Monrovia Municipal Code Ch. 5.48 Telecommunications Regulations

Sections:

• I. GENERAL PROVISIONS

• II. CABLE TELEVISION SYSTEMS

• III. OPEN VIDEO SYSTEMS

• IV. OTHER TELECOMMUNICATIONS SERVICES AND SYSTEMS

• V. DEFINITIONS

• VI. VIOLATIONS; SEVERABILITY

I. GENERAL PROVISIONS

This title is known and may be cited as the “Telecommunications Regulatory Ordinance” of the City of Monrovia.

(`83 Code, § 5.48.010) (Ord. 99-04 § 2 (part), 1999)

(A) The City Council finds and determines as follows:

(1) The development of cable television and other telecommunications systems may provide significant benefits for, and have substantial impacts upon, the residents of the city.

(2) Because of the complex and rapidly changing technology associated with telecommunications services and systems, the public convenience, safety, and general welfare can best be served by establishing regulatory powers to be exercised by the city.

(3) This chapter is intended to establish regulatory provisions that authorize the city to regulate cable television and telecommunications services and systems to the extent authorized by federal and state law, including but not limited to the federal Cable Communications Policy Act of 1984, the federal Cable Television Consumer and Competition Act of 1992, the federal Telecommunications Act of 1996, applicable regulations of the Federal Communications Commission, and applicable California statutes and regulations.

(B) The purpose and intent of this chapter is to provide for the attainment of the following objectives:

(1) To enable the city to discharge its public trust in a manner consistent with rapidly evolving federal and state regulatory policies, industry competition, and technological development.

(2) To authorize and to manage reasonable access to the city's public rights-of-way and public property for telecommunications purposes on a competitively neutral and nondiscriminatory basis.

(3) To obtain fair and reasonable compensation for the city and its residents for authorizing the private use of the public rights-of-way and public property.

(4) To promote competition in cable television and telecommunications services, minimize unnecessary local regulation of cable television and telecommunications service providers, and encourage the delivery of advanced and competitive cable television and telecommunications services on the broadest possible basis to local government and to the businesses, institutions, and residents of the city.

(5) To establish clear local guidelines, standards, and time frames for the exercise of local authority with respect to the regulation of cable television and telecommunications service providers.

(6) To encourage the profitable deployment of advanced telecommunications infrastructures that satisfy local needs, deliver enhanced government services, and provide informed consumer choices in an evolving telecommunications market.

(`83 Code, § 5.48.020) (Ord. 99-04 § 2 (part), 1999)

Various terms and phrases used in this title are defined below in § 5.48.400.

(`83 Code, § 5.48.030) (Ord. 99-04 § 2 (part), 1999)

II. CABLE TELEVISION SYSTEMS

(A) In accordance with applicable federal and state law, the city is authorized to grant one or more nonexclusive franchises to construct, reconstruct, operate, and maintain cable television systems within the city limits.

(B) The City Council finds that the development of cable television and related telecommunications services may provide significant benefits for, and substantial impacts upon, the residents of the city. Because of the complex and rapidly changing technology associated with cable television, the City Council further finds that the public convenience, safety, and general welfare can best be served by establishing regulatory powers to be exercised by the city. This Part II is intended to specify the means for providing to the public the best possible cable television and related telecommunications services, and every franchise issued in accordance with this Part II is intended to achieve this primary objective. It is the further intent of this Part II to adopt regulatory provisions that will enable the city to regulate cable television and related telecommunications services to the maximum extent authorized by federal and state law.

(`83 Code, § 5.48.100) (Ord. 99-04 § 2 (part), 1999)

(A) Franchise purposes. A franchise granted by the city under the provisions of this Part II may authorize the grantee to do the following:

(1) To engage in the business of providing cable service and such other telecommunications services as may be authorized by law and which grantee elects to provide to its subscribers within the designated franchise service area.

(2) To erect, install, construct, repair, rebuild, reconstruct, replace, maintain, and retain, cable lines, related electronic equipment, supporting structures, appurtenances, and other property in connection with the operation of the cable system in, on, over, under, upon, along and across streets or other public places within the designated franchise service area.

(3) To maintain and operate the franchise properties for the origination, reception, transmission, amplification, and distribution of television and radio signals, and for the delivery of cable services and such other services as may be authorized by law.

(B) Franchise required. It is unlawful for any person to construct, install, or operate a cable television system within any street or public way in the city without first obtaining a franchise under the provisions of this Part II.

(C) Term of the franchise.

(1) A franchise granted under this Part II will be for the term specified in the franchise agreement, commencing upon the effective date of the ordinance or resolution adopted by the City Council that authorizes the franchise.

(2) A franchise granted under this Part II may be renewed upon application by the grantee in accordance with the then applicable provisions of state and federal law and of this Part II.

(D) Franchise territory. A franchise is effective within the territorial limits of the city, and within any area added to the city during the term of the franchise, unless otherwise specified in the ordinance or resolution granting the franchise or in the franchise agreement.

(E) Federal or state jurisdiction. This Part II will be construed in a manner consistent with all applicable federal and state laws, and it applies to all franchises granted or renewed after the effective date of this chapter, to the extent authorized by applicable law.

(F) Franchise non-transferable.

(1) Grantee may not sell, transfer, lease, assign, sublet, or dispose of, in whole or in part, either by forced or involuntary sale, or by ordinary sale, contract, consolidation, or otherwise, the franchise or any of the rights or privileges therein granted, without the prior consent of the City Council and then only upon such terms and conditions as may be prescribed by the City Council, which consent may not be unreasonably denied or delayed. Any attempt to sell, transfer, lease, assign, or otherwise dispose of the franchise without the consent of the City Council is null and void. The granting of a security interest in any assets of the grantee, or any mortgage or other hypothecation, will not be deemed a transfer for the purposes of this division.

(2) The requirements of division (F)(1) apply to any change in control of grantee. The word “control” as used herein is not limited to the ownership of major stockholder or partnership interests, but includes actual working control in whatever manner exercised. If grantee is a partnership or a corporation, prior authorization of the City Council is required where ownership or control of 25% more of the partnership interests or the voting stock of grantee, or any company in the tier of companies controlling the grantee, whether directly or indirectly, is acquired by a person or a group of persons acting in concert, none of whom, singularly or collectively, owns or controls those partnership interests or that voting stock of the grantee, or of grantee's upper tier controlling companies, as of the effective date of the franchise.

(3) Grantee must notify the city in writing of any foreclosure or judicial sale of all or a substantial part of the grantee's franchise property, or upon the termination of any lease or other interest covering all or a substantial part of that franchise property. That notification will be considered by the city as notice that a change in control of ownership of the franchise has taken place, and the provisions of this division that require the prior consent of the City Council to that change in control of ownership will apply.

(4) For the purpose of determining whether it will consent to an acquisition, transfer, or change in control, the city may inquire as to the qualifications of the prospective transferee or controlling party, and grantee must assist the city in that inquiry. In seeking the city's consent to any change of ownership or control, grantee or the proposed transferee, or both, must complete Federal Communications Commission Form 394 or its equivalent. This application must be submitted to the city not less than 120 days prior to the proposed date of transfer. The transferee must establish that it possesses the legal, financial, and technical capability to operate and maintain the cable system and to comply with all franchise requirements during the remaining term of the franchise. If the legal, financial, and technical qualifications of the applicant are determined to be satisfactory, then the city will consent to the transfer of the franchise.

(5) Any financial institution holding a pledge of the grantee's assets to secure the advance of money for the construction or operation of the franchise property has the right to notify the city that it, or a designee satisfactory to the city, will take control of and operate the cable television system upon grantee's default in its financial obligations. Further, that financial institution must also submit a plan for such operation within 90 days after assuming control. The plan must insure continued service and compliance with all franchise requirements during the period that the financial institution will exercise control over the system. The financial institution may not exercise control over the system for a period exceeding 18 months unless authorized by the city, in its sole discretion, and during that period of time it will have the right to petition the city to transfer the franchise to another grantee.

