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Agenda Report - November 4, 2009 J-02
AGENDA ITEM Z'op ?w A% CITY OF LODI COUNCIL COMMUNICATION im AGENDA TITLE: Introduce State Video Franchise Ordinance, Establishing the Obligations of Cable Operators Providing Service in the City of Lodi Under a State Franchise Agreement MEETING DATE: November4,2009 PREPARED BY: City Manager's Office RECOMMENDED ACTION: Introducethe State video franchise ordinance ,establishing the obligations of cable operators providing service in the City of Lodi under State FranchiseAgreement. BACKGROUND INFORMATION: In September 2006, Governor Schwarzenegger signed into law AB 2987, known as the Digital Infrastructureand Video CompetitionAct of 2006 (DIVCA), which established a new framework for the regulation of cable television. Priorto 2007, no cable company was allowed to construct or operate a cable television system in any California city without receiving a franchise or license to operate from the city. This structure allowed cities to negotiate terms of their local franchise agreements, covering all aspects of operation from customer service standards to franchise fees. Under DIVCA, the power to issue franchise agreements belongs solely to the California Public Utilities Commission. Because of that, the City needs a new ordinance that reflects the change. Comcast and AT&T now provide video service within the City of Lodi underfranchise agreements issued by the CPUC and not the City of Lodi. Without a local DIVCA ordinance, the City is toothless in enforcing customer service standards and ensuring the video companies are paying the properfranchise fees. A summary of the changes under DIVCA: ■ By obtaining state franchises, video companies have the rightto use/build in the public right- of-way in exchange for a franchise fee. Cities still have the rightto require encroachment permits and may regulate the time, place and manner of installation of the cable infrastructure. This ordinance affirms that right. ■ DIVCA establishedthe franchise fee that requires companies to pay 5 percent of gross revenues for operations in each city. Again, this ordinance affirms that right. ■ DIVCA requires state franchise holders to comply with state and federally mandated service standards (attached). Cities, however, will be responsiblefor enforcing the standards. Adopting the ordinance gives the City that ability. • Cities are required to establish a schedule of penaltiesfor any material breach of the state and federal customer service standards. This ordinance establishes a schedule of these penalties. ■ Previously, cities had great latitude for negotiating the operating and financial support that cable companies would provide for Public, Educational and Government (PEG) channels APPROVED: e� `) Blair g, City Manager introduce State Video franchise Ordinance, Establishingthe Obligations of Cable Operators Providing Service in the City of Lodi Under a State Franchise Agreement Page 2 through the local franchise agreement. Under DIVCA, cities can require a fee of up to 1 percent of gross operating revenues for PEG support via ordinance (or continue an existing PEG fee of up to 3 percent). This ordinance establishes a 1 percentfee. Under our previous local franchise agreement, we did not receive a PEG fee from Comcast or its predecessors because the cable companies provided noncash support through equipment and labor. Cities, however, can no longer require noncash benefits such as cable service to community buildings, staff support for broadcasting, provision of audio and video equipment and access to studio facilities. Cities may examine the cable companies' business records to ensure full payment of franchise fees. The City affirms that right in the proposed ordinance. The new situation under DIVCA, which prevents cities from requiring support for PEG programming, presentsthe biggest change, challenge and opportunityfor the City of Lodi. Comcast notified the City in May 2009 that it would phase out staffing support for broadcasting City Council meetings. We have completed this transition. In September, City staff began operating the cameras and other video equipment at the Carnegie Forum during City Council meetings. Adopting the maximum 1 percent PEG fee will raise approximately $80,000 in annual PEG revenue from Comcast and AT&T for local public access needs. With the end of Comcast's noncash support, the City needs a new revenue source to provide a similar level of service. For instance, the City does not have the technical capabilityto transmit broadcasts of City Council or any other meeting from the Community Centertheater, which has been chosen on two occasions in the past year as the venue for meetings with widespread interest. Also, the existing video equipment at the Carnegie Forum is aging and will eventually need replacing. A local PEG fee, which typically appears as a separate line on cable customers' bills, would generate the money needed for those equipment needs. In addition, implementing local PEG fee opens other possibilities, such as having the equipment to film and broadcast other community events, creating local public service announcements, covering local musical talent to producing shows of local interests. DIVCA does not allow the City to use those funds for operations. If we do not adopt an ordinance establishing the obligations of local video companies and PEG fee, any equipment purchasesfor local programming will occur on as as -needed basis with the General Fund absorbingthe cost. Also, the City will not be able to exert the limited authority availablethrough DIVCA, such as enforcing State and federal customer service standards. FISCAL IMPACT: Adopting the ordinance with a I -percent PEG fee will generate approximately $80,000 per year for video -related capital acquisition/repairs. For a customer subscribing only to the 100 -channel digital starter service, the increased cost would be approximately 58 cents a month. FUNDING AVAILABLE: Not applicable. Jeff HAOdl Com Kunications S ecialist Attachments: A: Proposed Ordinance B: California Public Utilities Code 5870 (PEG) C: Various state and federal customer service regulations ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF LODI AMENDING LODI MUNICIPAL CODE TITLE 5 — PERMITS AND REGULATIONS — BY ADDING CHAPTER 5.17, "STATE VIDEO FRANCHISES" WHEREAS, the Legislature of the State of California (the State) has adopted the Digital Infrastructure and Video Competition Act of 2006 (DIVCA); and WHEREAS, the Governor of the State of California signed DIVCA on September 29, 2006; and WHEREAS, DIVCA became effective on January 1, 2007; and WHEREAS, DIVCA establishes a regulatory structure for the State to issue franchises to video service providers; and WHEREAS, DIVCA establishes that local entities, such as the City of Lodi, are responsible for administration and implementation of certain provisions of DIVCA; and WHEREAS, DIVCA requires that the City establish, by ordinance, financial support provisions for Public, Educational and Governmental Access (PEG) channel facilities; and WHEREAS, DIVCA requires that the City adopt, by ordinance or resolution, a schedule of penalties for any material breach by a State video franchise holder for violation of customer service and protection standards that the City is permitted to enforce; and WHEREAS, as of November 4, 2009, there are two State -franchised cable operators providing cable service within the City; and WHEREAS, two of the cable franchises in the City are held by Comcast and AT&T; and WHEREAS, former City franchise -holder Comcast no longer provides noncash support to the City for PEG programming or facilities; BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF LODI AS FOLLOWS: SECTION 1. Lodi Municipal Code Title 5 — Permits and Regulations — is hereby amended by adding Chapter 5.17, "State Video Franchises" to read as follows: CHAPTER 5.17 STATE CABLE TELEVISION FRANCHISES Section: 5.17.010 Purpose. 5.17.020 Definitions and Interpretation of Language. 5.17.030 State Franchise Holder Fee. -1- 5.17.040 State Franchise Holder PEG Fees. 5.17.050 Payment of Fees. 5.17.060 Audits. 5.17.070 Late Payments. 5.17.080 Lease of City Property or Network. 5.17.090 Customer Service and Consumer Protection Standards. 5.17.100 Penalties for Violations of Standards. 5.17.110 General Requirements. 5.17.120 Permits. 5.17.130 Terms and Conditions. 5.17.140 Relocation of Franchise Property and Appurtenances. 5.17.150 Removal of Abandoned Facilities. 5.17.160 Notification to Residents Regarding Construction or Maintenance. 5.17.170 Identification Required. 5.17.180 Construction Requirements and Protection of Health and Safety. 5.17.200 Emergency Alert Systems. 5.17.210 Interconnection for PEG Programming. 5.17.220 Notices. 5.17.230 Rights Reserved. 5.17.240 Compliance with Law. 5.17.010 PURPOSE. This Chapter applies to all cable service or video service providers who are applying for, or have been awarded, a franchise under California Public Utilities Code Section 5800 et seq., the Digital Infrastructure and Video Competition Act of 2006, ("DIVCA"), to serve any area within the City of Lodi, including any cable service or video service providers who are subject to DIVCA. By this Chapter the City of Lodi intends to assume to the fullest extent possible all obligations, rights and privileges afforded to it by DIVCA and any other applicable law. Moreover, to the extent this Ordinance is pre-empted by DIVCA now or as amended in the future, the requirement of DIVCA shall control. 5.17.020 DEFINITIONS AND INTERPRETATION OF LANGUAGE. For purposes of this Chapter, the following terms, phrases, words, and their derivations shall have the meaning given in this section. Unless otherwise expressly stated, words not defined in this Chapter shall be given the meaning set forth in California Public Utilities Code, Section 5800 et seq. as amended from time to time. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number, words in the singular number include the plural number, and "including" and "include" are not limiting. The word "shall" is always mandatory. (a) Access, PEG access, PEG use, or PEG. "Access," "PEG access," "PEG use," or "PEG" means the availability of a cable or video system for public, educational, or governmental use by various agencies, institutions, organizations, groups, and individuals, including the City of Lodi and its City use channels or any existing agreement between the City and any incumbent cable operator, to acquire, create, and distribute programming not under a state franchise holder's editorial control. 2 (b) City. "City" means the City of Lodi, California. (c) City Council. "City Council" means the City Council of the City of Lodi. (d) City Manager. "City Manager" means the City Manager of the City of Lodi or his or her designee. (e) Gross revenues. "Gross revenues" means all revenues actually received by the holder of a state franchise that are derived from the operation of the holder's network to provide cable service or video service within the incorporated areas of the City, subject to the specifications of California Public Utilities Code Section 5860. (f) Director. "Director" means the Deputy City Manager/Internal Services Director of the City of Lodi or his or her designee. (g) State Franchise Holder, Holder of a State Franchise, Holder of the State Franchise, or Holder. "State Franchise Holder," "holder of a state franchise," "holder of the state franchise," or "holder" means any person or group of persons who has been issued a franchise by the California Public Utilities Commission to provide cable service or video service, as those terms are defined in Public Utilities Code Section 5830, within any portion of the City of Lodi. 5.17.030 STATE FRANCHISE HOLDER FEE. Any State Franchise Holder operating within the City shall pay to the City a State Franchise Holder fee equal to five percent of gross revenues, as defined in this Chapter and applicable law. Nothing in this section is intended to limit the City's ability to impose utility user taxes and other generally applicable taxes, fees and charges that are applied in a nondiscriminatory and competitively neutral manner. 5.17.040 STATE FRANCHISE HOLDER PEG FEES. Any State Franchise Holder operating within the City shall pay to the City a PEG fee equal to one percent of gross revenues, as defined in this Chapter and applicable law, unless a different amount is payable in accordance with applicable law or resolution adopted by the City Council. 5.17.050 PAYMENT OF FEES. The State Franchise Holder shall pay quarterly all fees required pursuant to this Chapter in a manner consistent with Public Utilities Code Section 5860. The State Franchise Holder shall deliver to the City by check or other means agreeable to the City Manager, a separate payment for the state franchise fee and the PEG fee not later than forty-five days after the end of each calendar quarter. Each payment made shall be accompanied by a summary explaining the basis for the calculation of the fees. 5.17.060 AUDITS. The City may examine the business records of the holder of a State Franchise in a manner not inconsistent with California Public Utilities Code Section 5860(i). 5.17.070 LATE PAYMENTS. In the event a State Franchise Holder fails to make any payment required by this Chapter on or before the due dates specified in this Chapter, the City shall impose a late charge at the rate per year equal to the highest prime lending rate during the period of delinquency, plus one percent unless a different rate is set by applicable law or resolution adopted by the City Council. 5.17.080 LEASE OF CITY PROPERTY OR NETWORK. To the extent not inconsistent with California Public Utilities Code Section 5840(q)(2)(B), in the event a State Franchise Holder desires to lease access to City property beyond the access conferred by its State Franchise or to a network owned or controlled by the City, the City may set terms and charge a fee for access to the property or City network separate and apart from any franchise fee or other fee charged to the State Franchise Holders pursuant to this Chapter. The City Council may set any such fee by resolution. 5.17.090 CUSTOMER SERVICE AND CONSUMER PROTECTION STANDARDS. Each State Franchise Holder shall comply with all applicable customer service and consumer protection standards, including, to the extent not inconsistent with California Public Utilities Code Section 5900, all existing and subsequently enacted customer service and consumer protection standards established by local, state or federal law and regulation. 