Chapter 5.56
STATE VIDEO FRANCHISE

Sections:

5.56.010    General provisions.

5.56.020    Definitions and interpretation of language.

5.56.030    Franchise fees.

5.56.040    Customer service.

5.56.050    Permits and construction.

5.56.060    Emergency alert.

5.56.070    Public, educational, and government access channel capacity, interconnection, signal carriage and support.

5.56.080    Notices.

5.56.010 General provisions.

A.    Purpose. This chapter is 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 is to implement within the incorporated boundaries of the city the provisions of DIVCA and the rules of the California Public Utilities Commission promulgated thereunder that are applicable to a “local franchising entity” or a “local entity” as defined in DIVCA. This chapter does not apply to any cable operator operating under an existing franchise granted by the city and any such existing cable franchise shall remain in effect until its expiration unless the existing franchise from the city is abrogated in accordance with DIVCA. This chapter shall apply to any and all cable operators possessing a state video franchise for the city.

B.    Rights Reserved.

1.    The rights reserved to the city under this chapter are in addition to all other rights of the city, whether reserved by this chapter 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.    Except as otherwise provided by DIVCA, a state franchise shall not include, or be a substitute for:

a    Compliance with generally applicable requirements for the privilege of transacting and carrying on a business within the city, including, but not limited to, compliance with the conditions that the city may establish before facilities may be constructed for, or providing, nonvideo services;

b.    Any permit or authorization required in connection with operations on or in public rights-of-way or public property, including, but not limited to, encroachment permits, street work permits, pole attachment permits and street cut permits; and

c.    Any permit, agreement or authorization for occupying any other property of the city or any private person to which access is not specifically granted by the state franchise.

3.    Except as otherwise provided in DIVCA, a state franchise shall not relieve a state franchisee of its duty to comply with all laws, including the ordinances, resolutions, rules, regulations, and other laws of the city, and every state franchisee shall comply with the same.

C.     Compliance with Chapter. Nothing contained in this chapter shall 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. 2010-05 § 1 (Exh. A) (part), 2010)

5.56.020 Definitions and interpretation of language.

For purposes of this chapter, unless otherwise expressly stated, the words and terms set forth herein shall have the same meaning as established in (1) DIVCA, and if not defined therein, (2) Commission rules implementing DIVCA, and if not defined therein, (3) Title VI of Title 47 of the Communications Act of 1934, as amended, 47 USC Section 521 et. seq., and, if not defined therein, 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. The words “shall” and “will” are always mandatory. References to governmental entities (whether persons or entities) refer to those entities or their successors in authority. If specific provisions of law referred to herein are renumbered, then the reference shall be read to refer to the renumbered provision. 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. (Ord. 2010-05 § 1 (Exh. A) (part), 2010)

5.56.030 Franchise fees.

A.    State Franchise Fees. Pursuant to California Public Utilities Code Section 5860, any state franchise holder operating within the incorporated areas of the city shall pay to the city a state franchise fee equal to five percent of gross revenues, effective immediately upon provision of video services by the state franchise holder within the city.

B.    Payment of Franchise Fees. The state franchise fees required pursuant to this section 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 as agreed to by the city, a separate payment for the state franchise fee not later than forty-five 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.

C.    Audits. The city may audit the business records of the holder of a state franchise in a manner consistent with California Public Utilities Code Section 5860(i).

D.    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 impose a late charge at the rate per year equal to the highest prime lending rate during the period of delinquency, plus one percent. (Ord. 2010-05 § 1 (Exh. A) (part), 2010)

5.56.040 Customer service.

A.    Customer Service Standards. Any holder of a state video service franchise shall comply with all applicable state and federal customer service and protection standards pertaining to the provision of video service including any such standards hereafter adopted.

B.    Penalties for Violations of Standards. The city shall enforce the compliance of state franchisees with respect to the state and federal customer service and consumer protection standards set forth above in subsection A of this section. 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 thirty days from the receipt of the notice to remedy the specified material breach. Material breaches not remedied within the thirty-day time period will be subject to the following penalties to be imposed by the city:

1.    For the first occurrence of a material breach, a fine of five hundred dollars may 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 may be imposed for each day the violation remains in effect, not to exceed three thousand dollars for each violation.