(6) Grantee must reimburse the city for the city's reasonable review and processing expenses incurred in connection with any transfer or change in control of the franchise. These expenses may include, without limitation, costs of administrative review, financial, legal, and technical evaluation of the proposed transferee, consultants (including technical and legal experts and all costs incurred by these experts), notice and publication costs, and document preparation expenses. The total amount of these reimbursable expenses may be subject to maximum limits that are specified in the franchise agreement between the city and the grantee. No reimbursement may be offset against any franchise fee payable to the city during the term of the franchise.

(G) Geographical coverage.

(1) Grantee must design, construct, and maintain the cable television system so as to have the capability to pass every dwelling unit in the franchise service area, subject to any service area line extension requirements or territorial restrictions set forth in the franchise agreement.

(2) After service has been established within all or any part of the franchise service area by activating trunk or distribution cables, grantee must provide service to any requesting subscriber within that activated part of the service area within 30 days from the date of request, provided that the grantee is able to secure on reasonable terms and conditions all rights-of-way necessary to extend service to that subscriber within that 30-day period.

(H) Nonexclusive franchise. Every franchise granted is nonexclusive. The city specifically reserves the right to grant, at any time, such additional franchises for a cable television system, or any component thereof, as it deems appropriate, subject to applicable state and federal law. If an additional franchise is proposed to be granted to a subsequent grantee, a noticed public hearing must first be held in accordance with the provisions of Cal. Gov't Code § 53066.3.

(I) Multiple franchises.

(1) The city may grant any number of franchises, subject to applicable state and federal law. The city may limit the number of franchises granted, based upon, but not necessarily limited to the requirements of applicable law and specific local considerations, such as:

(a) The capacity of the public rights-of-way to accommodate multiple cables in addition to the cables, conduits, and pipes of the existing utility systems, such as electrical power, telephone, gas, and sewerage.

(b) The benefits that may accrue to subscribers as a result of cable system competition, such as lower rates and improved service.

(c) The disadvantages that may result from cable system competition, such as the requirement for multiple pedestals on residents' property, and the disruption arising from numerous excavations within the public rights-of-way.

(2) The city may require that any new grantee be responsible for its own underground trenching and the associated costs if, in the city's opinion, the rights-of-way in any particular area cannot reasonably accommodate additional cables.

(`83 Code, § 5.48.110) (Ord. 99-04 § 2 (part), 1999)

(A) Filing of applications. Any person desiring an initial franchise for a cable television system must file an application with the city. A reasonable non-refundable application fee deposit in an amount established by resolution of the City Council must accompany the application. That application fee deposit will cover all anticipated costs associated with reviewing and processing the application, including without limitation costs of administrative review, financial, legal, and technical evaluation of the applicant, consultants (including technical and legal experts and all costs incurred by those experts), notice and publication requirements, and document preparation expenses. If those costs exceed the application fee deposit, the applicant must pay the difference to the city within 30 days following receipt of an itemized statement of those costs.

(B) Applications; contents. An application for an initial franchise for a cable television system must contain, as applicable:

(1) A statement as to the proposed franchise service area.

(2) A resume of the applicant's prior history, including the experience and expertise of the applicant in the cable television and telecommunications industry.

(3) A list of the partners, general and limited, of the applicant, if a partnership, or the percentage of stock owned or controlled by each stockholder, if a closely held corporation. If the applicant is a publicly-owned partnership or corporation, each owner of 10% or more of the partnership interests, or of the issued and outstanding capital stock, must be identified.

(4) A list of officers, directors, and managing employees of the applicant, together with a description of the background of each such person.

(5) The names and addresses of any parent or subsidiary of the applicant, or any other business entity owning or controlling applicant in whole or in part, or that is owned or controlled in whole or in part by the applicant.

(6) A current financial statement of the applicant verified by a certified public accountant or otherwise certified to be true, complete, and correct to the reasonable satisfaction of the city.

(7) The proposed construction and service schedule, the proposed rate structure for cable services, and the proposed commitment to provide public, educational, and governmental access capacity, services, facilities, and equipment.

(8) Any additional information that the city deems to be reasonably necessary.

(C) Consideration of initial applications.

(1) Upon receipt of an application for an initial franchise, the City Manager or the City Manager's designee must prepare a report and make recommendations to the City Council concerning that application.

(2) A public hearing will be noticed prior to any initial franchise grant, at a time and date approved by the City Council. Within 30 days after the close of the hearing, the City Council will make a decision based upon the evidence received at the hearing as to whether the franchise should be granted, and, if granted, subject to what conditions. The City Council may grant one or more franchises, or may decline to grant any franchise.

(D) Franchise renewal. Franchise renewals will be processed in accordance with then applicable law and with the renewal terms, if any, of the franchise agreement. The city and grantee, by mutual consent, may enter into renewal negotiations at any time during the term of the franchise.

(`83 Code, § 5.48.120) (Ord. 99-04 § 2 (part), 1999)

(A) The terms and provisions of a franchise agreement for the operation of a cable television or related telecommunications services may relate to or include, without limitation, the following subject matters:

(1) The nature, scope, geographical area, and duration of the franchise.

(2) The applicable franchise fee to be paid to the city, including the percentage amount, the method of computation, and the time for payment.

(3) Requirements relating to compliance with and implementation of state and federal laws and regulations pertaining to the operation of the cable television system.

(4) Requirements relating to the construction, upgrade, or rebuild of the cable television system, as well as the provision of special services, such as outlets for public buildings, emergency alert capability, and parental control devices.

(5) Requirements relating to the maintenance of a performance bond, a security fund, a letter of credit, or similar assurances to secure the performance of the grantee's obligations under the franchise agreement.

(6) Requirements relating to comprehensive liability insurance, workers' compensation insurance, and indemnification.

(7) Requirements relating to consumer protection and customer service standards, including the resolution of subscriber complaints and disputes and the protection of subscribers' privacy rights.

(8) Requirements relating to the grantee's support of local cable usage, including the provision of public, educational, and governmental access channels, the coverage of public meetings and special events, and financial support for the required access channels.

(9) Requirements relating to construction, operation, and maintenance of the cable television system within the public rights-of-way, including compliance with all applicable building codes and permit requirements of the city, the abandonment, removal, or relocation of facilities, and compliance with FCC technical standards.

(10) Requirements relating to record keeping, accounting procedures, reporting, periodic audits, and performance reviews, and the inspection of grantee's books and records.

(11) Acts or omissions constituting material breaches of or defaults under the franchise agreement, and the applicable penalties or remedies for such breaches or defaults, including fines, penalties, liquidated damages, suspension, revocation, and termination.

(12) Requirements relating to the sale, assignment, or other transfer or change in control of the franchise.

(13) The grantee's obligation to maintain continuity of service and to authorize, under certain specified circumstances, the city's operation and management of the cable system.

(14) Such additional requirements, conditions, policies, and procedures as may be mutually agreed upon by the parties to the franchise agreement and that will, in the judgment of city staff and the City Council, best serve the public interest and protect the public health, welfare, and safety.

(B) If there is any conflict or inconsistency between the provisions of a franchise agreement authorized by the City Council and provisions of this Part II, the provisions of the franchise agreement will control.

(`83 Code, § 5.48.130) (Ord. 99-04 § 2 (part), 1999)

(A) Operational standards.

(1) Grantee must maintain the necessary facilities, equipment, and personnel to comply with the following consumer protection and service standards under normal operating conditions:

(a) Sufficient toll-free telephone line capacity during normal business hours to ensure that telephone calls are answered before the fourth ring. Telephone answer time by a customer service representative, including wait time, may not exceed 30 seconds when the connection is made. If the call needs to be transferred, transfer time must not exceed 30 seconds.