5.17.100 PENALTIES FOR VIOLATIONS OF STANDARDS. (a) The City shall monitor compliance with and enforce the provisions of this Chapter and DIVCA. (b) For any material breach, as defined in California Public Utilities Code Section 59000), by a State Franchise Holder of applicable customer service and consumer protection standards, the City Manager, or the City Manager's designee, in his or her sole discretion may impose the following fines or penalties: (1) For the first occurrence of a material breach, a fine of five hundred dollars shall be imposed for each day the violation remains in effect, not to exceed one thousand five hundred dollars for each violation. (2) For a second material breach of the same nature within twelve months, a fine of one thousand dollars shall be imposed for each day the violation remains in effect, not to exceed three thousand dollars for each violation. (3) For a third or further material breach of the same nature within twelve months, a fine of two thousand five hundred dollars shall be imposed for each day the violation remains in effect, not to exceed seven thousand five hundred dollars for each violation. (c) Any penalties imposed by the City shall be imposed in a manner not inconsistent with California Public Utilities Code Section 5900. (d) To the extent not inconsistent with California Public Utilities Code Section 5900, the City, acting through its City Manager or his or her designee, in its sole discretion may waive, modify, or defer the imposition of a penalty. 5.17.110 GENERAL REQUIREMENTS. Except as expressly provided in this Chapter, the provisions of this Chapter shall apply to all work performed by or on behalf of a State Franchise Holder upon, above or below any street, highway, sidewalk, parkway, alley or other public right-of-way of any kind whatsoever within the City. 5.17.120 PERMITS. (a) Prior to commencing any work, a State Franchise Holder shall apply for and obtain a permit in accordance with the applicable provisions of this Chapter and Chapter 12.04 of this Code and shall comply with all other applicable laws and regulations, including, but not limited to, all applicable requirements of Public Resources Code Section 21000 et seq. (the California Environmental Quality Act). (b) The Public Works Director shall either approve or deny a State Franchise Holder's application for any permit required under this Chapter in accordance with the applicable terms of Chapter 12.04. (c) If the Public Works Director denies a State Franchise Holder's application for a permit, the Director shall, at the time of notifying the applicant of denial, furnish to the applicant an explanation of the reason or reasons for the denial. (d) A State Franchise Holder that has been denied a permit by final decision of the Public Works Director may appeal the denial to the City Council whose decision shall be final. Upon receiving a notice of appeal, the City Council shall consider the permit de novo. (e) A State Franchise Holder whose permit has been revoked may appeal that decision to the City Council in writing within ten (10) days after issuance of the notice of revocation. 5.17.130 TERMS AND CONDITIONS. The work of constructing, laying, replacing, maintaining, repairing, abandoning, or removing all property and appurtenances of the State Franchise Holder in, over, under, along, or across any City right-of-way as defined in Chapter 12.04 shall be done to the satisfaction of the Public Works Director and, except where a different outcome is prescribed by applicable law, at the expense of the State Franchise Holder, and in accordance with the terms and conditions of Chapter 12.04. 5.17.140 RELOCATION OF FRANCHISE PROPERTY AND APPURTENANCES. 5 (a) The City reserves the right to change the grade, change the width, or alter or change the location of any City right-of-way. If any Franchise Holder's property or appurtenance is installed or maintained by the State Franchise Holder on, along, under, over, in, upon, or across any public right -of way in a manner which prevents or interferes with any alteration or other change of grade, traffic needs, operation, maintenance, improvement, repair, construction, reconstruction, widening, or relocation of the right-of-way, or any work or improvement upon the right-of-way, the State Franchise Holder shall relocate any such property or appurtenances to the satisfaction of the Public Works Director, and, to the extent consistent with existing law at no expense to the City, upon receipt of a written request from the Director to do so and in accordance with the terms of Chapter 12.04. Should the State Franchise Holder neglect or fail to relocate its facilities in a timely manner as required by law after receipt of any such notice, the State Franchise Holder shall be responsible for and shall reimburse the City for any and all costs or expenses incurred by City due to or arising from the failure to relocate the facilities. (b) The City reserves the right to lay, construct, repair, alter, relocate, and maintain subsurface or other facilities or improvements of any type or description in a governmental and water, sewer and Electric Utility capacity, but not in a proprietary capacity within the right-of-way over which the franchise is granted. If the City finds that the location or relocation of such facilities or improvements conflicts with the property or appurtenances laid, constructed, or maintained by the State Franchise Holder, the City shall notify the State Franchise Holder of such conflict. To the extent and in the manner required by applicable law, the State Franchise Holder will relocate its facilities as requested by the City. 5.17.150 REMOVAL OF ABANDONED FACILITIES. Upon the abandonment of all or a portion of its property, the State Franchise Holder shall remove the property in accordance with the terms of Chapter 12.04. If the State Franchise Holder fails to comply with the terms and conditions of abandonment as may be required by this Chapter and Chapter 12.04, the Director of Public Works may direct the State Franchise Holder to remove, or cause to be removed, such facilities at the State Franchise Holder's expense and the State Franchise Holder shall pay to the City the cost of such work. Such decision may be appealed by the State Franchise Holder to the City Council. 5.17.160 NOTIFICATION TO RESIDENTS REGARDING CONSTRUCTION OR MAINTENANCE. (a) Prior to any construction activity related to any cable service or video service, a State Franchise Holder shall provide public notification as required by applicable law. (b) To the extent practicable, equipment placed on private property shall be placed at the location requested by the property owner.. 5.17.170 IDENTIFICATION REQUIRED. IN Employees, agents, contractors, and subcontractors of any State Franchise Holder shall at all times be properly identified as employees or agents of the State Franchise Holder while performing any work or other activity within the City on behalf of the State Franchise Holder. Identification shall include the name of the employee or agent. The name and telephone number of the State Franchise Holder shall appear at all construction sites. 5.17.180 CONSTRUCTION REQUIREMENTS AND PROTECTION OF HEALTH AND SAFETY. Each State Franchise Holder shall comply with all applicable construction requirements of Chapter 12.04 and shall undertake all necessary and appropriate means to protect and preserve health and safety, including complying with all construction requirements of Chapter 12.04 or as otherwise required by the Director of Public Works. 5.17.200 EMERGENCY ALERT SYSTEMS. Each State Franchise Holder shall comply with the emergency alert system requirements of the Federal Communications Commission in order that emergency messages may be distributed over the State Franchise Holder's network. 5.17.210 INTERCONNECTION FOR PEG PROGRAMMING. Each holder of a State Franchise and each incumbent cable operator operating under a City franchise issued pursuant to this Code, shall negotiate with each other in good faith to interconnect their networks for the purpose of providing PEG programming including, but not limited to, any exclusive City use channel. Interconnection may be accomplished by any means authorized under California Public Utilities Code Section 5870(h). Each holder of a State Franchise and any incumbent cable operator shall provide interconnection of PEG channels, including any exclusive City use channel on reasonable terms and conditions and may not withhold the interconnection. If a holder of a State Franchise and an incumbent cable operator cannot reach a mutually acceptable interconnection agreement, the City may require the incumbent cable operator to allow the holder of the State Franchise to interconnect its network with the incumbent cable operator's network at a technically feasible point on the State Franchise Holder's network as identified by the Holder or as otherwise permitted by applicable law. If no technically feasible point for interconnection is available, the holder of a State Franchise shall make an interconnection available to the channel originator and shall provide the facilities necessary for the interconnection. The cost of any interconnection shall be borne by the State Franchise Holder requesting the interconnection unless otherwise agreed to by the State Franchise Holder and the incumbent cable operator. To the extent not inconsistent with California Public Utilities Code Section 5870(h), the City Manager or the City Manager's designee may waive or defer this requirement of interconnection in his or her sole discretion. 5.17.220 NOTICES. (a) Each State Franchise Holder or applicant for a state franchise shall file with the City Manager and with the City's communications specialist or other City 7 Manager designee a copy of all applications that the State Franchise Holder or applicant is required to file with the Public Utilities Commission with respect to state franchised video service in the City. (b) Unless otherwise specified in this Chapter, all notices or other documentation that a State Franchise Holder is required to provide to the City under this Chapter or the California Public Utilities Code shall be provided to the City Manager and to the City's communications specialist. 5.17.230 RIGHTS RESERVED. The rights reserved to the City of Lodi under this Chapter are in addition to all other applicable rights of the City, whether granted or reserved by other provisions of the Lodi Municipal Code or as otherwise authorized by federal or state law, and no action, proceeding, or exercise of a right by the City of Lodi shall affect any other rights which may be held by the City of Lodi. 5.17.240 COMPLIANCE WITH LAW. Nothing contained in this Chapter shall be construed to exempt a State Franchise Holder from compliance with all applicable ordinances, rules, or regulations of the City of Lodi now in effect or which may be adopted that are not inconsistent with this Chapter or California Public Utilities Code Section 5800 et seq. SECTION 2. All other provisions of Lodi Municipal Code shall remain unchanged and continue in full force and effect. SECTION 3. Any provisions of the Lodi Municipal Code, or appendices thereto, or any other ordinances of the City, to the extent that they are inconsistent with this ordinance, and no further, are hereby repealed. SECTION 4. If any section, subsection, sentence, clause, or phrase of this ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of the ordinance. The City Council hereby declares that it would have passed this ordinance and each section, subsection, sentence, clause, and phrase thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses, or phrases be declared invalid or unconstitutional. SECTION 5. This ordinance shall go into effect and be in full force and operation from and after thirty days after its final passage and adoption. SECTION 6. The City Clerk shall cause this Ordinance or a summary thereof to be published and, if appropriate posted, as provided by law. Any summary shall be published and a certified copy of the full text of this Ordinance posted in the Office of the City Clerk at least five (5) days prior to the City Council meeting at which this Ordinance is to be adopted. Within fifteen (15) days after the adoption of this Ordinance, the City Clerk shall cause a summary to be published with the names of those City Council members voting for and against this Ordinance and shall post in the Office of the City Clerk a certified copy of the full text of this Ordinance along with the names of those City Council members voting for and against the Ordinance. SECTION 7. All ordinances and parts of ordinances in conflict herewith are repealed insofar as such conflict may exist. SECTION 8. No Mandatory Duty of Care. This ordinance is not intended to and shall not be construed or given effect in a manner which imposes upon the City, or any officer or employee thereof, a mandatory duty of care towards persons or property within the City or outside of the City so as to provide a basis of civil liability for damages, except as otherwise imposed by law. SECTION 9. Severability. If any provision of this ordinance or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions or applications of the ordinance which can be given effect without the invalid provision or application. To this end, the provisions of this ordinance are severable. The City Council hereby declares that it would have adopted this ordinance irrespective of the invalidity of any particular portion thereof. SECTION 10. The City Council intends this Ordinance to supplement, not to duplicate or contradict, applicable state and federal laws and this Ordinance shall be construed in light of that intent. SECTION 11. This ordinance shall be published one time in the "Lodi News -Sentinel," a daily newspaper of general circulation printed and published in the City of Lodi, and shall take effect thirty days from and after its passage and approval. Approved this _ day of , 2009 LARRY D. HANSEN Mayor Attest: RANDI JOHL City Clerk ------------------------------------------------------------------- ------------------------------------------------------------------- State of California County of San Joaquin, ss. I, Randi Johl, City Clerk of the City of Lodi, do hereby certify that Ordinance No. was introduced at a regular meeting of the City Council of the City of Lodi held November 4, 2009, and was thereafter passed, adopted and ordered to print at a regular meeting of said Council held , 2009, by the following vote: AYES: COUNCIL MEMBERS — NOES; COUNCIL MEMBERS — X ABSENT: COUNCIL MEMBERS — ABSTAIN: COUNCIL