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HomeMy WebLinkAboutOrdinance 261 -amending video service standardsORDINANCE NO. 261 AN ORDINANCE AMENDING THE SARATOGA CITY CODE CONCERNING VIDEO SERVICE STANDARDS THE CITY COUNCIL OF THE CITY OF SARATOGA DOES ORDAIN AS FOLLOWS: Section 1. Findings. The City Council finds and declares as follows: A. The Digital Infrastructure and Video Competition Act of 2006 (DIVCA) was signed into law on September 30, 2006 authorizing video service providers to operate in California cities and elsewhere in the state pursuant to a franchise issued by the State Public Utilities Commission. B. DIVCA establishes that local entities, such as the City of Saratoga are responsible for administration and implementation of certain provisions of DIVCA. C. DIVCA imposes a franchise fee of five percent to be paid to the local government where video services are being provided and authorizes local governments to establish, by ordinance, financial support provisions for Public, Educational and Governmental Access (PEG) channel facilities. D. The City has earlier adopted the DIVCA's customer service standards applicable to video service operators and set a schedule for penalties to be imposed in the event of a material breach of state law. E. The City wishes to add to the earlier adopted provisions regarding customer service standards new provisions regarding the state franchise fee and PEG programming. F. The City Council held a duly notice public hearing on September 3, 2008 at which all persons had an opportunity to be heard and following consideration of all testimony and written materials presented to the City Council determined that adoption of this ordinance is in the public interest. Section 2. Adoption. Page 1 of 6 The Saratoga City Code is hereby amended by repealing Article 4-26 in its entirety and replacing it with the text shown below: Article 4-26 VIDEO SERVICES 4-26.010 Purpose and Definitions. This Article implements the the Digital Infrastructure and Video Competition Act of 2006 (the "Act", Public Utilities Code § 5800 et seq.). All terms used in this article shall be defined as defined by that Act or this Code; in the event a term is defined in the Act and this Code, the definition in the Act shall apply to this section. 4-26.020 Applicability. This Article applies to all video service providers serving Saratoga residents pursuant to a state franchise. 4-26.030 Customer Service Standards. (a) All video service providers subject to this Article shall comply with the customer service standards mandated by section 5900 of the Public Utilities Code and with the requirements of Section 53088.2(e) of the Government Code concerning standards for answering customer calls for installation, service, and complaints. (b) Monetary penalties maybe assessed for a material breach of those standards unless the breach is out of the reasonable control of the video service provider. One half of each penalty collected shall be submitted to the Digital Divide Account established by the Act. The penalties shall be as follows: (1) Five-hundred dollars ($500) for each day of material breach, but not to exceed one-thousand five-hundred dollars ($1,500) for each occurrence of a material breach. (2) Notwithstanding subsection (1) above, if notice has been provided and a penalty has been assessed pursuant to subsection (1) above and a subsequent material breach of the same nature occurs within 12 months, an amount of one-thousand dollars ($1,000) shall be assessed for each day of each material breach, not to exceed three-thousand dollars ($3,000) for each occurrence of the material breach. Page 2 of 6 (3) Notwithstanding subsections (1) and (2), above, if notice has been provided and a fine or penalty has been assessed pursuant to subsection (2), above, and a third or further material breach of the same nature occurs within 12 months of the original breach, an amount oftwo-thousand five-hundred dollars ($2,500) shall be assessed for each day of each material breach, not to exceed seven- thousand five-hundred ($7,500) for each occurrence of the material breach. (c) Prior to assessing any penalty pursuant to this Article, the City shall notify the video service provider of the alleged material breach and allow the video service provider at least 30 days from receipt of the notice to remedy the specified material breach. 4.26-040 State Franchise Fee. Any state franchise holder operating within the City shall pay to the City a state franchise fee equal to five percent of the gross revenues of it or any affiliate that are subject to a franchise fee under California Public Utilities Code Section 5860. 