HomeMy WebLinkAbout599 - Ordinances ORDINANCE NO. 599
AN ORDINANCE OF THE CITY OF RANCHO CUCAMONGA
ADOPTING A TELECOMMUNICATIONS REGULATORY
ORDINANCE AND AMENDING TITLE 7 OF THE RANCHO
CUCAMONGA 'MUNICIPAL CODE
THE CITY COUNCIL OF THE CITY OF RANCHO CUCAMONGA DOES ORDAIN
AS FOLLOWS:
SECTION 1: Title 7 of the Rancho Cucamonga Municipal Code is
repealed in its entirety.
SECTION 2: The Rancho Cucamonga Municipal Code is amended by
adding a new Title 7 to read as follows:
TITLE 7
TELECOMMU ICATIONS REGULATORY ORDINANCE
CHAPTER 7.01 GENERAL PROVISIONS
7.01.010 - Title
This title is known and may be cited as the "Telecommunications Regulatory
Ordinance" of the City of Rancho Cucamonga.
7.01.020 - Purpose and Intent
A. The City Council finds and determines as follows:
1. The development of cable television and other telecommunications systems
may provide significant benefits for, and have substantial impacts upon, the
residents of the City.
2. Because of the complex and rapidly changing technology associated with
telecommunications services and systems, the public convenience, safety,
and general welfare can best be served by establishing regulatory powers
to be exercised by the City.
3. This title is intended to establish regulatory provisions that authorize the City
to regulate telecommunications services and systems to the extent
authorized by federal and state law, including but not limited to the federal
Cable Communications Policy Act of 1984, the federal Cable Television
Consumer and Competition Act of 1992, the federal Telecommunications
Act of 1996, applicable regulations of the Federal Communications
Commission, and applicable California statutes and regulations.
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Page 2
B, The purpose and intent of this title is to provide for the attainment of the
following objectives:
1. To enable the City to discharge its public trust in a manner consistent with
rapidly evolving federal and state regulatory policies, industry competition,
and technological development.
2. To authorize and to manage reasonable access to the City's public rights-
of-way and public property for telecommunications purposes on a
competitively neutral and nondiscriminatory basis.
3. To obtain fair and reasonable compensation for the City and its residents
for authorizing the private use of the public rights-of-way and public
property.
4. To promote competition in telecommunications services, minimize
unnecessary local regulation of telecommunications service providers, and
encourage the delivery of advanced and competitive telecommunications
services on the broadest possible basis to local government and to the
businesses, institutions, and residents of the City.
5. To establish clear local guidelines, standards, and time frames for the
exercise of local authority with respect to the regulation of
telecommunications service providers.
6. To encourage the profitable deployment of advanced telecommunications
infrastructures that satisfy local needs, deliver enhanced government
services, and provide informed consumer choices in an evolving
telecommunications market.
7.01.030 - Defined Terms and Phrases
Various terms and phrases used in this title are defined below in Chapter 7.05.
CHAPTER 7.02 CABLE TELEVISION SYSTEMS
7.02.010 - Authority and Findings
A. In accordance with applicable federal and state law, the City is
authorized to grant one or more nonexclusive franchises to construct,
reconstruct, operate, and maintain cable television systems within the
City limits.
B. The City Council finds that the development of cable television and
related telecommunications services may provide significant benefits for,
and substantial impacts upon, the residents of the City. Because of the
complex and rapidly changing technology associated with cable
television, the City Council further finds that the public convenience,
safety, and general welfare can best be served by establishing
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Page 3
regulatory powers to be exercised by the City. This chapter is intended
to specify the means for providing to the public the best possible cable
television and related telecommunications services, and every franchise
issued in accordance with this chapter is intended to achieve this
primary objective. It is the further intent of this chapter to adopt
regulatory provisions that will enable the City to regulate cable television
and related telecommunications services to the maximum extent
authorized by federal and state law.
7.02.020 - Franchise Terms and Conditions
A. Franchise Purposes
A franchise granted by the City under the provisions of this chapter may
authorize the Grantee to do the following:
1. To engage in the business of providing cable service and such other
telecommunications services as may be authorized by law and which
Grantee elects to provide to its subscribers within the designated franchise
service area.
2. To erect, install, construct, repair, rebuild, reconstruct, replace, maintain,
and retain, cable lines, related electronic equipment, supporting structures,
appurtenances, and other property in connection with the operation of the
cable system in, on, over, under, upon, along and across streets or other
public places within the designated franchise service area.
3. To maintain and operate the franchise properties for the origination,
reception, transmission, amplification, and distribution of television and
radio signals, and for the delivery of cable services and such other
services as may be authorized by law.
B. Franchise Required
It is unlawful for any person to construct, install, or operate a cable
television system within any street or public way in the City without first
obtaining a franchise under the provisions of this chapter.
C. Term of the Franchise
1. A franchise granted under this chapter will be for the term specified in the
franchise agreement, commencing upon the effective date of the
ordinance or resolution adopted by the City Council that authorizes the
franchise.
2. A franchise granted under this chapter may be renewed upon application
by the Grantee in accordance with the then-applicable provisions of state
and federal law and of this chapter.
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D. Franchise Territory
A franchise is effective within the territorial limits of the City, and within
any area added to the City during the term of the franchise, unless
otherwise specified in the ordinance or resolution granting the franchise
or in the franchise agreement.
E. Federal or State Jurisdiction
This chapter will be construed in a manner consistent with all applicable
federal and state laws, and it applies to all franchises granted or
renewed after the effective date of this chapter, to the extent authorized
by applicable law.
F. Franchise Non-Transferable
1. Grantee may not sell, transfer, lease, assign, sublet, or dispose of, in
whole or in part, either by forced or involuntary sale, or by ordinary sale,
contract, consolidation, or otherwise, the franchise or any of the rights or
privileges therein granted, without the prior consent of the City Council and
then only upon such terms and conditions as may be prescribed by the
City Council, which consent may not be unreasonably denied or delayed.
