Ordinance 2660CITY OF ALAMEDA ORDINANCE NO.
New Series
2660
ESTABLISHING CITY OF ALAMEDA CABLE TELEVISION
BASIC SERVICE TIER RATE REGULATIONS
BE IT ORDAINED by the Council of the City of Alameda
section 1 This Ordinance shall be known as and may be cited
as the City of Alameda Cable Television Basic Service Tier Rate
Regulations.
section 2 . The city of Alameda Cable Television Basic Service
Tier Rate Regulations shall read as follows:
DEFINITIONS.
1.1
1. 2
1. 3
1. 4
1. 5
1. 6
1. 7
1. 8
1. 9
AICPA. AI CPA" means American Institute of Certified
Public Accountants.
Cable Act of 1992. Cable Act of 1992" means the Cable
Television Consumer Protection and Competition Act of
1992 (47 U.C. sec. 521 et seq.
citation, These Regulations may be cited as the "Basic
Service Tier Rate Regulations
"Council.
Council.
City of Alameda City"Council"themeans
"Citv Manaqer."City Manager" means the
Alameda I S city Manager or designee thereof.City
"Company. Company as used herein means any
"Franchisee under the Cable Television Franchise
Ordinance and any "Licensee" under the Cable Television
Licensing Ordinance.
"Customer. "Customer" as used herein means any person or
entity utilizing or desiring to utilize cable televisionservices provided by the Company for consideration.
Customer " also means "customer " and/or "subscriber(s)"
as those terms are used in the Cable Act of 1992 and the
FCC rules and regulations adopted thereunder.
Effective Date. "Effective Date " means the date theBasic Service Rate Regulations become effective
provided for in 47 CFR SS 76.910.
"FCC. "FCC" means the Federal Communications Council.
INCORPORATION OF THE CABLE ACT OF 1992 AND FCC REGULATIONS
PURSUANT THERETO.
Incorporation of FCC Rules and Requlations The Councilhereby incorporates by reference the FCC rules and
regulations implementing the Cable Act of 1992 as part of
these Regulations including, but not limited to , thoserules and regulations regarding subscriber rate
regulation as set forth in 47 CFR sections 76.900-76.985.
Amendments to FCC rules and regulations implementing the
Cable Act of 1992 made subsequent to the Effective Dateof these Regulations shall also be incorporated by
reference as part of these Regulations without further
action on the part of the Council.
Compl iance with the Cable Act of 1992 and FCC Rules arydRequlationsThese Regulations shall at all times fully
comply with the Cable Act of 1992 , as amended, and then-
current FCC rules and regulations implementing the Cable
Act of 1992. In the event any provision of these
Regulations shall be invalidated for any reason or cause
any remaining portions shall be deemed severed therefrom
and thereupon remain in full force and effect thereafter.
DETERMINATION OF MAXIMUM INITIAL PERMITTED RATES FOR REGULATED
CABLE SERVICES AND ACTUAL COST OF REGULATED EQUIPMENT
Materials to be Submitted by Company to the ci tv Manager
In connection with the submission of a completed FCC Form
393, or such other similar form as may be hereafterutilized by the FCC for the determination of maximum
ini tial permitted rates for regulated cable services and
actual cost of regulated equipment , and/ or any other
materials required by the Cable Act of 1992 and FCC rules
and regulations implementing the Cable Act of 1992, theCompany shall submit therewith to the City Manager
information necessary for the Council to ensure that the
rates are consistent with the Cable Act of 1992.
Schedulinq of Review bv Council Upon the submission by
Company of a complete submittal , pursuant to Section 3.the City Manager shall schedule review of Company'
submittal for the purpose of 47 CFR 76.933 on the datesuch submittal is received by the City Manager. The City
Manager is authorized on behalf of Council to toll thethirty (30) day period pursuant to 47 CFR 76.933.
