HomeMy WebLinkAbout03-11 CC OrdinanceORDINANCE NO. 03-11
AN ORDINANCE OF THE CITY OF TEMECULA REGULATING
CABLE, VIDEO, AND TELECOMMUNICATIONS SERVICE
PROVIDERS, AND AMENDING IN ITS ENTIRETY CHAPTER
5.12 OF TITLE 5 OF THE TEMECULA MUNICIPAL CODE
THE CITY COUNCIL OF THE CITY OF TEMECULA DOES ORDAIN AS FOLLOWS:
Section 1. Chapter 5.12 of Title 5 of the Temecula Municipal Code is repealed in its
entirety.
Section 2. The Temecula Municipal Code is amended by adding to Title 5 a new
Chapter 5.12 to read as follows:
"CABLE, VIDEO, AND TELECOMMUNICATIONS SERVICE PROVIDERS
ARTICLE 1. GENERAL PROVISIONS
5.12.010 Title
This ordinance is known and may be cited as the "Cable, Video, and
Telecommunications Service Providers Ordinance" of the City of Temecula.
5.12.020 Purpose and Intent
A. The City Council finds and determines as follows:
1. The development of cable, video, and telecommunications
services and systems may provide significant benefits for, and have substantial impacts upon,
the residents of the City.
2. Because of the complex and rapidly changing technology
associated with cable, video, and telecommunications services and systems, the public
convenience, safety, and general welfare can best be served by the City's exercise of its
regulatory powers.
3. This chapter adopts provisions that authorize the City to
regulate cable, video, and telecommunications service providers to the extent authorized by
federal and state law, including but not limited to the federal Cable Communications Policy Act
of 1984, the federal Cable Television Consumer Protection and Competition Act of 1992, the
federal Telecommunications Act of 1996, applicable regulations of the Federal Communications
Commission, and applicable California statutes and regulations.
4. The cable, video, and telecommunications services that are
addressed in this chapter include services provided by cable television systems, open video
systems, master antenna television systems, satellite master antenna television systems, direct
broadcast satellite systems, multichannel multipoint distribution systems, local multipoint
distribution systems, and other providers of video programming, whatever their technology, as
well as voice and data services provided by telephone corporations.
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B. The purpose and intent of this ordinance is to provide for the
attainment of the following objectives:
1. To enable the City to discharge its public trust in a manner
consistent with rapidly evolving federal and state regulatory policies, industry competition, and
technological development.
2. To authorize and to manage reasonable access to the City's
public rights-of-way and public property for cable, video, and telecommunications purposes on a
competitively neutral and nondiscriminatory basis, and in a manner consistent with all
applicable federal and state statutes and regulations.
3. To obtain fair and reasonable compensation for the City and
its residents for authorizing the private use of the public rights-of-way and public property.
4. To promote competition in cable, video, and
telecommunications services, minimize unnecessary local regulation of cable, video, and
telecommunications service providers, and encourage the delivery of advanced and competitive
cable, video, and telecommunications services on the broadest possible basis to local
government and to the businesses, institutions, and residents of the City.
5. To establish clear local guidelines, standards, and time frames
for the exercise of local authority with respect to the regulation of cable, video, and
telecommunications service providers.
6. To encourage the deployment of advanced cable, video, and
telecommunications infrastructure that satisfies local needs, delivers enhanced services, and
provides informed consumer choices in an evolving cable, video, and telecommunications
marketplace.
7. To maintain and to enhance public, educational, and
governmental programming opportunities that will enable local government to communicate with
its residents and to provide them with alternate means of disseminating information.
5.12.030 Defined Terms and Phrases
Various terms and phrases used in this ordinance are defined below in
Section 5.12.170.
5.12.035 Suspension and Waiver of Application Fee Deposit.~
A. With regard to any application fee deposit for an initial franchise,
or for the renewal of a franchise, or for the transfer or change in control of a franchise that is
authorized by this Chapter 5.12, the City Manager may suspend that application fee deposit in
accordance with this section.
B. The City Manager, in consultation with the City Attorney, will
review all wdtten information submitted by the applicant or franchisee in support of its contention
that applicable law prohibits imposition of the application fee deposit provided for by this
Chapter 5.12. If a determination is made that applicable law supports the contention of the
applicant or franchisee, then the City Manager may suspend the imposition of the application
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fee deposit; provided, however, that such suspension must be ratified by the City Council within
30 days after the City Manager's determination and, if ratified, the application fee deposit will be
deemed to have been waived."
ARTICLE 2. CABLE TELEVISION SYSTEMS
5.12.040 Authority and Findinqs
A. In accordance with applicable federal and state law, the City is
authorized to grant one or more nonexclusive franchises to construct, reconstruct, operate, and
maintain cable television systems within the City limits.
B. The City Council finds that the development of cable television
services may provide significant benefits for, and substantial impacts upon, the residents of the
City. Because of the complex and rapidly changing technology associated with cable television,
the City Council further finds that the public convenience, safety, and general welfare can best
be served by establishing regulatory powers to be exercised by the City. This Article 2 is
intended to specify the means for providing to the public the best possible cable television
services, and every franchise issued in accordance with this Article 2 is intended to achieve this
primary objective. It is the further intent of this Article 2 to adopt regulatory provisions that will
enable the City to regulate cable television services to the maximum extent authorized by
federal and state law.
5.12.050 Franchise Terms and Conditions
A. Franchise Purposes
A franchise granted by the City under the provisions of this Article 2 may
authorize the Grantee to do the following:
1. To engage in the business of providing cable television
services that are authorized by law and that the Grantee elects to provide to its subscribers
within the designated franchise service area.
2. To erect, install, construct, repair, rebuild, reconstruct, replace,
maintain, and retain, cable lines, related electronic equipment, supporting structures,
appurtenances, and other property in connection with the operation of the cable system in, on,
over, under, upon, along and across streets and public rights-of-way within the designated
franchise service area.
3. To maintain and operate the franchise properties for the
origination, reception, transmission, amplification, and distribution of television and radio
signals, and for the delivery of cable services and such other services as may be authorized by
law.
B. Franchise Required
It is unlawful for any person to construct, install, or operate a cable
television system within any street or public way in the City without first obtaining a franchise
under the provisions of this Article 2.
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C. Term of the Franchise
1. A franchise granted under this Article 2 will be for the term
specified in the franchise agreement, commencing upon the effective date of the resolution
adopted by the City Council that authorizes the franchise.
2. A franchise granted under this Article 2 may be renewed upon
application by the Grantee in accordance with the then-applicable provisions of state and
federal law and this Article 2.
D. Franchise Service Area
A franchise is effective within the territorial limits of the City, and within
any area added to the City during the term of the franchise, unless otherwise specified in the
resolution granting the franchise or in the franchise agreement.
E. Federal or State Jurisdiction
This Article 2 will be construed in a manner consistent with all applicable
federal and state laws, and it applies to all franchises granted or renewed after the effective date
of this chapter, to the extent authorized by applicable law.
F. Franchise Non-Transferable
1. Grantee may not sell, transfer, lease, assign, sublet, or
dispose of, in whole or in part, either by forced or involuntary sale, or by ordinary sale, contract,
consolidation, or otherwise, the franchise or any of the rights or privileges therein granted,
without the prior written consent of the City Council, which consent may not be unreasonably
denied or delayed. Any attempt to sell, transfer, lease, assign, or otherwise dispose of the
franchise without the wdtten consent of the City Council is null and void. The granting of a
security interest in any assets of the Grantee, or any mortgage or other hypothecation, will not
be deemed a transfer for the purposes of this subsection. A transfer to a person or entity owned
or controlled by or under common ownership or control of Grantee shall not be deemed a
transfer for the purposes of this subsection.
2. The requirements of subsection (1) apply to any change in
control of Grantee. The word "control" as used herein is not limited to the ownership of major
stockholder or partnership interests, but includes actual working control in whatever manner
exercised. If Grantee is a partnership or a corporation, prior authorization of the City Council is
required where ownership or control of 25 percent or more of the partnership interests or of the
voting stock of Grantee, or any company in the tier of companies controlling the Grantee,
whether directly or indirectly, is acquired by a person or a group of persons acting in concert,
none of whom, individually or collectively, owns or controls those partnership interests or that
voting stock of the Grantee, or Grantee's upper tier of controlling companies, as of the effective
date of the franchise.
3. Unless precluded by federal law, Grantee must give prior
written notice to the City of any proposed foreclosure or judicial sale of all or a substantial part of
the Grantee's franchise property. That notification will be considered by the City as notice that a
change in control of ownership of the franchise will take place, and the provisions of this
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paragraph that require the prior written consent of the City Council to that change in control of
ownership will apply.
4. For the purpose of determining whether it will consent to an
acquisition, transfer, or change in control, the City may inquire about the qualifications of the
prospective transferee or controlling party, and Grantee must assist the City in that inquiry. In
seeking the City's consent to any change of ownership or control, Grantee or the proposed
transferee, or both, must complete Federal Communications Commission Form 394 or its
equivalent. This application must be submitted to the City not less than 120 days prior to the
proposed date of transfer. The transferee must establish that it possesses the legal, financial,
and technical capability to remedy all then-existing defaults and deficiencies, and, during the
remaining term of the franchise, to operate and maintain the cable system and to comply with all
franchise requirements. If the legal, financial, and technical qualifications of the proposed
transferee are determined to be satisfactory, then the City will consent to the transfer of the
franchise.
5. Any financial institution holding a pledge of the Grantee's
assets to secure the advance of money for the construction or operation of the franchise
property has the right to notify the City that it, or a designee satisfactory to the City, will take
control of and operate the cable television system upon Grantee's default in its financial
obligations. Further, that financial institution must also submit a plan for such operation within
90 days after assuming control. The plan must insure continued service and compliance with all
franchise requirements during the period that the financial institution will exercise control over
the system. The financial institution may not exercise control over the system for a period
exceeding one year unless authorized by the City, in its sole discretion, and during that period of
time it will have the right to petition the City to transfer the franchise to another Grantee.
