Porterville Municipal Code Art. I Regulation of State Video

SECTION:

24B-1: PURPOSE AND AUTHORITY:

This article is designed to regulate video service providers holding state video franchises and operating within the city. As of January 1, 2007, the state of California will have the sole authority to grant state video franchises pursuant to the digital infrastructure and video competition act of 2006. Pursuant to the act the city of Porterville shall receive a franchise fee and shall receive a fee for public educational and government PEG purposes from all state video franchise holders operating within the city. Additionally the city will acquire the responsibility to establish and enforce penalties consistent with state law against all state video franchise holders operating within the city for violations of customer service standards; however, the act grants all authority to adopt customer service standards to the state. The act leaves unchanged the city's authority to regulate the city's current cable franchise and the cable franchise currently in effect until such time as the cable franchisee no longer holds a city franchise or is no longer operating under a current or expired city franchise. (Ord. 1735, 11-20-2007)

24B-2: DEFINITIONS:

Unless otherwise expressly set forth in this section or elsewhere in this article, the definitions of the terms herein shall have the same meaning as defined in the California Public Utilities Code section 5830, and as otherwise defined in the digital infrastructure and video competition act of 2006, as amended. For the purposes of this chapter, the words, terms, phrases, and abbreviations have the meanings set forth below. When not inconsistent with the context, words used in the present tense include the future tense, and words in the singular include the plural number. Unless otherwise expressly stated, words, terms, phrases, and abbreviations not defined in this section either directly or by reference to state law will be given their meaning as used in title 47 of the United States Code, as amended, and, if not defined in that code, their meaning as used in title 47 of the code of federal regulations.

AFFILIATE: When used in relation to any person, another person who owns or controls, is owned or controlled by, or is under common ownership or control with, such person.

CFR: The code of federal regulations. Thus, the citation of "47 CFR 80.1" refers to title 47, part 80, section 1, of the code of federal regulations.

CABLE SYSTEM OPERATOR OR CABLE OPERATOR: Any person or group of persons:

A. Who provides cable service over a cable system and directly or through one or more affiliates owns a significant interest in that cable system; or

B. Who otherwise controls or is responsible for, through any arrangement, the management and operation of that cable system.

CITY MANAGER: The city manager of the city of Porterville, or the city manager's designee.

COMMUNICATIONS ACT: The communications act of 1934 (47 USC section 153 et seq.), as amended by the cable communications policy act of 1984, the cable television consumer protection and competition act of 1992, and the telecommunications act of 1996.

FCC OR FEDERAL COMMUNICATIONS COMMISSION: The federal administrative agency, or any lawful successor, that is authorized to regulate cable and telecommunications services and cable and telecommunications service providers on a national level.

FRANCHISE FEE: Any fee or assessment of any kind that is authorized by state or federal law to be imposed by the city on a grantee as compensation in the nature of rent for the grantee's use of the public rights of way. The term "franchise fee" does not include:

A. Any tax, fee or assessment of general applicability (including any such tax, fee, or assessment imposed on both utilities and cable operators or their services, but not including a tax, fee or assessment which is unduly discriminatory against cable operators or cable subscribers);

B. Capital costs that are required by the franchise to be incurred by a grantee for public, educational, or governmental access facilities;

C. Requirements or charges that are incidental to the award or enforcement of the franchise, including payments for bonds, security funds, letters of credit, insurance, indemnification, penalties, or liquidated damages; or

D. Any fee imposed under title 17, United States Code.

FRANCHISE SERVICE AREA OR SERVICE AREA: The entire geographical area of the city as it is now constituted, or may in the future be constituted, unless otherwise specified in the ordinance or resolution granting a franchise, or in a franchise agreement.

GROSS REVENUE: Shall be defined in accordance to California Public Utilities Code section 5860 subdivision (d).

PERSON: An individual, partnership, limited liability company, association, joint stock company, trust, corporation or governmental entity.

