HomeMy WebLinkAboutAGENDA REPORT 2007 0606 CC REG ITEM 11A ^I'rYof MOORPARK,
City Council Meeting ! MM
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ACTION: ORDINANCE NO. 350
BY.— AN ORDINANCE OF THE CITY OF MOORPARK,
CALIFORNIA, ADDING CHAPTER 5.07, STATE VIDEO
FRANCHISES, TO TITLE 5 OF THE MOORPARK
MUNICIPAL CODE, ESTABLISHING FRANCHISE AND
PEG FEES AND CUSTOMER SERVICE PENALTIES FOR
STATE VIDEO FRANCHISE HOLDERS PROVIDING
VIDEO SERVICE WITHIN THE CITY OF MOORPARK
WHEREAS, a new state law, the Digital Infrastructure and Video Competition Act
of 2006 (Pub. Util. Code § 5800 et seq., "DIVCA") went into effect on January 1 , 2007;
WHEREAS, under DIVCA, the State of California is the "sole franchising authority" for
new video service providers within the City of Moorpark ("City"); and
WHEREAS, the City, although not the franchising authority, has certain rights
and responsibilities with respect to the new state video franchise holders; and
WHEREAS, pursuant to DIVCA, certain rights and responsibilities must be
established by local ordinance before they may become effective and enforceable
against state video franchise holders; and
WHEREAS, the City retains authority, without change, over the City's current
cable franchisee until the franchisee no longer holds a City issued franchise, or the
franchise expires; and
WHEREAS, the City will receive a fee of 5% of gross revenues from each state
video franchisee which operates within the City for use of the public rights-of-way unless
the City opts to waive collection of the fee; and
WHEREAS, the City does not currently opt to waive the collection of the 5%
franchise fee; and
WHEREAS, Time Warner Cable is currently providing cable service within the
City pursuant to a document entitled "Cable System Franchise Agreement Between the
City of Moorpark and Century-TCI California, L.P." (the "TWC Franchise"); and
WHEREAS, the TWC Franchise has an effective date of October 1, 2004 and is
not set to expire until October 1, 2019; and
WHEREAS, consistent with Utilities Code 5870(k), Time Warner Cable must
continue to provide and support PEG channel facilities and institutional networks and to
provide cable services to community buildings contained in the TWC Franchise until the
TWC Franchise expires, until the term of the franchise would have expired if it had not
Ordinance No. 350
Page 2
been terminated pursuant to Public Utilities Code Section 5840(0), or until January 1,
2009, whichever is later; and
WHEREAS, so long as Time Warner Cable has existing unsatisfied obligations
under the franchise to remit to the City any cash payments for the ongoing costs of
public, educational, and governmental access channel facilities or institutional networks,
the City must divide those cash payments among all cable or video providers on a pro
rata basis; and
WHEREAS, the TWC Franchise includes such payment obligations; and
WHEREAS, consistent with Public Utilities Code section 5970(n), the City is
authorized to establish a fee to support PEG channel facilities consistent with federal
law that would become effective at the expiration of the duty to make any such
payments pursuant to the TWC franchise; and
WHEREAS, the City may audit the business records of a state video franchisee
once annually to ensure compliance with the payment of the franchise and PEG fees;
and
WHEREAS, the City may establish and enforce penalties against state video
franchisees for violations of customer service rules consistent with state law.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MOORPARK
DOES ORDAIN AS FOLLOWS:
SECTION 1 . Chapter 5.07 of the Moorpark Municipal Code is hereby added to
provide as follows:
"Chapter 5.07
STATE VIDEO FRANCHISES
Sections:
5.07.010 Purpose and Application
5.07.020 State Video Franchise and PEG Fees
5.07.030 Audit Authority
5.07.040 Customer Service Penalties Under State Franchises
5.07.050 City Response to State Video Franchise
Section 5.07.010 Purpose and Application.
This Chapter is designed to regulate video service providers holding state video
franchises and operating within the City.
