HomeMy WebLinkAboutCC RES 00-81RESOLUTION NO. 00-81
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A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
TUSTIN, CALIFORNIA, ESTABLISHING THE CITY'S
PRELIMINARY ASSESSMENT THAT THE CITY SHOULD NOT
RENEW THE CABLE TELEVISION FRANCHISE OF MEDIA
ONE OF LOS ANGELES, INC., D.B.A. AT&T BROADBAND;
REQUIRING THE PRODUCTION OF SERVICE LOGS;
REQUESTING A REVISED OR NEW PROPOSAL FROM MEDIA
ONE WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS
RESOLUTION AND SUSPENDING THE PROVISIONS OF
RESOLUTION NO. 99-49
WHEREAS, Media One of Los Angeles, Inc., d.b.a. AT&T Broadband ("Media One")
holds a non-exclusive Cable television franchise in the City of Tustin (the "City") as
successor-in-interest to Continental Cablevision, Inc.; and
WHEREAS, Media One's franchise expires July 6, 2002; and
WHEREAS, the Communications Act of 1934, as amended by the Cable
Communications Policy Act of 1984, the Cable Television Consumer Protection and
Competition Act of 1992, and by the Telecommunications Act of 1996 (the "Cable Act")
provides for the renewal of existing cable television franchises and authorizes the City to
require a renewal proposal and to set deadlines therefor; and
WHEREAS, on June 21, 1999, the City Council adopted Resolution No. 99-49 to
establish a uniform process for the consideration of cable television franchise renewals; and
WHEREAS, on July 12, 1999, Media One requested that the City initiate renewal of its
cable television franchise; and
WHEREAS, on August 23, 1999, the City notified Media One that it would proceed
with the franchise renewal process pursuant to Resolution No. 99-49; and
WHEREAS, pursuant to Resolution No. 99-49 the City Council held a public hearing
on May 1, 2000 to receive public testimony on the question of the renewal of Media One's
cable television franchise and to identify future cable-related community needs and interests,
and to review Media One's past performance; and
WHEREAS, public testimony at the May 1, 2000 public hearing revealed that Media
One had not resolved franchise compliance issues identified in a City notification letter dated
November 11, 1999 and acknowledged by AT&T and Media One on December 1, 1999; and
WHEREAS, public testimony at the May 1, 2000 public hearing revealed increased
customer dissatisfaction and complaints with Media One's service; and
WHEREAS, the City Council directed Media One to immediately respond to the
numerous customer service complaints raised at the May 1, 2000 public heanng and directed
City staff to request that Media One submit a proposal for renewal of Media One's cable
television franchise addressing the following issues pertaining to the City's future cable-
related needs and interests, and Media One's performance under the current franchise
agreement:
.TIN MEDIA
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.TIN MEDIA
FUTURE CABLE-RELATED NEEDS AND INTERESTS:
1. Provide live coverage of City Council Meetings and a regularly scheduled
rebroadcast at least 2 times, including 1 broadcast during a weekday prime
time and 1 broadcast during the weekend, including transmission to the Cox
Communications system;
2. Provide a full time local access channel dedicated to the City with coordinated
orjoint programming provided by Media One and Cox;
3. Provide assurances in the franchise agreement for payment of franchise fees
for data/Internet services;
4. Explicitly agree to utilize current Federal Communications Commission ("FCC")
requirements for customer service;
5. Provide documentation, satisfactory to the City, of company customer service
quality assurance efforts and of participation by all customer service staff in
training in customer relations;
6. Subject the franchise agreement to future City ordinances and City Code
amendments;
7. Provide free Internet access to City facilities, libraries, and schools in the Media
One service area;
8. Agree to provide open Internet access in Tustin should it become available to
any municipality in the State of California;
9. Continue to maintain a local customer service office;
10. Maintain a locally accessible television program production facility;
11. By June 30, 2003, upgrade the City Council television production facilities, as
mutually agreed, for a minimum cost of $10,000 and a maximum cost not to
exceed $25,000 for equipment and installation services;
12. Continue to provide qualified staff to provide production services for City
Council meetings;
13. Become more involved with the community and provide programming and/or
production services that are specifically tailored to the City's residents interests;
ISSUES PERTAINING TO MEDIA ONE'S PERFORMANCE UNDER THE CURRENT
FRANCHISE:
1. Frequent and prolonged television service interruptions;
2. Rudeness and indifference displayed by Media One customer service
representatives;
3. Customer service staff not knowledgeable about products and procedures;
4. Telephone service calls not answered or answered by a recording only;
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.TIN MEDIA
5. Long hold times for calling customers;
6. Service staff failing to respond to scheduled on-site technical service calls;
7. Various customer billing issues (i.e. high rates, low service levels, billing
errors);
8. Limited channel/programming offerings;
9. Broadband Internet service not available; and
WHEREAS, Media One submitted its proposal for renewal of its cable television
franchise dated September 5, 2000, which fails to address issues identified by the City
Council pertaining to the City's future cable-related needs and interests, and Media One's
performance under the current franchise agreement. A copy of Media One's transmittal letter
and proposal is attached hereto as Exhibit "A" and is incorporated herein by this reference;
and
WHEREAS, the transmittal letter accompanying Media One's proposal acknowledges
the customer service concerns expressed by the City Council at its May 1, 2000 meeting, yet
fails to disclose the processes that Media One is employing to address the concerns.
