Chapter 122 — VIDEO SERVICE FRANCHISE

The purpose of this chapter is to implement the Digital Infrastructure and Video Competition Act of 2006, (“DIVCA”) set forth at Cal. Public Utilities Code (“PUC”) § 5800 et seq. that became effective January 1, 2007. Consistent with DIVCA, and the implementing rules issued by the California Public Utilities Commission (“CPUC”) dated March 1, 2007, the city retains local city authority and implements that authority pursuant to DIVCA by implementation of this chapter. This chapter shall be applied to and interpreted consistently with any amendments to, or recodifications of DIVCA that may be made from time to time.

(Ord. 2008-017, passed 12-22-08; Am. Ord. 2018-004, passed 3-27-18)

For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.

GROSS REVENUE. Has the meaning set forth in Cal. Public Utilities Code § 5860(d).

VIDEO SERVICE, VIDEO FRANCHISE, and HOLDER. Shall have the same meaning as those terms are defined in Cal. Public Utilities Code § 5830.

Terms not defined herein shall have the same meaning as established in (in order of priority): (1) the California Public Utilities Code; (2) commission rules implementing the California Public Utilities Code; and (3) Title 47 U.S.C. Title VI.

(Ord. 2008-017, passed 12-22-08; Am. Ord. 2018-004, passed 3-27-18)

FRANCHISE PROVISIONS

(A) Copy or application to city. An applicant for a state video franchise within the boundaries of the city must concurrently provide a complete copy of any application or amendments to an application to the City Clerk that is filed with the California Public Utilities Commission (CPUC). (PUC § 5840(e)(1)(D))

(B) City Manager comments. Within 30 days of receipt, the City Manager will provide any appropriate comments to the CPUC regarding an application or an amendment to an application for a state video franchise.

(C) Notification of video service. Prior to offering video service in the city, the state video franchise holder shall notify the City Clerk at least ten days, but no more than 60 days, before the video service provider begins to offer service. (PUC § 5840(n))

(Ord. 2008-017, passed 12-22-08; Am. Ord. 2018-004, passed 3-27-18)

Any state video franchise holder operating within the city shall remit a franchise fee to the city in the amount equal to 5% of the gross revenues of the state video franchise holder derived from the operation of its franchise within the city in compliance with Cal. Public Utilities Code §§ 5840(q) and 5860.

(A) A state video franchise holder shall pay the franchise fee to the city quarterly, within 45-days after the end of each calendar quarter.

(B) Each payment shall be accompanied by a summary explaining the basis for the calculation of the fee.

(C) Pursuant to Cal. Public Utilities Code § 5860(h) if the franchise holder does not pay the franchise fee when due, the franchise holder shall pay a late payment charge at a rate per year equal to the highest prime lending rate during the period of delinquency, plus 1%.

(Ord. 2018-004, passed 3-27-18)

Any state video franchise holder operating within the city shall remit to the city a Public, Educational, and Government ("PEG") fee in the amount equal to 1% of the gross revenue of the state video franchise holder derived from the operation of its franchise within the city to support public, educational, and governmental channel facilities in compliance with Cal. Public Utilities Code § 5870(n).

(A) A state video franchise holder shall pay the franchise fee to the city quarterly, within 45-days after the end of each calendar quarter.

(B) All revenue collected pursuant to this fee shall be deposited in a separate fund and shall only be expended for the purpose of supporting PEG channel facilities.

(C) Automatic reauthorization. Notwithstanding Cal. Public Utilities Code § 5870, upon the expiration of any state video franchise, without any action of the City Council, this code section shall be deemed to have been automatically reauthorized upon the renewal of a state video franchise by the CPUC to a state video franchise holder operating within the city, unless the holder has given the City Manager and City Clerk written notice 60 days prior to the expiration of its state video franchise that this section will expire pursuant to the terms of Cal. Public Utilities Code § 5870(n), or until such time that the City Council takes formal affirmative action to cease the reauthorization. (Ord. 2008-017, passed 12-22-08; Am. Ord. 2018-004, passed 3-27-18)

(A) PEG channel capacity. A state video franchise holder that uses the public rights-of-way shall designate sufficient capacity on its network to enable the carriage of a least two PEG access channels.

(1) PEG access channels shall be for the exclusive use of the city or its designees to provide public, educational, or governmental programming.

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

(3) The PEG access channels shall be carried on the basic service tier; provided, however, that if the technology used eliminates the basic service tier, then all PEG access channels shall be placed on the cable system in a manner equivalent to local over-the-air broadcast stations.

(4) 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.

(5) 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.

