that any amount has been withdrawn by City from the Security Fund, the Company shall deposit a sum of money sufficient to restore the Security Fund to the original amount. iv. The rights reserved to the City with respect to the Security Fund are in addition to all other rights of the City, and no action, proceeding or exercise of any right with respect to such security fund shall affect any other right the City may have. 2. Faithful Performance Bond and Labor and Materials Bond. Prior to issuance of any PROW Permit to construct Facilities in the Public Right of Way, the Director shall require Company to furnish proof of the posting of a Faithful Performance Bond and /or Labor and Materials Bond in favor of the City, with corporate surety approved by the Director in the sum specified in any PROW Permit, and conditioned that the Company shall well and truly observe, fulfill, and perform each term and condition of any PROW Permit; provided, however, that such bond(s) shall not be required after certification by Director of the completion of construction. The corporate surety must be authorized to issue such bonds in the State of California, and the bond must be obtained and secured through an agent approved by the Director. During the course of construction, the amount of the bond(s) may from time to time be reduced, as provided in any PROW Permit. Written evidence of payment of premiums shall be filed with the Director. • Section 5.44.070 Services. r LJ a. Services to be Provided. A Cable System shall provide, as a minimum, the broad programming categories specified in the Franchise. b. Changes in Services. Company shall follow Section 5.44.090 when making any changes in rates, programming services or channel position in the System. c. Non - discrimination. A Company shall not discriminate between or among Subscribers within one type or class in the availability of services, at either standard or differential rates according to published rate schedules, except as otherwise authorized by law. No charges may be made for services except as listed in published schedules which are available for inspection by anyone at Company's office, quoted by Company on the telephone, and displayed or communicated to all potential Subscribers. 2. The Company shall furnish and maintain Cable Services to each person who makes a bona fide request to receive any programming service. Nothing in this Chapter shall limit the right of the Company to deny Cable Service to any household or individual which has a negative credit or service history with the Company, which may include non - payment of bills or theft or damage to the Company's equipment, or who has threatened or assaulted employees of the Company in the course of their employment. -13- City of NB 05/03/2004 d. Prepayment. Company may not charge Subscribers for services more than one (1) • month in advance unless an individual Subscriber requests a longer period. Bills may be due and payable upon mailing but shall not be delinquent, and no late charge penalties shall be assessed, except as provided in state law. All bills and billing statements shall clearly indicate the billing period, and the actual due date. e. Disconnect for Cause. Company may disconnect a Subscriber only for cause, which shall include, without limitation, the following: 1. Payment delinquency in excess of forty -five (45) days. 2. Willful or negligent damage to or misappropriation of Company's property. 3. Monitoring, tapping, or tampering with Company's system, signals, or service. 4. Threats of violence to Company's employees or property. f. Reconnection. Company shall, upon Subscriber's written request, reconnect service that has been disconnected for payment delinquency when payment has removed the delinquency. If authorized by applicable law, a published standard charge may be made for reconnection. Company shall not be required to make more than three (3) reconnections for the same subscriber if the disconnections involved were caused by payment delinquency within any previous twenty -four (24) month period. Reconnection for disconnections covered by Section 5.44.070(e)(2), (3), and (4) shall be at Company's sole discretion. g. Installations. • 1. Company shall promptly provide and maintain service as specified in the Franchise to the residential, commercial, and industrial structures in the Franchise Service Area, as defined in the Franchise, upon request of the lawful occupant or owner. Where a new Drop is required to provide service, Company shall advise each Subscriber that the Subscriber has the right to require that installation be done over any route on the Subscriber's property, and in any manner the Subscriber may elect which is technically feasible, consistent with the Building Code, and consistent with proper construction practices. If the Subscriber requests installation other than a standard installation, then the Subscriber may be required to pay the fee required in paragraph (h). 3. For purposes of this paragraph, a standard installation shall include installation of drop cable with fittings up to one hundred and fifty feet (150) feet from the CA1V distribution system measured along the cable from the center line of the street or utility easement through the house wall or, at the Subscriber's option, through the floor from a house vent or crawl space directly to the Subscriber's television set with five feet of cable from the wall or floor entry to the N set. Also included as part of a standard installation is the grounding cable, fine tuning of the television set in order to insure the reception of Cable Service, and the provision by the Company of the appropriate literature and information. 4. After Cable Service has been established by activating trunk or distribution cables for any area, Company shall provide Cable Service to any person requesting Cable • Service in that area within nine (9) calendar days from the date of request, provided -74- City of NB 05103/2004 • that the Company is able to secure all access rights necessary to extend service to that potential Subscriber within that nine (9) day period on reasonable terms and conditions. h. Non - Standard Installations. For each non - standard installation, a Company may charge the Subscriber for the cost of material and labor in excess of that required for a Standard Installation. Company shall provide each Subscriber a written estimate of all charges for a non- standard installation prior to installation and obtain Subscriber's written authorization in advance for all nonstandard installation charges. i. Converters(Terminals. At the time a converter or terminal is required for Subscribers to have access to all services on its System, Company shall make them available to Subscribers for a fee. Company may require each Subscriber who elects to install a converter or terminal to furnish a security deposit. Each converter or terminal device shall be and remain the property of the Company. Company shall be responsible for maintenance and repair of all equipment owned by Company and may replace it as Company may from time -to -time elect, except that Subscriber shall be responsible for loss of or damage to any device while in the Subscriber's possession. 