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HomeMy WebLinkAboutOrd 09-08 DIVCA State Franchise ORDINANCE NO. 09 - 08 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DUBLIN *********** ADDING CHAPTER 3.22 TO THE DUBLIN MUNICIPAL CODE, RELATING TO REGULATIONS FOR THE PROVISION OF VIDEO SERVICE BY STATE FRANCHISE HOLDERS The City Council of the City of Dublin ordains as follows: SECTION 1. The City Council finds as follows: 1. Cities and counties within the State of California have traditionally had the authority to issue . franchises to, and thereby regulate, providers of cable services within their respective jurisdictions, in accordance with federal, state, and local law. 2. The Digital Infrastructure and Video Competition Act of 2006 (Public Utilities Code sections 5800 et seq. ("DIVCA")) became effective January 1,2007. 3. DIVCA changed California law by establishing a statewide franchising procedure for video service providers to be administered by the California Public Utilities Commission ("CPUC"). 4. Under certain circumstances described therein, DIVCA preempts the City's authority to issue franchises and provides, in those circumstances, that the CPUC is the sole authority to award statewide franchises for the provision of video services. 5. DIVCA authorizes the City to exercise certain authority over state franchise holders. 6. The City of Dublin desires to exercise that authority and to facilitate the implementation of DIVCA by setting forth regulations for the provision of video service by state franchise holders within the City. SECTION 2. Chapter 3.22 is hereby added to the Dublin Municipal Code to read as follows: Chapter 3.22 VIDEO SERVICE PROVIDED BY STATE FRANCHISE HOLDERS Sections: 3.22.010 3.22.020 3.22.030 3.22.040 3.22.050 Purpose and Applicability. Definitions. Public, Educational, and Government Channels. Customer Service Penalties for State Franchise Holders. Authority to Examine and Audit Business Records. Ord No. 09-08, Adopted 3/04/08, Item 4.10 Page 1 of 4 3.22.010 Purpose and Applicability. The purpose of this chapter is to set forth regulations for the provision of video service by state franchise holders, in accordance with the Digital Infrastructure and Video Competition Act, California Public Utilities Code sections 5800-5970 ("DIVCA"). 3.22.020 Definitions. For the purposes ofthis chapter, the words set out in this section shall have the following meanings: A. "City" means the City of Dublin. B. "City Manager" means the City Manager of the City of Dublin, or his or her designee. C. "Franchise fee" shall have the meaning given that term by subdivision (g) of Public Utilities Code section 5830 or its successor. D. "Holder" shall have the meaning given that term by subdivision G) of Public Utilities Code section 5830 or its successor. E. "Material breach" shall have the meaning given that term by subdivision G) of Public Utilities Code section 5900 or its successor. F. "Network" shall have the meaning given that term by subdivision (1) of Public Utilities Code section 5830 or its successor. G. "PEG channels" means "public, educational, and governmental access channels" as that term is defined in Public Utilities Code section 5870 or its successor section. H. "State franchise" shall have the meaning given that term by subdivision (P) of Public Utilities Code section 5830. 3.22.030 Fee to Support Public, Educational, and Government Channels. A. Each state franchise holder shall remit to the City a fee to support PEG channel facilities in the amount of one percent (1 %) of the gross revenues, as defined in Public Utilities Code section 5860, of the state franchise holder. The fee shall be remitted on a quarterly basis and within 45 days of the close of each calendar quarter. Each remittance shall be accompanied by a summary explaining the basis for the calculation of the fee. B. Each state franchise holder shall furnish, on an annual basis, a statement within 90 days of the close of the calendar year, either audited and certified by an independent certified public accountant or certified by an officer of the state franchise holder, reflecting the total amount of gross revenues, as defined in Public Utilities Code section 5860, for the preceding calendar year, and all payments, deductions and computations used to determine the amount of the remittances required by subdivision A of this section during the preceding calendar year. The City Manager may establish, and from time to time revise, such additional reporting requirements as are necessary to ensure that the basis for the calculation of the amount of remittances are adequately explained and documented, and each state franchise holder shall comply with such additional Ord No. 09-08, Adopted 3/04/08, Item 4.10 Page 2 of 4 reporting requirements provided that each franchise holder shall have first been provided written notice of such requirements at least 15 days prior to the beginning of the calendar year. C. Notwithstanding subdivision (n) of Public Utilities Code section 5870, upon the expiration of any state franchise, without any action of the City Council, this section shall be deemed to have been automatically reauthorized, unless the state franchise holder has given the City Manager and the City Council written notice 60 days prior to the expiration of its state franchise that the section will expire pursuant to the terms of subdivision (n) of Public Utilities Code section 5870. 3.22.040 Penalties for Material Breach by State Franchise Holders. A. In accordance with Public Utilities Code section 5900 or its successor section, the City Council may from time to time adopt, by resolution, a schedule of penalties for any material breach, as that term is defined in subdivision G) of Public Utilities Code section 5900 or its successor section, by a holder of a state franchise. B. The City Manager shall have the authority to assess penalties for any material breach by a holder of a state franchise. Prior to assessing penalties for a material breach, the City Manager shall first have provided the state franchise holder with written notice of any alleged material breach of the customer service provisions set forth in California Public Utilities Code section 5900 and shall allow the state franchise holder at least thirty (30) days from receipt of the notice to remedy the specified material breach. If the material breach has not been remedied upon the expiration of this 30 day period, the City Manager may commence the assessment of penalties. In the event that a specified material breach has not been remedied following the City Manager's assessment of penalties in the maximum amount permitted per occurrence, the City Manager, after providing a subsequent written notice of the alleged material breach, may treat the continuing occurrence as a subsequent material breach. C. The City shall submit one half of any penalty amounts it receives to the Digital Divide Account established by California Public Utilities Code section 280.5. D. No monetary penalties shall be assessed for a material breach if it is out of the reasonable control of the state franchise holder. 3.22.050 Authority to Examine State Franchise Holder's Business Records. The City Manager is hereby authorized to examine, or cause to be examined, the business records of the holder of the state franchise in accordance with subdivision (i) of Public Utilities Code section 5860. SECTION 3. Effective Date. This Ordinance shall take effect and be enforced thirty (30) days following its adoption. SECTION 4. Posting. The City Clerk of the City of Dublin shall cause this Ordinance to be posted in at least three (3) public places in the City of Dublin in accordance with Section 36933 of the Government Code of the State of California. Ord No. 09-08, Adopted 3/04/08, Item 4.10 Page 3 of 4 PASSED, APPROVED AND ADOPTED this 4th day of March, 2008, by the following vote: AYES: Councilmembers Hildenbrand, Oravetz, Sbranti and Scholz, and Mayor Lockhart NOES: None ABSENT: None ABSTAIN: None ,'1 ~ " J / /, c//~~ U afi,fr!>i \ ~~,( , (j ~Mayor A?r: L f S;~ Deputy City Clerk Ord No. 09-08, Adopted 3/04/08, Item 4.10 Page 4 of 4