Oxnard Municipal Code Art. IV Other Video and Telecommunications Services and Systems

(A) The term "cable system," as defined in federal law and as set forth in section 23-55 below, does not include a facility that serves subscribers without using any public rights-of-way.

(B) The categories of multichannel video programming distributors identified below are not deemed to be "cable systems" and are therefore not subject to the city's franchise requirements of certain other local regulatory provisions authorized by federal law, provided that the video programming distributor's distribution or transmission facilities do not involve the use of the city's public rights-of-way:

(1) Multichannel multipoint distribution service ("MMDS"), also known as "wireless cable," which typically involves the transmission by an FCC-licensed operator of numerous broadcast stations from a central location using line-of-sight technology.

(2) Local multipoint distribution service ("LMDS"), another form of over-the-air wireless video service for which licenses are auctioned by the FCC, and which offers video programming, telephony, and data networking services.

(3) Direct broadcast satellite ("DBS"), also referred to as "direct-to-home satellite services," which involves the distribution or broadcasting of programming or services by satellite directly to the subscriber's premises without the use of ground receiving or distribution equipment, except at the subscriber's premises or in the uplink process to the satellite.

(4) Local regulation of direct-to-home satellite services is further proscribed by the following federal statutory provisions:

(a) 47 U.S.C. section 303(v) confers upon the FCC exclusive jurisdiction to regulate the provision of direct-to-home satellite services.

(b) Section 602 of the Telecommunications Act of 1996 states that a provider of direct-to- home satellite service is exempt from the collection or remittance, or both, of any tax or fee imposed by any local taxing jurisdiction on direct-to-home satellite service.

(c) The terms "tax" and "fee" are defined by federal statute to mean any local sales tax, local use tax, local intangible tax, local income tax, business license tax, utility tax, privilege tax, gross receipts tax, excise tax, franchise fees, local telecommunications tax, or any other tax, license, or fee that is imposed for the privilege of doing business, regulating, or raising revenue for a local taxing jurisdiction.

(Ord. No. 2650)

(A) Unless the customer protection and service obligations of a video provider, as that term is defined in section 23-55, are specified in a franchise, license, lease, or similar written agreement with the city, a video provider must comply with these State statutes:

(1) The Cable Television and Video Customer Service and Information Act (Cal. Gov’t Code, Sections 53054 et seq.)

(2) The Video Customer Service Act (Cal. Gov’t Code, Sections 53088 et seq.)

(B) All video providers that are operating in the city on the effective date of this chapter, or that intend to operate in the city after the effective date of this chapter, must register with the city manager; provided, however, that this registration requirement is not applicable to any video provider that has executed a franchise, license or lease or similar written agreement with the city. The registration form must include or be accompanied by the following:

(1) The video provider's name, address, and local telephone numbers.

(2) The names of the officers of the video provider.

(3) A copy of the video provider's written policies and procedures relating to customer service standards and the handling of customer complaints, as required by Cal. Gov’t Code, Sections 53054 et seq. These customer service standards must include, without limitation, standards regarding the following:

(a) Installation, disconnection, service and repair obligations, employee identification, and service call response time and scheduling.

(b) Customer telephone and office hours.

(c) Procedures for billing, charges, refunds, and credits.

(d) Procedures for termination of service.

(e) Notice of the deletion of a programming service, the changing of channel assignments, or an increase in rates.

(f) Complaint procedures and procedures for bill dispute resolution.

(g) The video provider's written acknowledgment of its obligation under Cal. Gov’t Code, Section 53055.1 to provide to new customers a notice describing the customer service standards specified above in subsections (a) through (f) at the time of installation or when service is initiated. The notice must also include, in addition to all of the information described above in subsections (a) through (f), all of the following:

1. A listing of the services offered by the video provider that clearly describes all levels of service and the rates for each level of service.

2. The telephone number or numbers through which customers may subscribe to, change, or terminate service, request customer service, or seek general or billing information.

3. A description of the rights and remedies that the video provider may make available to its customers if the video provider does not materially meet its customer service standards.

(h) The video provider's written commitment to distribute annually to its employees and customers, and to the city, a notice describing the customer service standards specified above in subsections (a) through (f). This annual notice must include the report of the video provider on its performance in meeting its customer service standards, as required by Cal. Gov’t Code, Section 53055.2.

(i) Subject to the written notice and cure provisions of Cal. Gov’t Code, Section 53056(b), a video provider that fails to distribute the annual notice required by Cal. Gov’t Code, Section 53055.1 will be assessed a monetary penalty in the sum of $500 for each year in which the annual notice is not distributed to all of its customers.

