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HomeMy WebLinkAboutItem 6.3 EstCableTV ViolPen (2) ..". "~i. r,;;-' ". '.' .. 1- :-::,. -. ";-:'';; - &..... .;: " ," ,.. -, :."-'t~i,.,. - .' '. '~~,~. : ':,.,'. .' , CITY CLERK File#~ AGENDA STATEMENT CITY COUNCIL MEETING DATE: March 18, 1997 SUBJECT: Ordinance Establishing Penalties for Cable TV Violations (Report prepared by Elizabeth H. Silver, City Attorney) EXHIBITS ATTACHED: Draft Ordinance Government Code Section 53088.2 1. 2. RECOMMENDATION: /1) /l jf 2) ! \~' 3) 4) 5) Open Public Hearing Receive Staff Report and Public Testimony Close Public Hearing Deliberate Waive reading and INTRODUCE Ordinance (Exhibit 1) FINANCIAL STATEMENT: City will have authority to impose monetary penalties in addition to those in franchise agreement. DESCRlPTION: At the City Council meeting of January 21, 1997, Staff informed the Council that Government Code Section 53088.2 (q) allowed the City to impose penalties for failure to provide CATV services in addition to the $100 per day set forth in our franchise agreement with T.e.L The Council requested that Staff prepare an ordinance providing for such penalties. A draft ordinance is attached as Exhibit 1; it includes the maximum penalties allowed by the state statute. Any penalties paid under the franchise agreement would be credited against penalties under the ordinance. Government Code Section 53088.2 is attached which sets forth the list of services to be provided by the franchise for which the penalty can be imposed. Staff recommends that the Council conduct a public hearing, deliberate, and waive the reading and INTRODUCE the ordinance. g/cc-~7-qtrl!mar.9713.18.97/as--cable.doc ------------------------------------------------------------------ COPIES TO: ITEM NO. 6.j . . . ORDINANCE NO. ~ 97 AN ORDINANCE OF THE CITY OF DUBLIN ESTABLISHING PENALTIES FOR BREACH OF VIDEO PROVIDER SERVICES The City Council of the City of Dublin does ordain as follows: Section 1. Section 3.20.795 entitled VIDEO PROVIDER SERVICE PENALTIES is added to the Dublin Municipal Code to read as follows: The following penalties are hereby established for material breach of video provider services specified in subdivision (a) to (m) of Section 53088.2 of the Government Code of the State of California: A. Two hundred dollars ($200) for each day of material breach, not to exceed six hundred dollars ($600) for each occurrence. B. Where a material breach has occurred, the city has provided notice and a penalty pursuant to subsection A hereof, and a subsequent material breach of the same nature occurs within 12 months, the penalty shall be four hundred dollars ($400) for each day of material breach, not to exceed twelve hundred dollars ($1200) for each occurrence. C. Where the city has provided notice and penalties pursuant to subsections A and B hereof and a third or subsequent material breach of the same nature occurs within 12 months the penalty shall be one thousand dollars ($1,000) for each day of material breach, not to exceed three thousand dollars ($3,000) for each occurrence. D. Penalties assessed pursuant to this section shall be reduced dollar for dollar to the extent of any penalties imposed upon the Grantee for the same customer service failure under the franchise. EXHIBIT 1 Section 2. This Ordinance shall take effect and be in force 30 days following its adoption. 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. PASSED, APPROVED AND ADOPTED by the City Council of the Cit of Dublin this _ day of , 1997, by the following vote: AYES: NOES: ABSTAIN: ABSENT: Mayor ATTEST: City Clerk J:\WPD\MNRSW\114\ORD\CABLETV.128 JFC:EHS:rja 2 . :. . . GOYEM'ME!\"T CODE ~ 53088.2 !i 5308';.5. Privare property; seismic safety improvements; public financing; notice to lienholders A loan or expenditure of funds by a local public entity, including a charter city, to upgrade or improve privately owned prope..'"ty for purposes of seismic safety or retrofitting, where the provision of funds creates or can creare a lien on the property, shall not., when combined 'With existing liens on the property, exeeed 80 pe..TOCent of the current appraised value of the property, as determined by an independent., eertified appraiser, unless the existing lienholders consent in writing to a higher loan.to.value ratio. Notice of the intention to provide financing to the owner of the property shall be given to existing lienholders of record not less than 30 days prior to any vote of the local agen~ authoriting the provision