6. Unless prohibited by applicable law, Grantee must reimburse
the City for the City's reasonable review and processing expenses incurred in connection with
any transfer or change in control of the franchise. These expenses may include, without
limitation, costs of administrative review, financial, legal, and technical evaluation of the
proposed transferee, consultants (including technical and legal experts and all costs incurred by
these experts), notice and publication costs, and document preparation expenses. The total
amount of these reimbursable expenses may be subject to maximum limits that are specified in
the franchise agreement between the City and the Grantee. No reimbursement may be offset
against any franchise fee payable to the City during the term of the franchise.
G. Geoqraphical Coveraqe
1. Unless otherwise provided in the franchise agreement,
Grantee must design, construct, and maintain the cable television system to have the capability
to pass every dwelling unit and commercial building in the franchise service area, subject to any
service-area line extension requirements or territorial restrictions set forth in the franchise
agreement.
2. After service has been established by activating trunk or
distribution cables for any service area, Grantee must provide standard installations to any
requesting subscriber within that activated part of the service area within seven days from the
date of request, or such longer time as may be requested by the subscriber, provided that the
Grantee is able to secure on reasonable terms and conditions all rights-of-way and permits
necessary to extend service to that subscriber within that period. Standard installations are
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defined as installations that ara located up to 125 feet from the existing distribution system and
do not require trenching to serve.
H. Nonexclusive Franchise
Every franchise granted is nonexclusive. The City specifically reserves
the right to grant, at any time, such additional franchises for a cable television system that it
deems appropriate, subject to applicable state and federal law. If an additional franchise is
proposed to be granted to a subsequent Grantee, a noticed public hearing must first be held if
required by the provisions of Government Code § 53066.3.
I. Multiple Franchises
1. The City may grant any number of franchises, subject to
applicable state and federal law. The City may limit the number of franchises granted, based
upon, but not necessarily limited to, the requirements of applicable law and the following specific
local considerations:
a. The capacity of the public rights-of-way to
accommodate multiple cables in addition to the cables, conduits, and pipes of the existing utility
systems, such as electrical power, telephone, gas, and sewerage.
b. The benefits that may accrue to subscribers as a result
of cable system competition, such as lower rates and improved service.
c. The disadvantages that may result from cable system
competition, such as the raquirement for multiple pedestals on rasidents' property, and the
disruption arising from numerous excavations within the public rights-of-way.
2. The City may require that any new Grantee be responsible
for its own underground tranching and the associated costs if, in the City's opinion, the rights-
of-way in any particular area cannot reasonably accommodate additional cables.
5.12.060 Franchise Applications and Renewal
A. Filin,q of Applications
Any person desiring an initial franchise for a cable television system must
file an application with the City. An application fee deposit in an amount established by
resolution of the City Council must accompany the application. That application fee deposit will
cover all anticipated costs associated with reviewing and processing the application, including
without limitation costs of administrative review, financial, legal, and technical evaluation of the
applicant, consultants (including technical and legal experts and all costs incurred by those
experts), notice and publication requirements, and document preparation expenses. If actual
costs exceed the application fee deposit, the applicant must pay the difference to the City within
30 days following receipt of an itemized statement of those costs. If actual costs are less than
the application fee deposit, the remaining balance will be refunded to the applicant.
B. Applications- Contents
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An application for an initial franchise for a cable television system must
contain, as applicable:
1. A statement describing the proposed franchise service area
and an explanation whether this proposed service area is, or will be, part of a larger regional
cluster of franchise service areas.
2. A resume of the applicant's prior history, including the
applicant's experience and expertise in the cable television industry.
3. A list of the partners, general and limited, of the applicant, if a
partnership, or the percentage of stock owned or controlled by each stockholder, if a closely-
held corporation. If the applicant is a publicly-owned partnership or corporation, each owner of
10 percent or more of the partnership interests, or of the issued and outstanding capital stock,
must be identified. If the applicant is a limited liability company, the following information must
be provided: the address of its principal executive office; the name and business or residence
address of each member and of each holder of an economic interest in the limited liability
company, together with the contribution and the share in profits and losses of each member and
holder of an economic interest; the name and business or residence address of any manager or
managers and the chief executive officer, if any, appointed or elected in accordance with the
articles of organization or operating agreement.
4. A list of officers, directors, and managing employees of the
applicant, and a description of the background and qualifications of each such person.
5. A statement specifying the number of people employed by the
applicant, whether on a full-time or pad-time basis.
6. The names and addresses of any parent or subsidiary of the
applicant, or any other business entity owning or controlling applicant in whole or in part, or that
is owned or controlled in whole or in part by the applicant.
7. Financial statements prepared in accordance with generally
accepted accounting principles that demonstrate the applicant's financial ability to:
a. Construct, operate, maintain and remove any new
physical plant that is proposed to be constructed in the City.
b. Comply with the City's public, educational, and
governmental access requirements.
c. Comply with the City's requirement that franchise fees
be paid on the applicant's gross revenues derived from the operation of the cable system to
provide cable services.
8. An accurate map showing the location of any existing
telecommunications facilities in the City that the applicant intends to use, to purchase, or to
lease.
9. A description of the cable services and any other services that
will be offered by the applicant using existing or proposed facilities.
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10. The proposed construction and service schedule, the
proposed rate structure for cable services, and the proposed commitment to provide public,
educational, and governmental access capacity, services, facilities, and equipment.
11.Any additional information that the City deems to be
reasonably necessary to evaluate the applicant's qualifications.
C. Consideration of Initial Applications
1. Upon receipt of an application for an initial franchise, the City
Manager or the City Manager's designee must prepare a report and make recommendations to
the City Council concerning that application.
2. A public hearing will be noticed prior to any initial franchise
grant, at a time and date approved by the City Council. Within 30 days after the close of the
hearing, the City Council will make a decision, based upon the documents and testimony
received at the hearing, whether the franchise should be granted, and, if granted, subject to
what conditions. The City Council may grant one or more franchises, or may decline to grant
any franchise.
D. Franchise Renewal
Franchise renewals will be processed in accordance with then-applicable
law and with the renewal terms, if any, of the franchise agreement. The City and Grantee, by
mutual consent, may enter into renewal negotiations at any time during the term of the
franchise. Unless prohibited by applicable law, a renewal application fee deposit in an amount
established by resolution of the City Council must accompany the renewal application or the
renewal request. That renewal application fee deposit will cover all anticipated costs associated
with reviewing and processing the renewal application, including the review of Grantee's prior
compliance with the franchise, the ascertainment of the community's cable-related needs and
interests, the engagement of technical and legal consultants, and expenses related to
negotiations and document preparation. If actual costs exceed the renewal application fee
deposit, the Grantee must pay the difference to the City within 30 days following receipt of an
itemized statement of those costs. If actual costs are less than the renewal application fee
deposit, the remaining balance will be refunded to the Grantee. No renewal application fee may
be offset against any franchise fee payable to the City during the term of the franchise. The City
Council may authorize the renewal of a cable television franchise agreement by resolution.
5.12.070 Contents of Cable Television Franchise Agreements
A. The provisions of a franchise agreement for the operation of a
cable television system may relate to or include, without limitation, the following subject matters:
1. The geographical area, duration, and nonexclusive nature of
the franchise.
2. The applicable franchise fee to be paid to the City, including
the percentage amount, the method of computation, and the time for payment.
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3. Requirements relating to compliance with and implementation
of state and federal laws and regulations pertaining to the operation of the cable television
system.
4. Requirements relating to the construction, upgrade, or rebuild
of the cable television system, as well as the provision of special services, such as outlets for
public buildings, emergency alert capability, and parental control devices.
5. Requirements relating to the maintenance of a performance
bond, a security fund, a letter of credit, or similar assurances to secure the performance of the
Grantee's obligations under the franchise agreement.
6. Requirements relating to comprehensive liability insurance,
workers' compensation insurance, and indemnification.
7. Requirements relating to consumer protection and customer
service standards, which requirements may include, without limitation, compliance with the
statutes, rules and regulations set forth below in Section 5.12.080 of this Article 2.
8. Requirements relating to the Grantee's support of local cable
usage, including the provision of public, educational, and governmental access channels, the
coverage of public meetings and special events, and financial support for the required access
channels.
9. Requirements relating to the Grantee's obligation to provide an
institutional network, and channel capacity on that institutional network for educational or
governmental use, subject to the City's rules and procedures for the use of such channel
capacity and for compatibility with any telecommunications network that has been or may be
developed by the City.
10. Requirements relating to construction, operation, and
maintenance of the cable television system within the City's streets and public rights-of-way,
including compliance with all applicable building codes and permit requirements of the City, the
abandonment, removal, or relocation of facilities, and compliance with FCC technical standards.
11. Requirements relating to recordkeeping, accounting
procedures, reporting, periodic audits, performance reviews, the inspection of Grantee's books
and records, and reimbursement for technical audits and franchise fee audits under specified
circumstances.
12. Acts or omissions constituting material breaches of or defaults
under the franchise agreement, and the applicable penalties or remedies for such breaches or
defaults, including fines, penalties, liquidated damages, suspension, revocation, and
termination.
13. Requirements relating to the sale, assignment, or other
transfer or change in control of the franchise.
14. The Grantee's obligation to maintain continuity of service and
to authorize, under certain specified circumstances, the City's operation and management of the
cable system.
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15. Such additional requirements, conditions, policies, and
procedures as may be mutually agreed upon by the parties to the franchise agreement and that
will, in the judgment of City staff and the City Council, best serve the public interest and protect
the public health, welfare, and safety.
B. If there is any conflict or inconsistency between the provisions of a
franchise agreement authorized by the City Council and provisions of this Article 2, the
provisions of the franchise agreement will control.
