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CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
From: JAMES F. PENMAN
City Attorney
Subject: Ordinance amending in its entirety Title 14,
Chapter 14.08 of the City of San Bernardino Municipal
Code regulating cable, video, and telecommunications
service providers.
Dept: CITY ATIORNEY
Date: February 7, 2007
Synopsis of Previous Council Action:
Legislative Review Committee heard this item at the February 6,2007 meeting and
approved it to go to the full council.
Recommended motion:
Adopt Ordinance:
Waive further reading and layover for final adoption.
i.?~
S' ature
Contact person: Richard Luczak
Phone:
5355
Supporting data attached: Staff ReDort
Ward:
All
FUNDING REQUIREMENTS: Amount:
Source:
Finance:
Council Notes:
Agenda Item No.
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STAFF REPORT
Council Meeting Date: February 20. 2007
TO: Mayor and Common Council
FROM: James F. Penman, City Attorney
DATE: February 7, 2007
AGENDA ITEM: Ordinance amending in its entirety Title 14, Chapter 14.08 of the City of San
Bernardino Municipal Code regulating cable, video, and telecommunications
service providers.
The City of San Bernardino has an outdated municipal code section dealing with cable
service providers which does not reflect the current technology. The proposed amendment will
fill in the existing gaps in definitions and will also regulate telecommunication services as well
as cable services. The amendment will also bring the City of San Bernardino into compliance
with certain state requirements and will allow the City to collect revenue exclusively to support
its public, educational, and govemmental access channel. This item was heard by the Legislative
Review Committee on February 6, 2007 and was approved to move forward to the full Council.
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ORDINANCE NO.
AN ORDINANCE OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO AMENDING IN ITS ENTIRETY TITLE 14, CHAPTER 14.08 OF THE CITY OF
SAN BERNARDINO MUNICIPAL CODE REGULATING CABLE, VIDEO, AND
TELECOMMUNICATIONS SERVICE PROVIDERS.
NOW, THEREFORE, THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO DO ORDAIN AS FOLLOWS:
SECTION 1. Title 14, chapter 14.08, of the City of San Bernardino Municipal Code is
hereby amended in its entirety to read as follows:
TITLE 14, CHAPTER 14.08. CABLE, VIDEO AND TELECOMMUNICATIONS SERVICE
PROVIDERS
ARTICLE 1. GENERAL PROVISIONS
14.08.01
Short title
14.08.02
Authority
14.08.03
Defined Terms and Phrases
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ARTICLE II. PROCEDURES FOR GRANTING. RENEWING. AND TRANSFERRING
FRANCHISES FOR CABLE SYSTEMS
14.08.04 Franchise required to operate a cable system
14.08.05 City grants of cable franchises
14.08.06 Franchise duration and renewal
14.08.Q7 Limitations of franchise
14.08.08 Rights reserved to the City
14.08.09 Transfers and assignments
14.08.10 Franchise area; annexations
14.08.11 Application for new franchise; contents
14.08.12 Franchise approval
14.08.13 Franchise renewal
e " 14.08.14 Multiple franchises
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14.08.15
14.08.16
14.08.17
Franchise application processing costs
Franchise fee for cable services
Contents of cable television franchise agreement
ARTICLE III. OPEN VIDEO SYSTEMS
14.08.18
Applicability
14.08.19
14.08.20
14.08.21
Application required
Review of application
Agreement required
ARTICLE IV. OTHER VIDEO AND TELECOMMUNICATIONS SERVICES AND
SYSTEMS
14.08.22
14.08.23
14.08.24
14.08.25
Other multichannel video programming distributors
Video providers-registration; customer service standards
Telecommunications service provided by telephone corporations
Public, educational, and governmental support fee (PEG fee) and requirement to
provide PEG channels
ARTICLE V. DEFINITIONS
14.08.26
Defined terms and phrases
ARTICLE VI. VIOLATIONS: ENFORCEMENT
14.08.27
Violations; Enforcement
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ARTICLE 1. GENERAL PROVISIONS
14.08.01.
SHORT TITLE.
This chapter is known and may be cited as the "Cable, Video, and Telecommunications
Service Providers Ordinance" of the City of San Bernardino.
14.08.02.
AUTHORITY.
This chapter is enacted by the City of San Bernardino pursuant to the Communications .
Act, the City's police powers under its Charter, its authority to control the use of the public
rights-of-way within the City, and all other applicable laws.
14.08.03
DEFINED TERMS AND PHRASES
Various terms and phrases used in this chapter are defined below in Section 14.08.26 of
Article V.
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ARTICLE II. PROCEDURES FOR GRANTING. RENEWING. AND TRANSFERRING
CABLE SYSTEMS FRANCHISES
14.08.04.
FRANCHISE REQUIRED.
It is unlawful for any person to construct, install, maintain, or operate a cable television
system within any street or public way in the City without first obtaining a franchise under the
provisions of this Article II or, if applicable, under the provisions of the Digital Infrastructure
and Video Competition Act of 2006; provided, however, that any cable operator authorized to
provide cable service under a franchise granted by the City prior to the effective date of this
chapter may continue to exercise that authority until the expiration or termination of that
franchise.
14.08.05.
CITY GRANTS OF CABLE FRANCHISES.
Subject to applicable law, the City may by ordinance or resolution grant a franchise to
any person, whether or not operating under an existing franchise, or who elects to provide cable
service pursuant to the provisions of this chapter. The franchise shall be subj ect to all ordinances
and regulations of general application now in effect or subsequently enacted, including, without
limitation, those related to encroachment permits, business licenses, zoning, and building.
14.08.06.
FRANCHISE DURATION AND RENEWAL.
(a) The term of the franchise or of any franchise renewal shall be established in the
franchise agreement.
(b) A franchise may be renewed by the City upon application of the Grantee pursuant
to procedures established by the City, subject to applicable federal and state law. In the event the
City does not establish such renewal procedures, the franchise renewal procedures set forth in
federal law shall apply.
14.08.07.
LIMITATIONS OF FRANCHISE.
(a)
A franchise granted under this chapter shall be nonexclusive.
(b) The grant of a franchise, right, or license to use public rights-of-way for purposes
of providing cable service shall not be construed as a right or license to use such public rights-of-
way for any other purpose.
(c) Any right or privilege claimed by a Grantee under a franchise in public rights-of-
way or other public property shall be subordinate to any prior or subsequent lawful occupancy or
use thereof, or easement therein, by the City or other governmental entity.
(d) A franchise granted under this chapter shall not relieve a Grantee of any
obligation to obtain pole space from any City department, utility company, or others maintaining
poles in the public rights-of-way.
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14.08.08.
RIGHTS RESERVED TO THE CITY.
(a) Subject to any restrictions that are mandated by state or federal law, neither the
granting of any franchise nor any provisions of this chapter shall be construed to preclude the
City from granting additional franchises.
(b) By its acceptance of a franchise, a Grantee agrees to comply with all lawful
ordinances and regulations of general application now in effect or subsequently enacted;
provided, however, that such ordinances and regulations shall not materially affect Grantee's
rights or obligations under the franchise.
(c) Neither the granting of a franchise, nor any provlSlons of this chapter, shall
constitute a waiver or bar to the City's lawful exercise of any governmental right or power.
(d) This chapter shall not be construed to impair or affect, in any way, the right of the
City to acquire the Grantee's property through the exercise of the power of eminent domain, in
accordance with applicable law.
(e) The Mayor and Common Council may do all things necessary in the exercise of
its jurisdiction under this chapter and may determine any question of fact that may arise during
the term of any franchise granted under this chapter.
(I) Any right or power in, or duty imposed upon any officer, employee, department,
or board of the City shall be subject to transfer by the City to any other officer, employee,
department, or board of the City.
14.08.09.
TRANSFERS AND ASSIGNMENTS.
