Ceres Municipal Code Ch. 14 Video Service Provided by State Franchise Holders

The purpose of this chapter is to set forth regulations for the provision of video service by State franchise holders, in accordance with the Digital Infrastructure and Video Competition Act, California Public Utilities Code section 5800 et seq. ("DIVCA"). This chapter shall apply only to video service providers issued a State franchise to serve any area within the City by the California Public Utilities Commission ("CPUC") pursuant to DIVCA.

(Ord. No. 2020-1057, § 1, 3-23-2020)

A. Copy or application to City. An applicant for a state video franchise within the City must concurrently provide a complete copy to the City Manager of any application or amendments to an application filed with the California Public Utilities Commission (CPUC).

B. City Manager comments to CPUC. Within 30 days of receipt, the City Manager will provide any appropriate comments to the CPUC regarding an application or an amendment to an application for a state video franchise.

(Ord. No. 2020-1057, § 1, 3-23-2020)

Any State franchise holder shall remit to the City a franchise fee in the amount of five percent of the gross revenues of the State franchise holder in compliance with Public Utilities Code sections 5840(q) and 5860.

(Ord. No. 2020-1057, § 1, 3-23-2020)

A. The City may by an amendment of this chapter establish a fee applicable to all holders of state video franchises to support PEG channel facilities pursuant to the authority, requirements, and restrictions of Section 5870 of the Public Utilities Code and any subsequent amendment(s) to said provisions.

B. The current cable franchise designates one channel for public, educational and government PEG programming. Local franchisees and holders of state franchises under the Act shall upon the request of the City, provide at least three PEG channels.

C. All state franchisees shall comply with the provisions of the Act related to PEG channels. Without limiting the foregoing, the PEG channels shall all be carried on the basic service tier. To the extent feasible, the PEG channels shall not be separated numerically from other channels carried on the basic service tier and the channel numbers for the PEG channels shall be the same channel numbers used by the incumbent cable operator unless prohibited by federal law and shall provide picture and sound quality and channel accessibility and location equal to, or substantially equal to, that provided by the incumbent cable provider. After the initial designation of PEG channel numbers, the channel numbers shall not be changed without the agreement of the City unless the change is required by federal law.

D. Any State franchise holder shall designate a sufficient amount of capacity on its network to allow the provision of PEG channels in accordance with Public Utilities Code section 5870. Any State franchise holder shall have three months from the date the City requests the PEG channels to designate the capacity. The three-month period shall be tolled by any period during which the designation or provision of PEG channel capacity is technically infeasible. Any state franchise holder who believes that the designation or provision of PEG channel capacity is technically infeasible, shall provide to City, in writing, its reasons therefore and its plan for correcting or solving the infeasibility. City may hold a hearing on the claim of infeasibility and, thereafter, take such action as City deems proper to require the designation and provision of the PEG channels on the state franchise holder's system.

E. This section shall be enforced, and disputes regarding this section shall be resolved, pursuant to Public Utilities Code section 5870.

(Ord. No. 2020-1057, § 1, 3-23-2020)

A. Any State franchise holder shall pay all fees required pursuant to sections 5.14.030 and 5.14.040 on a quarterly basis in a manner consistent with Public Utilities Code section 5860.

B. Any State franchise holder shall deliver to the City by check, or other means agreeable to the City Manager, a separate payment for the franchise fee established in sections 5.14.030 and 5.14.040 not later than 45 days after the end of each calendar quarter.

C. Each payment of the franchise fee established in section 5.14.030 delivered to the City shall be accompanied by a summary report explaining the basis for the calculation of the payment.

D. If any State franchise holder fails to remit all fees required pursuant to sections 5.14.030 and 5.14.040 when due, the State franchise holder shall remit to the City a late payment charge at the rate per year equal to the highest prime lending rate during the period of delinquency plus one percent. If the state franchisee has overpaid the franchise fees, it may deduct the overpayment from its next quarterly payment.

(Ord. No. 2020-1057, § 1, 3-23-2020)

A. Any State franchise holder shall comply with: the customer service provisions set forth in Public Utilities Code section 5900; Government Code sections 53055, 53055.1, 53055.2 and 53088.2; the FCC customer service and notice standards set forth in 47 CFR sections 76.309, 76.1602, 76.1603 and 76.1619; Penal Code section 637.5; the privacy standards of 47 U.S.C. section 551; 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. In case of a conflict, the stricter standard shall apply. All customer service and consumer protection standards under this subsection shall be interpreted and applied to accommodate newer or different technologies while meeting or exceeding the goals of the standards.

B. The City shall impose the following penalties against a State franchise holder for any material breach of the customer service provisions set forth in Public Utilities Code section 5900:

1. For the first occurrence of a material breach, a fine of $500.00 shall be imposed for each day of each material breach, not to exceed $1,500.00 for each occurrence of the material breach.

2. For a second occurrence of a material breach of the same nature as the first material breach that occurs within 12 months, a fine of $1,000.00 shall be imposed for each day of each material breach, not to exceed $3,000.00 for each occurrence of the material breach.

