Santa Maria Municipal Code Ch. 4 11A. State Video Franchises

(a) This Chapter 4-11A is intended to be applicable to State franchise holders who have been awarded a State video franchise under the California Public Utilities Code section 5800 et seq. (the Digital Infrastructure and Video Competition Act of 2006 ["DIVCA"]), to serve any location(s) within the incorporated boundaries of the City. It is the purpose of this Chapter to implement within the incorporated boundaries of the City the provisions of DIVCA and the rules of the California Public Utilities Commission promulgated there under that are applicable to a "local franchising entity" or a "local entity" as defined in DIVCA.

(b) Rights Reserved.

(1) The rights reserved to the City under this Chapter 4-11A are in addition to all other rights of the City, whether reserved by Section 4-11A.01 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.

(2) Nothing contained in this Chapter 4-11A 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 this Chapter or California Public Utilities Code section 5800 et seq.

(Ord. 2008-05, eff. 4/17/08)

(a) Definitions Generally — Interpretation of Language.

For purposes of this Chapter, the following terms, phrases, words, and their derivations shall have the meaning given herein and those included in Public Utilities Code Section 5830 and related law established by Assembly Bill 1715 in 2007. Words not defined herein shall have the same meaning as established in (1) The DIVCA, and if not defined therein, Commission rules implementing the DIVCA, and if not defined therein, (3) Title VI of Title 47 of the Communications Act of 1934, as amended, 47 USC § 521 et seq., and if not defined therein (4) their common and ordinary meaning. 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. References to laws, ordinances or regulations shall be interpreted broadly to cover government actions, however nominated, and include laws, ordinances and regulations now in force or hereinafter enacted or amended.

"Access," "PEG access," "PEG use," or "PEG"

shall have the same meaning as in Public Utilities Code Section 5870. These terms mean the availability of a 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.

"Gross revenues"

shall have the same meaning as in Public Utilities Code Section 5860.

"State franchise holder" or "holder" or "franchisee" 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, as those terms are defined in California Public Utilities Code section 5830, within any portion of the incorporated limits of the City.

(Ord. 2008-05, eff. 4/17/08)

(a) Each State franchise holder or applicant for a State franchise shall file with the City a copy of all applications or notices that the State franchise holder or applicant is required to file with the California Public Utilities Commission (PUC) within the time frames required by Public Utilities Code §5840(n).

(b) Unless otherwise specified in this Chapter, all notices or other documentation that a State franchise holder is required to provide to the City under this Section or the California Public Utilities Code shall be provided to both the City Manager and the City staff person in charge of cable and telecommunications, or their successors or designees.

(Ord. 2008-05, eff. 4/17/08)

(a) State Franchise Fees.

(1) Any State franchise holder operating within the incorporated areas of the City shall pay to the City a State franchise fee equal to 5% of gross revenues, as required by Public Utilities Code Section 5840 and Section 5860.

(2) Payment of Franchise Fees. The State franchise fee required shall each be paid 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, which shall be agreed to by the City, a separate payment for the State franchise 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, and shall include such additional information on the appropriate form as designated by the City.

(3) Late Payments. In the event a State franchise holder fails to make payments required by this section on or before the due dates specified in this section, the City shall be authorized to impose a late charge at the rate per year equal to the highest prime lending rate during the period of delinquency, plus 1%, as required by Public Utilities Code Section 5860(h) .

(b) PEG Fees and Institutional Networks.

(1) Any State franchise holder operating within the incorporated areas of the City shall pay to the City, or if directed by the City, pay to the City's designated PEG provider, a PEG support fee equal to three percent of gross revenues, as allowed by Section 5870(n) of the DIVCA.

(2) A State franchisee shall remit the PEG support fee to the City, or if directed by the City, to the City's designated PEG provider on a quarterly basis, within forty-five days after the end of each calendar quarter, as required by Public Utilities Code 5870. Each payment made shall be accompanied by a report, in a format approved by the City of Santa Maria, detailing how the PEG support fee was calculated.

(3) If a State franchisee fails to pay the PEG support fee when due, or underpays the proper amount due, the State franchisee shall pay a late payment charge at the rate per year equal to the highest prime lending rate during the period of delinquency, plus 1%.

(Ord. 2008-05, eff. 4/17/08)

(a) PEG Channel Capacity.

(1) A State franchisee 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.

(2) 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) PEG Signal Carriage and Interconnection.

