San Marino Municipal Code Div. 4 Other Video and Telecommunications Services and Systems

The term "cable system", as defined in federal law and as set forth in section 27.03.17 of this article, does not include a facility that serves subscribers without using any public rights of way. Consequently, the categories of multichannel video programming 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. Multichannel multipoint 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 multipoint distribution service ("LMDS"), another form of over the air wireless video service for which licenses are auctioned by the FCC, and which offers video programming, telephony, 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 subscribers' premises without the use of ground receiving or distribution equipment, except at the subscriber's premises or in the uplink process to the satellite. Local regulation of direct to home satellite services is further proscribed by the following federal statutory provisions:

1. 47 USC section 303(v) confers upon the FCC exclusive jurisdiction to regulate the provision of direct to home satellite services.

2. Section 602 of the telecommunications act of 1996 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. (Ord. 0-01-1150, 5-9-2001)

A. Unless the customer protection and customer service obligations of a "video provider", as that term is defined in section 27.03.17 of this article, are specified in a franchise, license, lease, or similar written agreement with the city, a video provider must comply with all applicable provisions of the following state statutes:

1. The cable television and video customer service and information act (Government Code section 53054 et seq.).

2. The video customer service act (Government Code section 53088 et seq.).

B. All video providers that are operating in the city on the effective date of this article, or that intend to operate in the city after its effective date, must register with the city; provided, however, that this registration requirement is not applicable to any video provider that has executed a franchise, license, lease or similar written agreement with the city. The registration form must include or be accompanied by the following:

1. The video provider's name, address, and local telephone numbers.

2. The names of the officers of the video provider.

3. 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 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 commitment to distribute annually to the city, and to its employees and customers, 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 Government Code section 53055.2. Subject to the written notice and cure, provisions of Government Code section 53056(b), a video provider that fails to distribute the annual notice required by Government Code section 53055.1 will be assessed a monetary penalty in the sum of five hundred dollars ($500.00) for each year in which the annual notice is not distributed to all of its customers.

4. 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.

5. 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 Government Code section 53088.2(o).

C. The following schedule of monetary penalties is established by the city council for the material breach by a video provider of its obligations under subparagraphs (a) through (n) of Government Code section 53088.2, which provisions are incorporated by this reference. The term "material breach" means any substantial and repeated failure to comply with the consumer service standards set forth in Government Code section 53088.2.

1. For a first material breach: up to two hundred dollars ($200.00) per day, not to exceed a cumulative total of six hundred dollars ($600.00) for each occurrence of the material breach, irrespective of the number of customers affected.

2. For a second material breach of the same nature for which a monetary penalty was previously assessed within the preceding twelve (12) month period: up to four hundred dollars ($400.00) per day, not to exceed a cumulative total of one thousand two hundred dollars ($1,200.00) for each occurrence of the material breach, irrespective of the number of customers affected.

3. For a third or further material breach of the same nature for which a monetary penalty was previously assessed within the preceding twelve (12) month period: up to one thousand dollars ($1,000.00) per day, not to exceed a cumulative total of three thousand dollars ($3,000.00) for each occurrence of the material breach, irrespective of the number of customers affected.

D. The imposition of monetary penalties under subsection C of this section, is subject to the following requirements and limitations:

1. The city must give the video provider written notice of any alleged material breach and must allow the video provider at least thirty (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 subsection D1 of this section that the material breach has not been remedied by the video provider, irrespective of the number of customers affected.

3. With respect to any video provider that is subject to a franchise or license agreement with the city, any monetary penalties assessed under subsection C of this section must be reduced dollar for dollar to the extent that any liquidated damage or penalty provisions of the franchise or license agreement imposes a monetary obligation on the video provider for the same customer service failure, and no other monetary damages may be assessed for that customer service failure. (Ord. 0-01-1150, 5-9-2001)

A. The city council finds and determines as follows:

1. The federal telecommunications act of 1996 preempts and declares invalid all state rules that restrict entry or limit competition in both local and long distance telephone service.

2. The California public utilities commission ("CPUC") is primarily responsible for the implementation of local telephone competition, and it issues certificates of public convenience and necessity to new entrants that are qualified to provide competitive local telephone exchange services and related telecommunications service, whether using their own facilities or the facilities or services provided by other authorized telephone corporations.

3. Section 234(a) of the California Public Utilities Code defines a "telephone corporation" as "every corporation or person owning, controlling, operating, or managing any telephone line for compensation within this state".

4. Section 616 of the California Public Utilities Code provides that a telephone corporation "may condemn any property necessary for the construction and maintenance of its telephone line".

5. Section 2902 of the California Public Utilities Code authorizes municipal corporations to retain their powers of control to supervise and regulate the relationships between a public utility and the general public in matters affecting the health, convenience, and safety of the general public, including matters such as the use and repair of public streets by any public utility and the location of the poles, wires, mains, or conduits of any public utility on, under, or above any public streets.

6. Section 7901 of the California Public Utilities Code authorizes telephone and telegraph corporations to construct telephone or telegraph lines along and upon any public road or highway, along or across any of the waters or lands within this state, and to erect poles, posts, piers, or abutments for supporting the insulators, wires, and other necessary fixtures of their lines, in such manner and at such points as not to incommode the public use of the road or highway or interrupt the navigation of the waters.

7. Section 7901.1 of the California Public Utilities Code confirms the right of municipalities to exercise reasonable control as to the time, place, and manner in which roads, highways, and waterways are accessed, which control must be applied to all entities in an equivalent manner. Nothing in section 7901.1 adds to or subtracts from any existing authority that municipalities have with respect to the imposition of fees.

8. Section 50030 of the California Government Code provides that any permit fee imposed by a city for the placement, installation, repair, or upgrading of telecommunications facilities, such as lines, poles, or antennas, by a telephone corporation that has obtained all required authorizations from the CPUC and the FCC to provide telecommunications services, must not exceed the reasonable costs of providing the service for which the fee is charged, and must not be levied for general revenue purposes.

B. In recognition of and in compliance with the statutory authorizations and requirements set forth in subsection A of this section, 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 code 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 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. Any applicant that, prior to 1996, provided telecommunications service under administratively equivalent documentation issued by the CPUC may submit copies of that documentation in lieu of a certificate of public convenience and necessity.

b. If the applicant has obtained from the CPUC a certificate of public convenience and necessity to operate as a "competitive local carrier", the following additional requirements are applicable:

(1) As required by decision no. 95-12-057 of the CPUC, the applicant must establish that it has timely filed with the city 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, so that the city can 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".

c. The city reserves all rights that it now possesses or may later acquire with respect to the regulation of any cable or telecommunications service that is provided, or proposed to be provided, by a telephone corporation. These reserved rights may relate, without limitation, to the imposition of reasonable conditions in addition to or different from those set forth in this section, the exaction of a fee or other form of consideration or compensation for use of public rights of way, and related matters; provided, however, that such regulatory rights and authority must be consistent with federal and state law that is applicable to cable or telecommunications services provided by telephone corporations. (Ord. 0-01-1150, 5-9-2001)