Pinole Municipal Code Art. XVI State Video Service Franchises

A. Purpose. This article is intended to be applicable to state franchise holders who have been awarded a state video franchise under the California Public Utilities Code Section 5800 et seq. (the Digital Infrastructure and Video Competition Act of 2006 [“DIVCA”]), to serve any location(s) within the incorporated boundaries of the city. It is the purpose of this article to implement within the incorporated boundaries of the city the provisions of DIVCA and the rules of the California Public Utilities Commission promulgated there under that are applicable to a “local franchising entity” or a “local entity” as defined in DIVCA.

B. Rights reserved.

1. The rights reserved to the city under this article are in addition to all other rights of the city, whether reserved by this article 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.

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

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

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

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

3. Except as otherwise provided in DIVCA, a state franchise shall not relieve a state franchise holder of its duty to comply with all laws, including the ordinances, resolutions, rules, regulations, and other laws of the city, and every state franchise holder shall comply with the same.

4. No permit issued by the city to a state franchise holder is itself a franchise, nor shall any permit create a vested right that would prohibit the city from revoking or amending the permit.

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

(Ord. 2009-04 § 2 (part), 2009)

A. Definitions generally -- interpretation of language. For purposes of this article, the following terms, phrases, words, and their derivations shall have the meaning given in this section. Unless otherwise expressly stated, words not defined in this article shall be given the meaning set forth in Section 13.18.040 of the Pinole Municipal Code as may be amended from time to time, unless the context indicates otherwise. Words not defined in this Section 13.18.570 or Section 13.18.040 shall have the same meaning as established in: (1) DIVCA, and if not defined therein, (2) California Public Utilities Commission rules implementing DIVCA, and if not defined therein, (3) Title VI of Title 47 of the Communications Act of 1934, as amended, 47 USC § 521 et seq., and if not defined therein (4) 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 word “shall” and “will” are always mandatory. References to governmental entities (whether persons or entities) refer to those entities or their successors in authority. If specific provisions of law referred to herein 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.

1. ACCESS, PEG ACCESS, PEG USE, or PEG. 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 the city and its designated access providers, to acquire, create, and distribute programming not under a state franchise holder's editorial control.

a. PUBLIC ACCESS or PUBLIC USE. 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;

b. EDUCATION ACCESS or EDUCATION USE. Access where accredited educational institutions are the primary or designated programmers or users having editorial control over their communications;

c. GOVERNMENT ACCESS or GOVERNMENT USE. Access where government institutions or their designees are the primary or designated programmers or users having editorial control over their communications.

2. GROSS REVENUES. All revenues actually received by the holder of a state franchise that are derived from the operation of the holder's network to provide cable service or video service within the incorporated areas of the city, subject to the specifications of California Public Utilities Code section 5860.

3. STATE FRANCHISE HOLDER. 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 limits of the city.

(Ord. 2009-04 § 2 (part), 2009)

A. State franchise fees. Any state franchise holder operating within the incorporated areas of the city shall pay to the city a state franchise fee equal to five percent (5%) of gross revenues that may be subject to a franchise fee under DIVCA.

B. Payment of franchise fees. The state franchise fee required pursuant to this Section 13.18.580 shall each be paid quarterly, in a manner consistent with California Public Utilities Code 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 made 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.

C. Late payments. In the event a state franchise holder fails to make payments required by this section on or before the due dates specified in this section, the city shall impose a late charge at the rate per year equal to the highest prime lending rate during the period of delinquency, plus one percent (1%).

D. Lease of city-owned network. In the event a state franchise holder leases access to a network owned by the city, the city may set a franchise fee for access to the city-owned network separate and apart from the franchise fee charged to state franchise holders pursuant to this Section 13.18.580, which fee shall otherwise be payable in accordance with the procedures established by this section.

(Ord. 2009-04 § 2 (part), 2009)

A. Customer service standards. A state franchise holder shall comply with Sections 53055, 53055.2, 53055.2 and 53088.2 of the California Government Code; the FCC customer service and notice standards set forth in Sections 76.309, 76.1602, 76.1603, and 76.1619 of Title 47 of the Code of Federal Regulations; Section 637.5 of the California Penal Code; the privacy standards of Section 551 of Title 47 of the United States Code; and all other applicable state and federal customer service and consumer protection standards pertaining to the provision of video service, include any such standards hereafter adopted. In case of a conflict, the stricter standard shall apply. All customer service and consumer protection standards under this paragraph shall be interpreted and applied to accommodate newer or different technologies while meeting or exceeding the goals of the standards.

B. Penalties for violations of standards. The city shall enforce the compliance of state franchise holders with respect to the state and federal customer service and consumer protection standards set forth in subsection A. The city will provide a state franchise holder with a written notice of any material breaches of applicable customer service or consumer protection standards, and will allow the state franchise holder thirty (30) days from the receipt of the notice to remedy the specified material breach. Material breaches not remedied within the thirty (30)-day time period will be subject to the following penalties to be imposed by the city:

1. For the first occurrence of a material breach, a fine of five hundred dollars ($500) may be imposed for each day the violation remains in effect, not to exceed one thousand, five hundred dollars ($1,500) for each violation.

2. For a second material breach of the same nature within twelve (12) months, a fine of one thousand dollars ($1,000) may be imposed for each day the violation remains in effect, not to exceed three thousand dollars ($3,000) for each violation.

3. For a third material breach of the same nature within twelve (12) months, a fine of two thousand, five hundred dollars ($2,500) may be imposed for each day the violation remains in effect, not to exceed seven thousand, five hundred dollars ($7,500) for each violation.

C. Any penalties imposed by the city shall be imposed in a manner consistent with California Public Utilities Code Section 5900.

(Ord. 2009-04 § 2 (part), 2009)

A. Except as expressly provided in this article or as otherwise provided by DIVCA, all provisions of the City of Pinole Municipal Code Sections 13.18.280 (“System Construction”), 13.18.320 (“Hold Harmless”) and 13.18.330 (“Insurance”) 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.

B. Permits. Prior to commencing any work for which a permit is required by subsection A, a state franchise holder shall apply for and obtain a permit in accordance with the provisions of said subsection 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).

C. The City Manager shall either approve or deny a state franchise holder's application for any permit required under subsection A within sixty (60) days of receiving a completed permit application from the state franchise holder.

D. If the City Manager denies a state franchise holder's application for a permit, the City Manager shall, at the time of notifying the applicant of denial, furnish to the applicant a detailed explanation of the reason or reasons for the denial.

E. A state franchise holder that has been denied a permit by final decision of the City Manager may appeal the denial to the City Council. Upon receiving a notice of appeal, the City Council shall take one (1) of the following actions:

• 1. Affirm the action of the City Manager without any further hearing; or
• 2. Refer the matter back to the City Manager for further review with or without instructions; or
• 3. Set the matter for a de novo hearing before the City Council.

F. In rendering its decision on the appeal, the City Council shall not hear or consider any argument or evidence of any kind other than the record of the matter received from the City Manager unless the City Council is itself conducting a public hearing on the matter.

(Ord. 2009-04 § 2 (part), 2009)

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.

(Ord. 2009-04 § 2 (part), 2009)

A. PEG channel capacity.

1. A state franchise holder shall designate a sufficient amount of capacity on its network to allow the provision of at least two (2) PEG channels to satisfy the requirement of state law, within the time limits specified by state law.

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

B. PEG support fee.

1. Amount. Any state franchise holder shall pay to the city -- or if directed by the city, to the city's designated PEG provider -- a PEG support fee equal to two and twelve hundredths percent (2.12%) of gross revenues, an amount equivalent to the level of PEG support funding remitted by the incumbent cable operator to the city during the calendar quarter of October 1, 2006 to December 31, 2006.

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

3. 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 made shall be accompanied by a summary, detailing how the PEG support fee was calculated.

4. Each state franchise holder shall furnish, on an annual basis, a statement within ninety (90) days of the close of the calendar year, either audited and certified by an independent certified public accountant or certified by an officer of the state franchise holder, reflecting the total amount of gross revenues, as defined in Public Utilities Code Section 5860, for the preceding calendar year, and all payments, deductions and computations used to determine the amount of the remittances required by subdivision A of this section during the preceding calendar year. The City Manager may establish, and from time to time revise, such additional reporting requirements as are necessary to ensure that the basis for the calculation of the amount of remittances are adequately explained and documented, and each state franchise holder shall comply with such additional reporting requirements provided that each franchise holder shall have first been provided written notice of such requirements at least fifteen (15) days prior to the beginning of the calendar year.

