HomeMy WebLinkAbout2000-05-08 City Council (8)TO:
City of Palo Alto
City Manager’s Report.
HONORABLE CITY COUNCIL
FROM:
DATE:
CITY MANAGER
MAY 8, 2000
DEPARTMENT:ADMINISTRATIVE
SERVICES
CMR:237:00
SUBJECT:APPROVAL OF AN ORDINANCE RELATED TO
TELEVISION AND OPEN VIDEO SYSTEM OPERATORS
CABLE
RECOMMENDATION
Staff recommends that. the Council approve an ordinance amending and adding to Title 2
of the Palo Alto Municipal Code to regulate the occupancy and use of the public rights-of-
way by cable television and open video system operators. The amended ordinance
provides for: 1) the establishment of franchise and license requirements; 2) minimum
construction, operation, maintenance and repair requirements; and 3) customer service
standards.
BACKGROUND
The City of Palo Alto is authorized to regulate theuse of and grant access to the public
rights-of-way. It exercises this authority to ensure that the public rights-of-way are
protected in order to maximize their efficient use, minimize disruption, and prevent harm.
Generally, cable television ~and open video system operators place portions .of their
physical plant in the public rights-of-way, and the City in turn regulates their use.
Historically, the City has exercised it regulatory rights in the granting of a cable television
franchise agreement.
In recent years, the cable communications industry has evolved. Where tradfi[ionally a
single provider had been serving a community, now many communities, in~Iuding Palo
Alto, are seeing multiple companies wishing to provide cable communication services.
The City has an interest in ensuring that all cable communications service providers meet
specific standards that promote thegoals the City has related to cable television services.
Towards that end, staff has developed .the proposed ordinance.
CMR: 237:00 Page 1 of 3
DISCUSSION
Many of the clauses contained in the proposed ordinance are a part of the current cable
television franchise with Cable Co-op. This .approach worked well with a single provider
of cable communication services. However, given that the City has been approached by
other companies wishing to provide cable services and that the existing cable franchise is
set to expire on March 24, 2001, it makes more sense to have one ordinance that covers all
providers of cable services. This ensures that the City has established a "level playing
field" and will be enforcing the same requirements and standards on all providers.
The keys provisions of the proposed ordinance include: the number of public, educational,
and government (PEG) access channels that must be provided; the franchise fee
requirement; the definition of gross revenues upon which the franchise fee is calculated;
the procedures to be followed in the case of a transfer of ownership; the requirement of a
local customer service office; and customer service standards including those covering
Internet and cable modem services. As mentioned above, many of the clauses contained in
the proposed ordinance are a part of the current cable television franchise With Cable Co-
op. Other sources drawn upon include Federal Communications Commission standards,
standard industry practice, and community input gathered to date through the Cable Co-op
franchise renewal process.
RESOURCE IMPACT
This should have no impact on resources.
POLICY IMPLICATIONS
This recommendation does not represent any change to existing City policies.
TIMELINE
This ordinance takes effect 31 days after it is adopted.
ENVIRONMENTAL REVIEW
This is not a project under the California Environmental Quality Act.
ATTACHMENT:
Attachment A:Ordinance
CMR: 237:00 Page 2 of 3
PREPARED BY:Melissa Cavallo, Assistant Director, Administrative Services
Shannon Gaffney, Senior Financial Analyst
REVIEWED BY: Grant Kolling, Senior Assistant City Attorney
DEPARTMENT HEAD APPROVAL:
CITY MANAGER APPROVAL:
@
---~ii~@cto~rative Services
EMILY HARRISON
Assistant City Manager
cc:
Ms.
Ms.
Mr.
Ms.
Mr.
Ms.
Ms.
Mr.
Mr.
Mr.
Russell Averhart, Director of Administrative Services, City of East Palo Alto
Walter Callahan, Deputy Director, Public Works, San Mateo County
Uma Chokkalingam, Finance Director, City of Menlo Park
Jan Dolan, City Manager, City of Menlo Park
Ralph Freedman, Interim City Manager, Town of Atherton
Monica Hudson, City Manager, City of East Palo Alto
John Maltbie, County Executive, County of SanMateo
Jan Thomson, Stanford University
Salani Wendt, City Clerk, City of East Palo Alto
David Wheaton, Asst. City Manager, City of MenloPark
Richard Wittenberg, County Executive, County of Santa Clara
Ron Kirkeeng, CEO & General Manager, Cable Co-op
Ms. Nicolasa A. Bloom, Director of Government Affairs,
AT&T Broadband & Internet Services
Sue Buske, PreSident, The Buske Group
CMR: 237:00 Page 3 of 3
ORDINANCE NO.
ORDINANCE OF THE COUNCIL OF THE CITY OF PALO ALTO
AMENDING CHAPTER 2.10 [CABLE TELEVISION SYSTEMS -
AWARD OF FRANCHISES BY CITY COUNCIL] TO REGULATE
CABLE TELEVISION SYSTEMS AND OPEN VIDEO SYSTEMS
WITH RESPECT TO I) OCCUPANCY AND USE OF PUBLIC
RIGHTS-OF-WAY, 2)ESTABLISHMENT OF FRANCHISE AND
LICENSE REQUIREMENTS, 3) CUSTOMER SERVICE
STANDARDS, AND 4) MINIMUM REQUIREMENTS FOR
CONSTRUCTION, OPERATION, MAINTENANCE AND REPAIR
WHEREAS, under applicable laws, the City of Palo Alto is
authorized to regulate the use of and grant access to public
rights-of-way, including, but,,not limited to, public streets,
roads, alleys, highways and public utility easements, subject to
prescribed terms and conditions, for the public good and in a
manner consistent with the, public interest;
WHEREAS, the public rights-of-way within the City of Palo
Alto dedicated to and for compatible public uses and purposes: (i)
are critical to the travel of people and the transportation of
goods and other tangibles in the business and social life of the
community by all citizens; (2) are unique and physically limited
resources, so that proper management by the City of Palo Alto is
necessary to maximize the efficient use of public rights-of-way,
to minimize the disruption and inconvenience to the public of use
of the public rights-of-way for purposes other than their primary
purpose of transport, to minimize the costs to the taxpayers of
the foregoing uses and purposes, and to prevent harm to the
community; and (3) must be managed and controlled consistent with
that intent;
WHEREAS, the City of Palo Alto anticipates that an ever-
increasing number of companies will request access to and use of
public rights-of-way for the proVision of cable television and
open video system services to the public;
WHEREAS, the City of Palo Alto wishes to promote the
availability of many information resources ,and high-quality,
cable and other video services to the community it represents,
including the development of advanced systems that can support
public, educational, and governmental programming and high-speed
access to the Internet;
WHEREAS, the City of Palo Alto wishes to procure for its
residents the opportunity to obtain access to .cable television
system and open video system facilities to disseminate and receive
000417 syn 0071808
information, to promote competitive cable rates and services, to
take advantage of opportunities pres’ented by such facilities to
provide for more open government, to enhance educational
opportunities, and to allow for the flexibility to respond to
changes in technology, subscriber interests,, and competitive
factors that will affect the health, safety and welfare of the
community the City serves;
WHEREAS the City Of Palo Alto finds that it is in the
public interest to franchise and to establish standards for
franchising cable television system and open video system
operators in a manner that will promote these objectives and
otherwise protect the public interest; and
WHEREAS, under applicable federal and California laws, the
City is authorized under its police power to adopt customer
service standards for" cable communications systems operating in
Palo Alto to protect its residents from unfair, improper or
abusive practices and to ensure that residents are treated fairly
by franchisees;
The Council of the City of Palo Alto does ORDAIN as
follows:
SECTION I.The index to Chapter 2.10 of Title. 2 -
Administrative Code - of the Palo Alto Municipal Code is hereby
amended to read, as follows:
Chapter 2.10
CABLE TELEVISION AND OPEN VIDEO SYSTEMS - AWARD OF FRANCHISES BY
THE CITY COUNCIL
Sections:
000417 syn 0071808
2.10.010 Definitions
2.10.020 Nature of franchise
2.10.030 Administration and regulations
2.10.040 Transfers
2.10.050 Construction, operation, maintenance and
repair
2.10.060 Indemnity, insurance, bonds and security
fund
2.10.070 Enforcement and remedies
2 I0 080 Books and records
2
2
2
2
2
2
I0
I0
i0
I0
I0
090 Reports
i00 Maps
II0 Other records
120 Exemptions
130 Privacy
i0 .140 Procedures for payment
2
2
2
2
2
2
2
2 I0 200 Cable system franchise application
2 I0 210 Initial and renewal franchise applications
i0 220 Renewal franchise under 47 U.S.C. § 546
i0 230 Cable system transfer application
I0 240 Legal qualifications
I0 250 Franchise fee
i0 260 No exclusivity
i0 270 Minimum franchise conditions
2 10.275 Penalties for customer service standards
violations
2.10 280 Rate regulation
2.10 300 Initial and renewal OVS applications
2.10 310 OVS transfer application
2 I0 320 Minimum requirements
2 i0 330 Special termination rules
2
2
2
2
2
i0 340 Rate regulation
I0 350 Fee in lieu of franchise fee
I0 360 Exclusive contracts
10.400.Miscellaneous provisions
10.500 Customer service standards
SECTION 2. Section 2.10.010 of Chapter 2.10 of Title 2
of the Palo Alto Municipal Code is hereby amended and replaced in
its entirety to read, as follows:
"2.10.010 Definitions
may also be
(a) For the purposes of this; Chapter, the following
words, terms, phrases, and abbreviations and their similar
formulations shall have the meanings given them in this
Chapter or, as appropriate, in Chapters 1.04, 2.08, 2.30 and
12.04 of the Palo Alto Municipal Code and in the Charter of
the City of Palo Alto ("Charter"), as may be amended from
time to time, unless the context indicates otherwise. Words
not defined in this Chapter or other Chapters of the Palo
Alto Municipal Code shall have the same meaning as
established in Title VI of Title 47 of the United States
3
000417 syn 0071808
Code, and, if not defined therein, their common and ordinary
meaning. References to governmental entities (whether
persons or entities) shall refer to those en[ities or their
successors in authority. If a specific provision of law
referred to in this Chapter should be renumbered, then the
reference shall be read to refer to the renumbered
provision. References to any law shall be interpreted
broadly to cover government actions, however nominated,
including any law now in force or subsequently enacted or
amended.
(I) "Access," "PEG access," or "PEG use" means the
availability of a cable system or open video system for
public, educational or governmental use (including
institutional network use) by various agencies,
institutions, organizations, groups, and individuals,
including the City and its designated access providers, to
acquire, create and distribute programming not under a
franchisee’s editorial control, including, but not limited
to:
(A) "Public access" or "Public use" means
access where organizations, groups or individual members of
the general public, on a non-discriminatory basis, are. the
primary or designated programmers or users having editorial
.control over their programming;
(B). "Educational access" or "Educational use"
means access where accredited educational institutions are
the primary or designated programmers or users having
editorial control over their programming; and
(C) "Governmental access" or "Governmental
use" means access where governmental institutions or their
designees are the primary or designated programmers or users
having editorial control over their programming.
(2) "Affiliate" means a person that~ directly or
indirectly, owns or controls, is owned or controlled by, or
is under common ownership or control with, another person.
(3) "Basic service" means any service tier
regularly provided to all subscribers, including the
retransmission of one or more local television broadcast
signals.
(4) "Cable Act" means the Cable Communications
Policy Act of 1984, 47 U.S.C. §§ 521 et seq., as amended by
the Cable Television Consumer Protection and Competition Act
of 1992, Pub. L. No. i02<385, 106 Stat. 1460, and as further
000417 syn 0071808
4
amended by the Telecommunications Act of 1996, Pub. L. No.
104-104, Ii0 Stat. 56.
(5) "Cable communications system" or "system" means
Doth open video systems and cable systems.
(6) "Cable Coordinator" means the individual or
individuals designated by the City to administer a cable
communications system franchise.
(7) "Cable 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, including video
programming, that is provided to multiple subscribers .within
a community, but such term does not include:
(A) A facilitY that serves only to retransmit
the television signals of one or more television broadcast
stations;
(B) A facility that serves subscribers without
using, or connecting to a facility that uses, any portion of
the public rights-of-way within the City;
(C) A facility of a common carrier which is
subject, in whole.or in part, to the provisions of Title II
(Common .Carriers) of the Communications Act of~ 1934, except
that such facility shall be considered a cable system to the
extent such facility is used in the transmission of video
programming directly to subscribers, unless the extent of
such use is solely to provide interactive on-demand
services;
(D) Any facility of an electric utility used
solely for operating its electric utility systems; or
(E) An OVS that is certified by the FCC.
Any reference to a cable system includes the cable
system as a whole or any part thereof, including, but not
limited to, pedestals, equipment cabinets, electronic
equipment, amplifiers, power guards, nodes, cables, fiber
optics and other equipment necessary to operate the cable
system, or installed in conjunction with the cable system.
