Chapter 11.20
STATE VIDEO FRANCHISES
Sections:
11.20.010 Purpose and application.
11.20.020 State video franchise fees.
11.20.060 Customer service penalties.
11.20.070 Public rights-of-way.
11.20.090 Preemption – Reservation of rights.
11.20.010 Purpose and application.
The state of California, through the Public Utilities Commission, is the sole authority with power to grant state video franchises pursuant to the Digital Infrastructure and Video Competition Act of 2006 (“DIVCA”), effective January 1, 2007, and codified at Public Utilities Code Section 5800 et seq. at the time of enactment of this chapter. The purposes of this chapter are to implement DIVCA in the city of Millbrae and to regulate, consistent with DIVCA and the implementing rules issued by the California Public Utilities Commission dated March 1, 2007, video service providers holding state video franchises and operating within the city pursuant to that franchise. This chapter shall be applied to and interpreted consistently with any amendments to, or recodifications of, DIVCA that may be made from time to time. (Ord. 736, § 2).
11.20.020 State video franchise fees.
Any state video franchise holder operating within the boundaries of the city shall pay a fee to the city equal to five percent of the state video franchise holder’s “gross revenue” as defined in California Public Utilities Code Section 5860(d). This fee shall be remitted to the city quarterly, within forty-five days after the end of the calendar quarter. Each payment shall be accompanied by a summary explaining the basis for the calculation of the state franchise fee. If the holder does not pay the franchise fee when due, the holder shall pay a late payment charge at a rate per year equal to the highest prime lending rate during the period of delinquency, plus one percent. If the holder has overpaid the franchise fee, it may deduct the overpayment from its next quarterly payment. (Ord. 736, § 2).
11.20.030 PEG support fees.
A. Any state video franchise holder operating within the boundaries of the city shall pay a PEG fee to the city or the city’s designee for capital support of public, educational, and/or governmental (PEG) purposes that is consistent with state and federal law equal to no more than one percent of gross revenues, as defined by Section 5870(n) of the California Public Utilities Code.
As of March 28, 2017, the city reauthorizes the aforementioned fee on state-franchised video service providers to support PEG channel facilities adopted in Ordinance Number 736 and all other provisions therein. The provisions set forth in Ordinance Number 736, including all fees, shall remain unchanged and in full effect as to all state-franchised video service providers.
B. Upon the expiration or termination of the current local cable franchise, every state video franchise holder operating within the city shall pay to the city, on a schedule and in a manner to be determined by the city, a PEG capital support fee in an amount equal to one percent of gross revenues per subscriber per month.
C. Until the expiration or termination of the current local cable franchise, and pursuant to Section 5870(l) of the California Public Utilities Code, every state video franchise holder operating within the boundaries of the city shall be responsible for a pro-rata, per subscriber share of the two outstanding capital grant payments required under the current local cable franchise agreement, totally thirty-one thousand four hundred sixty-three dollars each, scheduled as of September 8, 2010, for payment in January 2011 and January 2016. (Ord. 736, § 2, Amended by Ord. 766, § 1).
11.20.040 PEG channels.
A. The city’s current franchise with Comcast of California IX, Inc., provides for four public, educational and governmental channels for PEG programming. Local franchise holders and holders of a state video franchise under DIVCA shall each provide at least four PEG channels.
B. All state video franchise holders shall comply with the provisions of DIVCA related to PEG channels. Without limiting the foregoing, the PEG channels shall be carried on the basic service tier. To the extent feasible, the PEG channels shall not be separated numerically from other channels carried on the basic service tier and the channel numbers for the PEG channels shall be the same channel numbers used by the incumbent cable operator as defined in Public Utilities Code Section 5830(i) unless prohibited by federal law and shall provide video and sound quality, recording capability, channel accessibility and location equal to, or substantially equal to, that provided by the incumbent cable providers. After the initial designation of PEG channel numbers, the channel numbers shall not be changed without agreement of the city unless the change is required by federal law.
