5.20.150 Enforcement and remedies.

(A) Franchise Violation-Notice and Procedures. Before revoking a franchise or issuing an order to assess liquidated damages, the city shall follow the procedures set forth below:

(1) The city shall notify a cable communications system operator in writing of any alleged violation ("violation notice") of a franchise or this chapter. The violation notice shall: (a) identify the violation; (b) direct the cable communications system operator to cure the violation or show cause why the violation cannot or should not be cured; and (c) state the time for the cable communications system operator's response, which shall be at minimum thirty days from the date of issuance of the violation notice, except for violations that present a danger to public health, safety or welfare, in which case the time for response may be shortened;

(2) Within the time period designated for response in the violation notice issue pursuant to subsection (A)(1) of this section, the cable communications system operator shall respond in writing to the city indicating that: (a) the cable communications system operator intends to contest the violation notice and describing all facts relevant to its claim; or (b) the cable communications system operator has completely cured the violation, in which case the cable communications system operator shall provide documentation demonstrating that the violation has been completely cured; or (c) the cable communications system operator has begun to correct the violation, however, the violation cannot be corrected immediately despite the cable communications system operator's continued due diligence, in which case the operator shall describe in detail the steps already taken and operator's proposed plan and time schedule for completely curing the violation. The city may accept, modify, or reject the cable communications system operator's proposed plan and time schedule for curing the violation. Correction of the violation is not complete until all damages and penalties owed are paid in full;

(3) If the cable communications system operator contests the violation notice or the city determines that the cable communications system operator has failed to completely cure the violation, to submit an acceptable plan to cure the violation, or to work diligently to cure the violation, the city shall schedule a hearing before the city manager or the city manager's designee ("violation hearing"). The city shall provide cable communications system operator written notice of the violation hearing at least twenty days prior to the hearing ("hearing notice");

(4) The hearing notice shall indicate: (a) the time and place of the violation hearing; (b) the nature of the violation; and (c) the cable communications system operator's right to present oral and written testimony at an open and public meeting;

(5) At the violation hearing, the city manager or the city manager's designee shall hear and consider evidence from the cable communications system operator, city staff and members of the public regarding the alleged violation. The cable communications system operator shall be given an opportunity to present any and all evidence relating to the alleged violation;

(6) If, based upon the evidence presented at the violation hearing, the city manager or the city manager's designee finds that cable communications system operator has violated its franchise, this chapter or any applicable state or federal law, the city manager or the city manager's designee may issue an order assessing liquidated damages if provided for by the cable communications system operator's franchise, or, subject to subsection (B) of this section and the terms of the cable communications system operator's franchise, revoke or shorten the franchise. The cable communication system operator may appeal the decision to the city council;

(7) If the cable communications system operator files a written appeal to the city council pursuant to subsection (A)(6) of this section, the city council shall hold a public hearing to consider the appeal. Notice of the hearing shall be given to the cable communications system operator at least twenty days prior to the hearing. Such notice shall include the information described in subsection (A)(4) of this section. If, based upon the evidence presented at the public hearing, the city council find that the cable communications system operator has violated its franchise, this chapter, or any applicable state or federal laws, the city council may issue an order assessing liquidated damages if provided for by the cable communications system operators' franchise, or, subject to subsection (B) of this section and the terms of the cable communications system operators' franchise, revoke or shorten the term of the franchise.

(B) Revocation and Termination. The city council may revoke a franchise or reduce the term of a franchise if it finds, after complying with procedures set forth in subsection (A) of this section, that a cable communications system operator has violated this chapter or its franchise or license; has defrauded or attempted to defraud the city or subscribers; or has attempted to evade the requirements of this chapter or its franchise or license. Except as to violations that are impossible to cure, and as provided in subsections (C) and (D) of this section, the franchise may only be revoked if the franchisee (1) was given notice of the default; and (2) thirty days to cure the default; and (3) the franchisee failed to cure the default, or to propose a schedule for curing the default acceptable to the city where it is impossible to cure the default in thirty days. Any revocation proceeding must conducted in accordance with applicable federal and state laws.

