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HomeMy WebLinkAboutOrd. No. 1991-916ORDINANCE NO. 916 ORDINANCE OF THE CITY COUNCIL OF THE CITY OF LAKE ELSINORE, CALIFORNIA GRANTING A FRANCHISE TO PROVIDE A COMMUNITY ANTENNA TELEVISION SYSTEM FRANCHISE TO JONES INTERCABLE OF SAN DIEGO, INC_ WHEREAS, the City of Lake Elsinore, hereinafter "City" has adopted Chapter 5.40 of its Municipal Code governing the grant of franchises to operate a community antenna television system within the corporate boundaries of the City; and WHEREAS, pursuant to the aforesaid Chapter 5.40, Jones Intercable of San Diego, Inc., a Colorado corporation, hereinafter called "Grantee", has made application to the City for a franchise to provide a community antenna television system; and WHEREAS, King Video Systems, Inc., is currently the Grantee of a franchise to provide community antenna television system within the City's corporate boundaries, and is presently doing so; and WHEREAS, after duly notice public hearing, the City Council determined pursuant to Government Code Section 53066, et seq. to not grant a second franchise to Grantee; and WHEREAS, in a case filed in the United States District Court, Central District of California, Case Number SACV 90-636-GET (RWRx), the Court issued a Memorandum Order for Permanent Injunction, entered April 8, 1991, compelling said City to issue a franchise for the operation of a community antenna television. system to Grantee on or before May 8, 1991.; and WHEREAS, City now desires to issue to Grantee a franchise for the operation of a community antenna television system pursuant to Municipal Code Chapter 5.40; NOW,, THEREFORE BE IT ORDAINED AS FOLLOWS: I 1. That the foregoing recitals are true and correct. 2. Jones Intercable of San Diego, Inc., is hereby granted a Franchise to provide a community antenna television system, said Franchise attached hereto as Exhibit 1 and incorporated by reference herein. r THIS ORDINANCE SHALL TAKE EFFECT AS PROVIDED BY LAW. INTRODUCED AND PASSED UPON FIRST READING this 14th day of May 1991, upon the following roll call vote: AYES: COUNCILMEMBERS: BUCK, DDMINGUEZ, STARKEY, WINKLER NOES: COUNCILMEMBERS: WASHBURN ABSENT: COUNCILMEMBERS: NDNE° ABSTAIN: COUNCILMEMBERS: NONE PASSED, APPROVED AND ADOPTED UPON SECOND READING this 28th day of May, 1991, upon the following roll call vote: AYES: couNCILMEMBERS: BUCK, DDMINGUEZ, STARKEY, WINKLER NOES: COUNCILMEMBERS: WASHBURN ABSENT: COUNCILMEMBERS: NONE ABSTAIN: COUNCILMEMBERS: NONE ATTEST: VICKI L. KASAD, CITY CLERK APPROVED AS TO FORM & LEGALITY: ~~ JOHN R. HARPE , C TY ATTORNEY STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE ) SS: CITY OF LAKE ELSINORE ) I, Vicki 'Lynne Kasad, City Clerk of the City of Lake Elsinore, DO HEREBY CERTIFY that the foregoing Ordinance had its first reading on May 14, 1991, and had its second reading on May 28, 1991, and was passed by the following vote: AYES: COUNCILMEMBERS: BUCK, DOMINGUEZ, STARKEY, WINKLER NOES: COUNCILMEMBERS: WASHBURN ABSENT: COUNCILMEMBERS: NONE ABSTAIN: COUNCILMEMBERS: NONE VICKI LYNNE SAD, CITY CLERK CITY OF LAKE LSINORE (SEAL) STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE ) SS: CITY OF LAKE ELSINORE) I, Vicki Lynne Kasad, City Clerk of the City of Lake Elsinore, DO HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of Ordinance No. .916 of said Council, and that the same has not been amended or repealed. D: May 30, 1991 VICKI LYNNE ~ASAD, CITY CLERK CITY OF LAKE ELSINORE (SEAL) FRANCHISE FOR COMMUNITY ANTENNA TELEVISION SYSTEMS DF!`TTTT.C WHEREAS, the City of Lake Elsinore, hereinafter "City" has adopted Chapter 5.40 of its Municipal Code governing the grant of franchises to operate a community antenna television system within the corporate boundaries of the City; and WHEREAS, pursuant to the aforesaid Chapter 5.40, Jones Intercable of San Diego, Inc., a Colorado corporation, hereinafter called "Grantee", has made application to the City for a franclAise to provide a community antenna television system; and WHEREAS, King Video Systems, Inc., is currently the grantee of a franchise to provide community antenna television system within said City's corporate boundaries, and is presently doing so; and WHEREAS, after duly noticed public hearing, the City Council of said City determined pursuant to Government Code Section 530G6, et se to not grant a second franchise to Grantee; and WHERP:AS, in a case filed in the United States District Court, Central District of California, Case Number SACV 90-636-GLT (RWRx), the Court issued a Memorandum Order for Permanent Injunction, entered April 8, 1991, compelling said City to issue a franchise for the operation of a community antenna television system to Grantee, a copy of which Memorandum Order is attached hereto as Exhibit "A", and made a part hereof; and WHEREAS, City now desires to issue to Grantee a franchise for the operation of a community antenna television system pursuant to Municipal Code Chapter 5.40; NOW, THE CITY COUNCIL FOR THE CITY OF LAKE ELSINORE does hereby grant to Jones of San Diego, Inc., a franchise to operate a community antenna television system as such is defined in Municipal Code Chapter 5.40, subject the following requirements: 1. This grant of franchise and the Grantee thereof are bound by the provisions of Lake Elsinore Municipal Code Chapter 5.40, as from time to time amended, with the following exceptions: (a) Section 5.40.060 U relating to broadcasting frequencies. (b) Section 5.40.060 V as to the compliance date only. (c) Section 5.40.080 C shall be construed to mean all services to which the existing franchisee presently provides service; i.e. universal cable television service. (d) Section 5.40.190 relating to the application process. (e) Section 5.40.200 relating to an application fee. 2. The duration of this franchise shall be Fifteen (15) years commencing on the effective date of the Ordinance granting the franchise. Lake Elsinore Municipal Code Chapter 5.40, attached hereto as Exhibit "II", is incorporated herein by reference and made a part hereof. 3. For the purposes of Section 5.40.080 (c), Franchisee shall be required to provide "universal service" to all areas within the territorial boundaries of the City of Lake Elsinore. "Universal Service" shall be defined as service ava ilability to all areas being served by the existing Franchisee, Kina Video, Inc. as of the date of the granting of this Franchise. r 1 2 3 4 5 6 7 8 9 10 11~' 12 13 14 15 16 17 ~.~: 6., 18 19 ma'r' 2 0 :y ~:.. 21 ;~~ 22 23 24 25 26 27 28 APR x;1991 i ~Y. 71C ( OF CA LIFURiJIA AiJ.4 .T=iiCE F I L ~ ~ .._~.~ --; APR 4 1991 I ~ CLERK, U.S, DISTRICT COURT S CENTRAL DISTRICT OF CAUFORN!P, SAPJTA ANA OFFICE ~ [~v '~.__ DE. _;... UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA JONES INTERCABLE OF SAN. DIEGO, INC., Plaintiff, vs. CITY OF LAKE ELSINORE, GARY M. WASHBURN, FRED DOMINGUEZ, BILL STARKEY, JAY WINKLER, and WILL BUCK, Defendants Case No. SACV 90-636-GLT (RWRx) MEMORANDUM ORDER FOR PERMANENT INJUNCTION Plaintiff's motion for partial summary judgment, heard January 14, 1991, raises issues on apparent first impression of the Constitutionally permissible limits of additional-operator cable television franchise regulation, and the appropriate construction of California Government Code § 53066.3 on that subject. The Court holds that Plaintiff's motion must be granted, and issues a permanent injunction. I. BACKGROUND Plaintiff, Jones Intercable, is a large Colorado-based cable television service provider operating in over twenty states. r 1 2 3 4 5 6 7 8', 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff's California branch, Jones Intercable of San Diego, applied to the City of Lake Elsinore in 1989 for a franchise to provide cable service within the City. Lake Elsinore is currently served by King Video, which has operated the only city cable franchise for the last fifteen years. At a July 1990 hearing, the City Council denied Jones Intercable's application based on the totality of the evidence presented. Although plaintiff had complied with all application requirements, the City based its denial on newly-enacted California Government Code § 53066.3,` which lays out factors a municipality must consider at a public hearing if it elects to grant an additional cable franchise where an existing operator is already franchised. Based on this denial, Jones Intercable brought this case, alleging a violation of its first amendment and equal protection rights under ~ g 53066.3 provides, in part: (a) If a city, county, or city and county elects to grant an additional cable