30. Ordinance No. 09-2045 Cable ServicesDRAFT
ORDINANCE N0.09-2045
AN ORDINANCE OF THE CITY OF CUI'ERTINO AMENDING CHAPTER 6.28,
GOVERNING THE PROVISION OF CABLE SERVICES IN THE CITY, OF TITLE 6,
FRANCHISES, OF THE CUPIsRTINO MUNICIPAL CODE
Chapter 6.28 to Title 6 of the Cupertino Municipal Code shall be amended as
follows:
Title 6 FRANCHISES
Chapter b.28 GOVERNING THE PROVISION OF CABLE AND VIDEO
SERVICES IN THE CITY
6.28.010 Short title.
This chapter shall be known and may be cited as the City of Cupertino,
California Video Services Ordinance.
b.28.020 Intent and purposes.
A. It is the intent of the; city and the purpose of this chapter to
regulate video service providers holding state video franchises and
operating within the city.
b.28.030 Grant of authority-- Franci:-ise required.
A. No person may construct or operate a cable system or provide
video service in the city without having been issued a state ftanchise in
accordance with the California Public Utilities Code, Division 2.5
{commencing with Section 58(10) -The Digital Infrastructure and Video
Competition Act of 2006, and ;~s it may be amended. (Ord. 382 § 1 (part),
1991)
B. Any Person that has, been issued a state franchise ("a state
video franchise holder"} shall <;omply with all applicable provisions of #his
Chapter unless such provisions are specifically preempted by state law.
6.28.040 Police power.
A. A state video francluse holder shall at all times be subject to
and shall comply with all generally applicable laws. A state video
franchise holder shall at ail times be subject to all exercise of the police
power of the city.
B. Except as may be specifically provided in this chapter, the
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failure of the city, upon one or more occasions, to exercise a right or to
require compliance or performance under this chapter shall not be deemed
to constitute a waiver of such right or a waiver of compliance or
performance. (Ord. 382 § 1 (part), 1991)
b.28.050 Franchise fee and PEG fee.
A. Any state video franchise holder operating within the
boundaries of the city shall pay a fee to the city equal to five percent (5%)
of the gross revenue of that state video franchise holder.
B. Any state video franchise holder operating within the
boundaries of the city shall also pay the city a fee equal to one percent
(1 %) of the gross revenue of that state video franchise holder, which fee
shall be used by the city for any Public, Educational, and/or Governmental
(PEG) purposes consistent with state and federal law.
C. Any state video franchise holder that has held a locally issued
franchise agreement shall, consistent with Public Utilities Code § 5870,
continue to fully provide and support PEG channel facilities and
institutional networks and to provide cable services to community
buildings to the maximum extent permitted by law.
D. Gross revenue, for the purposes of A and B above, shall have
the definition set forth in California Public Utilities Code § 5860.
6.28.Ob0 Audit authority.
Not more than once annually, the City Manager or the City Manager's
designee may examine and perform an audit of the business records of a
holder of a state video franchise in accordance with California Public
Utilities Code § 5860, to ensure compliance with Section 6.28.050 above.
6.28.070 Customer service requirements.
A. A state. video franchise holder shall be subject to the City's
right to enforce compliance with all applicable state and federal customer
service and protection standards.
B. The a state video franchise holder shall be subject to the
following penalties and enforcement procedures for any material breach of
the provisions cited in subparagraph 6.28.070 A above:
1. The City shall provide a state video franchise holder with
written notice of any alleged material breach and shall allow thirty
(30) days from the date of receipt of said notice for a video service
provider to remedy the specified material breach. A "material
breach" shall mean any substantial and repeated failure of a video
service provider to comply with service quality and other specified
standards referenced in subparagraph 6.28.150 A above. A video
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service provider shall not be subject to penalties or held in breach
when the alleged material breach was caused by an act of god or
events beyond the reasonable control of the video service provider.
2. If the specified material breach is not remedied with thirty (30}
days, the City shall have the right to impose a monetary penalty of
five hundred dollars ($`~00) per day for each material breach not to
exceed one thousand five hundred dollars {$1500) for each
occurrence of a material breach.
