HomeMy WebLinkAboutORD 946ORDINANCE NO. 946
AN ORDINANCE OF THE CITY OF PALM DESERT
REGULATING CABLE, VIDEO, AND
TELECOMMUNICATIONS SERVICE PROVIDERS AND
AMENDING TITLE 14 OF THE PALM DESERT
MUNICIPAL CODE
THE CITY COUNCIL OF THE CITY OF PALM DESERT DOES ORDAIN
AS FOLLOWS:
Section 1. Chapter 14.01 of Title 14 of the Palm
Desert Municipal Code is repealed in its entirety, subject to the
provisions of Section 3 of this ordinance.
Section 2. The Palm Desert Municipal Code is amended
by adding to Title 14 a new Chapter 14.01 to read as follows:
"CHAPTER 14.01. CABLE, VIDEO, AND
TELECOMMUNICATIONS SERVICE
PROVIDERS
ARTICLE 1. GENERAL PROVISIONS
14.01.010 Title
This chapter is known and may be cited as the
"Cable, Video, and Telecommunications Service Providers
Ordinance" of the City of Palm Desert.
14.01.020 Purpose and Intent
A. The City Council finds and determines as
follows:
1. The development of cable, video, and
telecommunications services and systems may provide significant
benefits for, and have substantial impacts upon, the residents of
the City.
2. Because of the complex and rapidly
changing technology associated with cable, video, and
telecommunications services and systems, the public convenience,
safety, and general welfare can best be served by establishing
regulatory powers to be exercised by the City.
3. This chapter adopts provisions that
authorize the City to regulate cable, video, and
telecommunications service providers to the extent authorized by
federal and state law, including but not limited to the federal
Cable Communications Policy Act of 1984, the federal Cable
Television Consumer and Competition Act of 1992, the federal
Telecommunications Act of 1996, applicable regulations of the
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Ordinance No. 946
Federal Communications Commission, and applicable California on"
statutes and regulations.
4. The cable, video, and telecommunications
services that are addressed in this chapter include services
provided by cable television systems, open video systems, master
antenna television systems, satellite master antenna television
systems, direct broadcast satellite systems, multichannel
multipoint distribution systems, local multipoint distribution
systems, and other providers of video programming, whatever their
technology, as well as voice and data services provided by
telephone corporations.
B. The purpose and intent of this chapter is to
provide for the attainment of the following objectives:
1. To enable the City to discharge its
public trust in a manner consistent with rapidly evolving federal
and state regulatory policies, industry competition, and
technological development.
2. To authorize and to manage reasonable
access to the City's public rights -of -way and public property for
cable, video, and telecommunications purposes on a competitively
neutral _and nondiscriminatory basis. _
3. To obtain fair and reasonable
compensation for the City and its residents for authorizing the
private use of the public rights -of -way and public property.
4. To promote competition in cable, video,
and telecommunications services, minimize unnecessary local
regulation of cable, video, and telecommunications service
providers, and encourage the delivery of advanced and competitive
cable, video, and telecommunications services on the broadest
possible basis to local government and to the businesses,
institutions, and residents of the City.
5. To establish clear local guidelines,
standards, and time frames for the exercise of local authority
with respect to the regulation of cable, video, and
telecommunications service providers.
6. To encourage the profitable deployment of
advanced cable, video, and telecommunications infrastructures
that satisfy local needs, deliver enhanced government services,
and provide informed consumer choices in an evolving cable,
video, and telecommunications marketplace.
14.01.030 Defined Terms and Phrases
Various terms and phrases used in this chapter are
defined below in Section 14_01.170 of Article 5.
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Ordinance No. 946
ARTICLE 2
14.01.040
CABLE TELEVISION SYSTEMS
Authority and Findings
A. In accordance with applicable federal and
state law, the City is authorized to grant one or more
nonexclusive franchises to construct, reconstruct, operate, and
maintain cable television systems within the City limits.
B. The City Council finds that the development
of cable television and related telecommunications services may
provide significant benefits for, and substantial impacts upon,
the residents of the City. Because of the complex and rapidly
changing technology associated with cable television, the City
Council further finds that the public convenience, safety, and
general welfare can best be served by establishing regulatory
powers to be exercised by the City. This Article 2 is intended
to specify the means for providing to the public the best
possible cable television and related telecommunications
services, and every franchise issued in accordance with this
Article 2 is intended to achieve this primary objective. It is
the further intent of this Article 2 to adopt regulatory
provisions that will enable the City to regulate cable television
and related telecommunications services to the maximum extent
authorized by federal and state law.
14.01.050 Franchise Terms and Conditions
A. Franchise Purposes
A franchise granted by the City under the
provisions of this Article 2 may authorize the Grantee to do the
following:
1. To engage in the business of providing
cable service and such other telecommunications services as may
be authorized by law and which Grantee elects to provide to its
subscribers within the designated franchise service area.
2. To erect, install, construct, repair,
rebuild, reconstruct, replace, maintain, and retain, cable lines,
related electronic equipment, supporting structures,
appurtenances, and other property in connection with the
operation of the cable system in, on, over, under, upon, along
and across streets or other public places within the designated
franchise service area.
3. To maintain and operate the franchise
properties for the origination, reception, transmission,
amplification, and distribution of television and radio signals,
and for the delivery of cable services and such other services as
may be authorized by law.
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Ordinance No. 946
M
construct, install,
any street or public
franchise under the
Franchise Reauired
1. It is unlawful for any person to
or operate a cable television system within
way in the City without first obtaining a
provisions of this Article 2.
2. The City Council finds and determines
that certain multichannel video programming distributors and
video providers, as those terms are defined in Section 14.01.170
of Article 5, provide cable service, including video programming,
to subscribers within limited geographic areas where multi -family
dwelling complexes and congregate -living complexes are located.
That cable service, including video programming, is sometimes
provided, in whole or in part, by the transmission of signals
over wires or lines that are owned or controlled by
telecommunications service providers or other public utilities
and that are within or cross streets or public ways within the
boundaries of a local franchising authority. The multichannel
video programming distributor or video provider may obtain from
the telecommunications service provider or other public utility,
by lease, license., or similar contractual arrangement, the right
to use those wires or lines in order to provide cable service,
including video programming, to subscribers or customers within
the multi -family dwelling complexes and congregate -living
complexes referenced above. The City Council further finds and
determines that these contractual arrangements for signal
transmission facilitate the provision of cable service, including
video programming, and create a nexus between that cable service
and the use of the streets and public ways of the City.
Consequently, to the maximum extent authorized under California
law, it is the intent of the City Council to subject multi-
channel video programming distributors and video providers that
intend to use this signal -transmission methodology to the
franchise requirements set forth in this Article 2, subject to
such waivers and modifications of those requirements as may, in
the discretion of the City Council or its designee, be warranted
in view of the limited geographic area that is proposed to be
served.
C. Term of the Franchise
1. A franchise granted under this Article 2
will be for the term specified in the franchise agreement,
commencing upon the effective date of the ordinance or resolution
adopted by the City Council that authorizes the franchise.
2. A franchise granted under this Article 2
may be renewed upon application by the Grantee in accordance with
the then -applicable provisions of state and federal law and of
this Article 2.
0
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ordinance No. 946
D. Franchise Territor
A franchise is effective within the territorial
limits of the City, and within any area added to the City during
the term of the franchise, unless otherwise specified in the
ordinance or resolution granting the franchise or in the
franchise agreement.
