Loading...
SEC. 23-43. 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. 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.
      (3)   Section 234(a) of the Cal. Pub. Util. 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 Cal. Pub. Util. 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 Cal. Pub. Util. 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 Cal. Pub. Util. 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 Cal. Pub. Util. 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. Nothing in Section 7901.1 adds to or subtracts from any existing authority that municipalities have with respect to the imposition of fees.
      (8)   Section 50030 of the Cal. Gov’t 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 subsection (A), 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:
      (1)   The telephone corporation must apply for and obtain, as may be applicable, an excavation permit, an encroachment permit, building permit or other permit required by this Code ("construction permit"), and comply with all city ordinances, resolutions, and construction standards in connection with construction or repair in the public right of way.
      (2)   In addition to any other information required by this Code in connection with an application for a construction permit, a telephone corporation must submit to the city manager, upon request, 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. 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.
         (b)   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:
            1.   As required by Decision No. 95-12-057 of the CPUC, the applicant must establish that it has timely filed with the city 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, so that the city can coordinate multiple projects, as may be necessary.
            2.   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.
            3.   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.
            4.   The city's issuance of a construction 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."
   (C)   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 such regulatory rights and authority must be consistent with federal and State law that is applicable to cable or telecommunications services provided by telephone corporations.
   (D)   The city council finds and determines that numerous and repetitive excavations in the public rights-of-way diminish the useful life of the surface pavement and generally cause adverse negative impacts for local residents, local businesses, and vehicular and pedestrian traffic. The city council further finds and determines that the utility substructure in the public rights-of-way is subject to potential adverse negative impacts as a consequence of new economic and regulatory policies that foster increased competition between various utility service providers, including telephone corporations.
   (E)   In order to mitigate these potential adverse negative impacts, all utility service providers, including telephone corporations, and any other person or entity desiring to make an excavation in the public right of way shall comply with all city ordinances, resolutions, and construction standards governing excavations in the public right-of-way.
   (F)   The city council further finds and determines that the installation in the public rights-of-way of numerous aboveground facilities by utility service providers, including telephone corporations, may create safety hazards and adverse visual impacts. All such providers are subject to all city ordinances, resolutions and construction standards pertaining to any such installation.
(Ord. No. 2650)
SEC. 23-44. STATE VIDEO FRANCHISEES.
   (A)   PEG fee established.  
      (1)   In accord with Cal. Pub. Util. Code Section 5870(n), any grantee of a franchise, or state franchisee, must pay to the city a fee for the support of PEG channel facilities.
      (2)   The amount of the PEG Fee established by this section is 1% of gross revenues, as defined in this code, the applicable city-issued franchise, or Cal. Pub. Util. Code Section 5860(d).
      (3)   Commencing from and after April 10, 2018, the city’s PEG fee set forth in this section shall continue to apply to any new or existing franchisee operating in the city and shall automatically be reauthorized upon the expiration of any existing or future state video franchise(s) held by any state- franchised video service provider operating within the city. This fee shall so renew until such time that the city council takes formal affirmative action to cease the renewals.
   (B)   Franchise fee established.  
      (1)   For any state franchisee, the amount of the franchise fee imposed by Cal. Pub. Util. Code Section 5840(q) shall be 5% of gross revenues, as defined in Cal. Pub. Util. Code Section 5860(d).
      (2)   In accordance with Cal. Pub. Util. Code Section 5860(a), the City Manager will prepare and provide to state franchisees all necessary documentation supporting the percentage franchise fee paid by the incumbent cable operator serving the city.
   (C)   Notices from state franchisees. Any notice a state franchisee is required to deliver to the city by Cal. Pub. Util. Code Section 5840(m) must be delivered to the City Manager.
   (D)   Nothing in this chapter is intended to limit or restrict in any way the imposition of any existing or future generally applicable, nondiscriminatory, competitively neutral tax, fee, or charge to a state franchisee, city franchisee or the services the franchisees provide.
   (E)   Customer service provisions for state franchisees.
      (1)   All state franchisees must comply with all applicable state and federal laws and regulations regarding customer service and customer protection.
      (2)   The City Manager may review the performance of state franchisees for compliance with the customer service requirements specified in Cal. Pub. Util. Code Section 5900 (the “Customer Service Standards”).
      (3)   If the city believes a material breach of the customer service standards has occurred, the City Manager must give the state franchisee written notice of any alleged material breach(es). The state franchisee must remedy the specified material breach(es) no later than 30 days from receipt of the notice.
      (4)   If the state franchisee fails to remedy the specified material breach(es) within 30 days. the City Manager may impose monetary penalties on the following schedule:
         (a)   Up to $500 for each day of each material breach, not to exceed $1,500 for each occurrence of a material breach.
         (b)   For a second material breach of the same nature within 12 months, up to $1,000 for each day of each material breach, not to exceed $3,000 for each occurrence of the material breach.
         (c)   For a third or further material breach of the same nature within 12 months, up to $1,000 for each day of each material breach, not to exceed $3,000 for each occurrence of the material breach.
      (5)   Any monetary penalty imposed under this section may be appealed by the state franchisee to the City Council. Appeals must be received in writing by the City Clerk within 60 days of imposition of the penalty. The state franchisee may present any relevant written or oral evidence of its choice. The City Council may uphold or reverse, in whole or in part, the imposition of the monetary penalties.
