Article III — Open Video Systems

The provisions of this Article III are applicable to an open video system operator, as defined below in Section 18-2.15, that intends to deliver video programming to consumers in the City over an open video system.

(Prior code § 18-2.8; Ord. 1494 § 2, 1999; Ord. 21-1722 § 2)

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

  1. The identity of the applicant, including all affiliates of the applicant;

  2. Copies of FCC Form 1275, all Notices of Intent filed under 47 CFR Section76.1503(b)(1), and the Order of the FCC, all of which relate to certification of the applicant to operate an open video system in accordance with Section 653(a)(1) of the Communications Act and the FCC's rules;

  3. The area or areas of the City that the applicant desires to serve;

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

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

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

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

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

     • b. Comply with the City's public, educational and governmental access requirements as specified below in Section 5.24.110(B)(4),

     • c. Comply with the City's requirement that gross revenue fees be paid in the sum of five percent, as specified below in Section 5.24.110(B)(2);

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

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

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City of Norwalk, CA

NORWALK CODE

§ 5.24.090

§ 5.24.090

• a. A preliminary construction schedule and completion dates,

• b. Preliminary engineering plans, specifications and a network map of any new facilities to be constructed in the City, in sufficient detail to identify:

  • i. The location and route requested for the applicant's proposed facilities,

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

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

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

10. The information and documentation that is required to be submitted to the City by a video provider, as specified below in subsection B of Section 5.24.130;

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

12. A nonrefundable filing fee in an amount established by resolution of the City Council.

• B. If any item of information specified above in subsection A of this section is determined under paramount Federal or State law to be unlawful, the City Manager is authorized to waive the requirement that such information be included in the application.

• C. Fee for Support of Local Cable Usage. A fee paid to the City is established for the support of public, educational, and governmental access facilities and activities within the City. Unless a higher percentage is authorized by applicable State or Federal law, this fee shall not exceed one percent of a grantee's gross annual cable service revenues, as that term is defined in Section 5.24.160, or the grantee's franchise agreement, or in applicable provisions of State or Federal law. This fee is also applicable to a State video franchise holder operating within the City, which shall pay to the City one percent of its gross revenue, as defined in California Public Utilities Code Section 5860.

• D. Special Provisions Applicable to Holders of State Video Franchises.

  1. Franchise Fee. A State video franchise holder operating in the City shall pay to the City a franchise fee that is equal to five percent of the gross revenues of that State video franchise holder. The term "gross revenues" shall be defined as set forth in Public Utilities Code Section 5860.

  2. Audit Authority. Not more than once annually, the City may examine and perform an audit of the business records of a holder of a State video franchise to ensure compliance with all applicable statutes and regulations related to the computation and payment of franchise fees.

  3. Customer Service Penalties Under State Video Franchises.

     • a. The holder of a State video franchise shall comply with all applicable State and Federal customer service and protection standards pertaining to the provision of

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City of Norwalk, CA

BUSINESS LICENSES AND REGULATIONS

§ 5.24.090

§ 5.24.090

video service.

• b. The City shall monitor a State video franchise holder's compliance with State and Federal customer service and protection standards. The City will provide to the State video franchise holder written notice of any material breaches of applicable customer service and protection standards, and will allow the State video franchise holder 30 days from receipt of the notice to remedy the specified material breach. Material breaches not remedied within the 30 day time period will be subject to the following monetary penalties to be imposed by the City in accordance with State law:

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

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

  • iii. For a third or further violation of the same nature within 12 months, a monetary penalty of $2,500 shall be imposed for each day the violation remains in effect, not to exceed $7,500 for each violation.
  • c. A State video franchise holder may appeal a monetary penalty assessed by the City within 60 days. After relevant evidence and testimony is received, and staff reports are submitted, the City Council will vote to either uphold or vacate the monetary penalty. The City Council's decision on the imposition of a monetary penalty shall be final.

4. City Response to State Video Franchise Applications.

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

   • b. The City will provide any appropriate comments to the California Public Utilities Commission regarding an application or an amendment to an application for a State video franchise.

