Chapter 5.22
VIDEO SERVICE PROVIDED BY STATE FRANCHISE HOLDERS
Sections:
5.22.100 Purpose and applicability.
5.22.110 Franchise fee for state franchise holders.
5.22.115 Public, educational, and government channels.
5.22.125 Customer service penalties for state franchise holders.
5.22.130 Appeal process for customer service penalties.
5.22.140 Authority to examine business records.
5.22.145 Environmental review.
5.22.150 Emergency alert system.
5.22.155 Non-discriminatory video service.
5.22.160 City response to state video franchise applications.
5.22.100 Purpose and applicability.
The purpose of this chapter is to set forth regulations for the provision of video service 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 shall apply only to video service providers issued a state franchise to serve any area within the city by the California Public Utilities Commission (“CPUC”) pursuant to DIVCA. (Ord. 820 § 2(part), 2009).
5.22.105 Definitions.
For the purposes of this chapter, the words set out in this section shall have the following meanings:
A. “Cable service” shall have the meaning given that term by California Public Utilities Code Section 5830(c).
B. “City” shall mean the city of Cotati.
C. “City council” shall mean the city council of the city.
D. “Encroachment” includes going upon, over or under a public right-of-way or easement or an area adjacent to a public right-of-way or easement or using a public right-of-way or easement or an area adjacent to a public right-of-way or easement in such a manner as to prevent, obstruct or interfere with the intended use of the public right-of-way or easement or a modification of its mode of use, and shall include excavation and disturbance, installation, construction, placement, erection and maintenance of any physical improvement (permanent or temporary) or network within, upon, over, or under the public right-of-way or easement.
E. “Encroachment permit” shall have the meaning given that term by California Public Utilities Code Section 5885(c)(1), which shall include any permit issued by the city pursuant to the Cotati Municipal Code.
F. “Franchise” shall have the meaning given that term by California Public Utilities Code Section 5830(f).
G. “Franchise fee” shall have the meaning given that term by California Public Utilities Code Section 5830(g).
H. “Gross revenues” shall have the meaning given that term by California Public Utilities Code Section 5860.
I. “Holder” shall have the meaning given that term by California Public Utilities Code Section 5830(i).
J. “Incumbent cable operator” shall have the meaning given that term by California Public Utilities Code Section 5830(j).
K. “Lead agency” shall have the meaning given that term by the California Public Resources Code Section 21067.
L. “Local franchise” shall mean a cable television franchise, permitting the incumbent cable operator to own, operate, and maintain a cable system and provide cable services within the city, issued by the city prior to December 31, 2006.
M. “Material breach” shall have the meaning given that term by California Public Utilities Code Section 5900(j).
N. “Network” shall have the meaning given that term by California Public Utilities Code Section 5830(l), which shall include any component of a facility used to provide video service, cable service, voice, or data services that is wholly or partly physically located within, upon, over or under a public right-of-way.
O. “Public right-of-way” shall have the meaning given that term by California Public Utilities Code Section 5830(o) and public rights-of-way which have been dedicated to the public or are hereafter dedicated to the public and maintained under public authority or by others and located within the service area: streets, roadways, highways, avenues, lanes, alleys, sidewalks, easements, rights-of-way and similar public property.
P. “State franchise” shall have the meaning given that term by California Public Utilities Code Section 5830(p).
Q. “Video service” shall have the meaning given that term by California Public Utilities Code Section 5830(s). (Ord. 820 § 2(part), 2009).
5.22.110 Franchise fee for state franchise holders.
Any state franchise holder shall remit to the city a franchise fee in the amount of five percent of the gross revenues of the state franchise holder in compliance with California Public Utilities Code Sections 5840(q) and 5860. (Ord. 820 § 2(part), 2009).
5.22.115 Public, educational, and government channels.
A. Any state franchise holder shall remit to the city a fee to support public, educational and governmental (“PEG”) channel facilities in the amount of one percent of the gross revenues of the state franchise holder in compliance with California Public Utilities Code Section 5870. All revenue collected pursuant to this fee shall be deposited in a separate fund and shall only be expended for the purpose of supporting PEG channel facilities.
B. Any state franchise holder shall designate a sufficient amount of capacity on its network to allow the provision of PEG channels in accordance with California Public Utilities Code Section 5870. Any state franchise holder shall have three months from the date the city requests the PEG channels to designate the capacity. The three-month period shall be tolled by any period during which the designation or provision of PEG channel capacity is technically infeasible.