5.12.080 Consumer Protection and Service Standards
A. Operational Standards.
1. Grantee must maintain the necessary facilities, equipment,
and personnel to comply with the following consumer protection and service standards under
normal operating conditions:
a. Sufficient toll-free telephone line capacity during
normal business hours to ensure that telephone calls are answered promptly. Telephone
answer time by a customer service representative, including wait time, may not exceed 30
seconds when the connection is made. If the call needs to be transferred, transfer time must
not exceed 30 seconds.
b. A caller must receive a busy signal less than three
percent of the time, measured quarterly.
c. Emergency toll-free telephone line capacity on a 24-
hour basis, including weekends and holidays. After normal business hours, the telephone calls
may be answered by a service or an automated response system, including an answering
machine. Calls received after normal business hours must be responded to by a trained
company representative on the next business day.
d. A conveniently-located local business and service or
payment office open during normal business hours at least eight hours daily on weekdays, and
at least four hours weekly on evenings or weekends, and adequately staffed with trained
customer service representatives to accept subscriber payments and to respond to service
requests, inquiries, and complaints.
e. An emergency system maintenance and repair staff,
capable of responding to and repairing major system malfunctions on a 24-hour per day basis.
f. A trained installation staff must provide service to any
subscriber requiring a standard installation within seven days after receipt of a request, or such
longer time as may be requested by the subscriber, in all areas where trunk and feeder cable
have been activated.
g. The Grantee must schedule, within a specified four-
hour time period Monday through Saturday (legal holidays excluded), all appointments with
subscribers for installation of service, service calls, and other activities at the subscriber's
location. The Grantee may schedule installation and service calls outside of normal business
hours for the convenience of the subscriber. The Grantee may not cancel an appointment with
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a subscriber after the close of business on the business day prior to the scheduled appointment.
If a Grantee representative is delayed in keeping an appointment with a subscriber and will not
be able to honor the scheduled appointment, the subscriber must be contacted prior to the time
of the scheduled appointment, and the appointment must be rescheduled, as necessary, at a
time that is convenient for the subscriber. The Grantee must undertake appropriate quality
control measures to ensure that the customer is satisfied with the work.
h. Subscribers who have experienced a late or a missed
appointment due to the fault of the Grantee will receive either a free installation or a $20 credit.
i. Upon a subscriber's request, the Grantee will arrange
for pickup or replacement of converters or other equipment provided by the Grantee at the
subscriber's address within 14 days after the request is made if the subscriber is mobility-
limited.
2. Under normal operating conditions, the standards of
subparagraphs (a), (c), (f) and (g) above must be met not less than ninety percent of the time,
measured on a quarterly basis.
B. Service Standards
1. The Grantee will render efficient service, make repairs
promptly, and interrupt service only for good cause and for the shortest time possible. Except in
emergency situations, scheduled interruptions will occur during a period of minimum use of the
cable system, preferably between midnight and 6:00 a.m. Unless the scheduled interruption
lasts for no more than two hours and occurs between midnight and 6:00 a.m. (in which event
24-hours prior notice must be given to the City), 48-hours prior notice must be given to
subscribers.
2. The Grantee will maintain a repair force of technicians who will
respond to subscriber requests for service within the following time frames:
a. For a system outage: Within two hours, including
weekends, after receiving subscriber calls or requests for service that by number identify a
system outage of sound or picture on one or more channels, affecting five or more subscribers
to the system.
b. For an isolated outage: Within 24 hours, including
weekends, after receiving requests for service identifying an isolated outage of sound or picture
on one or more channels.
c. For inferior signal quality: No later than the following
business day, excluding Sundays and holidays, after a request for service identifying a problem
concerning picture or sound quality.
3. The Grantee will be deemed to have responded to a request
for service under the provisions of this paragraph (B) when a technician arrives at the service
location and begins work on the problem if the problem cannot be corrected remotely. If a
subscriber is not home when the technician arrives, the technician must leave written
notification of arrival.
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4. The Grantee may not charge for the repair or replacement of
defective or malfunctioning equipment provided by the Grantee to subscribers, unless the defect
or malfunction was caused by the subscriber.
5. The Grantee must determine the nature of the problem within
24 hours after commencing work and resolve all cable system related problems within three
business days, unless technically infeasible.
C. Billinq and Information Standards.
1. Subscriber bills must be clear, concise, and understandable.
Bills must be fully itemized, with itemizations including, but not limited to, basic and premium
service charges and equipment charges. Bills also must clearly delineate all activity during the
billing period, including optional charges, rebates, and credits.
2. The first billing to a subscriber after a new installation or
service change must be prorated based upon when the new or changed service commenced.
Subscribers must not be charged a late fee or otherwise penalized for any failure attributable to
the Grantee, including the failure to timely or correctly bill the subscriber.
3. In case of a billing dispute, the Grantee must respond in
writing to a written complaint from a subscriber within 30 days after receiving the complaint at
the office specified on the billing statement for receiving that complaint.
4. Upon request by a subscriber, credits or refunds must be
provided by Grantee to subscribers who experience an outage, interruption, or disconnection of
service of four or more consecutive hours, provided that such loss of service is neither caused
by the subscriber nor attributable to scheduled repairs, maintenance, or construction in
circumstances where Grantee has provided advance written notice to subscriber, and the loss
of service does not exceed the time period specified by Grantee. For subscribers terminating
service, credits or refunds must be issued promptly, but no later than 30 days after the return of
any Grantee-supplied equipment.
5. The Grantee must provide written information on each of the
following matters at the time of the installation of service, at least annually to all subscribers,
and at any time upon request:
a. Products and services offered.
b. Prices and options for programming services and
conditions of subscription to programming and other services.
c. Installation and service maintenance policies.
d. Instructions on the use of the cable service.
e. Channel positions of programming carried on the
system.
f. Billing and complaint procedures, including the address
and telephone number of the City's office designated for dealing with cable-related issues.
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g. Consumer protection and service standards and
penalties for noncompliance.
6. Subscribers must be notified in writing of any changes in rates,
programming services, or channel positions as soon as possible. Notice must be given to
subscribers a minimum of 30 days in advance of those changes if the change is within the
control of the Grantee. In addition, Grantee will endeavor to notify Grantor of those changes at
least five working days before subscribers ara notified.
7. The Grantee must maintain a public file containing all written
notices provided to subscribers under these consumer protection and service standards and all
published promotional offers made by Grantee to subscribers. These documents must be
maintained for a minimum period of two years.
D. Verification of Compliance with Standards.
1. Upon 30 days prior wdtten notice, the City may require the
Grantee to provide a written report demonstrating its compliance with any of the consumer
service standards specified in this section. The Grantee must provide sufficient documentation
to enable the City to verify compliance.
2. A repeated and verifiable pattern of noncompliance with the
consumer protection and service standards of this section, after the Grantee's receipt of written
notice and an opportunity to cure, may be deemed a material breach of the franchise
agreement.
E. Subscriber Complaints and Disputes.
1. The Grantee must establish written procedures for receiving,
acting upon, and resolving subscriber complaints without intervention by the City. The written
procedures must prescribe the manner in which a subscriber may submit a complaint, either
orally or in writing, specifying the subscriber's grounds for dissatisfaction. The Grantee must
file a copy of these procedures with the City. These procedures must include a requirement
consistent with Section 5.12.080(C)(3).
2. Upon request, and subject to applicable law protecting
subscriber privacy rights, the City has the right to review the Grantee's response to subscriber
complaints.
3. All subscribers have the right to continue receiving service so
long as their financial and other obligations to the Grantee are honored. If the Grantee elects to
rebuild, modify, or sell the system, or if the City gives notice of intent to terminate or not to
renew the franchise, the Grantee must act to ensure that all subscribers receive service while
the franchise remains in force.
4. Upon a change of control of the Grantee, or if a new operator
acquires the cable system, the original Grantee must cooperate with the City, the new Grantee,
or the new operator in maintaining continuity of service to all subscribers. During that transition
period, the Grantee is entitled to the revenues derived from its operation of the cable system.
F. Disconnection and Downqrades.
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1. A subscriber may terminate or downgrade service at any time,
and the Grantee must promptly comply with the subscriber's request within seven days or at any
later time requested by the subscriber. No period of notice prior to voluntary termination or
downgrade of service may be required of subscribers. Grantee will impose no charges for the
voluntary termination of all services unless a visit to the subscriber's premises is required to
remove a converter box or other equipment or property owned by Grantee. Grantee may, in
accordance with applicable law, charge a fee to downgrade service if a service call is required.
2. The Grantee may disconnect a subscriber's service in
compliance with paragraphs (i), (j), and (k)of Section 53088.2 of the California Government
Code. If service is disconnected for nonpayment of past due fees or charges, the Grantee must
promptly reinstate service upon payment in full by the subscriber of all such fees and charges,
including late charges.
3. Notwithstanding the requirements of subsection (2) above, the
Grantee may immediately disconnect service to a subscriber if the subscriber is damaging or
destroying the Grantee's cable system or equipment.
4. The Grantee may also disconnect service to a subscriber
when service causes signal leakage exceeding federal limits. If service is disconnected, the
Grantee will immediately resume service without charge upon the satisfactory correction of the
signal leakage problem if the signal leakage problem is attributable to the Grantee.
5. The Grantee may also disconnect service in cases where
customers are stealing service or have made threats of physical violence upon Grantee's
personnel.
6. Upon termination of service to a subscriber, the Grantee will
endeavor to remove its equipment from the subscriber's premises within 30 days.
G. Changes in Service. Except as otherwise provided by federal or state
law, subscribers must not be required to pay any additional fee or charge, other than the regular
service fee, in order to receive the services selected. No charge may be imposed for any
service or equipment that the subscriber has not affirmatively selected. Payment of the regular
monthly bill will not by itself constitute an affirmative selection.
H. Deposits. Grantee may require a reasonable, nondiscriminatory
deposit on equipment provided to subscribers. Such deposits must be placed in an interest-
bearing account. The deposit must be returned, with interest earned to the date of repayment,
within 30 days after the equipment is returned to the Grantee.
