Ordinance No. 579 - Falcon CommunicationsORDINANCE NO. 579
Ll
AN ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF ROSEMEAD GRANTING A NON-EXCLUSIVE
FRANCHISE TO FALCON COMMUNICATIONS TO
OPERATE A CABLE COMMUNICATIONS SYSTEM IN THE
CITY OF ROSEMEAD AND SETTING FORTH CONDITIONS
ACCOMPANYING THE GRANTING OF THE FRANCHISE
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TABLE OF CONTENTS
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SECTION 1:
SECTION 2:
SECTION 3:
SECTION 4:
SECTION 5:
SECTION 6:
SECTION 7:
SECTION 8:
SECTION 9:
SECTION 10:
SECTION 11:
SECTION 12:
SECTION 13:
SECTION 14:
SECTION 15:
SECTION 16:
SECTION 17:
TITLE
INTENT
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GRANT OF FRANCHISE
DEFINITIONS
GENERAL REQUIREMENTS
CONSTRUCTION AND SERVICE REQUIREMENTS
SYSTEM DESIGN AND PERFORMANCE REQUIREMENTS
SERVICE AND PROGRAMMING REQUIREMENTS
SUPPORT FOR LOCAL PROGRAMMING
RATES AND CHARGES
PURCHASING, TRAINING AND HIRING REQUIREMENTS
REGULATION
RIGHTS OF INDIVIDUALS PROTECTED
TERMINATION AND RENEWAL
RIGHT TO PURCHASE THE SYSTEM
SEPARABILITY
FORCE MAJEURE; GRANTEE'S INABILITY TO PERFORM
ORDINANCE NO. 579
Q_
AN ORDINANCE granting a non-exclusive franchise to
Falcon Communications, a California partnership between D-H
Cablevision, Marc Nathanson, Blackhawk Communications and
Blackhawk Management, Inc. to use the streets and public ways
within the City of Rosemead for the operation of a cable
communications system for fifteen years under certain terms
and conditions and fixing an effective date; and to otherwise
provide with respect thereto.
THE CITY COUNCIL OF THE CITY OF ROSEMEAD DOES ORDAIN AS
•
FOLLOWS:
SECTION 1. TITLE
This Ordinance shall be known and may be cited as the
"City of Rosemead Falcon Communications Cable Communications
Franchise Ordinance".
SECTION 2. INTENT
The City Council of the City of Rosemead hereby finds,
determines and declares:
(a) The City Council previously enacted Ordinance
No. 571, which authorized the City to grant one or more
non-exclusive, revocable franchises to operate,
construct, maintain and reconstruct a cable
communications system within the City; and
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(b) After due evaluation of the applications by
the Council and its staff, and after the receipt of
input at public hearings, the City Council has
determined that it is in the best interests of the City
and its residents to grant a non-exclusive, revocable
Franchise to Falcon Communications; and
(c) The award of this Franchise is made on the
basis of the following criteria reviewed during the
evaluation pr
(1)
(2)
(3)
(4)
ocess:
The quality of service; and
The subscriber rates; and
Potential income to the City; and
Experience of the applicant; and
Financial responsibility of the
applicant.
SECTION 3. GRANT OF FRANCHISE
3.1 Grant. Falcon Communications, a California
partnership, with its principal place of business at
199 South Los Robles Avenue, Suite 600, Pasadena, California,
91101, hereinafter called the Grantee, is hereby granted for
• itself, its successors and assigns, subject to the terms and
conditions of this Ordinance, the Franchise, authority,
right, and privilege, for a fifteen-year period from and
after the effective date hereof, to construct, operate, main-
tain and reconstruct a cable communications system within the
streets and public ways within the City of Rosemead.
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3.2 Right of Grantor to Issue Franchise. Grantee
acknowledges and accepts the right of Grantor to issue a
Franchise and Grantee agrees it shall not now or at any time
hereafter challenge this right in any way or in any State or
Federal court.
3.3 Effective Date of Franchise. The effective date of
the Franchise shall be June 28, 1985.
3.4 Duration. The term of the Franchise shall be
fifteen (15) years commencing on June 28, 1985, and ending on
June 27, 2000. On such date the Franchise shall be of no
force and effect unless previously extended or renewed in
accordance with the provisions of the Cable Communications
• Policy Act of 1984 and Section 14 hereof.
3.5 Franchise Not Exclusive. This Franchise shall not
be construed as any limitation upon the right of the Grantor,
through its proper officers, to grant to other persons or
corporations rights, privileges, or authority similar to or
different from the rights, privileges, and authority herein
set forth, in the same or other streets and public ways or
public places by franchise, permit, or otherwise, provided,
however, that such additional grants shall not operate to
materially modify, revoke or terminate any rights granted to
Grantee herein.
3.6 Franchise Acceptance. The Grantee shall, within
thirty (30) days after passage of this Ordinance, file in the
3
office of the City Clerk a written acceptance of this
Ordinance executed by a general partner of Grantee in a form
approved by the City Attorney.
Failure of Grantee to accept the Franchise as provided
herein shall cause the Franchise to become null and void.
3.7 Use of Public Streets and Ways. For the purpose of
operating and maintaining a cable communications system in the
City, the Grantee may erect, install, construct, repair,
replace, reconstruct, and retain in, on, over, under, upon,
across, and along the public streets and ways within the City
such wires, cables, conductors, ducts, conduits, vaults,
manholes, amplifiers, appliances, pedestals, attachments, and
other property and equipment as are necessary and appurtenant
• to the operation of the Cable Communications System. Prior
to commencing underground construction or the erection of any
new poles in the public right-of-way, Grantee shall submit
plans to the City Engineer's office and obtain his written
approval prior to commencing construction. Grantee shall not
commence any construction or alteration subject to the
approval of any utility, without that utility's prior
approval.
SECTION 4. DEFINITIONS
For the purposes of this Ordinance, the following words,
terms, phrases and their derivatives shall have the meanings
given herein. When not inconsistent with the context, words
used in the present tense include the future tense, words in
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the plural number include the singular number, and words in
the singular number include the plural number. The word
"shall" is always mandatory and not merely directory.
