El Centro Municipal Code Art. XVII Regulation of State Video Franchises

For the purposes of this article, the following terms, phrases, words and their derivations shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number and words in the singular number include the plural number. The word "shall" is always mandatory and not merely directive.

The city means the City of El Centro, California.

CEQA means the California Environmental Quality Act which is codified in Division 13 of the California Public Resources Code sections 21000 et seq.

DIVCA means the Digital Infrastructure and Video Competition Act of 2006, which is codified in the California Public Utilities Code at sections 5800 et seq.

Local entity means any city, county, city and county, or joint powers authority within the state within whose jurisdiction a holder of a state franchise under DIVCA may provide cable service or video service.

Local franchising entity means the city, county, city and county, or joint powers authority entitled to require franchises and impose fees on cable operators, as set forth in California Government Code section 53066.

PUC means the California Public Utilities Commission.

State CEQA Guidelines means the state CEQA guidelines which are codified in the California Code of Regulations at Title 14, section 15000 et seq.

State franchise or state video franchise means a franchise that is issued pursuant to DIVCA.

State franchise holder or state video franchise holder means a person or group of persons that has been issued a state franchise from the PUC pursuant to DIVCA.

(Ord. No. 14-06, § 1)

(a) Purpose. Under California law, the PUC has the authority to grant state video franchises under DIVCA to serve any locations within the incorporated bounds of the city. It is the purpose of this article to implement within the city the applicable provisions of DIVCA and the rules of the PUC promulgated thereunder that apply to a local franchising entity, a local entity or a state franchise. The city will acquire certain rights and responsibilities with respect to state video franchise holders who have been issued franchises consistent with DIVCA. These responsibilities include the establishment and enforcement of penalties for violation of customer service rules.

(b) Rights reserved.

(1) The rights reserved to the city under this article are in addition to all other rights of the city, whether reserved by this article 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.

(2) Except as otherwise provided by DIVCA or applicable law, the issuance of a state franchise shall not constitute compliance with:

a. Generally applicable requirements for the privilege of transacting and carrying on a business within the city, including, but not limited to, conditions that the city may establish before facilities may be constructed for the provision, either directly or indirectly, of non-video services;

b. Any permit or authorization 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, pole attachment permits, and street cut permits; and/or

c. Any permit, agreement or authorization for occupying any other property of the city or any private person or entity to which access is not specifically granted by the state franchise.

(3) Except as provided in DIVCA or applicable law, a state franchise shall not relieve a state franchise holder of its duty to comply with all laws, including ordinances, resolutions, rules, regulations and other laws of the city, and every state franchise holder shall comply with the same.

(4) No permit issued by the city to a state franchise holder is itself a franchise, nor shall any permit create a vested right that would prohibit the city from revoking or amending the permit.

(c) Compliance with this article. Nothing contained in this article shall ever be construed as to exempt a state franchise holder from compliance with any ordinance, rule or regulation of the city now in effect or which may be hereafter adopted which is consistent with this article or DIVCA.

(Ord. No. 14-06, § 1)

(a) Customer service standards. A state franchise holder shall comply with California Government Code sections 53055, 53055.1, 53055.2 and 53088.2; and any other customer service standards pertaining to the provision of video service established by federal law or regulation. In addition a state franchise holder shall comply with California Penal Code section 637.5; the privacy standards of Title 47 of the United States Code at 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 future adopted standards. In the case of a conflict between standards imposed by the foregoing, 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) Penalties for violation of standards. The city shall enforce the compliance of state franchise holders with respect to state and federal customer service and consumer protection standards set forth in subsection (a) above. The city will provide a state franchise holder with a written notice of any material breach of applicable customer service or consumer protection standards, and will allow the state franchise holder thirty (30) days from the date of receipt of the written notice to remedy the specified material breach. Any material breach not remedied within the thirty (30) day time period will be subject to the following penalties to be imposed by the city:

(1) For the first occurrence of a material breach, a fine of up to five hundred dollars ($500.00) may be imposed for each day the violation remains in effect, not to exceed a total amount of one thousand five hundred dollars ($1,500.00) for each such violation.

(2) For the second occurrence of a material breach of the same nature within a twelve (12) month period, a fine of up to one thousand dollars ($1,000.00) may be imposed for each day the violation remains in effect, not to exceed a total amount of three thousand dollars ($3,000.00) for each such violation.

(3) For the third occurrence of a material breach of the same nature within a twelve (12) month period, a fine of up to two thousand five hundred dollars ($2,500.00) may be imposed for each day the violation remains in effect, not to exceed a total amount of seven thousand five hundred dollars ($7,500.00) for each such violation.

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

(Ord. No. 14-06, § 1)

(a) Except as expressly provided in this article, all provisions of City Code Chapter 23, Article I, Section 23.3 and Article II, Divisions 1 and 2, 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.

(b) Permits. Before beginning any work for which a permit is required by subsection (a) immediately above, a state franchise holder shall apply for and obtain a permit in accordance with the provisions of City Code Chapter 23, Article II, Division 2 (Permit), and shall comply with all other generally applicable laws and regulations, including but not limited to all applicable requirements of CEQA and the State CEQA Guidelines.

(c) The city shall either approve or deny a state franchise holder's application for any permit required by subsection (a) within sixty (60) days of receiving a completed permit application from the state franchise holder.

(d) If the city denies a state franchise holder's application for a permit, the city shall, at the time of notifying the applicant of the denial, furnish to the applicant a detailed explanation of the reason(s) for the denial.

(e) A state franchise holder that has been denied a permit by a final decision of the city may appeal the denial to the city council. Upon receiving a notice of appeal, the city council shall take the following actions:

(1) Affirm the action of the city without any further hearing; or

(2) Refer the matter back to the city for further review with or without instructions; or

(3) Set the matter for a de novo hearing before the city council. In rendering its decision on an appeal, the city council shall not hear or consider any argument or evidence of any kind other than that contained in the record of the matter received from the city unless the city council is itself conducting a public hearing on the matter.

(f) Notification to residents regarding construction or maintenance. If required of all utility providers or franchise holders for work to be performed in the right of way, before any construction, rebuild or upgrade of a cable or video system, a state franchise holder shall provide written notice to the city clerk and to any applicable private owner of real property at least twenty (20) days before entering private property or public ways or public easements adjacent to or on such private property, and provide a second notice three (3) days before entering such property.

(g) Restoration of public and private property. After performance of work, the state franchise holder shall restore public and private property to a condition equal to or better than its condition before construction. Any disturbance of landscaping, fencing or other improvements upon public or private property shall, at the sole expense of the state franchise holder, be promptly repaired or restored to the reasonable satisfaction of the property owner, in addition to installing screening plants on any applicable real property that are reasonably required to screen facilities from public views.

(h) Reports to the city. If required of all utility providers or franchise holders for work to be performed in the right-of-way, each state franchise holder shall, within sixty (60) days after the expiration of each calendar year, make available for review by the city a street and highway map or maps of any convenient scale on which shall be plotted the location of the entire transmission and distribution system or systems covered by the reports as of the last day of the calendar year, with the system or systems located in city streets and rights-of-way indicated by distinctive coloration or symbols.

(Ord. No. 14-06, § 1)

Each state franchise holder or applicant for a state franchise shall file with the city a copy of all current franchises or licenses obtained or received from the California Public Utilities Commission regarding the provision and operation of video services within the city.

(Ord. No. 14-06, § 1)