Chapter 14.25 — DIGITAL INFRASTRUCTURE AND VIDEO COMPETITION

Note— (Entire Chapter added by Ord. 2008-1299; 2008-1301, 2-26-08)

This chapter is applicable to all video service providers who are eligible for, and have been awarded, a State Video Franchise under DIVCA, to provide video services in any portion of the City.

(Ord. No. 2022-1521, § 2, 9-13-2022)

California Public Utilities Code Section 5870(n) includes a sunset provision of this City ordinance "upon the expiration of the State franchise." This Chapter 14.25 shall terminate upon the expiration of the current State Video Franchise and shall auto renew upon the issuance of a new State Video Franchise.

(Ord. No. 2022-1521, § 2, 9-13-2022)

The rights reserved to the City under this Chapter 14.25 are in addition to all other rights of the City whether reserved by this Chapter 14.25 or authorized by other Applicable Law, and no action, proceeding or exercise of a right shall affect any other rights which may be held by the City.

(Ord. No. 2022-1521, § 2, 9-13-2022)

Nothing contained in this Chapter 14.25 shall 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 not inconsistent with this chapter or DIVCA, or obligations under any franchise previously issued by the City, insofar as those may be enforced under DIVCA.

(Ord. No. 2022-1521, § 2, 9-13-2022)

For purposes of this Chapter 14.25, the following terms, phrases, words, and their derivations shall have the meaning given in this chapter. Unless otherwise expressly stated, words not defined in this Chapter 14.25 shall be given the meaning set forth in the Digital Infrastructure and Video Competition Act of 2006, Division 2.5 of the California Public Utilities Code Section 5800 et seq. ("DIVCA"). 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.

(1)

Access Channel means any channel on a cable system or video system set aside by a State Franchise Holder for public, educational, or governmental use.

(2)

Applicant means any Person submitting any application required under Division 2.5 of the California Public Utilities Code.

(3)

Applicable Law means all lawfully enacted and applicable Federal, State, and City laws, ordinances, codes, rules, regulations, and orders as the same may be amended or adopted from time to time.

(4)

Cable Service means: (i) the one-way transmission to subscribers of video programming or other programming services; and (ii) subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service.

(5)

City Council means the governing body of the City of San Marcos, California.

(6)

Construction, operation, or repair and similar formulations of those terms mean the named actions interpreted broadly, encompassing, among other things, installation, extension, maintenance, replacement of component, relocation, undergrounding, grading, site preparation, adjusting, testing, make-ready, Excavation, and tree trimming. The term "operation" does not encompass or regulate the provision of services, but refers to activities affecting rights-of-way and other property subject to the jurisdiction of the City.

(7)

DIVCA means the Digital Infrastructure and Video Competition Act of 2006, Division 2.5 of the California Public Utilities Code Section 5800 et seq., as may be amended from time to time.

(8)

Gross Revenues means all revenues (whether in the form of cash or other consideration) of a State Franchise Holder or its affiliates in any way derived from its operations within the City.

(9)

Incumbent Cable Operator shall have the same meaning as in DIVCA.

(10)

Network shall have the same meaning as in DIVCA.

(11)

PEG or Public, Educational, and Governmental shall have the same meaning as in DIVCA.

(12)

Person means any natural person and all domestic and foreign corporations, associations, syndicates, joint stock corporations, partnerships of every kind, clubs, business or common law trusts and societies. The term does not include the City.

(13)

Public Rights-of-way shall have the same meaning as in DIVCA.

(14)

State Video Franchise means a Franchise issued by the California Public Utilities Commission to provide Cable Service or Video Service, as those terms are defined in DIVCA, within any portion of the City.

(15)

State Franchise Holder means a Person who holds a State Video Franchise.

(16)

Subscriber means the City or any Person who legally receives any Cable Service or Video Service from a State Franchise Holder delivered over that State Franchise Holder's Network.

(17)

Video Service shall have the same meaning as in DIVCA.

(Ord. No. 2022-1521, § 2, 9-13-2022)

For any State Franchise Holder operating within the boundaries of the City, there shall be a State franchise fee paid to the City equal to five percent of the Gross Revenues of that State Franchise Holder or any affiliate that are subject to a franchise fee under California Public Utilities Code Section 5860.

