Chapter 5.17 — STATE CABLE TELEVISION FRANCHISES

This chapter applies to all cable service or video service providers who are applying for, or have been awarded, a franchise under California Public Utilities Code Section 5800 et seq., the Digital Infrastructure and Video Competition Act of 2006, ("DIVCA"), to serve any area within the city of Lodi, including any cable service or video service providers who are subject to DIVCA. By this chapter the city of Lodi intends to assume to the fullest extent possible all obligations, rights and privileges afforded to it by DIVCA and any other applicable law. Moreover, to the extent this chapter is pre-empted by DIVCA now or as amended in the future, the requirement of DIVCA shall control.

(Ord. No. 1826, § 1, 11-18-2009)

For purposes of this chapter, the following terms, phrases, words, and their derivations shall have the meaning given in this section. Unless otherwise expressly stated, words not defined in this chapter shall be given the meaning set forth in California Public Utilities Code, Section 5800 et seq. as amended from time to time. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number, words in the singular number include the plural number, and "including" and "include" are not limiting. The word "shall" is always mandatory.

A.

"Access," "PEG access," "PEG use," or "PEG" means the availability of a cable or video system for public, educational, or governmental use by various agencies, institutions, organizations, groups, and individuals, including the city of Lodi and its city use channels or any existing agreement between the city and any incumbent cable operator, to acquire, create, and distribute programming not under a state franchise holder's editorial control.

B.

"City" means the city of Lodi, California.

C.

"City council" means the City Council of the city of Lodi.

D.

"City manager" means the City Manager of the city of Lodi or his or her designee.

E.

"Gross revenues" means all revenues actually received by the holder of a state franchise that are derived from the operation of the holder's network to provide cable service or video service within the incorporated areas of the city, subject to the specifications of California Public Utilities Code Section 5860.

F.

"Director" means the deputy city manager/internal services director of the city or his or her designee.

G.

"State franchise holder," "holder of a state franchise," "holder of the state franchise," or "holder" means any person or group of persons who has been issued a franchise by the California Public Utilities Commission to provide cable service or video service, as those terms are defined in Public Utilities Code Section 5830, within any portion of the city.

(Ord. No. 1826, § 1, 11-18-2009)

Any state franchise holder operating within the city shall pay to the city a state franchise holder fee equal to five percent of gross revenues, as defined in this chapter and applicable law. Nothing in this section is intended to limit the city's ability to impose utility user taxes and other generally applicable taxes, fees and charges that are applied in a nondiscriminatory and competitively neutral manner.

(Ord. No. 1826, § 1, 11-18-2009)

Any state franchise holder operating within the city shall pay to the city a PEG fee equal to one percent of gross revenues, as defined in this chapter and applicable law, unless a different amount is payable in accordance with applicable law or resolution adopted by the city council.

(Ord. No. 1826, § 1, 11-18-2009)

The state franchise holder shall pay quarterly all fees required pursuant to this chapter in a manner consistent with Public Utilities Code Section 5860. The state franchise holder shall deliver to the city by check or other means agreeable to the city manager, a separate payment for the state franchise fee and the PEG fee not later than forty-five days after the end of each calendar quarter. Each payment made shall be accompanied by a summary explaining the basis for the calculation of the fees.

(Ord. No. 1826, § 1, 11-18-2009)

The city may examine the business records of the holder of a state franchise in a manner not inconsistent with California Public Utilities Code Section 5860(i).

(Ord. No. 1826, § 1, 11-18-2009)

In the event a state franchise holder fails to make any payment required by this chapter on or before the due dates specified in this chapter, 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 percent unless a different rate is set by applicable law or resolution adopted by the city council.

(Ord. No. 1826, § 1, 11-18-2009)

To the extent not inconsistent with California Public Utilities Code Section 5840(q)(2)(B), in the event a state franchise holder desires to lease access to city property beyond the access conferred by its state franchise or to a network owned or controlled by the city, the city may set terms and charge a fee for access to the property or city network separate and apart from any franchise fee or other fee charged to the state franchise holders pursuant to this chapter. The city council may set any such fee by resolution.