(a) Grantee may not sell, transfer, lease, assign, sublet, or dispose of, in whole or in
part, either by forced or involuntary sale, or by ordinary sale, contract, consolidation, or
otherwise, the franchise or any of the rights or privileges therein granted, without the prior
written consent of the Mayor and Common Council. Any attempt to sell, transfer, lease, assign,
or otherwise dispose of the franchise without the written consent of the Mayor and Common
Council is null and void. The granting of a security interest in any assets of the Grantee, or any
mortgage or other hypothecation, will not be deemed a transfer for the purposes of this section.
(b) The requirements of paragraph (a) of this section apply to any change in control
of Grantee. The word "control" as used herein is not limited to the ownership of major
stockholder or partnership interests, but includes actual working control in whatever manner
exercised. If Grantee is a partnership or a corporation, prior authorization of the City is required
where ownership or control of25 % or more of the partnership interests or of the voting stock of
the corporation, or any company in the tier of companies controlling the Grantee, whether
directly or indirectly, is acquired by a person or a group of persons acting in concert, none of
whom, individually or collectively, owns or controls those partnership interests or that voting
stock of the Grantee, or Grantee's upper tier of controlling companies, as of the effective date of
the franchise.
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(c) Unless precluded by federal law, Grantee must give prior written notice to the
City of any proposed foreclosure or judicial sale of all or a substantial part of the Grantee's
franchise property. That notification will be considered by the City as notice that a change in
control of ownership ofthe franchise will take place, and the provisions of this section that
require the prior written consent ofthe Mayor and Common Council to that change in control of
ownership will apply.
(d) For the purpose of determining whether it will consent to an acquisition, transfer,
or change in control, the City may inquire about the qualifications of the prospective transferee
or controlling party, and Grantee must assist the City in that inquiry. In seeking the City's
consent to any change of ownership or control, Grantee or the proposed transferee, or both, must
complete Federal Communications Commission Form 394 or its equivalent. This application
must be submitted to the City not less than 120 days prior to the proposed date of transfer. The
transferee must establish that it possesses the legal, financial, and technical capability to remedy
all then-existing defaults and deficiencies, and during the remaining term of the franchise, to
operate and maintain the cable system and to comply with all franchise requirements. If the
legal, financial, and technical qualifications of the proposed transferee are determined to be
satisfactory, then the City will consent to the transfer of the franchise.
( e) Any financial institution holding a pledge of Grantee's assets to secure the
advance of money for the construction or operation of the franchise property has the right to
notify the City that it, or a designee satisfactory to the City, will take control of and operate the
cable television system upon Grantee's default in its financial obligations. Further, that financial
institution must also submit a plan for such operation within 90 days after assuming control. The
plan must insure continued service and compliance with all franchise requirements during the
period that the financial institution will exercise control over the system. The financial
institution may not exercise control over the system for a period exceeding one year unless
authorized by the City, in its sole discretion, and during that period it will have the right to
petition the City to transfer the franchise to another Grantee.
(f) Unless prohibited by applicable law, Grantee must reimburse the City for the
City's reasonable review and processing expenses incurred in connection with any transfer or
change in control of the franchise, as provided for in Section 14.08.15.
14.08.10.
FRANCHISE SERVICE AREA; ANNEXATIONS.
(a)
The franchise service area shall be established in the franchise agreement.
(b) Territory annexed to the City that is not within the service area of a franchised or
licensed cable operator at the time of annexation may be included within the franchise service
area of an incumbent cable operator, as determined by Mayor and Common Council resolution.
(c) Territory annexed to the City that is included within the service area of a franchise
or license issued bya local franchising authority other than the City is subject to the following
provisions:
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(I) If the franchisee or licensee has not commenced construction or
installation of a cable system before the annexation becomes effective, then all rights acquired by
a cable operator under that franchise or license will terminate by operation oflaw.
(2) If the franchisee or licensee has commenced construction or installation of
a cable system before the annexation becomes effective, then that franchisee or licensee may
continue to provide cable service to the annexed territory in accordance with the terms and
conditions of the existing franchise or license, provided that all obligations thereunder, including
the timely payment of franchise fees and PEG support fees, if any, shall be due and owing to the
City by operation oflaw.
14.08.11.
APPLICATION FOR NEW FRANCHISE; CONTENTS.
(a) An applications for the grant of a new franchise may be submitted by any person
pursuant to the requirements of this chapter and subject to the terms of the City's schedule of
fees, as such schedule may from time to time be amended. The City may, by advertisement or
any other means, solicit applications for a new franchise by issuing a request for proposals.
(b) An application for a new franchise to construct, install, operate, or maintain a
cable system in the City shall be filed with the City Clerk and shall be on forms prescribed by the
City. The City reserves the right to waive all application formalities where the City determines
that the best interests of the City would be served by such waiver.
(c) Unless waived in writing by the City, all applications for a franchise shall contain
the following:
(1) The name, address, and telephone number of the applicant.
(2) A detailed statement concerning the applicant's business entity, including,
but not limited to, the following:
A. The names and business addresses of all officers and directors.
B. The names and business addresses of all persons having an
ownership interest of 5% or more in the applicant and the respective ownership interest of each
such person.
C. The names and addresses of any parent or subsidiary of the
applicant, namely, any other business entity owning or controlling applicant in whole or in part,
or owned or controlled in whole or in part by the applicant, and a statement describing the
business of any such parent or subsidiary, including but not limited to cable systems owned or
controlled by the parent or subsidiary, and the geographic areas served.
(3) A description of the applicant's previous experience in providing cable
service or similar communications services.
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(4) A detailed financial statement of the applicant, certified by an independent
certified public accountant, for the fiscal year preceding the date of the application. The City
may require a statement from an independent certified public accountant, or a recognized lending
institution, certifying that the applicant has sufficient financial resources available to construct
and operate the proposed cable system in the City.
(5) A detailed pro forma financial plan for the operation of the cable system
during the term of the proposed franchise, in a format prescribed by the City.
(6) A description of any cable system franchises awarded to the applicant, its'
parent or subsidiary, including the location and term of these franchises, the status of their
completion, the total cost of completion of each cable system, and the amount of applicant's and
its parent's or subsidiary's resources committed to the completion ofthese cable systems.
(7) A detailed description of the applicant's proposed plan of operation which
shall include, but not be limited to, the following:
A A detailed map that describes all areas of the City proposed to be
served, and a proposed schedule for the construction of the cable system and the installation of
all equipment necessary to become operational throughout the area to be served;
B. A schedule setting forth all proposed classifications of rates and
charges to be paid by subscribers, including installation and other service charges.
C.
A description of the equipment and operational standards proposed
by the applicant.
D. A description ofthe applicant's plan to provide public, educational
and governmental access channel capacity, services, facilities, and equipment, including a
description of the method to be used by the applicant in reserving and inserting PEG
programming.
E. A description of the applicant's plans to address the City's
institutional network needs.
(8) A copy of any existing agreement covering the proposed franchise service
area between the applicant and local telephone or electric utilities that provides for applicant's
use of any facilities of that utility, including but not limited to poles, lines or conduits.
(9) Any additional information that the City deems to be reasonably necessary
to evaluate the applicant's qualifications.
(d) The applicant's failure to comply with the requirements of this section may be
grounds for rejection of an application at the City's sole discretion.
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14.08.12.
FRANCHISE APPROVAL.
(a) The City may make such investigation as it deems necessary to determine the
ability of an applicant to satisfactorily perform its obligations under a franchise. The applicant
shall timely furnish to the City such additional information as the City may request.
(b) Upon receipt of a complete application, and following the City's investigation and
review of that application, the City Manager shall prepare a report and make recommendations to
the Mayor and Common Council concerning the application.
(c) The Mayor and Common Council shall hold a noticed public hearing on the
application. Written notice shall be given to the applicant at least 10 days prior to the hearing by
U.S. mail, postage prepaid, and by publication once in a newspaper of general circulation within
the City. Within 60 days after the close of the hearing, unless an extension of time is mutually
agreed upon by the City and the applicant, the Mayor and Common Council shall make a written
decision on whether the franchise should be granted, and if granted, subject to what conditions.
