Chapter 5.40
VIDEO SERVICES PROVIDED BY STATE VIDEO SERVICE FRANCHISE HOLDERS
Sections:
5.40.010 Purpose and applicability.
5.40.030 Franchise fee for state franchise holders.
5.40.040 Public, educational, and government channels.
5.40.060 Customer service penalties for state franchise holders.
5.40.070 Appeal process for customer service penalties.
5.40.100 Authority to examine and audit business records.
5.40.110 Environmental review.
5.40.120 Emergency alert system.
5.40.130 Nondiscriminatory video service.
5.40.140 City response to state video franchise applications.
5.40.010 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, Public Utilities Code Section 5800 et seq. (“DIVCA”). This chapter shall apply only to video service providers issued a state franchise to provide video service in any area within the City limits by the California Public Utilities Commission (“CPUC”) pursuant to DIVCA. (Ord. 1067 § 2, 2008. Code 1964 § 22-1.)
5.40.020 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 in Public Utilities Code Section 5830(c).
B. “City” shall mean the City of Healdsburg.
C. “City Council” shall mean the City Council of the City of Healdsburg.
D. “Encroachment” shall have the meaning given that term by Chapter 12.12 HMC and which shall include the installation, construction and maintenance of a network within, upon, over, or under the public right-of-way.
E. “Encroachment permit” shall have the meaning given that term in Public Utilities Code Section 5885(c)(1), which shall include any permit issued by the City pursuant to Chapter 12.12 HMC.
F. “Franchise” shall have the meaning given that term in Public Utilities Code Section 5830(f).
G. “Franchise fee” shall have the meaning given that term in Public Utilities Code Section 5830(g).
H. “Gross revenues” shall have the meaning given that term in Public Utilities Code Section 5860.
I. “Holder” shall have the meaning given that term in Public Utilities Code Section 5830(i).
J. “Incumbent cable operator” shall have the meaning given that term in Public Utilities Code Section 5830(j).
K. “Lead agency” shall have the meaning given that term in 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 in Public Utilities Code Section 5900(j).
N. “Network” shall have the meaning given that term in 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 in Public Utilities Code Section 5830(o) and, alternatively, the meaning given the term “City street” pursuant to Chapter 12.12 HMC. “State franchise” shall have the meaning given that term in Public Utilities Code Section 5830(p).
P. “Video service” shall have the meaning given that term in Public Utilities Code Section 5830(s). (Ord. 1067 § 2, 2008. Code 1964 § 22-2.)
5.40.030 Franchise fee for state franchise holders.
Any state franchise holder shall remit to the City a franchise fee in the amount of five percent of the gross revenues, as defined in Public Utilities Code Section 5860(d) through (f), of the state franchise holder in compliance with Public Utilities Code Sections 5840(q) and 5860. (Ord. 1067 § 2, 2008. Code 1964 § 22-3.)
5.40.040 Public, educational, and government channels.
A. All unsatisfied obligations, existing on January 1, 2007, to remit any cash payments to the City for the ongoing costs of public, educational, and government (“PEG”) channel facilities or institutional networks contained in a local franchise, shall continue until May 2, 2014, and shall be paid by the incumbent cable operator and any state franchise holders pursuant to Public Utilities Code Section 5870. Such cash payments shall be divided among the incumbent cable operator and all state franchise holders pursuant to Public Utilities Code Section 5870.
B. All obligations, existing on December 31, 2006, to provide and support PEG channel facilities and institutional networks and to provide cable services to community buildings contained in a local franchise, shall continue until May 2, 2014, pursuant to Public Utilities Code Section 5870.
C. Commencing until May 2, 2014, any state franchise holder shall remit to the City a fee to support PEG channel facilities in the amount of one percent of the gross revenues of the state franchise holder in compliance with 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. This fee is in addition to the fee specified in HMC 5.40.030.
D. Any state franchise holder shall designate a sufficient amount of capacity on its network to allow the provision of PEG channels in accordance with 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.
E. This shall be enforced, and disputes regarding this shall be resolved, pursuant to Public Utilities Code Section 5870. (Ord. 1067 § 2, 2008. Code 1964 § 22-4.)
