Chapter 5.40 STATE VIDEO SERVICE FRANCHISES

This chapter applies to all cable service or video service providers who are applying for, or have been awarded, a franchise under California Public Utilities Code Section 5800 et seq., the Digital Infrastructure and Video Competition Act of 2006, ("DIVCA"), to serve any area within the city, including cable service or video service providers who are otherwise subject to DIVCA. By this chapter the city intends to exercise to the fullest extent possible all rights and privileges afforded to it by DIVCA and any other applicable law. (Ord. 1442 § 2, 2022).

5.40.020 Definitions.

For purposes of this chapter, the following terms, phrases, words, and their derivations shall have the meaning given in this section. Unless otherwise expressly stated, words not defined in this chapter shall be given the meaning set forth in California Public Utilities Code Section 5800 et seq. as amended from time to time. 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.

(a) "CPUC" means the California Public Utilities Code as may be amended.

(b) "City" means the city of Marysville, California.

(d) "City manager" means the city manager of the city of Marysville, California, or designee.

(e) "DIVCA" means the Digital Infrastructure and Video Competition Act of 2006, California Public Utilities Code Sections 5800 et seq.

(f) "Gross revenues" means all revenues actually received by the holder of a state franchise that are derived from the operation of the holder’s network to provide cable service or video service within the city, subject to the specifications of California Public Utilities Code Section 5860.

(g) "Material breach" shall have the definition set forth in California Public Utilities Code Section 5900(j).

(h) "PEG" shall refer to public, educational and governmental access operations as addressed at California Public Utilities Code Section 5870, as may be amended from time to time.

(i) "PEG access," "PEG use," or "access," means the availability of a cable or video system for public, educational, or governmental use by various agencies, institutions, organizations, groups, and individuals, including the city and its exclusive city use channels or any existing agreement between the city and any incumbent cable operator, to acquire, create, and distribute programming not under a state franchise holder’s editorial control.

(j) "State franchise holder," "holder of a state franchise," "holder of the state franchise," or "holder" means any person or group of persons who has been issued a franchise by the California Public Utilities Commission to provide cable service or video service, as those terms are defined in California Public Utilities Code Section 5830, within any portion of the city.

(k) "State" shall mean the state of California. (Ord. 1442 § 2, 2022).

5.40.030 State franchise holder fee.

Any state franchise holder operating within the city shall pay to the city a state franchise holder fee equal to five percent of gross revenues, as defined in this chapter and applicable law, unless a different amount is otherwise payable according to applicable law or resolution adopted by the city council. Nothing in this section is intended to limit the city’s ability to impose utility user taxes and other generally applicable taxes, fees and charges that are applied in a nondiscriminatory and competitively neutral manner. (Ord. 1442 § 2, 2022).

5.40.040 State franchise holder PEG fees.

Any state franchise holder operating within the city shall pay to the city a PEG fee equal to one percent of gross revenues, as defined in this chapter and applicable law, unless a different amount is payable in accordance with applicable law or resolution adopted by the city council. (Ord. 1442 § 2, 2022).

5.40.050 Payment of DIVCA fees.

(a) The state franchise holder shall pay quarterly all fees required pursuant to this chapter 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 agreeable to the city manager, a separate payment for the state franchise holder fee and the PEG fee not later than forty-five days after the end of each calendar quarter. Each payment made shall be accompanied by a report to the city manager detailing how the payment was calculated, and shall include such additional information on appropriate forms as may be determined by the city manager.

(b) No acceptance of any payment shall be construed as a release or as an accord and satisfaction of any claim the city may have for further or additional sums payable under this chapter or for the performance of any other obligation under this chapter. (Ord. 1442 § 2, 2022).

5.40.060 Audit authority.

At the city manager’s discretion, the city manager may examine and perform an audit of the business records of any franchise holder to ensure compliance with Sections 5.40.030 and 5.40.040 or any other fee or tax as permitted by law in a manner not inconsistent with California Public Utilities Code Section 5860(i). (Ord. 1442 § 2, 2022).

