Chapter 13.04
STATE VIDEO SERVICE FRANCHISES
Sections:
13.04.030 Franchise fees – Audits.
13.04.040 Customer service – Penalties.
13.04.050 Permits and construction.
13.04.010 General provisions.
A. Purpose. This chapter is intended to be applicable to video service providers who have been awarded a state video franchise under California Public Utilities Code Section 5800 et seq. (the Digital Infrastructure and Video Competition Act of 2006 [“DIVCA”]), to serve any location(s) within the incorporated boundaries of the City. It is the purpose of this chapter to implement the provisions of DIVCA and the rules of the California Public Utilities Commission promulgated thereunder that are applicable to a “local franchising entity” or a “local entity” as defined in DIVCA.
Except as otherwise provided herein or by state or federal law, no cable operator or video service provider shall provide video service within the City of Vacaville without a state video franchise.
B. Rights Reserved.
1. The rights reserved to the City under this chapter are in addition to all other rights of the City, whether reserved by this chapter or authorized by law, and no action, proceeding or exercise of a right shall affect any other rights which may be held by the City.
2. Except as otherwise provided by DIVCA, a state franchise shall not include, or be a substitute for:
a. Compliance with generally applicable requirements for the privilege of transacting and carrying on a business within the City, including, but not limited to, compliance with the conditions that the City may establish before facilities may be constructed for, or providing, nonvideo services;
b. Any permit or authorization, other than a state franchise, required in connection with operations on or in public rights-of-way or public property, including, but not limited to, encroachment permits, street work permits, pole attachment permits and street cut permits; and
c. Any permit, agreement or authorization for occupying any other property of the City or any private person to which access is not specifically granted by the state franchise.
3. The City reserves the right to construct, operate, maintain or repair its own cable system or video service provider network.
C. Compliance with This Chapter. Nothing contained in this chapter shall ever be construed so as to exempt a state franchisee from compliance with all ordinances, rules or regulations of the City now in effect or which may be hereafter adopted which are consistent with this section or Public Utilities Code Section 5800 et seq.
(Ord. 1908, Repealed and Replaced, 02/28/2017)
13.04.020 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 section shall have the same meaning as established in (A) DIVCA, and if not defined therein, (B) California Public Utilities Commission rules implementing DIVCA, and if not defined therein, (C) the Communications Act of 1934, as amended, at 47 U.S.C. Section 521 et seq., and if not defined therein, then (D) their common and ordinary meaning. If specific provisions of law referred to herein are renumbered, then the reference shall be read to refer to the renumbered provision.
“Access,” “PEG access,” “PEG use,” or “PEG” means the availability of a cable or video service provider system for public, educational, or governmental use by various agencies, institutions, organizations, groups, and individuals, including the City and its designated access providers, to acquire, create, and distribute programming not under a state franchise holder’s editorial control.
1. “Public access” or “public use” means access where organizations, groups, or individual members of the general public, on a nondiscriminatory basis, are the primary or designated programmers or users having editorial control over their communications;
2. “Education access” or “education use” means access where accredited educational institutions are the primary or designated programmers or users having editorial control over their communications;
3. “Government access” or “government use” means access where government institutions or their designees are the primary or designated programmers or users having editorial control over their communications.
“City Manager” means the City Manager of the City of Vacaville or the designee of the City Manager.
“Commission” means the California Public Utilities Commission.
“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 incorporated areas of the City, subject to the provisions of Public Utilities Code Section 5860.
“State franchisee” means a cable operator or video service provider that has been issued a franchise by the commission to provide cable service or video service, as those terms are defined in Public Utilities Code Section 5830, within any portion of the incorporated limits of the City.
“Video service provider” has the meaning set forth in DIVCA and, in addition refers collectively to any cable operator, video service provider or open video system (“OVS”) operator as defined in DIVCA that has been issued a franchise by the commission to provide cable service or video service.
(Ord. 1908, Repealed and Replaced, 02/28/2017)
13.04.030 Franchise fees – Audits.
A. State Franchise Fees. Any state franchisee operating within the incorporated areas of the City shall pay to the City a state franchise fee equal to five percent of gross revenues.
B. Payment of Franchise Fees. The state franchise fee required pursuant to this section shall be paid quarterly, in a manner consistent with Public Utilities Code Section 5860. The state franchisee shall deliver to the City, by check or other means agreed to by the City, a payment for the state franchise fee not later than 45 days after the end of each calendar quarter. Each payment made shall be accompanied by a report, detailing how the payment was calculated, and shall include such additional information as reasonably designated by the City.
C. Late Payments. In the event a state franchisee fails to make payments required by this section on or before the due dates specified in this section, 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.
D. Audits. The City may audit the business records of state franchisees in a manner consistent with Public Utilities Code Section 5860(i).
