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HomeMy WebLinkAboutOrd 755 ORDINANCE NO. 755 AN ORDINANCE OF THE CITY COUNCIL, OF THE CITY OF CATHEDRAL CITY, TO REPEAL, IN ITS ENTIRETY, ORDINANCE NOS. 518, 523, 554 AND AMEND TITLE 5, BY REPEALING IN ITS ENTIRETY CHAPTER 5.11 AND ADOPTING A NEW CHAPTER 5.11 (CABLE TELEVISION SYSTEMS) OF TITLE 5 OF THE CATHEDRAL CITY MUNICIPAL CODE TO BE ALIGNED WITH THE STATE DIGITAL INFRASTRUCTURE AND VIDEO COMPETITION ACT OF 2006 (DIVCA). WHEREAS, the City's municipal code currently includes Title 5, Chapter 5.11, Governing Cable Television Systems for the Installation, Construction, Operation and Regulation of a Cable Television System, of Title 5, Business Regulations; and, WHEREAS, significant changes in state law governing telecommunications, cable and video services have been enacted that have rendered several provisions of the City of Cathedral City municipal code Chapter 5.11 outdated; and, WHEREAS, due to changes in state law, Ordinance Nos. 518, 523, 524 and Chapter 5.11 of Title 5, of the Cathedral City Municipal Code be repealed in their entirety; and WHEREAS, a new Chapter 5.11, Title 5, of the Cathedral City Municipal Code be adopted to be aligned with the State Digital Infrastructure and Video Competition Act of 2006 ("DIVCA"), WHEREAS, it is in the best interest of the City to update its cable and video franchising ordinance to better reflect current law. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF CATHEDRAL CITY, CALIFORNIA, ORDAINS THAT: Chapter 5.11 to Title 5 Business Regulations of the City of Cathedral City Municipal Code shall be as follows: Title 5 BUSINESS REGULATIONS Chapter 5.11 GOVERNING THE PROVISION OF STATE ISSUED FRANCHISES PROVIDING CABLE AND VIDEO SERVICES IN THE CITY 5.11.010 Definitions "Cable service" shall be ascribed the meaning set forth in Section 5830 of the Digital Infrastructure and Video Competition Act of 2006. "California Public Utilities Commission" (PUC) state agency responsible for the issuing of Cable Franchises to local municipalities. "DIVCA" means Digital Infrastructure and Video Competition Act of 2006 "Franchise" means an initial authorization, or renewal of an authorization, issued by a license, resolution, contract, certificate, agreement, or otherwise, that authorizes the construction and operation of any network in the right-of-way capable of providing video services to subscribers. "Franchise fee" means the fee adopted pursuant to Section 5840 of the Digital Infrastructure and Video Competition Act of 2006. "Gross revenue" means all revenue actually received by the holder of the state franchise, as determined in accordance with generally accepted accounting principles that is derived from the operation of the holder's network to provide cable or video service within the jurisdiction of the Competition Act of 2006. "Holder" means a person or group of persons that has been issued a state franchise from the California Public Utilities Commission pursuant to the Digital Infrastructure and Video Competition Act of 2006. "Locally produced video programming" shall be ascribed the meaning set forth in Section 5870(d) of the Digital Infrastructure and Video Competition Act of 2006. "Material breach" means any substantial and repeated failure of a video service provider to comply with service quality and other standards specified in Section 5900(a) of the Digital Infrastructure and Video Competition Act of 2006. "PEG fee" means a fee adopted pursuant to Section 5840 of the Digital Infrastructure and Video Competition Act of 2006 for access and maintenance of Public, Education & Government channel. "State franchise" means a franchise that is issued pursuant to the Digital Infrastructure and Video Competition Act of 2006. "Subscriber" means a person who lawfully receives video service from the holder of a state franchise for a fee. "Video service" shall be ascribed the meaning set forth in Section 5830 of the Digital Infrastructure and Video Competition Act of 2006. "Video service provider" means an entity providing video services. Terms used in this Chapter shall have the 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 define therein, (4) their common and ordinary meaning. References to governmental entities (whether persons or person). 5.11.020 Purpose The purpose of this Chapter is to regulate video service providers holding state video franchises providing services within the jurisdictional boundaries of the City as specifically permitted by the Digital Infrastructure and Video Competition Act of 2006, and the rules of the California Public Utilities Commission promulgated thereunder. Pursuant to DIVCA, the City of Cathedral City 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 holders operating within the city for violations of such customer service Standards. 5.11.030 Grant of Authority -State Franchise Required A. Except as the City Council may authorize by resolution, 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 in accordance with the California Public Utilities Code, Division 2.5 (commencing with Section 5800) — The Digital Infrastructure and Video Competition Act of 2006, and as it may be amended. 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 business within the city, including, but not limited to, compliance with the conditions that the city may establish before facilities may be constructed, or for providing non-video services. 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. 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 the rights to the lawful exercise of police and other powers the city now has or may later obtain. E. The California Public Utilities Commission shall have the sole authority to grant franchises, enter into franchise agreements, modify franchise agreements, renew local franchises, revoke franchises, and authorize the transfer of franchises. The City may act with the PUC regarding performance issues. F. The city reserves the right to construct, operate, maintain or repair its own cable system or video service provider network. 