This chapter applies to all cable service or video service providers
who are applying for, or have been awarded, a franchise under CPUC
Section 5800 et seq., the Digital Infrastructure and Video Competition
Act of 2006 ("DIVCA"), to serve any area within the City of Bell,
including cable service or video service providers who are otherwise
subject to DIVCA. By this chapter the City of Bell intends to exercise
to the fullest extent possible all rights and privileges afforded
to it by DIVCA and any other applicable law.
(Ord. 1230 § 2, 2018)
For purposes of this chapter, the following terms, phrases,
words, and their derivations shall have the meaning given in this
section. Unless otherwise expressly stated, words not defined in this
chapter shall be given the meaning set forth in California Public
Utilities Code Section 5800 et seq., as amended from time to time.
When not inconsistent with the context, words used in the present
tense include the future, words in the plural number include the singular
number, words in the singular number include the plural number, and
"including" and "include" are not limiting. The word "shall" is always
mandatory.
means the availability of a cable or video system for public,
educational, or governmental use by various agencies, institutions,
organizations, groups, and individuals, including the City of Bell
and its exclusive city use channels or any existing agreement between
the city and any incumbent cable operator, to acquire, create, and
distribute programming not under a state franchise holder's editorial
control.
means the City of Bell, California.
means the city council of the City of Bell, California.
means the city manager of the City of Bell, California or
designee.
means the California Public Utilities Code.
means the Digital Infrastructure and Video Competition Act
of 2006, Public Utility Code Section 5800 et seq.
means all revenues actually received by the holder of a state
franchise that are derived from the operation of the holder's network
to provide cable service or video service within the unincorporated
areas of the county, subject to the specifications of California Public
Utilities Code Section 5860.
shall have the definition set forth in California Public
Utilities Code Section 5900(j).
shall refer to public, educational and governmental access
operations as addressed in California Public Utilities Code Section
5870, as may be amended from time to time.
shall mean the State of California.
means any person or group of persons who has been issued
a franchise by the California Public Utilities Commission to provide
cable service or video service, as those terms are defined in Public
Utilities Code Section 5830, within any portion of the City of Bell.
(Ord. 1230 § 2, 2018)
Any state franchise holder operating within the city shall pay
to the city a state franchise holder fee equal to five percent of
gross revenues, as defined in this chapter and applicable law, unless
a different amount is otherwise payable according to applicable law
or resolution adopted by the city council. Nothing in this section
is intended to limit the city's ability to impose utility user taxes
and other generally applicable taxes, fees and charges that are applied
in a nondiscriminatory and competitively neutral manner.
(Ord. 1230 § 2, 2018)
Any state franchise holder operating within the city shall pay
to the city a PEG fee equal to one percent of gross revenues, as defined
in this chapter and applicable law, unless a different amount is payable
in accordance with applicable law or resolution adopted by the city
council.
(Ord. 1230 § 2, 2018)
A.
The
state franchise holder shall pay quarterly all fees required pursuant
to this chapter in a manner consistent with CPUC Section 5860. The
state franchise holder shall deliver to the city by check or other
means agreeable to the city manager, a separate payment for the state
franchise holder fee and the PEG fee not later than 45 days after
the end of each calendar quarter. Each payment made shall be accompanied
by a report to the city manager detailing how the payment was calculated,
and shall include such additional information on appropriate forms
as may be determined by the city manager.
B.
No acceptance
of any payment shall be construed as a release or as an accord and
satisfaction of any claim the city may have for further or additional
sums payable under this chapter or for the performance of any other
obligation under this chapter.
(Ord. 1230 § 2, 2018)
The city manager may examine and perform an audit of the business records at his or her discretion of any franchise holder to ensure compliance with Sections 5.86.030 and 5.86.040 of this code or any other fee or tax as permitted by law in a manner not inconsistent with CPUC Section 5860(i).
(Ord. 1230 § 2, 2018)
In the event a state franchise holder fails to make any payment
required by this chapter on or before the due dates specified in this
chapter, the city shall impose a late charge at the rate per year
equal to the highest prime lending rate during the period of delinquency,
plus one percent unless a different rate is set by applicable law
or resolution adopted by the city council.