television franchise in an area where a franchise has already been granted to a cable television operator, it shall do so only after a public hearing noticed pursuant to Section 6066, in a newspaper of general circulation as defined in Section 6000, where all of the following have been considered: (1) Whether there will be significant positive or negative impacts on the community being served. (2) Whether there will be an unreasonable adverse economic or aesthetic impact upon public or private property within the area. (3) Whether there will be an unreasonable disruption or inconvenience to existing users or any adverse effect on future use of utility poles, public easements, and the public rights of way contrary to the intent of Section 767.5 of the Public Utilities Code. (4) Whether the franchise applicant has the technical and financial ability to perform. (5) Whether there is any impact on the franchising authority's interest in having universal cable service. (6) Whether other societal interests generally considered by .franchising authorities will be met. (7) whether the operation of an additional cable television system in the community is economically feasible. (8) Such other additional matters, both procedural and substantive, as the franchising authority may determine to be relevant. 2 1 42 U.S.C. § 1983, without further exhausting its administrative 2 remedies. Patsy v Board of Regents of the State of Florida, 457 U.S. 3 102 S. Ct. 2557, 73 L. Ed. 172 (1982). Plaintiff has filed this motion 4 for partial summary ;judgment on the issue of liability, and for a 5 preliminary injunction.Z Plaintiff contends that it has agreed to 6 abide by all reasonable conditions and regulations of the City, there 7 is sufficient physical capacity to accommodate both Plaintiff's cable 8 system and the existing cable operator, no other cable operators are 9 currently seeking access to the City, and a substantial portion of the 10 City is undergoing new construction where there will be sufficient 11 capacity to accommodate both Plaintiff and the existing operator. It 12 argues .that, with no showing of lack of physical capacity, and with 13 plaintiff's willingness to comply with all the City's financial and i 14 technical requirements, the City was required to grant the plaintiff's 15 application for a cable franchise. 16 Defendants respond that the factors on which they based their 17 denial are (1) negative impacts on the community, (2) unreasonable 18 adverse aesthetic impacts on public and/or private property, (3) unmet 19 societal interests generally considered by franchising authorities, and 20 (4) lack of economic feasibility of an additional cable system. 21 Defendant's points and authorities, at 2. 22 The City has produced some evidence of potential physical 2.3 disruption of the public domain and aesthetic or economic impact on 24 private property in providing statutorily-mandated universal 25 service.' 26 2 The preliminary injunction was granted on January 14. 27 ' See 53066.3 (d) regarding mandated universal service. The 'L8 admissibility of this evidence is in doubt. Defendant's evidence to support the physical disruption argument was in documents 3 r 1 2 3 4 5 6 7 8 9 10 11~ 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 However, the great weight of evidence from the City shows the paramount reason the City denied the plaintiff's application was that it felt an additional cable franchise might impact negatively on the current cable franchise. See transcript, City Council Hearing at 383, 387, 389, 391. Defendant states: "amon g the purposes of the public hearing is the .protection of an existing franchise holder who has expended substantial sums in installing and undergrounding the initial service, including acquisition of the right of way and undergrounding, the cost of providing initial transmission equipment and the cost of meeting other requirements of the City Franchise Ordinance, including universal cable services, the providing of numerous community services including the tele-casting of City Council, Planning Commission and School District Meetings." Defendant's Opposition Memo at Page 12. Defendant maintains that plaintiff is only interested in providing service to the new outlying areas; that "clearly the playing field is not equal if the second or subsequent franchisee is allowed to place conduit in open trenches in conjunction with new construction, while the existing franchise operator is required to bear the costs of maintaining and updating an existing underground and overhead system." Id.' at II 12-13. ~~ ~ ~ ~ ~ ~ ~ ~~ / ~~ ~ ~ ~ ~ ~ submitted to the city council by King Video. The City did not produce affidavits or other admissible evidence at the hearing on this motion to create a genuine issue of material fact on this issue. However, for purposes of this motion, the Court will assume that the City could produce admissible declarations stating this information. 4 v 1 IZ. DISCUSSION 2 1. Summary iudgment standard. 3 On a motion for summary judgment, the non-moving party bears the 4 burden of proof with respect to elements essential to its case, and 5 summary judgment is appropriate if that party fails to make a sufficient 6 showing to establish a genuine issue of fact with respect to the ', 7 existence of the element. California Architectural Bldg. Products v. 8 Franciscan Ceramics, 818 F.2d 1466, 1468, (9th Cir. 87), cert. denied, 9 108 S. Ct. 689 (1988), citing Celotex Corporation v. Catrett, 477 U.S. 10 317, 106 S. Ct. 2548, 2552, 2553, 91 L. Ed. 265 (1986). To withstand 11 a motion for summary judgment, the non-moving party must demonstrate 12 "genuine factual issues that properly can be resolved only by the finder 13 of fact because they may reasonably be resolved in favor of either 14 party." California Architectural at 1468, citing Anderson v. Liberty 15 Lobby, Inc., 477 U.S. 2424, 106 S. Ct. 2505, 91 L. Ed. 202 (19.86). 16 Since the subject franchise application process involves 17 restriction of First Amendment rights, the government bears the burden 18 of supporting the alleged speech infringing ordinance. N.A.A. C.P. 19 Western Re4ion v City of Richmond, 743 F.2d 1346, 1351 (9th Cir. 1984). 20 2. Deve~oping legal status of cable television. 21 Any business or enterprise which involves protected First Amendment 22 elements receives heightened protection under the law. Each media of, 23 expression "must be assessed for First Amendment purposes by standards 24 suited to it, for each may present its own problems.." Southeastern 25 Publications, Ltd. v. Conrad, 420 U.S. 546, 557, 95 S. Ct. 1239, 1246, 26 (1975). This has led to different standards for newspapers, see Miami 27 Herald v. Tornillo, 418 U.S. 241, 94 S. Ct. 2831 (1974), than for 28 broadca:~t. television, see F.C.C. v. League of Women Voters, 468 U.S. 5 1 364,381, 104 S. Ct. 3106, 3118 (1984). 2 In 1969, the Supreme Court ruled that broadcast television and 3 radio are subject to rules and regulations that would not be permitted 4 under the high First Amendment standard that generally applies where 5 media of expression are involved. Red Lion Broadcastino Cq, v. F.C.C., 6 395 U.S: 367, 89 S. Ct. 1794 (1969). This higher degree of permitted 7 regulation, reflected in strict licensing, is justified udder what is 8 sometimes called the economic scarcity rationale: "the First Amendment 9 tolerates far more intrusive regulation of broadcasters than of other ~~ 10 media precisely because of the inescapable physical limitations on the 11 number of voices that can simultaneously be carried over the 12 electromagnetic spectrum." Quincy Cable TV v. F.C.C., 7G8 F.2d 1434, 13 1448 (D.C. Cir. 1985). In the early days of cable television, this same 14 "economic scarcity" rationale was applied to the growing cable 15 industry, and was the reason the F.C.C. was allowed to promulgate and 16 enforce "must carry" rules mandating cable networks carry local 17 broadcast signals as programming. See Carter Mountain Transmission 18 Coro, 32 F.C.C. 459 (1962), aff'd 321 F.2d 359 (D.C. Cir.), cert. 19 denied, 3~i7 U.S. 951, 84 S. Ct., 442, 11 L. Ed. 312 (1963). 20 However, as the technology of cable television further developed, 21 the dissimilarities between it and the broadcast media made it apparent 22 that no such economic or physical scarcity rationale would justify, 23 .regulation. Cable is transmitted by wire and is not subject to 24 limitations based on a limited number of electronic frequencies 25 available. Any limitations are based on the grounds of actual physical 26 space, i.e. how many wires can be put underground or strung on a 27 telephone pole. 28 / / / / / / 6 1 As cable technology progressed, the differences between it and the 2 broadcast media led to an emerging different standard. In 1985, the 3 "must carry" cable regulations promulgated by the F.C.C.. were declared 4 unconstitutional in 9uincV Cable TV v. F.C.C., 768 F.2d 1434, 1453 (D.C. 5 Cir. 1985). 