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