Instead, the transmittal states, "I would also like to request an opportunity to discuss in more
detail the processes that AT&T Broadband will employ to address the customer service
concerns that were expressed by the City Council;" and
WHEREAS, Resolution No. 99-49 authorizes the non-renewal of Media One's
franchise if after adoption of a resolution containing a preliminary assessment that the City
should not renew the franchise, and at the conclusion of administrative proceedings, the City
Council makes adverse findings in reviewing any one of the following factors:
A. Whether the cable operator substantially complied with the material
terms of the existing franchise and applicable law, and the City provided the cable
operator sufficient notice and an opportunity to cure any failure to comply;
B. Whether the quality of the cable operator's service, including signal
quality, response to consumer complaints, and billing practices, was reasonable in
light of community needs, and the City provided the cable operator sufficient notice
and an opportunity to cure any defects. In reviewing this factor, the City cannot
consider the mix or quality of cable services or other services provided over the
system (content);
C. Whether the cable operator has the financial, legal, and technical ability
to provide the services, facilities, and equipment as set forth in its proposal;
D. Whether the cable operator's proposal is reasonable to meet the future
cable-related community needs and interests, taking into account the cost of meeting
such needs and interests; and
WHEREAS, the City Council held public meetings on October 16, 2000 and
November 6, 2000 as a result of numerous additional complaints by City residents pertaining
to Media One's compliance with its franchise, including the issues noted in the City's letter
dated November 11, 1999, and those raised at the May 1, 2000 public hearing; and
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.TIN MEDIA
WHEREAS, Media One's franchise, Ordinance 1002, requires Media One to comply
with the following standards:
1. Paragraph 16, level of service:
"Franchisee shall use its best efforts to maintain, operate and,
where feasible, modify the cable television system toward the
goal that its performance will be in accordance with the highest
and best accepted standards of the industry."
2. Paragraph 17, Bi-Directional Interconnect Capability:
"... All public schools and City's facilities in Franchisee's service
area within City shall be interconnected at the request of the
appropriate public agency."
3. Paragraph 18, Subscriber Service and Complaint Procedures:
"The Franchisee shall have a business and service office in the
City to serve the Tustin cable television system....
The Franchisee will maintain sufficient service personnel and
equipment in such location(s) for the Franchisee to be able to
take action upon customer service calls in the manner specified
herein....
The telephone service shall transmit service interruption
messages to the service repair force within two (2) hours of
receipt of the original call between 8:30 a.m. and 8:00 p.m.
Monday through Friday and 8:30 a.m. until 5:00 p.m. Saturdays.
The Franchisee shall maintain a service repair force sufficient to
respond within twenty-four (24) hours Monday through Friday and
within forty-eight (48) hours during a weekend to any individual
interruption of service and also a sufficient installation force to
perform service installations within ten (10) working days.
Service problems that are correctable from the headend station
shall be remedied within an eight (8) hour period....
The Franchisee shall keep a maintenance service log for a
running three year period which will indicate the nature of each
service complaint, its location, the date and time it was received,
the disposition of said complaint and the time and date thereof.
This log shall be made available for periodic inspection by the
City;" and
WHEREAS, Tustin City Code Section 7412.c requires Media One to comply with the
following service regulations:
"1. Limit system failures to minimum time duration by locating
and correcting malfunctioning promptly, but in no event
longer than twenty-four (24) hours after occurrence,
irrespective of holidays or other non-business hours....
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.TIN MEDIA
3. Render efficient service, making repairs promptly and
interrupting service only for good cause and for the
shortest time possible. Planned interrupting, insofar as
possible, shall be preceded by notice given to subscribers
twenty-four (24) hours in advance and shall occur during
periods of minimum use of the system;" and
WHEREAS, Tustin City Code Section 7412.e requires Media One to comply with the
following regulations:
"1. It is the desire of the City that all cable television systems
franchised hereunder shall, insofar as financially and
technically possible, be compatible one with another and
with systems adjacent to the City.
2. Wherever it is financially and technically feasible, the
Grantee shall so construct, operate and modify the system
so as to tie the same into all other systems within and
adjacent to the City."
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF TUSTIN, CALIFORNIA,
finds, determines and orders as follows:
SECTION 1: PRELIMINARY ASSESSMENT THAT THE CITY SHOULD NOT
RENEW MEDIA ONE'S FRANCHISE.
That as a preliminary assessment, after having reviewed Media One's performance
under its franchise and Media One's proposal for renewal, Media One's franchise should not
be renewed. This is not an assessment pursuant to 47 U.S.C. Section 546(c)(1). The
reasons for this assessment are as follows:
A. Although the City provided Media One sufficient notice and an opportunity to
cure the following problems, Media One has failed to substantially comply with the material
terms of its franchise and applicable law:
1. Frequent and prolonged television service interruptions.
2. Rudeness and indifference displayed by Media One customer service
representatives.
3. Media One employs customer service representatives who are not
knowledgeable about Media One's products and procedures.
4. Telephone service calls are not answered or answered by a recording only.
5. Long hold times for calling customers.
6. Service representatives fail to respond to scheduled on-site technical service
calls.
7. Various customer billing issues (i.e. high rates, low service levels, billing
errors).
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.TIN MEDIA
8. Limited channel/programming offerings
9. The new equipment that Media One requires customers to use is not easy to
use, and is often confusing for customers (multiple boxes and remotes are
required).
10. Media One provides poor service to public schools. While some schools are
connected to Media One's system, others are not, and those that are
connected have experienced outages.
B. Although the City provided Media One sufficient notice and an opportunity to
cure the following problems, the quality of Media One's service, including signal quality,
response to consumer complaints, and billing practices, is unreasonable In light of
community needs:
1. Frequent and prolonged television service interruptions.
2. Poor reception and picture quality.
3. Rudeness and indifference displayed by Media One customer service
representatives.
4. Media One employs customer service representatives who are not
knowledgeable about Media One's products and procedures.
5. Telephone service calls are not answered promptly or are answered by a
recording only.
6. Long hold times for calling customers.
7. Service representatives fail to respond to scheduled on-site technical service
calls.
8. Various customer billing issues (i.e. high rates, low service levels, billing
errors).
9. Limited channel/programming offerings.
10. The equipment that Media One requires of customers is not easy to use, and is
often confusing for customers (multiple boxes and remotes are required).
11. Media One provides poor service to public schools. While some schools are
connected to Media One's system, others are not, and those that are
connected have experienced outages.
C. Media One's financial, legal, and technical ability to provide the services,
facilities, and equipment set forth in its proposal for franchise renewal, is questionable as
follows:
1. Media One is unable to employ sufficient customer service personnel to
address the number of customer service complaints.