C. A state video franchise holder shall have three months from the date the city requests the PEG channels to designate the capacity. However, the three-month period shall be tolled by any period during which the designation or provision of PEG channel capacity is technically infeasible, including any failure or delay of the incumbent cable operator to make adequate interconnection available, as required by DIVCA. Any state video franchise holder which believes that the designation or provision of PEG channel capacity is technically infeasible shall provide to city, in writing, its reasons therefor and its plan for correcting or solving the infeasibility. The city may hold a hearing on the claim of infeasibility and, thereafter, take such action as the city deems proper to require the designation and provision of the PEG channels on the state video franchise holder’s system. (Ord. 736, § 2).
11.20.050 Audit authority.
Not more than once annually, the city manager or designee may examine and perform an audit of the business records of a holder of a state video franchise operating within the boundaries of the city to ensure compliance with Section 5860 of the California Public Utilities Code. (Ord. 736, § 2).
11.20.060 Customer service penalties.
A. The holder of a state video franchise shall comply with all applicable state and federal customer service and protection standards pertaining to the provision of video service.
B. The city manager or designee shall monitor the compliance of state video franchise holders operating within the boundaries of the city with respect to state and federal customer service and protection standards. The city manager or designee will provide the state video franchise holder written notice of any material breaches of applicable customer service standards, and will allow the state video franchise holder thirty days from the receipt of the notice to remedy the specified material breach. Material breaches not remedied within the thirty-day time period will be subject to the following penalties to be imposed by the city:
1. For the first occurrence of a violation, a fine of up to five hundred dollars may 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 violation of the same nature within twelve months, a fine of up to one thousand dollars may 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 violation of the same nature within twelve months, a fine of up to two thousand five hundred dollars may be imposed for each day the violation remains in effect, not to exceed seven thousand five hundred dollars for each violation.
C. A state video franchise holder may appeal a penalty assessed by the city manager to the city council within sixty days of the initial assessment. The city council shall hear all evidence and relevant testimony and may uphold, modify or vacate the penalty. The city council’s decision on the imposition of a penalty shall be final.
As used herein, “material breach” is defined as set forth in Public Utilities Code Section 5900. (Ord. 736, § 2).
11.20.070 Public rights-of-way.
For the purpose of operating and maintaining a cable television system in the city, a state video franchise holder may erect, install, construct, repair, replace, reconstruct, and retain in, on, over, under, upon, across and along the public rights-of-way and public cables, conductors, ducts, conduits, vaults, manholes, amplifiers, property and equipment as are necessary and appurtenant to the operations of the cable system. The state video franchise holder shall comply with all applicable city construction codes and procedures.
The city maintains the right to perform any public work or public improvement of any description, including, without limitation, all work authorized by applicable law. In the event that the state video franchise holder’s system interferes with the construction, operation, maintenance or repair of any such public work or improvement, the state video franchise holder, after reasonable notice from the city, shall, at its own cost and expense, promptly protect, alter or relocate the system, or any part thereof, as directed by the city.
In the event that the state video franchise holder refuses or neglects to so protect, alter or relocate all or any part of its system, the city shall have the right in connection with the performance of such public work or public improvement to break through, remove, alter or relocate all or any part of the system without any liability to the state video franchise holder except for the city’s willful misconduct and the state video franchise holder shall promptly pay to the city the costs incurred by such breaking through, removal, alteration or relocation. (Ord. 736, § 2).
11.20.080 Police powers.
The rights of a state video franchise holder operating within the boundaries of the city are subject to the police power of the city to adopt and enforce general ordinances necessary to the health, safety and welfare of the public, and each state video franchise holder shall comply with all applicable general laws and ordinances enacted by the city pursuant to such power. (Ord. 736, § 2).
11.20.090 Preemption – Reservation of rights.
If any area of regulatory authority is or was preempted from local regulation by federal or state law, and such preemption later ceases, the city reserves the right to resume local regulation to the extent permitted, including the right to enact an ordinance or to enforce Chapter 11.15 MMC to regulate cable television services within the city, should it be determined by state or federal law, regulation or rule that the city may enter into a local franchise with providers of cable television or video services within the city. (Ord. 736, § 2).