Beaumont Municipal Code Part 1 General Provisions

The purpose of this Chapter is to promote competition in the telecommunications industry, facilitate the development of telecommunications infrastructure, minimize aesthetic impacts and damage to public property, provide for the payment of reasonable compensation for the commercial use of public property, and establish customer service standards.

(Ord. No. 820, § 1, 3-19-02)

All of the following definitions shall be construed liberally for the purpose of maximizing the scope of this Chapter.

"Basic service" means any service tier which includes the retransmission of local television broadcast signals.

"Cable operator" means any person or group of persons (A) who provides cable service over a cable system and directly or through one or more affiliates owns a significant interest in such cable system, or (B) who otherwise controls or is responsible for, through any arrangement, the management and operation of such a cable system.

"Cable programming service" means any video programming provided over a cable system regardless of service tier, including installation or rental of equipment used for the receipt of such video programming, other than: (1) Video programming carried on the Basic Service tier; (2) Video programming offered on a pay-per-channel or pay-per-program basis; or (3) A combination of multiple channels of pay-per-channel or pay-per-program video programming offered on a multiplexed or time-shifted basis, so long as the combined service consists of commonly-identified video programming and is not bundled with any regulated tier of service.

"Cable service" means (A) the one-way transmission to subscribers of (i) video programming, or (ii) other programming service, and (B) subscriber interaction, if any, which is required for the selection of such video programming or other programming service.

"Cable system" means a facility within the City, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide cable service which includes video programming and which is provided to multiple subscribers within a community, but such term does not include (A) a facility that serves only to retransmit the television signals of one or more television broadcast stations; (B) a facility that serves only subscribers in one or more multiple unit dwellings under common ownership, control, or management, unless such facility or facilities uses any public right-of-way; (C) a facility of a common carrier which is considered a cable system under federal law; or (D) any facilities of any electric utility used solely for operating its electric utility system.

"Gross revenues" means the revenue derived by a Cable Operator from the operation of the cable system to provide cable service. Gross revenues includes, but is not limited to, revenue from (1) subscriber payments for service, equipment, late fees, franchise fees and other charges; (2) advertising carried on the cable system or in subscriber bills; and (3) programmers or others relating to transmissions carried on the cable system, including but not limited to payments to carry programming and home shopping revenues. Gross revenues includes, but is not limited to, all gross revenue whether or not actually received. Gross revenues shall include all gross revenue which is not actually received, such as the value of free service provided to Cable Operator's employees and the value of services bartered or exchanged for non-monetary consideration. Gross revenues includes, but is not limited to, revenues derived from the operation of the cable system received or attributed to the franchisee, any direct or indirect affiliate of the franchisee or any partner, joint venture or other entity related in any similar way to franchisee. Gross revenues includes revenues derived from the provision of internet access, cable modems and similar services, unless specifically excluded by federal law. Nothing shall be excluded from gross revenues for any reason, including but not limited to the fact that the Cable Operator may itemize particular items on subscriber bills such as franchise fees. This definition shall be deemed to include all gross receipts and revenues to the full extent permitted by federal law.

"Gross non-cable revenues" means the revenue derived from the operation of telecommunications facilities other than revenue defined in this section as gross revenue. Gross non-cable revenues includes, but is not limited to, revenue from (1) subscriber payments for service, equipment, late fees, franchise fees and other charges; (2) advertising carried on the telecommunications facilities or in subscriber bills; and (3) programmers or others relating to transmissions carried on the telecommunications facilities, including but not limited to payments to carry programming and home shopping revenues. Gross non-cable revenues includes, but is not limited to, all gross revenue whether or not actually received. Gross non-cable revenues shall include all gross revenue which is not actually received, such as the value of free service provided to Telecommunications Operator's employees and the value of services bartered or exchanged for nonmonetary consideration. Gross non-cable revenues includes, but is not limited to, revenues derived from the operation of the telecommunications facilities received or attributed to the franchisee, any direct or indirect affiliate of the franchisee or any partner, joint venturer or other entity related in any similar way to franchisee. Gross non-cable revenues includes revenues derived from the provision of internet access, cable modems and similar services, unless a Cable Operator has paid a cable television franchise fee based on the identical revenues. This definition shall be deemed to include all gross receipts or revenues to the full extent permitted by federal law.

"Other telecommunications operator" means any person or group of persons other than a cable operator, an open video system operator, a wireless telecommunications operator or a telephone company (A) who provides telecommunications services over telecommunications facilities and directly or through one or more affiliates owns a significant interest in such telecommunications facilities, or (B) who otherwise controls or is responsible for, through any arrangement, the management and operation of such telecommunications facilities.

"Open video system" means a system within the City for the provision of video programming operated in compliance with Federal Communications Commission regulations.

"Open video system operator" means any person or group of persons who have been certified by the Federal Communications Commission as an Open Video System Operator for an Open Video System located within the City and (A) who provides video programming over the Open Video System and directly or through one or more affiliates owns a significant interest in such Open Video System, or (B) who otherwise controls or is responsible for, through any arrangement, the management and operation of such an Open Video System.