3.    For a third material breach of the same nature within twelve months, a fine of two thousand five hundred dollars may 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 consistent with California Public Utilities Code Section 5900. As provided for in Section 5900(g) of the Public Utilities Code, the city shall submit one-half of all penalties received from a state video franchise holder to the Digital Divide Account established in Section 280.5 of the Public Utilities Code. (Ord. 2010-05 § 1 (Exh. A) (part), 2010)

5.56.050 Permits and construction.

A.    Except as expressly provided in this chapter, all provisions of the Marina Municipal Code shall apply to all work performed by or on behalf of a state franchise holder on any city public rights-of-way, public property, or city easement.

B.    Permits.

1.    Prior to commencing any work for which a permit is required by this subsection B, a state franchise holder shall apply for and obtain a permit in accordance with the provisions the municipal code and shall comply with all other 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).

2.    The city manager or his/her designee shall either approve or deny a state franchise holder’s application for any permit required in this subsection B within sixty days of receiving a completed permit application from the state franchise holder unless the parties mutually agree in writing to extend the sixty-day time frame.

3.    If the city manager or his/her designee denies a state franchise holder’s application for a permit, the city manager or his/her designee shall, at the time of notifying the applicant of denial, furnish to the applicant a detailed written explanation of the reason or reasons for the denial.

4.    A state franchise holder that has been denied a permit by final decision of the city manager or his/her designee may appeal the denial to the city council. Upon receiving a notice of appeal, the city council shall take one of the following actions:

a.    Affirm the action of the city manager or his/her designee without any further hearing; or

b.    Refer the matter back to the city manager or his/her designee for further review with or without instructions; or

c.    Set the matter for a de novo hearing before the city council.

5.    In rendering its decision on the appeal, the city council shall not hear or consider any argument or evidence of any kind other than the record of the matter received from the city manager or his/her designee unless the city council is itself conducting a public hearing on the matter. (Ord. 2010-05 § 1 (Exh. A) (part), 2010)

5.56.060 Emergency alert.

A.    Emergency Alert Systems.

1.    Pursuant to Section 5880 of the California Public Utilities Code, a holder of a state franchise shall comply with the Emergency Alert System (EAS) requirements of the Federal Communications Commission (FCC) in order that emergency messages may be distributed over the state franchise holder’s network.

2.    Any provision in the city’s locally issued franchise authorizing the city to provide local emergency notifications shall remain in effect, and shall apply to all state franchise holders within the city limits, for the duration of the locally issued franchise.

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. Each state franchisee shall be exempt from all liability for the use of the emergency alert, and the city shall indemnify and hold each state franchisee harmless from any claims and damages arising out of any such use. (Ord. 2010-05 § 1 (Exh. A) (part), 2010)

5.56.070 Public, educational, and government access channel capacity, interconnection, signal carriage and support.

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 not more than 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 Support.

1.    Amount of PEG Support Fee. In addition to any franchise fee, any state franchise holder operating within the city shall pay to the city a PEG support fee, as follows:

a.    As of December 31, 2006, the city was imposing PEG support fees on the incumbent cable operator of one dollar and sixty cents per subscriber per month. As required by California Public Utilities Code Section 5870(n), the city hereby establishes PEG support fees of one dollar and sixty cents per subscriber per month.

b.    As of December 31, 2006, the PEG support fees were the equivalent of 2.8 percent of the gross revenues of the incumbent cable operator in the city. Effective with the expiration on October 20, 2012, of the existing franchise with the incumbent cable provider, currently Comcast, all state franchise holders operating within the city shall pay to the city a PEG support fee in the amount of 2.8 percent of gross revenues.

2.    The PEG support fee shall be used for PEG purposes, in a manner that is consistent with federal and state law.

3.    A state franchisee shall remit the PEG support fee to the city on a quarterly basis, within forty-five days after the end of each calendar quarter. Each payment made shall be accompanied by a report, acceptable to the city, detailing how the PEG support fee was calculated.

4.    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 one percent, to the extent that such a late payment charge is deemed to be consistent with DIVCA.

C.    PEG 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 federal law. After the initial designation of the PEG channel numbers, the channel numbers shall not be changed without the agreement of the city unless federal 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. (Ord. 2010-05 § 1 (Exh. A) (part), 2010)

5.56.080 Notices.

A.    Each state franchise holder or applicant for a state franchise shall file with the city a copy of all applications or notices relating to video service in the city that the state franchise holder or applicant is required to file with the California 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 section or the California Public Utilities Code shall be provided to both the city manager and the community development director, or their successors or designees. (Ord. 2010-05 § 1 (Exh. A) (part), 2010)