(d) In determining whether to grant an application for a new franchise, the City may
consider all factors that affect the interests of the community including, but not limited to, the
quality of the proposed cable service, the areas to be served, the rates to be charged, the amount
of franchise fees to be generated, the experience, character, background, performance history,
and financial responsibility of an applicant (and its management and owners), the technical
performance and quality of equipment, the applicant's willingness and ability to meet
construction requirements, and all other matters deemed relevant by the City to protect the
interests of the City and the public.
(e) The decision of the Mayor and Common Council concerning the granting or
denial of a franchise pursuant to this chapter shall be final.
14.08.13.
FRANCHISE RENEWAL.
Franchise renewals shall be processed in accordance with then-applicable law and with
the renewal terms, if any, of the franchise agreement. The City and Grantee, by mutual consent,
may enter into renewal negotiations at any time during the term of the franchise.
14.08.14.
MULTIPLE FRANCHISES.
(a) In its sole discretion, the City may limit the number of franchises granted at any
one time based upon its consideration of all appropriate criteria, which shall include but not be
limited to the following:
(I) The capability of the public rights-of-way to accommodate the facilities of
any proposed additional cable systems.
(2) The advantages and disadvantages that may result from additional cable
system competition.
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(b) The City may require that a Grantee be responsible for its own underground
trenching and any associated costs if, in the City's opinion, the public rights-of-way in any area
cannot reasonably accommodate the additional cables, machinery, equipment, or other facilities
contemplated in connection with the construction, maintenance, and operation of a proposed new
cable system.
14.08.15.
FRANCHISE APPLICATION PROCESSING COSTS.
(a) In connection with any application for a new franchise, a franchise modification
requesting entry into a new area of the City, a franchise renewal, or a franchise transfer,
applicant shall pay an application fee deposit equal to the City's estimated costs in processing
and reviewing the application, as such costs may be established from time to time by resolution
of the Mayor and Common Council. Such costs shall include all estimated administrative,
consultant, noticing, and document preparation expenses. No application shall be considered
without payment of the application fee deposit. If the application fee deposit is less than the
City's actual costs, the applicant shall pay such additional costs to the City within 30 days after
written notice from the City that such additional payment is required. If payment of such amount
is not made within such time, the City shall cease all further proceedings related to the
application. If actual costs are less than the application fee deposit, the remaining balance will
be refunded to the applicant.
(b) Application fee deposits are exclusive of an applicant's or Grantee's obligation to
pay other costs and fees required by this chapter or the franchise agreement, including without
e limitation construction inspection fees, permit fees, and franchise fees.
14.08.16.
FRANCHISE FEE FOR CABLE SERVICES.
(a) In consideration for the privilege to use the City's public rights-of-way in the
operation of its cable system, and because the City will incur costs and expenses in regulating
and administering the franchise, Grantee shall pay to the City a franchise fee in an amount equal
to five percent (5%) of Grantee's gross revenues, unless a greater amount is authorized by
applicable law.
(b) The franchise fee shall be paid quarterly and must be received by the City not
later than 45 days after the close of each calendar quarter.
(c) Concurrently with the payment of franchise fees, Grantee shall provide to the City
a statement verified by a financial officer of Grantee that sets forth gross revenues for the
previous calendar quarter, listing every revenue source and describing gross revenue
computations.
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(d) On an annual basis, Grantee shall file a statement certified by a financial officer
that sets forth alI gross revenues for the previous calendar year, listing every revenue source and
describing gross revenue computations. If the City has any objections relating to that report, the
City shall have 30 days to notify Grantee and to request additional information. Grantee shall
have 30 days to provide additional information to resolve any objections to the City's
satisfaction.
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(e) At any time during the term of a franchise, the City has the right to conduct, or
require Grantee to obtain, an independent audit by certified public accountants approved by the
City of all records of Grantee related to gross revenue reports or computations. Grantee shall
pay all costs of that audit. Grantee shall cooperate with any such audit and shall make readily
available all information requested by the City without regard as to whether information is
contained in "documents" (as defined in the Public Records Act) or other media in the
possession or under the control of Grantee. The certified public accountants shall be required to
certify in the audit that the Grantee is in compliance with this chapter and the franchise
agreement. Grantee shall maintain in a readily accessible place all relevant financial records for
a minimum of four years after any payment period that such records pertain to.
(f) If any franchise fee payment is not made by the due date, interest shall be charged
monthly at a rate of one percent (1 %). In addition, if any franchise fee is not paid in full within
15 days after Grantee's receipt of notice from the City concerning the delinquency of that
payment, a late fee in amount of five percent (5%) of the delinquent amount shall be assessed.
14.08.17.
CONTENTS OF CABLE TELEVISION FRANCHISE AGREEMENTS
(a) The provisions of a franchise agreement for the operation of a cable television
system may relate to or include without limitation the following subject matters:
(I) The geographical area, duration, and nonexclusive nature of the franchise.
(2) The applicable franchise fee to be paid to the City, including the
percentage amount, the method of computation, and the time for payment.
(3) Requirements relating to compliance with and implementation of state and
federal laws and regulations pertaining to the operation of the cable television system.
(4) Requirements relating to the construction, upgrade, or rebuild of the cable
television system, as well as the provision of special services, such as outlets for public
buildings, emergency alert capability, and parental control devices.
(5) Requirements relating to the maintenance of a performance bond, a
security fund, a letter of credit, or similar assurances as determined by the City to secure the
performance of the Grantee's obligations under the franchise agreement.
(6) Requirements relating to liability insurance, workers' compensation
insurance, and indemnification.
(7) Requirements relating to consumer protection and customer service
standards, including the resolution of subscriber complaints and disputes and the protection of
subscribers' privacy rights, which requirements may include, without limitation, compliance
with the statutes, rules and regulations set forth below in Section 14.08.23.
(8) Requirements relating to the Grantee's support of local cable usage,
including the provision of public, educational, or governmental access channels, the coverage of
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public meetings and special events, interconnection requirements, and financial support for the
required access channel facilities and activities that is consistent with this Title.
(9) Requirements relating to construction, operation, and maintenance of the
cable system within the public rights-of-way, including compliance with all applicable building
codes and permit requirements, the abandonment, removal, or relocation of facilities, and
compliance with FCC technical standards.
(10) Requirements relating to recordkeeping, accounting procedures, reporting,
periodic audits, performance reviews, and the inspection of Grantee's books and records.
(11) Acts or omissions constituting material breaches of or defaults under the
franchise agreement, and the applicable penalties or remedies for those breaches or defaults,
including fines, penalties, liquidated damages, suspension, revocation and termination.
(12) Requirements relating to the sale, assignment, or other transfer or change
in control of the franchise.
(13) Grantee's obligation to maintain continuity of service and to authorize,
under certain specified circumstances, the City's operation and management of the cable system.
(14) Such additional requirements, conditions, policies, and procedures as may
be mutually agreed upon by the parties to the franchise agreement and that will, in the judgment
of the City, best serve the public interest and protect the public health, welfare, and safety.
(b) If there is any conflict or inconsistency between the provisions of a franchise
agreement authorized by the Mayor and Common Council and provisions of this Section
14.08.17, the provisions of the franchise agreement will control.
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ARTICLE III. OPEN VIDEO SYSTEMS
14.08.18.
APPLICABILITY.
The provisions of this Article III apply to an open video system operator that intends to
deliver video programming to consumers in the City over an open video system.
14.08.19.
APPLICATION REQUIRED.
(a) Before commencing the delivery of video programming services to consumers in
the City over an open video system, the open video system operator must file an application with
the City. That application must include or be accompanied by the following, as applicable:
(1) The identity of the applicant, including all affiliates of the applicant.
(2) Copies of FCC Form 1275, all "Notices of Intent" filed under 47 CFR
S 76.1503(b)(I), and the Order of the FCC, all of which relate to certification of the applicant to
operate an open video system in accordance with Section 653(a)(1) of the Communications Act
and the FCC's rules.