5.40.050 Payment of fees.
A. Any state franchise holder shall pay the franchise fee established in HMC 5.40.030 and the PEG channel facilities fee established in HMC 5.40.040(C) on a quarterly basis in a manner consistent with 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 HMC 5.40.030 and the PEG channel facilities fee established in HMC 5.40.040(C) not later than 45 days after the end of each calendar quarter.
C. Each payment of the franchise fee established in HMC 5.40.030 delivered to the City shall be accompanied by a summary report explaining the basis for the calculation of the payment.
D. Any state franchise holder shall deliver to the City by check, or other means agreeable to the City Manager, any cash payment required by HMC 5.40.040(A) either (1) upon 90 days’ written notice from the City if such cash payment is a one-time capital grant or (2) on a quarterly basis pursuant to subsections (A) and (B) of this section upon 90 days’ written notice from the City if such cash payment is up to $0.65 per billing unit per month.
E. If any state franchise holder fails to remit the franchise fee established in HMC 5.40.030, the PEG channel facilities fee established in HMC 5.40.040(C) or any cash payment required under this chapter as and when due, the state franchise holder shall remit to the City, in addition to all other amounts owed, a late payment charge at the rate per year equal to the highest prime lending rate during the period of delinquency plus one percent. (Ord. 1067 § 2, 2008. Code 1964 § 22-5.)
5.40.060 Customer service penalties for state franchise holders.
A. Any state franchise holder shall comply with the customer service provisions set forth in 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 Public Utilities Code Section 5900:
1. For the first occurrence of a material breach, a fine of $500.00 shall be imposed for each day of each material breach, not to exceed $1,500 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 12 months, a fine of $1,000 shall be imposed for each day of each material breach, not to exceed $3,000 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 12 months, a fine of $2,500 shall be imposed for each day of each material breach, not to exceed $7,500 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 Public Utilities Code Section 5900 and shall allow the state franchise holder at least 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 Public Utilities Code Section 5900, as amended from time to time, any penalty remitted to the City by a state franchise holder for a material breach of any customer service provisions shall be split in half, and the City shall submit one-half of the penalty amount to the Digital Divide Account established by Public Utilities Code Section 280.5. (Ord. 1067 § 2, 2008. Code 1964 § 22-6.)
5.40.070 Appeal process for customer service penalties.
Any state franchise holder may appeal any customer service penalty assessed pursuant to HMC 5.40.060 according to the appeals procedure set forth in HMC 1.12.120. Judicial review of any resulting decision of the hearing body may be sought by any interested person in a court of competent jurisdiction pursuant to Public Utilities Code Section 5900. (Ord. 1067 § 2, 2008. Code 1964 § 22-7.)
5.40.080 Encroachment permit.
A. Any state franchise holder shall apply for an encroachment permit to install, construct or maintain a network pursuant to Chapter 12.12 HMC. In addition to the procedures set forth in Chapter 12.12 HMC, 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 60 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 Public Utilities Code Section 5885, and provided the appropriate insurance certificates and proper endorsements.
2. The 60-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 to the City Council pursuant to Chapter 12.12 HMC.
B. All state franchise holders issued an encroachment permit to install, construct or maintain a network shall comply with Chapter 12.12 HMC. In addition, all state franchise holders issued an encroachment permit shall comply with the following:
1. Any state franchise holder issued an encroachment permit for the installation, construction or maintenance of any network by the City shall release and indemnify the City according to the following, to the extent permitted by law:
a. The state franchise holder shall release the City, its trustees, elected and appointed officers, agents, and employees from and against any and all liability and responsibility in or arising out of the installation, construction and maintenance of any network by the state franchise holder or its agents, independent contractors or employees. The state franchise holder must further agree not to sue or seek any money or damages from the City, its trustees, elected and appointed officers, agents, and employees in connection with the above mentioned matters; and
b. The state franchise holder shall defend, indemnify and hold harmless the City, its trustees, elected and appointed officers, agents, and employees from and against any and all claims, demands, or causes of action of any kind or nature, and the resulting losses, costs, expenses, reasonable attorneys’ fees, liabilities, damages, orders, judgments, or decrees sustained by the City or any third party arising out of, or by reason of, or resulting from or of the acts, errors, or omissions of the state franchise holder, or its agents, independent contractors or employees related to or in any way arising out of the installation, construction and maintenance of any network except those claims which arise out of the gross negligence or willful misconduct of the City.
