HomeMy WebLinkAbout08-City Attorney CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
From: JAMES F.PENMAN Subject: Ordinance amending in its entirety Title 14,
City Attorney Chapter 14.08 of the City of San Bernardino Municipal
Code regulating cable, video, and telecommunications
Dept: CITY ATTORNEY service providers.
Date: February 28, 2007
Synopsis of Previous Council Action:
The Legislative Review Committee heard this item at the February 6,2007 meeting
and approved it to go to the full council.Minor modifications were made to avoid
the necessity of publishing the entire thirty-four page ordinance in the newspaper,
but allow publication of a summary as is usual and customary with the City of San
Bernardino.
Recommended motion:
Motion to adopt ordinance as corrected. Waive further reading and lay over for final adoption.
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ature
Contact person: Richard Luczak Phone: 5355 _
Supporting data attached: Staff Report Ward: All
FUNDING REQUIREMENTS: Amount:
Source:
Finance:
Council Notes: as O 34 — ,oz
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Agenda Item No.,
3 /910f7
STAFF REPORT
Council Meeting Date: March 5, 2007
TO: Mayor and Common Council
FROM: James F. Penman, City Attorney
DATE: February28, 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.
This ordinance authorizes, and establishes procedures for, the City of San Bernardino to
enter into local franchise agreements with cable, video, and telecommunication service
companies. It also brings the City into compliance with current state law, namely A.B. 2987
which establishes state wide cable, video and telecommunication franchises. The ordinance
provides the basic framework for entering into a local franchise with the City, yet allows some
flexibility in negotiating the agreement. Some of the major provisions provide for the City to
receive 5% of the franchisee's gross revenue, basic customer service requirements, and the
imposition of a 1%public, educational, and governmental ("PEG") access fee to fund the City's
PEG channels. The ordinance also addresses emerging technologies and media devices which
were previously not envisioned in the City's older ordinance. This item was heard by the
Legislative Review Committee on February 6, 2007 and was approved to move forward to the
full Council at that time.
This ordinance was drafted by an outside consultant and modified by private legal
counsel as well as the City Attorney's Office. It had its first reading on February 20, 2007. Since
that time, it was determined the consultant included a provision requiring publication of the
entire ordinance rather than just the summary of the ordinance as is customary and required by
the City. To save the City costs associated with publishing the entire ordinance in the newspaper,
it has been modified to remove the requirement of publication of the entire document. No
substantive changes have been made.
CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
From: JAMES F. PENMAN Subject: Ordinance amending in its entirety Title 14,
City Attorney Chapter 14.08 of the City of San Bernardino Municipal
Code regulating cable, video, and telecommunications
Dept: CITY ATTORNEY service providers.
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 lay over for final adoption..
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S ature
Contact person: Richard Luczak Phone: 5355
Supporting data attached: Staff Report Ward: All
FUNDING REQUIREMENTS: Amount:
Source:
Finance:
Council Notes:
Agenda Item No. .3�
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 governmental 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.
1 ORDINANCE NO.
2 AN ORDINANCE OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SA
3 BERNARDINO AMENDING IN ITS ENTIRETY TITLE 14, CHAPTER 14.08 OF THE CITY
OF SAN BERNARDINO MUNICIPAL CODE REGULATING CABLE, VIDEO, AN
4 TELECOMMUNICATIONS SERVICE PROVIDERS.
5 NOW, THEREFORE, THE MAYOR AND COMMON COUNCIL OF THE CITY OF SA
BERNARDINO DO ORDAIN AS FOLLOWS:
6
SECTION 1. Title 14, chapter 14.08, of the City of San Bernardino Municipal
7 Code is hereby amended in its entirety to read as follows:
8 TITLE 14, CHAPTER 14.08. CABLE, VIDEO AND TELECOMMUNICATIONS SERVICE
9 PROVIDERS
10 ARTICLE I. GENERAL PROVISIONS
11 14.08.01 Short title
12 14.08.02 Authority
13 14.08.03 Defined Terms and Phrases
14
15 ARTICLE II. PROCEDURES FOR GRANTING, RENEWING, AND
TRANSFERRING FRANCHISES FOR CABLE SYSTEMS
16
14.08.04 Franchise required to operate a cable system
17
14.08.05 City grants of cable franchises
18
14.08.06 Franchise duration and renewal
19
14.08.07 Limitations of franchise
20
21 14.08.08 Rights reserved to the City
22 14.08.09 Transfers and assignments
23 14.08.10 Franchise area; annexations
24 14.08.11 Application for new franchise; contents
25 14.08.12 Franchise approval
26 14.08.13 Franchise renewal
27 14.08.14 Multiple franchises
28
1
1 14.08.15 Franchise application processing costs
2 14.08.16 Franchise fee for cable services
3 14.08.17 Contents of cable television franchise agreement
4
5
ARTICLE III. OPEN VIDEO SYSTEMS
6
14.08.18 Applicability
7
14.08.19 Application required
8
14.08.20 Review of application
9
10 14.08.21 Agreement required
11 ARTICLE IV. OTHER VIDEO AND TELECOMMUNICATIONS SERVICES AND
12 SYSTEMS
13 14.08.22 Other multichannel video programming distributors
14 14.08.23 Video providers-registration; customer service standards
15 14.08.24 Telecommunications service provided by telephone corporations
16 14.08.25 Public, educational, and governmental support fee (PEG fee) and
17 requirement to provide PEG channels
18
ARTICLE V. DEFINITIONS
19
14.08.26 Defined terms and phrases
20
21 ARTICLE VI. VIOLATIONS; ENFORCEMENT
22 14.08.27 Violations; Enforcement
23
24
25
26
27
28
2
1 ARTICLE I. GENERAL PROVISIONS
2 14.08.01. SHORT TITLE.
3 This chapter is known and may be cited as the "Cable, Video, and
4 Telecommunications Service Providers Ordinance" of the City of San Bernardino.
5 14.08.02. AUTHORITY.
6 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
7 the use of the public rights-of-way within the City, and all other applicable laws.
8 14.08.03 DEFINED TERMS AND PHRASES
9 Various terms and phrases used in this chapter are defined below in Section
10 14.08.26 of Article V.