5.40.070 Late payments.

In the event a state franchise holder fails to make any payment required by this chapter on 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 unless a different rate is set by applicable law or resolution adopted by the city council. (Ord. 1442 § 2, 2022).

5.40.080 Reserved.

(Ord. 1442 § 2, 2022).

5.40.090 Consumer protection and customer service standards.

Each state franchise holder shall comply with all applicable customer service and consumer protection standards, including, to the extent not inconsistent with California Public Utilities Code Section 5900, all existing and subsequently enacted customer service and consumer protection standards established by applicable local, state or federal law and regulation. (Ord. 1442 § 2, 2022).

5.40.100 Penalties for violation of standards.

(a) The city shall monitor compliance with and enforce the provisions of this chapter and DIVCA.

(b) The city manager will provide to the state franchise holder written notice of any material breaches of applicable customer service and protection standards, and will allow the state franchise holder thirty days from receipt of the notice to remedy the specified material breach.

(c) For any material breach, as defined in California Public Utilities Code Section 5900(j), by a state franchise holder of applicable customer service and protection standard not remedied within thirty days from receipt of written notice of material breach, the city manager, in the city manager’s sole discretion, may impose the following fines or penalties:

(1) For the first occurrence of a material breach, a fine of five hundred dollars shall be imposed for each day the violation remains in effect, not to exceed one thousand five hundred dollars for each violation.

(2) For a second material breach of the same nature within twelve months, a fine of one thousand dollars shall be imposed for each day the violation remains in effect, not to exceed three thousand dollars for each violation.

(3) For a third or further material breach of the same nature within twelve months, a fine of two thousand five hundred dollars shall be imposed for each day the violation remains in effect, not to exceed seven thousand five hundred dollars for each violation.

(d) A state franchise holder may appeal a monetary penalty within sixty days after it is assessed by the city manager. After relevant evidence and testimony is received, and staff reports are submitted, the city council will either uphold or vacate the monetary penalty. The city council’s decision on the imposition of a monetary penalty shall be final.

(e) Any penalties imposed by the city shall be imposed in a manner not inconsistent with California Public Utilities Code Section 5900.

(f) To the extent not inconsistent with California Public Utilities Code Section 5900, the city acting through its city manager in its sole discretion may waive, modify, or defer the imposition of a penalty. (Ord. 1442 § 2, 2022).

5.40.110 General requirements.

Except as expressly provided in this chapter, the provisions of this chapter and the Marysville Municipal Code shall apply to all work performed by or on behalf of a state franchise holder upon, above or below any street, highway, sidewalk, parkway, alley or other public right-of-way of any kind whatsoever within the city.

(a) Any poles, wires, cable lines, conduits or other properties of the state franchise holder to be constructed or installed in streets shall be so constructed or installed only at such locations and in such manner as shall be approved by the city manager acting in the exercise of the city manager’s reasonable discretion.

(b) The state franchise holder shall not install or erect any facilities or apparatus in or on other public property, places or rights-of-way, or within any privately owned area within the city which has not yet become a public street but is designated or delineated as a proposed public street on any tentative subdivision map approved by the city, except those installed or erected upon public utility facilities now existing, without obtaining the prior written approval of the city manager.

(c) In those areas and portions of the city where the transmission or distribution facilities of both the public utility providing telephone service and those of the utility providing electric service are underground or hereafter may be placed underground, then the state franchise holder shall likewise construct, operate and maintain all of its transmission and distribution facilities underground. (Ord. 1442 § 2, 2022).

5.40.120 Permits.

(a) Prior to commencing any work a state franchise holder shall apply for and obtain all necessary permits in accordance with the provisions of Title 11 and shall comply with all other applicable laws and regulations, including, but not limited to, all applicable requirements of Public Resources Code Section 21000 et seq., (the California Environmental Quality Act) and the Marysville Municipal Code.

(b) The city shall either approve or deny a state franchise holder’s application for any permit required under this chapter in accordance with the Marysville Municipal Code within sixty days of receiving a completed application.

