Chapter 13.60
STATE VIDEO FRANCHISES

Sections:

13.60.010    Purpose and applicability.

13.60.020    Definitions.

13.60.030    State franchise required.

13.60.040    Franchise fee.

13.60.050    Public, educational and governmental access channels.

13.60.060    Educational and governmental access channel fee.

13.60.070    Customer service and consumer protection standards.

13.60.080    Emergency alert system.

13.60.010 Purpose and applicability.

The purpose of this chapter is to establish regulations for video service provided by state franchise holders in the City of Livermore in accordance with the Digital Infrastructure and Video Competition Act (“DIVCA”), California Public Utilities Code Sections 5800 through 5970. (Ord. 2065 § 1(A), 2018; Ord. 1914 § 1 (Exh. A), 2010)

13.60.020 Definitions.

For the purposes of this chapter, the following words and phrases shall have the meanings hereinafter set forth:

A. “City” means the City of Livermore, a municipal corporation, and all the territory lying within the municipal boundaries of the City as presently existing or as such boundaries may be modified.

B. “Gross revenues” has the same meaning given that phrase in California Public Utilities Code Section 5860(d).

C. “Holder” has the same meaning given that term in California Public Utilities Code Section 5830(h) to provide video service in the City.

D. “Incumbent cable operator” has the same meaning given that phrase in California Public Utilities Code Section 5380(j).

E. “Material breach” has the same meaning given that phrase in California Public Utilities Code Section 5900(j).

F. “Network” has the same meaning given that term in California Public Utilities Code Section 5830(l).

G. “State franchise” has the same meaning given that phrase in California Public Utilities Code Section 5830(p).

H. “Video service” has the same meaning given that phrase in California Public Utilities Code Section 5830(s). (Ord. 2065 § 1(A), 2018; Ord. 1914 § 1 (Exh. A), 2010)

13.60.030 State franchise required.

A. No person may provide video service, or construct, operate, maintain or repair a network in the City without first obtaining a state franchise for that purpose.

B. A state franchise does not convey any rights upon the holder other than those specified in this chapter, DIVCA, or by any other applicable law; nor does it relieve the holder of the obligation to comply with all laws, ordinances, resolutions, rules and regulations applicable to the placement of utilities in the public rights-of-way, public property, or private property, including but not limited to California Public Resources Code Sections 21000 et seq. (California Environmental Quality Act) and Chapter 12.08 LMC, Encroachments.

C. Holders and applicants for a state franchise to provide video service in the City shall deliver to the City full and complete copies of all applications, amendments, and other documentation submitted by the holder or applicant to the California Public Utilities Commission related to the state franchise. (Ord. 2065 § 1(A), 2018; Ord. 1914 § 1 (Exh. A), 2010)

13.60.040 Franchise fee.

A. Consistent with California Public Utilities Code Section 5860(a), all holders shall calculate and remit to the City a franchise fee equal to five percent of the holder’s gross revenues from providing video service in the City.

B. Consistent with California Public Utilities Code Section 5860(h), the franchise fee must be paid quarterly. Each holder shall remit the franchise fee to the City within 45 days after the end of each calendar quarter. Each remittance must be accompanied by a summary explaining how the franchise fee was computed.

C. Consistent with California Public Utilities Code Section 5860(i), not more than once annually, the City may examine a holder’s business records to ensure compliance with all applicable statutes and regulations related to the computation and payment of the franchise fee.

D. Each holder shall furnish the City with an annual statement within 90 days of the close of each calendar year that is certified by an independent certified public accountant or an officer of the holder. The report shall reflect the holder’s total amount of gross revenues from providing video service in the City, and all payments, deductions and computations used to determine the amount of the remittances made to the City, for that year.

E. If a holder does not pay a franchise fee when it is due, the holder shall also pay a late charge consistent with California Public Utilities Code Section 5860(h) at a rate per year equal to the highest prime lending rate during the period of delinquency, plus one percent. (Ord. 2065 § 1(A), 2018; Ord. 1914 § 1 (Exh. A), 2010)

13.60.050 Public, educational and governmental access channels.

A. Consistent with California Public Utilities Code Section 5870, each holder providing video service in the City shall fulfill its obligations to provide public, educational, and governmental access channels. Those obligations include but are not limited:

1. Designating sufficient capacity on its network to enable the carriage of at least four public, educational, and governmental access channels for the exclusive use of the City or its designee;

2. Carrying the public, educational, and governmental access channels on the basic service tier; and

3. To the extent feasible and unless prohibited by federal law, a holder shall designate the same channel numbers used by the incumbent cable operator for the public, educational, and governmental access channels, and shall not numerically separate them from other channels carried on the basic service tier. Unless required by federal law, a holder shall not change its initial designation of the access channels without the City’s prior written consent. If a holder determines it is not feasible to use the same channel numbers as the incumbent cable operator, or that the access channels must be numerically separated from the other channels on the basic service tier, the holder shall provide the City written documentation demonstrating the infeasibility. The written document shall be provided to the City no later than 30 days after the holder’s determination.