2. Any state franchise holder (or those acting on its behalf) issued an encroachment permit shall not commence installation, construction and maintenance of any network without first obtaining insurance in amounts and of a type satisfactory to the City. The required insurance must be obtained and maintained for the entire period the state franchise holder has any network within the City. If the state franchise holder, its contractors, or subcontractors do not have the required insurance, the City may order such state franchise holders (or those acting on its behalf) to stop installation, construction and maintenance of any network until the insurance is obtained and approved.
3. Certificates of insurance, reflecting evidence of the required insurance and endorsements naming the City as an additional insured shall be filed with the City prior to the installation, construction and maintenance of any network and shall be refiled with the City whenever there is any change in coverage. Each state franchise holder’s insurance coverage shall be primary insurance as respects the City. Any insurance or self-insurance maintained by the City shall be excess of the state franchise holder’s insurance and shall not contribute with it.
4. Certificates of insurance shall contain a provision that coverage afforded under these policies will not be canceled until at least 30 days’ prior written notice has been given to the City. Policies shall be issued by companies authorized to do business under the laws of the state of California. Financial ratings must be no less than “A” in the latest edition of Best’s Key Rating Guide, published by A.M. Best Guide.
5. Any state franchise holder (and those acting on its behalf to install, construct or maintain any network) shall maintain the following minimum insurance. The City shall be named as an additional insured on general liability and automotive policies; those insurance policies shall be primary and contain a cross-liability clause.
a. Commercial general liability insurance to cover liability from bodily injury and property damage. Exposures to be covered shall include: premises, operations, products/completed operations, and certain contracts. Coverage must be written on an occurrence basis, with the following limits of liability:
i. Bodily Injury. Each occurrence: $1,000,000. Annual aggregate: $3,000,000.
ii. Property Damage. Each occurrence: $1,000,000. Annual aggregate: $3,000,000. Property damage liability insurance shall include coverage for the following hazards: X – explosion, C – collapse, U – underground.
iii. Personal Injury. Annual aggregate: $3,000,000.
iv. Completed operations and products liability shall be maintained for two years after the termination of use of all networks within the City (in the case of the state franchise holder) or completion of the work for the state franchise holder (in the case of a contractor or subcontractor).
Workers’ compensation insurance shall be maintained during the use of any networks within the City by the state franchise holder to comply with statutory limits for all employees, and in the case any work is sublet, each state franchise holder shall require the subcontractors similarly to provide workers’ compensation insurance for all the latter’s employees unless such employees are covered by the protection afforded by each state franchise holder. Each state franchise holder and its contractors and subcontractors shall maintain during the life of this policy employers liability insurance. Any policy of workers’ compensation insurance or employers liability insurance must be endorsed to waive all rights of subrogation against the City and its officials, officers, employees, and volunteers for loss arising from or related to the provision of services pursuant to this chapter.
b. The following minimum limits must be maintained:
i. Workers’ compensation: statutory.
ii. Employer’s liability: $1,000,000 per occurrence.
c. Commercial Auto Liability. The following minimum limits must be maintained:
i. Bodily Injury. Each occurrence: $1,000,000. Annual aggregate: $3,000,000.
ii. Property Damage. Each occurrence: $1,000,000.
iii. Annual aggregate: $3,000,000.
iv. Coverage shall include owned, hired, and nonowned vehicles.
C. To the extent that any part of this section is inconsistent or conflicts in any way with Chapter 12.12 HMC, the provisions of this chapter shall apply. (Ord. 1067 § 2, 2008. Code 1964 § 22-8.)
5.40.090 Public right-of-way.
Any state franchise holder issued an encroachment permit shall install, construct and/or maintain a network in accordance with the following provisions:
A. The installation, construction and maintenance of any network shall be performed in compliance with all applicable laws, ordinances, resolutions, departmental rules, regulations, written policies, and practices. By way of example, and not limitation, this includes the City’s zoning ordinance; ordinances, regulations and policies to preserve or protect the public safety; construction standards; regulations for providing notice to persons that may be affected by the installation, construction and maintenance of any network; and directives governing the time, place, and manner in which any network may be installed, constructed or maintained. Persons engaged in the installation, construction or maintenance of any network shall exercise reasonable care in the performance of all their activities and shall use commonly accepted methods and devices for preventing failures and accidents that are likely to cause damage, injury, or nuisance to the public or to property.
