Loading...
Ord 660 ORDINANCE NO. 660 AN ORDINANCE OF THE CITY OF POWAY, CALIFORNIA, AMENDING TITLE 5 OF THE POWAY MUNICIPAL CODE, CONCERNING REGULATION OF STATE VIDEO FRANCHISE HOLDERS, AND AMENDING SECTION 17.52.050 RELATED TO DEVELOPMENT REVIEW WHEREAS, a new State law, the Digital Infrastructure and Video Competition Act of 2006 (AS 2987) went into effect January 1, 2007; and WHEREAS, under the new State law, the State of California shall have sole franchising authority for new video service providers within the City; and WHEREAS, although the City of Poway will not be the franchising authority for video service providers, the City continues to have certain rights and responsibilities with respect to the State franchise holders; and WHEREAS, AB 2987 requires that local agencies establish their rights and responsibilities with regard to the State franchise holders by enacting local ordinances; and WHEREAS, the City of Poway shall receive a fee of 5% of gross revenues of each State video franchise holder which operates within the City of Poway for use of the public rights-of-way; and WHEREAS, the City of Poway shall receive an additional fee of 1 % of gross revenues of each State video franchise holder which operates within the City of Poway for Public Educational and Government (PEG) purposes; and WHEREAS, the City of Poway may audit the business records of a State video franchisee once annually to ensure compliance with the payrnent of the franchise and PEG fees; and WHEREAS, the City of Poway will retain authority, without change, over the City's current cable franchisees until such time as they no longer hold a City franchise, or are no longer operating under a current or expired City franchise; and WHEREAS, the terms "video service", "video franchise" and "video franchisee" shall have the same meaning as the terms "cable service", "franchise", and "franchisee", as they are used in Chapter 5.60. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF POWAY DOES ORDAIN AS FOLLOWS: Ordinance No. 660 Page 2 SECTION 1: Section 5.60.007 is hereby added to the Poway Municipal Code to read as follows: Section 5.60.007 Election to Terminate City Franchise - Digital Infrastructure and Video Competition Act of 2006 Beginning January 1, 2007, any grantee of a City franchise that elects to terminate the City franchise and replace it with a State franchise pursuant to the Digital Infrastructure and Video Competition Act of 2006, (Division 2.5 of the Public Utilities Code, commencing at Section 5800), will no longer be governed by this Chapter 5.60, but instead will be governed by Chapter 5.61 of the Poway Municipal Code. SECTION 2: The following Chapter is hereby added to the Poway Municipal Code: Chapter 5.61 Regulation of State Video Franchise Holders: Section 5.61.010 Purpose and Authority This Chapter is designed to regulate video service providers holding State video franchises and operating within the City. As of January 1, 2007, the State of California will have the sole authority to grant State video franchises pursuant to the Digital Infrastructure and Video Competition Act of 2006. ("Act"). Pursuant to the Act, the City of Poway shall receive a franchise fee and shall receive a fee for public, educational, and government (PEG) purposes from all State video franchise holders operating within the City. Additionally, the City will acquire the responsibility to establish and enforce penalties, consistent with State law, against all State video franchise holders operating within the City for violations of customer service standards, however, the Act grants all authority to adopt customer service standards to the State. The Act leaves unchanged the City's authority to regulate the City's current cable franchise in accordance with Chapter 5.60 and the cable franchise currently in effect until such time as the cable franchisee no longer holds a City franchise or is no longer operating under a current or expired City franchise. Section 5.61.010 Definitions The terms "video", "video franchise" and "video franchisee" shall have the same meaning as the terms "cable", "franchise" and "grantee", as used in Chapter 5.60. Section 5.61.020 State Video Franchise and PEG Fees (a) For any State video franchise holder operating within the boundaries of the City of Poway, there shall be a fee paid to the City equal to five percent of the gross revenue of that State video franchise holder. Ordinance No. 660 Page 3 . (b) For any State video franchise holder operating within the boundaries of the City of Poway, there shall be an additional fee paid to the City equal to one percent of the gross revenue of that State video franchise holder, which shall be imposed under the terms and conditions set forth in the Act. This fee shall be used by the City for PEG purposes consistent with State and federal law. (c) Gross revenue, for the purposes of (a) and (b) above, shall have the definition set forth in California Public Utilities Code section 5860. Section 5.61.030 Authority to Examine Business Records Not more than once annually, the City Manager or his or her designee may examine the business records of a holder of a State video franchise to ensure compliance with section 5.61.020, under the terms and conditions set forth in the Act. Section 5.61.040 Customer Service Penalties (a) The Holder of a State video franchise shall comply with all applicable State and federal customer service and protection standards pertaining to the provision of video service. (b) The City Manager shall monitor the compliance of State video franchise holders with respect to State and federal customer service and protection standards. The City Manager will