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HomeMy WebLinkAboutNS-2468 - Regulating Cable and Video Service Providers ...ORDINANCE NO. NS-2468 REVISED 05/18101 AN ORDINANCE OF THE CITY OF SANTA ANA REGULATING CABLE AND VIDEO SERVICE PROVIDERS, REDESIGNATING ARTICLES II AND III OF CHAPTER 15 OF THE SANTA ANA MUNICIPAL CODE AS UNCODIFIED ORDINANCES, AND AMENDING CHAPTER 15 OF THE SANTA ANA MUNICIPAL CODE BY ADDING A NEW ARTICLE II THE CITY COUNCIL OF THE CITY OF SANTA ANA DOES ORDAIN AS FOLLOWS: Section 1. Articles II and III of Chapter 15 of the Santa Ana Municipal Code are redesignated as uncodified ordinances and are subject to repeal in accordance with the provisions of Section 3 of this ordinance. Section 2. The Santa Ana Municipal Code is amended by adding to Chapter 15 a new Article II to read as follows: "ARTICLE II. CABLE AND VIDEO SERVICE PROVIDERS PART 1. GENERAL PROVISIONS Sec. 15-251 Title This article is known and may be cited as the "Cable and Video Service Providers Ordinance" of the City of Santa Ana. Sec. 15-252 Purpose and Intent (a) The City Council finds and determines as follows: (1) The development of cable and video services and systems may provide significant benefits for, and have substantial impacts upon, the residents of the City. (2) Because of the complex and rapidly changing technology associated with cable and video services and systems, the public convenience, safety, and general welfare is best served by the City's exercise of its regulatory powers. (3) This article adopts provisions that authorize the City to regulate cable and video service providers to the extent authorized by federal and state law, including but not limited to the federal Cable Communications Ordinance No. NS-2468 Page 1 of 24 Policy Act of 1984, the federal Cable Television Consumer Protection and Competition Act of 1992, the federal Telecommunications Act of 1996, applicable regulations of the Federal Communications Commission, and applicable California statutes and regulations. (4) The cable and video services that are addressed in this article include services provided by cable television systems, open video systems, master antenna television systems, satellite master antenna television systems, and other providers of video programming, whatever their technology. (b) The purpose and intent of this article is to provide for the attainment of the following objectives: (1) To enable the City to discharge its public trust in a manner consistent with rapidly evolving federal and state regulatory policies, industry competition, and technological development. (2) To obtain fair and reasonable compensation for the City and its residents for authorizing the private use of the public rights-of-way and public property. (3) To promote competition in cable and video services, minimize unnecessary local regulation of cable and video service providers, and encourage the delivery of advanced and competitive cable and video services on the broadest possible basis to local government and to the businesses, institutions, and residents of the City. (4) To establish clear local guidelines, standards, and time frames for the exercise of local authority with respect to the regulation of cable and video service providers. (5) To encourage the deployment of advanced cable and video infrastructure that satisfies local needs, delivers enhanced government services, and provides informed consumer choices in an evolving cable and video marketplace. (6) To maintain and to enhance public, educational, and governmental programming opportunities that will enable local government to communicate with its residents and to provide its residents with alternate means of disseminating information. Sec. 15-253 Defined Terms and Phrases Various terms and phrases used in this article are defined below in Section 15- 268 of Part 6. Ordinance No. NS-2468 Page 2 of 24 PART 2. CABLE TELEVISION SYSTEMS Sec. 15-254 Authority and Findings (a) In accordance with applicable federal and state law, the City is authorized to grant one or more nonexclusive franchises to construct, reconstruct, operate, and maintain cable television systems within the City limits. (b) The City Council finds that the development of cable television services may provide significant benefits for, and substantial impacts upon, the residents of the City. Because of the complex and rapidly changing technology associated with cable television, the City Council further finds that the public convenience, safety, and general welfare can best be served by establishing regulatory powers to be exercised by the City. This Part 2 is intended to specify the means for providing to the public the best possible cable television services, and every franchise issued in accordance with this Part 2 is intended to achieve this primary objective. It is the further intent of this Part 2 to adopt regulatory provisions that will enable the City to regulate cable television services to the maximum extent authorized by federal and state law. Sec. 15-255 FError! Bookmark not defined.ranchise Terms and Conditions (a) Franchise Purposes A franchise granted by the City under the provisions of this Part 2 may authorize the Grantee to do the following: (1) To engage in the business of providing cable television services that are authorized by law and that Grantee elects to provide to its subscribers within the designated franchise service area. (2) To erect, install, construct, repair, rebuild, reconstruct, replace, maintain, and retain, cable lines, related electronic equipment, supporting structures, appurtenances, and other property in connection with the operation of the cable system in, on, over, under, upon, along and across streets and public ways within the designated franchise service area. (3) To maintain