B. Installation, construction or maintenance of any network shall not commence until all required permits have been obtained from the proper City officials and all required fees have been paid. All work performed will be performed in strict accordance with the conditions of such permits. Upon order of the City, any installation, construction and maintenance of any network undertaken that is not completed in compliance with the City’s requirements or which is installed, constructed or maintained without obtaining necessary permits and approvals, will be remedied to meet such City requirements, or in the event that it is not, shall be removed in accordance with a reasonable timeline set forth by the City. A state franchise holder shall reimburse the City for costs incurred in plan review and inspecting construction undertaken in the course of major upgrades and/or installation of fiber optics, pursuant to any requirements of the City that are generally imposed on users of the public right-of-way which are constructing projects of similar scope.
C. Interference with the use of the public rights-of-way by others must be minimized. The City may require a person using the public rights-of-way to cooperate with others through joint trenching and other arrangements to minimize adverse impacts on public rights-of-way; provided, that the City will not require any cooperation that would cause a state franchise holder to breach its state franchise or incur any additional costs.
D. To the extent possible, state franchise holders shall use existing poles and conduit. Additional poles may not be installed in the public right-of-way, nor may pole capacity be increased by vertical or horizontal extenders, without the permission of the City engineer. The City reserves the right to not make available City-owned conduits and other transmission devices if the use of the devices by a state franchise holder would compromise the City’s use of said devices.
E. In those areas and portions of the City where the transmission or distribution facilities of both the public utility providing telephone service and/or those of the utility providing electric service are underground or hereafter may be placed underground, then any state franchise holder shall likewise install, construct or maintain all of its transmission and distribution networks underground. For the purposes of this subsection, “underground” includes a partial underground system, e.g., streamlining. Amplifiers and other devices commonly maintained above ground in grantee’s transmission and distribution lines may be in appropriate housings upon the surface of the ground as approved by the City engineer, who may, in his/her sole discretion, seek the advice and/or recommendation of the planning commission. Where a state franchise holder is required to underground, such undergrounding shall be pursuant to City standards approved by the City engineer.
F. Any and all public rights-of-way, other public property, or private property that is disturbed or damaged during the installation, construction or maintenance of a network shall be promptly repaired by the state franchise holder. Public property and public rights-of-way must be restored to the satisfaction of the City or to a condition as good or better than before the disturbance or damage occurred.
G. Any state franchise holder shall, at its sole cost and expense and by a time specified by the City, protect, support, temporarily disconnect, relocate, or remove any of its network when requested by the City by reason of traffic conditions; public safety; public right-of-way construction and repair (including regrading, resurfacing or widening); public right-of-way vacation; construction, installation or repair of sewers, drains, water pipes, power lines, signal lines, tracks, or any other type of government-owned system or utility, public work, public facility, or improvement; or for any other purpose where the work involved would be aided by the removal or relocation of a network; provided, however, that a network built by the City to provide services in competition with those of any state franchise holder shall be an exception to this provision. Collectively, such matters are referred to below as the “public work.”
H. The City shall provide written notice describing where the public work is to be performed at least two weeks prior to the deadline by which any state franchise holder must temporarily protect, support, temporarily disconnect, relocate or remove its network. The City must provide at least three months’ notice if the change is to be permanent; provided, that, in an emergency, or where a state franchise holder creates or is contributing to an imminent danger to health, safety, or property, the City may protect, support, temporarily disconnect, remove, or relocate any or all parts of the network without prior notice, and charge the state franchise holder for reasonable costs incurred.
I. To accommodate the installation, construction or maintenance of the facilities of another person authorized to use the public rights-of-way or public property, a state franchise holder shall, by a time specified by such person, temporarily protect, support, disconnect, relocate or remove its network. The state franchise holder shall be given written notice describing where the installation, construction or maintenance is to be performed at least 15 days prior to the time by which its work must be completed. If the change is permanent, the state franchise holder shall be provided with at least three months’ advance written notice. The benefited party shall pay all costs of any temporary or permanent protection, support, disconnection, relocation or removal that is required of a state franchise holder pursuant to this provision, and the state franchise holder may require that such costs be paid prior to the performance of the work.