6 While the degree of permitted cable industry regulation remained 7 uncertain, most courts adopted as the test for such regulation the 8 standard set by the Supreme Court in 1968 for regulation of 9 non-communicative aspects of other forms of speech in United States v. 10 O'Brien: "[A] government regulation is sufficiently justified (1) if 11 it is within the constitutional power of the government; (2) if it 12 furthers an important or substantial government interest; (3) if the 13 governmental interest is unrelated to the. suppression of free 14 expression; and (4) if the incidental restriction 'on alleged First 15 Amendment freedoms is no greater than is essential to the furtherance 16 of that interest." 391 U.S. 367, 377, 88 S. Ct. 1673, 1679 (1968). 17 In 1986, the Supreme Court, in effect, invited lower courts to 18 formulate the constitutional limits of cable television regulation' in 19 City of Los Angeles v. Preferred Communications, Inc. 476 U.S. `488 20 (1986), 106 S. Ct. 2034, 90 L. Ed. 2d 480. Following Los Angeles' 21 refusal to grant a cable television franchise, the Supreme Court 22 affirmed the Ninth Circuit's holding that the cable television medium. 23 "plainly implicate[s] First Amendment interests." Id. at 494, citing 24 Preferred Communications v. City of Los Angeles, 754 F.Ld 1396, 1401 25 (9th Cir. 1985). However, the Court specifically declined to state what 26 form of regulation was constitutionally permissible without a more 27 thorough factual development of the record. Id. at 494. The decision 28 left open the question of "whether the characteristics of cable 7 television make it sufficiently analogous to another medium to warrant application of an already existing standard or whether those characteristics require a new analysis." Id. at 496, Blackmun, J., concurring. 3. Current Ninth Circuit standards of permissible reaulation. 6 7 8 9 10 11 12 13' 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Since the Preferred Communications decision, various circuits have continued to frame their interpretation of constitutionally permissible cable television exclusive franchise regulations.° The district courts in the Ninth Circuit have settled on a consensus of permissible cable television regulation, as reflected in Century Federal Inc. v. City of Palo Alto. California 648 F. Supp. 1465 (N.D. Cal. 1986), Group W. Cable, Inc. v. City of Santa Cruz 669 F. Supp 954 (N.D. Cal. 1987) and Pacific West Cable Co. v. Citv of Sacramento, California, 672 F. Supp. 1322 (E.D. Cal. 1987).5 This Court accepts the ° Other Circuits have examined the issue of exclusive cable franchises since Preferred. See Nor West Cable Communications Partnership v City of Saint Paul, _F.2d_, 1991 WL 5934 (8th Cir. 1991) (Where the evidence in the district court, reviewed under the "clearly erroneous standard," indicated the plaintiff, a cable company, never intended to complete the cable system, and could not have competed financially with the existing cable company, the second company lacked standing to pursue the grant of a second franchise); and Central Telecommunications v. TCI Cablevision Inc., 800 F.2d 711, 715 (8th Cir. 1986); (Grant of exclusive franchise encourages competition in this specific instance). Also see Communications Inc. v. City of Danville., 880 F.2d 887, 892, 14 Fed. R. Service 844 (6th Cir. 1989) (Court affirmed grant of only one rion-exclusive franchise. at the present, on the grounds that having two cable companies operating in the same market would be detrimental to both companies, and thus to the availability of cable in the city). But see, 'international Broadcasting Corporation v. City of Bismark, 697 F. Supp. 1094 (N.D. North Dakota 1987) (City of Bismark could grant three franchises simultaneously and. exclusive grant would have violated first amendment), and Warner Cable ComUanV v. City of Niceville, 911 F.2d 634 (11th Cir. 1989) (Company has no first amendment right to exclusive franchise). 5 In doing so, these courts followed the Ninth Circuit Court of Appeals reasoning stated in Preferred Communications v. City of Los Angeles, 754 F.2d 1396, 1405 (9th Cir. 1986), where the Court 8 r 1 reasoning and statement of the law set out in those Ninth Circuit cases, 2 which may be summarized as follows: 3 a. A cable television operator is a "speaker" entitled to 4 First Amendment protection. The operation of cable television is more 5 analogous to traditional media than to broadcast media, and is thereby 6 entitled to greater First Amendment protection than broadcast media. 7 A government entity seeking to impose restrictions has the burden of 8 demonstrating that the unique characteristics of cable television 9 justify an exception to the rule prohibiting government intrusion into 10 the functioning of the media. 11 b. Certain regulations and franchise requirements for cable 12 television are within the constitutional power of government. 13 Government regulations are judged by the Supreme Court standards in 14 United States v. O'Brien 391 U.S. 367, 88 S. Ct. 1673, 20 L. Ed. 2d 672, 15 and, in particular, must be in furtherance of an important or 16 substantial governmental interest. 17 c. The fact that cable television may be a "natural 18 monopoly," with the service area arguably .able to support only one cable 19 operator, is immaterial under the First Amendment and cannot justify 20 regulation. Government regulations may not impose public access 21 requirements, such as dedication of public channels, equipment, or 22 facilities. Nor may the regulations impose technical requirements, such, 23 as a minimum number of channels, specific basic service, or a certain 24 programming mix. 25 26 held allowing only single cable franchise to serve any given area 27 was an impermissible government response to the burden imposed by cable on the public resources. While the Supreme Court affirmed 28 Preferred on narrower grounds, the reasoning by the 9th Circuit in Preferred controls in this Circuit. 9 1 d. However, government may impose reasonably time, place, 2 and manner restrictions to protect the public safety and maintain public 3 thoroughfares, and to minimize physical disruption of the public domain. 4 Accordingly, government may require an applicant to submit relevant 5 evidence of financial responsibility and operational competence, post 6 a reasonable performance bond, and obtain adequate insurance. Also, 7 government may charge an appropriate franchise fee as compensation for 8 fair value of occupying public },roperty, and a nominal administrative 9 fee to cover the clerical costs of issuing the franchise. Finally, if 10 a genuine lack of physical capacity to accommodate additional cable 11 installations within the government entity's infrastructure is 12 adequately shown, it may be the basis for limitation of cable access. 13 4. Application of Ninth Circuit law to the Present case. 14 Based upon this current status of the law in the Ninth Circuit, this 15 Court reaches the following conclusions under tare facts of this case: 16 a. Plaintiff is a First Amendment "speaker," entitled to a 17 high degree of Constitutional protection. Plaintiff has complied with 18 all the City's franchise application procedures. 19 b. The factor of potential negative impact on, and protection 20 of, the existing cable franchise operator is constitutionally irrelevant 21 to plaintiff's application. The "natural monopoly" theory has been 22 rejected by other Ninth Circuit authorities, and this Court adopts the, 23 reasoning and conclusion of those authorities. 24 c. Plaintiff has agreed to abide by all reasonable conditions 25 and regulations normally set by the City. Therefore, no triable issue 26 presently exists as to public access requirements, technical 27 / / / / / / 28 / / / / / / to r 1 requirements, evidence of financial responsibility and operational 2 competence, performance bond, insurance, fees, or any other installation 3 or operation matter. 