Carpinteria Municipal Code Ch. 5.71 Implementation of the Digital Infrastructure and Video Competition Act

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

(2) 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.

(3) Except as otherwise expressly 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 construction, repair, maintenance and/or operations on or in public rights-of-way or public property, including, but not limited to, coastal development permits and encroachment 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.

(4) Except as otherwise provided in DIVCA, a state franchise shall not relieve a state 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.

(5) Nothing contained in this section 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 the DIVCA.

(Ord. No. 720, § 2, 5-14-2018)

For purposes of this section, the following terms, phrases, words, and their derivations shall have the meaning given in this section. Unless otherwise expressly stated, words not defined in this section shall be given the meaning set forth in Section 5.70.010 as may be amended from time to time, unless the context indicates otherwise. Words not defined in this section or Section 5.70.010 shall have the same meaning as established in:

(1) DIVCA, and if not defined therein;

(2) Commission rules implementing DIVCA, and if not defined therein;

(3) Title VI of Title 47 of the Communications Act of 1934, as amended, 47 U.S.C. § 521 et seq., and if not defined therein;

(4) Their common and ordinary meaning.

When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number, words in the singular number include the plural number, and "including" and "include" are not limiting. The word "shall" and "will" are always mandatory. References to governmental entities (whether persons or entities) refer to those entities or their successors in authority. If specific provisions of law referred to herein are renumbered, then the reference shall be read to refer to the renumbered provision. References to laws, ordinances or regulations shall be interpreted broadly to cover government actions, however nominated, and include laws, ordinances and regulations now in force or hereinafter enacted or amended.

(i) "Director" means the director of the public works department of the city, acting either directly or through authorized agents.

(ii) "Gross revenues" as defined in Public Utilities Code Section 5860.

(iii) "PEG access," "PEG use," or "PEG" means the availability of a cable or state franchise holder's system for public, educational, or governmental use by various agencies, institutions, organizations, groups, and individuals, including the city and its designated access providers, to acquire, create, and distribute programming not under a state franchise holder's editorial control.

(iv) "State franchise holder" or "state franchisee" means a cable operator or video service provider that has been issued a franchise by the state Public Utilities Commission to provide cable service or video service, as those terms are defined in Public Utilities Code Section 5830, within any portion of the incorporated limits of the city.

(Ord. No. 720, § 2, 5-14-2018)

(1) 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.

(2) The state franchise fee required pursuant to this subsection shall each be paid quarterly, in a manner consistent with 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 days after the end of each calendar quarter. Each payment made shall be accompanied by a report explaining how the payment was calculated. The city may request additional information explaining the calculation by the state franchise holder.

(3) The city may audit the business records of the holder of a state franchise not more than once annually, in a manner consistent with Public Utilities Code Section 5860(i).

(4) 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.

(5) In the event a state franchise holder leases or licenses access to a network owned by the city, the city may set a franchise or other fee for access to the city-owned network separate and apart from the franchise fee charged to state franchise holders pursuant to this subsection which fee shall otherwise be payable in accordance with the procedures established by this section.

(Ord. No. 720, § 2, 5-14-2018)

(1) A state franchise holder shall comply with Government Code Sections 53055, 53055.1, 53055.2 and 53088.2; the FCC customer service and notice standards set forth in Code of Federal Regulations Sections 76.309, 76.1602, 76.1603, and 76.1619 of Title 47; Penal Code Section 637.5; 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 cable service or video service, including 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.

(2) The city may enforce the compliance of state franchisees with respect to the state and federal customer service and consumer protection standards set forth in paragraph (1). In the event of enforcement, the city will provide a state franchisee with a written notice of any material breaches of applicable customer service or consumer protection standards, and will allow the state franchisee thirty days from the receipt of the notice to remedy the specified material breach. Material breaches not remedied within the thirty-day time period will be subject to the following penalties to be imposed by the city:

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

(b) For a second material breach of the same nature within twelve months, a fine of one thousand dollars may be imposed for each day the violation remains in effect, not to exceed three thousand dollars for each violation.

(c) For a third material breach of the same nature within twelve months, a fine of two thousand five hundred dollars may be imposed for each day the violation remains in effect, not to exceed seven thousand five hundred dollars for each violation.

(3) Any penalties imposed by the city shall be imposed in a manner consistent with Public Utilities Code Section 5900.

(Ord. No. 720, § 2, 5-14-2018)

(1) Except as expressly provided in this chapter, all provisions of Title 12 (streets, sidewalks, and public places) of this code, and all city administrative rules and regulations developed to any of these provisions, as now existing or as hereafter amended, shall apply to all work performed by or on behalf of a state franchise holder on any city public rights-of-way, public property, or city easement.

(2) Prior to commencing any work for which a permit is required by Title 12, a state franchise holder shall apply for and obtain a permit in accordance with the applicable provisions of this code and shall comply with all other applicable laws and regulations, including but not limited to all applicable requirements of Division 13 of the California Public Resources Code, Section 21000 et seq. (the California Environmental Quality Act).