Council's Power to Audit Companv Nothing contained in
these Regulations shall abrogate the Council's powersunder the Alameda Cable Communication Ordinance
(Ordinance 2065), the Alameda Cable Television FranchiseOrdinance (Ordinance 2096), or any other ordinance or
resolution related to the franchising of cable television
service , to conduct its own audit of the financial
records of the Company, or to require such audit to be
performed.
Comment by Interested Parties The Council shall hold a
public hearing providing for the comment of interested
parties on any proposed determination or order of the
Council pursuant to these regulations , provided that nopublic hearing shall be required where the proposed
action before the Council is to receive information and
refer to the City Manager for further report , or to toll
the review period pursuant to 47 CFR 76.93.3, and the
Council makes no order with regard to the setting ofrates, refunds or the imposition of enforcement
sanctions on the Company.
REFUNDS TO CUSTOMERS.
Refunds to Customers All refunds owing by Company to
Customers pursuant to 47 CFR S 76.942 shall be paid by
the Company to Customers by direct payment , credit to the
Customer's bill or a prospective percentage reduction in
rates pursuant to 47 CFR SS 76.942(d) (1) or (2) withinninety (90) days from the date of the implementation of
prospective rate reduction pursuant to 47 CFR
76. 942 (c) (1) or (2).
ENFORCEMENT
Informal Resolution . In the event that the Company shallfailrefuse or neglect to comply fully with the
requirements of these Regulations the City Managershall, except in instances in which time is of the
essence in obtaining the Company I s compliance and/or theci ty Manager determines that such efforts would befutile, attempt informal resolution and rectification of
the Company s non-compliance by informal meeting and/or
telephone conference between the Company and the CityManager. Said informal resolution efforts shall beini tiated by the City Manager's general statement of the
alleged violations under investigation and the general
nature of the evidence then known to the City Manager.
Notwi thstanding the foregoing, the nature and extent of
evidence which may be presented by the City Manager
any subsequent Enforcement Hearing pursuant to section
4 below shall not be limited or abridged by reason of
the presentment or non-presentment or recitation or non-reci tation of such evidence in the course of the informalresolution efforts.
Council Preference for Cure.To the extent reasonablyconsistent with the goal of obtaining compliance with the
Regulations it shall be the policy of the Council to
notify the Company of a possible or alleged violation
and, if said violation is then curable allow a
reasonable time for the Company to cure the possible or
alleged violation. If the Company does so cure , in the
absence of aggravating circumstances , it. shall be the
preference of the Council to abstain from further
enforcement action.
Determination of Probable Cause for Enforcement Hearing
In the event that the informal efforts at resolution areineffecti ve or otherwise inappropriate:
( 1)The City Manager may notice the Company to meet
wi th the City Manager on not less than ten (10)
days notice to determine whether or not probable
cause exists to believe that the Company hasfailed, neglected or refused to comply with the
provisions of these Regulations; or
( 2 )In the sole discretion of the city Manager, theci ty Manager may notice the Company to meet with
the Council on not less than ten (10) days notice
to determine whether or not probable cause exists
to believe that the Company has failed , neglected
or refused to comply with the provisions of theseRegulations.
In either event , the probable cause determination shall
be initiated by the City Manager s general statement ofthe alleged violations under investigation and the
general nature of the evidence then known to the City
Manager and/or the Council. Notwithstanding the
foregoing, the nature and extent of evidence which may bepresented by the city Manager in any subsequent
Enforcement Hearing pursuant to section 5.4 below shall
not be limited or abridged by reason of the presentment
or non-presentment or recitation or non-recitation ofsuch evidence in the course of the probable causedetermination.
Enforcement Hear inqs Upon a determination of the City
Manager pursuant to section 5.3 (1) above , or of the
Council pursuant to section 5.3 (2) above , that probable
cause exists to believe that the Company has failed
neglected or refused to comply with the provisions of
these Regulations , the Council may hold such hearings
conduct such procedures and impose such remedies as are
authorized by these Regulations.
