Mountain View Municipal Code Ch. 37 Video Services Code

Footnotes:

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Editor's note— Prior ordinance history: Ord. Nos. 12.80, 6.83, 12.88, 4.96 and 8.96.

a. Short title. This chapter shall be known and may be cited as the "video services code."

b. Purpose. The purpose of this chapter is to implement the provisions of the Digital Infrastructure and Video Competition Act, codified in California Public Utilities Code Section 5800 et seq., which the city is required to administer and enforce.

(Ord. No. 4.08, 5/13/08.)

For purposes of this chapter, the following terms, phrases, words and their derivations shall have the meaning given in this chapter. Unless otherwise expressly stated, words not defined in this chapter shall be given the meaning set forth in the Digital Infrastructure and Video Competition Act of 2006, Division 2.5 of the California Public Utilities Code, Section 5800 et seq. ("DIVCA"). When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number, words in the singular number include the plural number, and "including" and "include" are not limiting. The word "shall" is always mandatory.

a. Access channel. "Access channel" means any channel on a network set aside by a state franchise holder for public, educational, or governmental use.

b. Applicant. "Applicant" means any person submitting any application required under Division 2.5 of the California Public Utilities Code.

c. Applicable law. "Applicable law" means all lawfully enacted and applicable federal, state and city laws, ordinances, codes, rules, regulations and orders as the same may be amended or adopted from time to time.

d. Cable service. "Cable service" means: (i) the one-way transmission to subscribers of video programming or other programming services; and (ii) subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service.

e. City. "City" means the City of Mountain View, California. Any act that may be taken by the city may be taken by the city council or any agency, department, agent or other entity now or hereafter authorized to act on the city's behalf.

f. City council. "City council" means the governing body of the City of Mountain View, California.

g. Construction, operation, or repair. "Construction," "operation" or "repair" and similar formulations of those terms mean the named actions interpreted broadly, encompassing, among other things, installation, extension, maintenance, replacement of components, relocation, undergrounding, grading, site preparation, adjusting, testing, make-ready, excavation and tree trimming. The term "operation" does not encompass or regulate the provision of services, but refers to activities affecting rights-of-way and other property subject to the jurisdiction of the city.

h. Director of communications. "Director of communications" means the city manager of the city. Any act that may be taken by the director of communications may be taken by any agency, department, agent or other entity now or hereafter authorized to act on behalf of the city manager.

i. DIVCA. "DIVCA" means the Digital Infrastructure and Video Competition Act of 2006, Division 2.5 of the California Public Utilities Code, Section 5800 et seq., as may be amended from time to time.

j. Gross revenues. "Gross revenues" means all revenues (whether in the form of cash or other consideration) of a state franchise holder or its affiliates any way derived from its operations within the city.

k. Incumbent cable operator. "Incumbent cable operator" shall have the same meaning as in DIVCA.

l. Network. "Network" shall have the same meaning as in DIVCA.

m. Person. "Person" means an individual, partnership, association, joint stock company, organization, corporation, or any lawful successor thereto or transferee thereof, but such term does not include the city.

n. Public rights-of-way. "Public rights-of-way" shall have the same meaning as in DIVCA.

o. State franchise. "State franchise" means a franchise issued 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 city.

p. State franchise holder. "State franchise holder" means a person who holds a state franchise.

q. Subscriber. "Subscriber" means the city or any person who legally receives any cable service video service from a state franchise holder operator delivered over that state franchise holder's network.

r. User. "User" means a person or the city utilizing a channel, capacity or equipment and facilities for purposes of producing or transmitting material, as contrasted with the receipt thereof in the capacity of a subscriber.

s. "Video service" shall have the same meaning as in DIVCA.

(Ord. No. 4.08, 5/13/08.)

a. Any state franchise holder operating within the city shall pay to the city a state franchise fee equal to five percent (5%) of the gross revenues of it or any affiliate that are subject to a franchise fee under California Public Utilities Code Section 5860.

b. The director of communications shall promptly send any state franchise holder that notifies the city that it intends to provide video service in the city: (i) the franchise fee section of the franchises held by incumbent cable operators in the city; (ii) a sworn statement that, subject to audit, the fee required is being paid to the city; and (iii) a notice designating the person to whom the state franchise fee payments should be made.

(Ord. No. 4.08, 5/13/08.)

Any state franchise holder operating within the city shall pay to the city a PEG fee equal to one and thirty-seven one-hundredths percent (1.37%) of the state franchise holder's gross revenues under California Public Utilities Code Section 5870.

(Ord. No. 4.08, 5/13/08.)

The state franchise fee required pursuant to Sec. 37.3, and the PEG fee required pursuant to Sec. 37.4, shall each be paid to the city quarterly, in a manner consistent with California Public Utilities Code Section 5860. The state franchise holder shall deliver to the city, by check or other means specified by the city, a payment for the state franchise fee and a separate payment for the PEG fee not later than forty-five (45) days after the end of each calendar quarter. Each payment made shall be accompanied by a report, detailing how the payment was calculated, containing such information as the director of communications may require consistent with DIVCA. Unless the director of communications provides otherwise, the summary statement shall identify:

(i) Revenues received from subscribers, by category, with service revenues broken out by service levels;

(ii) Any charges to subscribers for which revenues were received, but on which a franchise fee was not paid;

(iii) Where the fee is paid on an allocated portion of revenues received, the total revenues received; the allocation factor; and how the allocation factor was calculated.