11 ARTICLE IL PROCEDURES FOR GRANTING, RENEWING, AND
TRANSFERRING CABLE SYSTEMS FRANCHISES
12
14.08.04. FRANCHISE REQUIRED.
13
It is unlawful for any person to construct, install, maintain, or operate a cable
14 television system within any street or public way in the City without first obtaining a
15 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
16 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
17 the expiration or termination of that franchise.
18 14.08.05. CITY GRANTS OF CABLE FRANCHISES.
19 Subject to applicable law, the City may by ordinance or resolution grant a
20 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
21 shall be subject to all ordinances and regulations of general application now in effect or
subsequently enacted, including, without limitation, those related to encroachment
22 permits, business licenses, zoning, and building.
23 14.08.06. FRANCHISE DURATION AND RENEWAL.
24 (a) The term of the franchise or of any franchise renewal shall be established
25 in the franchise agreement.
26 (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.
27 In the event the City does not establish such renewal procedures, the franchise renewal
28 procedures set forth in federal law shall apply.
3
1
2 14.08.07. LIMITATIONS OF FRANCHISE.
3 (a) A franchise granted under this chapter shall be nonexclusive.
4 (b) The grant of a franchise, right, or license to use public rights-of-way for
5 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.
6
(c) Any right or privilege claimed by a Grantee under a franchise in public
7 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.
9 (d) A franchise granted under this chapter shall not relieve a Grantee of any
10 obligation to obtain pole space from any City department, utility company, or others
maintaining poles in the public rights-of-way.
11
14.08.08. RIGHTS RESERVED TO THE CITY.
12
(a) Subject to any restrictions that are mandated by state or federal law,
13 neither the granting of any franchise nor any provisions of this chapter shall be construed
14 to preclude the City from granting additional franchises.
15 (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
16 enacted; provided, however, that such ordinances and regulations shall not materially
affect Grantee's rights or obligations under the franchise.
17
(c) Neither the granting of a franchise, nor any provisions of this chapter,
18 shall constitute a waiver or bar to the City's lawful exercise of any governmental right or
19 power.
20 (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
21 eminent domain, in accordance with applicable law.
22 (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
23 may arise during the term of any franchise granted under this chapter.
24 (0 Any right or power in, or duty imposed upon any officer, employee,
25 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.
26
14.08.09. TRANSFERS AND ASSIGNMENTS.
27
(a) Grantee may not sell, transfer, lease, assign, sublet, or dispose of, in whole
28 or in part, either by forced or involuntary sale, or by ordinary sale, contract,
consolidation, or otherwise, the franchise 4or any of the rights or privileges therein
1 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
2 written consent of the Mayor and Common Council is null and void. The granting of a
3 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.
4
(b) The requirements of paragraph (a) of this section apply to any change in
5 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
6 whatever manner exercised. If Grantee is a partnership or a corporation, prior
7 authorization of the City is required where ownership or control of 25 % or more of the
partnership interests or of the voting stock of the corporation, or any company in the tier
8 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
9 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
10 franchise.
11 (c) Unless precluded by federal law, Grantee must give prior written notice to
12 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
13 that a change in control of ownership of the franchise will take place, and the provisions
of this section that require the prior written consent of the Mayor and Common Council
14 to that change in control of ownership will apply.
15
(d) For the purpose of determining whether it will consent to an acquisition,
16 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
17 inquiry. In seeking the City's consent to any change of ownership or control, Grantee or
18 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
19 120 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
20 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,
21 and technical qualifications of the proposed transferee are determined to be satisfactory,
22 then the City will consent to the transfer of the franchise.
23 (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
24 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.
25 Further, that financial institution must also submit a plan for such operation within 90
26 days after assuming control. The plan must insure continued service and compliance
with all franchise requirements during the period that the financial institution will
27 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
28 discretion, and during that period it will have the right to petition the City to transfer the
franchise to another Grantee.
5
I
1
(f) Unless prohibited by applicable law, Grantee must reimburse the City for
2 the City's reasonable review and processing expenses incurred in connection with any
3 transfer or change in control of the franchise, as provided for in Section 14.08.15.
4 14.08.10. FRANCHISE SERVICE AREA; ANNEXATIONS.
5 (a) The franchise service area shall be established in the franchise agreement.
6 (b) Territory annexed to the City that is not within the service area of a
7 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
8 Common Council resolution.
9 (c) Territory annexed to the City that is included within the service area of a
10 franchise or license issued by a local franchising authority other than the City is subject
to the following provisions:
11
(1) If the franchisee or licensee has not commenced construction or
12 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 of
13 law.
14 (2) If the franchisee or licensee has commenced construction or
15 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
16 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
17 support fees, if any, shall be due and owing to the City by operation of law.
18 14.08.11. APPLICATION FOR NEW FRANCHISE; CONTENTS.
19
(a) An applications for the grant of a new franchise may be submitted by any
20 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
21 advertisement or any other means, solicit applications for a new franchise by issuing a
22 request for proposals.
23 (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
24 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
25 by such waiver.
26 (c) Unless waived in writing by the City, all applications for a franchise shall
27 contain the following:
28 (1) The name, address, and telephone number of the applicant.
6
1 (2) A detailed statement concerning the applicant's business entity,
2 including, but not limited to, the following:
A. The names and business addresses of all officers and
3
directors.
4
B. The names and business addresses of all persons having an
5 ownership interest of 5% or more in the applicant and the respective ownership interest of
each such person.
6
C. The names and addresses of any parent or subsidiary of the
7 applicant, namely, any other business entity owning or controlling applicant in whole or
8 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
g cable systems owned or controlled by the parent or subsidiary, and the geographic areas
served.
10
(3) A description of the applicant's previous experience in providing
11 cable service or similar communications services.
12 (4) A detailed financial statement of the applicant, certified by an
13 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
14 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
15 City.
16 (5) A detailed pro forma financial plan for the operation of the cable
17 system during the term of the proposed franchise, in a format prescribed by the City.
18 (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
19 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
20 completion of these cable systems.
21 (7) A detailed description of the applicant's proposed plan of
22 operation which shall include, but not be limited to, the following:
23 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
24 installation of all equipment necessary to become operational throughout the area to be
served;
25
B. A schedule setting forth all proposed classifications of rates
26 and charges to be paid by subscribers, including installation and other service charges.
