Inyo County Municipal Code Ch. 3.70 Digital Infrastructure and Video Competition

The state of California, through the public utilities commission, is the sole authority with power to grant state video franchises pursuant to the Digital Infrastructure and Video Competition Act of 2006 ("DIVCA") (AB 2987 (2006)). The purposes of this chapter are to implement DIVCA in the County of Inyo and to regulate, consistent with DIVCA and the implementing rules issued by the California Public Utilities Commission ("CPUC"), video service providers holding state video franchises and operating within the county pursuant to that franchise. This chapter shall be applied to and interpreted consistently with any amendments to, or recodifications of, DIVCA that may be made from time to time.

(Ord. 1271 § 3, 2021)

All definitions as stated in Public Utilities Code ("PUC") section 5830 are hereby incorporated into this chapter by reference.

Additionally, as used in this chapter "cable coordinator"

means the Inyo County administrative officer or deputy or designee.

(Ord. 1271 § 3, 2021)

Any state video franchise holder operating within the unincorporated areas of the county shall pay a fee to the county equal to five percent of the state video franchise holder's "gross revenue" as defined in PUC section 5860(d). This fee shall be remitted to the county quarterly, within forty-five days after the end of the calendar quarter. Each payment shall be accompanied by a summary explaining the basis for the calculation of the state franchise fee. If the holder does not pay the franchise fee when due, the holder shall pay a late payment charge at a rate per year equal to the highest prime lending rate during the period of delinquency, plus one percent. If the holder has overpaid the franchise fee, it may deduct the overpayment from its next quarterly payment.

(Ord. 1271 § 3, 2021)

Any state video franchise holder operating within the unincorporated areas of the county shall pay a Public, Educational, and/or Government ("PEG") fee to the county for capital support of PEG purposes that is equal to one percent of the franchise holder's gross revenues, as defined in PUC Section 5860(d).

(Ord. 1271 § 3, 2021)

A. Local franchise holders and holders of a state video franchise under DIVCA shall each provide two PEG channels unless county grants a written waiver for good cause as determined in the county's sole discretion.

B. All state video franchise holders shall comply with the provisions of DIVCA related to PEG channels. Without limiting the foregoing, the PEG channels shall 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 as defined in Public Utilities Code Section 5830(i) unless prohibited by federal law and shall provide video and sound quality, recording capability, channel accessibility and location equal to, or substantially equal to, that provided by the incumbent cable providers. After the initial designation of PEG channel numbers, the channel numbers shall not be changed without agreement of the county unless the change is required by federal law.

C. A state video franchise holder shall have three months from the date the county requests the PEG channels to designate the capacity. However, the three-month period shall be tolled by any period during which the designation or provision of PEG channel capacity is technically infeasible, including any failure or delay of the incumbent cable operator to make adequate interconnection available, as required by DIVCA. Any state video franchise holder that believes the designation or provision of PEG channel capacity is technically infeasible shall provide to county, in writing, its reasons therefor and its plan for correcting or solving the infeasibility. The county may hold a hearing on the claim of infeasibility and, thereafter, take such action as the county deems proper to require the designation and provision of the PEG channels on the state video franchise holder's system.

(Ord. 1271 § 3, 2021)

A. Not more than once annually, the county finance director or designee may examine and perform an audit of the business records of a holder of a state video franchise operating within the unincorporated areas of the county to ensure compliance with Section 5860 of the California Public Utilities Code.

B. A state franchisee shall keep all business records reflecting any gross revenues, even if there is a change in ownership of the state franchisee, for at least four years after such gross revenues are recognized by the state franchisee on its books and records.

C. To the extent consistent with DIVCA and other applicable law, the county may request, and a state franchisee shall provide, information and books and records to the extent necessary to monitor a state franchisee's compliance with this article.

(Ord. 1271 § 3, 2021)

A. A state franchisee shall comply with the customer service and notice standards and consumer protection provisions set forth in Government Code Sections 53055, 53055.1, 53055.2 and 53088.2; the Federal Communications Commission ("FCC") Customer Service and Notice Standards set forth in 47 CFR Sections 76.309, 76.1602, 76.1603 and 76.1619; this article; Penal Code Section 637.5; and all other applicable state and federal customer service and consumer protection standards pertaining to the provision of video and/or cable service, including any amendments thereto. In case of a conflict, the stricter standard shall apply. All customer service and consumer protection standards under this section shall be interpreted and applied to accommodate newer or different technologies while meeting or exceeding the goals of the standards.

1. Pursuant to the power granted to Inyo County by Government Code Section 53088.2(e), "promptness" with respect to the answering of a customer's phone call shall mean that the video provider permits the customers to speak with a human (i.e. non-automated) customer service representative within fifteen minutes of the customer's phone call connecting to the customer service telephone number.

