Big Bear Lake Municipal Code Art. XXXII Regulation of State Video and Cable Service Franchise Holders

Notwithstanding any provision of this chapter to the contrary, nothing in this chapter shall be deemed to require any person or entity to obtain a franchise issued by the city, to the extent that such person or entity is authorized to provide cable service or video services under a cable franchise or video services franchise issued by another government entity under applicable law, including but not limited to Section 5800 et seq. of the California Public Utilities Code. The requirements and provisions of this chapter shall not apply or be enforced to the extent that they actually conflict with applicable state or federal law.

(Ord. 2008-378 § 1(part), 2008)

Sections 5.20.1405 through 5.20.1440 of this chapter are intended to regulate video service providers holding state video franchises and operating within the city. Since January 1, 2007, the state of California has had the sole authority to grant state video franchises pursuant to the Digital Infrastructure and Video Competition Act of 2006 ("Act"). Pursuant to the Act, the city of Big Bear Lake shall receive a franchise fee and may receive a fee for public, educational and government ("PEG") purposes from all state video franchise holders operating within the city. Additionally, the city has the responsibility to establish and enforce penalties, consistent with state law, against all state video franchise holders operating within the city for violations of customer service standards, but the Act grants all authority to adopt customer service standards to the state. The Act leaves unchanged the city's authority to regulate the city's current cable franchise in accordance with this chapter and the cable franchise currently in effect, until such time as the cable franchisee no longer holds a city franchise or is no longer operating under a current or expired city franchise.

(Ord. 2008-378 § 1(part), 2008)

(Ord. No. 2018-460, § 4, 2-26-2018)

A. Any state video franchise holder operating within the boundaries of the city of Big Bear Lake shall pay to the city a franchise fee equal to five percent of the gross revenue of that state video franchise holder.

B. Any state video franchise holder operating within the boundaries of the city of Big Bear Lake shall pay to the city, in addition to the franchise fee, a fee equal to one percent of the gross revenue of that state video franchise holder, which shall be used by the city for public, educational, and government access purposes consistent with state and federal law. This fee obligation shall take effect upon the earlier of: (1) the fulfillment of all obligations to remit cash payments to the city for support of public, educational, and government access facilities which are contained within a city-issued cable franchise that was in effect on January 1, 2007, and which remained unsatisfied as of the effective date of the ordinance codified in this article; or (2) the termination by the holder of a city-issued cable franchise of its franchise as provided under state law. The intent of this subsection is to comply with the requirements of subsections (l), (m), and (n) of Section 5870 of the California Public Utilities Code, and the fee established in this subsection is intended to be a fee authorized by subsection (n) of Section 5870.

C. Gross revenue, for the purposes of subsections A and B above, shall have the definition set forth in California Public Utilities Code 5860.

D. To the extent reauthorization is required by law, this Article XXXII, including the PEG fee specified in subsection B of this Section 5.20.1415, is 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 so long as such reauthorization is required by law.

(Ord. 2008-378 § 1(part), 2008)

(Ord. No. 2018-460, § 2, 2-26-2018)

Not more than once annually, the city manager or his or her designee may examine and perform an audit of the business records of all holders of a state video franchise operating within the boundaries of the city of Big Bear Lake to ensure compliance with Section 5.20.1415 of this code.

(Ord. 2008-378 § 1(part), 2008)

A. Any holder of a state video franchise operating within the boundaries of the city of Big Bear Lake shall comply with all applicable state and federal customer service and protection standards pertaining to the provision of video service. The city manager, or his or her designee, shall provide any required notice in advance of enforcing such standards, including but not limited to the ninety (90) day notice required by 47 CFR 76.309(a), 76.1602(a), 76.1603(a), and 76.1619(c).

B. The city manager shall monitor the compliance of holders of a state video franchise operating within the boundaries of the city of Big Bear Lake with respect to state and federal customer service and protection standards. The city manager, or his or her designee, shall provide the state video franchise holder written notice of any material breaches of applicable customer service standards, and shall allow the state video franchise holder thirty (30) days from the receipt of the notice to remedy the specified material breach. Material breaches not remedied within the thirty (30) day time period will be subject to the following penalties to be imposed by the city:

1. For the first occurrence of a violation, a fine of five hundred dollars ($500.00) shall be imposed for each day the violation remains in effect, not to exceed one thousand five hundred dollars ($1,500.00) for each violation.

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

3. For a third or further violation of the same nature within twelve (12) months, a fine of two thousand five hundred dollars ($2,500.00) shall be imposed for each day the violation remains in effect, not to exceed seven thousand five hundred dollars ($7,500.00) for each violation.

