CITY COUNCIL AGENDA ITEM
Meeting Date: July 29, 2004
Subject/Title: Review of Comcast’s Compliance with City Ordinances, City
Manager’s 30 Day Demand for Possible Declaration of Continuing Material
Breaches of Franchise, Imposition of Forfeitures, Authorize City Manager to
Issue a 20 Day Notice of Public Hearing to Request Termination, and Set a
Date for that Public Hearing
Submitted By: Dennis Beougher, City Attorney
Review status of compliance by Comcast of California IV, Inc. (“Comcast”)
with City’s regulatory ordinances, City Manager’s 30-day demand letter,
authorize City Manager to issue a 20-day notice of public hearing to request
termination, and set a date for that public hearing. If Council finds
continuing material breaches, then:
1. Approve a resolution declaring continuing material breaches of the
franchise agreements in Resolution 107X, as amended by Resolutions 83-33,
98-119, 98-160, 2408 and 2421 and violations of the related regulatory
ordinances Chapter 5.24.220 (a) and (b) and 5.24.420 (2002), or in the
alternative section 5.24.180 (1968), of the Municipal Code; and
2. Impose forfeitures and provide required 20-day notice for hearing to
terminate the franchise.
3. Set the date of Thursday, August 19, 2004, at 4:00 p.m., for the Public
Hearing to impose forfeitures and terminate the franchise.
On June 23, 2004, the City Manager notified Comcast of apparent violations
of the following sections of the City’s regulatory ordinance:
Ordinance 705 (2002)
1. Section 5.24.220 (a) Compliance With Construction and Technical
2. Section 5.24.220 (b) Additional Specifications.
3. Section 5.24.420 Compliance with Local, State and Federal Laws.
Ordinance 181 (1968)
1. Section 5.24.180 Construction and Installations—General Specifications.
He based the notice on a study entitled “Brentwood System” undertaken at the
City’s request by B&B International and dated March 17, 2004. In his notice,
the City Manager demanded “correction of all violations of these ordinances
in the system” within 30 days.
On June 24, 2004, the City Manager amended the 30-day period to extend from
June 24, 2004.
B&B International will submit an update report to staff and Council to
confirm or deny the conclusion presented in B&B International’s previous
report that sixty-nine percent (69%) of the Comcast system failed to satisfy
applicable NEC, NESC and G-95 standards. If based on a further sampling in
Comcast’s cable system, conducted after the 30-day deadline for corrections
has passed, B&B International concludes that there are numerous and
continuing violations of these same sections of the City’s regulatory
ordinance, then Staff recommends adoption of the attached resolution.
Chapter 5.24.390 of the City’s regulatory ordinance provides that:
The City reserves the right to forfeit and terminate the Franchise and all
rights and privileges of the Grantee hereunder in the event of a substantial
breach of its terms and conditions following the required 30-day cure
period. A substantial breach by the Grantee shall include, but not be
limited to the following:
(1) Violation of any material provision of the Franchise or any material
rule, order or regulation of the City or determination of the City Council.
With respect to a continuing violation:
(c) …the City may place the issue of termination of the Franchise before the
City Council. The City shall cause to be served upon the Grantee, at least
twenty (20) days prior to the date of such meeting, a written notice of
intent to request such termination and the time and place of the meeting.
Public notice shall be given of the meeting and the issue(s) which the
Council is to consider.
Chapter 5.24.330 provides for daily monetary forfeitures for non-compliance
of up to One Hundred Dollars ($100.00) per day, per violation, for each day
that such violation occurs or continues, for
(c) Material failure to comply with applicable construction, operation,
maintenance or installation standards: one hundred dollars ($100) per day,
per violation for each day such failure occurs or continues
(f) any other material violations of the Franchise to be determined by the
City in a public hearing but not specifically noted in this section shall
not exceed One Hundred Dollars ($100.00) per day, per violation for each day
such violation occurs or continues.
Said forfeitures “shall be jointly and severally recoverable from the
Grantee and the surety under the appropriate bond.”
Under section 5.24.180 of Ordinance 181 (1968), the franchise may be
terminated by the Council “after thirty days’ notice of any proposed
termination and public hearing.”
The imposition of forfeitures may increase revenue to the City.
A RESOLUTION OF THE CITY COUNCIL DECLARING A CONTINUING MATERIAL BREACH OF
THE FRANCHISE, IMPOSING FORFEITURES AND ISSUING A 20-DAY NOTICE OF PUBLIC
HEARING FOR TERMINATION
WHEREAS, on June 23 and 24, 2004, the City Manager notified Comcast of
California IV, Inc. (“Comcast”) of apparent violations in Comcast’s cable
system (“System”) of City Ordinance 705 sections 5.24.220 (a), 5.24.220 (b)
(1) (2) and (3) and 5.24.420 or alternatively City Ordinance 181 section
WHEREAS, the notice from the City Manager demanded that Comcast correct all
violations of those provisions in the System within thirty (30) days; and
WHEREAS, the City has received evidence of continuing violations in the
System of those provisions of the City Ordinances after the end of the
NOW, THEREFORE, BE IT RESOLVED that the City hereby finds that there have
been and continue to be material breaches of the franchise agreement and of
City Ordinance 705 sections 5.24.220 (a), 5.24.220 (b) (1) (2) (3), and
5.24.420, or alternatively City Ordinance 181 section 5.24.180, specifically
as referenced in the studies on the System by the City’s technical
consultant, B&B International, dated March 4, March 17, and July 26, 2004.
BE IT FURTHER RESOLVED that, pursuant to Municipal Code section 5.24.390
(c), the City Manager shall cause to be served upon Comcast a written notice
of intent to request termination of the Comcast franchise at a meeting of
the City Council on August 19, 2004, at 4:00 p.m., in the City Council
Chambers located at 734 Third Street, Brentwood, California.
BE IT FURTHER RESOLVED that, pursuant to Municipal Code section 5.24.430 (d)
and/or (f), the City hereby authorizes the City Manager to impose upon and
recover from Comcast and its surety forfeitures of One Hundred Dollars
($100.00) per day for each violation of Municipal Code section 5.24.220 (a)
and (b) (1) (2) and (3) and 5.24.420 (a) beginning on July 30, 2004.
PASSED, APPROVED AND ADOPTED by the City Council of the City of Brentwood at
a regular meeting held on the 29th day of July 2004, by the following vote: