HomeMy WebLinkAboutItem 4.2 - 1334 PEG Fee
Page 1 of 2
STAFF REPORT
CITY COUNCIL
DATE: March 7, 2017
TO: Honorable Mayor and City Councilmembers
FROM:
Christopher L. Foss, City Manager
SUBJECT:
Adoption of an Urgency Ordinance and Introduction of an Ordinance to
Reauthorize the Public, Educational, and Governmental (PEG) Fee on
State Cable Franchisees Operating Within the City of Dublin
Prepared by: Hazel L. Wetherford, Assistant to the City Manager
EXECUTIVE SUMMARY:
The City Council will consider approving an urgency ordinance and intro duce an
ordinance to reauthorize the public, educational, and governmental (PEG) fee on state
cable franchisees operating within the City of Dublin.
STAFF RECOMMENDATION:
Waive the reading of and adopt, by a four-fifths vote, an Urgency Ordinance of the
City of Dublin Reauthorizing the Public, Educational, and Governmental (PEG) Fee on
State Cable Franchisees Operating within the City; and waive the reading of and
INTRODUCE an Ordinance Reauthorizing the Public, Educational, and Governmental
(PEG) Fee on State Cable Franchisees Operating within the City.
FINANCIAL IMPACT:
Adoption of the proposed urgency ordinance and regular ordinance would result in the
City’s continued collection of PEG fees for the support of public, educational, and
governmental access channels.
DESCRIPTION:
On March 4, 2008, the City Council adopted Ordinance 09 -08, section 3.22.030 of the
Dublin Municipal Code (DMC), which imposes a public, educational and governmental
(PEG) fee on state cable franchisees operating within the City as authorized in the
Digital Infrastructure Video and Competition Act of 2006 (DIVCA).
DIVCA also provides in Section 5870(n) of the California Public Utilities Code, that a
PEG fee ordinance must be reauthorized upon expiration of an applicable state
franchise. The DMC provides that upon the expiration of any state franchise, the City’s
PEG fee is automatically reauthorized unless the franchise holder has given the City
Page 2 of 2
Manager and City Council 60-days written notice prior to the expiration of its st ate
franchise that the City’s fee authorization will expire.
AT&T, Inc. operates within the City under a state video services franchise that expires
on March 30, 2017, and pursuant to DMC Section 3.22.030(c), the City received no
timely written notice from AT&T of the expiration of its state franchise. Therefore,
pursuant to the provisions of DMC Section 3.22.030(c), the City’s PEG fee is
automatically reauthorized with regard to AT&T. However, it is recommended that the
City Council expressly declares that the City’s PEG fee is reauthorized by way of an
urgency ordinance followed by a regular ordinance.
A regular ordinance must, by state law, be introduced and adopted at separate
meetings of city councils. Moreover, such ordinances may not take effect sooner than
thirty days after their adoption. Because the City is less than four weeks away from the
AT&T state video services franchise from expiring, the City Council may want to
consider adopting an urgency ordinance at tonight’s City Council meeting. If the City
Council chooses to do so, Staff recommends that the City Council adopt the urgency
ordinance and introduce a regular ordinance at tonight’s meeting.
NOTICING REQUIREMENTS/PUBLIC OUTREACH:
The Agenda for this evening’s City Council meeting wa s posted and published pursuant
to applicable state law. Special public notice is not required to adopt an Urgency
Ordinance.
