Santa Monica Municipal Code Ch. 6.109 State Video Service Franchises

This Chapter applies to all cable service or video service providers who are applying for, or have been awarded, a franchise under California Public Utilities Code Section 5800 et seq., the Digital Infrastructure and Video Competition Act of 2006, ("DIVCA"), to serve any area within the City of Santa Monica, including cable service or video service providers who are otherwise subject to DIVCA. By this Chapter the City of Santa Monica intends to exercise to the fullest extent possible all rights and privileges afforded to it by DIVCA and any other applicable law.

(Added by Ord. 2225CCS § 1, adopted 4/24/07)

For purposes of this Chapter, 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 Chapter shall be given the meaning set forth in California Public Utilities Code, Section 5800 et seq., as amended from time to time. 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. The word "shall" is always mandatory.

(a)

Access, PEG access, PEG use, or PEG.

"Access," "PEG access," "PEG use," or "PEG" means the availability of a cable or video system for public, educational, or governmental use by various agencies, institutions, organizations, groups, and individuals, including the City of Santa Monica and its exclusive City use channels or any existing agreement between the City and any incumbent cable operator, to acquire, create, and distribute programming not under a state franchise holder's editorial control.

(b)

City.

"City" means the City of Santa Monica, California.

(c)

City Council.

"City Council" means the City Council of the City of Santa Monica.

(d)

City Manager.

"City Manager" means the City Manager of the City of Santa Monica or designee.

(e)

Gross revenues.

"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 unincorporated areas of the county, subject to the specifications of California Public Utilities Code Section 5860.

(f)

Director.

"Director" means the director of the Environmental and Public Works Management Department of the City of Santa Monica or designee.

(g)

State franchise holder, holder of a state franchise, holder of the state franchise, or holder.

"State Franchise Holder," "holder of a State franchise," "holder of the State franchise," or "holder" means any person or group of persons who has been issued a franchise by the California Public Utilities Commission to provide cable service or video service, as those terms are defined in Public Utilities Code Section 5830, within any portion of the City of Santa Monica.

(Added by Ord. 2225CCS § 1, adopted 4/24/07)

Any State Franchise Holder operating within the City shall pay to the City a State Franchise Holder fee equal to five percent of gross revenues, as defined in this Chapter and applicable law, unless a different amount is otherwise payable according to applicable law or resolution adopted by the City Council. Nothing in this section is intended to limit the City's ability to impose utility user taxes and other generally applicable taxes, fees and charges that are applied in a nondiscriminatory and competitively neutral manner.

(Added by Ord. 2225CCS § 1, adopted 4/24/07)

Any State Franchise Holder operating within the City shall pay to the City a PEG fee equal to one percent of gross revenues, as defined in this Chapter and applicable law, unless a different amount is payable in accordance with applicable law or resolution adopted by the City Council.

(Added by Ord. 2225CCS § 1, adopted 4/24/07)

The State Franchise Holder shall pay quarterly all fees required pursuant to this Chapter in a manner consistent with Public Utilities Code Section 5860 and Chapter 6.108. The State Franchise Holder shall deliver to the City by check or other means agreeable to the City Manager, a separate payment for the State Franchise fee and the PEG fee not later than forty-five days after the end of each calendar quarter. Each payment made shall be accompanied by a report to the City Manager detailing how the payment was calculated, and shall include such additional information on appropriate forms as may be determined by the City Manager.

(Added by Ord. 2225CCS § 1, adopted 4/24/07)

The City may audit the business records of the holder of a State Franchise in a manner not inconsistent with California Public Utilities Code Section 5860(i) and Chapter 6.108.

(Added by Ord. 2225CCS § 1, adopted 4/24/07)

In the event a State Franchise Holder fails to make any payment 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 unless a different rate is set by applicable law or resolution adopted by the City Council.

