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2013/02/12 City Council Ordinance 853ORDINANCE NO. 853 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ROHNERT PARK AMENDING CHAPTER 5.24 OF THE ROHNERT PARK CITY CODE, IMPLEMENTING ADDITIONAL PROVISIONS OF THE DIGITAL INFRASTRUCTURE AND VIDEO COMPETITION ACT OF 2006 WHEREAS, on January 9,2007, the City Council of the City of Rohnert Park adopted Ordinance No. 773, AMENDING CHAPTER 5.24 "CABLE COMMUNICATIONS FRANCHISE" OF TITLE 5, "BUSINESS LICENSES AND REGULATIONS" TO ADD A SUBSECTION "F" TO SECTION 5.24.060 OF THE ROHNERT PARK MUNICIPAL CODE establishing a 1 % PEG funding fee; and WHEREAS, on February 27, 2007, the City Council of the City of Rohnert Park adopted Resolution No. 2007-31, "AMENDING THE ENGINEERING FEE SCHEDULE, ADOPTED BY RESOLUTION NO. 2006-39, TO ADD A FEE FOR STATE FRANCHISED CABLE OPERATORS OR VIDEO SERVICE PROVIDERS WHO APPEAL THE DENIAL OF AN ENCROACHMENT PERMIT TO THE CITY COUNCIL" to add a $500 appeals fee; and WHEREAS, on March 13,2007, the City Council of the City of Ro1mert Park adopted Ordinance 783, AMENDING CHAPTER 12.04, "ENCROACHMENTS," OF TITLE 12, "STREETS AND SIDEWALKS," OF SECTION 12.04.010, "DEFINITIONS," TO DEFINE "CITY ENGINEER," "VIDEO SERVICE PROVIDER," AND "CABLE OPERA TOR," AND TO ADD SECTION 12.04.130, "DENIAL OF APPLICATION FOR CABLE OPERA TOR OR VIDEO SERVICE PROVIDE ENCROACHMENTS," OF THE ROHNERT PARK MUNICIP AL CODE to comply with State regulations requiring establishment of a local process for State franchised video service providers to appeal the denial of an encroachment permit; and WHEREAS, the City Council of the City of Rohnert Park wishes to fully implement all provisions of the Digital Infi.astructure and Video Competition Act of2006 ("DIVCA"); and WHEREAS, the City Council desires to repeal Ordinances 773 and 783 to avoid repetition and conflict within the City's Code, as this Ordinance adds new sections to the City's Code that duplicate the substantive provisions of both Ordinances. NOW THEREFORE, the City Council of the City of Rohnert Park does ordain as follows: Section 1. _Repeal of Ordinance 773 and 783. Ordinance 773 and Ordinance 783 are hereby repealed. Section 2. Adoption of Section 5.24.180. Chapter 5.24 of the Rohnert Park Code of Ordinances is amended to add sections 5.24.180 through 5.24.250 to read as follows: "5.24.180 State Video Service Franchises - General Provisions 5.24.190 State Video Service Franchises - Definitions 5.24.200 State Video Service Franchises - Franchise Fees 5.24.210 State Video Service Franchises - Customer Service 5.24.220 State Video Service Franchises - Permits and Construction 5.24.230 State Video Service Franchises - Emergency Alert System 5.24.240 State Video Service Franchises - Public, Educational, and Government Access Channel Capacity, Support, Interconnection, and Signal Carriage 5.24.250 State Video Service Franchises - Notices 5.24.180 State Video Service Franchises - General Provisions (A) Purpose. This Section is intended to be applicable to entities who have been awarded a state video franchise under the California Public Utilities Code section 5800 et seq.(the Digital Infrastructure and Video Competition Act of 2006, "DIVCA"), to serve any location(s) within the incorporated boundaries of the City of Rohnert Park. It is the purpose of this Section to implement within the incorporated boundaries of the City the provisions ofDIVCA and the rules of the California Public Utilities Commission ("Commission") promulgated thereunder that are applicable to a "local fi-anchising entity" or a "local entity" as defined in DIVCA. (B) Rights Reserved. (1) The rights reserved to the City under this Section are in addition to all other rights of the City, whether reserved by this Section or authorized by law, and no action, proceeding or exercise of a right shall affect any other rights which may be held by the City. (2) Except as otherwise provided by DIVCA, a state franchise shall not include, or be a substitute for: (a) compliance with generally applicable requirements for the privilege of transacting and carrying on a business within the City, including, but not limited to, compliance with the conditions that the City may establish before facilities may be constructed for, or providing, non- video services; (b) any permit or authorization required in connection with operations on or in public rights-of- way or public property, including, but not limited to, encroachment permits, street work permits, pole attachment permits and street cut permits; and (c) any permit, agreement or authorization for occupying any other property of the City or any private person to which access is not specifically granted by the state franchise; and (d) compliance with applicable state and federal environmental protection laws. (3) Except as otherwise provided in DIVCA, a state franchise shall not relieve a state franchise holder of its duty to comply with all laws, including the ordinances, resolutions, rules, regulations, and other laws of the City, and every state franchise holder shall comply with the same. (4) No permit issued by the City to a state franchise holder is itself a franchise, nor shall any permit create a vested right that would prohibit the City from revoking