MEMBERS — I further certify that Ordinance No. was approved and signed by the Mayor on the date of its passage and the same has been published pursuant to law. Approved as to Form: D. STEPHEN SCHWABAUER City Attorney RANDIJOHL City Clerk 10 -17— Ch. 700 5870. (a) The holder of a state franchise shall designate a sufficient amount of capacity on its network to allow the provision of the same number of public, educational, and governmental access (PEG) channels, as are activated and provided by the incumbent cable operator that has simultaneously activated and provided the greatest number of PEG channels within the local entity under the terms of any franchise in effect in the local entity as of January 1, 2007. For the purposes of this section, a PEG channel is deemed activated if it is being utilized for PEG programming within the municipality for at least eight hours per day. The holder shall have three months from the date the local entity requests the PEG channels to designate the capacity. However, the three-month period shall be tolled by any period during which the designation or provision of PEG channel capacity is technically infeasible, including any failure or delay of the incumbent cable operator to make adequate interconnection available, as required by this section. (b) The PEG channels shall be for the exclusive use of the local entity or its designee to provide public, educational, and governmental channels. The PEG channels shall be used only for noncommercial purposes. However, advertising, underwriting, or sponsorship recognition may be carried on the channels for the purpose of funding PEG -related activities. The PEG channels shall all be carried on the basic service tier. To the extent feasible, the PEG channels shall not be separated numerically from other channels carried on the basic service tier and the channel numbers for the PEG channels shall be the same channel numbers used by the incumbent cable operator unless prohibited by federal law. After the initial designation of PEG channel numbers, the channel numbers shall not be changed without the agreement of the local entity unless the change is required by federal law. Each channel shall be capable of carrying a National Television System Committee (NTSC) television signal. (c) (1) If less than three PEG channels are activated and provided within the local entity as of January 1, 2007, a local entity whose jurisdiction lies within the authorized service area of the holder of a state franchisemay initiallyrequest the holder to designatenot more than a total of three PEG channels. (2) The holder shall have three months from the date of the request to designate the capacity. However, the three-month period shall be tolled by any period during which the designation or provision of PEG channel capacity is technically infeasible, including any failure or delay of the 89 Ch. 700 —18— incumbent 18— incumbent cable operator to make adequate interconnection available, as required by this section. (d) (1) The holder shall provide an additional PEG channel when the nonduplicated locally produced video programming televised on a given channel exceeds 56 hours per week as measured on a quarterly basis. The additional channel shall not be used for any purpose other than to continue programming additional government, education, or public access television. (2) For the purposes of this section, "locally produced video programming" means programming produced or provided by any local resident, the local entity, or any local public or private agency that provides services to residents of the fianchise area; or any transmission of a meeting or proceeding of any local, state, or federal governmental entity. (e) Any PEG channel provided pursuant to this section that is not utilized by the local entity for at least eight hours per day as measured on a quarterly basis may no longer be made available to the local entity, and may be programmed at the holder's discretion. At the time that the local entity can certify to the holder a schedule for at least eight hours of daily programming, the holder of the state franchise shall restore the channel or channels for the use of the local entity. (f) The content to be provided over the PEG channel capacity provided pursuant to this section shall be the responsibility of the local entity or its designee receiving the benefit of that capacity, and the holder of a state franchise bears only the responsibility for the transmission of that content, subject to technological restraints. (g) (1) The local entity shall ensure that all transmissions, content, or programming to be transmitted by a holder of a state fianchise are provided or submitted in a manner or form that is compatible with the holder's network, if the local entity produces or maintains the PEG programming in that manner or form. If the local entity does not produce or maintain PEG programming in that manner or form, then the local entity may submit or provide PEG programming in a manner or form that is standard in the industry. The holder shall be responsible for any changes in the form of the transmission necessary to make it compatible with the technology or protocol utilized by the holder to deliver services. If the holder is required to change the form of the transmission, the local entity shall permit the holder to do so in a manner that is most economical to the holder. (2) The provision of those transmissions, content, or programming to the holder of a state franchise shall constitute authorization for the holder to carry those transmissions, content, or programming. The holder may carry the transmission, content, or programming outside of the local entity's jurisdiction if the holder agrees to pay the local entity or its designee any incremental licensing costs incurred by the local entity or its designee associated with that transmission. Local entities shall be prohibited fiom entering into licensing agreements that impose higher 89 -19— Ch. 700 proportional costs for transmission to subscribers outside the local entity's jurisdiction. (3) The PEG signal shall be receivable by all subscribers, whether they receive digital or analog service, or a combination thereof, without the need for any equipment other than the equipment necessary to receive the lowest cost tier of service. The PEG access capacity provided shall be of similar quality and functionality to that offeredby commercial channels on the lowest cost tier of service unless the signal is provided to the holder at a lower quality or with less functionality. (h) Where technically feasible, the holder of a state fianchise and an incumbent cable operator shall negotiate in good faith to interconnecttheir networks for the purpose of providing PEG programming. Interconnection may be accomplished by direct cable, microwave link, satellite, or other reasonable method of connection. Holders of a state franchise and incumbent cable operators shall provide interconnection of the PEG channels on reasonable terms and conditions and may not withhold the interconnection. If a holder of a state fianchise and an incumbent cable operator cannot reach a mutually acceptable interconnection agreement, the local entity may require the incumbent cable operator to allow the holder to interconnect its network with the incumbent's network at a technically feasible point on the holder's network as identified by the holder. If no technically feasible point for interconnection is available, the holder of a state fianchise shall make an interconnection available to the channel originator and shall provide the facilities necessary for the interconnection. The cost of any interconnection shall be borne by the holder requesting the interconnection unless otherwise agreed to by the parties. (i) A holder of a state franchise shall not be required to interconnect for, or otherwise to transmit, PEG content that is branded with the logo, name, or other identifying marks of another cable operator or video service provider. For purposes of this section, PEG content is not branded if it includes only production credits or other similar information displayed at the conclusion of a program. The local entity may require a cable operator or video service provider to remove its logo, name, or other identifying marks from PEG content that is to be made available through interconnectionto another provider of PEG capacity. 0) In addition to any provision for the PEG channels required under subdivisions (a) to (i), inclusive, the holder shall reserve, designate, and, upon request, activate a channel for carriage of state public affairs programming administeredby the state. (k) All obligations to provide and support PEG channel facilities and institutional networks and to provide cable services to community buildings contained in a locally issued fianchise existing on December 31, 2006, shall continue until the local franchise expires, until the term of the franchise would have expired if it had not been terminated pursuant to subdivision (o) of Section 5840, or until January 1, 2009, whichever is later. 89 Ch. 700 —20— (1) 20— (1) After January 1, 2007, and until the expiration of the incumbent cable operator's franchise, if the incumbent cable operator has existing unsatisfied obligations under the franchise to remit to the local entity any cash payments for the ongoing costs of public, educational, and government access channel facilities or institutional networks, the local entity shall divide those cash payments among all cable or video providers as provided in this section. The fee shall be the holder's pro rata per subscriber share of the cash payment required to be paid by the incumbent cable operator to the local entity for the costs of PEG channel facilities. All video service providers and the incumbent cable operator shall be subj ect to the same requirements for recurring payments for the support of PEG channel facilities and institutional networks, whether expressed as a percentage of gross revenue or as an amount per subscriber,per month, or otherwise. (m) In determining the fee on a pro rata per subscriber basis, all cable and video service providers shall report, for the period in question, to the local entity the total number of subscribers served within the local entity's jurisdiction, which shall be treated as confidential by the local entity and shall be used only to derive the per subscriber fee requiredby this section. The local entity shall then determine the payment due from each provider based on a per subscriber basis for the period by multiplying the unsatisfied cash payments for the ongoing capital costs of PEG channel facilities by a ratio of the reported subscribers of each provider to the total subscribers within the local entity as of the end of the period. The local entity shall notify the respective providers, in writing, of the resulting pro rata amount. After the notice, any fees required by this section shall be remitted to the applicable local entity quarterly, within 45 days after the end of the quarter for the preceding calendar quarter, and may only be used by the local entity as authorizedunder federal law. (n) A local entity may, by ordinance, establish a fee to support PEG channel facilities consistent with federal law that would become effective subsequent to the expiration of any fee imposed pursuant to paragraph (2) of subdivision (0. If no such fee exists, the local entity may establish the fee at any time. The fee shall not exceed 1 percent of the holder's gross revenues, as defined in Section 5860. Notwithstanding this limitation, if, on December 31,2006, a local entity is imposing a separate fee to support PEG channel facilities that is in excess of 1 percent, that entity may, by ordinance, establish a fee no greater than that separate fee, and in no event greater than 3 percent, to support PEG activities. The ordinance shall expire, and may be reauthorized,upon the expiration of the state franchise. (o) The holder of a state franchise may recover the amount of any fee remitted to a local entity under this section by billing a recovery fee as a separate line item on the regular bill of each subscriber. (p) A court of competent jurisdiction shall have exclusive jurisdiction to enforce any requirement under this section or resolve any dispute regarding the requirements set forth in this section, and no provider may 89 by barred from the provision of service or be required to terminate service as a result of that dispute or enforcement action. 