CC Ordinance 2115
ORDINANCE NO.,
2115
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CAMPBELL
AMENDING THE CAMPBELL MUNICIPAL CODE TO ADD CHAPTER 5.21
REGARDING STATE VIDEO FRANCHISES
WHEREAS, the Legislature of the State of California (the State) has adopted the
Digital Infrastructure and Video Competition Act of 2006 (DIVCA); and
WHEREAS, DIVCA became effective on January 1, 2007; and
WHEREAS, DIVCA establishes a regulatory structure for the State to issue franchises
to video service providers; and
WHEREAS, DIVCA establishes that local entities, such as the City of Campbell, are
responsible for administration and implementation of certain provisions of DIVCA; and
WHEREAS, DIVCA requires that the City establish, by ordinance, financial support
provisions for Public, Educational and Governmental Access (PEG) channel facilities;
and
WHEREAS, DIVCA requires that the City adopt, by ordinance or resolution, a
schedule of penalties for any material breach by a State video franchise holder for
violation of customer service and protection standards that the City is permitted to
enforce; and
WHEREAS, there is currently one City-franchise cable operator providing cable
service within the City (Comcast of California); and
WHEREAS, in 2007 , AT&T began deploying its U-Verse video service in Campbell
and has initiated franchise fee payments to the City as required under DIVCA
beginning with its first quarterly payment in March 2008; and
WHEREAS, the Comcast Cable 1 O-year franchise signed in 2003 included a payment
of $450,000 to the City for capital PEG support; and
WHEREAS, it is the intent of this ordinance that the City receive the same amount of
franchise fees and PEG support from current and future holders of a State-issued
video franchise.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF CAMPBELL DOES
HEREBY ORDAIN AS FOllOWS:
SECTION 1: CODE AMENDMENT. The Campbell Municipal Code is hereby amended
by adding a new Chapter 5.21 to read as set forth in Exhibit A attached to this
Ordinance.
SECTION 2. SEVERABILITY. If any section, subsection, subdivision, paragraph,
sentence, clause or phrase of this Ordinance, or its application to any person or
circumstance, is for any reason held to be invalid or unenforceable, such invalidity or
unenforceability shall not affect the validity or enforceability of the remaining sections,
subsections, subdivisions, paragraphs, sentences, clauses or phrases of this
Ordinance, or its application to any other person or circumstance. The City Council of
the City of Campbell hereby declares that it would have adopted each section,
subsection, subdivision, paragraph, sentence, clause or phrase hereof, irrespective of
the fact that anyone or more other sections, subsections, subdivisions, paragraphs,
sentences, clauses or phrases hereof be declared invalid or unenforceable.
SECTION 3. CONSTRUCTION. The City Council intends this Ordinance to
supplement, not to duplicate or contradict, applicable state and federal law and this
Ordinance shall be construed in light of that intent.
SECTION 4. EFFECTIVE DATE. This Ordinance shall take effect thirty days after its
adoption pursuant to California Government Code S 36937.
SECTION 5. CERTIFICATION. The City Clerk shall certify to the passage and
adoption of this Ordinance and shall cause the same to be published or posted
according to law.
PASSED AND ADOPTED this
roll call vote:
7th
day of
October
, 2008 by the following
AYES: Councilmembers:
Furtado, Kennedy, Low, Hernandez
NOES: Councilmembers:
None
ABSENT: Councilmembers:
Burr
~:2~~r
by Joseph D. Hernandez, Vice Mayor
ATTEST:
~~
Anne Bybee, City Clerk
Chapter 5.21
STATE VIDEO SERVICE FRANCHISES
Sections:
5.21.010 Purpose.
5.21.020 Rights reserved.
5.21.030 Compliance with chapter.
5.21.040 Definitions.
5.21.050 State franchise fees.
5.21.060 PEG fees.
5.21.070 Payment of fees.
5.21.080 Examining books and records related to payments.
5.21.090 Late payments.
5.21.100 Lease of City-owned network.
5.21.110 Customer service and consumer protection.
5.21.120 Penalties for violations of standards.
5.21.130 Customer service reports.
5.21.140 Construction in the public rights-of-way.
5.21.150 Permits.
5.21.160 Emergency alert systems.
5.21.170 Interconnection for PEG programming.
5.21.180 Notices.
5.21.010 Purpose.
This chapter is applicable to all video service providers who are eligible for, and
have been awarded, a State video franchise under the California Public Utilities
Code Section 5800 et seq. (the Digital Infrastructure and Video Competition Act
of 2006), to provide cable or video services in any portion of the City.
