Article IV

Regulation of State-Issued Cable Television and Video Franchises[5 ]

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 under applicable state or federal law, including but not limited to Sections 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. 08-1950 § 2, 2008)

CMC § 5.32.550 through 5.32.620 are designed to regulate video service providers holding state video franchises and operating within the city. As of January 1, 2007, the state of California has 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 Covina shall receive a franchise fee and shall receive a fee for public, educational and government ("PEG") programming 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 franchises in accordance with this chapter and the cable franchises currently in effect, until such time as the cable franchisees no longer hold a city franchise or are no longer operating under a current or expired city franchise.

(Ord. 08-1950 § 3, 2008)

• A. For any state video franchise holder operating within the boundaries of the city of Covina, there shall be a fee paid to the city equal to five percent of the gross revenue of that state video franchise holder.

• B. For any state video franchise holder operating within the boundaries of the city of Covina, there shall be an additional fee paid to the city equal to one percent of the gross revenue of that state video franchise holder, which fee 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

5. Code reviser's note: Ords. 17-02, 17-03 and 17-16 reauthorize the fee of state-franchised video service providers to support public, educational, and governmental channel facilities codified in CMC § 5.32.570, which will remain unchanged and in full effect as to all state-franchised video service providers.

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) of this section, shall have the definition set forth in California Public Utilities Code 5860.

• (Ord. 08-1950 § 4, 2008)

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 Covina to ensure compliance with CMC § 5.32.570. (Ord. 08-1950 § 5, 2008)

• A. Any holder of a state video franchise operating within the boundaries of the city of Covina shall comply with all applicable state and federal customer service and protection standards pertaining to the provision of video service.

• B. The city manager shall monitor the compliance of holders of a state video franchise operating within the boundaries of the city of Covina with respect to state and federal customer service and protection standards. The city manager, or his or her designee, will provide the state video franchise holder written notice of any material breaches of applicable customer service standards, and will allow the state video franchise holder 30 days from the receipt of the notice to remedy the specified material breach. Material breaches not remedied within the 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 $500.00 shall be imposed for each day the violation remains in effect, not to exceed $1,500 for each violation.

  2. For a second violation of the same nature within 12 months, a fine of $1,000 shall be imposed for each day the violation remains in effect, not to exceed $3,000 for each violation.

  3. For a third or further violation of the same nature within 12 months, a fine of $2,500 shall be imposed for each day the violation remains in effect, not to exceed $7,500 for each violation.

• C. A holder of a state video franchise operating within the boundaries of the city of Covina may appeal a penalty assessed by the city manager to the city council within 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.

• (Ord. 08-1950 § 6, 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 Covina must concurrently provide complete copies to the city of any applications 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 30 days of receipt, the city manager will provide any appropriate comments to the Public Utilities Commission regarding an application or an amendment to an application for a state video franchise.

• (Ord. 08-1950 § 7, 2008)

• A. Any holder of a state video franchise, or city-issued cable franchise, operating within the boundaries of the city of Covina, that proposes to install above-ground facilities in the public right-of-way shall, prior to applying for an encroachment permit for the installation of such facilities, but in no case less than 20 days prior to installing such facilities, provide written notice to the owner of the private or public property (excluding the public right-ofway) nearest to the proposed facility. For purposes of this subsection, "above-ground 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 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. 08-1950 § 8, 2008)

Each provision of this chapter is separate and distinct, and individually enforceable. In the event any provision is declared to be unlawful, the enforceability of all other provisions shall not be affected. CMC § 5.32.550 through this section shall not limit the city's authority to regulate the city's current cable franchisee in accordance with CMC § 5.32.005 through 5.32.540 and any cable franchises currently in effect until such time that any cable franchisee no longer holds a city franchise or is no longer operating under a current or expired city franchise. (Ord. 08-1950 § 9, 2008)