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CITY COUNCIL AGENDA ITEM NO. 5

Meeting Date: June 14, 2005

Subject/Title: Waive first reading and introduce an Ordinance Amending Chapter 5.24 of the Brentwood Municipal Code relating to Cable Television.

Prepared by: Cynthia Garcia, Interim City Clerk

Submitted by: Donna Landeros, City Manager

RECOMMENDATION
Waive first reading and introduce an Ordinance Amending Chapter 5.24 of the Brentwood Municipal Code relating to Cable Television.

PREVIOUS ACTION
On November 26, 1968, the Brentwood City Council approved Ordinance No. 181, providing for the granting of franchises for community antenna televisions systems and providing terms and conditions for the operations of such community antenna television systems and fees therefore, within the City of Brentwood and prescribing certain penalties, codified as Chapter 5.24 of the Chapter 5.24 of the Brentwood Municipal Code, Community Antenna Televisions Systems.

On March 26, 2002, the City Council adopted Ordinance No. 700 repealing Chapter 5.24 and adopting a new Chapter 5.24 of the Brentwood Municipal Code.

On May 28, 2002, the City Council adopted Ordinance No. 705, repealing Chapter 5.24 and adopting a new Chapter 5.24 of the Brentwood Municipal Code.

BACKGROUND
On June 28, 1983, by Resolution No. 83-33, the City of Brentwood issued to Televents of East County, Inc., a Nevada corporation, a license to operate a cable television system.
On June 23, 1998, by Resolution No. 98-119, the City of Brentwood extended the term of the Cable Television Franchise with Televents of East County, Inc., a Nevada corporation, until September 30, 1998.
On September 8, 1998, by Resolution No. 98-160, the City of Brentwood granted a Cable Television Franchise to Televents of East County, Inc., a Nevada Corporation, until September 30, 2001.
On November 13, 2001, by Resolution No. 2408, the City of Brentwood granted a Cable Television Franchise with Televents of East County, Inc., a Nevada corporation, from October 1, 2001 through September 30, 2003.
On July 23, 2003, Comcast of California IV, Inc., (“Comcast”), a successory-in-interest to Televents of East County, Inc., submitted to the City an application for a renewal of its cable television franchise.
On February 8, 2005, by Resolution No. 2005-35, the City of Brentwood granted a franchise renewal to Comcast of California IV, Inc., and made certain determinations in relation thereto.
The City has conducted hearings and other proceedings relating to the Renewal Proposal.
The Recitals were deemed to be true, correct, and accurate and the Renewal Proposal had been deemed timely filed. The agreement entitled “Franchise Agreement” by and between the City of Brentwood, California and Comcast of California IV, Inc., dated February 1, 2005, was deemed approved and the franchise renewal to Comcast of California IV, Inc., was granted.
Due to the renewal of the franchise with Comcast of California IV, Inc., staff recommends waiving first reading and introducing an Ordinance Amending Chapter 5.24 of the Brentwood Municipal Code relating to Cable Television Franchise.

FISCAL IMPACT
There is no fiscal impact.

Attachment:
Ordinance

ORDINANCE NO.

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD AMENDING CHAPTER 5.24, BRENTWOOD CABLE TELEVISION ORDINANCE

Section 1. Section 5.24.300(a) is amended to read as follows:

“5.24.300 Transfer of Ownership or Control.

(a) No Franchise or Cable System shall be sold, assigned, transferred, leased or disposed of, either in whole or in part, either by involuntary or voluntary sale, merger, consolidation, or otherwise hypothecated in any manner, nor shall title thereto, either legal or equitable, Control thereof, or any right, interest or property therein, pass to or vest in any Person or entity, nor shall Control of or a Controlling Interest in the Franchise or Cable System be changed (hereinafter a “Transfer”) without the prior written consent of the City Council. Every such transfer which occurs without the prior written consent of the City Council shall be a substantial default of a material provision of the Franchise Agreement for which the City may seek remedies as set forth in the Franchise Agreement.”

Section 2. Section 5.24.350(b)(3) is amended to read as follows:

“5.24.350 Required Services and Facilities in New and Renewal Franchises.

(b)(3) at least one (1) specifically designated channel for use by local not-for-profit entities.”

Section 3. Effective Date.

This ordinance shall be in full force and effective thirty (30) days from and after its adoption, and published and posted as required by law.

