Chapter 5.20
CABLE TELEVISION FRANCHISE*

Sections:

5.20.010    Purpose and application of this chapter.

5.20.020    State video franchise fees and public, educational and governmental (PEG) access fees.

5.20.030    Audit authority.

5.20.040    Late payments.

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

5.20.060    Customer service penalties.

5.20.070    Emergency alert.

5.20.080    Notices.

5.20.090    Permits and construction.

*    Prior history: Prior code §§ 4A.1—4A.91.

5.20.010 Purpose and application of this chapter.

A.    This chapter is designed to regulate video service providers holding state video franchises and operating within the city of St. Helena. On January 1, 2007, the state of California became the sole authority with power to grant state video franchises pursuant to the Digital Infrastructure and Video Competition Act of 2006 (“DIVCA”). Pursuant to DIVCA, the city of St. Helena shall receive a franchise fee from all state franchisees. In addition, the city shall receive from all state franchisees fees to support public, educational, and government (“PEG”) access channel facilities. DIVCA confirmed that the city may establish and enforce penalties, consistent with state law, against all state video franchise holders operating within the city for violations of customer service standards. DIVCA precludes the city from adopting its own standards and grants all authority to adopt customer service standards to the state. DIVCA leaves unchanged the city’s authority to regulate the city’s current cable franchises and any city cable franchise(s) issued on or before January 1, 2008, until the expiration of any such franchise(s).

B.    This chapter is applicable to all cable service and video service providers who are eligible for, and 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), to provide cable or video services to the city of St. Helena.

C.    Nothing contained in this Chapter 5.20 exempts 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 not inconsistent with this chapter or California Public Utilities Code Section 5800 et seq., or obligations under any franchise previously issued by the city, insofar as those may be enforced under California Public Utilities Code Section 5800.

D.    The rights reserved to the city under this Chapter 5.20 are in addition to all other rights of the city, whether reserved by this Chapter 5.20 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. The city reserves its rights to the lawful exercise of police and other powers the city now has or may later obtain. Except as otherwise provided by DIVCA, a state franchise shall not include, or be a substitute for:

1.    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, non-video services;

2.    Any permit or authorization, other than a state franchise, 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

3.    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. (Ord. 12-3 § A (Exh. A))

5.20.020 State video franchise fees and public, educational and governmental (PEG) access fees.

A.    Any state video franchise holder operating within the boundaries of the city shall pay a fee to the city equal to five percent (5%) of the gross revenues of that state video franchise holder.

B.    Each state franchisee shall pay a fee to the city equal to one percent (1%) of gross revenues (“PEG access facilities fee”) of that state video franchise holder to support public, education, and governmental (PEG) access channel facilities within the city.

C.    The state franchise fee required pursuant to subsection A of this section and the PEG fee required pursuant to subsection B of this section shall each be paid to the city 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 specified by the city, a payment for the state franchise fee and a separate payment for the PEG fee not later than forty-five (45) days after the end of each calendar quarter. Each payment made shall be accompanied by a report, detailing how the payment was calculated, containing such information as the city manager or designee may require, consistent with DIVCA. Unless the city manager or designee provides otherwise, the summary statement shall identify:

1.    Revenues received from subscribers, by category, with service revenues broken out by service levels;

2.    Any charges to subscribers for which revenues were received, but on which a franchise fee was not paid; and

3.    Where the fee is paid on an allocated portion of revenues received, the total revenues received; the allocation factor; and how the allocation factor was calculated.

D.    Gross revenue, for the purposes of subsections A and B of this section, shall have the definition set forth in California Public Utilities Code Section 5860. (Ord. 12-3 § A (Exh. A))

5.20.030 Audit authority.

Not more than once annually, the city manager or his designee may examine and perform an audit of the business records of a holder of a state video franchise to ensure compliance with Section 5.20.020 in a manner consistent with California Public Utilities Code Section 5860(i). (Ord. 12-3 § A (Exh. A))

5.20.040 Late payments.

In the event a state franchise holder fails to make payments 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 (1%). (Ord. 12-3 § A (Exh. A))

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

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 provided in California Public Utilities Code Section 5870(a).