of financing to the owner of the property. (Added by Stats.1995, c. 385 (S.B.1010l,!i 1.) Historical and Statutory Notes 1995 Legial11tion Section 4 of Stats.1995, c. 385 (S.B.1010), provides: '"The Legi:iliLture hereby finds and declares as follows: '"The c:reation and priority of liens on property is of statewide concern. PropertY awners. purchasers, aIld 'lenders must know the status of title and liens in order to make eeonomic decisions affecting their investment.. Gov- ernment agencies.. like private parties. should not be permitted to create liens that would jeo~e the securi- t). of existing lienholden merely to improve for seismic retrofit purposes privately awned property v.ithout the consent of the prior lien holders." Article 4.5 VIDEO CUSTOMER SERVICE ACT Section 53088. 53088.1. 53088.2. Section tion procedures; authority to schedule penalties. Short title. Definitions. Duties of video providers; disclosure of customer information; dispute resolu. Article 4.5 was added by Stats.1992, c. 1198 (AB.2388), S 1. !i 53088. Short title This article shall be known and may be cited as the Video Customer Service Act. (Added by Stats.l992, c. 1198 (AJ3.2388), !i'1.) !i 53088.1. Definitions (a) ''Video provider" means any person, company, or serviee which provides one or more channels of video programming to a residence, including a home, condominium, or apartment where some fee is paid, whether directly or as included in dues or rental charges, for that service, whether or not public rights-of. way are utilized in the delivery of the video programming. A "video provider" shall include, bUt not be limited to, providers of cable television, master antenna television, satellite master antenna television, direct broadcast satellite, multipoint distribution se......ices, and other providers of video prograrruning, whatever their technology. A video provider shall not include a landlord providing only broadcast video programming to a single-family home or other residential dwelling consisting of four units or less. (b) "Material breach" means any substantial and repeated failure to comply 'With the consumer service standards set forth in Section 53088.2. (Added by Stats.1992. c. 1198 (A.B.2388),!i 1.) Library References Worcis and Phrases (Perm.Ed.) !i 53088.2. Duties of video providers; disclosure of customer information; dispure resolution procedures; authority to schedule penalties . (a) Eve..'j' video provider shall render reasonably efficient service, make repairs promptly, and mt.errupt service only as necessary. (b) All video provider personnel contacting subsc:ribers or potential subsc:ribers outside the office of the provider shall be clearly identified as associated with the video provider. Additions or changes indicated by underline; deletions by asterisks .. .. .. 33 EXHIB~ __-~_______'~' ~ .~__,... .~. --_.,- -~_ ..IE"+~O..",-.____ .'.-:...._......-....~""..............____~__._.......__---_._._-'~~________.,._._'___--~_~__~__.._ . . f: .. -.~::, ,:~,.. :: t: ~3088.2 GOVERNMENT CODE (c) At the time of instaIlation, and annually thereafter. aD video provid~ shall provide to aD customers a written notice of the prognunming offered, the prices for that programming. the provider's installation and cnstomer service policies, and the name, address, and telephone number of the local franchising authority. (d) All video providers shall have knowledgeable. qualified company representatives available '. respond to eustomer telephone inquiries Monday through Friday, excluding holidays. during noml.- business hours. (e) All video providers shaD provide to customers a toll.free or local telephone number for installation. and service, and complaint calls. These calls shall be answered promptly by the video providers. The city. county, or city and county may establish standards for what constitutes promptness. (0 All video providers shall render bills which are accurate and understandable. (g) All video providers shall respond to a complete outage in a customer's service promptly. The response shall oceur within 24 houn of the reporting of such outage to the provider. except in those situations beyond the reasonable control of the video provider. A video provider shall 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. (h) All video providers shall provide a minimum of 30 days' written notice before increasing rates or deleting channels. All video providers shall make every reasonable effort to submit the notice to the city, county, or city and county in