Any attempt to sell, transfer, lease, assign, or otherwise dispose of the
franchise without the consent of the City Council is null and void. The
granting of a security interest in any assets of the Grantee, or any
mortgage or other hypothecation, will not be deemed a transfer for the
purposes of this subsection.
2. The requirements of subsection 1 apply to any change in control of
Grantee. The word "control" as used herein is not limited to the ownership
of major stockholder or partnership interests, but includes actual working
control in whatever manner exercised. If Grantee is a corporation, prior
authorization of the City Council is required where ownership or control of
more than 25 percent of the voting stock of Grantee, or of Grantee's
parent company, is acquired by a person or a group of persons acting in
concert, none of whom, singularly or collectively, owns or controls the
voting stock of the Grantee, or of Grantee's parent company, as of the
effective date of the franchise.
3. Grantee must notify the City in writing of any foreclosure or judicial sale of
all or a substantial part of the Grantee's franchise property, or upon the
termination of any lease or other interest covering all or a substantial part
of that franchise property. That notification will be considered by the City
as notice that a change in control of ownership of the franchise has taken
place, and the provisions of this paragraph that require the prior consent
of the City Council to that change in control of ownership will apply.
For the purpose of determining whether it will consent to an acquisition,
transfer, or change in control, the City may inquire as to the qualifications
of the prospective transferee or controlling party, and Grantee must assist
the City in that inquiry. In seeking the City's consent to any change of
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ownership or control, Grantee or the proposed transferee, or both, must
complete Federal Communications Commission Form 394 or its
equivalent. This application must be submitted to the City not less than
120 days prior to the proposed date of transfer. The transferee must
establish that it possesses the legal, financial, and technical capability to
operate and maintain the cable system and to comply with all franchise
requirements during the remaining term of the franchise. If the legal,
financial, and technical qualifications of the applicant are satisfactory, the
City will consent to the transfer of the franchise. The consent of the City
to that transfer will not be unreasonably denied or delayed.
5. Any financial institution holding a pledge of the Grantee's assets to secure
the advance of money for the construction or operation of the franchise
property has the right to noti,fy the City that it, or a designee satisfactory
to the City, will take control of and operate the cable television system
upon Grantee's default in its financial obligations. Further, that financial
institution must also submit a plan for such operation within 90 days after
assuming control. The plan must insure continued service and
compliance with all franchise requirements during the period that the
financial institution will exercise control over the system. The financial
institution may not exercise control over the system for a period exceeding
18 months unless authorized by the City, in its sole discretion, and during
that period of time it will have the right to petition the City to transfer the
franchise to another Grantee.
Grantee must reimburse the City for the City's reasonable review and
processing expenses incurred in connection with any transfer or change
in control of the franchise. These expenses include, without limitation,
costs of administrative review, financial, legal, and technical evaluation of
the proposed transferee, consultants (including technical and legal experts
and all costs incurred by these experts), notice and publication costs, and
document preparation expenses. No reimbursement may be offset
against any franchise fee payable to the City during the term of the
franchise.
G. Geographical Coverage
1. Grantee must design, construct, and maintain the cable television system
so as to have the capability to pass .every dwelling unit in the franchise
service area, subject to any service-area line extension requirements or
territorial restrictions set forth in the franchise agreement.
2. After service has been established within all or any part of the franchise
service area by activating trunk or distribution cables, Grantee must
provide service to any requesting subscriber within that activated part of
the service area within 30 days from the date of request, provided that the
Grantee is able to secure on reasonable terms and conditions all
rights-of-way necessary to extend service to that subscriber within that 30-
day period.
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H. Nonexclusive Franchise
Every franchise granted is nonexclusive. The City specifically reserves
the right to grant, at any time, such additional franchises for a cable
television system, or any component thereof, as it deems appropriate,
subject to applicable state and federal law. If an additional franchise is
proposed to be granted to a subsequent Grantee, a noticed public
hearing must first be held in accordance with the provisions of
Government Code § 53066.3.
I. Multiple Franchises
1. The City may grant any number of franchises, subject to applicable state
and federal law. The City may limit the number of franchises granted,
based upon, but not necessarily limited to, the requirements of applicable
law and specific local considerations, such as:
a. The capacity of the public rights-of-way to accommodate
multiple cables in addition to the cables, conduits, and pipes of
the existing utility systems, such as electrical power,
telephone, gas, and sewerage.
b. The benefits that may accrue to subscribers as a result of
cable system competition, such as lower rates and improved
service.
c. The disadvantages that may result from cable system
competition, such as the requirement for multiple pedestals on
residents' property, and the disruption arising from numerous
excavations within the public rights-of-way.
2. The City may require that any new Grantee be responsible for its own
underground trenching and the associated costs if, in the City's opinion,
the rights-of-way in any particular area cannot reasonably accommodate
additional cables.
7.02.030 - Franchise Applications and Renewal
A, Filina of A~3Dlications
Any person desiring an initial franchise for a cable television system
must file an application with the City. A reasonable nonrefundable
application fee in an amount established by resolution of the City Council
must accompany the application. That application fee will cover all costs
associated with reviewing and processing the application, including
without limitation costs of administrative review, financial, legal, and
technical evaluation of the applicant, consultants (including technical and
legal experts and all costs incurred by those experts), notice and
publication requirements, and document preparation expenses. If those
costs exceed the application fee, the applicant must pay the difference
to the City within 30 days following receipt of an itemized statement of
those costs.
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B. A~r)lications - Contents
An application for an initial franchise for a cable television system must
contain, as applicable:
1. A statement as to the proposed franchise service area.
2. A resume of the applicant's prior history, including the experience and
expertise of the applicant in the cable television and telecommunications
industry.
3. A list of the partners, general and limited, of the applicant, if a partnership,
or the percentage of stock owned or controlled by each stockholder, if a
closely-held corporation. If the applicant is a publicly-owned corporation,
each owner of 10 percent or more of the issued and outstanding capital
stock must be identified.