5.21.020 Rights reserved.
The rights reserved to the City under this chapter are in addition to all other rights
of the City whether reserved by this chapter or authorized by other applicable
law, and no action, proceeding or exercise of a right shall affect any other rights
which may be held by the City.
5.21.030 Compliance with chapter.
Nothing contained in this chapter exempts a State franchise holder from
compliance with all ordinances, rules or regulations of the City now in effect or
which may be hereafter adopted which are not inconsistent with this chapter or
California Public Utilities Code Section 5800 et seq., or obligations under any
franchise previously issued by the City, insofar as those may be enforced under
California Public Utilities Code Section 5800.
5.21.040 Definitions.
For purposes of this chapter, the following terms, phrases, words and their
derivations shall have the meaning given in this chapter. Unless otherwise
expressly stated, words not defined in this chapter shall be given the meaning set
forth in the Digital Infrastructure and Video Competition Act of 2006, Division 2.5
of the California Public Utilities Code, Section 5800 et seq., ("DIVCA"). When not
inconsistent with the context, words used in the present tense include the future,
words in the plural number include the singular number, words in the singular
number include the plural number, and "including" and "include" are not limiting.
The word "shall" is always mandatory.
(a) "A" definitions:
(1) "Access channel" means any channel on a cable system or video system set
aside by a State franchise holder for public, educational or governmental use.
(2) "Applicant" means any person submitting any application required under
Division 2.5 of the California Public Utilities Code.
(3) "Applicable law" means all lawfully enacted and applicable Federal, State and
City laws, ordinances, codes, rules, regulations and orders as the same may be
amended or adopted from time to time.
(b). .Reserved forfuturelJ.s~..
2
(c) "C" definitions:
(1) "Cable service" means (A) the one-way transmission to subscribers of video
programming or other programming services; and (8) subscriber interaction, if
any, which is required for the selection or use of such video programming or
other programming service.
(2) "City" means the City of Campbell, California. Any act that may be taken by
the City may be taken by the City Councilor any agency, department, agent or
other entity now or hereafter authorized to act on the City's behalf.
(3) "City Council" means the governing body of the City of Campbell, California.
(4) "City Manager" means the City Manager of the City of Campbell or his or her
duly authorized designees. Any act that may be taken by the City Manager may
be taken by any agency, department, agent or other entity now or hereafter
authorized to act on behalf of the City Manager.
(5) "Construction," "operation," or "repair" and similar formulations of those terms
mean the named actions interpreted broadly, encompassing, among other things,
installation, extension, maintenance, replacement of components, relocation,
undergrounding, grading, site preparation, adjusting, testing, make-ready,
excavation and tree trimming. The term "operation" does not encompass or
regulate the provision of services, but refers to activities affecting rights-of-way
and other property subject to the jurisdiction of the City.
(d) "0" definitions:
(1) "Director of Public Works" means the Director of Public Works or his or her
designee.
(2) "DIVCA" means the Digital Infrastructure and Video Competition Act of 2006,
Division 2.5 of the California Public Utilities Code, Section 5800 et seq., as may
be amended from time to time.
(e) Reserved for future use.
(f) Reserved for future use.
(g) "G" definitions:
(1) "Gross revenues" means all revenues (whether in the form of cash or other
consideration) of a State franchise holder or its affiliates in any way derived from
its operations within the City.
(h) Reserved for future use.
3
(i) "I" definitions:
(1) "Incumbent cable operator" shall have the same meaning as in DIVCA.
U) Res.erved for future use.
(k) Reserved for future use.
(I) Reserved for future use.
(m) Reserved for future use.
(n) "N" definitions:
(1) "Network" shall have the same meaning as in DIVCA.
