The term "cable system," as defined in federal law and as set forth in chapter
7.05, 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 uplink process
to the satellite. Local regulation of direct-to-home satellite services
is further proscribed by the following federal statutory provisions:
1. 47
USC 303(v) confers upon the FCC exclusive jurisdiction to regulate
the provision of direct-tohome 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 or fee 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.
(Code 1980, § 7.04.010; Ord. No. 599, § 2, 1999)
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.
B. All
video providers that are operating in the city on the effective date
of the ordinance codified in this title, or that intend to operate
in the city after the effective date of said 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.
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 subsections B.3.a
through f of this section. 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
(B)(4) of this section, 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(o).
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
Government Code § 53088.2(a) through (n). 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 $500.00 for each
year in which the notice is not distributed as required by state statute.
(Code 1980, § 7.04.020; Ord. No. 599, § 2, 1999)
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.
(Code 1980, § 7.04.030; Ord. No. 599, § 2, 1999)
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. Public
Utilities Code § 234(a) defines a "telephone corporation"
as "every corporation or person owning, controlling, operating,
or managing any telephone line for compensation within this state."
4. Public
Utilities Code § 616 provides that a telephone corporation
"may condemn any property necessary for the construction and
maintenance of its telephone line."
5. Public
Utilities Code § 2902 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. Public
Utilities Code § 7901 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. Public
Utilities Code § 7901.1 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. Government
Code § 50030 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 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 subsection
A of this section, 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:
(1) 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.
(2) 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.
(3) 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 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.
(Code 1980, § 7.04.040; Ord. No. 599, § 2, 1999)