Conduct of Enforcement Hearing The hearing may be
conducted either by the Council at the sole
discretion of the Council , by a hearing officer appointedby the city Manager to conduct the hearing, providedthatin the event that the cumulati ve monetary
sanction(s) sought for any alleged violation(s) equal or
exceed Fifteen Thousand Dollars ($15 000) in any single
proceeding, the Company shall have the option to require
the hearing be conducted by a hearing officer.
Selection of Hearinq Officer If the matter shall be
referred to a hearing officer, the City Manager and the
Company shall each exchange to the other party, not later
than ten (10) business days after said order of referral
by the Council, the names of three (3) qualified , neutral
and unaffiliated potential hearing officers. Thereupon
each party shall have ten (10) business days to striketwo (2) of the other party'named potential hearing
officers and the hearing officer shall be thereafterdetermined, as between the two remaining names , by lot.Any such hearing officer shall be person whose
professional and technical expertise would qualify that
person to act as a neutral , third-party in the capacity
of a hearing officer. The cost of providing quarters for
the hearing, the compensation for the hearing officer, if
any, and the per diem cost of any reporter retained to
record the proceedings shall be borne equally by the
Company and the Council. If Company fails to pay for
their share , Council is authorized to pursue all legal
means to obtain reimbursement. The costs incurred by the
parties for attorney's fees , expert witness fees andother expenses shall be borne solely by the partyincurring the costs.
Burden of Proof at Enforcement Hearinqs . At any hearing
conducted pursuant to section 5.5 above , the City Manager
shall have the burden of establishing the violation of
these Regulations to the satisfaction of the Council
the hearing officer by a preponderance of the evidence.
The Company may present such evidence , consistent with
section 5.8 below , as it may desire.
Process of the Enforcement Hearinq All witnessestestifying at the hearing shall be sworn. Witnessesshall be subject to direct and cross examination.
However , formal rules of evidence applicable to the trial
of civil or criminal proceedings in the trial courts of
this state shall apply to evidence adduced at the hearing
only to the extent that such rules are reasonably
necessary to the preservation of the probative nature ofthe evidence proffered. The provisions of the
Administratiye Procedure Act , commencing at SS 11500 ofthe Government Code or any successor legislati
enactment , shall not be applicable to any such hearing.
The hearing may be continued from time to time.
Recommended Decision of Hearinq Officer If the hearing
is conducted by a hearing officer , the officer shall
upon conclusion of the hearing, prepare a recommended
decision which includes findings of fact and conclusions.
The recommended decision shall be filed with the City
Clerk and mailed to the parties not later than thirty(30) calendar days after conclusion of the hearing. Uponreceipt of such a recommended decision, the City Council
may, without a hearing except as otherwise required
below , either:
( 1)Adopt the recommended decision , including
findings of fact and conclusion submittedby the hearing officer;
(2 )Adopt the findings of fact and
conclusions contained in the recommendeddecision, modify the decision , and adopt
the recommended decision as so revised
(3 )Based upon the record of the hearing,
modify the findings of fact , conclusions
or decision , and adopt the recommendeddecision as so r vised; or
( 4 )Rej ect the recommended decision and
conduct a new hearing before a hearingoff icer provided at Council's expense.
If the Council shall act under either subsections (2),(3) or (4) of this section 5., the Council shall set
forth clearly its rationale and reasoning for so doing.
Findinqs by Council If the hearing is conducted by theci ty Council , upon conclusion of the proceedings , the
Council shall adopt a decision which includes findings of
fact and conclusions.
REMEDIES.
Monetary Sanctions . Monetary sanctions may be imposed bythe Council upon a finding that the Company has notcomplied wi th one or more provisions of theseRegulations. At the conclusion of a noticed hearing
pursuant to section 5.4 above , the Council may impose
monetary sanctions for a violation of an order of the
Council issued pursuant to these Regulations. Each
violation so found , is not to exceed the amount (s) set
forth for the commitment of the applicable violation (s)
as set forth below.