4 d. The City may impose such reasonable time, place and manner 5 restriction as is necessary to protect the public's safety, maintain 6 public thoroughfares, and minimize physical disruption of the public 7 domain. Although the City has suggested that there will be physical 8 disruption of the public domain, there is insufficient showing to 9 suggest that plaintiff's franchise should be L-otally denied for this 10 reason. Reasonable time, place, and manner restrictions, together with 11 appropriate bond and insurance requirements, can remedy this potential 12 harm. Plaintiff has stated its agreement to such regulations. 13 e. Although there is the suggestion in the City's pleadings 14 of lack of physical capacity to accommodate aT~ additional operator, no 15 significant evidence. of such a condition has been presented. 16 5. Effect of 1990 California Statute. 17 California Government Code § 53066.3 (See text at Footnote 1) took 18 effect in 1990. In summary, it provides that, if a government entity 19 elects to grant an additional cable television franchise where a 20 franchise has already .been granted to another operator, it shall do so 21 only after a public hearing where all of eight factors are considered: 22 (1) positive or negative community impacts, (2) adverse economic or, 23 aesthetic impact on public or private property, (3) disruption of users 24 of the public domain, (4) applicant's technical and financial ability, 25 (5) impact on universal cable service, (6) "other societal interests," 26 (7) economic feasibility of an additional system, and (II) "such other 27 additional matters" as the franchising authority deems relevant. The 28 City argues that it relied on a number of these factors in denying 11 r 1 Plaintiff's application, and that this Court would have to find the 2 state statute unconstitutional in order to overturn that denial. 3 On first reading of § 53066.3, it might appear to be 4 unconstitutional on its face. The mandate in item (7) of the statute 5 to consider the economic feasibility of a new competing system is the 6 same "natural monopoly" theory that was considered and rejected as 7 unconstitutional in Century Federal Inc. v. City of Palo Alto, 648 F. 8 Supp. 1465 (N.D. Cal. 1986), and Group W Cable Inc. v. City of Santa 9 Cruz, 669 F. Supp. 954 (N.D. Cal. 1987). Other of the criteria are 10 arguably unconstitutionally vaqu=~, or are only grounds for "time, place 11 and manner" regulation rather than outright rejection. 12 However, it is a cardinal principle that the Court will first 13 determine whether a construction of a statute is fairly possible by 14 which the constitutional question may be avoided. Lorillard v. Pons, 15 434 U.S. 575, 577, 78 S. Ct. 866, 55 L. Ed. 2d 40 (1978); Campbell v. 16 United States, 809 F.2d 563, 571 (9th Cir. 1987). 17 Such a construction of this statute is possible and appropriate. 18 In enacting § 53066.3, the California legislature noted that "federal 19 and state. courts are examining the permissible scope of regulation of 20 cable television under the First Amendment..." Section 1 of Stats. 21 1989, chapter 700. Thereby, the legislature acknowledged that its 22 enactment would be construed in light of the newly-emerging, 23 constitutional limits on cable regulation set by the courts. It is 24 appropriate for franchising agencies and courts to read § 53066.3 as 25 modified in light of current constitutional decisions declaring those 26 limits. Therefore, the Court need not reach the question of the 27 constitutionality of the section. 28 / / / / / / 17 t 1 6. Equal Protection issue. 2 Plaintiff argues its equal protection rights are violated because 3 the existing cable company, King Video, is allowed to provide cable 4 services while the plaintiff is not. Thus, plaintiff argues, two 5 similar companies are improperly treated differently. 6 Since this motion is resolved in Plaintiff's favor on the First 7 Amendment theory, the Court does not reach or decide the Equal 8 Protection issue. 9 III. DISPOSI'PION 10 Based on the determinations stated in this order, Plaintiff's 11 motion for partial summary judgment is granted. Accordingly, it is 12 hereby. ordered as follows: 13 1. Defendants and their officers, agents, representatives, 14 employees, and all persons acting in concert or participation with them, 15 are permanently enjoined and directed to issue to Plaintiff within 16 thirty (30) days from the date of this order a franchise license, to the 17 extent provided for in City of Lake Elsinore Ordinance 855, dated April 18 26, 1989 (regarding the granting of cable television franchises), 'for 19 the construction and operation by Plaintiff of a cable television system 20 or system::; within the Defendants' jurisdiction. 21 2. PJothing contained in this injunction shall prevent enforcement 22 against Plaintiff of any law, code, or ordinance not inconsistent with• 23 this Memorandum Order. 24 3. 'Che Court reserves jurisdiction to hear the application of any 25 party for review of the terms and conditions of this injunction, as may 26 be appropriate. 27 4. 'Che Court reserves jurisdiction over any claim for damages, 28 costs, and attorney fees related to this action. 13 r 5. Upon this permanent injunction taking effect, the preliminary injunction previously issued by this Court is dissolved and the-bond posted in support of such preliminary injunction is exonerated. DATED: ~ ~1 ~ I,l I~y~ r~ "( _I GARY L. OR UNITED STATES DISTRICT JUDGE 14 r 5.32,0(10 LAKF. ELSINORE CODE 5.:3'L.060. Permit--Revocation. The Shcr- il'I-s lk•partluent shall summarily revoke an}, pormil issued herrunder, and shall t'luse anv such < arrival, circus, tent shrew, or cxhibi- tiun authorized by such permit fur the breach of and nl the cuntlitions sel Rath in this chapter, ur fur the viulalion of any Taws ~!ul'thc State. (Amender) lAFi7; lh'fl. 344 4 (i, 1 A:r3 ) Chapter 5.40 COMMUNITY ANTENNA TELEVISION SYSTEMS* Sections: 5.40.010 6.40.020 5.40.030 5.40.040 5.40.050 5.40.060 5.40.070 5.40.080 5.40.090 5.40.100 5.40.110 5.40.120 5.40.130 5.40.140 5.40.150 riA0.1 fi0 5.40.170 5.40.180 5.40.790 5.40.200 5.40.210 Detnitions. Franchise to operate. Uses permitted by grantee. Duration of franchise. Franchise paytnents. Limitation of franchise. Rights reserved to the City. Permits, installation end service. Location of property of grantee. Removal and abandonment by grantee. Changes required by public improve- ments. Failure to perform street work. Faithful pcrCvrmance bond. Indemnification of City. inspection of property and records. Miscellaneous provisions. Use oC utility poles and facilities; Agree menu. Adoption of rules and regulations by the City Council. Application for a franchise. Application fee. Acceptance and effective date oCfran- chise. 'F'ur nr armory provisions on rummuniq• an U•nna teleeision ssn'm franchises and license, see Gov. Cnde § 53066. 5.40.010 5.40.010 Definitions. For the purpose of this chapter the following word or words shall have the meaning given herein: A. "City" shall mean the City oC Lake Elsinore, California, a municipal corpo- ration of the State of California, in its present incorporated form or in any later reorganized or enlarged form. B. "Council" shall mean the present governing body of the City or any future board constituting the legislative body of the City. C. "Franchise" shall mean and include any authorization granted hereunder in terms of a franchise, permit, license or other- wise to construct, operate and maintain a CATV system in the City. Any such authori- zation shall not mean and include any li- cense or permit required for the privilege or transacting or carrying on a business within the City relating to the business license tax of the City. D. "Grantee" shall mean the person, firm or corporation to whom a franchise is granted by the Council under this chapter, and the lawful successor, transferee or as- signee of said person; firm or corporation. E. "Street" shall mean the surface of and the space above and below any public street, road, highway, freeway, lane, alley, sidewalk, parkway, driveway, public utility easement, dedicated utility strip or right-of-way dedi- cated Cor compatible uses now or hereafter' existing as such within the City. F. "Property of grantee" shall mean all property owned, installed or used by grantee in the conduct of a CATV business in the City under the authority of a franchise granted pursuant to this chapter. G. "CATV" shall mean a community an- tenna television system as hereinafter de- fined. 