(Added by Ord. 2225CCS § 1, adopted 4/24/07)

To the extent not inconsistent with California Public Utilities Code Section 5840(q)(2)(B), in the event a State Franchise Holder desires to lease access to City property or to a network owned or controlled by the City, the City may set terms and charge a fee for access to the property or City network separate and apart from any franchise fee or other fee charged to the State Franchise Holders pursuant to this Chapter or DIVCA. The City Council may set any such fee by resolution.

(Added by Ord. 2225CCS § 1, adopted 4/24/07)

Each State Franchise Holder shall comply with all applicable customer service and consumer protection standards, including, to the extent not inconsistent with California Public Utilities Code Section 5900, all existing and subsequently enacted customer service and consumer protection standards established by local, State or Federal law and regulation, including those set forth in or established in accordance with Chapter 6.108.

(Added by Ord. 2225CCS § 1, adopted 4/24/07)

(a) The City shall monitor compliance with and enforce the provisions of this Chapter and DIVCA.

(b) For any material breach, as defined in California Public Utilities Code Section 5900(j), by a State Franchise Holder of applicable customer service and consumer protection standards, the City Manager, or the City Manager's designee, in his or her sole discretion may impose the following fines or penalties:

(1) For the first occurrence of a material breach, a fine of five hundred dollars shall 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 material breach 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 material breach 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) Any penalties imposed by the City shall be imposed in a manner not inconsistent with California Public Utilities Code Section 5900 and Chapter 6.108.

(d) To the extent not inconsistent with California Public Utilities Code Section 5900, the City, acting through its City Manager or his or her designee, in its sole discretion may waive, modify, or defer the imposition of a penalty.

(Added by Ord. 2225CCS § 1, adopted 4/24/07)

Except as expressly provided in this Chapter, the provisions of this Chapter and Chapter 7.06 shall apply to all work performed by or on behalf of a State Franchise Holder upon, above or below any street, highway, sidewalk, parkway, alley or other public right-of-way of any kind whatsoever within the City.

(Added by Ord. 2225CCS § 1, adopted 4/24/07)

(a) Prior to commencing any work, a State Franchise Holder shall apply for and obtain a permit in accordance with the provisions of this Chapter and Chapter 7.06 and shall comply with all other applicable laws and regulations, including, but not limited to, all applicable requirements of Public Resources Code Section 21000 et seq. (the California Environmental Quality Act) and Chapter 7.06 of this Code.

(b) The Director shall either approve or deny a State Franchise Holder's application for any permit required under this Chapter in accordance with the terms of Chapter 7.06.

(c) If the Director denies a State Franchise Holder's application for a permit, the Director shall, at the time of notifying the applicant of denial, furnish to the applicant an explanation of the reason or reasons for the denial in accordance with the terms of Chapter 7.06 and other applicable law.

(d) A State Franchise Holder that has been denied a permit by final decision of the Director may appeal the denial to the City Council in accordance with Chapter 7.06, whose decision shall be final. Upon receiving a notice of appeal, the City Council shall consider the permit de novo as set forth in Chapter 7.06.

(e) A State Franchise Holder whose permit has been revoked may appeal that decision in accordance with the terms of Chapter 7.06, whose procedures and terms shall govern the revocation and appeal.

(Added by Ord. 2225CCS § 1, adopted 4/24/07)

The work of constructing, laying, replacing, maintaining, repairing, abandoning, or removing all property and appurtenances of the State Franchise Holder in, over, under, along, or across any City right-of-way as defined in Chapter 7.06 shall be done to the satisfaction of the Director and at the expense of the State Franchise Holder, and in accordance with the terms and conditions of Chapter 7.06.

