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SANTA CLARA COUNTY CODE OF ORDINANCES: CHAPTER II. CABLE SYSTEMS AND OPEN VIDEO SYSTEMS*

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

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CHAPTER II.
CABLE SYSTEMS AND OPEN VIDEO SYSTEMS*

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Editor's note--Ord. No. NS-905, § 1, adopted Dec. 13, 2005, repealed former Ch. II, in its entirety, which pertained to community antenna television. Section 2 of said ordinance enacted provisions designated as a new Ch. II to read as herein set out. See also the Code Comparative Table.

State law reference(s)--Cable T.V. franchises, Government Code § 53066.

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ARTICLE 1.
GENERAL

Sec. B10-23. Definitions.

(a) The definitions set forth in this article shall govern the application and interpretation of this chapter.

(b) When not inconsistent with the context, words used in the present tense include the future tense; words in the plural number include the singular number; and words in the singular number include the plural number; and the masculine gender includes the feminine gender.

(c) Subject to the provisions of Section A1-23 of the County Ordinance Code, the words "shall" and "will" are mandatory, and "may" is permissive.

(d) Words not defined in this chapter shall have the same meaning as in Title VI of Title 47 of the United States Code in effect on the effective date of the ordinance enacting this chapter, and, if not defined therein, their common and ordinary meaning.

(e) References to governmental entities (whether persons or entities) refer to those entities or their successors in authority.

(f) If specific provisions of law referred to herein are renumbered, then the reference shall be read to refer to the renumbered provision.

(g) Unless otherwise specified, references to "applicable laws" shall be interpreted broadly to cover government actions, however nominated, and include laws, ordinances and regulations now in force or hereinafter enacted or amended.

(Ord. No. NS-905, § 2, 12-13-05)

Sec. B10-24. Access, PEG access, or PEG use.

"Access," "PEG access," or "PEG use" refers to the availability of a cable system or OVS for public, education or government use (including Institutional Network use) by various agencies, institutions, organizations, groups, and individuals, including the County and its designated access providers, to acquire, create, and distribute programming not under a franchisee's editorial control, including, but not limited to the access or use described in Sections B10-25 through B10-27 below.

(Ord. No. NS-905, § 2, 12-13-05)

Sec. B10-25. Public access or public use.

"Public access" or "public use" means access where organizations, groups, or individual members of the general public are the designated programmers or users having editorial control over their communications.

(Ord. No. NS-905, § 2, 12-13-05)

Sec. B10-26. Education access or education use.

"Education access" or "education use" means access where schools are the designated programmers or users having editorial control over their communications.

(Ord. No. NS-905, § 2, 12-13-05)

Sec. B10-27. Government access or government use.

"Government access" or "government use" means access where government institutions or their designees are the designated programmers or users having editorial control over their communications.

(Ord. No. NS-905, § 2, 12-13-05)

Sec. B10-28. Affiliate.

"Affiliate" means a person that owns or controls, is owned or controlled by, or is under common ownership or control with, another person.

(Ord. No. NS-905, § 2, 12-13-05)

Sec. B10-29. Basic service.

"Basic service" means any service tier regularly provided on a cable communications system to all subscribers which includes the retransmission of local television broadcast signals.

(Ord. No. NS-905, § 2, 12-13-05)

Sec. B10-30. Cable Act.

"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, as further amended by the Telecommunications Act of 1996.

(Ord. No. NS-905, § 2, 12-13-05)

Sec. B10-31. Cable communications system.

"Cable communications system" refers to open video systems (OVS) and cable systems.

(Ord. No. NS-905, § 2, 12-13-05)

Sec. B10-32. Cable service.

"Cable service" shall have the same meaning as in Title VI of Title 47 of the United States Code, as amended from time to time.

(Ord. No. NS-905, § 2, 12-13-05)

Sec. B10-33. Cable system.

"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 which includes video programming and which is provided to multiple subscribers within the County, 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 without connecting to a facility that uses, any public right-of-way within the County;

(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 Federal Communications Act of 1934, as amended, 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 facilities of any electric utility used solely for operating its electric utility systems; or

(e) An OVS that complies with Section 653 of the Cable Act.

Any reference to a cable system includes the cable system as a whole, or any part thereof, including all pedestals, equipment cabinets, electronic equipment and devices appurtenant to the cable system.

(Ord. No. NS-905, § 2, 12-13-05)

Sec. B10-34. Channel.

"Channel" means a portion of the electromagnetic frequency spectrum which is used in a cable system or OVS and which is capable of delivering a standard NTSC broadcast video programming service whether in an analog or digital format. The definition does not restrict the use of any channel to the transmission of analog television signals.

(Ord. No. NS-905, § 2, 12-13-05)

Sec. B10-35. County.

"County" means the County of Santa Clara and all departments, divisions, and agencies thereof; except that, when used to describe a geographic area, the term refers to the boundaries of the County of Santa Clara, California, as they exist now or may exist in the future.

(Ord. No. NS-905, § 2, 12-13-05)

Sec. B10-36. County Executive.

"County Executive" shall mean the County Executive of the County of Santa Clara and designees of the County Executive of the County of Santa Clara.

(Ord. No. NS-905, § 2, 12-13-05)

Sec. B10-37. Construction, operation or repair.

"Construction, operation or repair" and similar formulations of that term 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, excavation, the management of the cable system and its operations and work performed in connection with the same (including but not limited to restoration of property affected by the construction, operation or repair of the cable system).

(Ord. No. NS-905, § 2, 12-13-05)

Sec. B10-38. FCC.

"FCC" means the Federal Communications Commission.

(Ord. No. NS-905, § 2, 12-13-05)

Sec. B10-39. Franchise.

"Franchise" refers to an authorization granted by the County 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 County, to provide specified services within a franchise area. A permit is not a franchise.

(Ord. No. NS-905, § 2, 12-13-05)

Sec. B10-40. Franchise area.

"Franchise area" means the area of the County that a franchisee is authorized to serve by the terms of its franchise ordinance or by operation of law.

(Ord. No. NS-905, § 2, 12-13-05)

Sec. B10-41. Franchisee.

"Franchisee" refers to a person holding a cable communications system franchise granted by the County.

(Ord. No. NS-905, § 2, 12-13-05)

Sec. B10-42. Gross revenues.

"Gross revenues" means any and all revenue, of any kind, nature or form, derived from the provision of cable service within the franchise area. The term encompasses revenue sources existing as of the effective date of this chapter and revenue sources that may develop in the future.

(Ord. No. NS-905, § 2, 12-13-05)

Sec. B10-43. Operator.

"Operator" when used with reference to a cable communications system, refers to a person or group of persons (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 system; or (b) who otherwise controls or is responsible for, through any arrangement, the management and operation of such a cable communications system.

(Ord. No. NS-905, § 2, 12-13-05)

Sec. B10-44. OVS.

"OVS" means an open video system. A reference to an OVS includes pedestals, equipment enclosures (such as equipment cabinets), amplifiers, power guards, nodes, cables, fiber optics and other equipment necessary to operate the OVS, or installed in conjunction with the OVS.

(Ord. No. NS-905, § 2, 12-13-05)

Sec. B10-45. OVS agreement.

"OVS agreement" means a franchise entered into in accordance with the provisions of this chapter between the County and an OVS franchisee setting forth the terms and conditions under which the OVS franchise will be exercised.

(Ord. No. NS-905, § 2, 12-13-05)

Sec. B10-46. Person.

"Person," unless it otherwise appears from the context as used, means and includes any person, individual, firm, organization, corporation, partnership, association, limited liability company, joint stock or other company, business or other trust, public agency, school district, the State of California, its political subdivisions and/or instrumentalities, or any other legal entity, but not the County.

