Loading...
HomeMy WebLinkAboutOrdinance 2614 - Cable FranchisesORDINANCE NO. 2614 AN ORDINANCE OF THE CITY OF REDDING AMENDING TITLE 6 (BUSINESS TAXES, LICENSES AND REGULATIONS) BY REPEALING CHAPTER 6.40 (THE GRANTING OF FRANCHISES FOR CABLE COMMUNICATIONS SYSTEMS) AND REPLACING SAID CHAPTER BY ENACTING CHAPTER 6.40 (REGULATION OF STATE VIDEO FRANCHISE HOLDERS), SECTIONS 6.40.010 THROUGH 6.40.190, INCLUSIVE, IN ORDER TO PROVIDE FOR REGULATION AND ADMINISTRATION OF STATE VIDEO FRANCHISE HOLDERS WHEREAS, in 2006, the California Legislature passed the Digital Infrastructure and Video Competition Act of 2006 ("DIVCA"), Public Utilities Code Section 5800 et seq., which went into effect on January 1, 2007; and WHEREAS, pursuant to DIVCA, the State of California has sole franchising authority for video service providers ("Video Service Providers") that are operating within the City of Redding pursuant to DIVCA; and WHEREAS, under DIVCA, the City of Redding may, by ordinance, enforce certain regulations of Video Service Providers who have obtained a state franchise under DIVCA ("State Video Franchise Holders"); and WHEREAS, DIVCA provides that State Video Franchise Holders operating within the City shall pay to the City certain fees, including a fee for Public, Educational and Governmental ("PEG") purposes, if established by City of Redding ordinance, and the establishment and enforcement of penalties by the City of Redding for violations of customer service rules by State Video Franchise Holders; NOW, THEREFORE, BE IT RESOLVED THAT THE CITY COUNCIL OF THE CITY OF REDDING DOES ORDAIN AS FOLLOWS: Section 1. Chapter 6.40 (The Granting of Franchises for Cable Communications Systems) is hereby repealed in its entirety and is replaced by adding Chapter 6.40 (Regulation of State Video Franchise Holders) with a title to read as follows: REGULATION OF STATE VIDEO FRANCHISE HOLDERS Sections: Section 6.40.010 Section 6.04.020 Section 6.40.030 Section 6.40.040 Section 6.40.050 Section 6.40.060 Purpose Definitions Rights Reserved Compliance Franchise Required Franchise Fee Section 6.40.070 Section 6.40.080 Section 6.40.090 Section 6.40.100 Section 6.40.110 Section 6.40.120 Section 6.40.130 Section 6.40.140 Section 6.40.150 Section 6.40.160 Section 6.40.170 Section 6.40.180 Section 6.40.190 PEG Channels and PEG Fee Form of Payment Customer Service Penalties Encroachment On Public Rights -of -Way Application Decision Request to Appeal Notice of Hearing Time of Hearing Hearing Undergrounding and Relocation Changes Required by Public Improvements Restoration of Property Tampering and Unauthorized Connections Section 2. Title 6 of the Redding Municipal Code is amended to add Sections 6.40.010 through 6.40.190, inclusive, to Chapter 6.40 as follows: 6.40.010 Purpose. A. The purpose of this Chapter is to implement the provisions of the Digital Infrastructure and Video Competition Act of 2006 (Public Utilities Code Section 5800 et seq.) that are applicable to the City of Redding. B. Nothing herein is intended to affect the authority of the City of Redding to regulate existing or future cable franchisees in accordance with the Redding Municipal Code and to regulate and enforce the cable franchise currently in effect until such time as the cable franchisee no longer holds a City of Redding franchise or is no longer operating under a current or expired City of Redding franchise. Upon the lapse of an existing franchise the requirements of this Chapter shall apply. 6.40.020 Definitions. A. "Director" means the Director of Public Works, or such other director designated by the City Manager to administer this Chapter. B. "DIVCA" means the Digital Infrastructure and Video Competition Act of 2006, California (Public Utilities Code Section 5800 et seq.) as may be amended. C. "Franchise Fee" shall have the same meaning as the term is defined in California Public Utilities Code Section 5840, as may be amended. D. "Gross Revenues" shall have the same meaning as the term is defined in California Public Utilities Code Section 5860, as may be amended. E. "Material Breach" shall have the same meaning as the term is defined in California Public Utilities Code Section 5900, as may be amended. F. "PEG" means public, educational, and government access. G. "State Video Franchise Holder" means a person or legal entity that has been issued a State franchise by the California Public Utilities Commission to provide Video Service pursuant to DIVCA and that operates within the City of Redding. H. "Video Service" shall have the same meaning as the term is defined in California Public Utilities Code Section 5830, as may be amended. I. "Video Service Provider" shall have the same meaning as the term is defined in California Public Utilities Section 5830, as may be amended. 6.40.030 Rights Reserved. The rights reserved to the City of Redding under this Chapter are in addition to all other applicable rights of the City of Redding, whether reserved by other provisions of the Redding Municipal Code or as otherwise authorized by law, and no action, proceeding, or exercise of a right shall affect any other rights which may be held by the City of Redding. 