J. Any state franchise holder shall, on the request of any person holding a valid permit issued by a governmental authority, temporarily remove, raise or lower any network by a time specified to permit the moving of buildings or other objects. A state franchise holder shall be given not less than seven days’ advance notice to arrange for such temporary changes. The expense of such temporary removal or raising or lowering of a network shall be paid by the person requesting the same, and the state franchise holder may require that such costs be paid prior to the performance of the work.
K. Any state franchise holder may abandon any network upon written notice to the City and subject to City approval of the method of abandonment. However, if, within 90 days of the receipt of written notice of abandonment, the City determines that the safety, appearance, functioning or use of the public right-of-way and facilities in the public right-of-way will be adversely affected, the network must be removed by a date reasonably specified by the City given the extent of the work to be performed.
L. Any state franchise holder that abandons a network must, upon request, transfer ownership of the network to the City at no cost, and execute necessary quitclaim deeds; whether or not ownership is transferred, the state franchise holder must indemnify the City against future costs associated with mitigating or eliminating any hazard associated with the abandoned network.
M. Any network shall be subject to inspection and testing by the City. Any state franchise holder shall timely and fully respond to requests for information regarding its network(s) and plans for its network(s) as the City may from time to time issue, including requests for information regarding its plans for installation, construction or maintenance and the purposes for which any network is being installed, constructed or maintained.
N. Any state franchise holder that places a network underground shall at all times maintain membership of the regional notification center for subsurface installations (Underground Services Alert) and shall field mark the locations of its underground network upon request. The state franchise holder shall locate its network when requested at no charge to the City or any third party reasonably requesting a location.
O. At least 90 days prior to commencing installation, construction or maintenance of any network, the state franchise holder shall provide the City a plan for any initial network installation, construction or maintenance of any network, which shall show its timetable for construction of each phase of the project, and the areas of the City that will be affected. Any substantial rebuild, update or extension of any existing network shall follow all permitting requirements of the City, and the state franchise holder shall meet with the City on a monthly basis upon request to discuss the progress of such construction.
P. All state franchise holders shall maintain accurate maps and improvement plans that show the routing and a general description of all networks and any commercial power supply sources (including voltages and connections). Each franchisee shall provide a map to the City showing the routing of its network(s), in such detail and scale as may be directed by the City’s director of public works, and update the map whenever any networks are expanded or relocated. Copies of maps shall be provided on disk or in a commercially available electronic format specified by the City’s director of public works. Such maps shall be considered confidential and proprietary. (Ord. 1067 § 2, 2008. Code 1964 § 22-9.)
5.40.100 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 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 Public Utilities Code Section 5860.
C. If the state franchise holder has underpaid the franchise fee established by HMC 5.40.030 by more than five percent, the state franchise holder shall pay the reasonable and actual costs of the examination and audit in addition to any other sums found to be owed or owing as a result of such examination and audit and late payment fees as described in HMC 5.40.050(E). If the state franchise holder has not underpaid the franchise fee established in HMC 5.40.030, 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 HMC 5.40.030 by five percent or less, the state franchise holder and the City shall each bear their own costs of the examination and audit. (Ord. 1067 § 2, 2008. Code 1964 § 22-10.)
5.40.110 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 Section 21000 et seq. (“CEQA”). The franchise operator shall be responsible for all costs of preparing and processing the CEQA application. (Ord. 1067 § 2, 2008. Code 1964 § 22‑11.)
5.40.120 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. 1067 § 2, 2008. Code 1964 § 22-12.)
5.40.130 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 in the local area in which the group resides. This requirement may be satisfied pursuant to 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 Public Utilities Code Section 5890. (Ord. 1067 § 2, 2008. Code 1964 § 22-13.)
5.40.140 City response to state video franchise applications.
A. Applicants for state video franchises within the boundaries of the City must concurrently provide complete copies to the City of any application or amendments to applications filed with the CPUC and any other agency. One complete copy must be provided to the City Manager.
B. Within 30 days of receipt, the City Manager may provide any appropriate comments to the CPUC or other agency regarding an application or an amendment to an application for a state video franchise. (Ord. 1067 § 2, 2008. Code 1964 § 22-14.)