Monterey County Municipal Code Ch. 7.13 State Video Service Franchises

A. Purpose. This Chapter is intended to be applicable to State franchise holders who have been awarded a State video franchise under Division 2.5 (commencing with Section 5800) of the Public Utilities Code (the "Digital Infrastructure and Video Competition Act of 2006" or "DIVCA"), to serve any location(s) within the unincorporated areas of the County. It is the purpose of this Chapter to implement within the unincorporated areas of the County the provisions of DIVCA and the rules of the California Public Utilities Commission promulgated thereunder that are applicable to a "local franchising entity" or a "local entity" as defined in DIVCA.

B. Rights Reserved.

1. The rights reserved to the County under this Chapter are in addition to all other rights of the County, whether reserved by this Chapter or authorized by law, and no action, proceeding or exercise of a right shall affect any other rights which may be held by the County.

2. Except as otherwise provided by DIVCA, a State franchise shall not include, or be a substitute for:

a. Compliance with applicable requirements for the privilege of transacting and carrying on a business within the County, including, but not limited to, compliance with the conditions that the County may establish before facilities may be constructed for, or providing, non-video services;

b. Any permit or authorization required in connection with operations on or in public rights-of-way or public property, including, but not limited to, encroachment permits, street work permits, pole attachment permits and street cut permits; and

c. Any permit, agreement or authorization for occupying any other property of the County or any private person to which access is not specifically granted by the State franchise.

3. No permit issued by the County to a State franchise holder is itself a franchise, nor shall any permit create a vested right that would prohibit the County from revoking or amending the permit.

C. Compliance with Monterey County Code and Ordinances. Nothing contained in this Chapter shall be construed to exempt a State franchise holder from compliance with all codes, ordinances, rules or regulations of the County now in affect or which may be hereafter adopted which are consistent with this Chapter or with DIVCA.

(Ord. No. 5128, § 1, 3-17-2009)

Definitions Generally—Interpretation of Language. For purposes of this Chapter, the following terms, phrases, words, and their derivations shall have the meaning set forth herein. Unless otherwise expressly stated, words not defined in this Section shall be given the meaning set forth in Section 7.12.030 of the Monterey County Code as may be amended from time to time, unless the context indicates otherwise. Words not defined in this Section or Section 7.12.030 of the Monterey County Code shall have the same meaning as established in: (1) DIVCA; and if not defined therein, (2) California Public Utilities Commission rules implementing DIVCA; and if not defined therein, (3) Title VI of Title 47 of the Communications Act of 1934, as amended (47 U.S.C. §521, et. seq.); and if not defined therein, (4) their common and ordinary meaning. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number, words in the singular number include the plural number, and "including" and "include" are not limiting. The words "shall" and "will" are always mandatory, but the use of those terms grants no private rights to any person with respect to the County. References to governmental entities refer to those entities or their successors in authority. If specific provisions of law referred to herein are renumbered, then the reference shall be read to refer to the renumbered provision. References to laws, ordinances or regulations shall be interpreted broadly to cover government actions, however denominated, and include laws, codes, ordinances and regulations now in force or hereinafter enacted or amended.

"Access," "PEG access," "PEG use," or "PEG" means the availability of a cable or State franchise holder's system for public, educational, or governmental use by various agencies, institutions, organizations, groups, and individuals, including the County and its designated access providers, to acquire, create, and distribute programming not under a State franchise holder's editorial control.

A. "Public access" or "public use" means access where organizations, groups, or individual members of the general public, on a non-discriminatory basis, are the primary or designated programmers or users having editorial control over their communications;

B. "Education access" or "education use" means access where accredited educational institutions are the primary or designated programmers or users having editorial control over their communications;

C. "Government access" or "government use" means access where government institutions or their designees are the primary or designated programmers or users having editorial control over their communications.

"Gross revenues" means all revenues actually received by the holder of a State franchise that are derived from the operation of the holder's network to provide cable service or video service within the unincorporated areas of the County.

"State franchise holder" means a cable operator or video service provider that has been issued a franchise by the California Public Utilities Commission to provide cable service or video service, as those terms are defined in DIVCA, within any portion of the unincorporated areas of the County.

(Ord. No. 5128, § 1, 3-17-2009)

A. State Franchise Fees. Any State franchise holder operating within the unincorporated areas of the County shall pay to the County a State franchise fee equal to five percent of gross revenues that may be subject to a franchise fee under DIVCA.