(b) A caller must receive a busy signal less than 3% of the time.

(c) Emergency toll-free telephone line capacity on a 24-hour basis, including weekends and holidays. After normal business hours, the telephone calls may be answered by a service or an automated response system, including an answering machine. Calls received after normal business hours must be responded to by a trained company representative on the next business day.

(d) A conveniently-located local business and service or payment office open during normal business hours at least eight hours daily on weekdays, and at least four hours weekly on evenings or weekends, and adequately staffed with trained customer service representatives to accept subscriber payments and to respond to service requests, inquiries, and complaints.

(e) An emergency system maintenance and repair staff, capable of responding to and repairing major system malfunctions on a 24-hour per day basis.

(f) A trained installation staff must provide service to any subscriber requiring a standard installation within seven days after receipt of a request, in all areas where trunk and feeder cable have been activated. "Standard installations" are those that are located up to 125 feet from the existing distribution system, unless otherwise defined in the franchise agreement.

(g) The grantee must schedule, within a specified four-hour time period Monday through Saturday (legal holidays excluded), all appointments with subscribers for installation of service, service calls, and other activities at the subscriber's location. The grantee may schedule installation and service calls outside of normal business hours for the convenience of the subscriber. The grantee may not cancel an appointment with a subscriber after the close of business on the business day prior to the scheduled appointment. If a grantee representative is delayed in keeping an appointment with a subscriber and will not be able to honor the scheduled appointment, the subscriber must be contacted prior to the time of the scheduled appointment, and the appointment must be rescheduled, as necessary, at a time that is convenient for the subscriber. The grantee must undertake appropriate quality control measures to ensure that the customer is satisfied with the work.

(h) Subscribers who have experienced one missed appointment due to the fault of the grantee will receive an installation free of charge if the appointment was for an installation. If an installation was to have been provided free of charge, and for all other appointments, the subscriber will receive one month of the subscribed-to service tier, free of charge. Subscribers also will be entitled to receive a free installation, or one month free service, as provided above, if the grantee fails to complete a standard installation within seven days of receiving an installation request due to its fault, its failure to schedule an appointment within a specified four-hour time period, or its failure to notify the subscriber that the grantee's representative will be late for an appointment. Subscribers who have experienced two missed appointments due to the fault of the grantee will receive two months of the subscribed-to service tier, free of charge, in addition to the free installation or free month of service provided for the first missed appointment.

(i) Upon a subscriber's request, the grantee will arrange for pickup or replacement of converters or other equipment provided by the grantee at the subscriber's address within 14 days after the request is made if the subscriber is mobility-limited.

(2) Under normal operating conditions, the standards of divisions (A)(1) (a), (A)(1)(c), (A)(1)(f) and (A)(1)(g) above must be met not less than 95% of the time, measured on a quarterly basis.

(B) Service standards.

(1) The grantee will render efficient service, make repairs promptly, and interrupt service only for good cause and for the shortest time possible. Except in emergency situations, scheduled interruptions will occur during a period of minimum use of the cable system, preferably between midnight and 6:00 a.m. Unless the scheduled interruption lasts for no more than two hours and occurs between midnight and 6:00 a.m. (in which event 24-hours prior notice must be given to the city), 48-hours prior notice must be given to subscribers.

(2) The grantee will maintain a repair force of technicians who will respond to subscriber requests for service within the following time frames:

(a) For a system outage: Within two hours, including weekends, after receiving subscriber calls or requests for service that by number identify a system outage of sound or picture on one or more channels, affecting five or more subscribers to the system.

(b) For an isolated outage: Within 24 hours, including weekends, after receiving requests for service identifying an isolated outage of sound or picture on one or more channels.

(c) For inferior signal quality: No later than the following business day, excluding Sundays and holidays, after a request for service identifying a problem concerning picture or sound quality.

(3) The grantee will be deemed to have responded to a request for service under the provisions of this division (B) when a technician arrives at the service location and begins work on the problem. If a subscriber is not home when the technician arrives, the technician must leave written notification of arrival.

(4) The grantee may not charge for the repair or replacement of defective or malfunctioning equipment provided by the grantee to subscribers, unless the defect or malfunction was caused by the subscriber.

(5) The grantee must determine the nature of the problem within 24 hours after commencing work and resolve all cable system related problems within three business days, unless technically infeasible.

(C) Billing and information standards.

(1) Subscriber bills must be clear, concise, and understandable. Bills must be fully itemized, with itemizations including, but not limited to, basic and premium service charges and equipment charges. Bills also must clearly delineate all activity during the billing period, including optional charges, rebates, and credits.

(2) The first billing to a subscriber after a new installation or service change must be prorated based upon when the new or changed service commenced. Subscribers must not be charged a late fee or otherwise penalized for any failure attributable to the grantee, including the failure to timely or correctly bill the subscriber.

(3) In case of a billing dispute, the grantee must respond in writing to a written complaint from a subscriber within 30 days after receiving the complaint at the office specified on the billing statement for receiving that complaint.

(4) Upon request by a subscriber, credits or refunds must be provided by grantee to subscribers who experience an outage, interruption, or disconnection of service of four or more consecutive hours, provided that such loss of service is neither caused by the subscriber nor attributable to scheduled repairs, maintenance, or construction in circumstances where grantee has provided advance written notice to subscriber, and the loss of service does not exceed the time period specified by grantee. For subscribers terminating service, credits or refunds must be issued promptly, but not later than 30 days after the return of any grantee supplied equipment.

(5) Subject to prior review by the city, the grantee must provide written information on each of the following matters at the time of the installation of service, at least annually to all subscribers, and at any time upon request:

(a) Products and services offered.

(b) Prices and options for programming services and conditions of subscription to programming and other services.

(c) Installation and service maintenance policies.

(d) Instructions on the use of the cable service.

(e) Channel positions of programming carried on the system.

(f) Billing and complaint procedures, including the address and telephone number of the city's office designated for dealing with cable-related issues.

(g) Consumer protection and service standards and penalties for noncompliance.

(6) Subscribers must be notified in writing of any changes in rates, programming services, or channel positions as soon as possible. Notice must be given to subscribers a minimum of 30 days in advance of those changes if the change is within the control of the grantee. In addition, the grantee must notify subscribers in writing 30 days in advance of any significant changes in the information required above in division (C)(5) above.

(7) The grantee must maintain a public file containing all notices provided to subscribers under these consumer protection and service standards and all promotional offers made by grantee to subscribers. These documents must be maintained for a minimum period of two years.

(D) Verification of compliance with standards.

(1) Upon 30 days prior written notice, the city may require the grantee to provide a written report demonstrating its compliance with any of the consumer protection and service standards specified in this section. The grantee must provide sufficient documentation to enable the city to verify compliance.

(2) A repeated and verifiable pattern of noncompliance with the consumer protection and service standards of this section, after the grantee's receipt of written notice and an opportunity to cure, may be deemed a material breach of the franchise agreement.

(E) Subscriber complaints and disputes.

(1) The grantee must establish written procedures for receiving, acting upon, and resolving subscriber complaints without intervention by the city. The written procedures must prescribe the manner in which a subscriber may submit a complaint, either orally or in writing, specifying the subscriber's grounds for dissatisfaction. The grantee must file a copy of these procedures with the city. These procedures must include a requirement that the grantee respond in writing to any written complaint from a subscriber within 30 days after receiving the complaint at the office specified on the billing statement for receiving that complaint.

(2) Upon request, and subject to applicable law protecting subscriber privacy rights, the city has the right to review the grantee's response to subscriber complaints.

(3) All subscribers have the right to continue receiving service so long as their financial and other obligations to the grantee are honored. If the grantee elects to rebuild, modify, or sell the system, or if the city gives notice of intent to terminate or not to renew the franchise, the grantee must act so as to ensure that all subscribers receive service while the franchise remains in force.

