Napa County Municipal Code Ch. 5.14 State Video Service Franchises

A. Purpose. This Chapter is intended to be applicable to video service providers who have been awarded a state video franchise under California Public Utilities Code Section 5800 et seq. (the Digital Infrastructure and Video Competition Act of 2006 ["DIVCA"]), to serve any location(s) within the unincorporated boundaries of the county. It is the purpose of this Chapter 5.14 to implement 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 5.14 are in addition to all other rights of the county, whether reserved by this Chapter 5.14 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 generally 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, other than a state franchise, 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. The county reserves the right to construct, operate, maintain or repair its own cable system or video service provider network.

C. Compliance with Chapter 5.14. Nothing contained in this Chapter 5.14 shall ever be construed so as to exempt a state franchise holder from compliance with all ordinances, rules or regulations of the county now in effect or which may be hereafter adopted which are consistent with this section or Public Utilities Code Section 5800 et seq.

(Ord. No. 1329, § 1, 9-29-2009)

For purposes of this Chapter 5.14, the following terms, phrases, words, and their derivations shall have the meaning given in this section. Unless otherwise expressly stated, words not defined in this Chapter 5.14 shall be given the meaning set forth in Chapter 5.12 as may be amended from time to time, unless the context indicates otherwise. Words not defined in this section or Chapter 5.12 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) the Communications Act of 1934, as amended, at 47 U.S.C. Section 521 et. seq., and if not defined therein, then (4) their common and ordinary meaning. If specific provisions of law referred to herein are renumbered, then the reference shall be read to refer to the renumbered provision.

"Access", "PEG access", "PEG use", or "PEG" means the availability of a cable or video service provider 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.

1. "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;

2. "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;

3. "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.

"Commission" means the California Public Utilities Commission.

"Director" or "director of public works" means the director of public works of the county or the designee of the director.

"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, subject to the provisions of Public Utilities Code Section 5860.

"State franchisee" means a cable operator or video service provider that has been issued a franchise by the commission to provide cable service or video service, as those terms are defined in Public Utilities Code Section 5830, within any portion of the unincorporated limits of the county.

"Video service provider" has the meaning set forth in DIVCA and, in addition refers collectively to any cable operator, video service provider or OVS operator as defined in DIVCA that has been issued a franchise by the commission to provide cable service or video service.

(Ord. No. 1329, § 1, 9-29-2009)

A. State franchise fees. Any state franchisee operating within the unincorporated areas of the county shall pay to the county a state franchise fee equal to five percent of gross revenues.

B. Payment of franchise fees. The state franchise fee required pursuant to this section shall each be paid quarterly, in a manner consistent with Public Utilities Code Section 5860. The state franchisee shall deliver to the county, by check or other means agreed to by the county, a payment for the state franchise fee not later than forty-five 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 as designated by the county.

C. Late Payments. In the event a state franchisee fails to make payments required by this section on or before the due dates specified in this section, the county 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.

D. Lease of county-owned network. In the event a state franchisee leases access to a network owned by the county, the county may set a franchise fee for access to the county-owned network separate and apart from the franchise fee charged to state franchisees pursuant to this section, which fee shall otherwise be payable in accordance with the procedures established by this section.

E. Audits. The county may audit the business records of state franchisees in a manner consistent with Public Utilities Code Section 5860(i).

(Ord. No. 1329, § 1, 9-29-2009)

A. Customer service standards. A state franchisee shall comply with all applicable state and federal customer service and consumer protection standards pertaining to the provision of video service, including any such standards hereafter adopted. In case of a conflict, the stricter standard shall apply.

B. Penalties for violations of standards. If the director determines there is a violation by a state franchisee of customer service standards set forth in subsection (A), the director shall enforce compliance with such standards as follows:

1. The director will provide the state franchisee with written notice of any material breaches of the applicable customer service standards, and will allow the state franchisee thirty days from the receipt of the notice to remedy the specified material breach.

2. Material breaches not remedied within the thirty-day time period will be subject to the following penalties, provided that no penalty shall be imposed for material breaches if the breach is outside the reasonable control of the state franchisee:

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

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

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

C. Payment of Penalties. Any penalty imposed on a state franchisee shall be paid to the county. As provided for in Public Utilities Code Section 5900(g), the county shall submit one-half of all penalties received to the Digital Divide Account established in Public Utilities Code Section 280.5.

(Ord. No. 1329, § 1, 9-29-2009)

A. Except as otherwise expressly provided in this chapter, the provisions of Sections 5.12.090 and 5.12.100 of this Code shall apply to all work performed by or on behalf of a state franchise holder on any county public rights-of-way, public property, or county easement as those terms are defined in Section 5.12.020.

B. Permits. Prior to commencing any work for which a permit is required by subsection (A), a state franchisee shall apply for and obtain any necessary permits and shall comply with all other applicable laws and regulations, including all applicable requirements of Division 13 of the Public Resources Code, Section 21000, et seq. (the California Environmental Quality Act).

1. The director shall either approve or deny a state franchisees application for any permit required under subsection (A) within sixty days of receiving a completed permit application.

2. If the director denies a state franchisee's application for a permit, the director shall furnish to the state franchisee a detailed explanation of the reason or reasons for the denial.

3. A state franchisee that has been denied a permit by final decision of the director may appeal the denial in accordance with the provisions of Chapter 2.88 of this Code.

C. Notification to residents regarding construction or maintenance. Prior to any construction, rebuild, or upgrade of a cable or video system, a state franchisee shall establish procedures to notify county residents in the impacted area of construction schedules and activities. Such notices must be provided in English and the predominant languages spoken by those persons who work and/or reside in the impacted area. The notices shall be provided to the director for review and approval no later than twenty days before commencement of construction, rebuild, or upgrade activities. The notices shall be provided by the state franchisee to impacted residents and occupants in the construction area not less than forty-eight hours prior to the planned construction and additionally on the day of construction. The notice may be in the form of door hangers that indicate, at a minimum, the dates and times of construction and the name and telephone number of an authorized contact.