I. Parental Control Option. Grantee must provide parental control
devices at no charge to all subscribers who desire to block the video or audio portion of any pay
channels providing adult programming that the subscriber finds objectionable. For other
programming, such devices will be provided at a reasonable charge to the subscriber.
J. Additional Requirements.
1. All officers, agents, and employees of the Grantee, or of its
contractors or subcontractors, who, in the normal course of work come into contact with
members of the public, or who require entry onto subscribers' premises, must display a photo-
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identification card. The Grantee must account for all identification cards at all times. All
vehicles of the Grantee or its subcontractors must be clearly identified as vehicles engaged in
providing services for the Grantee.
2. In addition to the consumer protection and service standards
specified in this Section 5.12.080, the Grantee must comply with all applicable consumer
protection and service standards that ara imposed upon cable operators by the following:
a. Federal statutes, and the rules, regulations, and orders
of the Federal Communications Commission, including the following:
(i) The provisions of Section 76.630 of Title 47
of the Code of Federal Regulations, as it now exists or may later be amended, which relate to
compatibility with consumer electronics equipment.
(ii) The provisions of Section 551 of Title 47,
United States Code, as it now exists or may later be amended, which ralate to the protection of
subscriber privacy.
b. The provisions of California Government Code
Sections 53054, et seq., entitled the "Cable Television and Video Provider Customer Service
and Information Act."
c. The provisions of California Government Code Section
53088, et seq., entitled the "Video Customer Service Act."
1722(b)(1)-(6), which ralate to
companies and their subscribers.
d. The provisions of California Civil Code Section
service or repair transactions between cable television
e. The provisions of California Penal Code Section 637.5,
which ralate to subscribers' rights to privacy protection.
3. If there is any conflict or inconsistency between a consumer
protection and service standard specified in this Section 5.12.080, and a standard set forth in
the statutes, rules, ragulations, and orders that ara referanced above in subsection (2), then the
standard that is specified in this Section 5.12.080 will apply to the extent authorized by
applicable law.
K. Penalties for Noncompliance.
1. Purpose. The purpose of this paragraph is to authorize
monetary penalties for the violation of the customer service standards established by this
section in a manner consistent with the Video Customer Service Act (Government Code
Sections 53088 et seq.) and pursuant to the City's inherant police powers. The imposition of
penalties authorized by this paragraph (K) will not pravent the City or any other affected party
from exercising any other remedy to the extent permitted by law.
2. Administration and Appeals.
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a. The City Manager or the City Manager's designee is
authorized to administer this paragraph (K). Decisions by the City Manager to assess monetary
penalties against the Grantee must be in writing and must contain findings supporting the
decisions. Decisions by the City Manager are final, unless appealed to the City Council.
b. If the Grantee or any interested person is aggrieved by
a decision of the City Manager, the aggrieved party may, within 10 days of the written decision,
appeal that decision in writing to the City Council. The appeal letter must be accompanied by
the fee established by the City Council for processing the appeal. The City Council may affirm,
modify, or reverse the decision of the City Manager.
c. Schedule of Penalties. The following schedule of
monetary penalties may be assessed against the Grantee for the material breach of the
provisions of the customer service standards set forth in this section, provided that the breach is
within the reasonable control of the Grantee:
(i) For a first material breach: the maximum
penalty is $200 for each day of material breach, but not to exceed a cumulative total of $600 for
each occurrence of the material breach.
(ii) For a second material breach of the same
nature within a 12-month period for which the City has provided notice and a penalty has been
assessed, the maximum penalty is $400 for each day of the material breach, but not to exceed
a cumulative total of $1200 for each occurrence of the material breach.
(iii) For a third or further material breach of the
same nature within a 12-month period for which the City has provided notice and a penalty has
been assessed, the maximum penalty is $1000 for each day of the material breach, but not to
exceed a cumulative total of $3000 for each occurrence of the material breach.
(iv) The maximum penalties referenced above
may be increased by any additional amount authorized by state law.
d. Judicial Remedy. This paragraph does not preclude
any affected party from pursuing any judicial remedy available to that party without regard to this
paragraph (K).
e. Notification of Breach. The City must give the Grantee
written notice of any alleged breach of the consumer service standards and allow the Grantee at
least 30 days, or such longer time as may be reasonably necessary to cure, from receipt of the
notice to remedy the specified breach. For the purpose of assessing penalties, a material
breach is deemed to have occurred for each day, following the expiration of the period for cure
specified herein, that any breach has not been remedied by the Grantee, irrespective of the
number of subscribers affected.
f. Limitations. With respect to any Grantee that operates
under a franchise or license agreement with the City, any monetary penalties assessed under
this paragraph (K) must be reduced dollar for dollar to the extent that any liquidated damage or
penalty provision of the franchise or license agreement imposes a monetary obligation on the
Grantee for the same customer service failure, and no other monetary damages may be
assessed for that customer service failure.
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ARTICLE 3. OPEN VIDEO SYSTEMS
5.12.090 Applicability
The provisions of this Article 3 apply to an open video system operator,
as defined below in Section 5.12.170, that intends to deliver video programming to consumers
in the City over an open video system.
5.12.100 Application Required
A. Before commencing the delivery of video programming services to
consumers in the City over an open video system, the open video system operator must file an
application with the City. That application must include or be accompanied by the following, as
applicable:
applicant.
1. The identity of the applicant, including all affiliates of the
2. Copies of FCC Form 1275, all "Notices of Intent" filed under 47
CFR 76.1503(b)(1), and the Order of the FCC, all of which relate to certification of the applicant
to operate an open video system in the City in accordance with Section 653(a)(1) of the
Communications Act and the FCC's rules.
3. The area or areas of the City that the applicant desires to
serve.
4. A description of the open video system services that will be
offered by the applicant over its existing or proposed facilities.
5. A description of the transmission medium that will be used by
the applicant to deliver the open video system services.
6. Information in sufficient detail to establish the applicant's
technical qualifications, experience, and expertise regarding the ownership and operation of the
open video system described in the application.
7. Financial statements prepared in accordance with generally
accepted accounting principles that demonstrate the applicant's financial ability to:
a. Construct, operate, maintain and remove any new
physical plant that is proposed to be constructed in the City.
b. Comply with the City's public, educational, and
governmental access requirements as specified below in Section 5.12.120(B)(4).
c. Comply with the City's requirement that gross revenue
fees be paid in the maximum amount authorized under federal law, as specified below in
Section 5.12.120(B)(2).
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8. An accurate map showing the location of any existing
telecommunications facilities in the City that the applicant intends to use, to purchase, or to
lease.
9. If the applicant's operation of the open video system will
require the construction of new physical plant and facilities in the City, the following additional
information must be provided:
a. A preliminary construction schedule and completion
dates.
b. Preliminary engineering plans, specifications, and a
network map of any new facilities to be constructed in the City, in sufficient detail to identify:
(i)
The location and route requested for the
applicant's proposed facilities.
(ii) The locations, if any, for interconnection
with the facilities of other telecommunications service providers.
(iii) The specific structures, improvements,
facilities, and obstructions, if any, that the applicant proposes to add, remove, or relocate on a
temporary or permanent basis.
c. The applicant's statement that, in constructing any new
physical plant, the applicant will comply with all applicable ordinances, rules, and regulations of
the City, including the payment of all required permit and processing fees.
10. The information and documentation that is required to be
submitted to the City by a video provider, as specified below in paragraph(B) of
Section 5.12.140.
Manager.
11. Such additional information as may be requested by the City
12. An application fee deposit in an amount established by
resolution of the City Council.
B. If any item of information specified above in paragraph (A) is
determined under paramount federal or state law to be unlawful, the City Manager is authorized
to waive the requirement that such information be included in the application.
5.12.110 Review of the Application
Within 30 days after receipt of an application filed under Section 5.12.100
that is deemed to be complete, the City Manager will give written notice to the applicant of the
City's intent to negotiate an agreement setting forth the terms and conditions under which the
operation of the proposed open video system will be authorized by the City. The
commencement of those negotiations will be on a date that is mutually acceptable to the City
and to the applicant.
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5.12.120 A.qreement Required
A. No video programming services may be provided in the City by an
open video system operator unless the operator and the City have executed a written
agreement, which may be designated as a franchise, setting forth the terms and conditions
under which the operation of the proposed open video system will be authorized by the City.
That agreement may be authorized and approved by resolution of the City Council.
B. The agreement between the City and the open video system operator
may contain provisions that relate to the following subject matters, to the extent that such
provisions and subject matters are not preempted by federal law or regulations:
1. The nature, scope, and duration of the agreement, including
provisions for its renewal or extension.
2. The obligation of the open video system operator to pay to the
City, at specified times and in lieu of the franchise fees permitted under Section 622 of the
Communications Act, fees on the gross revenue received by the operator, as authorized by 47
CFR 76.1511, in accordance with the following standards and procedures:
a. The amount of the fees on the gross revenue will be
the maximum amount authorized by Section 653(c)2)(B) of the Communications Act, which is
the rate imposed by the City on the existing franchised cable operator.
b. The term "gross revenue" means (i)all gross revenue
received by an open video system operator or its affiliates, including all revenue received from
subscribers and all carriage revenue received from unaffiliated video programming providers;
and (ii) all advertising revenue received by the operator or its affiliates in connection with the
provision of video programming, where such revenue is included in the calculation of the cable
franchise fee paid to the City by the incumbent franchised cable operator. The term "gross
revenue" does not include revenue, such as subscriber or advertising revenue, collected by
unaffiliated video programming providers.
3. The obligation of the open video system operator to comply
with requirements relating to information collection and racordkeeping, accounting procedures,
reporting, periodic audits, and inspection of records in order to ensure the accuracy of the fees
on the gross revenue that are required to be paid as specified above in Subsection (2).