4. A list of officers, directors, and managing employees of the applicant,
together with a description of the background of each such person.
The names and addresses of any parent or subsidiary of the applicant, or
any other business entity owning or controlling applicant in whole or in
part, or that is owned or controlled in whole or in part by the applicant.
6. A current financial statement of the applicant verified by a certified public
accountant or otherwise certified to be true, complete, and correct to the
reasonable satisfaction of the City.
7. The proposed construction and service schedule, the proposed rate
structure for cable services, and the proposed commitment to provide
public, educational, and governmental access capacity, services, facilities,
and equipment.
8. Any additional information that the City deems to be reasonably necessary.
C. Consideration of Initial Applications
1. Upon receipt of an application for an initial franchise, the City Manager or
the City Manager's designee must prepare a report and make
recommendations to the City Council concerning that application.
2. A public hearing will be noticed prior to any initial franchise grant, at a time
and date approved by the City Council. Within 30 days after the close of
the hearing, the City Council will make a decision based upon the
evidence received at the hearing as to whether the franchise should be
granted, and, if granted, subject to what conditions. The City Council may
grant one or more franchises, or may decline to grant any franchise.
D, Franchise Renewal
Franchise renewals will be processed in accordance with then-applicable
law and with the renewal terms, if any, of the franchise agreement. The
City and Grantee, by mutual consent, may enter into renewal
negotiations at any time during the term of the franchise.
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7.02.040 - Contents of Cable Television Franchise Agreements
A. The terms and provisions of a franchise agreement for the operation of
a cable television or related telecommunications services may relate to
or include, without limitation, the following subject matters:
1. The nature, scope, geographical area, and duration of the franchise.
2. The applicable franchise fee to be paid to the City, including the
percentage amount, the method of computation, and the time for payment.
3. Requirements relating to compliance with and implementation of state and
federal laws and regulations pertaining to the operation of the cable
television system.
4. Requirements relating to the construction, upgrade, or rebuild of the cable
television system, as well as the provision of special services, such as
outlets for public buildings, emergency alert capability, and parental
control devices.
5. Requirements relating to the maintenance of a performance bond, a
security fund, a letter of credit, or similar assurances to secure the
performance of the Grantee's obligations under the franchise agreement.
$. Requirements relating to comprehensive liability insurance, workers'
compensation insurance, and indemnification.
7. Requirements relating to consumer protection and customer service
standards, including the resolution of subscriber complaints and disputes
and the protection of subscribers' privacy rights.
8. Requirements relating to the Grantee's support of local cable usage,
including the provision of public, educational, and governmental access
channels, the coverage of public meetings and special events, and
financial support for governmental access channels.
9. Requirements relating to construction, operation, and maintenance of the
cable television system within the public rights-of-way, including
compliance with all applicable building codes and permit requirements of
the City, the abandonment, removal, or relocation of facilities, and
compliance with FCC technical standards.
10. Requirements relating to recordkeeping, accounting procedures, reporting,
periodic audits, and performance reviews, and the inspection of Grantee's
books and records.
11. Acts or omissions constituting material breaches of or defaults under the
franchise agreement, and the applicable penalties or remedies for such
breaches or defaults, including fines, penalties, liquidated damages,
suspension, revocation, and termination.
12. Requirements relating to the sale, assignment, or other transfer or change
in control of the franchise.
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13. The Grantee's obligation to maintain continuity of service and to authorize,
under certain specified circumstances, the City's operation and
management of the cable system.
14. Such additional requirements, conditions, policies, and procedures as may
be mutually agreed upon by the parties to the franchise agreement and
that will, in the judgment of City staff and the City Council, best serve the
public interest and protect the public health, welfare, and safety.
B. If there is any conflict or inconsistency between the provisions of a
franchise agreement authorized by the City Council and provisions of
this chapter, the provisions of the franchise agreement will control.
CHAPTER 7.03 OPEN VIDEO SYSTEMS
7.03.010 - Applicability
The provisions of this chapter are applicable to an open video system
operator, as defined below in Chapter 7.05, that intends to deliver video
programming to consumers in the City over an open video system.
7.03.020 - Application Required
A. Before commencing the delivery of video programming services to
consumers in the City over an open video system, the open video
system operator must file an application with the City. That application
must include or be accompanied by the following, as applicable:
1. The identity of the applicant, including all affiliates of the applicant.
2. Copies of FCC Form 1275, all "Notices of Intent" filed under 47 CFR
§ 76.1503(b)(1), and the Order of the FCC, all of which relate to
certification of the applicant to operate an open video system in
accordance with Section 653(a)(1) of the Communications Act and the
FCC's rules.
3. The area or areas of the City that the applicant desires to serve.
4. A description of the open video system services that will be offered by the
applicant over its existing or proposed facilities.
5. A description of the transmission medium that will be used by the applicant
to deliver the open video system services.
6. Information in sufficient detail to establish the applicant's technical
qualifications, experience, and expertise regarding the ownership and
operation of the open video system described in the application.
7. Financial statements prepared in accordance with generally accepted
accounting principles that demonstrate the applicant's financial ability to:
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a. Construct, operate, maintain and remove any new physical
plant that is proposed to be constructed in the City.
b. Comply with the City's public, educational, and governmental
access requirements as specified below in Section 7.03.040
B(4).
c. Comply with the City's requirement that gross revenue fees be
paid in the sum of five percent (5%), as specified below in
Section 7.03.040 B(2).
8. An accurate map showing the location of any existing telecommunications
facilities in the City that the applicant intends to use, to purchase, or to
lease.
9. If the applicant's operation of the open video system will require the
construction of new physical plant and facilities in the City, the following
additional information must be provided:
a. A preliminary construction schedule and completion dates.
b. Preliminary engineering plans, specifications, and a network
map of any new facilities to be constructed in the City, in
sufficient detail to identify:
(i) The location and route requested for the applicant's
proposed facilities.
(ii) The locations, if any, for interconnection with the facilities
of other telecommunications service providers.