B. Payment of Franchise Fees. The State franchise fee required pursuant to this Section shall each be paid quarterly in a manner consistent with California Public Utilities Code section 5860. The State franchise holder shall deliver to the County, by check or other means agreed to by the County, a separate payment for the State franchise fee not later than 45 days after the end of each calendar quarter. Each payment made shall be accompanied by a report, detailing how the payment was calculated, and shall include such additional information on the appropriate form as designated by the County.

C. Examination of Business Records. The County may examine the business records of the holder of a State franchise in a manner consistent with California Public Utilities Code section 5860(i).

D. Late Payments. In the event a State franchise holder fails to make payments required by this section on or before the due dates specified in this section, the County may impose a late charge at the rate per year equal to the highest prime lending rate during the period of delinquency, plus one percent.

(Ord. No. 5128, § 1, 3-17-2009)

A. Customer Service Standards. A State franchise holder shall comply with Sections 53055, 53055.2, and 53088.2 of the California Government Code; the FCC customer service and notice standards set forth in Sections 76.309, 76.1602, 76.1603, and 76.1619 of Title 47 of the Code of Federal Regulations; Section 637.5 of the California Penal Code; the privacy standards of Section 551 of Title 47 of the United States Code; and all other applicable State and Federal customer service and consumer protection standards pertaining to the provisions of video service, include any such standards hereafter adopted. In case of a conflict, the stricter standard shall apply. All customer service and consumer protection standards under this paragraph shall be interpreted and applied to accommodate newer or different technologies while meeting or exceeding the goals of the standards.

B. Penalties for Violations of Standards. The County may enforce the compliance of State franchise holders with respect to the State and Federal customer service and consumer protection standards set forth hereinabove. The County will provide a State franchise holder with a written notice of all material breaches of applicable customer service or consumer protection standards, and will allow the State franchise holder 30 days from the 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 penalties to be imposed by the County:

1. For the first occurrence of a material breach, a fine of $500.00 may be imposed for each day the violation remains in effect, not to exceed $1,500.00 for each violation.

2. For a second material breach of the same nature within 12 months, a fine of $1,000.00 may be imposed for each day the violation remains in effect, not to exceed $3,000.00 for each violation.

3. For a third material breach of the same nature within 12 months, a fine of $2,500.00 may be imposed for each day the violation remains in effect, not to exceed $7,500.00 for each violation.

C. All penalties imposed by the County shall be imposed in a manner consistent with California Public Utilities Code section 5900.

(Ord. No. 5128, § 1, 3-17-2009)

A. Except as expressly provided in this Chapter, Title 14 of this Code, or as otherwise provided by DIVCA, all provisions of the Monterey County Code Sections 7.12.080 ("Construction requirements") and 7.12.100 ("Indemnification and insurance requirements") shall apply to all work performed by or on behalf of a State franchise holder on any County public right-of-way, public property, or easement.

B. Permits. Prior to commencing any work for which a permit is required, a State franchise holder shall apply for and obtain a permit in accordance with the provisions of said paragraph and shall comply with all other applicable laws and regulations including, but not limited to, all applicable requirements of Division 13 of the California Public Resources Code Section 21000, et seq. (the California Environmental Quality Act or "CEQA") and the CEQA Guidelines (14 California Code of Regulations 15000, et seq.).

C. The Public Works Director or designee shall either approve or deny a State franchise holder's application for any permit required hereunder within 30 days after receiving a completed permit application from the State franchise holder.

D. If the Public Works Director or designee denies a State franchise holder's application for a permit, the Public Works Director or designee shall, at the time of notifying the applicant of denial, furnish to the applicant a detailed explanation of the reason or reasons for the denial.

E. A State franchise holder that has been denied a permit by final decision of the Public Works Director or designee may appeal the denial to the Board of Supervisors. Upon receiving a notice of appeal, the Board of Supervisors shall take one of the following actions:

1. Affirm the action of the Public Works Director or designee without a hearing;

2. Refer the matter back to the Public Works Director or designee for further review with or without instructions; or

3. Set the matter for a de novo hearing before the Board of Supervisors.

F. In rendering its decision on the appeal, the Board of Supervisors shall not receive or consider any testimony or evidence of any kind other than the full and complete record of the matter received from the Public Works Director or designee unless the Board of Supervisors is itself conducting a public hearing on the matter.