advance of the distribution to customers. The 3o-day notice is waived if the increases in rates or deletion of clwmels WE're outside the con1J'o1 of the video provider. In those cases the video provider shall make reasonable efforts to provide customers with as much notice as possible. (i) Every video provider shall allow every residential customer who pays his or her bill directly to the video provider at least 16 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 estlllbli,hing tenancy. Customer payments shall be posted promptly. No video provider may tenninate residential service for nonpayment of a delinquent account unless the video provider furnishes notice of the delinquency and impending termination at least 16 days prior to the proposed tennination. The notice shall be mailed, postage prepaid, to the customer to whom the service is billed. Notice shall 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 tennination 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. G) Every notice of termination of service pursuant to subdivision (i) shall include all of the following information: (1) The name and address of the customer whose account is delinquent. (2) Tbe amount of the delinquency. (3) The date by which payment is required in order to avoid tennination of service. (4) Tbe 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. (k) Any service terminated without good cause shall 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 subscnber actions. - (f) All video providers shall 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. (m) All video roviders shan issue securi or customer denosit refund checks than 45 ys followinR" the termination of serv1ce. ess any d uctions permi by w. (n) Video viders shall not disclose the name and address of a subscriber for commercial . to be in m . ts or or 0 er comm . not reaso to e con uet of usinesses of the vi eo roVl ers or eir . tes. unless e vi eo rovi ers ve to e subscri a no se te or in u In an 0 er customer notice. 'that clear an cons icuousl e su scriber's to ro 'bit the . osure. ideo rovi ers rovide an dress an ep one num or a ocal subscri to use wi out to ~ to prevent osure 0 e subscriber's name and address. Additions or changes Indicated by underflne; deletions by asterisks .. .. .. 34 ... '. j I I ! ; GOVERNMENT CODE deo providers shall provid~ to all. custom~ ~~ming, the proVlder's installatlon ~.e number of the local franchising :led company representatives available to Friday, excluding holidays, during nonnal oe or local telephone number for installation, n-ed promptly by the video providers. The hat constitutes promptness. and understandable. ge in a customer's service promptly. The lch outage to the provider, except in those der. A video provider shall be deemed to ive arrives at the outage location within 24 ys' written notice before increasing rates or onable effort to submit the notice to the city, lstomers. The 3CHiay notice is waived if the ontrol of the video provider. In those cases customers with as much notice as possible. orner who pays his or her bill directly to the lrVices is mailed to the customer, to pay the entia! rental agreement establishing tenancy. :"Ovider may terminate residential service for ider furnishes notice of the delinquency and ,ed termination. The notice shall be mailed, eel. Notice shall not be mailed until the 16th ! customer. The notice of delinquency and No video provider may assess a late fee any nailed. .n (i) shall include all of the following is -u~quent. lid tennination of service. video provider who can .provide additio~ ation concerning the semce and charges lD tomer can reach a representative of the video be restored without charge for the service ure to pay, payment by check for which .there :'lent or system personnel, or other similar :Iecks promptly, but no later than 45 days -eturn of the equipment supplied by the video deposit refund checks promptly, but no later eductions permitted by law. :-ess of a subscriber for commercial F!8in to be lot reasonably related to the con~uet of ~e ss the video providers have proVlded to the stomer notice. 'that clearly and consOlcuously Video oroviders shall provide an address and lt toll c:harge to prevent disclosW'e of the :!!; deletions by asterisks * * · .~- ."