ATTACHMENTS:
1. An Urgency Ordinance of the City of Dublin Reauthorizing the Public, Educational,
and Governmental (PEG) Fee on State Cable Franchisees Operating within the City
2. An Ordinance of the City of Dublin Reauthorizing the Public, Educational, and
Governmental (PEG) Fee on State Cable Franchisees Operating within the City
3. Ordinance 09-08, approved March 4, 2008 (for reference)
ORDINANCE NO. __ - 17
AN URGENCY ORDINANCE OF THE CITY OF DUBLIN REAUTHORIZING
THE PUBLIC, EDUCATIONAL, AND GOVERNMENTAL (PEG) FEE ON
STATE CABLE FRANCHISEES OPERATING WITHIN THE CITY
WHEREAS, the City Council previously adopted Section 3.22.030 of the Dublin
Municipal Code (“DMC”), which imposes a public, educational, and governmental (“PEG”) fee
on state cable franchisees operating within the City as authorized in the Digital Infrastructure
and Video Competition Act of 2006; and
WHEREAS, Section 5870(n) of the California Public Utilities Code states that a PEG fee
ordinance must be reauthorized upon expiration of an applicable state franchise; and
WHEREAS, DMC Section 3.22.030(c) provides that, notwithstanding Section 5870(n) of
the California Public Utilities Code, upon the expiration of any state franchise, the City’s PEG
fee is automatically reauthorized unless the franchise holder has given the City Manager and
City Council 60-days’ written notice prior to the expiration of its state franchise tha t the City’s fee
authorization will expire; and
WHEREAS, AT&T, Inc. operates within the City under a state franchise that expires on
March 30, 2017; and
WHEREAS, the City received no timely written notice from AT&T of the expiration of its
state franchise pursuant to Section 3.22.030(c); and
WHEREAS, therefore, pursuant to the provisions of Section 3.22.030(c), the City’s PEG
fee is automatically reauthorized with regard to AT&T; and
WHEREAS, notwithstanding the automatic reauthorization of the City’s PEG fee as
described above, the City Council wishes to adopt an ordinance expressly declaring that the
City’s PEG fee is reauthorized.
NOW, THEREFORE, the City Council of the City of Dublin does hereby ordain as follows:
Section 1. PEG Fee Reauthorization. The City’s PEG channel facilities fee authorized in
Section 3.22.030 of the Dublin Municipal Code is hereby reauthorized to the extent required by
Section 5870(n) of the California Public Utilities Code. All state franchisees operating within the
City shall continue to collect and remit the PEG channel facilities fee as required in Section
3.22.030.
Section 2. No Change to Municipal Code. Section 3.22.030 of the Dublin Municipal Code
shall remain unchanged and in full force and effect .
Section 3. Urgency Findings and Declaration. The City Council finds and declares that
this Ordinance must be adopted as an urgency matter because it is necessary for the
immediate preservation of the public peace, health, and safety. The following facts and
circumstances support such necessity: Section 5870(n) of the California Public Utilities Code
states that a PEG fee ordinance must be reauthorized upon expiration of an applicable state
franchise. Although DMC Section 3.22.030 provides for continuity in PEG funding, it is in the
public interest to take every measure to ensure that there is no lapse in the collection and
remission of PEG fees, which supports public, educational, and governmental access channels.
Maintaining stable funding for PEG channels is therefore vital to the public peace, health, and
safety of the City of Dublin. Without the enactment of this Ordinance as provided herein, a
lapse in the collection and remission of the PEG fee could potentially occur, endangering the
stability of PEG program funding within the City.
Based on said findings, facts and circumstances, the City Council finds that this Ordinance
should be adopted as an urgency ordinance for the immediate preservation of the public peace,
health and safety, and that it is necessary that this Ordinance should go into effect as described
below.
Section 4. Severability. The provisions of this Ordinance are severable and if any provision,
clause, sentence, word or part thereof is held illegal, invalid, unconstitutional, or inap plicable to
any person or circumstances, such illegality, invalidity, unconstitutionality, or inapplicability shall
not affect or impair any of the remaining provisions, clauses, sentences, sections, words or
parts thereof of the ordinance or their applicability to other persons or circumstances.
Section 5. Effective Date. Following adoption by at least a four-fifths vote of the City
Council, this Ordinance shall take effect and be enforced immediately upon the commencement
of AT&T’s new or renewed state franchise under the Digital Infrastructure and Video
Competition Act of 2006.
Section 6. Posting. The City Clerk of the City of Dublin shall cause this Ordinance to be
published or posted as required in Section 36933 of the Government Code of the State of
California.
PASSED, APPROVED AND ADOPTED this 7th day of March, 2017.