27 C. A description of the equipment and operational standards
28 proposed by the applicant.
D. A description7of the applicant's plan to provide public,
1 educational and governmental access channel capacity, services, facilities, and
equipment, including a description of the method to be used by the applicant in reserving
2 and inserting PEG programming.
3 E. A description of the applicant's plans to address the City's
4 institutional network needs.
5 (8) A copy of any existing agreement covering the proposed franchise
service area between the applicant and local telephone or electric utilities that provides
6 for applicant's use of any facilities of that utility, including but not limited to poles, lines
or conduits.
7
8 (9) Any additional information that the City deems to be reasonably
necessary to evaluate the applicant's qualifications.
9
(d) The applicant's failure to comply with the requirements of this section
10 may be grounds for rejection of an application at the City's sole discretion.
11 14.08.12. FRANCHISE APPROVAL.
12 (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
13 applicant shall timely furnish to the City such additional information as the City may
14 request.
15 (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
16 make recommendations to the Mayor and Common Council concerning the application.
17 (c) The Mayor and Common Council shall hold a noticed public hearing on
18 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
19 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
20 Common Council shall make a written decision on whether the franchise should be
granted, and if granted, subject to what conditions.
21
(d) In determining whether to grant an application for a new franchise, the
22 City may consider all factors that affect the interests of the community including, but not
23 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,
24 background, performance history, and financial responsibility of an applicant (and its
management and owners), the technical performance and quality of equipment, the
25 applicant's willingness and ability to meet construction requirements, and all other
26 matters deemed relevant by the City to protect the interests of the City and the public.
27 (e) The decision of the Mayor and Common Council concerning the granting
or denial of a franchise pursuant to this chapter shall be final.
28
14.08.13. FRANCHISE RENEWAL.
8
1 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
2 mutual consent, may enter into renewal negotiations at any time during the term of the
3 franchise.
4 14.08.14. MULTIPLE FRANCHISES.
5 (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
6 include but not be limited to the following:
7 (1) The capability of the public rights-of-way to accommodate the
8 facilities of any proposed additional cable systems.
9 (2) The advantages and disadvantages that may result from additional
cable system competition.
10
(b) The City may require that a Grantee be responsible for its own
11 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,
12 machinery, equipment, or other facilities contemplated in connection with the
13 construction, maintenance, and operation of a proposed new cable system.
14 14.08.15. FRANCHISE APPLICATION PROCESSING COSTS.
15 (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
16 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
17 established from time to time by resolution of the Mayor and Common Council. Such
18 costs shall include all estimated administrative, consultant, noticing, and document
preparation expenses. No application shall be considered without payment of the
19 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
20 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
21 application. If actual costs are less than the application fee deposit, the remaining
22 balance will be refunded to the applicant.
23 (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,
24 including without limitation construction inspection fees, permit fees, and franchise fees.
25 14.08.16. FRANCHISE FEE FOR CABLE SERVICES.
26 (a) In consideration for the privilege to use the City's public rights-of-way in
27 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
28 an amount equal to five percent (5%) of Grantee's gross revenues, unless a greater
amount is authorized by applicable law.
9
1 (b) The franchise fee shall be paid quarterly and must be received by the City
�.+
2 not later than 45 days after the close of each calendar quarter.
3 (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
4 revenues for the previous calendar quarter, listing every revenue source and describing
gross revenue computations.
5
(d) On an annual basis, Grantee shall file a statement certified by a financial
6 officer that sets forth all gross revenues for the previous calendar year, listing every
revenue source and describing gross revenue computations. If the City has any
7 objections relating to that report, the City shall have 30 days to notify Grantee and to
8 request additional information. Grantee shall have 30 days to provide additional
information to resolve any objections to the City's satisfaction.
9
(e) At any time during the term of a franchise, the City has the right to
10 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
11 reports or computations. Grantee shall pay all costs of that audit. Grantee shall cooperate
12 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
13 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
14 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
15 any payment period that such records pertain to.
16 (0 If any franchise fee payment is not made by the due date, interest shall be
17 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
18 delinquency of that payment, a late fee in amount of five percent (5%) of the delinquent
amount shall be assessed.
19
20 14.08.17. CONTENTS OF CABLE TELEVISION FRANCHISE AGREEMENTS
21 (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
22 matters:
23 (1) The geographical area, duration, and nonexclusive nature of the
franchise.
24
(2) The applicable franchise fee to be paid to the City, including the
25 percentage amount, the method of computation, and the time for payment.
26 (3) Requirements relating to compliance with and implementation of
27 state and federal laws and regulations pertaining to the operation of the cable television
system.
28
(4) Requirements relating to the construction, upgrade, or rebuild of
10
1 the cable television system, as well as the provision of special services, such as outlets for
2 public buildings, emergency alert capability, and parental control devices.
3 (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
4 the performance of the Grantee's obligations under the franchise agreement.
5 (6) Requirements relating to liability insurance, workers'
compensation insurance, and indemnification.
6
(7) Requirements relating to consumer protection and customer
7 service standards, including the resolution of subscriber complaints and disputes and the
8 protection of subscribers' privacy rights, which requirements may include, without
limitation, compliance with the statutes, rules and regulations set forth below in Section
9 14.08.23.
10 (8) Requirements relating to the Grantee's support of local cable
usage, including the provision of public, educational, or governmental access channels,
11 the coverage of public meetings and special events, interconnection requirements, and
12 financial support for the required access channel facilities and activities that is consistent
with this Title.
13
(9) Requirements relating to construction, operation, and maintenance
14 of the cable system within the public rights-of-way, including compliance with all
applicable building codes and permit requirements, the abandonment, removal, or
15 relocation of facilities, and compliance with FCC technical standards.
16 (10) Requirements relating to recordkeeping, accounting procedures,
17 reporting, periodic audits, performance reviews, and the inspection of Grantee's books
and records.
18
(11) Acts or omissions constituting material breaches of or defaults
19 under the franchise agreement, and the applicable penalties or remedies for those
breaches or defaults, including fines, penalties, liquidated damages, suspension,
20 revocation and tennination.
21 (12) Requirements relating to the sale, assignment, or other transfer or
22 change in control of the franchise.