4.1 "City" means the City of Rosemead, and all the
territory within its present and future corporate boundaries.
4.2 "City Council" means the Council of the City of
Rosemead.
4.3 "FCC" means the Federal Communications Commission,
or a designated representative.
4.4 "Cable Television System", "Cable Communications
System", "Cable System" or "System" sometimes referred to as
• "Cable TV Systems", "CATV System" or "Broadband Communica-
tions Network", means a system of antenna cables, amplifiers,
towers, microwave links, cablecasting studios, and any other
conductors; converters, equipment or facilities, designed and
constructed for the primary purpose of producing, receiving,
amplifying, storing, processing, or distributing audio,
video, digital, or other forms of electronic or electrical
signals.
• 4.5 "Grantee" means the person or entity to which a
franchise henceforth is granted for the construction,
operation, maintenance, and reconstruction of a cable
communications system, and the lawful successors,
transferees, or assignees of said corporation or entity.
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4.6 "Grantor" means the City of Rosemead represented by
the City Council acting within the scope of its jurisdiction.
4.7 "Subscriber" means any person, firm, corporation,
or other entity who or which elects to subscribe to, for any
purpose, a service provided by the Grantee by means of or in
connection with the cable television system.
4.8 "Residential Subscriber" means a subscriber who
receives a service in an individual dwelling unit, where the
service is not to be utilized in connection with a business,
trade, or profession.
4.9 "Commercial Subscriber" means a subscriber who
receives a service in a place of business, where the service
• may be utilized in connection with a business, trade or
profession.
4.10 "Agency Subscriber" means a subscriber who
receives a service in a government or public agency, school,
or non-profit corporation.
4.11 "Programmer" means any person or entity who or
which produces or otherwise provides program material or
• information for transmission by video, audio, digital, or
other signals, either live or from recorded tapes or other
storage media, to subscribers, by means of the cable
television system.
4.12 "Channel" means a certain number of megahertz (MHz)
frequency band, which is capable of carrying either one
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standard video signal, a number of audio, digital or other
non video signals, or some combination of such signals.
4.13 "Local Origination Channel" means any channel
where the Grantee is the only designated programmer, and
provides video programs to subscribers.
. 4.14 "Public Access Channel", "Community Access
Channel" or "Community Channel" means any channel where any
member of the public or any non-commercial organization may
be a programmer, without charge, on a first-come, first-
served, non-discriminatory basis.
4.15 "Educational Channel", "Educational Access
Channel" means any channel where educational institutions are
• the only designated programmers.
4.16 "Government Channel" or "Government Access
Channel" means any channel where local government agencies
are the only designated programmers.
4.17 "Leased Channel" or "Leased Access Channel" means
any channel available for lease and programming by persons or
entities other than the Grantee, including, at Grantee's
0 option, those portions of the other access channels not in
use by their designated programmers.
4.18 "Open Channel" means any channel that can be
received by all subscribers, without a premium charge.
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4.19 "Private Channel" or "Closed-Circuit Channel"
means any channel which is available only to subscribers who
are provided with special converter or terminal equipment to
send or receive signals on that channel.
4.20 "Converter" means an electronic device which
converts signal carriers from one form to another.
4.21 "Broadcast Signal" means a television or radio
signal that is transmitted over-the-air to a wide geographic
audience and is received by a cable television system off-
the-air, by microwave link, by satellite receiver, or by
other means.
4.22 "Non-Broadcast Signal" means a signal that is
• transmitted by a cable television system and that is not
involved in an over-the-air broadcast transmission path.
4.23 "Cablecast Signal" means a non-broadcast signal
that originates within the facilities of the cable television
system.
4.24 "Basic Subscriber Television Service" means all
subscriber services provided by Grantee including the
• delivery of broadcast signals, covered by the regular monthly
charge paid by all subscribers, excluding optional services
for which a separate charge is made. Basic Subscriber
Television Service may be offered to subscribers in one or
more tiers, or combinations of programs.
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4.25 "Basic Subscriber Radio Service" means the
provision to all subscribers of such audio services as the
retransmission of broadcast FM radio signals, the retransmis-
sion of shortwave, weather, news, time and other similar
audio bradcast channels, and the transmission of cablecast FM
radio signals, as permitted by the FCC.
4.26 "Institutional Service" means such video, audio,
data and other services provided to institutional users on an
individual application, private channel basis. These may
include, but are not limited to, two-way video, audio or
digital signals among institutions, or from institutions to
residential subscribers.
.
4.27 "Additional
Subscriber
Service" means any service
not included in "Basic
Subscriber
Television Service", or
"Basic Subscriber Radio Service" or "Institutional Service",
including, but not limited to, "Pay-Cable".
4.28 "Pay-Cable" or "Pay-Television" means the delivery
to subscribers, over the cable television system, of
television signals for a fee or charge to subscribers over
and above the charge for basic subscriber service, on a per
• program, per channel, or other subscription basis.
4.29 "Streets and Public Ways" means the surface of and
the space above and below any public street, sidewalk, alley,
easement, right-of-way, or other public ways of any type
whatsoever, now or hereafter existing as such within the
City.
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4.30 "Resident" means any person residing in the City.
4.31 "Monitoring" means observing a one-way
communications signal, or the absence of a signal, where the
observer is neither the subscriber nor the programmer,
whether the signal is observed by visual or electronic means,
for any purpose whatsoever.
4.32 "Tapping" means observing a two-way communication
signal exchange, where the observer is neither of the
communicating parties, whether the exchange is observed by
vivsual or electronic means, for any purpose whatsoever.
4.33 "Year" means a full calendar year commencing from
the effective date of the Franchise, as provided in Section
• 3.3 hereof.
4.34 "Section" means any section, subsection, or
provision of this Ordinance.