5. PEG Channel Capacity. A State video franchise holder that uses the public rights-ofway shall designate sufficient capacity on its network to enable the carriage of at least three public, educational, or governmental (PEG) access channels.

   • a. PEG access channels shall be for the exclusive use of the City or its designees to provide public, educational, or governmental programming.

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

   • c. The PEG access channels shall be carried on the basic service tier.

   • d. To the extent feasible, the PEG access channels shall not be separated

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City of Norwalk, CA § 5.24.090

NORWALK CODE

§ 5.24.110

numerically from other channels carried on the basic service tier, and the channel numbers for the PEG access channels shall be the same channel numbers used by the incumbent cable operator unless prohibited by Federal law.

• e. After the initial designation of PEG access channel numbers, the channel numbers shall not be changed without the prior written consent of the City, unless the change is required by Federal law.

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

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

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

(Prior code § 18-2.9; Ord. 1494 § 2, 1999; Ord. 07-1588 §§ 1, 2; Ord. 21-1722 § 2)

Within 30 days after receipt of an application filed under Section 5.24.090 that is deemed by the City Manager to be complete, the City Manager will give written notice to the applicant of the City's intent to negotiate an agreement setting forth the terms and conditions under which the operation of the proposed open video system will be authorized by the City. The commencement of those negotiations will be on a date that is mutually acceptable to the City and to the applicant. (Prior code § 18-2.10; Ord. 1494 § 2, 1999; Ord. 21-1722 § 2)

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City of Norwalk, CA

BUSINESS LICENSES AND REGULATIONS

§ 5.24.110

§ 5.24.110

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

• B. The agreement between the City and the open video system operator may contain terms and conditions that relate to the following subject matters, to the extent that such terms, conditions and subject matters are not preempted by Federal statute or regulations:

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

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

     • a. The amount of the fees on the gross revenues will be five percent, and will be paid in lieu of the franchise fees permitted under Section 622 of the Communications Act.

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

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

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

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

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

• c. The open video system operator may negotiate with the City to establish the operator's obligations with respect to public, educational and governmental access channel capacity, services, facilities and equipment. These negotiations

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City of Norwalk, CA

NORWALK CODE

§ 5.24.110

§ 5.24.110

may include the City's franchised cable operator if the City, the open video system operator, and the franchised cable operator so desire.

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

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

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

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

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

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

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City of Norwalk, CA

BUSINESS LICENSES AND REGULATIONS

§ 5.24.110

§ 5.24.110

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

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

5. If the City and the open video system operator cannot agree as to the application of the FCC's rules regarding the open video system operator's obligations to provide public, educational and governmental access under the provisions of subsection (B)(4) set forth above, then either party may file a complaint with the FCC in accordance with the dispute resolution procedures set forth in 47 CFR Section 76.1514. No agreement will be executed by the City until the dispute has been finally resolved;

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

7. The authority of an open video system provider to exercise editorial control over any public, educational or governmental use of channel capacity will be restricted in accordance with the provisions of 47 CFR Section76.1505(f);

8. The obligation of the open video system operator to comply with all applicable Federal and State statutes and regulations relating to customer service standards, including the Cable Television and Video Customer Service and Information Act (Government Code Section 53054, et seq.), and the Video Customer Service Act (Government Code Section 53088, et seq.);

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

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

   • b. The coordination of construction requirements,

   • c. Compliance with established standards and procedures for constructing lines across private property,

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City of Norwalk, CA

NORWALK CODE

§ 5.24.110

§ 5.24.110

• d. Compliance with all applicable insurance and indemnification requirements,

• e. The repair and resurfacing of construction-damaged streets,

• f. Compliance with all public safety requirements that are applicable to telecommunications service providers using public property or public rights-ofway;

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

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

12. Requirements relating to the open video system operator's compliance with and implementation of State and Federal laws, rules and regulations pertaining to the operation of the open video system;

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

(Prior code § 18-2.11; Ord. 1494 § 2, 1999; Ord. 21-1722 § 2)

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City of Norwalk, CA

BUSINESS LICENSES AND REGULATIONS

§ 5.24.120

§ 5.24.130