(c) If the city denies a state franchise holder’s application for a permit, the city shall, at the time of notifying the applicant of denial, furnish to the applicant an explanation of the reason or reasons for the denial in accordance with the terms of the Marysville Municipal Code and other applicable law.

(d) A state franchise holder that has been denied a permit may appeal the denial to the city council in accordance with the following procedures:

(1) No notice of appeal will be processed unless filed within ten days after service of written notice of the decision from which the appeal is taken; provided, that if written notice of the decision has not been served, the appellant may, within ten days after being apprised of that decision, demand service of written notice and will have ten days following that service in which to file the notice of appeal.

(2) The notice of appeal must specify the specific decision from which the appeal is taken, the specific grounds for the appeal, and the relief or action requested from the city council.

(3) The notice of appeal must be accompanied by all required fees and filings in accordance with the terms of the Marysville Municipal Code and other applicable law.

(4) Upon the timely filing of a notice of appeal in proper form, the city clerk will schedule the matter for hearing by the city council at a regular meeting, but not later than forty-five days after receipt of the notice of appeal. The city clerk will cause the notice of hearing to be given to the appellant not less than ten days prior to the hearing, unless that notice is waived in writing by the appellant. The city clerk will also cause a copy of the notice of appeal and the hearing to be transmitted to the city official or body whose decision is being appealed.

(5) At the time of consideration of the appeal by the city council, the appellant will be limited to a presentation on the specific grounds of appeal and related matters set forth in its notice of appeal. The appellant will have the burden of persuading the city council that the decision appealed from should be reversed or modified.

(6) The city council may continue the hearing on the appeal from time to time as may be deemed necessary. The city council may, by resolution, affirm, reverse, or modify, in whole or in part, the decision appealed from and may take any action that might have been taken in the first instance by the city official or body from whose decision the appeal has been taken.

(7) The decision of the city council will be deemed final and conclusive upon adoption of the resolution. A copy of the resolution adopted by the city council will be served upon the appellant by placement in the United States mail, postage prepaid, to the appellant’s last known address.

(e) A state franchise holder whose permit has been revoked may appeal that decision in accordance with the terms of subsection (d)(7) of this section, whose procedures and terms shall also govern the revocation and appeal. (Ord. 1442 § 2, 2022).

5.40.130 Terms and conditions.

The work of constructing, laying, replacing, maintaining, repairing, abandoning, or removing all property and appurtenances of the state franchise holder in, over, under, along, or across any city right-of-way shall be done to the satisfaction of the city manager and at the expense of the state franchise holder, and in accordance with the terms and conditions of the Marysville Municipal Code. (Ord. 1442 § 2, 2022).

5.40.140 Relocation of franchise property.

(a) Any permittee under this chapter shall at its own expense protect, support temporarily, disconnect, relocate in the same street, alley or public place, or remove from any street, alley or public place, any property of the permittee when required by the city manager by reason of traffic conditions, public safety, street vacation, freeway and street construction, change or establishment of street grade, installation of sewers, drains, water pipes, power lines, traffic signals and tracks or any other type of structures or improvements by governmental agencies when acting in a governmental or proprietary capacity or any other structures or public improvements; provided, that the permittee shall, in all such cases, have the privileges and be subject to the obligations to abandon any property of the permittee in place. Upon failure of the permittee to complete any work required by law or by the provisions of this chapter to be done in any street, within the time prescribed, and to the satisfaction of the city manager, the city manager may cause such work to be done and the permittee shall pay to the city the cost thereof in the itemized amounts reported by the city manager to the permittee, within thirty days after receipt of such itemized report.

(b) Notwithstanding subsection (a) of this section, in the event that an existing utility line or associated equipment is in conflict with a city use, said utility shall be required to move its lines or equipment at its sole costs, in accordance with governing law or franchise.

