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HomeMy WebLinkAbout94-096 CC ResolutionRESOLUTION NO. 94-96 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TEMECULA ADOPTING ADMINISTRATIVE PROCEDURES TO REGULATE CABLE TELEVISION SERVICES AND EQUIPMENT RATES AND REPEALING RESOLUTION NO. 93-74 WHEREAS, pursuant to the Cable Television Consumer Protection and Competition Act of 1992 (47 U.S.C. § 521 et. allq~) (the "1992 Cable Act"), and the regulations of the Federal Regulations), the City has been certified to regulate the rates charged for cable television services and equipment; WHEREAS, the FCC Regulations require the City to adopt procedures for regulating the basic service tier within 120 days of being certified; WHEREAS, although the City has previously adopted rate regulation procedures pursuant to Resolution No. 93-74, it desires to adopt revised procedures; NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of Temecula as follows: Section 1. DEFINITIONS 1.1 "1992 Cable Act" means the Cable Television Consumer Protection and Competition Act of 1992 (47 U.S.C. § 521 et. 1.2 "Cable Operator" means any person or business entity operating a cable television system within the City and subject to regulation of cable television services and equipment pursuant to the 1992 Cable Act. 1.3 "FCC Regulations: mean the regulations the FCC has adopted regarding rate regulation as set forth at Title 47 of the Code of Federal Regulations, § 76.900 et. af, q~, including any amendments thereto. 1.4 "City Manager" means the City Manager or his designee. 1.5 "FCC Rate Regulation Form: means FCC Form 393, 1200, 1205, 1215, 1220, 1225 or such similar forms as the FCC may adopt for the determination of maximum permitted rates for regulated cable services and equipment. Resos 94-96 I 1.6 "Subscriber" means any person or entity utilizing or desiring to utilize cable operator provided cable television services for consideration. "Subscriber" also means "customer(s)" and/or "subscribers" as those terms are used in the 1992 Cable Act and FCC Rate Regulations. 1.7 "FCC" means the Federal Communications Commission. Section 2. INCORPORATION OF THE FCC RATE REGUI.ATIONS 2.1 Incorporation of FCC Regulations. The City Council hereby incorporates by reference the FCC Regulations as part of these procedures. 2.2 Compliance with the 1992 Cable Act and FCC Regulations. These procedures shall at all times be interpreted to comply with the 1992 Cable Act as amended, and the FCC Regulations. In the event any provision of these procedures shall be invalidated for any reason or cause, any remaining portions shall be deemed severed and shall remain in full force and effect. Section 3. CERTIFICATION 3.1 Application for Certification. The City Manager is directed to take all necessary action to secure FCC certification for the City to regulate rates charged for cable television services and equipment. Section 4. DETERMINATION OF MAXIMUM PERMITFED RATF. q FOR CAlqI.E TEI.EVISION SERVICFS AND EQUIPMENT 4.1 Submittal of FCC Rate Regulation Forms. The City Manager is directed to take all necessary action to secure submittal by the Cable Operator of completed FCC Rate Regulation Forms. 4.2 Submittal of Additional Information with FCC Rate Regulation Form. Concurrently, with submitting the applicable FCC Rate Regulation Form establishing maximum rates for cable television service and equipment, the Cable Operator shall submit the following information: A. The name, address and telephone number of the person who prepared the FCC Rate Regulation Form or the person the Cable Operator otherwise designates to answer any questions the City may have regarding the Form. B. Channel Line-ups and rates for each tier and channel, and for equipment and installation as of (i) the initial date of regulation; (ii) the date of the Rate Regulation Form (iii) September 30, 1992; (iv) April 5, 1993; (v) March 31, 1994; and (vi) July 15, 1994. 94-96 2 C. Subscriber counts as of (i) September 30, 1992; (ii) April 5, 1993; (iii) the initial date of regulation; (vi) March 31, 1994; (v) July 15, 1994; and (vi) the date of the FCC Rate Regulation Form. Counts should be for the basic and cable programming services tiers, and for all a la carte channels. Subscribers to bulk rate agreements should be itemized separately. D. If any channels are shared between two or more services, identify the services involved and the approximate percentage of time each service occupied the channels. E. If any FM services have been removed from the basic or cable programming service tiers since April 1, 1993, indicate which service and the date removed. F. The General Ledger and the following subsidiary records: 1. Fixed assets records, including depreciation schedules; 2. Payroll records, including depreciation schedules; 3. Selected supporting documents, including, but not limited to, (i) invoices supporting equipment purchases, (ii) building leases, ('fii) capital equipment leases, and (iv) truck maintenance contracts and invoices; 4. Schedules indicating differences between book depreciation and tax depreciation; and Regulation. Schedules supporting all allocation and computations on the FCC Rate G. Report of gross revenues for purposes of franchise fee payments for two (2) years preceding the date of FCC Rate Regulation Form. H. Copies of all bulk rate and special (e.g., senior citizens) rate agreements. I. State whether a customer may subscribe to basic tier service and purchase a pay channel or paper-view programming without purchasing an intermediate tier or paying any additional fee. If answer is no, explain why. 4.3 Additional Information. The Cable Operator shall submit such additional information as the City Manager may determine is necessary to determine maximum permitted rates for cable television services and equipment. The Cable Operator shall fully respond to such requests for additional information within 14 days of receipt of the request. Resos 94-96 3 4.4 City's Power to Audit Cable Operator. Pursuant to 47 CFR § 76.930, the City may conduct its own audit of the financial records of the Cable Operator to determine if the FCC Rate Regulation Form truly and accurately reflect the actual cost of regulated equipment. 