6.40.040 Compliance. Nothing contained in this Chapter shall be construed to exempt a State Video Franchise Holder from compliance with all applicable ordinances, rules, or policies of the City of Redding now in effect or which may be hereafter adopted which are not inconsistent with this Chapter or DIVCA. 6.40.050 Franchise Required. It is unlawful to provide Video Service within the City of Redding without a valid franchise obtained pursuant to the DIVCA. 6.40.060 Franchise Fee. A. Each State Video Franchise Holder shall pay to the City of Redding a Franchise Fee that is equal to five percent (5%) of its Gross Revenues. B. The Franchise Fee shall be due to the City of Redding and paid to the Director of Finance in accordance with DIVCA. C. If the State Video Franchise Holder does not pay the Franchise Fee when due, the State Video Franchise Holder shall pay the City of Redding a late payment equal to the amount set forth in Public Utilities Code Section 5860, as may be amended. D. Not more than once annually, the City of Redding may examine the business records of the State Video Franchise Holder to the extent reasonably necessary to ensure the payment of all Franchise Fees. The State Video Franchise Holder shall retain all business records reflecting any gross revenues, even if there is a change in ownership, for at least four (4) years after those revenues are recognized by the State Video Franchise Holder on its books and records. 6.40.070 PEG Channels and PEG Fee. A. Each State Video Franchise Holder shall designate a sufficient amount of capacity on its network to allow PEG access channels for the exclusive use of the City of Redding. The number of PEG access channels shall be determined consistent with the requirements of Public Utilities Code Section 5870, as may be amended. The content of each PEG channel shall be the responsibility of the City of Redding, or its designee. B. Pursuant to Public Utilities Code Section 5870, as may be amended, each State Video Franchise Holder shall pay to the City of Redding a fee that is equal to one percent (1%) of its Gross Revenues (the "PEG Fee"). The PEG Fee shall, except as may be required by state or federal statute or regulation, be in addition to the Franchise Fee set forth in Section 6.40.060. C. The PEG Fee shall be due to the City of Redding and paid to the Director of Finance in accordance with DIVCA. 6.40.080 Form of Payment. State Video Franchise Holders shall pay the Franchise Fee separately from the PEG Fee referenced in this Chapter to the City of Redding. Payment may be made in the form of a check or by other means approved by the City of Redding Director of Finance. 6.40.090 Customer Service Penalties. A. State Video Franchise Holders shall comply with all applicable state and federal customer service and protection standards pertaining to the provision of Video Service. B. The City Manager or his or her authorized designee is authorized to enforce State Video Franchise Holders' compliance with state and federal customer service and protection standards. C. For purposes of this Chapter, written notices to be given to a State Video Franchise Holder shall be sufficient if given either by personal delivery thereof to the State Video Franchise Holder or by deposit in the United States Mail, in a sealed envelope postage prepaid, addressed to the State Video Franchise Holder at its last known address as the same appears in the public records or other records pertaining to the matter to which such notice is directed. D. The City Manager or his or her authorized designee shall provide written notice of any Material Breaches of applicable customer service standards to the State Video Franchise Holder. E. The State Video Franchise Holder shall have thirty (30) calendar days from receipt of the City Manager's written notice to remedy the specified Material Breach. F. Material Breaches not remedied within the thirty (30) day time period shall be subject to the following monetary penalties to be imposed by the City Manager, or his/her designee, in accordance with Public Utilities Code Section 5900. The City Manager shall, by written notice to the State Video Franchise Holder, specify the amount of the penalty and the due date for payment. 1. For the first occurrence of a violation, a monetary penalty of Five Hundred Dollars ($500) shall be imposed for each day the violation remains in effect, not to exceed One Thousand Five Hundred Dollars ($1,500) for each violation. 2. For a second violation of the same nature within twelve (12) months for which notice has been provided to the State Video Franchise Holder and a penalty has been assessed, a monetary penalty of One Thousand Dollars ($1,000) shall be imposed for each day the violation remains in effect, not to exceed Three Thousand Dollars ($3,000) for each violation. 3. For a third or further violation of the same nature within twelve (12) months for which notice has been provided to the State Video Franchise Holder and a penalty has been assessed, a monetary penalty of Two Thousand Five Hundred Dollars ($2,500) shall be imposed for each day the violation remains in effect, not to exceed Seven Thousand Five Hundred Dollars ($7,500) for each violation. G. The City Manager's decision on the imposition of a penalty shall be final. Pursuant to Public Utilities Code Section 5900, judicial review may be sought of the City Manager's decision, and trial at superior court shall be de novo. H. The disposition of penalties remitted to the City of Redding is governed by DIVCA. 