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HomeMy WebLinkAboutOrd 2012-3230ORDINANCE NO. 3230 ORDINANCE OF THE CITY OF CHULA VISTA AMENDING CHULA VISTA MUNICIPAL CODE CHAPTER 5.52, "PAY TELEVISION," AND ADDING CHAPTER 5.53, "STATE VIDEO FRANCHISES" IN ACCORDANCE WITH THE CALIFORNIA DIGITAL INFRASTRUCTURE AND VIDEO COMPETITION ACT OF 2006 WHEREAS, the State of California enacted the Digital Infrastructure and Video Competition Act ("DIVCA") in 2006 (California Public Utilities Code sections 5800, et seq.); and WHEREAS, DIVCA establishes a regulatory structure for the State to issue franchises to video service providers who seek to provide video service in a local jurisdiction, whether they already hold local franchises, or are new providers; and WHEREAS, DIVCA requires a provider who holds astate-issued franchise to remit 5% of gross revenues to the local entity; and WHEREAS, DIVCA requires a state franchise holder to designate a sufficient amount of capacity on its network to allow the provision of at least three Public, Educations and Governmental ("PEG") access channels and requires the franchise holder to pay a fee, if established by ordinance of the local entity, to support PEG channel facilities; and WHEREAS, DIVCA requires the City to: (i) either approve or deny an application for a permit relating to construction or operation of DIVCA facilities within 60 days; (ii) furnish a detailed explanation to the applicant of a decision to deny a permit; and (iii) adopt regulations prescribing procedures for an applicant to appeal the denial to the City Council; and WHEREAS, DIVCA requires the City to enforce the DIVCA customer service and protection standards with respect to complaints received from City residents and adopt a schedule of penalties for material breach by a state franchise holder of the customer service standards specified in DIVCA; and WHEREAS, the proposed ordinance would amend Title 5 of the Chula Vista Municipal Code, "Cable, Video and Telecommunications Service," consistent with the provisions of DIVCA. Ordinance No. 3230 Page No. 2 NOW, THEREFORE, BE IT ORDAINED that the City of Chula Vista does hereby find and determine that: Section 1. Chapter 5.52 of the Chula Vista Municipal Code is hereby amended as follows: 1. Replace the Chapter title in its entirety with the following: "Cable, Video, and Telecommunications Service Providers." 2. Add Section 5.52.050, entitled "State Franchises," at the end of the Chapter to read as follows: "The Digital Infrastructure and Video Competition Act of 2006 ("DIVCA"), codified in California Public Utilities Code Sections 5800, et seq., took effect on January 1, 2007. Chula Vista Municipal Code Chapter 5.53 was adopted in accordance with DIVCA. To the extent that a service provider obtains a state franchise in accordance with DIVCA, the terms of DIVCA and Chapter 5.53 shall govern and shall be the controlling authority over this Chapter." Section 2. Chapter 5.53 is added to the Chula Vista Municipal Code to implement the provisions of the Digital Infrastructure and Video Competition Act of 2006 (California Public Utilities Code Sections 5800, et seg. ), to read as follows: "STATE VIDEO FRANCHISES Sections: 5.53.010 Purpose. 5.53.020 Public Interest. 5.53.030 Franchise Requirement. 5.53.040 PEG Channels and Fee. 5.53.050 Franchise Fee. 5.53.060 Late Fee. 5.53.070 Authority to Examine Records. 5.53.080 Customer Service Penalties Under State Video Franchises. 5.53.090 City Response to State Video Franchise Applications. 5.53.100 Interconnection. 5.53.110 Emergency Alert System and Emergency Overrides. 5.53.120 Encroachment Permits. 5.53.010 Purpose. This Chapter is adopted to regulate video service providers holding state video franchises and operating within the City of Chula Vista pursuant to the Digital Infrastructure and Video Competition Act of 2006 ("DIVCA"), codified at California Public Utilities Code Sections 5800, et seq. This Chapter shall be construed in a manner consistent with DIVCA and the rules promulgated under DIVCA by the Califomia Public Utilities Commission. Ordinance No. 3230 Page No. 3 5.53.020 Public Interest. The full deployment of a robust wired and wireless digital infrastructure, and public, educational and governmental access serves a vital and compelling public interest of the City and promotes the public health, safety and welfare of the City. The encouragement of the development of wired and wireless digital infrastructure with public access within the City serves a vital and compelling public interest of the City. That public interest includes but is not limited to being a critical component of the future prosperity and communication demands for a vibrant local business, educational and healthcare system, as well as access to an open and transpazent government in the digital age. In addition, the City's participation in ensuring the development and maintenance of state of the art infrastructure, public access, customer service standards and an emergency broadcast system serves the public interest by ensuring that such development will reflect the needs and objectives of the community more so than if such development and maintenance were undertaken without City participation. 