(Ord. No. NS-905, § 2, 12-13-05)

Sec. B10-47. Public property.

"Public property" means any property that is owned or under the control of the County that is not a public right-of-way, including but not limited to, buildings, parks, structures such as utility poles and light poles, conduits, or similar facilities or property whether or not located in a public right-of-way.

(Ord. No. NS-905, § 2, 12-13-05)

Sec. B10-48. Public rights-of-way.

"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, parkstrip, drive, or right-of-way or easement primarily dedicated to travel by the public now or hereafter existing within the County which may be properly used, and that the County may authorize the use of, for the purpose of installing, maintaining, and operating a cable communications system; and any other rights-of-way and easements that a franchisee is entitled by state or federal law to use by virtue of the grant of a franchise.

(Ord. No. NS-905, § 2, 12-13-05)

Sec. B10-49. School.

"School" means any publicly funded charter school or public primary and secondary schools accredited by the State of California.

(Ord. No. NS-905, § 2, 12-13-05)

Sec. B10-50. Subscriber.

"Subscriber" means the County or any person within the County who is lawfully receiving, for any purpose or reason, any cable service via a cable communications system, whether or not a fee is paid for such service.

(Ord. No. NS-905, § 2, 12-13-05)

Sec. B10-51. User.

"User" means a person or the County utilizing a channel, capacity or equipment and facilities of a cable communications system for purposes of producing or transmitting material, as contrasted with the receipt thereof in the capacity of a subscriber.

(Ord. No. NS-905, § 2, 12-13-05)

Secs. B10-52--B10-59. Reserved.

ARTICLE 2.
GENERAL PROVISIONS

Sec. B10-60. Franchise required.

No person may construct, operate or repair a cable communications system in the unincorporated portions of the County without first obtaining a County franchise therefor from the County pursuant to the terms and provisions of the County Charter and this chapter. This chapter shall only apply to franchises granted on or after its effective date. Franchises granted prior to its effective date are subject to the provisions of this chapter prior to its amendment.

(Ord. No. NS-905, § 2, 12-13-05)

Sec. B10-61. Form of franchise.

Any franchise shall be issued in the form of an ordinance and must be accepted by the franchisee pursuant to the terms of this chapter and the franchise ordinance to become effective.

(Ord. No. NS-905, § 2, 12-13-05)

Sec. B10-62. Scope of franchise.

A franchise granted pursuant to this chapter shall authorize and permit a franchisee to construct, operate and repair a cable system, or an OVS (as applicable) pursuant to the terms of its franchise ordinance and this chapter to provide cable service in the County, and for that purpose to erect, install, construct, repair, replace, reconstruct, maintain facilities appurtenant to such system in, on, over, under, upon, across, and along those public rights-of-way in the franchise area.

(a) A franchise shall not convey rights other than as expressly specified in this chapter, or in a franchise ordinance; no rights shall pass by implication.

(b) A franchise shall not include, or be a substitute for:

(1) Complying with requirements of general applicability for the privilege of transacting and carrying on a business within the County;

(2) Complying with requirements for the privilege of using or occupying the rights-of-way to construct, operate or repair facilities in connection with the provision of non-cable services;

(3) Any permit, agreement or authorization required in connection with construction, operation or repair on or in public rights-of-way or public property, including by way of example and not limitation, encroachment and/or street cut permits, and the payment of applicable permit fees;

(4) Any permits or agreements for occupying any other property of the County or private entities to which access is not specifically granted by the franchise.

(c) A franchise does not relieve a franchisee of its duty to comply with the County Charter, all County ordinances, resolutions, written policies, and regulations, and every franchisee must comply with the same. The rights granted under a franchise ordinance are subject to the exercise of police and other powers the County now has or may later obtain that the County may lawfully apply to a cable communications system operator, including but not limited to the power of eminent domain. The terms of every franchise granted shall be subordinate to all the requirements of the Santa Clara County Charter as of the date the franchise became effective. Nothing herein prevents a franchisee from raising a claim or defense that a particular provision of the County Code is unlawful.

(d) A franchise does not convey title, equitable or legal, in the public rights-of-way or public property. Any right granted to franchisee by a franchise ordinance shall not be subdivided or subleased to any other person or affiliate.

(Ord. No. NS-905, § 2, 12-13-05)

Sec. B10-63. Franchise non-exclusive.

No franchise shall be exclusive, or prevent the County from issuing other franchises or authorizations, or prevent the County from itself constructing, operating, or repairing its own cable communications system, with or without a franchise.

(Ord. No. NS-905, § 2, 12-13-05)

Sec. B10-64. Franchise term.

Every franchise shall be for a term of years set forth in the franchise agreement.

(Ord. No. NS-905, § 2, 12-13-05)

Sec. B10-65. Costs borne by franchisee.

Unless otherwise specifically stated in a franchise ordinance or required by law, all acts which a franchisee is required to perform under the franchise ordinance or applicable law must be performed at the franchisee's expense and at no cost to the County, provided that nothing contained in this section is intended to restrict or limit franchisee's rights under applicable law to assess or pass-through costs in its rates to its subscribers.

(Ord. No. NS-905, § 2, 12-13-05)

Sec. B10-66. Failures to perform.

If a cable communications system operator fails to perform work that it is required to perform within the time provided for performance, the County may perform the work or cause the work to be performed and bill the operator therefor. The operator shall pay the reasonable costs incurred within 30 days after a bill is submitted to the operator by the County.

(Ord. No. NS-905, § 2, 12-13-05)

Sec. B10-67. Administration of ordinance; adoption of regulations.

(a) The County may from time to time adopt regulations in a manner consistent with this chapter to implement the provisions of this chapter. This chapter, and any regulations adopted pursuant to this chapter are not contracts with any franchisee, and may be amended at any time by the County.

(b) Except where this chapter specifically directs that action be taken by the County Board of Supervisors, the County Executive is hereby authorized to administer and enforce the provisions of this chapter and any franchise issued pursuant hereto, to provide any notices (including non-compliance notices), and to take any action on the County's behalf that may be required hereunder or under applicable law.

(c) The failure of the County, upon one or more occasions, to exercise a right or to require compliance or performance under a franchise ordinance 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 County may designate one or more persons, or itself, to control and manage the use of public, educational or government Access Channels, facilities and equipment.

(Ord. No. NS-905, § 2, 12-13-05)

Sec. B10-68. Transfers.

(a) No transfer of a franchise, franchisee, or cable communications system, or of control over the same (including, but not limited to, transfer by forced or voluntary sale, merger, consolidation, receivership, or any other means) shall occur unless prior application is made by the franchisee to the County and the County's prior written consent is obtained, pursuant to this chapter and the franchise ordinance, and only then upon such terms and conditions as the County deems necessary and proper to protect the public interest. Such consent shall not be unreasonably withheld. 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 approval of the County shall be deemed to impair that trust. The granting of approval for a transfer in one instance shall not render unnecessary approval of any subsequent transfer.

(b) A change of control of a franchise, franchisee, or cable communications system will be deemed to have occurred whenever there is a change, acquisition or transfer of control of more than a 25 percent ownership in the franchisee or its direct or indirect parents by any person, or a group of persons 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.

(c) Notwithstanding any other provision of this chapter, pledges in trust or mortgages of the assets of a cable communications system to secure the construction, operation, or repair of the system may be made without application and without the County's prior consent. However, no such arrangement may be made if it would in any respect under any condition: (1) prevent the cable communications system operator or any successor from complying with this chapter, the franchise ordinance or other applicable law or regulation; or (2) permit a third party to succeed to the interest of the operator, or to own or control the system, without the prior consent of the County. Any mortgage, pledge or lease shall be subject to and subordinate to the rights of the County under any franchise, this chapter, or other applicable law.