(4) Upon a change of control of the grantee, or if a new operator acquires the cable system, the original grantee must cooperate with the city, the new grantee, or the new operator in maintaining continuity of service to all subscribers. During that transition period, the grantee is entitled to the revenues derived from its operation of the cable system.

(F) Disconnection/downgrades.

(1) A subscriber may terminate or downgrade service at any time, and the grantee must promptly comply with the subscriber's request within five days or at any later time requested by the subscriber. No period of notice prior to voluntary termination or downgrade of service may be required of subscribers. Grantee will impose no charges for the voluntary termination or downgrade of service unless a visit to the subscriber's premises is required to remove a converter box or other equipment or property owned by grantee.

(2) The grantee may disconnect a subscriber's service in compliance with Cal. Gov’t Code § 53088.2(i), (j) and (k). If service is disconnected for nonpayment of past due fees or charges, the grantee must promptly reinstate service upon payment in full by the subscriber of all such fees and charges, including late charges.

(3) Notwithstanding the requirements of division (F)(2) above, the grantee may immediately disconnect service to a subscriber if the subscriber is damaging or destroying the grantee's cable system or equipment. In the event of disconnection on such grounds, the grantee will resume service to the subscriber upon receiving adequate assurances that the subscriber has ceased the practices or conduct that resulted in disconnection and has paid all proper fees and charges, including any amounts reasonably owed the grantee for the damage caused by the subscriber.

(4) The grantee may also disconnect service to a subscriber when service causes signal leakage exceeding federal limits. If service is disconnected, the grantee will immediately resume service without charge upon the satisfactory correction of the signal leakage problem.

(5) Upon termination of service to a subscriber, the grantee will remove its equipment from the subscriber's premises within 30 days. The equipment will be deemed abandoned if it is not removed within such time period unless the grantee has been denied access to the subscriber's premises.

(G) Changes in service. Except as otherwise provided by federal or state law, subscribers must not be required to pay any additional fee or charge, other than the regular service fee, in order to receive the services selected (such as upgrade or downgrade charges). No charge may be imposed for any service or equipment that the subscriber has not affirmatively selected. Payment of the regular monthly bill will not by itself constitute an affirmative selection.

(H) Deposits. Grantee may require a reasonable, nondiscriminatory deposit on equipment provided to subscribers. Such deposits must be placed in an interest-bearing account. The deposit must be returned, with interest earned to the date of repayment, within 30 days after the equipment is returned to the grantee.

(I) Parental control option. Grantee must provide parental control devices to all subscribers who desire to block the video or audio portion of any programming that the subscriber finds objectionable. Such devices will be provided at no charge to the subscriber, unless otherwise required by federal or state law, or unless a converter box is required to be installed for the purpose of providing the parental control device.

(J) Additional requirements.

(1) All officers, agents, and employees of the grantee, or of its contractors or subcontractors, who, in the normal course of work come into contact with members of the public, or who require entry onto subscribers' premises, must carry a photo-identification card in a form approved by the city. The grantee must account for all identification cards at all times. All vehicles of the grantee or its subcontractors must be clearly identified as vehicles engaged in providing services for the grantee.

(2) In addition to the consumer protection and service standards specified in this section, the grantee must comply with all applicable consumer protection and service standards that are imposed upon cable operators by the following:

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

1. 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.

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

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

(b) The provisions of Cal. Gov’t Code §§ 53054 et seq., entitled the "Cable Television and Video Provider Customer Service and Information Act."

(c) The provisions of Cal. Gov’t Code §§ 53088 et seq., entitled the "Video Customer Service Act."

(d) The provisions of Cal. Civil Code § 1722(b)(1) - (6) relating to service or repair transactions between cable television companies and their subscribers.

(e) The provisions of Cal. Penal Code § 637.5 relating to subscribers' rights to privacy protection.

(3) If there is any conflict or inconsistency between a consumer protection and service standard specified in this section and a standard set forth in the statutes, rules, regulations, and orders that are referenced above in division (J)(2), then the standard that is the most stringent, and that affords the greatest degree of protection to consumers, will apply to the extent authorized by applicable law.

(K) Penalties for noncompliance.

(1) Purpose. The purpose of this division (K) is to authorize monetary penalties for the violation of the customer service standards established by this section in a manner consistent with the Video Customer Service Act (Cal. Gov’t Code §§ 53088 et seq.), and pursuant to the city's inherent police powers. The imposition of penalties authorized by this division (K) 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 division (K)(2)(d).

(2) Administration and appeals.

(a) The City Manager or the City Manager's designee is authorized to administer this division (K). 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 to the City Council.

(b) If the grantee or any interested person is aggrieved by a decision of the City Manager, the aggrieved party may, within ten days of the written decision, appeal that decision in writing to the City Council. The appeal letter must be accompanied by the fee established by the City Council for processing the appeal. The City Council may affirm, modify, or reverse the decision of the City Manager.

(c) Schedule of penalties. The following schedule of monetary penalties may be assessed against the grantee for the material breach of the provisions of the consumer protection and service standards set forth in this section, provided that the breach is within the reasonable control of the grantee:

1. For a first material breach: the maximum penalty is $200 for each day of material breach, but not to exceed a cumulative total of $600 for each occurrence of the material breach.

2. For a second material breach of the same nature within a 12-month period for which the city has provided notice and a penalty has been assessed, the maximum penalty is $400 for each day of the material breach, but not to exceed a cumulative total of $1,200 for each occurrence of the material breach.

3. For a third or further material breach of the same nature within a 12-month period for which the city has provided notice and a penalty has been assessed, the maximum penalty is $1,000 for each day of the material breach, but not to exceed a cumulative total of $3,000 for each occurrence of the material breach.

4. The maximum penalties referenced above may be increased by any additional amount authorized by state law.

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

(e) Notification of breach. The city must give the grantee written notice of any alleged breach of the consumer protection and service standards and allow the grantee at least 30 days from receipt of the notice to remedy the specified breach. For the purpose of assessing penalties, a material breach is deemed to have occurred for each day, following the expiration of the period for cure specified herein, that any breach has not been remedied by the grantee, irrespective of the number of subscribers affected.

(f) Limitations. With respect to any grantee that operates under a franchise or license agreement with the city, any monetary penalties assessed under this division (K) must be reduced dollar for dollar to the extent that any liquidated damage or penalty provision of the franchise or license agreement imposes a monetary obligation on the grantee for the same customer service failure, and no other monetary damages may be assessed for that customer service failure.

(Ord. 2007-07 § 1, 2007)

(A) Parity among video service providers. The City Council has determined that the public interest will best be served by imposing, to the extent authorized by applicable law, comparable financial obligations upon similarly-situated multichannel video programming providers that are franchised to provide video services within the city. Consistent with the city's policy of requiring franchisees to provide financial support for public, educational, and governmental (PEG) access channel facilities and activities, a fee is established as set forth below in division (B).

(B) PEG fee in effect on December 31, 2006. On December 31, 2006, the City imposed two separate fees to support PEG channel facilities and activities. When combined, these fees were in excess of 1%. In accordance with Cal. Public Utilities Code § 5870(n), the city may, by ordinance, establish a fee no greater than those separate fees.

(C) PEG access support fee. The city hereby establishes and imposes upon any state video franchise holder operating in the city a fee, separate from the 5% franchise fee, to support PEG access channel facilities and activities. This separate fee is in the amount of 1% of a video service provider's gross revenues, plus the sum of $0.13 per subscriber, per month. The payments of $0.13 per subscriber, per month, will terminate when the cumulative sum of $88,381.40 has been paid to the city over the term of the franchise, or any extension or renewal of the franchise. The restrictions and limitations set forth below in division (D) apply to this PEG access support fee.

(D) Restrictions and limitations. The fee in support of PEG access channel facilities and activities specified above in division (C), as applied to a state video franchise holder, is subject to the following provisions:

(1) The fee must not exceed 3% of the holder's gross revenues, as the term "gross revenues" is defined in Cal. Public Utilities Code § 5860.