C. This section shall be enforced, and disputes regarding this section shall be resolved, pursuant to California Public Utilities Code Section 5870.
D. Notwithstanding Public Utilities Code Section 5870(n), upon the expiration of any state franchise, without any action of the city council, this section shall be deemed to have been automatically reauthorized unless the state franchise holder has given the city council and city manager written notice sixty days prior to the expiration of its state franchise that this section will expire pursuant to the terms of Public Utilities Code Section 5870(n). (Ord. 871 § 2, 2017; Ord. 820 § 2(part), 2009).
5.22.120 Payment of fees.
A. Any state franchise holder shall pay the franchise fee established in Section 5.22.110 and the PEG channel facilities fee established in Section 5.22.115(A) on a quarterly basis in a manner consistent with California Public Utilities Code Section 5860.
B. Any state franchise holder shall deliver to the city by check, or other means agreeable to the city manager, a separate payment for the franchise fee established in Section 5.22.110 and the PEG channel facilities fee established in Section 5.22.115(A) not later than forty-five days after the end of each calendar quarter.
C. Each payment of the franchise fee established in Section 5.22.110 delivered to the city shall be accompanied by a summary report explaining the basis for the calculation of the payment.
D. If any state franchise holder fails to remit the franchise fee established in Section 5.22.110 when due, the state franchise holder shall remit to the city a late payment charge at the rate per year equal to the highest prime lending rate during the period of delinquency plus one percent.
E. This section shall be enforced, and disputes regarding this section shall be resolved, pursuant to California Public Utilities Code Section 5870. (Ord. 820 § 2(part), 2009).
5.22.125 Customer service penalties for state franchise holders.
A. Any state franchise holder shall comply with the customer service provisions set forth in California Public Utilities Code Section 5900.
B. The city shall impose the following penalties against a state franchise holder for any material breach of the customer service provisions set forth in California Public Utilities Code Section 5900:
1. For the first occurrence of a material breach, a fine of five hundred dollars shall be imposed for each day of each material breach, not to exceed one thousand five hundred dollars for each occurrence of the material breach.
2. For a second occurrence of a material breach of the same nature as the first material breach that occurs within twelve months, a fine of one thousand dollars shall be imposed for each day of each material breach, not to exceed three thousand dollars for each occurrence of the material breach.
3. For a third or further occurrence of a material breach of the same nature as the previous material breaches that occurs within twelve months, a fine of two thousand five hundred dollars shall be imposed for each day of each material breach, not to exceed seven thousand five hundred dollars for each occurrence of the material breach.
C. The city shall provide the state franchise holder with written notice of any alleged material breach of the customer service provisions set forth in California Public Utilities Code Section 5900 and shall allow the state franchise holder at least thirty days from receipt of the notice to remedy the specified material breach.
D. A material breach for the purposes of assessing penalties shall be deemed to have occurred for each day within the jurisdiction of the city, following the expiration of the period specified in subsection C of this section, that any material breach has not been remedied by the state franchise holder, irrespective of the number of customers affected. No monetary penalties shall be assessed for a material breach if it is out of the reasonable control of the state franchise holder.
E. Pursuant to California Public Utilities Code Section 5900, any penalty remitted to the city by a state franchise holder for a material breach of the customer service provisions set forth in California Public Utilities Code Section 5900 shall be split in half, and the city shall submit one-half of the penalty amount to the Digital Divide Account established by California Public Utilities Code Section 280.5. (Ord. 820 § 2(part), 2009).
5.22.130 Appeal process for customer service penalties.
Any state franchise holder may appeal any customer service penalty assessed pursuant to Section 5.22.125 according to the following procedure:
A. The state franchise holder may file a request for hearing form with the city clerk within thirty days from receipt of the written notice specified in Section 5.22.125(C) with an advance deposit of the penalty amount.
B. A request for hearing form may be obtained from the city clerk.
C. The state franchise holder requesting the hearing shall be notified by the city clerk of the time and place set for the hearing at least ten days prior to the date of the hearing.
D. The hearing shall be set by the city clerk for a date that is not less than fifteen days and not more than sixty days from the date that the request for hearing form is filed with the city clerk.
E. At the hearing, the city shall bear the burden of proof by a preponderance of the evidence that the material breach occurred as charged. The city may be represented by counsel.
F. At the hearing, the state franchise holder may cross examine any witness against the state franchise holder and may present evidence. The state franchise holder may be represented by counsel.