4. The obligation of the open video system operator to meet the
City's requirements with respect to public, educational, and governmental access channel
capacity, services, facilities, and equipment, as provided for in 47 CFR 76.1505. In this regard,
the following standards and procedures ara applicable:
a. The open video system operator is subject to the same
public, educational, and governmental access requirements that apply within the cable
television franchise service area with which its system overlaps.
b. The open video system operator must ensure that all
subscribers receive all public, educational, and governmental access channels within the
franchise service area in which the City's subscribers are located.
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c. The open video system operator may negotiate with
the City to establish the operator's obligations with respect to public, educational, and
governmental access channel capacity, services, facilities, and equipment. These negotiations
may include the City's franchised cable operator if the City, the open video system operator, and
the franchised cable operator so desire.
d. If the open video system operator and the City are
unable to reach an agreement regarding the operator's obligations with respect to public,
educational, and governmental access channel capacity, services, facilities, and equipment
within the City's jurisdiction, then the following obligations will be imposed:
(i) The open video system operator must
satisfy the same public, educational, and governmental access obligations as the City's
franchised cable operator by providing the same amount of channel capacity for public,
educational, and governmental access and by matching the City's franchised cable operator's
annual financial contributions in support of public, educational, and governmental access
services, facilities, and equipment that are actually used by the City. For in-kind contributions,
such as cameras or production studios, the open video system operator may satisfy its statutory
obligation by negotiating mutually agreeable terms with the City's franchised cable operator, so
that public, educational, and governmental access services to the City are improved or
increased. If such terms cannot be agreed upon, the open video system operator must pay to
the City the monetary equivalent of the franchised cable operator's depreciated in-kind
contribution, or, in the case of facilities, the annual amortization value. Any matching
contributions provided by the open video system operator must be used to fund activities arising
under Section 611 of the Communications Act.
(ii) The City will impose upon the open video
system operator the same rules and procedures that it imposes upon the franchised cable
operator with regard to the open video system operator's use of channel capacity designated for
public, educational, and governmental access use when that capacity is not being used for such
purposes.
e. The City's franchised cable operator is required under
federal law to permit the open video system operator to connect with its public, educational, and
governmental access channel feeds. The open video system operator and the franchised cable
operator may decide how to accomplish this connection, taking into consideration the physical
and technical characteristics of the cable and the open video systems involved. If the
franchised cable operator and the open video system operator cannot agree on how to
accomplish the connection, the City has the right to decide. The City may require that the
connection occur on City-owned property or on public rights-of-way.
f. All costs of connection to the franchised cable
operator's public, educational, and governmental access channel feed must be borne by the
open video system operator. These costs will be counted towards the open video system
operator's matching financial contributions set forth above in subparagraph (d)(i).
g. The City will not impose upon the open video system
operator any public, educational, or governmental access obligations that are greater than those
imposed upon the incumbent franchised cable operator.
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h. If there is no incumbent franchised cable operator, the
provisions of 47 CFR 76.1505(d)(6) will be applicable in determining the obligations of the open
video system operator.
i. The open video system operator must adjust its system
to comply with new public, educational, and access obligations imposed on the City's incumbent
franchised cable operator following a renewal of the cable television franchise; provided,
however, that the open video system operator will not be required to displace other
programmers using its open video system to accommodate public, educational, and
governmental access channels. The open video system operator must comply with such new
public, educational, and governmental access obligations whenever additional capacity is or
becomes available, whether it is due to increased channel capacity or to decreased demand for
channel capacity.
5. If the City and the open video system operator cannot agree
on the application of the FCC's rules regarding the open video system operator's obligations to
provide public, educational, and governmental access under the provisions of subsection (4) set
forth above, then either party may file a complaint with the FCC in accordance with the dispute
resolution procedures set forth in 47 CFR 76.1514. No agreement will be executed by the City
until the dispute has been finally resolved.
6. If the open video system operator intends to maintain an
institutional network, as defined in Section611(f) of the Communications Act, the City will
require that educational and governmental access channels be designated on that institutional
network to the same extent that those channels are designated on the institutional network of
the City's franchised cable operator.
7. The authority of an open video system operator to exercise
editorial control over any public, educational, or governmental use of channel capacity will be
restricted in accordance with the provisions of 47 CFR 76.1505(f).
8. The obligation of the open video system operator to comply
with all applicable federal, state, and local statutes, ordinances, and regulations relating to
customer service standards, including those specified in Section 5.12.080 of Article 2 of this
chapter.
9. If new physical plant is proposed to be constructed within the
City, the obligation of the open video system operator to comply with the following rights-of-way
use and management responsibilities that are also imposed by the City upon other cable
television and telecommunications service providers in a nondiscriminatory and competitively
neutral manner:
a. Compliance with all applicable City codes, including
applications for excavation, encroachment, and construction permits and the payment of all
required permit and inspection fees.
b. The coordination of construction activities.
c. Compliance with
procedures for constructing lines across private property.
established standards and
R:/Ords 2003/Ords 03-11 21
d. Compliance with all applicable insurance and
indemnification requirements.
e. The repair and resurfacing of construction-damaged
streets.
f. Compliance with all public safety requirements that are
applicable to cable television and telecommunications service providers using public property or
public rights-of-way.
10. Acts or omissions constituting breaches or defaults of the
agreement, and the applicable penalties, liquidated damages, and other remedies, including
fines or the suspension, revocation, or termination of the agreement.
11. Requirements relating to the sale, assignment, or transfer of
the open video system.
12. Requirements relating to the open video system operator's
compliance with and implementation of state and federal laws, rules, and regulations pertaining
to the operation of the open video system.
13. Such additional requirements, conditions, terms, policies, and
procedures as may be mutually agreed upon by the City and the open video system operator
and that will, in the judgment of the City Council, best serve the public interest and protect the
public health, welfare, and safety.
ARTICLE 4. OTHER VIDEO AND TELECOMMUNICATIONS SERVICES AND
SYSTEMS
5.12.130. Other Multichannel Video Proqramminq Distributors
The term "cable system," as defined in federal law and as set forth in
Section 5.12.170 below, does not include a facility that serves subscribers without using any
public rights-of-way. Consequently, the categories of multichannel video programming identified
below are not deemed to be "cable systems" and are therefore exempt from the City's franchise
requirements and from certain other local regulatory provisions authorized by federal law,
provided that their distribution or transmission facilities do not involve the use of the City's public
rights-of-way.
A. Multichannel multipoint distribution service ("MMDS"), also known as
"wireless cable," which typically involves the transmission by an FCC-licensed operator of
numerous broadcast stations from a central location using line-of-sight technology.
B. Local multipoint distribution service ("LMDS"), another form of over-
the-air wireless video service for which licenses are auctioned by the FCC, and which offers
video programming, telephony, and data networking services.
C. Direct broadcast satellite ("DBS"), also referred to as "direct-to-home
satellite services," which involves the distribution or broadcasting of programming or services by
satellite directly to the subscriber's premises without the use of ground receiving or distribution
equipment, except at the subscriber's premises or in the uplink process to the satellite. Local
R:/Ords 2003/Ords 03-11 22
regulation of direct-to-home satellite services is further proscribed by the following federal
statutory provisions:
1. 47 U.S.C. § 303(v) confers upon the FCC exclusive jurisdiction
to regulate the provision of direct-to-home satellite services.
2. Section 602 of the Telecommunications Act of 1996 states that
a provider of direct-to-home satellite service is exempt from the collection or remittance, or both,
of any tax or fee imposed by any local taxing jurisdiction on direct-to-home satellite service. The
terms "tax" and "fee" are defined by federal statute to mean any local sales tax, local use tax,
local intangible tax, local income tax, business license tax, utility tax, privilege tax, gross
receipts tax, excise tax, franchise fees, local telecommunications tax, or any other tax, license,
or fee that is imposed for the privilege of doing business, regulating, or raising revenue for a
local taxing jurisdiction.
5.12.140 Video Providers - Registration; Customer Service Standards
A. Unless the customer protection and customer service obligations of a
video provider, as that term is defined in Section 5.12.170, are specified in a franchise, license,
lease, or similar written agreement with the City, a video provider must comply with all
applicable provisions of the following state statutes:
1. The Cable Television and Video Customer Service and
Information Act (Government Code §§ 53054, et seq.)
2. The Video Customer Service Act (Government Code
§§ 53088, et seq.)
B. All video providers that are operating in the City on the effective date
of this ordinance, or that intend to operate in the City after its effective date, must register with
the City; provided, however, that this registration requirement is not applicable to any video
provider that has executed a franchise, license, lease or similar written agreement with the City.
The registration form must include or be accompanied by the following:
1. The video provider's name, address, and local telephone
numbers.
2. The names of the officers of the video provider.
3. A copy of the video provider's written policies and procedures
relating to customer service standards and the handling of customer complaints, as required by
Government Code §§ 53054, et seq. These customer service standards must include, without
limitation, standards regarding the following:
a. Installation, disconnection, service and repair
obligations, employee identification, and service call response time and scheduling.
b. Customer service telephone and office hours.
c. Procedures for billing, charges, refunds, and credits.
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d. Procedures for termination of service.
e. Notice of the deletion of a programming service, the
changing of channel assignments, or an increase in rates.
f. Complaint procedures and procedures for bill dispute
resolution.
g. The video provider's written acknowledgment of its
obligation under Government Code §53055.1 to provide to new customers a notice describing
the customer service standards specified above in subparagraphs (a) through (f) at the time of
installation or when service is initiated. The notice must also include, in addition to all of the
information described above in subparagraphs (a) through (f), all of the following:
(i) A listing of the services offered by the video
provider that clearly describes all levels of service and the rates for each level of service.
(ii) The telephone number or numbers through
which customers may subscribe to, change, or terminate service, request customer service, or
seek general or billing information.