2.    A state franchisee shall provide an additional PEG channel when the standards set forth in California Public Utilities Code Section 5870(d) are satisfied by the city or any entity designated by the city to manage one or more of the PEG channels.

B.    PEG Carriage and Interconnection.

1.    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 (unless the PEG signal is provided to the state franchisee at a lower quality or with less functionality), 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.    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 the PEG channel originator 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. 12-3 § A (Exh. A))

5.20.060 Customer service penalties.

A.    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.

B.    The city will provide any holder of a state video franchise written notice of any material breach of applicable customer service and protection standards, and will allow the franchise holder at least thirty (30) calendar days from the receipt of the notice to remedy the specified material breach. A material breach that is not remedied by the state video franchise holder within the remedy period shall subject the state video franchise holder to the following penalties to be imposed by the city:

1.    For the first occurrence of a material breach, a penalty of not more than five hundred dollars ($500.00) for each day of each material breach, not to exceed one thousand five hundred dollars ($1,500.00) for each occurrence of a material breach.

2.    For the second violation of the same nature within twelve (12) months, a penalty of one thousand dollars ($1,000.00) for each day of each material breach, not to exceed three thousand dollars ($3,000.00) for each occurrence of the material breach.

3.    For a third or further violation of the same nature within twelve (12) months, a penalty of two thousand five hundred dollars ($2,500.00) for each day of each material breach, not to exceed seven thousand five hundred dollars ($7,500.00) for each occurrence of the material breach.

C.    Any notice and any penalty may be issued or imposed by the city manager, or the city manager’s designee. Any notice shall be in writing. Notices shall be transmitted by United States Postal Service certified or registered mail, return receipt requested and postage prepaid, or by private commercial delivery or courier service for same day or next business day delivery with delivery and receipt signature required.

D.    The state video service franchise holder may appeal any finding of material breach or imposition of penalties to the city council. Any appeal must be made within thirty (30) calendar days of receipt by the state video service franchise holder of the finding of material breach or the imposition of penalties, and must be submitted in writing to the city clerk and the city manager in order to be placed on a city council agenda for consideration. Any appeal must contain a detailed explanation of why the applicant believes that the finding of material breach or the imposition of penalties was inconsistent with statutory requirements.

E.    The city and any state video service franchise holder may mutually agree to extend the time periods specified herein. Any such agreement shall be in writing and executed by the city manager, or the city manager’s designee, and an authorized representative of the state video franchise holder.

F.    Any penalty imposed on the state video franchise holder shall be paid to the city. As provided for in California Public Utilities Code Section 5900(g), the city shall submit one-half of all penalties received from a state video franchise holder to the digital divide account established in California Public Utilities Code Section 280.5. (Ord. 12-3 § A (Exh. A))

5.20.070 Emergency alert.

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 franchise holder shall incorporate into its network the capability to permit the city to override the audio portion of all channels simultaneously in times of emergency. In addition, each state franchise holder may be required to designate a channel, which may be a PEG channel, to be used for audio and video emergency broadcasts. The state franchise holder shall cooperate with the city in the use and operation of said emergency alert override system. (Ord. 12-3 § A (Exh. A))

5.20.080 Notices.

A.    Each state franchise holder or applicant for a state franchise shall file with the city a copy of all applications or notices that the state franchise holder or applicant is required to file with the California Public Utilities Commission.

B.    Unless otherwise specified in this section, 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. 12-3 § A (Exh. A))

5.20.090 Permits and construction.

A.    Prior to commencing any work for which a permit is required by any provision of the St. Helena Municipal Code, a state franchise holder shall apply for and obtain a permit in accordance with the provisions of the applicable code section 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).

