Bradbury Municipal Code Ch. 6 State Video Franchises

This chapter is designed to regulate video service providers holding state video franchises and operating within the City. On January 1, 2007, the State became the sole authority with power to grant State video franchises pursuant to the Digital Infrastructure and Video Competition Act of 2006 F ("DIVCA"). Pursuant to DIVCA, the City is entitled to receive a franchise fee from all State franchises. In addition, the City is entitled to receive from all State franchisees, fees to support public, educational, and government access channel facilities. DIVCA confirmed that the City may establish and enforce penalties, consistent with State law, against all State video franchise holders operating within the City for violations of customer service standards. DIVCA precludes the City from adopting its own standards and grants all authority to adopt customer service standards to the state. DIVCA leaves unchanged the City's authority to regulate the City's current cable franchises and any City cable franchise issued on or before January 1, 2008, until the expiration of any such franchise.

(Prior Code, § 6600)

(a) No person may construct, operate, maintain or repair a cable system or video service provider's network in the City without first obtaining a State franchise therefor.

(b) A State franchise shall not convey rights other than as specified in this chapter or in the California Public Utilities Code or other applicable law; no rights shall pass by implication.

(c) 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.

(d) 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.

(e) The City reserves the right to construct, operate, maintain or repair its own cable systems or video service provider network.

(Prior Code, § 6601)

(a) Any State video franchise holder operating within the boundaries of the City shall pay a fee to the City equal to five percent of the gross revenues of that State video franchise holder.

(b) Effective the first day on which the State franchisees begin operating within the boundaries of the City, each State franchisee shall pay a fee to the City equal to one percent of gross revenues ("PEG access facilities fee") of that state video franchise holder to support public, educational, and governmental (PEG) access channel facilities within the City.

(c) The PEG access facilities fee shall be paid quarterly no later than 60 days following the quarter for which the payment is due. The PEG access facilities fee is in addition to the franchise fee to be paid to the City by the State video service franchise holders.

(d) Gross revenue, for the purposes of Subsections (a) and (b) of this section, shall have the definition set forth in Public Utilities Code § 5860.

(Prior Code, § 6602)

Not more than once annually, the City Manager or the City Manager's designee may examine and perform an audit of the business records of a holder of a State video franchise to ensure compliance with Section 13.06.020.

(Prior Code, § 6603)

(a) Any holder of a State video service franchise shall comply with all applicable State and Federal customer service and protection standards pertaining to the provision of video service.

(b) The City will provide any holder of a State video franchise written notice of any material breach of applicable customer service and protection standards, and will allow the franchise holder at least 30 calendar days from the receipt of the notice to remedy the specified material breach. A material breach that is not remedied by the State video franchise holder within the remedy period shall subject the State video franchise holder to the following penalties to be imposed by the City:

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

(2) For the second violation of the same nature with 12 months, a penalty of $1,000.00 for each day of each material breach, not to exceed $3,000.00 for each occurrence of a material breach.

(3) For a third or further violation of the same nature with 12 months, a penalty of $2,500.00 for each day of each material breach, not to exceed $7,500.00 for each occurrence of a material breach.

(c) Any notice and any penalty may be issued or imposed by the City Manager, or the City Manager's designee. Any notice shall be in writing. Notices shall be transmitted by United States Postal Service certified or registered mail, return receipt requested and postage prepaid, or by private commercial delivery or courier service for same day or next business day delivery with delivery and receipt signature required.

(d) The State video service franchise holder may appeal any finding of material breach or imposition of penalties to the City Council. Any appeal must be made within 30 calendar days of receipt by the State video service franchise holder of the finding or material breach or the imposition of penalties, and must be submitted in writing to the City Clerk and the City Manager in order to be placed on a City Council agenda for consideration. 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.

(e) The City and any State video service 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 the City Manager's designee, and an authorized representative of the State video franchise holder.

(f) Any penalty imposed on the State video franchise holder shall be promptly paid to the City. As provided for in Public Utilities Code § 5900(g), the City shall submit one-half of all penalties received from a State video franchise holder to the digital divide account established in Public Utilities Code § 280.5.

(Prior Code, § 6604)

(a) As provided for in Public Utilities Code § 5885, the City shall either approve or deny an application from a State video service franchise holder for an encroachment permit within 60 days of receiving a completed application.

(b) The term "encroachment permit" means any permit issued by the City relating to construction or operation of facilities relating to the provision of video service under a State video service franchise.

(c) An application for an encroachment permit is considered complete when the applicant has complied with all statutory requirements, including the California Environmental Quality Act (CEQA) of the Public Resources Code.

(d) Any City denial of an application for an encroachment permit shall be in writing and shall contain a detailed explanation of the reason for the denial.

(e) An applicant whose application for an encroachment permit has been denied may appeal the denial to the City Council. Any appeal must be made within 14 calendar days of receipt by the State video service franchise holder of the denial, and must be submitted in writing to the City Clerk and the City Manager in order to be placed on the City Council agenda for consideration. Any appeal must contain a detailed explanation of why the applicant believes that the denial was inconsistent with statutory requirements.

(Prior Code, § 6605)