2. Media One is unable to train customer service and technical personnel to
promptly and satisfactorily address customer service requests.
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.TIN MEDIA
D. Media One's franchise renewal proposal is not reasonable to meet the future
cable-related community needs and interests, taking into account the cost of meeting such
needs and interests, as follows:
Media One's proposal fails to provide for live coverage of City Council Meetings
and a regularly scheduled rebroadcast at least 2 times, including 1 broadcast
during a weekday prime time and 1 broadcast during the weekend, including
transmission to the Cox Communications system. While Media One currently
provides this service, its renewal proposal suggests that it intends to
discontinue this service.
2. Media One's proposal fails to address connectivity with Cox's cable television
system, which serves approximately one-third of the City, thereby precluding
City Council Meeting coverage for approximately one-third of the City. (See,
Tustin City Code Section 7412.e.2).
3. Media One's proposal would reduce customer service standards applicable
under the current franchise. For example, the proposal would eliminate the
requirement for Media One to maintain sufficient service personnel and
equipment for Media One to be able to take action upon customer service calls
in the manner specified in the franchise agreement, to respond within a
reasonable time to any individual interruption of service, to minimize the delay
for service installation, and to keep a maintenance service log over athree-year
period containing the disposition of service complaints. Additionally, Media
One currently may not be meeting FCC customer service standards, which are
desired by the City, and which require the following:
• Trained company representatives that will be available to respond to
customer telephone inquiries during normal business hours.
• Telephone answer times by customer representatives, including wait time
that shall not exceed 30 seconds when the connection is made. If the call
needs to be transferred, transfer time shall not exceed 30 seconds.
• Standard installations will be performed within 7 business days after the
order is placed.
• Begin working on service interruptions within 24 hours after the interruption
becomes known.
• The appointment window alternatives for installations, service calls, and
other installation activities will be either a specific time, or at maximum, a
four-hour time block during normal business hours.
• An operator may not cancel an appointment with a customer after the close
of business in the business day prior to the scheduled appointment.
• If a cable operator representative is running late for an appointment with a
customer and well not be able to keep the appointment as scheduled, the
customer will be contacted. [47 CFR § 76.309].
4. Media One's proposal fails to provide documentation of customer service
quality assurance efforts and of participation by all customer service staff in
training in customer relations.
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.TIN MEDIA
5. Media One's proposal fails to provide free Internet access to City facilities,
libraries, and schools.
6. Media One's proposal fails to agree to provide open Internet access in Tustin
should it become available to any municipality in the State of California.
7. Media One's proposal fails to assure continued maintenance of a local
customer service office.
8. Media One's proposal fails to assure that it will maintain a locally accessible
television program production facility.
9. Media One's proposal fails to provide for the upgrade of the City Council
television production facilities.
10. Media One's proposal would limit the definition of the gross receipts over which
Media One will pay franchise fees as currently defined in Tustin City Code
Section 7413 and Ordinance 1002.
11. Media One's proposal would exempt Media One from paying franchise fees in
the event that open video service providers using the public right-of-way do not
also pay a franchise fee on the same portion of their gross receipts, although
open video service providers are subject to separate regulation and
requirements under the Cable Act.
12. Media One's proposal would eliminate the requirement for Media One to
reimburse City expenses associated with the franchise renewal process.
13. Media One's proposal would limit Media One's duty to provide some free
services and minimum service requirements to educational and governmental
buildings and institutions.
14. Media One's proposal would require a "more favorable condition" clause while
it would eliminate a "more favorable city" clause.
SECTION 2: NOTICE TO PRODUCE DOCUMENTS:
Media One is hereby ordered to produce within thirty (30) days of the date of this
Resolution, one copy of the maintenance service log required by Section 18 of its franchise,
Ordinance 1002, for the period commencing November 21, 1997 through November 20,
2000, indicating the nature of each service complaint, its location, the date and time it was
received, its disposition and the time and date thereof.
SECTION 3: REQUEST FOR REVISED OR NEW PROPOSAL AND SUSPENSION
OF THE PROVISIONS OF RESOLUTION NO. 99-49.
The provisions of Resolution No. 99-49 are hereby suspended, and Media One is
requested to submit a revised or new proposal for renewal of its franchise within sixty (60)
calendar days of the date of this Resolution. Media One is requested to address in its
proposal each of the matters described in Section 1 of this Resolution.
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EXHIBITA
AT&T
AT&T Broadband
550 N. Continental Boulevard
Suite 250
EI Segundo, CA 90245
September 5, 2000
Mr. Tim D. Serlet
Public Works Director
City of Tustin
300 Centennial Way
Tustin, CA 92780
RE: AT&T Broadband Franchise Renewal
Dear Mr. Serlet:
As requested in your letter of May 8, 2000, attached is the Franchise Renewal Agreement .
that is being proposed by AT&T Broadband. It was the intent of AT&T Broadband to
minimize the duplication of work that the City of Tustin might have to engage in by
negotiating two Franchise Agreements simultaneously, one with Cox Communications
and the other with AT&T Broadband. Therefore, our proposal is submitted as an edited
version of the Cox Communications document that was provided to us by the City. We
hope this will simplify the process and address all of the concerns that were outlined in
your May 8th letter.
I would also like to request an opportunity to discuss in more detail the processes that
AT&T Broadband will employ to address the customer service concerns that were
expressed by the City Council. As you know AT&T Broadband is rapidly completing
it's rebuild efforts within the city which will improve the quality of video service within
the city and reduce the number of complaints that have been raised by residents regarding
their picture quality.
I and other AT&T Broadband staff have also met with the City of Tustin staff to
coordinate AT&T Broadband's increased involvement with the local community which
was requested in your May 8`~ letter by means of participation in Ta~stin Tiller Days. This
is just one example of our continued commitment to the city and I welcome the
opportunity to meet with the City of Tustin to discuss other possibilities of community
involvement.
t~~
`a(~ Recycled Paper
AT&T Broadband Franchise Renewal
September 5, 2000
Pale 2
We look forward to meeting with City of Tustin staff as soon as possible to work out the
details of the proposed agreement. If in the meantime, you have any questions or require
further clarification please do not hesitate to contact me at (310) 647-6682.