B. Each state franchisee shall prepare and maintain written customer service and consumer protection standards that incorporate the provisions identified in Government Code Sections 53055, 47 CFR Sections 76.309 and 76.1602, and any other applicable state and federal laws and regulations, including, but not limited to, the following:

1. Installation, disconnection, service and repair obligations, employee identification and service call response time standards;

2. Customer service center and bill payment locations to be open at least during normal business hours and conveniently located;

3. A local, toll-free or collect call customer telephone access line which will be available to customers twenty-four hours a day, seven days a week;

4. Standards for response to telephone inquiries, installation time frames and appointments;

5. Procedures for termination of service and return of equipment;

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

7. Complaint procedures and procedures for bill dispute resolution; and

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

C. Each state franchisee shall comply with Government Code Section 53055.1 by annually distributing to its employees, to each of its customers, and to the county a notice describing the customer service standards. New customers shall also be provided with this notice when service is initiated. The notice given to new customers pursuant to this section shall include the following, in addition to all the information described in PUC Sections 53055(a) – (e):

1. A listing of the services offered by the cable television operator or video provider which clearly describes all levels of service and including the rates for each level of services; provided, however, that if the information concerning levels of service and rates is otherwise distributed to new customers upon installation by the cable television operator or video provided, the information need not be included in the notice to new customers required by this section.

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

3. A description of the rights and remedies which the cable television operator or video provider may make available to its customers if the cable television operator or video does not materially meet its customer service standards.

4. A copy of the most current version of Inyo County Code Chapter 13.70.

D. A state franchisee must further comply with and provide written information on each of the following provisions at the time of installation of service and at least annually to all subscribers and at any time upon request pursuant to 47 CFR Section 76.1602:

1. Products and services offered;

2. Prices and options for programming services and conditions of subscription to programming and other services;

3. Installation and service maintenance policies;

4. Instructions on how to use the cable service;

5. Channel positions of programming carried on the system; and

6. Billing and complaint procedures, including the address and telephone number of the local franchise authority's cable office.

E. If the state franchisee includes equipment in the price of a bundled offer of one or more services, the state franchisee shall disclose the fees reasonably allocable to:

1. The rental of single and additional CableCARDs; and

2. The rental of operator-supplied navigation devices.

F. The failure of a state franchisee to comply and maintain customer service and consumer protection standards pursuant to this section shall constitute a material breach.

(Ord. 1271 § 3, 2021)

A. Within sixty days of the effective date of this chapter, the county shall notify each state franchisee of the enactment of the chapter and require the franchise holder to provide within ninety days a complete copy of all current written customer service and consumer protection standards that comply with the provisions of Section 13.70.070. Failure to do so shall constitute a material breach.

B. Each state franchisee shall transmit a current version of its customer service and consumer protection standards to the county no later than July 1 of each year. Failure of to do so shall constitute a material breach.

(Ord. 1271 § 3, 2021)

A. Enforcement of customer service and consumer protection standards is generally complaint driven and based on receipt of a complaint from an existing cable customer whose service is in the county and that alleges a verifiable material breach of a customer service and/or consumer protection standard ("verified complaint"). The cable coordinator has no mandatory duty to follow up on a complaint that cannot be verified or assist the cable customer to cure deficiencies in the same. The authority to commence enforcement of a verified complaint is in the sole discretion of the cable coordinator.

B. The cable coordinator will respond to a verified complaint from a cable customer through the following process:

1. The cable coordinator will provide a state franchisee with written notice of receipt of a verified complaint with a copy thereof and inform the state franchisee of the nature of the material breach. The state franchisee shall have thirty days from the receipt of the notice to remedy the specified material breach.

2. A state franchisee who does not remedy a material breach within the thirty-day time period will be subject to the following penalties, as set forth in PUC Section 5900:

a. For the first occurrence of a material breach, a penalty of not more than five hundred dollars for each day of each material breach, not to exceed one thousand five hundred dollars for each occurrence of a material breach.

b. For the second violation of the same nature within twelve months, a penalty of one thousand dollars for each day of each material breach, not to exceed three thousand dollars for each occurrence of the material breach.

c. For a third or further violation of the same nature within twelve months, a penalty of two thousand five hundred dollars for each day of each material breach, not to exceed seven thousand five hundred dollars for each occurrence of the material breach.

3. The cable coordinator shall transmit a notice of imposition of penalties to the state franchisee. The state franchisee shall pay penalties within thirty days of the date of the notice.

(Ord. 1271 § 3, 2021)

A. The state franchisee may appeal any imposition of penalties to the county administrative officer. Any appeal must be made within thirty calendar days after the county's delivery of the notice regarding the imposition of penalties. All appeals must be timely submitted in writing to the clerk of the Inyo County board of supervisors. Any appeal must contain a detailed explanation of why the franchisee believes that the finding of material breach or the imposition of penalties was inconsistent with statutory requirements or authority. Any appeal must contain a notice address for the franchisee.

