Nevada City Municipal Code Ch. 5.28 Cable Systems and State Video Service Franchises

Footnotes:

--- (2) ---

Editor's note— Ord. No. 2017-02, § I, adopted January 11, 2017, repealed and replaced ch. 5.28, §§ 5.28.010—5.28.040, in its entirety. Former ch. 5.28 pertained to "Cable Systems and Open Video Systems," and was derived from Ord. No. 2004-07 Exh. A §§ 1—4, adopted 2004.

For the purposes of this chapter, the following terms, phrases, words, and abbreviations shall have the meanings given herein. When not inconsistent with the context, words used in the present tense include the future tense; words in the plural number include the singular number; and words in the singular number include the plural number; and the masculine gender includes the feminine gender. The words "shall" and "will" are mandatory, and "may" is permissive. Words not defined in this chapter shall have the same meaning as in Title 47 of the United States Code (Sections 521 et seq.), and, if not defined therein, the California Public Utilities Code (CPUC) Sections 5800-5970, and if not defined therein, 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 mandatory, but use of those terms grants no private rights to any person with respect to the County or City. References to governmental entities or officials, whether persons or entities, refer to those entities or their successors in authority. If specific provisions of law referred to in this chapter 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 nominated, and include laws, ordinances and regulations now in force or hereinafter enacted or amended.

"Access," "PEG access," or "PEG use" means the availability of a cable system or open video system for public, education or government use (including institutional network use) by various agencies, institutions, organizations, groups, and individuals, including city of Nevada City and its designated access providers, to acquire, create, and distribute programming not under a franchisee's editorial control, including, but not limited to:

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.

"Affiliate" means a person that (directly or indirectly) owns or controls, is owned or controlled by, or is under common ownership or control with, another person.

"Basic service" means any service tier regularly provided to all subscribers which includes the retransmission of local television broadcast signals.

"Cable Act" means the Cable Communications Policy Act of 1984, 47 U.S.C. Sections 521 et seq., as amended by the Cable Television Consumer Protection and Competition Act of 1992, as further amended by the Telecommunications Act of 1996, as further amended from time to time.

"Cable communications system" refers to cable system.

"Cable service" means:

1. The one (1) way transmission to subscribers of (a) video programming, or (b) other programming service; and

2. Subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service.

"Cable system" is defined as set forth in Section 522(7) of Title 47 of the United States Code.

"Channel" means a portion of the electromagnetic frequency spectrum which is used in a cable system and which is capable of delivering a television signal whether in an analog or digital format. The definition does not restrict the use of any channel to the transmission of analog television signals or one (1) way transmission.

"City" means the city of Nevada City and all departments, divisions, and agencies established by state law or by the city of Nevada City Municipal Code.

"City manager" means the city of Nevada City executive officer or his/her designee.

"Construction, operation or repair" and similar formulations of that term means the named actions interpreted broadly, encompassing, among other things, installation, extension, maintenance, replacement of components, relocation, undergrounding, grading, site preparation, adjusting, testing, make-ready, and excavation.

"County" means the County of Nevada and all departments, divisions, and agencies established by state law or by the Nevada County General Code.

"CPUC" refers to the California Public Utilities Code.

"Downstream channel" means a channel designed and activated to carry a transmission from the headend to other points on a cable communications system, including interconnections.

"FCC" means the Federal Communications Commission.

"Franchise" means an initial authorization, or renewal of an authorization, issued by a franchising entity, regardless of whether the authorization is designated as a franchise, permit, license, resolution, contract, certificate, agreement, or otherwise, that authorizes the construction and operation of any network in the right-of-way capable of providing video service to subscribers, as defined in CPUC 5830(f).

"Franchise area" means the area of the city of Nevada City that a franchisee is authorized to serve by the terms of its franchise or by operation of law.

"Franchisee" means a person holding a cable communications system franchise.

"Franchise Fee" means the fee adopted pursuant to CPUC Section 5840 paid in consideration of the grant and exercise of a franchise to construct, install, operate, or provide cable system services.

"Gross revenues" means all revenue actually received by the holder of a state franchise as defined in CPUC Section 5860(d).

"License" means the legal authorization, terminable at will, to use a particular, discrete, and limited portion of the public rights-of-way to construct, operate, or repair a cable system.

"Nevada County Administrator" means the Nevada County Executive Officer or his/her designee.

