Article 4

Other Video and Telecommunications Services and Systems

The term "cable system," as defined in federal law and as set forth in Section 14.01.170 of this chapter, does not include a facility that serves subscribers without using any public rights-ofway. Consequently, the categories of multichannel video programming distributors identified below are not deemed to be "cable systems" and are therefore exempt from the city's franchise, lease and license requirements and from certain other local regulatory provisions authorized by federal law, provided that their distribution or transmission facilities do not involve the use of the city's public rights-of-way.

• A. 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.

• B. 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.

• C. 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. Local regulation of direct-to-home satellite services is further proscribed by the following federal statutory provisions:

  1. 47 U.S.C. Section 303(v) confers upon the FCC exclusive jurisdiction to regulate the provision of direct-to-home satellite services.

  2. Section 602 of the Communications Act 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. 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. 946 § 2, 2000)

• A. Unless the customer protection and service obligations of a video provider, as that term is defined in Section 14.01.170 of this chapter, are specified in a franchise, license, lease or similar written agreement with the city, a video provider must comply with all applicable provisions of the following state statutes:

  1. The Cable Television and Video Customer Service and Information Act (Government Code Sections 53054, et seq.)

  2. The Video Customer Service Act (Government Code Sections 53088, et seq.).

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City of Palm Desert, CA

FRANCHISES

§ 14.01.140

§ 14.01.140

• 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 and are not required under applicable law to operate under a franchise, license, lease or similar written agreement with the city, must register 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 Government 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, a change in channel assignments or an increase in rates;

     • f. Complaint procedures and procedures for bill dispute resolution;

     • g. The video provider's written acknowledgement of its obligation under Government Code Section 53055.1 to provide to new customers a notice describing the customer service standards specified in subsections (B)(3)(a) through (f) of this section at the time of installation or when service is initiated. The notice must also include, in addition to all of the information described in subsections (B)(3)(a) through (f) of this section, all of the following:

       • i. 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,

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

       • iii. 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 in subsections (B)(3)(a) through (f) of this section. This annual notice must include the report of the video provider on its performance in meeting its customer service standards, as required by Government Code Section 53055.2.

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City of Palm Desert, CA

PALM DESERT CODE

§ 14.01.140

§ 14.01.140

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 in subsection (B)(4) of this section, 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 Government Code Section 53088.2(o).

• C. The customer service obligations imposed upon video providers by the Video Customer Service Act (Government Code Sections 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 twenty-four 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 twenty-four hours and begins to resolve the problem.

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

  9. All video providers must allow every residential customer who pays his or her bill directly to the video provider at least fifteen days from the date the bill for services is mailed to the customer, to pay the listed charges unless otherwise agreed to pursuant

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City of Palm Desert, CA

FRANCHISES

§ 14.01.140

§ 14.01.140

to a residential rental agreement establishing tenancy. Customer payments must be posted promptly. 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 fifteen days prior to the proposed termination. The notice must be mailed, postage prepaid, to the customer to whom the service is billed. Notice must not be mailed until the sixteenth 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.

10. Every notice of termination of service pursuant to subsection (C)(9) of this section 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. 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.

11. 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.

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

13. All video providers must issue security or customer deposit refund checks promptly, but no later than forty-five days following the termination of service, less any deductions permitted by law.

14. 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 their 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 Government 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 in subsection C of this section, 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

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City of Palm Desert, CA § 14.01.140

PALM DESERT CODE

§ 14.01.140

other law and the city has discretion to elect the remedy that it will apply. The imposition of penalties authorized by this subsection 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 as provided in subsection (D)(2) of this section.

1. Schedule of Penalties.

   • a. For a first material breach: the maximum penalty is two hundred dollars for each day of material breach, but not to exceed a cumulative total of six hundred dollars 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 twelve-month period: the maximum penalty is four hundred dollars per day, not to exceed a cumulative total of one thousand two hundred dollars 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 twelve-month period: the maximum penalty is one thousand dollars per day, not to exceed a cumulative total of three thousand dollars for each occurrence of the material breach, irrespective of the number of customers affected.

