HomeMy WebLinkAbout18 ORD 1355-VIDEO FRANCH PRVDRS 10-07-08AGENDA REPORT
MEETING DATE: OCTOBER 7, 2008
TO: WILLIAM HUSTON, CITY MANAGER
FROM: OFFICE OF THE CITY CLERK
SUBJECT: SECOND READING OF ORDINANCE NO. 1355 ADOPTING
CHAPTER 10 OF ARTICLE 7 OF THE TUSTIN CITY CODE
RELATING TO STATE VIDEO FRANCHISE PROVIDERS
SUMMARY:
In 2006, The California State Legislature adopted the Digital Infrastructure and Video
Competition Act (DIVCA) which permits telephone and telecommunication companies to
obtain astate-wide franchise to compete with cable and satellite television operators.
The attached ordinance adopts Chapter 10 of Article 7 of the Tustin City Code to
implement the DIVCA.
RECOMMENDATION:
Have second reading by title only and adoption of Ordinance No. 1355 (roll call vote).
FISCAL IMPACT:
None.
BACKGROUND:
On September 19, 2008, the City Council had first reading by title only and introduction
of the following Ordinance:
ORDINANCE NO. 1355 - AN ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF TUSTIN ADOPTING CHAPTER 10 OF ARTICLE 7 OF THE TUSTIN
CITY CODE PERTAINING TO STATE VIDEO FRANCHISE HOLDERS
Maria R. Huizar,
Chief Deputy City Clerk
ATTACHMENT: Ordinance
ORDINANCE NO. 1355
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
'TUSTIN ADOPTING CHAPTER 10 OF ARTICLE 7 OF THE
TUSTIN CITY CODE PERTAINING TO STATE VIDEO
FRANCHISE HOLDERS.
THE CITY COUNCIL OF THE CITY OF TUSTIN DOES HEREBY ORDAIN AS
FOLLOWS:
SECTION 1. Chapter 10 of Article 7 of the Tustin Municipal Code is hereby adopted to
read as follows:
Chapter 10
STATE VIDEO FRANCHISE HOLDERS
7940 Purpose.
7941 Applicable Definitions.
7942 State Franchise Required.
7943 Administration and Regulations.
7944 Franchise Fee.
7945 PEG Fee.
7946 Payment of Fees; Examination of Business Records.
7947 Customer Service Penalties Under State Video Franchises.
7948 City Response to State Video Franchise Applications.
7949 PEG Channel Capacity.
7950 Emergency Alert System and Emergency Overrides.
7940 Purpose.
A. This Chapter is designed to regulate video service providers holding state
video franchises and operating within the City. As of January 1, 2007, the
State of California has the sole authority to grant state video franchises
pursuant to the Digital Infrastructure and Video Competition Act of 2006
(DIVCA). Pursuant to DIVCA, the City of Tustin may receive a franchise
fee and may receive a fee for public, educational and governmental
access (defined in this Chapter as "PEG" or "PEG access channels") from
all state video franchise holders operating within the City. Additionally,
although DIVCA grants all authority to adopt customer service standards
to the state, the City has the responsibility to establish and enforce
penalties, consistent with state law, against all state video franchise
Ordinance No. 1355 Page 1 of 7
snin~ i
holders operating within the City for violations of such customer service
standards.
B. It is the purpose of this Chapter to implement within the City the provisions
of DIVCA and the rules the California Public Utilities Commission
promulgated thereunder that are applicable to a "local franchising entity"
or a "local entity" as defined in DIVCA. Consistent with that purpose, the
provisions of this Chapter are to be construed in a manner that is
consistent with DIVCA and the applicable rules of the Commission
promulgated thereunder.
7941 Applicable Definitions.
Terms used in this Chapter shall have the same meaning as established
in (1) DIVCA, and, if not defined therein, (2) Commission rules implementing
DIVCA, and, if not defined therein, (3) Subchapter V-A of Chapter 5 of Title 47 of
the United States Code, and, if not defined therein, (4) their common and
ordinary meaning. References to governmental entities (whether persons or
entities) shall refer to those entities or their successors in authority. If a specific
provision of law referred to in this Chapter should be renumbered, then the
reference shall be read to refer to the renumbered provision. References to any
law shall be interpreted broadly to cover government actions, however
nominated, including any law now in force or subsequently enacted or amended.
