Ord 2163 - Implementing State Video Services Frachise provisions as required by the Digital Infrastructure and Video Competition ACT of 2006 (DIVCA)ORDINANCE 2163
ORDINANCE OF THE TOWN OF LOS GATOS IMPLEMENTING STATE VIDEO
SERVICES FRANCHISE PROVISIONS AS REQUIRED BY THE DIGITAL
INFRASTRUCTURE AND VIDEO COMPETITION ACT OF 2006 (DIVCA)
The Town Code of the Town of Los Gatos is hereby amended to add Chapter 31, which implements
the provisions of the Digital Infiastructure and Video Competition Act of 2006, codified in California
Public Utilities Code section 5800 et seq., which the Town is required to administer and enforce.
The Council of the Town of Los Gatos, California ordains as follows:
Chapter 31
STATE VIDEO SERVICE FRANCHISES
Article I — General Provisions
Section 31.10.010 Purpose.
This Chapter is applicable to all video service providers who are eligible for, and have been awarded, a
state video franchise under the California Public Utilities Code section 5800 et seq. (the Digital
Infrastructure and Video Competition Act of 2006), to provide cable or video services in any portion of
the Town.
Section 31.10.020 Rights Reserved.
The rights reserved to the Town under this Chapter 31.10.020 are in addition to all other rights of the
Town whether reserved by this Chapter 31.10.020 or authorized by other applicable law, and no action,
proceeding or exercise of a right shall affect any other rights which may be held by the Town
Section 31.10.030 Compliance with Chapter 31
Nothing contained in this Chapter 31 exempts a state franchise holder from compliance with all
ordinances, rules or regulations of the Town now in effect or which may be hereafter adopted which are
not inconsistent with this Chapter or California Public Utilities Code section 5800 et seq., or obligations
under any franchise previously issued by the Town, insofar as those may be enforced under California
Public Utilities Code section 5800.
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Section 31.10.040 Definitions
For purposes of this Chapter 31, the following terms, phrases, words, and their derivations shall have the
meaning given in this chapter. Unless otherwise expressly stated, words not defined in this Chapter 31
shall be given the meaning set forth in the Digital Infrastructure and Video Competition Act of 2006,
Division 2.5 of the California Public Utilities Code, section 5800 et seq. ( "DIVCA "). 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.
"Access channel" means any channel on a cable system or video system set aside by a state franchise
holder for public, educational, or governmental use.
"Applicant" means any person submitting any application required under Division 2.5 of the California
Public Utilities Code.
"Applicable law" means all lawfully enacted and applicable Federal, State, and Town laws, ordinances,
codes, rules, regulations and orders as the same may be amended or adopted from time to time.
"Council" means the Town Council, the governing body of the Town of Los Gatos, California.
"Cable service" means (i) the one -way transmission to subscribers of video programming or other
programming services; and (ii) subscriber interaction, if any, which is required for the selection or use of
such video programming or other programming service.
"Construction," 'operation," or "repair" and similar formulations of those terms mean the named actions
interpreted broadly, encompassing, among other things, installation, extension, maintenance,
replacement of components, relocation, undergrounding, grading, site preparation, adjusting, testing,
make- ready, excavation and tree trimming. The term 'operation" does not encompass or regulate the
provision of services, but refers to activities affecting rights -of -way and other property subject to the
jurisdiction of the Town.
"Director" means the Director of Parks and Public Works of the Town, or his or her designee
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"DIVCA" means the Digital Infrastructure and Video Competition Act of 2006, Division 2.5 of the California
Public Utilities Code, section 5800 et seq., as may be amended from time to time.
"Gross revenues" means all revenues (whether in the form of cash or other consideration) of a state franchise
holder or its affiliates in any way derived from its operations within the Town.
"Incumbent cable operator" shall have the same meaning as in DIVCA.
"Network" shall have the same meaning as in DIV CA.
"Person" means an individual, partnership, association, joint stock company, trust, corporation, or organizational
entity, or any lawful successor, transferee or assignee thereof. The term does not include the Town.
"Public rights -of -way" shall have the same meaning as in DIVCA.
"State franchise" means a franchise issued by the California Public Utilities Commission to provide cable
service or video service, as those terms are defined in DIVCA, within any portion of the Town.
"State fanchise holder" means a person who holds a state franchise.
"Subscriber" means the Town or any person who legally receives any cable service or video service from a state
franchise holder delivered over that state franchise holder's network.
"Town" means the Town of Los Gatos, California.
"Town Manager" means the administrative head of the Town Government under the direction and control of the
Town Council.
"Video Service" shall have the same meaning as in DIVCA.
Article II - Fees
Section 31.20.010 State franchise fees.
Any state franchise holder operating within the Town shall pay to the Town a state franchise fee equal to five
percent (5 %) of the gross revenues of it or any affiliate that are subject to a franchise fee under California Public
Utilities Code Section 5860.
