Chapter 5.25 — STATE-ISSUED CABLE TELEVISION FRANCHISES

A.

Purpose. This chapter is intended to be applicable to state franchise holders who have been awarded a state video franchise under the California Public Utilities Code Section 5800 et seq. (the Digital Infrastructure and Video Competition Act of 2006 ["DIVCA"]), to serve any location(s) within the incorporated boundaries of the city of Arroyo Grande. It is the purpose of this chapter to implement within the incorporated boundaries of the city the provisions of DIVCA and the rules of the California Public Utilities Commission promulgated thereunder that are applicable to a "local franchising entity" or a "local entity" as defined in DIVCA.

B.

Rights Reserved.

1.

The rights reserved to the city under this chapter are in addition to all other rights of the city, whether reserved by this chapter or authorized by law, and no action, proceeding or exercise of a right shall affect any other rights which may be held by the city.

2.

Except as otherwise provided by DIVCA, a state franchise shall not include, or be a substitute for:

a.

Compliance with generally applicable requirements for the privilege of transacting and carrying on a business within the city, including, but not limited to, compliance with the conditions that the city may establish before facilities may be constructed for, or providing, non-video services;

b.

Any permit or authorization required in connection with operations on or in public rights-of-way or public property, including, but not limited to, encroachment permits, street work permits, pole attachment permits and street cut permits; and

c.

Any permit, agreement or authorization for occupying any other property of the city or any private person to which access is not specifically granted by the state franchise.

3.

Except as otherwise provided in DIVCA, a state franchise shall not relieve a state franchise holder of its duty to comply with all laws, including the ordinances, resolutions, rules, regulations, and other laws of the city, and every state franchise holder shall comply with the same.

4.

No permit issued by the city to a state franchise holder is itself a franchise, nor shall any permit create a vested right that would prohibit the City from revoking or amending the permit.

C.

Compliance with this Chapter. Nothing contained in this chapter shall ever be construed so as to exempt a state franchise holder from compliance with all ordinances, rules or regulations of the city now in effect or which may be hereafter adopted which are consistent with this chapter or California Public Utilities Code Section 5800 et seq.

(Ord. No. 664, § 1, 7-8-2014)

For the purposes of this chapter:

"CPUC" shall mean the California Public Utilities Code.

"Franchise holder" shall mean a holder of a state franchise, as that term is defined at CPUC Section 5830.

"Gross revenues" shall have the definition as set forth at CPUC Section 5860.

"Material breach" shall have the definition as set forth at CPUC Section 5900(j).

"PEG" shall refer to the public, educational and governmental access operations as addressed at section CPUC Section 5870.

"State" shall mean the state of California.

(Ord. No. 664, § 1, 7-8-2014)

A.

State Franchise Fees. Any state franchise holder operating within the incorporated areas of the city shall pay to the city a state franchise fee equal to five percent of gross revenues.

B.

Payment of Franchise Fees. The state franchise fee required pursuant to this section shall each be paid quarterly, in a manner consistent with California Public Utilities Code Section 5860. The state franchise holder shall deliver to the city, by check or other means, which shall be agreed to by the city, a separate payment for the state franchise fee not later than forty-five (45) days after the end of each calendar quarter. Each payment made shall be accompanied by a report, detailing how the payment was calculated, and shall include such additional information on the appropriate form as designated by the city.

C.

Examination of Business Records. The city may examine the business records of the holder of a state franchise in a manner consistent with California Public Utilities Code subsection 5860(i).

D.

Late Payments. Pursuant to California Public Utilities Code subsection 5860(h), in the event a state franchise holder fails to make payments required by this section on or before the due dates specified in this section, the city shall impose a late charge at the rate per year equal to the highest prime lending rate during the period of delinquency, plus one percent.

(Ord. No. 664, § 1, 7-8-2014)

A.

A state franchise holder shall comply with Sections 53055, 53055.2, 53055.2 and 53088.2 of the California Government Code; the FCC customer service and notice standards set forth in Sections 76.309, 76.1602, 76.1603, and 76.1619 of Title 47 of the Code of Federal Regulations; Section 637.5 of the California Penal Code; the privacy standards of Section 551 of Title 47 of the United States Code; and all other applicable state and federal customer service and consumer protection standards pertaining to the provision of video service, include any such standards hereafter adopted. In case of a conflict, the stricter standard shall apply. All customer service and consumer protection standards under this paragraph shall be interpreted and applied to accommodate newer or different technologies while meeting or exceeding the goals of the standards.

B.

The city manager or her/his designee will provide a franchise holder with written notice of any material breach of applicable customer service and protection standards, and will allow the franchise holder at least thirty (30) calendar days after the franchise holder's receipt of the notice to remedy the specified material breach. A material breach that is not remedied by the franchise holder within the remedy period shall subject the franchise holder to the following penalties, as set forth in California Public Utilities Code Section 5900:

1.

For the first occurrence of a material breach, a penalty of not more than five hundred dollars ($500.00) for each day of each material breach, not to exceed one thousand five hundred dollars ($1,500.00) for each occurrence of a material breach.

2.

For the second violation of the same nature within twelve (12) months, a penalty of one thousand dollars ($1,000.00) for each day of each material breach, not to exceed three thousand dollars ($3,000.00) for each occurrence of the material breach.

3.

For a third or further violation of the same nature within twelve (12) months, a penalty of two thousand five hundred dollars ($2,500.00) for each day of each material breach, not to exceed seven thousand five hundred dollars ($7,500.00) for each occurrence of the material breach.

C.