and operate the franchise properties for the origination, reception, transmission, amplification, and distribution of television and radio signals, and for the delivery of cable services and such other services as may be authorized by law. (b) Franchise Required Ordinance No. NS-2468 Page 3 of 24 (1) It is unlawful for any person to construct, install, or operate a cable television system within any street or public way in the City without first obtaining a franchise under the provisions of this Part 2. (2) The City Council finds and determines that certain multichannel video programming distributors and video providers, as those terms are defined in Section 15-268 of Part 6, provide cable service, including video programming, to subscribers within limited geographic areas where multi- family dwelling complexes and congregate-living complexes are located. That cable service, including video programming, is sometimes provided, in whole or in part, by the transmission of signals over wires or lines that are owned or controlled by telecommunications service providers or other public utilities and that are within or cross streets or public ways within the boundaries of a local franchising authority. The multichannel video programming distributor or video provider may obtain from the telecommunications service provider or other public utility, by lease, license, or similar contractual arrangement, the right to use those wires or lines in order to provide cable service, including video programming, to subscribers or customers within the multi-family dwelling complexes and congregate-living complexes referenced above. The City Council further finds and determines that these contractual arrangements for signal transmission facilitate the provision of cable service, including video programming, and create a nexus between that cable service and the use of the streets and public ways of the City. Consequently, to the maximum extent authorized under California law, it is the intent of the City Council to subject multi-channel video programming distributors and video providers that intend to use this signal-transmission methodology to the franchise requirements set forth in this Part 2, subject to such waivers and modifications of those requirements as may, in the discretion of the City Council or its designee, be warranted in view of the limited geographic area that is proposed to be served. (c) Term of the Franchise (1) A franchise granted under this Part 2 will be for the term specified in the franchise agreement, commencing upon the effective date of the ordinance adopted by the City Council that authorizes the franchise. (2) A franchise granted under this Part 2 may be application by the Grantee in accordance with the provisions of state and federal law and of this Part 2. renewed upon then-applicable (d) Franchise Service Area A franchise is effective within the territorial limits of the City, and within any area added to the City during the term of the franchise, unless otherwise specified in the ordinance granting the franchise or in the franchise agreement. Ordinance No. NS-2468 Page 4 of 24 (e) Federal or State Jurisdiction This Part 2 will be construed in a manner consistent with all applicable federal and state laws, and it applies to all franchises granted or renewed after the effective date of this article, to the extent authorized by applicable law. (f) Franchise Non-Transferable (1) Grantee may not sell, transfer, lease, assign, sublet, or dispose of, in whole or in part, either by forced or involuntary sale, or by ordinary sale, contract, consolidation, or otherwise, the franchise or any of the rights or privileges therein granted, without the prior written consent of the City Council and then only upon such terms and conditions as may be prescribed by the City Council, which consent may not be unreasonably denied or delayed. Any attempt to sell, transfer, lease, assign, or otherwise dispose of the franchise without the written consent of the City Council is null and void. The granting of a security interest in any assets of the Grantee, or any mortgage or other hypothecation, will not be deemed a transfer for the purposes of this subsection. (2) The requirements of subsection (1) apply to any change in control of Grantee. The word "control" as used herein is not limited to the ownership of major stockholder or partnership interests, but includes actual working control in whatever manner exercised. If Grantee is a partnership or a corporation, prior written authorization of the City Council is required where ownership or control of 20 percent (20%) or more of the partnership interests or of the voting stock of Grantee, or any company in the tier of companies controlling the Grantee, whether directly or indirectly, is acquired by a person or a group of persons acting in concert, none of whom, individually or collectively, owns or controls those partnership interests or that voting stock of the Grantee, or of Grantee's upper tier of controlling companies, as of the effective date of the franchise. (3) Grantee must give prior written notice to the City of any proposed foreclosure or judicial sale of all or a substantial part of the Grantee's franchise property. That notification will be considered by the City as notice that a change in control of ownership of the franchise will take place, and the previsions of this paragraph that require the prior written consent of the City Council to that change in control of ownership will apply. (4) For the purpose of determining whether it will consent to an acquisition, transfer, or change in control, the City may inquire as to the qualifications of the prospective transferee or controlling party, and Grantee must assist the City in that inquiry. In seeking the City's consent to any