(Ord. No. NS-905, § 2, 12-13-05)

Sec. B10-69. General conditions upon construction, operation and repair.

(a) The construction, operation, and repair of cable communications systems shall be performed in compliance with all applicable laws, ordinances, resolutions, departmental rules, regulations, written policies, and practices affecting such system. By way of example, and not limitation, this includes the Santa Clara County Zoning Ordinance; all other ordinances, regulations and policies to preserve or protect the public safety; construction standards; regulations for providing notice to persons that may be affected by system construction; and directives governing the time, place and manner in which facilities may be installed in the public rights-of-way. Persons engaged in the construction, operation, or repair of cable communications systems shall exercise reasonable care in the performance of all their 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 is required before a permit may be issued for work associated with the construction, operation or repair 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 and in full compliance with the County's demand.

(c) Construction, operation, or repair of a cable communications system shall not commence until all required permits have been obtained from the proper County officials and all required fees have been paid. All work performed will be performed in strict accordance with the conditions of the permit. Upon order of the County, any work and/or construction undertaken that is not completed in compliance with the County's requirements, or which is installed without obtaining necessary permits and approvals shall be removed in accordance with the reasonable timeline set forth by the County. For any project where a franchisee will be working in the public rights-of way for 30 days or more, franchisee must provide at least 120 days' advance notice of the project to the County prior to submission of permits, and comply with all requirements under the County code applicable to major and special projects, including but not limited to agreeing to pay for additional personnel and equipment costs associated with the County work in connection with the project.

(d) Each cable communications system operator must use its best efforts to minimize interference with the use of the public rights-of-way by others, including others that may be installing cable communications systems. When planning construction in the public rights-of-way, franchisee shall investigate opportunities for coordinating construction with other users of the public rights-of-way. The County may, except as prohibited by law, require a person using the public rights-of-way to engage in joint trenching and to enter into other arrangements to minimize adverse impacts on the public rights-of-way.

(e) Additional poles may not be installed in the public right-of-way without the permission of the County Director of Roads and Airports. The County may require a cable communications system operator to use existing conduit unless the cable communications system operator shows that it is not technically possible to do so.

(1) Whenever all existing utilities are located underground in an area in the County, every cable communications system operator installing its system in the same area must locate its cable communications system underground.

(2) Whenever the owner of a pole locates or relocates its cables, wires or fiber optics underground within an area of the County, every cable communications system operator in the same area shall concurrently relocate its cables, wires or fiber optics underground. Other facilities such as equipment cabinets will be placed aboveground or underground as directed by the County Director of Roads and Airports.

(3) The County Director of Roads and Airports may exempt a particular cable communications system or facility or group of cable communications systems or facilities from the obligation to locate or relocate the cable communications system or facility underground, where relocation is impractical, or where the interest in protecting against visual blight can be protected in another manner.

(4) Nothing in this section prevents the County from ordering cable communications system facilities to be located or relocated underground under other provisions of the County Code.

(f) Any and all public rights-of-way, other public property, or private property that is disturbed or damaged in connection with or as a result of the construction, operation or repair of a cable communications system shall be repaired by the operator to a condition that complies with the then-current County Code and that is as good or better than its prior condition, in a manner and within a time approved or specified by the County Executive. Without limiting the foregoing, the operator shall compensate any entity whose property is damaged in the course of construction, operation or repair of a cable communications system where the property is not restored by the operator to a condition as good or better than existed before the damage. Because such repairs cannot adequately compensate the County for the inherent damage to the public roads caused by such construction, maintenance or use of its poles, wires, conduits and appurtenances upon the public roads, the County may also impose a reasonable fee upon an operator to cover all costs that may be incurred by the County that are reasonably attributable to operator's construction, use or maintenance of any poles, wires, conduits and appurtenances upon public roads, whether such costs are known or unknown by operator and the County at the time a franchise becomes effective, provided such fees are generally applicable to all utilities and cable communications operators doing construction, operation or repair in the public rights-of-way pursuant to franchises or other authorizations granted by the County after the effective date of this chapter.

(1) A cable communications system operator shall, by a time and in a manner specified by the County, protect, support, temporarily disconnect, relocate, or remove any of its property when requested by the County by reason of traffic conditions; public safety; public right-of-way construction and repair (including regrading, resurfacing or widening); public right-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 public improvement; or for any other public 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." The County, on request, will cooperate with each cable communications system operator in providing access to public documents so that the cable communications system operator can research future projects affecting location of facilities in the public right-of-way prior to the operator's installation of its property.

(2) The County shall provide written notice describing where the public work is to be performed and a deadline for completing the work at least 15 days prior to the deadline by which a cable communications system operator must protect, support, temporarily disconnect, relocate or remove its facilities. The cable communications system operator may seek an extension of the time to perform the work where it cannot be performed by the deadline even with the exercise of due diligence, and such request for an extension will not be unreasonably denied. Provided that, in an emergency, or where a cable communications system creates or is contributing to an imminent danger to health, safety, or property, the County may protect, support, temporarily disconnect, remove, or relocate any or all parts of the cable communications system without prior notice, and charge the cable communications system operator for reasonable costs incurred. The County will make reasonable efforts to provide prior notice.

(3) To accommodate the construction, operation, 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 shall be given written notice describing where the construction, operation or repair is to be performed at least 15 days prior to the time by which its work must be completed. Unless the matter is governed by a valid contract or a state or federal law or regulation, or unless the cable communications system that is being requested to move was not properly installed, the reasonable cost of the same shall be borne by the person requesting the protection, support, temporary disconnection, removal, or relocation and at no charge to the County, even if the County makes the request for such action. In cases where the requesting person is required under this section to bear the cost of relaying, relocation or temporary removal, a franchisee may require the person to agree, before the work is performed, to pay the reasonable actual cost of the work. If the franchisee does so, it must provide an estimate of the cost of the work and support for that estimate.

(4) A cable communications system operator 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 cable communications system operator shall be given not less than 15 days' advance notice to arrange for such temporary wire changes. The cable communications system operator, as a condition of complying with such request, may require the requesting person to pay the reasonable materials and labor expense of such temporary removal or raising or lowering of wires, provided that the operator provides an estimate of the cost of the work and support for that estimate. In cases where the requesting person is required under this section to bear the cost of raising or lowering wires, the operator may require payment of the estimated expense in advance.

(5) A cable communications system operator may abandon any property in place in the public rights-of-way or upon public property upon written notice to the County and separate notice to the County Director of Roads and Airports. However, if, within 90 days of the receipt of written notice of abandonment, the County determines, that the safety, appearance, functioning or use of the public right-of-way or public property and facilities in the public right-of-way or on public property will be adversely affected, the property must be removed by a date reasonably specified by the County in light of the amount of work to be performed.

(6) A cable communications system operator that abandons its property must, upon request, transfer ownership of the property to the County at no cost, and execute necessary quitclaim deeds; provided that nothing in the preceding sentence prevents a cable communications system operator from bringing an action in a court of competent jurisdiction if it believes that the cable communications system was not abandoned. The operator must indemnify the County against future costs associated with mitigating or eliminating any hazard associated with the abandoned property.

(g) Every cable communications system shall be subject to inspection and testing by the County. Each operator must timely and fully respond to requests for information regarding its system and plans for the system as the County may from time to time issue, including requests for information regarding its plans for construction, operation and repair and the purposes for which the plant is being constructed, operated, or repaired.