(c) The city reserves the right to change the grade, change the width, or alter or change the location of any city right-of-way. If any franchise holder’s property or appurtenances are installed or maintained by the state franchise holder on, along, under, over, in, upon, or across any public right-of-way in a manner which prevents or interferes with any alteration or other change of grade, traffic needs, operation, maintenance, improvement, repair, construction, reconstruction, widening, or relocation of the right-of-way, or any work or improvement upon the right-of-way, the state franchise holder shall relocate any such property or appurtenances to the satisfaction of the city manager at no expense to the city upon receipt of a written request from the city manager to do so and in accordance with the terms of the Marysville Municipal Code. Should the state franchise holder neglect or fail to relocate its facilities in a timely manner after receipt of any such notice, the state franchise holder shall be responsible for and shall reimburse the city for any and all costs or expenses incurred by city due to or arising from the failure to relocate the facilities.

(d) The city reserves the right to lay, construct, repair, alter, relocate, and maintain subsurface or other facilities or improvements of any type or description in a governmental but not proprietary capacity within the right-of-way over which the franchise is granted. If the city finds that the location or relocation of such facilities or improvements conflicts with the property or appurtenances laid, constructed, or maintained by the state franchise holder, whether such property was laid, constructed, or maintained before or after the facilities of the city were laid, the state franchise holder shall at no expense to the city, on or before the date specified in a written request from the city manager, commence work to change the location as required by the city manager. Should the state franchise holder neglect or fail to relocate its facilities within the period specified in any such notice, the state franchise holder shall be responsible for and shall reimburse the city for any and all additional costs or expenses incurred by the city due to the failure to relocate the facilities. (Ord. 1442 § 2, 2022).

5.40.150 Removal of abandoned facilities.

(a) In the event that the use of any part of the state franchise is discontinued for any reason for a continuous period of twelve months, or in the event such system or property has been installed in any street or public place without complying with the requirements of DIVCA or this chapter, or the franchise has been terminated, canceled or has expired, the state franchise holder shall promptly, upon being given ten days’ notice, remove from the street or public places all such property and poles of such system other than any which the city manager may permit to be abandoned in place. In the event of such removal, the state franchise holder shall promptly restore the street or other area from which such property has been removed to a condition satisfactory to the city manager.

(b) Any property of the state franchise holder remaining in place thirty days after the termination or expiration of the franchise shall be considered permanently abandoned. The city manager may extend such time, not to exceed an additional thirty days.

(c) Any property of the state franchise holder to be abandoned in place shall be abandoned in such manner as the city manager shall prescribe. Upon permanent abandonment of the property of the state franchise holder in place, the property shall become that of the city, and the state franchise folder shall submit to the chief administrative officer an instrument in writing, to be approved by the city attorney, transferring to the city the ownership of such property. (Ord. 1442 § 2, 2022).

5.40.160 Notification to residents regarding construction or maintenance.

(a) Prior to any construction activity related to any cable service or video service, a state franchise holder shall provide public notification as provided for in the Marysville Municipal Code or as otherwise required by the city manager or applicable law.

(b) To the extent practicable, equipment placed on private property shall be placed at the location requested by the property owner. A state franchise holder shall provide the private property owner with reasonable advance written notice of its plans to install equipment, and shall obtain express written consent from the private property owner before installing any equipment. The state franchise holder shall notify the property owner, in writing, that the property owner is not obligated to agree to the placement of equipment on the property or to enter into any agreement with the state franchise holder. Should a property owner notify the state franchise holder of his or her objection to any placement of equipment, the state franchise holder shall confer with the city manager regarding appropriate location and placement of such equipment. (Ord. 1442 § 2, 2022).

5.40.170 Identification required.

Employees, agents, contractors, and subcontractors of any state franchise holder shall at all times be properly identified as employees or agents of the state franchise holder while performing any work or other activity within the city on behalf of the state franchise holder. Identification shall include the name of the employee or agent. The name and telephone number of the state franchise holder shall appear on all trucks and vehicles used by such personnel. (Ord. 1442 § 2, 2022).