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Section 31.20.020 PEG fees.
Any state franchise holder operating within the Town shall pay to the Town a PEG fee equal to one percent (1 %)
of the gross revenues of it or any affiliate that are subject to a franchise fee under California Public Utilities
Code Section 5870.
Section 31.20.030 Payment of fees.
The state franchise fee required pursuant to Section 31.20.010, and the PEG fee required pursuant to Section
31.20.020, shall each be paid to the Town quarterly, in a manner consistent with California Public Utilities Code
section 5860. The state franchise holder shall deliver to the Town, by check or other means specified by the
Town, a payment for the state franchise fee and a separate payment for the PEG fee not later than forty -five (45)
days after the end of each calendar quarter. Each payment made shall be accompanied by a report, detailing how
the payment was calculated, containing such information as the Town Manager may require, consistent with
DIVCA. Unless the Town Manager provides otherwise, the strmmary statement shall identify:
1. _ Revenues received from subscribers, by category, with service revenues broken out by service levels;
2. Any charges to subscribers for which revenues were received, but on which a franchise fee was not paid;
3. where the fee is paid on an allocated portion of revenues received, the total revenues received; the
allocation factor; and how the allocation factor was calculated.
Section 31.20.040 Audits.
The Town may audit the business records of the holder of a state franchise in a manner consistent with
California Public Utilities Code section 5860(i).
Section 31.20.050 Late payments.
In the event a state franchise holder fails to make payments required by this chapter on or before the due dates
specified in this chapter, the Town 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 (1 %).
Section 31.20.060 Lease of Town -owned network.
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In the event a state fianchise holder leases access to a network owned by the Town, the Town may require a fee
for access to the Town -owned network separate and apart from the franchise fee charged to state franchise
holders pursuant to Section 31.20.10, which fee shall otherwise be payable in accordance with the procedures
established by this Chapter.
Article III — Customer Service
Section 31.30.010 Customer service and consumer protection.
Each state franchise holder shall comply with all applicable customer service and consumer protection standards,
including, to the extent consistent with California Public Utilities Code section 5900, all existing and
subsequently enacted customer service and consumer protection standards established by state and federal law
and regulation.
Section 31.30.020 Penalties for violations of standards.
a. The Town shall enforce the provisions of section 31.30.010.
b. For material breaches, as defined in California Public Utilities Code section 5900, by a state franchise
holder of applicable customer service and consumer protection standards, the Town may impose the
following penalties:
For the first occurrence of a material breach, a fine of $500.00 may be imposed for each day the
violation remains in effect, not to exceed $1,500.00 for each violation.
2. For a second material breach of the same nature within 12 months, a fine of $1,000.00 may be
imposed for each day the violation remains in effect, not to exceed $3,000.00 for each violation.
For a third material breach of the same nature within 12 months, a fine of $2,500 may be
imposed for each day the violation remains in effect, not to exceed $7,500.00 for each
violation.
c. Any penalties imposed by the Town shall be imposed in a manner consistent with California Public
Utilities Code section 5900.
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d. The Town Manager is authorized to provide any notices required under California Public Utilities Code
section 5900.
Article IV — Right -of -Way Management
Section 31.40.010 Construction in the Public rights -of -way.
Except as expressly provided in this Chapter 31, the provisions of Chapter 23 of this Code, and all Town
administrative rules and regulations developed pursuant to Chapter 23, as now existing or as hereafter amended,
shall apply to all work performed by or on behalf of a state franchise holder in any public rights -of -way.
Section 31.40.020 Permits.
a. Prior to commencing any work for which a permit is required by Chapter 23 of this Code, a state
franchise holder shall apply for and obtain a permit in accordance with the provisions of Chapter 23. A
permit application is complete when the state franchise holder has complied with all applicable laws and
regulations, including but not limited to all Town administrative rules and regulations, and all applicable
requirements of Division 13 of the California Public Resources Code, section 21000, et seq. (the
California Environmental Quality Act).
b. The Director shall either approve or deny a state franchise holder's application for any permit required
under Chapter 23 of this Code within sixty (60) days of receiving a complete permit application from the
state franchise holder.
c. If the Director denies a state franchise holder's application for a permit, the Director shall, at the time of
notifying the applicant of denial, furnish to the applicant a detailed explanation of the reason or reasons
for the denial.