(4) Unless a video provider is exempt under federal law from its payment, a registration fee in an amount established by resolution of the city council to cover the reasonable costs incurred by the city in reviewing and processing the registration form.

(5) In addition to the registration fee specified above in subsection (4), the written commitment of the video provider to pay to the city, when due, all costs and expenses reasonably incurred by the city in resolving any disputes between the video provider and its subscribers, which dispute resolution is mandated by Cal. Gov’t Code, Section 53088.2(o).

(C) The customer service obligations imposed upon video providers by the Video Customer Service Act (Cal. Gov’t Code, Section 53088 et seq.) consist of the following:

(1) Every video provider must render reasonably efficient service, make repairs promptly, and interrupt service only as necessary.

(2) All video provider personnel contacting subscribers or potential subscribers outside the office of the provider must be clearly identified as associated with the video provider.

(3) At the time of installation, and annually thereafter, all video providers must provide to all customers a written notice of the programming offered, the prices for that programming, the provider's installation and customer service policies, and the name, address, and telephone number of the city's office that is designated for receiving complaints.

(4) All video providers must have knowledgeable, qualified company representatives available to respond to customer telephone inquiries Monday through Friday, excluding holidays, during normal business hours.

(5) All video providers must provide to customers a toll-free or local telephone number for installation, service, and complaint calls. These calls must be answered promptly by the video providers.

(6) All video providers must render bills that are accurate and understandable.

(7) All video providers must respond promptly to a complete outage in a customer's service. The response must occur within 24 hours of the reporting of that outage to the provider, except in those situations beyond the reasonable control of the video provider. A video provider will be deemed to respond to a complete outage when a company representative arrives at the outage location within 24 hours and begins to resolve the problem.

(8) All video providers must provide a minimum of 30 days' written notice before increasing rates or deleting channels. All video providers must make every reasonable effort to submit the notice to the city manager in advance of its distribution to customers.

(9) The 30-day notice is waived if the increases in rates or deletion of channels are outside the control of the video provider. In those cases, the video provider must make reasonable efforts to provide customers with as much notice as possible.

(10) All video providers must allow every residential customer who pays his/her bill directly to the video provider at least 15 days from the date the bill for services is mailed to the customer, to pay the listed charges unless otherwise agreed to pursuant to a residential rental agreement establishing tenancy. Customer payments must be posted promptly.

(11) No video provider may terminate residential service for nonpayment of a delinquent account unless the video provider furnishes notice of the delinquency and impending termination at least 15 days prior to the proposed termination. The notice must be mailed, postage prepaid, to the customer to whom the service is billed. The notice must not be mailed until the 16th day after the date the bill for services was mailed to the customer. The notice of delinquency and impending termination may be part of a billing statement. No video provider may assess a late fee any earlier than the twenty-second day after the bill for service has been mailed.

(12) Every notice of termination of service pursuant to subsections (10) and (11) must include all of the following information:

(a) The name and address of the customer whose account is delinquent.

(b) The amount of the delinquency.

(c) The date by which payment is required in order to avoid termination of service.

(d) The telephone number of a representative of the video provider who can provide additional information and handle complaints or initiate an investigation concerning the service and charges in question.

(e) Service may only be terminated on days in which the customer can reach a representative of the video provider either in person or by telephone.

(13) Any service terminated without good cause must be restored without charge for the service restoration. Good cause includes, but is not limited to, failure to pay, payment by check for which there are insufficient funds, theft of service, abuse of equipment or system personnel, or other similar subscriber actions.

(14) All video providers must issue requested refund checks promptly, but no later than 45 days following the resolution of any dispute, and if service is terminated, following the return of the equipment supplied by the video provider.

(15) All video providers must issue security or customer deposit refund checks promptly, but no later than 45 days following the termination of service, less any deductions permitted by law.

(16) Video providers must not disclose the name and address of a subscriber for commercial gain to be used in mailing lists or for other commercial purposes not reasonably related to the conduct of the businesses of the video providers or its affiliates, unless the video providers have provided to the subscriber a notice, separate or included in any other customer notice, that clearly and conspicuously describes the subscriber's ability to prohibit that disclosure. Video providers must provide an address and telephone number for a local subscriber to use without toll charge to prevent disclosure of the subscriber's name and address.

