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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of the Burlingame Municipal Code Chapter 6.48 of the Burlingame Municipal Code, "Cable Television Systems", is hereby repealed in its entirety.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. 2 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 5