(Ord. No. 1826, § 1, 11-18-2009)

Each state franchise holder shall comply with all applicable customer service and consumer protection standards, including, to the extent not inconsistent with California Public Utilities Code Section 5900, all existing and subsequently enacted customer service and consumer protection standards established by local, state or federal law and regulation.

(Ord. No. 1826, § 1, 11-18-2009)

A.

The city shall monitor compliance with and enforce the provisions of this chapter and DIVCA.

B.

For any material breach, as defined in California Public Utilities Code Section 5900(j), by a state franchise holder of applicable customer service and consumer protection standards, the city manager, or the city manager's designee, in his or her sole discretion may impose the following fines or penalties:

For the first occurrence of a material breach, a fine of five hundred dollars shall be imposed for each day the violation remains in effect, not to exceed one thousand five hundred dollars for each violation.

For a second material breach of the same nature within twelve months, a fine of one thousand dollars shall be imposed for each day the violation remains in effect, not to exceed three thousand dollars for each violation.

For a third or further material breach of the same nature within twelve months, a fine of two thousand five hundred dollars shall be imposed for each day the violation remains in effect, not to exceed seven thousand five hundred dollars for each violation.

C.

Any penalties imposed by the city shall be imposed in a manner not inconsistent with California Public Utilities Code Section 5900.

D.

To the extent not inconsistent with California Public Utilities Code Section 5900, the city, acting through its city manager or his or her designee, in its sole discretion may waive, modify, or defer the imposition of a penalty.

(Ord. No. 1826, § 1, 11-18-2009)

Except as expressly provided in this chapter, the provisions of this chapter shall apply to all work performed by or on behalf of a state franchise holder upon, above or below any street, highway, sidewalk, parkway, alley or other public right-of-way of any kind whatsoever within the city.

(Ord. No. 1826, § 1, 11-18-2009)

A.

Prior to commencing any work, a state franchise holder shall apply for and obtain a permit in accordance with the applicable provisions of this chapter and chapter 12.04 of this Code and shall comply with all other applicable laws and regulations, including, but not limited to, all applicable requirements of Public Resources Code Section 21000 et seq. (the California Environmental Quality Act).

B.

The public works director shall either approve or deny a state franchise holder's application for any permit required under this chapter in accordance with the applicable terms of Chapter 12.04.

C.

If the public works director denies a state franchise holder's application for a permit, the director shall, at the time of notifying the applicant of denial, furnish to the applicant an 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 public works director may appeal the denial to the city council whose decision shall be final. Upon receiving a notice of appeal, the city council shall consider the permit de novo.

E.

A state franchise holder whose permit has been revoked may appeal that decision to the city council in writing within ten days after issuance of the notice of revocation.

(Ord. No. 1826, § 1, 11-18-2009)

The work of constructing, laying, replacing, maintaining, repairing, abandoning, or removing all property and appurtenances of the state franchise holder in, over, under, along, or across any city right-of-way as defined in Chapter 12.04 shall be done to the satisfaction of the public works director and, except where a different outcome is prescribed by applicable law, at the expense of the state franchise holder, and in accordance with the terms and conditions of Chapter 12.04.

(Ord. No. 1826, § 1, 11-18-2009)

A.

The city reserves the right to change the grade, change the width, or alter or change the location of any city right-of-way. If any franchise holder's property or appurtenance is installed or maintained by the state franchise holder on, along, under, over, in, upon, or across any public right-of way in a manner which prevents or interferes with any alteration or other change of grade, traffic needs, operation, maintenance, improvement, repair, construction, reconstruction, widening, or relocation of the right-of-way, or any work or improvement upon the right-of-way, the state franchise holder shall relocate any such property or appurtenances to the satisfaction of the public works director, and, to the extent consistent with existing law at no expense to the city, upon receipt of a written request from the director to do so and in accordance with the terms of Chapter 12.04. Should the state franchise holder neglect or fail to relocate its facilities in a timely manner as required by law after receipt of any such notice, the state franchise holder shall be responsible for and shall reimburse the city for any and all costs or expenses incurred by city due to or arising from the failure to relocate the facilities.

B.