(D) As authorized by Cal. Gov’t Code, Section 53088(q), the following schedule of penalties is adopted. These penalties may be imposed for the material breach by a video provider of the consumer protection and service standards that are set forth above, provided that the breach is within the reasonable control of the video provider. These penalties are in addition to any other remedies authorized by this chapter or by any other law, and the city manager has discretion to elect the remedy that applies. The imposition of penalties authorized by this section (D) will not prevent the city or any other affected party from exercising any other remedy to the extent permitted by law, including but not limited to any judicial remedy.

(1) The following is the schedule of penalties for material breach of the consumer protection and service standards.

(a) For a first material breach: The maximum penalty is $200 for each day of material breach, but not to exceed a cumulative total of $600 for each occurrence of material breach, irrespective of the number of customers affected.

(b) For a second material breach of the same nature for which a monetary penalty was previously assessed within the preceding 12-month period: The maximum penalty is $400 per day, not to exceed a cumulative total of $1,200 for each occurrence of the material breach, irrespective of the number of customers affected.

(c) For a third or further material breach of the same nature for which a monetary penalty was previously assessed within the preceding 12-month period: The maximum penalty is $1,000 per day, not to exceed a cumulative total of $3,000 for each occurrence of the material breach, irrespective of the number of customers affected.

(d) The maximum penalties referenced above may be increased by any additional amount authorized by State law.

(2) The imposition of penalties in accordance with the provisions of subsection (1) above does not preclude any affected party from pursuing any judicial remedy that is available to that party.

(3) (a) The city manager is authorized to administer section 23-41(D). Decisions by the city manager to assess penalties against a video provider must be in writing and must contain findings supporting the decisions. Decisions by the city manager are final.

(b) If the video provider or any interested person is aggrieved by a decision of the city manager, the aggrieved party may appeal that decision in writing to the city council. The appeal letter must be accompanied by a fee of $1,500 for processing the appeal. The city council may affirm, modify, or reverse the decision of the city manager. The procedures governing the appeal shall be those pertaining to appeal of decisions of the Planning Commission.

(c) The imposition of monetary penalties under subsection (1) above is subject to the following requirements and limitations:

1. The City must give the video provider written notice of any alleged material breach and must allow the video provider at least 30 days from receipt of that notice to remedy the breach.

2. For the purpose of assessing monetary penalties, a material breach will be deemed to have occurred for each day following the expiration of the period for cure specified in subsection 1. above that the material breach has not been remedied by the video provider, irrespective of the number of customers affected.

(Ord. No. 2650)

Article V of Chapter 16 (section 16-485 et seq.) of the Oxnard City Code sets forth the regulatory requirements that apply to telephone corporations and other utility service providers with regard to the placement and construction of various categories of antennas, including wireless communications antenna facilities, that are commonly used in transmitting or receiving communications services.

(Ord. No. 2650)

(A) The city council finds and determines as follows:

(1) The federal Telecommunications Act of 1996 preempts and declares invalid all State rules that restrict entry or limit competition in both local and long-distance telephone service.

(2) The California Public Utilities Commission ("CPUC") is primarily responsible for the implementation of local telephone competition. The CPUC issues certificates of public convenience and necessity to new entrants that are qualified to provide competitive local telephone exchange services and related telecommunications service, whether using their own facilities or the facilities or services provided by other authorized telephone corporations.

(3) Section 234(a) of the Cal. Pub. Util. Code defines a "telephone corporation" as "every corporation or person owning, controlling, operating, or managing any telephone line for compensation within this state."

(4) Section 616 of the Cal. Pub. Util. Code provides that a telephone corporation "may condemn any property necessary for the construction and maintenance of its telephone line."

(5) Section 2902 of the Cal. Pub. Util. Code authorizes municipal corporations to retain their powers of control to supervise and regulate the relationships between a public utility and the general public in matters affecting the health, convenience, and safety of the general public, including matters such as the use and repair of public streets by any public utility and the location of the poles, wires, mains, or conduits of any public utility on, under, or above any public streets.

(6) Section 7901 of the Cal. Pub. Util. Code authorizes telephone and telegraph corporations to construct telephone or telegraph lines along and upon any public road or highway, along or across any of the waters or lands within this State, and to erect poles, posts, piers, or abutments for supporting the insulators, wires, and other necessary fixtures of their lines, in such manner and at such points as not to incommode the public use of the road or highway or interrupt the navigation of the waters.