(Ord. No. 4.08, 5/13/08.)

The city may examine the business records of the holder of a state franchise in a manner consistent with California Public Utilities Code Section 5860(i).

(Ord. No. 4.08, 5/13/08.)

In the event a state franchise holder fails to make payments required by this chapter on or before the due dates specified in this chapter, the city shall impose a late charge at the rate per year equal to the highest prime lending rate during the period of delinquency, plus one percent (1%).

(Ord. No. 4.08, 5/13/08.)

Each state franchise holder shall comply with all applicable customer service and consumer protection standards, including, to the extent consistent with California Public Utilities Code Section 5900, all existing and subsequently enacted customer service and consumer protection standards established by state and federal law and regulation.

(Ord. No. 4.08, 5/13/08.)

a. The city shall enforce the provisions of Sec. 37.8.

b. For material breaches, as defined in California Public Utilities Code Section 5900, by a state franchise holder of applicable customer service and consumer protection standards, the city may impose the following penalties:

1. For the first occurrence of a material breach, a fine of five hundred dollars ($500) may be imposed for each day the violation remains in effect, not to exceed one thousand five hundred dollars ($1,500) for each violation.

2. For a second material breach of the same nature within twelve (12) months, a fine of one thousand dollars ($1,000) may be imposed for each day the violation remains in effect, not to exceed three thousand dollars ($3,000) for each violation.

3. For a third material breach of the same nature within twelve (12) months, a fine of two thousand five hundred dollars ($2,500) may be imposed for each day the violation remains in effect, not to exceed seven thousand five hundred dollars ($7,500) for each violation.

c. Any penalties imposed by the city shall be imposed in a manner consistent with California Public Utilities Code Section 5900.

d. The director of communications is authorized to provide any notices required in California Public Utilities Code Section 5900. The director of communications shall coordinate with the Division of Ratepayer Advocate to protect consumers in the city.

(Ord. No. 4.08, 5/13/08.)

a. Prior to commencing any work for which a permit is required by Chapter 27 of this code, a state franchise holder shall apply for and obtain a permit in accordance with the provisions of Chapter 27. A permit application is complete when the state franchise holder has complied with all applicable laws and regulations, including, but not limited to, all city administrative rules and regulations, and all applicable requirements of Division 13 of the California Public Resources Code, Section 21000, et seq. (the California Environmental Quality Act).

b. The director of public works shall either approve or deny a state franchise holder's application for any permit required under Division 1 of this title within sixty (60) days of receiving a complete permit application from the state franchise holder.

c. If the director of public works denies a state franchise holder's application for a permit, the director of public works 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.

d. A state franchise holder that has been denied a permit by final decision of the director of public works may appeal the denial to the city council. Upon receiving a notice of appeal, the city council shall take one (1) of the following actions:

1. Affirm the action of the director of public works without any further hearing; or

2. Refer the matter back to the director of public works for further review with or without instructions; or

3. Set the matter for a public hearing before the city council.

e. In rendering its decision on the appeal, the city council shall not hear or consider any argument or evidence of any kind other than the record of the matter received from the director of public works unless the city council is itself conducting a public hearing on the matter.

f. The issuance of a permit is not a franchise, and does not grant any vested rights in any location in the public rights-of-way, or in any particular manner of placement within the rights-of-way. Without limitation, a permit to place cabinets and similar appurtenances aboveground may be revoked and the permittee required to place facilities underground, upon reasonable notice to the permittee.

(Ord. No. 4.08, 5/13/08.)

Each state franchise holder, and each incumbent cable operator operating under a city franchise issued pursuant to Division 6 of this title, shall negotiate in good faith to interconnect their networks for the purpose of providing PEG programming. Interconnection may be accomplished by any means authorized under Public Utilities Code Section 5870(h). Each state franchise holder and incumbent cable operator shall provide interconnection of PEG channels on reasonable terms and conditions and may not withhold the interconnection. If a state 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 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 for interconnection is available, each state franchise holder will make an interconnection available to each channel originator providing PEG programming to an incumbent cable operator and will provide the facilities necessary for the interconnection. The cost of any interconnection will be borne by the state franchise holder requesting the interconnection unless otherwise agreed to by the state franchise holder and the incumbent cable operator.

(Ord. No. 4.08, 5/13/08.)

a. Each state franchise holder or applicant for a state franchise shall file with the city a copy of all applications or notices that the state franchise holder or applicant is required to file with the 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 city under this Division 6 or the California Public Utilities Code shall be provided to the director of communications.

(Ord. No. 4.08, 5/13/08.)

The city council hereby reauthorizes and readopts the fee on state-franchised video service providers to support public, educational, and governmental (PEG) channel facilities codified in Chapter 37 of the Mountain View City Code, the rate and details of which shall remain unchanged and in continuous full effect as to all state-franchised video service providers.

To the extent reauthorization is required by law upon the expiration of any and all state video franchises, Ordinance No. 4.08, and with it Section 37.13, is hereby reauthorized as to that affected state video franchisee. Any and all reauthorizations under this section shall be effective for so long as such reauthorization is required by law.

(Ord. No. 2.17, § 1, 3/28/17.)