Sincerely,
Stephen D. Sawyer
Director, Local Government Affairs
Cc: William Huston, City Manager, City of Tustin
Joe Meyers, Senior Management Analyst, City of Tustin
Lois Jeffrey, City Attorney, City of Tustin
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OneTustin
ORDINANCE NO. ~~
WHEREAS, the City is authorized to grant, renew and deny franchises for the
installation, operation and maintenance of Cable Television Service within the City's
boundaries by virtue of federal and state statutes and court rulings, by the City's police
powers, by, its authority over its public rights of way and by other. City powers and authority;
and
WHEREAS, ~MediaOne of Los Angeles, Inc., doing business a~--Gex
as AT&T Broadband (hereinafter, "Grantee"), is currently
maintaining and operating a Cable Television System in the City of Tustin pursuant to a
franchise granted by the City; and
WHEREAS Grantee agrees to comply with the applicable provisions of Tustin City
Code, Sec. 7410 et seq., as amended and the provisions of the Cable Communications
Policy Act of 1984 as amended by the .Cable Television Consumer Protection and
Competition Act of 1992 and by the Telecommunication Act of 1996, 47 U.S.C. §§ 521 et
seq. (the Cable Act); and
WHEREAS, the City finds that Grantee has substantially complied with the material
terms of its existing Franchise and with applicable law; and
WHEREAS, the quality of Grantee's Cable Television Service, including signal quality,
response to consumer complaints and billing practices, has been reasonable in light of
community needs; and
WHEREAS, Grantee has the financial, legal and technical ability to provide the
services, facilities and equipment as set forth in this Ordinance granting a Franchise renewal;
and
WHEREAS, the terms and conditions of this ordinance granting a franchise renewal
are reasonable to meet the future cable related needs and interests of the community, taking
into account the cost of meeting such needs and interests.
NOW THEREFORE, the City Council of the City of Tustin, California, does hereby
ordain as follows:
1. Grant of Franchise Renewal.
a. The City hereby grants a Cable Television System Franchise renewal to
Grantee pursuant to the terms and conditions of this Franchise for the purposes of
constructing. ooeratina. rebuilding and maintaining a Svstem in the Citv. Grantee may erect
6e>FAT&T Franchise~F2-(~F4F9A}Vi (9/5/00)
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF TUSTIN, CALIFORNIA, RENEWING A FRANCHISE
FOR A CABLE TELEVISION SYSTEM GRANTED TO
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OneTustin
This renewal of anon-exclusive Franchise for a Cable Television System (hereinafter the
"Franchise") is issued pursuant to the authority provided in Tustin City Code, § 7410 et seq.,
,~ ~~
(hereinafter the Enabling Ordinance) and the Cable Act. All of the provisions of the
Enabling Ordinance are incorporated herein by this reference, as if set forth in full. The
Enabling Ordinance and this Franchise contain the terms and conditions of the Franchise
and shall supersede all prior Franchises granted to Grantee on the effective date of this
Franchise. To the extent the provisions of the Enabling Ordinance are inconsistent with
thnsa of this Franchise. the provisions of this Franchise shall ~re~+l-
c. Assianment or Transfer of Franchise. The Franchise granted herein shall be
a privilege to be held in personal trust by Grantee. It cannot, in any event, be sold,
transferred, leased, assigned or disposed of in whole or in part, either by forced or
involuntary sale, or by voluntary sale, merger, consolidation or otherwise, without prior
consent of the City Council of the City of Tustin expressed by Resolution, and then only
under such conditions as may therein be prescribed, consistent with applicable law. Any
such transferor assignment shall be made only by an instrument in writing, such as a bill of
sale, or similar document, duly executed copy of which shall be filed in the Office of the City
Clerk within thirty (30) days after any such transfer or assignment. Any proposed assignee
must show responsibility and capability as determined by the City Council, consistent with
applicable law, and must agree to comply with all provisions of the Franchise and Tustin City
Code. However, no such consent shall be required for transfer in trust, mortgage, or other
hypothecation, in whole or in part, to secure indebtedness. Provided, further, that Grantee
may transfer the Cable Television System and any related assets, including this Franchise,
to an entity which controls, is controlled by, or is under common control with Grantee,
provided Grantee shall give at least thirty (30) days prior written notice of any such transfer to
the City. The consent required herein shall not be withheld unreasonably.
2. Franchise Area. The Franchise Area for this Franchise shall be all property
within the boundaries of the City of Tustin as of the effective date of the Franchise, and as
the boundaries may change during the Franchise period through annexation, subject to the
following conditions:
a. Grantee shall not be required to overbuild areas already served by another
multi-channel video provider.
b. In the event Grantee elects to overbuild areas already served by another multi-
channel video provider, Grantee shall be subject to the procedures established under
Section 53066.3 of the California Government Code, as applicable at the time Grantee
submits its application, plans and specifications required under the Enabling Ordinance and
this Franchise.
c. to the event of annexation of new territory to the City, the City Council may
determine at a public hearing the grantee or grantees, if any, that will serve such new
territory.
3. Term of Franchise. Notwithstanding Section 7414.a. of the Tustin City Code,
the term of this Franchise shall be for a period of ten (10) years, commencing on July
(~-F~.;,'seT2-(~" ~^^~ -a-4AT&T Franchise V1 (9/5/00) _-2-
b. Grantee shall be subject to future City ordinances and City code amendments
relative to its operations in the city.
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OneTustin
2988;6. 2002, and expiring ~ ,nn ~n ~n~n on midnight of July 6, 2012, subject to termination
as hereinafter provided.