(0) Reserved for future use.
(p) "P" definitions:
(1) "Person" is as defined in CMC 9 5.20.240. The term does not include the City.
(2) "PEG" means public, educational or governmental.
(3) "Public rights-of-way" shall have the same meaning as in DIVCA.
(q) Reserved for future use.
(r) Reserved for future use.
(s) "S" definitions:
(1) "State franchise" means a franchise issued by the California Public Utilities
Commission to provide cable service or video service, as those terms are defined
in DIVCA, within any portion of the City.
(2) "State franchise holder" means a person who holds a State franchise.
(3) "Subscriber" means the City or any person in the City who legally receives
any cable service or video service for a fee from a State franchise holder
providing service to the City pursuant to its State franchise.
(t) Reserved for future use.
(u) "U" definitions:
4
(1) "User" means a person or the City utilizing a channel, capacity or equipment
and facilities for purposes of producing or transmitting material, as contrasted
with the receipt thereof in the capacity of a subscriber.
(v) "V" definitions:
(1) "Video service" shall have the same meaning as in DIVCA.
(w) Reserved for future use.
(x) Reserved for future use.
(y)Reservedfor future use.
(z) Reserved forfuture.use.
5.21.050 State franchise fees.
(a) Any State franchise holder operating within the City shall pay to the City a
State franchise fee equal to five percent of the gross revenues of it or any affiliate
that is subject to a franchise fee under California Public Utilities Code Section
5860.
(b) The City Manager shall promptly send any State franchise holder that notifies
the City that it intends to provide video service in the City (1) the franchise fee
section of the franchises held by incumbent cable operators in the City; (2) a
sworn statement that the fee required is being paid to the City, subject to the right
of the City to examine the books and records of the incumbent in accordance
with applicable law and franchises; and (3) a notice designating the person to
whom the State franchise fee payments should be made.
5.21.060 PEG fees.
Any State franchise holder operating within the City shall pay to the City a PEG
fee equal to one percent (1 %) of the State franchise holder's or affiliate's gross
revenues subject to the PEG use fee under California Public Utilities Code
Sections 5860 and 5870(n).
5.21.070 Payment of fees.
The State franchise fee required pursuant to Campbell Municipal Code section
5.21.050, and the PEG fee required pursuant to Campbell Municipal Code
section 5.21.060, shall each be paid to the City quarterly, in a manner consistent
with California Public Utilities Code Section 5860. The State franchise holder
shall deliver to the City, by check or other means specified by the City, a
payment for the State franchise fee and a separate payment for the PEG fee not
later than forty-five (45) days after the end of each calendar quarter. Each
5
payment made shall be accompanied by a report, detailing how the payment was
calculated, containing such information as the City Manager may require
consistent with DIVCA. Unless the City Manager provides otherwise, the
summary statement shall identify:
(a) Revenues received from subscribers, by category, with service revenues
broken out by service levels;
(b) Any charges to subscribers for which revenues were received, but on which a
franchise fee was not paid;
(c) Where the fee is paid on an allocated portion of revenues received, the total
revenues received; the allocation factor; and how the allocation factor was
calculated.
5.21.080 Examining books and records related to payments.
The City may examine the business records of the holder of a State franchise in
a manner consistent with California Public Utilities Code Section 5860(i).
5.21.090 Late payments.
In the event a State franchise holder fails to make payments required by this
chapter on or before the due dates specified in this chapter, the City shall impose
a late charge at the rate per year equal to the highest prime lending rate during
the period of delinquency, plus one percent.
5.21.100 Lease of City-owned network.
In the event a State franchise holder leases access to a network owned by the
City, the City may set a franchise fee for access to the City-owned network
separate and apart from the franchise fee charged to State franchise holders
pursuant to Campbell Municipal Code section 5.21.050, which fee shall otherwise
be payable in accordance with the procedures established by this chapter.
5.21.110 Customer service and consumer protection.
Each State franchise holder shall comply with all applicable customer service and
consumer protection standards to the extent consistent with California Public
Utilities Code Section 5900, including, but not limited to, all existing and
subsequently enacted customer service and consumer protection standards
established by State and Federal law and regulation.
