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HomeMy WebLinkAbout2007-07-10; City Council; NS-848; State video Franchises issued by the PUC...5 REGULATIONS APPLICABLE TO HOLDERS OF STATE 6 7 8 WHEREAS, the California Legislature adopted the Digital Infrastructure and 9 Video Competition Act of 2006 ("DIVCA") establishing a state video franchising scheme under which holders of state-issued video franchises would be partially regulated by the California Public Utilities Commission ("PUC") and partially regulated by local governments; and WHEREAS, under DIVCA, the PUC has authority to grant state franchises, regulate build-out and non-discrimination standards for state franchise holders, enforce 10 11 12 anti-subsidy provisions, and impose user and application fees; and 14 15 16 17 20 21 22 23 24 26 Exhibit 1 ORDINANCE NO. NS-848 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, AMENDING TITLE 5 OF THE CARLSBAD MUNICIPAL CODE, BUSINESS LICENSES AND REGULATIONS, BY ADDING CHAPTER 5.29 TO THE CARLSBAD MUNICIPAL CODE ADOPTING LOCAL VIDEO FRANCHISES ISSUED BY THE CALIFORNIA PUBLIC UTILITIES COMMISSION PURSUANT TO THE DIGITAL INFRASTRUCTURE AND VIDEO COMPETITION ACT OF 2006 [ASSEMBLY BILL 2987] 13 ai ni-oi WHEREAS, under DIVCA, the City has authority to manage the rights-of-way, regulate the payment of state franchise fees and PEG fees, require the provision PEG channels, and enforce federal and state customer service and the payment of PEG fees, and the management of pubic rights-of-ways; and WHEREAS, amending the Municipal Code to add Chapter 5.29, is necessary in order to preserve the City's authority to regulate state video franchise holders to the 18 CA.ICI II NOW THEREFORE, the City Council of the City of Carlsbad, California, does extent permitted under DIVCA. 19 ordain as follows: SECTION 1: That Title 5 of the Carlsbad Municipal Code is amended by adding Chapter 5.29 to read as follows: 5.29.010 Purpose 5.29.020 Rights Reserved 5.29.030 Compliance with Chapter 5.29 25 5.29.040 Definitions 5.29.050 State Video Franchise Fees 5.29.060 PEG Fees 5.29.070 Payment of Fees 5.29.080 Audit Authority27 5.29.090 Late Payments 28 1 2 5.29.130 Construction in the Public Rights-of-Way 5.29.140 Permits 4 5 6 7 8 9 10 11 12 13 14 15 21 22 23 24 26 27 Exhibit 1 5.29.100 Lease of City-owned Network 5.29.110 Customer Service Standards and Penalties 5.29.120 City Response to State Video Franchise Applications 5.29.150 Right-of-Way Management 5.29.160 Emergency Alert Systems 5.29.170 Interconnection for PEG Programming 5.29.010 Purpose This Chapter is applicable to all 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 video services in any portion of the City. 5.29.020 Rights Reserved The rights reserved to the City under this Chapter 5.29 are in addition to all other rights of the City whether reserved by this Chapter 5.29 or authorized by other applicable law, and no action, proceeding or exercise of a right shall affect any other rights which may be held by the City. 5.29.030 Compliance with Chapter 5.29 Nothing contained in this Chapter 5.29.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 17 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 18 section 5800. 19 5.29.040 Definitions 20 For purposes of this Chapter 5.29, the following terms, phrases, words, and their derivations shall have the meaning given in this chapter. Unless otherwise expressly stated, words not defined in this Chapter 5.29 shall be given the meaning set forth in the Digital Infrastructure and Video Competition Act of 2006, Division 2.5 of the California Public Utilities Code, section 5800 et seq. ("DIVCA"). 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. 25 (1) "Access channel" means any channel on a cable system or video system set aside by a State Franchise Holder for public, educational, or governmental use. (2) "Applicant" means any person submitting any application required under Division 2.5 of the California Public Utilities Code. 28 1 2 3 (4) "Cable service" means (i) the one-way transmission to subscribers of video programming or other programming services; and (ii) subscriber interaction, if any, which4 5 6 7 8 9 (6) "City Council" means the governing body of the City of Carlsbad, California. 10 (7) "City Director of Public Works" means the Director of Public Works of the city of Carlsbad or his designated representative. 21 23 24 25 Exhibit 1 (3) "Applicable law" means all lawfully enacted and applicable Federal, State, and City laws, ordinances, codes, rules, regulations and orders as the same may be amended or adopted from time to time. is required for the selection or use of such video programming or other programming service. (5) "City" means the city of Carlsbad, a municipal corporation of the state of California, in its present incorporated form or in any later reorganized, consolidated, enlarged or reincorporated. Any act that may be taken by the City may be taken by the City Council or any agency, department, agent or other entity now or hereafter authorized by the City Council to act on the City's behalf. 