(Ord. 1908, Repealed and Replaced, 02/28/2017)
13.04.040 Customer service – Penalties.
A. Customer Service Standards. A state franchisee shall comply with Sections 53055, 53055.1, 53055.2 and 53088.2 of the California Government Code; the FCC customer service and notice standards set forth in Sections 76.309, 76.1602, 76.1603, and 76.1619 of Title 47 of the Code of Federal Regulations; Section 637.5 of the California Penal Code; the privacy standards of Section 551 of Title 47 of the United States Code; and, to the extent consistent with DIVCA, all other applicable state and federal customer service and consumer protection standards pertaining to the provision of video service, including any such standards hereafter adopted. In case of a conflict, the stricter standard shall apply. All customer service and consumer protection standards under this section shall be interpreted and applied to accommodate newer or different technologies while meeting or exceeding the goals of the standards.
B. Penalties for Violations of Standards. If the City Manager determines there is a violation by a state franchisee of customer service standards set forth in subsection A. of this section, the City Manager shall enforce compliance with such standards as follows:
1. The City Manager will provide the state franchisee with written notice of any material breaches of the applicable customer service standards, and will allow the state franchisee 30 days from the receipt of the notice to remedy the specified material breach.
2. Material breaches not remedied within the 30-day time period will be subject to the following penalties; provided, that no penalty shall be imposed for material breaches if the breach is outside the reasonable control of the state franchisee:
a. For the first occurrence of a material breach, a fine of 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.
b. For a second material breach of the same nature within 12 months, a fine of one thousand dollars may be imposed for each day the violation remains in effect, not to exceed three thousand dollars for each violation.
c. For a third material breach of the same nature within 12 months, a fine of 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.
d. For the purposes of this chapter, “material breach” shall have the meaning set forth in California Public Utilities Code Section 5900.
3. Any interested person may seek judicial review of the City Manager’s determination of a material breach and imposition of penalties as set forth in California Public Utilities Code Section 5900.
C. Payment of Penalties. Any penalty imposed on a state franchisee shall be paid to the City. As provided for in Public Utilities Code Section 5900(g), the City shall submit one-half of all penalties received to the Digital Divide Account established in Public Utilities Code Section 280.5.
(Ord. 1908, Repealed and Replaced, 02/28/2017)
13.04.050 Permits and construction.
A. Except as otherwise expressly provided in this chapter, the provisions of the Vacaville Municipal Code, the Land Use and Development Code (Title 14 of the Vacaville Municipal Code) and all City administrative rules and regulations regarding development in the City, or use of or encroachment into the public rights-of-way, as now existing or as hereafter amended, shall apply to all work performed by or on behalf of a state franchisee on any City public rights-of-way, public utility easements, public property or City easement, including, but not limited to, the obligation to obtain an encroachment permit for such work.
B. Permits. Prior to commencing any work for which an encroachment permit is required by subsection A. of this section, a state franchisee shall apply for and obtain any necessary permits and shall comply with all other applicable laws and regulations, including all applicable requirements of Division 13 of the Public Resources Code, Section 21000 et seq. (the California Environmental Quality Act).
1. The City Manager shall either approve or deny a state franchisee’s application for any encroachment permit required under subsection A. of this section within 60 days of receiving a completed permit application.
2. If the City Manager denies a state franchisee’s application for an encroachment permit, the City Manager shall furnish to the state franchisee a detailed explanation of the reason or reasons for the denial.
3. A state franchisee that has been denied a permit by final decision of the City Manager may appeal the denial to the City Council. Upon receiving a notice of appeal, the City Council shall take one of the following actions:
a. Affirm the action of the City Manager without any further hearing; or
b. Refer the matter to the City Manager for further review with or without instructions; or
c. Set the matter for a de novo hearing before the City Council.
4. The issuance of an encroachment permit is not a franchise, and does not grant any vested rights in any location in the public rights-of-way, or in any particular manner of placement within the rights-of-way. Without limitation, a permit to place cabinets and similar appurtenances aboveground may be revoked and the permittee required to place facilities underground, in accordance with applicable law.
C. Notification to Residents Regarding Construction or Maintenance. Prior to any construction, rebuild, or upgrade of a cable or video system, a state franchisee shall establish procedures to notify City residents in the impacted area of construction schedules and activities. Every attempt shall be made to provide notices by the state franchisee to impacted residents and occupants in the construction area a minimum of 48 hours prior to the planned construction and additionally on the day of construction. The notice may be in the form of door hangers that indicate, at a minimum, the dates and times of construction and the name and telephone number of an authorized contact.
D. Should there be aboveground or underground installations (excluding aerial cable lines utilizing existing poles and cable paths) which will affect the private property, such notice shall be in writing and shall contain specific information regarding such installations which will affect the private property.