7942 State Franchise Required.
A. Except as the City Council may authorize by resolution, and except for
franchisees with a valid franchise issued under Chapter 4 of this Article 7
of this Code, no person may construct, operate, maintain or repair a cable
system or video service provider's network in the City without first
obtaining a state franchise therefor.
B. A state franchise shall not convey rights other than as specified in this
Chapter or in DIVCA or other applicable law; no rights shall pass by
implication.
C. Except as otherwise provided by DIVCA, a state franchise shall not
include, or be a substitute for:
1. 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 non-
video services;
Ordinance No. 1355 Page 2 of 7
sn>~~~_i
2. Any permit or authorization, other than a state franchise, required in
connection with operations on or in public rights-of-way or public
property; and
3. Any permit, agreement or authorization for occupying any other
property of the City or private persons to which access is not
specifically granted by the state franchise.
D. Except as otherwise provided in DIVCA, a state franchise shall not relieve
a franchisee of its duty to comply with all laws, including laws of the City,
and every state franchisee shall comply with the same. The City reserves
its rights to the lawful exercise of police and other powers the City now
has or may later obtain.
E. The City reserves the right to construct, operate, maintain or repair its own
cable system or video service provider network.
7943 Administration and Regulations.
A. The City may from time to time adopt rules and regulations to implement
the provisions of this Chapter consistent with DIVCA.
B. The City Manager, or his/her designee, is hereby authorized to administer
this Chapter and to provide or cause to be provided any notices (including
noncompliance notices) and to take any action on behalf of the City that
may be required under this Chapter, DIVCA, or under applicable law.
C. The failure of the City, upon one or more occasions, to exercise a right or
to require compliance or pertormance under this Chapter or any other
applicable law shall not be deemed to constitute a waiver of such right or a
waiver of compliance or performance, unless such right has been
specifically waived in writing or its exercise by the City is not permitted by
DIVCA.
D. The City may designate one or more entities, including itself, to control
and manage the use of PEG access channels, and any PEG facilities and
equipment owned, controlled or used by the City or the designated entity
or entities.
7944 Franchise Fee.
A state video franchise holder operating in the City shall pay to the City a
franchise fee that is equal to five percent (5%) of the gross revenues of that state
video franchise holder. The term "gross revenues" shall be defined as set forth in
Public Utilities Code Section 5860.
Ordinance No. 1355 Page 3 of 7
,~~~~ i
7945 PEG Fee.
In addition to the franchise fee required pursuant to section 7944, a state
video franchise holder operating in the City shall pay to the City a fee that is
equal to one percent (1 %) of the gross revenues of that state video franchise
holder which fee shall be used to support PEG channel facilities. The term
"gross revenues" shall be defined as set forth in Public Utilities Code Section
5860.
7946 Payment of Fees; Examination of Business Records.
A. The Franchise Fee and PEG Fee shall be remitted to the City on a
quarterly basis within 45 days after the end of each quarter for that
calendar year. Each payment shall be accompanied by a detailed
summary explaining the basis for the calculation of the Franchise Fee and
PEG Fee.
B. If a state video franchise holder fails to pay the fees when due, or
underpays the proper amounts due, the state video franchise holder shall
pay a late payment charge at the annual interest rate equal to the highest
prime lending rate during the period of delinquency, plus one percent
(1 %). If the state video franchise holder has overpaid the fees, it may
deduct the overpayment from its next quarterly payment.
C. Not more than once annually, the City may examine the business records
of a state video franchise holder to ensure compliance with all applicable
statutes and regulations related to the computation and payment of
franchise fees.
7947 Customer Service Penalties Under State Video Franchises.
A. The holder of a state video franchise shall comply with California
Government Code §§ 53055, 53055.1, 53055.2 and 53088.2; the FCC
customer service and notice standards set forth in 47 C.F.R. §§ 76.309,
76.1602, 76.1603 and 76.1619; California Penal Code § 637.5; the privacy
standards of 47 U.S.C. § 551; and 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. The City shall monitor state video franchise holder's compliance with state
and federal customer service and protection standards. The City will
provide to the state video franchise holder written notice of any material
Ordinance No. 1355 Page 4 of 7
s~r,,n, i
breaches of applicable customer service and protection standards, and
will allow the state video franchise holder 30 days from receipt of the
notice to remedy the specified material breach. Material breaches not
remedied within the 30-day time period are subject to the following
monetary penalties to be imposed by the City in accordance with state
law:
1. For the first occurrence of a violation, a monetary penalty of $500
shall be imposed for each day the violation remains in effect, not to
exceed $1500 for each violation.