change of ownership or control, Grantee or the proposed Ordinance No. NS-2468 Page 5 of 24 (g) transferee, or both, must complete Federal Communications Commission Form 394 or its equivalent. This application must be submitted to the City not less than 120 days prior to the proposed date of transfer. The transferee must establish that it possesses the legal, financial, and technical capability to remedy all then-existing defaults and deficiencies, and, during the remaining term of the franchise, to operate and maintain the cable system and to comply with all franchise requirements. If the legal, financial, and technical qualifications of the proposed transferee are determined to be satisfactory, then the City will consent to the transfer of the franchise. (5) Any financial institution holding a pledge of the Grantee's assets to secure the advance of money for the construction or operation of the franchise property has the right to notify the City that it, or a designee satisfactory to the City, will take control of and operate the cable television system upon Grantee's default in its financial obligations. Further, that financial institution must also submit a plan for such operation within 90 days after assuming control. The plan must ensure continued service and compliance with all franchise requirements during the period that the financial institution will exercise control over the system. The financial institution may not exercise control over the system for a period exceeding one year unless authorized by the City, in its sole discretion, and during that period of time it will have the right to petition the City to transfer the franchise to another Grantee. (6) Grantee must reimburse the City for the City's reasonable review and processing expenses incurred in connection with any transfer or change in control of the franchise. These expenses include, without limitation, costs of administrative review, financial, legal, and technical evaluation of the proposed transferee, consultants (including technical and legal experts and all costs incurred by these experts), notice and publication costs, and document preparation expenses. No reimbursement may be offset against any franchise fee payable to the City during the term of the franchise. Geographical Coverage (1) Unless otherwise provided in the franchise agreement, Grantee must design, construct, and maintain the cable television system to have the capability to pass every dwelling unit and commercial building in the City, subject to any service-area line extension requirements set forth in the franchise agreement. (2) After service has been established by activating trunk or distribution cables for any service area, Grantee must provide service to any requesting subscriber within that activated part of the service area within seven days from the date of request, provided that the Grantee is able to Ordinance No. NS-2468 Page 6 of 24 secure on reasonable terms and conditions all rights-of-way and permits necessary to extend service to that subscriber within that seven-day period. (h) Nonexclusive Franchise Every franchise granted is nonexclusive. The City specifically reserves the right to grant, at any time, such additional franchises for a cable television system that it deems appropriate, subject to applicable state and federal law. If an additional franchise is proposed to be granted to a subsequent Grantee, a noticed public hearing must first be held if required under the provisions of Government Code §53066.3. (i) Multiple Franchises (1) The City may grant any number of franchises, subject to applicable state and federal law. The City may limit the number of franchises granted, based upon, but not necessarily limited to, the requirements of applicable law and the following specific local considerations: (i) The capacity of the public rights-of-way to accommodate multiple cables in addition to the cables, conduits, and pipes of the existing utility systems, such as electrical power, telephone, gas, and sewerage. (ii) The benefits that may accrue to subscribers as a result of cable system competition, such as lower rates and improved service. (iii) The disadvantages that may result from cable system competition, such as the requirement for multiple pedestals on residents' property, and the disruption arising from numerous excavations within the public rights-of-way. (2) The City may require that any new Grantee be responsible for its own underground trenching and the associated costs if, in the City's opinion, the streets or public ways in any particular area cannot reasonably accommodate additional cables. Sec. 15-256 Franchise Applications and Renewal (a) Filinq of Applications Any person desiring an initial franchise for a cable television system must file an application with the City. An application fee deposit in an amount established by resolution of the City Council must accompany the application. That application fee deposit will cover all anticipated costs associated with reviewing and Ordinance No. NS-2468 Page 7 of 24 processing the application, including without limitation costs of administrative review, financial, legal, and technical evaluation of the applicant, consultants (including technical and legal experts and all costs incurred by those experts), notice and publication requirements, and document preparation expenses. If actual costs exceed the application fee deposit, the applicant must pay the difference to the City within 30 days following receipt of an itemized statement of those costs. If actual costs are less than the application fee deposit, the remaining balance will be refunded to the applicant. (b) Aoelications - Contents An application for an initial franchise for a cable television system must contain, as applicable: (1) A statement