PUBLIC, EDUCATIONAL OR GOVERNMENT ACCESS FACILITIES, PEG ACCESS FACILITIES, OR PEG ACCESS: The total of the following:

A. Channel capacity designated for noncommercial public, educational, or government use; and

B. Facilities and equipment for the use of that channel capacity.

STREET OR PUBLIC RIGHT OF WAY: Each of the following that has been dedicated to the public and maintained under public authority or by others and is located within the city limits: streets, roadways, highways, avenues, lanes, alleys, sidewalks, easements, rights of way and similar public property that the city from time to time authorizes within the definition of a street.

SUBSCRIBER OR CUSTOMER OR CONSUMER: Any person who pays for or lawfully receives cable or video services provided by a cable operator or video services provider by means of the cable system or video system.

TELECOMMUNICATIONS: The transmission, between or among points specified by the user, of information of the user's choosing, without change in the form or content of the information as sent and received.

TELECOMMUNICATIONS EQUIPMENT: Equipment, other than customer premises equipment, used by a telecommunications service provider to provide telecommunications service, including software that is integral to that equipment.

TELECOMMUNICATIONS SERVICE: The offering of telecommunications directly to the public for a fee, or to such classes of users as to be effectively available directly to the public, regardless of the equipment or facilities that are used.

TELECOMMUNICATIONS SERVICE PROVIDER: Any provider of telecommunications service.

USC: The United States Code. Thus, the citation of "47 USC section 153" refers to title 47, section 153, of the United States Code.

VIDEO PROGRAMMING PROVIDER: Any person or group of persons who has the right under the federal copyright laws to select and to contract for the carriage of specific video programming on a cable system or an open video system.

VIDEO SERVICE PROVIDER: Any person, company, or service that provides one or more channels of video programming to a residence, including a home, multi-family dwelling complex, congregate living complex, condominium, apartment or mobile home, where some fee is paid for that service, whether directly or as included in dues or rental charges, and whether or not public rights of way are used in the delivery of that video programming. A "video provider" includes, without limitation, providers of cable television service, open video system service, master antenna television, satellite master antenna providers, direct broadcast satellite, multipoint distribution services and other providers of video programming, whatever their technology. (Ord. 1735, 11-20-2007)

24B-3: REQUIREMENTS:

A. State Video Franchise Holder Fee To The City: For any state video franchise holder operating within the boundaries of the city of Porterville there shall be a fee paid to the city equal to five percent (5%) of the gross revenue of that state video franchise holder.

B. PEG Fee: A separate fee of one percent (1%) of gross revenues shall be assessed on all state franchise holders that use the public rights of way, including all local franchisees and all holders of state franchises as consistent with state or federal law. The PEG fee shall be paid quarterly, to be received by the city not later than forty five (45) days after the close of each quarter of holder's fiscal year.

On a quarterly basis, holder shall provide the city a complete and accurate statement verified by a financial officer of holder indicating gross revenues for the past quarter, listing every revenue source, and depicting gross revenue computations.
A video service provider subject to this section may recover the amount of any fee by billing a recovery fee as a separate line item on the regular bill of each subscriber.

C. Channel Designation: All video service providers that use the public rights of way shall designate sufficient amount of capacity on its network to allow the carriage of at least three (3) public, educational, or governmental (PEG) access channels. For the purposes of this section, a PEG access channel is deemed activated if it is being utilized for PEG access programming within the city for at least eight (8) hours per day. PEG access channels shall be for the exclusive use of the city or its designees to provide public, educational, or governmental channels.

Advertising, underwriting, or sponsorship recognition may be carried on the PEG access channels for the purpose of funding PEG related activities.
The PEG access channels shall all be carried on the basic service tier of holder.
To the extent feasible, the PEG access channels shall not be separated 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.
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.
Each PEG access channel shall be capable of carrying a national television system committee (NTSC) television signal.
Requests by the city for additional channel capacity will be made in accordance to PUC section 5870.

D. 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 withhold 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.

E. 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.

F. Gross Revenue: Gross revenue, for the purpose of this section, shall have the definition set forth in California Public Utilities Code section 5860. (Ord. 1735, 11-20-2007)

24B-4: AUTHORITY TO EXAMINE BUSINESS RECORDS:

Not more than once annually, the city manager or his or her designee may examine the business records of a holder of a state video franchise to ensure compliance with section 24B-3 of this article, under the terms and conditions set forth in the act. (Ord. 1735, 11-20-2007)

24B-5: CUSTOMER SERVICE STANDARDS AND PENALTIES:

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 video service.