5.21.120 Penalties for violations of standards.
(a) The City is authorized to enforce the provisions of Campbell Municipal Code
section 5.21.110.
(b) For material breaches, as defined in California Public Utilities Code Section
5900, by a State franchise holder of applicable customer service and consumer
protection standards, the City may impose the following penalties:
6
(1) For the first occurrence of a material breach, a fine of five hundred dollars
($500.00) may be imposed for each day the violation remains in effect, not to
exceed one thousand five hundred dollars ($1,500.00) for each violation.
(2) For a second material breach of the same nature within twelve (12) months, a
fine of one thousand dollars ($1,000.00) may be imposed for each day the
violation remains in effect, not to exceed three thousand dollars ($3,000.00) for
each violation.
(3) For a third material breach of the same nature within twelve (12) months, a
fine of two thousand five hundred dollars ($2,500.00) may be imposed for each
day the violation remains in effect, not to exceed seven thousand five hundred
dollars ($7,500.00) for each violation.
(c) Any penalties imposed by the City shall be imposed in a manner consistent
with California Public Utilities Code Section 5900.
(d) The City Manager is authorized to provide any notices required under
California Public Utilities Code Section 5900. The City Manager shall coordinate
with the Division of Ratepayer Advocates to protect consumers in the City.
5.21.130 Customer service reports.
(a) The City Manager is authorized to establish a system for receiving complaints
from users regarding complaints about customer service and consumer
protection as set forth herein.
(b) The City Council may, by resolution, establish fees to cover the cost of
monitoring the compliance by a State franchise holder of the customer service
and consumer protection responsibilities established by this chapter
5.21.140 Construction in the public rights-of-way.
Except as expressly provided in this chapter, the provisions of Campbell
Municipal Code Title 11, and all City administrative rules and regulations
developed pursuant to Campbell Municipal Code Title 11, as now existing or as
hereafter amended, shall apply to all work performed by or on behalf of a State
franchise holder in any public rights-of-way.
5.21.150 Permits.
(a) Prior to commencing any work for which a permit is required by Campbell
Municipal Code Title 11, a State franchise holder shall apply for and obtain a
permit in accordance with the provisions of Campbell Municipal Code Title 11. A
permit application is complete when the State franchise holder has complied with
all applicable laws and regulations, including but not limited to all City
administrative rules and regulations, and all applicable requirements of Division
13 of the California Public Resources Code, Section 21000, et seq. (the
7
California Environmental Quality Act) and preparation of plans and specifications
as required by the Director of Public Works related to review of the application in
accordance with applicable law.
(b) The City Engineer shall, in the exercise of reasonable discretion as permitted
by State law, either approve or deny a State franchise holder's application for any
permit required under subsection (a) of this section within sixty (60) days of
receiving a complete permit application from the State franchise holder.
(c) If the City Engineer denies a State franchise holder's application for a permit,
the City Engineer shall, at the time of notifying the applicant of denial, furnish to
the applicant a detailed explanation of the reason or reasons for the denial.
(d) A State franchise holder that has been denied a permit by final decision of the
City Engineer may, within fifteen (15) calendar days, appeal the denial to the City
Council. The appeal shall be taken by the filing of a notice in writing to that effect
with the City Clerk and by the payment of an appeal fee as set forth by resolution
of the City Council. At its regular meeting held at least three days after the filing
of a notice of appeal, the City Council shall set a date for the hearing of the
appeal, and notice shall be given to the applicant, City Manager and also to the
Director of Public Works, and by posting as provided herein. The City Engineer
shall transmit through the City Manager to the City Council all maps, diagrams,
records, papers, and files that constitute the record in the action from which the
appeal was taken.
(e) The City Council shall render its decision within forty-five (45) days after the
conclusion of said hearing of the appeal. The City Council in its decision may
reverse, affirm, or modify the action of the City Engineer, or it may remand such
matter to the City Manager and Director of Public Works for further study or
action. Failure of the Council to render its decision within said period shall be
deemed to be an affirmance of the action of the City Engineer.