--". GOVERNMENT CODE ~ 53088.2 (0) Disputes concerning the provisions of this article shall be resolved by the city, county, or city and county in which the customer resides. For video providers under Section 53066, the franchising authority shall resolve disputes. All other video providers shall register with the city in which they pro~de ~ce or, where the customers reside in an unincorporated area, in the county in which they proVlde ServIce. The registration shall include the name of the company, its address. iOl officers, telephone numbers, and customer service and complaint procedures. Counties and cities may charge these other video providers operating in the state a fee to cover the reasonable cost of administering this division. ~ Nothing in this division limits any 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. !g2 The legislative body of the city, county, or city and county, may, by ordinance, provide a schedule of penalties for the material breach by a video provider of subdivisions (a) to (n),l inclusive. No monetary penalties shall be assessed for a material breach where the breach is out of the reasonable control of the video provider. Further, no monetary penalties may be imposed prior to the effective date of this section. kty schedule of monetary penalties adopted pursuant to this section shall in no event exceed two hundred dollars ($200) for each day of each material breach, not to exceed six hundred dollars ($600) for each OCCI1l'TeIlce of material breach. However, where a material breach of any of subdivisions (a) to (n),l inclusive, has occurred and the city, county, or city and county has provided notice and a fine or penalty has been assessed, in a subsequent material breach of the same nature occurring within 12 months, the penaltips may be increased by the city, county, or city and county to a maximum of four hundred dollars ($400) for each day of each material breach, not to exceed twelve hundred dollars ($1,200) for each OCCI1l'TeIlee of the material breach. Where a third or further material breach of the same nature oeeurs within those same 12 months, and the city, county, or city and county has provided notice and a fine or penalty has been assessed, the penalties may be increased to a maximum of one thousand dollars ($1,000) for each day of each material breach, not to exceed three thousand dollars ($3,000) for each occurrence of the material breach. With respect to video providers subject to a franchise or license, any monetary penalties assessed under this section shall be reduced dollar for dollar to the extent any liquidated damage or penalty provision of a current cable television ordinance, franchise contract, or license agreement imposes a monetary obligation upon a video provider for the same' customer service failures, and no other monetary damages may be assessed. However, this section shall in no way affect the right of franchising authorities concerning assessment or renewal of a cable television franchise under the provisions of the Cable Communications Policy Act of 1984.2 (r) If the legislative body of a city, county, or city and county adopts a schedule of monetary penalties pursuant to subdivision (0),3 the following procedures shall be followed: (1) The city, county, or city and county shall give the video provider written notice of any alleged material breaches of the consumer serviee standards of this division and allow the video provider at least 30 days from receipt of the notice to remedy the specified breach. (2) A material breach for the purposes of assessing penalties shall be deemed to have occurred for each day, following the expiration of the period specified in paragraph (1), that any material breach has not been remedied by the video provider, irrespective of the number of customers affected. (s) Notwithstanding subdivision (m),4 or any other provision of law, this section shall not preclude a party affected by this section from utilizing any judicial remedy available to that party without regard to this section. Actions taken by a loeallegislative body, including a franchising authority, pursuant to this section shall not be binding upon a court of law. For this purpose a court of law may conduct de novo review of any issues presented. (t) If any provision of this act or the application thereof to any pexson or circumstances is held invalid, that invalidity shall not affect other provisions or applications of the act which can be given effect without the invalid provision or application. and to this end the provisions of this act are severable. (u) This section shall become opentive on September I, 1993. (Added by Stats.l992, Co 1198 CA.B.2388l, ~ 1. operative Sept. I, 1993. Amended by Stats.l994, c. 384 (S.B.1941), ~ 1.) . 