5.40.180 Construction requirements.

(a) Each state franchise holder shall comply with all applicable construction requirements of Title 11 and shall undertake all necessary and appropriate means to protect and preserve health and safety, including complying with all construction requirements of the Marysville Municipal Code or as otherwise required by the city manager.

(b) Any above or below ground utility conduit, structure or devices permitted under this chapter to be constructed or installed in streets or public easements shall be so constructed, installed and maintained only in conformity with this code and any other ordinances, resolutions, rules and regulations adopted by the city council, at such locations and in such manner as shall be approved by the city manager acting in the exercise of the city manager’s reasonable discretion. Plans and specifications for such facilities shall be filed with the public works department. (Ord. 1442 § 2, 2022).

5.40.190 Undergrounding.

(a) In those areas and portions of the city where the transmission or distribution facilities of both the public utility provided telephone service and those of the utility providing electric service are underground or hereafter may be placed underground, then the state franchise holder shall likewise construct, operate and maintain all of its transmission and distribution facilities underground.

(b) When the state franchise holder’s conduits and other facilities are not being installed underground, the state franchise holder shall utilize its existing poles, conduits or other facilities (collectively, "system") to the extent feasible, as reasonably determined by the city manager, and shall remove all portions of the aboveground system which will no longer be utilized. In addition, all facilities which are installed above ground shall utilize anti-graffiti surfaces.

(c) If the city undertakes a program to cause all conduits and other facilities to be located beneath the surface of the streets in any area or throughout the city, then upon reasonable notice to a franchise holder utilizing poles, conduits or other above-ground facilities, 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 the state franchise holder, whose costs shall be determined as in the case of public utilities. (Ord. 1442 § 2, 2022).

5.40.200 Reports to the city manager.

Each state franchise holder, within sixty days after the completion of any work, shall file a report with the city manager containing a set of as-built drawings. (Ord. 1442 § 2, 2022).

5.40.210 PEG channel capacity.

(a) A state franchise holder that uses any public right-of-way shall designate sufficient capacity on its network to enable the carriage of at least one public, educational, or governmental (PEG) access channel.

(b) PEG access channels shall be for the exclusive use of the city or its designees to provide public, educational, or governmental programming.

(c) Advertising, underwriting, or sponsorship recognition may be carried on the PEG access channels for the purpose of funding PEG-related activities.

(d) The PEG access channels shall be carried on the basic service tier.

(e) To the extent feasible, the PEG access channels shall not be separated numerically from other channels carried on the basic service tier, and the channel numbers for the PEG access channels shall be the same channel numbers used by the incumbent cable operator unless prohibited by federal law. (Ord. 1442 § 2, 2022).

5.40.220 Emergency alert systems.

(a) Each state franchise holder shall comply with the emergency alert system requirements of the Federal Communications Commission in order that emergency messages may be distributed over the state franchise holder’s network.

(b) To the extent not inconsistent with California Public Utilities Code Section 5880, each state franchise holder shall incorporate into its network the capability to permit the city in times of emergency to override the audio portion of all channels simultaneously. In addition, if feasible, each state franchise holder may be required to designate a channel, which may be a PEG channel, to be used for emergency broadcasts of both audio and video signals. The state franchise holder shall cooperate with the city in the use and operation of the emergency alert override system. (Ord. 1442 § 2, 2022).

5.40.230 Interconnection for PEG programming.

Each holder of a state franchise, and each incumbent cable operator operating under a city franchise issued pursuant to this code, shall negotiate with each other in good faith to interconnect their networks for the purpose of providing PEG programming including, but not limited to, any exclusive city use channel. Interconnection may be accomplished by any means authorized under California Public Utilities Code Section 5870(h). Each holder of a state franchise and any incumbent cable operator shall provide interconnection of PEG channels including any exclusive city use channel on reasonable terms and conditions and may not withhold the interconnection. If a holder of a state franchise and an incumbent cable operator cannot reach a mutually acceptable interconnection agreement, the city may require the incumbent cable operator to allow the holder of the state franchise 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 holder or as otherwise permitted by applicable law. If no technically feasible point for interconnection is available, the holder of a state franchise shall make an interconnection available to the channel originator and shall provide the facilities necessary for the interconnection. The cost of any interconnection shall be borne by the state franchise holder requesting the interconnection unless otherwise agreed to by the state franchise holder and the incumbent cable operator. To the extent not inconsistent with California Public Utilities Code Section 5870(h), the city manager may waive, modify, or defer this requirement of interconnection in his or her sole discretion. (Ord. 1442 § 2, 2022).