(iii) The specific structures, improvements, facilities, and
obstructions, if any, that the applicant proposes to
remove or relocate on a temporary or permanent basis.
c. The applicant's statement that, in constructing any new
physical plant, the applicant will comply with all applicable
ordinances, rules, and regulations of the City, including the
payment of all required permit and processing fees.
10. The information and documentation that is required to be submitted to the
City by a video provider, as specified below in paragraph B of
Section 7.04.020.
11. Such additional information as may be requested by the City Manager.
12. A nonrefundable filing fee in an amount established by resolution of the
City Council.
B. If any item of information specified above in paragraph A is determined
under paramount federal or state law to be unlawful, the City Manager
is authorized to waive the requirement that such information be included
in the application.
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7.03.030 - Review of the Application
Within 30 days after receipt of an application filed under Section 7.03.020 that is
deemed to be complete, the City Manager will give written notice to the applicant
of the City's intent to negotiate an agreement setting forth the terms and conditions
under which the operation of the proposed open video system will be authorized by
the City. The commencement of those negotiations will be on a date that is
mutually acceptable to the City and to the applicant.
7.03.040 - Agreement Required
A. No video programming services may be provided in the City by an open
video system operator unless the operator and the City have executed
a written agreement setting forth the terms and conditions under which
the operation of the proposed open video system will be authorized by
the City.
B. The agreement between the City and the open video system operator
may contain terms and conditions that relate to the following subject
matters, to the extent that' such terms, conditions, and subject matters
are not preempted by federal statute or regulations:
1. The nature, scope, and duration of the agreement, including provisions for
its renewal or extension.
2. The obligation of the open video system operator to pay to the City, at
specified times, fees on the gross revenues received by the operator, as
authorized by 47 CFR § 76.1511, in accordance with the following
standards and procedures:
a. The amount of the fees on the gross revenues will be five
percent (5%), and will be paid in lieu of the franchise fees
permitted under Section 622 of the Communications Act.
b. The term "gross revenues" means (i) all gross revenues
received by an open video system operator or its affiliates,
including all revenues received from subscribers and all
carriage revenues received from unaffiliated video
programming providers; and (ii) all advertising revenues
received by the operator or its affiliates in connection with the
provision of video programming, where such revenues are
included in the calculation of the cable franchise fee paid to the
City by the franchised cable operator. The term "gross
revenues" does not include revenues, such as subscriber or
advertising revenues, collected by unaffiliated video
programming providers.
3. The obligation of the open video system operator to comply with
requirements relating to information collection and recordkeeping,
accounting procedures, reporting, periodic audits, and inspection of
records in order to ensure the accuracy of the fees on the gross revenues
that are required to be paid as specified above in paragraph B(2).
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4. The obligation of the open video system operator to meet the City's
requirements with respect to public, educational, and governmental
access channel capacity, services, facilities, and equipment, as provided
for in 47 CFR § 7'6.1505. In this regard, the following standards and
procedures are applicable:
a. The open video system operator is subject to the same public,
educational, and governmental access requirements that apply
within the cable television franchise service area with which its
system overlaps.
b. The open video system operator must ensure that all
subscribers receive all public, educational, and governmental
access channels within the franchise service area in which the
City's subscribers are located.
c. The open video system operator may negotiate with the City
to establish the operator's obligations with respect to public,
educational, and governmental access channel capacity,
services, facilities, and equipment. These negotiations may
include the City~s franchised cable operator if the City, the
open video system operator, and the franchised cable operator
so desire.
d. If the open video system operator and the City are unable to
reach an agreement regarding the operator's obligations with
respect to public, educational, and governmental access
channel capacity, services, facilities, and equipment within the
City's jurisdiction, then the following obligations will be
imposed:
(i) The open video system operator must satisfy the same
public, educational, and governmental access obligations
as the City's franchised cable operator by providing the
same amount of channel capacity for public, educational,
and governmental access and by matching the City's
franchised cable operator's annual financial contributions
in support of public, educational, and governmental
access services, facilities, and equipment that are
actually used by the City. For in-kind contributions, such
as cameras or production studios, the open video system
operator may satisfy its statutory obligation by
negotiating mutually agreeable terms with the City's
franchised cable operator, so that public, educational,
and governmental access services to the City are
improved or increased. If such terms cannot be agreed
upon, the open video system operator must pay to the
City the monetary equivalent of the franchised cable
operator's depreciated in-kind contribution, or, in the
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case of facilities, the annual amortization value. Any
matching contributions provided by the open video
system operator must be used to fund activities arising
under Section 611 of the Communications Act.
(ii) The City will impose upon the open video system
operator the same rules and procedures that it imposes
upon the franchised cable operator with regard to the
open video system operator's use of channel capacity
designated for public, educational, and governmental
access use when that capacity is not being used for such
purposes.
e. The City's franchised cable operator is required under federal
law to permit the open video system operator to connect with
its public, educational, and governmental access channel
feeds. The open wideo system operator and the franchised
cable operator may decide how to accomplish this connection,
taking into consideration the physical and technical
characteristics of the cable and the open video systems
involved. If the franchised cable operator and the open video
system operator cannot agree on how to accomplish the
connection, the City has the right to decide. The City may
require that the connection occur on City-owned property or on
public rights-of-way.
f. All costs of connection to the franchised cable operator's
public, educational, and governmental access channel feed
must be borne by the open video system operator. These
costs will be counted towards the open video system
operator's matching financial contributions set forth above in
subparagraph (d)(i).
g. The City will not impose upon the open video system operator
any public, educational, or governmental access obligations
that are greater than those imposed upon the franchised cable
operator.
h. If there is no existing franchised cable operator, the provisions
of 47 CFR § 76.1505(d)(6) will be applicable in determining the
obligations of the open video system operator.
i. The open video system operator must adjust its system to
comply with new public, educational, and access obligations
imposed on the City's franchised cable operator following a
renewal of the cable television franchise; provided, however,
that the open video system operator will not be required to
displace other programmers using its open video system to
accommodate public, educational, and governmental access
channels. The open video system operator must comply with
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such new public, educational, and governmental access
obligations whenever additional capacity is or becomes
available, whether it is due to increased channel capacity or to
decreased demand for channel capacity.