6.40.100 - Encroachment On Public Rights -of -Way. A. State Video Franchise Holders shall comply with all provisions of the Redding Municipal Code relating to excavations and encroachments into the City of Redding right-of-way. Those provisions and the provisions outlined herein (Sections 6.40. 100 through 6.40.180, inclusive) shall be enforced in a generally applicable, non-discriminatory manner. B. A State Video Franchise Holder shall make application with the Director prior to any encroachment of its facilities or upon construction in the public right-of-way. An application for an excavation/encroachment permit shall not be complete until the applicant has complied with all applicable statutory requirements including the California Environmental Quality Act (CEQA). C. Any poles, wires, cable lines, conduits or other properties of the State Video Franchise Holder to be constructed or installed in streets or public rights-of-way shall be constructed or installed only at such locations in the public right-of-way and in such manner as shall be approved prior by the Director acting in his/her reasonable discretion exercised in a non-discriminatory and generally applicable manner. Upon receipt of a completed application for an encroachment permit, the Director shall approve or deny within sixty (60) days of receiving the request. D. In those areas and portions of the City of Redding where either the transmission and distribution facilities of the utility providing telephone service or those of the utility providing electric service are underground or hereafter are placed underground, then the State Video Franchise Holder shall, except as authorized by the Director, likewise construct, operate and maintain all of its transmission facilities underground. Amplifiers in the State Video Franchise Holder's transmission and distribution lines may be in concrete, metal or synthetic boxes or vaults upon the surface of the ground. 6.40.110 - Application Decision. A. Pursuant to Public Utilities Code Section 5885, as may be amended, the Director shall notify a State Video Franchise Holder in writing of the Director's decision to approve or deny an encroachment/excavation permit within sixty (60) days of receiving a completed application. B. The notice of decision to deny the permit shall state a detailed explanation of the grounds for denial of the application and shall be deemed as served on the day of personal delivery or via electronic mail to the point of contact electronic mail address listed on the application. 6.40.120 - Request to Appeal. A. The State Video Franchise Holder may appeal the decision of the Director to the City Manager by delivery to the City Clerk of a written request to appeal within ten (10) calendar days of receipt of the notice of decision. The request to appeal shall be deemed as served on the day of personal delivery to the City Clerk or two days after deposit in the United States mail. The written request to appeal shall set forth the reasons for the appeal. B. The State Video Franchise Holder and the City May mutually agree to an extension of any time limit provided under Public Utilities Code Section 5885. 6.40.130 - Notice of Hearing. If a written request to appeal is timely filed with the City Clerk, the City Manager or his/her designee shall hold a hearing. The City Clerk shall give the State Video Franchise Holder written notice of the hearing which specifies the time, date and location of the hearing. Notice shall be served by deposit of the notice of hearing in the United States mail. 6.40.140 - Time of Hearing. Each hearing shall be set for a date not more than sixty (60) calendar days from the date of the notice of appeal timely served pursuant to Section 6.40.120 unless the City Manager determines that good cause exists for an extension of time. 6.40.150 - Hearing. A. The hearing by the City Manager shall be de novo where evidence and argument, including, but not limited to, sworn testimony of witnesses and documentary evidence, may be presented. B. After closing the hearing, the City Manager shall sustain, reverse or modify the Director's denial of the application. A written notice of decision shall be issued and served on the State Video Franchise Holder personal delivery or by deposit in the United States mail. C. The decision of the City Manager shall be final. 6.40.160 - Undergrounding and Relocation. A. State Video Franchise Holders shall comply with the provisions of the Redding Municipal Code related to the undergrounding of poles and overhead wires and the creation of underground utility districts. B. In those areas or portions of the City of Redding where the transmission or distribution facilities of State Video Franchise Holders are underground, or are hereafter required to be placed underground, State Video Franchise Holders shall, at their own expense, likewise construct, operate and maintain all transmission and distribution facilities underground. Amplifiers and couplings on the transmission and distribution lines may be constructed and maintained above -ground, if approved by the Director, in appropriate metal or concrete boxes or vaults as prescribed by the Director. 