Emeryville Municipal Code Part 8 Other Video And Telecommunications Services And Systems

(a) The term "cable system" does not include a facility that serves subscribers without using any public rights-of-way. Consequently, the categories of multichannel video programming distributors identified below are not deemed to be "cable systems" and are therefore exempt from the City's franchise requirements and from certain other local regulatory provisions authorized by federal law, provided that their distribution or transmission facilities do not involve the use of the City's public rights-of-way.

(b) Multichannel multipoint distribution service ("MMDS"), also known as "wireless cable," which typically involves the transmission by an FCC-licensed operator of numerous broadcast stations from a central location using line-of-sight technology.

(c) Local multipoint distribution service ("LMDS"), another form of over-the-air, wireless video service for which licenses are auctioned by the FCC, and that offers video programming, telephone, and data networking services.

(d) Direct broadcast satellite ("DBS"), also referred to as "direct-to-home satellite services," which involves the distribution or broadcasting of programming or services by satellite directly to the subscriber's premises without the use of ground receiving or distribution equipment, except at the subscriber's premises or in the uplink process to the satellite. Local regulation of direct-to-home satellite services is further proscribed by the following federal statutory provisions:

(1) 47 U.S.C. § 303(v) confers upon the FCC exclusive jurisdiction to regulate the provision of direct-to-home satellite services.

(2) Section 602 of the Communications Act states that a provider of direct-to-home satellite service is exempt from the collection or remittance, or both, of any tax or fee imposed by any local taxing jurisdiction on direct-to-home satellite service. The terms "tax" and "fee" are defined by federal statute to mean any local sales tax, local use tax, local intangible tax, local income tax, business license tax, utility tax, privilege tax, gross receipts tax, excise tax, franchise fees, local telecommunications tax, or any other tax, license, or fee that is imposed for the privilege of doing business, regulating, or raising revenue for a local taxing jurisdiction.

(Sec. 1 (part), Ord. 06-016, eff. Nov. 17, 2006)

(a) Unless the customer protection and customer service obligations of a video provider are specified in a franchise, with the City, a video provider must comply with all applicable provisions of the following state statutes:

(1) The Cable Television and Video Customer Service and Information Act (Government Code §§ 53054, et seq.).

(2) The Video Customer Service Act (Government Code §§ 53088, et seq.).

(b) All video providers that are operating in the City on the effective date of this title, or that intend to operate in the City after the effective date of this title, and are not required under applicable law to operate under a franchise, license, lease, or similar written agreement with the City, must register with the City. The registration form must include or be accompanied by the following:

(1) The video provider's name, address, and local telephone numbers.

(2) The names of the officers of the video provider.

(3) A copy of the video provider's written policies and procedures relating to customer service standards and the handling of customer complaints, as required by California Government Code §§ 53054, et seq. These customer service standards must include, without limitation, standards regarding the following:

a. Installation, disconnection, service and repair obligations, employee identification, and service call response time and scheduling.

b. Customer telephone and office hours.

c. Procedures for billing, charges, refunds, and credits.

d. Procedures for termination of service.

e. Notice of the deletion of a programming service, the changing of channel assignments, or an increase in rates.

f. Complaint procedures and procedures for bill dispute resolution.

g. The video provider's written acknowledgment of its obligation under California Government Code §§ 53055.1 to provide to new customers a notice describing the customer service standards specified above in subparagraphs (a) through (f) at the time of installation or when service is initiated. The notice must also include, in addition to all of the information described above in subparagraphs (a) through (f), all of the following:

i. A listing of the services offered by the video provider that clearly describes all levels of service and the rates for each level of service.

ii. The telephone number or numbers through which customers may subscribe to, change, or terminate service, request customer service, or seek general or billing information.

iii. A description of the rights and remedies that the video provider may make available to its customers if the video provider does not materially meet its customer service standards.

h. The video provider's written commitment to distribute annually to its employees and customers, and to the City, a notice describing the customer service standards specified above in subparagraphs (a) through (f). This annual notice must include the report of the video provider on its performance in meeting its customer service standards, as required by California Government Code § 53055.2.

(4) Unless a video provider is exempt under federal law from its payment, a registration fee in an amount established by resolution of the City Council to cover the reasonable costs incurred by the City in reviewing and processing the registration form.