(8 "Cable service" means:
(A) The one-way transmission to subscribers of
(i) video programming, or (ii) other programming service;
and
5
000417 syn 0071808
(B) Subscriber interaction, if any, which is
required for the selection or use of such video programming
or other programming service.
9) "Cable modem service" means cable modem
broadband access services provided by an operator over a
cable communications system that enables subscribers to
access the Internet services of the operator, its
affiliates, or third party Internet service providers.
"Cable modem services" shall not include "dial-up" access to
the Internet services of the operator, its affiliates, or
third party Internet service providers.
(I0) "Channel" means a portion of the-
electromagnetic frequency spectrum which is used in a cable
system or an open video system and which is capable of
delivering a television signal whether in an analog or
digital format. The definition does not restrict the use of
any channel to the transmission of analog television
signals.
(II) "City" means the government of the City of Palo
Alto, a chartered city and a municipal corporation duly
organized and validly existing under the laws of the state
of California, and all departments, divisions, and offices
thereof.
(12) "City Attorney" means the individual who is
designated as the city attorney of the.City under Section
2.08.120 of Chapter 2.08 of Title 2 of the Palo Alto
Municipal Code, and any individual who is designated as the
representative of the city attorney.
(13) "City Clerk" means the individual who is
designated as the city clerk of the City. under Section
2.08.110 of Chapter 2.08 of Title 2 of the Palo Alto
Municipal Code, and any individual who is designated, as the
representative of the city clerk.
(14) "Construction, operation, maintenance or
repair" or "construction, operation, maintenance and repair"
or words of similar’ import means the named actions
interpreted broadly, encompassing, among other things,
installation, extension, maintenance, replacement of
components, relocation, undergrounding, grading, site
preparation, adjusting, testing, make-ready, and excavation.
(15) "Council" means the Council of the City of Palo
Alto exercising all powers necessary and appropriate
pursuant to Article III of the Char~er.
000417 syn 0071808
(16) "Director of Administrative Services" means the
individual who is designated as the director of
administrative services of the City under Section 2.08.150
of Chapter 2.08 of Title 2 of the Palo Alto Municipal Code,
and any individual who is designated as the representative
of the director of administrative services.
(17) "Director of Public Works" means the individual
who is designated as the director of public works of the
City under Section 2.08.190 of Chapter 2.08 of Title 2 of
the Palo Alto Municipal Code, and any individual who is
designated as the representative of the .director of public
works.
(18) "Director of Utilities" means the individual
who is designated as the director of utilities of the City
under Section 2.08.200 of Chapter 2.08 of Title 2 of the
Palo Alto Municipal Code, and any individual, who is
designated as the representative of the director of
utilities.
(19) "Downstream channel" means a channel designed
and activated to carry a transmission from the headend to
other points on a cable communications system, including
interconnections.
(20) "FCC" means the Federal~
Commission.
Communications
.(21) "Franchise" means an authorization granted by
the City to the operator of a cable communications system
giving the operator the non-exclusive right to occupy the
space, or use facilities upon, across, beneath, or over
public rights-of-way in the City to provide cable
communications services therein.
(22) "Franchise area" means the area. of the City
that a franchisee is authorized to serve by the terms of its
franchise or by operation of law.
(23) "Franchisee" means a person holding a cable
communications system franchise granted by the City.
(24) "Gross revenues" mean any and all revenue of a
"cableoperator" (as defined in the Cable Act), of any kind,
nature or form, without deduction, derived from the
operation of a cable communications system to provide cable
service. "Gross revenues" shall be construed as broadly as
permitted by the Cable Act and any other applicable law. By
way of example and not limitation, "Gross revenues" .shall
000417 syn 0071808
include, but are not limited to, revenues from basic
service, cable programming services, any per-channel or per-
program services, equipment sales and rentals, cable modem
services, installation services, disconnection services,
reconnection services, late fees and other subscriber
charges,, and fees for the carriage of programming,
advertising, and shopping services. "Gross revenues" shall-
be construed to include revenues of affiliates (other than
thoserevenues, which are already treated as the revenues of
the franchisee), to the full extent necessary to prevent the
avoidance or evasion of any and .all fees owed on gross
revenues. "Gross revenues" shall not include: (A) the
revenue of any person, including, without limitation, an
affiliate or a provider of video programming services to a
cable communications system operator, to the extent that the
revenue is included in the gross revenues of that operator;
(B) taxes imposed by law on subscribers by a taxing
authority, which taxes a cable communication system operator
is obligated to collect and remit to the taxing authority,
provided, however, that neither the fee imposed by Sections
2.10.250 and 2.10.350 hereby, nor any tax or fee imposed on
the operator (as opposed to the subscriber) shall be deemed
to be such a tax;. (C) any gains real±zed in the sale or
disposition of capital assets and ~ther tangible property of
the operator; and (D) .bad debts, provided, however, that the
recovery of bad debts shall be included in gross revenues to
the extent that such recovery is related to sources of
revenues included as gross revenues.
(25) "Law" means any administrative, legislative or
judicial act, decision, bill, certificate, charter, code,
constitution, opinion, order, ordinance, .policy, procedure,
rate, regulation, resolution, rule, schedule, specification,
statute, tariffi or other requirement of any federal,
California, state, regional, county, municipal, local, or
joint powers agency, or any other agency having joint or
several jurisdiction over the City, a franchisee or an
operator, including, but not .limited to, any regulation or
order of an official or quasi-official entity or body, now
in force or hereinafter amended from time to time.
(26) "Operator", when used with reference to a
system, means a persbn (a) who directly or through one or
more affiliates provides cable service over a cable
communications system and directly or through one or more
affiliates owns a significant interest in such facility, or
(b) who otherwise controls or is responsible for, through
any arrangement, .the management and operation of a cable
communications system.
000417 syn 0071808
(27) "Open video system" or "OVS" means a facility,
consisting of a set of transmission paths and associated
signal generation, reception, and control equipment that is
designed to provide cable service~ including video
programming, that is provided to multiple subscribers within
a community, including, but not limited to,pedestals,
equipment enclosures (such as equipment cabinets),
amplifiers, power guards, nodes, cables, fiberoptics and
other equipment necessary to operate, the OVS, or installed
in conjunction with the ors, the operator of which has been
certified by the FCC as an OVS in the City.
(28) "OVS franchise" means a contract entered into
in accordance with this Chapter between the City and an OVS
franchisee setting forth the terms and conditions under
which the OVS franchise will be exercised.
(29) "Person" includes any individual, corporation,
partnership, association, joint stock company, trust, or any
other legal entity, but not the City.
(30) "Public rights-of-way" means the surface of and
the space above and below any street, road, highway,
freeway,bridge,lane, path, alley, court, sidewalk,
parkway,drive,or right-of-way or easement primarily
dedicated to travel,now or hereafter existing within the
City which may be properly used for the purpose of
installing, constructing, operating, maintaining, and
repairing a cable communications system; and any other
property that a franchisee is entitled by California or
federal law to use by virtue of the grant of a franchise.
(31) "Public property" means any ~property that is
owned or under the control of the City that is not located
in the public rights-of-way, including, for purposes of this
Chapter, but not limited to, buildings, parks, and pole
structures, such as utility poles and light poles, or
similar facilities or property owned by or leased to the
City.
(32) "School". means any accredited primary school,
secondary school, college, and university.
(33) ~’SEC" means the Securities and Exchange
Commission.
(34) "Subscriber" or "customer" means the City or
any person who is lawfully receiving, for any purpose or
reason, any cable service by means of a cable communications
system, whether or not a fee is paid for such service.
000417 syn 0071808
(35) "Upstream channel" means a channel designed and
activated to .carry transmissions from a point on the cable
system, other than the headend, to the headend or another
point on the cable system.
(36) "User" means the City or .a person using a
channel, capacity or equipment and facilities for purposes
of producing or transmitting material, as contrasted with
the receipt thereof in the capacity of a subscriber."
SECTION 3.Section 2.10.020 of Chapter 2.10 of
Title 2 of the Palo Alto Municipal Code is hereby amended and
replaced in its entirety to read, as follows:
~2 . 10. 020 Nature of franchise.
(a) The Council may grant one or more nonexclusive,
revocable franchises to construct, operate, maintain and
repair a cable communications system in the City. A
franchise granted by the Council pursuant to. this Chapter
shall authorize and permit a franchisee to construct,
operate, maintain and repair a cable system, or an OVS, as
applicable, to provide cable servide in the franchise area,
and for that purpose to erect, install, construct, repair,
replace, reconstruct, and maintain facilities appurtenant to
such system in, on, over, under, upon, across, and along
those public rights-of-way that the City may authorize a
franchisee to use.
(b) No person may construct, operate, maintain or
repair a cable communications system in the City without
first obtaining a franchise therefor.
(c) A franchise shall not convey rights other than
as specified in this Chapter, or in a franchise agreement; no
rights shall pass by implication.
(d) A. franchise shall not include, or be
substitute for:
a
000417 syn 0071808
10
(i) Compliance with requirements for the privilege
of transacting and carrying on a business within the City,
including, but not limited to, compliance with the conditions
that the City may establish before facilities may be
constructed for, or providing non-cable services;
.(2) Any permit, agreement or authorization required
in connection with operations on or in public rights-of-way
or public property, including, but not limited to,
encroachment permits, pole attachment permits and street cut
permits; and
(3) Any .permit, agreement or authorization for
occupying any other property of the City or private entities
to which access is not specifically granted by the franchise.
(e) A franchise shall not relieve a franchisee of
its duty to comply with all laws, including laws of the City,
and every franchisee shall comply with the same. The rights
granted under a franchise are subject to the exercise of
police and other powers the City now’has or may later obtain,
including, but not limited to, the power of eminent domain.
Every franchise issued by the City shall be deemed to
incorporate the requirements of the Charter.
(f) A franchise shall not convey title, equitable or
legal, in the public rights-of-way, and the rights granted
therein may not be subdivided or subleased.
(g) No franchise shall be exclusive, or prevent the
City from issuing other franchises or authorizations,or
prevent the City from itself constructing, operating,or
repairing its own cable communications system, withor
without a franchise.
(h) Every franchise shall be for a term of years,
which term shall be not less than five (5) years, unless a
franchise specifies otherwise.
(i) Unless specifically stated otherwise in a
franchise or required by law, all acts, which a franchisee is
required to perform under a franchise or applicable, law,
shall be.performed at the franchisee’s expense.
(j) If an operator of a cable communications system
fails to perform work that it is required to perform within
the time provided for performance, the City may perform or
cause the performance of the work and .bill the operator
therefor, unless a franchise specifies otherwise. The
operator shall pay the amounts billed within thirty (30
days, unless a franchise specifies otherwise."
Ii
000417 syn 0071808
(k) Every franchise shall be issued and adopted by ¯
the Council ±n the form of a separate ordinance and" a
franchise agreement entered into by the City and the
franchisee, who shall accept the franchise."
SECTION 4.Section 2.10.030 is hereby added to
Chapter 2.10 of Title 2 of the Palo Alto Municipal Code to read,
¯ as follows:
"Section 2.10.030. Administrationand regulations.
(a) The City may from time to time adopt rules and
regulations to implement the provisions of this Chapter.
This Chapter, and any rules and regulations adopted pursuant
thereto, are not contracts with any franchisee, and may be
amended at any time.
(b) The Cable Coordinator is hereby authorized to
administer this Chapter and any franchise issued pursuant
thereto, and to provide or cause to be provided any notices
(including noncompliance notices) and to take any action on
behalf of the City that may be required under this Chapter
or a franchise, or under applicable law.
(c) The failure of the City, upon one or more
occasions, to exercise a right or to require compliance or
performance under a franchise or any other applicable law
shall not be deemed to constitute a waiver of such right or
a waiver of compliance or performance, unless such right has
been specifically waived in writing.
(d) The City may designate one or more entities,
including itself, to control and manage the use of public,
educational and governmental access channels, facilities and
equipment owned, controlled or used by the City or the
designated entity or entities."
SECTION 5.Section 2.10.040 is hereby added to
Chapter 2.10 of Title 2 of the Palo Alto Municipal Code to read,
as follows:
"Section 2.10.040. Transfers.
(a) Every franchise shall be deemed to be held in
trust, and to be personal to the franchisee. Any transfer
that is made without the .prior written approval of the City
shall be deemed to impair that trust.A transfer is any
transaction pursuant to which:
000417 syn 0071808
12
(I) A cable communications system, or any part
thereof,..is sold or assigned, directly or indirectly, to any
person other than the franchisee holding a franchise for
that system (except the term does not include the sale of
portions of the cable system that are removed);
(2) Any Change, acquisition, or transfer of control
of a franchisee or its direct or indirect parents, whether
by merger, consolidation, a sale of assets or ownership
interests, or by any other means, occurs. A transfer occurs
whenever there .is a change, acquisition or transfer of
control of more than a ten percent (10%) ownership in the
franchisee or its direct or indirect parents by any entity,
or a group of entities acting in concert. However, a
transfer also occurs whenever there is a change in actual
working control, in whatever manner exercised, over the.
affairs of a franchisee or its direct or indirect parents.