11 12 13 14 15 16 services, but refers to activities affecting rights-of-way and other property subject to the 17 jurisdiction of the City. 1ft (10) "DIVCA" means the Digital Infrastructure and Video Competition Act of 19 2006, Division 2.5 of the California Public Utilities Code, section 5800 et seq., as may be amended from time to time. 20 (11) "Gross revenues" means all revenues (whether in the form of cash or other (8) "City Manager" means the city's chief executive officer or any designee thereof. (9) "Construction," "operation," or "repair" and similar formulations of those terms mean the named actions interpreted broadly, encompassing, among other things, installation, extension, maintenance, replacement of components, relocation, undergrounding, grading, site preparation, adjusting, testing, make-ready, excavation and tree trimming. The term "operation" does not encompass or regulate the provision of consideration) of a State Franchise Holder or its affiliates in any way derived from its operations within the City. (12) "Incumbent cable operator" shall have the same meaning as in DIVCA. (13) "Network" shall have the same meaning as in DIVCA. (14) "PEG" or "Public, Educational, and Governmental" shall have the same meaning as in DIVCA. 26 (15) "Person" means any natural person and all domestic and foreign 27 corporations, associations, syndicates, joint stock corporations, partnerships of every 28 H 1 2 (16) "Public rights-of-way" shall have the same meaning as in DIVCA. o 4 5 6 7 (19) "Subscriber" means the City or any person who legally receives any cable 8 service or video service from a State Franchise Holder delivered over that State 9 Franchise Holder's network. 10 11 12 16 17 18 19 20 21 23 24 25 26 27 Exhibit 1 kind, clubs, business or common law trusts and societies. The term does not include the City. (17) "State Franchise" or "State Video Franchise" means a Franchise issued by the California Public Utilities Commission to provide cable service or video service, as those terms are defined in DIVCA, within any portion of the City. (18) "State Franchise Holder" or "State Video Franchise Holder" means a person who holds a state franchise. (20) "User" means a person or the City utilizing a channel, capacity or equipment and facilities for purposes of producing or transmitting material, as contrasted with the receipt thereof in the capacity of a subscriber. (21) "Video Service" shall have the same meaning as in DIVCA. 5.29.050 State Video Franchise Fees 14 For any State Video Franchise Holder operating within the boundaries of the 15 City, there shall be a state franchise fee paid to the City equal to five percent (5%) of the gross revenues of that State Video Franchise Holder or any affiliate that are subject to a franchise fee under California Public Utilities Code Section 5860. 5.29.060 PEG Fees (a) For any State Video Franchise Holder operating within the boundaries of the City of Carlsbad, there shall be a PEG fee paid to the City equal to one percent (1%) of the gross revenues of that State Video Franchise Holder or any affiliate that are subject to a franchise fee under California Public Utilities Code Section 5860. (b) PEG fees shall be used to support PEG channel facilities consistent with applicable federal and state law.22 5.29.070 Payment of Fees The state franchise fee required pursuant to Section 5.29.050, and the PEG fee required pursuant to Section 5.29.060, 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 28 3 broken out by service levels; 4 (ii) any charges to subscribers for which revenues were received, but on 5 6 7 5.29.080 Audit Authority8 g 10 11 12 In the event a State Franchise Holder fails to make payments required by this chapter on 13 14 15 16 21 23 24 25 Exhibit 1 the City Manager or designee may require consistent with DIVCA. Unless the City Manager or designee provides otherwise, the summary statement shall identify: (i) revenues received from subscribers, by category, with service revenues which a franchise fee was not paid; (iii) 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. The City may examine and perform an audit of the business records of a holder of a state video franchise to ensure compliance with Sections 5.29.050 and 5.29.060, in a manner consistent with California Public Utilities Code section 5860(i). 5.29.090 Late Payments 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%). 5.29.100 Lease of City-owned Network In the event a State Franchise Holder leases access to a network owned by the City, the City may set a franchise fee for access to the City-owned network separate and apart from the franchise fee charged to State Franchise Holders pursuant to Section 5.29.050, 18 which fee shall otherwise be payable in accordance with the procedures established by this Chapter. 19 5.29.110 Customer Service Standards and Penalties 20 (a) The holder of a State Video Franchise shall comply with all applicable state and federal customer service and protection standards pertaining to the provision of cable or video service, including, to the extent consistent with California Public Utilities Code section 5900, all existing and subsequently enacted customer service and consumer protection standards established by state and federal law and regulation. (b) City Manager or designee shall monitor and enforce the compliance of State Video Franchise Holders with respect to state and federal customer service and protection standards. City Manager or designee will provide the State Video Franchise Holder written notice of any material breaches of applicable customer and service standards, 26 and will allow the State Video Franchise Holder 30 days from the receipt of the notice to 27 remedy the specified material breach. Material breaches not remedied within the 30-day 28 3 the violation remains in effect, not to exceed $1500.00 for each violation. 