5.53.030 Franchise Requirement A. Any person or corporation who seeks to provide video service in the City, who is not already providing service pursuant to Chapter 5.52, must first obtain astate- issued franchise. B. This Chapter shall apply to all video service providers holding state- issued franchises to operate within the City, including those who previously held local franchises and subsequently obtained state-issued franchises. C. A video service operator who obtains astate-issued franchise must notify the City that it will be providing service pursuant to that franchise, at least ten days prior to beginning to offer service in the City. 5.53.040 PEG Channels and Fee. A. Capacity Desi ng anon. A state video franchise holder that uses the public rights-of--way shall designate sufficient capacity on its network to enable the carriage of at least three public, educational, and governmental ("PEG") access channels. These channels shall comply with all DIVCA requirements, including but not limited to the following: 1. PEG access channels shall be for the exclusive use of the City or its designees to provide public, educational, or governmental programming. 2. Advertising, underwriting, or sponsorship recognition may be carried on the PEG access channels for the purpose of funding PEG-related activities. 3. The PEG access channels shall be carried on the basic service tier and shall be of similaz quality and functionality to that offered by commercial channels on the lowest cost tier of service unless the signal is provided to the video service provider at a lower quality or with less functionality, as provided in subsection (g)(3) of section 5870 of the California Public Utilities Code. Ordinance No. 3230 Page No. 4 4. To the extent feasible, the PEG access channels shall not be separated numerically from other channels carried on the basic service tier, and the channel numbers for the PEG access channels shall be the same channel numbers used by the incumbent cable operator unless prohibited by federal law. 5. After the initial designation of PEG access channel numbers, the channel numbers shall not be changed without the prior written consent of the City, unless the change is required by federal law. 6. Each PEG access channel shall be capable of carrying a National Television System Committee television signal, as provided in Public Utilities Code section 5870(b). B. Fee for Support of Local Cable Usage. A fee paid to the City is hereby established for the support of PEG channel facilities consistent with state and federal law. This fee shall be the maximum amount allowed by law, which is currently one percent (1%) of a state video franchise holder's gross revenues, as defined in California Public Utilities Code Section 5860 (the "PEG Fee"). The PEG Fee shall be remitted quarterly to the City Treasurer and must be received not later than 45 days after the end of the preceding quarter. The PEG Fee payment shall be accompanied by a summary that explains the basis for the calculation of the PEG Fee for local cable usage. This PEG Fee shall commence on July 1, 2012. The City Council may decrease or increase the amount of the PEG Fee, up to the maximum amount allowed by law, by resolution. 5.53.050. Franchise Fee. In addition to the PEG Fee in section 5.53.040.B., above, a State video franchise holder operating in the City shall pay to the City a franchise fee that is equal to five percent (5%) of the gross revenues of that State video franchise holder. The term "gross revenues" shall be defined as set forth in Public Utilities Code section 5860. This fee shall be remitted quarterly to the City Treasurer and must be received not later than 45 days after the end of the preceding calendar quarter. The fee payment shall be accompanied by a summary that explains the basis for the calculation of the franchise fee. Unless construed otherwise by applicable law, the phrase "summary that explains the basis for the calculations," as used herein and above in section 5.53.040.B., means the identification of the sources of revenue upon which the fee is based. 5.53.060 Late Fee. In the event a state video franchise holder does not pay the fees required by this chapter when due, the holder shall pay a late payment charge at a rate per year equal to the highest prime lending rate during the period of delinquency, plus 1 percent. 5.53.070 Authority to Examine Records. Not more than once annually, the appropriate City department may examine the business records of a holder of a state video franchise to ensure compliance with Sections 5.53.040 and 5.53.050. Ordinance No. 3230 Page No. 5 5.53.080 Customer Service Penalties Under State Video Franchises. A. The holder of a state video franchise shall comply with the provisions of California Government Code sections 53055, 53055.1, 53055.2 and 53088.2; the FCC customer service and notice standazds set forth in sections 76.309, 76.1602, 76.1603 and 76.1619 of Title 47 of the Code of Federal Regulations; Section California Penal Code section 637.5; the privacy standards of United States Code, Title 47, section 551; and all other applicable State and Federal customer service and protection standards pertaining to the provision of video service. B. The City shall enforce, in the manner set forth in DIVCA, all customer service and protection standazds contained in DIVCA section 5900, as may be amended from time to time. C. The City Manager, or designee, will provide to the State video franchise holder written notice of any material breaches of applicable customer service and protection standards, pursuant to DIVCA section 5900. The City will allow the State video franchise holder 30 days from receipt of the notice to remedy the specified material breach. Material breaches not remedied within the 30-day time period will be subject to monetary penalties to be imposed by the City and assessed by the City Manager, or designee, up to the amounts set forth below: 1. For the first occurrence of a material breach, a monetary penalty up to $500 shall be imposed for each day of each material breach, not to exceed $1,500 for each material breach. 