(Ord. No. 720, § 2, 5-14-2018)

(1) 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.

(2) To the extent consistent with Public Utilities Code Section 5880, each state franchisee shall provide the system capability to transmit an emergency alert signal to all participating subscribers, in the form of an emergency override capability to permit the city to interrupt and cablecast an audio message on all channels simultaneously in the event of a disaster or public emergency.

(Ord. No. 720, § 2, 5-14-2018)

(1) PEG Channel Capacity.

(a) A state franchisee that has been authorized by the state Public Utilities Commission to provide video service in the city shall designate a sufficient amount of capacity on its network to allow the provision of the same number of public, educational, and government access channels as were activated and provided on January 1, 2007 (at least seven PEG channels to satisfy the requirements of state law, within the time limits specific by state law).

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

(2) PEG Support.

(a) Any state franchise holder operating within the city shall pay to the city, or if directed by the city, pay to the city's designated PEG provider a PEG fee equal to one percent of gross revenues as defined by DIVCA.

(b) The PEG support fee shall be used for PEG purposes consistent with the terms of the incumbent cable operator's franchise during the period of January 1, 2006 to December 30, 2006 and state and federal law.

(c) A state franchisee shall remit the PEG support fee to the city quarterly, within forty-five days after the end of each calendar quarter. Each payment made shall be accompanied by a report explaining how the PEG support fee was calculated.

(d) If a state franchisee fails to pay the PEG support fee when due, or underpays the proper amount due, the state franchisee shall pay a late payment charge at the rate per year equal to the highest prime lending rate during the period of delinquency, plus one percent.

(e) Notwithstanding Public Utilities Code Section 5870(n), upon the expiration of any state franchise, without any action of the city council, this section shall be deemed to have been automatically reauthorized, unless the state franchise holder has given the city manager and the city council written notice sixty days prior to the expiration of its state franchise that the section will expire pursuant to the terms of Public Utilities Code Section 5870(n).

(3) PEG Carriage and Interconnection.

(a) As set forth in Public Utilities Code Sections 5870(b) and 5870(g)(3), state franchisees shall ensure that all PEG channels are receivable by all subscribers, whether they receive digital or analog service, or a combination thereof, without the need for any equipment other than that needed to receive the lowest cost tier of service. PEG access capacity provided by a state franchisee shall be of similar quality and functionality to that offered by commercial channels, shall be capable of carrying a National Television System Committee (NTSC) quality television signal, and shall be carried on the state franchisee's lowest cost tier of service. To the extent feasible, the PEG channels shall not be separated numerically from other channels carried on the lowest cost tier of service and the channel numbers for the PEG channels shall be the same channel numbers used by any incumbent cable operator, unless prohibited by federal law. After the initial designation of the PEG channel numbers, the channel numbers shall not be changed without the agreement of the city unless federal law requires the change.

(b) As set forth in Public Utilities Code Section 5870(h), the holder of a state franchise and an incumbent cable operator shall negotiate in good faith to interconnect their networks for the purpose of providing PEG programming. If a state franchisee and an incumbent cable operator cannot reach a mutually acceptable interconnection agreement for PEG carriage, the city shall require the incumbent cable operator to allow the state franchisee to interconnect its network with the incumbent cable operator's network at a technically feasible point on the state franchisee's network as identified by the state franchisee. If no technically feasible point of interconnection is available, the state franchisee shall make interconnection available to each PEG channel originator programming a channel in the city and shall provide the facilities necessary for the interconnection. The cost of any interconnection shall be borne by the state franchisee requesting the interconnection unless otherwise agreed to by the parties.

(c) As set forth in Public Utilities Code Section 5870(f), the content of the PEG channel is the responsibility for the local entity or its designee receiving the benefit of that capacity, and the holder of the state franchise bears only the responsibility for the transmission of that content, subject to technological restraints.

(Ord. No. 720, § 2, 5-14-2018)

(1) Each state franchise holder or applicant for a state franchise shall concurrently file with the city a complete copy of all applications, amendments to applications and notices that the state franchise holder or applicant is required to file with the state Public Utilities Commission. Within thirty days of receipt, the city manager shall provide any appropriate comments to the commission regarding an application or amendment to an application for a state franchise.

(2) Unless otherwise specified in this section, all notices or other documentation that a state franchise holder is required to provide to the city under this section or the state Public Utilities Code shall be provided to both the city manager and the city staff person in charge of cable and telecommunications, or their successors or designees.

(Ord. No. 720, § 2, 5-14-2018)

The city will retain authority, without change, over the city's current cable franchisee until such time as it no longer holds a city franchise, or is no longer operating under a current or expired city franchise.

(Ord. No. 720, § 2, 5-14-2018)