Without limiting the above, any change in the general
partners of a franchisee will be presumed a change in
control; or
(3) The rights or obligations held by the
franchisee under its franchise are transferred, sold,
assigned~ or leased, in whole or in part, directly or
indirectly, to another party.
(b) Notwithstanding any other provision of this
Chapter, pledges in trust, hypothecations, encumbrances,
leases, or mortgages of the assets of a cable communications
system to secure the. indebtedness may be made without
application and without the City’s prior written consent,
unless a franchise specifies ~otherwise. However, no such
arrangement may be made if it would in any respect under any
condition: (i) prevent the cable communications system
franchisee or any successor from complying with the
franchise or applicable law; or (2) permit any third party
(including any lender) to succeed to the interest of the
franchisee, or to own or control the system, without the
prior written consent Of the City. Any mortgage, pledge,
hypothecation, encumbrance or lease shall be subject to and
subordinate to the rights of the City, as appropriate, under
any franchise, this Chapter, or Other applicable law.
(c) The successors and assigns of the franchisee
shall be fully bound by the terms and conditions of the
franchise."
SECTION 6.Section 2.10.050 is hereby added to
Chapter 2.10 of Title 2 of the Palo Alto Municipal Code to read,
as follows:
000417 syn 0071808
13
"Section 2.10.050.
and repair.
Construction, operation, maintenance
(a) The construction, operation, maintenance and
repair of cable communications systems shall be performed in
compliance with all laws and practices affecting such
system. This shall include, but not be limited to, zoning
and safety codes, construction standards, regulations for
providing notice to persons that may be affected by such
system construction, and such directives governing the time,
place and manner in which facilities may be installed in the
public rights-of-way. Any person engaged in the
construction, operation, maintenance or repair of
communications facilities shall exercise reasonable care in
the performance of all of its activities and shall use
commonly accepted methods and devices for preventing
failures and accidents that are likely to cause damage,
injury, or-nuisance to the public or to property.
(b) A franchise shall be required before a permit
may be issued for work associated with the construction of a
¯ cable communications system. Any permit issued for such
work to a person that does not hold a franchise shall vest
no rights in the permittee; the permit may be revoked at
will, and the permittee shall remove all facilities
installed under the permit upon demand of the City.
(c) The construction, operation, maintenance and
repair of a cable communications system shall not commence
until the required permits have been obtained from the
proper City officials and the required fees have been paid.
All work will be performed in strict accordance with the
conditions of the permits. Upon the receipt of written
notice Of the Director of Public Works or the Director of
Utilities, as applicable, any work and/or construction
undertaken that is not completed in compliance with the
City’s requirements and other applicable laws, or which is
installed without obtaining necessary permits and approvals,
shall be removed or caused to be removed by the franchisee.
(d) Interference with the use of the public rights-
of-way by others, including others that may be installing
cable communications systems, must be minimized. The City
may require a person using the public rights-of-way to
cooperate with others through joint trenching and other
arrangements to minimize adverse impacts on the public
rights-of-way and public property.
(e) Unless it is impracticable, operators of cable
communications systems shall use existing poles and.
conduits.Any person in the public rights-of-way may not
14
000417 syn 0071808
install additional poles, nor may vertical or horizontal
extenders be used to increase pole capacity, without the
permission of the Director of Public Works and the Director
of Utilities and/or any other individual(s) authorized by
law to grant such permission.
(f) Whenever all existing utilities are located or
are required to be relocated underground in an area in the
City, every franchisee and every operator of a cable
communications system in the same area shall locate their
respective cable communications systems underground in
accordance with the requirements of Chapters 12.08, 12.12
and 12.16 of the Palo Alto Municipal Code.
(g) Any and all public rights-of-way, other public
property, or private property that is disturbed or damaged
during the construction, operation, maintenance or repair of
a cable communications system by or on behalf of a
franchisee shall be promptly repaired by the franchisee at
its expense. Public property and public rights-of-way
shall be restored to the satisfaction of the City or to a
condition as good as that which existed before the
disturbance or damage occurred.
(h) A franchisee shall, by a time specified by the
Director of Public Works or the Director of Utilities, as
applicable, protect, support, temporarily disconnect,
relocate, or remove any of its property when required by the
City in the exercise of its governmental or proprietary
powers by reason of traffic conditions; public safety;
public rights-of-way construction and repair (including, but
not limited to, regrading, resurfacing or widening); public
rights-of-way vacation; construction, installation or repair
of sewers, drains, water pipes, power lines, signal lines,
tracks, or any other type of government-owned system or
utility, public work, public facility, or improvement; or
for any other purpose where the work involved would be aided
by the removal or relocation of the cable communications
system. Collectively, such matters are referred to below as
the "public work".
(I) The Director of Public Works or the Director of
Utilities, as applicable, shall provide written notice
describing where the public work is to be performed at least
one week. prior to the deadline by which a franchisee must
protect, support, temporarily disconnect, relocate or remove
its facilities.
(2) In an emergency, or where a cable
communications system creates o~ is contributing to an
imminent danger to health, safety, or property, the City may
15
000417 syn 0071808’
protect, support, temporarily disconnect, remove, or
relocate any and all parts of the cable communications
system without prior notice, and charge the franchisee for
costs incurred.
(i) To accommodate the construction, operation.,
maintenance or repair of the facilities of another person
authorized to use the public rights-of-way or public
property, a franchisee, shall, by a time specified by such
person, protect, support, temporarily disconnect, relocate
or remove its facilities. The franchisee must be given
written notice describing where the construction, operation,
maintenance or repair is to be performed at least fifteen
(15) days prior to the time by which its work must be
completed. The Director of Public Works and/or the Director
of Utilities, as applicable, may resolve disputes as to
responsibility for costs associated with removal, relaying,
or relocation of facilities among entities authorized to
install facilities in the public rights-of-way or on public
property if such entities are unable to do so themselves.
(j) A franchisee shall, on the request of any
person holding a valid permit issued by a governmental
authority, temporarily raise or lower its wires by a time
specified to permit the moving, of buildings or other
objects. A franchisee shall be given not less than seven
(7) days’ advance written notice to arrange for such
temporary wire changes. The expense of such temporary
removal or the raising or lowering of wires shall be paid by
the person requesting the same.
(k) A franchisee shall remove its property in the
public rights-of-way that it intends to abandon within
ninety (90) days after it gives written notice to the City
of its intention to abandon. However, if, within ninety
(90) days of the receipt of written notice of abandonment,
the.City determines, that the safety, appearance, function
or use of public rights-of-way and facilities in public
rights-of-way will be adversely.affected, the franchisee may
abandon its property after receipt of appropriate notice
from the City. A franchisee that abandons its property
must, upon requeSt, transfer ownership of the property to
the City at no cost, and execute necessary ~uitclaim deeds
and indemnify the City against future costs associated with
the mitigation or elimination .of any environmental hazard
associated with the abandoned property.
(i)Every cable communications system shall be
subject to inspection and testing by the City. Each
franchisee shall respond to requests for information
regarding its system and plans for the system as the City
16
000417 syn 0071808
.may from time to time issue, including, but not limited to,
a request for information regarding its plans for the
construction, operation, maintenance and repair and the
purposes for which the system is being constructed,
operated, maintained or repaired.
(m) Each franchisee that places facilities
underground shall be a member of the ~egional notification
center for subsurface installations (Underground Services
Alert) as may be required by California Government Code
§§ 4216 et seq., and shall field mark the locations of its
underground communications facilities upon request. A
franchisee shall locate its facilities for the City at no
charge.
(n) Each franchisee shall provide to the City a plan
for any initial system construction, or for any substantial
rebuild, upgrade or extension of its facility, which shall
show its timetable for construction of each phase Of the
project, and the areas of the City that will be affected."
SECTION 7.Section 2.10.060 is hereby added to
Chapter 2.10 of Title 2 of the Palo Alto Municipal Code to read,
as follows:
"Section 2.10.060.
security fund.
Indemnity, insurance, bonds and
(a) No franchise shall be valid or effective until
and unless the City obtains an adequate indemnity from the
franchisee. The indemnity shall:
(i) Release the City from and against any and all
liability and responsibility in or arising out of the
construction, operation, maintenance or repair of the cable
communications-system. Each franchisee must further agree
not to sue or seek any money or damages from the City in
connection with the matters mentioned herein.
(2) Indemnify and hold harmless the City, its
elected and appointed officers, agents, and employees, from
and against any and all claims, demands, or causes of action
of any kind or nature,~ and the resulting losses, costs,
expenses, reasonable attorneys’ fees, liabilities, damages,
orders, judgments, or decrees sustained by the City or any
third party arising out of, or by reason of, or resulting
from or of the acts, errors, or omissions of the franchisee,
or its agents, contractors, subcontractors or employees
related to or in any way arising out of the construction,
operation, maintenance or repair of the system.
000417 syn 0071808
17
(b) A franchisee (or those acting on its behalf)
shall not commence or cause the commencement of
construction, operation, maintenance or repair of the system
without obtaining and maintaining insurance in amounts and
of a type satisfactory to the City. The required insurance
must be obtained and maintained for the entire period the
franchisee owns, controls or manages facilities in the
public rights-of-way. If the franchisee, its agents,
contractors, and subcontractors do not have the required
insurance, the Cable Coordinator may order such entities to
stop operations until the insurance ’is obtained and
approved.
(c) certificates of insurance, reflecting evidence
of the required insurance and naming the City as an
additional .insured, and other proofs as the City may find
necessary, shall be filed with the City Clerk. For any
person issued a franchise after the effective date of this
Chapter, the certificates and other required proofs shall be
filed within thirty (30) days of the issuance of a
franchise, once a year thereafter, and whenever there is any
change in coverage. For entities that have facilities in
the public rights-of-way as of the effective date of this
Chapter, the certificates shall be filed within sixty (60)
days of the effective date of this Chapter, annually
t~ereafter, and whenever there is any change in coverage,
unless a pre-existing franchise provides for the filing of
certificates in a different manner.
(d) Certificates shall contain a provision that
coverage afforded under these policies .will not be canceled
until at least thirty (30) days’ prior written notice has
been given to the City. Only companies authorized to
provide insurance coverage under the laws of the state of
California must issue policies. Financial ratings must be
no less than "A: VII" in the latest edition of "Best’s Key
Rating Guide", published by A.M. Best Guide.
(e) A franchisee (and those acting on its behalf to
construct or operate.the system) shall obtain and maintain
the following minimum insurance. The City shall be named as
an additional insured on the general liability and
automotive policies. Those insurance policies shall be
primary and contain a cross-liability clause.
(i) COMMERCIAL GENERAL LIABILITY insurance to cover
liability bodily injury and property damage. Exposures to be
covered are premises, operations, products/completed
operations, and certain contracts. Coverage must be written
on an occurrence basis, with the following limits ofliability:
18
000417 syn 0071808
Bodily Injury
i.Each Occurrence
2.Annual Aggregate
Property Damage
i.Each Occurrence
2.Annual Aggregate
Personal Injury
I. Annual Aggregate
$i,000,000
$3,000,000
$i, 000,000
$3,000,000
$3,000,000
Completed Operations and Products Liability shall be
maintained for two (2) years after the termination of the
franchise or completion of the work for the cable
communications sYstem owner or operator (in the case of a
contractor or subcontractor).
Property Damage Liability Insurance shall include
Coverage for the following hazards: X -explosion, C -
Collapse, U - underground.
(2) WORKERS’ COMPENSATION insurance shall be obtained
and maintained during the life of the franchise to comply
with statutory.limits for all employees, and in the case any
w6rk is sublet, each franchisee shall require its contractors
and subcontractors similarly to provide workers’ compensation
insurance for all of the latter’s employees unless such
employees are covered by the protection afforded by the
franchisee. Each franchisee and its agents, contractors and
subcontractors shall obtain and maintain during the life of
this policy employers liability insurance. The following
minimum limits must be maintained:
Workers’ Compensation
Employer’s Liability
Statutory
$500,000 per
Occurrence
(3)COMPREHENSIVE AUTO LIABILITY
Bodily Injury
i. Each Occurrence
2. Annual Aggregate
$1,000,000
$3,000,000
Property Damage
i. Each Occurrence
2. Annual Aggregate
$1,000,000
$3,000,000
Coverage shall include owned, hired, and non-owned
vehicles.
000417 syn 0071808
19
(f) Every franchisee shall obtain and maintain a
performance bond to ensure the faithful performance of its
responsibilities under this Chapter and any franchise. The
amount of the performance and payment bonds shall be set by
the Cable Coordinator or may be set in a franchise ordinance
in light of the nature of the work to be performed, but shall
not be less than ten per cent (10%) of the estimated cost of
constructing or (in the case of existing systems) upgrading
the system. The bonds are not in lieu of any additional
bonds that may be required through the permitting process.
The bond shall be in a form acceptable to the City Attorney.
Bonds must be obtained prior to the effective date of any
franchise, transfer or franchise renewal, unless a franchise
specifically provides otherwise.