E. Federal or State Jurisdiction
This Article 2 will be construed in a manner
consistent with all applicable federal and state laws, and it
applies to all franchises granted or renewed after the effective
date of this Chapter 14.01, to the extent authorized by
applicable law.
F. Franchise Non -Transferable
1. Grantee may not sell, transfer, lease,
assign, sublet, or dispose of, in whole or in part, either by
forced or involuntary sale, or by ordinary sale, contract,
consolidation, or otherwise, the franchise or any of the rights
or privileges therein granted, without the prior consent of the
City Council and then only upon such terms and conditions as may
be prescribed by the City Council, which consent may not be
unreasonably denied or delayed. Any attempt to sell, transfer,
lease, assign, or otherwise dispose of the franchise without the
consent of the City Council is null and void. The granting of a
security interest in any assets of the Grantee, or any mortgage
or other hypothecation, will not be deemed a transfer for the
purposes of this subsection.
2. The requirements of subsection (1) apply
to any change in control of Grantee. The word "control" as used
herein is not limited to the ownership of major stockholder or
partnership interests, but includes actual working control in
whatever manner exercised. If Grantee or its ultimate parent
corporation is a publicly -owned corporation, prior authorization
of the City Council is required where ownership or control of
more than twenty percent (20%) of the voting stock of Grantee or
its ultimate parent corporation is acquired by a person or a
group of persons acting in concert, none of whom, singularly or
collectively, owns or controls the voting stock of the Grantee or
its ultimate parent corporation as of the effective date of the
franchise.
3. Grantee must notify the City in writing
of any foreclosure or judicial sale of all or a substantial part
of the Grantee's franchise property. That notification will be
considered by the City as notice that a change in control of
ownership of the franchise has taken place, and the provisions of
this paragraph that require the prior consent of the City Council
to that change in control of ownership will apply.
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Ordinance No. 946
4. For the purpose of determining whether
it will consent to an acquisition, transfer, or change in
control, the City may inquire as to the qualifications of the
prospective transferee or controlling party, and Grantee must
assist the City in that inquiry. In seeking the City's consent
to any change of ownership or control, Grantee or the proposed
transferee, or both, must complete Federal Communications
Commission Form 394 or its equivalent. This application must be
submitted to the City not less than 120 days prior to the
proposed date of transfer. The transferee must establish that it
possesses the legal, financial, and technical capability to
operate and maintain the cable system and to comply with all
franchise requirements during the remaining term of the
franchise. If the legal, financial, and technical qualifications
of the applicant are satisfactory, the City will consent to the
transfer of the franchise. The consent of the City to that
transfer will not be unreasonably denied or delayed.
5. Any financial institution holding a
pledge of the Grantee's assets to secure the advance of money for
the construction or operation of the franchise property has the
right to notify the City that it, or a designee satisfactory to
the City, will take control of and operate the cable television
system upon Grantee's default in its financial obligations.
Further, that financial institution must also submit a plan for
such operation within 90 days after assuming control. The plan
must ensure continued service and compliance with all franchise
requirements during the period that the financial institution
will exercise control over the system. The financial institution
may not exercise control over the system for a period exceeding
one year unless authorized by the City, in its sole discretion,
and during that period of time it will have the right to petition
the City to transfer the franchise to another Grantee.
6. Grantee must reimburse the City for the
City's reasonable review and processing expenses incurred in
connection with any transfer or change in control of the
franchise. These expenses include, without limitation, costs of
administrative review, financial, legal, and technical evaluation
of the proposed transferee, consultants (including technical and
legal experts and all costs incurred by these experts), notice
and publication costs, and document preparation expenses. No
reimbursement may be offset against any franchise fee payable to
the City during the term of the franchise.
G. Geographical Coverage
1. Unless otherwise provided in the
franchise agreement, Grantee must design, construct, and maintain
the cable television system so as to have the capability to pass
every dwelling unit and commercial building in the City, subject
to any service -area line extension requirements of the franchise
agreement.
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Ordinance No. 946
2. After service has been established by
activating trunk or distribution cables for any service area,
Grantee must provide service to any requesting subscriber in that
service area within seven days from the date of request, provided
that the Grantee is able to secure on reasonable terms and
conditions all rights -of -way necessary to extend service to that
subscriber within that seven-day period.
H. Nonexclusive Franchise
Every franchise granted is nonexclusive. The City
specifically reserves the right to grant, at any time, such
additional franchises for a cable television system, or any
component thereof, as it deems appropriate, subject to applicable
state and federal law. If an additional franchise is proposed to
be granted to a subsequent Grantee, a noticed public hearing must
first be held if it is required under the provisions of
Government Code § 53066.3.
I. Multiple Franchises
1. The City may grant any number of
franchises, subject to applicable state and federal law. The
City may limit the number of franchises granted, based upon, but
not necessarily limited to, the requirements of applicable law
and specific local considerations, such as:
a. The capacity of the public
rights -of -way to accommodate multiple cables in addition to the
cables, conduits, and pipes of the existing utility systems, such
as electrical power, telephone, gas, and sewerage.
b_ The benefits that may accrue to
subscribers as a result of cable system competition, such as
lower rates and improved service.
C. The disadvantages that may result
from cable system competition, such as the requirement for
multiple pedestals on residents' property, and the disruption
arising from numerous excavations within the public rights -of -
way.
2. The City may require that any new
Grantee be responsible for its own underground trenching and the
associated costs if, in the City's opinion, the rights -of -way in
any particular area cannot reasonably accommodate additional
cables.
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Ordinance No. 946
14.01.060 Franchise Applications and Renewal
A. Filing of Applications
Any person desiring an initial franchise for a
cable television system must file an application with the City.
A reasonable nonrefundable application fee in an amount
established by resolution of the City Council must accompany the
application. That application fee will cover all costs
associated with reviewing and processing the application,
including without limitation costs of administrative review,
financial, legal, and technical evaluation of the applicant,
consultants (including technical and legal experts and all costs
incurred by those experts), notice and publication requirements,
and document preparation expenses. If those costs exceed the
application fee, the applicant must pay the difference to the
City within 30 days following receipt of an itemized statement of
those costs.
B. Applications - Contents
An application for an initial franchise for a
cable television system must contain, as applicable:
1. A statement as to the proposed franchise
service area and an explanation as to whether this proposed
service area is, or will be, a part of a larger regional cluster
of franchise service areas.
2. A resume of the applicant's prior
history, including the experience and expertise of the applicant
in the cable television and telecommunications industry.
3. A list of the partners, general and
limited, of the applicant, if a partnership, or the percentage of
stock owned or controlled by each stockholder, if a closely -held
corporation. If the applicant is a publicly -owned corporation,
each owner of 10 percent or more of the issued and outstanding
capital stock must be identified.
4. A list of officers, directors, and
managing employees of the applicant, together with a description
of the background of each such person.
5. A statement as to the number of people
employed by the applicant, whether on a full-time or part-time
basis.
6. The names and addresses of any parent or
subsidiary of the applicant, or any other business entity owning
or controlling applicant in whole or in part, or that is owned or
controlled in whole or in part by the applicant.
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Ordinance No. 946
7. A current financial statement of the
applicant verified by a certified public accountant or otherwise
certified to be true, complete, and correct to the reasonable
satisfaction of the City.
8. The proposed construction and service
schedule.
9. Any additional information that the City
deems to be reasonably necessary.