AYES:
NOES:
ABSENT:
ABSTAIN:
_____________________________
Mayor
ATTEST:
___________________________________
City Clerk
2773348.2
ORDINANCE NO. __ - 17
AN ORDINANCE OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
* * * * * * * * * * * * * *
REAUTHORIZING THE PUBLIC, EDUCATIONAL, AND GOVERNMENTAL (PEG) FEE
ON STATE CABLE FRANCHISEES OPERATING WITHIN THE CITY
WHEREAS, the City Council previously adopted Section 3.22.030 of the Dublin Municipal
Code (“DMC”), which imposes a public, educational, and governmental (“PEG”) fee on state
cable franchisees operating within the City as authorized in the Digital Infrastructure and Video
Competition Act of 2006; and
WHEREAS, Section 5870(n) of the California Public Utilities Code states that a PEG fee
ordinance must be reauthorized upon expiration of an applicable state franchise; and
WHEREAS, DMC Section 3.22.030(c) provides that, notwit hstanding Section 5870(n) of
the California Public Utilities Code, upon the expiration of any state franchise, the City’s PEG
fee is automatically reauthorized unless the franchise holder has given the City Manager and
City Council 60-days’ written notice prior to the expiration of its state franchise that the City’s fee
authorization will expire; and
WHEREAS, AT&T, Inc. operates within the City under a state franchise that expires on
March 30, 2017; and
WHEREAS, the City received no timely written notice from AT&T of the expiration of its
state franchise pursuant to Section 3.22.030(c); and
WHEREAS, therefore, pursuant to the provisions of Section 3.22.030(c), the City’s PEG
fee is automatically reauthorized with regard to AT&T; and
WHEREAS, notwithstanding the automatic reauthorization of the City’s PEG fee as
described above, the City Council wishes to adopt an ordinance expressly declaring that the
City’s PEG fee is reauthorized.
NOW, THEREFORE, the City Council of the City of Dublin does hereby ordain as follows:
Section 1. PEG Fee Reauthorization. The City’s PEG channel facilities fee authorized in
Section 3.22.030 of the Dublin Municipal Code is hereby reauthorized to the extent required by
Section 5870(n) of the California Public Utilities Code. All state franchisees operating within the
City shall continue to collect and remit the PEG channel facilities fee as required in Section
3.22.030.
Section 2. No Change to Municipal Code. Section 3.22.030 of the Dublin Municipal Code
shall remain unchanged and in full force and effect.
Section 3. Severability. The provisions of this Ordinance are severable and if any provision,
clause, sentence, word or part thereof is held illegal, invalid, u nconstitutional, or inapplicable to
any person or circumstances, such illegality, invalidity, unconstitutionality, or inapplicability shall
not affect or impair any of the remaining provisions, clauses, sentences, sections, words or parts
thereof of the ordinance or their applicability to other persons or circumstances.
Section 4. Effective Date. This Ordinance shall take effect and be in force thirty (30) days
from and after the date of its passage or upon the commencement of AT&T’s new or renewed
state franchise under the Digital Infrastructure and Video Competition Act of 2006, whichever is
later.
Section 5. Posting. The City Clerk of the City of Dublin shall cause this Ordinance to be
published or posted as required in Section 36933 of the Governmen t Code of the State of
California.
PASSED, APPROVED AND ADOPTED this 21st day of March, 2017.
AYES:
NOES:
ABSENT:
ABSTAIN:
_____________________________
Mayor
ATTEST:
___________________________________
City Clerk
2784233.1
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:
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 Purpose and Applicability.
3.22.020 Definitions.
3.22.030 Public, Educational, and Government Channels.
3.22.040 Customer Service Penalties for State Franchise Holders.
3.22.050 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 of this 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 0) of Public Utilities Code section
5830 or its successor.
E. "Material breach" shall have the meaning given that term by subdivision 0) 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 (I%) 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 0) 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 4h day of March, 2008, by the following vote:
AYES: Councilmembers Hildenbrand, Oravetz, Sbranti and Scholz, and Mayor Lockhart
NOES: None
ABSENT: None
ABSTAIN: None
A7L n
Deputy City Clerk
Ord No. 09 -08, Adopted 3/04/08, Item 4.10 Page 4 of 4