B. Consistent with Public Utilities Code Section 5870(h), holders and incumbent cable operators shall negotiate in good faith to interconnect their networks for the purpose of providing public, educational, and governmental access channel programming. If a technically feasible interconnection point does not exist, a holder shall at its own cost make an interconnection available and provide the facilities necessary for the interconnection as required by California Public Utilities Code Section 5870(h). (Ord. 2065 § 1(A), 2018; Ord. 1914 § 1 (Exh. A), 2010)

13.60.060 Educational and governmental access channel fee.

A. Since June 1, 2001, the incumbent cable operator has paid a fee to the City in the amount of $0.50 per subscriber per month to support educational and government channels. All holders providing video service in the City shall also pay a fee equal to $0.50 per subscriber per month to support educational and government channels. Each holder shall remit the fee to the City at the same time the holder remits the franchise fee pursuant to LMC 13.60.040. Each remittance must be accompanied by a summary explaining how the fee was computed. On June 1, 2011, the $0.50 per subscriber per month fee will sunset and be replaced by the one percent educational and government access channel facilities fee established in subsection B of this section.

B. Consistent with California Public Utilities Code Section 5870(n), an educational and government access channel facilities fee is established in an amount equal to one percent of a holder’s gross revenues from providing video service in the City. The fee shall be used to support educational and governmental access channel facilities. Effective June 1, 2011, all holders providing video service in the City shall calculate and remit to the City the educational and government access channel facilities fee. Each holder shall remit the educational and governmental access channel facilities fee to the City at the same time the holder remits the franchise fee to the City pursuant to LMC 13.60.040. Each remittance must be accompanied by a summary explaining how the fee was computed.

C. If a holder does not pay a fee identified in this section when it is due, the holder shall also pay a late charge consistent with California Public Utilities Code Section 5860(h) at a rate per year equal to the highest prime lending rate during the period of delinquency, plus one percent.

D. Notwithstanding California Public Utilities Code Section 5870(n), the educational and governmental access channel facilities fee is automatically reauthorized following the expiration of a holder’s state franchise to provide video service in the City. Likewise, the expiration of a holder’s state franchise in the City will not result in the expiration of the educational and governmental access channel facilities fee if at least one other holder continues to provide video service in the City subject to that fee. (Ord. 2065 § 1(A), 2018; Ord. 1929 §§ 1, 2, 2011; Ord. 1914 § 1 (Exh. A), 2010)

13.60.070 Customer service and consumer protection standards.

A. Consistent with California Public Utilities Code Section 5900(a) and (b), all holders shall comply with all applicable state and federal customer service and consumer protection standards for the provision of video service in the City.

B. The City shall monitor compliance with the applicable customer service and consumer protection standards. The City shall provide a holder with written notice of any material breach of those standards, and shall allow the holder 30 days from receipt of the notice to remedy the breach. If a material breach is not remedied within the 30-day time period, the holder shall be assessed a monetary penalty as follows:

1. First breach: $500.00 for each day of each material breach, not to exceed $1,500 per occurrence;

2. Second breach: $1,000 for each day of each material breach, not to exceed $3,000 per occurrence, that occurs within 12 months of a prior notice and penalty assessment for a material breach of the same nature; or

3. Third or further breaches: $2,500 for each day of each material breach, not to exceed $7,500 per occurrence, that occurs within 12 months of prior notices and penalty assessments for a material breach of the same nature.

C. The City shall provide the holder with written notice of the penalty assessment. A holder may appeal a notice of penalty assessment to the City Manager by filing a written notice with the city clerk within 10 days of the date the notice of penalty assessment was delivered to the holder. Within 10 days of the notice of appeal, the City Manager, or her designee, shall receive and consider relevant evidence presented by the holder in support of the appeal and by the City in support of the penalty assessment, and issue a written decision whether to uphold, modify, or vacate the penalty. A holder may obtain review of the City Manager’s final decision by filing a petition for review with the Superior Court of Alameda within 20 days after service of the final decision in accordance with California Public Utilities Code Section 5900(h) and California Government Code Section 53069.4.

D. Unless vacated by the City Manager or stayed by a court of competent jurisdiction, a holder shall remit the penalty to the City within 60 days of the date the notice of penalty assessment was delivered to the holder. Failure to remit the penalty as required by this subsection and California Public Utilities Code Section 5900(g) shall constitute a material breach of customer service and consumer protection standards. The City shall submit one-half of the penalty to the digital divide account as required California Public Utilities Code Section 5900(g). (Ord. 2065 § 1(A), 2018; Ord. 1914 § 1 (Exh. A), 2010)

13.60.080 Emergency alert system.

Consistent with California Public Utilities Code Section 5880, all holders providing video service in the City shall comply with the emergency alert system requirements of the Federal Communications Commission in order that emergency messages, including local emergency notifications, may be distributed over the holder’s network. (Ord. 2065 § 1(A), 2018; Ord. 1914 § 1 (Exh. A), 2010)