Modesto Municipal Code Ch. 4 Video Service Provided by State Franchise Holders

Footnotes:

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Editor's note— Ord. 3645-C.S., § 1, effective May 5, 2016, repealed Title 11, Chapter 4. Section 2 of said ordinance enacted a new chapter as set out herein. The former Chapter 4, §§ 11-4.01—11-4.39, pertained to procedure for granting cable communication system franchises and derived from Ord. 2292-C.S., Ord. 2894-C.S., Ord. 3222-C.S., effective July 5, 2001; Ord. 3368-C.S., effective Dec. 9, 2004; Ord. 3421-C.S., effective Oct. 5, 2006; and Ord 3251A-C.S., effective June 27, 2002.

The purpose of this chapter is to establish regulations for the provision of video service by State franchise holders, pursuant to the Digital Infrastructure and Video Competition Act, California Public Utilities Code sections 5800-5970 (the "DIVCA"), as may be amended from time to time. This chapter is applicable to all video service providers who are eligible for, and have been awarded, a State video franchise under the DIVCA to provide cable or video services in any portion of the City. The fees and regulations set forth herein do not apply to any local cable franchise agreement between the City of Modesto and cable television provider in effect at the time of adoption of this section.

(Ord. 3645-C.S., § 2, effective 5-5-16)

For purposes of this chapter, the words set out in this section shall have the following meanings:

(a) "City" means the City of Modesto.

(b) "City Manager" means the City Manager of the City of Modesto, or his or her designee.

(c) "Franchise fee" shall have the meaning given that term by subdivision (g) of Public Utilities Code section 5830 or its successor.

(d) "Holder" shall have the meaning given that term by subdivision (j) of Public Utilities Code section 5830 or its successor.

(e) "Material breach" shall have the meaning given that term by subdivision (j) of Public Utilities Code section 5900 or its successor.

(f) "Network" shall have the meaning given that term by subdivision (l) of Public Utilities Code section 5830 or its successor.

(g) "PEG channels" means "public, educational, and governmental access channels" as that term is defined in Public Utilities Code section 5870 or its successor section.

(h) "State franchise" shall have the meaning given that term by subdivision (p) of Public Utilities Code section 5830.

(Ord. 3645-C.S., § 2, effective 5-5-16)

Each State franchise holder shall remit to the City a franchise fee in the amount of five (5) percent of the gross revenues of the State franchise holder in compliance with California Public Utilities Code sections 5840(q), 5860(a) and (d). If the holder does not pay the franchise fee when due, it 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 (1) percent.

(Ord. 3645-C.S., § 2, effective 5-5-16)

The City's current franchise with Comcast of California XII, Inc., provides for three (3) public, educational and governmental channels for PEG programming. Local franchise holders and holders of a State video franchise under the DIVCA shall each provide at least three (3) PEG channels.

(Ord. 3645-C.S., § 2, effective 5-5-16)

(a) Each State franchise holder shall remit to the City a fee to support PEG channel facilities in the amount of one (1) percent of the gross revenues, as defined in Public Utilities Code section 5860, of the State franchise holder. The fee shall be remitted on a quarterly basis and within forty-five (45) days of the close of each calendar quarter. Each remittance shall be accompanied by a summary explaining the basis for the calculation of the fee.

(b) Each State franchise holder shall furnish, on an annual basis, a statement within ninety (90) days of the close of the calendar year, either audited and certified by an independent certified public accountant or certified by an officer of the State franchise holder, reflecting the total amount of gross revenues, as defined in Public Utilities Code section 5860, for the preceding calendar year, and all payments, deductions and computations used to determine the amount of the remittances required by subsection (a) of this section during the preceding calendar year. The City Manager may establish, and from time to time revise, such additional reporting requirements as are necessary to ensure that the basis for the calculation of the amount of remittances are adequately explained and documented, and each State franchise holder shall comply with such additional reporting requirements provided that each State franchise holder shall have first been provided written notice of such requirements at least fifteen (15) days prior to the beginning of the calendar year.