2. For a second violation of the same nature within a 12-month period,
a monetary penalty of $1000 shall be imposed for each day the
violation remains in effect, not to exceed $3000 for each such
violation.
3. For a third or further violation of the same nature within a 12-month
period, a monetary penalty of $2500 shall be imposed for each day
the violation remains in effect, not to exceed $7,500 for each such
violation.
4. A state video franchise holder may appeal to the City Council, or a
hearing officer as the City Council may appoint, a monetary penalty
assessed by the City within 60 days after notice of the assessment.
After relevant evidence and testimony as may be received, and
staff reports as may be submitted, the City Council may uphold,
vacate, or modify the monetary penalty consistent with the
evidence presented. The decision of the City Council, or hearing
officer, on the imposition of a monetary penalty shall be final.
7948 City Response to State Video Franchise Applications
A. Applicants for state video franchises within the boundaries of the City must
concurrently provide to the City complete copies of any application or
amendments to applications filed with the California Public Utilities
Commission. One complete copy must be provided to the City Clerk.
B. The City may provide any appropriate comments to the California Public
Utilities Commission regarding an application or an amendment to an
application for a state video franchise.
7949 PEG Channel Capacity.
A. A state video franchise holder shall designate sufficient capacity on its
network to enable the carriage of at least three PEG access channels.
Ordinance No. 1355 Page 5 of 7
s~6~~e. i
PEG access channels shall be for the exclusive use of the City or its
designees to provide public, educational, or governmental programming.
B. A state video franchise holder shall provide additional PEG channels when
the standards set forth in Public Utilities Code Section 5870 are satisfied
by the City or any entity designated by the City to be responsible for PEG
access.
7950 Emergency Alert System and Emergency Overrides.
A state video franchise holder must comply with the Emergency Alert
System requirements of the Federal Communications Commission so that
emergency messages may be distributed over its network.
SECTION 2. Severabilitv. If any section, subsection, subdivision, sentence,
clause, phrase, word or portion of this Ordinance is, for any reason, held to be
invalid or unconstitutional by the decision of any court of competent jurisdiction,
such decision shall not affect the validity of the remaining portions of this
Chapter. The City Council hereby declares that it would have adopted this
Ordinance and each section, subsection, subdivision, sentence, clause, phrase,
word or portion thereof, irrespective of the fact that any one or more sections,
subsections, .subdivisions, sentences, clauses, phrases, words or portions
thereof be declared invalid or unconstitutional.
SECTION 3. The City Clerk shall certify to the adoption of this Ordinance and
cause the same to be posted at the duly designated posting places within the
City and published once within fifteen days after passage and adoption as may
be required by law; or, in the alternative, the City Clerk may cause to be
published a summary of this Ordinance and a certified copy of the text of this
Ordinance shall be posted in the Office of the City Clerk five days prior to the
date of adoption of this Ordinance; and, within fifteen days after adoption, the
City Clerk shall cause to be published, the aforementioned summary and shall
post a certified copy of this Ordinance, together with the vote for and against the
same, in the Office of the City Clerk.
PASSED and ADOPTED this day of 2008.
JERRY AMANTE, MAYOR
ATTEST:
PAMELA STOKER, CITY CLERK
Ordinance No. 1355
5 76'_ 76. I
Page 6 of 7
I, PAMELA STOKER, City Clerk of the City of Tustin, do hereby certify that the
foregoing Ordinance was introduced at a regular meeting of the City Council held on the
day of 2008 and was finally adopted at a regular meeting held
thereof on the day of , 2008, by the following vote:
AYES: COUNCILMEMBERS:
NOES: COUNCILMEMBERS:
ABSENT: COUNCILMEMBERS:
ABSTAIN: COUNCILMEMBERS:
PAMELA STOKER, CITY CLERK
Ordinance No. 1355 Page 7 of 7