(2) The fee will terminate upon expiration of the state video franchise, but it may be reauthorized by ordinance adopted by the City Council.

(3) If the imposition of this fee, or any component thereof, is determined to be contrary to or inconsistent with the provisions of Cal. Public Utilities Code § 5870 by subsequent legislative action, judicial decision, or administrative interpretation, then an alternative fee for PEG support obligations may be imposed by ordinance adopted by the City Council.

(Ord. 2007-07 § 2, 2007)

(A) Franchise fees. A state video franchise holder operating in the city shall pay to the city a franchise fee that is equal to 5% of the gross revenue of that state video franchise holder. The term "gross revenue" shall be defined as set forth in Cal. Public Utilities Code § 5860.

(B) Audit authority. Not more than once annually, the city may examine and perform an audit of the business records of a holder of a state video franchise to ensure compliance with all applicable statutes and regulations related to the computation and payment of franchise fees.

(C) Customer service penalties under state video franchises.

(1) The holder of a state video franchise must comply with all applicable state and federal customer service and protection standards pertaining to the provision of video service.

(2) The city will monitor the compliance of state video franchise holders with respect to state and federal customer service and protection standards. The city will provide to the state video franchise holder written notice of any material breaches of applicable customer service and protection standards, and will allow the state video franchise holder 30 days from receipt of the notice to remedy the specified material breach. Material breaches not remedied within the 30-day time period will be subject to the following monetary penalties to be imposed by the city in accordance with state law:

(a) For the first occurrence of a violation, a monetary penalty of $500 shall be imposed for each day the violation remains in effect, not to exceed $1,500 for each violation.

(b) For a second violation of the same nature within 12 months, a monetary penalty of $1,000 shall be imposed for each day the violation remains in effect, not to exceed $3,000 for each violation.

(c) For a third or further violation of the same nature within 12 months, a monetary penalty of $2,500 shall be imposed for each day the violation remains in effect, not to exceed $7,500 for each violation.

(3) A state video franchise holder may appeal a monetary penalty assessed by the city within 60 days. After relevant evidence and testimony is received, and staff reports are submitted, the City Council will vote to either uphold or vacate the monetary penalty. The City Council's decision on the imposition of a monetary penalty will be final.

(D) City response to state video franchise applications.

(1) Applicants for state video franchises within the boundaries of the city must concurrently provide to the city complete copies of any application or amendments to applications filed with the California Public Utilities Commission. One complete copy must be provided to the City Clerk.

(2) The city will provide any appropriate comments to the California Public Utilities Commission regarding an application or an amendment to an application for a state video franchise.

(E) PEG channel capacity. A state video franchise holder that uses the public rights-of-way shall designate sufficient capacity on its network to enable the carriage of at least three public, educational, or governmental (PEG) access channels.

(1) PEG access channels shall be for the exclusive use of the city or its designees to provide public, educational, or governmental programming.

(2) Advertising, underwriting, or sponsorship recognition may be carried on the PEG access channels for the purpose of funding PEG-related activities.

(3) The PEG access channels shall be carried on the basic service tier.

(4) To the extent feasible, the PEG access channels shall not be separated numerically from other channels carried on the basic service tier, and the channel numbers for the PEG access channels shall be the same channel numbers used by the incumbent cable operator unless prohibited by federal law.

(5) After the initial designation of PEG access channel numbers, the channel numbers shall not be changed without the prior written consent of the city, unless the change is required by federal law.

(6) Each PEG access channel shall be capable of carrying a National Television System Committee (NTSC) television signal.

(F) Interconnection. Where technically feasible, a state video franchise holder and incumbent cable operator shall negotiate in good faith to interconnect their networks for the purpose of providing PEG access channel programming. Interconnection may be accomplished by direct cable, microwave link, satellite, or other reasonable method of connection. State video franchise holders and incumbent cable operators shall provide interconnection of the PEG access channels on reasonable terms and conditions and may not withhold the interconnection. If a state video franchise holder and an incumbent cable operator cannot reach a mutually acceptable interconnection agreement, the city may require the incumbent cable operator to allow the state video franchise holder to interconnect its network with the incumbent's network at a technically feasible point on the holder's network as identified by the holder. If no technically-feasible point for interconnection is available, the state video franchise holder 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 video franchise holder requesting the interconnection unless otherwise agreed to by the parties.

(G) Emergency alert system and emergency overrides. A state video franchise holder must comply with the emergency alert system requirements of the Federal Communications Commission in order that emergency messages may be distributed over the holder's network. Provisions in city-issued franchises authorizing the city to provide local emergency notifications shall remain in effect, and shall apply to all state video franchise holders in the city for the duration of the city-issued franchise, or until the term of the franchise would have expired had it not been terminated pursuant to Cal. Public Utilities Code § 5840(m), or until January 1, 2009, whichever is later.

(Ord. 2007-07 § 3, 2007)

III. OPEN VIDEO SYSTEMS

The provisions of this Part III are applicable to an open video system operator, as defined below in § 5.48.400, that intends to deliver video programming to consumers in the city over an open video system.

(`83 Code, § 5.48.200) (Ord. 99-04 § 2 (part), 1999)

(A) Before commencing the delivery of video programming services to consumers in the city over an open video system, the open video system operator must file an application with the city. That application must include or be accompanied by the following, as applicable:

(1) The identity of the applicant, including all affiliates of the applicant.

(2) Copies of FCC Form 1275, all “Notices of Intent” filed under 47 CFR 76.1503(b)(1), and the Order of the FCC, all of which relate to certification of the applicant to operate an open video system in accordance with 47 USC § 753(a)(1) (Section 653(a)(1) of the Communications Act) and the FCC's rules.

(3) The area or areas of the city that the applicant desires to serve.

(4) A description of the open video system services that will be offered by the applicant over its existing or proposed facilities.

(5) A description of the transmission medium that will be used by the applicant to deliver the open video system services.

(6) Information in sufficient detail to establish the applicant's technical qualifications, experience, and expertise regarding the ownership and operation of the open video system described in the application.

(7) Financial statements prepared in accordance with generally accepted accounting principles that demonstrate the applicant's financial ability to:

(a) Construct, operate, maintain and remove any new physical plant that is proposed to be constructed in the city.

(b) Comply with the city's public, educational, and governmental access requirements as specified below in § 5.48.230(B)(4).

(c) Comply with the city's requirement that gross revenue fees be paid in the sum of 5%, as specified below in § 5.48.230(B)(2).

(8) An accurate map showing the location of any existing telecommunications facilities in the city that the applicant intends to use, to purchase, or to lease.

(9) If the applicant's operation of the open video system will require the construction of new physical plant and facilities in the city, the following additional information must be provided:

(a) A preliminary construction schedule and completion dates.

(b) Preliminary engineering plans, specifications, and a network map of any new facilities to be constructed in the city, in sufficient detail to identify:

1. The location and route requested for the applicant's proposed facilities.

2. The locations, if any, for interconnection with the facilities of other telecommunications service providers.

3. The specific structures, improvements, facilities, and obstructions, if any, that the applicant proposes to remove or relocate on a temporary or permanent basis.

(c) The applicant's statement that, in constructing any new physical plant, the applicant will comply with all applicable ordinances, rules, and regulations of the city, including the payment of all required permit and processing fees.

(10) The information and documentation that is required to be submitted to the city by a video provider, as specified below in § 5.48.310(B).

(11) Such additional information as may be requested by the City Manager.

(12) A non-refundable filing fee in an amount established by resolution of the City Council.

(B) If any item of information specified above in division (A) is determined under paramount federal or state law to be unlawful, the City Manager is authorized to waive the requirement that such information be included in the application.

