Salinas Municipal Code § 34-23 Compliance with laws

This article is intended to regulate video service providers which have been awarded a state video franchise under the Digital Infrastructure and Video Competition Act of 2006 ("DIVCA") to serve locations within the city of Salinas. It is the purpose of this article to implement within the boundaries of the city the provisions of DIVCA and the rules of the California Public Utilities Commission promulgated thereunder that are applicable to a "local franchising entity" or a "local entity" as defined in DIVCA. This article is not intended to affect franchises granted the city pursuant to Article I of this chapter and the city will retain authority, without change, over all city cable franchises until such time as they no longer hold a city franchise.

(Ord. No. 2479 (NCS), § 2.)

(a) The rights reserved to the city under this article are in addition to all other rights of the city, whether reserved herein 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.

(b) Except as otherwise provided by DIVCA, a state franchise shall not include, or be a substitute for:

(1) Compliance with generally applicable requirements for the privilege of transaction 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;

(2) 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

(3) 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.

(c) Except as otherwise specifically provided by DIVCA, a state franchise shall not relieve a state franchisee of its duty to comply with all laws, including the ordinances, resolutions, rules, regulations and other laws of the city, and every state franchisee shall comply with the same.

(d) 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 DIVCA.

(Ord. No. 2479 (NCS), § 2.)

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 section shall be given the meaning set forth in Section 34-1 of the Salinas City Code, as the same may be amended from time to time, unless the context indicates otherwise. Words not defined in this section or in Section 34-1 of the City Code shall have the same meaning as established in (1) DIVCA, and if not defined therein, (2) 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 Section 521 et seq., and if not defined therein (4) their common and ordinary meaning.

(a) "Access," "PEG access," "PEG use," or "PEG" means the availability of 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.

(b) "Gross revenues" means 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 city, subject to the specifications of California Public Utilities Code Section 5860.

(c) "State franchise holder" or "state franchisee" means 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 within any portion of the city.

(Ord. No. 2479 (NCS), § 2.)

Nothing contained in this Article II exempts a state franchise holder from compliance with all federal, state and local ordinances, rules or regulations now in effect or which may be hereafter adopted which are not inconsistent with this chapter or California Public Utilities Code Section 5800 et seq. ("DIVCA"), or obligations under any franchise previously issued by the city, insofar as those may be enforced under DIVCA.

(Ord. No. 2479 (NCS), § 2.)

(a) Any state franchise holder operating within the boundaries of the city of Salinas shall pay a fee to the city equal to five percent of the gross revenues of that state franchise holder.

(b) The fees required under this section shall be paid to the city on a quarterly basis, 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 specified by the city, a payment for the state franchise fee not later than forty-five days after the end of each calendar quarter. Each payment shall be accompanied by a summary explaining the basis for the calculation of the fees.

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

(d) 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, which fee shall otherwise be payable in accordance with the procedures established by this section.

(Ord. No. 2479 (NCS), § 2.)

(a) Any state franchise holder operating within the boundaries of the city of Salinas shall pay to the city's designated PEG provider a PEG fee in the amount equal to one percent of the state franchise holder's gross revenues, which fees shall be used by the city's designated PEG provider to support public, educational and/or governmental (PEG) channel facilities consistent with state and federal law including, but not limited to, DIVCA.

(b) The fees required under this section shall be paid to the city on a quarterly basis, 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 specified by the city, a payment for the state franchise fee not later than forty-five days after the end of each calendar quarter. Each payment shall be accompanied by a summary explaining the basis for the calculation of the fees and shall include such additional information as designated by the city.

(c) In the event a state franchise holder fails to make payments required by this chapter on or before the due dates specific in this chapter, the city shall impose a late charge at the rate per year equal to the highest prime lending rate during the delinquency period, plus one percent, to the extent that such a late payment charge is deemed to be consistent with DIVCA.

(Ord. No. 2479 (NCS), § 2.)

Not more than once annually, the city may examine and perform an audit of the business records of a holder of a state video franchise to ensure compliance with Section 34-22, in a manner consistent with Public Utilities Code Section 5860(i).