23 (13) Grantee's obligation to maintain continuity of service and to
authorize, under certain specified circumstances, the City's operation and management of
24 the cable system.
25 (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
26 the judgment of the City, best serve the public interest and protect the public health,
® 27 welfare, and safety.
28 (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
11
t
1 this Section 14.08.17, the provisions of the franchise agreement will control.
2
3 ARTICLE 111. OPEN VIDEO SYSTEMS
4 14.08.18. APPLICABILITY.
5
The provisions of this Article III apply to an open video system operator that
6 intends to deliver video programming to consumers in the City over an open video
system.
7
14.08.19. APPLICATION REQUIRED.
8
(a) Before commencing the delivery of video programming services to
9 consumers in the City over an open video system, the open video system operator must
10 file an application with the City. That application must include or be accompanied by the
following, as applicable:
11
(1) The identity of the applicant, including all affiliates of the
12 applicant.
13 (2) Copies of FCC Form 1275, all "Notices of Intent" filed under 47
14 CFR § 76.1503(b)(1), 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
15 Communications Act and the FCC's rules.
16 (3) The area or areas of the City that the applicant desires to serve.
17 (4) A description of the open video system services that will be
offered by the applicant over its existing or proposed facilities.
18
(5) A description of the transmission medium that will be used by the
19 applicant to deliver the open video system services.
20 (6) Information in sufficient detail to establish the applicant's
21 technical qualifications, experience, and expertise regarding the ownership and operation
of the open video system described in the application.
22
(7) Financial statements prepared in accordance with generally
23 accepted accounting principles that demonstrate the applicant's financial ability to:
24 a. Construct, operate, maintain and remove any new physical
25 plant that is proposed to be constructed in the City.
26 b. Comply with the City's PEG access channel requirements
as specified below in Section 14.08.21 (b)(4).
27
C. Comply with the City's requirement that gross revenue fees
28 be paid in the sum of 5 percent (5%), as specified below in Section 14.08.21 (b)(2).
12
1 (8) An accurate map showing the location of any existing
telecommunications facilities in the City that the applicant intends to use, to purchase, or
2 to lease.
3 (9) If the applicant's operation of the open video system will require
4 the construction of new physical plant in the City, the following additional information
must be provided:
5
A. A preliminary construction schedule and completion dates.
6
B. Preliminary engineering plans, specifications, and a
7 network map of any new facilities to be constructed in the City, in sufficient detail to
8 identify:
9 (i) The location and route requested for the applicant's
proposed facilities.
10
(ii) The locations, if any, for interconnection with the
11 facilities of other telecommunications service providers.
12 (iii) The specific structures, improvements, facilities,
13 and obstructions, if any, that the applicant proposes to remove or relocate on a temporary
or permanent basis.
14
C. The applicant's statement that, in constructing any new
15 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.
16
(10) The information and documentation that is required to be
17 submitted to the City by a video provider, as specified below in paragraph(b) of
18 Section 14.08.23.
19 (11) Such additional information as may be required by the City
Manager.
20
(12) A nonrefundable filing fee in an amount established by resolution
21 of the Mayor and Common Council.
22 (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
23 waive the requirement that such information be included in the application.
24 14.08.20. REVIEW OF APPLICATION.
25
Within 30 days after receipt of an application filed under Section 14.08.19 that is
26 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
27 the operation of the proposed open video system will be authorized by the City. The
28 commencement of those negotiations will be on a date that is mutually acceptable to the
City and to the applicant.
13
1 14.08.21. AGREEMENT REQUIRED.
2 (a) No video programming services may be provided in the City by an open
3 video system operator unless the operator and the City have executed a written
agreement, which may be designated as a franchise, setting forth the terms and conditions
4 under which the operation of the proposed open video system will be authorized by the
City.
5
(b) The agreement between the City and the open video system operator may
6 contain terms and conditions that relate to the following subject matters, to the extent that
such terms, conditions, and subject matters are not preempted by federal statute or
7 regulations:
8
(1) The nature, scope, and duration of the agreement, including
g provisions for its renewal or extension.
10 (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
11 by 47 CFR § 76.1511, in accordance with the following standards and procedures:
12 A. The amount of the fees on the gross revenue will be five
13 percent (5%), and will be paid in lieu of the franchise fees authorized under Section 622
of the Communications Act.
14
B. The term "gross revenue" means (1) all gross revenue
15 received by an open video system operator or its affiliates, including all revenues
received from subscribers and all carriage revenues received from unaffiliated video
16 programming providers; and (ii) all advertising revenues received by the operator or its
17 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
18 cable operator. The term "gross revenue" does not include revenue, such as subscriber or
advertising revenue, collected by unaffiliated video programming providers.
19
(3) The obligation of the open video system operator to comply with
20 requirements relating to information collection and recordkeeping, accounting
procedures, reporting, periodic audits, and inspection of records in order to ensure the
21 accuracy of the fees on the OVS gross revenue that are required to be paid as specified
22 above in paragraph (b)(2).
23 (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
24 § 76.1505. In this regard, the following standards and procedures are applicable:
25 A. The open video system operator is subject to the same PEG
26 access channel requirements that apply within the cable television franchise service area
with which its system overlaps.
27
B. The open video system operator must ensure that all
28 subscribers receive all PEG access channels within the franchise service area in which the
City's subscribers are located.
14
1 C. The open video system operator may negotiate with the
City to establish the operator's obligations with respect to PEG access facilities. These
2 negotiations may include the City's franchised cable operator if the City, the open video
3 system operator, and the franchised cable operator so desire.
4 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,
5 Educational, and Government Access channel capacity, services, facilities, and
equipment within the City's jurisdiction, then the following obligations will be imposed:
6
(i) The open video system operator must satisfy the
7 same PEG access channel obligations as the City's franchised cable operator by
8 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,
9 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
10 open video system operator may satisfy its statutory obligation by negotiating mutually
11 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
12 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
13 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
® 14 Act.
15 (ii) The City will impose upon the open video system
16 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
17 PEG access channel use when that capacity is not being used for such purposes.
18 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
19 channel feeds. The open video system operator and the franchised cable operator may
20 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
21 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
22 connection occur on City-owned property or on public rights-of-way.