or amending the permit. (C) Compliance with this Chapter. Nothing contained in this Chapter shall ever be construed so as to exempt a state franchise holder from compliance with all ordinances, rules or regulations of the City now in effect or which may be hereafter adopted which are consistent with this Chapter or California Public Utilities Code section 5800, et seq. 5.24.190 State Video Service Franchises - Definitions (A) Definitions Generally --Interpretation of Language. For purposes of this Chapter the following terms, phrases, words, and their derivations shall have the meaning given in this Chapter. Unless otherwise expressly stated, words not defined in this Chapter shall be given the meaning set forth in City of Rohnert Park Municipal Code Chapter 1.04.010 as may be amended from time to time, unless the context indicates otherwise. Words not defined in this Chapter or Section 1.04.010 shall have the same meaning as established in (1) DIVCA, and if not defined therein, (2) Commission rules implementing DIVCA, and if not defined therein, (3) Title VI of Title 41 of the Communications Act of 1934, as amended, 47USC S521 et. seq., and if not defined therein, (4) their common and ordinary meaning. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number, words in the singular number include the plural number, and "including" and "include" are not limiting. The word "shall" and "will" are always mandatory. References to governmental entities (whether persons or entities) refer to those entities or their successors in authority. If specific provisions of law referred to herein are renumbered, then the reference shall be read to refer to the renumbered provision. References to laws, ordinances or regulations shall be interpreted broadly to cover government actions, however nominated, and include laws, ordinances and regulations now in force or hereinafter enacted or amended. (1) "Access," "PEG access," "PEG use," or "PEG" means the availability of a cable or state franchise holder's system for public, educational, or governmental use by various agencies, institutions, organizations, groups, and individuals, including the City and its designated access providers, to acquire, create, and distribute programming not under a state franchise holder's editorial control. (a) "Public access" or "Public use" means access where organizations, groups, or individual members of the general public, on a non-discriminatory basis, are the primary or designated programmers or users having editorial control over their communications; (b) "Education access" or "Education use" means access where accredited educational institutions are the primary or designated programmers or users having editorial control over their communications; (c) "Government access" or "Government use" means access where government institutions or their designees are the primary or designated programmers or users having editorial control over their communications. (2) "Gross revenues" means all revenues actually received by the holder of a state franchise that are derived from the operation of the holder's network to provide cable service or video service within the incorporated areas of the City, subject to the specifications of California Public Utilities Code section 5860. (3) "State franchise holder" means a cable operator or video service provider that has been issued a franchise by the California Public Utilities Commission to provide cable service or video service, as those terms are defined in California Public Utilities Code section 5830, within any portion of the incorporated limits of the City. 5.24.200 State Video Service Franchises - Franchise Fees (A) State Franchise Fees. Any state franchise holder operating within the incorporated areas of the City shall pay to the City a franchise fee equal to the applicable rate as set forth in the California Public Utilities Code Sections 5800-5970, as may be amended from time to time. (B) Payment of Franchise Fees. The state franchise fees required pursuant to this Section shall be paid quarterly, in a manner consistent with California Public Utilities Code section 5860. The state franchise holder shall deliver to the City, by check or other means agreed to by the City, a separate payment for the state franchise fee not later than forty-five (45) days after the end of each calendar quarter. Each payment made shall be accompanied by a report detailing how the payment was calculated, and shall include such additional information on the appropriate form as designated by the City. (C) Examination of Business Records. The City may examine the business records of the holder of a state franchise in a manner consistent with California Public Utilities Code section 5860(i). (1) All state franchise holders shall keep and maintain all business records reflecting any gross revenues, regardless of change in ownership, for at least four years after those gross revenues are recognized by the state franchise holder on its books and records pursuant to California Public Utilities Code Section 5860. (2) If the examination by the City discloses the state franchise holder has underpaid the franchise fee established by this Section by more than five percent (5%), the state franchise holder shall pay the reasonable and