C. Consideration of Initial Applications
1. Upon receipt of an application for an
initial franchise, the City Manager or the City Manager's
designee must prepare a report and make recommendations to the
City Council concerning that application.
2. A public hearing will be noticed prior
to any initial franchise grant, at a time and date approved by
the City Council. Within 30 days after the close of the hearing,
the City Council will make a decision based upon the evidence
received at the hearing as to whether the franchise should be
granted, and, if granted, subject to what conditions. The City
Council may grant one or more franchises, or may decline to grant
any franchise.
D. Franchise Renewal
Franchise renewals will be processed in accordance
with then -applicable law. The City and Grantee, by mutual
consent, may enter into renewal negotiations at any time during
the term of the franchise.
14.01.070 Contents of Cable Television Franchise
Agreements
A. The terms and provisions of a franchise
agreement for the provision of cable television and related
telecommunications services may relate to or include, without
limitation, the following subject matters:
1. The nature, scope, geographical area,
and duration of the franchise.
2. The applicable franchise fee to be paid
to the City, including the amount, the method of computation, and
the time for payment.
3. Requirements relating to compliance with
and implementation of state and federal laws and regulations
pertaining to the operation of the cable television system.
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Ordinance No. 946
4. Requirements relating to the
construction, upgrade, or rebuild of the cable television system,
as well as the provision of special services, such as outlets for
public buildings, emergency alert capability, and parental
control devices.
5. Requirements relating to the maintenance
of a performance bond, a security fund, a letter of credit, or
similar assurances to secure the performance of the Grantee's
obligations under the franchise agreement.
6. Requirements relating to comprehensive
liability insurance, workers' compensation insurance, and
indemnification.
7. Requirements relating to consumer
protection and customer service standards, which requirements may
include, without limitation, compliance with the statutes, rules,
and regulations set forth below in Section 5.16.080 of this
Article 2.
8. Requirements relating to the Grantee's
support of local cable usage, including the provision of public,
educational, and governmental access channels, the coverage of
public meetings and special events, and financial support for
public, educational, and governmental access channels.
9. Requirements relating to the Grantee's
obligation to provide an institutional network, and channel
capacity on that institutional network for educational or
governmental use, subject to the City's rules and procedures for
the use of such channel capacity and for compatibility with any
telecommunications network that has been or may be developed by
the City.
10. Requirements relating to construction,
operation, and maintenance of the cable television system within
the public rights -of -way, including compliance with all
applicable building codes and permit requirements of the City,
the abandonment, removal, or relocation of facilities, and
compliance with FCC technical standards.
11. Requirements relating to recordkeeping,
accounting procedures, reporting, periodic audits, and
performance reviews, and the inspection of Grantee's books and
records.
12. Acts or omissions constituting material
breaches of or defaults under the franchise agreement, and the
applicable penalties or remedies for such breaches or defaults,
including fines, penalties, liquidated damages, suspension,
revocation, and termination.
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ordinance No. 946
13. Requirements relating to the sale,
assignment, or other transfer or change in control of the
franchise.
14. The Grantee's obligation to maintain
continuity of service and to authorize, under certain specified
circumstances, the City's operation and management of the cable
system.
15. Such additional requirements,
conditions, policies, and procedures as may be mutually agreed
upon by the parties to the franchise agreement and that will, in
the judgment of City staff and the City Council, best serve the
public interest and protect the public health, welfare, and
safety.
B. If there is any conflict or inconsistency
between the provisions of a franchise agreement authorized by the
City Council and provisions of this chapter, the provisions of
the franchise agreement will control.
14.01.080 Consumer Protection and Service Standards
A. General Standards.
A Grantee must meet or exceed all applicable
consumer protection and service standards that are customary in
the cable television industry and that are recommended or
required by the following:
1. Federal statutes, and the rules,
regulations, and orders of the Federal Communications Commission,
including the following:
a. The provisions of Section 76.309(c)
of Title 47 of the Code of Federal Regulations, as it now exists
or may later be amended.
b. The provisions of Section 76.630 of
Title 47 of the Code of Federal Regulations, as it now exists or
may later be amended.
C. The provisions of Section 551 of
Title 47, United States Code, as it now exists or may later be
amended.
2. The provisions of California Government
Code Sections 53054, et seq., entitled the "Cable Television and
Video Provider Customer Service and Information Act."
3. The provisions of California Government
Code Section 53088, et seg., entitled the "Video Customer Service
Act."
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Ordinance No. 946
4. The provisions of California Civil Code w%
Section 1722(b)(1)-(6) relating to service or repair transactions
between cable television companies and their subscribers.
B. Franchise Agreement.
Unless preempted by paramount federal law, the
consumer protection and service standards referenced above in
paragraph (a) that are the most stringent, and that afford the
greatest degree of protection to consumers, will be specified in
the cable television franchise agreement and will apply, without
limitation, to all video, voice, and data services that are
provided by the Grantee to its subscribers within the franchise
service area.
ARTICLE 3. OPEN VIDEO SYSTEMS
14.01.090 Applicability
The provisions of this Article 3 apply to an open
video system operator, as defined below in Section 14.01.170 of
Article 5, that intends to deliver video programming to consumers
in the City over an open video system.
14.01.100 Application Required
A. Before commencing the delivery of video
programming services to consumers in the City over an open video
system, the open video system operator must file an application
with the City. That application must include or be accompanied
by the following, as applicable:
1. The identity of the applicant, including
all affiliates of the applicant.
2. Copies of FCC Form 1275, all "Notices of
Intent" filed under 47 CFR § 76.1503(b)(1), and the Order of the
FCC, all of which relate to certification of the applicant to
operate an open video system in accordance with Section 653(a)(1)
of the Communications Act and the FCC's rules.
3. The area or areas of the City that the
applicant proposes to serve.
4. A description of the open video system
services that will be offered by the applicant over its existing
or proposed facilities.
5. A description of the transmission medium
that will be used by the applicant to deliver the open video
system services.
6. Information in sufficient detail to
establish the applicant's technical qualifications, experience,
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ordinance No. 946
and expertise regarding the ownership and operation of the open
video system described in the application.
7. Financial statements prepared in
accordance with generally accepted accounting principles that
demonstrate the applicant's financial ability to:
a. Construct, operate, maintain and
remove any new physical plant that is proposed to be constructed
in the City.
b. Comply with the City's public,
educational, and governmental access requirements as specified
below in Section 14. 01.120 (B) (4) .
C. Comply with the City's requirement
that gross revenue fees be paid in the sum of five percent (50),
as specified below in Section 14.01.120(B)(2).
8. An accurate map showing the location of
any existing telecommunications facilities in the City that the
applicant intends to use, to purchase, or to lease.
9. If the applicant's operation of the open
video system will require the construction of new physical plant
in the City, the following additional information must be
provided:
a. A preliminary construction schedule
and completion dates.
b. Preliminary engineering plans,
specifications, and a network map of any new facilities to be
constructed in the City, in sufficient detail to identify:
(i) The location and route
requested for the applicant's proposed facilities.
(ii) The locations, if any, for
interconnection with the facilities of other video and
telecommunications service providers.
(iii) The specific structures,
improvements, facilities, and obstructions, if any, that the
applicant proposes to remove or relocate on a temporary or
permanent basis.
C. The applicant's statement that, in
constructing any new physical plant, the applicant will comply
with all applicable ordinances, rules, and regulations of the
City, including the payment of all required permit and processing
fees.
