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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