(Added by Ord. 2225CCS § 1, adopted 4/24/07)

(a) In accordance with the terms of Chapter 7.06, the City reserves the right to change the grade, change the width, or alter or change the location of any City right-of-way. If any Franchise Holder's property or appurtenances is installed or maintained by the State Franchise Holder on, along, under, over, in, upon, or across any public right-of-way in a manner which prevents or interferes with any alteration or other change of grade, traffic needs, operation, maintenance, improvement, repair, construction, reconstruction, widening, or relocation of the right-of-way, or any work or improvement upon the right-of-way, the State Franchise Holder shall relocate any such property or appurtenances to the satisfaction of the Director at no expense to the City upon receipt of a written request from the Director to do so and in accordance with the terms of Chapter 7.06. Should the State Franchise Holder neglect or fail to relocate its facilities in a timely manner after receipt of any such notice, the State Franchise Holder shall be responsible for and shall reimburse the City for any and all costs or expenses incurred by City due to or arising from the failure to relocate the facilities.

(b) The City reserves the right to lay, construct, repair, alter, relocate, and maintain subsurface or other facilities or improvements of any type or description in a governmental but not proprietary capacity within the right-of-way over which the franchise is granted. If the City finds that the location or relocation of such facilities or improvements conflicts with the property or appurtenances laid, constructed, or maintained by the State Franchise Holder, whether such property was laid, constructed, or maintained before or after the facilities of the City were laid, the State Franchise Holder shall at no expense to the City, on or before the date specified in a written request from the Director, commence work to change the location as required by the Director. Should the State Franchise Holder neglect or fail to relocate its facilities within the period specified in any such notice, the State Franchise Holder shall be responsible for and shall reimburse the City for any and all additional costs or expenses incurred by the City due to the failure to relocate the facilities.

(Added by Ord. 2225CCS § 1, adopted 4/24/07)

Upon the abandonment or other discontinuance of the use of all or a portion of its property, the State Franchise Holder shall remove the property in accordance with the terms of Chapter 7.06. If the State Franchise Holder fails to comply with the terms and conditions of abandonment or removal as may be required by this Chapter and Chapter 7.06, the Director may remove, or cause to be removed, such facilities at the State Franchise Holder's expense as provided for in Chapter 7.06 and the State Franchise Holder shall pay to the City the cost of such work as provided for in Chapter 7.06.

(Added by Ord. 2225CCS § 1, adopted 4/24/07)

(a) Prior to any construction activity related to any cable service or video service, a State Franchise Holder shall provide public notification as provided for in Chapter 7.06 or as otherwise required by the Director or applicable law.

(b) To the extent practicable, equipment placed on private property shall be placed at the location requested by the property owner. A State Franchise Holder shall provide the private property owner with reasonable advance written notice of its plans to install equipment, and shall obtain express written consent from the private property owner before installing any equipment. The State Franchise Holder shall notify the property owner, in writing, that the property owner is not obligated to agree to the placement of equipment on the property or to enter into any agreement with the State Franchise Holder. Should a property owner notify the State Franchise Holder of his or her objection to any placement of equipment, the State Franchise Holder shall confer with the Director regarding appropriate location and placement of such equipment.

(Added by Ord. 2225CCS § 1, adopted 4/24/07)

Employees, agents, contractors, and subcontractors of any State Franchise Holder shall at all times be properly identified as employees or agents of the State Franchise Holder while performing any work or other activity within the City on behalf of the State Franchise Holder. Identification shall include the name of the employee or agent. The name and telephone number of the State Franchise Holder shall appear on all trucks and vehicles used by such personnel.

(Added by Ord. 2225CCS § 1, adopted 4/24/07)

Each State Franchise Holder shall comply with all applicable construction requirements of Chapter 7.06 and shall undertake all necessary and appropriate means to protect and preserve health and safety, including complying with all construction requirements of Chapter 7.06 or as otherwise required by the Director.

(Added by Ord. 2225CCS § 1, adopted 4/24/07)

Each state franchise holder, within sixty days after the completion of any work, shall file a report with the Director of an as-built set of drawings as required by Chapter 7.06.