5. If the City and the open video system operator cannot agree as to the
application of the FCC's rules regarding the open video system operator's
obligations to provide public, educational, and governmental access under
the provisions of subsection 4 set forth above, then either party may file
a complaint with the FCC in accordance with the dispute resolution
procedures set forth in 47 CFR § 76.1514. No agreement will be executed
by the City until the dispute has been finally resolved.
6. If the open video system operator intends to maintain an institutional
network, as defined in Section 611 (f) of the Communications Act, the City
will require that educational and governmental access channels be
designated on that institutional network to the same extent that those
channels are designated on the institutional network of the City's
franchised cable operator.
7. The authority of an open video system provider to exercise editorial control
over any public, educational, or governmental use of channel capacity will
be restricted in accordance with the provisions of 47 CFR § 76.1505(f).
8. The obligation of the open video system operator to comply with all
applicable federal and state statutes and regulations relating to customer
service standards, including the Cable Television and Video Customer
Service and Information Act (Government Code §§ 53054, et seq.), and
the Video Customer Service Act (Government Code §§ 53088, et seq.)
9. If new physical plant is proposed to be constructed within the City, the
obligation of the open video system operator to comply with the following
rights-of-way use and management responsibilities that are also imposed
by the City upon other telecommunications service providers in a
nondiscriminatory and competitively neutral manner:
a. Compliance with all applicable City building and zoning codes,
including applications for excavation, encroachment, and
construction permits and the payment of all required permit
and inspection fees.
b. The coordination of construction requirements.
c. Compliance with established standards and procedures for
constructing lines across private property.
d. Compliance with all applicable insurance and indemnification
requirements.
e. The repair and resurfacing of construction-damaged streets.
f. Compliance with all public safety requirements that are
applicable to telecommunications service providers using
public property or public rights-of-way.
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10. Acts or omissions constituting breaches or defaults of the agreement, and
the applicable penalties, liquidated damages, and other remedies,
including fines or the suspension, revocation, or termination of the
agreement.
11. Requirements relating to the sale, assignment, or transfer of the open
video system.
12. Requirements relating to the open video system operator's compliance
with and implementation of state and federal laws, rules, and regulations
pertaining to the operation of the open video system.
13. Such additional requirements, conditions, terms, policies, and procedures
as may be mutually agreed upon by the City and the open video system
operator and that will, in the judgment of the City Council, best serve the
public interest and protect the public health, welfare, and safety.
CHAPTER 7.04 OTHER TELECOMMUNICATIONS SERVICES AND SYSTEMS
7.04.010 - Other Multichannel Video Programming Distributors
The term "cable system," as defined in federal law and as set forth in Chapter 7.05
below, does not include a facility that serves subscribers without using any public
rights-of-way. Consequently, the categories of multichannel video programming
distributors identified below are not deemed to be "cable systems" and are therefore
exempt from the City's franchise requirements and from certain other local
regulatory provisions authorized by federal law, provided that their distribution or
transmission facilities do not involve the use of the City's public rights-of-way.
A. Multichannel multipoint distribution service (MMDS"), also known as
"wireless cable," which typically involves the transmission by an FCC-
licensed operator of numerous broadcast stations from a central location
using line-of-sight technology.
B. Local multipoint distribution service ("LMDS"), another form of over-the-
air wireless video service for which licenses are auctioned by the FCC,
and which offers video programming, telephony, and data networking
services.
C. Direct broadcast satellite ("DBS"), also referred to as "direct-to-home
satellite services," which involves the distribution or broadcasting of
programming or services by satellite directly to the subscriber's premises
without the use of ground receiving or distribution equipment, except at
the subscriber's premises or in the uptink process to the satellite. Local
regulation of direct-to-home satellite services is further proscribed by the
following federal statutory provisions:
O~inance 599
Page 16
1. 47 U.S.C. § 303(v) confers upon the FCC exclusive jurisdiction to regulate
the provision of direct-to-home satellite services.
2. Section 602 of the Communications Act states that a provider of direct-to-
home satellite service is exempt from the collection or remittance, or both,
of any tax orfee imposed by any local taxing jurisdiction on direct-to-home
satellite service. The terms "tax" and "fee" are defined by federal statute
to mean any local sales tax, local use tax, local intangible tax, local
income tax, business license tax, utility tax, privilege tax, gross receipts
tax, excise tax, franchise fees, local telecommunications tax, or any other
tax, license, or fee that is imposed for the privilege of doing business,
regulating, or raising revenue for a local taxing jurisdiction.
7.04.020 - Video Providers - Registration; Customer Service Standards
A. Unless the customer protection and customer service obligations of a
video provider, as that term is defined in Chapter 7.05, are specified in
a franchise, license, lease, or similar written agreement with the City, a
video provider must comply with all applicable provisions of the following
state statutes:
1. The Cable Television and Video Customer Service and Information Act
(Government Code §§ 53054, et seq.)
2. The Video Customer Service Act (Government Code §§ 53088, et seq.)
B. All video providers that are operating in the City on the effective date of
this title, or that intend to operate in the City after the effective date of
this title, must register with the City; provided, however, that this
registration requirement is not applicable to any video provider that has
executed a franchise, license, lease or similar written agreement with
the City. The registration form must include or be accompanied by the
following:
1. The video provider's name, address, and local telephone numbers.
2. The names of the officers of the video provider.
3. A copy of the video provider's written policies and procedures relating to
customer service standards and the handling of customer complaints, as
required by Government Code §§ 53054, et seq. These customer service
standards must include, without limitation, 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.
c. Procedures for billing, charges, refunds, and credits.