4 (2) For a second violation of the same nature within 12 months, a fine of 5 n $3000.00 for each violation. 6 (3) For a third or further violation of the same nature within 12 months, a fine of $2500.00 shall be imposed for each day the violation remains in effect, not to exceed $7,500.00 for each violation. 9 10 vacate the penalty. City Council's decision on the imposition of a penalty shall be final. 11 5.29.120 City Response to State Video Franchise Applications 18 19 23 24 25 26 Exhibit 1 time period will be subject to the following penalties to be imposed by the City Manager or designee: (1) For the first occurrence of a violation, a fine of $500.00 shall be imposed for each day $1 000.00 shall be imposed for each day the violation remains in effect, not to exceed (c) A State Video Franchise Holder may appeal a penalty assessed by the City Manager or designee to the City Council within 60 days. After relevant speakers are heard, and any necessary staff reports are submitted, City Council will vote to either uphold or (a) Each State Franchise Holder or applicant for a state franchise to provide video or cable service within the boundaries of the City of Carlsbad must concurrently provide complete copies to the City of any notice, application or amendments to applications filed with the PUC. One complete copy must be provided to the City Clerk, and one complete copy to the City Manager of City of Carlsbad. (b) City Manager will provide any appropriate comments to the PUC regarding any 5.29.130 Construction in the Public Rights-of-Way Except as expressly provided in this Chapter 5.29, the provisions of Title 11 of this Code, and all City administrative rules and regulations developed pursuant to Title 11, as now existing or as hereafter amended, shall apply to all work performed by or on behalf of a20 State Franchise Holder in any public rights-of-way. 21 5.29.140 Permits22 (a) Prior to commencing any work for which a permit is required by Title 11 of this Code, a State Franchise Holder shall apply for and obtain a permit in accordance with the provisions of Title 11. A permit application is complete when the State Franchise Holder has complied with all applicable laws and regulations, including but not limited to all City administrative rules and regulations, and all applicable requirements of Division 13 of the California Public Resources Code, section 21000, et seq. (the California Environmental Quality Act). 27 28 7 furnish to the applicant a detailed explanation of the reason or reasons for the denial. 5 (d) A State Franchise Holder that has been denied a permit by final decision of the City e Director of Public Works may appeal the denial to the City Council, pursuant to the procedure proscribed in Section 11.16.120 of this Code. 7 (e) The issuance of a permit is not a franchise, and does not grant any vested rights in 8 any location in the Public rights-of-way, or in any particular manner of placement within the rights-of-way. Without limitation, a permit to place cabinets and similar appurtenances aboveground may be revoked and the permittee required to place facilities underground, upon reasonable notice to the permittee. 5.29.150 Right-of-Way Management (a) A State Franchise Holder shall utilize existing poles, conduits and other facilities whenever possible, and shall not construct or install any new, different or additionalI o 9 10 11 12 14 15 16 17 18 19 23 24 25 26 Exhibit 1 (b) The City Director of Public Works shall either approve or deny a State Franchise Holder's application for any permit required under Division 1 of this title within sixty (60) days of receiving a complete permit application from the State Franchise Holder. (c) If the City Director of Public Works denies a State Franchise Holder's application for a permit, the Director of Public Works shall, at the time of notifying the applicant of denial, poles, conduits or other facilities whether on public property or on privately owned property unless and until first securing the written approval of the City Manager. Whenever the State Franchise Holder shall not utilize existing poles, conduits and other facilities, or whenever existing conduits and other facilities shall be located beneath the surface of the streets, or whenever the City shall undertake a program designed to cause all conduits and other facilities to be located beneath the surface of the streets in any area or throughout the City, in the exercise of its police power or pursuant to the terms hereof, upon reasonable notice to grantee, any such conduits or other facilities of the State Franchise Holder shall be constructed, installed, placed or replaced beneath the surface of the streets. Any construction, installation, placement, replacement or changes which may be so required shall be made at the expense of State Franchise Holder whose costs shall be determined as in the case of public utilities. 