"Telecommunications operator" means any person or group of persons (A) who provides telecommunications services over telecommunications facilities and directly or through one or more affiliates owns a significant interest in such telecommunications facilities, or (B) who otherwise controls or is responsible for, through any arrangement, the management and operation of such telecommunications facilities.

"Telecommunications services" means the transmission of voice, video, data or other information between two or more points along wires, optical fibers or other transmission media, or using radio waves or other wireless media, including but not limited to cable television services, telephone services, cellular telephone services, personal communications services, internet services, open video system services and other similar services.

"Telecommunications facilities" means facilities within the City used or related to the provision of telecommunications services including, but not limited to, wires, optical fiber, antenna, cabinets, pedestals and equipment.

"Telephone company" means any telephone or telegraph corporation as defined by Sections 234—236 of the Public Utilities Code (or any successor sections) which has obtained a certificate of public convenience and necessity from the California Public Utilities Commission.

"Wireless telecommunications operator" means any person or group of persons who provides wireless telecommunications services including, but not limited to, cellular telephone, personal communications system, spread spectrum or other wireless services, and (A) who provides telecommunications services over telecommunications facilities and directly or through one or more affiliates owns a significant interest in such telecommunications facilities, or (B) who otherwise controls or is responsible for, through any arrangement, the management and operation of such telecommunications facilities.

(Ord. No. 820, § 1, 3-19-02)

All Telecommunications Operators shall comply with all provisions of this Section (General Provisions) and all other applicable provisions of this Code. In addition, all Cable Operators shall comply with Sections 5.36.200 through 5.36.740 below; all Open Video system Operators shall comply with Sections 5.36.750 through 5.36.785 below; all Telephone Companies shall comply with Section 5.36.800 below; all Wireless Telecommunications Operators shall comply with Section 5.36.850 below; and all other Telecommunications Operators shall comply with Section 5.36.900 below. All Telecommunications Operators which provide services that fall within more than one of the foregoing categories shall comply with each and every applicable section of this Code.

(Ord. No. 820, § 1, 3-19-02)

All Telecommunications Operators who own or lease any telecommunications facilities located in the public right-of-way (excluding Telecommunications Operators who merely purchase bandwidth on facilities owned by others) shall register with the City on forms provided by the Planning Department. These forms shall include, but not be limited to, the following:

1. The name and legal status of the registrant, including any affiliates who are required to register pursuant to this section;

2. The name, address and telephone number of an officer, agent or employee who will serve as the contact point for the registrant;

3. A description of the registrant's existing or proposed telecommunications facilities that are owned or will be used within the City, together with a list of any other Telecommunications Operators who will be using those telecommunications facilities;

4. A description of the telecommunications services that the registrant is or will be offering using telecommunications facilities within the City;

5. A copy of the registrant's applicable Certificate of Public Convenience and Necessity, if any, issued by the California Public Utilities Commission.

6. A registration fee in the amount established by the City Council.

(Ord. No. 820, § 1, 3-19-02)

Prior to excavating, installing telecommunications facilities upon (including but not limited to placing telecommunications facilities within existing conduit), or otherwise using City-owned property for any purpose that requires an encroachment permit under the City's encroachment permit ordinance, a Telecommunications Operator shall obtain an encroachment permit pursuant to this Code and comply with all other applicable requirements of those sections. The encroachment permit application shall also include a description of any surplus conduit that the applicant intends to install and the capacity of the telecommunications facilities being installed. If the Telecommunications Operator is proposing to install telecommunications facilities without utilizing existing surplus conduit, the Telecommunications Operator shall submit a description of all existing surplus conduit along the proposed route together with an explanation of why that existing surplus conduit is not being utilized. In such a situation, the Telecommunications Operator shall also submit evidence that it has contacted all other Telecommunications Operators who are reasonably likely to be installing telecommunications facilities along all or part of the same route and has offered to participate in a joint installation project on reasonable terms. In such a situation where, in addition, the Telecommunications Operator proposes to install overhead telecommunications facilities, the Telecommunications Operator shall submit evidence that it has offered to participate on reasonable terms together with other entities utilizing the utility poles to install the telecommunications facilities and other facilities underground. If the Telecommunications Operator proposes to install utility cabinets or other above-ground facilities, the Telecommunications Operator shall include information about noise generated by the facilities and alternatives for reducing the aesthetic impacts of the facilities, including but not limited to size reductions, screening, alternative locations and undergrounding. The Planning Department may deny the encroachment permit for failure to comply with the foregoing or any other lawful reason. The Planning Department may also attach any reasonable conditions to the encroachment permit, including but not limited to requiring some or all telecommunications facilities to be placed underground, requiring boring rather than trenching, specifying a future time period when all excavations must take place, specifying the location where facilities may be installed, requiring trenches to remain open for a reasonable period of time to permit installation of facilities by the City or its designees, and requiring the installation of surplus conduits and dedication of such conduits to the City subject to the payment of the direct marginal cost of installing such surplus conduits by the City.