(3) The area or areas of the City that the applicant desires to serve.
(4) A description of the open video system services that will be offered by the
applicant over its existing or proposed facilities.
(5) A description of the transmission medium that will be used by the
applicant to deliver the open video system services.
(6) Information in sufficient detail to establish the applicant's technical
qualifications, experience, and expertise regarding the ownership and operation of the open video
system described in the application.
(7) Financial statements prepared in accordance with generally accepted
accounting principles that demonstrate the applicant's financial ability to:
a. Construct, operate, maintain and remove any new physical plant
that is proposed to be constructed in the City.
b. Comply with the City's PEG access channel requirements as
specified below in Section 14.08.21 (b)(4).
c. Comply with the City's requirement that gross revenue fees be
paid in the sum of5 percent (5%), as specified below in Section 14.08.21 (b)(2).
(8) An accurate map showing the location of any existing telecommunications
facilities in the City that the applicant intends to use, to purchase, or to lease.
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(9) If the applicant's operation of the open video system will require the
construction of new physical plant in the City, the following additionlll information must be
provided:
A. A preliminary construction schedule and completion dates.
B. Preliminary engineering plans, specifications, and a network map
of any new facilities to be constructed in the City, in sufficient detail to identify:
(i) The location and route requested for the applicant's
proposed facilities.
(ii) The locations, if any, for interconnection with the facilities
of other telecommunications service providers.
(iii) The specific structures, improvements, facilities, and
obstructions, if any, that the applicant proposes to remove or relocate on a temporary or
permanent basis.
C. The applicant's statement that, in constructing any new physical
plant, the applicant will comply with all applicable ordinances, rules, and regulations of the City,
including the payment of all required permit and processing fees.
(10) The information and documentation that is required to be submitted to the
City by a video provider, as specified below in paragraph (b) of Section 14.08.23.
(11) Such additional information as may be required by the City Manager.
(12) A nonrefundable filing fee in an amount established by resolution of the
Mayor and Common Council.
(b) If any item of information specified above in paragraph (a) is determined under
paramount federal or state law to be unlawful, the City Manager is authorized to waive the
requirement that such information be included in the application.
14.08.20.
REVIEW OF APPLICATION.
Within 30 days after receipt ofan application filed under Section 14.08.19 that is deemed
to be complete, the City Manager will give written notice to the applicant of the City's intent to
negotiate an agreement setting forth the terms and conditions under which the operation of the
proposed open video system will be authorized by the City. The commencement of those
negotiations will be on a date that is mutually acceptable to the City and to the applicant.
14.08.21.
AGREEMENT REQUIRED.
(a) No video programming services may be provided in the City by an open video
system operator unless the operator and the City have executed a written agreement, which may
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be designated as a franchise, setting forth the tenns and conditions under which the operation of
the proposed open video system will be authorized by the City.
(b) The agreement between the City and the open video system operator may contain
tenns and conditions that relate to the following subject matters, to the extent that such tenns,
conditions, and subject matters are not preempted by federal statute or regulations:
(1) The nature, scope, and duration of the agreement, including provisions for
its renewal or extension.
(2) The obligation of the open video system operator to pay to the City, at
specified times, fees on the gross revenue received by the operator, as authorized by 47 CFR
S 76.1511, in accordance with the following standards and procedures:
A. The amount of the fees on the gross revenue will be five
percent (5%), and will be paid in lieu of the franchise fees authorized under Section 622 of the
Communications Act.
B. The tenn "gross revenue" means (i) all gross revenue received by
an open video system operator or its affiliates, including all revenues received from subscribers
and all carriage revenues received from unaffiliated video programming providers; and (ii) all
advertising revenues received by the operator or its affiliates in connection with the provision of
video programming, where such revenues are included in the calculation of the cable franchise
fee paid to the City by the franchised cable operator. The tenn "gross revenue" does not include
revenue, such as subscriber or advertising revenue, collected by unaffiliated video programming
providers.
(3) The obligation of the open video system operator to comply with
requirements relating to infonnation collection and recordkeeping, accounting procedures,
reporting, periodic audits, and inspection of records in order to ensure the accuracy of the fees on
the OVS gross revenue that are required to be paid as specified above in paragraph (b )(2).
(4) The obligation of the open video system operator to meet the City's
requirements with respect to PEG access facilities, as provided for in 47 CFR S 76.1505. In this
regard, the following standards and procedures are applicable:
A. The open video system operator is subject to the same PEG access
channel requirements that apply within the cable television franchise service area with which its
system overlaps.
B. The open video system operator must ensure that all subscribers
receive all PEG access channels within the franchise service area in which the City's subscribers
are located.
C. The open video system operator may negotiate with the City to
establish the operator's obligations with respect to PEG access facilities. These negotiations may
include the City's franchised cable operator if the City, the open video system operator, and the
franchised cable operator so desire.
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D. If the open video system operator and the City are unable to reach
an agreement regarding the operator's obligations with respect to Public, Educational, and
Government Access channel capacity, services, facilities, and equipment within the City's
jurisdiction, then the following obligations will be imposed:
(i) The open video system operator must satisfy the same PEG
access channel obligations as the City's franchised cable operator by providing the same amount
of channel capacity for PEG access and by matching the City's franchised cable operator's
annual financial contributions in support of public, educational, and government Access services,
facilities, and equipment that are actually used by the City. For in-kind contributions, such as
cameras or production studios, the open video system operator may satisfy its statutory
obligation by negotiating mutually agreeable terms with the City's franchised cable operator, so
that PEG access services to the City are improved or increased. If such terms cannot be agreed
upon, the open video system operator must pay to the City the monetary equivalent of the
franchised cable operator's depreciated in-kind contribution, or, in the case of facilities, the
annual amortization value. Any matching contributions provided by the open video system
operator must be used to fund activities arising under Section 611 of the Communications Act.
(ii) The City will impose upon the open video system operator
the same rules and procedures that it imposes upon the franchised cable operator with regard to
the open video system operator's use of channel capacity designated for PEG access channel use
when that capacity is not being used for such purposes.
E. The City's franchised cable operator is required under federal law
to permit the open video system operator to connect with its PEG access channel feeds. The
open video system operator and the franchised cable operator may decide how to accomplish this
connection, taking into consideration the physical and technical characteristics of the cable and
the open video systems involved. If the franchised cable operator and the open video system
operator cannot agree on how to accomplish the connection, the City has the right to decide. The
City may require that the connection occur on City-owned property or on public rights-of-way.
F. All costs of connection to the franchised cable operator's PEG
access channel feed must be borne by the open video system operator. These costs will be
counted towards the open video system operator's matching financial contributions set forth
above in subparagraph (D)(i).
G. The City will not impose upon the open video system operator any
Public, Educational, or Government Access Channel obligations that are more favorable or less
burdensome than those imposed upon the franchised cable operator.
H. If there is no existing franchised cable operator, the provisions of
47 CFR 9 76.1505(d)(6) will be applicable in determining the obligations of the open video
system operator.
I. The open video system operator must adjust its system to comply
with new public, educational, governmental and access channel obligations imposed on the
\ City's franchised cable operator following a renewal of the cable television franchise; provided,
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however, that the open video system operator will not be required to displace other programmers
using its open video system to accommodate PEG access channels. The open video system
operator must comply with such new PEG access channel obligations whenever additional
capacity is or becomes available, whether it is due to increased channel capacity or to decreased
demand for channel capacity.
(5) If the City and the open video system operator cannot agree on the
application of the FCC's rules regarding the open video system operator's obligations to provide
PEG access under the provisions of subsection (4) set forth above, then either party may file a
complaint with the FCC in accordance with the dispute resolution procedures set forth in 47 CFR
g76.1514. No agreement will be executed by the City until the dispute has been finally
resolved.