(Ord. 1230 § 2, 2018)
To the extent not inconsistent with CPUC Section 5840(q)(2)(B),
in the event a state franchise holder desires to lease access to city
property or to a network owned or controlled by the city, the city
may set terms and charge a fee for access to the property or city
network separate and apart from any franchise fee or other fee charged
to the state franchise holders pursuant to this chapter or DIVCA.
The city council may set any such fee by resolution.
(Ord. 1230 § 2, 2018)
Each state franchise holder shall comply with all applicable
customer service and consumer protection standards, including, to
the extent not inconsistent with CPUC Section 5900, all existing and
subsequently enacted customer service and consumer protection standards
established by applicable local, state or federal law and regulation.
(Ord. 1230 § 2, 2018)
A.
The
city shall monitor compliance with and enforce the provisions of this
chapter and DIVCA.
B.
The
city manager will provide to the state franchise holder written notice
of any material breaches of applicable customer service and protection
standards, and will allow the state franchise holder 30 days from
receipt of the notice to remedy the specified material breach.
C.
For
any material breach, as defined in CPUC Section 5900(j), by a state
franchise holder of applicable customer service and protection standard
not remedied within 30 days from receipt of written notice of material
breach, the city manager, in his or her sole discretion, may impose
the following fines or penalties:
1.
For
the first occurrence of a material breach, a fine of five hundred
dollars($500.00) shall be imposed for each day the violation remains
in effect, not to exceed $1,500 for each violation.
2.
For
a second material breach of the same nature within 12 months, a fine
of $1,000 shall be imposed for each day the violation remains in effect,
not to exceed $3,000 for each violation.
3.
For
a third or further material breach of the same nature within 12 months,
a fine of $2,500 shall be imposed for each day the violation remains
in effect, not to exceed $7,500 for each violation.
D.
A state
franchise holder may appeal a monetary penalty within 60 days after
it is assessed by the city manager. After relevant evidence and testimony
is received, and staff reports are submitted, the city council will
either uphold or vacate the monetary penalty. The city council's decision
on the imposition of a monetary penalty shall be final.
E.
Any
penalties imposed by the city shall be imposed in a manner not inconsistent
with CPUC Section 5900.
F.
To the
extent not inconsistent with CPUC Section 5900, the city acting through
its city manager in its sole discretion may waive, modify, or defer
the imposition of a penalty.
(Ord. 1230 § 2, 2018)
Except as expressly provided in this chapter, the provisions
of this chapter and the Bell Municipal Code shall apply to all work
performed by or on behalf of a state franchise holder upon, above
or below any street, highway, sidewalk, parkway, alley or other public
right-of-way of any kind whatsoever within the city.
A.
Any
poles, wires, cable lines, conduits or other properties of the state
franchise holder to be constructed or installed in streets shall be
so constructed or installed only at such locations and in such manner
as shall be approved by the city manager acting in the exercise of
his or her reasonable discretion.
B.
The
state franchise holder shall not install or erect any facilities or
apparatus in or on other public property, places or rights-of-way,
or within any privately owned area within the city which has not yet
become a public street but is designated or delineated as a proposed
public street on any tentative subdivision map approved by the city,
except those installed or erected upon public utility facilities now
existing, without obtaining the prior written approval of the city
manager.
C.
In those
areas and portions of the city where the transmission or distribution
facilities of both the public utility providing telephone service
and those of the utility providing electric service are underground
or hereafter may be placed underground, then the state franchise holder
shall likewise construct, operate and maintain all of its transmission
and distribution facilities underground. For the purpose of this subsection,
"underground" shall include a partial underground system, e.g., streamlining.
Amplifiers in the franchise holder's transmission and distribution
lines may be in appropriate housing upon the surface of the ground
as approved by the city manager.
(Ord. 1230 § 2, 2018)
A.
Prior to commencing any work, a state franchise holder shall apply for and obtain all necessary permits in accordance with the provisions of this chapter, Chapters 12.04 and 12.08, and shall comply with all other applicable laws and regulations, including, but not limited to, all applicable requirements of Public Resources Code Section 21000 et seq. (the California Environmental Quality Act), and the Bell Municipal Code.
B.
The
city manager shall either approve or deny a state franchise holder's
application for any permit required under this chapter in accordance
with the Bell Municipal Code within 60 days of receiving a completed
application.