4.35 "School" means any public educational institution
including primary and secondary schools, colleges and
universities and all similarly situated private and parochial
educational institutions which have received the appropriate
• accreditation from the State of California, and where
required, from other authorized accrediting agencies.
4.36 "Franchise Agreement" means a signed and notarized
statement on the part of both Grantor and Grantee accepting
and agreeing to all of the provisions of the Franchise herein
granted, including reference specifications, franchise
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applications, and other related material. The Franchise
Agreement may modify terms of this Ordinance by mutual
agreement with any such modification confirmed formally by
appropriate ordinance amendment.
4.37 "Gross Annual Revenues" means the annual gross
revenues received by the Grantee from all sources of
operation of the cable communications system within the City
limits of Grantor including guide subscriptions, converter
and remote control rental, advertising and installation
charges, but shall exclude any deposits and any sales, excise
or other taxes, or other payments collected for direct pass-
through to local, state or federal government.
4.38 "Person" means any corporation, partnership,
proprietorship, individual or organization authorized to do
business in the State of California, or any natural person.
SECTION 5. GENERAL REQUIREMENTS
5.1 Governing Requirements. Grantee shall comply with
the requirements of this Ordinance and Ordinance No. 571, and
all offerings contained in Grantee's Franchise Application
except as specifically modified by this Ordinance and/or the
Franchise Agreement. In the event of any conflict, the
provisions of this Ordinance shall first govern, followed by
the provisions of Ordinance No. 571, the Franchise Agreement
and the Grantee's Franchise Application in that order.
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5.2 Franchise Fee
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Following the issuance and
acceptance of the Franchise, the Grantee shall pay to the
Grantor a franchise fee of five percent (5%) of gross annual
revenues. These payments shall be computed and paid on a
quarterly basis, and due no later than thirty (30) days
following the end of each quarter of Grantee's fiscal year.
5.3 Letter of Credit. Within thirty (30) days of the
effective date of the Franchise, Grantee shall deliver to
Grantor an irrevocable and unconditional letter of credit in
form and substance acceptable to Grantor, from a bank
approved by Grantor in the amount of $25,000. Such a letter
shall be maintained on deposit throughout the term of this
Franchise. The use of the letter of credit by Grantor to
satisfy any penalties shall be in full compliance with the
provisions of Sections 6.3, 12.2 and 17 of this Ordinance.
In the event of Grantor use of the letter of credit, said
letter of credit shall be immediately replenished to the
$25,000 level by Grantee.
5.4 Faithful Performance Bond. Upon the effective date
of the Franchise, Grantee shall furnish proof of the posting
of a faithful performance bond, which may be a corporate
surety bond, running to the Grantor, in the penal sum of
$300,000. The faithful performance bond shall be a form
approved by the City Attorney. Upon demonstration by Grantee
to the satisfaction of Grantor that all the construction to
be undertaken in the City pursuant to the Franchise Agreement
has in fact been completed and the system is fully
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operational, the bond shall be reduced to a sum of $60,000.
Such bond for the sum of $60,000 shall be maintained by the
Grantee throughout the term of this Franchise.
5.5 Liability Insurance and Indemnification. Upon the
effective date of the Franchise, Grantee shall furnish proof
that Grantor has been added as a named insured to the
liability insurance policy. Said policy shall remain in
force, in the minimum amount of $2,000,000, in the areas of
general and owners liability and property damage. Grantee
shall also provide worker's compensation coverage consistent
with California statutory requirements and motor vehicle
insurance coverage of $2,000,000. Insurance coverage during
system construction, fire coverage and extended coverage
shall all provide for 100% coverage of the replacement value
of the assets. Grantee shall receive 30 days written notice
prior to any alteration of a material provision of the
insurance or any reduction in coverage of the insurance by
this Section. Such notice shall also be required in the case
of cancellation of any coverage required by this Section.
The required insurance policies shall be maintained
throughout the duration of this Franchise, with copies of
•
policies filed with Grantor.
5.6 Recovery of Franchise Costs.
Grantee, within sixty (60) days after receipt from
Grantor of a written itemization, shall reimburse Grantor for
its reasonable costs incurred on or after July 1, 1984 during
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the franchise process to the extent not recovered by applica-
tion fees from all companies submitting proposals.
5.7 Payment to Grantor. No acceptance of any payment
shall be construed as an accord that the amount paid is in
fact the correct amount, nor shall such acceptance of payment
be construed as a release of any claim the Grantor may have
for further or additional sums payable under the provisions
of this Ordinance. All amounts paid shall be subject to
audit and recomputation by the Grantor.
5.8 Reporting Periods. The fiscal year of Grantee
runs from May 1 to April 30. All reports and payments
required of Grantee by Grantor, whether annual or quarterly,
is shall be made to coincide with Grantee's fiscal year.
SECTION 6. CONSTRUCTION AND SERVICE REQUIREMENTS
6.1 General. Subject to the provisions of Section 17
hereof, the Grantee shall meet or exceed all the material
construction and service requirements set forth in this
Ordinance and in addition shall meet or exceed those material
service requirements set forth in Grantee's Franchise
• Application. The Grantee shall meet the service requirements
(as set forth in Section 8) regardless of whether subscriber
penetration and/or revenue projections contained in the
Application prove to be correct. It is the Grantor's intent
that Grantee shall not be penalized for minor breaches of the
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terms hereof so long as its best efforts are consistently
maintained.
6.2 Construction Schedule. Grantee shall complete
system construction and offer service to all residents within
twelve (12) months after beginning construction. Grantee
represents that it has a make-ready agreement with Pacific
Bell. Grantee shall file for pole make-ready permits with
the utilities within 60 days of the effective date of the
Franchise. For purposes of this Section, construction shall
be deemed to have commenced with the issuance of the first
pole release or clearance from a utility. Grantee shall
notify Grantor as poles are released by the utilities.
• 6.3 Penalties for Delay in Construction. Grantor may,
at its sole option, apply any of the following penalties in
connection with delays in system construction due to causes
which are within Grantee's reasonable control or which are
reasonably foreseeable.