89 California Public Utilities Code Section 5900 5900. (a) The holder of a state franchise shall comply with the provisions of Sections 53055, 53055.1, 53055.2, and 53088.2 of the Government Code, and any other customer service standards pertaining to the provision of video service established by federal law or regulation or adopted by subsequent enactment of the Legislature. All customer service and consumer protection standards under this section shall be interpreted and applied to accommodate newer or different technologies while meeting or exceeding the goals of the standards. (b) The holder of a state franchise shall comply with provisions of Section 637.5 of the Penal Code and the privacy standards contained in Section 631 of the federal Cable Act (47 U.S.C. Sec. 551 et. seq.). (c) The local entity shall enforce all of the customer service and protection standards of this section with respect to complaints received from residents within the local entity's jurisdiction, but it may not adopt or seek to enforce any additional or different customer service or other performance standards under Section 53055.3 or subdivision (q), (r), or (s) of Section 53088.2 of the Government Code, or any other authority or provision of law. (d) The local entity shall, by ordinance or resolution, provide a schedule of penalties for any material breach by a holder of a state franchise of this section. No monetary penalties shall be assessed for a material breach if it is out of the reasonable control of the holder. Further, no monetary penalties may be imposed priorto January 1, 2007. Any schedule of monetary penalties adopted pursuant to this section shall in no event exceed five hundred dollars ($500) for each day of each material breach, not to exceed one thousand five hundred dollars ($1,500) for each occurrence of a material breach. However, if a material breach of this section has occurred, and the local entity has provided notice and a fine or penalty has been assessed, and if a subsequent material breach of the same nature occurs within 12 months, the penalties may be increased by the local entity 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. If a third or further material breach of the same nature occurs within those same 12 months, and the local entity has provided notice and a fine or penalty has been assessed, the penalties may be increased to a maximum of two thousand five hundred dollars ($2,500) for each day of each material breach, not to exceed seven thousand five hundred dollars ($7,500) 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. (e) The local entity shall give the video provider written notice of any alleged material breaches of the consumer service standards of this division and allow the video provider at least 30 days from receipt of the notice to remedy the specified material breach. (9A material breach for the purposes of assessing penalties shall be deemed to have occurred for each day within the jurisdiction of each local entity, following the expiration of the period specified in subdivision (e), that any material breach has not been remedied by the video provider, irrespective of the number of customers affected. (g) Any penalty shall be provided to the local entity who shall submit one-half of the penalty to the Digital Divide Account established in Section 280.5. (h) Any interested person may seek judicial review of a decision of the local entity in a court of appropriatejurisdiction. For this purpose, a court of law shall conduct a de novo review of any issues presented. (i) 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 local legislative body, including a local franchising authority, pursuantto this section shall not be binding upon a court of law. Forthis purpose, a court of law shall conduct de novo reviewof any issues presented. Q) For purposes of this section, "material breach" means any substantial and repeated failure of a video service providerto comply with service quality and other standards specified in subdivision (a). (k) The Division of Ratepayer Advocates shall have authority to advocate on behalf of video customers regarding renewal of a state -issued franchise and enforcement of Sections 5890, 5900, and 5950. For this purpose, the division shall have access to any information in the possession of the commission subject to all restrictions on disclosure of that information that are applicable to the commission. California Government Code Sections 53055 Each cable television operator or video provider in the state shall establish customer service standards. These customer service standards shall include, but not be limited to, standards regarding the following: (a) Installation, disconnection, service and repair obligations, employee identification and service call response time and scheduling. (b) Customer telephone and office hours; proceduresfor billing, charges, refunds, and credits. (c) Procedures for termination of service. (d) Notice of the deletion of a programming service, the changing of channel assignments, or an increase in rates. (e) Complaint procedures and procedures for bill dispute resolution. 53055.1. (a) Each cable television operator or video provider shall annually distribute to employees, to each customer, and to the city, county, or city and county in which the cable television operator or video provider furnishes service to customers, a notice describing these customer service standards. New customers shall also be provided with this noticewhen service is initiated. (b) The notice given to new customers pursuantto this section shall include, in addition to all of the information described in subdivisions (a) to (e), inclusive, of Section 53055, all of the following: (1) A listing of the services offered by the cable television operator or video providerwhich clearly describes all levels of service, and including the rates for each level of service, provided that, if the information concerning levels of service and rates is otherwise distributed to new customers upon installation by the cable television operator or video provider, the information need not be included in the noticeto new customers required by this section. (2) The telephone number or numbers through which customers may subscribe to, change, or terminate service, request customer service, or seek general or billing information. (3) A description of the rights and remedies which the cable television operator or video provider may make available to its customers if the cable television operator or video provider does not materially meet its customer service standards. 53055.2. After the customer service standards established pursuant to Section 53055 have been in effect for one year, each cable television operator and video provider shall report annually on the performance of that cable television operator or video providerwith regard to meeting its customer service standards. This report shall be included in the annual notice required by Section 53055.1. 53055.3. No provision of this article shall be construed to preempt the prerogative of a city, county, or city and county to enforce customer protection standards that are contained in a franchise or license granted to a cable television operator or video provider pursuant to Section 53066.1 or that are otherwise authorized by law for other cable television operators or video providers. 53088.2. (a) Every video provider shall render reasonably efficient service, make repairs promptly, and interrupt service only as necessary. () All video provider personnel contacting subscribers or potential subscribers outside the office of the provider shall be clearly identified as associated with the video provider. (c) At the time of installation, and annually thereafter, all video providers shall provideto all customers a written notice of the programming offered, the prices for that programming,the provider's installation and customer 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 to respond to customer telephone inquiries Monday to Friday, inclusive, excluding holidays, during normal business hours. e) All video providers shall provide to customers a toll-free or local telephone numberfor 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. (9AII video providers shall render bills that are accurate and understandable. (g) All video providers shall respond to a complete outage in a customer's service promptly. The response shall occur within 24 hours of the reporting of the 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 resolvethe 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 distributionto customers. The 30 -day notice is waived if the increases in rates or deletion of channels were outside the control 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 15 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 establishing tenancy. Customer payments shall be posted promptly. No video provider may terminate residential service for nonpaymentof a delinquent account unless the video provider furnishes notice of the delinquency and impending termination at least 15 days priorto the proposed termination. 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 termination 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. Q) 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) The amount of the delinquency. (3) The date bywhich payment is required in order to avoid termination of service. (4) The telephone number of a representative of the video providerwho 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 subscriber actions. (I) A video provider shall cease charging a customer for services within seven business days of receiving a requestto terminate service. If the customer requests that service be terminated and provides seven or more business day's notice before the date for termination of service, the video provider shall cease charging the customer for additional services as of midnight of the last day of service. Nothing in this subdivision shall prohibita video providerfrom billing for charges incurred by the customer prior to the date for termination of service. (m) 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. (n) All video providers shall issue security or customer deposit refund checks promptly, but no later than 45 days following the termination of service, less any deductions permitted by law. (o) Video providers shall not disclose the name and address of a subscriberfor commercial gain to be used in mailing lists or for other commercial purposes not reasonably related to the conduct of the businesses of the video providers or their affiliates, unless the video providers have provided to the subscriber a notice, separate or included in any other customer notice, that clearly and conspicuously describes the subscriber's ability to prohibit the disclosure. Video providers shall provide an address and telephone numberfor a local subscriber to use without toll charge to prevent disclosure of the subscriber's name and address. (p) 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 registerwith the city in which they provide service or, where the customers reside in an unincorporated area, in the county in which they provide service. The registration shall includethe name of the company, its address, its 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. (q) 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 that exceed those established in this division. (r) 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 (p), inclusive. No monetary penalties shall be assessed for a material breach if the breach is out of the reasonable control of the video provider. Further, no monetary penalties may be imposed priorto the effective date of this section. Any 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 occurrence of material breach. However, if a material breach of any of subdivisions (a) to (p), 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 penalties 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 one thousand two hundred dollars ($1,200) for each occurrence of the material breach. If a third or further material breach of the same nature occurs 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 respectto video providers subject to a franchise or license, any monetary penalties assessed under this section shall be reduced dollarfor 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 noway 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 (47 U.S.C. Sec. 521 et seq.). (s) If the legislative body of a city, county, or city and county adopts a schedule of monetary penalties pursuantto subdivision (q), the following procedures shall be followed: (1) The city, county, or city and county shall give the video providerwritten notice of any alleged material breaches of the consumer service 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. (t) Notwithstanding subdivision (o), 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 local legislative body, including a franchising authority, pursuantto 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. California Penal Code 637.5. (a) No person who owns, controls, operates, or manages a satellite or cable television corporation, or who leases channels on a satellite or cable system shall: 4C Ilse any electronic device to record, transmit, or observe any events or listen to, record, or monitor any conversations that take place inside a subscriber's residence, workplace, or place of business, without obtaining the express written consent of the subscriber. A satellite or cable television corporation may conduct electronic sweeps of subscriber households to monitorfor signal quality. (2) Provide any personwith any individually identifiable information regarding any of its subscribers, including, but not limited to, the subscriber's television viewing habits, shopping choices, interests, opinions, energy uses, medical information, banking data or information, or any other personal or private information, without the subscriber's express written consent. (b) Individual subscriber viewing responses or other individually identifiable information derived from subscribers may be retained and used by a satellite or cable television corporation only to the extent reasonably necessary for billing purposes and internal business practices, and to monitorfor unauthorized reception of services. A satellite or cable television corporation may compile, maintain, and distribute a list containing the names and addresses of its subscribers if the list contains no other individually identifiable information and if subscribers are afforded the right to elect not to be included on the list. However, a satellite or cable television corporation shall maintain adequate safeguards to ensure the physical security and confidentiality of the subscriber information. (c) A satellite or cable television corporation shall not make individual subscriber information available to government agencies in the absence of legal compulsion, including, but not limited to, a court order or subpoena. If requests for information are made, a satellite or cable television corporation shall promptly notify the subscriber of the nature of the request and what government agency has requestedthe information priorto responding unless otherwise prohibited from doing so by law. Nothing in this section shall be construedto prevent local franchising authorities from obtaining information necessary to monitor franchise compliance pursuant to franchise or license agreements. This information shall be provided so as to omit individually identifiable subscriber information whenever possible. Information obtained by local franchising authorities shall be used solely for monitoring franchise compliance and shall not be subject to the California Public RecordsAct (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code). (d) Any individually identifiable subscriber information gathered by a satellite or cable television corporation shall be made available for subscriber examination within 30 days of receiving a request by a subscriberto examine the information on the premises of the corporation. Upon a reasonable showing by the subscriber that the information is inaccurate, a satellite or cable television corporation shall correct the information. (e) Upon a subscriber's application for satellite or cable television service, including, but not limited to, interactive service, a satellite or cable television corporation shall provide the applicant with a separate notice in an appropriateform explaining the subscriber's right to privacy protection afforded by this section. (9As used in this section: (1) "Cable television corporation" shall have the same meaning as that term is given by Section 216.4 of the Public Utilities Code. (2) "Individually identifiable information" means any information identifying an individual or his or her use of any service provided by a satellite or cable system other than the mere fact that the individual t a satellite or cable television subscriber. 