O~inance 599
Page 17
d. Procedures for termination of service.
e.Notice of the deletion of a programming service, the changing
of channel assignments, or an increase in rates.
f. Complaint procedures and procedures for bill dispute
resolution.
g. The video provider's written commitment to distribute annually
to the City, and to its employees and customers, a notice
describing the customer service standards specified above in
subparagraphs (a) through (f). This annual notice must include
the report of the video provider on its performance in meeting
its customer service standards, as required by Government
Code § 53055.2.
4. Unless a video provider is exempt under federal law from its payment, a
registration fee in an amount established by resolution of the City Council
to cover the reasonable costs incurred by the City in reviewing and
processing the registration form.
5. In addition to the registration fee specified above in subsection (4), the
written commitment of the video provider to pay to the City, when due, all
costs and expenses reasonably incurred by the City in resolving any
disputes between the video provider and its subscribers, which dispute
resolution is mandated by Government Code § 53088.2(0).
C. The City Council may establish by ordinance a schedule of monetary
penalties for the material breach by a video provider of its obligations
under subparagraphs (a) through (n) of Government Code § 53088.2.
As used herein, the term "material breach" means any substantial and
repeated failure to comply with the consumer service standards set forth
in Government Code § 53088.2. The provisions of that ordinance must
be consistent with the provisions of Government Code § 53088.2. The
schedule of monetary penalties may also impose a penalty, as
authorized by Government Code § 53056(a), for the failure of a video
provider to distribute the annual notice required by Government Code
§ 53055.1, which penalty may not exceed $500 for each year in which
the notice is not distributed as required by state statute.
7.04.030 - Antennas For Telecommunications Services
The City's Zoning Code sets forth the regulatory requirements that apply to the
siting and construction of various categories of antennas that are commonly used
in providing or receiving telecommunications services.
Ordinance 599
Page 18
7.04.040 - Telecommunications Service Provided By Telephone Corporations
A. The City Council finds and determines as follows:
1. The federal Telecommunications Act of 1996 preempts and declares
invalid all state rules that restrict entry or limit competition in both local and
long-distance telephone service.
2. The California Public Utilities Commission ("CPUC") is primarily
responsible for the implementation of local telephone competition, and it
issues certificates of public convenience and necessity to new entrants
that are qualified to provide competitive local telephone exchange services
and related telecommunications service, whether using their own facilities
or the facilities or services provided by other authorized telephone
corporations.
3. Section 234(a) of the California Public Utilities Code defines a "telephone
corporation" as "every corporation or person owning, controlling,
operating, or managing any telephone line for compensation within this
state."
4. Section 616 of the California Public Utilities Code provides that a
telephone corporation "may condemn any property necessary for the
construction and maintenance of its telephone line."
5. Section 2902 of the California Public Utilities Code authorizes municipal
corporations to retain their powers of control to supervise and regulate the
relationships between a public utility and the general public in matters
affecting the health, convenience, and safety of the general public,
including matters such as the use and repair of public streets by any public
utility and the location of the poles, wires, mains, or conduits of any public
utility on, under, or above any public streets.
6. Section 7901 of the California Public Utilities Code authorizes telephone
and telegraph corporations to construct telephone or telegraph lines along
and upon any public road or highway, along or across any of the waters
or lands within this state, and to erect poles, posts, piers, or abatements
for supporting the insulators, wires, and other necessary fixtures of their
lines, in such manner and at such points as not to incommode the public
use of the road or highway or interrupt the navigation of the waters.
7. Section 7901.1 of the California Public Utilities Code confirms the right of
municipalities to exercise reasonable control as to the time, place, and
manner in which roads, highways, and waterways are accessed, which
control must be applied to all entities in an equivalent manner, and may
involve the imposition of fees.
8. Section 50030 of the California Government Code provides that any
permit fee imposed by a city for the placement, installation, repair, or
upgrading of telecommunications facilities, such as lines, poles, or
antennas, by a telephone corporation that has obtained all required
authorizations from the CPUC and the FCC to provide telecommunications
Ordinance 599
Page 19
services, must not exceed the reasonable costs of providing the service
for which the fee is charged, and must not be levied for general revenue
purposes.
B. In recognition of and in compliance with the statutory authorizations and
requirements set forth above in paragraph ^, the following regulatory
provisions are applicable to a telephone corporation that desires to
provide telecommunications service by means of facilities that are
proposed to be constructed within the City's public rights-of-way:
1. The telephone corporation must apply for and obtain, as may be
applicable, an excavation permit, an encroachment permit, or a building
permit ("ministerial permit.")
2. In addition to the information required by this Code in connection with an
application for a ministerial permit, a telephone corporation must submit
to the City the following supplemental information:
a. A copy of the certificate of public convenience and necessity
issued by the CPUC to the applicant, and a copy of the CPUC
decision that authorizes the applicant to provide the
telecommunications service for which the facilities are
proposed to be constructed in the City's public rights-of-way.
b. If the applicant has obtained from the CPUC a certificate of
public convenience to operate as a "competitive local carrier,"
the following additional requirements are applicable:
(i) As required by Decision No. 95-12-057 of the CPUC, the
applicant must establish that it has timely filed with the
City a quarterly report that describes the type of
construction and the location of each construction project
proposed to be undertaken in the City during the
calendar quarter in which the application is filed, which
information is sufficient to enable the City to coordinate
multiple projects, as may be necessary.
(ii) If the applicant's proposed construction project will
extend beyond the utility rights-of-way into undisturbed
areas or other rights-of-way, the applicant must establish
that it has filed a petition with the CPUC to amend its
certificate of public convenience and necessity and that
the proposed construction project has been subjected to
a full-scale environmental analysis by the CPUC, as
required by Decision No. 95-12-057 of the CPUC.
(iii) The applicant must inform the City whether its proposed
construction project will be subject to any of the
mitigation measures specified in the Negative
Declaration ["Competitive Local Carriers (CLCs) Projects
for Local Exchange Communication Service throughout
Ordinance 599
Page 20
California"] or to the Mitigation Monitoring Plan adopted
in connection with Decision No. 95-12-057 of the CPUC.
