HomeMy WebLinkAboutOrd. 1394-2008ORDINANCE NO. 1394-2008
AN ORDINANCE AMENDING CHAPTER 6.78 OF THE
SOUTH SAN F]EZANCISCO MUNICIPAL CODE TO
IMPLEMENT THE DIGITAL INFRASTRUCTURE AND
VIDEO COMPETITION ACT OF 2006
WHEREAS, cities and counties within the State of California have traditionally had the
authority to issue franchises to, and thereby regulate, providers of cable services within their
respective jurisdictions, in accordance with federal, state, and local law; and
WHEREAS, the Digital Infrastructure and Video Competition Act of 2006 (Public
Utilities Code sections 5800 et seq. ("DIVCA")) became effective January 1, 2007; and
WHEREAS, DNCA changed California law by establishing a statewide franchising
procedure for video service providers to be administered by the California Public Utilities
Commission ("CPUC"); and
WHEREAS, under certain circumstances described therein, DIVCA preempts the City's
authority to issue franchises and provides, in those circumstances, that the CPUC is the sole
authority to award state franchises for the provision of video services; and
WHEREAS, DIVCA authorizes the City to exercise certain authority over state franchise
holders; and
WHEREAS, the City of South San Francisco desires to exercise that authority and to
facilitate the implementation of DIVCA by setting forth regulations for the provision of video
service by state franchise holders within the City.
NOW THEREFORE, the City Council of the City of South San Francisco does ORDAIN
as follows:
1. Section 1. Chapter 6.78 is hereby added to the South San Francisco Municipal Code to read
as follows:
Chapter 6.78
VIDEO SERVICE PROVIDED BY STATE FRANCHISE HOLDERS
6.78.010 Purpose and Applicability.
The purpose of this chapter is to set forth regulations for the provision of video service by state
franchise holders, in accordance v/ith the Digital Infrastructure and Video Competition Act,
California Public Utilities Code sections 5800-5970 ("DIVCA"). This chapter shall apply to
video service providers operating within the city pursuant to a valid state franchise.
6.78.020 Definitions.
For the purposes of this chapter, tlhe words set out in this section shall have the following
meanings:
(a) "City" means the City of South San Francisco.
(b) "City manager" means the city manager of the City of South San Francisco, oi• his or her
designee.
(c) "Franchise fee" shall have the meaning given that term by subdivision (g) of Public
Utilities Code section 5830 or its successor.
(d) "Gross revenues" shall have the meaning given that term by the California Public
Utilities Code section 5860 or its successor.
(e) "Holder" shall have the meaning given that term by subdivision (j) of Public Utilities
Code section 5830 or its successor.
(f) "Material breach" shall have the meaning given that term by subdivision (j;l of Public
Utilities Code section 5900 or its successor.
(g) "Network" shall have the meaning given that term by subdivision (1) of Public Utilities
Code section 5830 or its successor.
(h) "State franchise" shall have the meaning given that term by subdivision (p - of Public
Utilities Code section 5830.
(i) "Video service" shall have the meaning given that term by the California Public Utilities
Code section 5830(s) or its successor.
6.78.030 Franchise Fee for State Franchise Holders.
Any state franchise holder shall remit to the City a franchise fee in the amount of five percent of
the gross revenues of the state franchise holder in compliance with California Public Utilities
Code section 5840(q).
6.78.040 Public, Educational, .and Government Channels
(a) Each state franchise holder ;>hall remit to the City a fee to support PEG channel facilities
in the amount of one percent of the gross revenues of the state franchise holder. ~~11 revenue
collected pursuant to this fee shall be deposited in a separate fund and shall only be expended for
the purpose of supporting PEG channel facilities.
(b) Each payment of the fee established in subsection (a) of this section delivered to the city
shall be accompanied by a summary report explaining the basis for the calculation of the
payment, reflecting the total amount of gross revenues for the remittance period and all
payments, deductions and computations used to determine the amount of the quarterly
remittance. The city manager may establish, and from time to time revise, such additional
reporting requirements as are necessary to ensure that the basis for the calculation of the amount
of remittance is adequately explained and documented, and each state franchise holder shall
comply with such additional reporting requirements provided that each state franchise holder
shall have first been provided written notice at least fifteen (15) days prior to the beginning of
the remittance period.
(c) All obligations existing on :December 31, 2006 to provide and support PEG channel
facilities and institutional networks and to provide cable services to community buildings
contained in a local franchise shall continue until October 31, 2014 pursuant to California Public
Utilities Code section 5870.
