Loading...
HomeMy WebLinkAboutORD-14-07 Add Ch 13.82 & Amend Title of Ch 13.82ORDINANCE NO. 14- 07 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ORANGE AMENDING ARTICLE III CABLE TELEVISION SYSTEM) OF TITLE 13 OF THE CITY OF ORANGE MUNICIPAL CODE BY ADDING A NEW CHAPTER 13.81 AND AMENDING THE TITLEOF CHAPTER 13. 82.WHEREAS, historically video service providers, such as cable television, were required to enter into a franchise agreement with a local agency in order to provide service within that agency's jurisdiction; and WHEREAS, with the rapid advancement of technology, other telecommunications and telephone providers have begun to enter the market to provide video services via direct fiber connections to homes and businesses; and WHEREAS, the construction of direct fiber infrastructure will require a significant investment by the providers and has been the subject of intense debate as to whether the new technology is subject to the same historical franchising requirements; and WHEREAS, in 2006 the California Legislature adopted Assembly Bill 2987, the Digital Infrastructure and Video Competition Act of 2006 (the Video Act) which became effective January 1,2007; and WHEREAS, under the Video Act any entity using the public right-of-way at least in part to provide video service (programming services, cable service or open video services) has the choice of obtaining a franchise with the local agency or a state franchise until January 1,2008,after which a state franchise must be obtained; and WHEREAS, under the new law, a holder of a state franchise may be charged a franchise fee of five percent of its gross revenue from subscribers within the City's limits, or the percentage of gross revenue currently paid by incumbent City cable operators, whichever is less;and WHEREAS, the City's two incumbent cable franchisees pay 5% of their gross revenue for the right to use public streets and other rights-of-way for their cable systems; and WHEREAS, the Video Act permits the City to adopt an ordinance requiring a state franchisee to pay an additional one percent of gross revenue for Public, Educational and Government (PEG) purposes; and WHEREAS, pursuant to the Video Act the Public Utilities Commission (PUC) may begin granting state video no later WHEREAS, because the PUC will now be granting state video franchises and the City has received notice from AT&T of its intent to provide video services to City customers, the City must act quickly to preserve the rights and interests of City residents; and WHEREAS, the proposed ordinance will have the following effects: 1) specifying that the City will claim a five percent franchise fee and a one percent fee for PEG purposes; 2) granting authority to the City to conduct financial audits of state franchise holders; 3) authorizing the City to assess penalties for non-compliance with state and federal customer service rules,with a right to appeal; 4) specifying how notice must be given to the City by a state video franchise applicant when applying for or amending a state franchise; and 5) extending current City franchises until at least January 2,2008; and WHEREAS, the City desires that such ordinance take effect immediately upon its adoption in accordance with Section 36934 of the California Government Code.NOW THEREFORE, the City Council of the City of Orange does ordain as follows:SECTION I:Article III (Cable Television System) of Title 13 of the City of Orange Municipal Code is amended by adding a new Chapter 13.81 to read as follows: Sections:13.81. 010.13.81. 020 13.81. 030 13.81. 040 13.81. 050 13.81. 060 13.81. 070 13.81. 080 13.81. 090 13.81. 010.Chapter 13. 81 PROVISIONS APPLICABLE TO HOLDERS OF STATE VIDEO FRANCHISES Fee for Support of PEG Access Facilities and Activities.Franchise Fee.Audit Authority.Customer Service Penalties Under State Video Franchises.City Response to State Video Franchise Applications.PEG Access Channel Capacity. Interconnection.Emergency Alert System and Emergency Overrides.Encroachment Permit Applications.Fee for Support of PEG Access Facilities and Activities.A. A fee paid to the City is hereby established for the support of Public, Educational,and Governmental (PEG) access facilities and activities within the City, which fee shall be paid by any new City-franchised cable operator and by state video franchise holders operating within the City. Unless a higher percentage is authorized by applicable state or federal law, this fee shall be one percent (I %) of a franchisee's gross revenues derived from the provision of services within the City. The term gross revenues shall be defined as set forth in California Public Utilities Code section 5860. B. The fee established by this section 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 describes all sources of the gross revenues upon which the fee is based, which summary must be verified by a responsible financial officer or employee of the video service provider. 13.81.020 Franchise Fee. 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. 13.81.030 Audit Authority. Not more than once annually, the City may examine and perform an audit of the business records of a holder of a state video franchise to ensure compliance with all applicable statutes and regulations related to the computation and payment of franchise fees. 13.81.040 Customer Service Penalties Under State Video Franchises. A. The holder of a state video franchise shall comply with all applicable state and federal customer service and protection standards pertaining to the provision of video service. B. The City shall monitor a state video franchise holder's compliance with state and federal customer service and protection standards. The City will provide to the state video franchise holder written notice of any material breaches of applicable customer service and protection standards, and 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 the following monetary penalties to be imposed by the City in accordance with state law: I. For the first occurrence of a violation, a monetary penalty of $500 shall be imposed for each day the violation remains in effect, not to exceed $1,500 for each violation. 