PASSED, APPROVED AND ADOPTED by the City Council of the City of Brentwood at a regular meeting on the 14th day of June, 2005 by the following vote:

5.24.300 Transfer of ownership or control.

A. No franchise or cable system shall be sold, assigned, transferred, leased or disposed of, either in whole or in part, either by involuntary or voluntary sale, merger, consolidation, or otherwise hypothecated in any manner, nor shall title thereto, either legal or equitable, control thereof, or any right, interest or property therein, pass to or vest in any person or entity, nor shall control of or a controlling interest in the franchise or cable system be changed (hereinafter a “transfer”) without the prior written consent of the city council. Every such transfer which occurs without the prior written consent of the city council shall cause the franchise to be deemed terminated immediately, subject to applicable law.

B. Without the city council’s prior consent, the grantee may (among other things): (1) grant a security interest in, or make a collateral assignment of, the franchise and the cable system for the purposes of securing indebtedness; and (2) transfer or assign the franchise and the cable system to a wholly owned subsidiary of the grantee and such subsidiary may transfer or assign the franchise and the cable system back to the grantee without such consent, providing that such assignment is without any release of liability of the grantee. However, no secured party may take control of the franchise or the cable system without the city council’s prior consent according to this section.

C. The grantee shall promptly notify the city of any actual or proposed transfer of, or acquisition by any other party of control of, or a change in a controlling interest in, the grantee, the franchise or the cable system. A rebuttable presumption that a transfer of control or of a controlling interest has occurred shall arise upon the acquisition or accumulation in any manner by any person or group of persons of fifty and one tenth percent of the voting interests of the grantee or of a controlling interest.

D. Subject to applicable federal law, any proposed assignee, transferee or acquirer of control or a controlling interest in the grantee, the franchise or the cable system must show legal, technical, character and financial qualifications as determined by the city and must agree to comply with all provisions of the franchise. The city shall have one hundred and twenty days to act upon any request for approval of a transfer submitted in writing that contains or is accompanied by all such information as is required in accordance with FCC regulations and by the city. The city shall be deemed to have consented to a proposed transfer if its refusal to consent (including the reasons therefore) is not communicated in writing to the grantee within one hundred and twenty days following receipt of written notice together with all the required information, unless the requesting party and the city agree to an extension of time. The city shall not unreasonably withhold consent to a proposed transfer.

E. The consent or approval of the city to any transfer of control of, or a controlling interest in, the grantee, the franchise or the cable system shall not constitute a waiver or release of the rights of the city in and to the streets, and any transfer shall by its terms, be expressly subordinate to the terms and conditions of the franchise.

F. In the absence of extraordinary circumstances, the city shall not approve any transfer of control of, or a controlling interest in, a franchise prior to substantial completion of construction of the cable system which is proposed to be built under that franchise.

G. In no event shall a transfer of control of, or a controlling interest in, the grantee, franchise or cable system be approved without the successor(s) in interest agreeing in writing to abide by all terms and conditions of the franchise.

H. Notwithstanding this Section 5.24.300 or anything to the contrary in this chapter, all city review of any transfers shall be in accordance with and subject to applicable federal law.

I. This Section 5.24.300 shall not be effective with respect to any transaction of which the city has been provided written notice by grantee as of the effective date of this chapter. (Ord. 705 § 2 (part), 2002)

5.24.350 Required services and facilities in new and renewal franchises.

A. Any franchise granted pursuant to this chapter shall set forth minimum channel capacity, access channel, and system construction obligations. The cable system shall be designed, constructed, operated and maintained to have a bandwidth of eight hundred sixty megahertz.

B. The grantee shall provide emergency alert capability pursuant to FCC rules. The grantee shall cooperate with the city in the use and operation of the emergency alert override system. The cable system shall be designed, constructed, operated and maintained to have the technical capability for two-way communications. The cable system shall be designed, constructed, operated and maintained to provide:

1. At least one specially designated channel for use by local education authorities;

2. At least one specially designated channel for local government uses;

3. At least one specially designated channel for use by local not-for-profit religious entities;

4. At least one specially designated channel for public use under the control of the city, with playback equipment located in facilities designated by the city;

Provided, however, these channels must be available full-time, dedicated to the city, and controlled by it. Except for the equipment required in subsection (4), any studios and associated production equipment required by the franchise agreement shall be located in a mutually agreed upon site to meet the need for educational and local governmental access as noted in (1) and (2). Financial and technical support and replacement and maintenance of equipment of this facility may be specified in the franchise agreement.

C. The grantee shall provide emergency alert capability pursuant to FCC rules. The grantee shall cooperate with the city in the use and operation of the emergency alert override system. (Ord. 705 § 2 (part), 2002)

City Administration
City of Brentwood City Council
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Brentwood, CA 94513
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