5. If 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 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.

6. Notwithstanding subdivision (n) of Public Utilities Code Section 5870, upon the expiration of any state franchise, without any action of the City Council, subsection B. of this section shall be deemed to have been automatically reauthorized unless the state franchise holder has given the City Council and City Manager written notice sixty (60) days prior to the expiration of its state franchise that this section will expire pursuant to the terms of subdivision (n) of Public Utilities Code Section 5870.

C. PEG carriage and interconnection.

1. As set forth in Sections 5870(b) and 5870(g)(3) of the California Public Utilities Code, state franchise holders shall ensure that all PEG channels are receivable by all subscribers, whether they receive digital or analog service, or a combination thereof, without the need for any equipment other than that needed to receive the lowest cost tier of service. PEG access capacity provided by a state franchise holder shall be of similar quality and functionality to that offered by commercial channels (unless the PEG signal is provided to the state franchise holder at a lower quality or with less functionality), shall be capable of carrying a National Television System Committee (NTSC) television signal, and shall be carried on the state franchise holder's lowest cost tier of service. To the extent feasible, the PEG channels shall not be separated numerically from other channels carried on the lowest cost tier of service and the channel numbers for the PEG channels shall be the same channel numbers used by any incumbent cable operator, unless prohibited by federal law. After the initial designation of the PEG channel numbers, the channel numbers shall not be changed without the agreement of the City unless federal law requires the change.

2. As set forth in Section 5870(h) of the California Public Utilities Code, the holder of a state franchise and an incumbent cable operator shall negotiate in good faith to interconnect their networks for the purpose of providing PEG programming. If a state franchise holder and an incumbent cable operator cannot reach a mutually acceptable interconnection agreement for PEG carriage, the city shall require the incumbent cable operator to allow the 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, the state franchise holder shall make interconnection available to each PEG channel originator programming a channel in the city and shall provide the facilities necessary for the interconnection. The cost of any interconnection shall be borne by the state franchise holder requesting the interconnection unless otherwise agreed to by the parties.

(Ord. 2017-10 § 2, 2017; Ord. 2009-04 § 2 (part), 2009)

A. Each state franchise holder or applicant for a state franchise shall file with the city a copy of all applications or notices that the state franchise holder or applicant is required to file with the California Public Utilities Commission.

B. Unless otherwise specified in this section, all notices or other documentation that a state franchise holder is required to provide to the city under this article or the California Public Utilities Code shall be provided to both the City Manager and the city staff person in charge of cable and telecommunications, or their successors or designees.

(Ord. 2009-04 § 2 (part), 2009)

A. In accordance with Public Utilities Code Section 5900 or its successor section, the City Council may from time to time adopt, by resolution, a schedule of penalties for any material breach, as that term is defined in subdivision (j) of Public Utilities Code Section 5900 or its successor section, by a holder of a state franchise.

B. The City Manager shall have the authority to assess penalties for any material breach by a holder of a state franchise. Prior to assessing penalties for a material breach, the City Manager shall first have provided the state franchise holder with written notice of any alleged material breach of the customer service provisions set forth in California Public Utilities Code Section 5900 and shall allow the state franchise holder at least thirty (30) days from receipt of the notice to remedy the specified material breach. If the material breach has not been remedied upon the expiration of this thirty (30) day period, the City Manager may commence the assessment of penalties. In the event that a specified material breach has not been remedied following the City Manager's assessment of penalties in the maximum amount permitted per occurrence, the City Manager, after providing a subsequent written notice of the alleged material breach, may treat the continuing occurrence as a subsequent material breach.

C. The city shall submit one half of any penalty amounts it receives to the Digital Divide Account established by California Public Utilities Code Section 280.5.

D. No monetary penalties shall be assessed for a material breach if it is out of the reasonable control of the state franchise holder.

(Ord. 2009-04 § 2 (part), 2009)

The City Manager is hereby authorized to examine, or cause to be examined, the business records of the holder of the state franchise in accordance with subdivision (i) of Public Utilities Code Section 5860.

(Ord. 2009-04 § 2 (part), 2009)