(6) If the open video system operator intends to maintain an institutional
network, as defined in Section 611(f) of the Communications Act, the City will require that
educational and government access channels be designated on that institutional network to the
same extent that those channels are designated on the institutional network of the City's
franchised cable operator. In addition, to the extent authorized by federal law, the open video
system operator may be required by the City to satisfy the same financial obligations and other
requirements that are imposed upon the franchised cable operator to support data-transmission
and related services that are provided by the institutional network.
(7) The authority of an open video system provider to exercise editorial
control over any Public, Educational, or Government use of channel capacity will be restricted in
accordance with the provisions of 47 CFR g76.1505(f).
(8) The obligation of the open video system operator to comply with all
applicable federal, state, and local statutes, ordinances, and regulations relating to customer
service standards, including the Cable Television and Video Customer Service and Information
Act (Government Code gg53054, et sea.), the Video Customer Service Act (Government Code
gg53088, et sea.), and the Consumer Protection and Service Standards of this chapter,
commencing with Section 14.08.22.
(9) If new physical plant is proposed to be constructed within the City, the
obligation of the open video system operator to comply with the following rights-of-way use and
management responsibilities that are also imposed by the City upon other telecornmunications
service providers in a nondiscriminatory and competitively neutral manner:
A. Compliance with all applicable City laws, including applications
for excavation, encroachment, and construction permits and the payment of all required permit
and inspection fees.
B. The coordination of construction activities.
C. Compliance with established standards and procedures for
constructing lines across private property.
,
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D.
Compliance with all applicable insurance and indemnification
requirements.
E. The repair and resurfacing of construction-damaged streets.
F. Compliance with all public safety requirements that are applicable
to telecommunications service providers using public property or public rights-of-way.
(10) Acts or omissions constituting breaches or defaults of the agreement, and
the applicable penalties, liquidated damages, and other remedies, including fines or the
suspension, revocation, or termination of the agreement.
(11) Requirements relating to the sale, assignment, or transfer of the open
video system.
(12) Requirements relating to the open video system operator's compliance
with and implementation of state and federal laws, rules, and regulations pertaining to the
operation of the open video system.
(13) Such additional requirements, conditions, terms, policies, and procedures
as may be mutually agreed upon by the City and the open video system operator and that will, in
the judgment of the Mayor and Common Council, best serve the public interest and protect the
public health, welfare, and safety.
,
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ARTICLE IV. OTHER VIDEO AND TELECOMMUNICATIONS SERVICES AND
SYSTEMS
14.08.22.
OTHER MULTICHANNEL VIDEO PROGRAMMING DISTRffiUTORS.
The term "cable system" does not include a facility that serves subscribers without using
any public rights-of-way. Consequently, the categories of multichannel video programming
distributors identified below are not deemed to be "cable systems" and are therefore exempt from
the City's franchise requirements and from certain other local regulatory provisions authorized.
by federal law, provided that their distribution or transmission facilities do not involve the use of
the City's public rights-of-way.
(a) Multichannel multipoint distribution service ("MMDS"), also known as "wireless
cable," which typically involves the transmission by an FCC-licensed operator of numerous
broadcast stations from a central location using line-of-sight technology.
(b) Local multipoint distribution service ("LMDS"), another form of over-the-air,
wireless video service for which licenses are auctioned by the FCC, and that offers video
programming, telephone, and data networking services.
(c) Direct broadcast satellite ("DBS"), also referred to as "direct-to-home satellite
services," which involves the distribution or broadcasting of programming or services by satellite
directly to the subscriber's premises without the use of ground-receiving or distribution
equipment, except at the subscriber's premises or in the uplink process to the satellite. Local
regulation of direct-to-home satellite services is further proscribed by the following federal
statutory provisions:
(I) 47 U.S.C. S 303(v) confers upon the FCC exclusive jurisdiction to regulate
the provisions of direct-to-home satellite services.
(2) Section 602 of the Communications Act states that a provider of direct-to-
home satellite service is exempt from the collection or remittance, or both, of any tax or fee
imposed by any local taxing jurisdiction on direct-to-home satellite service. The terms "tax" and
"fee" are defined by federal statute to mean any local sales tax, local use tax, local intangible tax,
local income tax, business license tax, utility tax, privilege tax, gross receipts tax, excise tax,
franchise fees, local telecommunications tax, or any other tax, license, or fee that is imposed for
the privilege of doing business, regulating, or raising revenue for a local taxing jurisdiction.
14.08.23.
VIDEO PROVIDERS - REGISTRATION; CUSTOMER SERVICE
STANDARDS.
(a) Unless the customer protection and customer service obligations of a video
provider are specified in a franchise with the City, a video provider must comply with all
applicable provisions of the following state statutes:
"
(I) The Cable Television and Video Customer Service and Information Act
(Government Code SS 53054, et seq.).
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(2) The Video Customer Service Act (Government Code ~~ 53088, et seQ.).
(b) All video providers that are operating in the City on the effective date of this
chapter, or that intend to operate in the City after the effective date of this chapter, and are not
required under applicable law to operate under a franchise, license, lease, or similar written
agreement with the City, must register with the City. The registration form must include or be
accompanied by the following:
(1) The video provider's name, address, and local telephone numbers.
(2) The names of the officers of the video provider.
(3) A copy of the video provider's written policies and procedures relating to
customer service standards and the handling of customer complaints, as required by California
Government Code ~~ 53054, et seQ. These customer service standards must include, without
limitation, standards regarding the following:
A. Installation, disconnection, service and repair obligations,
employee identification, and service call response time and scheduling.
B. Customer telephone and office hours.
C. Procedures for billing, charges, refunds, and credits.
D.
Procedures for termination of service.
E. Notice of the deletion of a progranuning service, the changing of
channel assignments, or an increase in rates.
F. Complaint procedures and procedures for bill dispute resolution.
G. The video provider's written acknowledgement of its obligation
under California Government Code ~53055.1 to provide to new customers a notice describing
the customer service standards specified above in subparagraphs (A) through (F) at the time of
installation or when service is initiated. The notice must also include, in addition to all of the
information described above in subparagraphs (A) through (F), all ofthe following:
(i) A listing of the services offered by the video provider that
clearly describes all levels of service and the rates for each level of service.
(ii) The telephone number or numbers through which
customers may subscribe to, change, or terminate service, request customer service, or seek
general or billing information.
(iii) A description of the rights and remedies that the video
provider may make available to its customers if the video provider does not materially meet its
customer service standards.
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H. The video provider's written commitment to distribute annually to
its employees and customers, and to the City, a notice describing the customer service standards
specified above in subparagraphs (A) through (F). This annual notice must include the report of
the video provider on its performance in meeting its customer service standards, as required by
California Government Code ~ 53055.2.
(4) Unless a video provider is exempt under federal law from its payment, a
registration fee in an amount established by resolution of the Mayor and Common Council to
cover the reasonable costs incurred by the City in reviewing and processing the registration form.
(5) In addition to the registration fee specified above in 'subsection (4), the
written commitment of the video provider to pay to the City, when due, all costs and expenses
reasonably incurred by the City in resolving any disputes between the video provider and its
subscribers, which dispute resolution is mandated by California Government Code ~ 53088.2(p).
(c) The customer service obligations imposed upon video providers by the Video
Customer Service Act California Government Code ~~53088 et seq.) consist of the following:
(I) Every video provider must render reasonably efficient service, make
repairs promptly, and interrupt service only as necessary.
(2) All video provider personnel contacting subscribers or potential
subscribers outside the office of the provider must be clearly identified as associated with the
video provider.
(3) At the time of installation, and annually thereafter, all video providers
must provide to all customers a written notice of the programming offered, the prices for that
programming, the provider's installation and customer service policies, and the name, address,
and telephone number of the City's office that is designated for receiving complaints.
(4) All video providers must have knowledgeable, qualified company
representatives available to respond to customer telephone inquiries Monday through Friday,
excluding holidays, during normal business hours.
(5) All video providers must provide to customers a toll-free or local
telephone number for installation, service, and complaint calls. These calls must be answered
promptly by the video providers.
(6) All video providers must render bills that are accurate and understandable.