(a) Reduction in the duration of the franchise on
a month-to-month basis for each month of unexecused
delay exceeding six (6) months.
• (b) Forfeiture of performance bonds and
termination of franchise for unexcused delays exceeding
one (1) year.
(c) If, after six (6) months of the effective
date of the franchise, Grantee has not commenced
construction and Grantee does not commence construction
within thirty (30) days of written notice of such
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failure from Grantor, subject to the procedural
provisions of Section 12.4 hereof, Grantor may impose a
financial penalty not to exceed One Thousand Dollars
($1,000.00) per day for each day the Grantee fails to
initiate construction.
For any schedule delay that may occur, the burden of
proof shall be on the Grantee to demonstrate that such delay
was beyond its reasonable control or was not reasonably
foreseeable. The imposition by Grantor of any such penalties
shall be in accordance with the procedures set forth in
Section 12.4 hereof.
6.4 Right of Inspection of Construction. Grantor shall
have the right to inspect all construction or installation
work performed subject to the provisions of the Franchise and
to make such tests as it shall find necessary to ensure
compliance with the terms of the Franchise and other
pertinent provisions of law.
6.5 Provision of Residential Service. Grantee shall
provide all residential services to all residents of the
City, excluding those individuals in commercial establish-
ments or institutions at uniform installation charges and
monthly rates. Service for individuals in commercial
establishments or institutions shall be provided pursuant to
negotiations and agreement with the respective proprietors.
New residences in active cable areas shall be offered service
within ninety (90) days after occupancy.
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6.6 Erection of Poles.
•
If additional poles in an
existing utility system route are required, Grantee shall
negotiate with the utility company for the installation of
the needed poles or Grantee may at its option, subject to the
prior approval of the Grantor, construct necessary poles.
The Grantee shall negotiate the lease of pole space and
facilities from the existing pole owners for all aerial
construction, under mutually acceptable terms and conditions.
6.7 Trimming of Trees. In the conduct of its business,
11
Grantee shall be allowed to trim trees in order to provide
space for its facilities. Such tree trimming shall be done
in compliance with existing City practices and procedures and
in a safe and efficient manner with due regard for the health
of the trees involved. Grantee shall exercise diligence to
assure that trees are trimmed as little as possible and
follow practices designed to cause the minimum amount of
trauma to the trees being trimmed. All refuse created by
tree trimming shall be removed and disposed of by Grantee in
an acceptable manner.
6.8 Cooperation of Grantor. Grantor pledges to fully
•
assist Grantee in obtaining all licenses, permits,
certifications, releases, authorizations and/or agreements
required by governmental agencies or utilities for the
construction and operation of system. Grantor understands
that time may well be of the essence in obtaining the
aforementioned permissions and agrees to provide its
assistance with all due diligence. Grantor also agrees to
17
evaluate and act on all Grantee applications for Grantor
permits, licenses, certificates, releases, authorizations
and/or agreements with all due speed and not to unnecessarily
withhold the granting of same.
SECTION 7. SYSTEM DESIGN AND PERFORMANCE REQUIREMENTS
7.1 System Configuration
Grantee shall provide the following principal design
features in its cable communications system:
A single-cable, two-way capable 450 MHz/64 channel
subscriber distribution network, fed from a single hub.
7.2 System Configuration and Channel Capacity. The
• cable system shall be installed to deliver signals at
frequencies up to four hundred fifty (450) Megahertz (MHz).
7.3 Satellite Earth Stations. Grantee shall provide a
reasonably sufficient number of earth stations to receive
signals from all operational communications satellites that
generally carry programs available to the cable system,
throughout the life of the Franchise.
• 7.4 Cablecasting Facilities. Grantee shall provide the
following cablecasting facilities, which need not be located
within the City limits of Rosemead, or their equivalent for
the cable communications system serving the City at the
estimated costs shown:
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Quantity Item Use Unit Cost Total Cost
1 Studio L.O. $800,000* $200,000
1 Cablecasting/Master L.O./Access $ 40,000
Control
1 Editing System L.O./Access $ 40,000
1 ENG Production Unit L.O. $ 21,000
- Miscellaneous
Equipment L.O./Access $ 25,000
- Remote Mobile L.O./Access $ 20,000
5 Character Generators Access $ 7,000 $ 35,000
TOTAL: $381,000
*Grantee shall dedicate 25% usage time of its regional local
origination studio in Alhambra and 25% usage time of its
Temple City studio exclusively to Rosemead.
7.5 Interconnection. Grantee shall interconnect the
cable communications system with all other cable systems in Los
Angeles County operated by Grantee. The interconnection
shall be completed within two (2) years of commencement of
construction of the system.
Upon the request of the Grantor, Grantee shall begin
negotiations with cable system operators in other adjacent
• cities to achieve interconnection. Within six (6) months of
any Grantor request, Grantee shall report to Grantor the
results of the negotiations.
7.6 Emergency Alert Capability. Grantee shall provide
an emergency audio override capability to permit Grantor to
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interrupt and cablecast an audio message on all channels
simultaneously in the event of disaster or public emergency.
7.7 Standby Power. Grantee shall provide standby power
generating capacity at the cable communications system
control center and at all hubs.
7.8 Parental Control Lock. Grantee shall provide
subscribers, upon request and at no monthly charge, with a
parental control locking device or digital code that permits
inhibiting the viewing of premium channels. Grantee reserves
the right to impose a deposit equal to the cost of the
parental control lock.
7.9 Status Monitoring. Grantee shall provide an
•
automatic status monitoring system for headend equipment.
Grantee shall monitor status of the distribution network in
accordance with FCC standards.
7.10 Technical Standards. The Federal Communications
Commission (FCC) Rules and Regulations, Part 76, Subpart K
(Technical Standards), shall apply. However, because of the
development of interactive and other innovative services,
i modifications of FCC standards, as presented in the
specifications below, are considered as necessary to meet
system service objectives.
In the event the FCC deregulates technical standards,
the Grantee shall continue to conform to the minimum
standards contained in the last issued set of Part 76,
Subpart K regulations.