   (F)   The City Manager shall ensure PEG transmissions, content, and programming provided by the city to a state franchisee is in a format compatible with the state franchisee's system. In the alternative, the transmissions, content, and programming may be provided in a industry standard format, in accord with Cal. Pub. Util. Code Section 5870(g)(1).
   (G)   For the duration of any city-issued franchise, if that franchisee has existing unsatisfied obligations under the franchise to pay to the city any cash payments for the ongoing costs of public, educational, and government access channel facilities or institutional networks, the fee payable by each city and state franchisee shall be the franchisee's pro rata per subscriber share of the cash payment required to be paid by the city franchisee to the city for the costs of PEG channel facilities.
      (1)   Within 45 days of receipt of the notice required by Cal. Pub. Util. Code Section 5840(n), each city and state franchisee must provide to the City Manager a written statement of the number of its subscribers within the franchisee's service area in the city.
      (2)   Within 45 days of receipt all franchisee subscriber number statements, the City Manager must calculate the division of the cash payments among all city and state franchisees, and provide written notice to each franchisee of the franchisee's share of the cash payment. This amount may expressed as a percentage of gross revenue or as an amount per subscriber, per month, or otherwise.
   (H)   Interconnection. To properly serve the city's interest in PEG programming, each state franchisee and city franchisee must comply with the PEG system interconnection requirements of Cal. Pub. Util. Code Section 5870. The City Manager, or his or her designee, may make any interconnection determinations of the city under Cal. Pub. Util. Code Section 5870, including requiring interconnection where the city franchisee and state franchisee fail to reach a mutually acceptable interconnection agreement.
(Ord. No. 2782, 2939, 2940)
ARTICLE V. DEFINITIONS
SEC. 23-55. DEFINED TERMS AND PHRASES.
   (A)   For purposes of this chapter, the following words shall have the following meanings.
      (1)   "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.
      (2)   "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:
         (a)   A facility that serves only to retransmit the television signals of one or more television broadcast stations;
         (b)   A facility that serves subscribers without using any public right-of-way;
         (c)   A facility of a common carrier that is subject, in whole or in part, to the provisions of Title II of the Communications Act, except that such facility will be considered a cable system (other than for purposes specified in Section 621(c) of the Communications 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;
         (d)   An open video system that complies with Section 653 of the Communications Act; or
         (e)   Any facilities of an electric utility that are used solely for operating its electric utility system.
      (3)   "Cable System Operator" means any person or group of persons:
         (a)   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
         (b)   Who otherwise controls or is responsible for, through any arrangement, the management and operation of that cable system.
      (4)   "Communications Act" means the Communications Act of 1934 (47 U.S.C. section 153 et seq.), 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.
      (5)   "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.
      (6)   "Franchise" means an initial authorization, or the renewal of an initial authorization, granted 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.
      (7)   "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:
         (a)   Any tax, fee, or assessment of general applicability (including any such tax, fee, or assessment imposed on both utilities and cable operators or their services, but not including a tax, fee, or assessment which is unduly discriminatory against cable operators or cable subscribers);
         (b)   Capital costs that are required by the franchise to be incurred by a grantee for public, educational, or governmental access.
         (c)   Requirements 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
         (d)   Any fee imposed under Title 17, United States Code.
      (8)   "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.
      (9)   "Grantee" means any person that is awarded a franchise in accordance with this chapter, and that person's lawful successor, transferee, or assignee.
      (10)   "Multichannel Video Programming Distributor" or "Video Programming Distributor" 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, that makes available multiple channels of video programming for purchase by subscribers or customers.
      (11)   "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 is authorized to operate in the city and complies with 47 CFR 1500 et seq., entitled "Open Video Systems."
      (12)   "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.
      (13)   "Public, Educational Or Government Access Facilities" or "PEG Access Facilities," means the total of the following:
         (a)   Channel capacity designated for noncommercial public, educational, or government use; and
         (b)   Facilities and equipment for the use of that channel capacity.
      (14)   "Subscriber" or "Customer" or "Consumer" means any person who, for any purpose, subscribes to the services provided by a multichannel video programming distributor and who pays the charges for those services.
      (15)   “State Franchisee” means any holder of a state-issued video franchise operating in the city, as defined in Cal. Pub. Util. Code Section 5830(p).
      (16)   "Street" or "Public Right-of-Way" means any public property, including each of the following that has been dedicated to the public or to public use 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.
      (17)   "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 as sent and received.
      (18)   "Telecommunications Equipment" means equipment, other than customer premises equipment, used by a telecommunications service provider to provide telecommunications service, including software that is integral to that equipment.
      (19)   "Telecommunications Service" means the offering 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 used.
      (20)   "Telecommunications Service Provider" means any provider of telecommunications service.
      (21)   "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.
      (22)   "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 mobile home, 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 and 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.
   (B)   Unless otherwise expressly stated, words, terms, and phrases not defined in this chapter will be given the meaning as used in Title 47 of the United States Code, as amended, and, if not defined in that code, the meaning as used in Title 47 of the CFR.
(Ord. No. 2650, 2782)
ARTICLE VI. VIOLATIONS; SEVERABILITY
SEC. 23-65. VIOLATIONS; ENFORCEMENT.
   (A)   Any person who violates any provision of this chapter is guilty of a misdemeanor and is punishable as provided for in this Code.
   (B)   The misdemeanor penalty specified above in subsection (A) is not applicable to a violation of any provision of this chapter 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.
(Ord. No. 2650)
SEC. 23-66. 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 be reasonably required for the video or telecommunications service provider to comply with that provision.
(Ord. No. 2650)