It is the purpose of this chapter to implement within the jurisdictional boundaries of the city of Solvang the provisions of the Digital Infrastructure and Video Competition Act of 2006, Assembly Bill 2987 (ch. 700, stats. 2006), codified at Public Utilities Code section 5800 et seq., and the rules of the California Public Utilities Commission promulgated thereunder that are applicable to a "local franchising entity" or a "local entity" as defined in section 5830(j) and (k) of the California Public Utilities Code, respectively. Consistent with that purpose, the provisions of this chapter are to be construed in a manner that is consistent with the California Public Utilities Code.
(Ord. 08-273, 2008)
For the purposes of this chapter the following words, terms, phrases, and abbreviations and their similar formulations shall have the meanings given them in this chapter. Words not defined in this chapter shall have the same meaning as established in: (1) DIVCA, and, if not defined therein; (2) commission rules implementing DIVCA, and, if not defined therein; (3) title VI of title 47 of the United States Code, and, if not defined therein; (4) the definitions established in sections 1-2-1 through 1-2-3 inclusive of this code, and, if not defined therein; (5) their common and ordinary meaning. References to governmental entities (whether persons or entities) shall refer to those entities or their successors in authority. If a specific provision of law referred to in this chapter should be renumbered, then the reference shall be read to refer to the renumbered provision. References to any law shall be interpreted broadly to cover government actions, however nominated, including any law now in force or subsequently enacted or amended.
Access, Peg Access, or Peg Use.
The availability of cable system or video service provider network capacity for public, educational or governmental use by various agencies, institutions, organizations, groups, and individuals, including the city and its designated access providers, to acquire, create and distribute programming not under a cable operator's or video service provider's editorial control, including, but not limited to:
1. 
Educational Access or Educational Use.
Access where accredited educational institutions are the primary or designated programmers or users having editorial control over their programming;
2. 
Governmental Access or Governmental Use.
Access where governmental institutions or their designees are the primary or designated programmers or users having editorial control over their programming; and
3. 
Public Access or Public Use.
Access where organizations, groups or individual members of the general public, on a nondiscriminatory basis, are the primary or designated programmers or users having editorial control over their programming.
Cable Coordinator.
The city manager or the individual(s) designated by the city manager to administer oversight of state franchisees in the city.
Channel.
A portion of the electromagnetic frequency spectrum which is used in a cable system or the network of a video service provider and which is capable of delivering a television signal whether in an analog or digital format. This definition does not restrict the use of any channel to the transmission of analog television signals.
Commission.
The California Public Utilities Commission.
Divca.
The Digital Infrastructure and Video Competition Act of 2006, Assembly Bill 2987 (ch. 700, stats. 2006), and as that Act may hereafter be amended.
EAS.
Emergency alert system.
FCC.
The Federal Communications Commission.
PEG.
Public, educational and governmental access.
Public Property.
Any property that is owned or under the control of the city that is not located in the public rights-of-way, including, for purposes of this chapter, but not limited to, buildings, parks, and pole structures, such as utility poles and light poles, or similar facilities or property owned by or leased to the city.
Public Rights-of-Way.
The surface of and the space above and below any street, road, highway, freeway, bridge, lane, path, alley, court, sidewalk, parkway, drive, or right-of-way or easement primarily dedicated to travel, now or hereafter existing within the city which may be properly used for the purpose of installing, constructing, operating, maintaining, and repairing a cable system or a video service provider's network; and any other property that a state franchisee is entitled by California or federal law to use by virtue of the grant of a state franchise.
State Franchisee.
Any video service provider that has been granted a state franchise by the commission whose video service area includes all or any part of the incorporated limits of the city.
Video Service Provider.
Has the meaning set forth in DIVCA and, in addition, refers collectively to any cable operator, video service provider or OVS operator as defined in DIVCA.
(Ord. 08-273, 2008; Ord. 09-282, 2009)
A. 
No person may construct, operate, maintain or repair a cable system or video service provider's network in the city without first obtaining a state franchise therefor.
B. 
A state franchise shall not convey rights other than as specified in this chapter or in DIVCA or other applicable law; no rights shall pass by implication.
C. 
Except as otherwise provided by DIVCA, a state franchise shall not include, or be a substitute for:
1. 