(iii) A description of the rights and remedies that
the video provider may make available to its customers if the video provider does not materially
meet its customer service standards.
h. The video provider's written commitment to distribute
annually to its employees and customers, and to the City, a notice describing the customer
service standards specified above in subparagraphs (a) through (f). This annual notice must
include the report of the video provider on its performance in meeting its customer service
standards, as required by Government Code §53055.2. Subject to the written notice and cure
provisions of Government Code §53056(b), a video provider that fails to distribute the annual
notice required by Government Code §53055.1 will be assessed a monetary penalty in the sum
of $500 for each year in which the annual notice is not distributed to all of its customers.
4. Unless a video provider is exempt under federal law from its
payment, a registration fee in an amount established by resolution of the City Council to cover
the reasonable costs incurred by the City in reviewing and processing the registration form.
5. In addition to the registration fee specified above in
subsection (4), the written commitment of the video provider to pay to the City, when due, all
costs and expenses reasonably incurred by the City in resolving any disputes between the video
provider and its subscribers, which dispute resolution is mandated by Government Code
§53088.2(o).
C. The customer service obligations imposed upon video providers by
the Video Customer Service Act (Government Code §53088 et seq.) consist of the following:
1. Every video provider must render reasonably efficient service,
make repairs promptly, and interrupt service only as necessary.
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2. All video provider personnel contacting subscribers or potential
subscribers outside the office of the provider must be clearly identified as associated with the
video provider.
3. At the time of installation, and annually thereafter, all video
providers must provide to all customers a written notice of the programming offered, the prices
for that programming, the provider's installation and customer service policies, and the name,
address, and telephone number of the City's office that is designated for receiving complaints.
4. All video providers must have knowledgeable, qualified
company representatives available to respond to customer telephone inquiries Monday through
Friday, excluding holidays, during normal business hours.
5. All video providers must provide to customers a toll-free or
local telephone number for installation, service, and complaint calls. These calls must be
answered promptly by the video providers.
6. All video providers must render bills that are accurate and
understandable.
7. All video providers must respond promptly to a complete
outage in a customer's service. The response must occur within 24 hours of the reporting of
that outage to the provider, except in those situations beyond the reasonable control of the
video provider. A video provider will be deemed to respond to a complete outage when a
company representative arrives at the outage location within 24 hours and begins to resolve the
problem.
8. All video providers must provide a minimum of 30 days' written
notice before increasing rates or deleting channels. All video providers must make every
reasonable effort to submit the notice to the City in advance of its distribution to customers. The
30-day notice is waived if the increases in rates or deletion of channels are outside the control
of the video provider. In those cases, the video provider must make reasonable efforts to
provide customers with as much notice as possible.
9. All video providers must allow every residential customer who
pays his or her bill directly to the video provider at least 15 days from the date the bill for
services is mailed to the customer, to pay the listed charges unless otherwise agreed to
pursuant to a residential rental agreement establishing tenancy. Customer payments must be
posted promptly. No video provider may terminate residential service for nonpayment of a
delinquent account unless the video provider furnishes notice of the delinquency and impending
termination at least 15 days prior to the proposed termination. The notice must be mailed,
postage prepaid, to the customer to whom the service is billed. Notice must not be mailed until
the 16th day after the date the bill for services was mailed to the customer. The notice of
delinquency and impending termination may be part of a billing statement. No video provider
may assess a late fee any earlier than the 22nd day after the bill for service has been mailed.
10. Every notice of termination of service pursuant to the
preceding subsection (9) must include all of the following information:
a. The name and address of the customer whose account
is delinquent.
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b. The amount of the delinquency.
c. The date by which payment is required in order to
avoid termination of service.
d. The telephone number of a representative of the video
provider who can provide additional information and handle complaints or initiate an
investigation concerning the service and charges in question. Service may only be terminated
on days in which the customer can reach a representative of the video provider either in person
or by telephone.
11. Any service terminated without good cause must be restored
without charge for the service restoration. Good cause includes, but is not limited to, failure to
pay, payment by check for which there are insufficient funds, theft of service, abuse of
equipment or system personnel, or other similar subscriber actions.
12. AII video providers must issue requested refund checks
promptly, but no later than 45 days following the resolution of any dispute, and following the
return of the equipment supplied by the video provider, if service is terminated.
13. All video providers must issue security or customer deposit
refund checks promptly, but no later than 45 days following the termination of service, less any
deductions permitted by law.
14. Video providers must not disclose the name and address of a
subscriber for commercial gain to be used in mailing lists or for other commercial purposes not
reasonably related to the conduct of the businesses of the video providers or their affiliates,
unless the video providers have provided to the subscriber a notice, separate or included in any
other customer notice, that clearly and conspicuously describes the subscriber's ability to
prohibit that disclosure. Video providers must provide an address and telephone number for a
local subscriber to use without toll charge to prevent disclosure of the subscriber's name and
address.
D. As authorized by Government Code §53088(q), the following
schedule of penalties is adopted. These penalties may be imposed for the material breach by a
video provider of the consumer protection and service standards that are set forth above in
paragraph (C), provided that the breach is within the reasonable control of the video provider.
These penalties are in addition to any other remedies authorized by this article or by any other
law, and the City has discretion to elect the remedy that it will apply. The imposition of penalties
authorized by this paragraph (D) will not prevent the City or any other affected party from
exercising any other remedy to the extent permitted by law, including but not limited to any
judicial remedy as provided below in subsection (2).
1. Schedule of Penalties.
a. For a first material breach: the maximum penalty is
$200 for each day of material breach, but not to exceed a cumulative total of $600 for each
occurrence of material breach, irrespective of the number of customers affected.
b. For a second material breach of the same nature for
which a monetary penalty was previously assessed within the preceding 12-month period: the
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maximum penalty is $400 per day, not to exceed a cumulative total of $1,200 for each
occurrence of the material breach, irrespective of the number of customers affected.
c. For a third or further material breach of the same
nature for which a monetary penalty was previously assessed within the preceding 12-month
period: the maximum penalty is $1,000 per day, not to exceed a cumulative total of $3,000 for
each occurrence of the material breach, irrespective of the number of customers affected.
d. The maximum penalties referenced above may be
increased by any additional amount authorized by state law.
2. Judicial Remedies Not Affected.
The imposition of penalties in accordance with the provisions of
subsection (1) above does not preclude any affected party from pursuing any judicial remedy
that is available to that party.
3. Administration, Notice, and Appeal.
a. The City Manager or the City Manager's designee is
authorized to administer this paragraph (D). Decisions by the City Manager to assess penalties
against a video provider must be in writing and must contain findings supporting the decisions.
Decisions by the City Manager are final, unless appealed to the City Council.
b. If the video provider or any interested person is
aggrieved by a decision of the City Manager, the aggrieved party may, within 10 days of the
written decision, appeal that decision in writing to the City Council. The appeal letter must be
accompanied by the fee established by the City Council for processing the appeal. The City
Council may affirm, modify, or reverse the decision of the City Manager.
c. The imposition of monetary penalties under subsection
(1) above is subject to the following requirements and limitations:
(i) The City must give the video provider
written notice of any alleged material breach and must allow the video provider at least 30 days
from receipt of that notice to remedy the breach.
(ii) For the purpose of assessing monetary
penalties, a material breach will be deemed to have occurred for each day following the
expiration of the period for cure specified in subparagraph (i) above that the material breach has
not been remedied by the video provider, irrespective of the number of customers affected.
5.12.150. Telecommunications Service Provided By Telephone Corporations
A. The City Council finds and determines as follows:
1. The federal Telecommunications Act of 1996 preempts and
declares invalid all state rules that restrict entry or limit competition in both local and long-
distance telephone service.
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2. The California Public Utilities Commission ("CPUC") is
primarily responsible for the implementation of local telephone competition, and it issues
certificates of public convenienca and necessity to new entrants that are qualified to provide
competitive local telephone exchange services and related telecommunications service,
whether using their own facilities or the facilities or services provided by other authorized
telephone corporations.
3. Section 234(a) of the California Public Utilities Code defines a
"telephone corporation" as "every corporation or person owning, controlling, operating, or
managing any telephone line for compensation within this state."
4. Section 616 of the California Public Utilities Code provides that
a telephone corporation "may condemn any property necessary for the construction and
maintenance of its telephone line."
5. Section 2902 of the California Public Utilities Code authorizes
municipal corporations to retain their powers of control to supervise and regulate the
relationships between a public utility and the general public in matters affecting the health,
convenience, and safety of the general public, including matters such as the use and repair of
public streets by any public utility and the location of the poles, wires, mains, or conduits of any
public utility on, under, or above any public streets.
6. Section 7901 of the California Public Utilities Code authorizes
telephone and telegraph corporations to construct telephone or telegraph lines along and upon
any public road or highway, along or across any of the waters or lands within this state, and to
erect poles, posts, piers, or abutments for supporting the insulators, wires, and other necessary
fixtures of their lines, in such manner and at such points as not to incommode the public use of
the road or highway or interrupt the navigation of the waters.
7. Section 7901.1 of the California Public Utilities Code confirms
the right of municipalities to exercise reasonable control as to the time, place, and manner in
which roads, highways, and waterways are accessed, which control must be applied to all
entities in an equivalent manner. Nothing in Section 7901.1 adds to or subtracts from any
existing authority that municipalities have with respect to the imposition of fees.
8. Section 50030 of the California Government Code provides
that any permit fee imposed by a city for the placement, installation, repair, or upgrading of
telecommunications facilities, such as lines, poles, or antennas, by a telephone corporation that
has obtained all required authorizations from the CPUC and the FCC to provide
telecommunications services, must not exceed the reasonable costs of providing the service for
which the fee is charged, and must not be levied for general revenue purposes.
B. In recognition of and in compliance with the statutory authorizations
and requirements set forth above in paragraph (A), the following regulatory provisions are
applicable to a telephone corporation that desires to provide telecommunications service by
means of facilities that are proposed to be constructed within the City's public rights-of-way:
1. The telephone corporation must apply for and obtain, as may
be applicable, an excavation permit, an encroachment permit, or a building permit ("ministerial
permit.")