'Individually identifiable information" shall not include anonymous, aggregate, or any other information that does not identify an individual subscriber of a video provider service. (3) "Person" includes an individual, business association, partnership, corporation, limited liability company, or other legal entity, and an individual acting or purporting to act for or on behalf of any government, or subdivision thereof, whether federal, state, or local. (4) "Interactive service" means any service offered by a satellite or cable television corporation involving the collection, reception, aggregation, storage, or use of electronic information transmitted from a subscriber to any other receiving point under the control of the satellite or cable television corporation, or vice versa. (g) Nothing in this section shall be construed to limit the ability of a satellite or cable television corporation to market satellite or cable television or ancillary services to its subscribers. (h) Any person receiving subscriber information from a satellite or cable television corporation shall be subject to the provisions of this section. (i) Any aggrieved person may commence a civil action for damages for invasion of privacy against any satellite or cable television corporation, service provider, or person that leases a channel or channels on a satellite or cable television system that violates the provisions of this section. Q) Any person who violates the provisions of this section is guilty of a misdemeanor punishable by a fine not exceeding three thousand dollars ($3,000), or by imprisonment in the county jail not exceeding one year, or by both that fine and imprisonment. (k) The penalties and remedies provided by subdivisions (i) and Q) are cumulative, and shall not be construed as restricting any penalty or remedy, provisional or otherwise, provided by law for the benefit of any person, and nojudgment under this section shall preclude any person from obtaining additional relief based upon the same facts. (I) The provisions of this section are intended to set forth minimum state standards for protecting the privacy of subscribers to cable television services and are not intended to preempt more restrictive local standards. Code of Federal Regulations (CFR) 47 CFR §76.309 Customer service obligations (a) A cable franchise authority may enforce the customer service standards set forth in section (c) of this rule against cable operators. The franchise authority must provide affected cable operators ninety (90) days written notice of its intentto enforce the standards. (b) Nothing in this rule should be construed to prevent or prohibit: (1) A franchising authority and a cable operator from agreeing to customer service requirements that exceed the standards set forth in section (c) of this rule; (2) A franchising authority from enforcing, through the end of the franchise term, pre-existing customer service requirements that exceed the standards set forth in section (c) of this rule and are contained in current franchise agreements; (3) Any State or any franchising authority from enacting or enforcing any consumer protection law, to the extent not specifically preempted herein; or (4) The establishment or enforcement of any State or municipal law or regulation concerning customer service that imposes customer service requirements that exceed, or address matters not addressed by, the standards set forth in section (c) of this rule. (c) Effective July 1, 1993, a cable operator shall be subject to the following customer service standards: (1) Cable system office hours and telephone availability. (i) The cable operatorwill maintain a local, toll-free or collect call telephone access line which will be available to its subscribers 24 hours a day, seven days a week. (A) Trained company representatives will be available to respond to customer telephone inquiries during normal business hours. (B) After normal business hours, the access line may be answered by a service or an automated response system, including an answering machine. Inquiries received after normal business hours must be responded to by a trained company representative on the next business day. (ii) Under normal operating conditions, telephone answer time by a customer representative, including wait time, shall not exceed thirty (30) seconds when the connection is made. If the call needs to be transferred, transfer time shall not exceed thirty (30) seconds. These standards shall be met no less than ninety (90) percent of the time under normal operating conditions, measured on a quarterly basis. (iii) The operator will not be required to acquire equipment or perform surveys to measure compliance with the telephone answering standards above unless an historical record of complaints indicates a clear failure to comply. (iv) Under normal operating conditions, the customerwill receive a busy signal less than three (3) percent of the time. (v) Customer service center and bill payment locationswill be open at least during normal business hours and will be conveniently located. (2) Installations, outages and service calls. Under normal operating conditions, each of the following four standards will be met no less than ninety five (95) percent of the time measured on a quarterly basis: (i) Standard instal lationswi I I be performed within seven (7) business days after an order has been placed. "Standard" installations are those that are located up to 125 feet from the existing distribution system. (ii) Excluding conditions beyond the control of the operator, the cable operatorwill begin working on "service interruptions" promptly and in no event later than 24 hours after the interruption becomes known. The cable operator must begin actions to correct other service problems the next business day after notification of the service problem. (iii) The "appointment window" alternatives for installations, service calls, and other installation activities will be either a specific time or, at maximum, a four-hour time block during normal business hours. (The operator may schedule service calls and other installation activities outside of normal business hours for the express convenience of the customer.) (iv) An operator may not cancel an appointmentwith a customer after the close of business on the business day prior to the scheduled appointment. (v) If a cable operator representative is running late for an appointmentwith a customer and will not be able to keep the appointment as scheduled, the customerwill be contacted. The appointmentwill be rescheduled, as necessary, at a time which is convenientfor the customer. (3) Communications between cable operators and cable subscribers. (i) Refunds. Refund checks will be issued promptly, but no later than either - (A) The customer's next billing cycle following resolution of the request or thirty (30) days, whichever is earlier, or (B) The return of the equipment supplied by the cable operator if service is terminated. (ii) Credits. Credits for service will be issued no later than the customer's next billing cycle following the determination that a credit is warranted. (4) Definitions. (i) Normal Business Hours. The term "normal business hours" means those hours during which most similar businesses in the communityare open to serve customers. In all cases, "normal business hours" must include some evening hours at least one night perweek and/or some weekend hours. (ii) Normal Operating Conditions. The term "normal operating conditions" means those service conditions which are within the control of the cable operator. Those conditions which are notwithin the control of the cable operator include, but are not limited to, natural disasters, civil disturbances, power outages, telephone network outages, and severe or unusual weather conditions. Those conditions which are ordinarilywithin the control of the cable operator include, but are not limited to, special promotions, pay-per-view events rate increases, regular peak or seasonal demand periods, and maintenance or upgrade of the cable system. (iii) Service Interruption. The term "service interruption" means the loss of picture or sound on one or more cable channels. Note to §76.309: Section 76.1602 contains notification requirements for cable operators with regard to operator obligations to subscribers and general information to be provided to customers regarding service. Section 76.1603 contains subscriber notification requirements governing rate and service changes. Section 76.1619 contains notification requirements for cable operators with regard to subscriber bill information and operator response procedures pertaining to bill disputes. 47 CFR 976.1602 Customer service -- general information. (a) A cable franchise authority may enforce the customer service standards set forth in paragraph (b) of this section against cable operators. The franchise authority must provide affected cable operators 90 days written notice of its intent to enforce standards. (b) EffectiveJuly 1, 1993, the cable operator shall provide written information on each of the following areas at the time of installation of service, at least annually to all subscribers, and at any time upon request: (1) Products and services offered; (2) Prices and options for programming services and conditions of subscription to programming and other services; (3) Installation and service maintenance policies; (4) Instructions on how to use the cable service; (5) Channel positions of programming carried on the system; and (6) Billing and complaint procedures, including the address and telephone number of the local franchise authority's cable office. (c) Subscribers shall be advised of the proceduresfor resolution of complaints about the quality of the television signal delivered by the cable system operator, including the address of the responsible officer of the local franchising authority. 47 CFR 976.1603 Customer service -- rate and service changes. (a) A cable franchise authority may enforce the customer service standards set forth in paragraph (b) of this section against cable operators. The franchise authority must provide affected cable operators 90 days written notice of its intent to enforce standards. (b) Customerswill be notified of any changes in rates, programming services or channel positions as soon as possible in writing. Notice must be given to subscribers a minimum of thirty (30) days in advance of such changes if the change is within the control of the cable operator. In addition, the cable operator shall notify subscribers 30 days in advance of any significant changes in the other information required by §76.1602. (c) In addition to the requirementof paragraph (b) of this section regarding advance notificationto customers of any changes in rates, programming services or channel positions, cable systems shall give 30 days written notice to both subscribers and local franchising authorities before implementingany rate or service change. Such notice shall state the precise amount of any rate change and briefly explain in readily u nderstandablefash ion the cause of the rate change (e.g., inflation, change in external costs or the addition/deletion of channels). When the change involves the addition or deletion of channels, each channel added or deleted must be separately identified. For purposes of the carriage of digital broadcast signals, the operator need only identify for subscribers, the television signal added and notwhether that signal may be multiplexed during certain dayparts. (d) A cable operator shall providewritten notice to a subscriber of any increase in the price to be charged for the basic service tier or associated equipment at least 30 days before any proposed increase is effective. The notice should include the name and address of the local franchising authority. (e) To the extent the operator is required to provide notice of service and rate changes to subscribers, the operator may provide such notice using any reasonable written means at its sole discretion. (f) Notwithstandingany other provision of part 76 of this chapter, a cable operator shall not be required to provide prior notice of any rate change that is the result of a regulatoryfee, franchise fee, or any other fee, tax, assessment, or charge of any kind imposed by any Federal agency, State, or franchising authority on the transaction between the operator and the subscriber. Note 1 to 976.1603: Section 624(h) of the Communications Act, 47 U.S.C. 544(h), contains additional notification requirements which a franchising authority may enforce. Note 2 to §76.1603: Section 624(d)(3) of the CommunicationsAct, 47 U.S.C. 544(d)(3), contains additional notification provisions pertaining to cable operators who offer a premium channel without charge to cable subscribers who do not subscribe to such premium channel. Note 3 to 976.1603: Section 631 of the CommunicationsAct, 47 U.S.C. 551, contains additional notification requirements pertaining to the protection of subscriber privacy. 