(7) All video providers must respond promptly to a complete outage in a
customer's service. The response must occur within 24 hours of the reporting of such outage to
the provider, except in those situations beyond the reasonable control of the video provider. A
video provider will be deemed to respond to a complete outage when a company representative
arrives at the outage location within 24 hours and begins to resolve the problem.
(8) All video providers must provide a minimum of 30 days' written notice
before increasing rates or deleting channels. All video providers must make every reasonable
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effort to submit the notice to the City in advance of the distribution to customers. The 30-day
notice is waived if the increases in rates or deletion of channels are outside the control of the
video provider. In those cases, the video provider must make reasonable efforts to provide
customers with as much notice as possible.
(9) Every video provider must allow every residential customer who pays his
or her bill directly to the video provider at least 15 days from the date the bill for services is
mailed to the customer, to pay the listed charges unless otherwise agreed to pursuant to a
residential rental agreement establishing tenancy. Customer payments must be posted promptly.
No video provider may terminate residential service for nonpayment of a delinquent account'
unless the video provider furnishes notice of the delinquency and impending termination at least
15 days prior to the proposed termination. The notice must be mailed, postage prepaid, to the
customer to whom the service is billed. Notice must not be mailed until the 16th day after the
date the bill for services was mailed to the customer. The notice of delinquency and impending
termination may be part of a billing statement. Additionally, no video provider may assess a late
fee any earlier than the 22nd day after the bill for service has been mailed.
(10) Every notice of termination of service pursuant to the preceding
subsection (9) must include all of the following information:
A. The name and address of the customer whose account IS
delinquent.
B.
The amount of the delinquency.
C.
termination of service.
The date by which payment IS required In order to avoid
D. The telephone number of a representative of the video provider
who can provide additional information and handle complaints or initiate an investigation
concerning the service and charges in question.
(I 1) Service may only be terminated on days in which the customer can reach a
representative ofthe video provider either in person or by telephone.
(12) Any service terminated without good cause must be restored without
charge for the service restoration. Good cause includes, but is not limited to, failure to pay,
payment by check for which there are insufficient funds, theft of service, abuse of equipment or
system personnel, or other similar subscriber actions.
(13) All video providers must issue requested refund checks promptly, but no
later than 45 days following the resolution of any dispute, and following the return of the
equipment supplied by the video provider, if service is terminated.
(14) All video providers must issue security or customer deposit refund checks
promptly, but no later than 45 days following the termination of service, less any deductions
permitted by law.
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(15) Video providers must not disclose the name and address of a subscriber
for commercial gain to be used in mailing lists or for other commercial purposes not reasonably.
related to the conduct of the businesses of the video providers or their affiliates, unless the video
providers have provided to the subscriber a notice, separate or included in any other customer
notice, that clearly and conspicuously describes the subscriber's ability to prohibit the disclosure.
Video providers must provide an address and telephone number for a local subscriber to use
without toll charge to prevent disclosure of the subscriber's name and address.
(d) As authorized by Government Code 953088.2(r), the following schedule
of penalties is adopted. These penalties may be imposed for the material breach by a video
provider of the consumer protection and service standards that are set forth above in paragraph
(c), provided that the breach is within the reasonable control of the video provider. These
penalties are in addition to any other remedies authorized by this chapter or by any other law,
and the City has discretion to elect the remedy that it will apply. The imposition of penalties
authorized by this paragraph (d) will not prevent the City or any other affected party from
exercising any other remedy to the extent permitted by law, including but not limited to any
judicial remedy as provided below in subsection (2).
(1) Schedule of Penalties.
A. For a first material breach: the maximum penalty is $200
for each day of material breach, but not to exceed a cumulative total of $600 for each occurrence
of material breach, irrespective of the number of customers affected.
B. For a second material breach of the same nature for which a
monetary penalty was previously assessed within the preceding 12 month period: the maximum
penalty is $400 per day, not to exceed a cumulative total of $1,200 for each occurrence of the
material breach, irrespective of the number of customers affected.
C. For a third or further material breach of the same nature for
which a monetary penalty was previously assessed within the preceding 12 month period: the
maximum penalty is $1,000 per day, not to exceed a cumulative total of $3,000 for each
occurrence of the material breach, irrespective of the number of customers affected.
D. The maximum penalties referenced above may be increased
by any additional amount authorized by state law.
(2) Judicial Remedies Not Affected.
The imposition of penalties in accordance with the provisions of subsection (l)
above does not preclude any affected party from pursuing any judicial remedy that is available to
that party.
(3) Administration, Notice, and Appeal.
\
A. The City Manager is authorized to administer this
paragraph (d). Decisions by the City Manager to assess penalties against a video provider must
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be in writing and must contain findings supporting the decisions. Decisions by the City Manager
are final, unless appealed to the Mayor and Common Council.
B. If the video provider or any interested person is aggrieved
by a decision of the City Manager, the aggrieved party may, within 10 days of the written
decision, appeal that decision in writing to the Mayor and Common Council. The appeal letter
must be addressed to the City Clerk and must be accompanied by any applicable fee established
by the Mayor and Common Council for processing the appeal. The Mayor and Common
Council may affirm, modify, or reverse the decision of the City Manager.
C. The imposition of monetary penalties under subsection (I)
above is subject to the following requirements and limitations:
i) The City must give the video provider written
notice of any alleged material breach of the consumer service standards and must allow the video
provider at least 30 days from receipt of that notice to remedy the breach.
(ii) For the purpose of assessing monetary penalties, a
material breach will be deemed to have occurred for each day following the expiration of the
period for cure specified in subparagraph (i) above that the material breach has not been
remedied by the video provider, irrespective of the number of customers affected.
(iii) In assessing monetary penalties under this
paragraph (d), the City Manager, any designated hearing officer, or the Mayor and Common
Council, as applicable, may take into account the nature, circumstances, extent and gravity of the
violation and, with respect to the video provider, the degree of culpability, any history of prior
violations, and such other matters as may be relevant. If warranted under the circumstances, the
monetary penalty to be assessed may be less than the maximum penalty authorized above in
subsection (d)(l).
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14.08.24.
TELECOMMUNICATIONS SERVICE PROVIDED BY TELEPHONE
CORPORATIONS.
Any video programming provided by a telephone corporation that uses public rights-of-
way in the delivery of that video programming, regardless of the technology used, wi1\ be
considered a cable service under this Ordinance unless such programming is otherwise expressly
authorized by state or federal law .
(a) In recognition of and in compliance with statutory requirements that are set forth .
in state law, the folIowing regulatory provisions are applicable to a telephone corporation that
desires to provide telecommunications service by means of facilities that are proposed to be
constructed within the City's public rights-of-way:
(1) The telephone corporation must apply for and obtain, as may be
applicable, an excavation permit, an encroachment permit, or a building permit ("ministerial
permit.")
(2) In addition to the information required by this Ordinance in connection
with an application for a ministerial permit, a telephone corporation must submit to the City the
folIowing supplemental information:
A. A copy of the certificate of public convenience and necessity
issued by the California Public Utilities Commission ("CPUC") to the applicant, and a copy of
the CPUC decision that authorizes the applicant to provide the telecommunications service for
which the facilities are proposed to be constructed in the City's public rights-of-way.
B. If the applicant has obtained from the CPUC a certificate of public
convenience to operate as a "competitive local carrier," the folIowing additional requirements are
applicable:
(i) As required by the CPUC, the applicant must establish that
it has filed with the City in a timely manner a quarterly report that describes the type of
construction and the location of each construction project proposed to be undertaken in the City
during the calendar quarter in which the application is filed, which information is sufficient to
enable the City to coordinate multiple projects, as may be necessary.
(ii) If the applicant's proposed construction project wi1\ extend
beyond the utility rights-of-way into undisturbed areas or other rights-of-way, the applicant must
establish that it has filed a petition with the CPUC to amend its certificate of public convenience
and necessity and that the proposed construction project has been subjected to a fulI-scale
environmental analysis by the CPUC, as required by Decision No. 95-12-057 of the CPUC.