(Added by Ord. 2225CCS § 1, adopted 4/24/07)

(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 not inconsistent with California Public Utilities Code Section 5880, each State Franchise Holder shall incorporate into its network the capability to permit the City in times of emergency to override the audio portion of all channels simultaneously. In addition, if feasible, each State Franchise Holder may be required to designate a channel, which may be a PEG channel, to be used for emergency broadcasts of both audio and video signals. The State Franchise Holder shall cooperate with the City in the use and operation of the emergency alert override system.

(Added by Ord. 2225CCS § 1, adopted 4/24/07)

Each holder of a State Franchise, and each incumbent cable operator operating under a City franchise issued pursuant to this Code, shall negotiate with each other in good faith to interconnect their networks for the purpose of providing PEG programming including, but not limited to, any exclusive City use channel. Interconnection may be accomplished by any means authorized under California Public Utilities Code Section 5870(h). Each holder of a State Franchise and any incumbent cable operator shall provide interconnection of PEG channels, including any exclusive City use channel 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 of the State Franchise 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 Holder or as otherwise permitted by applicable law. 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 State Franchise Holder requesting the interconnection unless otherwise agreed to by the State Franchise Holder and the incumbent cable operator. To the extent not inconsistent with California Public Utilities Code Section 5870(h), the City Manager or the City Manager's designee may waive, modify, or defer this requirement of interconnection in his or her sole discretion.

(Added by Ord. 2225CCS § 1, adopted 4/24/07)

(a) Each State Franchise Holder or applicant for a state franchise shall file with the City Manager and with the City's cable television or video manager a copy of all applications that the State Franchise Holder or applicant is required to file with the Public Utilities Commission.

(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 Chapter or the California Public Utilities Code shall be provided to the City Manager and to the City's cable television or video manager.

(Added by Ord. 2225CCS § 1, adopted 4/24/07)

The rights reserved to the City of Santa Monica under this Chapter are in addition to all other applicable rights of the City, whether granted or reserved by other provisions of the Santa Monica Municipal Code or as otherwise authorized by Federal or State law, and no action, proceeding, or exercise of a right by the City of Santa Monica shall affect any other rights which may be held by the City of Santa Monica.

(Added by Ord. 2225CCS § 1, adopted 4/24/07)

Nothing contained in this Chapter shall be construed to exempt a State Franchise Holder from compliance with all applicable ordinances, rules, or regulations of the City of Santa Monica now in effect or which may be adopted that are not inconsistent with this Chapter or California Public Utilities Code Section 5800 et seq., including, but not limited to, the provisions of Chapters 6.108 and 7.06 of this Code. Any reference in this Chapter to these or other Chapters does not exclude the applicability of any other provision of federal, state or local law.

(Added by Ord. 2225CCS § 1, adopted 4/24/07)

In accordance with Public Utilities Code Section 5800 et seq., all cable service and video service franchises in effect between the City and any cable or video service provider are extended through January 1, 2008, unless otherwise agreed to between the City and the cable or video service provider or unless otherwise provided for by applicable law.

(Added by Ord. 2225CCS § 1, adopted 4/24/07)

(a) The fee on State Franchise Holders to support public, educational, and governmental channel facilities in Santa Monica Municipal Code Chapter 6.109.040 above is reauthorized and shall remain unchanged and in full effect as to all State Franchise Holders.

(b) The PEG fee in Santa Monica Municipal Code Section 6.109.040 shall automatically be reauthorized upon the expiration of any existing or future franchise certificate franchise(s) held by any State Franchise Holder operating within the City of Santa Monica.

(c) This Chapter shall automatically be reauthorized upon the expiration of any existing or future franchise certificate franchise(s) held by any State Franchise Holder operating within the City of Santa Monica. This Chapter shall so renew upon the future expiration of any franchise certificate franchise(s) until such time that the City Council takes formal affirmative action to cease the renewals.

(Added by Ord. 2542CCS § 1, adopted 4/25/17)