Compliance with generally applicable requirements for the privilege of transacting and carrying on a business within the city, including, but not limited to, compliance with the conditions that the city may establish before facilities may be constructed for, or providing nonvideo services;
2. 
Any permit or authorization, other than a state franchise, required in connection with operations on or in public rights-of-way or public property; and
3. 
Any permit, agreement or authorization for occupying any other property of the city or private persons to which access is not specifically granted by the state franchise.
D. 
Except as otherwise provided in DIVCA, a state franchise shall not relieve a franchisee of its duty to comply with all laws, including laws of the city, and every state franchisee shall comply with the same. The city reserves its rights to the lawful exercise of police and other powers the city now has or may later obtain.
E. 
The city reserves the right to construct, operate, maintain or repair its own cable system or video service provider network.
(Ord. 08-273, 2008)
A. 
The city may from time to time adopt rules and regulations to implement the provisions of this chapter consistent with DIVCA.
B. 
The cable coordinator is hereby authorized to administer this chapter and to provide or cause to be provided any notices (including noncompliance notices) and to take any action on behalf of the city that may be required under this chapter, DIVCA, or under applicable law.
C. 
The failure of the city, upon one or more occasions, to exercise a right or to require compliance or performance under this chapter or any other applicable law shall not be deemed to constitute a waiver of such right or a waiver of compliance or performance, unless such right has been specifically waived in writing or its exercise by the city is not permitted by DIVCA.
D. 
The city may designate one or more entities, including itself, to control and manage the use of PEG access channels, and any PEG facilities and equipment owned, controlled or used by the city or the designated entity or entities.
(Ord. 08-273, 2008)
A video service provider within the city, in its use of public rights-of-way and public and private property, shall comply with all encroachment and other permitting requirements and shall be considered a "utility" for purposes of title 8, chapter 6, "Underground Utility Districts," of this code, and shall abide by those provisions applicable to utilities.
(Ord. 08-273, 2008)
A. 
Every state franchisee operating within the boundaries of the city shall pay a franchise fee to the city in the amount of 5% of that state franchisee's gross revenues derived from the operation of its network to provide cable or video services within the city.
B. 
For purposes of this chapter, "gross revenue" shall have the meaning set forth in California Public Utilities Code section 5860.
C. 
A state franchisee shall remit the franchise fee to the city quarterly, within 45 days after the end of each calendar quarter. Each payment shall be accompanied by a summary explaining the basis for the calculation of the franchise fee.
D. 
If a state franchisee fails to pay the franchise fee when due, or underpays the proper amount due, the state franchisee shall pay a late payment charge at an annual interest rate equal to the highest prime lending rate during the period of delinquency, plus 1%.
(Ord. 08-273, 2008)
A. 
PEG Channel Capacity.
1. 
A state franchisee that has been authorized by the California Public Utilities Commission to provide video service in the city shall designate and activate three PEG channels within three months from the date that the city requests that the state franchisee designate and activate these PEG channels. However, this three month period shall be tolled for such a period, and only for such a period, during which the state franchisee's ability to designate or provide such PEG capacity is technically infeasible, as set forth in section 5870(a), (c) and (h) of the California Public Utilities Code.
2. 
A state franchisee shall provide an additional PEG channel when the standards set forth in California Public Utilities Code section 5870(d) are satisfied by the city or any entity designated by the city to be responsible for PEG.
B. 
PEG Support.
1. 
Amount of PEG Support Fee.
a. 
Any state franchise holder operating within the city shall pay to the city, or if directed by the city, pay to the city's designated PEG provider a PEG fee equal to 1% of gross revenues.
b. 
The PEG support fee shall be used for PEG purposes that are consistent with state and federal law.
c. 
A state franchisee shall remit the PEG support fee to the city or to the city's designated PEG provider quarterly, within 45 days after the end of each calendar quarter. Each payment made shall be accompanied by a report, detailing how the PEG support fee was calculated.
d. 
If a state franchisee fails to pay the PEG support fee when due, or underpays the proper amount due, the state franchisee shall pay a late payment charge at the rate per year equal to the highest prime lending rate during the period of delinquency, plus 1%.
C. 
PEG Carriage and Interconnection.
1. 
State franchisees shall ensure that all PEG channels are receivable by all subscribers, whether they receive digital or analog service, or a combination thereof, without the need for any equipment other than that needed to receive the lowest cost tier of service. PEG access capacity provided by a state franchisee shall be of similar quality and functionality to that offered by commercial channels on the state franchisee's lowest cost tier of service unless the PEG signal is provided to the state franchisee at a lower quality or with less functionality.
