Chapter 12.32
CABLE, VIDEO AND TELECOMMUNICATIONS SERVICE PROVIDERS
Sections:
12.32.110 Franchise fee established.
12.32.120 Notices from state franchisees.
12.32.130 Tax, fee or charge applicability to state franchisees.
12.32.140 Customer service provisions for state franchisees.
12.32.170 Other multichannel video programming distributors.
Prior legislation: Ords. 484, 497 and 652.
12.32.100 Title.
This chapter is known and may be cited as the cable and video service providers ordinance of the city of Palos Verdes Estates. (Ord. 701 § 2 (Exh. 1), 2012; Ord. 697 § 1, 2010)
12.32.110 Franchise fee established.
A. For any state franchisee, the amount of the franchise fee imposed by Cal. Pub. Util. Code § 5840(q) shall be five percent of gross revenues, as defined in Cal. Pub. Util. Code § 5860(d).
B. In accord with Cal. Pub. Util. Code § 5860(a), the city manager will prepare and provide to state franchisees all necessary documentation supporting the percentage franchise fee paid by the incumbent cable operator serving the city. (Ord. 701 § 2 (Exh. 1), 2012; Ord. 697 § 1, 2010)
12.32.120 Notices from state franchisees.
Any notice a state franchisee is required to deliver to the city by Cal. Pub. Util. Code § 5840(m) must be delivered to the city manager. (Ord. 701 § 2 (Exh. 1), 2012; Ord. 697 § 1, 2010)
12.32.130 Tax, fee or charge applicability to state franchisees.
Nothing in this chapter is intended to limit or restrict in any way the imposition of any existing or future generally applicable, nondiscriminatory, competitively neutral tax, fee, or charge to a state franchisee, city franchisee or the services the franchisees provide. (Ord. 701 § 2 (Exh. 1), 2012; Ord. 697 § 1, 2010)
12.32.140 Customer service provisions for state franchisees.
A. A state franchisee shall be subject to the city’s right to enforce compliance with all customer service and protection standards of Cal. Pub. Util. Code § 5900 with respect to complaints received from residents within the city.
B. A state franchisee shall comply with the provisions of Cal. Gov. Code §§ 53055, 53055.1, 53055.2, and 53088.2 (with the exception of subsections (q), (r) and (s) of 53088.2) and any other customer service standards pertaining to the provisions of video service established by federal or state laws or regulations.
C. The city shall have the right to resolve any disputes concerning a state franchisee’s compliance with the provisions of Cal. Gov. Code §§ 53088.2(a) through (p).
D. A state franchisee shall be subject to the following penalties and enforcement procedures for any material breach of the provisions cited above:
1. The city manager shall provide the state franchisee with written notice of any alleged material breach and shall allow thirty days from the date of receipt of said notice for the state franchisee to remedy the specified material breach. A “material breach” shall mean any substantial and repeated failure of a state franchisee to comply with service quality and other specified standards referenced in this chapter. A state franchisee shall not be subject to penalties or held in breach when the alleged material breach was caused by events beyond the reasonable control of the state franchisee.
2. Notice of the breach(es) must be in writing and must contain findings supporting the decisions. Decisions by the city manager are final, unless appealed to the city council.
3. If the state franchisee fails to remedy the specified material breach(es) within thirty days, the city may impose monetary penalties on the following schedule:
a. Up to five hundred dollars for each day of each material breach, not to exceed one thousand five hundred dollars for each occurrence of a material breach.
b. For a second material breach of the same nature within twelve months, up to one thousand dollars for each day of each material breach, not to exceed three thousand dollars for each occurrence of the material breach.
c. For a third or further material breach of the same nature within twelve months, up to two thousand five hundred dollars for each day of each material breach, not to exceed seven thousand five hundred dollars for each occurrence of the material breach.
4. Any monetary penalty imposed under this section may be appealed by the state franchisee to the city council. Appeals must be received in writing by the city clerk within sixty days of imposition of the penalty. The state franchisee may present any relevant written or oral evidence of its choice. The city council may uphold or reverse, in whole or in part, the imposition of the monetary penalties.
5. A material breach for the purposes of assessing penalties shall be deemed to have occurred for each day, following the expiration of the thirty-day notice period, that any material breach has not been remedied by the video service provider, irrespective of the number of customers affected.