536 $ev. Ord. Supp. 4/89 ~,., r _..,,, E 5.40.0'?0 E3L'SINESS TAXES, LICENSES AND REGULATION H. "Community Antenna Television Sys- tem" shall mean a system of antenna, coaxial cable, wires, wire guides, microwave lengths, signal repeaters or other con- ductors, equipment or facilities designed, constructed or used for the purpose of providing television or FM radio service by cable or through its facilities. CATV shall not mean or include the transmission of any special or event for which a separate and distinct charge is made to the subscriber and which is commonly known as "pay tele- visiai." I. `:Subscriber" shall mean any person or entity receiving the CATV service of a grantee lawfully and with grantee's express permission. J. "Gross annual receipts" shall mean any and all compensation and other con- sideration in any form whatever and any contributing grant or subsidy received direct- ly or indirectly by grantee from subscribers in payment for CATV service received within the City, and that percentage of all fees or income received by Grantee for advertising or commercial messages carried over the CATV System equal to the percentage of the CATV System's subscribers who live within the City of Lake Elsinore. Included in gross annual receipts shall be installation and line extension charges levied by the grantee to subscribers. K. "Franchise area" shall mean the entire territory within the City and shall include any enlargements thereof and additions thereto. (Ord. 498 ~ 1, 1971; Ord. 855 ~ 1, 1989). 5.40.020 Franchise to operate. A non- exclusive franchise to construct, operate and maintain a CATV system within the entire territorial ]imit.s of the City may be granted by the Council t:o any person, firm or corporation, whether operating under an 5.40.040 existing franchise or not, who offers to furnish and provide such system under and pursuant to the terms and provisions of this chapter. No provision of this chapter may be deemed or construed as to require the granting of a franchise when in the opinion of the Council it is not in the public interest to do so. No franchise shall be granted pursuant to this chapter on terms and con- ditions of any other franchise currently in force and held by another grantee. (Ord. 498 ~ 2, 1971; Ord. 855 ~ 2, 1989). 5.40.030 Uses permitted by grantee. Any franchise granted pursuant to the pro- vision of this chapter shall authorize and permit the grantee to engage in the business of operating and providing a CATV system in the City, and for that purpose to install, construct, repair, replace, reconstruct, and maintain in, on, over, under, upon, across and along any public street, such wires, cables, conductors, conduit, vaults, ampli- fiers, appliances, and other property as may be installed except where unusual circum- stances exist and where express written permission is provided by the City Council. (Ord. 498 ~ 3, 1971; Ord. 855 ~ 2, 1989). 5.40.040 Duration of franchise. No fran- chise granted by the Council under this chapter shall be for a term longer than twenty-five years following the date of accep- tance of such franchise. Any such franchise granted maybe termi- nated prior to its date of expiration by the Council in the event that said Council shall have found, at a public hearing, after thirty days' notice of any proposed termination that: 537 Rec. Ord. Supp.4'RA 5.40.050 LAKE ELSINORE CODE 6.40.050 Franchise payments. A. Acceptance fee. The grantee of any franchise granted pursuant to this chapter shall pay to the City upon acceptance of such franchise a fee of two hundred fifty dollars. B. Annual franchise fee. The grantee of any franchise shall pay annually to the City luring the life of such franchise no more han five percent of the gross receipts of the grantee derived from subscribers within the City. The City Council shall have the power of seeing the amowrt of the annual fran- chise fee at the time of the granting of any such franchise. All annual franchise fees shall be paid to the City Clerk of the City. The grantee shall file with the City within thirty days after the expiration of any calendar year or 5scal year designated in such franchise a statement prepared by a certified public accountant, showing in detail the gross annual receipts during the preceding year. ft shall be the duty of the grantee to pay to the City within ten days after the time for filing of such statements the sum hereinabove prescribed for the year covered by such statements. In the event the above payment is not received by the City within the specified -time, grantee shall pay to the City liquidated lamages of two percent per month of the inpaid balance in addition thereto. In any year during which payments under this sec- tion amount to less than three hundred sixty dollars per year, grantee shall pay the City as a minimum an amount equal to three hundred sixty dollars per year. For any portion of a year such minimum shall be prorated at [he rate of thirty dollars monthly. The City shall have the right to inspect the grantee's records showing the gross re- ceipts from which its franchise payments are computed. No acceptance of any fran- chise tee payments shall be construed as a 5.40.060 release or as an accord and satisfaction of any claim the City may have Cor further or additional sums payable under this chapter or for the performance of any other obliga- tion hereunder. In the event of any holding over after expiration of any franchise granted here- under, without the consent of the City, the grantee shall pay to the City a reasonable compensation and damages. (Ord. 498 §~ 5A, 5B, 1971; Ord. 855 ~ 6, 1989). 5.40.060 Limitation of franchise. A. Any franchise granted under this chap- ter shall be nonexclusive. B. No privilege shall be granted or con- ferred by any franchise granted under this chapter except those specifically prescribed herein. C. Any privilege claimed by the grantee under a franchise in any street or other public property shall be subordinate to any prior lawful occupancy of the streets or other public property. D. All transmission and distribution struc- ture shall be located so as to cause no interference with the proper use of street, alleys and other public places and to cause no interference with the rights of reasonable convenience oC property owners who adjoin any of said streets, alleys or other public places. E. In case of any disturbances of pave- ment or other surfacing by grantee, the grantee shall at its own cost and in a manner approved by the Director of Public Works replace and restore all pavement and surfacing in as good condition as before said work was commenced and shall main- tain the restoration. in an approved con- dition for the duration of the franchise. F. Whenever it is necessary to interrupt service for making repairs or alterations, grantee shall do so at such time as will 538 Rev. Ord. Supp. 4/89 .~ 5.40.060 BUSINESS TAXES, LICENSES AND REGULATION 5.40.060 cause the least amount of inconvenience to its customers. G. Any such franchise shall be a privilege to be held in personal trust by the grantee. The franchise cannot be sold, transferred, leased, assigned or disposed of in whole or in part by forced or involuntary sale, merger, consolidation, operation of law or otherwise without the prior consent of the Council, after public hearing, expressed by reso- lution and then under such conditions as may thereirrbe prescribed. H. Time shall be of the essence of any such franchise granted hereunder. Grantee shall not be relieved of its obligation to comply promptly with any of the provisions of this chapter by any failure of the City to enforce prompt compliance. I. Any rights or power of the City shall be subject to lawful delegation to any officer or employee of the City. J. Grantee shall have no recourse against the City for any loss, cost, expense or damage arising out of any provision of this ordinance or any franchise issued in ac- cordancewith this chapter or because of its enforcement. ?