actual costs of the examination. If the state franchise holder has not underpaid the franchise fee established in this Section, the City shall pay the reasonable and actual costs of the examination. If the state franchise holder, however, has underpaid the franchise fee established by this Section by five percent (5%) or less, the state franchise holder and the City shall each bear its own costs of the examination. (D) Late Payments. In the event a state franchise holder fails to make payments required by this Section on or before the due dates specified in this Section, the City shall impose a late charge at the rate set forth in the California Public Utilities Code Sections 5800-5970, as may be amended from time to time. (E) Lease of City-Owned Network. In the event a state franchise holder leases access to a network owned by the City, the City may set a franchise fee for access to the City-owned network separate and apart from the franchise fee charged to state franchise holders pursuant to this Section; which fee shall otherwise be payable in accordance with the procedures established by this Section. 5.24.210 State Video Service Franchises - Customer Service (A) Customer Service Standards. A state franchise holder shall comply with the following statutes and regulations, as they may be amended from time to time: sections 53055, 53055.1, 53055.2 and 53088.2 of the California Government Code; the FCC customer service and notice standards set forth in sections 76.309,76.1602,76.1603, and 76.1619 of Title 47 of the Code of Federal Regulations; section 637.5 of the California Penal Code; the privacy standards of section 551 of Title 47 of the United States Code; and all other applicable state and federal customer service and consumer protection standards pertaining to the provision of video service, include any such standards hereafter adopted. In case of a conflict, the stricter standard shall apply. All customer service and consumer protection standards under this paragraph shall be interpreted and applied to accommodate newer or different technologies while meeting or exceeding the goals of the standards. (B) Penalties for Violations of Standards. The City shall enforce the compliance of state franchise holders with respect to the state and federal customer service and consumer protection standards set forth in Subsection (A) above. The City will provide a state franchise holder with a written notice of any material breaches of applicable customer service or consumer protection standards, and will allow the state franchise holder 30 days from the receipt of the notice to remedy the specified material breach. Material breaches not remedied within the 30-day time period will be subject to penalties to be imposed by the City: (1) For the first occurrence of a material breach, a fine of $500 may be imposed for each day the violation remains in effect, not to exceed $1,500 for each violation. (2) For a second material breach of the same nature within 12 months, a fine of $1 ,000 may be imposed for each day the violation remains in effect, not to exceed $3,000 for each violation. (3) For a third material breach of the same nature within 12 months, a fine of $2,500 may be imposed for each day the violation remains in effect, not to exceed $7,500 for each violation. (C) Any penalties imposed by the City shall be imposed in a manner consistent with California Public Utilities Code section 5900. (D) Any state franchise holder may appeal any customer service penalty assessed pursuant to this Section, according to the following procedure. (1) The state franchise holder may file a request for hearing form from the City Clerk within thirty days from receipt of the written notice specified in this Section with an advance deposit of the penalty amount. (2) A request for hearing form may be obtained from the City Clerk. (3) The state franchise holder requesting the hearing shall be notified by the City Clerk of the time and place set for the hearing at least ten days prior to the date of the hearing. (4) The hearing shall be set by the City Clerk for a date that is not less than fifteen days and not more than sixty days from the date that the request for hearing form is filed with the City Clerk. (5) At the hearing, the city shall bear the burden of proof by a preponderance of the evidence that the material breach occurred as charged. The City may be represented by counsel. (6) At the hearing, the state franchise holder may cross examine any witness against the state franchise holder, may present evidence, and may be represented by counsel. (7) The formal rules of evidence shall not apply at the hearing. The hearing officer may rely upon such evidence as he or she believes reasonable persons would rely upon in the conduct of their affairs. Any witnesses shall testify under oath. (8) After hearing and reviewing all of the testimony and evidence submitted at the hearing, the hearing officer shall issue a written decision to uphold or cancel the penalty and shall list in the decision the reasons for that decision. The decision of the hearing officer shall be final. (9) 1f the hearing officer determines the penalty should be cancelled, the city shall promptly refund the amount of the deposited penalty, together with interest at the average rate earned on the city's investment portfolio for the period of time that the penalty amount was held by the City. (10) The hearing officer shall be the City manager or his or her designee. (11) Any interested person may obtain review of the hearing officer's decision by filing an appeal in a court of competent jurisdiction pursuant to California Public Utilities Code Section 5900. 