§ 90-343. Increase in franchisee fees—Arbitration.

The amount of the franchise fees prescribed by section 90-337, above, has been established pursuant to limitations set forth in state law (Government Code § 53066) and regulations of the FCC (47 CFR 76.31).

In the event the above described limitations upon the amount of franchise fees should, during the term of any franchise issued pursuant to the provisions of this article, be increased or eliminated, the franchisee, upon request by the commission, shall enter into negotiations with the cable television commission for the purpose of formulating a mutually agreeable increase in the franchise fees prescribed by section 90-337, above.

Any agreement relating to such an increase shall be embodied in a written contract between the commission and franchisee, which shall be deemed to amend section 90-337, above, respecting the amount of the fees. If within 90 calendar days following the date of request by the commission for negotiations, mutual agreement has not been reached respecting an amendment of the provisions of section 90-337, above, increasing the fees, the directors of the commission may cause written notice of its request to arbitrate to be mailed to each concerned franchisee and the county and cities. The notice shall specifically identify the amount of increase in fees which the board desires to submit to arbitration, and shall describe the nature and amount of uncompensated costs which the commission, county and cities are incurring or desire to incur in administering the franchise or franchises and promoting, assisting and regulating the various types of access use.

The arbitration panel shall be selected, the hearing scheduled within the time prescribed, notice given, the hearing conducted, decision made and costs divided in the manner prescribed by sections 90-469 through 90-474, inclusive, in subdivision III of division 5. Parties to the arbitration proceeding may include each franchisee who would be affected by an amendment of section 90-337, above, the commission, the county, and the cities. The questions which may be submitted to the arbitration panel and jurisdiction of the panel shall be limited to:

a.

The interpretation of the provisions of the franchise documents solely in relation to the determination required by subdivision "b" below; and

b.

The amount, if any, by which the franchise fees prescribed by section 90-337, above, may be increased.

The arbitration panel shall authorize an increase in the franchise fees by an amount which the panel finds is justified by actual (including past uncompensated) or proposed costs incurred by the commission, county or cities for administering each franchise issued pursuant to the provisions of this article and promoting, assisting and financing any types of community use proposed pursuant to the provisions of sections 90-195 through 90-199 in subdivision I or provided pursuant to section 90-310 in subdivision III, provided that the annual franchise fee shall under no circumstances exceed the maximum permissible percentage per year of a franchisee's annual gross revenues under applicable federal or state law. In the event more than one franchise is issued pursuant to the provisions of this article, the arbitration panel shall establish such an amount with respect to each franchisee. Any increase or increases ordered by the arbitration panel shall be deemed to amend the provisions of section 90-337, above, respecting the amount of the fees. The county and cities shall be authorized to amend section 90-337, above, by increasing the franchise fees by any amounts authorized under the decision of the arbitration panel.

Negotiations and arbitration proceedings pursuant to this section may be initiated by the commission not more frequently than once each year during the remainder of the term of any franchise issued pursuant to the provisions of this article following the increase of or elimination of the statutory and regulatory limitations upon the amount of franchise fees which may be charged under state and federal law.

The arbitration award pursuant to this section may be judicially enforced, shall be final, binding, and conclusive upon the parties, and shall not be subject to judicial review or vacation except on grounds set forth in Code of Civil Procedure § 1286.2.

(Ord. No. 97-12, § 2(5.50.614), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)