(h) Each operator of a cable communications system that places facilities underground shall be a member of the regional notification center for subsurface installations (Underground Services Alert) and shall field mark the locations of its underground communications facilities upon request. The operator shall verify the location of its facilities for public projects when requested by the County at no charge.

(i) At least 90 days prior to commencing construction, each cable communications system operator shall provide the County a plan for any initial cable communications system construction, operation or repair or for any substantial rebuild, upgrade or extension of its cable communications system, which shall show its timetable for construction of each phase of the project, and the areas of the County that will be affected.

(j) A franchisee ("Franchisee A") may be required to interconnect Access Channels with a competing franchisee in the County ("Franchisee B") in the event that Franchisee B proves to the County that it would be economically burdensome to its subscribers to construct and maintain return lines directly from the origination point(s) of the Access Channel(s) versus interconnecting with Franchisee A while Franchisee B is originally constructing its system. Franchisee A may request and receive a copy of such proof from the County, and challenge same to County. The County, in its sole discretion, shall make the final determination. In the event Franchisee A receives a directive from the County to interconnect with Franchisee B, Franchisee A shall immediately initiate negotiations with Franchisee B and shall report to the County the results of such negotiations no later than 60 days after such initiation. Franchisee B shall be responsible for all of Franchisee A's costs in constructing and maintaining the interconnect. If the parties cannot reach agreement on the terms of the interconnect, including compensation and timing, the dispute shall be submitted to the County for determination and resolution. If Franchisee A is required by the County to interconnect its Access Channels with Franchisee B while Franchisee B is initially constructing its cable communications system, Franchisee A's obligation to provide the interconnect for any particular Access Channel shall cease when Franchisee B has completed construction of its cable communications system in the vicinity of the PEG user facility, at which time Franchisee B shall construct its own return line from such related PEG user facility.

(Ord. No. NS-905, § 2, 12-13-05)

Sec. B10-70. Protection of the County and residents.

(a) No franchise shall be valid or effective until and unless the County obtains an adequate indemnity from the franchisee. The indemnity must, to the extent permitted by law:

(1) Release the County from and against any and all liability and responsibility in or arising out of the construction, operation, repair or maintenance of the cable communications system; and

(2) Indemnify and hold harmless the County, its trustees, 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 County or any indemnified party arising out of, or by reason of, or resulting from or of the acts, errors, or omissions of the cable communications system operator, or its agents, independent contractors or employees related to or in any way arising out of the construction, operation or repair of the system;

(3) Nothing in this section is intended to waive or limit any of the County's governmental immunities.

(b) Unless otherwise specified in its franchise, a franchisee (or those acting on its behalf) shall not commence construction or operation of the cable communications system without first obtaining insurance in amounts and of a type specified herein. The required insurance must be obtained and maintained for the entire period the franchisee has facilities in the public rights-of-way or on public property. If the franchisee, its contractors, or subcontractors do not have the required insurance, the County may order such persons to stop operations until the insurance is obtained and approved.

(c) Certificates of insurance, reflecting evidence of the required insurance and naming the County as an additional insured, and other proofs as the County may find necessary, shall be filed with County Executive unless otherwise designated in a Franchise. For persons issued franchises after the effective date of this chapter, certificates and other required proofs shall be filed within 30 days of the issuance of a franchise and once a year thereafter, and whenever there is any change in coverage. For persons that have facilities in the public rights-of-way as of the effective date of this chapter, the certificate shall be filed within 60 days of the effective date of this chapter, annually thereafter, and whenever there is any change in coverage, unless a pre-existing franchise ordinance expressly provides for filing of certificates in a different manner. Each franchisee's insurance coverage shall be primary insurance as to the County. Any insurance or self-insurance maintained by the County shall be excess of the franchisee's insurance and shall not contribute with it.

(d) Certificates shall contain a provision that coverage afforded under these policies will not be canceled until at least 30 days' prior written notice has been given to the County. Policies shall be issued by companies authorized to do business under the laws of the State of California. Financial ratings must be no less than "A" in the latest edition of "Bests Key Rating Guide," published by A.M. Best Guide.

(e) A cable communications system operator (and those acting on its behalf to construct, operate or repair the system) shall maintain the following minimum insurance. The County 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.

(1) COMPREHENSIVE GENERAL LIABILITY insurance to cover liability from bodily injury and property damage. Exposures to be covered shall include: premises, operations, products/completed operations, and certain contracts. Coverage must be written on an occurrence basis, with the following limits of liability:

(i) BODILY INJURY:

a. Each occurrence . . . . $1,000,000.00

b. Annual aggregate . . . . 3,000,000.00

(ii) PROPERTY DAMAGE:

a. Each occurrence . . . . 1,000,000.00

b. Annual aggregate . . . . 3,000,000.00

(iii) PERSONAL INJURY:

Annual aggregate . . . . 3,000,000.00

(2) Completed operations and products liability shall be maintained for as long as the franchisee owns and/or operates the cable communications system (in the case of the cable communications system owner or operator) or completion of the work for the cable communications system owner or operator (in the case of a contractor or subcontractor).

(3) Property damage liability insurance shall include coverage for the following hazards: X - explosion, C - collapse, U - underground.

(4) WORKERS' COMPENSATION insurance shall be maintained during the life of the franchise to comply with statutory limits for all employees, and in the case any work is sublet, each cable communications system operator shall require the subcontractors similarly to provide workers' compensation insurance for all the latter's employees unless such employees are covered by the protection afforded by each cable communications system operator. Each cable communications system operator and its contractors and subcontractors shall maintain during the life of this policy employer's liability insurance. The following minimum limits must be maintained:

Workers' Compensation Statutory employer's liability, per occurrence . . . . $1,000,000.00

(5) COMPREHENSIVE AUTO LIABILITY:

(i) Bodily injury:

a. Each occurrence $ 1,000,000.00

b. Annual aggregate $ 3,000,000.00

(ii) Property damage:

a. Each occurrence $ 1,000,000.00

b. Annual aggregate $ 3,000,000.00

Coverage shall include owned, hired, and non-owned vehicles.

(f) Every operator of a cable communications system shall obtain and maintain a performance bond to ensure the faithful performance of its responsibilities under this chapter and any franchise ordinance. In the case of any franchise ordinance that requires the cable communications system operator to initially build, rebuild or to upgrade a system, the amount of the bond shall be in an amount sufficient to ensure that the required construction is satisfactorily completed. The County Executive may permit the cable communications system operator to eliminate or reduce the amount of the bond upon successful completion of the required construction and after the system performs as promised for one year after completion, if the County Executive determines that (i) the operator has substantially complied with its obligations under its franchise and applicable law; and (ii) the letter of credit maintained by the operator, plus any remaining amount of the bond will be adequate to ensure performance. The amount of the performance bonds shall be set by the County Executive or may be set in a franchise ordinance in light of the nature of the work to be performed pursuant to or under the franchise, but initially shall not be less than ten percent of the estimated cost of constructing or (in the case of existing systems) upgrading the cable communications system. The bond is not in lieu of any additional bonds that may be required through any permitting process. The bond shall be in a form acceptable to the County Counsel. Bonds must be obtained prior to the effective date of any franchise, transfer or franchise renewal, unless a franchise ordinance specifically provides otherwise.