C. A holder of a state video franchise operating within the boundaries of the city of Big Bear Lake may appeal a penalty assessed by the city manager to the city council within sixty (60) days of the initial assessment. The city council shall hear all evidence and relevant testimony and may uphold, modify or vacate the penalty. The city council's decision on the imposition of a penalty shall be final.

D. The city of Big Bear Lake shall comply with any statutory requirement to remit all or a portion of collected fine revenue to the state of California, including but not limited to the requirement in Public Utilities Code Section 5900(g).

(Ord. 2008-378 § 1(part), 2008)

A. Applicants for state video franchises, or amendments to existing franchises, that will authorize the applicant to operate within the boundaries of the city of Big Bear Lake must concurrently provide complete copies to the city of any application or amendments to applications filed with the Public Utilities Commission. At a minimum, one complete copy must be provided to the city manager.

B. Within thirty (30) days of receipt of notice of an application for a state video franchise that will authorize the applicant to operate within Big Bear Lake, the city manager shall provide any appropriate comments to the Public Utilities Commission regarding an application or an amendment to an application for a state video franchise.

(Ord. 2008-378 § 1(part), 2008)

A. Any holder of a state video franchise, or city-issued cable franchise, operating within the boundaries of the city of Big Bear Lake, that proposes to install aboveground facilities in the public right-of-way shall, no less than twenty (20) days prior to installing such facilities, provide written notice to the owner of the private or public property (excluding the public right-of-way) nearest to the proposed facility. For purposes of this subsection, "aboveground facilities" shall include only those facilities that are located on the ground or on a base or pedestal that is on the ground, and shall exclude aerial or pole-mounted facilities.

B. Any franchisee to which this section applies shall provide the city with a copy of the proposed form of notice to be used in compliance with subsection A of this section, no less than ten (10) days prior to mailing or delivering the notice. The city may require the franchisee to amend the form of the notice. Once the city has approved the form of notice, the franchisee shall not be required to obtain additional approvals of notice from the city, so long as the franchisee does not materially deviate from the form of notice approved by the city.

(Ord. 2008-378 § 1(part), 2008)

A. Prior to commencing any work for which an encroachment permit is required under Title 12, Division I of the City Code, a state video franchise holder shall apply for and obtain a permit in accordance with the provisions of Title 12, Division I. A permit application is complete when the state video franchise holder has complied with all applicable laws and regulations, including but not limited to all city administrative rules and regulations, and all applicable requirements of Division 13 of the California Public Resources Code, section 21000, and following, (the California Environmental Quality Act) and preparation of plans and specifications as required by the city engineer or his/her designee.

B. The city engineer shall, in the exercise of reasonable discretion as permitted by state law, either approve or deny a state franchise holder's application for any permit required by Title 12, Division I of the City Code within sixty (60) days of receiving a complete permit application from the state video franchise holder.

C. If the city engineer denies a state video franchise holder's application for a permit, the city engineer shall, at the time of notifying the applicant of denial, furnish to the applicant a detailed explanation of the reason or reasons for the denial.

D. A state video franchise holder that has been denied a permit required by Title 12, Division I of the City Code by the city engineer may appeal to the city council by filing a written notice of appeal with the city no later than thirty (30) days from the date of the city engineer's decision. All decisions of the city engineer shall be final unless appealed to the city council within the time period prescribed. The written notice of appeal shall be signed by the applicant, filed in duplicate with the city clerk, shall have attached a copy of the application as filed with the city engineer or his/her designee, shall recite such other items as have been filed, and shall state clearly and concisely the grounds upon which the appellant relies in his appeal. The city clerk shall forthwith transmit one copy of the notice of appeal to the city council, set the matter for a hearing within thirty (30) days after the notice of appeal is filed and shall notify the state video franchise holder and the city engineer or his/her designee of the time and place of the hearing. At the hearing, the state video franchise holder shall establish to the reasonable satisfaction of the city council that he is entitled to the issuance of a permit pursuant to the provisions of Title 12, Division I of the City Code. The city engineer or his/her designee may present his grounds for the denial of the permit. The decision of the city council shall be final.

E. The issuance of a permit under Title 12, Division I of the City Code is not a franchise, and does not grant any vested rights in any location in the city right-of-way, or in any particular manner of placement within the right-of-way. A permit to place cabinets and similar appurtenances aboveground may be revoked and the state video franchise holder required to place facilities underground, upon reasonable notice to the state video franchise holder.

(Ord. No. 2018-460, § 3, 2-26-2018)