{. Grantee shall be subject to all require- ments of City ordinances, rules, regulations and specifications heretofore or hereafter enacted including but not limited to those concerning the undergrounding of utilities, street work, and relocation of property within a street or public way. L. Any franchise granted shall not re- lieve the grantee of any obligation involved in obtaining pole space for any utility compa- ny, or from others maintaining poles in streets. M. Grantee shall at all times during the life of this franchise comply with all pro- visions of existing and future ordinances, rules and regulations of the City, the State of California and the United States of America. \. If at any time during the period of the franchise the City shall elect to alter or change width or grade of any street, alley, or other public way, then upon the first such alteration of any street, the grantee upon reasonable notice by the City shall remove, relay and relocate its facilities at its own expense. Upon any subsequent alter- ation of the same street, the grantee upon reasonable notice by the City shall remove, relay and relocate its facilities at the City's expense. O. Any fixtures placed in any public way by grantee shall be placed in a manner as not. to interfere w~ittr the travel on said public way or other use of said public way. P. Grantee shall on the request of any person holding a building moving permit issued by the City, temporarily raise or lower its wires to permit the moving of the buildings. Said expense shall be borne by the person making the request. Q. Grantee shall have the authority to trim trees along the streets, alleys, or other public ways so as to prevent the branches of the trees from coming in contact, with the wires and cables of the grantee, except at the option of the City such trimming maybe done by it at the expense of the grantee. R. In all sections of the City where the cables, wires and other facilities of one or more public utilities are placed under- ground, the grantee shall place its cables, wires or other like facilities underground. S. It shall be unlawful for the owner of any privately-owned area which includes a proposed public street on any tentative sub- division map approved by the City to fail to grant access to streets to individual homes or home sites, in such aprivately-owned area to each franchisee under this chapter on terms no less favorable than the terms offered to any other utility or franchisee. T. Grantee shall at all times during the life of any franchise provide broadcast quality equipment and necessary personnel to maintain and operate live color coverage of each meeting of the City of Lake Elsinore 539 Rec. ord. Supp. 4'R9 r 5.40.070 LAKE ELSINORE CODE City Council from the City of Lake Elsinore Council Chambers, and such other down- to~vn location as may be requested by the City of Lake Elsinore. This programming will be made available to all residents served by grantee. U. Grantee's CATV System shall have a band width of 50 mHz to no less than 450 mHz by December 31; 1993. V. Grantee shall provide cable service to 'all public schools within the City of Lake Elsinore by December 31, 1989. (Ord. 498 § G, 1971; Ord. 855 ~ G, I989). 5.40.070 Rights reserved to the City. A. Nothing herein shall be deemed or construed to affect in any way the right of the City to acquire the property of the grantee either by purchase or through. the. exercise of the right to eminent domain, at a fair and just value, which shall not include any arnount for the franchise itself. B. There is reserved to the City every right and power which is required to be herein reserved or provided by any ordi- nance of the City, and the grantee by its acceptance of any franchise agrees to be bound thereby and to comply with any ...action or requirements of the City in its exercise of such rights and powers, hereto- fore or hereafter enacted or established. C. 'the granting of any franchise shall not he construed as to prevent the City from granting any similar franchise to any other pet'son, firm or corporation within said City. D. The City reserves the right to enter into discussions and negotiate amendments to c~rnst.ruction, operation or maintenance standards. Before such modifications shall become effective, all grantees hereunder shall agree to any amendments that modify a franchise prior to the expiration of the franchise term. E. The granting of any franchise shall not constitute a waiver to the exercise of r 5.50.080 any governmental right or power of the City. The City Council is hereby authorized and empowered to adjust, settle or compro- mise any controversy between the grantee and the City arising from the operations of the grantee. (Ord. 498 g 7, 1971; Ord. 855 >3 7, 1989). 5.40.080 Permits, installation and ser- vice. A. Within ninety days after acceptance of any franchise the grantee shall proceed with due diligence to obtain all necessary permits which are required, including, but not limited to, any utility joint use agree- ments, microwave carrier licenses. and any other permits, licenses and authorizations to be granted by duly constituted regulatory agencies having jurisdiction over the oper- ation of CATV systems. B. Within ninety days after obtaining al] necessary permits and licenses as herein- above provided, grantee shall commence construction and .installation of the CATV system. C. Within a reasonable time but not ex- ceeding one year after the commencement of the construction and installation of the system, grantee shall make service available to subscribers in all areas designated on the map accompanying the application for fran- chise and to all public schools within the City. D. Failure to do any of the foregoing shall be grounds for a termination of the franchise. E. The City Council may extend the time for obtaining the necessary permits and authorizations and for the beginning of con- struction and installation in the event the grantee acting in good faith experiences delays by reason of circumstances beyond its control. (Ord. 498 ~ 8, 1971; Ord. 855 ~ 8, 1989). 540 Rev. Ord. Supp. 4/89 ~~ 5.40.090 BUSINESS TAXES, LICENSES AND REGULATION 5.40.130 .~ 5.40.090 Location of property of grantee. Any wires, cables, or other properties of the grantee shall be so constructed or installed at such locations and in such a manner as shall be approved by the Director of Public Works. (Ord. 498 § 9, 1971; Ord. 855 ~ 9, 1989.) 5.40.100 Removal and abandonment by grantee. A. In the event that the use of a sub- stantial part of the CATV system is dis- continued forany reasonable cause for con- tinuous period of three months or the fran- chise has been terminated, canceled or expired, the grantee shall promptly, upon being given sixty days notice, remove from the streets or public places all such property of such system. In the evept of such removal, grantee shall promptly restore the streets and other areas from which such property has been removed to a condition satis- factory to the Director of Public Works. B. Any property of the grantee remain- ing in place sixty days after the notice of termination or expiration of the franchise shall be considered permanently aban- doned. C. Upon permanent abandonment of the property of the grantee, the property shall become that of the City at its sole option with or without an instrument in writing transferring said property t.o the Cit}~. (Ord. 498 ~ 10, 1971; Ord. 855 ~ 10, 1989). 5.40.110 Changes required by public im- provements. The grantee shall, one time during the term of its franchise, at its own expense, protect, support, or relocate in the same street or other public place any proper- ty of the grantee when required by the Director of Public Works by reason of traffic .conditions, public safety, street vacation, street construction, change or establish- ment of grade, installation of sewers, drains, water or sewer pipes or other type of struc- tures or improvements by public agencies. The costs of any subsequent actions re- quired by the Director of Public Works to protect, support or relocate the same proper- ty of the grantee shall be borne by the City. (Ord. 498 ~ 11, 1971; Ord. 855, >3 11, 1989). 5.40.120 Failure to perform street work. Upon the failure of the grantee to com- mence, pursue or complete any work re- quired by law or by the provisions of this chapter or by its franchise to be done in any street, alley or other public place, within the time prescribed and to the satisfaction of the Director of Public Works, the Director of Public Works, at its option, may cause such work to be done and the grantee shall pay to the City the cost thereof within ten days after receipt of such itemized report. (Ord. 498 ~ 12, 1971; Ord. 855 ~ 12, 1989). 5.40.130 Faithful performance bond. A. The grantee shall, with the filing of an acceptance of award of any franchise cre- ated under this chapter, file with the City Clerk, and at all times hereafter maintain in force and effect, at grantee's sole expense, a corporate surety bond in a company and in a form approved by the City Attorney, in the amount fixed by the City Manager but not to exceed five thousand dollars for the faithful performance of grantee and upon the further condition that in the event grantee shall fail to comply with any of the provisions of this chapter or any franchise issued to grantee hereunder, there shall be recoverable jointly and severally from the principal and surety of such bond any damages or loss suffered by the City, plus a reasonable allowance for the attorneys' fees and costs up to the full amount of the bond; said condition to be a continuing obligation 541 Rev. Ord. Su pp. 4:'R9 5.40.140 LAKE ELSINORE CODE - 5.40.150 for the duration of the franchise. The bond shall provide that thirty days prior written notice of intention not to renew, cancel- lation or material change, be given to the City. B. Neither provisions of this section nor any bond accepted by the City, nor any lamages recovered by the City hereunder hall be construed to excuse faithful per- .ormance by the grantee or limit the liability of the grantee under any franchise issued hereunder, or for damages, either to the full amount of the bond or otherwise. (Ord. 498 § 13, 1971; Ord. 855 ~ 13, 1989.) 