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2. In addition to the information required by this Code in
connection with an application for a ministerial permit, a telephone corporation must submit to
the City the following supplemental information:
a. A copy of the certificate of public convenience and
necessity issued by the CPUC to the applicant, and a copy of the CPUC decision that
authorizes the applicant to provide the telecommunications service for which the facilities are
proposed to be constructed in the City's public rights-of-way. Any applicant that, prior to 1996,
provided telecommunications service under administratively equivalent documentation issued
by the CPUC may submit copies of that documentation in lieu of a certificate of public
convenience and necessity.
b. If the applicant has obtained from the CPUC a
certificate of public convenience and necessity to operate as a "competitive local carrier," the
following additional requirements are applicable:
(i) As required by Decision No. 95-12-057 of
the CPUC, the applicant must establish that it has timely filed with the City a quarterly report
that describes the type of construction and the location of each construction project proposed to
be undertaken in the City during the calendar quarter in which the application is filed, so that the
City can coordinate multiple projects, as may be necessary.
(ii) If the applicant's proposed construction
project will extend beyond the utility rights-of-way into undisturbed areas or other rights-of-way,
the applicant must establish that it has filed a petition with the CPUC to amend its certificate of
public convenience and necessity and that the proposed construction project has been
subjected to a full-scale environmental analysis by the CPUC, as required by Decision No. 95-
12-057 of the CPUC.
(iii) The applicant must inform the City whether
its proposed construction project will be subject to any of the mitigation measures specified in
the Negative Declaration ["Competitive Local Carriers (CLCs) Projects for Local Exchange
Communication Service throughout California"] or to the Mitigation Monitoring Plan adopted in
connection with Decision No. 95-12-057 of the CPUC. The City's issuance of a ministerial
permit will be conditioned upon the applicant's compliance with all applicable mitigation
measures and monitoring requirements imposed by the CPUC upon telephone corporations that
are designated as "competitive local carriers."
C. The City reserves all rights that it now possesses or may later acquire
with respect to the regulation of any cable or telecommunications service that is provided, or
proposed to be provided, by a telephone corporation. These reserved rights may relate, without
limitation, to the imposition of reasonable conditions in addition to or different from those set
forth in this section, the exaction of a fee or other form of consideration or compensation for use
of public rights-of-way, and related matters; provided, however, that such regulatory rights and
authority must be consistent with federal and state law that is applicable to cable or
telecommunications services provided by telephone corporations.
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ARTICLE 5. USE OF PUBLIC RIGHTS-OF-WAY
5.12.160 Findings; Policies and Procedures
A. The City Council finds and determines that numerous and repetitive
excavations in the public rights-of-way diminish the useful life of the surface pavement and
generally cause adverse negative impacts for local residents, local businesses, and vehicular
and pedestrian traffic. The City Council further finds and determines that the utility substructure
in the public rights-of-way is subject to potential adverse negative impacts as a consequence of
new economic and regulatory policies that foster increased competition between various utility
service providers, including telephone corporations, and between other service providers, such
as cable system operators. In order to mitigate these potential adverse negative impacts, the
following policies are adopted:
1. The City Manager is directed to develop and to implement
public rights-of-way policies and proceduras that incorporate, to the extent reasonably feasible
and consistent with all applicable laws and regulations, the following requirements that are
intended to encourage the shared use by utility and other service providers of existing facilities
in the public rights-of-way:
a. A requirement that utility and other service providers
requesting permits review information provided by the City that identifies the location of facilities,
such as underground conduits, that are available for shared use, and the owners of those
facilities.
b. A requirement that utility and other service providers
requesting permits submit a written statement that describes in reasonable detail the efforts
made to obtain from other utility service providers the right to use excess capacity within
existing facilities, and to thereby avoid the construction of new facilities.
c. A requirement that utility and other service providers
occupying the public rights-of-way submit annually to the City a map, which may be in an
electronic-data format maintained in the ordinary course of business, that shows the location of
their respective facilities in the public rights-of-way. Notwithstanding the foregoing, an updated
annual map need not be provided unless there are changes to the location of the service
provider's facilities in the public rights-of-way.
d. Any additional requirements that will encourage utility
and other service providers to share excess capacity within previously-constructed facilities and
to coordinate the construction of new facilities in order to minimize the number of excavations in
the public rights-of-way.
2. The City Manager is directed to ensure that all utility and other
service providers, including telephone corporations and cable system operators, comply with all
local design, construction, maintenance and safety standards that are consistent with state and
federal laws and regulations and that are contained within, or are related to, any permit that
authorizes the construction of facilities within the public rights-of-way, which standards may
address without limitation, the following: restrictions on scheduled working hours in order to
minimize adverse impacts on traffic circulation and on holiday shoppers; restrictions on new
construction within arterial or collector streets that have recently been resurfaced; advance
information cenceming City plans to reconstruct, rehabilitate, or maintain arterial or collector
R:/Ords 2003lOrds 03-11 30
streets; insurance requirements; and the restoration or repair of damage to streets and public
rights-of-way.
B. The City Council finds and determines that the installation in the
public rights-of-way of numerous above-ground facilities by utility service providers, including
telephone corporations, and other service providers may create safety hazards and adverse
visual impacts. Consequently, the Public Works Department is authorized to impose, in a
manner consistent with all applicable laws and regulations, reasonable conditions in order to
mitigate those potential adverse impacts that may result, whether on an individual or a
cumulative basis, from permitted above-ground facilities. Those conditions may include or
relate to, without limitation, the following:
1. Prior to issuance of the requisite permits, all above-ground
facilities proposed to be installed by a utility or other service provider in the public rights-of-way
must be clearly delineated on the plans when they are submitted for the City's review.
2. The design and installation by qualified professionals of
landscaping and barriers to minimize public view of above-ground facilities whose location has
been approved by the City.
3. The maintenance of all above-ground facilities in good
condition, including compliance with the City's ordinances regarding graffiti removal.
4. The placement of above-ground facilities, such as overhead
drops, as close as possible to other utility drops, consistent with all applicable electrical codes.
5. Reasonable limitations upon the number of above-ground
facilities that may be installed within a designated geographical area.
6. Reasonable limitations upon the dimensions or volume, or
both, of above-ground facilities.
7. The specification of colors, as are available from the
manufacturer used by the service provider, of above-ground facilities reasonably requested by
the City to ensure that these facilities blend with the surrounding environment to the maximum
extent possible.
8. Such additional conditions regulating the time, place, and
manner of installations of above-ground facilities as will reasonably mitigate potential safety
hazards and adverse visual impacts attributable to these facilities.
C. The City reserves all rights that it now possesses or may later acquire
to adopt and implement City-wide requirements for the undergrounding of above-ground
facilities, or any portion thereof, in a competitively neutral and non-discriminatory manner. To
the extent authorized by law, all utility and other service providers will be required to comply with
those requirements at their sole expense.
D. With regard to the policies and procedures to be developed by the
City Manager and by the Department of Public Works in accordance with the authority
delegated by subsections (1) and (2) of paragraph (A) and by paragraph (B), the City Manager
shall ensure that a consultative process is established that will provide all affected utility and
R:/Ords 2003/Ords 03-11 31
other service providers with advance notice and an opportunity to review and to comment on
those policies and procedures prior to their implementation. Such comments may address,
without limitation, technological feasibility, consistency with statutory and regulatory mandates,
and potential financial burdens attributable to those policies and procedures. The City will
consider all comments submitted before exercising its discretion concerning the adoption and
implementation of these policies and procedures.
E. Disputes relating to the application of the policies, conditions and
limitations set forth in this Article 5 to utility service providers, cable system operators, or other
users of the public rights-of-way are subject to appeal to the City Council in accordance with the
provisions of Chapter 2.36 of Title 2 of this Code.
ARTICLE 6. DEFINITIONS
5.12.170 Defined Terms and Phrases
A. The words, terms, phrases, and their derivations set forth in this
ordinance have the meanings set forth below. Words used in the present tense include the
future tense, and words in the singular include the plural number.
"Cable service" means the one-way transmission to subscribers of video
programming, or other programming services, and subscriber interaction, if any, that is required
for the selection or use of that video programming or other programming service. For the
purposes of this definition, "video programming" means programming provided by, or generally
considered comparable to programming provided by, a television broadcast station; and "other
programming service" means information that a cable system operator makes available to all
subscribers generally.
"Cable system," or "cable communications system" or "cable television system,"
means a facility, consisting of a set of closed transmission paths and associated signal
generation, reception, and control equipment that is designed to provide cable service that
includes video programming and that is provided to multiple subscribers within a community.
The term "cable system" does not include:
(i) a facility that serves only to retransmit the television signals of
one or more television broadcast stations;
of-way;
(ii) a facility that serves subscribers without using any public right-
(iii) a facility of a common carrier that is subject, in whole or in
part, to the provisions of Title II of the Communications Act, except that such facility will be
considered a cable system (other than for purposes specified in Section621(c) of the
Communications Act) to the extent such facility is used in the transmission of video
programming directly to subscribers, unless the extent of such use is solely to provide
interactive on-demand services;
(iv) an open video system that complies with Section 653 of the
Communications Act; or
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(v) any facilities of an electric utility that are used solely for
operating its electric utility system.
"Cable system operator" means any person or group of persons:
(i) who provides cable service over a cable system and directly or
through one or more affiliates owns a significant interest in that cable system; or
(ii) who otherwise controls or is responsible for, through any
arrangement, the management and operation of that cable system.
"City" means the City of Temecula as represented by its City Council or by any
delegate acting within the scope of its delegated authority.
" CFR" means the Code of Federal Regulations. Thus, the citation of
"47 CFR 80.1" refers to Title 47, part 80, section 1, of the Code of Federal Regulations.
"Communications Act" means the Communications Act of 1934 (47 U.S.C.
