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SANTA CLARA COUNTY CODE OF ORDINANCES: Sec. B10-71. Enforcement and remedies.

Copyrighted by SANTA CLARA COUNTY CODE & Municipal Code Corporation, 1998.

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Sec. B10-71. Enforcement and remedies.

(a) The County Board of Supervisors may revoke a franchise or reduce the term of a franchise if it finds, after a hearing, that a cable communications system operator has not substantially complied with each provision of this chapter; has committed a material breach of its franchise ordinance or repeatedly failed to comply with its franchise ordinance; has defrauded or attempted to defraud the County or subscribers; or has attempted to evade the requirements of this chapter or its franchise ordinance. Before conducting a hearing to revoke the franchise: (1) the County Executive must have given written notice of a claimed violation, breach, default or failure and a description of the claimed violation; and (2) the franchisee must have been given at least 30 days to cure the claimed default, except as provided herein. An opportunity to cure is not required where the County finds that the defect in performance is due to willful misconduct, is an adjudicated violation of criminal law, or is part of a pattern of violations where the franchisee has already had notice and opportunity to cure. The franchisee will be given at least 20 days' written notice of the hearing date, and will be provided an opportunity to be heard at the hearing.

(b) The County may also revoke a franchise without opportunity to cure where (1) a franchisee voluntarily stops providing service it is required to provide; or (2) a transfer described under Section B10-68 occurs without the prior consent of the County.

(c) To the extent not prohibited by the U.S. Bankruptcy Code, a franchise will terminate automatically by force of law 120 calendar 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: (1) 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 ordinance, and has executed an agreement, approved by any court having jurisdiction, assuming and agreeing to be bound by the terms and conditions of this chapter and the franchise ordinance. In the event of foreclosure or other judicial sale of any of the facilities, equipment or property of a franchisee, the County may revoke the franchise following a public hearing before the County Board of Supervisors, by serving notice upon the franchisee and the successful bidder at the sale, in which event the franchise and all rights and privileges there under will be revoked and will terminate 30 calendar days after serving such notice, unless: (1) the County has approved the transfer of the franchise to the successful bidder; and (2) the successful bidder has covenanted and agreed with the County to assume and be bound by the terms and conditions of the franchise ordinance and this chapter.

(d) Upon termination or forfeiture of a franchise, whether by action of the County as provided above, or by passage of time, the County may do one or a combination of the following:

(1) The franchisee must, as the County so directs, stop using the cable communications system for the purposes authorized by the franchise.

(2) The County may require the former franchisee to remove all or a portion of its facilities and equipment at the former franchisee's expense, subject to franchisee's right to abandon property in place. If the former franchisee fails to do so within a reasonable period of time, the County may have the removal done at the former franchisee's and/or surety's expense.

(3) The County, by resolution of the Board of Supervisors, may acquire ownership or effect a transfer of all or a portion of the cable communications system in a manner consistent with applicable law, including but not limited to 47 U.S.C. 547(b).

(4) Subsection B10-71(d)(3) of this section does not apply to an abandonment. If a cable communications system or any part thereof is abandoned by franchisee, the County may require the franchisee to transfer title to the all or some of the abandoned portions to it, as the County may direct, at no charge, free and clear of encumbrances, and the same will become the County's property and the County may keep, sell, assign, or transfer all or part of the assets of the cable communications system, or otherwise dispose of those assets as it sees fit. The cable communications system or a part thereof, will be deemed abandoned if (i) the cable communications system operator notifies the County of its intent to abandon; (ii) the cable communications system operator willfully ceases providing cable service in accordance with its franchise; (iii) the facility or equipment is not used or useful in the provision of then-existing or planned cable services; or (iv) the cable communications system operator does not provide cable service over the cable communications system or a part of the system for 96 consecutive hours, and is not restoring service with all due diligence.

(5) Notwithstanding the foregoing, the County may not, pursuant to this section, issue an order that violates 47 U.S.C. § 541(b)(3)(c).

(e) Remedies provided for under this chapter, or under a franchise ordinance shall be cumulative, may be used singly or in combination, and are in addition to all other remedies which may be available to the County at law or equity; provided, however, that the County is not entitled to recover damages for the same act or omission under multiple remedies where doing so would result in a double recovery of damages by the County for the same harm. Recovery by the County of any amounts under insurance, the performance bond, the security fund or letter of credit, or otherwise does not limit in any way a franchisee's duty to indemnify the County nor shall such recovery relieve a franchisee of its franchise obligations, limit the amounts owed to the County, or in any respect prevent the County from exercising any other right or remedy it may have.

(f) Each franchise shall contain a provision specifying liquidated damages payable to the County in the event of a breach of a franchise obligation where damages would otherwise be difficult to ascertain.

(Ord. No. NS-905, § 2, 12-13-05)