(f) Notice of any public hearing required under the terms of this title shall be given
by posting a public notice in at least three conspicuous places within three
hundred (300) feet of the affected property, not less than ten days prior to said
hearing. Each such notice shall be headed by the word "Notice," in letters not
less than one inch in height. In addition thereto, each notice shall contain the
proposed establishment or change of district; or in the case of a use permit,
variance or appeal, the use permit, variance or appeal applied for, a brief general
description of the property involved, and the time and place at which the public
hearing will be held. The City Clerk shall cause notices to be posted for hearings
to be held before the City Council. The person posting said notices shall file a
certificate of such posting together with a copy of said notice with the City Clerk.
(g) Any defect or error appearing in any such notice shall not divest the City
Council of jurisdiction nor invalidate any proceedings.
8
(h) In addition to the posting requirements pursuant to subsection (a) of this
section, the City Clerk, at least five days prior to the hearing to be held before the
City Council, shall cause to be mailed, postage prepaid, a notice of the time and
place of such hearing to all persons whose names and addresses appear on the
latest adopted tax roll of the County of Santa Clara or as known to the City Clerk
as owning property within a distance of not less than three hundred (300) feet
from the exterior boundaries of the area actually occupied or to be occupied by
the use which is the subject of the hearing. Unless the context of an applicable
State law provides to the contrary, the failure to mail such notice to all of said
persons shall not operate to divest the City Council of jurisdiction to conduct any
hearing required to be held. The City Council hereby declares that the purpose of
providing that said notice be mailed is to give said property owners within said
three hundred (300) feet information as to any proposed change or modification
of the use of said property, and the City Council hereby declares that jurisdiction
to conduct said hearing shall be obtained upon the posting of notices required by
this section.
(i) The issuance of a permit under Campbell Municipal Code Title 11 is not a
franchise, and does not grant any vested rights in any location in the public
rights-of-way, or in any particular manner of placement within the rights-of-way.
Without limitation, a permit to place cabinets and similar appurtenances
aboveground may be revoked and the permittee required to place facilities
underground, upon reasonable notice to the permittee.
5.21.160 Emergency alert systems.
(a) Each State franchise holder shall comply with the emergency alert system
requirements of the Federal Communications Commission in order that
emergency messages may be distributed over the State franchise holder's
network.
(b) To the extent consistent with Public Utilities Code Section 5880, each State
franchise holder shall incorporate into its network the capability to permit the City
in times of emergency to override the audio portion of all channels
simultaneously, as such capability was required under local franchises in effect in
the City on the effective date of the ordinance codified in this chapter.
5.21.170 I nterconnection for PEG programming.
Where technically feasible, each State franchise holder, and each incumbent
cable operator operating under a City franchise issued pursuant to Chapter 5.20
of the Campbell Municipal Code, shall negotiate in good faith to interconnect their
networks for the purpose of providing PEG programming. Interconnection may be
accomplished by any means authorized under Public Utilities Code Section
5870(h). Each State franchise holder and incumbent cable operator shall provide
interconnection of access channels on reasonable terms and conditions and may
not withhold the interconnection. If a State franchise holder and an incumbent
9
cable operator cannot reach a mutually acceptable interconnection agreement,
the City may require the incumbent cable operator to allow the State franchise
holder to interconnect its network with the incumbent cable operator's network at
a technically feasible point on the State franchise holder's network as identified
by the State franchise holder. If no technically feasible point for interconnection is
available, each State franchise holder will make an interconnection available to
each channel originator providing PEG programming to an incumbent cable
operator, and will provide the facilities necessary for the interconnection. The
cost of any interconnection will be borne by the State franchise holder requesting
the interconnection unless otherwise agreed to by the State franchise holder and
the incumbent cable operator.
5.21.180 Notices.
(a) Each State franchise holder or applicant for a State franchise shall file with
the City a copy of all applications or notices that the State franchise holder or
applicant is required to file with the Public Utilities Commission.
(b) Unless otherwise specified in this chapter, all notices or other documentation
that a State franchise holder is required to provide to the City under this section
or the California Public Utilities Code shall be provided to the City Manager.
10