describing the proposed franchise service area and an explanation whether this proposed service area is, or will be, a part of a larger regional cluster of franchise service areas. (2) A resume of the applicant's prior history, including the experience and expertise of the applicant in the cable television industry. (3) A list of the partners, general and limited, of the applicant, if a partnership, or the percentage of stock owned or controlled by each stockholder, if a closely-held corporation. If the applicant is a publicly- owned partnership or corporation, each owner of 10 percent or more of the partnership interests, or of the issued and outstanding capital stock, must be identified. If the applicant is a limited liability company, the following information must be provided: the address of its principal executive office; the name and business or residence address of each member and of each holder of an economic interest in the limited liability company, together with the contribution and the share in profits and losses of each member and holder of an economic interest; the name and business or residence address of any manager or managers and the chief executive officer, if any, appointed or elected in accordance with the articles of organization or operating agreement. (4) A list of officers and directors of the applicant, together with a description of the background of each such person. (5) A statement as to the number of people employed by the applicant, whether on a full-time or part-time basis. (6) The names and addresses of any parent or subsidiary of the applicant, or any other business entity owning or controlling applicant in whole or in part, or that is owned or controlled in whole or in part by the applicant. Ordinance No. NS-2468 Page 8 of 24 (7) A current financial statement of the applicant verified by a certified public accountant or otherwise certified to be true, complete, and correct. (8) The proposed construction and service schedule, the proposed rate structure for cable services, and the proposed commitment to provide public, educational, and governmental access capacity, services, facilities, and equipment. (9) Any additional information that the City deems to be reasonably necessary. (c) Consideration of Initial Applications (1) Upon receipt of an application for an initial franchise, the City Manager or the City Manager's designee must prepare a report and make recommendations to the City Council concerning that application. (2) A public hearing will be noticed prior to any initial franchise grant, at a time and date approved by the City Council. Within 30 days after the close of the hearing, the City Council will make a decision based upon documents and testimony received at the hearing as to whether the franchise should be granted, and, if granted, subject to what conditions. The City Council may grant one or more franchises, or may decline to grant any franchise. (d) Franchise Renewal Franchise renewals will be processed in accordance with then-applicable law and with the renewal terms, if any, of the franchise agreement. The City and Grantee, by mutual consent, may enter into renewal negotiations at any time during the term of the franchise. A renewal application fee deposit in an amount established by resolution of the City Council must accompany the renewal application or the renewal request. That renewal application fee deposit will cover all anticipated costs associated with reviewing and processing the renewal application, including the review of Grantee's prior compliance with the franchise, the ascertainment of the community's cable-related needs and interests, the engagement of technical and legal consultants, and expenses related to negotiations and document preparation. If actual costs exceed the renewal application fee deposit, the Grantee must pay the difference to the City within 30 days following receipt of an itemized statement of those costs. If actual costs are less than the renewal application fee deposit, the remaining balance will be refunded to the Grantee. Sec. 15-257 Contents of Cable Television Franchise Aqreements Ordinance No. NS-2468 Page 9 of 24 (a) The terms and provisions of a franchise agreement for the operation of a cable television system must include, without limitation, the following subject matters: (1) The geographical area, duration, and nonexclusive nature of the franchise. (2) The applicable franchise fee to be paid to the City, including the amount, the method of computation, and the time for payment. (3) Requirements relating to compliance with and implementation of state and federal laws and regulations pertaining to the operation of the cable television system. (4) Requirements relating to the construction, upgrade, or rebuild of the cable television system, as well as the provision of special services, such as outlets for public buildings, emergency alert capability, and parental control devices. (5) Requirements relating to the maintenance of a performance bond, a security fund, a letter of credit, or similar assurances to secure the performance of the Grantee's obligations under the franchise agreement. (6) Requirements relating to comprehensive liability insurance, workers' compensation insurance, and indemnification. (7) Requirements relating to consumer protection and customer service standards, which requirements may include, without limitation, compliance with the statutes, rules, and regulations set forth below in Section 15-258 of this Part 2. (8) Requirements relating to the Grantee's support of local cable usage, including the provision of public, educational, and governmental access channels, the coverage of public meetings and special events, and financial support for public, educational, and governmental access channels. (9) Requirements