(g) Every franchisee shall establish and maintain a
security fund in cash or provide the City an irrevocable
letter of credit in the amount of one hundred thousand
dollars ($I00,000) to secure the payment of fees owed, to
secure any other performance promised in a franchise, and to
pay any taxes, fees or liens owed to the City. The letter of
credit shall be in a form and with an institution acceptable
to the Director of Administrative Services and in a form
acceptable to the City Attorney. If the City should draw
upon the security fund or the letter of credit, the
franchisee shall, within fourteen (14) days, restore the
security fund or the letter of credit to the required full
amount. This security fund or letter of credit may be waived
or reduced by the City for a franchisee where the City
determines in its discretion that, a particular franchisee’s
operations are sufficiently limited that a security fund or a
letter of credit is not necessary to secure the required
performance. The City may from time to time .require a
franchisee to change the amount of the required security fund
and letter of credit to reflectchanged risks to the City and
to the public, including delinquencies in taxes or other
payments to the City. The security fund or the letter of
credit must be obtained prior to the effective date of any
franchise, transfer or franchise renewal, unless a franchise
specifically provides otherwise."
SECTION 8.Section 2.10.070 is hereby added to
Chapter 2.10 of Title 2 of the Palo Alto Municipal Code to read,
as follows:
Section 2.10.070. Enforcement and remedies.
(a) The City Council may revoke a franchise or
reduce the term of a franchise if it finds, after notice Of
proposed revocation and an opportunity for a hearing, that a
franchisee has violated its franchise or this Chapter; has
¯ 000417 syn 0071808
defrauded or attempted to defraud the City or subscribers; or
has attempted to evade the requirements of its franchise or
this Chapter. Except as to violations that are impossible to
~:~re, and as provided in Sections 2.10.070(b) and
2.i0.070(c), the franchise may be revoked only if the
franchisee is given written notice of the default and thirty
(30) days to cure the default, and the franchisee fails to
cure the default, or to.propose a written schedule for curing
the default acceptable to the City, where it is impracticable
to cure the default within thirty (30) days.
(b) No opportunity to cure is required for willful
violations or where repeated violations demonstrate a pattern
of non-compliance, and fraud and attempted fraud shall be
deemed incurable. The City may declare a franchise forfeited
without an opportunity to cure where a franchisee voluntarily
ceases providing service that it is required to provide or
transfers the franchise without the prior written consent of
the City.
(c) A franchise will terminate automatically by
operation of law one hundred twenty (120) days after an
assignment for the benefit of creditors or the appointment of
a receiver or trustee to take over the business of the
franchisee, whether in a receivership, reorganization,
bankruptcy, assignment for the benefit of creditors, or other
action or proceeding. However, the franchise may be
reinstated within that 120-day period, if: (I) such
assignment, receivership or trusteeship has been vacated; or
(2) such assignee, receiver or trustee has fully complied
with the terms and conditions of this Chapter and the
franchise, and has executed an agreement, approved by any
court of competent jurisdiction, assuming and agreeing to be
bound by the terms and conditions of this Chapter and the
franchise. In the event of foreclosure or other judicial
sale of any of the facilities, equipment or property of a
franchisee, the City may revoke the franchise following a
public hearing before the Council. The City shall serve
notice upon the franchisee and the successful bidder at the
sale, in which event the franchise and all rights and
privileges thereunder will be revoked and will terminate
thirty (30) days after serving such notice, unless the City
has approved the transfer of the franchise to the successful
bidder, and the successful bidder has promised and agreed
w±th the City to assume and be bound by the terms and
conditions of the franchise and this Chapter.
(d) Upon the termination or forfeiture of a
franchise, whether by action of the City as provided above,
or by passage of time, a franchisee must stop using its cable
communications system for ~ the purposes authorized, by the
21
000417 syn 0071808
franchise. The City may take possession of some or all of
franchisee’s facilities consistent with 47 U.S.C. § 547, or
require the franchisee or its bonding company to remove some
or all of the franchisee’s facilities from the areas of the
City, and restore the affected property and the public
rights-of-way to their same or better condition. This
provision shall not permit the City to remove facilities that
are used to provide another service for which the franchisee
holds a valid franchise or other authorization issued by the
City or other government authority, as applicable. .
(e) The remedies provided for under this Chapter, or
under a franchise, shall be cumulative. The recovery by the
City of any amounts under insurance, the performance bond,
the security fund or the letter of credit, shall not limit a
franchisee’s duty to indemnify the City, or relieve a
franchisee of its franchise obligations or limit the amounts
owed to the City."
SECTION 9.Section 2.10.080 is hereby added to
Chapter 2.10 of Title 2 of the Palo Alto Municipal Code to read,
as follows:
"Section 2.10.080. Books and records.
(a) Each franchisee shall provide the City access
to books and records related, in whole or in part, to the
construction, operation, maintenance or repair of the cable
communications system, or a group of systems of which the
system is a part, so that the City may inspect and copy
these booksand records. The records shall include, but are
not limited to, revenue records, and other records related
to compliance with any provision of this Chapter or a
franchise. A franchisee shall be responsible for obtaining.
and maintaining the necessary possession or control of all
such books and records, so that it can produce the documents
upon request. Books and records shall be maintained for a
period of five (5) .years, except that a franchise may
specify & shorter period for certain categories of
.voluminous books and records where the information contained
therein can be derived simply from Other materials. The
phrase "books and records" shall be read expansively to
include information in whatever formats the same may be
stored.
(b) Books and records requested shall be produced
to the City by a time and at a location in the City
designated by the Cable Coordinator. However, ifthe
requested books and records are too voluminous, orfor
security reasons cannot be .copied and. moved, thenthe
franchisee may request that the inspection take place at
22
000417 syn 0071808
some other location mutually agreed to by the City and the
franchisee, provided that (i) the franchisee shall make
necessary arrangements for copying documents selected by the
City after its review; and (2) the franchisee shall pay all
travel and additional copying expenses incurred by the City
(above those that would have been incurred had the documents
been produced in the City)in inspecting those documents or
having those documents inspected by its designee."
SECTION I0. Section 2.10.090 is hereby added to
Chapter 2.10 of Title 2 of the Palo Alto Municipal Code to
read, as follows:
"Section 2.10,.090. Reports.
(a) The Cabie Coordinator may from time to time
direct a franchisee to prepare.reports related to monitoring
or enforcing a franchisee’s compliance with this Chapter or a
franchisee’s franchise and to submit those reports by a date
certain, in a format prescribed by the City Manager, in
addition to those required by this Chapter.
(b) Unless the Cable Coordinator grants an
exemption, within forty-five (45) days of the end of each
quarter, a franchisee shall submit a report to the City
containing the following information:
(I) The number of service calls (calls requiring a
truck roll) received during the prior quarter and the
percentage of service calls compared to the subscriber base;
and
(2) The total estimated hours of known outages as a
percentage of total hours of operation. The term "outage"
means a loss of sound or video on any signal, or a
significant deterioration of any signal affecting two or more
subscribers.
(c) Unless the Cable Coordinator grants an exemption,
no later than ninety (90) days after the. end of its fiscal
year, a franchisee shall submit the following information:
(I) A fully audited or certified revenue report from
the preceding calendar year for the cable communications
system, and a certified statement setting forth the
computation of gross revenues used to calculate the franchise
fee for the preceding year and a detailed explanation of the
method of computation showing: (i) gross revenues by category
(including, but not limited to, basic, pay, pay-per-view,
advertising, installation, equipment, late charges,
miscellaneous, other); and (ii) the deductions, if any, that
23
000417 syn 0071808
were made from gross revenues in calculating the franchise
fee (including,. but not limited to, bad debt, credits and
refunds), and the amount of each deduction;
(2) A report showing, for each applicable customer
service standard, the franchisee’s performance with respect
to that standard for each quarter of the preceding year. In
each case where the franchisee or the Cable Coordinator
concludes that the franchisee did not-comply fully~ the
franchisee will describe the corrective actions it is taking
to assure future comPliance. In addition, the report should
identify the number and nature of the customer service
complaints received and an explanation of their dispositions;
(3) A report showing the number of linear feet of
public rights-of-way occupied by the franchisee’s system, the
total number of the franchisee’s subscribers, and the total
number of the franchisee’s basic service subscribers and
subscribers for each tier of cable programming service
offered; and
(4) An ownership report, indicating the number and
names of all persons who at the time of filing control or own
an interest in the franchisee of ten percent (10%) or more.
(d) Within ten (I0) days of their receipt or (in the
case of documents created by the franchisee or its affiliate)
filing, a franchisee shali provide the City:
(i) Any notices of deficiency or forfeiture related
to the operation of the system; and
(2) Any requests for protection under bankruptcy
laws, or any judgment related to a declaration of bankruptcy
by the franchisee or by any. partnership or corporation that
owns or controls, directly or indirectly, the franchisee."
SECTION II. Section 2.10.100 is hereby added to
Chapter 2.10 of Title 2 of the Palo Alto Municipal Code to
read, as follows:
"Section 2.10.100. Maps.
Each franchisee shall maintain accurate maps and
improvement plans which show the location, size, and a
general description of all facilities installed in the public
rights-of-way and any power supply sources (including
voltages and connections). Maps shall be based upon post-
construction inspection to Verify location.. Each franchisee
shall provide a map to the Director of Public Works and/or
the Director of Utilities,as applicable, showing the
24
¯ O00417-syn 0071808
location of its facilities, in such detail and scale as may
be directed by the Director of Public Works and/or the
Director of Utilities, as applicable, and shall update the
map at least annually, and whenever the facility expands or
is relocated. Copies of maps shall be provided in 3 mil
Mylar format and on disk, in a commercially available
electronic format specified by the Director of Public Works
and/or the Director of Utilities, as applicable."
SECTION 12. Section 2.10.110 is hereby added to
Chapter 2.10 of Title 2 of the Palo Alto Municipal Code to
read, as follows:
"Section 2.10 ii0. Other records.
(a) Unless the Cable Coordinator waives the
requirement, a franchisee shall for a period of five (5)
years at all times maintain:
(i) Records of all complaints received, their nature
and resolution. The term "complaints" refers to complaints
about any aspect of the franchisee’s operations;
(2) Records of outages known to the franchisee,
their cause and duration;
\
(3) Records of service calls for repair andmaintenance indicating the date and time service wasrequested, the date of acknowledgment and date andtimeservice was scheduled (if it was scheduled), and the dateandtime service was provided (whether or not a resolution ofthecomplaint was achieved), and (if different) the date andtimethe problem was solved;
(4) Records of installation and reconnectionandrequests for service extension, indicating the dateofrequest, the date of acknowledgment, and the date andtime
that service was extended; and
(5) Records sufficient to show whether thefranchisee has complied with each customer service standard
that applies to it."
SECTION 13. Section 2.10.120 is hereby added to
Chapter 2.10 of Title 2 of the Palo Alto Municipal Code to read,
as follows:
"Section 2.10.120. Exemptions.
The Cable Coordinator may temporarily exempt any
franchisee from its obligations under Sections 2.10.080,
25
000417 syn 0071808
2.10.090, 2.10.100, and 2.10.110 if the City Manager
determines that the requirement would be unduly burdensome or
unnecessary, and that the City and.subscriber interests may
be adequately protected in some other manners"
SECTION 14. Section 2.10.130 is hereby added to Chapter
2.10 of Title 2 of the Palo Alto Municipal Code to read, as
follows:
"Section 2.10.130. Privacy.
A franchisee shall take all reasonable steps required
so that it is able to provide reports, books and records to
the Cable Coordinator, including by providing appropriate
subscriber privacy notices. Each franchisee shall be
responsible for redacting data that applicable law prevents
it from providing to the City. Nothing in this Section shall
be read to require a franchisee to violate California or
federal subscriber privacy laws."
SECTION 15. Section 2.10.140 is hereby added to Chapter
2.10 of Title 2 of the Palo Alto Municipal Code to read, as
follows:
"Section 2.10.140. Procedures for payment.
(a) The franchise fee paid pursuant to Section
2.10..250, or fee in lieu of franchise fee paid pursuant to
Section 2.10.350, shall be paid quarterly unless specified
otherwise in a franchise. Payment for each quarter shall be
made to the City not later than forty-five (45) days after
the end of each calendar quarter.
(b) Unless a franchise provides otherwise, a
franchisee or other entity subject to a fee under Section
2.10.250 or Section 2.10.350 shall file with the Cable
Coordinator within forty-five (’45) days of the end of each
calendar quarter a statement showing gross revenues during
the preceding quarter and the number of subscribers served.
(c) No acceptance by the City of any payment shall
be construed as an accord and satisfaction that the amount
paid is in fact the correct amount, nor shall such acceptance
of such payment be construed as a waiver or release of any
claim the City may have for additional sums payable.
(d) Neither the franchise fee under Section
2.10.250, nor the fee paid in lieu of the franchise fee under
Section 2.10.350, is a payment in lieu of any tax, fee. or
other assessment o.f general applicability (including any such
tax, fee or assessment imposed on utilities, cable and OVS
26
000417 syn 0071808
operators or their services, but not including a tax, fee, or
assessment which is unduly discriminatory against cable and
ors system operators or cable subscribers).