2. 
If a state franchisee and an incumbent cable operator cannot reach a mutually acceptable interconnection agreement for PEG carriage, the city shall require the incumbent cable operator to allow the state franchisee to interconnect its network with the incumbent cable operator's network at a technically feasible point on the state franchisee's network as identified by the state franchisee. If no technically feasible point of interconnection is available, the state franchisee shall make interconnection available to the PEG channel originator and shall provide the facilities necessary for the interconnection. The cost of any interconnection shall be borne by the state franchisee requesting the interconnection unless otherwise agreed to by the parties.
(Ord. 08-273, 2008)
A. 
Not more than once annually, the city or its designee may examine and audit the business records of a state franchisee to ensure compliance with the franchise fee and any PEG fee payment obligations imposed by law.
B. 
A state franchisee shall keep all business records reflecting any gross revenues, even if there is a change in ownership of the state franchisee, for at least four years after such gross revenues are recognized by the state franchisee on its books and records. In the case of subscriber numbers used for calculating the PEG fee, a state franchisee shall keep data on the number of its subscribers in the city, even if there is a change in ownership of the state franchisee, for at least four years after the close of each calendar quarter on which the PEG fee is to be paid.
C. 
To the extent consistent with DIVCA and other applicable law, the city may request, and a state franchisee shall provide, information and books and records to the extent necessary to monitor a state franchisee's compliance with this chapter.
(Ord. 08-273, 2008; Ord. 09-282, 2009)
A state franchisee may not discriminate against or deny access to service to any group of potential subscribers because of income of the residents in the area in which the group resides. The city may bring complaints to the commission that a state franchisee is not offering video service as required by California Public Utilities Code section 5890.
(Ord. 08-273, 2008)
A. 
A state franchisee shall comply with California Government Code sections 53055, 53055.1, 53055.2 and 53088.2; the FCC customer service and notice standards set forth in 47 CFR sections 76.309, 76.1602, 76.1603 and 76.1619; California Penal Code section 637.5; the privacy standards of 47 USC section 551; and all other applicable state and federal customer service and consumer protection standards pertaining to the provision of video service, including any such standards hereafter adopted. In case of a conflict, the stricter standard shall apply. All customer service and consumer protection standards under this subsection shall be interpreted and applied to accommodate newer or different technologies while meeting or exceeding the goals of the standards.
B. 
The cable coordinator shall monitor the compliance of state franchisees with respect to the state and federal customer service and consumer protection standards set forth in subsection A of this section. The cable coordinator will provide a state franchisee with written notice of any material breaches of applicable customer service or consumer protection standards, and will allow the state franchisee 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 fines established by resolution of city council, not to exceed the limits set forth in California Government Code section 53088.2, subsection (r) and Penal Code section 637.5.
C. 
A state franchisee may appeal a penalty assessed by the cable coordinator 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.
(Ord. 08-273, 2008)
A state franchisee shall comply with the EAS requirements of the FCC in order that emergency messages may be distributed over the state franchisee's network.
(Ord. 08-273, 2008)
All notices and copies of documents that DIVCA requires to be provided to the city, as a local entity or a local franchising entity, shall be addressed to the city manager, attention: cable coordinator.
(Ord. 08-273, 2008)
A. 
The captions to sections throughout this chapter are intended solely to facilitate reading and reference to the sections and provisions of this chapter. Such captions shall not affect the meaning or interpretation of this chapter.
B. 
Unless otherwise indicated, when the performance or doing of any act, duty, matter, or payment is required under this chapter, and a period of time or duration for the fulfillment of doing thereof is prescribed and is fixed herein, the time shall be computed so as to exclude the first and include the last day of the prescribed or fixed period of time.
C. 
If any term, condition, or provision of this chapter shall, to any extent, be held to be invalid or unenforceable by a valid order of any court or regulatory agency of competent jurisdiction, the remainder hereof shall be valid in all other respects and continue to be effective. In the event of a subsequent change in applicable law that renders valid the provision that had been held invalid that provision shall thereupon return to full force and effect without further action by the city and shall thereafter be binding on the state franchisee and the city.
(Ord. 08-273, 2008)