relating to the Grantee's obligation to provide an institutional network, and channel capacity on that institutional network for educational or governmental use, subject to the City's rules and procedures for the use of such channel capacity and for compatibility with any telecommunications network that has been or may be developed by the City. (10) Requirements relating to construction, operation, and maintenance of the cable television system within the City's streets and public ways, including compliance with all applicable building codes and permit Ordinance No. NS-2468 Page 10 of 24 requirements of the City, the abandonment, removal, or relocation of facilities, and compliance with FCC technical standards. (11) Requirements relating to recordkeeping, accounting procedures, reporting, periodic audits, performance reviews, the inspection of Grantee's books and records, and reimbursement for technical audits and franchise fee audits under specified circumstances. (12) Acts or omissions constituting material breaches of or defaults under the franchise agreement, and the applicable penalties or remedies for such breaches or defaults, including fines, penalties, liquidated damages, suspension, revocation, and termination. (13) Requirements relating to the sale, assignment, or other transfer or change in control of the franchise. (14) The Grantee's obligation to maintain continuity of service and to authorize, under certain specified circumstances, the City's operation and management of the cable system. (15) Such additional requirements, conditions, policies, and procedures as may be mutually agreed upon by the parties to the franchise agreement and that will, in the judgment of City staff and the City Council, best serve the public interest and protect the public health, welfare, and safety. (b) If there is any conflict or inconsistency between the provisions of a franchise agreement authorized by the City Council and provisions of this Part 2, the provisions of the franchise agreement will control. Sec. 15-258 Consumer Protection and Service Standards (a) General Standards. A Grantee must meet or exceed all applicable consumer protection and service standards that are customary in the cable television industry and that are recommended or required by the following: (1) Federal statutes, and the rules, regulations, and orders of the Federal Communications Commission, including the following: (i) The provisions of Section 76.309(c) of Title 47 of the Code of Federal Regulations, as it now exists or may later be amended. (ii) The provisions of Section 76.630 of Title 47 of the Code of Federal Regulations, as it now exists or may later be amended. Ordinance No. NS-2468 Page 11 of 24 (iii) The provisions of Section 551 of Title 47, United States Code, as it now exists or may later be amended. (2) The provisions of California Government Code Sections 53054, et seq., entitled the "Cable Television and Video Provider Customer Service and Information Act." (3) The provisions of California Government Code Section 53088, et seq., entitled the "Video Customer Service Act." (4) The provisions of California Civil Code Section 1722(b)(1)-(6) relating to service or repair transactions between cable television companies and their subscribers. (5) The provisions of California Penal Code Section 637.5 relating to subscribers' rights to privacy protection. (b) Franchise Agreement. Unless preempted by paramount federal law, the consumer protection and service standards referenced above in paragraph (a) that are the most stringent, and that afford the greatest degree of protection to consumers, will be specified in the cable television franchise agreement and will apply, without limitation, to all video, voice, and data services that are provided by the Grantee to its subscribers within the franchise service area. PART 3. OPEN VIDEO SYSTEMS Sec. 15-259 Applicability The provisions of this Part 3 apply to an open video system operator, as defined below in Section 15-268 of Part 6, that intends to deliver video programming to consumers in the City over an open video system. Sec. 15-260 Application Required (a) Before commencing the delivery of video programming services to consumers in the City over an open video system, the open video system operator must file an application with the City. That application must include or be accompanied by the following, as applicable: (1) The identity of the applicant, including all affiliates of the applicant. (2) Copies of FCC Form 1275, all "Notices of Intent" filed under 47 CFR 76.1503(b)(1), and the Order of the FCC, all of which relate to certification of the applicant to operate an open video system in the City in Ordinance No. NS-2468 Page 12 of 24 accordance with Section 653(a)(1) of the Communications Act and the FCC's rules. (3) The area or areas of the City that the applicant proposes to serve. (4) A description of the open video system services that will be offered by the applicant over its existing or proposed facilities. (5) A description of the transmission medium that will be used by the applicant to deliver the open video system services. (6) Information in sufficient detail to establish the applicant's technical qualifications, experience, and expertise regarding the ownership and operation of the open video system described in the application. (7) Financial statements prepared in accordance with generally accepted accounting principles that demonstrate the applicant's financial ability to: (i) Construct, operate, maintain and remove any new physical plant that is proposed to be constructed in the City. (ii) Comply with the City's public, educational, and governmental access requirements as specified below in Section 15-262(b)(4). (iii) Comply with the City's requirement that gross