23 F. All costs of connection to the franchised cable operator's
24 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
25 contributions set forth above in subparagraph (D)(i).
26 G. The City will not impose upon the open video system
operator any Public, Educational, or Government Access Channel obligations that are
27 more favorable or less burdensome than those imposed upon the franchised cable
28 operator.
H. If there is no15existing franchised cable operator, the
1 provisions of 47 CFR § 76.1505(d)(6) will be applicable in determining the obligations of
2 the open video system operator.
3 I. The open video system operator must adjust its system to
comply with new public, educational, governmental and access charnel obligations
4 imposed on the City's franchised cable operator following a renewal of the cable
television franchise; provided, however, that the open video system operator will not be
5 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
6 access channel obligations whenever additional capacity is or becomes available, whether
7 it is due to increased channel capacity or to decreased demand for channel capacity.
8 (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
9 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
10 procedures set forth in 47 CFR § 76.1514. No agreement will be executed by the City
11 until the dispute has been finally resolved.
12 (6) If the open video system operator intends to maintain an
institutional network, as defined in Section 611(0 of the Communications Act, the City
13 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
0 14 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
15 satisfy the same financial obligations and other requirements that are imposed upon the
16 franchised cable operator to support data-transmission and related services that are
provided by the institutional network.
17
(7) The authority of an open video system provider to exercise
18 editorial control over any Public, Educational, or Government use of channel capacity
will be restricted in accordance with the provisions of 47 CFR § 76.1505(f).
19
(8) The obligation of the open video system operator to comply with
20 all applicable federal, state, and local statutes, ordinances, and regulations relating to
21 customer service standards, including the Cable Television and Video Customer Service
and Information Act (Government Code §§ 53054, et SeMc.), the Video Customer Service
22 Act (Government Code §§ 53088, et seq.), and the Consumer Protection and Service
Standards of this chapter, commencing with Section 14.08.22.
23
(9) If new physical plant is proposed to be constructed within the City,
24 the obligation of the open video system operator to comply with the following rights-of-
25 way use and management responsibilities that are also imposed by the City upon other
telecommunications service providers in a nondiscriminatory and competitively neutral
26 manner:
27 A. Compliance with all applicable City laws, including
applications for excavation, encroachment, and construction permits and the payment of
28 all required permit and inspection fees.
16
1 B. The coordination of construction activities.
2
C. Compliance with established standards and procedures for
3 constructing lines across private property.
4 D. Compliance with all applicable insurance and
indemnification requirements.
5
E. The repair and resurfacing of construction-damaged streets.
6
F. Compliance with all public safety requirements that are
7 applicable to telecommunications service providers using public property or public
8 rights-of-way.
9 (10) Acts or omissions constituting breaches or defaults of the
agreement, and the applicable penalties, liquidated damages, and other remedies,
10 including fines or the suspension, revocation, or termination of the agreement.
11 (11) Requirements relating to the sale, assignment, or transfer of the
open video system.
12
(12) Requirements relating to the open video system operator's
13 compliance with and implementation of state and federal laws, rules, and regulations
14 Pertaining to the operation of the open video system.
15 (13) Such additional requirements, conditions, terms, policies, and
procedures as may be mutually agreed upon by the City and the open video system
16 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.
17
ARTICLE IV. OTHER VIDEO AND TELECOMMUNICATIONS SERVICES AND
18 SYSTEMS
19 14.08.22. OTHER MULTICHANNEL VIDEO PROGRAMMING
20 DISTRIBUTORS.
21 The term "cable system" does not include a facility that serves subscribers
without using any public rights-of-way. Consequently, the categories of multichannel
22 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
23 local regulatory provisions authorized by federal law, provided that their distribution or
24 transmission facilities do not involve the use of the City's public rights-of-way.
25 (a) Multichannel multipoint distribution service ("MMDS"), also known as
"wireless cable," which typically involves the transmission by an FCC-licensed operator
26 of numerous broadcast stations from a central location using line-of-sight technology.
27 (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
28 video programming, telephone, and data networking services.
17
■
1 (c) Direct broadcast satellite ("DBS"), also referred to as "direct-to-home
satellite services," which involves the distribution or broadcasting of programming or
2 services by satellite directly to the subscriber's premises without the use of ground-
3 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
4 proscribed by the following federal statutory provisions:
5 (1) 47 U.S.C. § 303(v) confers upon the FCC exclusive jurisdiction to
regulate the provisions of direct-to-home satellite services.
6
(2) Section 602 of the Communications Act states that a provider of
7 direct-to-home satellite service is exempt from the collection or remittance, or both, of
8 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
g 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
10 other tax, license, or fee that is imposed for the privilege of doing business, regulating, or
11 raising revenue for a local taxing jurisdiction.
12 14.08.23. VIDEO PROVIDERS —REGISTRATION; CUSTOMER SERVICE
STANDARDS.
13
(a) Unless the customer protection and customer service obligations of a
14 video provider are specified in a franchise with the City, a video provider must comply
with all applicable provisions of the following state statutes:
15
(1) The Cable Television and Video Customer Service and
16 Information Act (Government Code §§ 53054 et se
17 (2) The Video Customer Service Act (Government Code §§ 53088, et
18 se q.).
19 (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,
20 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
21 form must include or be accompanied by the following:
22 (1) The video provider's name, address, and local telephone numbers.
23
(2) The names of the officers of the video provider.
24
(3) A copy of the video provider's written policies and procedures
25 relating to customer service standards and the handling of customer complaints, as
required by California Government Code §§ 53054, et seq. These customer service
26 standards must include, without limitation, standards regarding the following:
27 A. Installation, disconnection, service and repair obligations,
28 employee identification, and service call response time and scheduling.
18
1 B. Customer telephone and office hours.
2 C. Procedures for billing, charges, refunds, and credits.
3 D. Procedures for termination of service.
4 E. Notice of the deletion of a programming service, the
5 changing of channel assignments, or an increase in rates.
6 F. Complaint procedures and procedures for bill dispute
resolution.
7
G. The video provider's written acknowledgement of its
8 obligation under California Government Code §53055.1 to provide to new customers a
9 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
10 include, in addition to all of the information described above in subparagraphs (A)
through(F), all of the following:
11
(i) A listing of the services offered by the video
12 provider that clearly describes all levels of service and the rates for each level of service.