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

(B) 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 the emergency

messages may be distributed over the holder's network. Provisions in the city-issued franchise 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 Cal. Public Utilities Code § 5840(m), or until January 1, 2009, whichever is later. (Ord. 2018-004, passed 3-27-18)

(A) Any state video franchise holder shall comply with the customer service provisions set forth in Cal. Public Utilities Code § 5900.

(B) The city shall monitor the compliance of state video franchise holders with respect to state and federal customer service and protection standards. The City Manager will provide the state video franchise holder written notice of any material breaches of applicable customer service standards, and will allow the state video franchise holder 30 days from the receipt of the notice to remedy the specified material breach.

(C) The city shall impose the following penalties against a state video franchise holder for any material breach of the customer service provisions not remedied within the 30-day time period as set forth in Cal. Public Utilities Code § 5900:

(1) For the first occurrence of a material breach, a fine of $500 shall be imposed for each day of each material breach, not to exceed $1,500 for each occurrence of the material breach.

(2) For a second occurrence of a material breach of the same nature as the first material breach that occurs within 12 months, a fine of $1,000 shall be imposed for each day of each material breach, not to exceed $3,000 for each occurrence of the material breach.

(3) For a third or further occurrence of a material breach of the same nature as the previous material breaches that occurs within 12 months, a fine of $2,500 shall be imposed for each day of each material breach, not to exceed $7,500 for each occurrence of the material breach.

(D) A material breach for the purposes of assessing penalties shall be deemed to have occurred for each day within the jurisdiction of the city, following the expiration of the period specified in division (C) of this section, that any material breach has not been remedied by the state video franchise holder, irrespective of the number of customers affected. No monetary penalties shall be assessed for a material breach if it is out of the reasonable control of the state video franchise holder.

(E) Pursuant to Cal. Public Utilities Code § 5900, any penalty remitted to the city by a state video franchise holder for a material breach of the customer service provisions set forth in Cal. Public Utilties Code § 5900 shall be split in half, and the city shall submit one-half of the penalty amount to the Digital Divide Account established by Cal. Public Utilities Code § 280.5.

(F) Appeal. A state video franchise holder may appeal a penalty assessed by the City Manager to the City Council within 60 days of the initial assessment by sending a letter of request for an appeal hearing, along with payment of the fee, to the City Clerk. The matter for a hearing shall be set with the City Council to receive all evidence and relevant testimony. The Council may uphold, modify, or vacate the penalty or decision. The City Council's decision on the imposition of a penalty or decision is final.

(Ord. 2008-017, passed 12-22-08; Am. Ord. 2018-004, passed 3-27-18)

(A) Encroachment permit. To the extent allowed by law, any state video franchise holder shall apply for an encroachment permit to install, construct or maintain a network pursuant to this code. In addition to Riverbank

Municipal Code procedures, the following shall apply to any state video franchise holder applying for an encroachment permit:

(1) Any encroachment permit application submitted by any state video franchise holder shall be approved or denied within 60 days of receipt of a completed application. An application for an encroachment permit is complete when the state video franchise holder has complied with all statutory requirements, including CEQA, pursuant to Cal. Public Resource Code §§ 21000 et seq.

(2) The 60-day time period for approval or denial of an encroachment permit application may be extended if mutually agreed to in a written agreement between the state video franchise holder and the city.

(3) Any denial of an encroachment permit application submitted to any state video franchise holder by the city shall be written and shall include a detailed explanation of the reason for the denial.

(4) Appeal. Any state video franchise holder may appeal a denial of an encroachment permit application or a condition placed on an approved encroachment permit to the City Council by submitting a written appeal within 15 days of the date the application was denied or condition imposed. The City Clerk shall thereafter give written notice to the holder of a hearing to be held within 30 days of receipt of the appeal. The decision of the City Council on the appeal shall be final.

(B) Other permits. A state video franchise holder shall apply for any other permits required by this code to the extent allowed by law.

(Ord. 2008-017, passed 12-22-08; Am. Ord. 2018-004, passed 3-27-18)

The city shall serve as the lead agency for any environmental review under DIVCA. The city may impose conditions to mitigate environmental impacts of any state video franchise holder's use of the public rights-of-way that may be required pursuant to the California Environmental Quality Act, Cal. Public Resources Code §§ 21000 et seq. ("CEQA").

(Ord. 2018-004, passed 3-27-18)

(A) The city may examine once per year the business records of the state video franchise holder relating to gross revenues in a manner consistent with Cal. Public Utilities Code § 5860(i).

(B) All state video franchise holders shall keep and maintain all business records reflecting any gross revenues, regardless of change in ownership, for at least four years after those gross revenues are recognized by the holder on its books and records pursuant to Cal. Public Utilities Code § 5860.

(Ord. 2018-004, passed 3-27-18)