The city reserves the right to lay, construct, repair, alter, relocate, and maintain subsurface or other facilities or improvements of any type or description in a governmental and water, sewer and electric utility capacity, but not in a proprietary capacity within the right-of-way over which the franchise is granted. If the city finds

that the location or relocation of such facilities or improvements conflicts with the property or appurtenances laid, constructed, or maintained by the state franchise holder, the city shall notify the state franchise holder of such conflict. to the extent and in the manner required by applicable law, the state franchise holder will relocate its facilities as requested by the city.

(Ord. No. 1826, § 1, 11-18-2009)

Upon the abandonment of all or a portion of its property, the state franchise holder shall remove the property in accordance with the terms of Chapter 12.04. If the state franchise holder fails to comply with the terms and conditions of abandonment as may be required by this chapter and Chapter 12.04, the director of public works may direct the state franchise holder to remove, or cause to be removed, such facilities at the state franchise holder's expense and the state franchise holder shall pay to the city the cost of such work. Such decision may be appealed by the state franchise holder to the city council.

(Ord. No. 1826, § 1, 11-18-2009)

A.

Prior to any construction activity related to any cable service or video service, a state franchise holder shall provide public notification as required by applicable law.

B.

To the extent practicable, equipment placed on private property shall be placed at the location requested by the property owner..

(Ord. No. 1826, § 1, 11-18-2009)

Employees, agents, contractors, and subcontractors of any state franchise holder shall at all times be properly identified as employees or agents of the state franchise holder while performing any work or other activity within the city on behalf of the state franchise holder. Identification shall include the name of the employee or agent. The name and telephone number of the state franchise holder shall appear at all construction sites.

(Ord. No. 1826, § 1, 11-18-2009)

Each state franchise holder shall comply with all applicable construction requirements of Chapter 12.04 and shall undertake all necessary and appropriate means to protect and preserve health and safety, including complying with all construction requirements of Chapter 12.04 or as otherwise required by the director of public works.

(Ord. No. 1826, § 1, 11-18-2009)

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. No. 1826, § 1, 11-18-2009)

Each holder of a state franchise and each incumbent cable operator operating under a city franchise issued pursuant to this Code, shall negotiate with each other in good faith to interconnect their networks for the purpose of providing PEG programming including, but not limited to, any exclusive city use channel. Interconnection may be accomplished by any means authorized under California Public Utilities Code Section 5870(h). Each holder of a state franchise and any incumbent cable operator shall provide interconnection of PEG channels, including any exclusive city use channel on reasonable terms and conditions and may not withhold the interconnection. If a holder of a state franchise and an incumbent cable operator cannot reach a mutually acceptable interconnection agreement, the city may require the incumbent cable operator to allow the holder of the state franchise 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 holder or as otherwise permitted by applicable law. If no technically feasible point for interconnection is available, the holder of a state franchise shall make an interconnection available to the channel originator and shall provide the facilities necessary for the interconnection. The cost of any interconnection shall be borne by the state franchise holder requesting the interconnection unless otherwise agreed to by the state franchise holder and the incumbent cable operator. To the extent not inconsistent with California Public Utilities Code Section 5870(h), the city manager or the city manager's designee may waive or defer this requirement of interconnection in his or her sole discretion.

(Ord. No. 1826, § 1, 11-18-2009)

A.

Each state franchise holder or applicant for a state franchise shall file with the city manager and with the city's communications specialist or other city manager designee a copy of all applications that the state franchise holder or applicant is required to file with the public utilities commission with respect to state franchised video service in the city.

B.

Unless otherwise specified in this chapter, all notices or other documentation that a state franchise holder is required to provide to the city under this chapter or the California Public Utilities Code shall be provided to the city manager and to the city's communications specialist.

(Ord. No. 1826, § 1, 11-18-2009)

The rights reserved to the city of Lodi under this chapter are in addition to all other applicable rights of the city, whether granted or reserved by other provisions of the Lodi Municipal Code or as otherwise authorized by federal or state law, and no action, proceeding, or exercise of a right by the city of Lodi shall affect any other rights which may be held by the city of Lodi.

(Ord. No. 1826, § 1, 11-18-2009)

Nothing contained in this chapter shall be construed to exempt a state franchise holder from compliance with all applicable ordinances, rules, or regulations of the city of Lodi now in effect or which may be adopted that are not inconsistent with this chapter or California Public Utilities Code Section 5800 et seq.

(Ord. No. 1826, § 1, 11-18-2009)