E. To the extent practicable, aboveground or underground equipment placed on private property shall be placed at the location requested by the property owner. A state franchisee holder shall provide the private property owner with at least 20 days’ advance written notice of its plans to install such equipment, before installing its appurtenances.
F. In addition to any other notice of proposed entry required under this section, a state franchisee’s personnel shall make a reasonable attempt to give personal notice to residents immediately preceding entry on private property or public ways or public easements adjacent to or on such private property.
G. Identification Required. A state franchisee, its employees, agents, contractors, and subcontractors shall be properly identified as agents of the state franchisee prior to and during entry on private and public property. Identification shall include the name and telephone number of the state franchisee on all trucks and vehicles used by installation personnel.
H. Restoration of Private and Public Property. After the performance of work, the state franchisee shall restore such private and public property to a condition equal to or better than its condition prior to construction. Any disturbance of landscaping, fencing, or other improvements upon private or public property shall, at the sole expense of the state franchisee, be promptly repaired or restored (including replacement of shrubbery and fencing) to the reasonable satisfaction of the property owner, in addition to the furnishing of camouflage plants on public property.
(Ord. 1908, Repealed and Replaced, 02/28/2017)
13.04.060 Emergency alert.
Each state franchisee shall comply with the emergency alert system requirements of the Federal Communications Commission, and any state or local emergency alert systems or plans prepared pursuant thereto, in order that emergency messages may be distributed over the state franchisee’s network.
(Ord. 1908, Repealed and Replaced, 02/28/2017)
13.04.070 Public, educational and government access channel capacity, interconnection, and signal carriage.
A. PEG Channel Capacity.
1. A state franchisee that has been authorized by the California Public Utilities Commission to provide video service in the City shall designate and activate three PEG channels within three months from the date that the City requests that the state franchisee designate and activate the PEG channels. However, this three-month period shall be tolled for such a period, and only for such a period, during which the state franchisee’s ability to designate or provide such PEG capacity is technically infeasible, as provided in Public Utilities Code Section 5870(a).
2. A state franchisee shall provide an additional PEG channel when the standards set forth in Public Utilities Code Section 5870(d) are satisfied by the City or any entity designated by the City to manage one or more of the PEG channels.
B. PEG Support Fee.
1. Any state franchisee operating within the City shall pay to the City a PEG support fee equal to one percent of gross revenues.
2. The PEG support fee shall be used for PEG purposes that are consistent with state and federal law.
3. A state franchisee shall remit the PEG support fee to the City quarterly, within 45 days after the end of each calendar quarter. Each payment made shall be accompanied by a report, detailing how the PEG support fee was calculated.
4. If a state franchisee fails to pay the PEG support fee when due, or underpays the proper amount due, the state franchisee shall pay a late payment charge at the rate per year equal to the highest prime lending rate during the period of delinquency, plus one percent.
C. PEG Carriage and Interconnection.
1. State franchisees shall ensure that all PEG channels are receivable by all subscribers, whether they receive digital or analog service, or a combination thereof, without the need for any equipment other than that needed to receive the lowest cost tier of service. PEG access capacity provided by a state franchisee shall be of similar quality and functionality to that offered by commercial channels (unless the PEG signal is provided to the state franchisee at a lower quality or with less functionality), shall be capable of carrying a National Television System Committee (NTSC) quality television signal, and shall be carried on the state franchisee’s lowest cost tier of service. To the extent feasible, the PEG channels shall not be separated numerically from other channels carried on the lowest cost tier of service and the channel numbers for the PEG channels shall be the same channel numbers used by any incumbent cable operator, unless prohibited by federal law. After the initial designation of the PEG channel numbers, the channel numbers shall not be changed without the agreement of the City unless federal law requires the change.
2. A state franchisee and an incumbent cable operator shall negotiate in good faith to interconnect their networks for the purpose of providing PEG programming. If a state franchisee and an incumbent cable operator cannot reach a mutually acceptable interconnection agreement for PEG carriage, the City shall require the incumbent cable operator to allow the state franchisee to interconnect its network with the incumbent cable operator’s network at a technically feasible point on the state franchisee’s network as identified by the state franchisee. If no technically feasible point of interconnection is available, the state franchisee shall make interconnection available to the PEG channel originator and shall provide the facilities necessary for the interconnection. The cost of any interconnection shall be borne by the state franchisee requesting the interconnection unless otherwise agreed to by the parties.
(Ord. 1908, Repealed and Replaced, 02/28/2017)
13.04.080 Notices.
Each state franchisee or applicant for a state franchise shall file with the City a copy of all applications or notices that the state franchisee holder or applicant is required to file with the California Public Utilities Commission. All notices or other documentation that a state franchisee holder is required to provide to the City under this section or the Public Utilities Code shall be provided to the City Manager.
(Ord. 1908, Repealed and Replaced, 02/28/2017)