"Operator," when used with reference to a system, means a person:

1. Who directly or through one (1) or more affiliates provides service over a cable communications system and directly or through one (1) or more affiliates owns a significant interest in such facility; or

2. Who otherwise controls or is responsible for, through any arrangement, the management and operation of such a facility.

"OVS" means an open video system previously provided for pursuant to Section 5.28.030.

"Person" means and includes any individual, corporation, partnership, association, joint stock company, trust, or any other legal entity, but not Nevada County nor the city of Nevada City.

"Public property" means any property that is owned or under the control of the city of Nevada City that is not a public right-of-way, including, for purposes of this chapter, but not limited to, buildings, parks, poles, structures in the public rights-of-way such as utility poles and light poles, or similar facilities or property owned by or leased to the city of Nevada City.

"Public rights-of-way" means the surface of and the space above and below any street, road, highway, freeway, bridge, lane, path, alley, court, sidewalk, parkway, drive, or right-of-way or easement primarily dedicated to travel, now or hereafter existing, within the city of Nevada City which may be properly used for the purpose of installing, maintaining, and operating a cable communications system; and any other property that a franchisee is entitled by state or federal law to use by virtue of the grant of a franchise.

"Revocation" means Nevada County's or the city of Nevada City's affirmative act of terminating a franchise.

"School" means any accredited primary school, secondary school, college, and university.

"Subscriber" means Nevada County or the city of Nevada City or any person who is lawfully receiving, for any purpose or reason, any cable service via a cable communications system with franchisee's express permission, whether or not a fee is paid for such service.

"Termination" means the conclusion of a franchise by any means, including, but not limited to, by expiration of its term, abandonment, or revocation.

"Transfer" means any transaction in which:

1. All or a portion of any facilities or any rights to use or operate facilities located in the public rights-of-way are sold, conveyed, transferred, assigned, encumbered or leased, in whole or in part, directly or indirectly, by one (1) or more transactions to another person, whether voluntarily or by operation of law or otherwise; or

2. There is any change, acquisition, or transfer in the identity of the person in control of the franchisee, or any person that controls the franchisee, including, without limitation, forced or voluntary sale, merger, consolidation, or receivership; or

3. The rights or obligations under the franchise are sold, conveyed, transferred, assigned, encumbered or leased, in whole or in part, directly or indirectly, by one (1) or more transactions to another person, whether voluntarily or by operation of law or otherwise.

"Unaffiliated video programming provider" or "UVPP" means any person who uses capacity on a franchised cable system to deliver cable service or other communications service (as that term is used in 47 U.S.C. Section 542(h)) to subscribers and who is not an affiliate of the franchisee.

"Upstream channel" means a channel designed and activated to carry transmissions from a point on the cable system, other than the headend, to the headend or another point on the cable system.

"User" means a person or the city of Nevada City utilizing a channel, capacity or equipment and facilities for purposes of producing or transmitting video, voice and data materials contrasted with receiving it in the capacity of a subscriber.

(Ord. No. 2017-02, § I, 1-11-2017)

A. Franchise Required. No person may construct or operate a cable communications system in the city of Nevada City without first obtaining a franchise; provided that the following shall not be required to obtain a franchise under this chapter:

1. Nevada County or the city of Nevada City; or

2. A UVPP that is only delivering cable service or other communications service (as that term is used in 47 U.S.C. Section 542(h)) to subscribers.

B. Possessory Interest of Public Property. A franchise granted pursuant to Article 2 of the Nevada County General Code or this chapter shall notify the franchisee of potential tax liability for property taxes pursuant to California Revenue and Tax Code Section 107.6.

C. Failure to Obtain a Franchise. Consistent with the requirements of due process, a person's failure to obtain a franchise as required by this chapter may, in the City's discretion, result in:

1. Forfeiture, by operation of law, of the person's facilities located in the public rights-of-way that are not authorized by an existing franchise; and/or

2. A City or County order and/or court order that the facilities be removed, and that penalties and damages be paid as set forth in the County General Code or in state law.

D. Existing Franchises. Franchisees existing as of the effective date of the ordinance codified in this chapter shall, in addition to all the obligations and duties prescribed by the terms of their existing franchises, be subject to the substantive and procedural requirements herein, except as prohibited by applicable law. Nothing in this chapter is intended to invalidate a lawful, existing franchise or to waive any obligations imposed by such a franchise.