13 (ii) The telephone number or numbers through which
14 customers may subscribe to, change, or terminate service, request customer service, or
seek general or billing information.
15
(iii) A description of the rights and remedies that the
16 video provider may make available to its customers if the video provider does not
materially meet its customer service standards.
17
H. The video provider's written commitment to distribute
18 annually to its employees and customers, and to the City, a notice describing the
19 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
20 its customer service standards, as required by California Government Code § 53055.2.
21 (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
22 Common Council to cover the reasonable costs incurred by the City in reviewing and
23 processing the registration form.
24 (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
25 expenses reasonably incurred by the City in resolving any disputes between the video
provider and its subscribers, which dispute resolution is mandated by California
26 Government Code § 53088.2(p).
27 (c) The customer service obligations imposed upon video providers by the
28 Video Customer Service Act California Government Code §§53088 et sue.) consist of the
following:
19
1 (1) Every video provider must render reasonably efficient service,
2 make repairs promptly, and interrupt service only as necessary.
3 (2) All video provider personnel contacting subscribers or potential
subscribers outside the office of the provider must be clearly identified as associated with
4 the video provider.
5 (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
6 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
7 receiving complaints.
8 (4) All video providers must have knowledgeable, qualified company
g representatives available to respond to customer telephone inquiries Monday through
Friday, excluding holidays, during normal business hours.
10
(5) All video providers must provide to customers a toll-free or local
11 telephone number for installation, service, and complaint calls. These calls must be
12 answered promptly by the video providers.
I
13 (6) All video providers must render bills that are accurate and
understandable.
14
(7) All video providers must respond promptly to a complete outage in
15 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
16 video provider. A video provider will be deemed to respond to a complete outage when a
17 company representative arrives at the outage location within 24 hours and begins to
resolve the problem.
18
(8) All video providers must provide a minimum of 30 days' written
19 notice before increasing rates or deleting channels. All video providers must make every
reasonable effort to submit the notice to the City in advance of the distribution to
20 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
21 make reasonable efforts to provide customers with as much notice as possible.
22
(9) Every video provider must allow every residential customer who
23 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
24 pursuant to a residential rental agreement establishing tenancy. Customer payments must
be posted promptly. No video provider may terminate residential service for nonpayment
25 of a delinquent account unless the video provider furnishes notice of the delinquency and
26 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
27 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
28 statement. Additionally, no video provider may assess a late fee any earlier than the 22nd
20
1 day after the bill for service has been mailed.
2 (10) Every notice of termination of service pursuant to the preceding
3 subsection (9) must include all of the following information:
4 A. The name and address of the customer whose account is
delinquent.
5
B. The amount of the delinquency.
6
C. The date by which payment is required in order to avoid
7 termination of service.
8 D. The telephone number of a representative of the video
9 provider who can provide additional information and handle complaints or initiate an
investigation concerning the service and charges in question.
10
(11) Service may only be terminated on days in which the customer can
11 reach a representative of the video provider either in person or by telephone.
12 (12) Any service terminated without good cause must be restored
without charge for the service restoration. Good cause includes, but is not limited to,
13 failure to pay, payment by check for which there are insufficient funds, theft of service,
14 abuse of equipment or system personnel, or other similar subscriber actions.
15 (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
16 of the equipment supplied by the video provider, if service is terminated.
17 (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
18 deductions permitted by law.
19 (15) Video providers must not disclose the name and address of a
20 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
21 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
22 describes the subscriber's ability to prohibit the disclosure. Video providers must
23 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.
24
(d) As authorized by Government Code §53088.2(r), the following
25 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
26 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
27 chapter or by any other law, and the City has discretion to elect the remedy that it will
28 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
21
1 by law, including but not limited to any judicial remedy as provided below in subsection
2 (2).
3 (1) Schedule of Penalties.
4 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
5 each occurrence of material breach, irrespective of the number of customers affected.
6 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
8 occurrence of the material breach, irrespective of the number of customers affected.
9 C. For a third or further material breach of the same
nature for which a monetary penalty was previously assessed within the preceding 12
10 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
11 customers affected.
12 D. The maximum penalties referenced above may be
13 increased by any additional amount authorized by state law.
14 (2) Judicial Remedies Not Affected.
I 15 The imposition of penalties in accordance with the provisions of
subsection (1) above does not preclude any affected party from pursuing any judicial
16 remedy that is available to that party.
17 (3) Administration, Notice, and Appeal.
18 A. The City Manager is authorized to administer this
I 19 paragraph (d). Decisions by the City Manager to assess penalties against a video
provider must be in writing and must contain findings supporting the decisions.
20 Decisions by the City Manager are final, unless appealed to the Mayor and Common
Council.
21
B. If the video provider or any interested person is
22 aggrieved by a decision of the City Manager, the aggrieved party may, within 10 days of
23 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
24 applicable fee established by the Mayor and Common Council for processing the appeal.
I The Mayor and Common Council may affirm, modify, or reverse the decision of the City
25 Manager.
26 C. The imposition of monetary penalties under
27 subsection (1) above is subject to the following requirements and limitations:
28 i) The City must give the video provider
written notice of any alleged material breach of the consumer service standards and must
22
1 allow the video provider at least 30 days from receipt of that notice to remedy the breach.
2 (ii) For the purpose of assessing monetary
3 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
4 breach has not been remedied by the video provider, irrespective of the number of
customers affected.
5
(iii) In assessing monetary penalties under this
6 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
7 and gravity of the violation and, with respect to the video provider, the degree of
8 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
9 the maximum penalty authorized above in subsection (d)(1).
10 14.08.24. TELECOMMUNICATIONS SERVICE PROVIDED BY TELEPHONE
CORPORATIONS.
11
Any video programming provided by a telephone corporation that uses public
12 rights-of-way in the delivery of that video programming, regardless of the technology
13 used, will be considered a cable service under this Ordinance unless such programming is
otherwise expressly authorized by state or federal law.
14
(a) In recognition of and in compliance with statutory requirements that are
15 set forth in state law, the following regulatory provisions are applicable to a telephone
corporation that desires to provide telecommunications service by means of facilities that
16 are proposed to be constructed within the City's public rights-of-way:
17 (1) The telephone corporation must apply for and obtain, as may be
18 applicable, an excavation permit, an encroachment permit, or a building permit
("ministerial permit.")