5.40.240 Notices.

(a) Each state franchise holder or applicant for a state franchise shall file with the city manager a copy of all applications that the state franchise holder or applicant is required to file with the Public Utilities Commission.

(b) Unless otherwise specified in this chapter, all notices or other documentation that a state franchise holder is required to provide to the city under this chapter or the California Public Utilities Code shall be provided to the city manager. (Ord. 1442 § 2, 2022).

5.40.250 Compliance with law.

Nothing contained in this chapter shall be construed to exempt a state franchise holder from compliance with all applicable ordinances, rules, or regulations of the city now in effect or which may be adopted that are not inconsistent with this chapter or California Public Utilities Code Section 5800 et seq. (Ord. 1442 § 2, 2022).

5.40.260 Reauthorization of state franchise holder PEG fees.

(a) Section 5.40.040 shall automatically be reauthorized upon the expiration of any existing or future franchise certificate franchise(s) held by any state franchise holder operating within the city.

(b) This chapter shall automatically be reauthorized upon the expiration of any existing or future franchise certificate franchise(s) held by any state franchise holder operating within the city. This chapter shall so renew upon the future expiration of any franchise certificate franchise(s) until such time that the city council takes formal affirmative action to cease the renewals. (Ord. 1442 § 2, 2022).

5.40.270 Indemnification and insurance requirements.

(a) The state franchise holder shall, at the sole risk and expense of state franchise holder, upon demand of the city, made by and through the city council, city manager or city attorney, appear in and defend any and all suits, actions, or other legal proceedings, whether judicial, quasi-judicial, administrative, legislative, or otherwise, brought or instituted or had by third person or duly constituted authorities, against or affecting the city, its elected officers, boards, commissions, agents or employees, and arising out of, or pertaining to, the exercise or the enjoyment of such state video franchise.

(b) The state franchise holder shall pay and satisfy and shall cause to be paid and satisfied any judgment, decree, order, directive, or demand rendered, made or issued against the state franchise holder, the city, its elected officers, boards, commissions, agents, or employees in any of these premises; and such indemnity shall exist and continue without reference to or limitation by the amount of any bond, policy of insurance, deposit, undertaking or other assurance required hereunder, or otherwise; provided, that neither the state franchise holder nor city shall make or enter into any compromise or settlement of any claim, demand, cause of action, action, suit, or other proceeding, without first obtaining the written consent of the other.

(c) Upon becoming a state franchise holder, the state franchise holder shall file with the city manager and shall thereafter, during the entire term of the installation and/or occupation in the public rights-of-way with any of the state franchise holder’s equipment, maintain, in full force and effect, at its own cost and expense, proof of the following policies of insurance: General comprehensive liability insurance in the amount of three million dollars, together with bodily injury liability insurance in an amount not less than three million dollars for injuries including accidental death, to any one person, and subject to the same limit for each person in an amount not less than one million dollars on account of any one occurrence, and property damage liability insurance in an amount not less than one hundred thousand dollars resulting from any one occurrence; provided, as follows:

(1) The city shall be named as an additional insured in any of such insurance policies;

(2) The insurance provided shall be primary and noncontributory and shall not be canceled or materially amended without thirty days’ written notice to the city, except ten days’ written notice shall be sufficient for nonpayment of the premium; and

(3) Where such insurance is provided by a policy which also covers the franchise holder or any other entity or person, it shall contain the standard cross-liability endorsement which excludes cross-liability suits. (Ord. 1442 § 2, 2022).