(`83 Code, § 5.48.210) (Ord. 99-04 § 2 (part), 1999)

Within 30 days after receipt of an application filed under § 5.48.210 that is deemed to be complete, the City Manager will give written notice to the applicant of the city's intent to negotiate an agreement setting forth the terms and conditions under which the operation of the proposed open video system will be authorized by the city. The commencement of those negotiations will be on a date that is mutually acceptable to the city and to the applicant.

(`83 Code, § 5.48.220) (Ord. 99-04 § 2 (part), 1999)

(A) No video programming services may be provided in the city by an open video system operator unless the operator and the city have executed a written agreement setting forth the terms and conditions under which the operation of the proposed open video system will be authorized by the city.

(B) The agreement between the city and the open video system operator may contain terms and conditions that relate to the following subject matters, to the extent that such terms, conditions, and subject matters are not preempted by federal statute or regulations:

(1) The nature, scope, and duration of the agreement, including provisions for its renewal or extension.

(2) The obligation of the open video system operator to pay to the city, at specified times, fees on the gross revenues received by the operator, as authorized by 47 CFR 76.1511, in accordance with the following standards and procedures:

(a) The amount of the fees on the gross revenues will be 5%, and will be paid in lieu of the franchise fees permitted under Section 622 of the Communications Act.

(b) The term GROSS REVENUES means (1) all gross revenues received by an open video system operator or its affiliates, including all revenues received from subscribers and all carriage revenues received from unaffiliated video programming providers; and (2) all advertising revenues received by the operator or its affiliates in connection with the provision of video programming, where such revenues are included in the calculation of the cable franchise fee paid to the city by the franchised cable operator. The term GROSS REVENUES does not include revenues, such as subscriber or advertising revenues, collected by unaffiliated video programming providers.

(3) The obligation of the open video system operator to comply with requirements relating to information collection and recordkeeping, accounting procedures, reporting, periodic audits, and inspection of records in order to ensure the accuracy of the fees on the gross revenues that are required to be paid as specified above in division (B)(2).

(4) The obligation of the open video system operator to meet the city's requirements with respect to public, educational, and governmental access channel capacity, services, facilities, and equipment, as provided for in 47 CFR 76.1505. In this regard, the following standards and procedures are applicable:

(a) The open video system operator is subject to the same public, educational, and governmental access requirements that apply within the cable television franchise service area with which its system overlaps.

(b) The open video system operator must ensure that all subscribers receive all public, educational, and governmental access channels within the franchise service area in which the city's subscribers are located.

(c) The open video system operator may negotiate with the city to establish the operator's obligations with respect to public, educational, and governmental access channel capacity, services, facilities, and equipment. These negotiations may include the city's franchised cable operator if the city, the open video system operator, and the franchised cable operator so desire.

(d) If the open video system operator and the city are unable to reach an agreement regarding the operator's obligations with respect to public, educational, and governmental access channel capacity, services, facilities, and equipment within the city's jurisdiction, then the following obligations will be imposed:

1. The open video system operator must satisfy the same public, educational, and governmental access obligations as the city's franchised cable operator by providing the same amount of channel capacity for public, educational, and governmental access and by matching the city's franchised cable operator's annual financial contributions in support of public, educational, and governmental access services, facilities, and equipment that are actually used by the city. For in-kind contributions, such as cameras or production studios, the open video system operator may satisfy its statutory obligation by negotiating mutually agreeable terms with the city's franchised cable operator, so that public, educational, and governmental access services to the city are improved or increased. If such terms cannot be agreed upon, the open video system operator must pay to the city the monetary equivalent of the franchised cable operator's depreciated in-kind contribution, or, in the case of facilities, the annual amortization value. Any matching contributions provided by the open video system operator must be used to fund activities arising under Section 611 of the Communications Act.

2. The city will impose upon the open video system operator the same rules and procedures that it imposes upon the franchised cable operator with regard to the open video system operator's use of channel capacity designated for public, educational, and governmental access use when that capacity is not being used for such purposes.

(e) The city's franchised cable operator is required under federal law to permit the open video system operator to connect with its public, educational, and governmental access channel feeds. The open video system operator and the franchised cable operator may decide how to accomplish this connection, taking into consideration the physical and technical characteristics of the cable and the open video systems involved. If the franchised cable operator and the open video system operator cannot agree on how to accomplish the connection, the city has the right to decide. The city may require that the connection occur on city-owned property or on public rights-of-way.

(f) All costs of connection to the franchised cable operator's public, educational, and governmental access channel feed must be borne by the open video system operator. These costs will be counted towards the open video system operator's matching financial contributions set forth above in division (B)(4)(d)1.

(g) The city will not impose upon the open video system operator any public, educational, or governmental access obligations that are greater than those imposed upon the franchised cable operator.

(h) If there is no existing franchised cable operator, the provisions of 47 CFR 76.1505(d)(6) will be applicable in determining the obligations of the open video system operator.

(i) The open video system operator must adjust its system to comply with new public, educational, and access obligations imposed on the city's franchised cable operator following a renewal of the cable television franchise; provided, however, that the open video system operator will not be required to displace other programmers using its open video system to accommodate public, educational, and governmental access channels. The open video system operator must comply with such new public, educational, and governmental access obligations whenever additional capacity is or becomes available, whether it is due to increased channel capacity or to decreased demand for channel capacity.

(5) If the city and the open video system operator cannot agree as to the application of the FCC's rules regarding the open video system operator's obligations to provide public, educational, and governmental access under the provisions of division (B)(4) set forth above, then either party may file a complaint with the FCC in accordance with the dispute resolution procedures set forth in 47 CFR 76.1513. No agreement will be executed by the city until the dispute has been finally resolved.

(6) If the open video system operator intends to maintain an institutional network, as defined in Section 611(f) of the Communications Act, the city will require that educational and governmental access channels be designated on that institutional network to the same extent that those channels are designated on the institutional network of the city's franchised cable operator.

(7) The authority of an open video system provider to exercise editorial control over any public, educational, or governmental use of channel capacity will be restricted in accordance with the provisions of 47 CFR 76.1505(f).

(8) The obligation of the open video system operator to comply with all applicable federal and state statutes and regulations relating to customer service standards, including the Cable Television and Video Provider Customer Service and Information Act (Cal. Gov't Code §§ 53054 et seq.), and the Video Customer Service Act (Cal. Gov't Code §§ 53088 et seq.)

(9) If new physical plant is proposed to be constructed within the city, the obligation of the open video system operator to comply with the following rights-of-way use and management responsibilities that are also imposed by the city upon other telecommunications service providers in a nondiscriminatory and competitively neutral manner:

(a) Compliance with all applicable city building and zoning codes, including applications for excavation, encroachment, and construction permits and the payment of all required permit and inspection fees.

(b) The coordination of construction requirements.

(c) Compliance with established standards and procedures for constructing lines across private property.

(d) Compliance with all applicable insurance and indemnification requirements.

(e) The repair and resurfacing of construction-damaged streets.

(f) Compliance with all public safety requirements that are applicable to telecommunications service providers using public property or public rights-of-way.

(10) Acts or omissions constituting breaches or defaults of the agreement, and the applicable penalties, liquidated damages, and other remedies, including fines or the suspension, revocation, or termination of the agreement.

(11) Requirements relating to the sale, assignment, or transfer of the open video system.

(12) Requirements relating to the open video system operator's compliance with and implementation of state and federal laws, rules, and regulations pertaining to the operation of the open video system.

(13) Such additional requirements, conditions, terms, policies, and procedures as may be mutually agreed upon by the city and the open video system operator and that will, in the judgment of the City Council, best serve the public interest and protect the public health, welfare, and safety.

(`83 Code, § 5.48.230) (Ord. 99-04 § 2 (part), 1999)

IV. OTHER TELECOMMUNICATIONS SERVICES AND SYSTEMS

The term “cable system,” as defined in federal law and as set forth in § 5.48.400 below, 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.