6.40.170 - Changes Required by Public Improvements. A. State Video Franchise Holders shall, at their own expense and upon written notice from the Director, protect, support, temporarily disconnect, relocate in the same street, alley or public property or place, or remove from any street, alley or public property or place, any of its property when required by the Director by reason of traffic conditions, public safety, street vacation, freeway or street construction, street widening, change or establishment of street grade, installation of sewers, drains, water pipes, power lines, signal lines and tracks, or any other type of structures or improvements by the City of Redding or other governmental agencies when acting in a governmental capacity, or any other structures or public improvements. This provision shall also apply in situations where the City of Redding has imposed conditions on a private land use entitlement which necessitates construction or improvement upon a street, alley, public right-of-way or public property. B. Upon failure of a State Video Franchise Holder to commence, pursue or complete any work required by law or by the provisions of this Section to be done in any street, public place or public property within the time prescribed and to the satisfaction of the Director, the Director may, at his or her option, cause such work to be done, and the State Video Franchise Holder shall pay to the City of Redding the costs thereof within thirty (30) calendar days after receipt of an itemized report of such costs from the Director. Such costs shall not be construed as a credit against any fee required by this Chapter. 6.40.180 - Restoration of Property. A. The State Video Franchise Holder shall restore and repair all damage directly or indirectly related to the construction of its facilities. Damaged areas, including streets, sidewalks, lawns, planted areas, walls and other appurtenances found in the public rights- of-way shall be restored and repaired at the State Video Franchise Holder's expense to a condition equal to its condition before cable construction commenced. B. If restoration and repair work is not pursued or completed by the State Video Franchise Holder in a timely manner, the Director may cause such work to be done and the State Video Franchise Holder shall reimburse the City of Redding the costs thereof within thirty (30) calendar days after receipt of any itemized list of such costs. Such costs shall not be construed as a credit against any fee required by this Chapter. 6.40.190 - Tampering and Unauthorized Connections. A. It is unlawful for any person to make any unauthorized connection, whether physically, electrically, acoustically, inductively or otherwise with any part of a State Video Franchise Holder's system within the City of Redding for the purpose of enabling anyone to receive any television signal or other information transmitted over the cable communication system without proper authorization to do so. B. It is unlawful for any person, without the consent of the State Video Franchise Holder, to willfully tamper with, remove or injure any cables, wires or other cable television system equipment except, however, a subscriber may disconnect a television receiver from the cable system upon termination of service if the State Video Franchise Holder has not responded within thirty (30) calendar days to a request for disconnection. Section 3. Severability. If any section, subsection, sentence, clause or phrase of this Ordinance is for any reason held by a court of competent jurisdiction to be invalid or unconstitutional, such decision shall not affect the validity of the remaining portions of the ordinance. The City Council of the City of Redding hereby declares that it would have passed this ordinance and each section, subsection, sentence, clause and phrase thereof irrespective of the fact that one or more sections, subsections, sentences, clauses or phrases may be held invalid or unconstitutional. Section 4. The passage of this Ordinance is not a "project" according to the definition in the California Environmental Quality Act ("CEQA"), and therefore is not subject to the provisions requiring environmental review. Pursuant to the Statutory Exemption set forth in subdivision (h) of Business and Professions Code section 26055, this Ordinance is exempt from the provisions requiring environmental review because it requires discretionary review under CEQA to approve licenses to engage in commercial cannabis activity within the jurisdictional limits of the City of Redding. Section 5. This Ordinance shall take effect thirty (30) days after the date of its adoption, and the City Clerk shall certify to the adoption thereof and cause its publication according to law. I HEREBY CERTIFY that the foregoing ordinance was introduced and read by the City Council of the City of Redding at a regular meeting on the 15th day of October, 2019, and was duly read and adopted at a regular meeting on the 5th day of November, 2019, by the following vote: AYES: COUNCIL MEMBERS: Dacquisto, McElwain, Resner, Schreder, and Winter NOES: COUNCIL MEMBERS: None ABSENT: COUNCIL MEMBERS: None ABSTAIN: COUNCIL MEMBERS: None ATTEST: APPROVED AS TO FORM: ("I t. W, 17io A" 4 �;"! � � PAMELA MIZE, City JA BARRY E. IftVVALf, City Yttorney