(Ord. No. 5128, § 1, 3-17-2009)

Each State franchise holder shall comply with the emergency alert system requirements of the Federal Communications Commission in order that emergency messages may be distributed over the State franchise holder's network. Any provision in a County franchise that was in effect on January 1 to December 30, 2006 which authorized the County to provide emergency notifications shall remain in effect, and shall apply to all holders of a State-issued franchise in the same County area for the duration of the County franchise, until the term of the County franchise would have expired were the franchise not terminated pursuant to California Public Utilities Code section 5840, or until January 1, 2009, whichever is later.

(Ord. No. 5128, § 1, 3-17-2009)

A. Initial PEG Channel Capacity. A State franchise holder operating within the unincorporated areas of Monterey County shall designate a sufficient amount of capacity on its network to allow the provision of at least three PEG channels to satisfy the requirement of State law, within the time limits specified by State law.

B. Additional PEG Channel Capacity. A State franchise holder operating within any unincorporated area of the County shall provide an additional PEG channel when the standards set forth in Section 5870(d) of the California Public Utilities Code are satisfied by the County or any entity designated by the County to manage one or more of the PEG channels.

C. PEG Support Fee.

1. Amount of the PEG Support Fee. Any State franchise holder operating within the unincorporated area of the County shall pay to County or, if directed by the County, to the County's designated PEG provider(s), a PEG support fee equal to 2.59 percent of gross revenues, which is an amount equivalent to the PEG funding remitted by the incumbent cable operators to the County during the period of January 1 to December 30, 2006.

2. The support fee shall be used for PEG purposes in a manner that is consistent with the terms of the franchise agreements that were in effect on January 1 through December 30, 2006.

D. Payment of PEG Support Fee.

1. A State franchise holder shall remit the PEG support fee quarterly, within 45 days after the end of each calendar quarter. Each payment made shall be accompanied by a summary, detailing how the PEG support fee was calculated.

2. If a State franchise holder fails to pay the PEG support fee when due, or underpays the proper amount due, the State franchise holder shall pay interest at the rate per year equal to the highest prime lending rate during the period of delinquency, plus one percent, or the maximum rate specified by State law.

E. PEG Carriage and Interconnection.

1. As set forth in Sections 5870(b) and 5870(g)(3) of the California Public Utilities Code, State franchise holders shall ensure that all PEG channels are receivable by all subscribers, whether they receive digital or analog service, or a combination thereof, without the need for any equipment other than that needed to receive the lowest cost tier of service. PEG access capacity provided by a State franchise holder shall be of similar quality and functionality to that offered by commercial channels (unless the PEG signal is provided to the State franchise holder at a lower quality or with less functionality), shall be capable of carrying a National Television System Committee (NTSC) television signal, and shall be carried on the State franchise holder's lowest cost tier of service. To the extent feasible, the PEG channels shall not be separated numerically from other channels carried on the lowest cost tier of service and the channel numbers for the PEG channels shall be the same channel numbers used by any incumbent cable operator, unless prohibited by Federal law. After the initial designation of the PEG channel numbers, the channel numbers shall not be changed without the agreement of the County unless Federal law requires the change.

2. If a State franchise holder and an incumbent cable operator cannot reach a mutually acceptable interconnection agreement for PEG carriage, the County may require the incumbent cable operator to allow the State franchise holder to interconnect its network with the incumbent cable operator's network at a technically feasible point on the State franchise holder's network as identified by the State franchise holder. If no technically feasible point of interconnection is available, the State franchise holder shall make interconnection available to each PEG channel originator programming a channel in the County and shall provide the facilities necessary for the interconnection. The cost of any interconnection shall be borne by the State franchise holder requesting the interconnection unless otherwise agreed to by the parties.

(Ord. No. 5128, § 1, 3-17-2009)

A. Each State franchise holder or applicant for a State franchise shall file with the County a copy of all applications or notices that the State franchise holder or applicant is required to file with the California Public Utilities Commission.

B. Unless otherwise specified in this Chapter, all notices or other documentation that a State franchise holder is required to provide to the County pursuant to this Chapter or DIVCA shall be provided to both the County Administrative Officer and the County Director of Information Technology, or their successors or designees.

(Ord. No. 5128, § 1, 3-17-2009)