(g) Every cable communications system operator shall establish and maintain a cash security fund or provide the County an irrevocable letter of credit in an amount specified in the franchise ordinance to secure the payment of fees owed, to secure any other performance promised in a franchise ordinance, and to pay any taxes, fees or liens owed to the County. The letter of credit shall be in a form and with an institution acceptable to the County's Director of Finance and in a form acceptable to the County Counsel. Should the County draw upon the cash security fund or letter of credit, the cable communications system operator shall, within 14 days, restore the fund or the letter of credit to the full required amount unless a court of competent jurisdiction has stayed this obligation. This security fund/letter of credit may be waived or reduced by the County for a franchisee where the County determines in its reasonable discretion that a particular franchisee's operations are sufficiently limited that a security fund/letter of credit is not necessary to secure the required performance. The County may from time to time require a franchisee to change the amount of the required security fund/letter of credit to reflect changed risks to the County and to the public, including delinquencies in taxes or other payments to the County. The cash security fund or letter of credit must be obtained prior to the effective date of any franchise, transfer or franchise renewal, unless a franchise ordinance specifically provides otherwise.

(Ord. No. NS-905, § 2, 12-13-05)

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)

Sec. B10-72. Books and records.

(a) The County shall have the right to inspect and copy books and records: related in whole or in part to the construction, operation or repair of the cable communications system; that the County deems relevant to monitoring compliance with the terms of this chapter, a franchise or applicable law; or that the County deems relevant to the exercise of any right or duty of the County under the same. Each cable communications system operator is responsible for maintaining control over such books and records whether created by franchisee, or by those acting on its behalf. It is responsible for producing these records upon the County's request, for the County's inspection and copying in accordance with Section B10-72(b). The records that franchisee may be required to produce shall include, but are not limited to revenue records, and other records related to compliance with any provision of this chapter or a franchise ordinance. Books and records must be maintained for a period of five years, except that a franchise ordinance may specify a 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 format stored.

(b) Books and records requested shall be produced to the County by a time and at a location in the County designated by the County Executive or designated in a franchise ordinance. However, if the requested books and records are too voluminous, or for security reasons cannot be copied and moved, or if the requested books and records contain trade secrets, then the franchisee may request that the inspection take place at some other location mutually agreeable to the County and the franchisee, and the County will not unreasonably deny the request, provided that (1) the franchisee makes necessary arrangements for copying documents selected by the County after its review; and (2) the franchisee pays all travel and additional copying expenses incurred by the County (above those that would have been incurred had the documents been produced in the County) in inspecting those documents or having those documents inspected by its designee.

(c) Any proprietary information received by the County from a franchisee must be clearly marked as proprietary information which the franchisee asserts is not required to be disclosed pursuant to the California Public Records Act. If a third party seeks release of a document held by the County marked as provided in this section, the County will notify the franchisee so that the franchisee may seek court protection against the release of the document.

(Ord. No. NS-905, § 2, 12-13-05)

Sec. B10-73. Reports.

(a) The County Executive may from time to time direct a franchisee to prepare reports related to the provisions of applicable law or the franchise, or the construction, operation or repair of the cable communications system and to submit those reports by a date certain, in a format prescribed by the County Executive, in addition to those required by this chapter.

(b) Unless an exemption is granted by the County Executive, no later than 90 days after the end of its fiscal year, a franchisee shall submit the following information, except that the information required by Section B10-72(b)(3) need only be provided where there has been a change from the preceding year:

(1) A fully audited report by an independent, certified public accountant or a report by an officer of franchisee who is authorized and qualified to make binding representations on behalf of the franchisee, of gross revenues from the previous calendar year for the cable communications systems attributable to the franchise area, 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 (e.g., basic, pay, pay-per-view, advertising, installation, equipment, late charges, miscellaneous, other); (ii) what, if any, deductions were made from gross revenues in calculating the franchise fee (e.g., bad debt, credits and refunds), and the amount of each deduction; and (iii) in the case of revenues allocated to the system, the total revenues, the allocation methodology used, and the resulting revenues allocated to the system.

(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 franchisee concludes it 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) An ownership report, indicating all persons who at the time of filing control or own an interest in the franchisee of ten percent or more.

(c) Within ten days of their receipt or (in the case of documents created by the cable communications system operator or a person acting on its behalf) filing, a franchisee shall provide the County:

(1) Notices of deficiency or forfeiture related to the operation of the cable communications system other than notices of deficiency or forfeiture from the County; and

(2) Any request 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 the franchisee directly or indirectly.

(Ord. No. NS-905, § 2, 12-13-05)

Sec. B10-74. Maps required.

Each franchisee shall maintain accurate maps and improvement plans that show the location, size, and a general description of all facilities installed in the public rights-of-way or on public property and any power supply sources (including voltages and connections). Each franchisee shall provide a map to the County showing the location of its facilities, in such detail and scale as may be directed by the County's Director of Roads and Airports and update the map at least annually, and whenever the facility expands or is relocated. Copies of maps shall be provided on disk, in a commercially available electronic format specified by the County Director of Roads and Airports that complies with County GIS standards.

(Ord. No. NS-905, § 2, 12-13-05)

Sec. B10-75. Other records required.

Unless the County Executive specifically waives the requirement in writing, a franchisee shall at all times maintain:

(a) Records of all complaints received within the prior five years, their nature and resolution. The term "complaints" refers to complaints about any aspect of the franchisee's construction, operation or repair activities;

(b) Records of outages known to the franchisee, their cause and duration;

(c) Records of service calls for repair and maintenance indicating the nature of the call for service, the date and time service was requested, the date of acknowledgment and date and time service was scheduled (if it was scheduled), and the date and time service was provided, and (if different) the date and time the problem was solved;

(d) Records of installation/reconnection and requests for service extension, indicating date of request, date of acknowledgment, and the date and time service was extended;

(e) Records sufficient to show whether the franchisee has complied with each customer service standard that applies to it.

(Ord. No. NS-905, § 2, 12-13-05)

Sec. B10-76. Exemptions.

The County Executive may temporarily exempt any franchisee from its obligations under Sections B10-72 through B10-75 if the County Executive determines that the requirement would be unduly burdensome or unnecessary, and that County and subscriber interests may be adequately protected in some other manner.

(Ord. No. NS-905, § 2, 12-13-05)

Sec. B10-77. Privacy.

A franchisee shall take all reasonable steps required so that it is able to provide reports, books and records to the County, including by providing appropriate subscriber privacy notices. Each franchisee shall be responsible for redacting data that applicable law prevents it from providing to the County. Nothing in this section shall be read to require a franchisee to violate state or federal subscriber privacy laws.

(Ord. No. NS-905, § 2, 12-13-05)

Sec. B10-78. Procedures for paying franchise fees and fees in lieu of franchise fees.

(a) The franchise fee paid pursuant to Article 3, and the fee in lieu of franchise fee paid pursuant to Article 4 shall be paid quarterly unless otherwise specified in a franchise.

(b) Unless a franchise ordinance expressly provides otherwise, a franchisee or other person subject to a fee under Article 3 or 4 shall file with the County within 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 County of any payment shall be construed as an accord that the amount paid is in fact the correct amount, nor shall such acceptance of such payment be construed as a release of any claim the County may have for additional sums payable or otherwise related to that payment.

(d) Neither the franchise fee under Article 3, nor the fee paid in lieu of the franchise fee under Article 4, is a payment in lieu of any tax, fee or other assessment.

(e) In the event that a fee payment is not received by the County on or before the due date set forth in this section or in a franchise ordinance, or the fee owed is not fully paid within that time, the person subject to the fee will be charged interest on the outstanding amount owed from the due date at an interest rate equal to three percent above the rate for three-month Federal Treasury Bills at the most recent United States Treasury Department sale of such Treasury Bills occurring prior to the due date of the franchise fee payment.

(f) Within 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 (or its successor in interest) shall: (A) make a final franchise fee payment, covering the period from the end of prior calendar month to date the franchisee ceased operations; and (B) file a final statement of gross 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 be certified as required by Section B10-73(b)(1).