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Ordinance No. 946
10. The information and documentation that
is required to be submitted to the City by a video provider, as
specified below in paragraph (B) of Section 14.01.140.
11. Such additional information as may be
requested by the City Manager.
12. A nonrefundable filing fee in an amount
established by resolution of the City Council.
B. If any item of information specified above in
paragraph (A) is determined under paramount federal or state law
to be unlawful, the City Manager is authorized to waive the
requirement that such information be included in the application.
14.01.110 Review of the Application
Within 30 days after receipt of an application
filed under Section 14.01.100 that is deemed to be complete, the
City Manager will give written notice to the applicant of the
City's intent to negotiate an agreement setting forth the terms
and conditions under which the operation of the proposed open
video system will be authorized by the City. The commencement of
those negotiations will be on a date that is mutually acceptable
to the City and to the applicant.
14.01.120 Agreement Required
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A. No video programming services may be provided
in the City by an open video system operator unless the operator
and the City have executed a written agreement, which may be
designated as a franchise, setting forth the terms and conditions
under which the operation of the proposed open video system will
be authorized by the City.
B. The agreement between the City and the open
video system operator may contain terms and conditions that
relate to the following subject matters, to the extent that such
terms, conditions, and subject matters are not preempted by
federal statute or regulations:
1. The nature, scope, and duration of the
agreement, including provisions for its renewal or extension.
2. The obligation of the open video system
operator to pay to the City, at specified times, fees on the
gross revenue received by the operator, as authorized by 47 CFR
§ 76.1511, in accordance with the following standards and
procedures:
a. The amount of the fees on the gross
revenue will be five percent (50), and will be paid in lieu of
the franchise fees authorized under Section 622 of the
Communications Act.
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Ordinance No. 946
b. The term "gross revenue" means
(i) all gross revenue received by an open video system operator
or its affiliates, including all revenue received from
subscribers and all carriage revenue received from unaffiliated
video programming providers; and (ii) all advertising revenue
received by the operator or its affiliates in connection with the
provision of video programming, where such revenue is included in
the calculation of the cable franchise fee paid to the City by
the franchised cable operator. The term "gross revenue" does not
include revenue, such as subscriber or advertising revenue,
collected by unaffiliated video programming providers.
3. The obligation of the open video system
operator to comply with requirements relating to information
collection and recordkeeping, accounting procedures, reporting,
periodic audits, and inspection of records in order to ensure the
accuracy of the fees on the gross revenue that are required to be
paid as specified above in paragraph (B)(2).
4. The obligation of the open video system
operator to meet the City's requirements with respect to public,
educational, and governmental access channel capacity, services,
facilities, and equipment, as provided for in 47 CFR § 76.1505.
In this regard, the following standards and procedures apply:
a. The open video system operator is
subject to the same public, educational, and governmental access
requirements that apply within the cable television franchise
service area with which its system overlaps.
b. The open video system operator must
ensure that all subscribers receive all public, educational, and
governmental access channels within the franchise service area in
which the City's subscribers are located.
C. The open video system operator may
negotiate with the City to establish the operator's obligations
with respect to public, educational, and governmental access
channel capacity, services, facilities, and equipment. These
negotiations may include the City's franchised cable operator if
the City, the open video system operator, and the franchised
cable operator so desire.
d. If the open video system operator
and the City are unable to reach an agreement regarding the
operator's obligations with respect to public, educational, and
governmental access channel capacity, services, facilities, and
equipment within the City's jurisdiction, then the following
obligations will be imposed:
(i) The open video system operator
must satisfy the same public, educational, and governmental
access obligations as the City's franchised cable operator by
providing the same amount of channel capacity for public,
000503 99904-00059 syc 0594489 1 - 15
Ordinance No. 946
educational, and governmental access and by matching the City's
franchised cable operator's annual financial contributions in
support of public, educational, and governmental access services,
facilities, and equipment that are actually used by the City.
For in -kind contributions, such as cameras or production studios,
the open video system operator may satisfy its statutory
obligation by negotiating mutually agreeable terms with the
City's franchised cable operator, so that public, educational,
and governmental access services to the City are improved or
increased. If such terms cannot be agreed upon, the open video
system operator must pay to the City the monetary equivalent of
the franchised cable operator's depreciated in -kind contribution,
or, in the case of facilities, the annual amortization value.
Any matching contributions provided by the open video system
operator must be used to fund activities arising under
Section 611 of the Communications Act.
(ii) The City will impose upon the
open video system operator the same rules and procedures that it
imposes upon the franchised cable operator with regard to the
open video system operator's use of channel capacity designated
for public, educational, and governmental access use when that
capacity is not being used for such purposes.
e. The City's franchised cable
operator is required under federal law to permit the open video
system operator to connect with its public, educational, and
governmental access channel feeds. The open video system
operator and the franchised cable operator may decide how to
accomplish this connection, taking into consideration the
physical and technical characteristics of the cable and the open
video systems involved. If the franchised cable operator and the
open video system operator cannot agree on how to accomplish the
connection, the City has the right to decide. The City may
require that the connection occur on City -owned property or on
public rights -of -way.
f. All costs of connection to the
franchised cable operator's public, educational, and governmental
access channel feed must be borne by the open video system
operator. These costs will be counted towards the open video
system operator's matching financial contributions set forth
above in subparagraph (d)(i).
g. The City will not impose upon the
open video system operator any public, educational, or
governmental access obligations that are greater than those
imposed upon the franchised cable operator.
h. If there is no existing franchised
cable operator, the provisions of 47 CFR § 76.1505(d)(6) will be
applicable in determining the obligations of the open video
system operator.
0
0
000503 99904-00059 syc 0594489 1 - 16 -
Ordinance No. 946
i. The open video system operator must
adjust its system to comply with new public, educational, and
access obligations imposed on the City's franchised cable
operator following a renewal of the cable television franchise;
provided, however, that the open video system operator will not
be required to displace other programmers using its open video
system to accommodate public, educational, and governmental
access channels. The open video system operator must comply with
those new public, educational, and governmental access
obligations whenever additional capacity is or becomes available,
whether it is due to increased channel capacity or to decreased
demand for channel capacity.
5. If the City and the open video system
operator cannot agree on the application of the FCC's rules
regarding the open video system operator's obligations to provide
public, educational, and governmental access under the provisions
of subsection (4) set forth above, then either party may file a
complaint with the FCC in accordance with the dispute resolution
procedures set forth in 47 CFR § 76.1514. No agreement will be
executed by the City until the dispute has been finally resolved.
6. If the open video system operator
intends to maintain an institutional network, as defined in
Section 611(f) of the Communications Act, the City will require
that educational and governmental access channels be designated
on that institutional network to the same extent that those
channels are designated on the institutional network of the
City's franchised cable operator. In addition, to the extent. -
authorized by federal law, the open video system operator may be
required by the City to satisfy the same financial obligations
and other requirements that are imposed upon the franchised cable
operator to support data -transmission and related services that
are provided by the institutional network.
7. The authority of an open video system
provider to exercise editorial control over any public,
educational, or governmental use of channel capacity will be
restricted in accordance with the provisions of 47 CFR
§ 76 . 1505 (f) .
8. The obligation of the open video system
operator to comply with all applicable federal, state, and local
statutes, ordinances, and regulations relating to customer
service standards, including the Cable Television and Video
Customer Service and Information Act (Government Code §§ 53054,
et sea.), the Video Customer Service Act (Government Code
§§ 53088, et seq.), and Section 14.01.080 of Article 2 of this
chapter.