B.    The public works director shall either approve or deny a state franchise holder’s application for any permit required under subsection A of this section within sixty (60) days of receiving a completed permit application from the state franchise holder.

C.    If the public works director denies a state franchise holder’s application for a permit, the public works director shall, at the time of notifying the applicant of denial, furnish to the applicant a detailed explanation of the reason or reasons for the denial.

D.    A state franchise holder that has been denied a permit by final decision of the public works director may appeal the denial to the city council. Upon receiving a notice of appeal, the city council shall take one of the following actions:

1.    Affirm the action of the public works director without any further hearing; or

2.    Refer the matter back to the public works director for further review with or without instructions; or

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

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 public works director unless the city council is itself conducting a public hearing on the matter.

E.    Notification to Residents Regarding Construction or Maintenance. Prior to any construction, rebuild, or upgrade of a cable or video system, a state franchise holder shall establish procedures to notify city residents in the impacted area of construction schedules and activities. Such notices must be provided in English and the predominant languages spoken by those persons who work and/or reside in the impacted area. The notices shall be provided to the public works director for review and approval no later than twenty (20) days before commencement of construction, rebuild, or upgrade activities.

F.    At a minimum, the notice required in subsection G of this section shall be provided by the state franchise holder to impacted residents and occupants in the construction area not less than forty-eight (48) hours prior to the planned construction. The state franchise holder shall provide additional notice to the persons described in subsection G of this section on the day of construction. The notice may be in the form of door hangers that indicate, at a minimum, the dates and times of construction and the name and telephone number of a state franchise holder contact.

G.    The state franchise holder shall provide notice at least twenty (20) days prior to entering private property or public ways or public easements adjacent to or on such private property, public ways, or public easements, and provide a second notice three days prior to entering such property.

1.    Should there be aboveground or underground installations (excluding aerial cable lines utilizing existing poles and cable paths) which will affect the private property, such notice shall be in writing and shall contain specific information regarding any aboveground or underground installations (excluding aerial cable lines utilizing existing poles and existing cable paths) which shall affect the private property.

2.    To the extent practicable, aboveground or underground 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 at least twenty (20) days’ advance written notice of its plans to install such equipment, and shall obtain express written consent, in the form of a recorded easement agreement, from the private property owner before installing its appurtenances. The state franchise holder shall notify the property owner, in writing, that the property owner is not obligated to agree to the placement on their property or to enter into an easement agreement with the state franchise holder. Should property owner notify the state franchise holder of objection to placement of any such aboveground or underground installations (excluding aerial cable lines utilizing existing poles and existing cable paths), the state franchise holder shall confer with the city public works department regarding appropriate location and placement of such appurtenances.

In addition to any other notice of proposed entry required under this subsection, a state franchise holder’s personnel shall make a reasonable attempt to give personal notice to residents immediately preceding entry on private property or public ways or public easements adjacent to or on such private property.

H.    Identification Required. A state franchise holder, its employees, agents, contractors, and subcontractors shall be properly identified as agents of the state franchise holder prior to and during entry on private and public property. Identification shall include the name and telephone number of the state franchise holder on all trucks and vehicles used by installation personnel.

I.    Restoration of Private and Public Property. After performance of work, the state franchise holder shall restore such private and public property to a condition equal to or better than its condition prior to construction. Any disturbance of landscaping, fencing, or other improvements upon private or public property shall, at the sole expense of the state franchise holder, be promptly repaired or restored (including replacement of such valuables as shrubbery and fencing) to the reasonable satisfaction of the property owner, in addition to the furnishing of camouflage plants on public property.

J.    Reports to the Public Works Director. Each state franchise holder, within sixty (60) days after the expiration of each calendar year, shall file a report with the public works director, which shall contain a street and highway map or maps of any convenient scale on which shall be plotted the location of the entire transmission and distribution system or systems covered by the report as of the last day of the calendar year, with the system or systems located in city highways indicated by distinctive coloration or symbols. (Ord. 12-3 § A (Exh. A))