Chapter 6.10
VIDEO SERVICE PROVIDED BY STATE FRANCHISE HOLDERS
Sections:
6.10.010 Purpose and applicability.
6.10.030 Franchise fee for State franchise holders.
6.10.040 Public, educational, and governmental channel facilities.
6.10.060 Customer service penalties for State franchise holders.
6.10.070 Appeal process for customer service penalties.
6.10.080 Public rights-of-way.
6.10.090 Authority to examine and audit business records.
6.10.100 Environmental review.
6.10.110 Emergency alert system.
6.10.120 Nondiscriminatory video service.
6.10.010 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, Cal. Pub. Util. Code § 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. 07-017.]
6.10.020 Definitions.
For the purposes of this chapter, the words set out in this section shall have the following meanings:
“Cable service” shall have the meaning given that term by Cal. Pub. Util. Code § 5830(c).
“City” shall mean the City of Dixon.
“Franchise” shall have the meaning given that term by Cal. Pub. Util. Code § 5830(f).
“Franchise fee” shall have the meaning given that term by Cal. Pub. Util. Code § 5830(g).
“Gross revenues” shall have the meaning given that term by Cal. Pub. Util. Code § 5860.
“Holder” shall have the meaning given that term by Cal. Pub. Util. Code § 5830(i).
“Incumbent cable operator” shall have the meaning given that term by Cal. Pub. Res. Code § 21067.
“Lead agency” shall have the meaning given that term by Cal. Pub. Res. Code § 21067.
“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.
“Material breach” shall have the meaning given that term by Cal. Pub. Util. Code § 5900(j).
“Network” shall have the meaning given that term by the Cal. Pub. Util. Code § 5830(l).
“Public right-of-way” shall have the meaning given that term by Cal. Pub. Util. Code § 5830(o).
“State franchise” shall have the meaning given that term by Cal. Pub. Util. Code § 5830(p).
“Video service” shall have that meaning given that term by Cal. Pub. Util. Code § 5830(s). [Ord. 07-017.]
6.10.030 Franchise fee for State franchise holders.
Any State franchise holder shall remit to the City a franchise fee in the amount of five percent (5%) of the gross revenues of the State franchise holder in compliance with Cal. Pub. Util. Code §§ 5840(q) and 5860. [Ord. 07-017.]
6.10.040 Public, educational, and governmental channel facilities.
A. Any State franchise holder shall remit to the City a fee to support public, educational, and government (“PEG”) channel facilities in the amount of one percent (1%) of the gross revenues of the State franchise holder in compliance with Cal. Pub. Util. Code § 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 Cal. Pub. Util. Code § 5870. Any State franchise holder shall have three (3) months from the date the City requests the PEG channels to designate the capacity. The three (3) month period shall be tolled by any period during which the designation or provision of PEG channel capacity is technically infeasible.
C. All obligations to provide and support PEG channel facilities and institutional networks and to provide cable services to community buildings contained in a local franchise existing on December 31, 2006, shall continue until January 1, 2009.
D. This section shall be enforced, and disputes regarding this section shall be resolved, pursuant to Cal. Pub. Util. Code § 5870. [Ord. 07-017.]
6.10.050 Payment of fees.
A. Any State franchise holder shall pay all fees required pursuant to DMC 6.10.030 and 6.10.040 on a quarterly basis in a manner consistent with Cal. Pub. Util. Code § 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 DMC 6.10.030 and PEG channel facilities fee established in DMC 6.10.040 not later than forty-five (45) days after the end of each calendar quarter.
C. Each payment of the franchise fee established in DMC 6.10.030 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 all fees required pursuant to DMC 6.10.030 and 6.10.040 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 (1%). [Ord. 07-017.]
6.10.060 Customer service penalties for State franchise holders.
A. Any State franchise holder shall comply with the customer service provisions set forth in Cal. Pub. Util. Code § 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 Cal. Pub. Util. Code § 5900:
1. For the first occurrence of a material breach, a fine of five hundred dollars ($500.00) shall be imposed for each day of each material breach, not to exceed one thousand five hundred dollars ($1,500.00) 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 (12) months, a fine of one thousand dollars ($1,000.00) shall be imposed 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 occurrence of a material breach of the same nature as the previous material breaches that occurs within twelve (12) months, a fine of two thousand five hundred dollars ($2,500.00) shall be imposed 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. The City shall provide the State franchise holder with written notice of any alleged material breach of the customer service provisions set forth in Cal. Pub. Util. Code § 5900 and shall allow the State franchise holder at least thirty (30) 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 Cal. Pub. Util. Code § 5900, any penalty remitted to the City by a State franchise holder for a material breach of the customer service provisions set forth in Cal. Pub. Util. Code § 5900 shall be split in half, and the City shall submit one-half of the penalty amount to the Digital Divide Account established by Cal. Pub. Util. Code § 280.5. [Ord. 07-017.]
6.10.070 Appeal process for customer service penalties.
Any State franchise holder may appeal any customer service penalty assessed pursuant to DMC 6.10.060 according to the following procedure:
A. The State franchise holder may file a request for hearing form with the City Clerk within thirty (30) days from receipt of the written notice specified in DMC 6.10.060(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 (10) 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 (15) days and not more than sixty (60) 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. 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 Cal. Pub. Util. Code § 5900. [Ord. 07-017.]
6.10.080 Public rights-of-way.
The City shall allow any State franchise holder to install, construct, and maintain a network within public rights-of-way pursuant to Chapter 13.01, streets, sidewalks and public places, and in a manner consistent with Cal. Pub. Util. Code § 5885. [Ord. 07-017; Ord. 13-004 § 4.]
6.10.090 Authority to examine and audit business records.
A. The City may examine and audit once per year the business records of any State franchise holder relating to gross revenues in a manner consistent with Cal. Pub. Util. Code § 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 (4) years after those gross revenues are recognized by the State franchise holder on its books and records pursuant to Cal. Pub. Util. Code § 5860.
C. If the State franchise holder has underpaid the franchise fee established by DMC 6.10.030 by more than five percent (5%), the State franchise holder shall pay the reasonable and actual costs of the examination and audit. If the State franchise holder has not underpaid the franchise fee established in DMC 6.10.030, the City shall pay the reasonable and actual costs of the examination and audit. If the State franchise holder, however, has underpaid the franchise fee established by DMC 6.10.030 by five percent (5%) or less, the State franchise holder and the City shall each bear their own costs of the examination and audit. [Ord. 07-017.]
6.10.100 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, Cal. Pub. Res. Code § 21000 et seq. (“CEQA”). [Ord. 07-017.]
6.10.110 Emergency alert system.
A. 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 State franchise holders’ networks.
B. All provisions contained in a local franchise existing within the City on December 31, 2006, authorizing the City or the County of Solano to provide local emergency notifications shall remain in effect and shall apply to any State franchise holders until January 1, 2009. [Ord. 07-017.]
6.10.120 Nondiscriminatory 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 on the local area in which the group resides. The requirement may be satisfied pursuant to Cal. Pub. Util. Code § 5890. The City may bring complaints to the CPUC that a State franchise holder is not offering video services as required by Cal. Pub. Util. Code § 5890. [Ord. 07-017.]