G. The formal rules of evidence shall not apply at the hearing. The hearing officer may rely upon such evidence as he or she believes reasonable persons would rely upon in the conduct of their affairs. Any witnesses shall testify under oath.
H. After hearing and reviewing all of the testimony and evidence submitted at the hearing, the hearing officer shall issue a written decision to uphold or cancel the penalty and shall list in the decision the reasons for that decision. The decision of the hearing officer shall be final.
I. If the hearing officer determines that the penalty should be canceled, the city shall promptly refund the amount of the deposited penalty, together with interest at the average rate earned on the city’s investment portfolio for the period of time that the penalty amount was held by the city.
J. The hearing officer shall be the city manager or his or her designee.
K. Any interested person may obtain review of the decision of the hearing officer by filing an appeal in a court of competent jurisdiction pursuant to California Public Utilities Code Section 5900. (Ord. 820 § 2(part), 2009).
5.22.135 Permits.
A. Encroachment Permit. To the extent allowed by law, any state franchise holder shall apply for an encroachment permit to install, construct or maintain a network pursuant to the Cotati Municipal Code. In addition to Cotati Municipal Code procedures, the following shall apply to any state franchise holder applying for an encroachment permit:
1. Any encroachment permit application submitted by any state franchise holder shall be approved or denied within sixty days of receipt by the city of a completed application. An application for an encroachment permit is complete when the state franchise holder has complied with all statutory requirements, including CEQA, pursuant to California Public Utilities Code Section 5885.
2. The sixty-day time period for approval or denial of an encroachment permit application may be extended if mutually agreed to in a written agreement between the state franchise holder and the city.
3. Any denial of an encroachment permit application submitted to any state franchise holder by the city shall be written and shall include a detailed explanation of the reason for the denial.
4. Any state franchise holder may appeal a denial of an encroachment permit application or a condition placed on an approved encroachment permit to the city manager or his/her designee by submitting a written appeal within fifteen days of the date the application was denied or condition imposed. The city manager or his/her designee shall thereafter give written notice to the state franchise holder of a hearing to be held within thirty days of receipt of the appeal. The decision of the city manager or his/her designee on the appeal shall be final.
B. Other Permits. Any state franchise holder shall apply for any other permits required by the Cotati Municipal Code to the extent allowed by law and in particular allowed by Public Resources Code Section 5885. (Ord. 820 § 2(part), 2009).
5.22.140 Authority to examine business records.
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 California 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 California Public Utilities Code Section 5860.
C. If the state franchise holder has underpaid the franchise fee established by Section 5.22.110 by more than five percent, the state franchise holder shall pay the reasonable and actual costs of the examination. If the state franchise holder has not underpaid the franchise fee established in Section 5.22.110, 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 Section 5.22.110 by five percent or less, the state franchise holder and the city shall each bear their own costs of the examination. (Ord. 820 § 2(part), 2009).
5.22.145 Environmental review.
The city shall serve as the lead agency for any environmental review under DIVCA. The city may impose conditions to mitigate environmental impacts of any state franchise holder’s use of the public rights-of-way that may be required pursuant to the California Environmental Quality Act, California Public Resources Code Sections 21000 et seq. (“CEQA”). (Ord. 820 § 2(part), 2009).
5.22.150 Emergency alert system.
All state franchise holders shall comply with the Emergency Alert System requirements of the Federal Communications Commission in order that emergency messages may be distributed over all state franchise holders’ networks. (Ord. 820 § 2(part), 2009).
5.22.155 Non-discriminatory video service.
Any state franchise holder is prohibited from discriminating against or denying access to service to any group of potential residential subscribers within the city because of the income of the residents in the local area in which the group resides. This requirement may be satisfied pursuant to California Public Utilities Code Section 5890. The city may bring complaints to the CPUC that a state franchise holder is not offering video services as required by California Public Utilities Code Section 5890. (Ord. 820 § 2(part), 2009).
5.22.160 City response to state video franchise applications.
A. Applicants for state video franchises within the boundaries of the city of Cotati must concurrently provide complete copies to the city of any application or amendments to applications filed with the California Public Utilities Commission (PUC) and any other agency. One complete copy must be provided to the city manager.
B. Within thirty days of receipt, the city manager may provide any appropriate comments to the PUC or other agency regarding an application or an amendment to an application for a state video franchise. (Ord. 820 § 2(part), 2009).