(c) Notwithstanding subdivision (n) of Public Utilities Code section 5870, upon the expiration of any State franchise, without any action of the City Council, this section shall be deemed to have been automatically reauthorized, unless the State franchise holder has given the City Manager and the City Council written notice sixty (60) days prior to the expiration of its State franchise that the section will expire pursuant to the terms of subdivision (n) of Public Utilities Code section 5870.

(Ord. 3645-C.S., § 2, effective 5-5-16)

(a) Any State franchise holder shall comply with the customer service provisions set forth in Public Utilities Code section 5900. The City shall enforce all customer service and protection standards contained in Section 5900 of the Act, including, without limitation, those standards set forth in Section 5900(c).

(b) The City shall impose the following penalties against a State franchise holder for any material breach of the customer service provisions set forth in subsection (a) of this section:

(1) For the first occurrence of a material breach, a penalty of five hundred dollars ($500.00) shall be imposed for each day of each material breach, not to exceed one thousand five hundred dollars ($1,500.00) for each occurrence of the material breach.

(2) For a second occurrence of a material breach of the same nature as the first material breach that occurs within twelve (12) months, a penalty of one thousand dollars ($1,000.00) shall be imposed for each day of each material breach, not to exceed three thousand dollars ($3,000.00) for each occurrence of the material breach.

(3) For a third or further occurrence of a material breach of the same nature as the previous material breaches that occurred within the preceding twelve (12) months, a penalty of two thousand five hundred dollars ($2,500.00) shall be imposed for each day of each material breach, not to exceed seven thousand five hundred dollars ($7,500.00) for each occurrence of the material breach.

(c) The City Manager shall have the authority to assess penalties for any material breach by a holder of a State franchise. Prior to assessing penalties for a material breach, the City Manager shall first have provided the State franchise holder with written notice of any alleged material breach of the customer service provisions set forth in California Public Utilities Code section 5900 and shall allow the State franchise holder at least thirty (30) days from receipt of the notice to remedy the specified material breach. If the material breach has not been remedied upon the expiration of this thirty-day period, the City Manager may commence the assessment of penalties. In the event that a specified material breach has not been remedied following the City Manager's assessment of penalties in the maximum amount permitted per occurrence, the City Manager, after providing a subsequent written notice of the alleged material breach, may treat the continuing occurrence as a subsequent material breach. A holder of a State franchise may appeal the City may treat the continuing occurrence as a subsequent material breach.

(d) The City shall submit one-half (½) of any penalty amounts it receives to the Digital Divide Account established by California Public Utilities Code section 280.5.

(e) No monetary penalties shall be assessed for a material breach if it is out of the reasonable control of the State franchise holder.

(f) The penalty amounts established in subsection (b) of this section are based on the maximums allowed under subdivision (d) of California Public Utilities Code section 5900, and the City desires to set the penalty amounts at the highest amount authorized by law. Accordingly, the penalty amounts set out in subsection (b) of this section shall be automatically increased to the maximum penalties under subdivision (d) of California Public Utilities Code section 5900, as section 5900 is amended from time to time.

(Ord. 3645-C.S., § 2, effective 5-5-16)

The City Manager is hereby authorized to examine, or cause to be examined, the business records of the holder of the State franchise in accordance with subdivision (i) of Public Utilities Code section 5860.

(Ord. 3645-C.S., § 2, effective 5-5-16)

Any State franchise holder erecting, installing, constructing, repairing, replacing, reconstructing, and retaining 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 must comply with all applicable City construction codes and regulations and obtain all necessary permits.

(Ord. 3645-C.S., § 2, effective 5-5-16)

Each State franchise holder or applicant for a State franchise shall file with the City a copy of all applications or notices the State franchise holder or applicant is required to provide to the City under the Public Utilities Code. All notices or other documentation that a State franchise holder is required to provide to the City under this chapter or the Public Utilities Code shall be provided to the City Manager.

(Ord. 3645-C.S., § 2, effective 5-5-16)