revenue fees be paid in the sum of five percent (5%), as specified below in Section 15-262(b)(2). (8) An accurate map showing the location of any existing telecommunications facilities in the City that the applicant intends to use, to purchase, or to lease. (9) If the applicant's operation of the open video system will require the construction of new physical plant in the City, the following additional information must be provided: (i) A preliminary construction schedule and completion dates. (ii) Preliminary engineering plans, specifications, and a network map of any new facilities to be constructed in the City, in sufficient detail to identify: (A) The location and route requested for the applicant's proposed facilities. Ordinance No. NS-2468 Page 13 of 24 (B) The locations, if any, for interconnection with the facilities of other video or telecommunications service providers. (C) The specific structures, improvements, facilities, and obstructions, if any, that the applicant proposes to remove or relocate on a temporary or permanent basis. (iii) The applicant's statement that, in constructing any new physical plant, the applicant will comply with all applicable ordinances, rules, and regulations of the City, including the payment of all required permit and processing fees. (10) The information and documentation that is required to be submitted to the City by a video provider, as specified below in paragraph (b) of Section 15-264. (11) Such additional information as may be requested by the City. (12) An application fee deposit in an amount established by resolution of the City Council. (b) If any item of information specified above in paragraph (a) is determined under paramount federal or state law to be unlawful, the City Manager is authorized to waive the requirement that such information be included in the application. Sec. 15-261 Review of the Application Within 30 days after receipt of an application filed under Section 15-260 that is deemed to be complete, the City Manager will give written notice to the applicant of the City's intent to negotiate an agreement setting forth the terms and conditions under which the operation of the proposed open video system will be authorized by the City. The commencement of those negotiations will be on a date that is mutually acceptable to the City and to the applicant. Sec. 15-262 Aqreement Required (a) No video programming services may be provided in the City by an open video system operator unless the operator and the City have executed a written agreement, which may be designated as a franchise, setting forth the terms and conditions under which the operation of the proposed open video system will be authorized by the City. (b) The agreement between the City and the open video system operator may contain terms and conditions that relate to the following subject matters, to the Ordinance No. NS-2468 Page 14 of 24 extent that such terms, conditions, and subject matters are not preempted by federal law or regulations: (1) The nature, scope, and duration of the agreement, including provisions for its renewal or extension. (2) The obligation of the open video system operator to pay to the City, at specified times and in lieu of the franchise fees permitted under Section 622 of the Communications Act, fees on the gross revenue received by the operator, as authorized by 47 CFR 76.1511, in accordance with the following standards and procedures: (i) The amount of the fees on the gross revenue will be the maximum amount authorized by Section 653(c)(2)(B) of the Communications Act, which is the rate imposed by the City on the existing franchised cable operator. (ii) The term "gross revenue" means (A)all gross revenue received by an open video system operator or its affiliates, including all revenue received from subscribers and all carriage revenue received from unaffiliated video programming providers; and (B)all advertising revenue received by the operator or its affiliates in connection with the provision of video programming, where such revenue is included in the calculation of the cable franchise fee paid to the City by the incumbent franchised cable operator. The term "gross revenue" does not include revenue, such as subscriber or advertising revenue, collected by unaffiliated video programming providers. (3) The obligation of the open video system operator to comply with requirements relating to information collection and recordkeeping, accounting procedures, reporting, periodic audits, and inspection of records in order to ensure the accuracy of the fees on the gross revenue that are required to be paid as specified above in paragraph (b)(2). (4) The obligation of the open video system operator to meet the City's requirements with respect to public, educational, and governmental access channel capacity, services, facilities, and equipment, as provided for in 47 CFR 76.1505. In this regard, the following standards and procedures apply: (i) The open video system operator is subject to the same public, educational, and governmental access requirements that apply within the cable television franchise service area with which its system overlaps. Ordinance No. NS-2468 Page 15 of 24 (ii) The open video system operator must ensure that all subscribers receive all public, educational, and governmental access channels within the franchise service area in which the City's subscribers are located. (iii) The open video system operator may negotiate with the City to establish the operator's obligations with respect to public, educational, and governmental access channel capacity, services, facilities, and equipment. These negotiations may include the City's franchised cable operator if the City, the open video system operator, and the franchised cable operator so desire. (iv) If the open video