(5) In addition to the registration fee specified above in subsection (4), the written commitment of the video provider to pay to the City, when due, all costs and expenses reasonably incurred by the City in resolving any disputes between the video provider and its subscribers, which dispute resolution is mandated by California Government Code § 53088.2(o).

(c) The customer service obligations imposed upon video providers by the Video Customer Service Act California Government Code §§ 53088 et seq.) consist of the following:

(1) Every video provider must render reasonably efficient service. make repairs promptly, and interrupt service only as necessary.

(2) All video provider personnel contacting subscribers or potential subscribers outside the office of the provider must be clearly identified as associated with the video provider.

(3) At the time of installation, and annually thereafter, all video providers must provide to all customers a written notice of the programming offered, the prices for that programming, the provider's installation and customer service policies, and the name, address, and telephone number of the City's office that is designated for receiving complaints.

(4) All video providers must have knowledgeable, qualified company representatives available to respond to customer telephone inquiries Monday through Friday, excluding holidays, during normal business hours.

(5) All video providers must provide to customers a toll-free or local telephone number for installation, service, and complaint calls. These calls must be answered promptly by the video providers.

(6) All video providers must render bills that are accurate and understandable.

(7) All video providers must respond promptly to a complete outage in a customer's service. The response must occur within twenty-four (24) hours of the reporting of such outage to the provider, except in those situations beyond the reasonable control of the video provider. A video provider will be deemed to respond to a complete outage when a company representative arrives at the outage location within twenty-four (24) hours and begins to resolve the problem.

(8) All video providers must provide a minimum of thirty (30) days' written notice before increasing rates or deleting channels. All video providers must make every reasonable effort to submit the notice to the City in advance of the distribution to customers. The thirty (30) day notice is waived if the increases in rates or deletion of channels are outside the control of the video provider. In those cases, the video provider must make reasonable efforts to provide customers with as much notice as possible.

(9) Every video provider must allow every residential customer who pays his or her bill directly to the video provider at least fifteen (15) days from the date the bill for services is mailed to the customer, to pay the listed charges unless otherwise agreed to pursuant to a residential rental agreement establishing tenancy. Customer payments must be posted promptly. No video provider may terminate residential service for nonpayment of a delinquent account unless the video provider furnishes notice of the delinquency and impending termination at least fifteen (15) days prior to the proposed termination. The notice must be mailed, postage prepaid, to the customer to whom the service is billed. Notice must not be mailed until the sixteenth (16th) day after the date the bill for services was mailed to the customer. The notice of delinquency and impending termination may be part of a billing statement. No video provider may assess a late fee any earlier than the twenty-second (22nd) day after the bill for service has been mailed.

(10) Every notice of termination of service pursuant to the preceding subsection (9) must include all of the following information:

a. The name and address of the customer whose account is delinquent.

b. The amount of the delinquency.

c. The date by which payment is required in order to avoid termination of service.

d. The telephone number of a representative of the video provider who can provide additional information and handle complaints or initiate an investigation concerning the service and charges in question.

(11) Service may only be terminated on days in which the customer can reach a representative of the video provider either in person or by telephone.

(12) Any service terminated without good cause must be restored without charge for the service restoration. Good cause includes, but is not limited to, failure to pay, payment by check for which there are insufficient funds, theft of service, abuse of equipment or system personnel, or other similar subscriber actions.

(13) All video providers must issue requested refund checks promptly, but no later than forty-five (45) days following the resolution of any dispute, and following the return of the equipment supplied by the video provider, if service is terminated.

(14) All video providers must issue security or customer deposit refund checks promptly, but no later than forty-five (45) days following the termination of service, less any deductions permitted by law.

(15) Video providers must not disclose the name and address of a subscriber for commercial gain to be used in mailing lists or for other commercial purposes not reasonably related to the conduct of the businesses of the video providers or their affiliates, unless the video providers have provided to the subscriber a notice, separate or included in any other customer notice, that clearly and conspicuously describes the subscriber's ability to prohibit the disclosure. Video providers must provide an address and telephone number for a local subscriber to use without toll charge to prevent disclosure of the subscriber's name and address.

(d) Penalties for Noncompliance.