4f;
Ordinance No. 350
Page 3
On January 1 , 2007, the State of California became the sole authority with power
to grant state video franchises pursuant to the Digital Infrastructure and Video
Competition Act of 2006 ("DIVCA"). Pursuant to DIVCA, the City of Moorpark
shall receive a franchise fee from all state franchisees. Additionally, each state
franchisee must remit to the City its pro rata share of any cash payments for the
ongoing costs of public, education, and governmental access channel facilities or
institutional networks, as long as there are such payment obligations imposed by
a City issued franchise. Upon the termination of such payment obligations, the
City intends to impose a fee for public, educational and/or government (PEG)
purposes from all state video franchise holders operating within the City. DIVCA
confirmed that the City may establish and enforce penalties, consistent with state
law, against all state video franchise holders operating within the City for
violations of customer service standards. DIVCA precludes the City from
adopting its own standards and grants all authority to adopt customer service
standards to the state. DIVCA leaves unchanged the City's authority to regulate,
in accordance with Chapter 5.06, the City's current cable franchises and any City
cable franchise(s) issued on or before January 1, 2008, until the expiration of any
such franchise(s).
Section 5.07.020 State Video Franchise and PEG Fees
(a) Any state video franchise holder operating within the boundaries of the
City shall pay a fee to the City equal to five percent of the gross revenue of that state
video franchise holder.
(b) Any state video franchise holder operating within the boundaries of the
City shall pay a fee to the City in the amount of its pro rata share of any cash payments
for the ongoing costs of public, education, and governmental access channel facilities or
institutional networks, so long as there are such payment obligations imposed by a City
issued franchise, or until January 1, 2009, whichever is latest.
(c) Effective the first date on which state franchisees operating within the
boundaries of the City are not obligated to make payments pursuant to subdivision (b)
of this section, each state franchisee shall pay a fee to the City equal to one percent of
gross revenue of that state video franchise holder to support Public, Educational, and/or
Governmental (PEG) channel facilities consistent with federal law.
(d) Gross revenue, for the purposes of (a), (b) and (c) above, shall have
the definition set forth in California Public Utilities Code § 5860.
Section 5.07.030 Audit Authority
Not more than once annually, the City Manager or his designee may examine
and perform an audit of the business records of a holder of a state video franchise to
ensure compliance with Section 5.07.020.
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Ordinance No. 350
Page 4
Section 5.07.040 Customer Service Penalties Under State Video Franchises
(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 or his designee shall monitor the compliance of state
video franchise holders with respect to state and federal customer service and
protection standards. The City Manager or his designee 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 30-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 up to $500.00 may 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 up to
$1 ,000.00 may 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 up to $2,500.00 may 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 uphold, modify or vacate the
penalty. The City Council's decision on the imposition of a penalty shall be final.
Section 5.07.050 City Response to State Video Franchise Applications
(a) Applicants for state video franchises within the boundaries of the City must
concurrently provide complete copies to the City of any application or amendments to
applications filed with the California Public Utilities Commission (PUC). 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 2. If any section, subsection, sentence, clause, phrase, part or portion of
this Ordinance is for any reason held to be invalid or unconstitutional by any court of
competent jurisdiction, such decision shall not affect the validity of the remaining portions
of this Ordinance. The City Council declares that it would have adopted this Ordinance
and each section, subsection, sentence, clause, phrase, part or portion thereof,
irrespective of the fact that any one or more section, subsections, sentences, clauses,
phrases, parts or portions be declared invalid or unconstitutional.
Ordinance No. 350
Page 5
SECTION 3. This Ordinance shall become effective thirty (30) days after its
passage and adoption.
SECTION 4. The City Clerk shall certify to the passage and adoption of this
ordinance; shall enter the same in the book of original ordinances of said City; shall
make a minute of the passage and adoption thereof in the records of the
proceedings of the City Council at which the same is passed and adopted; and
shall, within fifteen (15) days after the passage and adoption thereof, cause the
same to be published once in the Moorpark Star a newspaper of general
circulation, as defined in Section 6008 of the Government Code, for the City of
Moorpark, and which is hereby designated for that purpose.
PASSED AND ADOPTED this 6th day of June, 2007.
Patrick Hunter, Mayor
ATTEST:
Deborah S. Traffenstedt, City Clerk
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