4. Franchise Fees.
a. Fee. ,
- o ,
,~ In+^rn r.# C^niin e~c
Seise V~T~d1/08j -~-4~AT&T Franchise V1 (9/5/00) -3-
of this section, "Gross " ~ + " ~ ~' " .,mNc^~:'.o^, '"
governmental authorities, bad debt expense, and subscriber deLosits.
d-:c. Time of Payment. The franchise fee shall be payable forty-five (45) days after
the close of each quarter of Grantee's fiscal year ("billing cycle").
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OneTustin I I ~~^~°^~°°''~ E~+1/es~ -a-4~AT&T Franchise V1 (9/5/00) -4-
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~d. 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 which the City may have for further additional sums
payable under the provisions of the Franchise.
~6. Rates. Grantee shall impose rates consistent with the provisions of the
Cable Act, and pertinent provisions of the California Government Code, any supplements or
amendments thereto, any successor legislation, and the regulations which are or will be
promulgated under such legislation. Grantee shall advise City of its rates and of any
changes thereto ~~~--~-~c~-motes-c~,-changes ar^ A°+^"'~°"°~'.in accordance with
~plicable law.
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Cable Television System Design and ~a~ePerformance Reauirements.
a. Cable Television System Capacity. Grantee shall provide a minimum
carriage capacity of 750 MHz. Each Channel delivered to the Subscriber shall meet all
Federal Communication Commission (FCC) standards and rules. Grantee shall use its best
efforts to maintain, operate, and, where, in Grantee's opinion, is technically and economically
feasible, modify the Cable Television System towards the goal that its performance will be in
accordance with the highest and best accepted standards of the industry.
b. Minimum Services. Grantee shall make available capacityfor a minimum of
seventy-five (75) channels, provided that Grantee may utilize alternative technologies
(including compression or servers) to deliver such channels.
c. Permits Plans and Specifications Reauired.
(1) Prior to performing any work in, upon, above, beneath, or across any
public right-of-way, Grantee shall first obtain all necessary or required permits,
agreements, or approvals from the City and all other governmental entities with
jurisdiction over the work or public right-of-way, including by way of example but not
limitation, any or all of the following:
(a) Encroachment permits for street work, street excavation, use, removal
and relocation of property within a street, and other street work,
(b) Design review of above ground cabinets pursuant to Ordinance No.
1213, codified at Part 6 of Chapter 2 of Article 7 of the Tustin City Code,
(c) Permits or agreements for occupying any other property of the City to
which access is not specifically granted by the Franchise, including,
without limitation, permits and licenses for placing devices on or in poles,
conduits, or other structures or facilities owned by the City or other
governmental entity.
(2) All plans for work in, upon, above, beneath, or across the public right-of-
way shall be engineered to a scale of not less than 1 "-4' and shall include the
proposed location of the work, Grantee's existing facility locations, construction
timetables, equipment specifications, and design performance criteria. Grantee shall
make reasonable efforts to avoid negative aesthetic impacts.
(3) Grantee's System. Grantee shall maintain in its business office, and
make available to the City for its review, upon request, maps, using standard industry
designations, that at a minimum disclose (a) cable routes, (b) locations and
identifications of aerial and above and below ground appurtenances (such as risers,
vaults, pedestals and power supplies) and (c) physical locations and identifications of
system components, including but not limited to cables and active and passive
electronics and the electrical values of its taps, splitters or directional couplers. Since
such maps may be proprietary and confidential, copies will not be provided to the City.
Where such plans and specifications are not in compliance with zoning ordinances,
traffic safety standards, and other applicable ordinances, codes, regulations,
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determinations and ratings, Grantee shall modify or revise such plans and
specifications so as to achieve such compliance. At the request of the City, Grantee
shall reasonably relocate facilities within technical design constraints where such
relocation will not result in additional cost to Grantee.
#~d. Parental Control. Grantee shall provide a parental control option, trap or
other device to Subscribers requesting the capability of removing objectionable video
Programming from any Cable Television Service or any Premium or Pay-Per-View Channel
not subscribed to that is scrambled or otherwise withheld from any Subscriber. Grantee may
charge for any such devices.
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ebuild Grantee shall provide standby power generati
at +tsthe CableT^' System control ^^^+~~-
Grantee shall maintain
standby power
9. Grantee Support for EG Access and Local Origination.
a. Grantee shall designate Channel capacity on the Basic Cable Television
Service tier for educational and governmental ("EG") programming and for Local Origination
programming. Grantee shall initially designate three (3) Channels; one (1) Education
Channel; one (1) Government Channel, and one (1) Local Origination Channel.
b. In the event Grantee is required by federal law or regulations to change the
Channel number of an EG Channel, Grantee shall provide thirty (30) days advance notice to
the City and its customers. Should Grantee desire to change the Channel number for any
other reason, Grantee shall notify the City of such change and the reason for the change at
least sixty (60) days before the proposed change.
c. Whenever programming, whether of performances, notices or any other
broadcast content, of any EG Channel occupies less than ten (10) hours of programming per
day for six (6) days per week for a continuous period of not less than twelve (12) consecutive
weeks, the City shall permit Grantee to utilize unused Channel capacity of that Channel
under the following conditions:
(1) Any request from Grantee to use any fallow capacity designated for a
EG Channel must be submitted in writing to the City.
(2) The City shall approve the request from Grantee to use fallow Channel
capacity if it finds that: (i) the utilization of the Channel is as represented; (ii) Grantee
has not acted in violation of any of the provisions of the Franchise regarding utilization
of the Channel; and (iii) there are no special circumstances which would justify the
denial or delay of implementation of the use of the Channel. If the City fails to act on
Grantee's request within thirty (30) days, it shall be deemed approved. After approval,
Grantee may continue to utilize the Channel for any other purpose it so chooses,
consistent with the Franchise, until the City reasonably determines that all or a part of
such Channel is needed for EG Programming.
(3) Should the City reasonably determine that all or part of such Channel is
needed for EG Programming, the City may require Grantee to fully or partially
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relinquish Grantee's use of said Channel provided that Grantee shall 6e given not less
than si3c9}-d~yssix (~ months notice to relinquish same.
