Clearlake Municipal Code § 12-28 State Video Service Franchise

This section is applicable to all video service providers who are eligible for, and have been awarded, a State video franchise under the DIVCA Section 5800, and following, to provide cable or video services in any portion of the City. (Ord. #2013-163, S2)

The rights reserved to the City under this Section, are in addition to all other rights of the City whether reserved by this section, or authorized by other applicable law, and no action, proceeding or exercise of a right shall affect any other rights which may be held by the City. (Ord. #2013-163, S3)

Nothing contained in this Section exempts 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 not inconsistent with this Section or DIVCA Section 5800, and following, or obligations under any franchise previously issued by the City, insofar as those may be enforced under DIVCA Section 5800. (Ord. #2013-163, S4)

For purposes of this section, the following terms, phrases, words and their derivations shall have the meaning given herein. Unless otherwise expressly stated, words not defined in this section, including but not limited to “gross revenue”, “cable service”, “video service provider” and “video service” shall be given the meaning as set forth herein or in the Digital Infrastructure and Video Competition Act of 2006, California Public Utilities Code, section 5800 and following, as amended from time to time. APPLICANT means any person submitting any application required under the California Public Utilities Code, section 5800, and following. APPLICABLE LAW means all lawfully enacted and applicable Federal, State and City laws, ordinances, codes, rules, regulations and orders as the same may be amended or adopted from time to time. CITY ENGINEER means the City Engineer or his or her designee. CITY MANAGER means the City Manager of the City or his or her duly authorized designee. CONSTRUCTION, and similar formulations of that term mean the named actions interpreted broadly, encompassing, among other things, installation, extension, maintenance, replacement of components, relocation, undergrounding, grading, site preparation, adjusting, testing, make-ready, excavation and tree trimming. DIVCA means the Digital Infrastructure and Video Competition Act of 2006, California Public Utilities Code, section 5800, and following, as may be amended from time to time. PEG means public, educational, or governmental access. STATE FRANCHISE means a franchise issued by the California Public Utilities Commission to provide cable service or video service, as those terms are defined in DIVCA, within any portion of the City. STATE FRANCHISE HOLDER means a person who holds a State franchise. SUBSCRIBER means the City or any person who legally receives any cable service or video service from a State franchise holder delivered over that State franchise holder’s network. (Ord. #2013-163, S3)

a. Any State franchise holder operating within the City shall pay to the City a State franchise fee equal to five (5%) percent of the gross revenues of it, or any affiliate, that is subject to a franchise fee under DIVCA Section 5860. b. The City Manager shall promptly send any State franchise holder that notifies the City that it intends to provide video service in the City a copy of this section and a notice designating the person to whom the State franchise fee payments should be made. (Ord. #2013-163, S4)

As permitted by DIVCA Section 5870(n), every State franchise holder operating within the boundaries of the City shall pay a PEG fee in the amount of one (1%) percent of the State franchise holder’s gross revenues to be used to support PEG facilities. (Ord. #2013-163, S5)

The State franchise fee required pursuant to subsection 12-28.5, and the PEG fee required pursuant to subsection 12-28.6, shall each be paid to the City quarterly, in a manner consistent with DIVCA Section 5860. The State franchise holder shall deliver to the City, by check or other means specified by the City, a payment for the State franchise fee and a separate payment for the PEG fee not later than forty-five (45) days after the end of each calendar quarter. Each payment made shall be accompanied by a summary explaining the basis for the State franchise fees, containing such information as the City Manager may require consistent with DIVCA. (Ord. #2013-163, S6)

The City may audit the business records of the holder of a State franchise in a manner consistent with DIVCA Section 5860(i). (Ord. #2013-163, S7)

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 (1%) percent. (Ord. #2013-163, S8)

State franchise holders shall designate capacity for three (3) PEG channels to carry transmissions, content or programming to be determined by the City or its designee consistent with the requirements of DIVCA Section 5870. (Ord. #2013-163, S9)

In the event a State franchise holder leases access to a network owned by the City, the City may set a franchise fee for access to the City-owned network separate and apart from the franchise fee charged to State franchise holders pursuant to subsection 12-28.5, which fee shall otherwise be payable in accordance with the procedures established by this section. (Ord. #2013-163, S10)