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•
•
The Grantee has represented, in its franchise
application, that its own performance standards exceed the
FCC minimum standards in several areas. During the term of
this franchise, Grantee shall conform to the following
requirements, which are more stringent than those of the FCC.
SPECIFICATION FCC REQUIREMENT GRANTEE'S REQUIREMENT
•
•
From FCC rules 76.605 (a). Section numbers refer to corresponding
sections of FCC rule 76.605 (a).
(1)
Frequency Boundaries As per 76.605(a)
(2)
Frequency Stability
Converter 250 KHz
(3)
Aural Center Frequency 4.5 MHz 1 KHz
HRC Channels
200 KHz
4.5 MHz 1 KHz
Visual Signal Level 1 millivolt/75 ohms 1.4 millivolts/75 ohms
(4)
(5)
Signal level variation
As
per 76.605(a) 5
(6)
Visual/Aural Signal
ratio
13-
17 dB
(7)
Hum
5%
(8)
In-channel frequency
response
2 dB
(9)
Visual signal/noise
36
dB
(10)
CTB
46
dB
As per 76.605(a) 5
15-17 dB
2%
1.5 dB
48 dB
46 dB*
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(l 1)
Subscriber terminal
isolation
(12)
Radiation
18 dB
0
20 dB
As per 76.605(a) 12 As per 76.605(a) 12
*CTB specifications of 46 dB is without HRC enhancement. HRC
enhancement provides an estimated 10 dB of CTB improvement.
7.11 Performance Testing.
(a) Grantee shall perform all tests necessary to
determine compliance with the technical standards of FCC
76.601. Tests shall include the following, as a minimum:
Pre-Construction
Initial Proof of Performance
Annual Compliance Tests
• Tests in Response to Subscriber Complaints
Monthly Monitor Tests
Written records of test results shall be maintained, and
shall be provided to Grantor.
(b) The tests for the System shall be performed
periodically, at intervals of no greater than every six
months, on a minimum of 20 subscriber television receivers,
located throughout the service area. At least 8 of these
• locations shall be at the far end of the distribution trunk
cables. The tests may be witnessed by representatives of
the Grantor, and written test reports shall be submitted to
the Grantor. Grantor shall be given at least forty-eight
(48) hours notice of the time and place of the tests. If
more than 10% of the locations tested fail to meet the
performance standards, the Grantee shall be required to
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indicate what corrective measures have been taken, and the
entire test shall be repeated for at least 20 different
locations. If a second test results in failure of more than
10%, the Grantor may at its sole option reduce subscriber
rates due to degraded service, unless the circumstances of
the failure are caused by conditions which are beyond the
Grantee's reasonable control or which are not reasonably
foreseeable. In imposing this penalty Grantor shall comply
with the provisions of Section 12.2 hereof.
7.12 Narrowcasting Capability. The system shall have
the capability to direct programming to residents of the City
only, regardless of whether the same cable system serves
• adjacent jurisdictions.
SECTION 8. SERVICE AND PROGRAMMING REQUIREMENTS
8.1 Initial Services and Programming. Grantee shall
provide, as a minimum, the initial services and programming
listed in its franchise application. If any listed service
shall become unavailable, or cannot be provided under
existing or subsequent FCC regulations, Grantee shall
provide, where possible, substitute programming considered at
least as attractive to cable system subscribers. Grantee
shall not reduce the number of program services within
Grantee's control without prior written notification to and
approval by Grantor. Grantor's approval shall not be
unreasonably withheld and its written decision shall be given
to Grantee within thirty (30) days from receipt of its
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notification. Grantee may add new services at any time.
Grantee may combine programming into composite channels to
improve efficiency of channel utilization or to attract a
larger viewing audience.
8.2 Leased Channel Service. Grantee shall offer leased
channel service at non-discriminatory rates and on reasonable
terms and conditions. Grantee shall not use its position as
a cable television system operator to refuse leased channel
service to any applicant who may wish to offer a service
competitive with services offered by Grantee.
8.3 Basic Subscriber Radio Service. Grantee shall
provide Basic Subscriber Radio Service as listed in its
franchise application.
8.4 Advance Charges, Deposits and Late Payment Charges.
Grantee may require payment of charges and deposits as
follows:
(a) The Grantee may require subscribers to pay for
service in advance of the beginning of each month.
(b) Nothing in this provision shall be construed
to prohibit charges for initial installation and
reconnection or to prohibit Grantee from requiring
reasonable deposits for equipment.
(c) Grantee may require subscribers to pay a late
payment charge on any bill not paid by its due date.
Such late payment charge shall not exceed $2.00 per
monthly payment made late.
24
8.5 Disconnection. There shall be no charge for
disconnection of any installation or outlet excluding
relocation of outlets at the customer's request. If any
subscriber fails to pay a properly due monthly fee or charge,
the Grantee may disconnect the subscriber's service as
follows:
(a) No service shall be disconnected until the
delinquent fee is forty-five (45) days overdue or until
ten (10) days after written notice to the subscriber of
intent to disconnect for failure to pay, whichever is
later.
(b) In the case of Pay-Cable Services only, no
service shall be disconnected until the delinquent fee
• is thirty (30) days overdue or until ten (10) days after
written notice to the subscriber of intent to disconnect
for failure to pay, whichever is later. Upon payment of
the delinquent fee or charge and the payment of a
reconnection charge, the Grantee shall promptly
reinstate the subscriber's cable service.
8.6 Local Office. Once the system is operational, the
Grantee shall maintain an office in the city limits of the
• City of Rosemead for the duration of the franchise term.
SECTION 9. SUPPORT FOR LOCAL PROGRAMMING
9.1 Use of Regional Studios and Equipment. Rosemead
residents, who have successfully completed the training
course, will be allowed to utilize the regional studios and
25
designated equipment operated by Grantee. Studio and
equipment use is subject to Grantee's standard operating
procedures and must be scheduled in advance. Grantee
guarantees Rosemead residents will have priority use of the
Alhambra and Temple City studios for 25% of the total
available studio use schedule.