B. The county administrative officer or his or her designee shall hold an appeal hearing within sixty days of the county's receipt of an appeal. The county administrative officer shall provide the appellant at least fifteen days' written notice of the time, date, and location of the appeal hearing. At the appeal hearing, the county administrative officer or designee shall hear all evidence and relevant testimony and may uphold, modify or vacate the penalty. The county administrative officer's or designee's decision shall be in writing and provided to appellant within fifteen days of the date of the appeal hearing. The county administrative officer's or designee's decision on the imposition of a penalty shall be final.

C. The county and any state franchisee may mutually agree to extend the time periods specified herein. Any such agreement shall be in writing and executed by the county executive officer, or designee, and an authorized representative of the franchise holder.

D. Any penalty imposed on the state franchisee pursuant to this section shall be paid to the county. As provided for in PUC Section 5900(g), the county shall submit one-half of all penalties received from a state franchisee holder to the digital divide account established in PUC Section 280.5.

(Ord. 1271 § 3, 2021)

The county may transmit verified complaints to the CPUC and any resulting enforcement actions as evidence that a state franchisee is not complying with state and federal customer service and consumer protection requirements as required by state law and federal code and this article.

(Ord. 1271 § 3, 2021)

A state franchisee shall comply with the emergency alert system requirements of the FCC in order that emergency messages may be distributed over the state franchisee's network.

(Ord. 1271 § 3, 2021)

All notices and copies of documents that DIVCA requires to be provided to the county as a local entity or otherwise provided for in this article shall be addressed to the County Administrative Officer, Attention: Cable Coordinator, PO Box N, Independence, CA 93526. Any appeal submitted pursuant to section 3.70.100 herein shall be addressed to the clerk of the board of supervisors, County of Inyo, PO Drawer N, Independence, CA 93526.

(Ord. 1271 § 3, 2021)

Applicants for state franchises within the boundaries of the county must concurrently provide complete copies to the county of any application or amendments to applications filed with the commission. One complete copy must be provided to the cable coordinator. Within thirty days of receipt, the cable coordinator will provide any appropriate comments to the commission regarding an application or an amendment to an application for a state franchise.

(Ord. 1271 § 3, 2021)

The county is designated by DIVCA as the lead agency for any environmental review with respect to network construction, installation, and maintenance in public rights-of-way and may require the same of a state franchisee for any of these cited activities within the unincorporated area of the county.

(Ord. 1271 § 3, 2021)

A. For the purpose of operating and maintaining a cable television system in the county, and with a validly issued encroachment permit under Inyo County Code Chapter 12.08, a state video franchise holder may erect, install, construct, repair, replace, reconstruct, and retain in, on, over, under, upon, across and along the public rights-of-way and public cables, conductors, ducts, conduits, vaults, manholes, amplifiers, property and equipment as are necessary and appurtenant to the operations of the cable system. The state video franchise holder shall comply with all applicable county construction codes and procedures and general plan requirements.

B. The county maintains the right to perform any public work or public improvement of any description, including, without limitation, all work authorized by applicable law. In the event that the state video franchise holder's system interferes with the construction, operation, maintenance or repair of any such public work or improvement, the state video franchise holder, after reasonable notice from the county, shall, at its own cost and expense, promptly protect, alter or relocate the system, or any part thereof, as directed by the county.

C. In the event that the state video franchise holder refuses or neglects to so protect, alter or relocate all or any part of its system, the county shall have the right in connection with the performance of such public work or public improvement to break through, remove, alter or relocate all or any part of the system without any liability to the state video franchise holder except for the county's willful misconduct and the state video franchise holder shall promptly pay to the county the costs incurred by such breaking through, removal, alteration or relocation.

D. The holder of a state video franchise shall not enter or encroach upon or interfere with or obstruct any private property without the express consent of the owner or agent in possession thereof with authority to grant such consent. The authority given in this chapter shall not be construed to grant or imply any permission to do so.

(Ord. 1271 § 3, 2021)

The rights of a state video franchise holder operating within the unincorporated areas of the county are subject to the police power of the county to adopt and enforce general ordinances necessary to the health, safety and welfare of the public, and each state video franchise holder shall comply with all applicable general laws and ordinances enacted by the county pursuant to such power.

(Ord. 1271 § 3, 2021)

If any area of regulatory authority is or was preempted from local regulation by federal or state law, and such preemption later ceases, the county reserves the right to resume local regulation to the extent permitted, including the right to enact an ordinance or to enforce existing local ordinances regulating cable television services within the county, should it be determined by state or federal law, regulation or rule that the county may enter into a local franchise with providers of cable television or video services within the county.

(Ord. 1271 § 3, 2021)