5.24.220 State Video Service Franchises - Permits and Construction (A) Except as expressly provided in this Chapter, provisions of Rohnert Park Municipal Code Title 12 ""Streets and Sidewalks" and Title 15 "Building and Construction" shall apply to all work performed by or on behalf of a state franchise holder on any City public rights-of-way, public property, or City easement. (B) Permits. Prior to commencing any work for which a permit is required by Subsection (A) above, a state franchise holder shall apply for and obtain a permit in accordance with the provisions of Titles 12 and 15 and shall comply with all other applicable laws and regulations. (C) The City shall either approve or deny a state franchise holder's application for any permit required under Subsection (A) within sixty (60) days of receiving a completed permit application from the state franchise holder. An application is complete when the applicant has complied with all statutory requirements, including compliance with the California Environmental Quality Act. (D) If the City denies a state franchise holder's application for a permit, the City shall, at the time of notifying the applicant of denial, furnish to the applicant a detailed explanation of the reason or reasons for the denial. (E) A state franchise holder that has been denied a permit by final decision of the City may appeal the denial to the City Council. Upon receiving a notice of appeal, the City Council shall take one of the following actions: (1) Affirm the action of the City without any further hearing; or (2) Refer the matter back to the City for further review with or without instructions; or (3) Set the matter for a de novo hearing before the City Council. (F) In rendering its decision on the appeal, the City Council shall not hear or consider any argument or evidence of any kind other than the record of the matter received from the City unless the City Council is itself conducting a public hearing on the matter. (G) Notification to Residents Regarding Construction or Maintenance. (1) Prior to any construction, rebuild, or upgrade of a cable or video system, a state franchise holder shall notify any and all City residents whose service is disrupted, affected and/or impacted by the schedule and manner of construction activities. Such notices must be provided in at least two of the predominant languages spoken by those persons who work and/or reside in the impacted area. The notices shall be provided to the City for review and approval no later than twenty (20) days before commencement of construction, rebuild, or upgrade activities. (2) At a minimum, the notice required in this Subsection shall be provided by the state franchise holder to impacted residents and occupants in the impacted area not less than forty-eight (48) hours prior to the planned construction. The state franchise holder shall provide additional notice to the impacted area on the day of construction. The notice shall be in the form of door hangers or similar materials that indicate, at a minimum, the dates and times of construction and the name and telephone number of a state franchise holder contact. (3) As used in this Subsection, "impacted area" means an area where cable or video service is disrupted, affected and/or impacted by the schedule and manner of construction activities (H) Notification to Property Owners Prior to Entry On Public Easements. At least twenty (20) days prior to entering public ways or public easements adjacent to or on private property, the state franchise holder shall provide notice to the private property owners. A second notice shall be given to the private property owners three (3) days prior to entering such property. (1) Should there be above ground or underground installations (excluding aerial cable lines utilizing existing poles and cable paths) that require access, and/or create any physical impacts or changes to property, such notice shall be in writing and shall contain specific information regarding any aboveground or underground installations (excluding aerial cable lines utilizing existing poles and existing cable paths) which shall affect the private property. (2) To the extent practicable, aboveground or underground equipment placed within a City easement on private property shall be placed at the location requested by the private property owner. A state franchise holder shall provide the private property owner with at least twenty (20) days advance written notice of its plans to install such equipment, and shall obtain express written consent, in the form of a recorded easement agreement, from the private property owner before installing its facilities if the installation is not within the scope of the City's existing easement. (3) In addition to any other notice of proposed entry required under this subsection, a state franchise holder's personnel shall make a reasonable