Grantee shall use its best efforts to maintain and
replace, as necessary, the equipment in the local origination
studios.
9.2 Cablecasting Facilities. Grantee shall purchase,
and make available for local programming, the equipment listed in
Section 7.6 hereof. On or before the first anniversary of the
• franchise, Grantee shall present evidence to Grantor that all such
equipment has been purchased and is available for service.
9.3 Funds for City Hall Computer Software. In
accordance with its voluntary offer, contained in its
franchise proposal, Grantee shall pay to the City of Rosemead
the sum of $10,000 for use in purchasing additional software
for the City's computer system. Payment of this sum shall be
made one time only, within thirty (30) days of the effective
• date of the franchise.
9.4 Staff for Local Programming. Grantee shall provide
the local programming technical and support staff as detailed
in its franchise proposal. Said staff shall provide
technical assistance for local programming projects under-
taken by the City of Rosemead.
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11
9.5 Cable Access Training Workshops. Grantee shall
provide training workshops for access programmers as
described in its franchise proposal. Such workshops shall be
scheduled to keep up with the demand therefor.
SECTION 10. RATES AND CHARGES
10.1 Rates for Basic Service and Pay Service. Pursuant
to the Cable Communications Policy act of 1984, rates for
basic and pay services are not subject to regulation by
Grantor.
10.2 Discounts to Elderly and Disabled. For the entire
franchise term, Grantee, pursuant to its franchise proposal,
• shall offer a twenty-five percent (25%) discount on both
basic service and converter rental charge, if any, to any
subscriber over the age of 62 or who demonstrates that he or
she has a disability that would satisfy the Department of
Motor Vehicles requirements for the issuance of a handicapepd
parking permit.
10.3 Wiring of Public Facilities. Grantee shall
provide a free drop and basic service at no charge for each
• government and public facility building in the City. If the
governmental entity desires, additional outlets shall be
wired at cost and basic service to such additional outlets
shall also be provided without charge.
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•
0
SECTION 11. EQUAL EMPLOYMENT OPPORTUNITY REQUIREMENTS
11.1 Equal Employment Opportunity and Affirmative
Action Programs. Throughout the term of the Franchise,
Grantee shall conduct its business as an Equal Employment
Opportunity/Affirmative Action Employer. In addition,
throughout the term of the Franchise, the Grantee shall
maintain a policy that all employment decisions, practices,
and procedures are based on merit and ability without
discrimination in violation of state or federal law on the
basis of an individual's race, color, religion, age, sex,
national origin, or physical or mental handicap. The
Grantee's policy shall apply to all employment actions
including advertising, recruiting, hiring, promotion,
• transfer, remuneration, selection for training, company
benefits, disciplinary action, lay-off, and termination. The
Grantee shall carry out this policy through continued
dedication to a determined and sustained effort to provide
equal employment opportunities to all by taking affirmative
action to employ and advance in employment qualified women,
minorities, persons who are physically or mentally
handicapped, and veterans. The Grantee shall provide to the
• Grantor a written Affirmative Action Program to carry out
this policy no later than sixty (60) days after the effective
date of this Franchise.
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SECTION 12. REGULATION
12.1 Franchise Regulation
0
The Franchise granted under
this ordinance shall be subject to regulation by Grantor in
accordance with the provisions hereof and those of Ordinance
No. 571. Grantor may, at its sole option, enter into joint
regulatory agreements with other Grantors in adjacent
jurisdictions, served by the same cable system.
12.2 Remedies for Franchise Violations.
(a) In addition to the penalties for delays in
construction as specified in Section 6.3 hereof, Grantor
reserves the right to impose the following penalties in the
event Grantee violates any other material provision of the
Franchise, provided that Grantee has not commenced corrective
• action within thirty (30) days of service of written notice
by certified mail to, or personal service on, the general
manager of Grantee. Imposition of the following penalties
shall be subject to Section 17 hereof. Grantor may:
(1) Impose a financial penalty, not to exceed
one Thousand Dollars ($1,000) per day or per incident,
for Grantee's individual willful and/or repeated
violation of the Franchise or failure to take corrective
• action with respect to a violation of any provision of
the Franchise.
(2) Require Grantee to make rate rebates or
payments to the customers or classes of customers in
such amount and on such basis as Grantor may deem
29
r
11
reasonable, provided, however, that payments or rebates
to customers shall be made only in the event of:
(i) billing error on an individual or
class basis. The refund shall be equal to the
actual amount of the error.
(ii) an unexcused interruption or
abandonment of service in excess of 48 hours. The
rebate shall equal a prorata portion of the
subscriber monthly fee or be determined upon some
other reasonable basis.
(3) Require Grantee to correct or otherwise
remedy the violation prior to any rate increase becoming
effective.
• (b) In the event the stated violation is not
reasonably curable within thirty (30) days, the Franchise
will not be terminated or revoked or a penalty imposed
pursuant to Section 6.3 hereof or this Section if the Grantee
provides, within the said thirty (30) days, a plan,
satisfactory to the Grantor, to remedy the violation and
continues to demonstrate good faith in seeking to correct
said violation.
(c) In determining which remedy or remedies for
• Grantee's violation are appropriate, Grantor shall take into
consideration the nature of the violation, the person or
persons bearing the impact of the violation, the nature of
the remedy required in order to further prevent such viola-
tions, and such other matters as the Grantor may deem appro-
priate.
30
i
•
(d) Within ten (10) days after receipt of a
written notice of a violation from Grantor, Grantee may
request a hearing before the City Manager or other person
designated by the City Council. Such a proceeding shall
afford full due process of law and shall be held within
thirty (30) days of the receipt of the request therefor.
(e) The determination of the City Manager or other
person designated by the City Council shall be subject to
appeal to the City Council within 15 days of service of
notice in writing of said determination to Grantee. A notice
of appeal shall be delivered to the City Clerk within said
time period and shall specify the grounds for the appeal.