(e) In the event that a fee payment is not received
by the City on or before the due date set forth in this
Section or in a franchise, or the fee owed is not fully paid,
the person subject to the fee will be Charged interest from
the due date at the highest interest rate allowed by
California law.
(f) Within ninety (90) days of the date a franchisee
ceases operations under a franchise (whether because of
franchise .termination, transfer, bankruptcy or for any other
reason),the franchisee shall file a final statement of
revenues covering ’the period from the beginning, of the
calendar year in which the operations ceased to the date
operations ceased.The statement shall contain the
information and shall be certified, as required by
Section 2.10.090(c) (I)."
SECTION 16. Section 2.10.200 is hereby added to Chapter
2.10 of Title 2 of the Palo Alto Municipal Code to read, as
follows:
"Section 2.10.200. Cable system franchise application.
ia) A written application must be filed for an
initial and a renewal cable system franchise, or. f0r approval
of a transfer with the City. A request for renewal filed
under 47 U.S.C. § 546(h) need not contain the information
required by Section 2.10.200(b).
(b) The Cable Coordinator may specify the
information that must be provided in connection with an
application, and the form in which the information is to be
provided.
(I)At a minimum each application must identify the
applicant,show that the applicant is financially,
technically and legally qualified to construct, operate,
maintain and repair the cable system, contain a pro forma
showing capital expenditures and expected income and expenses
for the first five (5) years the applicant is to hold the
franchise, and show that the applicant is ready, willing and
able to comply unconditionally with this Chapter and its
franchise obligations.
(2) Any application for an initial franchise must
describe in detail the cable system that the applicant
.proposes to build, show where it will be located, set out the
27
000417 syn 0071808
system construction schedule, and show that the applicant
will provide adequate channels, facilities and other support
for public, educational and governmental use (including
institutional network use) of the cable system.
(3) To be accepted for filing, not less than one
original and two (2) copies of an application must be
submitted. All applications shall include the names and
addresses of individuals authorized to act on behalf of the
applicant with respect to the application.
(4) An applicant (and the transferor and transferee,
in the case of a transfer) shall respond to any request for
information from the City, by the time-specified by the City.
(c) If the City finds that it is in the public
interest to issue a franchise considering the factors above,
and such other matters as it is required or entitled to
consider, and subject to the applicant’s entry into an
appropriate franchise agreement, it shall issue a franchise.
Prior to deciding whether or not t6 issue a franchise, the
City may hold one or more public hearings or implement other
procedures under which comments from the public on an
application may be received.
(d) An application may be rejected if it is
incomplete, or if the response to requests for information is
not timely and complete. An applicant shall not be precluded
from filing another application."
SECTION 17. Section 2.10.210 is hereby added to Chapter
2.10 of Title 2 of the Palo Alto Municipal Code to read, as
follows:
"Section 2.10.210.
applications.
Initial and renewal franchise
(a) This section establishes additional provisions
that apply to an application for an initial franchise, or a
renewal franchise application that is not governed by 47
U.S.C. § 546(a)-(h).
(b) Any person may apply for an initial or a renewal
franchise by submitting an application therefor on that
person’s own initiative,or in response to a ~request for
proposals issued by the City. If the City receives an
unsolicited application, it may choose to issue a request for
additional proposals, and require the applicant to amend its
proposal to respond thereto. The City shall promptly conduct
such investigations as are necessary to act on an
application.
28
000417 syn 0071808
(c) In determining whether to grant a franchise, the
may consider:
(i) The extent to which an applicant for a renewal
franchise has substantially complied with applicable law and
the material terms of any existing cable franchise;
(2) Whether an applicant for a renewal franchise’s
quality of service under its existing franchise, including,
¯ but not limited to, signal quality, response to customer
complaints, billing practices, and the like has been
reasonable in light of the needs of the community;
(3) Where the applicant has not previously held a
cable system franchise in the City, whether the applicant’s
record in other communities indicates that it can be relied
upon to provide high-quality service throughout any franchise
term;
(4) Whether the applicant has the financial, legal,
and technical ability to provide the services, facilities,
and equipment set forth in an application, and to satisfy any
minimum requirements established by the City;
(5) Whether the applicant’s application is
reasonable to meet the future, cable-related needsand
interests of the City, taking into account the costof
meeting such needs and interests;
(6) Whether the issuance of a franchise is warranted
in the public interest considering the immediate and future
effect on public rights-of-way, public property, and private
property that will be used by the applicant’s cable system;
(7) Whether the issuance of the franchise would
reduce competition in the provision of cable service in the
City; and
(8) Such other matters as the City is authorized or
required to consider. (d) If the City determines that
the issuance of a franchise would be in the public interest
considering the factors described above, it may proffer a
franchise agreement to the applicant. No franchise shall
become effective until the franchise is unconditionally
accepted by the applicant, and the franchise agreement is
signed."
SECTION 18. Section 2.10.220 is-hereby added to Chapter
2.10 of Title 2 of the Palo Alto Municipal Code to read, as
follows:
000417 syn 0071808
29
546.
"Section 2.10.220.Renewal franchis~ under 47 U.S.C. ~
(a) This section establishes additional provisions
that. apply to renewal franchise applications~governed by 47
U.S.C. § 546(a)-(g).
(b) A franchisee which intends to exercise rights
under 47 U.S.C. § 546(a)-(g) shall submit a notice in writing
to the City Manager in a timely manner clearly stating that
it is activating the procedures set forth in those sections.
The City shall thereafter commence any proceedings that may
be required under federal law, and upon completion of those
proceedings, the City may issue a request for proposals and
an application may be submitted for renewal. The City may
preliminarily deny the application by ordinance or
resolution, and if the application is preliminarily denied,
the City may conduct such proceedings and by ordinance or
resolution establish such procedures and appoint such
individuals as may be necessary to. conduct any proceedings to
review the application, consistent with 47 U.S.C. ~ 546(a)-
(g)."
SECTION 19. Section 2.10.230 is hereby added to Chapter
2.10 of Title 2 of the Palo Alto Municipal Code to read, as
follows:
"Section 2.10.230. Cable system transfer application.
(a) This section establishes additional~provisions
that apply to applications for transfer approval.
(b) An application for transfer must contain all the
information required by the Cable Coordinator, by Section
2.10.200 et seq., and all information required by any FCC
transfer form, including Form 394.
(c) In determining whether a transfer application
should be granted, denied, or granted subject to conditions,
the City may consider the legal, financial, and technical
qualifications of the transferee to operate the cable system;
any potential impact of the transfer on subscriber rates or
services ; whether the incumbent cable operator is in
compliance with its franchise and, if not, whether the
incumbent or the transferee furnishes adequate cure or
assurance of cure; whether the transferee owns or controls
any other cable communications system .in the City, whether
operation by the transferee may eliminate or reduce
competition in the delivery of cable service in the City ;
and whether operation by the transferee or approval of the
30
000417 syn 0071808
transfer would otherwise adversely affect subscribers, the
public, or the City’s interests under this Chapter, the
franchise, or other applicable law. The proposed transferee
shall pay all actual and reasonable costs incurred by the
City in reviewing and evaluating an application for a
transfer.
(d) In order to obtain approval of a transfer, an
applicant must show, at a minimum that: the transferee is
qualified; the transfer will not adversely affect the
interests of subscribers, the public, or the City; and that
franchise and Chapter non-compliance issues have been
resolved. No application shall be granted -unless the
transferee agrees in writing that it will abide by and accept
all terms of this Chapter and the franchise, and that it will
assume the obligations, liabilities, and responsibility for
all acts and omissions, known and unknown, of the previous
franchisee for all purposes."
SECTION 20. Section 2.10.240 is hereby added to Chapter
2.10 of Title 2 of the Palo Alto Municipal Code to read, as
follows:
"Section 2.10.240. Legal qualifications.
(a) The applicant for an initial or renewal
franchise or for the transfer of a franchise shall comply
with the provisions of this Chapter and applicable laws, and
it shall comply with the requirements of a franchise as the
City may lawfully require.
(i) The applicant must not have had any cable system
or OVS franchise validly revoked, (including any appeals) by
the City within three (3) years preceding the submission of
the application.
(2) The applicant may not have had an application tothe City for an initial or a renewal cable system franchise
denied on the ground that the applicant failed to propose a
cable system meeting the cable-related needs and interests of
the community (or, in the case of a franchise renewal, denied
on the ground that the franchisee failed substantially to
comply with the material terms of its franchise), or as to
which any challenges to such franchising decision were
finally resolved (including any appeals) adversely to the
applicant, within three (3) years preceding the submission of
the application; and may not have had an application for an
initial or a renewal OVS franchise denied by the City on any
ground within three (3) years of the application.
000417 syn 0071808
31
(3) The applicant shall not be issued a franchise
if, at. any time during the ten (i0) years preceding the
submission of the application, the applicant or any of its
officers or directors was convicted of fraud, racketeering,
anticompetitive actions, unfair trade practices or other
conduct of such character that the applicant cannot be relied
upon to deal truthfully with the City and the subscribers, or
to substantially comply with its obligations.
(4) The applicant must have the necessary authority
under California and federal law to operate a cable system
and to conduct business in the state ofCalifornia and the
City, or show that it is in a position to obtain that
authority.
(5) The applicant shall not be issued a franchise if
it files materially misleading information in its application
or intentionally withholds information that the applicant
lawfully is required to provide.
(6) For the purposes of Section 2.10.240(a) (i)-(3),
the term "applicant" includes any affiliate of the applicant.
(b) Notwithstanding Section 2.10.240(a), an
applicant shall be provided a reasonable Opportunity to show
that a franchise should issue even if the requirements of
Section 2.10.240(a) (I)-(3) are not satisfied, by virtue of
the circumstances surrounding the matter and the steps taken
by the applicant to cure all harms flowing therefrom and
prevent their recurrence, the lack of involvement of the
applicant’s principals, or the remoteness of the matter from
the operation of a cable system."
SECTION 21. Section 2.10.250 is hereby added to Chapter
2..10 of Title 2 of the Palo Alto Municipal Code to read, as
follows:
"Section 2.10.250. Franchise fee.
An operator of a cable system shall pay to the City a
franchise fee in an amount equal to five percent (5%) of
gross revenues, or such other amount as may be specified in
the franchise; provided, however, that if the franchise
specifies an amount, that amount shall be subject to increase
should federal limits on fee payments be eliminated, or
changed and other operators are subject to the same modified
fee."
SECTION 22. Section 2.10.260 is hereby added to Chapter
2.10 of Title 2 of the Palo Alto Municipal Code to read, as
follows:
000417 syn 0071808
32
"Section 2.10.260. No exclusivity.
A franchisee may not require a subscriber or a
building owner or manager to enter into an exclusive contract
as a condition of providing or continuing service. However,
nothing herein prevents a franchisee from entering into an
otherwise lawful, mutually desired exclusive arrangement with
a building owner or manager of a multiple dwelling unit or
commercial subscriber."
SECTION 23. Section 2.10.270 is hereby added to Chapter
2.10 of Title 2 of the Palo Alto Municipal Code to read, as
follows:
"Section 2.10.270. Minimum franchise conditions.
(a) In addition to satisfying such additional or
stricter conditions as the City finds necessary based on its
investigations, the following elements shall be required in
the case of every franchisee serving more than one thousand
(I000) subscribers:
(I) To the maximum extent permitted by applicable
law, each franchisee shall provide a cable system that uses
at least 750MHz equipment of high quality and reliability.
(2) To the maximum extent permitted by applicable
law, each franchisee shall install and activate the return
portion of the cable system in the sub-low frequency spectrum
of 5 MHz to 30 MHz.
(b) A franchisee shall provide a minimum of five (5)
channels for PEG access to each subscriber.
(i) Each franchisee shall install, maintain, and
replace as necessary, a dediCated, bi-directional fiber optic
link between its headend and a location designated by the
City as the primary access center. Each franchisee shall
install, maintain, and replace activated two-way cable plant
and all headend, cable plant, and node equipment required to
make it operable so that the City, schools, and all
designated PEG access centers and access facilities located
within the franchise area will be able to send and receive
signals (video, audio, and data) using the activated two-way
cable plant. Each franchisee shall ensure that technically
adequate signal quality, routing systems, and switching
and/or processing equipment are initially and continuously
provided for all access interconnections both within the
franchisee’s cable system and ~with other cable systems
throughout the duration of its .franchise.
33
000417 syn 0071808
(2) In the event a franchisee makes any change in the
cable system and related equipment and facilities or in the
franchisee’s signal delivery technology which directly or
indirectly substantially affects the signal quality or
transmission of access programming, the franchisee shall at
its expense take necessary steps or provide necessary
technical assistance, including, but not limited to, the
acquisition of all necessary equipment, to ensure that the
capabilities of access programmers are not diminished or
adversely affected by such change.