attempt to give personal notice to residents immediately preceding entry on public ways or public easements adjacent to or on such private property. (I) Notification Prior to Entry On Private Property. If a state franchise holder desires to enter onto privately-owned property not within the City's right-of-way to install above ground or underground installations (excluding aerial cable lines utilizing existing poles and cable paths), the state franchise holder shall provide notice to the private property owner at least twenty (20) days prior to the date the state franchise holder desires to enter the property. The notice shall be in writing and state that the property owner is not obligated to agree to the placement of the installations on their property or to enter into an easement agreement with the state franchise holder. Should property owner not agree to the placement of any such aboveground or underground installations (excluding aerial cable lines utilizing existing poles and existing cable paths), the state franchise holder shall confer with the City public works department regarding appropriate alternative location and placement of such appurtenances within the public right-of- way. (K) Identification Required. A state franchise holder, its employees, agents, contractors, and subcontractors shall be properly identified as agents of the state franchise holder prior to and during entry on private and public properly. Identification shall include the name and telephone number of the state franchise holder on all trucks and vehicles used by installation personnel. (L) Restoration of Private and Public Property. After performance of work, the state franchise holder shall restore such private and public property to a condition equal to or better than its condition prior to construction. Any disturbance of landscaping, fencing, or other improvements upon private or public property shall, at the sole expense of the state franchise holder, be promptly repaired or restored (including replacement of such valuables as shrubbery and fencing) to the reasonable satisfaction of the property owner, in addition to the furnishing of any required camouflage plants on public property. (M) Reports to the City. Each state franchise holder, within 60 days after the expiration of each calendar year, shall make available for review with the City a street and highway map or maps of any convenient scale on which shall be plotted the location of the entire transmission and distribution system or systems covered by the report as of the last day of the calendar year, with the system or systems located in City highways indicated by distinctive coloration or symbols. 5.24.230 State Video Service Franchises - Emergency Alert Systems Each state franchise holder shall comply with the emergency alert system requirements of the Federal Communications Commission in order that emergency messages may be distributed over the state franchise holder's network. 5.24.240 State Video Service Franchises - Public, Educational and Government Access Channel Capacity, Support, Interconnection, and Signal Carriage (A) PEG Channel Capacity. (1) A State franchise holder shall designate a sufficient amount of capacity on its network to allow the provision of at least three (3) PEG channels to satisfy the requirement of state law, within the time limits specified by state law. This Section shall serve as the request for PEG channels required by California Public Utilities Code section 5870(a). (2) A state franchise holder shall provide an additional PEG channel when the standards set forth in section 5870( d) of the California Public Utilities Code are satisfied by the City or any entity designated by the City to manage one or more of the PEG channels. (B) PEG Support. (1) Amount of PEG Support Fee Any state franchise holder shall pay to the City, or if directed by the City, pay to the City's designated PEG provider a PEG fee equal to one percent (1 %) of gross revenues. (2) A state franchise holder shall remit the PEG support fee to the City quarterly, within forty- five days after the end of each calendar quarter. Each payment made shall be accompanied by a summary, detailing how the PEG support fee was calculated. (3) If a state franchise holder fails to pay the PEG support fee when due, or underpays the proper amount due, the state franchise holder shall pay interest at the rate set forth in the California Public Utilities Code Sections 5800-5970, as may be amended from time to time. (4) The fee required by this Section is the fee pennitted under California Public Utility Code section 5870(n), and is not in lieu of the obligation of a state franchise holder under any other provision oflaw. (C) PEG Carriage and Interconnection. (1) As set forth in sections 5870(b) and 5870(9)(3) of the California Public Utilities Code, state franchise holders shall ensure that all PEG channels are receivable by all subscribers, whether they receive digital or analog service, or a combination thereof, without the need for any equipment other than that needed to receive the lowest cost tier of service. PEG access capacity provided by a state franchise holder shall be of similar quality and functionality to that offered by commercial channels (unless the PEG signal is