4.5 Time to Determine Rates. Pursuant to 47 CFR § 76.933, the City Manager may issue such orders as he determines are reasonably necessary to extend the rime to review the FCC Rate Regulation Form submitted and determine the maximum permitted rates. 4.6 Cost of Service Showing. Upon receipt of a Cost of Service Showing, the City Manager shall take all steps necessary, including filing a petition for special relief, to cause the FCC to evaluate the cost of Service Showing. 4.7 City Manager Rate Report. The City Manager shall review the FCC Rate Regulation Form and additional informarion submitted by Cable Operator, and prepare a written report to the City Council recommending whether the existing or proposed rates are within the FCC's permitted basic service tier charge or actual cost of equipment as defined in §§ 76.922 and 76.923. 4.8 Public Hearing. Prior to making any determination whether the Cable Operator's existing or proposed rates are within the FCC's permitted basic service tier charge or actual cost of equipment as defined in §§ 76.922 and 76.923, the City Council shall conduct a noticed public hearing, at which time, interested parties will be given the opportunity to submit written and oral testimony. Written notice of the public and oral testimony. Written notice of the public hearing shall be provided to the Cable Operator at least ten (10) days prior to the public hearing. 4.9 Rate Determination. At the public hearing, Cable Operator shall have the burden of proving that its existing or proposed rates for basic service and associated equipment comply with 47 U.S.C. 543, AND 47 CFR §§ 76.922 AND 76.923. If the Cable Operator does not attempt to demonstrate the reasonableness of its rates, the Council may find the Operator in default and, using the best informarion available, enter an order finding the Cable Operator's rates unreasonable and mandating appropriate relief, as specified in 47 CFR §§ 76.940, 76.941 and 76.942. The City Council shall make all rate determinations by way of written Resolution. 4.10 Submittal of FCC Form 329. The City Manager is directed to submit a FCC Form 329 within 45 days of any rate increase by the Cable Operator to insure FCC review of cable programming service rates. Section 5. REFUNDS TO SUltSCRIBF. RS 5.1 Refunds to Subscribers. All refunds owing by the Cable Operator to Subscribers pursuant to the FCC Regulations shall be paid by direct or credited to the Subscribeifs bill pursuant to 47 CFR § 76.942(d)(1) or (2) within thirty (30) days from the date of the implementation of a prospective rate reduction. Resos 94-96 4 5.2 Trust Account. If after reasonable and diligent efforts to make payments of monies refundable to Subscribers, the Operator is unable to effectuate such payments for any reason, the Operator shall establish a Trust Account and deposit to it the actual payment of monies refundable to Subscriber who cannot be located and payment effectuated. 5.3 Distributions from Trust Account. Monies from the Trust Account shall be distributed December 31 of each year to the City for government access television programming. Section 6. ENFORCEMENT 6.1 Whenever the City Manager believes there has been a material breach of these Procedures and/or the FCC Regulation, he shall notify the Cable Operator in writing to cure the breach. The City Manager shall establish a minimum time to cure the breach, which in no event shall be less than ten (10) days. The notice shall specify any refund liability, if any. The written notice to the Cable Operator shall be by certified mail or other means providing for certification of receipt. 6.2 Upon receiving the City Manager's notice of the breach, the Cable Operator shall investigate the alleged breach, and within the time period established in the notice, notify the City Manager in writing of the results of the investigation and its proposed action or resolution, if any. In the event the City Manager does not refer the matter to the City Council as provided under this Resolution within thirty (30) days of the receipt of the Cable Operator's response, the Operator's proposed action or resolution shall be final. 6.3 Following a determination of the City Manager that the Cable Operator has failed to cure a breach of these procedures and/or the FCC Regulations, the City Manager may initiate enforcement proceedings with respect to the breach. Such enforcement proceedings may be initiated by the City Manager providing the Cable Operator notice of a public hearing before the City Council. Notice shall be provided to the Cable Operator by certified mail or other means providing for certification of receipt. 6.4 The City Council shall commence the hearing no less than ten (10) days of the hearing notice. 6.5 Upon the conclusion of the hearing, the City Council shall adopt a decision, which includes findings of fact and conclusions of law. 6.6 If the hearing is conducted by the City Council, upon conclusion of the hearing, City Council shall adopt a decision which induces findings of fact and conclusions of law. Re,os 94-96 5 6.7 The City Council may impose fines or monetary forfeitures on the Cable Operator if it fails to comply with these procedures, the FCC Regulations or a rate decision of the City Council. 6.8 Neither monetary sanctions imposed hereunder nor any order issued by the City Council related hereto shall be deemed to bar or otherwise limit the right of the City Council to obtain judicial enforcement of the Cable Operator's obligations by means of specific performance, injunctive relief, mandate or other remedies at law or inequity, other than monetary damages. Section 7. Resolution No. 93-74 is hereby repealed. PASSED, APPROVED, AND ADOPTED this 27th day of September, 1994. Ron Roberts, Mayor A~ST: ~ieek, C~ity Clerk/(~ k~'~"&') [SEAL] R~sos 94-96 6 STATE OF CALIFORNIA) COUNTY OF RIVERSIDE)ss CITY OF TEMECULA ) I, June S. Greek, City Clerk of the City of Temecula, do hereby certify that the foregoing Resolution No. 94-96 was duly and regularly adopted by the City Council of the City of Temecula at a regular meeting thereof held on the 27th day of September, 1994, by the following vote: AYES: 3 COUNCILMEMBERS: Birdsall, Parks, Stone NOES: 0 COUNCILMEMBERS: None ABSENT: 2 COUNCILMEMBERS: Mufioz, Roberts Resos 94-96 7