(A) Multi-channel 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.

(B) Local multi-point distribution service (“LMDS”), another form of over-the-air wireless video service for which licenses are auctioned by the FCC, and which offers video programming, telephony, and data networking services.

(C) 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 USC 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.

(`83 Code, § 5.48.300) (Ord. 99-04 § 2 (part), 1999)

(A) Unless the customer protection and customer service obligations of a video provider, as that term is defined in § 5.48.400, are specified in a franchise, license, lease, or similar written agreement with the city, a video provider must comply with all applicable provisions of the following state statutes:

(1) The Cable Television and Video Provider Customer Service and Information Act (Cal. Gov't Code §§ 53054 et seq.)

(2) The Video Customer Service Act (Cal. Gov't Code §§ 53088 et seq.)

(B) All video providers that are operating in the city on the effective date of this chapter, or that intend to operate in the city after the effective date of this chapter, must register with the city; provided, however, that this registration requirement is not applicable to any video provider that has executed a franchise, license, lease or similar written agreement 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 Cal. Gov't 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 commitment to distribute annually to the city, and to its employees and customers, a notice describing the customer service standards specified above in divisions (B)(3)(a) through (f) above. This annual notice must include the report of the video provider on its performance in meeting its customer service standards, as required by Cal. Gov't 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 division (B)(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 Cal. Gov't Code § 53088.2(o).

(C) The City Council may establish by ordinance a schedule of monetary penalties for the material breach by a video provider of its obligations under Cal. Gov't Code § 53088.2(a) through (n). As used herein, the term MATERIAL BREACH means any substantial and repeated failure to comply with the consumer service standards set forth in Cal. Gov't Code § 53088.2. The provisions of that ordinance must be consistent with the provisions of Cal. Gov't Code § 53088.2. The schedule of monetary penalties may also impose a penalty, as authorized by Cal. Gov't Code § 53056(a), for the failure of a video provider to distribute the annual notice required by Cal. Gov't Code § 53055.1, which penalty may not exceed $500 for each year in which the notice is not distributed as required by state statute.

(`83 Code, § 5.48.310) (Ord. 99-04 § 2 (part), 1999)

Notwithstanding any other provision of this chapter, the following provisions shall apply to wireless telecommunication facilities:

(A) Public rights-of-way. The provisions of Chapter 12.52, “Wireless Telecommunications Facilities in the Public Rights-of-Way” of Title 12, “Streets, Sidewalks and Public Places,” governing small wireless telecommunications facilities, wireless telecommunications collocation facilities, eligible facilities, and major wireless facilities (including but not limited to macro-cell sites), as defined in Chapter 12.52 of this code, shall apply to such facilities which in whole or in part, itself or as part of another structure, rests upon, in or over the public right-of-way, including, but not limited to, any such facility owned, controlled, operated or managed by a telephone corporation.

(B) Other public property. All wireless telecommunications facilities and wireless telecommunications collocation facilities which in whole or in part, itself or as part of another structure, rests upon, in or over any public property outside of a public right-of-way, shall be regulated by Chapter 17.46, “Wireless Telecommunications and Facilities” of Title 17, “Zoning”, of the municipal code.

(C) Private property. The provisions of Chapter 17.46, “Wireless Telecommunications Facilities” of Title 17, “Zoning”, shall apply to all wireless telecommunications facilities and wireless telecommunications collocation facilities which in whole or in part, itself or as part of another structure, rests upon, in, or over private property, or any such facility owned, controlled, operated or managed by a telephone corporation, on private property.

(`83 Code, § 5.48.320) (Ord. 99-04 § 2 (part), 1999; Ord. 2011-04 § 4, 2011; Ord. 2021-09 § 4, 2021)

(A) The City Council finds and determines as follows:

(1) The Federal Telecommunications Act of 1996 preempts and declares invalid all state rules that restrict entry or limit competition in both local and long distance telephone service.

(2) The California Public Utilities Commission (“CPUC”) is primarily responsible for the implementation of local telephone competition, and it issues certificates of public convenience and necessity to new entrants that are qualified to provide competitive local telephone exchange services and related telecommunications service, whether using their own facilities or the facilities or services provided by other authorized telephone corporations.

(3) Cal. Public Utilities Code § 234(a) defines a TELEPHONE CORPORATION as “every corporation or person owning, controlling, operating, or managing any telephone line for compensation within this state.”

(4) Cal. Public Utilities Code § 616 provides that a telephone corporation “may condemn any property necessary for the construction and maintenance of its telephone line.”

(5) Cal. Public Utilities Code § 2902 authorizes municipal corporations to retain their powers of control to supervise and regulate the relationships between a public utility and the general public in matters affecting the health, convenience, and safety of the general public, including matters such as the use and repair of public streets by any public utility and the location of the poles, wires, mains, or conduits of any public utility on, under, or above any public streets.

(6) Cal. Public Utilities Code § 7901 authorizes telephone and telegraph corporations to construct telephone or telegraph lines along and upon any public road or highway, along or across any of the waters or lands within this state, and to erect poles, posts, piers, or abatements for supporting the insulators, wires, and other necessary fixtures of their lines, in such manner and at such points as not to incommode the public use of the road or highway or interrupt the navigation of the waters.

(7) Cal. Public Utilities Code § 7901.1 confirms the right of municipalities to exercise reasonable control as to the time, place, and manner in which roads, highways, and waterways are accessed, which control must be applied to all entities in an equivalent manner, and may involve the imposition of fees.

(8) Cal. Gov't Code § 50030 provides that any permit fee imposed by a city for the placement, installation, repair, or upgrading of telecommunications facilities, such as lines, poles, or antennas, by a telephone corporation that has obtained all required authorizations from the CPUC and the FCC to provide telecommunications services, must not exceed the reasonable costs of providing the service for which the fee is charged, and must not be levied for general revenue purposes.

(B) In recognition of and in compliance with the statutory authorizations and requirements set forth above in division (A) of this section, 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:

1. As required by Decision No. 95-12-057 of the CPUC, the applicant must establish that it has timely filed with the city 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.

2. 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.

3. 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 will 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.

(C) 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.

(D) The city reserves all rights that it now possesses or may later acquire with respect to the regulation of any cable or telecommunications service that is provided, or proposed to be provided, by a telephone corporation. These reserved rights may relate, without limitation, to the imposition of reasonable conditions in addition to or different from those set forth in this Article IV, the exaction of a fee or other form of consideration or compensation for use of public rights-of-way, and related matters; provided, however, that such regulatory rights and authority must be consistent with federal and state law that is applicable to cable or telecommunications services provided by telephone corporations.

(`83 Code, § 5.48.330) (Ord. 99-04 § 2 (part), 1999)

V. DEFINITIONS

(A) For the purposes of this chapter, the words, terms, phrases, and their derivations set forth in this chapter have the meanings set forth below. Words used in the present tense include the future tense, and words in the singular include the plural number.

CABLE SERVICE. The one-way transmission to subscribers of video programming, or other programming services, and subscriber interaction, if any, that is required for the selection or use of that video programming or other programming service. For the purposes of this definition, VIDEO PROGRAMMING means programming provided by, or generally considered comparable to programming provided by, a television broadcast station; and OTHER PROGRAMMING SERVICE means information that a cable system operator makes available to all subscribers generally.

CABLE SYSTEM or CABLE COMMUNICATIONS SYSTEM or CABLE TELEVISION SYSTEM. A facility, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide cable service that includes video programming and that is provided to multiple subscribers within a community. The term CABLE SYSTEM does not include:

(a) A facility that serves only to retransmit the television signals of one or more television broadcast stations;

(b) A facility that serves subscribers without using any public right-of-way;

(c) A facility of a common carrier that is subject, in whole or in part, to the provisions of Title II of the Telecommunications Act of 1996, except that such facility will be considered a cable system (other than for purposes specified in Section 621(c) of the 1984 Cable Act) to the extent such facility is used in the transmission of video programming directly to subscribers, unless the extent of such use is solely to provide interactive on-demand services;

(d) An open video system that complies with Section 653 of Title VI of the Telecommunications Act of 1996; or

(e) Any facilities of an electric utility that are used solely for operating its electric utility system.