E. Administration of Chapter; Adoption of Regulations.

1. Adoption of Regulations. The city of Nevada City may from time to time adopt regulations to implement the provisions of this chapter.

2. Delegation. The city manager or its designees are hereby authorized to administer the provisions of this chapter and any franchise issued to operate within the incorporated area of the city of Nevada City, and to provide any notices (including noncompliance notices) and to take any action on the city of Nevada City's behalf that may be required under this chapter or under applicable law.

3. No Waiver. The failure of Nevada County or the city of Nevada City, upon one (1) or more occasions, to exercise a right or to require compliance or performance under a franchise or any other applicable law shall not be deemed to constitute a waiver of such right or a waiver of compliance or performance, unless such right has been specifically waived in writing.

4. Administration of Public, Educational and Government Access. Nevada County may designate one (1) or more entities, including itself and/or the city of Nevada City, to control and manage the use of public, educational and government access channels, facilities and equipment.

F. General Conditions upon Construction, Operation and Repair.

1. Franchisee Must Follow Local Rules. The construction, operation, and repair of cable communications systems shall be performed in compliance with all laws, ordinances, departmental rules, regulations, and practices affecting such system. By way of example, and not limitation, this includes zoning and safety codes, construction standards, regulations for providing notice to persons that may be affected by system construction, and directives governing the time, place and manner in which facilities may be installed in the rights-of-way. Persons engaged in the construction, operation, or repair of communications facilities shall exercise reasonable care in the performance of all their activities and shall use commonly accepted methods and devices for preventing failures and accidents that are likely to cause damage, injury, or nuisance to the public or to property.

2. No Permit without Franchise. A franchise is required before a permit may be issued for work associated with the construction of a cable communications system. Any permit issued for such work to a person that does not hold a franchise shall vest no rights in the permittee; the permit may be revoked at will, and the permittee shall remove all facilities installed under the permit upon the city of Nevada City's demand.

3. Permits Must be Obtained. Construction, operation, or repair of a cable communications system in the city of Nevada City shall not commence until all required permits have been obtained from the proper City officials and all required fees have been paid. All work performed will be performed in strict accordance with the conditions of the permit. Upon order of the city of Nevada City, any work and/or construction undertaken that is not completed in compliance with the city of Nevada City's requirements, or which is installed without obtaining necessary permits and approvals shall be removed.

4. No Interference. Interference with the use of the public rights-of-way by others, including others that may be installing cable communications systems, must be minimized. The city of Nevada City may require a person using the rights-of-way to cooperate with others through joint trenching and other arrangements to minimize adverse impacts on the rights-of-way.

5. Plans for and Publicizing Work. Work shall be publicized as the city of Nevada City may direct from time to time. The publication of work may be used to notify the public and operators of other communications systems, of the impending work, in order to minimize inconvenience and disruption to the public.

a. Each franchisee shall provide the city of Nevada City a plan for any initial system construction, or for any substantial rebuild, upgrade or extension of its facility, which shall show its timetable for construction of each phase of the project, and the areas of the city that will be affected.

b. The City manager may from time to time, when the City receives an application for a permit to use a particular route, or upon the City manager's own initiative, designate by published order a route or proposed route for installation of communications facilities and may (i) require all persons who wish to emplace underground facilities along that route or any part thereof to install them during a specified period, provided all costs are shared equitably and (ii) otherwise prohibit initial emplacement of such facilities along the route or any part thereof for twenty-four (24) months or after such other longer period as is necessary to protect the public interest.

6. Existing Poles to be Used. To the extent possible, operators of cable communications systems shall use existing poles and conduit. Additional poles may not be installed in the right-of-way; nor may pole capacity be increased by vertical or horizontal extenders, without the permission of the city manager.

To minimize disruption of public passage or infrastructure, to forestall or relieve exhaustion of rights-of-way capacity, or to protect environmentally sensitive areas, the City manager may require as a condition of issuing any rights-of-way permit for erection of new poles or construction of underground conduit, the installation of which requires excavation of or along any traveled way that the franchisee, licensee, or holder of the rights-of-way permit provide pole space or empty conduits in excess of its own present and reasonably foreseeable requirements for the purpose of accommodating the city and/or other franchisees and licensees.