(Ord. No. NS-905, § 2, 12-13-05)

Secs. B10-79--B10-89. Reserved.

ARTICLE 3.
SPECIAL RULES APPLICABLE TO CABLE SYSTEMS

Sec. B10-90. Applications for an initial franchise.

(a) An application must be filed for an initial cable system franchise. All applications under the provisions of this chapter shall be in writing and shall be filed in the Office of the Clerk of the Board.

(1) Each application for an initial franchise must identify the applicant, show that the applicant is financially, technically and legally qualified to construct, maintain and operate the cable system, contain a pro forma showing capital expenditures and expected income and expenses for the first five years the applicant is to hold the franchise, and show that the applicant is willing to comply unconditionally with this chapter and its franchise obligations. In addition, any application for an initial franchise must describe in detail the cable system that the applicant proposes to build or maintain, show where it is or will be located, set out the system construction schedule, and show that the applicant will provide adequate channels, facilities and other support for public, educational and government use (including institutional network use) of the cable system. To be accepted for filing, an original and six copies of a complete application must be submitted. All applications shall include the names and addresses of persons authorized to act on behalf of the applicant with respect to the application.

(2) The County may demand and applicant shall provide, such supplementary, additional or other information as the County may deem reasonably necessary to determine whether the requested franchise should be granted. An applicant shall respond to any request for information from the County, by the time reasonably specified by the County.

(b) An application may be rejected if it is incomplete, or if the response to requests for information is not timely and complete.

(Ord. No. NS-905, § 2, 12-13-05)

Sec. B10-91. Application for an initial franchise or 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. Section 546(a)--(h) as the same may be amended.

(b) Any person may apply for an initial or renewal franchise by submitting an application therefor on that person's own initiative, or in response to a request for proposals issued by the County. If the County 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 County may conduct such investigations as are necessary to act on an application.

(c) Before taking final action on an application, the County shall conduct a public hearing in accordance with applicable state and federal law.

(d) In determining whether to grant a franchise, the County may consider:

(1) The extent to which an applicant for renewal has substantially complied with the applicable law and the material terms of any existing cable franchise ordinance;

(2) Whether an applicant for renewal's quality of service under its existing franchise ordinance, including 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 County, whether the applicant's record in the County or other communities indicates that it can be relied upon to provide high-quality service throughout any franchise term and to comply with its obligations under applicable law and its franchise;

(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 County;

(5) Whether the applicant's application is reasonable to meet the future cable-related needs and interests of the County, taking into account the cost of meeting such needs and interests;

(6) Whether issuance of a franchise is warranted in the public interest considering the immediate and future effect on streets, public property, and private property that will be used by the applicant's cable system;

(7) Whether issuance of the franchise would reduce competition in the provision of cable service in the County;

(8) Whether the applicant has proposed to provide adequate facilities, equipment, channels and other support for PEG use of the cable system;

(9) Such other matters as the County is authorized or required to consider, including California Govt. Code Section 53066.3, to the extent that it applies.

(e) If the County determines that issuance of a franchise would be in the public interest considering the factors described in this section, it may proffer a franchise ordinance to the applicant.

(f) Within 30 days after the effective date of the ordinance awarding a franchise or franchise renewal, or within such extended period of time as the County Board of Supervisors in its discretion may authorize, the successful applicant or franchisee shall file with the Office of the Clerk of the Board an unconditional written acceptance, in form satisfactory to County Counsel, of the franchise or franchise renewal. Such acceptance shall be acknowledged before a notary public and shall in form and content be satisfactory to and approved by County Counsel.

(Ord. No. NS-905, § 2, 12-13-05)

Sec. B10-92. Application for renewal of franchise filed pursuant to 47 U.S.C. Section 546.

(a) This section establishes provisions that apply to applications for renewal governed by 47 U.S.C. Section 546(a)--(h) as the same may be amended.

(b) A franchisee that intends to exercise rights under 47 U.S.C. 546(a)--(g) as the same may be amended shall submit a notice in writing to the County in a timely manner clearly stating that it is activating the procedures set forth in those sections. The County shall thereafter commence any proceedings that may be required under federal law, and upon completion of those proceedings, the County may issue a request for proposals and an application may be submitted for renewal. The County may preliminarily deny the application by resolution, and if the application is preliminarily denied, the County may conduct such proceedings as may be required by federal law, and by resolution establish such procedures and appoint such individuals as may be necessary to conduct any proceedings to review the application in conformance with the requirements of federal law.

(c) An application for renewal pursuant to 47 U.S.C. § 546(h) may be submitted at any time, and may be rejected by the County at any time after public hearing, for any reason.

(Ord. No. NS-905, § 2, 12-13-05)

Sec. B10-93. Application for transfer.

(a) This section establishes provisions that apply to applications for transfer approval.

(b) An application for transfer must contain all the information required by Section B10-90(b)(1), (2), all information required by the FCC Form 394 as it existed on January 1, 2000 to the extent the provision of such information is not prohibited by federal law, and all information that is required to be filed under applicable federal or state law.

(c) The County may within 30 days after receiving a transfer application, request in writing such supplementary, additional or other information as the County may deem reasonably necessary to permit the Board to make a determination as to whether the requested franchise should be granted based on the factors set forth in Section B10-93(d). The applicants (the transferor and proposed transferee) shall respond to any request for information from the County, and provide the information requested, within 30 days of the request.

(d) In determining whether a transfer application should be granted, denied, or granted subject to conditions, the County 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; whether the transferee owns or controls any other cable system in the County; whether the transfer may eliminate or reduce competition in the delivery of cable service in the County; and whether operation by the transferee or approval of the transfer would otherwise adversely affect subscribers, the public, or the County's interest under this chapter, the franchise ordinance, or other applicable law. The proposed transferee shall pay all reasonable costs incurred by the County in reviewing and evaluating the applications.

(e) 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 ordinance, 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.

(Ord. No. NS-905, § 2, 12-13-05)

Sec. B10-94. Legal qualifications.

(a) (1) The applicant must be willing to comply with the provisions of this chapter and applicable laws; and to comply with such requirements of a franchise ordinance as the County may lawfully require.

(2) The applicant must not have had any cable system or OVS franchise revoked by the County within three years preceding the submission of the application. If franchisee challenges a revocation, it may not apply while the appeal is pending, or for three years after the final resolution of the appeal if the revocation is valid.

(3) The applicant may not have had an application to the County for an initial or 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 as to which any challenges to such franchising decision were finally resolved (including any appeals) adversely to the applicant, within three years preceding the submission of the application; and may not have had an application for an initial or renewal OVS franchise denied on any ground within three years of the application.

(4) The applicant shall not be issued a franchise if, at any time during the ten years preceding the submission of the application, applicant was convicted of fraud, racketeering, anti-competitive actions, unfair trade practices or other conduct of such character that the applicant cannot be relied upon to deal truthfully with the County and the subscribers, or to substantially comply with its obligations.

(5) Applicant must have the necessary authority under California and federal law to operate a cable system, or show that it is in a position to obtain that authority.

(6) 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.

(7) For purposes of Section B10-94(a)(1)--(4), the term applicant includes any affiliate of applicant.

(b) Notwithstanding Section B10-94(a), an applicant shall be provided a reasonable opportunity to show that a franchise should be issued even if the requirements of Section B10-94(a)(2)--(4) are not satisfied, by virtue of the circumstances surrounding the matter and the steps taken by the applicant to cure all harms flowing there from 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.

(Ord. No. NS-905, § 2, 12-13-05)

Sec. B10-95. Franchise fee.