47 CFR 76.1619 Information on subscriber bills. (a) Effective July 1, 1993, bills must be clear, concise and understandable. Bills must be fully itemized, with itemizations including, but not limited to, basic and premium service charges and equipment charges. Bills will also clearly delineate all activity during the billing period, including optional charges, rebates and credits. (b) In case of a billing dispute, the cable operator must respond to a written complaint from a subscriberwithin 30 days. (c) A cable franchise authority may enforce the customer service standards set forth in this section against cable operators. The franchise authority must provide affected cable operators 90 days written notice of its intent to enforce standards. United States Code ("USC") 47 USC §544(d) Cable service unprotected by Constitution 4C1Wthing in this subchapter shall be construed as prohibiting a franchising authority and a cable operatorfrom specifying, in a franchise or renewal thereof, that certain cable services shall not be provided or shall be provided subject to conditions, if such cable services are obscene or are otherwise unprotected by the Constitution of the United States. (2)(A) In order to restrict the viewing of programming which is obscene or indecent, upon the request of a subscriber, a cable operator shall provide (by sale or lease) a device by which the subscribercan prohibit viewing of a particular cable service during periods selected by that subscriber. (B) Subparagraph (A) shall take effect 180 days after the effective date of this subchapter. (3)(A) If a cable operator provides a premium channel without charge to cable subscribers who do not subscribe to such premium channel, the cable operator shall, not later than 30 days before such premium channel is provided without charge -- (i) notify all cable subscribers that the cable operator plans to provide a premium channel without charge; (ii) notify all cable subscribers when the cable operator plans to offer a premium channel without charge; (iii) notify all cable subscribers that they have a right to requestthat the channel carrying the premium channel be blocked; and (iv) block the channel carrying the premium channel upon the request of a subscriber. (B) Forthe purpose of this section, the term "premium channel" shall mean any pay service offered on a per channel or per program basis, which offers movies rated by the Motion Picture Association of America as X, NC -17, or R. 47 USC §544(h) Programming changes A franchising authority may require a cable operator to do any one or more of the following: (1) Provide 30 days' advance written notice of any change in channel assignment or in the video programming service provided over any such channel. (2) Inform subscribers, via written notice, that comments on programming and channel position changes are being recorded by a designated office of the franchising authority. 47 USC §551 Protection of subscriber privacy (a) Notice to subscriber regarding personally identifiable information; definitions 4( U9 the time of entering into an agreementto provide any cable service or other service to a subscriber and at least once a year thereafter, a cable operator shall provide notice in the form of a separate, written statementto such subscriber which clearly and conspicuously informs the subscriberof— (A) the nature of personally identifiable information collected or to be collected with respect to the subscriber and the nature of the use of such information; (B)the nature, frequency, and purpose of any disclosure which may be made of such information, including an identification of the types of persons to whom the disclosure may be made; (C) the period during which such information will be maintained by the cable operator; (D) the times and place at which the subscriber may have access to such information in accordancewith subsection (d) of this section; and (E) the limitations provided by this section with respect to the collection and disclosure of information by a cable operator and the right of the subscriber under subsections (9 and (h) of this section to enforce such limitations. In the case of subscribers who have entered into such an agreement before the effective date of this section, such notice shall be provided within 180 days of such date and at least once a year thereafter. (2) For purposes of this section, other than subsection (h) of this section— (A) the term "personally identifiable information" does not include any record of aggregate data which does not identify particular persons; (B)the term 'other service" includes any wire or radio communications service provided using any of the facilities of a cable operator that are used in the provision of cable service; and (C) the term "cable operator" includes, in addition to persons within the definition of cable operator in section 522 of this title, any person who (i) is owned or controlled by, or under common ownership or control with, a cable operator, and (ii) provides any wire or radio communications service. (b) Collection of personally identifiable information using cable system (1) Except as provided in paragraph (2), a cable operator shall not use the cable system to collect personally identifiable information concerning any subscriber without the priorwritten or electronic consent of the subscriber concerned. (2) A cable operator may use the cable system to collect such information in order to— (A) obtain information necessaryto render cable service or other service provided by the cable operatorto the subscriber; or (B) detect unauthorized reception of cable communications. (c) Disclosure of personally identifiable information (1) Except as provided in paragraph (2), a cable operator shall not disclose personally identifiable information concerning any subscriber without the priorwritten or electronic consent of the subscriber concerned and shall take such actions as are necessary to prevent unauthorized access to such information by a person other than the subscriber or cable operator. (2) A cable operator may disclose such information if the disclosure is— (A) necessaryto render, or conduct a legitimate business activity related to, a cable service or other service provided by the cable operator to the subscriber; (B) subject to subsection (h) of this section, made pursuant to a court order authorizing such disclosure, if the subscriber is notified of such order by the person to whom the order is directed; (C) a disclosure of the names and addresses of subscribers to any cable service or other service, if— (i)the cable operator has providedthe subscriberthe opportunityto prohibitor limit such disclosure, and (ii) the disclosure does not reveal, directly or indirectly, the— (I) extent of any viewing or other use by the subscriber of a cable service or other service provided by the cable operator, or (II) the nature of any transaction made by the subscriber over the cable system of the cable operator; or (D) to a government entity as authorized under chapters 119, 121, or 206 of title 18,except that such disclosure shall not include records revealing cable subscriber selection of video programmingfrom a cable operator. (d) Subscriber access to information A cable subscriber shall be provided access to all personally identifiable information regarding that subscriberwhich is collected and maintained by a cable operator. Such information shall be made available to the subscriber at reasonabletimes and at a convenient place designated by such cable operator. A cable subscriber shall be provided reasonable opportunity to correct any error in such information. (e) Destruction of information A cable operator shall destroy personally identifiable information if the information is no longer necessaryfor the purpose for which it was collected and there are no pending requests or orders for access to such information under subsection (d) of this section or pursuantto a court order. (9 Civil action in United States district court; damages; attorney's fees and costs; nonexclusive nature of remedy (1) Any person aggrieved by any act of a cable operator in violation of this section may bring a civil action in a United States district court. (2) The court may award— (A) actual damages but not less than liquidated damages computed at the rate of $100 a day for each day of violation or $1,000, whichever is higher; (B)punitive damages; and (C) reasonable attorneys' fees and other litigation costs reasonably incurred. (3) The remedy provided by this section shall be in addition to any other lawful remedy available to a cable subscriber. (g) Regulation by States or franchising authorities Nothing in this subchapter shall be construed to prohibit any State or any franchising authority from enacting or enforcing laws consistent with this section for the protection of subscriber privacy. (h) Disclosure of information to governmental entity pursuantto court order Except as provided in subsection (c)(2)(D) of this section, a governmental entity may obtain personally identifiable information concerning a cable subscriber pursuant to a court order only if, in the court proceeding relevantto such court order — (1) such entity offers clear and convincing evidence that the subject of the information is reasonably suspected of engaging in criminal activity and that the information sought would be material evidence in the case; and (2) the subject of the information is afforded the opportunityto appear and contest such entity's claim. 1722. (a) (b) California Civil Code Section 1722 (1) Whenever a contract is entered into between a consumer and a retailer with 25 or more employees relating to the sale of merchandisewhich is to be delivered by the retailer or the retailer's agent to the consumer at a later date, and the parties have agreed that the presence of the consumer is required at the time of delivery, the retailer and the consumer shall agree, either at the time of the sale or at a later date priorto the delivery date, on a four-hour time period within which any delivery shall be made. Whenever a contract is entered into between a consumer and a retailerwith 25 or more employees for service or repair of merchandise, whether or not the merchandisewas sold by the retailerto the consumer, and the parties have agreed that the presence of the consumer is required at the time of service or repair, upon receipt of a request for service or repair under the contract, the retailer and the consumer shall agree, prior to the date of service or repair, on a four-hour period within which the service or repair shall be commenced. Once a delivery, service, or repair time is established, the retailer or the retailer's agent shall deliverthe merchandiseto the consumer, or commence service or repair of the merchandise, within that four-hour period. (2) If the merchandise is not delivered, or service or repair are not commenced, within the specified four-hour period, except for delays caused by unforeseen or unavoidable occurrences beyond the control of the retailer, the consumer may bring an action in small claims court against the retailerfor lostwages, expenses actually incurred, or other actual damages not exceeding a total of six hundred dollars ($600). (3) No action shall be considered valid if the consumerwas not presentat the time, within the specified period, when the retailer or the retailer's agent attempted to make the delivery, service, or repairs or made a diligent attempt to notify the consumer by telephone or in person of its inability to do so because of unforeseen or unavoidable occurrences beyond its control. If notification is by telephone, the retailer or the retailer's agent shall leave a telephone number for a return telephone call by the consumer to the retailer or its agent, to enable the consumer to arrange a new two-hour period for delivery, service, or repair with the retailer or the retailer's agent. (4) In any small claims action, logs and other business records maintained by the retailer or the retailer's agent in the ordinary course of business shall be prima facie evidence of the time period specified for the delivery, service, or repairs and of the time when the merchandisewas delivered, or of a diligent attempt by the retaileror the retailer's agent to notify the consumer of delay caused by unforeseen or unavoidable occurrences. (5) It shall be a defense to the action if a diligent attempt was made to notify the consumer of the delay caused by unforeseen or unavoidable occurrences beyond the control of the retailer or the retailer's agent, or the retailer or the retailer's agent was unable to notify the consumer of the delay because of the consumer's absence or unavailability during the four-hour period, and, in either instance, the retailer or the retailer's agent makes the delivery, service, or repairs within two hours of a newly agreed upon time or, if the consumer unreasonably declines to arrange a new time for the delivery, service, or repairs. (1) Cable television companies shall inform their subscribers cf their right to service connection or repair within a four-hour period, if the presence of the subscriber is required, by offering the four-hour period at the time the subscriber calls for service connection or repair. Whenever a subscriber contractswith a cable television company for a service connection or repair which is to take place at a later date, and the parties have agreed that the presence of (c) the subscriber is required, the cable company and the subscriber shall agree, priorto the date of service connection or repair, on the time for the commencement of the four-hour period for the service connection or repair. (2) If the service connection or repair is not commenced within the specified four-hour period, except for delays caused by unforeseen or unavoidable occurrences beyond the control of the company, the subscriber may bring an action in small claims court against the company for lostwages, expenses actually incurred or other actual damages not exceeding a total of six hundred dollars ($600). (3) No action shall be considered valid if the subscriberwas not present at the time, within the specified period, that the company attempted to make the service connection or repair or made a diligent attempt to notify the subscriber by telephone or in person of its inability to do so because of unforeseen or unavoidable occurrences beyond its control. If notification is by telephone, the cable television company or its agent shall leave a telephone number for a return telephone call by the subscriber to the company or its agent, to enable the consumer to arrange a new two-hour period for service connection or repair. (4) In any small claims action, logs and other business records maintained by the company or its agents in the ordinary course of business shall be prima facie evidence of the time period specified for the commencementof the service connection or repair and the time that the company or its agents attempted to make the service connection or repair, or of a diligent attempt by the company to notify the subscriber in person or by telephone of a delay caused by unforeseen or unavoidable occurrences. (5) It shall be a defense to the action if a diligent attempt was made to notify the subscriber of a delay caused by unforeseen or unavoidable occurrences beyond the control of the company or its agents, or the company or its agents were unable to notify the subscriber because of the subscriber's absence or unavailability during the four-hour period, and, in either instance, the cable television company commenced service or repairswithin a newly agreed upon two-hour period. (6) No action shall be considered valid against a cable television company pursuantto this section when the franchise or any local ordinance provides the subscriberwith a remedy for a delay in commencement of a service connection or repair and the subscriber has elected to pursue that remedy. If a subscriber elects to pursue his or her remedies against a cable television company under