The City's issuance of a ministerial permit will be
conditioned upon the applicant's compliance with all
applicable mitigation measures and monitoring
requirements imposed by the CPUC upon telephone
corporations that are designated as "competitive local
carriers."
C. In recognition of the fact that numerous excavations in the public rights-
of-way diminish the useful life of the surface pavement, and for the
purpose of mitigating the adverse impacts of numerous excavations on
the quality and longevity of public street maintenance within the City, the
following policies and procedures are adopted:
1. The City Manager is directed to ensure that all public utilities, including
telephone corporations, comply with all local design, construction,
maintenance and safety standards that are contained within, or are related
to, a ministerial permit that authorizes the construction of facilities within
the public rights-of-way.
2. The City Manager is directed to coordinate the construction and
installation of facilities by public utilities, including telephone corporations,
in order to minimize the number of excavations in the public rights-of-way.
In this regard, based upon projected plans for street construction or
renovation projects, the City Manager is authorized to establish on a
quarterly basis one or more construction time periods or "windows" for the
. installation of facilities within the public rights-of-way. Telephone
corporations and other public utilities that submit applications for
ministerial permits to construct facilities after a predetermined date may
be required to delay such construction until the next quarterly "window"
that is established by the City.
D. The City reserves all rights that it now possesses or may later acquire
with respect to the regulation of any cable or telecommunications
service that is provided, or proposed to be provided, by a telephone
corporation. These reserved rights may relate, without limitation, to the
imposition of reasonable conditions in addition to or different from those
set forth in this section, the exaction of a fee or other form of
consideration or compensation for use of public rights-of-way, and
related matters; provided, however, that such regulatory rights and
authority must be consistent with federal and state law that is applicable
to cable or telecommunications services provided by telephone
corporations.
Ordinance 599
Page 21
CHAPTER 7.05 DEFINITIONS
7.05.010 - Defined Terms and Phrases
A. For the purposes of this Title 7, the words, terms, phrases, and their
derivations set forth in this chapter have the meanings set forth below.
Words used in the present tense include the future tense, and words in
the singular include the plural number.
"Cable Service"means the one-way transmission to
subscribers of video programming, or other programming
services, and subscriber interaction, if any, that is required
for the selection or use of that video programming or other
programming service. For the purposes of this definition,
"video programming" means programming provided by, or
generally considered comparable to programming provided
by, a television broadcast station; and "other programming
service" means information that a cable system operator
makes available to all subscribers generally.
"Cable System", or "Cable Communications System"
or "Cable Television System", means a facility,
consisting of a set of closed transmission paths and
associated signal generation, reception, and control
equipment that is designed to provide cable service that
includes video programming and that is provided to
multiple subscribers within a community. The term "cable
system" does not include:
(i) a facility that serves only to retransmit the television
signals of one or more television broadcast stations;
(ii) a facility that serves subscribers without using any public
right-of-way;
(iii) a facility of a common carrier that is subject, in whole or
in part, to the provisions of Title II of the
Telecommunications Act of 1996, except that such
facility will be considered a cable system (other than for
purposes specified in Section 621(c) of the 1984 Cable
Act) to the extent such facility is used in the transmission
of video programming directly to subscribers, unless the
extent of such use is solely to provide interactive on-
demand services;
(iv) an open video system that complies with Section 653 of
Title VI of the Telecommunications Act of 1996; or
Ordinance 599
Page 22
(v) any facilities of an electric utility that are used solely for
operating its electric utility system.
"Cable System Operator" means any person or group of
persons:
(i) who provides cable service over a cable system and
directly or through one or more affiliates owns a
significant interest in that cable system; or
(ii) who otherwise controls or is responsible for, through any
arrangement, the management and operation of that
cable system.
"City" means the City of Rancho Cucamonga as
represented by its City Council or by any delegate acting
within the scope of its delegated authority.
"__ CFR § __" means the Code of Federal
Regulations. Thus, the citation of"47 CFR 80.1" refers to
Title 47, part 80, section 1, of the Code of Federal
Regulations.
"Communications Act" means the Communications Act
of 1934 (47 U.S.C. §§ 153, et seq.), as amended by the
Cable Communications Policy Act of 1984, the Cable
Television Consumer Protection and Competition Act of
1992, and the Telecommunications Act of 1996.
"FCC" or "Federal Communications Commission"
means the federal administrative agency, or any lawful
successor, that is authorized to regulate
telecommunications services and telecommunications
service providers on a national level.
"Franchise" means an initial authorization, or the renewal
of an initial authorization, issued by the City Council,
whether such authorization is designated as a franchise,
permit, license, resolution, contract, certificate, agreement,
or otherwise, that authorizes the construction or operation
of a cable system.
O~inance 599
Page 23
"Franchise Fee" means any fee or assessment of any
kind that is authorized by state or federal law to be
imposed by the City on a Grantee as compensation in the
nature of rent for the Grantee's use of the public rights-of-
way. The term "franchise fee" does not include:
(i) Any tax, fee, or assessment of general applicability
(including any such tax, fee, or assessment imposed on
both utilities and cable operators or their services);
(ii) Capital costs that are required by the franchise to be
incurred by Grantee for public, educational, or
governmental access facilities;
(iii) Costs or charges that are incidental to the award or
enforcement of the franchise, including payments for
bonds, security funds, letters of credit, insurance,
indemnification, penalties, or liquidated damages; or
(iv) Any fee imposed under Title 17, United States Code.
"Franchise Service Area" or "Service Area" means the
entire geographic area of the City as it is now constituted,
or may in the future be constituted, unless otherwise
specified in the ordinance or resolution granting a
franchise, or in a franchise agreement.
"Grantee" means any person that is awarded a franchise
in accordance with this title, and that person's lawful
successor, transferee, or assignee.