(1) Purpose. The purpose of this paragraph (d) is to authorize the imposition of monetary penalties for the violation of the customer service standards established by this Section 5-22.60. The imposition of penalties authorized by this paragraph (d) will not prevent the City or any other affected party from exercising any other remedy to the extent permitted by law, including but not limited to any judicial remedy as provided below in subsection (2)(d).

(2) Administration and Appeals.

a. The City Manager or the City Manager's designee is authorized to administer this paragraph (d). Decisions by the City Manager to assess monetary penalties against the grantee must be in writing and must contain findings supporting the decisions. Decisions by the City Manager are final, unless appealed by the grantee or aggrieved party.

b. If the grantee or any interested person is aggrieved by a decision of the City Manager, the aggrieved party may, within ten (10) days of the written decision, appeal that decision in writing to the City Clerk. The appeal shall be conducted in accordance with the provisions of Section 5-22.43(b)(2).

c. Schedule of Penalties. The following schedule of monetary penalties may be assessed against the grantee for the material violation of the provisions of the customer service standards set forth in this section, provided that the violation is within the reasonable control of the grantee:

i. The maximum penalty for a first material violation is two hundred dollars ($200.00) for each day of the material violation, except with respect to an entity receiving a state franchise, the maximum penalty shall be five hundred dollars ($500.00) for each day of each material breach, but not to exceed one thousand five hundred ($1,500.00) dollars for each occurrence of the material violation.

ii. For a second material violation of the same nature within a twelve (12) month period for which the City has provided notice and a penalty has been assessed, the maximum penalty is four hundred dollars ($400.00) for each day of the material violation, except with respect to an entity receiving state franchise, the maximum penalty shall be one thousand dollars ($1,000.00) for each day of each material breach, but not to exceed three thousand dollars ($3,000.00) for each occurrence of the material violation.

iii. For a third or further material violation of the same nature within a twelve (12) month period for which the City has provided notice and a penalty has been assessed, the maximum penalty is twelve hundred dollars ($1,200.00) for each day of the material violation, except with respect to an entity receiving a state franchise the maximum penalty shall be two thousand five hundred dollars ($2,500.00) not to exceed seven thousand five hundred dollars ($7,500.00) for each occurrence of the material violation.

d. Judicial Remedy. This paragraph does not preclude any affected party from pursuing any judicial remedy available to that party without regard to this paragraph (d).

e. Notice of Violation. The City must give the grantee written notice of any alleged violation of the consumer service standards and allow the grantee at least thirty (30) days from receipt of the notice to remedy the specified violation.

f. Assessment of Monetary Penalties.

i. If a violation has not been corrected or cured by grantee within the time specified by the City, the monetary penalties specified above in subparagraph (iii) may be assessed from the date of delivery to grantee of the City's written notice of violation.

ii. In assessing monetary penalties under this subparagraph (f), the City Manager, hearing officer, or the City Council, as applicable, may take into account the nature, circumstances, extent and gravity of the violation and, with respect to the grantee, the degree of culpability, any history of prior violations, and such other matters as may be relevant. If warranted under the circumstances, the monetary penalty to be assessed may be less than the maximum penalty amount specified above in subparagraph (iii).

(e) Additional Consumer Protection and Service Standards.

(1) In addition to the consumer protection and service standards that are specified above in subparagraphs (a) through (h) of paragraph (b)(3) of this section, the franchise agreement with a grantee may require compliance with the following:

a. Federal statutes, and the rules, regulations, and orders of the Federal Communications Commission, including the following:

i. The provisions of Section 76.309(c) of Title 47 of the Code of Federal Regulations, as it now exists or may later be amended.

ii. The provisions of Section 76.630 of Title 47 of the Code of Federal Regulations, as it now exists or may later be amended.

iii. The provisions of Section 551 of Title 47, United States Code, as it now exists or may later be amended.

iv. The provisions of California Government Code Sections 53054, et seq., entitled the "Cable Television and Video Provider Customer Service and Information Act."

v. The provisions of California Government Code Section 53088, et seq., entitled the "Video Customer Service Act."

vi. The provisions of California Civil Code Section 1722(b)(1) – (6) relating to service or repair transactions between cable television companies and their subscribers.

vii. The provisions of California Penal Code Section 637.5 relating to subscribers' rights to privacy protection.