provided to the state franchise holder at a lower quality or with less functionality), shall be capable of carrying a National Television System Committee (NTSC) television signal, and shall be carried on the state franchise holder's lowest cost tier of service. To the extent feasible, the PEG channels shall not be separated numerically from other channels carried on the lowest cost tier of service and the channel numbers for the PEG channels shall be the same channel numbers used by any incumbent cable operator, unless prohibited by federal law. After the initial designation of the PEG channel numbers, the channel numbers shall not be changed without the agreement of the City unless federa11aw requires the change. (2) As set forth in section 5870(h) of the California Public Utilities Code, the holder of a state franchise and an incumbent cable operator shall negotiate in good faith to interconnect their networks for the purpose of providing PEG programming. If a state franchise holder and an incumbent cable operator cannot reach a mutually acceptable interconnection agreement for PEG carriage, the City shall require the incumbent cable operator to allow the state franchise holder to interconnect its network with the incumbent cable operator's network at a technically feasible point on the state franchise holder's network as identified by the state franchise holder. If no technically feasible point of interconnection is available, the state franchise holder shall make interconnection available to each PEG channel originator programming a channel in the City and shall provide the facilities necessary for the interconnection. The cost of any interconnection shall be borne by the state franchise holder requesting the interconnection unless otherwise agreed to by the parties. 5.24.250 State Video Service Franchises - Notices. (A) Each state franchise holder or applicant for a state franchise shall file with the City a copy of all applications or notices that the state franchise holder or applicant is required to file with the California Public Utilities Commission. (B) Unless otherwise specified in this Chapter, all notices or other documentation that a state franchise holder is required to provide to the City under this Chapter or the California Public Utilities Code shall be provided to both the City Manager and the City staff person in charge of cable and telecommunications, or their successors or designees." Section 3. Environmental Determination. The Council finds that the adoption and implementation of this ordinance are exempt from the provisions of the California Environmental Quality Act under CEQA Guideline 15061 (b )(3) because it can be seen with certainty that there is no possibility that the adoption and implementation of this ordinance may have a significant effect on the environment. . This ordinance does not approve any physical works or improvements. Any future work subject to City approval will be subject to environmental review at the time the work is proposed. Section 4. Non-discrimination. Any state franchise holder is prohibited from discriminating against or denying access to service to any group of potential residential subscribers within the city because of the income of the residents in the local area in which the group resides. This requirement may be satisfied pursuant to California Public Utilities Code Section 5890. The city may bring complaints to the CPUC that a state franchise holder is not offering video services as required by California Public Utilities Code Section 5890. Section 5. Severability. If any section, subsection, sentence, clause, phrase or word of this ordinance is for any reason held to be invalid and/or unconstitutional by a court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. Section 6. Effective Date. This ordinance shall be in full force and effective thirty (30) days after its adoption and shall be published and posted as required by law. This ordinance was introduced on the 22nd day of January 2013 and DULY AND REGULARLY ADOPTED this 1ih day of February 2013 by a vote of the City Council as follows: Five None None None (5) (0) (0) (0) AYES: NOES: ABSENT: ABSTAIN: Councilmembers Ahanotu, Belforte, Mackenzie, Callinan and Mayor Stafford ATTEST: CITY OF ROHNERT PARK ~~~ Pam Stafford, Mayor aFFIDAVIT OF POSTIN& STATE OF CALIFORNIA ) ) ss County of Sonoma ) JoAnne Buergler, under penalty of perjury, deposes and says: That she is, and during all times herein mentioned was, the duly acting and qualified City Clerk of the City of Rohnert Park, Sonoma County, California; and that on the 20th davof February, 2013, she posted as required by law full, true, and correct copies of ORDINANCE NO. 853, "AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ROHNERT PARK AMENDING CHAPTER 5.24 OF THE ROHNERT PARK CITY CODE, IMPLEMENTING ADDITIONAL PROVISIONS OF THE DIGITAL INFRASTRUCTURE AND VIDEO COMPETITION ACT OF 2006" in five (5) public places in said City, to wit: City Hall 130 Avram Avenue Public Safety Department 500 City Center Drive Rohnert Park Community Center 5401 Snyder Lane Library 6250 Lynne Conde Way www.rpcitv.org for website posting ~LJn 6, 'JA~^ City Clerk Subscribed and sworn to before me this 20th day of February, 2013. 0IlMJJ, Wi! lli1-- Deputy City Clerk