(3) A franchisee shall maintain all access channels
(both upstream channels and downstream channels) and all
interconnections of access channels at the same level of
technical quality and reliability as the best commercial
channels carried on the system.
(c) Every cable system shall provide service in its
franchise area upon request to any person or any government
building. Each franchisee shall extend service upon request
within its franchise area, provided that, a franchise may
permit a franchisee to require a potential subscriber to
contribute a fair share of the capital costs of installation
.or extension as a condition of extension or installation in
cases where such extension or installation may be unduly
expensive. Service shall be provided within the time limits
specified in Section 2.10.270(d).
(d) Except as a franchise provides otherwise,
service must be extended upon request to any person or to any
government building in a franchisee’s franchise area:
(i) within seven (7) .days of the request, where service can
be provided by activating or installing a drop of 125 feet or
less; (ii) within thirty (30) days of the request, where
service can be provided by activating a drop of a length in
excess of 125 feet,-but not exceeding one-quarter mile; (iii)
within ninety (90) days of the request, where an extension of
one-quarter mile to one-half mile is required; or
(iii) within six (6) months where an extension of more than
one-half mile is required.
(e) A cable system within the City shall meet or
exceed the technical standards set forth in 47 C.F.R.
~ 76.601 and any other applicable technical standards.
(f) Each franchisee shall perform at its expense
such tests as may be necessary to show whether or not the
franchisee is in compliance with its obligations under
applicable FCC standards, this Chapter or a f±anchise.
000417 syn 0071808
34
(g) Upon request of the City, every cable
communications system shall be required to interconnect with
~very other cable communications system within the City on
fair and reasonable terms for purposes of providing PEG and
institutional network services.
(h) Each franchisee shall, during the term of the
franchise, ensure that subscribers are able to receive
continuous service. In the event the franchise is revoked or
terminated, the franchisee may be required to continue to
provide service for a reasonable period of time to assure an
Orderly transition of service from the franchisee to another
entity.A franchise may establish more particular
requirements under which these obligations will be
satisfied."
SECTION 24. Section 2.10.275 is hereby added to Chapter
2.10 of Title 2 of the Palo Alto Municipal Code to read, as
follows:
"Section 2.10.275.
standards violations.
Penalties for customer service
(a) Each franchisee must satisfy FCC, California and
City cable customer service standards or consumer protection
standards. In the case of a conflict among standards, the
stricter standard shall apply.
(b) For violation of cable customer service
standards, penalties will be imposed in accordance with the
administrative penalties provisions of the Palo Alto
Municipal Code, or, if none, as follows:
(i) Two hundred dollars ($200) for each day of each
material breach, not to exceed six hundred dollars ($600) for
each occurrence of material breach;
(2) If there is a subsequent material breach of the
same provision within twelve (12) months, four hundred ($400)
for each day of each material breach, not to exceed twelve
hundred dollars ($1200) for each occurrence of the material
breach; and
(3) If there is a third or additional material
breach of the same provision within twelve (12) months of the
first, one thousand dollars ($i000) for each day of each
material breach, not to exceed three thousand dollars ($3000)
for each occurrence of the material breach.
(c)
will be
000417 syn 0071808
Any penalty assessed under this Section 2.10.280
reduced dollar-for-dollar to the extent any
35
liquidated damage, provision of a franchisee’s franchise
imposes a monetary obligation on that franchisee for the same
customer service failures,and no other monetary damages may
be assessed. The City will provide notice, and impose
penalties, under this section pursuant t~ the procedures
established by California Government Code § 53088.2(r)."
SECTION 25. Section 2.10.280 is hereby added to Chapter
2.10 of Title 2 of.the Palo Alto Municipal Code to read, as
follows:
~’Section 2.10.280. Rate regulation.
(a) The City may regulate any of a franchisee’s
rates and charges, except to .the full extent permitted by
law. The City will regulate rates in accordance with FCC
rules and regulations, where applicable. Except to the extent
FCC rules provide otherwise, all rates and charges that are
subject to regulation, and changes in those rates or charges
must be approved in advance. The Cable Coordinator may take
any required steps to file complaints, toll rates, issue
accounting orders or take any other steps required to comply
with FCC regulations. The Council shall be responsible for
issuing rate orders that establish rates or order refunds.
(b) Except to the extent the City may not enforce
such a requirement, a franchisee is prohibited from
discriminating in its rates, charges, services, or terms of
services, and from granting undue preferences to any
subscriber, potential subscriber, group of subscribers or
potential group of subscribers; provided, however, that a
franchisee may offer temporary, bona fide promotional
discounts in order to attract or maintain subscribers, so
long as such discounts are offered on a non-discriminatory
basis to similar classes of subscribers throughout the
franchise area; and a franchisee may offer discounts for the
elderly, the disabled, or the economically disadvantaged, and
such other discounts as it is expressly entitled to provide
under federal law, if such discounts are applied in a uniform
and consistent manner.
(c) A franchisee shall not deny access or charge
different rates to any group of subscribers or potential
subscribers because of the income of the residents of the local
area in which such group resides.
SECTION 26. Section 2.10.300 is hereby added to
Chapter 2.10 of Title 2 of the.Palo Alto Municipal Code to read,
as follows:
000417 syn 0071808
36
"Section 2.10.300. Initial and renewal OVS applications.
(a) A written application for grant ofan initial or
a renewal OVS franchise shall be filed with the City. To be
acceptable for filing, not less than an original of the
application shall be submitted together with two (2) copies.
The application must conform to any applicable request for
proposals, and contain all information required under
Section 2.10.300(b). All applications shall include the
names and addresses of individuals authorized to act on
behalf of the applicant with respect to the application.
(b)The Cable Coordinator may specify the
information that must be provided in connection with a
request for proposals or an application for an initial or
renewal OVS franchise. At a minimum, each application must:
identify the applicant; show where it plans to construct its
system, and the system construction schedule; show.that the
applicant will provide adequate channels, facilities and
other support for public, educational and governmental use
(including institutional network use) of the ors; and show
that the applicant is financially, technically and legally
qualified to construct, operate, maintain and repair the OVS.
(c) A person may-apply for an initial or a renewal
OVS franchise on its own initiative or in response to a
request for proposals.
(I) Upon receipt of an application the City shall
proffer the applicant a proposed ors franchise, which shall
be mailed to the individual requesting.its issuance and made
available to .any other interested party. The City may
request such other information, as it deems appropriate.
(2) An applicant shall respond to requests for
information completely, and within the time directed by the
Cable Coordinator, and must strictly comply with procedures,
instructions, and requirements the City may establish.
(3) An application may be rejected if it is
incomplete, if the response to requests for information is
not timely and complete, or the applicant fails to follow
procedures or respond fully to information requests.
(d) In evaluating an OVS franchise application, the
City may consider the following:
(I) The extent to which the applicant has
substantially complied with the applicable law and, in the
case of a renewal franchise application, the material terms
of any existing City OVS franchise;
37
000417 syn 0071808
(2) Whether the applicant has the financial,
technical, and legal qualifications to hold an OVS franchise;
(3) Whether the application satisfies any minimum
requirements established by the City for, or will provide
otherwise, adequate public, educational, and governmental use
capacity, facilities, or financial support (including with
respect to institutional networks);
(4) Whether the issuance of a franchise would
require .replacement of property or involve disruption of
property, public services, or use of the public rights-of-
way; and
(5) Whether the approval of the application may
eliminate or reduce competition in the delivery of cable
service in the City.
(e) If the City finds that it is in the public
interest to issue an ors franchise considering the factors
above, and such other matters as it is required or entitled
to consider, and subjectto the applicant’s entry into an
appropriate OVS agreement, it shall issue a franchise. Prior
to deciding whether or not to issue a franchise, the City may
hold one or more public hearings or implement other
procedures under which comments from the public on an
application may be received.
(f)In order to be legally qualified:
(I)The applicant shall be willing to comply with
the provisions of this Chapter and applicable laws, and to
.comply with such requirements of an OVS franchise as the City
may lawfully require;
(2) The applicant must not hold a cable system
franchise, or have pending an application for a cable system
franchise;
(3) The applicant must not have had any cable system
or OrS franchise validly revoked, (including any appeals) by
the City within three (3) years preceding the submission of
the application;
(4) The applicant may not have had an application
for an initial or a renewal cable system franchise to the
City denied on the ground that the applicant failed to
propose a cable system meeting the cable-related needs and
interests of the community (or, in the case of a renewal
franchise, denied on the ground that the franchisee failed
38
000417 syn 0071808
substantially to comply with the material terms of its
franchise), or as to which any challenges to such franchising
decision were finally resolved (including any appeals)
adversely to the applicant, within three (3) years preceding
the submission of the application;
(5) The applicant may not have had an application
for an initial or a renewal OVS franchise denied by the City
on any grounds within three (3) years of the filing of the
application;
6) The applicant shall not be issued a franchise
if, at any time during the ten (i0) years preceding the
submission of the application, the applicant or any of its
officers or directors were convicted of fraud, racketeering,
anticompetitive actions, unfair trade practices or other
conduct of such character that the applicant cannot be relied
upon to deal truthfully with the City and the subscribers, or
to substantially comply with its obligations;
(7) The applicant must have the necessary authority
under California and federal law to operate an OVS, and must
be certified by the FCC under 47 U.S.C. § 573;
(8) The applicant shall not be issued a franchise if
it files materially misleading information in its application
or intentionally withholds information that the applicant
lawfully is required to provide; and
(9) For purposes of Section 2.10.300(a) (2)-(5), the
term "applicant" includes any affiliateof~the applicant.
(g) Notwithstanding Section 2.10.300(f), an
applicant shall be provided a reasonable opportunity to show
that a franchiseshould issue, even if the requirements of
Section 2.10.300(a) (4)-(5) are not satisfied, by virtue of
the circumstances surrounding the matter and the steps taken
by the applicant to cure all harms flowing therefrom and
prevent their recurrence, the lack of involvement of the
applicant’s principals, or the remoteness of the matter from
the operation of a cable system."
SECTION 27. Section 2.10.310 is hereby added to
Chapter 2.10 of Title 2 of the Palo Alto Municipal Code to read,
as follows:
"Section 2~i0.310. OVS transfer application.
(a) No OVS transfer shall occur without
written notice to and the approval of the Council.
prior
000417 syn 0071808
39
(b) An OVS franchisee shall promptly notify the City
of any proposed transfer, and submit an application for its
approval.
(i) The Cable Coordinator may specify information
that must be provided in connection with a transfer
application. At a minimum, an application must: describe
the entities involved in the transaction and the entity that
will hold the franchise; describe the chain of ownership
before and after the proposed transaction; show’ that the
entity that will hold the. franchise will be legally,
financially, and technically qualified to do so; attach
complete information on the proposed transaction, including,
but not limited to, the contracts or other documents that
relate to the proposed transaction, and all documents,
schedules, exhibits, or the like referred to therein; and
attach any shareholder reports or filings with the SEC that
discuss the transaction.
(2) For the purposes of determining whether it shall
consent to a transfer, the City or its agents may inquire
into all qualifications of the prospective transferee and
such other matters as the City may deem necessary to
determine whether the transfer is in the public interest and
should be approved, denied, or conditioned. If the
transferee or OVS franchisee refuses to provide information,
or provides incomplete information, the request for transfer
may be denied.
(c) In deciding whethe~ a transfer application
should be granted, denied or granted subject to conditions,
the City may consider: the legal, financial, and technical
qualifications of the transferee to operate the OVS; whether
the incumbent OVS franchisee is in compliance with its ors
franchise and this Chapter and, if not~ the proposed
transferee’s commitment to cure such noncompliance within the
time required by applicable law; whether the transferee owns
or controls any other ors or cable system in the City, and
whether operation by the transferee may eliminate or reduce
competition in the delivery of cable service in the City; and
whether operation by the transferee or approval of the
transfer would adversely affect the interests of subscribers,
the public, or the City under this Chapter, the OVS
franchise, or other applicable law.
(d) In order to obtain approval of a transfer, an
applicant must show,- at a minimum, that: the transferee, is
qualified; the transfer will not adversely affect the
interests of subscribers, the public, or the City; and
Chapter and .franchise non-compliance issues have been
resolved. No application shall be granted unless the
40
000417 syn 0071808
transferee agrees in writing that it will abide by and accept
all terms of this Chapter and the OVS franchise, and that it
will assume the obligations, liabilities, and responsibility
for all acts and omissions, known and unknown, of the
previous franchisee for all purposes. The .proposed
transferee shall pay all reasonable costs incurred by the
City in reviewing and evaluating the applications."
SECTION 28. Section 2.10.320 is hereby added to
Chapter 2.10 of Title 2 of the Palo Alto Municipal Code to read,
as follows:
"Section 2.10.320. Minimum requirements.
(a) No OrS operator shall be issued a franchise, and
an OVS operator may not commence providing video services,
including video programming services, until it: (A) agrees to
match in all respects the highest PEG obligations borne by
any cable system franchisee in the City; or (B) agrees to PEG
obligations of a monetary value that is equivalent to the
highest PEG obligations borne by any cable system operator or
franchisee.