Grantor and Grantee may agree to waive the conduct of a
hearing provided for in Section 12.2(d) and proceed directly
to a final determination by the City Council as.provided for
in this part.
(f) The City Council, in the case of an appeal or
direct jurisdiction, shall hold a hearing affording Grantee
full due process of law. Said hearing shall be set within
thirty (30) days of the receipt of the request therefor.
(g) The City Council, in determining any penalty,
shall make written findings of fact which address the
considerations referenced in Section 12.2(c) hereof.
(h) Nothing herein shall prevent either the
Grantor or the Grantee from obtaining injunctive relief to
enforce the provisions of the Franchise.
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C
C~
(i) Nothing herein shall prevent Grantor from
conducting hearings and providing for remedies on a joint
basis with other cities served by the same cable system.
12.3 Public Disclosure. Whenever, pursuant to the
Franchise, Grantee shall make available for inspection by
Grantor or submit to Grantor reports containing information
considered proprietary by the Grantee, Grantor shall not
disclose or release such reports or information to the public
without Grantee's prior written consent or unless required to
do so by statute or Court order. Grantor shall provide
Grantee with 24 hours notice prior to inspecting books or
records of Grantee.
• SECTION 13. RIGHTS OF INDIVIDUALS PROTECTED
13.1 Discriminatory Practices Prohibited. The Grantee
shall not deny service, deny access, or otherwise
discriminate against subscribers, programmers, or general
citizens on the basis of race, color, religion, national
origin, sex or age. The Grantee shall strictly adhere to the
equal employment opportunity requirements of the Cable
Communications Policy Act of 1984. The Grantee shall comply
at all times with all other applicable federal, state, and
city laws, and all executive and administrative orders
relating to non-discrimination.
13.2 Cable Tapping Prohibited. Neither the Grantee,
nor any person, agency, or entity shall, without the
32
•
•
subscriber's consent, tap, or arrange for the tapping, of any
cable, line, signal input device, or subscriber outlet or
receiver for any purpose except routine maintenance of the
system, polling with audience participation, or audience
viewing surveys to support advertising research regarding
viewers where individual viewer behavior cannot be
identified.
13.3 Invasions of Privacy and of Personal Rights
Prohibited. In the conduct of providing its services or
pursuit of any collateral commercial enterprise resulting
therefrom, Grantee shall take any and all necessary action to
prevent an invasion of a subscriber's or general citizen's
right to privacy or other personal rights as such rights are
• delimited and defined by applicable law. Grantee shall not
without lawful court order or other applicable valid legal
authority utilize the system's interactive two-way equipment
or capability for unauthorized personal surveillance of any
subscriber or general citizen.
13.4 Permission of Property Owners Required Except as
Provided in Section 3.7. No cable line, wire, amplifier,
converter, or other piece of equipment owned by Grantee shall
• be installed by Grantee without first securing the written
permission of the owner of any property involved; provided,
however, that where the property owner has granted an
easement or a servitude to another and the servitude by its
terms contemplates uses such as Grantee's intended use,
Grantee shall not be required to secure the written
33
0 0
permission of the owner for the installation of cable
communications equipment or facilities, pursuant to federal
or state law, unless Grantee elects to do so. If permission
is later revoked, whether by the original or a subsequent
owner, the Grantee shall remove forthwith any of its equip-
ment which is visible and movable and promptly restore the
property to its original condition.
13.5 Sale of Personalized Data Restricted. The Grantee
shall not sell or otherwise make available lists of the names
and addresses of subscribers, or any list which identifies,
by name, subscriber viewing habits, or personalized data
pertaining to a subscriber's use of any of Grantee's services
without the consent, express or implied, of the subscriber to
• which the personalized data pertains. For purposes of this
Section, "personalized data" shall mean the name and address
of an individual subscriber directly associated with data
obtained on his or her use of specific services provided by
or through the Grantee. Nothing herein shall be construed to
prevent, as a normal incident of commercial enterprise, the
sale or availability of "non-personalized" or "aggregated
data" which is not personalized data as defined herein.
•
13.6 Landlord
- Tenant.
Grantee
shall be required to
provide service to
individual
units of
a multiple housing
facility with all services offered to other dwelling units
within the City, so long as the owner of the facility
consents in writing, if requested by Grantee, to the
following:
34
(a) To Grantee's providing of the service to units
of the facility;
(b) To reasonable conditions and times for
installation, maintenance, and inspection of the system
on the facility premises;
(c) To reasonable conditions promulgated by
Grantee to protect Grantee's equipment and to encourage
widespread use of the system.
SECTION 14. TERMINATION AND RENEWAL
14.1 Revocation
(a) In addition to any rights set forth elsewhere
in this Ordinance, the Grantor reserves the right to revoke
• the Franchise, and all rights and privileges pertaining
thereto, in the event that:
(1) The Grantee willfully or repeatedly
violates any material provision of the Franchise; or
(2) The Grantee's construction schedule is
delayed for over nine (9) months, due to any cause
which is within the Grantee's reasonable control; or
(3) Subject to the provisions of Section 14.2
hereof, the Grantee becomes insolvent, is involuntarily
• adjudged as bankrupt, or files a voluntary petition for
relief under the Bankruptcy Act; or
(4) The Grantee is adjudged to have practiced
any fraud or deceit upon the Grantor and such judgment
35
becomes final after all appeals are exhausted according
to law.
(b) If Grantee violates any provision contained in
Section 14.1(a)(1)-(4) hereof, Grantor shall give written
notice of the default to Grantee.
(c) Grantee shall be given thirty (30) days, after
such written notice, to correct such default, or to commence
appropriate corrective action. Such notitce and period to
cure need not be repeated if the same were previously
provided to Grantee as a prerequisite to other remedies
pursuant to Section 12.2(a) hereof. The Franchise shall not
be revoked pursuant to this Section if, within said thirty
(30) days, Grantee provides a plan satisfactory to Grantor to
remedy the violation and Grantee continues to demonstrate
• good faith in seeking to correct said violation.