7. Undergrounding.

a. Whenever all existing utilities are located underground in an area in the city of Nevada City, every cable communications system operator in the same area must locate its cable communications system underground.

b. Whenever the owner of a pole locates or relocates underground within an area of the city of Nevada City, every cable communications system operator in the same area shall concurrently relocate its facilities underground.

c. The City may, for good cause shown, exempt a particular system or facility or group of facilities from the obligation to locate or relocate facilities underground, where relocation is impractical, or where the City and the subscriber's interest can be protected in another manner. Nothing in subsection (F)(7)(a) of this section prevents the city of Nevada City from ordering communications facilities to be located or relocated underground.

8. Prompt Repairs. Any and all public rights-of-way, other public property, or private property that is disturbed or damaged during the construction, operation, maintenance or repair of a cable communications system shall be promptly repaired by the operator. Public property and public rights-of-way must be restored to the satisfaction of the city of Nevada City or to a condition as good or better than before the disturbance or damage occurred.

9. Movement of Facilities for Government.

a. A cable communications system operator shall, by a time specified by the city of Nevada City, protect, support, temporarily disconnect, relocate, or remove any of its property when required by the city of Nevada City by reason of traffic conditions; public safety; public right-of-way construction and repair (including regrading, resurfacing or widening); public right-of-way vacation; construction, installation or repair of sewers, drains, water pipes, power lines, signal lines, tracks, or any other type of government-owned system or utility, public work, public facility, or improvement; or for any other purpose where the work involved would be aided by the removal or relocation of the cable communications system. Collectively, such matters are referred to below as the "public work."

b. Except in the case of emergency, the city of Nevada City shall provide written notice describing where the public work is to be performed at least one (1) week prior to the deadline by which a cable communications system operator must protect, support, temporarily disconnect, relocate or remove its facilities. However, in an emergency, or where a cable communications system creates or is contributing to an imminent danger to health, safety, or property, the city of Nevada City may protect, support, temporarily disconnect, remove, or relocate any or all parts of the cable communications system without prior notice, and charge the cable communications system operator for costs incurred.

10. Movement for Others.

a. To accommodate the construction, operation, or repair of the facilities of another person authorized to use the streets or public property, a franchisee shall, by a time specified by such person, protect, support, temporarily disconnect, relocate or remove its facilities. The franchisee must be given written notice describing where the construction, operation or repair is to be performed at least fifteen (15) days prior to the time by which its work must be completed. The city of Nevada City may resolve disputes as to responsibility for costs associated with removal, relaying, or relocation of facilities among entities authorized to install facilities in the streets or on public property if such entities are unable to do so themselves.

b. A cable communications system operator shall, on the request of any person holding a valid permit issued by a governmental authority, temporarily raise or lower its wires by a time specified to permit the moving of buildings or other objects. A cable communications system operator shall be given not less than seven (7) days' advance notice to arrange for such temporary wire changes. The expense of such temporary removal or raising or lowering of wires shall be paid by the person requesting the same.

11. Abandonment in Place.

a. A cable communications system operator may abandon any property in place in the public rights-of-way upon written notice to the city of Nevada City. However, if, within ninety (90) days of the receipt of written notice of abandonment, the city of Nevada City determines that the safety, appearance, functioning or use of the public rights-of-way and facilities in the public rights-of-way will be adversely affected, the property must be removed by a date specified by the city of Nevada City.

b. A cable communications system operator that abandons its property must, upon request, transfer ownership of the properties to the city of Nevada City at no cost, and execute necessary quitclaim deeds and indemnify the city of Nevada City against future costs associated with mitigating or eliminating any environmental hazard associated with the abandoned property.

12. System Subject to Inspection. Every cable communications system shall be subject to inspection and testing by the city of Nevada City. Each operator must respond to requests for information regarding its system and plans for the system as the city of Nevada City may from time to time issue, including requests for information regarding its plans for construction, operation and repair and the purposes for which the plant is being constructed, operated, or repaired.

13. Underground Services Alert. Each operator of a cable communications system that places facilities underground shall be a member of the regional notification center for subsurface installations (underground services alert) and shall field mark the locations of its underground communications facilities upon request. The operator shall locate its facilities for the city of Nevada City at no charge.

14. Plan for Construction. Every franchise shall specify for the city of Nevada City a construction schedule that will apply to any required construction, upgrade, or rebuild of the cable communications system. The schedule shall provide for the prompt completion of the project, shall show its timetable for construction of each phase of the project, with benchmarks for deliverables and the areas of the city of Nevada City that will be affected. The city of Nevada City shall have the right to impose penalties on the operator for a failure to meet the accepted timetable and benchmarks.