C.
If the
city manager denies a state franchise holder's application for a permit,
the city manager shall, at the time of notifying the applicant of
denial, furnish to the applicant an explanation of the reason or reasons
for the denial in accordance with the terms of the Bell Municipal
Code and other applicable law.
D.
A state
franchise holder that has been denied a permit by final decision of
the city manager may appeal the denial to the city council in accordance
with the following procedures:
1.
No
notice of appeal will be processed unless filed within 10 days after
service of written notice of the decision from which the appeal is
taken; provided that if written notice of the decision has not been
served, the appellant may, within 10 days after being apprised of
that decision, demand service of written notice and will have 10 days
following that service in which to file the notice of appeal.
2.
The
notice of appeal must specify the specific decision from which the
appeal is taken, the specific grounds for the appeal, and the relief
or action requested from the city council.
3.
The
notice of appeal must be accompanied by all required fees and filings
in accordance with the terms of the Bell Municipal Code and other
applicable law.
4.
Upon
the timely filing of a notice of appeal in proper form, the city clerk
will schedule the matter for hearing by the city council at a regular
meeting, but not later than 45 days after receipt of the notice of
appeal. The city clerk will cause the notice of hearing to be given
to the appellant not less than 10 days prior to the hearing, unless
that notice is waived in writing by the appellant. The city clerk
will also cause a copy of the notice of appeal and the hearing to
be transmitted to the city official or body whose decision is being
appealed.
5.
At
the time of consideration of the appeal by the city council, the appellant
will be limited to a presentation on the specific grounds of appeal
and related matters set forth in its notice of appeal. The appellant
will have the burden of persuading the city council that the decision
appealed from should be reversed or modified.
6.
The
city council may continue the hearing on the appeal from time to time
as may be deemed necessary. The city council may, by resolution, affirm,
reverse, or modify, in whole or in part, the decision appealed from
and may take any action that might have been taken in the first instance
by the city official or body from whose decision the appeal has been
taken.
7.
The
decision of the city council will be deemed final and conclusive upon
adoption of the resolution. A copy of the resolution adopted by the
city council will be served upon the appellant by placement in the
United States mail, postage prepaid, to the appellant's last known
address.
E.
A state
franchise holder whose permit has been revoked may appeal that decision
in accordance with the terms of subsection (D)(7), whose procedures
and terms shall also govern the revocation and appeal.
(Ord. 1230 § 2, 2018)
The work of constructing, laying, replacing, maintaining, repairing, abandoning, or removing all property and appurtenances of the state franchise holder in, over, under, along, or across any city right-of-way as defined in Chapters 12.04 and 12.08, shall be done to the satisfaction of the city manager and at the expense of the state franchise holder, and in accordance with the terms and conditions of the Bell Municipal Code.
(Ord. 1230 § 2, 2018)
A.
Any
permittee under this chapter shall at its own expense protect, support
temporarily, disconnect, relocate in the same street, alley or public
place, or remove from any street, alley or public place, any property
of the permittee when required by the city manager by reason of traffic
conditions, public safety, street vacation, freeway and street construction,
change or establishment of street grade, installation of sewers, drains,
water pipes, power lines, traffic signals and tracks or any other
type of structures or improvements by governmental agencies when acting
in a governmental or proprietary capacity or any other structures
or public improvements; provided, that the permittee shall, in all
such cases, have the privileges and be subject to the obligations
to abandon any property of the permittee in place. Upon failure of
the permittee to complete any work required by law or by the provisions
of this chapter to be done in any street, within the time prescribed,
and to the satisfaction of the city manager, the city manager may
cause such work to be done and the permittee shall pay to the city
the cost thereof in the itemized amounts reported by the city manager
to the permittee, within 30 days after receipt of such itemized report.
B.
Notwithstanding subsection A, above, in the event that an existing utility line or associated equipment is in conflict with a city use, said utility shall be required to move its lines or equipment at its sole costs, in accordance with governing law or franchise.
C.