Each cable system operator shall pay to the County a franchise fee in an amount equal to five percent of such cable system operator's gross revenues derived from the operation of the cable system to provide cable services, or such other amount as may be specified in the franchise ordinance; provided, however, that if the franchise ordinance specifies an amount, that amount shall be subject to increase should federal limits on fee payments be eliminated or changed. Where revenues are not reasonably attributable wholly to the operation of the cable system in the franchise area (as might be the case with sales of advertising, where the sale is for the carriage of the advertising in several franchise areas) revenues shall be allocated to the County on a per capita basis. For example, if an advertiser is charged $10,000.00 for carriage of an advertisement across systems serving 300,000 subscribers, a franchisee would divide the number of subscribers in the County by 300,000 and multiply the resulting percentage times $10,000.00 to determine the revenues allocable to the County.

(Ord. No. NS-905, § 2, 12-13-05)

Sec. B10-96. Service.

(a) A franchisee may not directly or indirectly require a subscriber or a building owner or manager to enter into an exclusive contract as a condition of providing or continuing cable service. A franchisee must provide service on a month to month basis, however, nothing in this section prevents a franchisee from entering into a longer term contract with a subscriber in exchange for discounted rates.

(b) It is the policy of the County to ensure that every cable system 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 ordinance 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. Cable service must be provided within time limits specified in Section 4.7 of the Customer Service Standards Resolution.

(c) Each franchisee shall, during the term of its 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 to assure an orderly transition of service from the franchisee to another person. A franchise ordinance may establish more particular requirements under which these obligations will be satisfied.

(Ord. No. NS-905, § 2, 12-13-05)

Sec. B10-97. Technical standards.

(a) A cable system within the County shall meet or exceed the technical standards set forth in 47 C.F.R. § 76.601 and any other applicable technical standards as may be amended.

(b) Each cable operator shall perform at its expense such tests of its facilities as may be necessary: to show whether or not the franchisee is in compliance with applicable technical standards; to resolve customer complaints; or to demonstrate compliance with its franchise or applicable law.

(Ord. No. NS-905, § 2, 12-13-05)

Sec. B10-98. Rate regulation and consumer protection.

(a) The County may regulate any cable operator's rates and charges, except to the extent it is prohibited from doing so by law. The County 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 County Executive 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 County Board of Supervisors shall be responsible for issuing rate orders that establish rates or order refunds. A franchisee must comply with all rate orders issued by the County Board of Supervisors pending appeals by the franchisee unless a stay order has been issued by the FCC.

(b) Except to the extent the County may not enforce such a requirement, a cable operator is prohibited from discriminating in its rates or charges or from granting undue preferences to any subscriber, potential subscriber, or group of subscribers or potential 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 cable operator 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.

(1) Each cable system operator must satisfy all FCC, state and the County cable system customer service standards and consumer protection standards. The County cable system customer service standards may be adopted by resolution. In the case of a conflict among standards, the stricter standard shall apply.

(2) For each violation of a cable system customer service standard, penalties will be imposed as follows and shall not be charged or passed-through to subscribers:

(i) $200.00 for each day of each material breach, not to exceed $600.00 for each occurrence of material breach.

(ii) If there is a subsequent material breach of the same provision within 12 months, $400.00 for each day of each material breach, not to exceed $1,200.00 for each occurrence of the material breach.

(iii) If there is a third or additional material breach of the same provision within 12 months of the first, $1,000.00 for each day of each material breach, not to exceed $3,000.00 for each occurrence of the material breach.

(3) Any penalty assessed under this section will be reduced dollar for dollar to the extent any liquidated damage provision of a franchise imposes a monetary obligation on a franchisee for the same customer service failures, and no other monetary damages may be assessed. A citation may be served on the franchisee by providing a copy to the person to whom notices are to be sent under the franchise. Penalties will be imposed in a manner consistent with Cal. Govt. Code Sec. 53088.2(r).

(Ord. No. NS-905, § 2, 12-13-05)

Secs. B10-99--B10-109. Reserved.

ARTICLE 4.
OPEN VIDEO SYSTEMS

Sec. B10-110. Applications for grant or renewal of franchises.

(a) (1) A written application shall be filed with the County clerk for renewal or grant of an OVS franchise.

(2) To be acceptable for filing, a signed original of the application shall be submitted together with six copies. The application must conform to any applicable request for proposals, and contain all information required under Section B10-90(a)(1). All applications shall include the names and addresses of persons authorized to act on behalf of the applicant with respect to the application.

(b) The County Executive 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, where it plans to construct its OVS, and the OVS construction schedule; show that the applicant will provide adequate channels, facilities and other support for public, educational and government use (including institutional network use) of the OVS; and show that the applicant is financially, technically and legally qualified to construct and operate the OVS.

(1) A person may apply for an initial or renewal OVS franchise on its own initiative or in response to a request for proposals. Upon receipt of an application, the County may conduct such investigations as are necessary to consider the application. The County may request such additional information as it deems appropriate.

(2) An applicant shall respond to requests for information completely, and within the time directed by the County, and must strictly comply with procedures, instructions, and requirements the County may establish.

(3) An application may be rejected if it is incomplete or the applicant fails to follow procedures or respond fully to information requests.

(c) In evaluating an OVS franchise application, the County may consider the following:

(1) The extent to which the applicant has substantially complied with the applicable law and the material terms of any existing County OVS franchise;

(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 County, or will otherwise provide adequate public, educational, and governmental use capacity, facilities, or financial support (including with respect to institutional networks);

(4) Whether issuance of an OVS franchise would require replacement of property or involve disruption of property, public services, or use of the public rights-of-way;

(5) Whether the approval of the application may eliminate or reduce competition in the delivery of cable service in the County; and

(6) Such other matters as it is required or entitled to consider.

(d) If the County finds that it is in the public interest to issue an OVS franchise considering the factors above, it shall proffer an OVS agreement to applicant, and if applicant is willing to unconditionally accept the terms thereof, and to comply with the requirements of applicable law, including this chapter, it shall issue an OVS franchise.

(Ord. No. NS-905, § 2, 12-13-05)

Sec. B10-111. Transfers.

(a) No transfer of an OVS franchise shall occur without prior written notice to and approval of the Board of Supervisors.

(1) An OVS franchisee shall promptly notify the County of any proposed transfer, and submit an application for its approval at least 120 days in advance of the proposed and anticipated transfer date.

(2) The County Executive may specify information that must be provided in connection with a transfer application. At a minimum, an application must: describe the persons involved in the transaction and the person that will hold the OVS franchise; describe the chain of ownership before and after the proposed transaction; show that the person that will hold the OVS franchise will be legally, financially, and technically qualified to do so; attach complete information on the proposed transaction, including 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 Securities and Exchange Commission ("SEC") that discuss the transaction.

(3) For the purposes of determining whether it shall consent to a transfer, the County or its agents may inquire into all qualifications of the prospective transferee and such other matters as the County 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 refuse to provide information, or provide incomplete information, the request for transfer may be denied.

(4) In deciding whether a transfer application should be granted, denied or granted subject to conditions, the County may consider the legal, financial, and technical qualifications of the transferee to operate the OVS; whether the incumbent OVS operator is in compliance with its OVS agreement and this chapter and, if not, the proposed transferee's commitment to cure such noncompliance; whether the transferee owns or controls any other OVS or cable system in the County, and whether operation by the transferee may eliminate or reduce competition in the delivery of cable service in the County; and whether operation by the transferee or approval of the transfer would adversely affect subscribers, the public, or the County's interest under this chapter, the OVS agreement, or other applicable law.