2. For a second material breach of the same nature within twelve months for which the City previously provided notice, a monetary penalty up to $1,000 shall be imposed for each day of each material breach, not to exceed $3,000 for each material breach. 3. For a third or further material breach of the same nature within twelve months, a monetazy penalty up to $2,500 shall be imposed for each day of each material breach, not to exceed $7,500 for each material breach. D. A State video franchise holder may appeal a penalty assessed by the City Manager to the City Council. An appeal must be submitted in writing to the City Clerk within 60 days after notice of the penalty is sent to the assessed franchise holder, or the right to appeal shall be deemed waived. An appeal must detail the reasons why the appellant believes the imposition of penalties is inconsistent with DIVCA. The City Council shall heaz all evidence and relevant testimony and may uphold, modify or vacate the penalty. The City Council's decision on the imposition of a penalty shall be final. 5.53.90 City Response to State Video Franchise Applications. A. Applicants for state video franchises within the boundaries of the City must concurrently provide to the City complete copies of any application or amendments to applications filed with the California Public Utilities Commission. One complete copy must be provided to the City Clerk for distribution to the City Manager and City Attorney. Ordinance No. 3230 Page No. 6 B. The City will provide any appropriate comments to the California Public Utilities Commission regarding an application or an amendment to an application for a state video franchise. 5.53.100 Interconnection. Where technically feasible, a state video franchise holder and an incumbent cable operator shall negotiate in good faith to interconnect their networks for the purpose of providing PEG access channel programming. Interconnection may be accomplished by direct cable, microwave link, satellite, or other reasonable method of connection. State video franchise holders and incumbent cable operators shall provide interconnection of the PEG access cannels on reasonable terms and conditions and may not withhold the interconnection. If a state video franchise holder and an incumbent cable operator cannot reach a mutually acceptable interconnection agreement, the City may require the incumbent cable operator to allow the state video franchise holder to interconnect its network with the incumbent's network at a technically feasible point on the holder's network as identified by the holder. If no technically-feasible point for interconnection is available, the state video franchise holder shall make an interconnection available to the channel originator and shall provide the facilities necessary for the interconnection. The cost of any interconnection shall be borne by the state video franchise holder requesting the interconnection unless otherwise agreed to by the parties. 5.53.110 Emergencv Alert Svstem and Emergencv Overrides. A state video franchise holder must comply with the Emergency Alert System requirements of the Federal Communications Commission in order that emergency messages may be distributed over the holder's network. 5.53.120 Encroachment Permits. A. As provided in DIVCA section 5885, the City shall either approve or deny an application from a state video service franchise holder for an encroachment permit within sixty days of receiving a completed permit application. An application will not be considered complete until the applicant has complied with all statutory requirements, including California Public Utilities Code sections 21000, et seq. (the California Environmental Quality Act), the Chula Vista Municipal Code, and other applicable City ordinances. B. For purposes of this section, "encroachment permit" means any permit issued by the City for constmction or operation of facilities pursuant to DIVCA. C. If the City denies an application for an encroachment permit, it will provide the applicant a detailed explanation of the reason for the denial. The applicant may appeal the denial in the manner established in section 15.04.260 of this Municipal Code. Ordinance No. 3230 Page No. 7 Section 3. Severability. If any section, subsection, sentence, clause, phrase or word of this ordinance is for any reason held to be invalid of unconstitutional by a court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of the ordinance. Section 4. Effective Date This ordinance will take effect and be in force thirty days after its final passage. Presented by Approved as to form by _ /`_~ , Iu1 ~tchaTt"ti-T:7GT2c7iuri - -_ _ _ -~" GI R. Goo ms 1 Director of Economic Development City y PASSED, APPROVED, and ADOPTED by the City Council of the City of Chula Vista, California, this 12th day of June 2012, by the following vote: AYES: Councilmembers: Aguilar, Bensoussan, Castaneda, Ramirez and Cox NAYS: Councilmembers: None ABSENT: Councilmembers: None L/ Cheryl Cox, or ATTEST: ~bkccca`. ~ 0 iSht ~l Donna R. Norris, CMC, City Clerk STATE OF CALIFORNIA COUNTY OF SAN DIEGO CITY OF CHULA VISTA I, Donna R. Norris, City Clerk of Chula Vista, California, do hereby certify that the foregoing Ordinance No. 3230 had its first reading at a regular meeting held on the 22nd day of May 2012 and its second reading and adoption at a regular meeting of said City Council held on the 12th day of June 2012; and was duly published in summary form in accordance with the requirements of state law and the City Charter. Date Donna R. Norris, CMC, City Clerk