4-26.050 Public, Educational and Governmental Programming. (a) Each state franchise holder, and each incumbent cable operator operating under a City franchise issued prior to December 31, 2006 shall negotiate in good faith to interconnect their networks for the purpose of providing PEG programming. Interconnection maybe accomplished by any means authorized under Public Utilities Code Section 5870(h). Each state franchise holder and incumbent cable operator shall provide interconnection of PEG channels on reasonable terms and conditions and may not withhold the interconnection. If a state franchise holder and an incumbent cable operator cannot reach a mutually acceptable interconnection agreement, the City may require the incumbent cable operator to allow the state franchise holder 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 state franchise holder. If no technically feasible point for interconnection is available, each state franchise holder will make an interconnection available to each channel originator providing PEG programming to an incumbent cable operator, and will provide the facilities necessary for the interconnection. The cost of any interconnection will be borne by the state franchise holder requesting Page 3 of 6 the interconnection unless otherwise agreed to by the state franchise holder and the incumbent cable operator. The City reserves the right to request that state video franchise holders designate and activate PEG channels on their networks in accordance with the rules set forth in section 5870 of the California Public Utilities Code. A state video franchise holder shall provide an additional PEG channel when the standards set forth in section 5870(d) of the California Public Utilities Code are satisfied. (b) Any state franchise holder operating within the City shall pay to the City a fee to support public, educational, and governmental programming ("PEG Fee") equal to one percent of the gross revenues of it or any affiliate that are subject to a franchise fee under California Public Utilities Code Section 5860. 4-26.060 Payment of fees. The state franchise fee and the PEG fee shall each be paid to the City quarterly, in a manner consistent with California Public Utilities Code Section 5860. The state franchise holder shall deliver to the City, by check or other means specified by the City, a payment for the state franchise fee and a separate payment for the PEG fee not later than forty- five (45) days after the end of each calendar quarter. Each payment made shall be accompanied by a report, detailing how the payment was calculated, containing such information as the city manager may require consistent with DIVCA. Unless the City Manager provides otherwise, the summary statement shall identify: (a) revenues received from subscribers, by category, with service revenues broken out by service levels; (b) any charges to subscribers for which revenues were received, but on which a franchise fee was not paid; and (c) where the fee is paid on an allocated portion of revenues received, the total revenues received; the allocation factor; and how the allocation factor was calculated. In the event a state franchise holder fails to make payments required by this Article on or before the due dates specified, the city may, to the extent consistent with state law, impose a late charge at the rate per year equal to the highest prime lending rate during the period of delinquency, plus one percent. 4-26.070 Audits. The City may audit the business records of the holder of a state franchise in a manner consistent with California Public Utilities Code Section 5860(1). 4-26.080 Notices. Each state franchise holder or applicant for a state franchise shall file with the City a copy of all applications or notices that the state Page 4 of 6 franchise holder or applicant is required to file with the public utilities commission. 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 Division 6 or the California Public Utilities Code shall be provided to the City Manager. Section 3. Severance Clause. The City Council declares that each section, sub-section, paragraph, sub- paragraph, sentence, clause and phrase of this ordinance is severable and independent of every other section, sub-section, paragraph, sub-paragraph, sentence, clause and phrase of this ordinance. If any section, sub-section, paragraph, sub-paragraph, sentence, clause or phrase of this ordinance is held invalid, the City Council declares that it would have adopted the remaining provisions of this ordinance irrespective of the portion held invalid, and further declares its express intent that the remaining portions of this ordinance should remain in effect after the invalid portion has been eliminated. Section 4. Publication. This ordinance or a comprehensive summary thereof shall be published once in a newspaper of general circulation of the City of Saratoga within fifteen days after its adoption. Page 5 of 6 The foregoing ordinance was introduced and read at the regular meeting of the City Council of the City of Saratoga held on the 3rd day of September, 2008, and was adopted by the following vote following a second reading on the 17th day of September, 2008: AYES: Councilmember Aileen Kao, Jill Hunter, Kathleen King, Vice Mayor Chuck Page, Mayor Ann Waltonsmith NOES: None ABSTAIN: None ABSENT: None ~ ~~~~: ~ Ann Waltonsmith MAYOR, CITY OF SARATOGA, CALIFORNIA ATT ST: nn ullivan ACTING CITY CLERK OF THE CITY OF SARATOGA APPROVED AS TO FORM: t Richard Taylor CITY ATTORNEY Page 6 of 6