(Ord. No. 2022-1521, § 2, 9-13-2022)

(a)

For any State Franchise Holder operating within the boundaries of the City of San Marcos, there shall be a PEG fee paid to the City equal to one percent of the Gross Revenues of that State Franchise Holder or any affiliate that are subject to a franchise fee under California Public Utilities Code Section 5860.

(b)

PEG fees shall be used to support PEG channel facilities consistent with applicable federal and State law.

(Ord. No. 2022-1521, § 2, 9-13-2022)

The State franchise fee required pursuant to Section 14.25.060, and the PEG fee required pursuant to Section 14.25.070, shall each be paid to the City 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 specified by the City, a payment for the State franchise fee and a separate payment for the PEG fee not later than 45 days after the end of each calendar quarter. Each payment made shall be accompanied by a report, detailing how the payment was calculated, containing such information as the Director may require consistent with DIVCA. Unless the Director provides otherwise, the summary statement shall identify:

(a)

Revenues received from subscribers, by category, with service revenues broken out by service levels;

(b)

Any charges to subscribers for which revenues were received, but on which a franchise fee was not paid;

(c)

Where the fee is paid on an allocated portion of revenues received, the total revenues received; the allocation factor; and how the allocation factor was calculated.

(Ord. No. 2022-1521, § 2, 9-13-2022)

The City may examine and perform an audit of the business records of a State Franchise Holder to ensure compliance with Sections 14.25.060 and 14.25.070, in a manner consistent with California Public Utilities Code Section 5860(i).

(Ord. No. 2022-1521, § 2, 9-13-2022)

In the event a State Franchise Holder fails to make payments required by this chapter on or before the due dates specified in this chapter, 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, or the maximum amount allowed by law, whichever is less.

(Ord. No. 2022-1521, § 2, 9-13-2022)

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 Section 14.25.060, which fee shall otherwise be payable in accordance with the procedures established by this chapter.

(Ord. No. 2022-1521, § 2, 9-13-2022)

State Franchise Holder shall designate no less than three PEG Access Channels for the exclusive use of the City. Such PEG Access Channels shall be under the exclusive management and editorial control of the City and shall not be shared with other cities. The City may designate a representative, such as a nonprofit entity, to use and administer to said PEG Access Channels.

(Ord. No. 2022-1521, § 2, 9-13-2022)

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 cable or Video Service, including, to the extent consistent with California Public Utilities Code Section 5900, all existing and subsequently enacted customer service and consumer protection standards established by State and federal law and regulation. All fee charges to Subscribers and users shall be uniform throughout the City's franchise area.

(a)

Verification of Compliance. Upon 15 days' prior written notice, the City may require a State Franchise Holder to provide a written report demonstrating its compliance with any of the customer service and protection standards specified in this Section 14.25.130. The State Franchise Holder must provide sufficient documentation to enable the City to verify compliance.

(b)

Fines. The Director shall monitor and enforce the compliance of State Franchise Holders with respect to State and federal customer service and protection standards. The Director will provide the State Franchise Holder written notice of any material breaches of applicable customer and service standards, and will allow the State Franchise Holder 30 days from the receipt of the notice to remedy the specified material breach. Material breaches not remedied within the 30-day time period will be subject to the following penalties to be imposed by the Director:

(1)

For the first occurrence of a violation, a fine of $500.00 shall be imposed for each day the violation remains in effect, not to exceed $1,500.00 for each violation.

(2)

For a second violation of the same nature within 12 months, a fine of $1,000.00 shall be imposed for each day the violation remains in effect, not to exceed $3,000.00 for each violation.

(3)

For a third or further violation of the same nature within 12 months, a fine of $2,500.00 shall be imposed for each day the violation remains in effect, not to exceed $7,500.00 for each violation.

(c)

Appeal of Fines. A State Franchise Holder may appeal a penalty assessed by the Director to the City Council within 60 days. After relevant speakers are heard, and any necessary staff reports are submitted, City Council will vote to either uphold or vacate the penalty. City Council's decision on the imposition of a penalty shall be final.

