San Bernardino Municipal Code Art. IV Other Video and Telecommunications Services and Systems

The term CABLE SYSTEM does not include a facility that serves subscribers without using any public rights-of-way. Consequently, the categories of multi-channel video programming distributors identified below are not deemed to be CABLE SYSTEMS and are, therefore, exempt from the city’s franchise 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) MULTI-CHANNEL MULTI-POINT 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 MULTI-POINT DISTRIBUTION SERVICE (“LMDS”), another form of over-the-air, wireless video service for which licenses are auctioned by the FCC and that offers video programming, telephone 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 up-link 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. § 303(v) confers upon the FCC exclusive jurisdiction to regulate the provisions of direct-to-home satellite services.

(2) Section 602 of the Communications Act, being 47 U.S.C. § 522, 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.

(A) 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 following state statutes:

(1) The Cable Television and Video Provider Customer Service and Information Act (Cal. Gov’t Code, §§ 53054 et seq.); and

(2) The Video Customer Service Act (Cal. Gov’t Code, §§ 53088 et seq.).

(B) (1) 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.

(2) The registration form must include or be accompanied by the following:

(a) The video provider’s name, address and local telephone numbers;

(b) The names of the officers of the video provider;

(c) 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 Cal. Gov’t Code, §§ 53054 et seq. These customer service standards must include, without limitation, standards regarding the following:

1. Installation, disconnection, service and repair obligations, employee identification and service call response time and scheduling;

• 2. Customer telephone and office hours;
• 3. Procedures for billing, charges, refunds and credits;
• 4. Procedures for termination of service;

5. Notice of the deletion of a programming service, the changing of channel assignments or an increase in rates;

6. Complaint procedures and procedures for bill dispute resolution;

7. The video provider’s written acknowledgment of its obligation under Cal. Gov’t Code, § 53055.1 to provide to new customers a notice describing the customer service standards specified in divisions (B)(2)(c)1. through (B)(2)(c)6. above at the time of installation or when service is initiated. The notice must also include, in addition to all of the information described above in divisions (B)(2)(c)1. through (B)(2)(c)6. above, all of the following:

a. 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;

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

c. 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.

8. 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 above in divisions (B)(2)(c)1. through (B)(2)(c)6. above. This annual notice must include the report of the video provider on its performance in meeting its customer service standards, as required by Cal. Gov’t Code, § 53055.2.

(d) Unless a video provider is exempt under federal law from its payment, a registration fee in an amount established by resolution of the Mayor and City Council to cover the reasonable costs incurred by the city in reviewing and processing the registration form; and

(e) In addition to the registration fee specified above in division (B)(2)(d) above, 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 Cal. Gov’t Code, § 53088.2(p).

(C) The customer service obligations imposed upon video providers by the Video Customer Service Act, Cal. Gov’t Code, §§ 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 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 24 hours and begins to resolve the problem.

(8) All video providers must provide a minimum of 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 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.

(9) Every video provider must allow every residential customer who pays his or her bill directly to the video provider at least 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 non-payment of a delinquent account unless the video provider furnishes notice of the delinquency and impending termination at least 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. Additionally, 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 the preceding division (C)(9) above, 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; and

(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.

(11) 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.

(12) 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.

(13) All video providers must issue requested refund checks promptly, but no later than 45 days following the resolution of any dispute, and following the return of the equipment supplied by the video provider, if service is terminated.

(14) All video providers must issue security or customer deposit refund checks promptly, but no later than 45 days following the termination of service, less any deductions permitted by law.

(15) 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) As authorized by Cal. Gov’t Code, § 53088.2(r), 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 division (C) above; 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 other law, and the city has discretion to elect the remedy that it will apply. The imposition of penalties authorized by this division (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 division (D)(2) below.

(1) Schedule of penalties.