this section, the franchising or state or local licensing authority shall be barred from imposing any fine, penalty, or other sanction against the company, arising out of the same incident. (1) Utilitiesshall inform their subscribers of their right to service connection or repairwithin a four-hour period, if the presence of the subscriber is required, by offering the four-hour period at the time the subscriber calls for service connection or repair. Whenever a subscriber contracts with the utility for a service connection or repair, and the parties have agreed that the presence of the subscriber is required, and the subscriber has requested a four-hour appointment, the utility and the subscriber shall agree, prior to the date of service connection or repair, on the time for the commencementof the four-hour period for the service connection or repair. (2) If the service connection or repair is not commenced within the four-hour period provided under paragraph (1) or another period otherwise agreed to by the utility and the subscriber, except for delays caused by unforeseen or unavoidable circumstances beyond the control of the utility, the subscriber may bring an action in small claims court against the utility for lost wages, expenses actually incurred, or other actual damages not exceeding a total of six hundred dollars ($600). (3) No action shall be considered valid if the subscriber was not present at the time, within the specified period, that the utility attempted to make the service connection or repair or made a diligent attempt to notify the subscriber by telephone or in person of its inability to do so because of unforeseen or unavoidable occurrences beyond its control. If notification is by telephone, the utility or its agent shall leave a telephone numberfor a return telephone call by the subscriber to the utility or its agent, to enable the consumerto arrange a newtwo-hour period for service connection or repair. (4) In any small claims action, logs and other business records maintained by the utility or its agents in the ordinary course of business shall be prima facie evidence of the time period specified for the commencementof the service connection or repair and of the time that the utility attempted to make the service connection or repair, or of a diligent attempt by a utility to notify the subscriber in person or by telephone of a delay caused by unforeseen or unavoidable occurrences. (5) It shall be a defense to the action if a diligent attempt was made by the utility to notify the subscriber of a delay caused by unforeseen or unavoidable occurrences beyond the control of the utility, and the utility commenced service within a newly agreed upon two-hour period. (d) Any provision of a delivery, service, or repair contract in which the consumer or subscriber agrees to modify or waive any of the rights afforded by this section is void as contrary to public policy. October21,2009 D. Stephen Schwabauer, City Attorney City of Lodi P.O. Box 3006 Lodi, CA 95241 Dear Mr. Schwabaucr, Comcast Cable 3443 Dee: Park Nve Stockton. Ch 95719 V� I Please find attached Comeast's markup of the proposed Lodi DIVCA ordinance. It is our understanding that the draft ordinance will be presented to the Lodi city council on Wednesday for informational purposes and that there will be opportunity for changes before the item is formally introduced on November 4`". Comcast respectf illy requests that the changes in the attached document be included in the council record. We are available to meet with you at your convenience to discuss the draft ordinance. I will contact you later in the week to discuss how the city plans to proceed with the ordinance. but in the meantime please feel free to call me at (209) 955-3403 if you have any yucstions. Sincerely, ^�-- Philip Arndt Director of Franchising and Government Affairs Central Valley Area ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF LODI AMENDING LODI MUNICIPAL CODE TITLE 5 — PERMITS AND REGULATIONS — BY ADDING CHAPTER 5.17, "STATE VIDEO FRANCHISES" ------------------------------------------------------------------- WHEREAS, the Legislature of the State of California (the State) has adopted the Digital Infrastructure and Video Competition Act of 2006 (DIVCA); and WHEREAS, the Governor of the State cf California signed DIVCA on September 29,2006; and WHEREAS, DIVCA became effective on January 1,2007; and WHEREAS, DIVCA establishes a regulatory structure for the State to issue franchisesto video service providers; and WHEREAS, DIVCA establishes that local entities, such as the City of Lodi, are responsible for administration and implementation of certain provisions of DIVCA; and WHEREAS, DIVCA requiresthat the City establish, by ordinance, financial support provisionsfor Public, Educational and Governmental Access (PEG) channel facilities; and WHEREAS, DIVCA feq-ues permits that the City t©_adopt, by ordinance or resolution, a schedule of penaltiesfor any material breach by a State video franchise holder for violation of customer service and protection standards that the City is permitted to enforce; and WHEREAS, as of October21,2009, there are two State-franchisedcable operators providing cable service within the City; and WHEREAS, two of the cablefranchises inthe City are held by Comcast andAT&T; and WHEREAS, former City franchise -holder Comcast no longer provides noncash support to the City for PEG programming or facilities; BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF LODI AS FOLLOWS: SECTION 1. Lodi Municipal Code Title 5— Permits and Regulations— isherebyamended by adding Chapter 5.17, "State Video Franchises" to read as follows: CHAPTER 5.17 STATE CABLE TELEVISION FRANCHISES Section: 5.17.010 Purpose. 5.17.020 Definitions and Interpretation of Language. 5.17.030 State Franchise Holder Fee. 5.17.040 State Franchise Holder PEG Fees. 5.17.050 Payment of Fees. 5.17.060 Audits. 5.17.070 Late Payments. 5.17.080 Lease of City Property or Network. 5.17.090 Customer Service and Consumer Protection Standards. 5.17.100 Penalties for Violations of Standards. 5.17.110 General Requirements. 5.17.120 Permits. 5.17.130 Terms and Conditions. 5.17.140 Relocation of Franchise Property and Appurtenances. 5.17.150 Removal of Abandoned Facilities. 5.17.160 Notification to Residents Regarding Construction or Maintenance. 5.17.170 identification Required. 5.17.180 Construction Requirements and Protection of Health and Safety. 5.17.190 Reports to the Director of Public Works. 5.17.200 Emergency Alert Systems. 5.17.210 Interconnection for PEG Programming. 5.17.220 Notices. 5.17.230 Rights Reserved. 5.17.240 Compliance with Law. 5.17.010 PURPOSE. This Chapter applies to all cable service orvideo service providerswho are applying for, or have been awarded, a franchise under California Public Utilities Code Section 5800 et seq., the Digital Infrastructure and Video Competition Act of 2006, ("DIVCA), to serve any area within the City of Lodi, including ?2y -cable service or video service providers who are ethar-wise subject to DIVCA. By this Chapter, the City of Lodi intends to assume to the fullest extent possible all obligations, rights and privileges afforded to it by DIVCA and any other applicable law. Moreover, to the extentthis Ordinance is pre-empted by DIVCA nowor as amended in the future, the requirement of DIVCA shall control. 5.17.020 DEFINITIONSAND INTERPRETATION OF LANGUAGE. For purposes of this Chapter, the following terms, phrases, words, and their derivations shall have the meaning given in this section. Unless otherwise expressly stated, words not defined in this Chapter shall be given the meaning set forth in California Public Utilities Code, Section 5800 et seq. as amended from time to time. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number, words in the singular number include the plural number, and "including" and "include" are not limiting. The word "shall" is always mandatory. (a) Access, PEG access, PEG use, or PEG. "Access," "PEG access," "PEG use," or "PEG" means the availability of a cable or video system for public, educational, or governmental use by various agencies, institutions, organizations, groups, and individuals, including the City of Lodi and its City use channels or any existing agreement between the City and any incumbent cable operator, to acquire, create, and distribute programming not under a state franchise holder's editorial control. (b) City. "City" means the City of Lodi, California. (c) City Council. "City Council" means the City Council of the City of Lodi. (d) City Manager. "City Manager" meansthe City Manager of the City of Lodi or his o her designee. (e) Gross revenues. "Gross revenues" means all revenues actually received by the holder of a state franchise that are derived from the operation of the holder's networkto provide cable service orvideo service within the unincorporated areas of the county, subject to the specifications of California Public Utilities Code Section 5860. Director. "Director" means the Deputy City Manager/Internal Services Directorof 113 City of Lodi or his or her designee. (g) State Franchise Holder, Holdercf a State Franchise, Holderof the State Franchise, or Holder. "State Franchise Holder," "holder of a state franchise," "holderofthe state franchise," or "holder" means any person or group of persons who has been issued a franchise by the California Public Utilities Commission to provide cable service or video service, as those terms are defined in Public Utilities Code Section 5830, within any portion of the City of Lodi. 5.17.030 STATE FRANCHISE HOLDER FEE. Any State Franchise Holder operating within the City shall payto the City a State Franchise Holderfee equal to five percentof gross revenues, as defined in this Chapterand applicable accet=di e-rF�; 4Gable- a o+-resefut4aR actcte-,f "ery-G� re+d- Nothing in this section is intended to limit the City's ability to impose utility user taxes and other generally applicable taxes, fees and charges that are applied in a nondiscriminatory and competitively neutral manner. 5.17.040 STATE FRANCHISE HOLDER PEG FEES. Any State Franchise Holder operating within the City shall payto the City a PEGfee equal to one percent of gross revenues, as defined in this Chapter and applicable law, unless a different amount is payable in accordancewith applicable law or resolution adopted by the City Council. 5.17.050 PAYMENT OF FEES. The State Franchise Holdershall pay quarterly all fees required pursuant to this Chapter in a manner consistent with Public Utilities Code Section 5860. The State Franchise Holder shall deliverto the City by check or other means agreeable to the City Manager, a separate paymentfor the state franchisefee and the PEG fee not laterthan forty-five days after the end of each calendar quarter. Each payment made shall be accompanied by a reportto the City Manager detailing how the paymentwascalculated-a-Gff+cu aaraf 5.17.060 AUDITS. I The City may examine aL4t the business records of the holder of a State Franchise in a manner not inconsistent with California Public Utilities Code Section 5860(i). 3 5.17.070 LATE PAYMENTS. I nthe event a State Franchise Holderfails to make any payment required bythis Chapteron or before the due dates specified in this Chapter, the City shall impose a late charge at the rate peryear equal to the highest prime lending rate during the period of delinquency, plus one percent unless a different rate is set by applicable law or resolution adopted by the City Council. 5.17.080 LEASE OF CITY PROPERTY OR NETWORK. To the extent not inconsistent with California Public Utilities Code Section 5840(q)(2)(B), in the event a State Franchise Holder desires to lease access to City property beyond the access conferredoY its State Franchise or to a network owned or controlled by the City, the City may set terms and charge a fee for access to the property or City network separate and apartfrom any franchise fee or other fee charged to the State Franchise Holders pursuantto this Chapter. The City Council may set any such fee by resolution. 5.17.090 CUSTOMER SERVICE AND CONSUMER PROTECTION STANDARDS. Each State Franchise Holder shall comply with all applicable customer service and consumer protection standards, including, to the extent not inconsistent with California Public Utilities Code Section 5900, all existing and subsequently enacted customerservice and consumer protection standards established by local, state orfederal law and regulation. 5.17.100 PENALTIES FOR VIOLATIONS OF STANDARDS. (a) The City shall monitor compliance with and enforce the provisions of this Chapter and DIVCA. (b) For any material breach, as defined in California Public Utilities Code Section 59000), by a State Franchise Holder of applicable customer service and consumer protection standards, the City Manager, or the City Manager's designee, in his or her sole discretion may impose the following fines or penalties: (1) Forthe first occurrence of a material breach, a fine of five hundred dollars shall be imposedfor each daythe violation remains in effect, notto exceed one thousand five hundred dollars for each violation. (2) For a second material breach of the same nature within twelve months, a fine of one thousand dollars shall be imposed for each day the violation remains in effect, not to exceed three thousand dollars for each violation. (3) For a third or further material breach of the same nature within twelve months, a fine of two thousand five hundred dollars shall be imposed for each day the violation remains in effect, not to exceed seven thousand five hundred dollars for each violation. (c) Any penalties imposed by the City shall be imposed in a manner not inconsistent with California Public Utilities Code Section 5900. (d) To the extent not inconsistentwith California Public Utilities Code Section 5900, the City, acting through its City Manager or his or her designee, in its sole discretion may waive, modify, or defer the imposition of a penalty. 