Conscious Violation Conscious Violation is anyfailure, neglect or refusal of the Company to materiallycomply wi th any order issued pursuant to these
Regulations, under such circumstances as to indicate:
( 1)conscious policy
requirements thereof; or
non-compliance with the
(2 )A conscious lack of a policy of compliance with the
requirements thereof. prior finding of violation under section 6.or 6.below forsubstantially the same or similar conduct shall
create a rebuttable presumption of conscious action
or inaction on the part of the Company. For each
such violation, the Council may impose a monetary
sanction in an amount not to exceed Fifty Thousand
Dollars ($50 000) and in an additional like sum for
each month or portion thereof dur ing which the
Company shall fail, neglect or refuse to rectify
said violation beginning thirty (30) days after
written notice thereof from the Council to the
Company.
( 3 )The maximum amount specified above shall be doubledfor the second violation under that section for
substantially the same or similar conduct occurring
within any given twenty-four (24) month period and
shall be quintupled for the third violation under
that section for substantially the same or similar
conduct within any given twenty-four (24) monthperiod.
Inadvertent Subscriber Violation An Inadvertent
Subscriber violation is any failure, neglect or refusal
of the Company to comply with the requirements of anOrder issued under these Regulations as to itsobligations hereunder in relation to one or moresubscribers, including but not limited to refunding or
credi ting monies to subscribers pursuant to section 4.
hereof and/or 47 CFR SS 76.942(d) (1) or (2), under such
circumstances as do not to indicate a pattern of behaviorby the Company in derogation of the referencedrequirement. For each such violation , the Council may
impose a monetary sanction:
( 1)In an amount not to exceed One Hundred Dollars
($100) for each such subscriber and Five Thousand
Dollars ($5,000) in accumulation of the violations
as to all such subscribers resulting from any
substantially continuous behavior , act or omission;
and
(2 )In an additional like sum for each month or portionthereof during which the Company shall failneglect or refuse to rectify said violation
beginning thirty (30) days after written notice
thereof from the Council to the Company.
Inadvertent Company Violation An Inadvertent CompanyViolation is any failure , neglect or refusal of the
Company to materially comply with the requirements of an
Order issued under these Regulations with respect to the
Company in relation to the Council. For each suchviolation, the Council may impose a monetary sanction in
an amount not to exceed Five Thousand Dollars ($5 000)
and in an additional like sum for each month or portion
thereof during which the Company shall fail , neglect or
refuse to rectify said violation beginning thirty (30)
days after written notice thereof from the Council to
the Company.
Alternative Remedies . Neither monetary sanctions imposed
hereunder nor any order issued by the Council related
hereto shall be deemed to bar or otherwise limit the
right of the Council to obtain judicial enforcement ofthe Company I s obligations by means of specific
performance, injunctive relief , mandate or other remedies
at law or in equity, other than monetary damages.
Temporary Stay of Remedies Application of the remedies
provided herein shall be stayed for the period of time
during which any order of the Council pursuant to these
regulations is under appeal by - the Company to the FCC
pursuant to 47 CFR 76.944.
Section This ordinance shall be in full force and
effect from and after the expiration of thirty (30) days from the
date of its final passage.
Attest:
:u1 4 . ;hltt
ty Clerk
I, the undersigned , hereby certify that the foregoing Ordinance was
duly and regularly adopted and passed by the Council of the City of
Alameda in regular meeting assembled on the 1st day of,
March , 1994 by the following vote to wit:
NOES:
Councilmembers Appezzato, Lucas, Roth and
President wi throw - 4.
None.
AYES:
ABSENT:Councilman Arnerich - 1. (Absent from the dais)
ABSTENTIONS:None.
IN WITNESS , WHEREOF, I have hereunto set my hand and affixed the
official seal of said City this 2nd of March , 1994
I?, :bL?
Diane B. Felsch, city Clerkci ty of Alameda