2. Upon termination or cancellation of a Subscriber's service, the Subscriber shall promptly return Company's property to Company in the same condition as received excepting reasonable wear and tear. • 3. Company may apply the security deposit against any sum due from Subscriber for loss of or damage to a converter or terminal exceeding reasonable wear and tear. In the event that no security deposit has been required, the Company may charge the Subscriber for any damage exceeding reasonable wear and tear. 4. If Company has no claim against the Subscriber's security deposit, Company shall return it, or the balance, to the Subscriber within thirty (30) days of return of the converter or terminal. Section 5.44.080 Design and Construction of System The System shall be designed and constructed in accordance with the provisions of Chapter 13.20 of the Newport Beach Municipal Code and the Franchise. Construction components and techniques shall be in accordance with Chapter 13.20, the Franchise and all applicable law. Section 5.44.090 Operations and Maintenance. a. Customer Service Standards. The Company shall comply with the following Standards for Customer Service: 1. Service Area Office. The Company shall maintain an office in the Service Area, or at another location as is approved by the City in writing. That office must be open during all usual business hours, but in no case less than forty eight (48) hours per • week, including during at least one weekend day per week. -75- City of NB 05/03/2004 2. Customer Service Center. • i. Company shall have a publicly listed, non -long- distance - charge telephone number that is in operation to receive Subscriber Complaints and requests on a 24 -hour basis. This telephone number shall be listed prominently on the front page of Subscribers' billing in bold print. ii. A Company shall have a telephone service system to receive all construction and service complaints. This telephone service shall be in operation no less than 48 hours each week including eight hours at least one weekend day. iii. A sufficient number of customer service representatives shall be provided so that callers are not required to wait more than thirty (30) seconds before being connected to a customer service representative ninety percent (90 %) of the time, measured quarterly, or to receive busy signals more than three percent (3 %) of the time, measured quarterly. iv. The telephone number of the local office shall be listed in the telephone directory serving the City of Newport Beach. V. The telephone service system shall be capable of generating reports relating to answer times, response times, hold times, and abandoned calls. vi. Customer service personnel shall identify themselves immediately and when requested, a Spanish- speaking representative will be available for non - English speaking subscriber complaints. • vii. Customers shall have the right to speak with a supervisor, and if none is available, a supervisor shall return the customer's call within one working -day. 3. Subscriber Complaint Log. The Company shall maintain information of all Complaints and their disposition, and a summary thereof shall be submitted to City on a quarterly basis. 4. Complaint Response Times and Verification. The Company shall respond to complaints as follows: i. Within eight (8) hours after receipt of a request for repairs relating to a Cable Service Interruption affecting at least ten (10) percent of the Subscribers of the System; ii. Within twenty -four (24) hours after receipt of requests for service related to all other Cable Service Interruptions; and iii. Within forty -eight (48) hours for all other complaints and requests for repair. All Cable System related problems shall be resolved within five (5) business days unless technically infeasible. Verification of Subscriber complaints, including but not limited to billing complaints, and resolution must occur within forty -eight (48) hours (provided that the schedule or preferences of the person requesting installation have not been responsible for the delay); and in any event, resolution must occur within • one (1) week. Those matters requiring additional maintenance, repair, or technical -76- City of NB 0510312004 • adjustments that are documentable as necessitating in excess of one (1) week to reasonably complete, must be finally resolved within thirty (30) days of the initial complaint. The City Manager's office may require reasonable documentation to be provided by the Company to substantiate the request for additional time to resolve a complaint. 5. Identification. All officers, agents, or employees of a Company, including its contractors or subcontractors, who come into contact with members of the public shall wear on at all times on their outer clothing a photo - identification card in a form reasonably acceptable to City. Company shall account for all identification cards at all times. Every vehicle of Company, or its major subcontractors, shall be clearly identifiable as working for that Company. 6. Charges for Repairs. No charge shall be made to a Subscriber for service or repairs, except that Company may charge for service calls not related to its Cable System, or that are caused by the Subscriber or members of its household, or the Subscriber's agents or guests. b. System Performance Audit. The Franchise shall direct the following: 1. City shall require that a System Performance Audit be conducted biannually at Company's expense by an independent technical consultant selected by City to verify that the System complies with all technical standards, including but not limited to signal strength, and other specifications of the Franchise. Upon completion of an Audit, the Company and City shall meet to review the performance of the Cable • System. The reports required by this Chapter regarding Subscriber complaints, the records of performance audits and tests, and the opinion survey report shall be utilized as the basis for review. In addition, any Subscriber may submit complaints prior to or during the review meetings, either orally or in writing, and these shall also be considered. Within thirty (30) days after the conclusion of the System Performance Audit review meetings, City shall issue findings with respect to the adequacy of System performance and quality of service. If areas of non - compliance are found, City may direct Company to correct the non - compliance within a period of time as City determines is reasonable. 2. Participation by the City and the Company in this process shall not waive any rights they may possess under applicable federal or state law. 3. In addition to the Performance Audit described above, City may conduct audits of the same or lesser magnitude, at its sole expense, when and if determined necessary or appropriate by City. c. System Technical Data. Company shall provide and maintain system technical data, including but not limited to signal strength testing information. All technical data reasonably necessary to demonstrate a Company's compliance with FCC regulations, this Chapter, and the Franchise shall be available for City's inspection during normal business hours upon two (2) business days notice. In the event of System failure or • other operating emergency, the technical data will be made available at any time, so long as the provision of the data does not unreasonably interfere with Company's operations. City of NB 05/0312004 System Location Data. The Company shall provide the City with data in a digital or other • format specified by the City which details and documents all the geographic locations of Facilities located in PROW. The computer disk or other record shall be updated whenever there have been significant changes in the location of the Facilities or at the Directors discretion. In addition, the Company shall maintain in its local office a complete, fully- dimensioned, and up -to -date set of as -built system maps and drawings upon completion of construction. As -built drawings shall show all Facilities. The scale of maps and drawings shall be sufficient to show the required details in easily readable form and size. e. Emergency Repair Capability. It shall be Company's responsibility to assure that its personnel, qualified to make repairs, are available at all reasonable times and that they are supplied with keys, equipment location instructions, and technical information necessary to begin repairs upon notification of the need to maintain or restore continuous service to the System. Refund. When a Subscriber voluntarily discontinues service, Company shall refund, within thirty (30) days of the discontinuance of service the unused portion of any advance payments or deposits after deducting any date of discontinuance. Unused payment portions which Subscriber has paid for service yet will not Subscribers discontinuation of service. f. Disabled Access. charges currently due through the shall be the percentage of time for receive the service because of the The Company shall provide maximum practicable availability of the Services and • facilities of the System to disabled persons. At a minimum, the Company shall provide a single remote control device for each television set connected to the Service to those Subscribers who are paraplegic or quadriplegic. 2. Upon initiation of Service in the City, the Company shall submit to the City a plan and /or report describing the equipment, facilities, and ongoing services the Company intends to or does make available to disabled persons. Information regarding the facilities, equipment, and ongoing services for disabled persons shall be kept updated and the Company shall promptly submit to the City notification of any deletions or additions to the information. 