In accordance with the terms of Chapters 12.04 and 12.08, the city reserves the right to change the grade, change the width, or alter or change the location of any City right-of-way. If any franchise holder's property or appurtenances is installed or maintained by the state franchise holder on, along, under, over, in, upon, or across any public right-of-way in a manner which prevents or interferes with any alteration or other change of grade, traffic needs, operation, maintenance, improvement, repair, construction, reconstruction, widening, or relocation of the right-of-way, or any work or improvement upon the right-of-way, the state franchise holder shall relocate any such property or appurtenances to the satisfaction of the city manager at no expense to the city upon receipt of a written request from the city manager to do so and in accordance with the terms of the Bell Municipal Code. Should the state franchise holder neglect or fail to relocate its facilities in a timely manner after receipt of any such notice, the state franchise holder shall be responsible for and shall reimburse the city for any and all costs or expenses incurred by city due to or arising from the failure to relocate the facilities.
D.
The
city reserves the right to lay, construct, repair, alter, relocate,
and maintain subsurface or other facilities or improvements of any
type or description in a governmental but not proprietary capacity
within the right-of-way over which the franchise is granted. If the
city finds that the location or relocation of such facilities or improvements
conflicts with the property or appurtenances laid, constructed, or
maintained by the state franchise holder, whether such property was
laid, constructed, or maintained before or after the facilities of
the city were laid, the state franchise holder shall at no expense
to the city, on or before the date specified in a written request
from the city manager, commence work to change the location as required
by the city manager. Should the state franchise holder neglect or
fail to relocate its facilities within the period specified in any
such notice, the state franchise holder shall be responsible for and
shall reimburse the city for any and all additional costs or expenses
incurred by the city due to the failure to relocate the facilities.
(Ord. 1230 § 2, 2018)
A.
In the
event that the use of any part of the state franchise is discontinued
for any reason for a continuous period of 12 months, or in the event
such system or property has been installed in any street or public
place without complying with the requirements of DIVCA or this chapter,
or the franchise has been terminated, canceled or has expired, the
state franchise holder shall promptly, upon being given 10 days' notice,
remove from the street or public places all such property and poles
of such system other than any which the city manager may permit to
be abandoned in place. In the event of such removal, the state franchise
holder shall promptly restore the street or other area from which
such property has been removed to a condition satisfactory to the
city manager.
B.
Any
property of the state franchise holder remaining in place 30 days
after the termination or expiration of the franchise shall be considered
permanently abandoned. The city manager may extend such time, not
to exceed an additional 30 days.
C.
Any
property of the state franchise holder to be abandoned in place shall
be abandoned in such manner as the city manager shall prescribe. Upon
permanent abandonment of the property of the state franchise holder
in place, the property shall become that of the city, and the state
franchise holder shall submit to the chief administrative officer
an instrument in writing, to be approved by the city attorney, transferring
to the city the ownership of such property.
(Ord. 1230 § 2, 2018)
A.
Prior
to any construction activity related to any cable service or video
service, a state franchise holder shall provide public notification
as provided for in the Bell Municipal Code or as otherwise required
by the city manager or applicable law.
B.
To the
extent practicable, equipment placed on private property shall be
placed at the location requested by the property owner. A state franchise
holder shall provide the private property owner with reasonable advance
written notice of its plans to install equipment, and shall obtain
express written consent from the private property owner before installing
any equipment. The state franchise holder shall notify the property
owner, in writing, that the property owner is not obligated to agree
to the placement of equipment on the property or to enter into any
agreement with the state franchise holder. Should a property owner
notify the state franchise holder of his or her objection to any placement
of equipment, the state franchise holder shall confer with the city
manager regarding appropriate location and placement of such equipment.
(Ord. 1230 § 2, 2018)
Employees, agents, contractors, and subcontractors of any state
franchise holder shall at all times be properly identified as employees
or agents of the state franchise holder while performing any work
or other activity within the city on behalf of the state franchise
holder. Identification shall include the name of the employee or agent.
The name and telephone number of the state franchise holder shall
appear on all trucks and vehicles used by such personnel.
(Ord. 1230 § 2, 2018)
A.
Each state franchise holder shall comply with all applicable construction requirements of Chapters 12.04 and 12.08 and shall undertake all necessary and appropriate means to protect and preserve health and safety, including complying with all construction requirements of the Bell Municipal Code or as otherwise required by the city manager.
B.