(7) Section 7901.1 of the Cal. Pub. Util. Code confirms the right of municipalities to exercise reasonable control as to the time, place, and manner in which roads, highways, and waterways are accessed, which control must be applied to all entities in an equivalent manner. Nothing in Section 7901.1 adds to or subtracts from any existing authority that municipalities have with respect to the imposition of fees.

(8) Section 50030 of the Cal. Gov’t Code provides that any permit fee imposed by a city for the placement, installation, repair, or upgrading of telecommunications facilities, such as lines, poles, or antennas, by a telephone corporation that has obtained all required authorizations from the CPUC and the FCC to provide telecommunications services, must not exceed the reasonable costs of providing the service for which the fee is charged, and must not be levied for general revenue purposes.

(B) In recognition of and in compliance with the statutory authorizations and requirements set forth above in subsection (A), the following regulatory provisions are applicable to a telephone corporation that desires to provide telecommunications service by means of facilities that are proposed to be constructed within the city's public rights-of-way:

(1) The telephone corporation must apply for and obtain, as may be applicable, an excavation permit, an encroachment permit, building permit or other permit required by this Code ("construction permit"), and comply with all city ordinances, resolutions, and construction standards in connection with construction or repair in the public right of way.

(2) In addition to any other information required by this Code in connection with an application for a construction permit, a telephone corporation must submit to the city manager, upon request, the following supplemental information:

(a) A copy of the certificate of public convenience and necessity issued by the CPUC to the applicant, and a copy of the CPUC decision that authorizes the applicant to provide the telecommunications service for which the facilities are proposed to be constructed in the city's public rights-of-way. Any applicant that, prior to 1996, provided telecommunications service under administratively equivalent documentation issued by the CPUC may submit copies of that documentation in lieu of a certificate of public convenience and necessity.

(b) If the applicant has obtained from the CPUC a certificate of public convenience and necessity to operate as a "competitive local carrier," the following additional requirements are applicable:

1. As required by Decision No. 95-12-057 of the CPUC, the applicant must establish that it has timely filed with the city a quarterly report that describes the type of construction and the location of each construction project proposed to be undertaken in the city during the calendar quarter in which the application is filed, so that the city can coordinate multiple projects, as may be necessary.

2. If the applicant's proposed construction project will extend beyond the utility rights-of-way into undisturbed areas or other rights-of-way, the applicant must establish that it has filed a petition with the CPUC to amend its certificate of public convenience and necessity and that the proposed construction project has been subjected to a full-scale environmental analysis by the CPUC, as required by Decision No. 95-12-057 of the CPUC.

3. The applicant must inform the city whether its proposed construction project will be subject to any of the mitigation measures specified in the Negative Declaration ["Competitive Local Carriers (CLCs) Projects for Local Exchange Communication Service throughout California"] or to the Mitigation Monitoring Plan adopted in connection with Decision No. 95-12-057 of the CPUC.

4. The city's issuance of a construction permit will be conditioned upon the applicant's compliance with all applicable mitigation measures and monitoring requirements imposed by the CPUC upon telephone corporations that are designated as "competitive local carriers."

(C) The city reserves all rights that it now possesses or may later acquire with respect to the regulation of any cable or telecommunications service that is provided, or proposed to be provided, by a telephone corporation. These reserved rights may relate, without limitation, to the imposition of reasonable conditions in addition to or different from those set forth in this section, the exaction of a fee or other form of consideration or compensation for use of public rights-of-way, and related matters; provided, however, that such regulatory rights and authority must be consistent with federal and State law that is applicable to cable or telecommunications services provided by telephone corporations.

(D) The city council finds and determines that numerous and repetitive excavations in the public rights-of-way diminish the useful life of the surface pavement and generally cause adverse negative impacts for local residents, local businesses, and vehicular and pedestrian traffic. The city council further finds and determines that the utility substructure in the public rights-of-way is subject to potential adverse negative impacts as a consequence of new economic and regulatory policies that foster increased competition between various utility service providers, including telephone corporations.

(E) In order to mitigate these potential adverse negative impacts, all utility service providers, including telephone corporations, and any other person or entity desiring to make an excavation in the public right of way shall comply with all city ordinances, resolutions, and construction standards governing excavations in the public right-of-way.

(F) The city council further finds and determines that the installation in the public rights-of-way of numerous aboveground facilities by utility service providers, including telephone corporations, may create safety hazards and adverse visual impacts. All such providers are subject to all city ordinances, resolutions and construction standards pertaining to any such installation.

(Ord. No. 2650)

(A) PEG fee established.