D. The state franchisee shall provide notice at least twenty days prior to entering private property or public ways or public easements adjacent to or on such private property, public ways, or public easements, and provide a second notice three days prior to entering such property.

E. Should there be aboveground or underground installations (excluding aerial cable lines utilizing existing poles and cable paths) which will affect the private property, such notice shall be in writing and shall contain specific information regarding such installations which will affect the private property.

F. To the extent practicable, aboveground or underground equipment placed on private property shall be placed at the location requested by the property owner. A state franchisee holder shall provide the private property owner with at least twenty days advance written notice of its plans to install such equipment, and shall obtain express written consent, in the form of a recorded easement agreement, from the private property owner before installing its appurtenances. The state franchisee shall notify the property owner, in writing, that the property owner is not obligated to agree to the placement on their property or to enter into an easement agreement with the state franchise holder. Should the property owner notify the state franchisee of objection to placement of any such aboveground or underground installations (excluding aerial cable lines utilizing existing poles and existing cable paths), the state franchisee shall confer with the county public works department regarding appropriate location and placement of such appurtenances.

G. In addition to any other notice of proposed entry required under this section, a state franchisee's personnel shall make a reasonable attempt to give personal notice to residents immediately preceding entry on private property or public ways or public easements adjacent to or on such private property.

H. Identification required. A state franchisee, its employees, agents, contractors, and subcontractors shall be properly identified as agents of the state franchisee prior to and during entry on private and public property. Identification shall include the name and telephone number of the state franchisee on all trucks and vehicles used by installation personnel.

I. Restoration of private and public property. After the performance of work, the state franchisee shall restore such private and public property to a condition equal to or better than its condition prior to construction. Any disturbance of landscaping, fencing, or other improvements upon private or public property shall, at the sole expense of the state franchisee, be promptly repaired or restored (including replacement of shrubbery and fencing) to the reasonable satisfaction of the property owner, in addition to the furnishing of camouflage plants on public property.

J. Reports to the director. Each state franchisee, within sixty days after the expiration of each calendar year, shall file a report with the director, which shall contain a street and highway map or maps of any convenient scale on which shall be plotted the location of the entire transmission and distribution system or systems covered by the report as of the last day of the calendar year, with the system or systems located in county highways indicated by distinctive coloration or symbols.

(Ord. No. 1329, § 1, 9-29-2009)

A. Each state franchisee shall comply with the emergency alert system requirements of the Federal Communications Commission in order that emergency messages may be distributed over the state franchisee's network.

B. To the extent consistent with Public Utilities Code Section 5880, each state franchisee shall incorporate into its network the capability to permit the county to override the audio portion of all channels simultaneously in times of emergency. In addition, each state franchisee may be required to designate a channel, which may be a PEG channel, to be used for audio and video emergency broadcasts. The state franchisee shall cooperate with the county in the use and operation of said emergency alert override system.

(Ord. No. 1329, § 1, 9-29-2009)

A. PEG channel capacity.

1. A state franchisee that has been authorized by the commission to provide video service in the county shall designate and activate three PEG channels within three months from the date that the county requests that the state franchisee designate and activate the PEG channels. However, this three-month period shall be tolled for such a period, and only for such a period, during which the state franchisee's ability to designate or provide such PEG capacity is technically infeasible, as provided in Public Utilities Code Section 5870(a).

2. A state franchisee shall provide an additional PEG channel when the standards set forth in Public Utilities Code Section 5870(d) are satisfied by the county or any entity designated by the county to manage one or more of the PEG channels.

B. PEG support fee.

1. Any state franchise holder operating within the county shall pay to the county a PEG support fee equal to one percent of gross revenues.

2. The PEG support fee shall be used for PEG purposes that are consistent with state and federal law.

3. A state franchisee shall remit the PEG support fee to the county quarterly, within forty-five days after the end of each calendar quarter. Each payment made shall be accompanied by a report, detailing how the PEG support fee was calculated.

4. If a state franchisee fails to pay the PEG support fee when due, or underpays the proper amount due, the state franchisee shall pay a late payment charge at the rate per year equal to the highest prime lending rate during the period of delinquency, plus one percent.

C. PEG carriage and interconnection.

1. State franchisees 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 franchisee shall be of similar quality and functionality to that offered by commercial channels (unless the PEG signal is provided to the state franchisee at a lower quality or with less functionality), shall be capable of carrying a National Television System Committee (NTSC) quality television signal, and shall be carried on the state franchisee'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. A state franchisee and an incumbent cable operator shall negotiate in good faith to interconnect their networks for the purpose of providing PEG programming. If a state franchisee and an incumbent cable operator cannot reach a mutually acceptable interconnection agreement for PEG carriage, the county shall require the incumbent cable operator to allow the state franchisee to interconnect its network with the incumbent cable operator's network at a technically feasible point on the state franchisee's network as identified by the state franchisee. If no technically feasible point of interconnection is available, the state franchisee shall make interconnection available to the PEG channel originator and shall provide the facilities necessary for the interconnection. The cost of any interconnection shall be borne by the state franchisee requesting the interconnection unless otherwise agreed to by the parties.

(Ord. No. 1329, § 1, 9-29-2009)

Each state franchisee or applicant for a state franchise shall file with the county a copy of all applications or notices that the state franchisee holder or applicant is required to file with the California Public Utilities Commission. All notices or other documentation that a state franchisee holder is required to provide to the county under this section or the Public Utilities Code shall be provided to the director.

(Ord. No. 1329, § 1, 9-29-2009)