15. Use of facilities by the city of Nevada City. The city of Nevada City shall have the right to install and maintain, free of charge, upon any poles or in any conduit owned by a franchisee any wire and pole fixtures that do not unreasonably interfere with the cable service operations of the franchisee.

G. Protection of City of Nevada City and Residents.

1. Indemnity Required. No permit issued for work associated with construction of a cable communications system shall be valid or effective until and unless the city of Nevada City obtains an adequate indemnity from the franchisee. The indemnity must:

a. Release the city of Nevada City from and against any and all liability and responsibility in or arising out of the construction of the cable communications system. and

b. Indemnify and hold harmless the city of Nevada City, its trustees, elected and appointed officers, agents, and employees, from and against any and all claims, demands, or causes of action of any kind or nature, and the resulting losses, costs, expenses, reasonable attorneys' fees, liabilities, damages, orders, judgments, or decrees sustained by the city of Nevada City or any third party arising out of, or by reason of, or resulting from or of the acts, errors, or omissions of the cable communications system operator, or its agents, independent contractors or employees related to or in any way arising out of the construction, of the system.

2. Construction Bonds. Every franchisee constructing a cable communications system within the city of Nevada City for which a permit is required shall obtain and maintain bonds during periods of constructing the cable system to ensure the faithful performance of its responsibilities under this chapter and any franchise. The amount of the performance and payment bonds shall be set by the City manager, but shall not be less than ten (10) percent of the estimated cost of constructing or (in the case of existing systems) upgrading the system, and including a sufficient amount to cover the removal of facilities and/or restoration of city facilities within the right-of-way.. The bond shall be in a form acceptable to the city attorney. Bonds must be obtained prior to the effective date of any permit, unless the City manager specifically provides otherwise.

H. Reports.

1. Quarterly Statement. Within forty-five (45) days of the end of each calendar quarter, a franchisee shall submit a statement to the city of Nevada City as required by subsection J(2) hereof:

2

Annual Reports. The City manager may require a cable communications system operator to submit a report containing the following information within ninety (90) days after the end of the operator's fiscal year:

a. A fully audited or certified revenue report from the previous calendar year for the cable communications system, and a certified statement setting forth the computation of gross revenues used to calculate the franchise fee for the preceding year and a detailed explanation of the method of computation showing:

i. Gross revenues by category (e.g., basic pay, pay-per-view, advertising, installation, equipment, late charges, miscellaneous, other), and

ii. What, if any, deductions were made from gross revenues in calculating the franchise fee (e.g., bad debt, credits and refunds), and the amount of each deduction;

I. Maps Required. Each franchisee shall maintain accurate maps and improvement plans which show the location, size, and a general description of all facilities installed in the public rights-of-way and any power supply sources (including voltages and connections) within the incorporated area of the city of Nevada City. Maps shall be based upon post-construction inspection to verify location. Each franchisee shall provide a map to the city of Nevada City showing the location of its facilities within the city of Nevada City, in such detail and scale as may be reasonably directed by the city engineer and update the map at least annually, and whenever the facility expands or is relocated. Copies of maps shall be provided in hard copy and on disk, in a commercially available electronic format specified by the city engineer.

J. Procedures for Paying Franchise Fees and Fees in Lieu of Franchise Fees.

1. Fees Paid Quarterly. The franchise fee paid pursuant to Section 5.28.020 of this shall be paid quarterly unless otherwise specified in a franchise. Payment for each quarter shall be made to city of Nevada City not later than forty-five (45) days after the end of each calendar quarter.

2. Quarterly Statement. Unless a franchise provides otherwise, a franchisee or other entity subject to a fee under Section 5.28.020 of this chapter shall file with the city of Nevada City within forty-five (45) days of the end of each calendar quarter a statement showing gross revenues during the preceding quarter and the number of subscribers served.

3. Acceptance of Payment Not a Release. No acceptance by the city of Nevada City of any payment shall be construed as an accord that the amount paid is in fact the correct amount; nor shall such acceptance of such payment be construed as a release of any claim the city of Nevada City may have for additional sums payable.