(iii) The applicant must inform the City whether its proposed
construction project wilI be subject to any of the mitigation measures specified in the Negative
Declaration ["Competitive Local Carriers (CLCs) Projects for Local Exchange Communication
Service throughout California"] or to the Mitigation Monitoring Plan adopted in connection with
Decision No. 95-12-057 of the CPUC. The City's issuance of a ministerial permit wi1\ be
conditioned upon the applicant's compliance with alI applicable mitigation measures and
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monitoring requirements imposed by the CPUC upon telephone corporations that are designated
as "competitive local carriers."
(b) In recognition of the fact that numerous excavations in the public rights-of-way
diminish the useful life of the surface pavement, and for the purpose of mitigating the adverse
impacts of numerous excavations on the quality and longevity of public street maintenance
within the City, the following policies and procedures are adopted:
(I) The City Manager is directed to ensure that all public utilities, including
telephone corporations, comply with all local design, construction, maintenance and safety
standards that are contained within, or are related to, a ministerial permit that authorizes the
construction of facilities within the public rights-of-way.
(2) The City Manager is directed to coordinate the construction and
installation of facilities by public utilities, including telephone corporations, in order to minimize
the number of excavations in the public rights-of-way. In this regard, based upon projected plans
for street construction or renovation projects, the City Manager is authorized to establish on a
quarterly basis one or more construction time periods or "windows" for the installation of
facilities within the public rights-of-way. Telephone corporations and other public utilities that
submit applications for ministerial permits to construct facilities after a predetermined date may
be required to delay such construction until the next quarterly "window" that is established by
the City.
(c) Subject to applicable provisions of state and federal law, any video programming
provided by a telephone corporation that uses public rights-of-way in the transmission or
delivery of that video programming, regardless of the technology used, will be deemed to be a
video service subject to the franchise requirements set forth in Section 14.08.04 of this chapter.
(d) Telephone corporations that apply for and receive a state franchise to provide
video service within all or any part of the City must comply with the provisions of this Title, and
all applicable provisions of the Digital Infrastructure and Video Competition Act of 2006
(Division 2.4 ofthe California Public Utilities Code, commencing with Section 5800).
14.08.25. PUBLIC, EDUCATIONAL, AND GOVERNMENTAL ACCESS
SUPPORT FEE (PEG FEE) AND REQUIREMENT TO PROVIDE PEG CHANNELS
(a) PEG FEE: A fee of I % of Gross Revenues shall be assessed on all video service
providers that use the public rights-of-way, including all local franchisees and all holders of state
franchises as consistent with state or federal law. The PEG Fee shall be paid quarterly, to be
received by the City not later than 45 days after the close of each quarter of Grantee's fiscal year.
(a) On a quarterly basis, Grantee shall provide the City a complete and
accurate statement verified by a financial officer of Grantee indicating Gross Revenues for the
past quarter, listing every revenue source, and depicting gross revenue computations.
\
(b) A video service provider subject to this section may recover the amount of
any fee by billing a recovery fee as a separate line item on the regular bill of each Subscriber.
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(b) CHANNEL DESIGNATION: All video service providers that use the public
rights-of-way shall designate sufficient amount of capacity on its network to allow the carnage
of at least three public, educational, or governmental access (pEG) channels. For the purposes of
this section, a PEG channel is deemed activated if it is being utilized for PEG programming
within the city for at least eight hours per day.
(I) PEG channels shall be for the exclusive use of the City or its designee to
provide public, educational, or governmental channels.
(2) Advertising, underwriting, or sponsorship recognition may be carned on
the channels for the purpose of funding PEG-related activities.
(3) The PEG channels shall all be carried on the basic service tier of grantee.
(4) To the extent feasible, the PEG channels shall not be separated
numerically from other channels carried on the basic service tier and the channel numbers for the
PEG channels shall be the same channel numbers used by the incumbent cable operator unless
prohibited by federal law.
(5) After the initial designation of PEG channel numbers, the channel umbers
shall not be changed without the agreement of the City unless the change is required by federal
law.
(6) Each channel shall be capable of carrying a National Television System
Committee (NTSC) television signal.
(c) INTERCONNECTION. Where technically feasible, all Grantee's video service
providers shall negotiate in good faith to interconnect their networks for the purpose of providing
PEG programming. Interconnection may be accomplished by direct cable, microwave link,
satellite, or other reasonable method of connection. Holders of a state franchise and incumbent
cable operators shall provide interconnection of the PEG channels on reasonable terms and
conditions and may not withhold the interconnection. If a holder of a state franchise and an
incumbent cable operator cannot reach a mutually acceptable interconnection agreement, the
City may require the incumbent cable operator to allow the holder to interconnect its network
with the incumbent's network at a technically feasible point on the holder's network as identified
by the holder. If no technically feasible point for interconnection is available, the holder of a
state franchise shall make an interconnection available to the channel originator and shall
provide the facilities necessary for the interconnection. The cost of any interconnection shall be
borne by the holder of a state franchise requesting the interconnection unless otherwise agreed to
by the parties.
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ARTICLE V. DEFINITIONS
14.08.26.
DEFINED TERMS AND PHRASES.
(a) For the purposes of this chapter, the words, terms, phrases, and abbreviations have
the meanings set forth below. When not inconsistent with the context, words used in the present
tense include the future tense, and words in the singular include the plural number.
"Affiliate" means, when used in relation to any person, another person who owns or
controls, is owned or controlled by, or is under common ownership or control with, such person.
"Cable service" means the one-way transmission to subscribers of video programming, or
other programming services, and subscriber interaction, if any, that is required for the selection
or use of that video programming or other programming service. For the purposes of this
definition, "video programming" means programming provided by, or generally considered
comparable to programming provided by, a television broadcast station; and "other programming
service" means information that a cable system operator makes available to all subscribers
generally.
"Cable system," or "cable communications system" or "cable television system," means a
facility, consisting of a set of closed transmission paths and associated signal generation,
reception and control equipment that is designed to provide cable service that includes video
programming and that is provided to multiple subscribers within a community. The term "cable
system" does not include:
(I) A facility that serves only to retransmit the television signals of one or
more television broadcast stations; or
(2) A facility that serves subscribers without using any public rights-of-way;
or
(3) A facility of a common carrier that is subject, in whole or in part, to the
provisions of Title II of the Communications Act, except that such facility will be considered a
cable system (other than for purposes specified in Section 621(c) of the Communications Act) to
the extent such facility is used in the transmission of video programming directly to subscribers,
unless the extent of such use is solely to provide interactive on-demand services; or
(4) an open video system that complies with Section 653 of the
Communications Act; or
(5) Any facilities of an electric utility that are used solely for operating its
electric utility system.
"Cable system operator" or "cable operator" means any person or group of persons:
(I) Who provides cable service over a cable system and directly or through
one or more affiliates owns a significant interest in that cable system; or
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(2) Who otherwise controls or is responsible for, through any arrangement,
the management and operation ofthat cable system.
"CFR" means the Code of Federal Regulations. Thus, the citation of "47 CFR 80.1"
refers to Title 47, part 80, section I, ofthe Code of Federal Regulations.
"City" means the City of San Bernardino, California as represented by its Mayor and
Common Councilor by any delegate acting within the scope of its delegated authority.
"City Manager" means the City Manager of the City of San Bernardino, or the City'
Manager's designee.
"Communications Act" means the Communications Act of 1934 (47 U.S.C. ~~ 153, et
seq.), as amended by the Cable Communications Policy Act of 1984, the Cable Television
Consumer Protection and Competition Act of 1992, and the Telecommunications Act of 1996.
"FCC" or "Federal Communications Commission" means the federal administrative
agency, or any lawful successor, that is authorized to regulate cable and telecommunications
services and cable and telecommunications service providers on a national level.
"Franchise" means an initial authorization, or the renewal of an initial authorization,
granted by the Mayor and Common Council, whether such authorization is designated as a
franchise, agreement, permit, license, resolution, contract, certificate or otherwise, that
authorizes the construction or operation of a cable system or an open video system.