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d. The EG Channels shall be under the exclusive management and editorial
control of the City. The City shall have sole responsibility for the Programming of the EG
Channel(s) provided by Grantee, including without limitation, the carriage of Programming on
the Channel(s) and the establishment and administration of all rules, regulations and
procedures pertaining to the use and scheduling of the Programming presented over the
Channel(s). The Channel(s) shall be used solely for non-commercial, governmental or
educational Programming. The City may designate a representative, such as an access
corporation, to use and administer said Channels, with all of the attendant rights and
obligations provided to the City hereunder.
e. Grantee shall provide an adequate Local Origination access production studio
equipped with sufficient portable and stationary equipment so as to allow production of
videotaped and live Programming. The Local Origination studio shall be located and
operated within thirty (30) miles of the City. Grantee shall operate and manage the Local
Origination Channel, and shall have editorial control over all Programming on the Local
Origination Channel.
f.
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a. Performance Bond to City. During the term of this Franchise, Grantee
shall file with the City Clerk and maintain in full force and effect a corporate surety bond or
other adequate surety agreement approved by the City Attorney in the amount of Fifty
Thousand Dollars ($50,000.00). The bond or agreement shall be so conditioned that in the
event Grantee shall fail to comply with any one or more of the provisions of the Tustin City
Code or of the Franchise granted to Grantee, then there shall be recoverable jointly and
severally from the principal and surety, any damages or loss, or costs suffered or incurred by
the City as a result thereof, including reasonable attorneys' fees and costs of any action or
proceeding, and including the full amount of any compensation, indemnification, costs of
removal or abandonment of any property or other costs which may be in default, up to the full
principal amount of such bond. Said condition shall be a continuing obligation during the
entire term of the Franchise and thereafter until Grantee shall have satisfied in full any and all
obligations to City, which shall arise out of or pertain to, said Grantee. The surety shall be
licensed in California and maintain a Best's Key Rating Guide (latest edition) Financial Size
category of Vll or better and shall be rated Grade "A" or better.
b. Insurance. Grantee, at its sole cost and expense, for the full term of the
Franchise (and any extension thereof), shall obtain and maintain at minimum all of the
following insurance coverage:
(1) Types of Insurance and Minimum Limits. The coverage required herein
may be satisfied by any combination of specific liability and excess liability policies.
(i) Workers Compensation and Employee Liability Insurance in
conformance with the laws of the State of California for the statutory limits.
(ii) Grantee's vehicles, including owned, non-owned (e.g. owned by
Grantee's employees and used in the course and scope of employment),
leased or hired vehicles, shall each be covered with Automobile Liability
Insurance in the minimum amount of One Million Dollars ($1,000,000.00)
combined single limit per accident for bodily injury and property damage.
(iii) Grantee shall obtain and maintain comprehensive or commercial
General Liability Insurance coverage and shall include, but not be limited to,
coverage for premises operation, explosion and collapse hazard, underground
hazards, contractual insurance, broad form property damage, independent
contractors, and personal injury liability. The limit of such insurance shall be at
least One Million Dollars ($1,000,000.00) combined single limit liability for
personal injury and property damage.
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(iv) City may, by resolution, from time to time, reasonably increase
said insurance to the amounts which other contractors operating within the
public right-of-way in a manner similar to Grantee and operating in the
jurisdiction of City are required to provide so long as said increased coverage is
reasonably available.
(2) The City and its officers and employees shall be named as additionally
insured by endorsement '
eet~e~r~sa#+en-} at no cost to the City.
(3) Within forty-five (45) days from the effective date of this Franchise,
Grantee shall furnish proof to the City that satisfactory policies of insurance described
above are in place issued by companies licensed in California rated Grade "A" or
better and Class VII or better by the latest edition of Best's Key Rating Guide.
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(4) All insurance policies shall provide that in the event of material change,
reduction, cancellation, or non-renewal by the insurance carrier for any reason, not
less than thirty (30) days notice will be given to the City by registered mail of one (1)
copy of a written notice of such intent to cancel or not to renew the coverage. An
authorized agent of such insurance carrier shall provide to the City, on such schedule
as is reasonably requested by the City, a certification that all insurance premiums
have been paid and all coverage are in force. If for any reason Grantee fails to obtain
or keep my of such insurance in force, the City may, but shall not be required to,
obtain such insurance, in which event Grantee shall promptly reimburse the City
premium cost therefor plus one and one-half percent (1 1/2%) monthly interest
thereon until paid.
11. Customer~iee-
a-Service. Grantee shall meet the customer service standards adopted by the
Federal Communications Commission (FCC), the State of California, and any additional
standard mutually agreed upon between Grantee and the City.
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r,.,..__, --..._.. ..... - -- -
12. Indemnification.
a. Grantee shall indemnify and hold harmless City from all damages, penalties,
judgments and liability of any kind, and defend all claims, actions or causes of action arising
as a result of Grantee's operation of the Cable Television System, regardless whether any
act or omission complained of is authorized, allowed, or prohibited by the Franchise, to the
extent such damages, penalties, judgments, claims, actions or causes of action arise out of
or are caused by the act or omission of Grantee, its officers, employees, or agents. Upon
demand of City, made by and through the City Manager, Grantee shall appear in and defend
City, its officers, employees and agents in any legal action, whether judicial, administrative or
otherwise, with respect to which City is entitled to indemnification hereunder.
b. City agrees to indemnify, and hold harmless Grantee, its affiliates and their
respective officers, directors, employees and shareholders from and against any and all
damages penalties, judgments and liability of any kind, and defend all claims, actions or
cause of action arising as a result of the use of the EG access Channels. This indemnity
shall not apply with respect to any Programming provided by Grantee and which is carried on
the EG Channels.