(d) If Grantee fails to correct such default or to
commence appropriate corrective action as provided in Section
14.1(c) hereof, Grantor may elect to impose a penalty, as
provided in Section 12.2 hereof, or Grantor may elect to
terminate this Franchise as follows:
(1) Grantor
consider the option of
• (2) Grantor
(10) days advance writ
(3) Grantor
hearing in a newspaper
City at least ten (10)
shall hold a public hearing to
revocation of the Franchise.
shall give Grantee at least ten
:en notice of such hearing.
shall publish notice of such
of general circulation in the
days in advance of such hearing.
36
(4) Grantee shall be afforded all due process
of law, including the right to appear and be heard at
the hearing.
(5) If after such hearing Grantor determines
that the Franchise should be revoked, Grantor shall
advise Grantee of its decision in writing. Grantee
shall have a period of thirty (30) days, beginning the
next day following written notice to Grantee of such
decision, within which to file any appropriate legal
action. During such thirty (30) day period, the
Franchise shall remain in full force and effect, unless
the term thereof expires sooner.
(6) Absent a court order to the contrary and
upon the expiration of the thirty (30) day period set
• forth in Section 14.1(d)(5) hereof, the Grantor may by
ordinance or resolution declare a forefeiture of the
Franchise, whereupon all rights of the holder of the
Franchise shall immediately be divested without a
further act upon the part of the Grantor, and the
Grantee shall upon demand of Grantor forthwith remove
its structure or property from the streets and restore
the streets to such condition as the Grantor may
•
reasonably
require and
upon failure to do
so,
the
Grantor may
perform the
work and collect
the
costs
thereof from the Grantee. The costs thereof shall be a
lien upon all plant and property of the Grantee. Such
lien shall not attach to the property of the Grantee
located on the poles or other utilities until removal of
37
such property from the pole. Should Grantor decide to
take over and operate the system, Grantee shall be
compensated consistent with the provisions of Section 15
hereof.
14.2 Receivership. The Grantor shall have the right to
revoke the Franchise one hundred and twenty (120) days after
the appointment of a receiver, or trustee, to take over and
conduct the business of the Grantee, whether in receivership,
reorganization, bankruptcy, or.other action or proceeding,
unless such receivership or trusteeship shall have been
vacated prior to the expiration of said one hundred and
twenty (120) days, or unless:
(a) Within one hundred and twenty (120) days
• after his election or appointment, such receiver or
trustee shall have fully complied with all the
provisions of the Franchise and remedied all defaults
thereunder; and
(b) Such receiver or trustee, within said one
hundred and twenty (120) days, shall have executed an
agreement, duly approved by the court having
jurisdiction in the premises, whereby such receiver or
trustee assumes and agrees to be bound by each and every
• provision of the Franchise.
14.3 Renewal or Extension. Grantor and Grantee shall
comply with the procedural provisions of the Cable
Communications Policy Act of 1984 governing renewals and
extensions of franchise terms.
38
14.4 Continuity of Service Mandatory. It shall be the
right of all subscribers to receive all available services
insofar as their financial and other obligations to the
Grantee are honored. In the event that the Grantee elects to
overbuild, rebuild, modify, or sell the system, or the
Grantor revokes or fails to renew the Franchise, the Grantee
shall do everything reasonable in its power to insure that
all subscribers receive continuous, uninterrupted service
regardless of the circumstances, during the lifetime of the
Franchise. In the event of purchase by the Grantor, or a
change of Grantee, the current Grantee shall cooperate with
the Grantor to operate the system for a reasonable temporary
period, in maintaining continuity of service to all
subscribers.
•
SECTION 15. RIGHT TO PURCHASE SYSTEM
15.1 Grantor, in compliance with the Cable
Communications Policy Act of 1984 and California law
governing eminent domain and upon payment of fair market
value, may condemn the Franchise, and the property and plant
of Grantee located in Rosemead.
0 SECTION 16. SEPARABILITY
16.1 Notwithstanding any other provisions of this
Franchise to the contrary, Grantee shall at all times comply
with all laws and regulations of the State and Federal
governments or any administrative agency thereof.
39
16.2 If any Section, subsection, sentence, clause,
phrase or word of this Franchise is for any reason held
invalid or unconstitutional by any court or governmental body
of competent jurisdiction, such Section, subsection,
sentence, clause, phrase or word shall be deemed a separate,
distinct, and independent provision and such holding shall
not affect the validity of the remaining provisions hereof.
16.3 Should the State of California, the FCC or any
other agency of the federal government subsequently require
the Grantee to perform or cease to perform any act which is
inconsistent with any provisions of the Franchise, the
Grantee shall so notify the Grantor. Upon receipt of such
notification, the Grantor shall determine if a material
• provision of the Franchise is affected. Upon such
determination, the Grantor shall have the right to modify or
amend any of the Sections of the Franchise to such reasonable
extent as may be necessary to carry out the full intent and
purpose of the Franchise. The Grantor may terminate the
Franchise in the event the Grantor determines that
substantial and material compliance with the original
proposed term of the Franchise has been frustrated by such
State or Federal requirement.
•
SECTION 17. FORCE MAJEURE; GRANTEE'S INABILITY TO PERFORM
In the event Grantee's performance of any of the terms,
conditions, obligations, or requirements of this Franchise or
of Ordinance No. 571 is prevented or impaired due to any
40
cause beyond its reasonable control or not reasonably
forseeable, such inability to perform shall be deemed to be
excused and no penalties or sanctions shall be imposed as a
result thereof, provided Grantee has notified Grantor in
writing within fifteen (15) days of its discovery of the
occurrence of such an event. Such causes beyond Grantee's
reasonable control or not reasonably foreseeable shall
include, but shall not be limited to, Acts of God, civil
emergencies and labor unrest or strikes.
PASSED, APPROVED and ADOPTED this 28th day of May ,
1985.
YOR
•
ATTEST:
city j~e
41