(A) Other multi-channel video programming distributors. The term "cable system," as defined in federal law and as set forth below in § 5.14.050(A), does not include a facility that serves subscribers without using any public rights-of-way. Consequently, the categories of multi-channel 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 streets or public rights-of-way.
(1) 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.
(2) Local multi-point 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.
(3) 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:
(a) 47 USC 303(v) confers upon the FCC exclusive jurisdiction to regulate the provision of direct-to-home satellite services.
(b) Section 602 of the Telecommunications Act of 1996 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.
(B) Video providers; registration; customer service standards.
(1) Unless the customer protection and service obligations of a video provider, as that term is defined in § 5.14.050, 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:
(a) The Cable Television and Video Customer Service and Information Act (Government Code §§ 53054 et seq.).
(b) The Video Customer Service Act (Government Code §§ 53088 et seq.).
(2) All video providers that are operating in the city on the effective date of this chapter, 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:
(a) The video provider's name, address, and local telephone numbers.
(b) The names of the officers of the video provider.
(c) 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 seq. These customer service standards must include, without limitation, standards regarding the following:
1. Installation, disconnection, service and repair obligations, employee identification, and service call response time and scheduling.
2. Customer telephone and office hours.
3. Procedures for billing, charges, refunds, and credits.
4. Procedures for termination of service.
5. Notice of the deletion of a programming service, a change in channel assignments, or an increase in rates.
6. Complaint procedures and procedures for bill dispute resolution.
7. The video provider's written acknowledgment of its obligation under Government Code § 53055.1 to provide to new customers a notice describing the customer service standards specified above in subsections (c)1 through 6 above at the time of installation or when service is initiated. The notice must also include, in addition to all of the information described above in subsections (c)1 through 6, all of the following:
a. 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.
b. The telephone number or numbers through which customers may subscribe to, change, or terminate service, request customer service, or seek general or billing information.
c. 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.
8. 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 subsections (c)1 through 6. 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. Subject to the written notice and cure provisions of Government Code § 53056(b), a video provider that fails to distribute the annual notice required by Government Code § 53055.1 will be assessed a monetary penalty in the sum of $500 for each year in which the annual notice is not distributed to all of its customers.
(d) 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.
(e) In addition to the registration fee specified above in § 5.14.040(B)(2)(d), 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).
(3) The customer service obligations imposed upon video providers by the Video Customer Service Act (Government Code §§ 53088 et seq.) consist of the following:
(a) Every video provider must render reasonably efficient service, make repairs promptly, and interrupt service only as necessary.
(b) 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.
(c) 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 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.
(d) 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.
(e) 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.
(f) All video providers must render bills that are accurate and understandable.
(g) 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.
(h) 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.
(i) 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 sixteenth 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 twenty-second day after the bill for service has been mailed.
(j) Every notice of termination of service pursuant to § 5.14.040(B)(3)(i) must include all of the following information:
1. The name and address of the customer whose account is delinquent.
2. The amount of the delinquency.
3. The date by which payment is required in order to avoid termination of service.
4. 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.
(k) 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.
(l) All video providers must issue requested refund checks promptly, but no later than 45 days following the resolution of any dispute, and if service is terminated, following the return of the equipment supplied by the video provider.
(m) 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.
(n) 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.
(4) 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 above in § 5.14.040(B)(3), provided that the breach is within the 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 division (B)(4) 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 § 5.14.040(B)(4)(b).
(a) Schedule of penalties.
1. 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.
2. For a second material breach of the same nature for which a monetary penalty was previously assessed 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.
3. For a third or further material 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.
4. The maximum penalties referenced above may be increased by any additional amount authorized by state law.
(b) Judicial remedies not affected. The imposition of penalties in accordance with the provisions of division (B)(4)(a) above does not preclude any affected party from pursuing any judicial remedy that is available to that party.
(c) Administration, notice, and appeal.
1. The City Manager or the City Manager's designee is authorized to administer § 5.14.040(B)(4). Decisions by the City Manager to assess penalties against a video provider must be in writing and must contain findings supporting the decisions. Decisions by the City Manager are final, unless appealed to the City Council.
2. If the video provider or any interested person is aggrieved by a decision of the City Manager, the aggrieved party may, within ten 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.
3. The imposition of monetary penalties under division (B)(4)(c)1 above is subject to the following requirements and limitations:
a. 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.
b. 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 division (B)(4)(c)3.a above that the material breach has not been remedied by the video provider, irrespective of the number of customers affected.
(C) Facilities for video and telecommunications services. All telecommunications service providers, and all video providers, other than cable system operators or open video system operators that are required by this chapter to obtain and to operate under a franchise, must comply with all applicable provisions of Chapter 12.32 and Chapter 17.65, which provisions set forth the city's regulatory requirements relating to the design, siting, and construction of facilities that are commonly used in providing or receiving video and telecommunications services.
(D) Telecommunications service provided by telephone corporations.
(1) The City Council finds and determines as follows:
(a) 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.
(b) The California Public Utilities Commission (CPUC) is primarily responsible for the implementation of local telephone competition. The CPUC 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 using their own facilities or the facilities or services provided by other authorized telephone corporations.
(c) 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."
(d) 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."
(e) 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 such matters 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.
(f) 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.
(g) Section 7901.1 of the California Public Utilities Code confirms the right of municipalities to exercise reasonable control over 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. Nothing in Section 7941.1 adds to or subtracts from any existing authority that municipalities have with respect to the imposition of fees.
(h) 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.
(2) In recognition of and in compliance with the statutory authorizations and requirements set forth above in division (D)(1), the following regulatory provisions are applicable to a telephone corporation that desires to provide telecommunications service by means of facilities that are proposed to be constructed within the city's public rights-of-way:
(a) The telephone corporation must apply for and obtain, as may be applicable, a right-of-way agreement in accordance with Chapter 12.32 of this Code, an excavation permit, an encroachment permit, or a building permit.
(b) In addition to the information required by this Code in connection with an application for a right-of-way agreement under Chapter 12.32, a telephone corporation must submit to the city the following supplemental information:
1. 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. Any applicant that, prior to 1996, provided telecommunications service under administratively equivalent documentation issued by the CPUC may submit copies of that documentation in lieu of a certificate of public convenience and necessity.
2. If the applicant has obtained from the CPUC a certificate of public convenience and necessity to operate as a "competitive local carrier," the following additional requirements are applicable:
a. 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.
b. 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.
c. 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 right-of-way agreement or ministerial permits 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."
(3) The city reserves all rights that it now possesses or may later acquire with respect to the regulation of any cable or telecommunications service that is provided, or proposed to be provided, by a telephone corporation. These reserved rights may relate, without limitation, to the imposition of reasonable conditions in addition to or different from those set forth in this section, the exaction of a fee or other form of consideration or compensation for use of public rights-of-way, and related matters; provided, however, that these regulatory rights and authority must be consistent with federal and state law that is applicable to cable or telecommunications services provided by telephone corporations.
(Ord. 2582 § 3, 2002.)