(5) 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 OVS agreement, 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 County in reviewing and evaluating the applications.

(Ord. No. NS-905, § 2, 12-13-05)

Sec. B10-112. Legal qualifications.

(a) In order to be legally qualified:

(1) The applicant must be willing to comply with the provisions of this chapter and applicable laws, and to comply with such requirements of an OVS agreement as the County 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 OVS franchise revoked by the County within three years preceding the submission of the application. If franchisee challenges a revocation, it may not apply while the appeal is pending, or for three years after the final resolution of the appeal if the revocation is valid.

(4) The applicant may not have had an application for an initial or renewal cable system franchise to the County denied on the ground that the applicant failed to propose a cable system meeting the cable-related needs and interests of the community, or as to which any challenges to such franchising decision were finally resolved (including any appeals) adversely to the applicant, within three years preceding the submission of the application.

(5) The applicant may not have had an application for an initial or renewal OVS franchise denied on any grounds within three years of the applications.

(6) The applicant shall not be issued an OVS franchise if, at any time during the ten years preceding the submission of the application, applicant was convicted of fraud, racketeering, anti-competitive actions, unfair trade practices or other conduct of such character that the applicant cannot be relied upon to deal truthfully with the County and the subscribers, or to substantially comply with its obligations.

(7) Applicant must have the necessary authority under California and federal law to operate an OVS, and must be certified by the FCC under Section 653 of the Cable Act as may be amended.

(8) The applicant shall not be issued an OVS franchise if it files materially misleading information in its application or intentionally withholds information that the applicant lawfully is required to provide.

(9) For purposes of Section B10-112(a)(2)--(6), the term applicant includes any affiliate of applicant.

(b) Notwithstanding Section B10-112(a), an applicant shall be provided a reasonable opportunity to show that an OVS franchise should issue even if the requirements of Section B10-112(a)(3)--(6) are not satisfied, by virtue of the circumstances surrounding the matter and the steps taken by the applicant to cure all harms flowing there from and prevent their recurrence, the lack of involvement of the applicant's principals, or the remoteness of the matter from the operation of an OVS.

(Ord. No. NS-905, § 2, 12-13-05)

Sec. B10-113. Minimum requirements.

(a) No OVS operator shall be issued a franchise, or may commence construction of an OVS, until (A) it agrees to match or exceed in all respects the highest PEG obligations borne by any cable system operator in the County; or (B) it agrees to PEG obligations acceptable to the County.

(b) Any OVS operator that constructs an I-Net must match or exceed in all respects the highest I-Net obligations borne by any cable system operator in the County, unless it agrees to alternative I-Net obligations acceptable to the County.

(c) Every OVS 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 construction required.

(d) Each OVS operator shall perform at its expense such tests as may be necessary to show whether or not the OVS franchisee is in compliance with its obligations under this chapter or a franchise or an OVS agreement.

(e) Every OVS franchisee must satisfy customer service consumer protection requirements established from time to time under state or local law and applicable to OVS.

(f) If an OVS franchisee's FCC certification is revoked or otherwise terminates as a result of the passage of time or as a matter of law, the County may revoke the OVS franchise after a hearing. The OVS franchise may also be revoked if federal regulations or statutory provisions governing OVS are declared invalid or unenforceable, or are repealed.

(g) The County may regulate an OVS franchisee's rates and charges except as prohibited by law, and may do so by amendment to this chapter, separate ordinance, by amendment to an OVS agreement, or in any other lawful manner.

(Ord. No. NS-905, § 2, 12-13-05)

Sec. B10-114. Fee in lieu of franchise fee.

(a) In lieu of the franchise fee required by Article 3, an OVS franchisee shall pay to the County a fee of five percent of gross revenues.

(1) A person leasing capacity from an OVS operator, other than a person whose revenues are included in the payment made under Section B10-114(a) shall pay the County a fee in lieu of the franchise fee required by Article 3 of five percent of the gross revenues of such person. For purposes of this Section B10-114(a)(1), the term gross revenues means all revenues, whether cash, in-kind or in any other form, of the person leasing capacity, or its affiliates, derived from use of the OVS to provide cable service in the County.

(2) Notwithstanding the foregoing, where a person, other than an affiliate, pays an OVS franchisee to use its franchisee's 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 the OVS franchisee pays a franchise fee on those use charges; then that person may deduct from its gross revenues the use payments it makes.

(Ord. No. NS-905, § 2, 12-13-05)

Sec. B10-115. Exclusive contracts.

An OVS franchisee may not directly or indirectly 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 an OVS franchisee or its affiliates. A franchisee must provide service on a month-to-month basis, however, nothing in this section prevents a franchisee from entering into a longer term contract with a subscriber in exchange for discounted rates.

(Ord. No. NS-905, § 2, 12-13-05)

Secs. B10-116--B10-119. Reserved.

ARTICLE 5.
MISCELLANEOUS

Sec. B10-120. Captions.

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.

(Ord. No. NS-905, § 2, 12-13-05)

Sec. B10-121. Calculation of time.

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.

(Ord. No. NS-905, § 2, 12-13-05)

Sec. B10-122. Severability.

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, 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 so that the provision which had been held invalid is no longer invalid, said provision shall thereupon return to full force and effect without further action by the County and shall thereafter be binding on the franchisee and the County.

(Ord. No. NS-905, § 2, 12-13-05)

Sec. B10-123. Connections to cable system; use of antennae.

(a) To the extent consistent with federal law, subscribers shall have the right to attach VCR's, receivers, and other terminal equipment to a franchisee's cable communications system. Subscribers also shall have the right to use their own remote control devices and converters, and other similar equipment.

(b) A franchisee shall not, as a condition of providing service, require a subscriber or potential subscriber to remove any existing antenna or satellite dish, or disconnect an antenna or satellite dish except at the express direction of the subscriber or potential subscriber, or prohibit installation of a new antenna or connection to any other multi-channel video provider's system.

(c) Subject to the foregoing, it shall be unlawful for any person to make any unauthorized connection, whether physically, acoustically, inductably or otherwise, with any part of a franchisee's cable communications system or facilities, with the intent of enabling the reception of any service for which the person has not paid or is not otherwise authorized to receive.

(Ord. No. NS-905, § 2, 12-13-05)

Sec. B10-124. Discrimination prohibited.

(a) A cable communications system operator shall not discriminate among persons or the County or take any retaliatory action against a person or the County because of that person's exercise of any right it may have under federal, state, or local law, nor may the operator require a person or the County to waive such rights as a condition of taking service.

(b) A cable communications system operator 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, marital status or sexual orientation. A cable communications system operator shall comply with all federal, state, and local laws and regulations governing equal employment opportunities, and hiring practices, as the same may be amended from time to time.

(Ord. No. NS-905, § 2, 12-13-05)

Sec. B10-125. Transitional provisions.

(a) The operator of any cable communications system installed as of the effective date of this chapter, for which a franchise is required under this chapter, shall have three 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 shall not be subject to a penalty for failure to have such a franchise so long as said application remains pending; provided, however, nothing herein shall relieve any cable communications system operator of any liability for its failure to obtain any permit or other authorization required under other provisions of the Santa Clara County Code, and nothing herein shall prevent the County from requiring removal of any facilities installed in violation of the Santa Clara County Code.

(b) Any person holding an existing franchise for a cable communications system 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; and provided further that such person shall be subject to the other provisions of this chapter to the extent permitted by law.

(c) Pending applications shall be subject to this chapter. A person with a pending application shall have 30 days from the effective date of this chapter to submit additional information to comply with the requirements of this chapter governing applications.

(Ord. No. NS-905, § 2, 12-13-05)

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