(d) Each state franchise holder shall designate a sufficient amount of capacity on its network
to allow the provision of PEG channels in accordance with California Public Utilities Code
section 5870. Each state franchise holder shall have three (3) months from the date the City
requests the PEG channels to designate the capacity. The three (3) month period shall be tolled
by any period during which the designation or provision of PEG channel capacity is technically
infeasible.
(e) Notwithstanding California Public Utilities Code section 5879(n), upon the expiration of
any state franchise, without any action of the city council, this section shall be deemed to have
been automatically reauthorized, unless the state franchise holder has given the city manager and
the city council written notice sixty (60) days prior to the expiration of its state franchise that the
section will expire pursuant to the terms of California Public Utilities Code section 5879(n).
(f) This section shall be enforced, and disputes regarding this section shall be resolved,
pursuant to California Public Utilities Code section 5870.
6.78.050 Customer Service Penalties by State Franchise Holders.
(a) Any state franchise holder shall comply with the customer service provisions set forth in
Public Utilities Code section 5900.
(b) The city shall impose the following penalties against a state franchise holder for any
material breach of the customer service provisions set forth in section 6.78.050(a):
(1) For the first occurrence of a material breach, a fine of $500.00 shall be imposed
for each day of each material breach, not to exceed $1,500.00 for each occurrence
of the material breach.
(2) For a second occun-ence of a material breach of the same nature as the first
material breach that: occurs within 12 months, a fine of $1,000.00 shall be
imposed for each day of each material breach, not to exceed $3,000.00 for each
occurrence of the material breach.
(3) For a third or further occurrence of a material breach of the same nature as the
previous material breaches that occurs within 12 months, a fine of $2,500.00 shall
be imposed for each day of each material breach, not to exceed $7,500.00 for each
occurrence of the material breach.
(c) The city manager shall have the authority to assess penalties for any material breach by a
holder of a state franchise. Prior to assessing penalties for a material breach, the city manager
shall first have provided the state franchise holder with written notice of any alleged material
breach of the customer service provisions set forth in California Public Utilities Code section
5900 and shall allow the state franchise holder at least thirty (30) days from receipt of the notice
to remedy the specified material breach.
(d) A material breach for the purposes of assessing penalties shall be deemed to have
occurred for each day within the jurisdiction of the city, following the expiration of the period
specified in this section that any material breach has not been remedied by the video provider,
irrespective of the number of customers affected. No monetary penalties shall be assessed for a
material breach if it is out of the reasonable control of the state franchise holder.
(e) The city shall submit one half of any penalty amounts it receives to the Digital Divide
Account established by California Public Utilities Code section 280.5.
(f) No monetary penalties shall be assessed for a material breach if it is out of the reasonable
control of the state franchise holder.
6.78.060 Authority to Examine: and Audit Business Records.
The city shall ensure that it receivers all franchise fee revenue to which it is entitled to at the
times and in the amounts specified by Public Utilities Code section 5860, and, to that end, the
city manager is hereby authorized., either with or without the assistance of duly authorized
representative, to examine the business records of the holder of the state franchise in accordance
with subdivision (i) of Public Utilities Code section 5860.
2. Section 2. Publication and Effective Date
This ordinance shall be published once, with the names of those City Council Members
voting for or against it, in the San Mateo Times, as newspaper of general circulation in the City
of South San Francisco, as required by law, and shall become effective thirty (30) da}~s from and
after its adoption.
3. Section 3. Severability
In the event any section or portion of this ordinance shall be determined invalid or
unconstitutional, such section or portion shall be deemed severable and all other sections or
portions hereof shall remain in full force and effect.
Introduced at a regular meetiing of the City Council of the City of South San Francisco,
held the 26th day of March 2008.
Adopted as an Ordinance of the City of South San Francisco at a regular meeting of the
City Council held the 9th day of Apri12008 by the following vote:
AYES: Councilmembers Mark N. Addie~o Richard A. Garbarino and Kevin Mullin,
Mayor Pro Tem Karyl Matsumoto and Mayor Pedro Gonzalez
NOES: None
ABSTAIN: None
ABSENT: None
AT~'EST:
City
As Mayor of the City of South San Francisco, I do hereby approve the f
ordinance this 9th day of April 2008. ~/ ~,, ~//
.Ci~"/7~
Ped Gonz