The franchise holder may appeal any imposition of penalties to the city manager. Any appeal must be made within thirty (30) calendar days after the city's delivery of the notice regarding the imposition of penalties. All appeals must be timely submitted in writing to the city clerk. Any appeal must contain a detailed explanation of why the applicant believes that the finding of material breach or the imposition of penalties was inconsistent with statutory requirements or authority.

D.

The city manager shall hear all evidence and relevant testimony and may uphold, modify or vacate the penalty. The city manager's decision on the imposition of a penalty shall be final.

E.

The city and any franchise holder may mutually agree to extend the time periods specified herein. Any such agreement shall be in writing and executed by the city manager, or her/his designee, and an authorized representative of the franchise holder.

F.

Any penalty imposed on the franchise holder pursuant to this section shall be paid to the city. As provided for in subsection 5900(g) of the CPUC, the city shall submit one-half of all penalties received from a franchise holder to the Digital Divide Account established in Section 280.5 of the CPUC.

(Ord. No. 664, § 1, 7-8-2014)

The following provisions are hereby adopted in accordance with the requirements of Public Utilities Code Section 5885 with regard to holders of state franchises, installation, construction and maintenance of networks within public rights-of-way, and encroachment permits issued in accordance with Chapter 13.26 of this code for construction or operation of such facilities.

A.

No encroachment permit under Chapter 13.26 shall be issued unless a written application for the issuance of an encroachment permit is submitted to the public works director. The written application shall state the name and address and principal place of business of the applicant, the name and address and telephone number of the person responsible or in charge of the work, plans and specifications including the location and dimensions of the installation, the purpose of the facility and the approximate time which will be required to complete such work, full restoration work per city standard and remove waste material and debris.

B.

When a completed application for a permit is received by the public works department, the application shall be approved or denied by the public works director, or his/her designee, within sixty (60) days after the date of his/her receipt.

C.

An application for a permit sought pursuant to Chapter 13.26 shall not be complete until the applicant has complied with all requirements, including any analysis required under the California Environmental Quality Act (CEQA) and state CEQA guidelines, and has paid the required fee as established by a resolution of the city council.

D.

Any permit shall be subject to any reasonable conditions or limitations imposed thereon, to assure the elimination or avoidance of adverse effects.

E.

If the applicant complies with every provision of Chapter 13.26 and with all applicable provisions of this code, the public works director may issue to the applicant a written permit to perform the work set forth in the application. The application, when approved and signed by the public works director, shall constitute the permit.

F.

An extension of time may be granted by the public works director for good and sufficient reasons.

G.

Reserved.

H.

In the event the public works director denies an application for a permit, the director shall notify the applicant of the denial and furnish to the applicant a detailed explanation of the reason(s) for the denial.

I.

In the event an applicant wishes to appeal the public works director's decision to deny an application or revoke a permit issued pursuant to Chapter 13.26, the decision may be appealed to the city council. An appeal shall be filed by submitting to the city clerk, within ten (10) days after the public works director's notification of a decision on the

application, a notice of appeal stating the grounds for the appeal, along with a filing fee in an amount established by resolution of the city council. If the tenth day falls on a weekend or legal holiday recognized by the city, then the final appeal day shall be the next regular business day of the city. Within thirty (30) days after the receipt of a timely appeal.

(Ord. No. 664, § 1, 7-8-2014)

In accordance with Public Utilities Code Section 5880, each state franchise holder shall comply with the emergency alert system requirements of the Federal Communications Commission in order that emergency messages may be distributed over the state franchise holder's network.

(Ord. No. 664, § 1, 7-8-2014)

A.

PEG Channel Capacity.

1.

A state franchise holder shall designate a sufficient amount of capacity on its network to allow the provision of at least three PEG channels to satisfy the requirement of state law, within the time limits specified by state law. This section shall serve as the request for PEG channels required by California Public Utilities Code subsection 5870(a).

2.

A state franchise holder shall provide an additional PEG channel when the standards set forth in subsection 5870(d) of the California Public Utilities Code are satisfied by the city or any entity designated by the city to manage one or more of the PEG channels.

B.

PEG Fee. As provided in CPUC subsection 5870(n), the city hereby establishes a fee of one percent of a franchise holder's gross revenues to support PEG facilities, to be paid by any franchise holder operating within the boundaries of the city of Arroyo Grande in accordance with the following:

1.

The fee shall be payable to the city quarterly, and shall be paid no later than June 1, September 1, December 1 and March 1 for the preceding calendar quarter for which the payment is due.

2.

As permitted by CPUC subsection 5870(o), any franchise holder operating in the city may recover the PEG fees required herein as a separate line item on the regular bill of each subscriber.

C.

The PEG fee authorized by subsection B, above, is hereby reauthorized to the extent required by Section 5870(n) of the California Public Utilities Code. As such, all state franchisees operating within the City whose franchise is renewed shall continue to collect and remit the PEG channel facilities fee as set forth in this section, and such fee shall be automatically reauthorized as to each affected state video franchise holder upon the expiration of any state video franchise. Any and all reauthorizations shall be effective for as long as such reauthorization is required by law.

(Ord. No. 664, § 1, 7-8-2014; Ord. No. 696, § 2, 9-11-2018)

A.

Any person who applies to be a state franchise holder within the boundaries of the city of Arroyo Grande must concurrently provide complete copies to the city of any application, or amendments to applications, filed with the CPUC. One complete copy must be provided to the city clerk.

B.

Within thirty (30) days after receipt of any documents described in subsection (A), above, the city administrator, or her/his designee will provide any appropriate comments to the CPUC regarding an application or an amendment to an application for a state franchise.

(Ord. No. 664, § 1, 7-8-2014)