5.40.140 Indemnification of City. A. The grantee shall indemnify and hold harmless the City, its officers, boards, com- missions, agents and employees against and from any and all claims, demands, actions, suits, liabilities and judgments of any kind and nature arising out of or relating to the exercise or enjoyment. of the grantee's CATV franchise, including claims, demands, ac- bons, s{{its, liabilities and judgments based upon any infringement or violation of any copyright; and grantee shall reimburse the City for any costs and expenses incurred by '-City in defending against any such claim or demand or action, including any attorneys' fees, expert witness fees, court costs or other expenses in connection therewith; provided that City shall have first promptly notified grantee of any such claim and offered the grantee the opportunity to appear in and defend the City. Nothing in this provision shall be construed to impose on the grantee a duty t.o indemnify or defend the City against a claim that any exercise of the City's police powers or governmental authority is invalid for any reason. The foregoing obligations shall exist and continue without reference to or limitation by the amount of any bond or policy of insurance. B. Grantee shall, concurrently with the filing of the acceptance of award of any franchise. granted under this chapter, file with the City Clerk, and at all tines during the existence of any franchise granted here- under,maintain in full force and effect at its own cost and expense, a general compre- hensive liability insurance policy, protecting the City, its officers, boards, commissions, agents and employees against liability for loss or damage for personal injury, death and property damage, occasioned by the operations of grantee under such franchise. Said policy shall have minimum liability limits of one hundred thousand dollars for personal injuries or death of any one person and three hundred thousand. dollars for personal injuries or death to two or more persons in any one occurrence, and fifty thousand dollars for damage to property resulting from any one occurrence, and shall be in a company approved by and in a form acceptable to the City Attorney. C. The policy mentioned in the foregoing paragraph shall be primary insurance, shall name the City, its officers, boards, com- missions, agents and employees, as ad- ditional insured and shall contain a pro- vision that a written notice of cancellation, reduction, or other material change in coverage of said policy shall be delivered to the City Clerk thirty days in advance of the effective date thereof. (Ord. 498 ~ 14, 1971; Ord. 855 g 14, 1989). 5.40.150 Inspection of property and records. A. The grantee agrees that the City may review such of its books and records, during normal business hours and on a nondis- ruptive basis, as is reasonably necessary to monitor compliance with the terms hereof. Such records shall include, but shall not be limited to, any public records required to be 542 Rev. Ord.Supp.4/89 r ~, 5.40.160 BUSINESS TAXES, LICENSES AND REGULATION 5.40.160 kept by the grantee pursuant to the rules and regulations of the FCC. Notwithstand- ing anything to the contrary set forth herein, grantee shall not be required to disclose in Cormativn which it reasonably deems to be proprietary or confidential in nature. The City agrees to treat any information disclosed by the grantee to it on a con- fidential basis, and only to disclose it to employees, representatives, and agents there- of that have a need to know, or in order to enforce the provisions hereof. B. Grantee shall prepare and furnish to the City at all times and in the. manner prescribed by the City such reports with respect to its operations affairs, trans- actions orproperty inconnection wriththefranchise as required by this ordinance or the fran- chise. C. Grantee shall file with the Depart- ment of Public Works on the first day of March of each year two copies of current maps, drawn to scale, showing all CATV system equipment installed and in place in streets or other public places of the City. (Ord. 498 ~ I5, 1971; Ord. 855 >3 15, 1989). 5.40.160 Miscellaneous provisions. A. When not otherwise prescribed here- in, all matters herein required to be filed with the City shall be filed with the City Clerk. B. 7'he grantee must pay to the City a sum of money sufficient to reimburse it for expenses incurred by it, in publishing legal notice and ordinances in connection with the grantee with written statement of such expense. C. The grantee shall maintain atoll-free telephone number, with twenty-four hour- per-day answering or referral service, so that CATV maintenance service shall be promptly available to subscribers. D. The grantee shall keep a maintenance service log which will indicate the nature of each service complaint, the date and time it was received, the disposition of said com- plaint and the time and date cleared. This log shall be made available-for the periodic inspection by the City. E. Grantee shall bear the prime responsi- bility for appropriate corrective action when- ever improper performance is detected in any part of the system, regardless of whether public utility distribution facilities are utilized. F. No person, firm or corporation in the existing service area of grantee shall be arbitrarily refused service; provided, how- ever, that grantee shall not be required to provide service to any subscriber who has not paid the applicable connection fee or the applicable mont}rly service charge, or has been involved in theft of or un- authorized access to cable services. G. In the case of any emergency or dis- aster, the grantee shall upon request of the Director of Public Works make available his facilities to the City for emergency use during the emergency a' disaster. H. Any franchise granted pursuant to the provisions of this chapter authorizes only the operation of t:he CATV system as provided herein and does not take the place of any other franchise, license or permit which might be required by law of the grantee. I. The grantee shall at all times employ ordinary care and shall instal] and maintain in use commonly accepted methods and devices for preventing failures and acci- dents which are likely to cause damage, injuries or nuisances to the public. J. The grantee shall install and maintain its wires, cables, fixtures and other equip- ment in accordance with the requirements of the Public Utilities Commission of the State of California and in such manner that they will not interfere with any installation of the City or of a public utilities serving the city. 543 Hec. Ord. Supp. 4 '89 f 5.40.170 LAKE ELSINORE CODE 5.40.180 K. All structures and all lines, equipment and connections in, over, under, and upon the streets, sidewalks, alleys and public ways or places of the City wherever situated or located, shall at all times be kept and maintained in a safe, suitable, substantial condition and in good order and repair. L.. The grantee shall maintain a force of one or more area resident agents or em- ployees at all times and shall have sufficient employees to provide safe, adequate and prompt service for its facilities, and shall maintain a technical staff that is capable of responding on a twenty-four hour, on-call basis. M. Grantee shall at all times during the life of any franchise maintain studio facili- ties and a bu.,iness office within the City. The business office shall be open during all normal business hours and shall be equipped and staffed to allow customers to make bill- ing inquiries, pay bills, order or cancel ser- vices, receive or return converter devices, and to dispatch service personnel and equip- ment. N. The grantee shall limit failures to mini- mum by locating and correcting mal- functions promptly. O. Copies of all petitions, applicatimis and communications submitted by the grantee to the Federal Communications Com- mission,. Security and Exchange Commis- sion, or any other Federal, State or local regulatory commission or agency having jurisdiction in respect to any matters affect- ing CATV operations authorized pursuant to the ordinance, shall also be submitted simultaneously to the Director of Public Works. (Ord. 998 § 16, 1971; Ord. 855 § 16, 1989). 