§§ 153, et se_...q.), as amended by the Cable Communications Policy Act of 1984, the Cable
Television Consumer Protection and Competition Act of 1992, and the Telecommunications Act
of 1996.
"FCC" or "Federal Communications Commission" means the federal
administrative agency, or any lawful successor, that is authorized to regulate
telecommunications services and telecommunications service providers on a national level.
"Franchise" means an initial authorization, or the renewal of an initial
authorization, granted by the City Council, whether such authorization is designated as a
franchise, agreement, permit, license, resolution, contract, certificate, or otherwise, that
authorizes the construction or operation of a cable system or an open video system.
"Franchise fee" means any fee or assessment of any kind that is authorized by
state or federal law to be imposed by the City on a Grantee as compensation in the nature of
rent for the Grantee's use of the public rights-of-way. The term "franchise fee" does not include:
(i) Any tax, fee, or assessment of general applicability (including
any such tax, fee, or assessment imposed on both utilities and cable operators or their services,
but not including a tax, fee, or assessment which is unduly discriminatory against cable
operators or cable subscribers);
(ii) Capital costs that are required by the franchise to be incurred
by a Grantee for public, educational, or governmental access facilities;
(iii) Requirements or charges that are incidental to the award or
enforcement of the franchise, including payments for bonds, security funds, letters of credit,
insurance, indemnification, penalties, or liquidated damages; or
(iv) Any fee imposed under Title 17, United States Code.
R:/Ords 2003/Ords 03-11 33
"Franchise service area" or "service area" means the entire geographic area of
the City as it is now constituted, or may in the future be constituted, unless otherwise specified
in the ordinance or resolution granting a franchise, or in a franchise agreement.
"Grantee" means any person that is awarded a franchise in accordance with this
chapter, and that person's lawful successor, transferee, or assignee.
"Multichannel video programming distributor" or "video programming distributor"
means a person such as, but not limited to, a cable system operator, an open video system
operator, a multichannel multipoint distribution service, a direct broadcast satellite service, or a
television receive-only satellite program distributor, who makes available multiple channels of
video programming for purchase by subscribers or customers.
"Open video system" means a facility consisting of a set of transmission paths
and associated signal generation, reception, and control equipment that is designed to provide
cable service, including video programming, and that is provided to multiple subscribers within
the City, provided that the FCC has certified that such system is authorized to operate in the
City and complies with 47 CFR 1500 et seq., entitled "Open Video Systems."
"Open video system operator" 'means any person or group of persons who
provides cable service over an open video system and directly or through one or more affiliates
owns a significant interest in that open video system, or otherwise controls or is responsible for
the management and operation of that open video system.
"Person" means an individual, partnership, limited liability company, association,
joint stock company, trust, corporation, or governmental entity.
"Public, educational or government access facilities" or "PEG access facilities,"
means the total of the following:
(i) Channel capacity designated for noncommercial public,
educational, or government use; and
(ii) Facilities and equipment for the use of that channel capacity.
"Subscriber" or "customer" or "consumer" means any person who, for any
purpose, subscribes to the services provided by a multichannel video programming distributor
and who pays the charges for those services.
"Street" or "public right-of-way" means each of the following that has been
dedicated to the public and maintained under public authority or by others and is located within
the City limits: streets, roadways, highways, avenues, lanes, alleys, sidewalks, easements,
rights-of-way, and similar public property that the City from time to time authorizes to be
included within the definition of a street.
"Telecommunications" means the transmission, between or among points
specified by the user, of information of the user's choosing, without change in the form or
content of the information as sent and received.
R:/Ords 2003/Ords 03-11 34
"Telecommunications equipment" means equipment, other than customer
promises equipment, used by a telecommunications service provider to provide
telecommunications service, including softwaro that is integral to that equipment.
"Telecommunications service" means the offering of telecommunications directly
to the public for a fee, or to such classes of users as to be effectively available diroctly to the
public, regardless of the equipment or facilities that are used.
"Telecommunications
telecommunications service.
service provider" means any provider of
" U.S.C. § "means the United States Code. Thus, the citation of "47
U.S.C. § 153" refers to Title 47, section 153, of the United States Code.
"Video programming provider'' means any person or group of persons who his
the right under the federal copyright laws to select and to contract for the carriage of specific
video programming on a cable system or an open video system.
"Video provider" means any person, company, or service that provides one or
moro channels of video programming to a residence, including a home, multi-family dwelling
complex, congregate-living complex, condominium, apartment, or mobilehome, whero some fee
is paid for that service, whether directly or as included in dues or rental charges, and whether or
not public rights-of-way aro used in the delivery of that video programming. A "video provider.'
includes, without limitation, providers of cable television service, open video system service,
master antenna television, satellite master antenna television, direct broadcast satellite,
multipoint distribution services, and other providers of video programming, whatever their
technology.
B. Unless otherwise exprossly stated, words, terms, and phrases not
defined in this ordinance will be given their meaning as used in Title 47 of the United States
Code, as amended, and, if not defined in that Code, their meaning as used in Title 47 of the
Code of Federal Regulations.
ARTICLE 7. VIOLATIONS; SEVERABILITY
5.12.180 Violations; Enforcement
A. Unless procluded by applicable law, any person who violates any
provision of this ordinance is guilty of a misdemeanor and is punishable as provided for in
Chapter 1.20 of Title I of this Code.
B. The misdemeanor penalty specified above in paragraph (A) is not
applicable to a violation of any provision of this ordinance for which another sanction or penalty
may be imposed under any franchise, license, lease, or similar written agroement between the
City and a multichannel video programming distributor or telecommunications service provider.
C. The City may initiate a civil action in any court of competent
jurisdiction to enjoin any violation of this ordinance.
5.12.190 Severability
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If any provision of this ordinance is determined by any court of competent
jurisdiction, or by any federal or state agency having jurisdiction over its subject matter, to be
invalid and in conflict with any paramount federal or state law or regulation now or hereafter in
effect, or is determined by that court or agency to require modification in order to conform to the
requirements of that paramount law or regulation, then that provision will be deemed a separate,
distinct, and independent part of this ordinance, and such determination will not affect the
validity and enforceability of any other provisions. If that paramount federal or state law or
regulation is subsequently repealed or amended so that the provision of this ordinance
determined to be invalid or subject to modification is no longer in conflict with that law or
regulation, then that provision will again become effective and will thereafter be binding on the
City and any affected cable or telecommunications service provider; provided, however, that the
City must give the affected cable or telecommunications service provider 30 days written notice
of that change before requiring compliance with that provision, or such longer period of time as
may be reasonably required for the cable or telecommunications service provider to comply with
that provision.
Section 3. In adopting this ordinance, it is the intent of the City Council that
Section 5.12.080, entitled "Consumer Protection and Service Standards," will apply to all
franchised video programming distributors, including Century-TCl California, L.P., dba Adelphia
Cable Communications. To the extent that any consumer protection and service standard
referenced in Resolution No. 96-35 is inconsistent or in conflict with any provision of
Section 5.12.080 of this ordinance, said standard in Resolution No. 96-35 is hereby repealed
and superseded. Similarly, to the extent that any consumer protection and service standard set
forth in the Non-Exclusive License dated January 10, 1989, is inconsistent or in conflict with any
provision of Section 5.12.080 of this ordinance, said standard in the Non-Exclusive License is
hereby superseded.
Section 4. Following the City Council's adoption of this ordinance, the City Clerk is
directed to provide a copy by certified mail to the franchised cable operator, Century-TCI
California, L.P., dba Adelphia Cable Communications. Upon the expiration of 90 days following
the transmittal of this ordinance to Century-TCl California, L.P., dba Adelphia Cable
Communications, the provisions of Section 5.12.080 relating to consumer protection and service
standards will apply to the operation of the cable television system within the franchise service
area under the Non-Exclusive License referenced above in Section 3. The authority for this
action by the City is derived from the following sources:
A. 47 Code of Federal Regulations 76.309, entitled "Customer Service
Obligations," which provides in relevant part as follows:
"(a) A cable franchise authority may enforce the customer service
standards set forth in paragraph (c) of this section against cable operators. The franchise
authority must provide affected cable operators ninety (90) days written notice of its intent to
enforce the standards."
"(b) Nothing in this rule should be construed to prevent or prohibit:
(3) Any State or any franchising authority from enacting or
enforcing any consumer protection law, to the extent not specifically preempted herein; or
R:/Ords 2003/Ords 03-11 36
(4) The establishment or enforcement of any State or
municipal law or regulation concerning customer service that imposes customer service
requirements that exceed, or address matters not addressed by the standards set forth in
paragraph (c) of this section."
B. California Government Code Section 53088 et seq., entitled the "Video
Customer Service Act." Section 53088.2(p) of this Act provides as follows:
"(p) Nothing in this division limits the power of a city, county, or city
and county or video provider to adopt and enforce service standards and consumer protection
standards which exceed those established in this division."
Section 5. The City Clerk is directed to certify to the passage and adoption of this
ordinance and to cause this ordinance to be published as required by law.
PASSED, APPROVED, AND ADOPTED this 18th day of November, 2003.
A']-['EST:
'~-'Je~rey E. Stone, Mayor
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STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE ) ss
CITY OF TEMECULA )
I, Susan W. Jones, CMC, City Clerk of the City of Temecula, California, do hereby certify
that the forgoing Ordinance No. 03-11 was duly introduced and placed upon its first reading at a
regular meeting of the City Council on the 28th day of October, 2003, and that thereafter, said
Ordinance was duly adopted and passed at a regular meeting of the City Council of the City of
Temecula on the 18th day of November, 2003 by the following roll call vote:
AYES:
4 COUNCILMEMBERS: Comerchero, Pratt, Roberts, Stone
NOES: 0 COUNCILMEMBERS: None
ABSENT: 1 COUNCILMEMBERS: Naggar
ABSTAIN: 0 COUNCILMEMBERS: None
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