13. Periodic Review of Performance and Quality of Service.
a. At City's sole option, City may hold a public hearing at which Grantee shall be
present and shall participate, to review the performance and quality of Cable Television
Service of the Cable Television System. The reports required herein regarding ~~ "~~r
Se~4aiefs;subscriber complaints, the records of performance tests andt#e opinion s+~ey
repe+~surve s shall be utilized as the basis for review. In addition, any Subscriber may
submit comments or Ge~scomplaints during the review meetings, either orally or in
writing, and these shall be considered.
b. Within thirty (30) days after the conclusion of the public hearing, City may issue
a report with respect to Cable Television System performance and quality of Cable
Television Service. If any noncompliance with the Franchise is found, City may direct
Grantee to correct the noncompliance within a reasonable period of time in accordance with
the provisions of the Enabling Ordinance.
c. Failure of Grantee, after due notice and opportunity to cure, as set forth in the
Enabling Ordinance, to correct the noncompliance shall be considered a breach of the
Franchise, and City may, at its sole discretion, exercise any remedy within the scope of this
Franchise considered appropriate.
14. Privacy. As of the effective date of this Franchise, Grantee shall not
market mailing lists with names and addresses of subscribers unless Grantee has provided
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Subscribers with notice and an opportunity to delete his or her name from the mailing list.
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15. No Recourse Against City. Grantee acknowledges that City would not
have granted this Franchise if it were to be liable for monetary damages for any act
performed in granting it. In general, City and Grantee may pursue any remedy at law or
equity available, including but not limited to specific performance, for the breach of any
provision of this Franchise, except that City, its officials, boards, commissions, agents and
employees, shall not be liable in monetary damages to Grantee, or to any successor in
interest of Grantee, or to any other Person, and Grantee covenants not to sue for monetary
damages or claim any monetary damages based upon any act or omission by the City, its
officials, boards, commissions, agents and employees, in the course of reviewing and
approving this Franchise or in the process of granting this Franchise.
16. Undergrounding and Co-location. In all areas of the City where all electric
utility and communications facilities are underground, the Grantee shall place its cables and
distribution equipment underground. When all existing aerial utilities in any City area are
converted to underground construction, such that both electric and communications utilities
are underground, the Grantee shall replace aerial facilities with underground facilities
concurrently and in cooperation with similar programs of the telephone and power utilities,
provided that Grantee is given reasonable notice and access to the telephone and power
utilities' facilities at the time such are placed underground. All underground wires or cable of
Grantee shall be placed in conduits or other materials approved by the Director of Public
Works. Amplifiers in Grantee's transmission and distribution lines may be placed in
appropriate pedestals provided that approval has been obtained from the Director of Public
Works before excavation. Where conduit facilities are available and co-location of Grantee's
Cable Television System facilities with the facilities of other public utility providers is feasible,
the City may require Grantee to co-locate Grantee's Cable Television System facilities with
such other public utility providers in such available conduit facilities.
17. Acceptance . Within thirty (30) days after the effective date of this
Ordinance, Grantee shall file with City its written, unconditional, non-contingent acceptance
of the Franchise granted by this Ordinance and its agreement to be bound by and comply
with all the requirements hereof. The acceptance shall be signed by a person duly
authorized to act on behalf of Grantee, shall be notarized, and shall have attached thereto a
certified copy of an order by the Board of Directors of Grantee authorizing and directing
execution and filing of the acceptance. An acceptance that constitutes a qualified
acceptance or places other limits or conditions therein shall be deemed to be a nullity. Upon
the failure of Grantee to file its unconditional, non-contingent acceptance of the Franchise
subject to all its terms and conditions within the time period specified above, the Franchise
shall be of no further force or effect and there will not be issued an outstanding cable
television franchise in City to any of the companies or entities named in this Ordinance.
Grantee shall furnish and maintain all bonds and insurance policies required to be furnished
pursuant to the Tustin City Code and this Franchise.
18. Severability. If any Section or provision of this Franchise or any ordinance, law,
or document incorporated herein by reference is held by a court of competent jurisdiction to
be invalid, unconstitutional or unenforceable, such holding shall be confined in its operation
to the Section or provision directly involved in the controversy in which such holding shall
have been rendered and shall not in any way affect the validity of any other Section or
provision hereof. Under such a circumstance, Grantee shall, upon the City's request, meet
and confer with the City to consider amendments to the Franchise to meet the original intent
of the parties, as the circumstances warrant and unless prohibited by law; provided,
however, that Grantee, in its sole and exclusive discretion, is not required to enter an
agreement with the City concerning such an amendment. Both the City and Grantee agree
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to be bound by all terms and conditions of this Franchise except as may be finally
determined to be unenforceable by a Court of competent and appropriate jurisdiction with
proper venue over this Franchise, provided that the City or Grantee need not comply with
any term or condition of this Franchise or the Enabling Ordinance which it is contesting in
good faith by appropriate proceedings.
19. More Favorableroe+~tter-~
a-Conditions. In the event City grants another Franchise for Cable Television
Service, subsequent to the effective date of this Franchise, which, in the opinion of Grantee,
contains material terms or conditions more favorable or less burdensome than those
contained in this Franchise, Grantee shall have the right to require that this Franchise be
amended to incorporate such more favorable or less burdensome terms or conditions in this
Franchise. Upon written request of Grantee, the City and Grantee shall discuss in good faith
such amendments as may be required to this Franchise. For purposes of this Section, the
,~ ~~
phrase material terms or conditions includes, but is not limited to: term of Franchise; area
covered by the Franchise; Franchise Fees; Cable Television System capacity measured in
MHz; number of EG Channels; grants or equipment provided by Grantee to City and public
schools, Drops provided by Grantee at City public buildings and public schools; liquidated
damages, insurance, and performance bonds.
age-e~-N~e+r
20. Remedies.
a Notice of Violation Citesshall provide Grantee with a detailed written notice of
an~Franchise violation upon which it proposes to take action and a ninety (90) day period
within which Grantee may_(~ demonstrate that a violation does not exist or to cure an
alleged violation or U if the nature of the violation prevents correction of the violation within
90 days to initiate a reasonable plan of action to correct such violation (including a projected
date b~which it will be completed) and notify the City of such plan of action.
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proceedings ac,~ainst Grantee only after declaration of default on the grounds set forth in
Section 20.