5.11.40 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, either directly or through a duly appointed designee, shall have the responsibility for overseeing the day-to-day administration of the ordinance codified in this chapter and franchise agreements. The City Manager, or designee, shall be empowered to take all administrative actions on behalf of the City (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. The City Manager, or designee, may recommend that the council take certain actions with respect to state franchises. The City Manager shall keep the council apprised of developments in cable and telecommunications and provide the council with assistance, advice and recommendations as appropriate. C. The failure of the City, upon one or more occasions, to exercise a right or to require compliance or performance 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 equipment owned, controlled or used by the city or the designated entity or entities. 5.11.050 Franchise Fee A state video franchise holder operating in the city shall pay to the city a franchise fee that is equal to 5% of the gross revenues of that state video franchise holder. The term gross revenues shall be defined as set forth in Cal. Pub. Util. Code 5860. 5.11.060 Peg Fee In addition to the franchise fee required pursuant to 5.11.05, a state video franchise holder operating in the city shall pay to the city a fee that is equal to 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 Cal. Pub. Util. Code 5860. 5.11.070 Payment of Fees; Examination of Business Records A. Any payments due under this provision shall be payable quarterly. The payment shall be made within forty-five (45) days of the end of each quarter together with a report showing the basis for the computation. In the event that a franchise fee payment or other sum due is not received by the City on or before the date due, or is underpaid, franchisee shall pay in addition to the payment, a late payment charge at a rate per year equal to the highest prime lending rate during the period of delinquency, plus one percent (1%), or as otherwise allowed by applicable laws. Failure to remit the undisputed franchise fee to the City shall be considered a material breach of a franchise agreement and subject franchisee to all available enforcement provisions under the state franchise agreement, this chapter and applicable laws. B. All amounts paid shall be subject to an annual audit and re-computation by City and acceptance of any payment shall not be construed as an accord that the amount paid is in fact the correct amount. C. The City shall have the right to inspect once a year, upon reasonable written notice and during normal business hours, or require franchisee to provide within a reasonable time a reasonable number of copies of any non-confidential records maintained by franchisee which relate to system operations including specifically franchisee's accounting and financial records. City acknowledges that some of the records which may be provided by franchisee may be classified as confidential and therefore may subject franchisee to competitive disadvantage if made public. City shall therefore maintain the confidentiality of any and all records provided to it by franchisee which are not required to be made public pursuant to applicable laws. City shall notify franchisee whenever confidential, proprietary documents are sought prior to the intended release, so that franchisee may seek protection in accordance with state law. Franchisee shall produce such books and records for City's inspection at franchisee's local office within the service area or at such other mutually agreed upon location within the Coachella Valley Area Market. To the extent it is necessary for City to send a representative to a location outside of the City to inspect franchisee's books and records, franchisee shall be responsible for reasonable travel costs, including, but not limited to airfare, hotel, meals, car rental, etc. For purposes of this section, "reasonable travel costs" shall mean those costs incurred in a manner consistent with the City's internal guidelines for travel expense reimbursement. 5.11.080 Customer Service Requirements A State franchise holder's shall comply with California Government Code Sections 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; Cal. Penal Code 637.5; the privacy standards of Title 47 U.S.C. 551; and all 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 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 $1,500 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 $3,000 for each such violation. 3. For a third or further violation of the same nature within a 12-month period, a monetary penalty of $2,500 shall be imposed for each day the violation remains in effect, not to exceed $7,500 for each such violation. C. 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. 5.11.090 Insurance -Surety - Indemnification Rights of Way Protection A. A franchisee shall maintain, and by its acceptance of the franchise specifically agrees that it will maintain, throughout the entire length of the franchise period, the following liability insurance coverage insuring the City and the franchisee: worker's compensation insurance to meet all state requirements and general comprehensive liability insurance with respect to the construction, operation and maintenance of the cable system, including the operation of motor vehicles, in the minimum amounts of: 1. General Liability: Two Million and No/100 Dollars per occurrence for bodily personal injury and property damage. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to a local franchise or the general aggregate limit shall be twice the required occurrence limit. 2. Automobile Liability: Two Million and No/100 Dollars per accident for bodily injury and property damage. 