"Gross Annual Cable Service Revenues" means the
annual gross revenues derived from the Grantee's
operations of its cable television system within the City,
excluding uncollected bad debt, refundable deposits,
rebates or credits, and further excluding any sales, excise,
or other taxes or charges that are required to be collected
for direct pass-through to the local, state or federal
government. Revenues identified and collected from
subscribers as franchise fees may not be excluded from a
Grantee's gross annual cable service revenues.
"Multichannel Video Programming Distributor" or
"Video Programming Distributor" means a person such
as, but not limited to, a cable system operator, a
Ordinance 599
Page 24
multichannel multipoint distribution service, a direct
broadcast satellite service, or a television receive-only
satellite program distributor, who makes available multiple
channels of video programming for purchase by
subscribers or customers.
"Open Video System" means a facility consisting of a set
of transmission paths and associated signal generation,
reception, and control equipment that is designed to
provide cable service, including video programming, and
that is provided to multiple subscribers within the City,
provided that the FCC has certified that such system
complies with 47 CFR § 1500 et seq., entitled "Open Video
Systems."
"Open Video System Operator" means any person or
group of persons who provides cable service over an open
video system and directly or through one or more affiliates
owns a significant interest in that open video system, or
otherwise controls or is responsible for the management
and operation of that open video system.
"Person" means an individual, partnership, association,
joint stock company, trust, corporation, or governmental
entity.
"Public, Educational or Government Access Facilities"
or "Peg Access Facilities", means the total of the
following:
(i) Channel capacity designated for noncommercial public,
educational, or government use; and
(ii) Facilities and equipment for the use of that channel
capacity.
"Subscriber" or "Customer" or "Consumer" means any
person who, for any purpose, subscribes to the services
provided by a multichannel video programming distributor
and who pays the charges for those services.
Ordinance 599
Page 25
"Street" or "Public Way" means each of the following that
has been dedicated to the public and maintained under
public authority or by others and is located within the City
limits: streets, roadways, highways, avenues, lanes,
alleys, sidewalks, easements, rights-of-way, and similar
public property that the City from time to time authorizes to
be included within the definition of a street.
"Telecommunications" means the transmission, between
or among points specified by the user, of information of the
user's choosing, without change in the form or content of
the information as sent and received.
"Telecommunications Equipment" means equipment,
other than customer premises equipment, used by a
telecommunications service provider to provide
telecommunications service, including software that is
integral to that equipment.
"Telecommunications Service" means the offering of
telecommunications directly to the public for a fee, or to
such classes of users as to be effectively available directly
to the public, regardless of the equipment or facilities that
are used.
"Telecommunications Service Provider" means any
provider of telecommunications service.
" U.S.C. § "means the United States Code.
Thus, the citation of "47 U.S.C. § 153" refers to Title 47,
section 153, of the United States Code.
"Video Programming Provider" means any person or
group of persons who has the right under the federal
copyright laws to select and to contract for the carriage of
specific video programming on an open video system.
"Video Provider" means any person, company, or service
that provides one or more channels of video programming
to a residence, including a home, condominium, apartment,
O~inance 599
Page 26
or mobilehome, where some fee is paid for that service,
whether directly or as included in dues or rental charges,
and whether or not public rights-of-way are used in the
delivery of that video programming. A "video provider"
includes, without limitation, providers of cable television
service, master antenna television, satellite master
antenna television, direct broadcast satellite, multipoint
distribution services, and other providers of video
programming, whatever their technology.
B. Unless otherwise expressly stated, words, terms, and phrases not
defined in this chapter will be given their meaning as used in Title 47 of
the United States Code, as amended, and, if not defined in that Code,
their meaning as used in Title 47 of the Code of Federal Regulations.
CHAPTER 7.06 VIOLATIONS; SEVERABILITY
7.06.010 - Violations; Enforcement
A. Any person who willfully violates any provision of this title is guilty of a
misdemeanor and is punishable as provided for in Chapter 1.12 of
Title 1 of this Code.
B. The misdemeanor penalty specified above in paragraph (A) is not
applicable to a violation of any provision of this title for which another
sanction or penalty may be imposed under any franchise, license, lease,
or similar written agreement between the City and a multichannel video
programming distributor or other telecommunications service provider.
C. The City may initiate a civil action in any court of competent jurisdiction
to enjoin any violation of this title.
7.06.020 - Severability
If any provision of this title is determined by any court of competent jurisdiction, or
by any federal or state agency having jurisdiction over its subject matter, to be
invalid and in conflict with any paramount federal or state law or regulation now or
hereafter in effect, or is determined by that court or agency to require modification
in order to conform to the requirements of that paramount law or regulation, then
that provision will be deemed a separate, distinct, and independent part of this title,
and such determination will not affect the validity and enforceability of any other
provisions. If that paramount federal or state law or regulation is subsequently
repealed or amended so that the provision of this title determined to be invalid or
subject to modification is no longer in conflict with that law or regulation, then that
provision will again become effective and will thereafter be binding on the City and
any affected telecommunications service provider; provided, however, that the City
must give the affected telecommunications service provider 30 days written notice
Ordinance 599
Page 27
of that change before requiring compliance with that provision, or such longer period
of time as may be reasonably required for the telecommunications service provider
to comply with that provision."
SECTION 3: The City Clerk is directed to certify to the passage and adoption of
this ordinance and to cause this ordinance to be published as
required by law.
PASSED, APPROVED, AND ADOPTED this 7th day of April, 1999.
AYES: Alexander, Biane, Curatalo, Dutton, Williams
NOES: None
ABSENT: None
William J./~exander,' Mayor
ATTEST:
I~ebYa J. Adam~.::MC, City Clerk
I, DEBRA J. ADAMS, CITY CLERK of the City of Rancho Cucamonga, California,
do hereby certify that the foregoing Ordinance was introduced at a regular meeting of the Council
of the City of Rancho Cucamonga held on the 17th day of March, 1999, and was finally passed at
a regular meeting of the City Council of the City of Rancho Cucamonga held on the 7th day of April,
1999.
Executed this 8th day of April, 1999, at Rancho Cucamonga, California.
I~eb"ra J. Adar~", CMC, City Clerk --