Sonoma Municipal Code Ch. 5.20 State Video Franchises

The purpose of this chapter is to implement regulations for the provision of video services by state franchise holders, in accordance with the Digital Infrastructure and Video Competition Act, California Public Utilities Code Section 5800 et seq. (“DIVCA”). This chapter applies to video service providers operating within the city pursuant to a valid state franchise. (Ord. 03-2017 § 1, 2017).

For the purposes of this chapter, the words set out in this section have the following meanings:

A. “City” means the city of Sonoma.

B. “City manager” means the city manager of the city of Sonoma, or the city manager’s designee.

C. “Franchise fee” has the meaning set forth in Public Utilities Code Section 5860 or its successor.

D. “Gross revenues” has the meaning set forth in Public Utilities Code Section 5860 or its successor.

E. “Holder” has the meaning set forth in subdivision (j) of Public Utilities Code Section 5830 or its successor.

F. “Material breach” has the meaning set forth in subdivision (j) of Public Utilities Code Section 5900 or its successor.

G. “Network” has the meaning set forth in subdivision (l) of Public Utilities Code Section 5830 or its successor.

H. “State franchise” has the meaning set forth in subdivision (p) of Public Utilities Code Section 5830 or its successor.

I. “Video service” has the meaning set forth in subdivision (s) of Public Utilities Code Section 5830 or its successor. (Ord. 03-2017 § 1, 2017).

A. The franchise fee established within the city for cable franchises is five percent of gross revenues. Every state franchise holder operating within the city shall pay a franchise fee to the city in the amount of five percent of that state franchise holder’s gross revenues.

B. Each state franchise holder shall remit the franchise fee to the city quarterly, within 45 days after the end of the quarter for that calendar quarter. Each payment shall be accompanied by a summary explaining the basis for the calculation of the franchise fee. If the state franchise holder does not pay the franchise fee when due, the state franchise holder shall pay a late payment charge at a rate per year equal to the highest prime lending rate during the period of delinquency, plus one percent. If the state franchise holder has overpaid the franchise fee, it may deduct the overpayment from its next quarterly payment. (Ord. 03-2017 § 1, 2017).

A. State franchise holders shall provide PEG channel capacity as requested by the city and agreed upon between the holder and the PEG channel provider; provided, that no less than one PEG channel is provided at all times in accordance with Public Utilities Code Section 5870(a).

B. All state franchise holders shall comply with the provisions of DIVCA related to PEG channels. Without limiting the foregoing, the PEG channels shall all be carried on the basic service tier. 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 and shall provide picture and sound quality and channel accessibility and location equal to, or substantially equal to, that provided by the incumbent cable providers. After the initial designation of PEG channel numbers, the channel numbers shall not be changed without the agreement of the local entity unless the change is required by federal law.

C. A state franchise holder shall have that amount of time designated under Public Utilities Code Section 5870(a) to designate the PEG channel capacity from the date that the request to designate capacity is made. Any state franchise holder that believes that the designation or provision of PEG channel capacity is technically infeasible shall provide to city, in writing, its reasons therefor and its plan for correcting or solving the infeasibility. City may hold a hearing on the claim of infeasibility and, thereafter, take such action as city deems proper to require the designation and provision of the PEG channels on the state franchise holder’s system. (Ord. 03-2017 § 1, 2017).

In accordance with Public Utilities Code Section 5870(n), commencing on July 1, 2017, state franchise holders must pay one percent of gross revenues to the city to support PEG channel facilities. State franchise holders shall remit PEG fees in the same manner as franchise fees are remitted in accordance with SMC 5.20.030. The PEG fee may be shown as a separate line item on the regular bill of each subscriber. Upon the expiration of a holder’s franchise, the fee established under this section shall be deemed reauthorized within the meaning of Public Utilities Code Section 5870(n) prior to the renewal of that holder’s franchise, in order to assure continuing public, educational, and governmental access by the state franchise holder. (Ord. 03-2017 § 1, 2017).

A. A state franchise holder shall comply with Government Code Sections 53055, 53055.1, 53055.2, and 53088.2; the FCC customer service and notice standards set forth in 47 U.S.C. Sections 76.309, 76.1602, 76.1603 and 76.1619; and all other applicable state and federal customer service and protection standards pertaining to the provision of video service, including any such standards hereafter adopted. In case of a conflict, the stricter standard shall apply. All customer service and consumer protection standards under this subsection shall be interpreted and applied to accommodate newer or different technologies while meeting or exceeding the goals of the standards.

B. City shall enforce, in the manner set forth in DIVCA, all customer service and protection standards contained in Public Utilities Code Section 5900, including without limitation those standards set forth in Section 5900(c). (Ord. 03-2017 § 1, 2017).

The following monetary penalties, as set forth in Public Utilities Code Section 5900, are hereby adopted as the applicable schedule of penalties for any material breach of DIVCA, by a state franchisee, as follows:

A. Five hundred dollars per day for each material breach, not to exceed $1,500 per occurrence of a material breach.

B. If a material breach has occurred and notice has been provided and a fine or penalty has been assessed, any subsequent breach of the same nature within 12 months shall be subject to a penalty of up to $1,000 for each day of each material breach, not to exceed $3,000 per occurrence of the material breach.

C. If a third or further material breach of the same nature occurs within those same 12 months, and notice has been provided and a fine or penalty has been assessed, the penalties shall be increased to a maximum of $2,500 per day for each material breach, not to exceed $7,500 per occurrence of the material breach. (Ord. 03-2017 § 1, 2017).

A. A state franchise holder is required to obtain an encroachment permit from the city in conformance with Chapter 12.20 SMC before constructing, operating, maintaining or repairing its facilities within the right-of-way, as that term is defined therein.

B. The city shall either approve or deny an encroachment permit application within 60 days of receiving a completed application. An application is considered complete when the applicant has complied with all statutory requirements, including the California Environmental Quality Act (Public Resources Code Section 21000 and following).

C. If the city denies the encroachment permit, it shall provide the applicant with a detailed explanation of the reason for the denial. A determination regarding the encroachment permit by the city manager may be appealed. (Ord. 03-2017 § 1, 2017).

A. The city may examine once per year the business records of any state franchise holder relating to gross revenues in a manner consistent with Public Utilities Code Section 5860.

B. All state franchise holders shall keep and maintain all business records reflecting any gross revenues, regardless of change in ownership, for at least four years after those gross revenues are recognized by the state franchise holder on its books and records pursuant to Public Utilities Code Section 5860.

C. If the state franchise holder has underpaid the franchise fee established by SMC 5.20.030 by more than five percent, the state franchise holder shall pay the reasonable and actual costs of the examination. If the state franchise has not underpaid the franchise fee established in SMC 5.20.030, the city shall pay the reasonable and actual costs of the examination. If the state franchise holder, however, has underpaid the franchise fee established by SMC 5.20.030 by five percent or less, the state franchise holder and the city shall bear its own costs of the examination. (Ord. 03-2017 § 1, 2017).

The city council may establish by resolution policies and procedures for the provision and operation of public, educational and governmental access (PEG) channels within the city. Each provider of a PEG channel shall act in full compliance at all times with the policies and procedures that are established thereunder. (Ord. 03-2017 § 1, 2017).