3. The Company shall provide within forty -five (45) days of a request from a Subscriber, for rental or purchase, equipment which facilitates the reception of all cable channels by hearing- impaired Subscribers in accordance with the FCC's regulations regarding Closed Captioning. The Company shall also provide TDD (or equivalent) equipment at the Company office that will allow the Subscribers to contact the Company for any reason related to the System. g. Installations. 1. All installations will include appropriate grounding, adjustment of the television set in order to receive Service, and the provision of required Subscriber information and literature to instruct the Subscriber in the utilization of the Services. • -18- City of NB 05/03/2004 • 2. The Company shall offer Subscribers the option to receive an A/B switch at the time of initial Service installation for no additional installation cost, and shall provide Subscribers with written information on how to use an A/B switch. Upon Subscriber request, the Company shall provide an A/B switch after the initial installation of Service. If the Subscriber requests installation of the A/B switch, the Company may charge reasonable fees for the installation which fee shall not exceed the maximum rate permitted by applicable law. 4. When applicable, if the Company cannot perform standard installations within nine (9) calendar days of request by a Subscriber (provided that the schedule or preferences of the person requesting installation have not been responsible for the delay), the Subscriber may request and is entitled to receive a $20.00 credit. Repeated failure to perform standard installations within the nine (9) calendar days or to provide the credit for late installations shall be grounds for Franchise revocation or other enforcement actions. h. Service Interruptions and Other Service Problems. The Company shall render efficient service, make repairs promptly, and interrupt Service only if unavoidably necessary and for the shortest period possible. The interruptions, insofar as possible, shall be preceded by reasonable notice to each affected person and shall occur during periods of minimum System use. 2. The Company shall promptly notify the City of any significant "Service Interruption" in • the operation of the System. For the purposes of this Section, a "significant Service Interruption in the operation of the System" shall mean any interruption of Cable Services of at least four (4) continuous hours to at least ten percent (10 %) of the Subscribers in the area or areas of the Company served by the Company. 3. The Company shall exercise its best efforts to limit any Service Interruption for the purpose of maintaining, repairing, or reconstruction of the System to periods of minimum use. Except in an emergency or other situation necessitating a more expedited or alternative notification procedure, the Company may schedule a Service Interruption for a period of more than four (4) hours during any twenty -four (24) hour period only after the Company and each affected Subscriber in the Company have been given twenty -four (24) hours prior notice of the proposed interruption. 4. Technicians employed by the Company and capable of performing Service - related emergency repairs and maintenance must be available twenty -four (24) hours a day, every day, including weekends and holidays. 5. Excluding conditions beyond the control of the Company, the Company will begin working on Service Interruptions promptly and in no event later than twenty -four (24) hours after the interruption becomes known (including weekends and holidays). "Working on" constitutes taking positive steps toward rectifying the problem and not merely acknowledging the problem. 6. Automatic Credits. The Franchise shall require that: • i. Outage of All Channels. The Company shall provide an automatic credit to all affected Subscribers within the Outage area when there is an Outage of all -19- City of NB 05/03/2004 channels for a period of twenty -four (24) consecutive hours or more, regardless • of the cause of the Outage. The credit for an Outage shall equal, at a minimum, the value of one - thirtieth (1/30) of each Subscriber's monthly bill for the first twenty -four (24) consecutive hour period and prorated for each additional four (4) hour period or portion thereof that the Outage continues. ii. Outage of Premium Service. The Company shall provide an automatic credit to all affected Subscribers when there is an Outage of any Premium Service for a period of twenty -four (24) consecutive hours or more which affects an entire franchise area, or other discrete area of the Company served by the Company, regardless of the cause of the Outage. The credit shall equal, at a minimum, the value of one - thirtieth (1/30) of each Subscriber's monthly bill for that Premium Service for the first twenty -four (24) hour consecutive hour period and prorated for each additional four (4) hour period or portion thereof that the Outage continues. iii. Outage of Non - Premium Service. The Company shal I provide a credit to a Subscriber whenever an Outage or Outages of four or more hours in a twenty - four (24) hour period has affected any of the non - premium channels received by a Subscriber as. part of their Service. The credit shall equal the value of one - thirtieth (1/30) of each Subscriber's monthly bill for Outages of four (4) hours or greater duration occurring in a twenty -four (24) hour period. In the event that a premium channel is affected by the Outage, the credit shall equal the value of one - thirtieth (1/30) the Subscriber's monthly premium rate for each Outage of four (4) hours or greater duration occurring in a twenty -four (24) hour period. The Company need not provide a credit under this paragraph (iii) if the Company has • provided a credit under paragraph (i) or (ii) to the same subscribers for the same Outage. 7. Repeated failure to provide the proper credit for Outages shall be grounds for Franchise revocation or other enforcement actions. Service Appointments. The Franchise shall require the Company to comply with the following: The "appointment window alternatives for installations, service calls for Cable Service, and other installation activities will be either a specific time or, at maximum, a four -hour time block during normal business hours. The Company may schedule services calls for Cable Service and other installation activities outside or normal business hours for the convenience of the Subscriber. 2. If the Company does not arrive for appointments for installations or service calls within a designated 4 -hour time frame agreed to by the Subscriber, the Subscriber may request and is entitled to receive a $20.00 credit. If the Company fails to provide a credit, and the request was made by the Subscriber within 60 days of the missed appointment, the City may direct the Company to issue the credit. Repeated failure to provide the credit shall be grounds for Franchise revocation. 3. The Company may not cancel an appointment with a Subscriber after the close of business on the business day prior to the scheduled appointment. • -20- City of NB 05/03/2004 • 4. If the Company's representative is running late for an appointment with a Subscriber and will not be able to keep the appointment as scheduled, the Company will document a diligent effort to contact the Subscriber directly. If, however, the Subscriber is unavailable at the time the contact attempt is made, the Company will attempt a second documented contact at least one more time during the previously agreed upon appointment window. The appointment will be rescheduled, as necessary, at a time which is convenient to the Subscriber. Contacting the Subscriber will not necessarily excuse a missed appointment. In the event that it is necessary for Company to contact the Subscriber regarding the scheduled appointment and Subscriber is not available, Company will use its best efforts to provide the Subscriber with a phone number to contact Company. j. Annual Notice. At least once a year, the Company shall communicate in writing with all Subscribers. At a minimum, this communication shall comply with Federal regulations and shall contain statements or provisions addressing each of the following issues: Complaint Handling. Any complaints or inquiries not satisfactorily handled by the Company may be referred to the Company Manager, whose phone number shall be shown on the communication. 