"Franchise fee" means any fee or assessment of any kind that is authorized by state or
federal law to be imposed by the City on a Grantee as compensation in the nature of rent for the
Grantee's use of the public rights-of-way. The term "franchise fee" does not include:
(I) Any tax, fee or assessment of general applicability (including any such
tax, fee, or assessment imposed on both utilities and cable operators or their services, but not
including a tax, fee or assessment which is unduly discriminatory against cable operators or
cable subscribers);
(2) Capital costs that are required by the franchise to be incurred by a Grantee
for public, educational, or governmental access facilities;
(3) Requirements or charges that are incidental to the award or enforcement of
the franchise, including payments for bonds, security funds, letters of credit, insurance,
indemnification, penalties, or liquidated damages; or
(4) Any fee imposed under Title 17, United States Code.
"Franchise service area" or "service area" means the entire geographic area of the City as
it is now constituted, or may in the future be constituted, unless otherwise specified in the
ordinance or resolution granting a franchise, or in a franchise agreement.
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"Grantee" means any person that is awarded a franchise in accordance with this Chapter,
and that person's lawful successor, transferee, or assignee.
"Gross Revenue" means all revenue, that is received, directly or indirectly, by Grantee
from or in connection with the distribution of any cable service within the franchise service area,
and any other service provided within the franchise service area that may, under existing or
future federal law, be included in the Communications Act definition for the purpose of
calculating and collecting the maximum allowable franchise fee for operation of the system,
whether or not authorized by any franchise, including, without limitation, leased or access
channel revenue received, directly or indirectly, from or in connection with the distribution of
any cable service. It is intended that all revenue collected by the Grantee from the provision of
cable service over the system, whether or not authorized by the franchise, be included in this
definition. Gross revenue also specifically includes any revenue received, as reasonably
determined from time to time by the City, through any means that is intended to have the effect
of avoiding the payment of compensation that would otherwise be paid to the City for the
franchise granted, including the fair market value of any nonmonetary (i.e., barter) transactions
between Grantee and any person, but not less than the customary prices paid in connection with
equivalent transactions. Gross revenue also includes any bad debts recovered, payments
received for the lease or license to third parties of excess capacity in fiber optic cables or similar
transmission facilities, and all revenue that is received by Grantee, or its subsidiaries or affiliated
companies, directly or indirectly, from or in connection with the distribution of any service over
the system or the conduct of any service-related activity involving the system, including without
limitation revenues derived from advertising sales, the sale of products or services on home
shopping channels, and the sale of program guides. Gross revenue does not include: (I) the
revenue of any person to the extent that such revenue is also included in the gross revenue of
Grantee; (2) taxes imposed by law on subscribers that Grantee is obligated to collect;
(3) amounts that must be excluded pursuant to applicable law;(iv) bad debt; and (4) deposits and
refunds.
"Multichannel video programming distributor" or "video programming distributor"
means a person such as, but not limited to, a cable system operator, an open video system
operator, a multichannel multipoint distribution service, a direct broadcast satellite service, or a
television receive-only satellite program distributor, who makes available multiple channels of
video programming for purchase by subscribers or customers.
"Open video system" means a facility consisting of a set of transmission paths and
associated signal generation, reception and control equipment that is designed to provide cable
service, including video programming, and that is provided to multiple subscribers within the
City, provided that the FCC has certified that such system is authorized to operate in the City and
complies with 47 CFR 1500 et seq., titled "Open Video Systems."
"Open video system operator" means any person or group of persons who provides cable
service over an open video system and directly or through one or more affiliates owns a
significant interest in that open video system, or otherwise controls or is responsible for the
management and operation of that open video system.
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"Person" means an individual, partnership, limited liability company, association, joint
stock company, trust, corporation or governmental entity.
"Public, educational or government access facilities," "PEG access facilities," or "PEG
access" means the total of the following:
(1) Channel capacity designated for noncommercial public, educational, or
government use; and
(2) Facilities and equipment for the use of that channel capacity.
"Subscriber" or "customer" or "consumer" means any person who, for any purpose,
subscribes to the services provided by a multichannel video programming distributor and who
pays the charges for those services.
"Street" or "public right-of-way" means each of the following that has been dedicated to
the public and maintained under public authority or by others and is located within the "City
limits: streets, roadways, highways, avenues, lanes, alleys, sidewalks, easements, rights-of-way
and similar public property that the City from time to time authorizes to be included within the
definition of a street. .
"Telecommunications" means the transmission, between or among points specified by
the user, of information of the user's choosing, without change in the form or content of the
information as sent and received.
"Telecommunications equipment" means equipment, other than customer premises
equipment, used by a telecommunications service provider to provide telecommunications
service, including software that is integral to that equipment.
"Telecommunications service" means the offering of telecommunications directly to the
public for a fee, or to such classes of users as to be effectively available directly to the public,
regardless of the equipment or facilities that are used.
"Telecommunications service provider" means any provider of telecommunications
service.
"_ u.s.c. 9 _" means the United States Code. Thus, the citation of "47 U.S.C. 9
153" refers to Title 47, section 153, of the United States Code.
"Video programming provider" means any person or group of persons who has the right
under the federal copyright laws to select and to contract for the carriage of specific video
programming on a cable system or an open video system.
"Video provider" means any person, company, or service that provides one or more
channels of video progranuning to a residence, including a home, multi-family dwelling
complex, congregate-living complex, condominium, apartment or mobilehome, where some fee
is paid for that service, whether directly or as included in dues or rental charges, and whether or
not public rights-of-way are used in the delivery of that video programming. A "video provider"
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includes, without limitation, providers of cable television service, open video system service,
master antenna television, satellite master antenna television, direct broadcast satellite,
multipoint distribution services and other providers of video programming, whatever their
technology.
(b) Unless otherwise expressly stated, words, terms, phrases, and abbreviations not
defined in this section will be given their meaning as used in Title 47 of the United States Code,
as amended, and, if not defined in that Code, their meaning as used in Title 47 of the Code of
Federal Regulations.
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e ARTICLE VI. VIOLATIONS; ENFORCEMENT
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14.08.27.
Violations: Enforcement
(a) Any person who willfully violates any provision of this chapter is
guilty of a misdemeanor and is punishable as provided for in Chapter 1.12 of Title 1 of this
Code.
(b) The misdemeanor penalty specified above in paragraph (a) is not
applicable to a violation of any provision of this chapter for which another sanction or penalty
may be imposed under any franchise, license, lease, or similar written agreement between the
City and a multichannel video programming distributor or other telecommunications service
provider.
(c) The City may initiate a civil action in any court of competent
jurisdiction to enjoin any violation of this chapter.
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SECTION 2. The Mayor and Common Council hereby declares that the provisions of
this Ordinance are severable, and if for any reason a court of competent jurisdiction shall hold
any sentence, paragraph or section of this Ordinance to be invalid, or if any provision of this
ordinance be invalidated by the enactment of a state or federal statute, such judicial decision or
statute enactment shall not affect the validity of the remaining parts ofthis Ordinance.
SECTION 3. The City Clerk shall certify to the adoption of this Ordinance and shall
cause a copy of same to be published in the official newspaper of said City within fifteen (15)
days after its adoption. This Ordinance shall take effect on the thirty-first (31st) day after its
adoption. .
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor
and Common Council of the City of San Bernardino at a
meeting thereof, held on the day of , 2007, by the following
vote, to wit:
COUNCIL MEMBERS:
NAYS
ABSTAIN ABSENT
AYES
ESTRADA
BAXTER
BRINKER
DERRY
KELLEY
JOHNSON
MCCAMMACK
Rachel G. Clark, City Clerk
The foregoing Resolution is hereby approved this
day of
,2007.
PATRICK J. MORRIS, Mayor
City of San Bernardino
Approved as to form:
By:
JAMES F. PENMAN
City Attorney
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