20 (b) In those areas of the City where the transmission or distribution facilities of the 21 respective public utilities providing telephone, communication and electric services are underground or hereafter are placed underground, each State Franchise Holder shall likewise shall construct, operate and maintain all of its network facilities underground. The term "underground" includes a partial underground system; provided, that upon obtaining the written approval of the City Manager, passive devices, power supplies and other equipment in the grantee's network may be placed in appropriate housings upon the surface of the ground, subject to applicable provisions of the City code, regulations, and practices. . (c) A State Franchise Holder, at it's expense, shall protect, support, temporarily disconnect, relocate or remove any network property of the State Franchise Holder when, in the opinion of the City Manager, the same is required by reason of traffic 28 14 15 16 17 19 20 21 Exhibit 1 conditions, public safety, street vacation, freeway or street construction, change or establishment of street grade, installation of sewers, drains, waterpipes, power line, signal line, transportation facilities, tracks or any other type of structure or improvements by governmental agencies whether acting in a governmental or proprietary capacity, or any other structure of public improvement, including but not limited to movement of buildings, urban renewal development and any general program under which the City shall undertake to cause all such properties to be located beneath the surface of the ground. The State Franchise Holder shall in all cases have the privilege, subject to the corresponding obligations, to abandon any network property in place, as herein provided. Nothing hereunder shall be deemed a taking of the property of the State Franchise Holder, and the grantee shall be entitled to no surcharge by reason of anything hereunder. (d) Upon the failure, refusal or neglect of the State Franchise Holder to cause any work or other act required by law or hereunder to be properly complete in, on, over or under any street within any time prescribed therefor, or upon notice given, where no time is prescribed, the City Manager may cause such work or other act to be completed in whole or in part, and upon so doing, shall submit to grantee an itemized statement of the costs thereof. The grantee shall, within thirty days after receipt of such statement, pay to the notice to and approval by the City; or any part of such network has been installed in any street or other area without complying with the requirements hereof; then the State Franchise Holder shall, at the option of the City, and at the expense of the State Franchise Holder and at no expense to the City, and upon demand of the City, promptly remove from any streets or other area any such network property, and the State Franchise Holder shall promptly restore the street or other area from which such property has been removed to such condition as the City Manager may prescribe. The City Council may, upon written application therefor by the State Franchise Holder, approve the abandonment of any of such property in place by the State Franchise Holder and under such terms and conditions as the City Council may prescribe. Upon abandonment of any such network property in place, the State Franchise Holder shall cause to be executed, acknowledged and delivered to the City such instruments as the City attorney shall prescribe and approve, transferring and conveying the ownership of such property to the City. 22 5.29.160 Emergency Alert Systems 23 Each State Franchise Holder shall comply with the emergency alert system requirements 24 of the Federal Communications Commission in order that emergency messages may be distributed over the State Franchise Holder's network. 25 5.29.170 Interconnection for PEG Programming 26 Each State Franchise Holder, and each incumbent cable operator, shall negotiate in good faith to interconnect their networks for the purpose of providing PEG programming. 28 1 2 not withhold the interconnection. If a State Franchise Holder and an incumbent cable 3 operator cannot reach a mutually acceptable interconnection agreement, the City may 4 5 6 7 8 9 23 24 25 26 Exhibit 1 Interconnection may be accomplished by any means authorized under Public Utilities Code Section 5870(h). Each State Franchise Holder and incumbent cable operator shall provide interconnection of PEG channels on reasonable terms and conditions and may require the incumbent cable operator to allow the State Franchise Holder 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 State Franchise Holder. If no technically feasible point for interconnection is available, each State Franchise Holder will make an interconnection available to each channel originator providing PEG programming to an incumbent cable operator, and will provide the facilities necessary for the interconnection. The cost of any interconnection will be borne by the State Franchise Holder requesting the interconnection unless otherwise agreed to by the State Franchise Holder and the incumbent cable operator. EFFECTIVE DATE: This ordinance shall be effective thirty days after its adoption 10 and the City Clerk shall certify the adoption of this ordinance and cause it to be published 11 at least once in a newspaper of general circulation in the City of Carlsbad within fifteen12 days after its adoption. I O 14 15 16 17 18 /// 19 /// 20 /// 21 /// 22 /// III III III 27 /// 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 INTRODUCED AND FIRST READ at a regular meeting of the Carlsbad City Council on the 26th day of June, 2007, and thereafter. PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of Carlsbad on the 10th day of July, 2007, by the following vote: AYES: Council Members Lewis, Kulchin, Hall, Packard and Nygaard. NOES: None. ABSENT: None. ABSTAIN: None. APPROVED AS TO FORM AND LEGALITY . y^CT) R. BALL, City Attorney CLA ATTEST: (SEAL)