(1) In accord with Cal. Pub. Util. Code Section 5870(n), any grantee of a franchise, or state franchisee, must pay to the city a fee for the support of PEG channel facilities.

(2) The amount of the PEG Fee established by this section is 1% of gross revenues, as defined in this code, the applicable city-issued franchise, or Cal. Pub. Util. Code Section 5860(d).

(3) Commencing from and after April 10, 2018, the city’s PEG fee set forth in this section shall continue to apply to any new or existing franchisee operating in the city and shall automatically be reauthorized upon the expiration of any existing or future state video franchise(s) held by any state- franchised video service provider operating within the city. This fee shall so renew until such time that the city council takes formal affirmative action to cease the renewals.

(B) Franchise fee established.

(1) For any state franchisee, the amount of the franchise fee imposed by Cal. Pub. Util. Code Section 5840(q) shall be 5% of gross revenues, as defined in Cal. Pub. Util. Code Section 5860(d).

(2) In accordance with Cal. Pub. Util. Code Section 5860(a), the City Manager will prepare and provide to state franchisees all necessary documentation supporting the percentage franchise fee paid by the incumbent cable operator serving the city.

(C) Notices from state franchisees. Any notice a state franchisee is required to deliver to the city by Cal. Pub. Util. Code Section 5840(m) must be delivered to the City Manager.

(D) Nothing in this chapter is intended to limit or restrict in any way the imposition of any existing or future generally applicable, nondiscriminatory, competitively neutral tax, fee, or charge to a state franchisee, city franchisee or the services the franchisees provide.

(E) Customer service provisions for state franchisees.

(1) All state franchisees must comply with all applicable state and federal laws and regulations regarding customer service and customer protection.

(2) The City Manager may review the performance of state franchisees for compliance with the customer service requirements specified in Cal. Pub. Util. Code Section 5900 (the “Customer Service Standards”).

(3) If the city believes a material breach of the customer service standards has occurred, the City Manager must give the state franchisee written notice of any alleged material breach(es). The state franchisee must remedy the specified material breach(es) no later than 30 days from receipt of the notice.

(4) If the state franchisee fails to remedy the specified material breach(es) within 30 days. the City Manager may impose monetary penalties on the following schedule:

(a) Up to $500 for each day of each material breach, not to exceed $1,500 for each occurrence of a material breach.

(b) For a second material breach of the same nature within 12 months, up to $1,000 for each day of each material breach, not to exceed $3,000 for each occurrence of the material breach.

(c) For a third or further material breach of the same nature within 12 months, up to $1,000 for each day of each material breach, not to exceed $3,000 for each occurrence of the material breach.

(5) Any monetary penalty imposed under this section may be appealed by the state franchisee to the City Council. Appeals must be received in writing by the City Clerk within 60 days of imposition of the penalty. The state franchisee may present any relevant written or oral evidence of its choice. The City Council may uphold or reverse, in whole or in part, the imposition of the monetary penalties.

(F) The City Manager shall ensure PEG transmissions, content, and programming provided by the city to a state franchisee is in a format compatible with the state franchisee's system. In the alternative, the transmissions, content, and programming may be provided in a industry standard format, in accord with Cal. Pub. Util. Code Section 5870(g)(1).

(G) For the duration of any city-issued franchise, if that franchisee has existing unsatisfied obligations under the franchise to pay to the city any cash payments for the ongoing costs of public, educational, and government access channel facilities or institutional networks, the fee payable by each city and state franchisee shall be the franchisee's pro rata per subscriber share of the cash payment required to be paid by the city franchisee to the city for the costs of PEG channel facilities.

(1) Within 45 days of receipt of the notice required by Cal. Pub. Util. Code Section 5840(n), each city and state franchisee must provide to the City Manager a written statement of the number of its subscribers within the franchisee's service area in the city.

(2) Within 45 days of receipt all franchisee subscriber number statements, the City Manager must calculate the division of the cash payments among all city and state franchisees, and provide written notice to each franchisee of the franchisee's share of the cash payment. This amount may expressed as a percentage of gross revenue or as an amount per subscriber, per month, or otherwise.

(H) Interconnection. To properly serve the city's interest in PEG programming, each state franchisee and city franchisee must comply with the PEG system interconnection requirements of Cal. Pub. Util. Code Section 5870. The City Manager, or his or her designee, may make any interconnection determinations of the city under Cal. Pub. Util. Code Section 5870, including requiring interconnection where the city franchisee and state franchisee fail to reach a mutually acceptable interconnection agreement.

(Ord. No. 2782, 2939, 2940)