9. If new physical plant is proposed to be
constructed within the City, the obligation of the open video
system operator to comply with the following rights -of -way use
and management responsibilities that are also imposed by the City
OOOS03 99904-00059 syc 0594489 1 17
Ordinance No. 946
upon other video and telecommunications service providers in a
nondiscriminatory and competitively neutral manner:
a. Compliance with all applicable City
codes, including applications for excavation, encroachment, and
construction permits and the payment of all required permit and
inspection fees.
b. The coordination of construction
activities.
C. Compliance with established
standards and procedures for constructing lines across private
property.
d. Compliance with all applicable
insurance and indemnification requirements.
e. The repair and resurfacing of
construction -damaged streets.
f. Compliance with all public safety
requirements that are applicable to video and telecommunications
service providers using public property or public rights -of -way.
10. Acts or omissions constituting breaches
or defaults of the agreement, and the applicable penalties,
liquidated damages, and other remedies, including fines or the
suspension, revocation, or termination of the agreement.
11. Requirements relating to the sale,
assignment, or transfer of control of the open video system.
12. Requirements relating to the open video
system operator's compliance with and implementation of state and
federal laws, rules, and regulations pertaining to the operation
of the open video system.
13. Such additional requirements,
conditions, terms, policies, and procedures as may be mutually
agreed upon by the City and the open video system operator and
that will, in the judgment of the City Council, best serve the
public interest and protect the public health, welfare, and
safety.
ARTICLE 4. OTHER VIDEO AND TELECOMMUNICATIONS SERVICES
AND SYSTEMS
14.01.130 Other Multichannel Video Programming
Distributors
The term "cable system," as defined in federal law and
as set forth below in Section 14.01.170 of Article 5, does not
include a facility that serves subscribers without using any
C
000503 99904-00059 syc 0594489 1 18
Ordinance No. 946
public rights -of -way. Consequently, the categories of
multichannel video programming distributors identified below are
not deemed to be "cable systems" and are therefore exempt from
the City's franchise, lease, and license requirements and from
certain other local regulatory provisions authorized by federal
law, 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. § 303(v) confers upon the FCC
exclusive jurisdiction to regulate the provision of direct -to -
home satellite services.
2. Section 602 of the Communications Act
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.
14.01.140 Video Providers - Registration; Customer
Service Standards
A. Unless the customer protection and service
obligations of a video provider, as that term is defined in
Section 14.01.170 of Article 5, are specified in a franchise,
license, lease, or similar written agreement with the City, a
video provider must comply with all applicable provisions of the
following state statutes:
000503 99904-00059 syc 0594489 1 - 19 -
Ordinance No. 946
1. The Cable Television and Video Customer ON%
Service and Information Act (Government Code §§ 53054, et sea.).
2. The Video Customer Service Act %ter
(Government Code §§ 53088, et sec.).
B. All video providers that are operating in the
City on the effective date of this Chapter 14.01, or that intend
to operate in the City after the effective date of this chapter,
and are not required under applicable law to operate under a
franchise, license, lease, or similar written agreement with the
City, must register with the City. The registration form must
include or be accompanied by the following:
1. The video provider's name, address, and
local telephone numbers.
2. The names of the officers of the video
provider.
3. A copy of the video provider's written
policies and procedures relating to customer service standards
and the handling of customer complaints, as required by
Government Code §§ 53054, et sea. These customer service
standards must include, without limitation, standards regarding
the following:
a. Installation, disconnection, , ,
service and repair obligations, employee identification, and
service call response time and scheduling.
b. Customer telephone and office
hours.
C. Procedures for billing, charges,
refunds, and credits.
d. Procedures for termination of
service.
e. Notice of the deletion of a
programming service, a change in channel assignments, or an
increase in rates.
f. Complaint procedures and procedures
for bill dispute resolution.
g. The video provider's written
acknowledgement of its obligation under Government Code §53055.1
to provide to new customers a notice describing the customer am
service standards specified above in subparagraphs (a) through
(f) at the time of installation or when service is initiated.
The notice must also include, in addition to all of the %MM
000503 99904-00059 syc 0594489 1 2 0
Ordinance No. 946
information described above in subparagraphs (a) through (f), all
of the following:
(i) A listing of the services
offered by the video provider that clearly describes all levels
of service and the rates for each level of service.
(ii) The telephone number or
numbers through which customers may subscribe to, change, or
terminate service, request customer service, or seek general or
billing information.
(iii) A description of the rights
and remedies that the video provider may make available to its
customers if the video provider does not materially meet its
customer service standards.
h.� The video provider's written
commitment to distribute annually to its employees and customers,
and to the City, a notice describing the customer service
standards specified above in subparagraphs (a) through (f). This
annual notice must include the report of the video provider on
its performance in meeting its customer service standards, as
required by Government Code § 53055.2.
4. Unless a video provider is exempt under
federal law from its payment, a registration fee in an amount
established by resolution of the City Council to cover the
reasonable costs incurred by the City in reviewing and processing
the registration form.
5. In addition to the registration fee
specified above in subsection (4), the written commitment of the
video provider to pay to the City, when due, all costs and
expenses reasonably incurred by the City in resolving any
disputes between the video provider and its subscribers, which
dispute resolution is mandated by Government Code § 53088.2(o).
C. The customer service obligations imposed upon
video providers by the Video Customer Service Act (Government
Code §§53088 et seq.) consist of the following:
1. Every video provider must render
reasonably efficient service, make repairs promptly, and
interrupt service only as necessary.
2. All video provider personnel contacting
subscribers or potential subscribers outside the office of the
provider must be clearly identified as associated with the video
provider.
3. At the time of installation, and
annually thereafter, all video providers must provide to all
customers a written notice of the programming offered, the prices
000503 99904-00059 syc 0594489 1 21
Ordinance No. 946
for that programming, the provider's installation and customer
service policies, and the name, address, and telephone number of
the City's office that is designated for receiving complaints.
4. All video providers must have
knowledgeable, qualified company representatives available to
respond to customer telephone inquiries Monday through Friday,
excluding holidays, during normal business hours.
S. All video providers must provide to
customers a toll -free or local telephone number for installation,
service, and complaint calls. These calls must be answered
promptly by the video providers.
6. All video providers must render bills
that are accurate and understandable.
7. All video providers must respond
promptly to a complete outage in a customer's service. The
response must occur within 24 hours of the reporting of that
outage to the'provider, except in those situations beyond the
reasonable control of the video provider. A video provider will
be deemed to respond to a complete outage when a company
representative arrives at the outage location within 24 hours and
begins to resolve the problem.
8. All video providers must provide a
minimum of 30 days' written notice before increasing rates or
deleting channels. All video providers must make every
reasonable effort to submit the notice to the City in advance of
its distribution to customers. The 30-day notice is waived if
the increases in rates or deletion of channels are outside the
control of the video provider. In those cases, the video
provider must make reasonable efforts to provide customers with
as much notice as possible.