(d)

Subscriber Complaints and Disputes. The State Franchise Holder must establish written procedures for receiving, acting upon, and resolving Subscriber complaints without intervention by the City. The State Franchise Holder must file a copy of these procedures with the City. These procedures must include a requirement that the State Franchise Holder respond in writing to any written complaint from the Subscriber within ten days after receiving the Subscriber complaint.

(1)

The City has the right to review the State Franchise Holder's response to any Subscriber complaint.

(2)

All Subscribers have the right to continue receiving service so long as their financial and other obligations to the State Franchise Holder are honored.

(3)

A State Franchise Holder shall, at the time of the initial subscription of the Subscriber to the system and annually thereafter, furnish a notice to the Subscriber of their rights to a refund for any loss or interruption of service for 48 hours or more.

(Ord. No. 2022-1521, § 2, 9-13-2022)

(a)

A State Franchise Holder shall abide by all customer privacy requirements of Federal and State law. Without limiting the foregoing, at least annually, a State Franchise Holder shall provide notice in the form of a separate, written statement to each Subscriber, which clearly and conspicuously informs the Subscriber of:

(1)

The nature of personally identifiable information collected or to be collected with respect to the Subscriber and the nature of the use of such information; and

(2)

The nature, frequency, and purpose of any disclosure, which may be made of such information, including the identification of the types of persons to whom the disclosure may be made.

(b)

Revealing Subscriber Preferences. A State Franchise Holder shall not reveal individual Subscriber preferences, viewing habits, beliefs, philosophy, creeds, or religious beliefs to any third person, firm, agency, governmental unit or investigating agency without court

authority or prior written consent of the Subscriber.

(c)

Parental Control Lock. The State Franchise Holder shall provide Subscribers, upon request, with a parental locking devise or digital code that permits inhibiting certain channels.

(Ord. No. 2022-1521, § 2, 9-13-2022)

(a)

Each State Franchise Holder or Applicant for a State franchise to provide Video or Cable Service within the boundaries of the City of San Marcos must concurrently provide complete copies to the City of any notice, application or amendments to applications filed with the PUC. One complete copy must be provided to the City Clerk, and one complete copy to the Director.

(b)

The Director will provide any appropriate comments to the PUC regarding any notice, application, or amendment to an application for a State Video Franchise.

(Ord. No. 2022-1521, § 2, 9-13-2022)

(a)

Prior to commencing any work on public property or in a Right-of-way, a State Franchise Holder shall apply for and obtain a Permit from the City. In connection with the Permitting of work on private property, the State Franchise Holder must also obtain the written permission of the property owner prior to obtaining a Permit from the City. Failure to obtain the written permission of the property owner shall be grounds for denial of a work Permit by the City. A Permit application is complete when the State Franchise Holder has complied with all 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).

(b)

The City shall either approve or deny a State Franchise Holder's application for any Permit upon such terms and conditions as is deemed appropriate by the Director to provide protection to persons and property.

(c)

If the City denies a State Franchise Holder's application for a Permit, the City 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.

(d)

A State Franchise Holder that has been denied a Permit by final decision of the City may appeal the denial to the City Council in accordance with Chapter 2.14 of the City Code of Ordinances.

(e)

The issuance of a Permit is not a franchise, and does not grant any vested rights in any location in the Public Rights-of-way, or in any particular manner of placement within the rights-of-way. Without limitation, a Permit to place cabinets and similar appurtenances above ground may be revoked and the Permittee required to place facilities underground, upon reasonable notice to the Permittee.

(Ord. No. 2022-1521, § 2, 9-13-2022)

(a)

A State Franchise Holder shall utilize existing poles, conduits, and other facilities whenever possible, and shall not construct or install any new, different, or additional poles, conduits, or other facilities whether on public property or on privately owned property unless and

until first securing the written approval of the Director, or on private property of any third party without the additional written permission of the owner. Whenever the State Franchise Holder shall not utilize existing poles, conduits and other facilities, or whenever existing conduits and other facilities shall be located beneath the surface of the streets, or whenever the City shall undertake a program designed to cause all conduits and other facilities to be located beneath the surface of the streets in any area or throughout the City, in the exercise of its police power or pursuant to the terms hereof, upon reasonable notice to grantee, any such conduits or other facilities of the State Franchise Holder shall be constructed, installed, placed or replaced beneath the surface of the streets. Any Construction, installation, placement, replacement, or changes which may be so required shall be made at the expense of State Franchise Holder whose costs shall be determined as in the case of public utilities.