3. Workers' Compensation insurance as required by the State of California, and Employer's Liability Insurance. B. All insurance policies shall be with sureties qualified to do business in the state of California, and in a form approved by the City attorney. The City may require coverage and amounts in excess of the above minimums where necessary in view of the franchisee's greater exposure to liability. C. A franchisee shall indemnify, defend and hold harmless the City, its officers, employees, elected and appointed officials, volunteers and agents from and against any liability, claims, actions, judgments, settlements or losses that in any way arise out of franchisee's construction, operation, maintenance or removal of the cable system or franchisee's provision of video service, including, but not limited to, reasonable attorneys' fees and costs. D. The indemnification of City by franchisee shall apply to all damages and claims for damages of any kind suffered by reason of any of franchisee's operations referred to in a franchise, regardless of whether or not insurance policies have been determined to be applicable to any such damages or claims for damages. E. City does not, and shall not, waive any rights against franchisee which it may have by reason of the indemnification provided for in a franchise, because of the acceptance by City, or the deposit with City by franchisee, of any of the insurance policies described in a franchise. F. In order for City to assert its rights to be indemnified, defended, and held harmless, City must, with respect to each claim: 1. Promptly notify franchisee in writing of any claim or legal proceeding which gives rise to such right; 2. Afford franchisee the opportunity to participate in and fully control any compromise, settlement or other resolution or disposition of any claim or proceeding; and 3. Fully cooperate with reasonable requests of franchisee, at franchisee's expense, in its participation in, and control, compromise, settlement or resolution or other disposition of such claim or proceeding subject to paragraph (2) above. 5.11.100 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 PUC. B. The City may provide any appropriate comments to the PUC regarding an application or an amendment to an application for a state video franchise. 5.11.110 Access Channels and Facilities A state video franchise holder shall designate sufficient capacity on its network to enable the carriage of at least three PEG access Channels. PEG access channels shall be for the exclusive use of the City or its designees to provide public, educational, or governmental programming. 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. 5.11.120 Minimum Facilities and Services A. The following minimum requirements for facilities and services apply to all franchises. The City may require in a franchise agreement that a franchisee exceed these minimum requirements where it determines, under circumstances existing at the time of the application, that the additional requirements are necessary to meet public needs. 1. Any cable system constructed, upgraded, or reconstructed after the effective date of the ordinance codified in this chapter shall have (1) a minimum of 750 MHz capacity or its functional equivalent; and (2) two-way capability. 2. The City may require that a state franchise provide access channels for public, educational and governmental use. 3. A cable system shall provide leased access channels as required by federal law. 4. 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. 5. A franchisee shall make available to its subscribers equipment capable of decoding closed circuit captioning information for the hearing impaired. A franchisee may impose a reasonable charge for such equipment. 6. Standard installation shall consist of a drop, not exceeding one hundred twenty- five feet to the customer's residence or place of commercial business. Residential or commercial business drops in excess of one hundred twenty-five feet may be charged according to the franchisee's rate schedule. B. Unless a franchise agreement provides otherwise, a franchisee shall make video service available to every dwelling within the franchisee's service area. 5.11.130 Applicability A. This chapter shall be applicable to all state franchises issued by the PUC, whether or not such franchises were issued prior to the effective date of this chapter, to the full extent permitted by state and federal law. This chapter shall apply to state franchises unless such provisions are specifically preempted by State law. B. Any franchisee whose franchise agreement predates the effective date of the ordinance codified in this chapter, shall notify the City in writing within ninety calendar days of the passage of the ordinance codified in this chapter, or any subsequent amendment thereof, of: 1. Any provision which it believes should not be applicable to it by reason of the pre-existing franchise agreement or the continuing applicability of the prior ordinance; and 2. The reason for each such claim of non-applicability. C. Failure to notify the City as provided in subsection (B) of this section shall constitute a waiver of any right to object. Section 2. Severability If any section, subsection, sentence, clause or phrase of the Ordinance is for any reason held to be invalid, or unconstitutional by a decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining provisions of this Ordinance. The City Council hereby declares that it should have adopted the Ordinance and each section, subsection, sentence, clause or phrase thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared unconstitutional. Section 3. Taking Effect This Ordinance shall take effect and be in force thirty (30) days from and after its adoption. Section 4. Posting Within fifteen (15) days after the adoption of this Ordinance, the City Clerk shall have it posted in three (3) public places designated by the City Council. This Ordinance was introduced and read on the 8th day of April 2015, and passed and adopted on the 22nd day of April, 2015, by the following vote. AYES:5- COunCilmeirnbet� A 1,ACLY) Cavinevale and ICraplcA1(1 j WA*1( I fern l�Nis NOES: Of mG+yc�r 1rnry ABSENT:25- ABSTAIN:j(j_ CITY OF CATHEDRAL CITY i ii- 41 STANLEY E. HE s.-MAYOR • ATTEST: n. Gary F. How:al):City lerk t APPROVED AS TO FORM: 1 Charles Green, City Attorney