(Ord. No. 820, § 1, 3-19-02)

All telecommunications facilities shall be installed within existing underground ducts or conduits whenever excess capacity is available on reasonable terms. Overhead facilities may be installed only if space is available on existing utility poles. Whenever existing telecommunications facilities or electric utility facilities are located underground along a particular street or public way, new telecommunications facilities must be installed underground along that street or public way. Whenever any new or existing telecommunications facilities or electric utility lines are located or relocated underground along a particular street or public way, the Telecommunications Operator shall relocate its telecommunications facilities underground concurrently with the other lines at its sole expense to the full extent permitted by law. Whenever new telecommunications facilities will exhaust the capacity of a street or otherwise make the installation of future telecommunications facilities impractical, the Telecommunications Operator installing the new telecommunications facilities shall provide additional ducts, conduits, manholes and other facilities designated by the Planning Department for reasonable nondiscriminatory access by other Telecommunications Operators.

(Ord. No. 820, § 1, 3-19-02)

Within 30 days following written notice from the City, a Telecommunications Operator shall relocate or remove, without expense to the City, any facilities installed, used and/or maintained by such Telecommunications Operator if and when such relocation or removal is reasonably necessary or convenient for the construction, repair, maintenance or installation of any City or other public improvement, or for any lawful change of grade, alignment, or width of any public street, way, alley, or place, including the construction of any subway or viaduct, by or on behalf of the City, irrespective of the funding source, or if the facilities have been abandoned or have not been used for a period of 90 days.

(Ord. No. 820, § 1, 3-19-02)

Unless directly and proximately caused by the willful acts of the City, the City and its officials, employees, agents and volunteers shall not be liable for any damage to or loss of any telecommunications facilities as a result of or in connection with any public works or any other acts of the City or its officials, employees, agents or volunteers.

(Ord. No. 820, § 1, 3-19-02)

When a Telecommunications Operator or any person acting on its behalf does any work in or affecting any public property, the Cable Operator shall, at its sole expense, promptly remove any unauthorized obstructions there from and restore such property to as good a condition as existed before the work was undertaken, unless otherwise directed by the City.

(Ord. No. 820, § 1, 3-19-02)

A Telecommunications Operator shall indemnify, defend and hold harmless the City and its officers, employees, agents and volunteers from and against any and all liability, loss, damage, expense, costs (including without limitation costs and fees of litigation) of every nature arising from the operations of, or the use of public property by, the Telecommunications Operator or its officers, employees, agents or contractors, except such loss or damage which was caused by the sole negligence or willful misconduct of the City.

(Ord. No. 820, § 1, 3-19-02)

All telecommunications facilities shall comply with all applicable requirements of this Code, including but not limited to zoning requirements and building code requirements.

(Ord. No. 820, § 1, 3-19-02)

The City Council may waive any provision of this Code to the extent permitted by law in exchange for exceptional public benefits provided by a Telecommunications Operator.

(Ord. No. 820, § 1, 3-19-02)

Any person required to obtain a franchise pursuant to this Code shall, in addition to all other requirements, reimburse the City for all of its costs, including but not limited to all costs of retaining consultants, related to the franchise.

(Ord. No. 820, § 1, 3-19-02)

a. Civil Action. The City may initiate a civil action in any court of competent jurisdiction to enjoin any violation of this Chapter.

b. Termination or Modification of Agreements. If any person breaches any franchise agreement or other agreement made pursuant to this Chapter, the City may, following reasonable notice, opportunity to cure and opportunity to be heard, terminate the agreement or reduce the term of the agreement.

c. Cumulative Remedies. The foregoing remedies shall be deemed non-exclusive, cumulative remedies and in addition to any other remedy the City may have at law or in equity.

(Ord. No. 820, § 1, 3-19-02)

If any provision of this Chapter is determined by any court of competent jurisdiction, or by any federal or state agency having jurisdiction over its subject matter, to be invalid and in conflict with any paramount federal or state law or regulation now or hereafter in effect, or is determined by that court or agency to require modification in order to conform to the requirements of that paramount law or regulation, then that provision will be deemed a separate, distinct, and independent part of this Chapter, and such determination will not affect the validity and enforceability of any other provisions. If that paramount federal or state law or regulation is subsequently repealed or amended so that the provision of this Chapter determined to be invalid or subject to modification is no longer in conflict with that law or regulation, then that provision will again become effective and will thereafter be binding on the City and any affected video or telecommunications service provider; provided, however, that the City must give the affected video or telecommunications service provider 30 days written notice of that change before requiring compliance with that provision, or such longer period of time as may reasonably be required for the video or telecommunications service provider to comply with that provision.

(Ord. No. 820, § 1, 3-19-02)