(b) Any OVS operator that constructs an
institutional network must match in all respects the highest
institutional network obligations borne by any cable system
operator or franchisee in the City, unless the ors franchisee
agrees to an alternative institutional network equivalent to
the obligations of a cable system operator or franchisee in
the City.
(c) Every ors agreement shall specify the
construction schedule that will apply to any required
construction, upgrade, or rebuild of the OVS.The schedule
shall provide for prompt completion of the project,
considering the amount and type of constructionrequired.
d) Each ors franchisee shall performat its expense
such tests as may be necessary to show whether or not the
franchisee is in compliance with its obligations under this
Chapter or an OVS franchise.
(e) Every OVS franchisee must satisfy FCC,
California and City OVS Customer service standards and
consumer .protection standards. In the case of a conflict
among standards,.the stricter standard shall apply."
SECTION 29. Section 2.10.330 is hereby added to
Chapter 2.10 of Title 2 of the Palo Alto Municipal Code to read,
as follows:
000417 syn 0071808
41
"Section 2.10.330. Special termination rules.
(a) If an OVS franchisee’s FCC certification is
revoked or terminates otherwise as a result of the passage of
time or as a matter of law, the City may revoke the OVS
franchise after a hearing. The ors franchise also may be
revoked if federal regulations or statutory provisions
governing OVS are declared invalid or unenforceable, or are
repealed."
SECTION 30. Section 2.10.340 is hereby added to
Chapter 2.10 of Title 2 of the Palo Alto Municipal Code to read,
as.follows:
"Section 2.10.340. Rate regulation.
The City may regulate an OVS franchisee’s rates and
charges to the full extent permitted by applicable law, and
may do so by amendment to this Chapter, separate ordinance,
by amendment to an ors franchise, or in any other lawful
manner."
SECTION 31. Section 2.10.350 is hereby added to
Chapter 2.10 of Title 2 of the Palo Alto Municipal Code to read,
as follows:
"Section 2.10.350. Fee in lieu of franchise fee.
(a) In lieu of the franchise fee required by Section
2.10.250, an OVS franchisee shall pay to the City a fee in an
amount equal to five percent (5%) of the gross revenues of
the OVS franchisee or its affiliates, or such other amount as
may be specified in the franchise; provided, however, that if
the franchise specifies an amount, that amount shall be
subject to modification in the event federal limits on fee
payments are modified and other operators are subject to the
same modified fee.
(b) A person leasing capacity from an OVS operator
other than a person whose revenues are included in the
payment made under Section 2,10,350(a) shall pay the City a
fee in lieu of the franchise fee required by Section 2.10.250
of five percent (5%) of the gross revenues of such person.
(c) Notwithstanding the foregoing, where the OVS
franchisee charges a person other than an affiliate, to use
its OVS (the "use payments’:); and that person recovers those
use payments through charges to its subscribers that are
included in that person’s gross revenues and that person
fully recovers the use payments through the charges to its
subscribers and pays a fee on those charges pursuant to
42
000417 syn 0071808
Section 2.10.350(b); then the OVS franchisee may deduct from~
its gross revenues the use payments it receives from that
person."
SECTION 32. Section 2.10.360 is hereby added to
Chapter 2.10 of Title 2 of the Palo Alto Municipal Code to read,
.as follows:
"Section 2.10.360. Exclusive contracts.
An ors franchisee may not require a subscriber or a
building owner or manager to enter into an exclusive contract
as a condition of providing or continuing service, nor may an
OVS~ franchisee enter into any arrangement that would
effectively prevent other persons from using the OVS to
compete in the delivery of cable services with a franchisee
or its affiliates."
SECTION 33. Section 2.10.400 is hereby added to Chapter
2.10 of Title 2 of.the Palo Alto Municipal Code to read, as
follows:
Section 2.10.400 Miscellaneous provisions.
(a) The captions to sections throughout this Chapter
are intended solely to facilitate reading and reference to
the sections and provisions of this Chapter. Such captions
shall, not affect the meaning or interpretation of this
Chapter.
(b). Unless otherwise indicated, when the performance
or doing of any act, duty, matter, or payment is required
under this Chapter or any franchise, and a period of time or
duration for the fulfillment of doing thereof is prescribed
and is fixed herein, the time shall .be computed so as to
exclude the first and include the last day of the prescribed
or fixed period of time.
(c) If any term, condition, or provision of this
Chapter shall, to any extent, be held to be invalid or
unenforceable by a valid order of any court or regulatory
agency of competent jurisdiction, the remainder hereof shall
be valid in all other respects and continue to be effective.
In the event of a subsequent change in applicable law that
renders valid the provision that had been held invalid, that
provision shall thereupon return to. full force and effect
without further action by the City and shall thereafter be
binding on the franchisee and the City.
(d) To the extent consistent with federal law,
subscribers shall have the right to attach videocassette
43
000417 syn 0071808
recorders, receivers, and other terminal equipment to a
franchisee’s cable system. Subscribers also shall have the
right to use their own remote control devices and converters,
and other similar equipment. A franchisee shall not, as a
condition of providing service, require a Subscriber or
potential subscriber .to remove any existing antenna, or
disconnect any antenna except at the express direction of the
subscriber or potential subscriber, or prohibit installation ~
of a new antenna, provided that such antenna is connected
with an appropriate device and complies with applicable law.
(e) A franchisee shall not discriminate among
persons or the City or take any retaliatory action against a
person or the City because of that’ person’s or the City’s
exercise of any right it may have under federal, California,
or City law, nor may a franchisee require a person or the
City to waive such rights as a condition of taking service.
(I) A franchisee shall not refuse to employ,
discharge from employment, or discriminate against any person
in compensation or in terms, conditions, or privileges of
employment because of race, color, creed, national origin,
sex, age, disability, religion, ethnic background, or marital
status. A franchisee shall comply with all federal,
California, and local laws governing equal employment
opportunities, and hiring practices.
(f) The operator of any system installed as of the
effective date of this Chapter, for which a. franchise is
required under this Chapter, shall have three (3) months from
the effective date of this Chapter. to file one or more
applications for a franchise. Any operator timely -filing
such an application under this Section 2.10.400(f) shall not
be subject to a penalty for failure to have.such a franchise
so long as such application remains pending; provided,
however, nothing herein shall relieve any operator of a cable
communications system Of any liability for its failure to
obtain any permit or other authorization required under other
provisions of the Palo Alto Municipal Code, and nothing
herein shall prevent the City from requiring removal of any
facilities installed in violation of the Palo Alto Municipal
code.
(g) Any person holding an existing franchise for a
cable communications system as of the date this Chapter is
adopted may continue to operate under the existing franchise
to the conclusion of its present term (but not any renewal or
extension thereof) with respect to those activities expressly
authorized by the franchise; provided that, such person shall
be subject to the other provisions of this Chapter to the
full extent permitted by law.
44
000417 syn 0071808
(h) To the maximum extent permitted by law, pending
applications shall be subject to this Chapter. A person with
a pending application shall, have thirty (30) days from the
effective date of this Chapter to submit additional
information to comply with the requirements of this Chapter
governing applications."
SECTION 34. Section 2.10.500 is hereby added to Chapter
2.10 of Title 2 of the Palo Alto Municipal Code to read, as
follows:
"Section 2.10.500. Customer service standards.
The customer service standards applicable to
franchisees of cable communications systems are established
in Appendix A to this Chapter and are incorporated herein by
reference. "
SECTION 35. If any section of this ordinance, or part
hereof, is held by a court of competent jurisdiction in a final
judicial action to be void, voidable or enforceable, such
section, or part hereof, shall be deemed severable from the
remaining sections of this ordinance and shall in no way affect
the Validity of the remaining sections hereof.
SECTION 36. The City Council hereby finds that this
ordinance is exempt from the provisions of the California
Environmental Quality Act pursuant to Section 15061(b) (3) of the
California Environmental Quality Act Guidelines, because it can
be seen with certainty that there is no possibility of
significant environmental effects occurring as a result of the
adoption of this ordinance.
//
//
//
//
II
II
//
//
//
000417 syn 0071808
45
SECTION 37. This ordinance shall become effective upon
the commencement of the thirty-first day after the date of its
adoption.
INTRODUCED:
PASSED:
AYES:
NOES:
ABSTENTIONS:
ABSENT:
ATTEST:APPROVED:
City Clerk
APPROVED AS TO FORM:
Senior Asst. City Attorney
Mayor
City Manager
Director of Administrative
Services
Director of Public Works
Director of Utilities
000417 syn 0071808
46
APPENDIX A TO CHAPTER 2.10 OF TITLE 2
OF THE PALO ALTO MUNICIPAL CODE
CUSTOMER SERVICE~STANDARDS FOR
CABLE COMMUNICATIONS SYSTEMS FRANCHISEES
PROVIDING SERVICES TO PALO ALTO CUSTOMERS
SECTION i.Definitions
I.i The definitions established under Chapter 2.10 of
Title 2 of the Palo Alto Municipal Code are incorporated herein
by reference and made a part of these customer service standards.
SECTION 2.Office Availability
2.1 Each franchisee, will maintain an office at a
convenient location in Palo Alto or, if outside of Palo Alto,
within a radius of five (5) miles of the jurisdictional
boundaries of Palo Alto that will be open for walk-in traffic at ¯
least ten (i0) hours per day (except legal holidays) Monday
through Friday, with some evening hours, and at least five (5)
hours on Saturday to ~allow subscribers to pay bills, drop off
equipment and to pick up equipment, and interact otherwise with
the franchisee on matters related to service provided by the
franchisee.
2.2 Each franchisee will perform service calls,
installations, and disconnections at least ten. (i0) hours per
day, Monday through Saturday, except legal holidays. In
addition, a franchisee will respond to service outages on a
twenty-four (24) hours a day, seven (7) days a week ("24/7
basis").
SECTION 3.Telephones
3.1 Each franchisee will establish a publicly listed
local toll-free telephone number. Customer service
representatives of a franchisee must answer the telephone at
least ten (i0) hours per day, Monday through Saturday, except
legal holidays, for the purpose of receiving requests for
service, inquiries, and complaints from subscribers. After
regular business hours, the telephone will be answered so those
subscribers can register complaints and report service problems
on a 24/7 basis, and so that the operator can respond to service
outages as required herein.
47
000417 syn 0071808
3.2 Telephone answering time will not exceed thirty
(30) seconds or four (4) consecutive rings, and the time to
transfer the call to a customer service representative (including
hold time) will not exceed an additional thirty (30) seconds.
3.3 Under normal operating conditions, subscribers
will receive a busy signal less than three percent (3%) of the
.time.
3.4 Under normal operating conditions, the standards
set out in Sectios 3.2 - 3.3 will be met ninety (90) percent of
the time, measured on a quarterly basis.
SECTION 4.Scheduling Work
4.1 All appointments for service, installation, or
disconnection will be specified by date and time Df day. Each
franchisee will specify a specific time at which the work will be
done, or offer a choice of time blocks, which will not exceed
four (4) hours in length. A franchisee, upon request, may
schedule service installation calls outside regular business
hours, for the express convenience of the subscriber.
4.2 If at any time an installer or technician is late
for an appointment and believes a scheduled appointment time will
be missed, an attempt to contact the subscriber will be made
before the time of appointment and the appointment shall be
rescheduled at a time convenient to the subscriber, if a
rescheduling is necessary. The franchisee shall bear the burden
of proving that it met the appointment.
4.3 The franchisee will offer and fully describe in
writing to subscribers who have experienced a missed appointment
(where the missed appointment was not the subscriber’s fault)
that the subscriber may choose.among the following options:
4.3.1 Installation or service call free of
charge, if the appointment was for an installation or service
call for which a fee was to be charged;
4.3.2 One (I) month of the most widely
subscribed-to service tier free of charge for other appointments;
and
4.3.3 An opportunity tO elect remedies under
California Civil Code § 1722, if applicable.
000417 syn 0071808
48
SECTION 5~Service Standards
5.1 Under normal operating conditions, requests for
service, repair, and maintenance must be acknowledged by a
trained customer service representative within twenty-four (24)
hours, or before the end of the next business day, whichever is
earlier.
5.2 A franchisee will respond to all other inquiries
(including billing inquiries) within five (5) business days of
the inquiry or complaint.
5.3 Under normal operating conditions, re~airs and
maintenance for outages or service interruptions must be
completed within twenty-four (24) hours after the outage or
interruption becomes known to the franchisee where the franchisee
has adequate access to facilities to which it must have access in
order to remedy the problem.
5.4 Under normal operating conditions, work to correct
all other service problems must commence by the next business day
after notification of the service problem, and must be completed
within five (5) business days from the date of the initial
request.
5.5 When normal operating conditions do not exist, a
franchisee will complete the work in the shortest time possible.
5.6 A franchisee will not cancel a service or
installation appointment with a subscriber after the close of
business on the business day preceding the scheduled appointment.
5.7 Requests for additional outlets, service upgrades
or other connections (e.g., DMX, VCR, A-B switch) separate from
the initial installation will be performed within seven (7)
business days after an order has been placed.