2. Schedule. A complete schedule of all current programming services, excluding pay - per -view, rates and charges and promotional offers. 3. Subscriber Bill of Rights. The Company shall provide Subscribers with the Subscriber Bill of Rights ( "SBR "). The SBR may be in a form commonly distributed • by a Company throughout its service area, provided that the SBR describes, in understandable language: i. The Subscriber's rights and obligations that are generally provided under the Franchise and federal law, including a description of how to contact the Company and, if necessary, the City, in the event of an unresolved Subscriber complaint; H. The Subscriber's rights to credits or free service when any of the conditions described within Section 5.44.090 (h)(6) apply. k. Notices of Rate, Pricing, or Services Changes. Notice of any pricing changes or additional charges and /or any changes in programming services must be made as soon as possible. In no instance shall a company increase rates or change a programming schedule without at least thirty (30) days advance notice of the changes. 2. Notices of changes in rates shall indicate the new rate inclusive of all fees and /or other fees and the amount the rate has increased or decreased from the current rate. Specific words such as "increase" or "decrease" must be used to describe the changes (as opposed to less specific terms, such as "adjustment "). 3. Notices of changes of programming services and /or channel locations shall include a description of the new programming service, the specific Channel Location, and the hours of operation of that programming service. In addition, should the Channel • Location, hours of operation, or existence of other programming services be affected -21- City of NB 05/03/2004 by the introduction of a new service, this information must also be included in the • notice. In order that Subscribers are fully apprised of the charges they may incur, the Company shall advertise rates that include all costs and fees. I. Other Notices. 1. Free Programming. If Company offers any channels with programming rated NC -17, R, X, or the equivalents thereof full or part-time without charge, Company shall include the rating(s) of the programming to be made available for viewing and the right of the Subscriber to have the Company block the programming. The Company shall provide, by sale or lease, a device for blocking this programming. 2. Notices about the Franchise Fee. Whenever a Company describes to Subscribers in writing the City's collection or administration of the Franchise Fee, it shall do so in a manner and forth acceptable to the City. 3. Notices to New Subscribers. Before providing Cable Service to any Subscriber, Company shall provide the Subscriber Bill of Rights to Subscriber and shall include a written notice to the Subscriber containing substantially the following information: "Subscriber understands that (insert Name of Company) uses public rights -of -way and other facilities of the City of Newport Beach in providing service and that this continued use cannot be guaranteed. Subscriber agrees not to make any claims against the City of Newport Beach or its officers or employees in the event that the use is denied for any reason, • and (insert Name of Company) is unable, in its discretion, to provide service over alternate routes." m. Disconnections /Denial of Service. The Company shall not terminate residential Service for nonpayment of a delinquent account unless the Company furnishes a notice of the delinquency and impending termination at least fifteen (15) days prior to the proposed termination. The notice shall be mailed, postage prepaid, to the Subscriber to whom the Service is billed. This notice shall not be mailed until the sixteenth (16'h) day after the date the bill for Services was mailed to the Subscriber. The notice of delinquency and impending termination may be part of a billing statement. 2. Notice of Termination. Every notice of termination of Service shall include all of the following information: The name and address of the Subscriber whose account is delinquent; ii. The amount of the delinquency; iii. The date by which payment is required in order to avoid termination of Service; iv. The telephone number of a representative of the Company who can provide additional information and handle complaints or initiate an investigation • concerning the Service and charges in question. -22- City of NB 05/03/2004 • 3. The Company shall only terminate Cable Service on days when the Subscriber can reach a representative of the Company either in person or by telephone. Cable Service terminated without good cause must be restored without charge for the Cable Service restoration. Good cause includes, but is not limited to, failure to pay, payment by check for which there are insufficient funds, theft of Service, abuse of equipment or System personnel, or other similar Subscriber actions. n. Deposits Refunds and Credits. The Company may require refundable deposits in circumstances where deposits are necessary to protect equipment or to ensure payment where there is reasonable evidence of a risk of nonpayment, provided that the Company shall be required to pay simple interest at a rate of one -half percent (1/2 %) per month (6% per year). Interest shall be accrued and payable upon termination of Service. Upon termination of Service for any reason, Subscribers will be entitled to receive a refund or credit against amounts owed the Company equal to the deposit plus accumulated interest. 2. Refund checks will be issued promptly following the resolution of the event giving rise to the refund; and by the earlier of either: The Subscriber's next billing cycle; or Thirty (30) days. 3. If the Company does not mail a check for a refund (including applicable interest) to 1011 any Subscriber disconnecting Service with an outstanding credit within thirty (30) days of the date Cable Service is ended, and the Subscriber has returned all Company owned equipment, the Subscriber may request and is entitled to receive a $4.75 (or such other amount as may be permitted pursuant to State law) payment, in addition to the total refund (and applicable interest) due. If the Company fails to provide the $4.75 payment and the request was made by the Subscriber within sixty (60) days after failure to receive the refund, the City may direct the Company to provide the $4.75 payment as well as any outstanding refund (and applicable interest) due. Repeated failure to provide the $4.75 payment shall be grounds for Franchise revocation and /or other enforcement actions. 4. Credits for Cable Service will be issued no later than the Subscriber's next billing cycle following the determination that a credit is warranted. o. Rates. Fees, And Charges. 1. The Company shall not, except to the extent expressly permitted by law, impose any fee or charge on any Subscriber for. i. Any service call to a Subscriber's premises to perform any repair or maintenance work related to Company, installed equipment necessary to receive Service, except any work which was necessitated by a negligent or wrongful act of the Subscriber; or • ii. The disconnection of any Services to a Subscriber, provided that the Company may impose appropriate charges if, at the time of disconnection, some or all of the Company's equipment is not retumed to the Company or the Subscriber has -23- City of NB 05/03/2004 not paid all outstanding fees and charges due to the Company; or there is • damage to the equipment of the Company, excluding normal wear and tear and the circumstances described in the next paragraph. 2. Where the actions of the Company, its agent(s) or subcontractor(s) can be shown upon a reasonable demonstration of evidence to have contributed to the theft, loss or damage of a converter or other equipment lawfully used by a Subscriber, the Subscriber's liability with respect to the converter or other equipment shall be reduced to the extent of the contributing actions. 3. All charges for Services must be applied on a nondiscriminatory basis recognizing that the Cable Act allows for reasonable discounts to senior citizens and/or the economically disadvantaged and that a Company may, upon reasonable notice to Subscribers, conduct promotional campaigns in which rates are discounted or waived, and may offer bulk rate discounts for multiple dwelling units, hotels, motels, and similar institutions. p. Enforcement. 