(a) For a first material breach: the maximum penalty is $200 for each day of material breach, but not to exceed a cumulative total of $600 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 12-month period: the maximum penalty is $400 per day, not to exceed a cumulative total of $1,200 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 12-month period: the maximum penalty is $1,000 per day, not to exceed a cumulative total of $3,000 for each occurrence of the material breach, irrespective of the number of customers affected; and

(d) 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 division (D)(1) above do not preclude any affected party from pursuing any judicial remedy that is available to that party.

(3) Administration, notice and appeal.

(a) The City Manager is authorized to administer this division (D). 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 Mayor and 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 Mayor and City Council. The appeal letter must be addressed to the City Clerk and must be accompanied by any applicable fee established by the Mayor and City Council for processing the appeal. The Mayor and City Council may affirm, modify or reverse the decision of the City Manager.

(c) The imposition of monetary penalties under division (D)(1) above is subject to the following requirements and limitations.

1. The city must give the video provider written notice of any alleged material breach of the consumer service standards and must allow the video provider at least 30 days from receipt of that notice to remedy the breach.

2. 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 division (D)(3)(c)1. above that the material breach has not been remedied by the video provider, irrespective of the number of customers affected.

3. In assessing monetary penalties under this division (D), the City Manager, any designated hearing officer or the Mayor and City Council, as applicable, may take into account the nature, circumstances, extent and gravity of the violation and, with respect to the video provider, 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 authorized in division (D)(1) above.

(Ord. MC-1484, passed 4-18-2018)

Any video programming provided by a telephone corporation that uses public rights-of-way in the delivery of that video programming, regardless of the technology used, will be considered a cable service under this chapter unless such programming is otherwise expressly authorized by state or federal law.

(A) In recognition of and in compliance with statutory requirements that are set forth in state law, 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 chapter, 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 State Public Utilities Commission (“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; and

(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.

1. As required by 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.

2. 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.

3. 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.”

(B) 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.

(C) Subject to applicable provisions of state and federal law, any video programming provided by a telephone corporation that uses public rights-of-way in the transmission or delivery of that video programming, regardless of the technology used, will be deemed to be a video service subject to the franchise requirements set forth in § 14.08.04.

(D) Telephone corporations that apply for and receive a state franchise to provide video service within all or any part of the city must comply with the provisions of this title, and all applicable provisions of the Digital Infrastructure and Video Competition Act of 2006 (Division 2.5 of the Cal. Public Utilities Code, commencing with § 5800).

(A) PEG fee. A fee of 1% of gross revenues shall be assessed on all video service providers 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 45 days after the close of each quarter of grantee’s fiscal year.

(1) On a quarterly basis, the grantee shall provide the city a complete and accurate statement verified by a financial officer of the grantee indicating gross revenues for the past quarter, listing every revenue source and depicting gross revenue computations.

(2) 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.

(B) 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 public, educational or governmental access (“PEG”) channels. For the purposes of this section, a PEG channel is deemed activated if it is being utilized for PEG programming within the city for at least eight hours per day.

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

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

(3) The PEG channels shall all be carried on the basic service tier of the grantee.

(4) To the extent feasible, the PEG channels shall not be separated numerically from other channels carried on the basic service tier and the channel numbers for the PEG 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 channel numbers, the channel numbers shall not be changed without the agreement of the city unless the change is required by federal law.

(6) Each channel shall be capable of carrying a National Television System Committee (“NTSC”) television signal.

(C) Interconnection. Where technically feasible, all grantee’s video service providers shall negotiate in good faith to interconnect their networks for the purpose of providing PEG programming. Interconnection may be accomplished by direct cable, microwave link, satellite or other reasonable method of connection. Holders of a state franchise and incumbent cable operators shall provide interconnection of the PEG channels on reasonable terms and conditions and may not withhold the interconnection. If a holder of a state franchise and an incumbent cable operator cannot reach a mutually acceptable interconnection agreement, the city may require the incumbent cable operator to allow the 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 holder of a state franchise 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 holder of a state franchise requesting the interconnection unless otherwise agreed to by the parties.