Beaumont Municipal Code Ch. 5.35 Regulating State-Issued Franchises to Provide Video Services

It is the purpose of this Chapter 5.35 to implement within the City of Beaumont the provisions of the "Digital Infrastructure and Video Competition Act of 2006" (California Public Utilities Code, Sections 5800 et seq.).

(Ord. 932)

For purposes of this Chapter 5.35, the definitions set forth in California Public Utilities Code, Section 5830 are hereby incorporated herein by this reference as though set forth at length.

(Ord. 932)

A. No person may construct, operate, maintain or repair a cable system or video service provider's network within the City without first obtaining a state franchise therefor.

B. Except as otherwise provided by the California Public Utilities Code, a state franchise shall not include, or be a substitute for:

1. 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;

2. Any permit or authorization, other than a state franchise, 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, and street cut permits; and

3. 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.

C. Except as otherwise provided in the California Public Utilities Code, a state franchise shall not relieve a franchisee of its duty to comply with all laws, including the ordinances, resolutions, rules, regulations and other laws of the City, and every state franchisee shall comply with the same. The City reserves its rights to the lawful exercise of police and other powers the City now has or may later obtain.

D. The City reserves the right to construct, operate, maintain or repair its own cable system or video service provider network.

(Ord. 932)

A. The City may, from time-to-time adopt rules and regulations to implement the provisions of this Chapter 5.35 consistent with the California Public Utilities Code.

B. The failure of the City, upon one or more occasions, to exercise a right or require compliance or performance under this Chapter 5.35 or any other applicable law shall not be deemed to constitute a waiver of such right or a waiver of compliance or performance, unless such right has been specifically waived in writing or its exercise by the City is not permitted by the California Public Utilities Code.

C. The City may designate one or more entities, including itself, to control and manage the use of PEG access channels, and any PEG facilities and equipment.

(Ord. 932)

A. A video service provider operating within the City shall, in its use of public rights-of-way and public and private property, be considered a "utility" within the meaning of the Beaumont Municipal Code and any provisions thereof which are applicable to any utility or utilities. Any application to use the public rights-of-way shall include a description, including locations, of the state franchisee's existing or proposed network.

B. No video service provider may construct, operate, maintain or repair a cable system or network in the public rights-of-way without first complying with all statutory requirements, including the California Environmental Quality Act (Public Resources Code Section 21000 et seq.).

(Ord. 932)

A. Every state franchisee operating within the City limits shall pay a franchise fee to the City in the amount of five percent of that state franchisee's gross revenues derived from the operation its network to provide cable or video services within the City.

B. For purposes of this Chapter 5.35, "gross revenue" shall have the meaning set forth in California Public Utilities Code, 5860.

C. A state franchisee shall remit the franchise fee to the City quarterly, within 45 days after the end of each calendar quarter. Each payment shall be accompanied by a summary explaining the basis for the calculation of the franchise fee.

D. If a state franchisee fails to pay the franchise fee when due, or underpays the proper amount due, the state franchisee shall pay a late payment charge at an annual interest rate equal to the highest prime lending rate during the period of delinquency, plus one percent.

(Ord. 932)

A. Every state franchisee operating within the City limits shall provide PEG access channel capacity and support as more specifically provided for in California Public Utilities Code, Section 5870 and as the City and the state franchisee may otherwise mutually agree upon.

B. Every state franchisee operating within the City shall pay a PEG support fee to the City in the amount of one percent of that state franchisee's gross revenues derived from the operation of its network to provide cable or video services within the City. The PEG support fee shall be used by the City for PEG purposes consistent with state and federal law. The state franchisee shall remit the PEG support fee to the City quarterly, within 45 days after the end of each calendar quarter. Each payment shall be accompanied by a summary explaining the basis for the calculation of the PEG support fee. If a state franchisee fails to pay the PEG fee when due, or underpays the proper amount due, the state franchisee shall pay a late payment charge at an annual interest rate equal to the highest prime lending rate during the period of delinquency, plus one percent.

(Ord. 932)

A. Not more than once annually, the City or its designee may examine and audit the business records of a state franchisee to ensure compliance with the franchise fee payment obligation of Sections 5.35.060 and 5.35.070.

B. A state franchisee shall keep all business records reflecting any gross revenues, even if there is a change in ownership of the state franchisee, for at least four years after such gross revenues are recognized by the state franchisee on its books and records. In the case of subscriber numbers used for calculating the PEG fee, a state franchisee shall keep data on the number of its subscribers in the City, even if there is a change in ownership of the state franchisee, for at least four years after the close of each calendar quarter on which the PEG support fee is to be paid.

C. To the extent consistent with the California Public Utilities Code and other applicable law, the City may request, and a state franchisee shall provide, information and books and records to the extent necessary to monitor a state franchisee's compliance with the Chapter 5.35.

(Ord. 932)

A. A state franchisee shall comply with Sections 53055, 53055.1, 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, including any such standards hereafter adopted.

B. The City Manager will provide a state franchisee with written notice of any material breaches of applicable customer service or consumer protection standards, and will allow the state franchisee 30 days from receipt of the notice to remedy the specified material breach. Material breaches not remedied within the 30-day time period shall be subject to the following penalties to be imposed by the City:

1. For the first occurrence of a violation, a fine of $500.00 shall be imposed for each day the violation remains in effect, not to exceed $1,500.00 for each violation.

2. For a second violation of the same nature within 12 months, a fine of $1,000.00 shall be imposed for each day the violation remains in effect, not to exceed $3,000.00 for each violation.

3. For a third or further violation of the same nature within 12 months, a fine of $2,500.00 shall be imposed for each day the violation remains in effect, not to exceed $7,500.00 for each violation.

C. A state franchisee may appeal a penalty assessed by the City Manager to the City Council within 60 days of the initial assessment. The Council shall hear all evidence and relevant testimony and may uphold, modify or vacate the penalty. The Council's decision on the imposition of a penalty shall be final.

(Ord. 932)