• d. For the failure of a video provider to distribute the annual notice required by Government Code 53055.1: the maximum penalty is five hundred dollars for each year in which the notice is not distributed as required by state statute.

  • e. The maximum penalties referenced above may be increased by any additional amount authorized by state law.

2. Judicial Remedies Not Affected. The imposition of penalties in accordance with the provisions of subsection (D)(1) of this section does not preclude any affected party from pursuing any judicial remedy that is available to that party.

• Administration, Notice and Appeal.

• a. The city manager or the city manager's designee is authorized to administer this subsection. 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, unless appealed to the city council.

• b. If the video provider or any interested person is aggrieved by a decision of the city manager, the aggrieved party may, within ten days of the written decision, appeal that decision in writing to the city council. The appeal letter must be accompanied by the fee established by the city council for processing the appeal. The city council may affirm, modify or reverse the decision of the city manager.

• c. The imposition of monetary penalties under subsection (D)(1) of this section is subject to the following requirements and limitations:

  • i. The city must give the video provider written notice of any alleged material breach and must allow the video provider at least thirty days from

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City of Palm Desert, CA

FRANCHISES

§ 14.01.140

§ 14.01.160

receipt of that notice to remedy the breach.

• ii. 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 (D)(3)(c)(i) of this section, that the material breach has not been remedied by the video provider, irrespective of the number of customers affected.

• (Ord. 946 § 2, 2000)

Chapter 25.104 of this code sets forth the city's regulatory requirements relating to the siting and construction of commercial communication towers and antennas that are commonly used in providing or receiving video and telecommunications services. (Ord. 946 § 2, 2000)

• 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, and it 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. Section234(a) of the California Public Utilities Code defines a "telephone corporation" as "every corporation or person owning, controlling, operating or managing any telephone line for compensation within this state."

  4. Section616 of the California Public Utilities Code provides that a telephone corporation "may condemn any property necessary for the construction and maintenance of its telephone line."

  5. Section2902 of the California Public Utilities 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. Section7901 of the California Public Utilities 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

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City of Palm Desert, CA § 14.01.160

PALM DESERT CODE

§ 14.01.160

waters.

7. Section7901.1 of the California Public Utilities 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 and may involve the imposition of fees.

8. Section50030 of the California Government 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 in subsection A of this section, 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 or a building permit ("ministerial permit").

  2. In addition to the information required by this code in connection with an application for a ministerial permit, a telephone corporation must submit to the city 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.

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

       • i. As required by Decision No. 95-12-057 of the CPUC, the applicant must establish that it has filed with the city in a timely manner 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, which information is sufficient to enable the city to coordinate multiple projects, as may be necessary.

       • ii. 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.

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City of Palm Desert, CA

FRANCHISES

§ 14.01.160

§ 14.01.160

• iii. 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. The city's issuance of a ministerial 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. In recognition of the fact that numerous excavations in the public rights-of-way diminish the useful life of the surface pavement and for the purpose of mitigating the adverse impacts of numerous excavations on the quality and longevity of public street maintenance within the city, the following policies and procedures are adopted:

  1. The city manager is directed to ensure that all public utilities, including telephone corporations, comply with all local design, construction, maintenance and safety standards that are contained within, or are related to, a ministerial permit that authorizes the construction of facilities within the public rights-of-way.

2. The city manager is directed to coordinate the construction and installation of facilities by public utilities, including telephone corporations, in order to minimize the number of excavations in the public rights-of-way. In this regard, based upon projected plans for street construction or renovation projects, the city manager is authorized to establish on a quarterly basis one or more construction time periods or "windows" for the installation of facilities within the public rights-of-way. Telephone corporations and other public utilities that submit applications for ministerial permits to construct facilities after a predetermined date may be required to delay such construction until the next quarterly "window" that is established by the city.

(Ord. 946 § 2, 2000)

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City of Palm Desert, CA

FRANCHISES

§ 14.01.170

§ 14.01.170