HomeMy WebLinkAboutOrd 1872ORDINANCE NO. 1872-2012
AN ORDINANCE OF THE CITY OF BURLINGAME REPEALING CHAPTER 6.481 OF
THE BURLINGAME MUNICIPAL CODE, "CABLE TELEVISION SYSTEMS", AND
ENACTING A NEW CHAPTER 6.50, "VIDEO SERVICE PROVIDED BY STATE
FRANCHISE HOLDERS"
WHEREAS, cities and counties with n the State of California traditionally had the
authority to issue cable television franchises and regulate cable television service providers within
the respective geographic corporate limits of their jurisdictions in accordance with federal, state
and local laws; and
WHEREAS, the California State Legislature adopted the Digital Infrastructure and
Video Competition Act of 2006, California Public Utilities Code Sections 5800 through 5970
("DIVCA") which became law on January 1, 2007; and
WHEREAS, DIVCA gives the California Public Utilities Commission (the CPUC) sole
authority to award state franchises to video service providers and established a statewide
franchise for video service providers to be administered by the CPUC thereby preempting a city
or county's authority to issue franchises; and
WHEREAS, DIVCA retains certain limited local government authority over state
franchise holders and the City of Burlingame desires to exercise that authority and facilitate the
mplementation of DIVCA by setting forth regulations for the provision of video services by state
franchise holders operating within the corporate limits of the city.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF BURLINGAME
DOES ORDAIN AS FOLLOWS:
Division 1. Findings
The City Council deternrines and finds that all of the facts contained in the recitals above, all of
the facts contained in the staff report and all of the facts presented at the public hearing, are true
and correct and based upon these facts, the Council determines that the public health safety and
welfare of the citizens of Burlingame require the adoption of this ordinance
Division 2. Repeal of Chapter 6.48 of the Burlingame Municipal Code
Chapter 6.48 of the Burlingame Municipal Code, "Cable Television Systems", is hereby repealed
in its entirety.
sion 3. Ordinance Regulating Video Service providers Holding a State Franchise
Chapter 6.50, entitled "Video Service Provided by State Franchise Holders" is hereby added to
the Burlingame Municipal Code to read as follows:
6. 50.010 Purpose and applicability.
The purpose of this chapter is to set forth regulat ons for the provision of v deo service by
state franchise holders, in accordance with the Digital Infrastructure and Video Competition Act,
California Public Utilities Code Sections 5800 through 5970 ("DIVCA"). This chapter shall apply
to video service providers operating within the City of Burlingame pursuant to a valid state
franchise.
6.50.020 Definitions.
For the purposes of this chapter, the words set out in this section shall have the following
meanings:
"City" means the city of Burlingame.
"City manager" means the city manager of the city of Burlingame, or designee.
"Franchise fee" shall have the meaning given that term by subdivision (g) of Public
Utilities Code Section 5830 or its successor.
"Gross revenues" shall have the meaning given that term by the California Public
Utilities Code Section 5860 or its successor.
"Holder" shall have the meaning given that term by subdivision (j) of Public Utilities
Code Section 5830 or its successor.
"Material breach" shall have the meaning given that term by subdivision (j) of Public
Utilities Code Section 5900 or its successor.
"Network" shall have the meaning given that term by subdivision (1) of Public Utilities
Code Section 5830 or its successor.
"State fr
anchise" shall have the meaning given that term by subdivision (p) of Public
Utilities Code Section 5830.
"Video service" shall have the meaning given that term by the Californ
ia Public Utilities
Code Section 5830(x) or its successor.
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6.50.030 Franchise fee for state franchise holders.
Any state franchise holder shall remit to the city a franchise fee in the amount of five
(5%) percent of the gross revenues of the state franchise holder in compliance with California
Public Utilities Code Section 5840(q).
6. 50.040 Public, educational, and government channels.
(a) hi accordance with Public Utilities Code Section 5870(n), upon termination of all
recumbent cable provider franchises, each state franchise holder shall remit to the city a fee to
support PEG channel facilities in the amount of one percent of gross revenues. Each state
franchise holder shall remit such fee to support PEG channel facilities quarterly, within forty-five
calendar days after the end of the quarter for the preceding calendar quarter. All revenue collected
pursuant to this fee shall be deposited in a separate fund and shall only be expended for the
purpose of supporting PEG channel facilities.