2. For a second violation of the same nature within 12 months, a monetary penalty of $1,000 shall be imposed for each day the violation remains in effect, not to exceed 3,000 for each violation. 3. For a third or further violation of the same nature within 12 months, a monetary penalty of $2,500 shall be imposed for each day the violation remains in effect, not to exceed $7,500 for each violation. C. A state video franchise holder may appeal a monetary penalty assessed by the City within 60 days. After relevant evidence and testimony is received, and staff reports are 3 submitted, the City Council will vote to either uphold or vacate the monetary penalty. The City Council's decision on the imposition of a monetary penalty shall be final. 13.81.050 City Response to State Video Franchise Applications. A. Applications 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 Manager. B. Commission franchise. The City will provide any appropriate comments to the California Public Utilities regarding an application or an amendment to an application for a state video 13.81.060 PEG Access Channel Capacity. A. 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 PEG access channels.B. Additional requirements relating to PEG access channels are as follows:I. A state video franchise holder is subject to payment of the PEG support fee specified above in Section13. 81.010.2. PEG access channels shall be for the exclusive use of the City or its designees to provide public, educational, or governmental programming.3. Advertising, underwriting, or sponsorship recognition may be carried on the PEG access channels for the purpose offunding PEG-related activities.4. The PEG access channels shall be carried on the basic service tier.5. 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.6. 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.7. Each PEG access channel shall be capable of carrymg a National Television System Committee ( NTSC) 13.81.070 Interconnection. Where technically feasible, a state video franchise holder and 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 channels 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. Ifno 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. 13.81.080 Emergency Alert System and Emergency 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. Provisions in City-issued franchises authorizing the City to provide local emergency notifications shall remain in effect, and shall apply to all state video franchise holders in the City for the duration of the City-issued franchise, or until the term of the franchise would have expired had it not been terminated pursuant to subdivision (m)of Section 5840 of the California Public Utilities Code, or until January I, 2009, whichever is later.13.81.090 Encroachment Permit Applications.A. As used in this section, the term encroachment permit means any permit issued by the City relating to construction or operation of facilities by the holder of a state video franchise.B. The City shall either approve or deny an application from a holder of a state video franchise for an encroachment permit within 60 days of receiving a completed application.C. If the City denies an application for an encroachment permit, the City shall, at the time of notifying the applicant of the denial, furnish to the applicant a detailed explanation of the reason for the denial. An applicant may appeal the City's denial of an encroachment permit application to the City Council. A written notice of appeal stating the facts of the matter and the grounds for appeal shall be filed with the City Clerk within ten days of the denial. The City Clerk shall set the matter for hearing at a regular meeting of the City Council and shall give the appellant written notice of the time and place of hearing at least five days before the hearing.The decision of the City Council taken after the appellant has had an opportunity to be heard will be SECTION II: The Title of Chapter 13.82 of the Orange Municipal Code is amended to read as follows: FRANCHISE REGULATIONS FOR VIDEO SERVICE PROVIDERS WITH A CITY FRANCHISE SECTION III: Should any section, subsection, clause, or provision of this Ordinance for any reason be held to be invalid or unconstitutional, such invalidity or unconstitutionality shall not affect the validity or constitutionality of the remaining portions of this Ordinance; it being hereby expressly declared that this Ordinance, and each section, subsection, sentence, clause and phrase hereof would have been prepared, proposed, approved and ratified irrespective of the fact that anyone or more sections, subsections, sentences, clauses or phrases be declared invalid or unconstitutional. SECTION IV: A summary of this Ordinance shall be published and a certified copy of the full text of this Ordinance shall be posted in the Office of the City Clerk at least five (5) days prior to the City Council meeting at which this Ordinance is to be adopted. A summary of this Ordinance shall also be published once within fifteen (15) days after this Ordinance's passage in a newspaper of general circulation, published, and circulated in the City of Orange, The City Clerk shall post in the Office of the City Clerk a certified copy of the full text of such adopted Ordinance along with the names of those City Council members voting for and against the Ordinance in accordance with Government Code Section 36933. This Ordinance shall take effect thirty (30) days from and after the date of its final passage. ADOPTED this 10th day of July, 2007. ATTEST: itn..-II 0'J (-\ fj, y, j 0' /1/':1,;.,1-,/Murphy, City Clerk; City 0 Orange 6 STATE OF CALIFORNIA ) COUNTY OF ORANGE ) CITY OF ORANGE ) I, MARY E. MURPHY, City Clerk of the City of Orange, California, do hereby certify that the foregoing Ordinance was introduced at the regular meeting of the City Council held on the 26th day of June, 2007, and thereafter at the regular meeting of said City Council duly held on the 10th day of July, 2007, was duly passed and adopted by the following vote, to wit: AYES: NOES: ABSENT: ABSTAIN: COUNCILMEMBERS: Smith, Murphy, Cavecche, Dumitru, Bilodeau COUNCILMEMBERS: None COUNCILMEMBERS: None COUNCILMEMBERS: None 1 , F.\ c7?mj(ij~"L ..... J(u~(tL, . 't~/l-h7 4:~v Mary E:'Murphy, City Clerk, City of Orange LI