5.17.110 GENERAL REQUIREMENTS. Except as expressly provided i n this Chapter, the provisions of this Chaptershall applyto all work performed by or on behalf of a State Franchise Holder upon, above or below any street, highway, sidewalk, parkway, alley or other public right-of-way cr any kind whatsoever within the City. 5.17.120 PERMITS. (a) Priorto commencing any work, a State Franchise Holder shall apply for and obtain a permit in accordance with the applicable provisions cf this Chapter and Chapter 12.04 of this Code and shall comply with all other applicable laws and regulations, including, but not limited to, all applicable requirements of Public ResourcesCode Section 21000 et seq. (the California Environmental Quality Act). (b) The PublicWorks Directorshall either approve or deny a State Franchise Holder's application for any permit required under this Chapter in accordance with the applicable terms cf Chapter 12.04. (c) If the Public Works Director denies a State Franchise Holder's application for a permit, the Director shall, at the time cf notifying the applicant of denial, furnish to the applicant an explanation of the reason or reasons for the denial. (d) A State Franchise Holder that has been denied a permit by final decision of the Public Works Director may appeal the denial to the City Council whose decision shall be final. Upon receiving a notice of appeal, the City Council shall considerthe permit de novo. (e) A State Franchise Holderwhose permit has been revoked may appeal that decision to the City Council in writing within ten (10) days after issuance of the notice of revocation. 5.17.130 TERMS AND CONDITIONS. The work of constructing, laying, replacing, maintaining, repairing, abandoning, or removing all property and appurtenances of the State Franchise Holder in, over, under, along, or across any City right-of-way as defined in Chapter 12.04 shall be done to the satisfaction of th@IPublicWorks Directorand -except where a differentoutcome is prescribed by applicable at the expense of the State Franchise Holder, and in accordance with the terms and conditions of Chapter 12.04. 5.17.140 RELOCATION OF FRANCHISE PROPERTYAND APPURTENANCES. (a) The City reserves the right to change the grade, change the width, or alter or change the location of any City right-of-way. If any Franchise Holder's property or appurtenance is installed or maintained by the State Franchise Holder on, along, under, over, in, upon, or across any public right-ofway in a mannerwhich prevents or interfereswith any alteration or other change of grade, traffic needs, operation, maintenance, improvement, repair, construction, reconstruction, widening, or relocationof the right-of-way, oranywork or improvement upon the right-of-way,the State Franchise Holder shall relocate any such property or appurtenances to the satisfaction of the Public Works Director at no expense to the City upon receipt of a written request from the Director to do so and in accordance with the terms of Chapter 12.04. Should the State Franchise Holder neglect or fail to relocate its facilities in a timely manner after receipt of any such notice, the State Franchise Holdershall be responsiblefor and shall reimbursethe City for any and all costs or expenses incurred by City due to or arising from the failure to relocatethe facilities. (b) The City reserves the right to lay, construct, repair, alter, relocate, and maintain subsurface or other facilities or improvements of any type or description in a governmental and water, sewer and Electric Utility capacity, but not in a proprietary capacity within the right-of-way over which the franchise is granted. If the City finds that the location or relocation of such facilities or improvements conflicts with the property or appurtenances laid, constructed, or maintained by the State Franchise Holder, the City shall notify the State Franchise Holder of such conflict. To the extent and in the manner required by applicable law, the State Franchise Holder will relocate its facilities as requested by the City. 68n-stR4 ed-, ' #e ni +h Ti+„ iaitra ltiiid-#die State_F=raRGhise HeldeF Shall at Re expense to the City, en 9F befeFe the d &peG4ed4 a C-hange-the-Iccation-as-re^ iced by the IDiFeGtGF. F-FaRGNe-k�er the- iateahise-Helder-ewes relocate-tha fas+lit46 5.17.150 REMOVAL OFABANDONED FACILITIES. Upon the abandonment or other discontinuance of the use cf all or a portion of its property, the State Franchise Holder shall remove the property in accordance with the terms of Chapter 12.04. If the State Franchise Holderfails to complywith the terms and conditionsof abandonment or removal as may be required by this Chapter and Chapter 12.04, the Director of Public Works may remove, or cause to be removed, such facilities at the State Franchise Holder's expense and the State Franchise Holdershall payto the Citythe cost of such work. 5.17.160 NOTIFICATIONTO RESIDENTS REGARDING CONSTRUCTION OR MAINTENANCE. (a) Prior to any construction activity related to any cable service or video service, a State Franchise Holder shall provide public notification as required by the Public Works Director or applicable law. (b) To the extent practicable, equipment placed on private property shall be placed at the location requested by the property owner. I-State-F-ra+�clise-tele �a+l rcvde-t#e-pr+va# pra}e++-ewrergtiae of-+ts plans-tc�-if-isca+��gt�i{s+�er �t-arse-siaalt--oi�t-ei+�-;`es��"-ten--sa�a-sea*�f-�,-the-private prape� y�-owr�erMbefare-ir�sta-ll-any-ec�i�t-T-lae-Sete--F-�a rash+se-l�leider-s�atl Aue Aq pauslldw000e eq Aew uol;oeuuooja;ui -lauueyo asn A;10 aAlsnloxa Aue `o; pa;iwll ;ou;nq `6uipnloul bulwwej6oad 03d 6u1plAoad jo esodind ay;aoj sjjonNau aiay;;oauuooaa;ul o; y;lej pooh w jay;o yoea y;inn a;el;o6au ileys `apo0 sly; o; ;uensind panssl eslyouejl A;10 e aapun 6ui;eaado jo;eaado algeo;uagwnoul yoea pue aslyoueJd a;e;S a;o aaploy yoea JNIWWd2iJ02�d 03d UOd NOIlQ3NNOQ2G1N1 Ol•Z'LV9 Agg - - - - - - - - Oft -NJonn;au s,'apioH oslyouead a;e;S ay} .rano pa;nglj;slp aq Aew sa6essaw Aou96aaw9;ey;japio ui uolssiwwo0 suoi;eolunwwo0 lejapad ay; }o s;uawaiinbai wa;sAs pale Aoua6aawa ay; y;Inn Aldwoo Ileys aaploH aslyoMd a;e;S yoea (a) *SA31SAS 12131V A0N3J233W3 OOZ'L6'9 'pt c3 # 3 E 33 .sN joM ollgnd 10 JOPO.11Q ay; Aq pa inbai asi/May;o se jo i3O'Z I, aa}dey0 jo s;uawaiinbal uoi;oni;suoo Ile y;inn 6ulAldwoo 6ulpnloul `A;ales pue y;leay amasaid pue }oa;oid o; sueaw a;eudoidde pue Alessaoau lie a�epapun pegs pue to -Z l, aa;dey0 ;o s;uawaimbaa uoilon.i;suoo opeoildde lie y;inn Aidwoo lleys JapioH aslyoueJd a;e;S y3e3 'A13ddS QNd Hl-I`d3H 30 N0110310Nd QNd S1N3W3NinO3N NOIlonNISNOQ 081,11,'9 -lauuosiad yons Aq pasn saloigaA pue sNoni; Ile uo jeadde NEW aaploH aslyoueJd a;e;S ay; jo aagwnu auogdala; pue aweu ay1 qua6e jo eakldwa ay; ;o aweu ay; apnloul pegs uol;eoyl;uapi aaploH aslyouejd a;e;S ay; jo jleyaq uo Apo ay; uiy;inn ApAI;oe aay;o ao 5{aonn Aue 6ulwaojjad al!gm 19pioH aslyouead a;e;S ay; jo s;ua6e ao saaAoidwe se pegi;uapi Apedoid aq sawl; pe ;e pegs JapioH eslyouead a;e;S Aue jo s io;oei;uoogns pue `sio;oei;uoo `s;ua6e `saaAoldw3 (13*dinO32J N011`d0UliN3Ql OLI,'LV9 - inbe Ltens le l..ager pue rl �C 5q a , rpt^ A"lieu jaumepineqS Be Aue elui ialue-eq--j�_ E)eAGE el palte6tpejeu st iawv�e r edv'a vq i?Lq 1j,-!jY LI -j auv. kpedeid aq,: fit; means authorized under California Public Utilities Code Section 5870(h). Each holder of a State Franchise and any incumbent cable operator shall provide interconnection of PEG channels, including any exclusive City use channel on reasonableterms and conditions and may not withhold the interconnection. If a holder of a State Franchise and an incumbent cable operator cannot reach a mutually acceptable interconnection agreement, the City may require the incumbent cable operator to allow the holder of the State Franchise to interconnect its network with the incumbent cable operator's network at a technically feasible point on the State Franchise Holder's network as identified by the Holder or as otherwise permitted by applicable law. If no technically feasible pointfor interconnection is available, the holder of a State Franchise shall make an interconnection available to the channel originatorand shall providethe facilities necessaryforthe interconnection.The cost of any interconnection shall be borne by the State Franchise Holder requesting the interconnection unless otherwise agreed to by the State Franchise Holder and the incumbentcable operator. To the extent not inconsistentwith California Public UtilitiesCode Section 5870(h), the City Manager or the City Manager's designee may waive, medify, or defer this requirement of interconnection in his or her sole discretion. 5.17.220 NOTICES. (a) Each State Franchise Holder or applicant for a state franchise shall file with the City Manager and with the City's communications specialist or other City Manager designee a copy of all applications that the State Franchise Holder or applicant is required to file with the Public UtiIitiesCommission with respect to state franchised video service in the City. (b) Unlessotherwise specified in this Chapter, all notices or other documentationthat a State Franchise Holder is requiredto provideto the City underthis Chapter or the California Public Utilities Code shall be provided to the City Manager and to the City's communications specialist. 5.17.230 RIGHTS RESERVED. The rights reserved to the City of Lodi under this Chapter are in addition to all other applicable rights of the City, whether granted or reserved by other provisions of the Lodi Municipal Code or as otherwise authorized by federal or state law, and no action, proceeding, or exercise of a right by the City of Lodi shall affect any other rightswhich may be held by the City of Lodi. 5.17.240 COMPLIANCE WITH LAW Nothing contained in this Chapter shall be construed to exempt a State Franchise Holder from compliance with all applicable ordinances, rules, or regulations of the City of Lodi now in effect or which may be adopted that are not inconsistent with this Chapter or California Public Utilities Code Section 5800 et seq. SECTION 2. All other provisions of Lodi Municipal Code shall remain unchanged and continue in full force and effect. SECTION 3. Any provisions of the Lodi Municipal Code, or appendices thereto, or any other ordinances of the City, to the extentthat they are inconsistentwith this ordinance, and no further, are hereby repealed. F SECTION 4. If any section, subsection, sentence, clause, or phrase of this ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of the ordinance. The City Council hereby declares that it would have passed this ordinance and each section, subsection, sentence, clause, and phrasethereof, irrespectiveof the fact that any one or more sections, subsections: sentences, clauses, or phrases be declared invalid or unconstitutional. SECTION 5. This ordinance shall go into effect and be in full force and operationfrom and after thirty days after its final passage and adoption. SECTION 6. The City Clerk shall cause this Ordinance or a summary thereof to be published and, if appropriate posted, as provided by law. Any summary shall be published and a certified copy of the full text of this Ordinance posted in the Office of the City Clerk at leastfive (5) days priorto the City Council meeting atwhich this Ordinance isto be adopted. Within fifteen (15) days after the adoption of this Ordinance, the City Clerk shall cause a summary to be published with the names of those City Council members voting for and againstthis Ordinanceand shall post in the Office of the CityClerk a certified copy of thefull text of this Ordinance along with the names of those City Council membersvoting for and against the Ordinance. SECTION 7. All ordinances and parts of ordinances in conflict herewith are repealed insofar as such conflict may exist. SECTION 8. No Mandatory Duty of Care. This ordinance is not intendedto and shall not be construed or given effect in a mannerwhich imposes upon the City, or any officer or employee thereof, a mandatoryduty of caretowards personsor propertywithin the Cityor outside of the City so as to provide a basis of civil liability for damages, except as otherwise imposed by law. SECTION 9. Severability. If any provision of this ordinance or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions or applications of the ordinance which can be given effect without the invalid provision or application. To this end, the provisions of this ordinance are severable. The City Council hereby declares that it would have adopted this ordinance irrespective of the invalidity of any particular portion thereof. SECTION 10. The City Council intends this Ordinance to supplement, not to duplicate or contradict, applicable state and federal laws and this Ordinanceshall be construed in lightof that intent. SECTION 11. This ordinance shall be published one time in the "Lodi News -Sentinel," a daily newspaperof general circulation printed and published in the City of Lodi, and shall take effectthirty days from and after its passage and approval. Approved this_ day of ,2009 LARRY D. HANSEN Mayor Attest: RANDI JOHL City Clerk ----------------------------------------------- ---------------------------------------------- State of California County of San Joaquin, ss. I, Randi Johl, City Clerk of the City of Lodi, do hereby certify that Ordinance No. was introduced at a regular meeting of the City Council of the City of Lodi held October 21, 2009, and was thereafter passed, adopted and ordered to print at a regular meeting of said Council held , 2009, by the following vote: AYES: COUNCIL MEMBERS— NOES; COUNCIL MEMBERS — ABSENT: COUNCIL MEMBERS— ABSTAIN: COUNCIL MEMBERS— further certify that Ordinance No. was approved and signed by the Mayor on the date of its passage and the same has been published pursuant to law. RAND[JOHL City Clerk Approved as to Form: D. STEPHEN SCHWABAUER City Attorney ,, ,. 10 Cable TV ordinance Lodi City Council November 4, 2009 August 19, 2009 • City Council directs staff to pursue local Digital Infrastructure and Video Competition Act ordinance (DIVCA) • Council supports concept of a local Public, Education and Government (PEG) fee Need for ordinance • City's cable franchise ordinance outdated with adoption of DIVCA • Comcast and AT&T now operating in Lodi under State franchise • No funding source identified to purchase/replace equipment to broadcast City Council, other public meetings • No customer service standards currently enforced If ordinance adopted • City will have authority available under DIVCA • Will establish PEG fee to benefit community video (1 % _ $80,000+/-) Key elements • Creates 1 %PEG fee • Affirms 5% franchise fee • Affirms City's right to inspect video companies' financial records • Gives City enforcement powers for State, federal customer service standards • Affirms City's authority of right-of- way encroachments PEG fee request • Comcast no longer providing support for City Council, other key meetings • Fee revenue will allow City to replace existing equipment as needed • Fee revenue will allow City to purchase equipment needed to produce video from Hutchins Street Square or other locations 9 Cost: -58¢/month for Digital Starter Solicited input • AT&T, Comcast given ample opportunity to review ordinance