9. All video providers must allow every
residential customer who pays his or her bill directly to the
video provider at least 15 days from the date the bill for
services is mailed to the customer, to pay the listed charges
unless otherwise agreed to pursuant to a residential rental
agreement establishing tenancy. Customer payments must be posted
promptly. No video provider may terminate residential service
for nonpayment of a delinquent account unless the video provider
furnishes notice of the delinquency and impending termination at
least 15 days prior to the proposed termination. The notice must
be mailed, postage prepaid, to the customer to whom the service
is billed. Notice must not be mailed until the 16th day after
the date the bill for services was mailed to the customer. The
notice of delinquency and impending termination may be part of a
billing statement. No video provider may assess a late fee any
earlier than the 22nd day after the bill for service has been
mailed.
000503 99904-00059 syc 0594489 1 2 2
Ordinance No. 946
10. Every notice of termination of service
pursuant to the preceding subsection (9) must include all of the
following information:
a. The name and address of the
customer whose account is delinquent.
b. The amount of the delinquency.
C. The date by which payment is
required in order to avoid termination of service.
d. The telephone number of a
representative of the video provider who can provide additional
information and handle complaints or initiate an investigation
concerning the service and charges in question. Service may only
be terminated on days in which the customer can reach a
representative of the video provider either in person or by
telephone.
11. Any service terminated without good
cause must be restored without charge for the service
restoration. Good cause includes, but is not limited to, failure
to pay, payment by check for which there are insufficient funds,
theft of service, abuse of equipment or system personnel, or
other similar subscriber actions.
12. All video providers must issue requested
refund checks promptly, but no later than 45 days following the
resolution of any dispute, and following the return of the
equipment supplied by the video provider, if service is
terminated.
13. All video providers must issue security
or customer deposit refund checks promptly, but no later than 45
days following the termination of service, less any deductions
permitted by law.
14. Video providers must not disclose the
name and address of a subscriber for commercial gain to be used
in mailing lists or for other commercial purposes not reasonably
related to the conduct of the businesses of the video providers
or their affiliates, unless the video providers have provided to
the subscriber a notice, separate or included in any other
customer notice, that clearly and conspicuously describes the
subscriber's ability to prohibit that disclosure. Video
providers must provide an address and telephone number for a
local subscriber to use without toll charge to prevent disclosure
of the subscriber's name and address.
D. As authorized by Government Code §53088(q),
the following schedule of penalties is adopted. These penalties
may be imposed for the material breach by a video provider of the
consumer protection and service standards that are set forth
000503 99904-00059 syc OS94489 1 23
Ordinance No. 946
above in paragraph (C), provided that the breach is within the .�•w
reasonable control of the video provider. These penalties are in
addition to any other remedies authorized by this chapter or by
any other law, and the City has discretion to elect the remedy
that it will apply. The imposition of penalties authorized by
this paragraph (D) will not prevent the City or any other
affected party from exercising any other remedy to the extent
permitted by law, including but not limited to any judicial
remedy as provided below in subsection (2).
1. Schedule of Penalties.
a. For a first material breach: the
maximum penalty is $200 for each day of material breach, but not
to exceed a cumulative total of $600 for each occurrence of
material breach, irrespective of the number of customers
affected.
b. For a second material breach of the
same nature for which a monetary penalty was previously assesses:
within the preceding 12-month period: the maximum penalty is $400
per day, not to exceed a cumulative total of $1,200 for each
occurrence of the material breach, irrespective of the number of
customers affected.
C. For a third or further material '"°W
breach of the same nature for which a monetary penalty was
previously assessed within the preceding 12-month period: the
maximum penalty is $1,000 per day, not to exceed a cumulative
total of $3,000 for each occurrence of the material breach,
irrespective of the number of customers affected.
d. For the failure of a video provider
to distribute the annual notice required by Government Code
53055.1: the maximum penalty is $500 for each year in which the
notice is not distributed as required by state statute.
e. The maximum penalties referenced
above may be increased by any additional amount authorized by
state law.
2. Judicial Remedies Not Affected.
The imposition of penalties in
accordance with the provisions of subsection (1) above does not
preclude any affected party from pursuing any judicial remedy
that is available to that party.
3. Administration, Notice, and Appeal.
a. The City Manager or the City
Manager's designee is authorized to administer this paragraph
(D). Decisions by the City Manager to assess penalties against a +
video provider must be in writing and must contain findings
000503 99904-00059 syc 0594489 1 24 —
ordinance No. 946
supporting the decisions. Decisions by the City Manager are
final, unless appealed to the City Council.
b. If the video provider or any
interested person is aggrieved by a decision of the City Manager,
the aggrieved party may, within 10 days of the written decision,
appeal that decision in writing to the City Council. The appeal
letter must be accompanied by the fee established by the City
Council for processing the appeal. The City Council may affirm,
modify, or reverse the decision of the City Manager.
C. The imposition of monetary
penalties under subsection (1) above is subject to the following
requirements and limitations:
(i) The City must give the video
provider written notice of any alleged material breach and must
allow the video provider at least 30 days from receipt of that
notice to remedy the breach.
(ii) For the purpose of assessing
monetary penalties, a material breach will be deemed to have
occurred for each day, following the expiration of the period for
cure specified in subparagraph (i) above, that the material
breach has not been remedied by the video provider, irrespective
of the number of customers affected.
14.01.150 Antennas For video and Telecommunications
Services
Chapter 25.104 of Title 25 of this Code sets forth the
City's regulatory requirements relating to the siting and
construction of commercial communication towers and antennas that
are commonly used in providing or receiving video and
telecommunications services.
14.01.160 Telecommunications Service Provided By
Telephone Corporations
A. The City Council finds and determines as
follows:
1. The federal Telecommunications Act of
1996 preempts and declares invalid all state rules that restrict
entry or limit competition in both local and long-distance
telephone service.
2. The California Public Utilities
Commission ("CPUC") is primarily responsible for the
implementation of local telephone competition, and it issues
certificates of public convenience and necessity to new entrants
that are qualified to provide competitive local telephone
exchange services and related telecommunications service, whether
000503 99904-00059 syc 0594489 1 2 5
Ordinance No. 946
using their own facilities or the facilities or services provided
by other authorized telephone corporations.
3. Section 234(a) of the California Public
Utilities Code defines a "telephone corporation" as "every
corporation or person owning, controlling, operating, or managing
any telephone line for compensation within this state."
4. Section 616 of the California Public
Utilities Code provides that a telephone corporation "may condemn
any property necessary for the construction and maintenance of
its telephone line."
5. Section 2902 of the California Public
Utilities Code authorizes municipal corporations to retain their
powers of control to supervise and regulate the relationships
between a public utility and the general public in matters
affecting the health, convenience, and safety of the general
public, including matters such as the use and repair of public
streets by any public utility and the location of the poles,
wires, mains, or conduits of any public utility on, under, or
above any public streets.
6. Section 7901 of the California Public
Utilities Code authorizes telephone and telegraph corporations to
construct telephone or telegraph lines along and upon any public
road or highway, along or across any of the waters or lands
within this state, and to erect poles, posts, piers, or abutments
for supporting the insulators, wires, and other necessary
fixtures of their lines, in such manner and at such points as not
to incommode the public use of the road or highway or interrupt
the navigation of the waters.
7. Section 7901.1 of the California Public
Utilities Code confirms the right of municipalities to exercise
reasonable control as to the time, place, and manner in which
roads, highways, and waterways are accessed, which control must
be applied to all entities in an equivalent manner, and may
involve the imposition of fees.