1 So in enrolled bill. See subdivisions (a) to (p). 247 U.s.C.A.. !i 521 et seq. :1 So in enrolled bill. See subdivision (q). 4 So in enrolled bill. See subdivision (0). Additions or changes Indicated by underline; deletions by asterisks * · · 35 ;~ ct~ ~11~1j: iil~t;;~._>-L_~ ". '." . ....:. '-'':"":.:.- _." . f 53088.2 GOVERNMENT CODE Article 4.8 CONSUMER CONTRACTS: CABLE TELEVISION Section 5308BJi. Legislative ftndinp and declaration. 53088.8. Fee for delinquent payment of eable TV services; conditions. Section 5308B. 7. Maximum amount of fees; FCC require. ments. 53OB8.8. Application of article. Arti.ek.f,.6 tDlU adti<<l by StlJta.1996, e. 666 (S.B.610), i 1. I 53088.5. Le,illative f"mdinp aDd declaration The Legislature hereby ftnds and declares 88 follows: (a) It is a common practice in the sale or lease of cable television services for a fee to be imposed upon a consumer's failure' to make full and timely payment of periodic cl1arges for those services. (b) It is desirable to establish certain reasonable minimum standards to prevent abuse or oven::harges. (c) Complicated and expensive accounting determinations are required to fairly assess the exact costs which are incurred for collection and 8CCOUI1Cng for delinquent payments. (d) Currently, the Federal Communications Commission excludes late fees from inclusion when setting benchmark rates. (e) It is desirable to 'encourage the practice of extending services and avoiding the immediate terminatJon of services notwithstanding a short-term delinquency. (Added by Stats..I996, Co 666 (S.B.BIO), fi 1.) I 53088.6. Fee for delinquent PlI1Jhent of cable TV services; conditions Notwithstanding Section 53088.2, a fee may not be imposed Upon consumers for any delinquent payment for sale of cable television services unless all of the following apply: (a) For aD contnlcts entered into on or after January I, 1997, at or before the time the consumer enters into the initial agreement for services, the consumer is provided with written notice that it is the policy of the seIler to impose a fee on delinquent accounts. '. (b) At least 10 days prior to the date a fee is imposed, the consumer is warned on the face of the notice, in writing of the late file that will be imposed if a consumer's delinquency is not paid. This notice shall specify the date on or after'which a late fee will be charged. (c) The conswner's invoice specifies a due date that is not earlier than the 10th day of the service period for which the invoice is issued. (d) The fee is assessed no earlier than 2:l days after the due date specified in the invoice. (e) The fee is assessed on a delinquent balance of more than ten dollars ($10). (Added by Stats.l996, c. 666 (S.B.6IO), i 1.) J I 53088.7. . Maximum amount of fees; FCC requirements Notwithstanding Section Ei308B.2, a delinquency fee charged in a cable television transaction which is not in excess of four doUan and seventy-five cents ($4.75) and wbicl1 is imposed in accordance with the procedures set forth in Section 53088.6 shall be valid. The delinquency fee may not exceed four dollars and seventy-fiVe cents ($4.75), unless the Federal Communications Commission expressly requires late fees to be fully included when setting benciunar.k rates applicable to a cable television operator. If this requirement is imposed by the Federal Communications Commission, then the maximum delinquency fee charged by the cable television provider shall be a percent of the delinquent amount in the relevant francl1ise areas for as long as late fees are fully included in benclunark rates. (b) A collection fee which is not in excess of ten dollars ($10) and is in addition to the delinquency fee shall also be valid in a cable television consumer service transaction if the service provider sends an employee or contnlctor to the c:ustorner's residence in order to collect payment or disconnect service and th7 fee is imposed in accordance with the procedures set forth in Section 53088.6. (Added by Stats.I996, c:. 666 (S.B.6IO), i 1.) AddItions Dr Chang.. IndIcated by underflne; deletions by asterlaks . . . 36 '. ; I GOY. !. This article lnorSl: eontn.. CAddec Sec:tior 5309l. 53094. 58097. I 53091. Each COUl1tyO building cornmisa to attenl features ~~ w:~. 0l'll4":"1e: t is situate I section, t I Act to eo iofthisSE I county 01 I thecityo I Each Ie section a: Section & the paym the amou. Building productio agency. Zoning P1'OductiOJ energy, nl substatior. ZOning or storage OJ make pro\ CAmended 198C Am, -.