provide the State video franchise holder written notice of any material breaches of applicable customer service standards, and will allow the State video franchise holder 30 days from the receipt of the notice to remedy the specified material breach. Material breaches not remedied within the 3D-day time period will be subject to the following penalties to be imposed by the City: (1) For the first occurrence of a violation, a fine of $500.00 shall be imposed for each day the violation remains in effect, not to exceed $1,500.00 for each violation. (2) For a second violation of the same nature within 12 months, a fine of $1,000.00 shall be imposed for each day the violation remains in effect, not to exceed $3,000.00 for each violation. (3) For a third or further violation of the same nature within 12 months, a fine of $2,500.00 shall be imposed for each day the violation remains in effect, not to exceed $7,500.00 for each violation. (c) A State video franchise holder may appeal a penalty assessed by the City Manager to the City Council within 60 days of the initial assessment. The City Council shall hear all evidence and relevant testimony and may Ordinance No. 660 Page 4' uphold, modify or vacate the penalty. The City Council's decision on the imposition of a penalty shall be final. Section 5.61.050 City Response to State Video Franchise Applications (a) Applicants for State video franchises within the boundaries of the City of Poway must concurrently provide complete copies to the City of any application or amendments to applications filed with the Public Utilities Commission. One complete copy must be provided to the City Manager. (b) Within 30 days of receipt, the City Manager will provide any appropriate comments to the PUC regarding an application or an amendment to an application for a State video franchise. Section 5.61.060 Development Review for Facilities in Streets and Public Rights- of-Way Prior to construction or alteration of any facilities in, on, over, under, upon, across, and along the public streets and rights-of-way within the City of Poway, a State video franchise holder shall, for each facility, submit plans and drawings to the Director of Development Services for review, pursuant to PMC Section 17.52.050. For purposes of this section, "facilities" includes wires. cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, pedestals, attachments, and other property and equipment as are necessary and appurtenant to the operation of the video service system. Section 5.61.070 Construction Standards The construction standards set forth in Sections 5.60.275, 5.60.280, 5.60.285, 5.60.290, and 5.60.295 shall apply to State video service franchise holders constructing or altering any facilities within the City of Poway, as though fully set forth in this Chapter 5.61. Section 5.61.080 Environmental Review The City of Poway shall serve as the lead agency for any environmental review that is required for construction or alteration of facilities by a State video service franchise holder within the City of Poway, and may impose conditions to mitigate environmental impacts of the applicant's use of the public rights-of-way that may be required by the California Environmental Quality Act (Division 13 commencing with Section 21000 of the Public Resources Code). Section 5.61.090 Severability This Chapter and the various parts thereof are hereby declared to be severable. Should any section of this Chapter be declared by a court of competent jurisdiction to be unconstitutional or invalid for any reason, such decision shall not affect the validity of Ordinance No. 660 Pages the Chapter as a whole, or any portion thereof other than the section so declared to be unconstitutional or invalid. SECTION 3: Section 17.52.050(A) of the Poway Municipal Code is hereby amended by adding subsection (4) to read as follows: 4. Construction or alteration of facilities in, on, over, upon, across, and along the public streets and public rights-of-way within the City of Poway by a State video franchise holder shall obtain approval of a Minor Development Review permit from the Director of Development Services if the surface mounted cabinet has a dimension (width, height, or length) greater than thirty-six (36) inches, or where more than one cabinet of any size is located closer than 100 feet to another cabinet of any size. Exempt from this requirement are facilities placed underground. The applicant shall comply with the "Guidelines for the Placement of Utility Facilities in the Public Rights-of- Way". EFFECTIVE DATE: This Ordinance shall take effect and be in force thirty (30) days after the date of this passage; and before the expiration of fifteen (15) days after its passage, it shall be published once with the names and members voting for and against the same in the Poway News Chieftain, a newspaper of general circulation published in the City of Poway. Introduced and first read at a regular meeting of the City Council of the City of Poway held this 18th day of September 2007, and thereafter PASSED AND ADOPTED at a regular meeting of said City Council held the 2nd day of October 2007, by the following roll call vote. ATTEST: ti;. 6~'cjl~fi-- Ordinance No. 660 Page 6 STATE OF CALIFORNIA ) ) ss COUNTY OF SAN DIEGO ) I, L. Diane Shea, City Clerk of the City of Poway, do hereby certify under penalty of perjury that the foregoing Ordinance No. 660 was duly adopted by the City Council at a meeting of said City Council on the 2nd day of October 2007, and that it was so adopted by the following vote: AYES: BOYACK, EMERY, HIGGINSON, REXFORD, CAFAGNA NOES: NONE ABSENT: NONE DISQUALIFIED: NONE ~~0~ L. Diane Shea, City Clerk City of Poway