5.40.170 Use of utility poles and facili- ties: Agreements. When any portion of the CAT~'system is to be installed on public utilities poles and facilities, certified copies of the agreements for such joint use of poles and facilities shall be filed with the City Clerk. (Ord. 498 § 17, 1971; Ord. 855 § 17, 1989). 6.40.180 Adoption of rules and regu• lations lations by the City Council. A. The City Council is authorized to adopt rules and regulations consistent with the provisions of this chapter governing the operation of CATV systems in the City and such rules and regulations shall apply to and shall govern the operations of this chapter. B. The City Council may adopt rules or regulations or amend, modify, delete, or otherwise change such rules and regulations previously adopted in the following manner: 1. The City Council shall pass a reso- lution of .intention describing the rules or regulations to be adopted, amended, modi- fied, deleted, or otherwise changed and set a day, hour and place for public hearing. Such resolution shall direct the City Clerk to publish the same at least once within fifteen days of passage thereof. 2. The City Clerk shall cause such reso- lution to be published at least once in one newspaper ofgeneral circulation in the City and shall cause a copy of same t.o be mailed or delivered to any grantee not less than ten days prior to the time fixed for hearing thereon. 3. At the time for public hearing, or at any adjournment thereof, the City Council shall proceed to hear and pass upon such evidence, comments and objections as may be presented. Thereafter, the City Council by its resolution mayadopt, amend, modify, delete, or otherwise change said rules and regulations. (Ord. 498 § 18, 1971; Ord. 855 § 18, 1989.) 544 Rec. Ord. Supp. 4!8A 5.40.190 BUSINESS TAXES, LICENSES AND REGULATION 5.40.190 _~ 5.40.190 Application for a franchise. A. Application for a franchise here- under shall be in writing, shall be filed with the City Clerk, in a form approved by the Director oC Public Works, and shall contain but not be limited to the following infor- mation: 1. Name and address of the applicant. Tf the applicant is a partnership, the name and address of each partner shall also be set forth. If the applicant is a corporation, the application shall also state the names and addresses of its directors, main officers, major. stockholders and. associates, the names and addresses of parent and sub- sidiary companies and the state of incorpo- ration. 2. A statement or schedule in a form approved by the Director of Public Works of proposed rates and charges to subscribers for installation and services, and a copy of any proposed service agreement between the grantee and its subscribers shall ac- company the application. Where under- ground cable is required, or where more than one hundred fifty feet of distance from cable to connection of service to subscribers, an additional installation charge over that normally charged for installation as speci- fied in the applicant's proposal may be charged, with easements to be supplied by subscribers. For remote, relatively inac- cessible subscribers within the City, service may be made available on the basis of cost of materials, labor and easements if re- quired by the grantee. 3. A copy of any contract, if existing, between the applicant and any public utility providing for the use of facilities of such public utility, such as poles, lines or con- duits. 9. If a franchise is granted to a person, firm or corporation posing as a front or as the representative of another person, firm or corporation, and such information is not disclosed in the original application, such franchise shall be deemed void and of no force and effect whatsoever. 5. A financial statement prepared by a certified public accountant showing appli- cant's financial status. 6. The Council may, at any time, de- mand, and applicant shall provide such supplementary, additional or other infor- mation as the Council may deem reasonably necessary. to determine whether the re- quested franchise should be granted. 7. A statement of intent with regard to program origination and acceptance of local advertising shall be included. 8. The number and identification of channels proposed to be carried on the CATV system. B. Upon consideration of any such appli- cation, the City Council may grant a fran- chise for CATV to such applicant as may ap- pear from said application to be in its opinion qualified to render proper and efficient CA'I'V service to television viewers and subscribers in the City. If favorably considered, the application submitted shall constitute and form a part of the franchise and granted. C. Prior to the granting of the franchise pursuant to this chapter, the Counc-il shall pass a resolution declaring its intention to grant the same, stating the name of the proposed grantee, the character of the fran- chise and the terms and conditions upon which it is proposed to be granted. Such resolution shall fix and set forth the day, hour and place when and where any per- sons having any interest therein or any objection to the granting thereof may ap- pear before the Council and be heard thereon. It shall direct the City Clerk to publish said resolution at least once within fifteen days of the passage thereof in one newspaper of general circulation in the City. Said notice shall be published at least ten 545 Rcr. Ord. Sapp. 4.'R9 r 5.40.200 LAKE ELSINORE CODE days prior to the date of hearing. At the time set for hearing, the Council shat] pro- ceed to hear and pass upon all protests and its decision thereon shall be bnar soldut on, elusive. Thereafter it may, y grant the franchise on the terms and con- ditions specified in this chapter.. (Ord.498 ~ L9A, 1971; Ord. 855 g 19, 1989). 5.40.200 Application fee. Each app;i_ cation shall he accompanied by an app cation fee in the sum of one hundred dollars which shall be used by the City to cover the costs of revie~~~ing, investigating and process- ing such an application. This fee is not refundable. (Ord. 498 § 20, 1971; Ord. 855 ~ 20, 1989). 5.40.210 Acceptance and effective date of franchise. A. No franchise granted pursuant to the provisions of this chapter shall become effective unless and. until the ordinance granting same has become effective and, in addition, wiless and until all things required in this section and Sections 5.40.130 and 5.40.190 hereof are done and completed, all of such things being hereby declared to be conditions precedent to the effectiveness of any such franchise granted hereunder. In the event any of such things are not done and completed in the time and manner required, the Council may declare the fran- chise null and void. B. Frorn and after the effective date of this chapter, it shall be unlawful for anY person to construct, install or maintain within any public street ierthof th'e City, within any other public prop y or within any privately-owned area within the City which has not yet become a public street but is designated or delineated as proposed public street on any tentative sub- division map approved by the City, any 5.40.210 equipment or facilities for distributing any television signals or radio signals through a CATV system, unless a franchise authorizing such use of such street or property or area has first been obtained pursuant to this provision of this chapter, and unless such franchise is in full force and effect. C. It shall be unlawful for any person, firm or corporation to make any un- authorized connection whether physically, electronically, acoustically, inductively or otherwise, with any part of a franchised CATV system within this City for the pur- pose of taking or receiving television signals, radio signals, pictures, programs, or sound, or for the purpose of enabling himself or others to receive any television signal, radio signal, picture, program or sound, without payment to the owner of said system. D. It shall be unlawful for any person, without the consent of the owner, to wilfully tamper with, remove or injure any cables, wires or equipment used for distribution of television signals, radio signals, pictures, programs or sound. (Ord. 498 ~ 21, 1971; Ord. 855 g 21, 1989). 546 try.. ord. s~Pa. a. af~ r'