19
(2) In addition to the information required by this Ordinance in
20 connection with an application for a ministerial permit, a telephone corporation must
21 submit to the City the following supplemental information:
22 A. A copy of the certificate of public convenience and
necessity issued by the California Public Utilities Commission ("CPUC") to the
23 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
24 City's public rights-of-way.
25 B. If the applicant has obtained from the CPUC a certificate of
26 public convenience to operate as a "competitive local carrier," the following additional
® requirements are applicable:
27
(1) As required by the CPUC, the applicant must
28 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
23
1 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
2 necessary.
3 (ii) If the applicant's proposed construction project will
4 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
5 of public convenience and necessity and that the proposed construction project has been
subjected to a full-scale environmental analysis by the CPUC, as required by Decision
6 No. 95-12-057 of the CPUC.
7 (iii) The applicant must inform the City whether its
8 proposed construction project will be subject to any of the mitigation measures specified
in the Negative Declaration ["Competitive Local Carriers (CLCs) Projects for Local
9 Exchange Communication Service throughout California"] or to the Mitigation
Monitoring Plan adopted in connection with Decision No. 95-12-057 of the CPUC. The
10 City's issuance of a ministerial permit will be conditioned upon the applicant's
compliance with all applicable mitigation measures and monitoring requirements
11 imposed by the CPUC upon telephone corporations that are designated as "competitive
12 local carriers."
13 (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
14 the adverse impacts of numerous excavations on the quality and longevity of public street
15 maintenance within the City, the following policies and procedures are adopted:
16 (1) The City Manager is directed to ensure that all public utilities,
including telephone corporations, comply with all local design, construction, maintenance
17 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.
18
(2) The City Manager is directed to coordinate the construction and
19 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
20 upon projected plans for street construction or renovation projects, the City Manager is
21 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
22 corporations and other public utilities that submit applications for ministerial permits to
constrict facilities after a predetermined date may be required to delay such construction
23 until the next quarterly"window" that is established by the City.
24 (c) Subject to applicable provisions of state and federal law, any video
25 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,
26 will be deemed to be a video service subject to the franchise requirements set forth in
Section 14.08.04 of this chapter.
3 27
(d) Telephone corporations that apply for and receive a state franchise to
28 provide video service within all or any part of the City must comply with the provisions
of this Title, and all applicable provisions 24of the Digital Infrastructure and Video
1 Competition Act of 2006 (Division 2.4 of the California Public Utilities Code,
{ „
2 commencing with Section 5800).
3 14.08.25. PUBLIC, EDUCATIONAL, AND GOVERNMENTAL ACCESS
SUPPORT FEE (PEG FEE) AND REQUIREMENT TO PROVIDE PEG CHANNELS
4
a) PEG FEE: A fee of 1% of Gross Revenues shall be assessed on all video
5 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
6 paid quarterly, to be received by the City not later than 45 days after the close of each
7 quarter of Grantee's fiscal year.
8 (1) On a quarterly basis, Grantee shall provide the City a complete and
accurate statement verified by a financial officer of Grantee indicating Gross Revenues
9 for the past quarter, listing every revenue source, and depicting gross revenue
computations.
10
(2) A video service provider subject to this section may recover the
11 amount of any fee by billing a recovery fee as a separate line item on the regular bill of
12 each Subscriber .
13 (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
14 the carriage 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
15 for PEG programming within the city for at least eight hours per day.
16 (1) PEG channels shall be for the exclusive use of the City or its
17 designee to provide public, educational, or governmental channels.
18 (2) Advertising, underwriting, or sponsorship recognition may be
19 carried on the channels for the purpose of funding PEG-related activities.
20 (3) The PEG channels shall all be carried on the basic service tier of
grantee.
21
(4) To the extent feasible, the PEG channels shall not be separated
22 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
23 operator unless prohibited by federal law.
24
(5) After the initial designation of PEG channel numbers, the channel
25 umbers shall not be changed without the agreement of the City unless the change is
required by federal law.
26
(6) Each channel shall be capable of carrying a National Television
27 System Committee (NTSC) television signal.
28
(c) INTERCONNECTION. Where technically feasible, all Grantee's video
service providers shall negotiate in good 25faith to interconnect their networks for the
1 purpose of providing PEG programming. Interconnection may be accomplished by direct
cable, microwave link, satellite, or other reasonable method of connection. Holders of a
2 state franchise and incumbent cable operators shall provide interconnection of the PEG
3 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
4 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
5 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
6 shall make an interconnection available to the channel originator and shall provide the
7 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
8 to by the parties.
9 ARTICLE V. DEFINITIONS
10 14.08.26. DEFINED TERMS AND PHRASES.
11 (a) For the purposes of this chapter, the words, terms, phrases, and
12 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
13 the plural number.
14 "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,
15 such person.
16 "Cable service" means the one-way transmission to subscribers of video
17 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
18 service. For the purposes of this definition, "video programming" means programming
provided by, or generally considered comparable to programming provided by, a
19 television broadcast station; and "other programming service" means information that a
20 cable system operator makes available to all subscribers generally.
21
"Cable system," or "cable communications system" or "cable television system,"
means a facility, consisting of a set of closed transmission paths and associated signal
22 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
23 community. The term "cable system" does not include:
24 (1) A facility that serves only to retransmit the television signals of
25 one or more television broadcast stations; or
26 (2) A facility that serves subscribers without using any public rights-
of-way; or
27
(3) A facility of a common carrier that is subject, in whole or in part,
28 to the provisions of Title 11 of the Communications Act, except that such facility will be
considered a cable system (other than for 26purposes specified in Section 621(c) of the
1 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
2 interactive on-demand services; or
3 (4) an open video system that complies with Section 653 of the
4 Communications Act; or
5 (5) Any facilities of an electric utility that are used solely for operating
its electric utility system.
6
"Cable system operator" or "cable operator" means any person or group of
7 persons:
8 (1) Who provides cable service over a cable system and directly or
9 through one or more affiliates owns a significant interest in that cable system; or
10 (2) Who otherwise controls or is responsible for, through any
arrangement, the management and operation of that cable system.