1. Repeated failure to comply with any or all of the provisions delineated above shall be grounds for Franchise revocation in accordance with the Franchise revocation procedures and /or other enforcement actions. 2. The City may seek injunctive relief or any other judicial remedy available pursuant to state or federal law in order to enforce compliance with these standards. q. Rights Reserved By City. • 1. Additional Subscriber Service Standards. The City reserves the right to establish additional, reasonable Subscriber Cable Service standards from time to time, as may be necessary, after making a finding of need and after notice to and opportunity to be heard from the Company has been afforded. 2. Rate Regulation. The City reserves the right to regulate rates for Cable Service to the fullest extent permitted by law. Notwithstanding anything in these standards to the contrary, in the event that the Cable Act is amended or repealed, or restrictions on the authority of the City to regulate rates are otherwise removed or lessened, or the FCC or any court permits the City to regulate rates, the City may, at its discretion, establish additional procedures and standards for rates and regulate rates to the fullest extent of its regulatory authority under federal, State, and local laws. 3. Performance Meetings. Upon request of the City, the Company shall meet with the City to review the requirements set forth in this Chapter or the Franchise. 4. Cable Review Board. The City reserves the right to create and maintain a Cable Review Board. Upon request of City, the Company shall send a representative to Cable Review Board meetings to provide cable related information and to respond to Subscriber and City inquiries and complaints. • -24- City of NB 05/03/2004 • Section 5.44.100 Violations. a. Use of Public Streets. Pursuant to Section 1300 of the City Charter, it is unlawful for any person to construct, install, or maintain in any public place within the City's Territory, or upon any easement owned or controlled by a public utility, or within any other public property of City, or within any privately -owned area within City's jurisdiction which is not yet, but is designated as, a proposed public place on a tentative subdivision map approved by City, any equipment, Facilities, or System for distributing signals or services through a cable television system, without a valid Franchise. b. Unauthorized Connections. It shall be unlawful for any person to make or use any unauthorized connection to, or to monitor, tap, receive or send any signal or service via a franchised System, or to enable any Person to receive or use any service, television or radio signal, picture, program, or sound, or any other signal without payment to. the owner of the System. c. Tampering with Facilities. It shall be unlawful, without the consent of the owner, to willfully attach to, tamper with, modify, remove or injure any physical part of or signals on a franchised System. However, the City or its contractors may remove or modify franchised System if Company fails to locate or relocate System provided that City has adequately notified Company via the Underground Service Alert or similar system. Section 5.44.110 Termination and Related Rights. a. Material Breach. • 1. In the event that the Company fails to comply with a material provision of any franchise, then, in accordance with the procedures provided herein, the City may revoke the franchise granted herein and terminate any franchise in accordance with the procedure set forth below. 2. A failure to comply with a material provision of any Franchise shall include, without limitation, any of the following acts or failures to act by the Company, an Affiliated Person or the Guarantor of any of the following events, unless excused by the City. Substantial failure to provide required financial information; ii. Substantial failure to satisfy the requirements regarding System characteristics or repeated failure to meet the technical performance standards, as provided in any franchise; iii. Substantial or repeated failure to provide any Cable Service to any Person as required by any franchise; iv. Substantial failure to maintain the mix, level, and quality of Services within the broad categories of video programming and other services as set forth in any franchise; V. Abandonment of the System, in whole or in material part, without the prior • written consent of the City; -25- City of NB 05/03/2004 A. Substantial failure to supply the PEG Channels and related facilities and • equipment after the date by which the items must be supplied, as provided in any franchise; vii. Substantial failure to comply with interconnection requirements as provided in any franchise; viii. Substantial and repeated imposition of any nonstandard Installation and other charges for Basic Service which are discriminatory; ix. Substantial and repeated failure to comply with consumer service standards; X. Substantial failure to comply with the privacy rights of Subscribers as provided in this Chapter, any franchise, or Section 631 of the Cable Act or Section 637.5 of the California Penal Code; A. Substantial failure to make any of the Franchise Fee compensation payments as provided herein, or any other payments required by this Chapter or any franchise, or to maintain the bond or other instrument in the amount required herein; xii. Substantial failure to comply with any rules, laws, regulations, orders or other directives of the City issued pursuant to the police powers or pursuant to this Chapter or any franchise; xiii_ The taking of any material action which requires the approval or consent of • the City Council without having first obtained the approval or consent, as provided in Section 5.44.030 of this Chapter; xiv. Substantial failure to furnish and maintain throughout the term of any franchise the liability and indemnification insurance coverage; xv. To engage in a course of conduct intentionally designed to practice any fraud or deceit upon the City, any Subscriber, or any other use of the System; xvi. Failure to cooperate fully and faithfully with any lawful investigation, audit or inquiry conducted by a governmental agency; xvii. Any material written misrepresentation, intentionally made by or on behalf of the Company in its proposal for the franchise granted pursuant to any franchise, or in connection with the negotiation or renegotiation of, or any amendment or other modification to any franchise, to the extent that any misrepresentation was relied upon by the City; xviii_ The conviction or determination of factual guilt, of the Company, any Affiliated Person, any director or executive officer of the Company or of an Affiliated Person, any Person holding Control of or a Controlling Interest in the Company, or any employee or agent of the Company or of any Affiliated Person acting under the express direction or with the actual consent of the Company, its directors or officers, of any criminal offense, including, without limitation, bribery, fraud or misrepresentation arising out of or in connection • with the award, transfer, application for rate increase, or other regulation of -26- City of NB 05/03/2004 • any franchise, provided that the right to terminate any franchise in the event of the convictions shall arise only with respect to any of the foregoing convictions of the Company itself and, in the event of the conviction of any other Persons specified in this subsection, if the Company fails to disassociate itself from, or terminate the employment of, other Persons with respect to activities in the Franchise Area or any other activities affecting the System, within thirty (30) days after the time in which appeals from a conviction may be taken, or within thirty (30) days following the final determination of all appeals which are in fact taken; xix. The conviction of any City officer, City employee, or City agent of the offense of bribery or fraud which arises out of or in connection with any intentional action by the Company, any Affiliated Person, any director or executive officer of the Company or of any Affiliated Person, any Person holding Control of or a Controlling Interest in the Company, or of any employee or agent of the Company or of any Affiliated Person acting under