~+^^,^^^~ ^"^„ 21. Alternative Remedies. Termination of the Franchise shall not
be deemed to be the exclusive remedy for breach of the Franchise. "' ~+"^. +"^ r;^"+~
x-22. Termination of Franchise for Cause. The following material breaches of the
obligations of Grantee under the Franchise shall constitute grounds for termination of the
Franchise by the City Council pursuant to the provisions of the Enabling 9~+se-
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from the following circumstances.
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a. The willful failure to make any payments required under the Franchise and/or to
provide City with required information in a timely manner as provided in the Franchise from
and after thirty (30) days' written notice from the City of Tustin.
b. Any other act or omission by Grantee which materially violates the terms,
conditions or requirements of the Enabling Ordinance or this Franchise or any order,
directive, rule or regulation issued thereunder, and which is not cured within -thirty (30)
calendar days following mailing to the Grantee written notice of the violation or within such
period beyond the thirty (30) calendar days as is reasonable.
c Material and intentional misrepresentation by Grantee to City in information
reauired to be provided under the Franchise.
d Grantee willfully or repeatedly violates any material provision of this Franchise.
e Grantee willfully fails to acquire the insurance required by the Franchise.
f Grantee becomes insolvent or is involuntarily bankrupt or files a voluntary
petition for relief under the Federal Bankruptcy Act or any similar Federal or state law for the
relief of debtors.
g For purposes of this Section the violation of a "material" provision of the
Franchise shall mean defects in Grantee's performance of its obligations under the Franchise
that have pervaded the whole of the understanding between the parties or that are so
essential as to substantial defeat the object that the~arties intended to accomplish.
h For purposes of this Section the term "willfully" in the context of violations of
the Franchise shall mean a violation committed by Grantee in an intentional manner with
disregard for the Franchise and an indifference to its requirements The term "willfully"
excludes ne~liaent violations of the Franchise committed by Grantee.
i For~urposes of this Section the term "repeatedly" in the context of violations of
the Franchise shall mean more than one uncured violation of the same provision of the
Franchise occurringwithin the same three (31 month period and for which City has issued a
notice of default under Section 20.
Ek. Should the Franchise be terminated as provided herein, any resulting transfer
of ownership shall be conditional upon payment of an equitable price for the Franchise to the
Grantee for the Franchise, as set forth in the Cable Act, 47 U.S.C. § 537.
~4-.23. Termination for Non-Renewal. If renewal of the Franchise is denied, or if
termination results from the operation of Section 23 hereof, and City acquires ownership of
the cable television system or effects a transfer of ownership to another party, any such
acquisition or transfer of ownership shall be conditional upon payment of the fair market
value of the Franchise, as set forth in the Cable Act, 47 U.S.C. § 537.
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x:24. Non-Enforcement. Grantee shall not be relieved of any obligation to comply
with any of the provisions of the Franchise or any rule, regulation, requirement or directive
promulgated thereunder by reason of any failure of City or its officers, agents or employees
to enforce prompt compliance.
X25. Franchise as Contract. The Franchise shall be deemed to constitute a
contract between Grantee and City. Grantee shall be deemed to have contractually
committed itself to comply with the terms, conditions and provisions of the Franchise, and
with all rules, orders, regulations and determinations applicable to the Franchise which are
issued, promulgated or made pursuant to the provisions of this Franchise. The Franchise
shall not be construed to constitute a contract of adhesion.
X26. Force Majeure. Any time limits provided for either party's performance
hereunder shall be extended for and throughout such additional period of time as such
performance is prevented or delayed due to strikes, lockouts, acts of government beyond the
party's reasonable control, acts of God, wars, riots, insurrection or abnormal force of
elements or other causes beyond the party's reasonable control; provided, however, that in
no event shall any such extension be deemed to have occurred unless (a) the party whose
performance is delayed shall have given prompt notice to the other party of the occurrence of
the event of delay; and (b) the applicable period or periods of time within which such other
party may exercise its rights hereunder shall be commensurately extended.
X27. Effective Date of Ordinance. This Ordinance shall become effective thirty
(30) days after its passage.
PASSED AND ADOPTED at a regular meeting of the City Council of the City of
Tustin, California, held on the day of , 2000.
ATTEST:
City Clerk
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) §§
CITY OF TUSTIN )
PAMELA STOKER, City Clerk of the City of Tustin,
the whole number of the members of the City Council of
above and foregoing Ordinance No. 1228 was duly and r
regular meeting of the City Council held on the day
second reading and duly passed and adopted at a regular
2000, by the following vote:
Mayor
California, does hereby certify that
the City of Tustin is five; that the
=gularly introduced and read at a
of , 2000, and was given its
meeting held on the day of
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AYES: COUNCILPERSONS:
NOES: COUNCILPERSONS:
ABSENT: COUNCILPERSONS:
PAMELA STOKER
City Clerk
City of Tustin, California
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SECTION 4: NOTICE TO MEDIA ONE.
A copy of this Resolution and Exhibit "A" shall be mailed to Media One by first class
mail.
PASSED AND ADOPTED at a regular meeting of the City Council of the City of Tustin
on the 20t" day of November, 2000.
~N
F Y . THOM S, MAYOR
ATTEST:
~.
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CITY CLERK
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STATE OF CALIFORNIA )
14 COUNTY OF ORANGE )
CITY OF TUSTIN )
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RESOLUTION NO. 00-81
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Pamela Stoker, City Clerk and ex-officio Clerk of the City Council of the City of Tustin,
17 California, does hereby certify that the whole number of the members of the City Council of
the City of Tustin is five; that the above and foregoing Resolution was passed and adopted at
18 a regular meeting of the City Council held on the 20 day of November, 2000 by the following
vote:
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20 COUNCILMEMBER AYES: Thomas, Worley, Doyle, Potts, Saltarelli
COUNCILMEMBER NOES: None
21 COUNCILMEMBER ABSTAINED: None
COU~ICILMEMBER ABSENT: None
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AMELA STOKER
~4 City Clerk
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~TIN MEDIA