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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. k . 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 { o _ 4A 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.. — L G� 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 22 23 24 25 26 27 28 31