A. Compliance: Unless the customer protection and customer service obligations of a video provider are specified in a franchise with the city, a video provider must comply with all applicable provisions of the cable television and video customer service and information act 1 and the video customer service act 2 .

B. Registration: 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:

The video provider's name, address, and local telephone numbers.
The names of the officers of the video provider.
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 California Government Code section 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 California Government Code section 53055.1 to provide to new customers a notice describing the customer service standards specified in subsections B3a through B3f 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 B3a through B3f of this section, 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 in subsections B3a through B3f 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 California Government Code section 53055.2.

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.
In addition to the registration fee specified in subsection B4 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 California Government Code section 53088.2(o).

C. Customer Service Obligations: The customer service obligations imposed upon video providers by the video customer service act 3 consist of the following:

Every video provider must render reasonably efficient service, make repairs promptly, and interrupt service only as necessary.
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.
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.
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.
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.
All video providers must render bills that are accurate and understandable.
All video providers must respond promptly to a complete outage in a customer's service. The response must occur within twenty four (24) hours of the reporting of such 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 (24) hours and begins to resolve the problem.
All video providers must provide a minimum of thirty (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 in advance of the distribution to customers. The thirty (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.
Every video provider must allow every residential customer who pays his or her bill directly to the video provider at least fifteen (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. 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 (15) 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.
Every notice of termination of service pursuant to subsection C9 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.
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.
All video providers must issue requested refund checks promptly, but no later than forty five (45) days following the resolution of any dispute, and following the return of the equipment supplied by the video provider, if service is terminated.
All video providers must issue security or customer deposit refund checks promptly, but no later than forty five (45) days following the termination of service, less any deductions permitted by law.
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 the 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. Penalties For Noncompliance:

Purpose: The purpose of this subsection D is to authorize the imposition of monetary penalties for the violation of the customer service standards established by this section. The imposition of penalties authorized by this subsection 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 as provided in subsection D2d of this section.
Administration And Appeals:

a. Authority: The city manager or the city manager's designee is authorized to administer this subsection D. Decisions by the city manager to assess monetary penalties against the holder must be in writing and must contain findings supporting the decisions. Decisions by the city manager are final, unless appealed by the holder or aggrieved party.

b. Appeal: A state video franchise holder may appeal a penalty assessed by the city manager to the city council within thirty (30) days of the initial assessment. The city council shall hear all evidence and relevant testimony and may uphold, modify or vacate the penalty. The city council's decision on the imposition of a penalty shall be final.

c. Schedule Of Penalties: The following schedule of penalties shall apply to state franchise holders, in the event of a violation of any requirement or obligation established by applicable law:

(1) For the first occurrence of a violation, a monetary penalty of five hundred dollars ($500.00) shall be imposed for each day the violation remains in effect, not to exceed one thousand five hundred dollars ($1,500.00) for each violation.

(2) For a second violation of the same nature within twelve (12) months, a monetary penalty of one thousand dollars ($1,000.00) shall be imposed for each day the violation remains in effect, not to exceed three thousand dollars ($3,000.00) for each violation.

(3) For a third or further violation of the same nature within twelve (12) months, a monetary penalty of two thousand five hundred dollars ($2,500.00) shall be imposed for each day the violation remains in effect, not to exceed seven thousand five hundred dollars ($7,500.00) for each violation.

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

d. Judicial Remedy: This subsection does not preclude any affected party from pursuing any judicial remedy available to that party without regard to this subsection.

e. Notice Of Violation: The city must give the holder written notice of any alleged violation of the consumer service standards and allow the holder at least thirty (30) days from receipt of the notice to remedy the specified violation.

f. Assessment Of Monetary Penalties:

(1) If a violation has not been corrected or cured by holder within the time specified by the city, the monetary penalties specified in subsection D2c of this section may be assessed from the date of delivery to holder of the city's written notice of violation.