(b) Each payment of the fee established in subsection (a) of this section delivered to
the city shall be accompanied by a summary report: (1) explaining the basis for the calculation of
the payment; (2) reflecting the total amount of gross revenues for the remittance period and all
payments, deductions and computations used to determine the amount of the quarterly remittance;
and (3) the fourth quarter payment shall include the total amount of gross revenues for the
remittance period and a summary of the gross revenues submitted for the entire calendar year.
The city manager may establish, and from time to time revise, such additional reporting
requirements as are reasonably necessary to ensure that the basis for the calculation of the amount
of remittance is adequately explained and documented, and each state franchise holder shall
comply with such additional reporting requirements provided that each state franchise holder
shall have agreed to such additional reporting requirements. Any additional reporting
requirements must be mutually agreed upon by the city and the franchise holder.
(c) Each state franchise holder shall designate a sufficient amount of capacity on its
network to allow the prov sion of PEG channels in accordance with Califomia Public Ut lities
Code Section 5870. Each state franchise holder shall have three (3) months from the date the city
requests the PEG channels to designate the capacity. The three-month period shall be tolled by
any period during which the designation or provision of PEG channel capacity is technically
infeasible.
(d) This section shall be enforced, and disputes regarding this secfion shall be
resolved, pursuant to California Public Utilities Code Section 5870(p).
6.50.050 Customer service penalties by state fran
chise holders.
(a) Any state fran
chise holder shall comply with the customer service provisions set
forth in Public Utilities Code Section 5900.
(b) The city shall impose the following penalties against a state fran
chise holder for
any material breach of the customer service provisions set forth in Secfion 6.50.050(a):
(1) For the first occurrence of a material breach, a fine of five hundred dollars
($500.00) shall be imposed for each day of each material breach, not to exceed one thousand five
hundred dollars for each occurrence of the material breach.
(2) For a second occurrence of a material breach of the same nature as the frst
material breach that occurs within twelve months, a fine of one thousand dollars ($1,000.00) shall
be imposed for each day of each material breach, not to exceed three thousand dollars for each
occurrence of the material breach.
(3) For a third or further occurrence of a material breach of the same nature as the
previous material breaches that occurs within twelve months, a fine of two thousand five hundred
dollars ($2,500.00) shall be imposed for each day of each material breach, not to exceed seven
thousand five hundred dollars ($7,500.00) for each occurrence of the material breach.
(c) 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.
(d) A material breach for the purposes of assessing penalties shall be deemed to have
occurred for each day within the jurisdiction of the city, following the expiration of the period
specified in this section that any material breach has not been remedied by the video provider,
n espective of the number of customers affected. No monetary penalties shall be assessed for a
material breach if it is out of the reasonable control of the state franchise holder.
(e)
The city shall submit one
half of any penalty amounts it receives
to the Digital
Div de Account
established by California
Public Utilit es Code Section 280.5.
(f) No monetary penalties shall be assessed for a material breach if it is out of the
reasonable control of the state franchise holder.
6.50.060 Authority to examine and audit business records.
The city shall ensure that it receives all fr
anchise fee revenue to which it is entitled to at
the times and in the amounts specified by Public Utilities Code Section 5860, and, to that end, the
city manager is hereby authorized, either with or without the assistance of duly authorized
representative, to examine the business records of the holder of the state franchise in accordance
with subdivision (i) of Public Utilities Code Section 5860.
CI
sion 4. Severability.
If any of the provisions of this Chapter or the app licafion thereof to any person or circumstance is
held invalid, the remainder of those provisions, including the application of such part or
provisions to persons or circumstances other than those to which it is held invalid, shall not be
affected thereby and shall continue in full force and effect. To this end, the provisions of this
Chapter are severable.
Division 5. Environmental Findings.
The Planning Department has determined that the acfions contemplated in this ordinance are in
compliance with the California Environmental Quality Act.
rry Deal, ayor
I, Mary Ellen Kearney, City Clerk of the City of Burlingame, do hereby certify that the
foregoing ordinance was introduced at a regular meeting of the City Council held on the 5day
of March, 2012, and adopted thereafter at a regular meeting of the City Council held on the 19th
day of March, 2012, by the following vote:
AYES: COUNCILMEMBERS: gAYLOCR, BROWNIGG, DEAL, KEIGHRAN, NAGEL
NOES: COUNCILMEMBERS: NONE
ABSENT: COUNCILMEMBERS: NONE
Mary Ellen Kearney, City Cler1
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