(2) The City may, in its discretion, incorporate in a franchise agreement those customer service and protection standards referenced above in this paragraph (1) that are the most stringent, and that afford the greatest protection to consumers. These standards will apply, to the extent authorized by law; to all video, voice, and data services that are provided by the grantee to its subscribers within the franchise service area.

(Sec. 1 (part), Ord. 06-016, eff. Nov. 17, 2006)

Any video programming that is provided by a telephone corporation that uses public rights-of-way in the delivery of the video programming, regardless of the technology used, will be considered a cable service under this chapter unless such programming is otherwise expressly authorized by state or federal law.

(a) In recognition of and in compliance with the statutory authorizations and requirements set forth in the recitals to the ordinance codified in this chapter, the following regulatory provisions are applicable to a telephone corporation that desires to provide telecommunications service by means of facilities that are proposed to be constructed within the City's public rights-of-way:

(1) The telephone corporation must apply for and obtain, as may be applicable, an excavation permit, an encroachment permit, or a building permit ("ministerial permit.");

(2) In addition to the information required by this Code in connection with an application for a ministerial permit, a telephone corporation must submit to the City the following supplemental information:

a. A copy of the certificate of public convenience and necessity issued by the CPUC to the applicant, and a copy of the CPUC decision that authorizes the applicant to provide the telecommunications service for which the facilities are proposed to be constructed in the City's public rights-of-way.

b. If the applicant has obtained from the CPUC a certificate of public convenience to operate as a "competitive local carrier," the following additional requirements are applicable:

i. As required by Decision No. 95-12-057 of the CPUC, the applicant must establish that it has filed with the City in a timely manner a quarterly report that describes the type of construction and the location of each construction project proposed to be undertaken in the City during the calendar quarter in which the application is filed, which information is sufficient to enable the City to coordinate multiple projects, as may be necessary.

ii. If the applicant's proposed construction project will extend beyond the utility rights-of-way into undisturbed areas or other rights-of-way, the applicant must establish that it has filed a petition with the CPUC to amend its certificate of public convenience and necessity and that the proposed construction project has been subjected to a full-scale environmental analysis by the CPUC, as required by Decision No. 95-12-057 of the CPUC.

iii. The applicant must inform the City whether its proposed construction project will be subject to any of the mitigation measures specified in the Negative Declaration ["Competitive Local Carriers (CLCs) Projects for Local Exchange Communication Service throughout California"] or to the Mitigation Monitoring Plan adopted in connection with Decision No. 95-12-057 of the CPUC. The city's issuance of a ministerial permit shall be conditioned upon the applicant's compliance with all applicable mitigation measures and monitoring requirements imposed by the CPUC upon telephone corporations that are designated as "competitive local carriers."

(b) In recognition of the fact that numerous excavations in the public rights-of-way diminish the useful life of the surface pavement, and for the purpose of mitigating the adverse impacts of numerous excavations on the quality and longevity of public street maintenance within the City, the following policies and procedures are adopted:

(1) The City Manager is directed to ensure that all public utilities, including telephone corporations, comply with all local design, construction, maintenance and safety standards that are contained within, or are related to, a ministerial permit that authorizes the construction of facilities within the public rights-of-way.

(2) The City Manager is directed to coordinate the construction and installation of facilities by public utilities, including telephone corporations, in order to minimize the number of excavations in the public rights-of-way. In this regard, based upon projected plans for street construction or renovation projects, the City Manager is authorized to establish on a quarterly basis one or more construction time periods or "windows" for the installation of facilities within the public rights-of-way. Telephone corporations and other public utilities that submit applications for ministerial permits to construct facilities after a predetermined date may be required to delay such construction until the next quarterly "window" that is established by the City.

(c) Should a telephone corporation apply for a state video service franchise under state law, the telephone corporation shall comply with all notice requirements of state law regarding the corporation's application.

(d) Should a telephone corporation be granted a local franchise under this ordinance or be granted a state "video service" franchise, said corporation must satisfy the interconnection requirements associated with connectivity to each PEG access origination facility. This interconnection may be accomplished by direct cable connection, microwave link, satellite, fiber, or other appropriate method sufficient to provide NTSC quality video signals. Telephone corporation shall bear all costs of such interconnection and related maintenance.

(Sec. 1 (part), Ord. 06-016, eff. Nov. 17, 2006)