6. Any interested person may seek judicial review of a decision of the city in a court of appropriate jurisdiction. For this purpose, a court of law shall conduct a de novo review of any issues presented.
7. Any penalty paid to the city shall be allocated consistent with applicable law, particularly Cal. Pub. Util. Code § 5900(g). (Ord. 701 § 2 (Exh. 1), 2012; Ord. 697 § 1, 2010)
12.32.150 PEG compatibility.
The city manager shall ensure PEG transmissions, content, and programming provided by the city to a state franchisee are in a format compatible with the state franchisee’s system. In the alternative, the transmissions, content, and programming may be provided in an industry standard format, in accord with Cal. Pub. Util. Code § 5870(g)(1). (Ord. 701 § 2 (Exh. 1), 2012; Ord. 697 § 1, 2010)
12.32.160 Interconnection.
To properly serve the city’s interest in PEG programming, each state franchisee and incumbent cable operator must comply with the PEG system interconnection requirements of Cal. Pub. Util. Code § 5870. The city manager, or his or her designee, may make any interconnection determinations of the city under Cal. Pub. Util. Code § 5870, including requiring interconnection where state franchisees or incumbent cable operators fail to reach a mutually acceptable interconnection agreement. (Ord. 701 § 2 (Exh. 1), 2012; Ord. 697 § 1, 2010)
12.32.170 Other multichannel video programming distributors.
The term “cable system,” as defined in federal law and as set forth in this chapter, does not include a facility that serves subscribers without using any public rights-of-way. Consequently, the categories of multichannel video programming identified below are not deemed to be “cable systems” and are therefore exempt from this chapter; provided, that their distribution or transmission facilities do not involve the use of the city’s public rights-of-way:
A. Multichannel multipoint distribution service (“MMDS”), also known as “wireless cable,” which typically involves the transmission by an FCC-licensed operator of numerous broadcast stations from a central location using line-of-sight technology.
B. Local multipoint distribution service (“LMDS”), another form of over-the-air wireless video service for which licenses are auctioned by the FCC, and which offers video programming, telephony, and data networking services.
C. Direct broadcast satellite (“DBS”), also referred to as “direct-to-home satellite services,” which involves the distribution or broadcasting of programming or services by satellite directly to the subscriber’s premises without the use of ground receiving or distribution equipment, except at the subscriber’s premises or in the uplink process to the satellite. Local regulation of direct-to-home satellite services is further proscribed by the following federal statutory provisions:
1. 47 U.S.C. Section 303(v) confers upon the FCC exclusive jurisdiction to regulate the provision of direct-to-home satellite services.
2. Section 602 of the Telecommunications Act of 1996 states that a provider of direct-to-home satellite service is exempt from the collection or remittance, or both, of any tax or fee imposed by any local taxing jurisdiction on direct-to-home satellite service. The terms “tax” and “fee” are defined by federal statute to mean any local sales tax, local use tax, local intangible tax, local income tax, business license tax, utility tax, privilege tax, gross receipts tax, excise tax, franchise fees, local telecommunications tax, or any other tax, license, or fee that is imposed for the privilege of doing business, regulating, or raising revenue for a local taxing jurisdiction. (Ord. 701 § 2 (Exh. 1), 2012; Ord. 697 § 1, 2010)
12.32.180 Definitions.
Unless otherwise expressly stated, the words, terms, phrases, and their derivations set forth in this chapter have the meanings set forth in Cal. Pub. Util. Code § 5830, Title 47 of the United States Code, and Title 47 of the Code of Federal Regulations. Words used in the present tense include the future tense, and words in the singular include the plural number. In addition to the definitions listed in the federal and state statutes listed above, the meanings of the following words, terms and phrases shall be:
“City” means the city of Palos Verdes Estates as represented by its city council or by any delegate acting within the scope of its delegated authority.
“Person” means an individual, partnership, limited liability company, association, joint stock company, trust, corporation, or governmental entity.
“Public, educational or government access facilities” or “PEG access facilities” means the total of the following:
1. Channel capacity designated for noncommercial public, educational, or government use; and
2. Facilities and equipment for the use of that channel capacity.
“State franchisee” means any holder of a state-issued video franchise operating in the city, as defined in Cal. Pub. Util. Code § 5830(p). (Ord. 701 § 2 (Exh. 1), 2012; Ord. 697 § 1, 2010)