4. Fee Not in Lieu of Taxes. The franchise fee under Section 5.28.020 of this chapter is not a payment in lieu of any tax, fee or other assessment of general applicability (including any such tax, fee or assessment imposed on both utilities and cable communications system operators or their services, but not including a tax, fee, or assessment which is unduly discriminatory against operators or subscribers).

5. Final Statement of Gross Revenues. Within ninety (90) days of the date a franchisee ceases operations under a franchise (whether because of franchise termination, transfer, bankruptcy or for any other reason), the franchisee shall file a final statement of gross revenues covering the period from the beginning of the calendar year in which the operations commenced to the date operations ceased. The statement shall contain the information and be audited or certified as required by subsection H of this section.

(Ord. No. 2017-02, § I, 1-11-2017)

A. Additional Definitions. For the purposes of this section, in addition to those listed in the prior Section, the following terms, phrases, words, and abbreviations shall have the meaning given herein.

"DIVCA" refers to the "Digital Infrastructure and Video Competition Act" adopted by the State of California in 2006 and embodied in California Public Utilities Code section 5800 et seq., which transferred authority for issuing franchises to cable television providers from local entities to the Public Utilities Commission, while authorizing local governmental entities to be responsible for administration and implementation of certain provisions of DIVCA and establish financial support provisions for PEG channel facilities.

"Gross Revenues", consistent with the definition in DIVCA section 5860(d), means all revenues actually received by the holder of a state franchise or its affiliates that are derived from the operation of the holder's network to provide cable service or video service within the incorporated areas of the city of Nevada City.

"Incumbent Cable Operator" as defined in DIVCA section 5830(i) means a cable operator or OVS serving subscribers under a franchise in a particular city, county or city and county franchise area on January 1, 2007.

"Material Breach" as defined in DIVCA section 5900(j) means any substantial and repeated failure of a video service provider to comply with service quality and other standards specified in California Public Utilities Code section 5900(a).

"PEG Access" 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 organizations, groups, or individual members of the general public, educational institutions, and the City and the County and its designated access providers, to acquire, create, and distribute programming not under a State Franchise Holder's editorial control.

"PEG support fees" means the fees adopted pursuant to Article 2.A of Chapter II of the Nevada County General Code and this Subsection G of Section.

"PUC" means the California Public Utilities Commission.

"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 California Public Utilities Code section 5830, within any portion of the incorporated areas of Nevada City.

B. General.

1. Purpose. This section is applicable to video service providers who have been awarded a state video franchise under DIVCA to provide cable or video services in any location(s) within the incorporated boundaries of the City. It is the purpose of this section to implement within the provisions of DIVCA and the rules of the PUC promulgated thereunder applicable to a "local franchising entity" or a "local entity" as defined in DIVCA within the incorporated boundaries of the city of Nevada City regulations that are similar to those adopted by the County for the unincorporated areas.

2. Rights reserved.

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

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

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

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

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

3. Compliance with City Ordinances. Nothing contained in this section shall be construed so as to exempt a State Franchise Holder from compliance with all ordinances, rules and regulation of the City now in effect or which may be hereafter adopted which are consistent with this section or California Public Utilities Code sections 5800 et seq., or any obligations under any franchise issued by the City insofar as those obligations may continue to be enforced thereunder.

4. Compliance with DIVCA. When a video service provider holding a state franchise provides notice pursuant to section 5840(m) of DIVCA that it is commencing to provide video service to the County, a holder of a local franchise is entitled to seek a state franchise pursuant to section 5930(c) and upon issuance of a state franchise by the PUC for the franchise area, the local franchise shall terminate.

C. Franchise Fees.

1. Amount. Any State Franchise Holder operating within the incorporated areas of the City shall pay to the City a franchise fee equal to five percent (5%) of the gross revenues that may be subject to a franchise fee under CPUC section 5860.

2. Payment of Franchise Fees. The franchise fee required pursuant to this section shall be paid quarterly in a manner consistent with California CPUC section 5860. The State Franchise Holder shall deliver to the City, by check or other means, which shall be agreed to by the City, a separate payment for the state franchise fee not later than forty-five (45) days after the end of each calendar quarter. Each payment 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 City.

3. Examination of Business Records. The City may examine the business records of the holder of a state franchise in a manner consistent with CPUC section 5860(i)

4. Late payments. In the event a State Franchise Holder fails to make payments required by this section on or before the due dates specified herein, the City shall impose, pursuant to DIVCA section 5860(h), a late charge at the rate per year equal to the highest prime lending rate during the period of delinquency, plus one percent (1%).