8. Section 50030 of the California
Government Code provides that any permit fee imposed by a city
for the placement, installation, repair, or upgrading of
telecommunications facilities, such as lines, poles, or antennas,
by a telephone corporation that has obtained all required
authorizations from the CPUC and the FCC to provide
telecommunications services, must not exceed the reasonable costs
of providing the service for which the fee is charged, and must
not be levied for general revenue purposes.
B. In recognition of and in compliance with the
statutory authorizations and requirements set forth above in
paragraph (A), the following regulatory provisions are applicable
to a telephone corporation that desires to provide
000503 99904-00059 Syc 0594489 1 26
Ordinance No. 946
telecommunications service by means of facilities that are
proposed to be constructed within the City's public rights -of -
way:
1. The telephone corporation must apply for
and obtain, as may be applicable, an excavation permit, an
encroachment permit, or a building permit ("ministerial permit.")
2. In addition to the information required
by this Code in connection with an application for a ministerial
permit, a telephone corporation must submit to the City the
following supplemental information:
a. A copy of the certificate of public
convenience and necessity issued by the CPUC to the applicant,
and a copy of the CPUC decision that authorizes the applicant to
provide the telecommunications service for which the facilities
are proposed to be constructed in the City's public rights -of -
way.
b. If
the CPUC a certificate of public
"competitive local carrier," the
requirements are applicable:
the applicant has obtained from
convenience to operate as a
following additional
(i) As required by Decision
No. 95-12-057 of the CPUC, the applicant must establish that it
has filed with the City in a timely manner a quarterly report
that describes the type of construction and the location of each
construction project proposed to be undertaken in the City during
the calendar quarter in which the application is filed, which
information is sufficient to enable the City to coordinate
multiple projects, as may be necessary.
(ii) If the applicant's proposed
construction project will extend beyond the utility rights -of -way
into undisturbed areas or other rights -of -way, the applicant must
establish that it has filed a petition with the CPUC to amend its
certificate of public convenience and necessity and that the
proposed construction project has been subjected to a full-scale
environmental analysis by the CPUC, as required by Decision
No. 95-12-057 of the CPUC.
(iii) The applicant must inform the
City whether its proposed construction project will be subject to
any of the mitigation measures specified in the Negative
Declaration ["Competitive Local Carriers (CLCs) Projects for
Local Exchange Communication Service throughout California"] or
to the Mitigation Monitoring Plan adopted in connection with
Decision No. 95-12-057 of the CPUC. The City's issuance of a
ministerial permit will be conditioned upon the applicant's
compliance with all applicable mitigation measures and monitoring
requirements imposed by the CPUC upon telephone corporations that
are designated as "competitive local carriers."
000503 99904-00059 syc 0594489 1 2 7
Ordinance No. 946
C. In recognition of the fact that numerous
excavations in the public rights -of -way diminish the useful life
of the surface pavement, and for the purpose of mitigating the
adverse impacts of numerous excavations on the quality and
longevity of public street maintenance within the City, the
following policies and procedures are adopted:
1. The City Manager is directed to ensure
that all public utilities, including telephone corporations,
comply with all local design, construction, maintenance and
safety standards that are contained within, or are related to, a
ministerial permit that authorizes the construction of facilities
within the public rights -of -way.
2. The City Manager is directed to
coordinate the construction and installation of facilities by
public utilities, including telephone corporations, in order to
minimize the number of excavations in the public rights -of -way.
In this regard, based upon projected plans for street
construction or renovation projects, the City Manager is
authorized to establish on a quarterly basis one or more
construction time periods or "windows" for the installation of
facilities within the public rights -of -way. Telephone
corporations and other public utilities that submit applications
for ministerial permits to construct.faciiities after a
predetermined date may be required to delay such construction
until the next quarterly "window" that is established by the
City.
ARTICLE 5. DEFINITIONS
14.01.170 Defined Terms and Phrases
A. The words, terms, phrases, and their
derivations set forth in this chapter have the meanings set forth
below. Words used in the present tense include the future tense,
and words in the singular include the plural number.
"Affiliate" means, when used in relation to any
person, another person who owns or controls, is owned or
controlled by, or is under common ownership or control with, such
person. For purposes of this definition, the term "own" means to
own an equity interest, or its equivalent, of 10 percent or more.
"Cable service" means the one-way transmission to
subscribers of video programming, or other programming services,
and.subscriber interaction, if any, that is required for the
selection or use of that video programming or other programming
service. For the purposes of this definition, "video
programming" means programming provided by, or generally
considered comparable to programming provided by, a television
broadcast station; and "other programming service" means
information that a cable system operator makes available to all
subscribers generally.
000503 99904-00059 syc 0594489 1 28
Ordinance No. 946
"Cable system," or "cable communications system"
or "cable television system," means a facility, consisting of a
set of closed transmission paths and associated signal
generation, reception, and control equipment that is designed to
provide cable service that includes video programming and that is
provided to multiple subscribers within a community. The term
"cable system" does not include:
of persons:
(i) a facility that serves only to
retransmit the television signals of one or
more television broadcast stations;
(ii) a facility that serves subscribers
without using any public right-of-way;
(iii) a facility of a common carrier that is
subject, in whole or in part, to the
provisions of Title II of the
Telecommunications Act of 1996, except that
such facility will be considered a cable
system (other than for purposes specified in
Section 621(c) of the 1984 Cable Act) to the
extent such facility is used in the
transmission of video programming directly to
subscribers, unless the extent of such use is
solely to provide interactive on -demand
services;
(iv) an open video system that complies with
Section 653 of Title VI of the
Telecommunications Act of 1996; or
(v) any facilities of an electric utility
that are used solely for operating its
electric utility system.
"Cable system operator" means any person or group
(i) who provides cable service over a cable
system and directly or through one or more
affiliates owns a significant interest in
that cable system; or
(ii) who otherwise controls or is responsible
for, through any arrangement, the management
and operation of that cable system.
"City" means the City of Palm Desert as
represented by its City Council or by any delegate acting within
the scope of its delegated authority.
000503 99904-00059 syc 0594489 1 29
Ordinance No. 946
It CFR § " means the Code of Federal OMM
Regulations. Thus, the citation of 1147 CFR 80.1" refers to
Title 47, part 80, section 1, of the Code of Federal Regulations.
"Communications Act" means the Communications Act
of 1934 (47 U.S.C. H 151, et sec.), as amended by the Cable
Communications Policy Act of 1984, the Cable Television Consumer
Protection and Competition Act of 1992, and the
Telecommunications Act of 1996.
"FCC" or "Federal Communications Commission" means
the federal administrative agency, or any lawful successor, that
is authorized to regulate telecommunications services and
telecommunications service providers on a national level.
"Franchise" means an initial authorization, or the
renewal of an initial authorization, issued by the City Council,
whether such authorization is designated as a franchise,
agreement, permit, license, resolution, contract, certificate; or
otherwise, that authorizes the construction or operation of a
cable system or an open video system.
"Franchise fee" means any fee or assessment of any
kind that is authorized by state or federal law to be imposed by
the City on a Grantee as compensation in the nature of rent for
the Grantee's use of the public rights -of -way. The term
"franchise fee" does not include:
(i) Any tax, fee, or assessment of general
applicability (including any such tax, fee,
or assessment imposed on both utilities and
Grantees or their services);
(ii) Capital costs that are required by the
franchise to be incurred by a Grantee for
public, educational, or governmental access
facilities;
(iii) Costs or charges that are incidental
to the award or enforcement of the franchise,
including payments for bonds, security funds,
letters of credit, insurance,
indemnification, penalties, or liquidated
damages; or
(iv) Any fee imposed under Title 17, United
States Code.