the express direction or actual consent of the Company or any of the foregoing, which act was undertaken for the benefit of the Company; xx. Any material false entry knowingly made in the books or accounts or records of the Company, or any substantial false statements knowingly made in any report or filing to the City or any governmental agency or otherwise by the Company, any director, officer, or other Person holding a Controlling Interest in the Company, any Affiliated Person, or any employee or agent of the Company acting under the express direction or with the actual consent of the • Company; xxi. Failure to comply with a duly constituted lawful order or ruling of any City regulatory body having jurisdiction over the Company; xxii. Substantial failure to comply with the access origination point requirements as set forth in any franchise; or xxiii. Substantial failure to comply with the construction requirements set forth in any franchise. Notwithstanding the foregoing, if, as a result of a failure or alleged failure to comply with a material provision of any franchise as delineated in the foregoing subsections, the Company is unable to comply with any other material provision(s) which necessarily and directly arise(s) out of the failure or alleged failure as delineated in the subsections, the inability to comply with the other provision(s) shall not be deemed to be an independent failure to comply with a material provision of any franchise. 3. The City Council may exercise its right to revoke and terminate the franchise for a failure by the Company to comply with a material provision of this Chapter and /or any franchise in accordance with the following procedures: i. The City shall notify the Company, in writing, of an alleged failure to comply • with a material provision of the Franchise. The notice shall specify the alleged failure with reasonable particularity. The Company shall, within forty - five (45) days after receipt of the notice, either cure the alleged failure or, in -27- City of NB 05/03/2004 the event the failure cannot be reasonably cured within forty -five (45) days, • within a reasonable time, provided the Company commences to cure within the forty -five (45) days and diligently pursues the cure to completion, or, in a written response to the City, the Company shall either present facts and arguments in refutation or excuse of the alleged failure or state that the alleged failure will be cured and set forth the method and time schedule for accomplishing the cure. ii. The City shall investigate: (a) whether a failure to comply with a material provision has occurred; (b) whether the failure is excusable; and (c) whether the failure has been cured or will be cured by the Company. iii. If the City determines that a failure to comply with a material provision has occurred and that either the failure is not excusable or has not been or will not be cured by the Company, then the City shall so notify the Company. iv. At the conclusion of or in the event that the investigation is not concluded, as provided above, the City shall, within thirty (30) days, provide notice of a public hearing at which the Company shall have the opportunity to respond to the claim that a material breach has occurred and to present facts and arguments in refutation or excuse of an alleged breach, or to demonstrate that a failure shall be cured as provided in any franchise. All final City determinations with respect to revocation or termination must be made by the City Council. Notwithstanding any final determination by the City Council, the Company maintains its rights of appeal, if any, under applicable • law. 4. Circumstances Beyond Control of the Company. The Company shall not be subject to sanction when its performance is prevented for reasons beyond its control, unless the occurrences or conditions are intentionally caused or created by the Company, or by an Affiliated Person at the Company's express direction. 5. Pending Litigation. Except when enjoined by a court of law, litigation pending against the Company shall not excuse the Company from the performance of its obligations under this Agreement. The Company may petition the City to be excused from the perforiance of its obligation under this Chapter because of pending litigation which the City may grant or deny in the exercise of its discretion. b. Termination The termination of any franchise and the Company's rights therein shall become effective upon the earliest to occur of the: i. Revocation of the franchise by action of the City Council; ii. Abandonment of the System, in whole or material part, by the Company without the express prior approval of the City; or iii. Expiration of the term of the franchise, if not renewed or extended. In the event of • any termination, the City shall have all rights as provided in any franchise, including, without limitation, the right to order the Company to continue to operate -28- City of NB 0510312004 • the System or to then or thereafter remove the System, or to acquire or affect a transfer of the System. In any event, the Company maintains its rights of appeal, if any, under applicable law. 2. In the event of any termination of any franchise, the City Council may direct the Company to operate the System on behalf of the City pursuant to the provisions of this Chapter and additional terms and conditions as are equitable and mutually agreeable to the City and the Company or a third party, for a period of up to twelve (12) months, in which event the Company or third party, as applicable, shall be entitled to all revenues generated by the System during a period of continued operation. In the case of operation of the System by a third party, the Company shall be entitled to a fair rental for use of the System. 3. Upon the termination of any franchise due to the expiration of the term of the franchise granted herein, if not renewed or extended, the Company shall be entitled to cancel the performance bond or letter of credit, after account is taken for all offsets necessary to compensate the City for any uncured failure to comply with any provision of any franchise as herein provided. If the Company continues to operate the System following the termination of any franchise, the Company shall not be entitled to cancel a bond or letter of credit until the end of continued operation. In the event of a termination of any franchise for cause due to a material breach by the Company or otherwise, the bond or letter of credit shall become the property of the City to the extent necessary to cover any costs, loss, or damage incurred by the City as a result of the termination or material breach, provided that any amounts in excess • of the costs, loss or damage shall be refunded to the Company or surety, as applicable. 4. In the event of any termination, the City may purchase the Cable System in accordance with the procedures of this section. In this event, the price to be paid for the Cable System to Company shall be the price the Cable Act requires. 5. Upon any acquisition or transfer, and, if applicable, receipt of payment by the Company from the City, the Company shall: Cooperate with the City in maintaining the distribution of all Services over the System during acquisition or transfer of ownership; ii. Promptly execute all appropriate documents to transfer to the City or third party, free of any and all encumbrances, title to the System, as well as all contracts, leases, licenses, and rights necessary to maintain the System and the distribution of Services over the System; and iii. Promptly supply the City with all necessary records to operate the System, including, without limitation, all Subscriber records and plant equipment layout documents. 