(b)

All transmission lines, equipment and Structure shall be so installed and located as to cause minimum interference with the rights and reasonable convenience of property owners and at all times, shall be kept and maintained in a safe, adequate, and substantial condition, and in good order and repair.

(c)

Any and all Public Rights-of-way, public property, or private property that is disturbed or damaged during the upgrade, rebuild, repair, replacement, relocation, operation, maintenance, or construction of any transmission lines, equipment or Structure by State Franchise Holder or its agent, shall be repaired, replaced and restored, in a good workmanlike, timely manner, to substantially the same condition as immediately prior to the disturbance (including appropriate landscape restoration).

(d)

Work by or on behalf of a State Franchise Holder concerning, installation, maintenance, replacement or removal of any transmission lines, equipment or Structure, or any part thereof, shall be publicized by the State Franchise Holder, at its cost, in the manner and at the times the City periodically may direct.

(e)

In those areas of the City where the transmission or distribution facilities of the respective public utilities providing telephone, communication and electric services are underground or hereafter are placed underground, each State Franchise Holder shall likewise construct, operate, and maintain all of its Network facilities underground. The term "underground" includes a partial underground system; provided, that upon obtaining the written approval of the City, passive devices, power supplies and other equipment in the grantee's Network may be placed in appropriate housings upon the surface of the ground, subject to applicable provisions of the City Code, regulations, and practices.

(f)

A State Franchise Holder, at its expense, shall protect, support, temporarily disconnect, relocate, or remove any Network property of the State Franchise Holder when, in the opinion of the City, the same is required by reason of traffic conditions, public safety, street vacation, freeway or street construction, change or establishment of street grade, installation of sewers, drains, water pipes, power line, signal line, transportation facilities, tracks, or any other type of Structure or improvements by governmental agencies whether acting in a governmental or proprietary capacity, or any other Structure of public improvement, including but not limited to, movement of Buildings, urban renewal Development, and any general program under which the City shall undertake to cause all such properties to be located beneath the surface of the ground. The State Franchise Holder shall in all cases have the privilege, subject to the corresponding obligations, to abandon any Network property in place, as herein provided. Nothing hereunder shall be deemed a taking of the property of the State Franchise Holder, and the grantee shall be entitled to no surcharge by reason of anything hereunder.

(g)

Upon the failure, refusal, or neglect of the State Franchise Holder to cause any work or other act required by law or hereunder to be properly complete in, on, over or under any street within any time prescribed therefore, or upon notice given, where no time is prescribed, the Director may cause such work or other act to be completed in whole or in part, and upon so doing, shall submit to grantee an itemized statement of the costs thereof. The grantee shall, within 30 days after receipt of such statement, pay to the City the entire amount thereof.

(h)

In the event that the use of any part of the State Franchise Holder's Network is discontinued for any reason for a continuous period of 30 days, without prior written notice to and approval by the City; or any part of such Network has been installed in any street or other

area without complying with the requirements hereof; then the State Franchise Holder shall, at the option of the City, and at the expense of the State Franchise Holder and at no expense to the City, and upon demand of the City, promptly remove from any streets or other area any such Network property, and the State Franchise Holder shall promptly restore the street or other area from which such property has been removed to such condition as the City may prescribe. The City Council may, upon written application therefore by the State Franchise Holder, approve the abandonment of any of such property in place by the State Franchise Holder and under such terms and conditions as the City Council may prescribe. Upon abandonment of any such Network property in place, the State Franchise Holder shall cause to be executed, acknowledged, and delivered to the City such instruments as the City Attorney shall prescribe and approve, transferring and conveying the ownership of such property to the City.

(Ord. No. 2022-1521, § 2, 9-13-2022)

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. No. 2022-1521, § 2, 9-13-2022)

Each State Franchise Holder, and each Incumbent Cable Operator, 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 California 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, the City may 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 for interconnection is available, each State Franchise Holder will make an interconnection available to each channel originator providing PEG programming to an Incumbent Cable Operator, and will provide the facilities necessary for the interconnection. The cost of any interconnection will 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. 2022-1521, § 2, 9-13-2022)