(Ord. No. 2479 (NCS), § 2.)

(a) The holder of a state franchise shall comply with all applicable state and federal customer service and protection standards pertaining to the provision of video service. All customer service and consumer protection standards under this section shall be interpreted and applied to accommodate newer or different technologies while meeting or exceeding the goals of the standards.

(b) The city manager or his or her designee shall monitor compliance of state video franchise holders with respect to state and federal customer service and protection standards. The city manager or his or her designee 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 thirty days from the receipt of the notice to remedy the specified material breach. Material breaches not remedied within the thirty-day time period will be subject to the following penalties to be imposed by the city in a manner consistent with California Public Utilities Code Section 5900:

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

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

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

(c) A state video franchise holder may appeal a penalty assessed by the city manager or his or her designee to the city council within sixty days. 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 the final administrative disposition of the matter.

(Ord. No. 2479 (NCS), § 2.)

(a) Applicants for state video franchises within the boundaries of the city must concurrently provide complete copies to the city of any application or amendments to applications filed with the California Public Utilities Commission. One complete copy must be provided to the city manager.

(b) The city manager or his or her designee may provide any appropriate comments to the Public Utilities Commission regarding an application or an amendment to an application for a state video franchise.

(Ord. No. 2479 (NCS), § 2.)

(a) Prior to commencing any work for which a permit is required by this section, a state franchise holder shall apply for and obtain a permit as required by the city in accordance with the provisions referred to in this section and shall comply with all other applicable laws, regulations and requirements including, but not limited to, all applicable requirements of the California Environmental Quality Act (CEQA). The city shall have the authority to adopt from time to time rules and regulations, in a manner consistent with the Public Utilities Code, to implement the provisions of this article including, but not limited to, any such rules and regulations applicable to construction standards, the issuance of any permits or licenses or the use of the public rights-of-way.

(b) An application for a permit required by the city under this section shall be either approved or denied within sixty days of the city's receiving a completed permit application from the state franchise holder. An application for a permit is complete when the applicant has complied with all statutory requirements including, but not limited to, CEQA. Any such denial shall be accompanied by an explanation of the reasons for such denial. A state video franchise holder may appeal the city's denial of a permit to the city council within thirty days of such denial. The city council shall hear all evidence and relevant testimony and may uphold, modify or vacate the permit denial. The city council's decision the matter shall be final.

(Ord. No. 2479 (NCS), § 2.)

(a) 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.

(b) To the extent consistent with Public Utilities Code Section 5880, each state franchise holder shall incorporate into its network the override capability to permit the city in times of emergency or disaster to override the audio portion of all channels simultaneously to transmit an emergency alert signal to all participating subscribers.

(Ord. No. 2479 (NCS), § 2.)

(a) A state franchise holder that has been authorized by the California Public Utilities Commission to provide video service in the city shall designate and activate three PEG channels within three months from the date that the city requests that the state franchisee designate and activate these PEG channels. However, this three-month period shall be tolled for such a period, and only for such a period, during which the state franchisee's ability to designate or provide such PEG capacity is technically infeasible, as set forth in Sections 5870(a), 5870(c) and 5870(h) of the California Public Utilities Code. A state franchisee 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) As set forth in Public Utilities Code Sections 5870(b) and 5870(g)(3), 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, shall be capable of carrying a National Television System Committee (NTSC) quality 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.

(c) Each state franchise holder and each incumbent cable operator operating under a city franchise issued pursuant to Article I of this chapter shall negotiate in good faith to interconnect their networks for the purpose of providing PEG programming. Interconnection may be accomplished by any means authorized under Public Utilities Code Section 5870(h). Each state franchise holder and incumbent cable operator shall provide interconnection of PEG channels on reasonable terms and conditions and may not withhold the interconnection. 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 to 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 for interconnection is available, the state franchise holder shall make interconnection available to the PEG channel originator 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 state franchise holder and the incumbent cable operator.

(Ord. No. 2479 (NCS), § 2.)