Any
above or below ground utility conduit, structure or devices permitted
under this chapter to be constructed or installed in streets or public
easements shall be so constructed, installed and maintained only in
conformity with this code and any other ordinances, resolutions, rules
and regulations adopted by the city council, at such locations and
in such manner as shall be approved by the city manager acting in
the exercise of his or her reasonable discretion. Plans and specifications
for such facilities shall be filed with the public works department.
(Ord. 1230 § 2, 2018)
A.
In those
areas and portions of the city where the transmission or distribution
facilities of both the public utility provided telephone service and
those of the utility providing electric service are underground or
hereafter may be placed underground, then the state franchise holder
shall likewise construct, operate and maintain all of its transmission
and distribution facilities underground.
B.
When
the state franchise holder's conduits and other facilities are not
being installed underground, the state franchise holder shall utilize
its existing poles, conduits or other facilities (collectively, "system")
to the extent feasible, as reasonably determined by the city manager,
and shall remove all portions of the above-ground system which will
no longer be utilized. In addition, all facilities which are installed
above ground shall utilize anti-graffiti surfaces.
C.
If the
city undertakes a program to cause all conduits and other facilities
to be located beneath the surface of the streets in any area or throughout
the city, then upon reasonable notice to a franchise holder utilizing
poles, conduits or other above-ground facilities, any such conduits
or other facilities of the state franchise holder shall be constructed,
installed, placed or replaced beneath the surface of the streets.
Any construction, installation, placement, replacement or changes
which may be so required shall be made at the expense of the state
franchise holder, whose costs shall be determined as in the case of
public utilities.
(Ord. 1230 § 2, 2018)
Each state franchise holder, within 60 days after the completion
of any work, shall file a report with the city manager of an as-built
set of drawings.
(Ord. 1230 § 2, 2018)
A.
A state
franchise holder that uses any public right-of-way shall designate
sufficient capacity on its network to enable the carriage of at least
one public, educational, or governmental (PEG) access channel.
B.
PEG
access channels shall be for the exclusive use of the city or its
designees to provide public, educational, or governmental programming.
C.
Advertising,
underwriting, or sponsorship recognition may be carried on the PEG
access channels for the purpose of funding PEG-related activities.
D.
The
PEG access channels shall be carried on the basic service tier.
E.
To the
extent feasible, the PEG access channels shall not be separated numerically
from other channels carried on the basic service tier, and the channel
numbers for the PEG access channels shall be the same channel numbers
used by the incumbent cable operator unless prohibited by federal
law.
(Ord. 1230 § 2, 2018)
A.
Each
state franchise holder shall comply with the emergency alert system
requirements of the Federal Communications Commission in order that
emergency messages may be distributed over the state franchise holder's
network.
B.
To the
extent not inconsistent with CPUC Section 5880, each state franchise
holder shall incorporate into its network the capability to permit
the city in times of emergency to override the audio portion of all
channels simultaneously. In addition, if feasible, each state franchise
holder may be required to designate a channel, which may be a PEG
channel, to be used for emergency broadcasts of both audio and video
signals. The state franchise holder shall cooperate with the city
in the use and operation of the emergency alert override system.
(Ord. 1230 § 2, 2018)
Each holder of a state franchise, and each incumbent cable operator
operating under a city franchise issued pursuant to this code, shall
negotiate with each other in good faith to interconnect their networks
for the purpose of providing PEG programming including, but not limited
to, any exclusive city use channel. Interconnection may be accomplished
by any means authorized under CPUC Section 5870(h). Each holder of
a state franchise and any incumbent cable operator shall provide interconnection
of PEG channels including any exclusive city use channel on reasonable
terms and conditions and may not withhold the interconnection. If
a holder of a state franchise and an incumbent cable operator cannot
reach a mutually acceptable interconnection agreement, the city may
require the incumbent cable operator to allow the holder of the state
franchise to interconnect its network with the incumbent cable operator's
network at a technically feasible point on the state franchise holder's
network as identified by the holder or as otherwise permitted by applicable
law. If no technically feasible point for interconnection is available,
the holder of a state franchise shall make an interconnection available
to the channel originator and shall provide the facilities necessary
for the interconnection. The cost of any interconnection shall be
borne by the state franchise holder requesting the interconnection
unless otherwise agreed to by the state franchise holder and the incumbent
cable operator. To the extent not inconsistent with CPUC Section 5870(h),
the city manager may waive, modify, or defer this requirement of interconnection
in his or her sole discretion.
