HomeMy WebLinkAboutOrd 1991-2435A-1 NOT APPROVED
ORDINANCE NO. 2435A-1
ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA
PROHIBITING, AS AN URGENCY MATTER, THE CHARGING FEES TO
CABLE OPERATORS AS A CONDITION TO OBTAINING ACCESS TO
MAIN UTILITY TRENCHES.
WHEREAS, certain and various persons responsible for developing property
{"Developers") within the limits of the City of Chula Vista have recently
adopted the practice of charging Chula Vista cable operators ("Cable
Operators") a fee {"Trench Access Fee") for allowing the cable operators the
right to lay their own cable conduit and wires in the main utility trench
("Main Utility Trench") prepatory to providing customers with cable service;
and,
WHEREAS, the Staff has determined, and the Council hereby finds and
determines that such Developers requiring the trenching or retrenching of the
Main Utility Trench are usually obligated by zoning or other lawfully imposed
regulation, at their sole cost and expense, to do such trenching or
retrenching, a lawful condition of their development, in order to place
utilites underground in the Main Utility Trench; and,
WHEREAS, the charging of Trench Access Fees to Cable Operators involves a
cost distribution policy choice within the subject matter of the City's
authority to regulate the cable television industry; and,
WHEREAS, the cost distribution policy choice is whether the cost of
providing such trench is more appropriately distributed to the existing
subscriber base of the Cable Operator or to the specific home buyer or buyers
who will be served by, or who will have the opportunity to be served by, said
trench; and,
WHEREAS, Staff has determined, and Council hereby finds and determines,
that the fair and proper cost distribution policy choice is one in which the
cost of the trench is spread to the home buyer benefitring by the existence of
the trench and not the cable subscriber base; and,
WHEREAS, Staff has determined, and Council hereby finds and determines,
that the main utility trench, and the public right of way in which it is
located, either has been at the time of trenching, or will be shortly
thereafter, dedicated in fee to the City of Chula Vista. As a result of that,
the City Council hereby finds and determines that the Main Utility Trench is a
municipal asset and is therefore subject to the control and ownership of the
City. It is not an asset from which persons, other than the City, should
benefit;
Ordinance No. 2435A-1 '
Page 2
WHEREAS, the charging of Trench Access Fees to Cable Operators operates
as a constraint on the access of cable operators to the cable customer; and,
WHEREAS, the City Council finds a legitimate governmental purpose in
allowing its residents to have freer access to franchised cable operators; and,
WHEREAS, the charging of Trench Access Fees to Cable Operators operates
as a limitation of competition among cable operators; and,
WHEREAS, the City Council finds a legitimate governmental purpose in
promoting competition among cable operators in order to provide higher
quality, lower costs cable service; and,
WHEREAS, the City Council finds that the legislative intent of the Cable
Communications Act of 1984 ("Cable Act"), Section 541 (2) (B) was to
distribute a cost of installation as between the City and the cable operator,
and was not intended to apply as between the cable operator and a property
developer, and therefore finds that the Cable Act has not preempted its
authority in this matter; and,
WHEREAS, the authority of the City Council to regulate the cost of
trenching as between the cable operator and a developer is akin to the
authority of other regulatory agencies, such as the Public Utilities
Commission;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF CHULA VISTA DOES HEREBY
ORDAIN AS FOLLOWS:
Section 1. Main Utility Trench Access Fees Prohibited.
No individual, partnership, firm, corporation, or trust may charge a
community antenna television ("CATV") cable provider authorized to
provide CATV service within the City of Chula Vista by the City Council
("Cable Operator") any fee for the right of access to, or the right to
lay cable conduit or cable in, a Main Utility Trench designed and/or
constructed to provide either the electric, gas or telephone utility, or
all or any combination of such utilities.
Section 2. Private Cause of Action.
This ordinance shall be enforceable as a private cause of action by
aggrieved parties. The City itself also has the right to enforce such
conditions, but is not compelled to do so.
Section 3. Immediate Effective Date; Urgency Finding.
The City Council finds that it is necessary in order to protect and
preserve the public peace, heal th, safety, and welfare from immediate
violation and injury, to introduce and adopt this ordinance at one and
the same meeting. Specifically, the City Council finds that the
Ordinance No. 2435A-1
Page 3
imposition of trench access fees on at least one of its franchised cable
operators will seriously threaten the ability of the operator to
economically survive, and thereby remove an effective cable competitor
from providing a necessary utility to its residences. Accordingly, this
ordinance shall take and be in full force and effect immediately upon the
introduction and adoption thereof, by the four affirmative votes of the
City Council.
Presented by: Approved as to form by
Lyman Christopher Bruce M. Boogaard
Finance Director City Attorney