"Franchise service area" or "service area" means
the entire geographic area of the City as it is now constituted,
or may in the future be constituted, unless otherwise specified
in the ordinance or resolution granting a franchise, or in a
franchise agreement.
000503 99904-00059 syc 0594489 1 - 3 0 -
Ordinance No. 946
"Grantee" means any person that is awarded a
franchise in accordance with this chapter, and that person's
lawful successor, transferee, or assignee.
"Gross annual cable service revenues" means, as
applied to the Grantee of a cable television franchise, the
annual gross revenues received by a Grantee from all operations
of its cable television system within the City, excluding
uncollected bad debt, refundable deposits, rebates or credits,
and further excluding any sales, excise, or other taxes or
charges that are required to be collected for direct pass -through
to the local, state, or federal government. Revenues identified
and collected from subscribers as franchise fees may not be
excluded from a Grantee's gross annual cable service revenues,
unless otherwise provided by federal law.
"Multichannel video programming distributor" or
"video programming distributcr" means a person such as, but not
limited to, a cable system operator, an open video system
operator, a multichannel multipoint distribution service, a
direct broadcast satellite service, or a television receive -only
satellite program distributor, who makes available multiple
channels of video programming for purchase by subscribers or
customers.
"Open video system" means a facility consisting of
a set of transmission paths and associated signal generation,
reception, and control equipment that is designed to provide
cable service, including video programming, and that is provided
to multiple subscribers within the City, provided that the FCC
has certified that such system complies with 47 CFR § 1500 et
seq., entitled "Open Video Systems."
"Open video system operator" means any person or
group of persons who provides cable service over an open video
system and directly or through one or more affiliates owns a
significant interest in that open video system, or otherwise
controls or is responsible for the management and operation of
that open video system.
"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:
(i) Channel capacity designated
for noncommercial public, educational, or government use; and
(ii) Facilities and equipment for
the use of that channel capacity.
000503 99904-00059 syc 0594489 1 - 3 1 -
Ordinance No. 946
"Subscriber" or "customer" or "consumer" means any .•w
person who, for any purpose, subscribes to the services provided
by a multichannel video programming distributor and who pays the
charges for those services.
"Street" or "public way" means each of the
following that has been dedicated to the public and maintained
under public authority or by others and is located within the
City limits: streets, roadways, highways, avenues, lanes,
alleys, sidewalks, easements, rights -of -way, and similar public
property that the City from time to time authorizes to be
included within the definition of a street.
"Telecommunications" means the transmission,
between or among points specified by the user, of information of
the user's choosing, without change in the form or content of the
information ae se-t and received.
"Telecommunications equipment" means equipment,
other than customer premises equipment, used by a
telecommunications servi�.._ prov-Luer tv N�o�:�:�� 1^^^m^•��^^�^��nnc
service, including software that is integral to that equipment.
"Telecommunications service" means the uifering of
telecommunications directly to the public for a fee, or to such
classes of users as to be effectively available directly to the
public, regardless of the equipment or facilities that are ?Lsed.
"Telecommunications service provider" means any
provider of telecommunications service.
" U.S.C. § " means the United States Code.
Thus, the citation of 1147 U.S.C. § 153" refers to Title 47,
section 153, of the United States Code.
"Video programming provider" means any person or
group of persons who has the right under the federal copyright
laws to select and to contract for the carriage of specific video
programming on a cable system or an open video system.
"Video provider" means any person, company, or
service that provides one or more channels of video programming
to a residence, including a home, multi -family dwelling complex,
congregate -living complex, condominium, apartment, or mobilehome,
where some fee is paid for that service, whether directly or as
included in dues or rental charges, and whether or not public
rights -of -way are used in the delivery of that video programming.
A "video provider" includes, without limitation, providers of
cable television service, open video system service, master
antenna television, satellite master antenna television, direct
broadcast satellite, multipoint distribution services, and other
providers of video programming, whatever their technology.
000503 99904-00059 syc 0594489 1 32
Ordinance No. 946
B. Unless otherwise expressly stated, words,
terms, and phrases not defined in this Chapter 14.01 will be
given their meaning as used in Title 47 of the United States
Code, as amended, and, if not defined in that Code, their meaning
as used in Title 47 of the Code of Federal Regulations.
ARTICLE 6. VIOLATIONS; SEVERABILITY
14.01.180 Violations; Enforcement
A. Any person who violates any provision of this
chapter is guilty of a misdemeanor and is punishable as provided
for in Chapter 1.12 of Title 1 of this Code.
B. The misdemeanor penalty specified above in
paragraph (A) is not applicable to a violation of any provision
.....of thischapter for which another sanction or penalty may be
imposed under any franchise, license, lease, or similar written
agreement between the City and a multichannel video programming
distributor or telecommunications service provider.
C. The City may initiate a civil action in any
court of competent jurisdiction to enjoin any violation of this
chapter.
14.01.190 Severability
If any provision of this chapter is determined by any
court of competent jurisdiction, or by any federal or state
agency having jurisdiction over its subject matter, to be invalid
and in conflict with any paramount federal or state law or
regulation now or hereafter in effect, or is determined by that
court or agency to require modification in order to conform to
the requirements of that paramount law or regulation, then that
provision will be deemed a separate, distinct, and independent
part of this chapter, and such determination will not affect the
validity and enforceability of any other provisions. If that
paramount federal or state law or regulation is subsequently
repealed or amended so that the provision of this chapter
determined to be invalid or subject to modification is no longer
in conflict with that law or regulation, then that provision will
again become effective and will thereafter be binding on the City
and any affected video or telecommunications service provider;
provided, however, that the City must give the affected video or
telecommunications service provider 30 days written notice of
that change before requiring compliance with that provision, or
such longer period of time as may reasonably be required for the
video or telecommunications service provider to comply with that
provision."
000503 99904-00059 syc 0594489 1 - 33 -
Ordinance No. 946
Section 3. Notwithstanding any provisions to the
contrary set forth in this ordinance, Chapter 14.01, entitled
"Cable Television Systems," which was previously codified in
Title 14 of the Municipal Code, will continue in full force and
effect as an uncodified ordinance of the City. This uncodified
ordinance will continue to be applicable to the existing cable
television franchise agreement between the City and its
franchised cable operator, Summit Cable Services of Georgia,
Inc., dba Time Warner Cable, and it is subject to repeal by the
City Council at such time as that cable system operator, or its
duly authorized assignee or transferee, executes an amendment to
the existing cable television franchise agreement, or executes a
cable television franchise renewal agreement, the terms of which
subject the franchised cable operator to Chapter 14.01 of
Title 14, as amended by this ordinance.
Section 4. The City Clerk is directed to certify the.
adoption of this ordinance and to cause it to be published by
title and summary.
PASSED, APPROVED, and ADOPTED this 8th day of
June , 2000.
I HEREBY CERTIFY that
adopted by the City Council of
meeting held the 8th day of
following vote:
Ayes: Benson, Kelly, Crites
Noes: None
Absent: Ferguson
MAY6R )Kf;rd'T Crites
the foregoing ordinance way
the City of Palm Desert at its
June , 2000, by tale
Abstain: Spiegel ' ;d. )i: �-
CIT CLERK
APPROVED TO FORM:
CITY ATTA Y
000503 99904-00059 syc 05944B9 1 - 34 -