5.8 Under normal operating conditions, the service
standards set out in Sections 5.1 - 5.7 will be met at least
ninety-five (95) percent of the time, measured on a quarterly
basis.
5.9 The failure of a franchisee to hire sufficient
staff or to properly train its staff will not excuse or justify a
franchisee’s failure to comply with this provision.
SECTION 6.Disabled Services
6]I With regard to subscribers with disabilities, upon
subscriber request, each franchisee will arrange for pickup
and/or replacement of converters or other operator equipment at
49
000417 syn 0071808
the subscriber’s address or by a satisfactory equivalent (such as
the provision of a postage-prepaid mailer).
SECTION 7.Notice to Subscribers re~ardin@ Service
7.1 A franchisee will provide each subscriber at the
time service is installed, and annually thereafter, clear and
accurate written information:
7.1.1 On placing a service call, filing a
complaint, or requesting an adjustment (including when a
subscriber is entitled to refunds for outages and how to obtain
them);
7.1.2 Showing the telephone number of the
Cable Coordinator’s office or other individual(s) responsible for
administering the cable television franchise and the open video
system franchise;
7.1.3 Providing ,a schedule of rates and
charges (which listing must identify any discounts offered),
channel positions, services provided, a copy of the service
contract, delinquent subscriber disconnection and reconnection
procedures; notifying subscribers of the availability of parental
control devices, and the conditions under which they will.be
provided and the cost (if any) charged;
7.1.4 Describing conditions that must be met
to qualify for discounts;
7~1.5 Describing. any other of the franchisee’s
policies in connection with its subscribers; and
7.1.6 Describing any discounts, services, or
specialized equipment available to subscribers with disabilities;
explaining how to obtain them; and explaining how to use any
accessibility features.
SECTION 8.Notices to City
8.1 Each franchisee will provide the City with copies
of all notices provided to its subscribers as required by these
standards.
SECTION 9.Chan~es in Noticed Information
9.1 Each franchisee will provide the Cable Coordinator
at least sixty (60) days’ and all subscribers at least thirty
(30) days’ advance written notice of any material changes in the
information required to be provided under these standards, except
that, if federal law establishes a shorter notice period and
5O
000417 syn 0071808
preempts this requirement,
apply.
the federal law requirement will
SECTON i0.Truth in Advertising
I0.I Each franchisee will take appropriate steps to
ensure that all of its written promotional materials,
announcements, and advertising of residential cable service and
open video system service, as applicable, to subscribers .and the
general public, where price information is listed in any manner,
clearly and accurately disclose price terms. In the case of
telephone orders, a franchisee will take appropriate steps to
ensure that price terms are clearly and accurately disclosed to
potential subscribers in advance of the taking of the order.
10.2 Each franchisee will maintain a file open for
public inspection containing all notices provided to subscribers
under these standards, as well as all promotiona! offers made to
subscribers. The notices and offers willbe kept on file for at
least one (I) year from the date such notice or promotional offer
is announced to the subscribers and the general public.
SECTION Ii.Interruptions in Service
Ii.i Each franchisee will provide forty-eight (48)
hours’ prior notice to subscribers and the Cable Coordinator
before interrupting service for planned maintenance or
construction; provided, however, that planned maintenance that
does not require more than two (2) hours’ .interruption of service
and that occurs between the hours of 12:00 midnight and 6:00 a.m.
will not require such notice to subscribers, and written notice
to the Cable Coordinator must be given not less than twenty-four
(24) hours before ~he anticipated service interruption.
SECTION 12. Prorated Billing
12.1 A franchisee’s first billing statement after a new
installation or service change will be prorated, as appropriate,
and will reflect a credit for any security deposit posted by a
subscriber.
SECTION 13.Billing Statement
13.1 A franchisee’s billing statement must be clear,
concise, and understandable; must itemize each category of
service and equipment provided to the subscriber; and must state
clearly the charges therefor.
13.2 A franchisee’s billing statement must
specific ,payment due date not earlier than the later of:
show a
000417 syn 0071808
51
13.2.1
statement is, maile’d; or
Fifteen (15)days after the date the
13.2.2 The tenth (10th)
period for which the bill is rendered.
day of the service
13.3 A late fee or administrative fee (collectively
referred to below as a "late fee") may not be imposed except in
¯ accordance.with to California Government Code §§ 53088.6, 53088.7
and 53088.8.
13.4 A franchisee’s bill must permit a subscriber to
remit payment by mail or in person at the franchisee’s local Palo"
Alto office.
SECTION 14,Credit for Service Impairment
14.1 Upon a subscriber’s request, a subscriber’s
account will be credited a prorated share of the monthly charge
for the service if a subscriber is without service or if service
is substantially impaired for any reason for a period exceeding
four (4) hours during any twenty-four (24) hour period. A
subscriber’s account will be automatically so credited, without
the need for a subscriber’s request, if the loss of service or
impairment is for twenty-four (24) hours or longer.
14.2 A franchisee is not required to credit a
sub’scriber’s account where the franchisee establishes that the
subscriber’s loss of service or impairment was caused by the
subscriber or by subscriber-owned equipment (not including, for
purposes of this Section, in-home wiring installedby theoperator).
SECTION 15. Billin~ Complaints
15.1 Each franchisee will respond to all writtenbilling complaints from subscribers within thirty (30)days oftheir receipts.
SECTION 16.Billin~ Refunds
than:
16.1 Refunds to subscribers will be issued no later
16.1.1 The earlier of the subscriber’s next
billing cycle following a resolution of the refund request, or
thirty (30) days; or
000417 syn 0071808
52
16.1.2 The date of return of all equipment to
the franchisee, if cable serv±ce or open video sYstem service, as
applicable, has been terminated.
SECTION 17. Credits for Cable Service
17.1 Credits for cable service or open video system
service, as applicable, will be issued no later than the
subscriber’s next.billing cycle after the determination that the
credit is warranted.
SECTION 18.Disconnection and Downgrades
18.1 A subscriber may terminate service at any time.
18.2 A franchisee will promptly disconnect from its
cable system or open video system, as applicable, or downgrade
the service of, any subscriberwho so requests. No charges for
service may be made after the subscriber requests disconnection.
No period o¯f notice before voluntary termination or downgrade of
service may be required of subscribers by any franchisee. There
will be no charge for disconnection, except for the collection
fee authorized by California law, and any downgrade charges¯ will
conform to applicable law.
SECTION 19.Security Deposit
19.1 Any security deposit and/or other funds due a
subscriber who disconnects or downgrades service will be returned
to the subscriber within thirty (30) days or in the next billing
cycle, whichever is later, from the date that a disconnection or
a downgrade was requested;, provided, however, where the
subscriber does not permit the franchisee to recover its
equipment, the amounts owed will be paid to the subscriber within’
thirty (30) .days of the date the equipment was recovered, or in
the next billing cycle, whichever is later.
SECTION 20.Disconnection due to Nonpayment
20.1 A franchisee may not disconnect a subscriber’s
cable service or open video system service, as applicable, for
non-payment unless:
20.1.1 The subscriber is delinquent in payment
for cable service or open video system service, as applicable;
20.1.2 A separate, written notice of impe’nding
disconnection, postage prepaid, has been sent to the subscriber
at least twenty (20) days before the date on which service may be
disconnected, at the premises where the subscr-iber requests
billing, which notice must identify the names and address of the
53
000417 syn 0071808
subscriber whose account is delinquent, state the date by which
disconnection may occur if payment is not made, and the amount
the subscriber must pay to avoid disconnection, and a telephone
number of a representative of the franchisee who can provide
additional information, and handle complaints or initiate an
investigation, concerning the services and charges in question;
20.1.3 The subscriber fails to pay the amounts
.owed to avoid disconnection by the date of disconnection; and
20.1.4 No pending inquiry or dispute exists
regarding the. bill to which the franchisee has not responded in
writing.
20.2 If the subscriber pays all amounts due, including
late charges, before the date scheduled for disconnection, the
franchisee will not disconnect service. Service may only be
terminated on days in which the subscriber can reach a
representative of the franchisee either in person or by
telephone.
20.3 After disconnection .(except as noted below), upon
payment by the subscriber in full of all proper fees or charges,
including the payment of the reconnection fee, if any, the
franchisee will promptly reinstate service.
SECTION 21.Immediate Disconnection
21.1 A
sDbscriber if:
franchisee may immediately disconnect a
21.1.1 The subscriber is damaging, destroying,
or unlawfully tampering with or has damaged or destroyed or
unlawfully tampered with the franchisee’s cable system or open
video system;
21.1.2 The subscriber is not authorized to
receive a service, and is facilitating, aiding or abetting the
unauthorized receipt of service by others; or
21.1.3 Subscriber-installed or attachedequipment is resulting in signal leakage that is in violation of
FCC rules.
21.2 After disconnection, the franchisee will restore
service after the subscriber provides adequate assurance that it
has ceased the practices that led to disconnection, and paid all
proper fees and charges, including any reconnection fees and all
amounts owed the franchisee for damage to its Cable
communications system or equipment. No reconnection fee may be
imposed on a subscriber that is disconnected pursuant to these
54
000417 syn 0071808
standards if the leakage was the result of the franchisee’s acts
or omissions or, in any case, unless the franchisee notifies the
subscriber of the leakage at least three (3) business days in
advance of disconnection, and the subscriber has failed to
correct the leakage within that time.
SECTION 22.Franchisee’s Property
22.1 Except as applicable law may provide otherwise, a
franchisee may remove its property from a subscriber’s premises
within thirty (30) days of the termination of service. If a
franchisee fails tO remove its property in that period, the
property will be deemed abandoned, unless the franchisee has been
denied access to the subscriber’s premises, or the franchisee has
a continuing right to occupy the premises under applicable law.
SECTION 23.Deposits
23.1 A franchisee may require a reasonable, non-
discriminatory deposit on equipment provided to subscribers.
Deposits will be placed in an interest-bearing account, and the
franchisee will return the deposit, plus interest earned to the
date the deposit is returned, to the subscriber, less any amount
the franchisee can demonstrate should be deducted for damage to
such equipment.
SECTION 24.Parental Control Option
24.1 Without-limiting a franchisee’s obligations under
federal law, after March i, 1999, a franchisee must provide
parental control devices at no charge to .all subscribers who
request them that enable the subscriber to block the video and’
audio portion 0f any channel or channels of programming.
SECTION 25.Penalties
25.1 Pursuant to California Government Code §
53088.2(q), as may be. amended from time to time, penalties will
be assessed against a franchisee for any breach of these customer
service standards.
25.2 Notwithstanding the requirements of this Appendix
A, the Cable Coordinator is authorized to relieve a franchisee of
its obligations under this Appendix A if:
25.2.1 The franchisee shows that there is an
alternative standard that is substantially similar to that
established by this Appendix A;
000417 syn 0071808
55
25.2.2 The Council determines that there is
sufficient competition among cable communications system
operators, including any franchisee, in Palo ~ito that renders
application of these standards unnecessary; or
25.2.3 In light of the number of customers
served by a cable communications system operator, including any
franchisee, the requirements of this Appendix A are, in the
Council’s determination, unduly burdensome and there is an
alternative way to serve the same interest.
SECTION 26.Internet and Cable Modem Service Standards
26.1 Any cable system franchisee, ors franchisee, or
other franchised provider of high-speed Internet access service
shall be subject to the following:
26.1.1 All subscribers shall be entitled to a
minimum upstream channel transfer rate of at least 128 kilobits
per second at least eighty-five percent (85%) of the time, as
practicable, within any hour of operation;
26.1.2 The usage of the system shall be
measured at the hub and nodes, and, as practicable, at the
customers’ residences, and written reports of such usage shall be
provided to the Cable Coordinator at least once a month, or as
more or less often as the Cable Coordinator shall reasonably
require.
26.1.3 In the event that the average throughput
between 7:00 a.m. and i0:00 p.m. over a seven-day period, Monday
through Sunday, exceeds twenty-five percent (25%) of capacity,-or
there are five (5) or more instances in a single seven-day period
in which the throughput reaches full capacity, the franchisee
shall install without charge to .the subscribers additional
capacity, segment nodes to serve a smaller number of subscribers,
or take such other measures deemed reasonable by the Cable
Coordinator as will ensure that the subscribers receive the
minimum level of service provided under the provisions of Section
26.1.
SECTION 27. Miscellaneous
27.1 Notwithstanding the requirements of these
standards, the Cable Coordinator is authorized to relieve a
franchisee of its obligations hereunder if:
27.1.1 A franchisee shows that there is an
alternative standard that is substantially similar to that
established by this Appendix A;
000417 syn 0071808
56
27.1.2 The Council determines that there is
sufficient competition among cable communications system
operatc~rs, including any franchisee, in Palo Alto that renders
application of these standards unnecessary; or
27.1.3 In light of the number of subscribers
served by a franchisee, the requirements of this Appendix A are,
in the Council’s determination, unduly burdensome and there is an
alternative way to serve the same interest.
000417 syn 0071808
57