(2) In assessing monetary penalties under this subsection, the city manager or the city council, as applicable, may take into account the nature, circumstances, extent and gravity of the violation and, with respect to the holder, the degree of culpability, any history of prior violations, and such other matters as may be relevant. If warranted under the circumstances, the monetary penalty to be assessed may be less than the maximum penalty amount specified in subsection D2c of this section.

E. Additional Consumer Protection And Service Standards:

In addition to the consumer protection and service standards that are specified in subsections B3a through B3h of this section, the franchise agreement with a holder may require compliance with the following:

a. Federal statutes, and the rules, regulations, and orders of the federal communications commission, including the following:

(1) The provisions of section 76.309(c) of chapter 47 of the code of federal regulations, as it now exists or may later be amended.

(2) The provisions of section 76.630 of chapter 47 of the code of federal regulations, as it now exists or may later be amended.

(3) The provisions of section 551 of chapter 47, United States Code, as it now exists or may later be amended.

(4) The provisions of California Government Code section 53054 et seq., entitled the "cable television and video provider customer service and information act".

(5) The provisions of California Government Code section 53088 et seq., entitled the "video customer service act".

(6) The provisions of California Civil Code section 1722(b)(1)–(6) relating to service or repair transactions between cable television companies and their subscribers.

(7) The provisions of California Penal Code section 637.5 relating to subscribers' rights to privacy protection.

The city may, in its discretion, incorporate in a franchise agreement those customer service and protection standards referenced in subsection E1 of this section that are the most stringent, and that afford the greatest protection to consumers. These standards will apply, to the extent authorized by law, to all video, voice, and data services that are provided by the holder to its subscribers within the franchise service area.

F. Quarterly Reports: A state franchise holder and any franchisee, upon request by the city, shall prepare quarterly reports showing compliance customer service standards for telephone response performance. Such reports will be due to the city within forty five (45) days from the end of each calendar quarter. The report should detail customer call center performance within all call centers serving the city showing data tracked and aggregated for the entire market area served by the call centers. The report shall include:

1. Calls offered to interactive voice router (IVR);
1. Calls handled within IVR;
1. Percentage of calls handled within IVR;
1. Calls offered to agents;
1. Calls handled within thirty (30) seconds;
1. Service level or percentage of calls answered within thirty (30) seconds;
1. Number of abandoned calls;
1. Percentage of calls abandoned;
1. Average speed to answer a call;
1. Number of calls reaching a busy signal;
1. Percentage of busy calls as a function of total calls. (Ord. 1735, 11-20-2007)

24B-6: APPLICATION PROCEDURE:

Applicants for state video franchises within the boundaries of the city of Porterville must concurrently provide complete copies to the city of any application or amendments to applications filed with the public utilities commission. One complete copy must be provided to the city manager. Within thirty (30) days of receipt the city manager will provide any appropriate comments to the PUC regarding an application or an amendment to an application for a state video franchise. (Ord. 1735, 11-20-2007)

24B-7: DEVELOPMENT REVIEW FOR FACILITIES IN STREETS AND PUBLIC RIGHTS OF WAY:

Prior to construction or alteration of any facilities in, on, over, under, upon, across, and along the public streets and rights of way within the city of Porterville, a state video franchise holder shall for each facility submit plans and drawings to the community development and/or public works directors for review pursuant to the city's applicable regulations. For purposes of this section facilities includes wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, pedestals, attachments, and other property and equipment as are necessary and appurtenant to the operation of the video service system. (Ord. 1735, 11-20-2007)

24B-8: CONSTRUCTION STANDARDS:

All applicable construction standards as set forth in the city regulations shall apply to state video service franchise holders constructing or altering any facilities within the city. (Ord. 1735, 11-20-2007)

24B-9: ENVIRONMENTAL REVIEW:

The city of Porterville shall serve as the lead agency for any environmental review that is required for construction or alteration of facilities by a state video service franchise holder within the city of Porterville and may impose conditions to mitigate environmental impacts of the applicant's use of the public rights of way that may be required by the California environmental quality act, division 13 commencing with section 21000 of the Public Resources Code. (Ord. 1735, 11-20-2007)