D. Customer Service.

1. Customer Service Standards. A State Franchise Holder shall comply all the Sections set forth in Section G-II.2.A.5.A of the County General Code, including, without limitation to the extent consistent with DIVCA, all other applicable state and federal customer service and consumer protection standards pertaining to the provision of video service, including any such federal or state standards hereafter adopted. In case of a conflict, the stricter standard shall apply. All customer service and consumer protection standards under this subsection shall be interpreted and applied to accommodate newer or different technologies while meeting or exceeding the goals of the standards..

2. Penalties for Violations of Standards. The City shall enforce compliance of State Franchise Holders within the incorporated areas of the City with respect to the state and federal customer service and consumer protection standards to the same extent and in the same manner as provided by the County in the unincorporated areas as set forth in Section G-II.A.5.B.

E. Permits and Construction.

1. Except as otherwise expressly provided in this chapter, all provisions of the Nevada City Municipal Code and all City administrative rules and regulations developed to any of these provisions, as now existing or as hereafter amended, shall apply to all work performed by or on behalf of a State Franchise Holder on any City public rights-of-way, public property, or City easement.

2. Permits. Prior to commencing any work for which a permit is required by the Nevada City Municipal Code, a State Franchise Holder shall apply for and obtain a permit in accordance with the provisions of Title 15 of the Nevada City Municipal Code 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) and Title 14, Chapter 3 of the California Code of Regulations, section 15000 et seq. (Guidelines for California Environmental Quality Act). Any work requiring City land use permits, building permits and/or grading permits shall be applied for and approved or denied in accordance with the provisions of the Nevada City Municipal Code, including the appeal process.

3. The issuance of an encroachment 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, in accordance with applicable law.

F. Emergency Alert System. 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. To the extent consistent with CPUC section 5880, each State Franchise Holder shall install and maintain an audio override on all channels for transmission of emergency messages and alerts and provide for character generated information to be superimposed on all channels for the hearing impaired.

G. Public, Educational, and Government Access Channel Capacity, Support, Interconnection, and Signal Carriage.

1. PEG Channel Capacity.

a. There are currently four (4) PEG access channels activated in Nevada County. A State Franchise Holder shall designate a sufficient amount of capacity on its network to allow the provision of four (4) PEG channels to satisfy the requirement of Section 5870 of the California Public Utilities Code, within the time limits specified therein.

b. A State Franchise Holder shall provide an additional PEG channel when the County satisfies the standards set forth in Section 5870(d) of the California Public Utilities Code or any entity designated by the County to manage one or more of the PEG channels.

c. All State Franchise Holders shall comply with the provisions of DIVCA related to PEG channels. Without limiting the foregoing, the PEG channels shall be carried on the basic service tier. To the extent feasible, the PEG channels shall not be separated from other channels carried on the basic service tier and channel numbers for the PEG channels shall be the same channel numbers used by the Incumbent Cable Operator, unless prohibited by Federal Law, and shall provide picture and sound quality, channel accessibility, and location equal to, or substantially equal to, that provided by the Incumbent Cable Operator. After the initial designation of PEG channel numbers, the channel numbers shall not be changed without the agreement of the local entity unless the change is required by Federal Law.

2. PEG Support.

a. Amount of PEG support fee. Any State Franchise Holder shall pay to the City a PEG fee equal to one and four-tenths percent (1.4%) of gross revenues, an amount equivalent to the level of PEG funding remitted by the Incumbent Cable Operator cumulatively to the County of Nevada and the cities of Nevada City and Grass Valley during the most recently completed franchise periods.

b. The PEG support fee shall be used in a manner that is consistent with state and federal law.

c. A State Franchise Holder shall remit the PEG support fee quarterly, within forty-five (45) days after the end of each calendar quarter. Each payment shall be accompanied by a summary detailing how the PEG support fee was calculated.

d. In the event that 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 pursuant to DIVCA section 5860(h) at the rate per year equal to the highest prime lending rate during the period of delinquency, plus one percent (1%), or the maximum rate specified by state law.

3. Interconnection. Each State Franchise Holder and each Incumbent Cable Operator 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 CPUC 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 for PEG carriage, the County may require the Incumbent Cable Operator to allow each 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, each 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 each State Franchise Holder unless otherwise agreed to by the parties.