Each State franchise holder shall comply with all applicable customer service and consumer protection standards to the extent consistent with DIVCA Section 5900, including, but not limited to, all existing and subsequently enacted customer service and consumer protection standards established by State and Federal law and regulation pertaining to the provision of video service. (Ord. #2013-163, S11)

a. The City shall enforce the provisions of subsection 12-28.12. b. The City shall give the State franchise holder written notice of any alleged material breach of the customer service standards and allow the State franchise holder at least thirty (30) days from receipt of the notice to remedy the specified material breach. c. For material breaches, as defined in DIVCA Section 5900, by a State franchise holder of applicable customer service and consumer protection standards, the City may impose the following penalties: 1. For the first occurrence of a material breach, a fine of $500.00 may be imposed for each day the violation remains in effect, not to exceed $1,500.00 for each violation. 2. For a second material breach of the same nature within twelve (12) months, a fine of $1,000.00 may be imposed for each day the violation remains in effect, not to exceed $3,000.00 for each violation. 3. For a third material breach of the same nature within twelve (12) months, a fine of $2,500.00 may be imposed for each day the violation remains in effect, not to exceed $7,500.00 for each violation. d. Any penalties imposed by the City shall be imposed in a manner consistent with DIVCA Section 5900.

e. The City Manager is authorized to provide any notices required under DIVCA Section 5900. The City Manager may coordinate with the Division of Ratepayer Advocate to protect consumers in the City. f. A State video franchise holder 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 the matter consistent with the provisions contained in Article 18-36 of this Municipal Code. (Ord. #2013-163, S11)

Except as expressly provided in this section, the provisions of Section 8-5 of this Municipal Code and all City administrative rules and regulations developed pursuant to Section 8-5 (including but not limited to the City’s Rules and Regulations of Encroachment Permit Issuance referred to as Exhibit A in subsection 8-5.3 of the Municipal Code), as now existing or as hereafter amended, shall apply to all work performed by or on behalf of a State franchise holder in any public rights-of-way. (Ord. #2013-163, S13)

a. Prior to commencing any work for which a permit is required by section 8-5 of this Municipal Code, a State franchise holder shall apply for and obtain a permit in accordance with the provisions of section 8-5. A permit application is complete when the State 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. 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 under Section 8-5 within sixty (60) days of receiving a complete permit application from the State franchise holder. c. If the City Engineer denies a State 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 franchise holder that has been denied a permit by final decision of the City Engineer may appeal to the City Council with the time frame set forth and consistent with the provisions contained in Article 18-36 of this Municipal Code. The City Engineer shall transmit to the Council all maps, diagrams, records, papers, and files that constitute the record in the action from which the appeal was taken. e. The issuance of a permit under Section 8-5 of this Municipal Code is not a franchise, and does not grant any vested rights in any location in the public rights-of-way, or in any particular manner of placement within the rights- of-way. A permit to place cabinets and similar appurtenances aboveground may be revoked and the permittee required to place facilities underground, upon reasonable notice to the permittee. (Ord. #2013-163, S14)

Each State franchise holder shall cooperate in the planning, locating and construction of its network in utility joint trenches or common duct banks with other telecommunications providers. (Ord. #2013-163, S15)

Each State franchise holder shall be a member of the regional notification center for subsurface installations (Underground Services Alert) and shall field mark, at its sole cost and expense, the locations of its underground network facilities upon notification in accordance with the requirements of Section 4216 of the California Government Code, and any other applicable law. (Ord. #2013-163, S16)

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. (Ord. #2013-163, S17)

Each State franchise holder, and the incumbent cable operator, shall negotiate in good faith to interconnect their networks for the purpose of providing PEG programming. Interconnection may be accomplished by any means authorized under Public Utilities Code Section 5870(h). Each State franchise holder and the incumbent cable operator shall provide interconnection of PEG channels on reasonable terms and conditions and may not withhold the interconnection. If a State franchise holder and the incumbent cable operator cannot reach a mutually acceptable interconnection agreement, the City may require the incumbent cable operator to allow the State franchise holder to interconnect its network with the incumbent cable operator’s network at a technically feasible point on the State franchise holder’s network as identified by the State franchise holder. If no technically feasible point for interconnection is available, each State franchise holder will make an interconnection available to each channel originator providing PEG programming to an incumbent cable operator, and will provide the facilities necessary for the interconnection. The cost of any interconnection will be borne by the State franchise holder requesting the interconnection unless otherwise agreed to by the State franchise holder and the incumbent cable operator. (Ord. #2013-163, S18)

a. Each State franchise holder or applicant for a State franchise shall file with the City a copy of all applications or notices that the State franchise holder or applicant is required to provide to the City under DIVCA.

b. 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 DIVCA shall be provided to the City Manager. (Ord. #2013-163, S19) Exhibit A CABLE TELEVISION CUSTOMER SERVICE STANDARDS Customer Service Standards 1. Cable system office hours and telephone availability.