CABLE SYSTEM OPERATOR. Any person or group of persons:

(a) Who provides cable service over a cable system and directly or through one or more affiliates owns a significant interest in that cable system; or

(b) Who otherwise controls or is responsible for, through any arrangement, the management and operation of that cable system.

CITY. The city of Monrovia as represented by its City Council or by any delegate acting within the scope of its delegated authority.

CFR . The Code of Federal Regulations. Thus, the citation of “47 CFR 80.1" refers to Title 47, Part 80, Section 1 of the Code of Federal Regulations.

COMMUNICATIONS ACT. The Communications Act of 1934 (47 USC 153 et seq.), as amended by the Cable Communications Policy Act of 1984, the Cable Television Consumer Protection and Competition Act of 1992, and the Telecommunications Act of 1996.

FCC or FEDERAL COMMUNICATIONS COMMISSION. The federal administrative agency, or any lawful successor, that is authorized to regulate telecommunications services and telecommunications service providers on a national level.

FRANCHISE. An initial authorization, or the renewal of an initial authorization, issued by the City Council, whether such authorization is designated as a franchise, permit, license, resolution, contract, certificate, agreement, or otherwise, that authorizes the construction or operation of a cable system.

FRANCHISE FEE. Any fee or assessment of any kind that is authorized by state or federal law to be imposed by the city on a grantee as compensation in the nature of rent for the grantee's use of the public rights-of-way. The term FRANCHISE FEE does not include:

(a) Any tax, fee, or assessment of general applicability (including any such tax, fee, or assessment imposed on both utilities and cable operators or their services);

(b) Capital costs that are required by the franchise to be incurred by grantee for public, educational, or governmental access facilities;

(c) Costs or charges that are incidental to the award or enforcement of the franchise, including payments for bonds, security funds, letters of credit, insurance, indemnification, penalties, or liquidated damages; or

(d) Any fee imposed under 17 USC.

FRANCHISE SERVICE AREA or SERVICE AREA. The entire geographic area of the city as it is now constituted, or may in the future be constituted, unless otherwise specified in the ordinance or resolution granting a franchise, or in a franchise agreement.

GRANTEE. Any person that is awarded a franchise in accordance with this title, and that person's lawful successor, transferee, or assignee.

GROSS ANNUAL CABLE SERVICE REVENUES. The annual gross revenues derived from the grantee's operations of its cable television system within the city, excluding uncollected bad debt, refundable deposits, rebates or credits, and further excluding any sales, excise, or other taxes or charges that are required to be collected for direct pass-through to the local, state or federal government. Revenues identified and collected from subscribers as franchise fees may not be excluded from a grantee's gross annual cable service revenues.

MULTI-CHANNEL VIDEO PROGRAMMING DISTRIBUTOR or VIDEO PROGRAMMING DISTRIBUTOR. A person such as, but not limited to, a cable system operator, a multi-channel multi-point distribution service, a direct broadcast satellite service, or a television receive-only satellite program distributor, who makes available multiple channels of video programming for purchase by subscribers or customers.

OPEN VIDEO SYSTEM. A facility consisting of a set of transmission paths and associated signal generation, reception, and control equipment that is designed to provide cable service, including video programming, and that is provided to multiple subscribers within the city, provided that the FCC has certified that such system complies with 47 CFR 1500 et seq., entitled “Open Video Systems.”

OPEN VIDEO SYSTEM OPERATOR. Any person or group of persons who provides cable service over an open video system and directly or through one or more affiliates owns a significant interest in that open video system, or otherwise controls or is responsible for the management and operation of that open video system.

PERSON. An individual, partnership, association, joint stock company, trust, corporation, or governmental entity.

PUBLIC, EDUCATIONAL OR GOVERNMENT ACCESS FACILITIES or PEG ACCESS FACILITIES. The total of the following:

(a) Channel capacity designated for noncommercial public, educational, or government use; and

(b) Facilities and equipment for the use of that channel capacity.

STREET or PUBLIC WAY. Each of the following that has been dedicated to the public and maintained under public authority or by others and is located within the city limits: streets, roadways, highways, avenues, lanes, alleys, sidewalks, easements, rights-of-way, and similar public property that the city from time to time authorizes to be included within the definition of a street.

SUBSCRIBER or CUSTOMER or CONSUMER. Any person who, for any purpose, subscribes to the services provided by a multi-channel video programming distributor and who pays the charges for those services.

TELECOMMUNICATIONS. The transmission, between or among points specified by the user, of information of the user's choosing, without change in the form or content of the information as sent and received.

TELECOMMUNICATIONS EQUIPMENT. Equipment, other than customer premises equipment, used by a telecommunications service provider to provide telecommunications service, including software that is integral to that equipment.

TELECOMMUNICATIONS SERVICE. The offering of telecommunications directly to the public for a fee, or to such classes of users as to be effectively available directly to the public, regardless of the equipment or facilities that are used.

TELECOMMUNICATIONS SERVICE PROVIDER. Any provider of telecommunications service.

USC . The United States Code. Thus, the citation of “47 USC 153" refers to Title 47, Section 153, of the United States Code.

VIDEO PROGRAMMING PROVIDER. Any person or group of persons who has the right under the federal copyright laws to select and to contract for the carriage of specific video programming on an open video system.

VIDEO PROVIDER. Any person, company, or service that provides one or more channels of video programming to a residence, including a home, condominium, apartment, or mobile home, where some fee is paid for that service, whether directly or as included in dues or rental charges, and whether or not public rights-of-way are used in the delivery of that video programming. A VIDEO PROVIDER includes, without limitation, providers of cable television service, master antenna television, satellite master antenna television, direct broadcast satellite, multipoint distribution services, and other providers of video programming, whatever their technology.

(B) Unless otherwise expressly stated, words, terms, and phrases not defined in this chapter will be given their meaning as used in 47 USC, as amended, and, if not defined in that Code, their meaning as used in 47 CFR.

(`83 Code, § 5.48.400) (Ord. 99-04 § 2 (part), 1999)

VI. VIOLATIONS; SEVERABILITY

(A) Any person who willfully violates any provision of this title is guilty of a misdemeanor and is punishable as provided for in Chapter 1.16 of this code.

(B) The misdemeanor penalty specified above in division (A) is not applicable to a violation of any provision of this chapter for which another sanction or penalty may be imposed under any franchise, license, lease, or similar written agreement between the city and a multi-channel video programming distributor or other telecommunications service provider.

(C) The city may initiate a civil action in any court of competent jurisdiction to enjoin any violation of this chapter.

(`83 Code, § 5.48.500) (Ord. 99-04 § 2 (part), 1999)

If any provision of this chapter is determined by any court of competent jurisdiction, or by any federal or state agency having jurisdiction over its subject matter, to be invalid and in conflict with any paramount federal or state law or regulation now or hereafter in effect, or is determined by that court or agency to require modification in order to conform to the requirements of that paramount law or regulation, then that provision will be deemed a separate, distinct, and independent part of this chapter, and such determination will not affect the validity and enforceability of any other provisions. If that paramount federal or state law or regulation is subsequently repealed or amended so that the provision of this chapter determined to be invalid or subject to modification is no longer in conflict with that law or regulation, then that provision will again become effective and will thereafter be binding on the city and any affected telecommunications service provider; provided, however, that the city must give the affected telecommunications service provider 30 days written notice of that change before requiring compliance with that provision, or such longer period of time as may he reasonably required for the telecommunications service provider to comply with that provision.

(`83 Code, § 5.48.510) (Ord. 99-04 § 2 (part), 1999)