H. Notices.

1. 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 of applicant are required to file with the California Public Utilities Commission.

2. Unless otherwise specified in this Section, all notices or other documentation that a State Franchise Holder is required to provide to the County under this Section or the California Public Utilities Code shall be provided both to the County Manager and the County staff person in charge of cable and telecommunications, or their successors or designees and, to the extent they concern operations within the incorporated areas of Nevada City, to the City Manager.

(Ord. No. 2017-02, § I, 1-11-2017)

(Ord. 2004-07 Exh. A § 3, 2004; Ord. No. 2017-02, § I, 1-11-2017)

A. Captions. The captions to sections throughout this chapter are intended solely to facilitate reading and reference to the sections and provisions of this chapter. Such captions shall not affect the meaning or interpretation of this chapter.

B. Calculation of Time. Unless otherwise indicated, when the performance or doing of any act, duty, matter, or payment is required under this chapter or any franchise, and a period of time or duration for the fulfillment of doing thereof is prescribed and is fixed herein, the time shall be computed so as to exclude the first and include the last day of the prescribed or fixed period of time.

C. Severability. If any term, condition, or provision of this chapter shall, to any extent, be held to be invalid or unenforceable by a valid order of any court or regulatory agency, the remainder of this chapter shall be valid in all other respects and continue to be effective. In the event of a subsequent change in applicable law so that the provision which had been held invalid is no longer invalid, said provision shall thereupon return to full force and effect without further action by the city of Nevada City and shall thereafter be binding on the Franchisee and the city of Nevada City.

D. Connections to Cable System; Use of Antennae.

1. Subscriber Right to Attach. To the extent consistent with federal law, subscribers shall have the right to attach VCRs, receivers, and other terminal equipment to a franchisee's cable system. Subscribers also shall have the right to use their own remote control devices and converters, and other similar equipment.

2. Removal of Existing Antennae. A Franchisee shall not, as a condition of providing service, require a subscriber or potential subscriber to remove any existing antenna, or disconnect an antenna except at the express direction of the subscriber or potential subscriber, or prohibit installation of a new antenna, provided that such antenna is connected with an appropriate device and complies with applicable law.

E. Discrimination Prohibited.

1. No Retaliatory Actions. A cable communications system operator shall not discriminate among persons or the city of Nevada City or take any retaliatory action against a person or the city of Nevada City because of that entity's exercise of any right it may have under federal, state, or local law; nor may the cable communications system operator require a person or the city of Nevada City to waive such rights as a condition of taking service.

2. Employment and Hiring Practices. A cable communications system operator shall not refuse to employ, discharge from employment, or discriminate against any person in compensation or in terms, conditions, or privileges of employment because of race, color, creed, national origin, sex, sexual orientation, age, disability, religion, ethnic background, or marital status. A cable communications system operator shall comply with all federal, state, and local laws and regulations governing equal employment opportunities, and hiring practices, as the same may be amended from time to time.

F. Transitional Provisions.

1. Persons Operating Without a Franchise. The cable communications system operator of any facility installed as of the effective date of the ordinance codified in this chapter, for which a franchise is required under this chapter, shall have three (3) months from the effective date of the ordinance codified in this chapter to file one (1) or more applications for a franchise. Any cable communications system operator timely filing such an application under this subsection shall not be subject to a penalty for failure to have such a franchise so long as said application remains pending; provided, however, nothing herein shall relieve any cable communications system operator of any liability for its failure to obtain any permit or other authorization required under other provisions of the city of Nevada City Municipal Code, and nothing in this chapter shall prevent the city of Nevada City from requiring removal of any facilities installed in violation of the city of Nevada City Municipal Code.

2. Persons Holding Franchises. Any person holding an existing franchise for a cable communications system may continue to operate under the existing city of Nevada City Municipal Code provisions to the conclusion of its present term (but not any renewal or extension thereof) with respect to those activities expressly authorized by the franchise; and provided further that such person shall be subject to the other provisions of this chapter to the extent permitted by law.

3. Persons with Pending Applications. Pending applications shall be subject to this chapter. A person with a pending application shall have thirty (30) days from the effective date of the ordinance codified in this chapter to submit additional information to comply with the requirements of this chapter governing applications.

(Ord. No. 2017-02, § I, 1-11-2017)