(Ord. 1230 § 2, 2018)
A.
Each
state franchise holder or applicant for a state franchise shall file
with the city manager a copy of all applications that the state franchise
holder or applicant is required to file with the Public Utilities
Commission.
B.
Unless
otherwise specified in this chapter, all notices or other documentation
that a state franchise holder is required to provide to the city under
this chapter or the CPUC shall be provided to the city manager.
(Ord. 1230 § 2, 2018)
The rights reserved to the City of Bell under this chapter are
in addition to all other applicable rights of the city, whether granted
or reserved by other provisions of the Bell Municipal Code or as otherwise
authorized by federal or state law, and no action, proceeding, or
exercise of a right by the City of Bell shall affect any other rights
which may be held by the City of Bell.
(Ord. 1230 § 2, 2018)
Nothing contained in this chapter shall be construed to exempt
a state franchise holder from compliance with all applicable ordinances,
rules, or regulations of the City of Bell now in effect or which may
be adopted that are not inconsistent with this chapter or CPUC Section
5800 et seq. Any reference in this chapter to these or other chapters
does not exclude the applicability of any other provision of federal,
state or local law.
(Ord. 1230 § 2, 2018)
A.
The PEG fee in Bell Municipal Code Section 5.86.040 shall automatically be reauthorized upon the expiration of any existing or future franchise certificate franchise(s) held by any state franchise holder operating within the city.
B.
This
chapter shall automatically be reauthorized upon the expiration of
any existing or future franchise certificate franchise(s) held by
any state franchise holder operating within the city. This chapter
shall so renew upon the future expiration of any franchise certificate
franchise(s) until such time that the city council takes formal affirmative
action to cease the renewals.
(Ord. 1230 § 2, 2018)
A.
The
state franchise holder shall, at the sole risk and expense of state
franchise holder, upon demand of the city, made by and through the
city council, city manager or city attorney, appear in and defend
any and all suits, actions, or other legal proceedings, whether judicial,
quasi-judicial, administrative, legislative, or otherwise, brought
or instituted or had by third person or duly constituted authorities,
against or affecting the city, its elected officers, boards, commissions,
agents or employees, and arising out of, or pertaining to, the exercise
or the enjoyment of such State video franchise.
B.
The
state franchise holder shall pay and satisfy and shall cause to be
paid and satisfied any judgment, decree, order, directive, or demand
rendered, made or issued against the state franchise holder, the city,
its elected officers, boards, commissions, agents, or employees in
any of these premises; and such indemnity shall exist and continue
without reference to or limitation by the amount of any bond, policy
of insurance, deposit, undertaking or other assurance required hereunder,
or otherwise provided, that neither the state franchise holder nor
city shall make or enter into any compromise or settlement of any
claim, demand, cause of action, action, suit, or other proceeding,
without first obtaining the written consent of the other.
C.
Upon
becoming a state franchise holder, the state franchise holder shall
file with the city manager and shall thereafter, during the entire
term of the installation and/or occupation in the public rights-of-way
with any of the state franchise holder's equipment, maintain, in full
force and effect, at its own cost and expense, proof of the following
policies of insurance:
General comprehensive liability insurance in the amount of three
thousand dollars($3,000.00) together with bodily injury liability
insurance in an amount not less than three thousand dollars($3,000.00)
for injuries including accidental death, to any one person, and subject
to the same limit for each person in an amount not less than one million
dollars ($1,000,000.00) on account of any one occurrence, and property
damage liability insurance in an amount not less than $100,000 resulting
from any one occurrence; provided, as follows:
1.
The
city shall be named as an additional insured in any of such insurance
policies;
2.
The
insurance provided shall be primary and non-contributory and shall
not be cancelled or materially amended without 30 days' written notice
to the city, except 10 days' written notice shall be sufficient for
nonpayment of the premium; and
3.
Where
such insurance is provided by a policy which also covers the franchise
holder or any other entity or person, it shall contain the standard
cross-liability endorsement which excludes cross-liability suits.
(Ord. 1230 § 2, 2018)