(C) Exception for Certain Acts. No opportunity to cure is required for repeated violations (provided that notice was provided pursuant to subsection (A) of this section), and fraud and attempted fraud shall be deemed incurable. Further, the city may declare a franchise forfeited without opportunity to cure where a franchisee (1) voluntarily stops providing service it is required to provide; or (2) transfers the franchise without the prior consent of the city.

(D) Effect of Termination or Forfeiture. Upon termination or forfeiture of a franchise, whether by action of the city as provided in subsection (C) of this section, or by passage of time, the franchisee must stop using the cable communications system for the purposes authorized by the franchise. The city may take possession of some or all of franchisee's facilities, consistent with provisions of applicable law, or require the franchisee or its bonding company to remove some or all of the franchisee's facilities from the city, and restore affected property to its same or better condition. This provision does not permit the city to remove facilities that are used to provide another service for which the franchisee holds a valid franchise issued by the city.

(E) Remedies Cumulative. Remedies provided for under this chapter or under a franchise shall be cumulative. Recovery by the city of any amounts under insurance, the performance bond, the security fund or letter of credit, does not limit a franchisee's duty to indemnify the city; or relieve a franchisee of its franchise obligations or limit the amounts owed to the city.

(F) Liquidated Damages Required in Franchise. A franchise granted pursuant to this chapter shall require liquidated damages, in an amount to be specified in the franchise, for specified breaches of the franchise including but not limited to, failure to commence construction, failure to meet construction plan benchmarks, failure to comply with rebuild plan benchmarks, failure to commence service, and material breach of franchise obligation(s). The franchise shall also provide that the city may withdraw liquidated damages owed from the grantee's security deposit, after complying with the procedures set forth in subsection (A) of this section. Liquidated damages shall commence on that date that performance was due and/or failed, and continue until the grantee demonstrates to the satisfaction of the city that the grantee has fully performed its obligations giving rise to the payment of liquidated damages. Any obligation to pay liquidated damages does not in any way affect the grantee's obligation to pay franchise fees or perform other franchise obligations and such liquidated damages do not constitute franchise fees and are not subject to any limitations on franchise fees contained in 47 U.S.C. § 542(b). Any obligation to pay liquidated damages are not costs of satisfying franchise requirements as provided in 47 C.F.R. § 76.925. A grantee may not pass the cost of any liquidated damages to subscribers through subscriber rates or itemize or otherwise identify on subscriber bills any obligation grantee may have to pay liquidated damages.

(G) Penalties, Fines and Other Monetary Sanctions.

(1) Penalties. In addition to any other remedies provided for in this chapter or otherwise available by law, the city shall have the power to impose civil penalties in the event a grantee violates any provision of this chapter, a franchise, or any regulation lawfully adopted thereunder. The amounts of such penalties shall be based on the following principles:

(a) Penalties shall exceed the financial benefits to a grantee delaying or failing to comply with the applicable requirement;

(b) Even where such benefits are not easily discernible, the penalties shall be high enough to have a significant deterrent effect on a grantee; and

(c) Penalties shall be sufficient to protect the city and other affected parties against loss of revenues resulting from violations.

(2) Other Monetary Sanctions. A franchise shall also provide for liquidated damages and other monetary sanctions, the amounts of which shall also reflect the foregoing principals.

(3) Private Suit Against Grantee.

(a) Any person or organization adversely affected by a violation, or by a pattern and practice of violations, shall have the right to sue a grantee in a court of competent jurisdiction for damages and for injunctive and other relief to require enforcement of the franchise. Organizations shall be entitled to sue on behalf of themselves or their members.

(b) The remedy provided in this chapter shall be in addition to any remedies provided by law.

(c) Except in emergency situations in which immediate relief is required, private litigants shall notify the city attorney not fewer than ten days prior to filing suit. However, suit by the city shall not preempt the private litigant's right to proceed.

(4) Except as otherwise provided in this chapter, any person who violates any provisions of this chapter shall be subject to a monetary penalty in an amount determined pursuant to the principles in subsection (G)(l) of this section.