11
"CFR" means the Code of Federal Regulations. Thus, the citation of "47 CFR
12 80.1" refers to Title 47, part 80, section 1, of the Code of Federal Regulations.
13 "City" means the City of San Bernardino, California as represented by its Mayor
0 14 and Common Council or by any delegate acting within the scope of its delegated
authority.
15
"City Manager" means the City Manager of the City of San Bernardino, or the
16 City Manager's designee.
17 "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
18 Television Consumer Protection and Competition Act of 1992, and the
19 Telecommunications Act of 1996.
20 "FCC" or "Federal Communications Commission" means the federal
administrative agency, or any lawful successor, that is authorized to regulate cable and
21 telecommunications services and cable and telecommunications service providers on a
national level.
22
"Franchise" means an initial authorization, or the renewal of an initial
23 authorization, granted by the Mayor and Common Council, whether such authorization is
24 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
25 video system.
26 "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
27 of rent for the Grantee's use of the public rights-of-way. The term "franchise fee" does
28 not include:
(1) Any tax, fee or27assessment of general applicability
® 1 (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
2 discriminatory against cable operators or cable subscribers);
3 (2) Capital costs that are required by the franchise to be incurred by a
4 Grantee for public, educational, or governmental access facilities;
5 (3) Requirements or charges that are incidental to the award or
enforcement of the franchise, including payments for bonds, security funds, letters of
6 credit, insurance, indemnification, penalties, or liquidated damages; or
7 (4) Any fee imposed under Title 17, United States Code.
8 "Franchise service area" or "service area" means the entire geographic area of the
9 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.
10
"Grantee" means any person that is awarded a franchise in accordance with this
11 Chapter, and that person's lawful successor, transferee, or assignee.
12 "Gross Revenue" means all revenue, that is received, directly or indirectly, by
13 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
14 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
15 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
16 or in connection with the distribution of any cable service. It is intended that all revenue
17 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
18 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
19 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
20 between Grantee and any person, but not less than the customary prices paid in
21 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
22 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
23 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
24 derived from advertising sales, the sale of products or services on home shopping
25 channels, and the sale of program guides. Gross revenue does not include: (1) the
revenue of any person to the extent that such revenue is also included in the gross
26 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
27 (4) deposits and refunds.
28 "Multichannel video programming distributor" or "video programming
distributor" means a person such as, but not 28limited to, a cable system operator, an open
1 video system operator, a multichannel multipoint distribution service, a direct broadcast
satellite service, or a television receive-only satellite program distributor, who makes
2 available multiple channels of video programming for purchase by subscribers or
3 customers.
4 "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
5 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
6 authorized to operate in the City and complies with 47 CFR 1500 et seq., titled "Open
7 Video Systems."
8 "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
9 affiliates owns a significant interest in that open video system, or otherwise controls or is
10 responsible for the management and operation of that open video system.
"Person" means an individual, partnership, limited liability company, association,
11 joint stock company, trust, corporation or governmental entity.
12 "Public, educational or government access facilities," "PEG access facilities," or
13 "PEG access" means the total of the following:
14 (1) Channel capacity designated for noncommercial public,
educational, or government use; and
15
16 (2) Facilities and equipment for the use of that channel capacity.
"Subscriber" or "customer" or "consumer" means any person who, for any
17 purpose, subscribes to the services provided b a multichannel video
P Y programming
18 distributor and who pays the charges for those services.
19 "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
20 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
21 authorizes to be included within the definition of a street.
22 "Telecommunications" means the transmission, between or among points
23 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.
24
"Telecommunications equipment" means equipment, other than customer
25 premises equipment, used by a telecommunications service provider to provide
26 telecommunications service, including software that is integral to that equipment.
27 "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
28 the public, regardless of the equipment or facilities that are used.
29
i
1 "Telecommunications service provider" means any provider of
telecommunications service.
2
3 46 U.S.C. § " means the United States Code. Thus, the citation of"47
U.S.C. § 153" refers to Title 47, section 153, of the United States Code.
4
"Video programming provider" means any person or group of persons who has
5 the right under the federal copyright laws to select and to contract for the carriage of
6 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 programming to a residence, including a home, multi-family
8 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
9 charges, and whether or not public rights-of-way are used in the delivery of that video
programming. A "video provider" includes, without limitation, providers of cable
10 television service, open video system service, master antenna television, satellite master
antenna television, direct broadcast satellite, multipoint distribution services and other
11 providers of video programming, whatever their technology.
12 b Unless otherwise expressly stated words terms
phrases, and
13 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
14 used in Title 47 of the Code of Federal Regulations.
15 ARTICLE VI. VIOLATIONS; ENFORCEMENT
16 14.08.27. Violations; Enforcement
17 (a) Any person who willfully violates any provision of this
18 chapter is guilty of a misdemeanor and is punishable as provided for in Chapter 1.12 of
Title 1 of this Code.
19
(b) The misdemeanor penalty specified above in paragraph(a)
20 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
21 agreement between the City and a multichannel video programming distributor or other
22 telecommunications service provider.
23 (c) The City may initiate a civil action in any court of
competent jurisdiction to enjoin any violation of this chapter.
24
SECTION 2. The Mayor and Common Council hereby declares that the
25 provisions of this Ordinance are severable, and if for any reason a court of competent
26 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
27 statute, such judicial decision or statute enactment shall not affect the validity of the
remaining parts of this Ordinance.
28
I HEREBY CERTIFY that the foregoing Ordinance was duly adopted by the
30
-� 1 Mayor and Common Council of the City of San Bernardino at a meeting thereof, held on
2 the day of , 2007, by the following vote, to wit:
3 COUNCIL MEMBERS: AYES NAYS ABSTAIN ABSENT
4 ESTRADA
5 BAXTER
6 BRINKER
7
DERRY
8
KELLEY
9
10 JOHNSON
11 MCCAMMACK
12
13 Rachel G. Clark, City Clerk
14 The foregoing Resolution is hereby approved this day of
15 2007.
16
17 PATRICK J. MORRIS, Mayor
18 City of San Bernardino
Approved as to form:
19
20 By:
JAMES F. PENMAN
21 City Attorney
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