3. For a third or further occurrence of a material breach of the same nature as the previous material breaches that occurs within 12 months, a fine of $2,500.00 shall be imposed for each day of each material breach, not to exceed $7,500.00 for each occurrence of the material breach.

C. The City shall provide the State franchise holder with written notice of any alleged material breach of the customer service provisions set forth in Public Utilities Code section 5900 and shall allow the State franchise holder at least 30 days from receipt of the notice to remedy the specified material breach.

D. A material breach for the purposes of assessing penalties shall be deemed to have occurred for each day within the jurisdiction of the City, following the expiration of the period specified in subsection C of this section, that any material breach has not been remedied by the State franchise holder, irrespective of the number of customers affected. No monetary penalties shall be assessed for a material breach if it is out of the reasonable control of the State franchise holder.

E. Pursuant to Public Utilities Code section 5900, any penalty remitted to the City by a State franchise holder for a material breach of the customer service provisions set forth in Public Utilities Code section 5900 shall be split in half, and the City shall submit one-half of the penalty amount to the digital divide account established by Public Utilities Code section 280.5.

(Ord. No. 2020-1057, § 1, 3-23-2020)

Any State franchise holder may appeal any customer service penalty assessed pursuant to section 5.14.060 according to the following procedure:

A. The State franchise holder may file a request for hearing form with the City Clerk within 30 days from receipt of the written notice specified in subsection 5.14.060.C with an advance deposit of the penalty amount.

B. A request for hearing form may be obtained from the City Clerk.

C. The State franchise holder requesting the hearing shall be notified by the City Clerk of the time and place set for the hearing at least ten days prior to the date of the hearing.

D. The hearing shall be set by the City Clerk for a date that is not less than 15 days and not more than 60 days from the date that the request for hearing form is filed with the City Clerk.

E. At the hearing, the City shall bear the burden of proof by a preponderance of the evidence that the material breach occurred as charged. The City may be represented by counsel.

F. At the hearing, the State franchise holder may cross-examine any witness against the State franchise holder and may present evidence. The State franchise holder may be represented by counsel.

G. The formal rules of evidence shall not apply at the hearing. The hearing officer may rely upon such evidence as he or she believes reasonable persons would rely upon in the conduct of their affairs. Any witnesses shall testify under oath.

H. After hearing and reviewing all the testimony and evidence submitted at the hearing, the hearing officer shall issue a written decision to uphold or cancel the penalty and shall list in the decision the reasons for that decision. The decision of the hearing officer shall be final.

I. If the hearing officer determines that the penalty should be canceled, the City shall promptly refund the amount of the deposited penalty, together with interest at the average rate earned on the City's investment portfolio for the period of time that the penalty amount was held by the City.

J. Any interested person may obtain review of the decision of the hearing officer by filing an appeal in a court of competent jurisdiction pursuant to Public Utilities Code section 5900.

(Ord. No. 2020-1057, § 1, 3-23-2020)

A. The City shall allow any State franchise holder to install, construct, and maintain a network within public rights-of-way pursuant to chapter 13.01, streets, sidewalks and public places, and in a manner consistent with Public Utilities Code section 5885.

B. The City shall either approve or deny an encroachment permit application within 60 days of receiving a completed application. An application is considered complete when the applicant has complied with all statutory requirements, including the California Environmental Quality Act (Public Resources Code section 21000 and following).

C. If the City denies the encroachment permit, it shall provide the applicant with a detailed explanation of the reason for the denial. A determination regarding the encroachment permit by the Public Works Director and the Community Development Director may be appealed to the City Council per section 5.14.070.

(Ord. No. 2020-1057, § 1, 3-23-2020)

A. The City may examine and audit once per year the business records of any State franchise holder relating to gross revenues pursuant to Public Utilities Code section 5860.

B. All State franchise holders shall keep and maintain all business records reflecting any gross revenues, regardless of change in ownership, for at least four years after those gross revenues are recognized by the State franchise holder on its books and records pursuant to Public Utilities Code section 5860.

C. If the State franchise holder has underpaid the franchise fee established by section 5.14.030 by more than five percent, the State franchise holder shall pay the reasonable and actual costs of the examination and audit. If the State franchise holder has not underpaid the franchise fee established in section 5.14.030, the City shall pay the reasonable and actual costs of the examination and audit. If the State franchise holder, however, has underpaid the franchise fee established by section 5.14.030 by five percent or less, the State franchise holder and the City shall each bear their own costs of the examination and audit.

(Ord. No. 2020-1057, § 1, 3-23-2020)

All State franchise holders shall comply with the emergency alert system requirements of the Federal Communications Commission in order that emergency messages may be distributed over State franchise holders' networks.

(Ord. No. 2020-1057, § 1, 3-23-2020)

Any State franchise holder is prohibited from discriminating against or denying access to service to any group of potential residential subscribers within the City because of the income of the residents on the local area in which the group resides. The requirement may be satisfied pursuant to Public Utilities Code section 5890. The City may bring complaints to the CPUC that a State franchise holder is not offering video services as required by Public Utilities Code section 5890.

(Ord. No. 2020-1057, § 1, 3-23-2020)