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d. A state franchise holder that has been denied a permit by final decision of the Director may appeal the
denial to the Council by filing a written notice of appeal in duplicate with the Clerk not more than ten
(10) days after the Director's decision is issued. The notice shall state clearly the reasons why the
Director's decision should be overturned. The Council shall only hear the appeal if the notice is filed and
all required fees are paid within the ten -day appeal period. Once a notice of appeal has been filed it may
be withdrawn by the state franchise holder prior to the distribution of public hearing notices, but not
thereafter.
e. The appeal shall be heard by the Council within fifty -six (56) days after the date the final decision by the
Director was made. The Council may continue from time to time any hearing held by it.
f The Clerk shall set the hearing of the appeal and shall give notice of such hearing in the manner
required for the hearings before the Planning Commission. hi addition, the Council may give notice of
the hearing in such other manner as it wishes.
g. The Director shall transmit the entire record concerning the permit application to the Council.
h. When hearing the appeal, the Council shall consider the record and such additional evidence as may be
offered by anyone and may affirm, modify or reverse, in whole or in part, the determination appealed
from, or make and substitute such other determination as is warranted, or may remand to the Director for
further review and determination. The state franchise holder bears the burden of proof before the Council
to prove that one or more reasons exist on the appeal for reversing or modifying the Director's decision.
The standards of Chapter 29 governing the discretion of the reviewing body shall apply to actions of the
Council.
i. Any decision of the Council modifying, in whole or in part, the order, requirement, decision,
determination, interpretation, or ruling appealed from, or making and substituting another decision or
determination, requires the concurrence of a majority of the membership of the Council.
j. If the Council decides to modify or reverse the decision of the Director on any appeal, the resolution
shall specify one or more of the following:
Where there was error or abuse of discretion on the pant of the Director; or
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2. The new information that was submitted to the Council during the appeal process that was
not readily and reasonably available for submission to the Director; or
An issue or policy over which the Director did not have discretion to modify or address,
but which is vested in the Council for modification or decision.
k. If the only or predominant reason for modifying or reversing the decision of the Director is the
availability of new information as defined in subsection 0) (2) above, it is the policy of the Town that the
permit application will be returned to the Director for review in light of the new information unless the
new information has minimal effect on the application.
1. The decision of the Council upon the appeal will be expressed by a written resolution. The Council will
forthwith transmit copies of the resolution to the original applicant, the appellant, and the Planning
Commission.
m. The issuance of a permit is not a franchise, and does not grant any vested rights in any location in
the Public rights -of -way, or in any particular manner of placement within the rights -of -way. Without limitation,
a permit to place cabinets and similar appurtenances aboveground may be revoked and the permittee required to
place facilities underground, upon reasonable notice to the peimittee.
Section 31.40.030 Compliance with Other Provisions of Town Code.
Except as expressly provided in this Chapter 31, nothing in this Chapter 31 shall relieve a state franchise holder
from complying with Chapter 23 (Streets and Sidewalks), Chapter 27 (Utilities) and Chapter 29 (Zoning) of the
Town Code.
Article V —Emergency Alert
Section 31.50.080 Emergency Alert Systems
(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.
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Article VI — Interconnection
Section 31.60.010 Interconnection for PEG Programming
Each state franchise holder, and each incumbent cable operator, shall negotiate in good faith to
interconnect their networks for the purpose of providing PEG programming. Interconnection
may be accomplished by any means authorized under Public Utilities Code Section 5870(h).
Each state franchise holder and incumbent cable operator shall provide interconnection of PEG
channels on reasonable terms and conditions and may not withhold the interconnection. If a state
franchise holder and an incumbent cable operator cannot reach a mutually acceptable
interconnection agreement, the Town may require the incumbent cable operator to allow the state
franchise holder 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 state
franchise holder. If no technically feasible point for interconnection is available, each state
franchise holder will make an interconnection available to each channel originator providing
PEG programming to an incumbent cable operator, and will provide the facilities necessary for
the interconnection. The cost of any interconnection will be borne by the state franchise holder
requesting the interconnection unless otherwise agreed to by the state franchise holder and the
incumbent cable operator.
Article VII - Notices
31.70.010 Notices.
a. Each state franchise holder or applicant for a state franchise shall file with the Town a
copy of all applications or notices 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 Town under this Division 6 or the California Public
Utilities Code shall be provided to the Town Manager.
In the event that any part of this ordinance is held to be invalid, the invalid part or parts shall be
severed from
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the remaining portions which shall remain in full force and effect.
Article VIII
In the event that any part of this ordinance is held to be invalid, the invalid part or parts shall be severed
from the remaining portions which shall remain in full force and effect.
Article VIX
This ordinance was introduced at a regular meeting of the Town Council of the Town of Los Gatos on
June 16, 2008 and adopted by the following vote as an ordinance of the Town of Los Gatos at a regular
meeting of the Town Council of the Town of Los Gatos on August 4, 2008. This ordinance takes effect 30 days
after it is adopted.
COUNCIL MEMBERS:
AYES: Steve Glickman,
Barbara Spector
NAYS
ABSENT:
ABSTAIN:
Diane McNutt, Joe Pirzynski, Mike Wasserman, and Mayor
ATTES�
(LE OF THE TOWN OF LOS GATOS
GATOS, CALIFORNIA
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