3. If a material breach lias occurred, and the city has provided
notice and a fine or penalty has been assessed, and if a subsequent
material breach of the same nature occurs within 12 months, the
penalty shall be one thousand dollars ($1,000) for each day of each
material breach, not to exceed three thousand dollars ($3,000) for
each occurrence of the material breach. If a third or further
material breach of the same nature occurs within those same 12
months, and the city ha:> provided notice and a fine or penalty has
been assessed, the penalty shall be increased to a maximum of two
thousand five hundred dollars ($2,500) for each day of each
material breach, not to c;xceed seven thousand five hundred dollars
($7,500} for each occurrence of the material breach.
4. A material breach for the purposes of assessing penalties shall
be deemed to have occurred for each day, following the expiration
of the thirty (30) day notice period, that any material breach has
not been remedied by the video service provider, irrespective of
the number of customers affected.
5. Any interested person may seek judicial review of a decision of
the city pursuant to section 6.28.1 SO B in a court of appropriate
jurisdiction. For this purpose, a court of law shall conduct a de
novo review of any issues presented. -
6. The state video service franchise holder may appeal any finding
of material breach or imposition of penalties to the city council.
Any appeal must be made within ten (10) calendar days of receipt
by the state video service franchise holder of the finding of
material breach or the imposition of penalties, and must be
submitted in writing to the city clerk and the city manager in order
to be placed on a city council agenda for consideration. Any appeal
must contain a detailed explanation of why the appellant believes
that the finding of material breach or the imposition of penalties
was inconsistent with statutory requirements.
7. The city and any state video service franchise holder may
mutually agree to extend the time periods specified herein. Any
such agreement shall be: in writing and executed by the city
manager and an authorized representative of the state video
franchise holder.
8. Any penalty imposed on a state video franchise holder shall be
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paid to the city. As provided for in section 5900(g) of the
California Public Utilities Code, the city shall submit one half of
all penalties received from a state video franchise holder to the
Digital Divide Account established by section 280.5 of the
California Public Utilities Code.
6.28.080 Use of streets.
A. To the maximum extent permitted under state and federal law,
a state video franchise holder shall obtain any required permits and shall
otherwise comply with all applicable city code requirements governing
use of the public rights-of--way.
B As provided by section 5885 of the California Public Utilities
Code, the city shall either approve or deny an application from a state
video service franchise holder far an encroachment permit within sixty
(60) days of receiving a completed application.
1. For purposes of this section, an "encroachmen# permit" means
any permit issued by the City relating to construction or operation
of facilities relating to the provision of video service under a state
video service franchise.
2. An application for an encroachment permit is considered
complete when the applicant has complied with all statutory
requirements for such an application, including those of the
California Environmental Quality Act, Public Resources Code
sections 21000 et seq., applicable provisions of this chapter, and
other applicable ordinances of the city.
3. Any city denial of an application for an encroachment pernait
shall be in writing and shall contain a detailed explanation of the
reason for the denial.
4. An applicant whose application for an encroachment permit has
been denied may appeal the denial in the manner specified in
Chapter 1.16 of this code.
Section 2. Severability. If any section, subsection, sentence, clause of phrase of
the Ordinance is for any reason held to be invalid, such decision shall not affect the
validity of the remaining provisions of this Ordinance. The City Council hereby declares
that it should have adopted the Ordinance and each section, subsection, sentence, clause
or phrase thereof, irrespective of the fact that any one or more sections, subsections,
sentences, clauses or phrases be declared unconstitutional.
Section 3. Taking Effect. This Ordinance shall take effect and be in force thirty
(30) days from and after its adoption.
Section 4. Posting. Within fifteen {15) days after the adoption of this Ordinance,
the City Clerk shall have it posted in three (3) public places designated by the City
Council.
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Publication Clause
The City Clerk shall cause this ordinance to be published at least once in a
newspaper of general circulation, published and circulated in the City within 15 days
after its adoption, in accordance with Government Code Section 3b933, and shall certify
to the adoption of this ordinance and shall cause this ordinance and her certification,
together with proof of publication, to be entered in the Book of Ordinances of the Council
of this City.
INTRODUCED at a regular meeting of the Cupertino City Council the 16th day
of June and ENACTED at a regular meeting c-f the Cupertino City Council the 7th day of
July 2009 by the following vote:
Vote: Members of the City Council
Ayes:
Noes:
Absent:
Abstain:
ATTEST:
City Clerk
APPROVED:
I1Qayor, City of Cupertino
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