6. Upon any termination of any franchise, if so directed by the City, the Company shall, at its own cost and expense, promptly remove that part of the System located in the right -of -way and shall replace or repair and restore to serviceable condition each • affected Facility therein, in the manner as set forth in this Chapter and Chapter 13.20 of the Newport Beach Municipal Code. -29- City of NB 05/0312004 7. In the event of any acquisition of the System by the City pursuant to this Chapter, and • subject to the requirements of applicable law the City: i. Shall not be required to assume any of the obligations of any collective bargaining agreements or any other employment contract held by the Company or any other obligations of the Company to any of its officers, employees, or agents, including, without limitation, any pension or other retirement, or any insurance obligations; and ii. May lease, sell, operate, or otherwise dispose of all or any part of the System in any manner, provided that the Company may seek the award of any franchise to construct, operate, or maintain the System in connection with any sale. Section 5.44.120 Franchise Applications. Applicants for an initial franchise shall submit to the City, or to its designated representative, written application in a format provided by the City, at the time and place specified by the City for accepting applications, and accompanied by the designated application fee. A nonrefundable application fee, established by resolution of the City, shall accompany the application for an initial franchise to cover all costs associated with processing the application, including without limitation, costs of administrative review, financial, legal and technical evaluation of the applicant, the costs of consultants (including technical and legal experts), notice and publication requirements, and document preparation expenses. In the event that costs exceed the application fee, the applicant shall pay the difference to the City within twenty (20) days following receipt of an itemized statement of the costs. This provision is procedural and shall not constitute the grant of any right to a Company to renewal or otherwise. This • provision does not apply to any renewal of an existing franchise. Section 5.44.130 Records; Reports; Right to Inspect and Audit; Experts. a. Company to Provide Records. All reports and records required under this Section shall be furnished at the sole expense of the Company. b. Reports of Financial and Operating Activity. No later than ninety (90) days after the close of a Company's fiscal year, the Company shall submit an audited written report to the City which shall include: A Financial Report, audited and certified by a financial officer of Company, for all Cable System activity in the City during the previous fiscal year, including Gross Annual Receipts from all sources and gross subscriber revenues from each service. The Report must set out separately all gross receipts from all sources in the City and gross subscriber revenues from each Cable Service in the City, and all payments, deductions, and computations of franchise fees. 2. A summary of the previous year's subscriber totals, new services offered and System construction activity. 3. A current list of Company's officers, directors, and other principals if there has been any change in the previous year. 4. A list of stockholders or other equity investors holding five percent (5 %) or more of the • voting interests in Company if there has been any change in the previous year. -30- City of NB 05/03/2004 • c. Performance Tests and Compliance Reports. Upon written request of City, a Company shall provide a written report of any FCC or other performance tests conducted by the Company. In addition, the Company shall provide reports of the test and compliance procedures required by its franchise, or by this Chapter, no later than thirty (30) days after the completion of those tests and compliance procedures. d. Additional Reports and Data. The Company shall prepare and furnish to the City in writing, at the times and in the form prescribed by City, such additional reports or data as City may require to confirm and verify Company's compliance with the provisions of its franchise and this Chapter. e. Examination of Facilities. Upon two (2) business days notice, and during normal business hours, a Company shall permit examination, by any duly authorized representative of the City, of all Franchise property and facilities, together with any appurtenant property and facilities of the Company situated within the Public Rights -of -Way which are related to the Cable System. f. Right to Audit. 1. In addition to any other inspection rights under this Chapter or the Franchise, upon thirty (30) days prior written notice, the City shall have the right to inspect, examine, or audit, during normal business hours, all documents pertaining to a Company or any Affiliated Person which are reasonably necessary to ascertain a Company's compliance with its Franchise or this Chapter. All documents pertaining to financial matters which may be the subject of an audit by the City as set forth herein shall be • retained by a Company for a minimum of five (5) years during the term of and following the termination of a Franchise. Access by the City to any of the documents covered by this Section shall not be denied by the Company on grounds that the documents are alleged by the Company to contain proprietary information. 2. The City may require written certification by a Company's directors, officers, or other employees with respect to all documents referred to in this Section. 3. Any audit conducted by the City pursuant to this Section shall be conducted at City's expense. City shall prepare a written report containing its findings, a copy of which shall be mailed to a Company. Company shall reimburse the City for the expense of this audit if, as the result of the audit, it is determined that there is a shortfall of more than two percent (2 %) in the amount of franchise fees or other payments which have been made or will be made by a Company to the City pursuant to the terms of the Franchise. g. Retention of Experts. In the exercise of its rights under this Chapter, the City shall have the further right to retain technical experts and other consultants on a periodic basis for the purpose of monitoring, testing, and inspecting any construction, operation, maintenance or reconstruction of the System, and all parts thereof, or to ensure compliance with and enforcement of the provisions of this Chapter and the Franchise. The City shall bear the cost of retaining the experts, provided that, unless prohibited by applicable law, the Company shall reimburse the City for all expenses related to the retention of the experts where this Chapter or the Franchise so provide, or under either • of the following circumstances: -31- City of NB 0510312004 The Company has initiated proceedings which would normally require the City to • retain the experts, such as the filing of a request for approval of a transfer or change in Control, renewal to the extent allowed by law, expansion of the Franchise Service Area, or the modification or amendment of the Franchise; or 2. The reports of the experts submitted to the City reveal that the Company has failed to substantially comply with the terms and conditions of this Chapter or of the Franchise. If Company is required to reimburse City pursuant to this paragraph (g), City shall send Company an itemized description of the charges, and Company shall pay the amount within forty -five (45) days after the receipt of the description. Section 5.44.135 Indemnity and Liability Insurance. a. To the maximum extent permitted by applicable law, a Company shall at all times defend, indemnify, protect, save harmless, and exempt the City, the City Council, its officers, agents, servants, attorneys and employees, from any and all, penalties, damages or charges arising out of claims, suits, demands, causes of action, award of damages, imposition of fines and penalties, whether compensatory or punitive, or expenses arising therefrom, either at law or in equity, which arise out of, or are caused by, the construction, erection, location, performance, operation, maintenance, repair, installation, replacement, removal or restoration of Facilities within the City based upon any act or omission of a Company, its agents or employees, contractors, subcontractors, independent contractors, or representatives except for that which is attributable to the sole negligence or willful misconduct of the City, the City Council, its officers, agents, servants, attorneys and employees. With respect to the penalties, damages or charges • referenced herein, reasonable attorneys' fees, consultants' fees, and expert witness fees are included as those costs which shall be recovered by the City. b. Except as provided in or as supplemented by any Franchise Agreement, License or Permit, a Company shall secure and maintain, public liability, property damage insurance, and umbrella coverage in at least the following amounts: Public liability: Two (2) million dollars per person /per occurrence; 2. Property Damage: Two (2) million dollars per any one claim; 3. Umbrella liability: Five (5) million dollars. c. The public and personal liability and property damage insurance policy shall specifically include the City, the City Council, its employees, and agents as additional insureds. d. The public and personal liability and property damage insurance policies shall be issued by an agent or representative of an insurance company licensed to do business in the State and which has one of the three highest or best ratings from the Alfred M. Best Company. e. The public liability and property damage insurance policies shall contain an endorsement obligating the insurance company to furnish the Director with at least thirty (30) days written notice in advance of the cancellation of the policy. • -32- City of NB 05/0312004 • f. Renewal or replacement policies or certificates shall be delivered to the Director at least fifteen (15) days before the expiration of the insurance which such policies are to renew or be replaced. g. Before a Company commences any construction, the Company shall deliver the policies or certificates representing the insurance to the Director as required herein. h. The Director may adjust the coverage amounts specified in paragraph (b) of this Section provided that the adjustments result in the Company meeting or exceeding the coverage specified in this Section. Section 5.44.140 Miscellaneous Provisions. a. Captions. The section, subsection, paragraph, and subparagraph numbers and letters, and the captions throughout this Chapter, are intended to facilitate reading and reference. The numbers, letters, and captions shall not affect the meaning or interpretation of any part of this Chapter. b. Franchise References. A Franchise which cites, refers to, of otherwise incorporates this Chapter, or portions thereof, shall be deemed to be a Franchise issued under and subject to this Chapter. c. Filing. When not otherwise specified in this Chapter, all documents required to be filed with City shall be filed with the City's representative as designated by City. • d. Non - enforcement by the City. A Company shall not be excused from complying with any of the requirements of this Chapter, and of its Franchise, and all laws and regulations, or any subsequently adopted amendments to this Chapter, by any failure of the City on any one or more occasions to seek, or insist upon, compliance with the requirements or provisions of the Chapter or Franchise. e. Continuity of Service. It is the right of all Subscribers to receive Cable Services so long as their financial and other obligations to a Company are honored. In the event that a Company elects to rebuild, modify, or sell the System, a Company shall use due diligence and reasonable care to ensure that all Subscribers receive continuous, uninterrupted service. In the event of a transfer of the System by Company, the current Company shall cooperate with the City or new Company to operate the System for a temporary period, in order to maintain continuity of service to all Subscribers. In the event that Company, through its own fault, discontinues system -wide service for seventy -two (72) continuous hours, and Company is in material default of its Franchise, or if the Franchise is revoked by City (but not if City fails to renew the Franchise), City may, by resolution, when it deems reasonable cause to exist, assume operation of the System for the purpose of maintaining continuity of service. City's operation of the System may continue until the circumstances which, in the judgment of the City, threaten the continuity of service are resolved to City's satisfaction. City shall be entitled to the revenues for any period during which it operates the System. f. Operation by City. During any period when the System is being operated by City pursuant to paragraph (e) above, City shall, as it may deem necessary, make any changes in any aspect of operations that, in City's sole judgment, are required for the preservation of quality • of service and service continuity. -33- City of NB 05/03/2004 g. Management by City. City may, upon assuming operation of a System franchised • hereunder, appoint a manager to act for it in conducting the System's affairs. The manager shall have the authority as may be delegated by City and shall be solely responsible to City for management of the System. Company shall reimburse City for all its reasonable costs, in excess of System revenues, incurred during City's operation if the Franchise is in full force and effect during the period of City's operation. h. Notices. All notices and other communications to Company and to City shall be set forth in the Franchise. L Force Maieure; Company's Inability to Perform. In the event Company's performance of any of the terms, conditions, obligations, or requirements of this Chapter, or any Franchise granted hereunder, is prevented or impaired due to any cause beyond its reasonable control and not reasonably foreseeable, the inability to perform shall be deemed to be excused, and no penalties or sanctions shall be imposed as a result. The causes beyond Company's reasonable control and not reasonably foreseeable shall include, but not be limited to, any acts of God, civil emergencies, labor unrest, strikes, utility interruptions, inability to obtain access to an individual's property on reasonable terms, and any inability of a Company to secure all required authorizations or permits to utilize necessary poles or conduits, so long as Company uses due diligence to timely obtain the authorization or permits. j. Application. All of the provisions of this Chapter shall be applicable to all Cable Operators, Cable Systems, OVS Operators and OVS Systems to the greatest extent permissible under applicable law. k. Severability. If any provision of this Chapter is determined to be void or invalid by any • administrative or judicial tribunal, the provision shall be deemed severable and the invalidation shall not invalidate the entirety of this Chapter or any other provision. I. Possessory Interest. By accepting any PROW Permit granted pursuant to this Chapter, Company acknowledges that notice is and was hereby given to Company pursuant to California Revenue and Taxation Code Section 107.6 that the use or occupancy of any Public Property may cause certain taxes to be levied upon such interest. Company shall be solely liable for, and shall pay and discharge prior to delinquency, any and all possessory interest taxes or other taxes levied against its right to possession, occupancy or use of any PROW or Public Property pursuant to any right of possession, occupancy or use created by any PROW Permit. Section 3: That if any section, subsection, sentence, clause or phrase of this Ordinance is for any reason held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this Ordinance. The City Council hereby declares that it would have passed this Ordinance and each section, subsection, clause or phrase hereof, irrespective of the fact that any one to more sections, subsections, sentences, clauses and phrases be declared unconstitutional. Section 4: The Mayor shall sign and the City Clerk shall attest to the passage of this Ordinance. The City Clerk shall cause the same to be published once in the official newspaper within fifteen (15) days after its adoption. -34- City of NB 05/03/2004 11 !r:x • Section 5. The City Clerk is directed to certify to the passage and adoption of this Chapter and to cause it to be published or posted as required by law. PASSED, APPROVED and ADOPTED this 25`" day of May, 2004. TOD W. RIDGEWAY, Mayor ATTEST: LaVONNE HARKLESS, City Clerk STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss. CITY OF NEWPORT BEACH ) • I, , City Clerk of the City of Newport Beach, do hereby certify that the foregoing Ordinance No. 2004 -_ was introduced at a regular meeting of the City Council of the City of Newport Beach held on the 11'h day of May, 2004, and was thereafter duly and regularly passed and adopted by the Council of the City of Newport Beach at its regular meeting held on the 251" day of May, 2004, by the following vote: • AYES: NOES: ABSENT: ABSTAIN: This Ordinance has been published or posted pursuant to law. Witness my hand and official seal of the City of Newport Beach this 25 "' day of May, 2004. LaVONNE HARKLESS, City Clerk -35- City of NB 05/03/2004