(1) As set forth in Sections 5870(b) and 5870(g)(3) of the California Public Utilities Code, State franchisees 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 franchisee 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 franchisee'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 law. After the initial designation of the PEG channel numbers, the channel numbers shall not be changed without the agreement of the City unless law requires the change.

(2) As set forth in Section 5870(h) of the California Public Utilities Code, the holder of a State franchise and an incumbent cable operator shall negotiate in good faith to interconnect their networks for the purpose of providing PEG programming. If a State franchisee 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 franchisee to interconnect its network with the incumbent cable operator's network at a technically feasible point on the State franchisee's network as identified by the State franchisee. If no technically feasible point of interconnection is available, the State franchisee shall make interconnection available to each PEG channel originator programming a channel in the City and shall provide the facilities necessary for the interconnection. The cost of any interconnection shall be borne by the State franchisee requesting the interconnection unless otherwise agreed to by the parties. In no case shall the City be required to incur any cost as a result of this section.

(Ord. 2008-05, eff. 4/17/08)

(a) Not more than once annually, the holder of a State video franchise in the City shall submit to the City Manager or his designee business records for the purpose of examination and audit to ensure compliance with this Chapter, in a manner consistent with California Public Utilities Code Section 5860(i).

(b) The holder shall keep all business records reflecting any gross revenues, even if there is a change in ownership, for at least four years after those revenues are recognized by the holder on its books and records; See Public Utilities Code Section 5860(i). If the examination discloses that the holder has underpaid franchise fees by more than 5% during the examination period, the holder shall pay all of the reasonable and actual costs of the examination. If the examination discloses that the holder has not underpaid franchise fees, the City shall pay all of the reasonable and actual costs of the examination. In every other instance, each party shall bear its own costs of the examination. Any claims by a local entity that compensation is not in compliance, and any claims for refunds or other corrections to the remittance of the holder of a State franchise, shall be made within three years and 45 days of the end of the quarter for which compensation is remitted, or three years from the date of the remittance, whichever is later.

(Ord. 2008-05, eff. 4/17/08)

(a) A State franchise holder shall comply with Sections 53055, 53055.1, 53055.2 and 53088.2 of the California Government Code; the FCC customer service and notice standards set forth in Sections 76.309, 76.1602, 76.1603, and 76.1619 of Title 47 of the Code of Federal Regulations; Section 637.5 of the California Penal Code; the privacy standards of Section 551 of Title 47 of the United States Code; and all other applicable State and Federal customer service and consumer protection standards pertaining to the provision of cable service or video service, include any such standards hereafter adopted. In case of a conflict, the stricter standard shall apply. All customer service and consumer protection standards under this paragraph shall be interpreted and applied to accommodate newer or different technologies while meeting or exceeding the goals of the standards.

(b) Penalties for Violations of Standards. The City shall have the authority to enforce the compliance of State franchisees with respect to the State and Federal customer service and consumer protection standards set forth in this ordinance. When enforcing, the City will provide a State franchisee with a written notice of any material breaches of applicable customer service or consumer protection standards, and will allow the State franchisee 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 City Manager:

(1) No monetary penalties shall be assessed for a material breach if it is out of the reasonable control of the State franchise holder. See Public Utilities Code Section 5900(d) .

(2) For the first occurrence of a material breach that is within the reasonable control of the State franchise holder, a fine of $500 may be imposed for each day the violation remains in effect, not to exceed $1,500 for each violation. See Public Utilities Code Section 5900(d).

(3) For a second material breach of the same nature within 12 months, and if the City has provided notice and a penalty has been assessed, the penalties may be increased by the City to a maximum of $1,000 for each day that the material breach remain in effect,, not to exceed $3,000 for each violation. See Public Utilities Code Section 5900(d).

(4) For a third material breach of the same nature within those same 12 months, and if the City has provided notice and a penalty has been assessed, the penalties may be increased to a maximum of $2,500 for each day the violation remains in effect, not to exceed $7,500 for each violation. See Public Utilities Code Section 5900(d).

(c) Any penalties imposed by the City shall be imposed in a manner consistent with California Public Utilities Code Section 5900.

(Ord. 2008-05, eff. 4/17/08)

(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 California Public Utilities Code section 5880, each State franchisee shall provide the system capability to transmit an emergency alert signal to all participating subscribers, in the form of an emergency override capability to permit the City to interrupt and cablecast an audio message on all channels simultaneously in the event of a disaster or public emergency.

(Ord. 2008-05, eff. 4/17/08)