system operator and the City are unable to reach an agreement regarding the operator's obligations with respect to public, educational, and governmental access channel capacity, services, facilities, and equipment within the City's jurisdiction, then the following obligations will be imposed: (A) The open video system operator must satisfy the same public, educational, and governmental access obligations as the City's franchised cable operator by providing the same amount of channel capacity for public, educational, and governmental access and by matching the City's franchised cable operator's annual financial contributions in support of public, educational, and governmental access services, facilities, and equipment that are actually used by the City. For in-kind contributions, such as cameras or production studios, the open video system operator may satisfy its statutory obligation by negotiating mutually agreeable terms with the City's franchised cable operator, so that public, educational, and governmental access services to the City are improved or increased. If such terms cannot be agreed upon, the open video system operator must pay to the City the monetary equivalent of the franchised cable operator's depreciated in-kind contribution, or, in the case of facilities, the annual amortization value. Any matching contributions provided by the open video system operator must be used to fund activities arising under Section 611 of the Communications Act. (B) The City will impose upon the open video system operator the same rules and procedures that it imposes upon the franchised cable operator with regard to the open video system operator's use of channel capacity designated for public, educational, and governmental access use when that capacity is not being used for such purposes. Ordinance No. NS-2468 Page 16 of 24 (v) The City's franchised cable operator is required under federal law to permit the open video system operator to connect with its public, educational, and governmental access channel feeds. The open video system operator and the franchised cable operator may decide how to accomplish this connection, taking into consideration the physical and technical characteristics of the cable and the open video systems involved. If the franchised cable operator and the open video system operator cannot agree on how to accomplish the connection, the City has the right to decide. The City may require that the connection occur on City-owned property or on public rights-of-way. (vi) All costs of connection to the franchised cable operator's public, educational, and governmental access channel feed must be borne by the open video system operator. These costs will be counted towards the open video system operator's matching financial contributions set forth above in subparagraph (iv)(A). (vii) The City will not impose upon the open video system operator any public, educational, or governmental access obligations that are greater than those imposed upon the franchised cable operator. (viii) if there is no existing franchised cable operator, the provisions of 47 CFR 76.1505(d)(6) will be applicable in determining the obligations of the open video system operator. (ix) The open video system operator must adjust its system to comply with new public, educational, and access obligations imposed on the City's franchised cable operator following a renewal of the cable television franchise; provided, however, that the open video system operator will not be required to displace other programmers using its open video system to accommodate public, educational, and governmental access channels. The open video system operator must comply with those new public, educational, and governmental access obligations whenever additional capacity is or becomes available, whether it is due to increased channel capacity or to decreased demand for channel capacity. (5) If the City and the open video system operator cannot agree on the application of the FCC's rules regarding the open video system operator's obligations to provide public, educational, and governmental access under the provisions of subsection (4) set forth above, then either party may file a complaint with the FCC in accordance with the dispute resolution procedures set forth in 47 CFR 76.1514. No agreement will be executed by the City until the dispute has been finally resolved. Ordinance No. NS-2468 Page 17 of 24 (6) If the open video system operator intends to maintain an institutional network, as defined in Section 611(f) of the Communications Act, the City will require that educational and governmental access channels be designated on that institutional network to the same extent that those channels are designated on the institutional network of the City's franchised cable operator. In addition, to the extent authorized by federal law, the open video system operator may be required by the City to satisfy the same financial obligations and other requirements that are imposed upon the franchised cable operator to support data-transmission and related services that are provided by the institutional network. (7) The authority of an open video system provider to exercise editorial control over any public, educational, or governmental use of channel capacity will be restricted in accordance with the provisions of 47 CFR 76.1505(0. (8) The obligation of the open video system operator to comply with all applicable federal, state, and local statutes, ordinances, and regulations relating to customer protection and service standards, including the Cable Television and Video Customer Service and Information Act (Government Code §§53054, et seq.), the Video Customer Service Act (Government Code §§53088, et seq.), and Section 15-258 of Part 2 of this article. (9) If new physical plant is proposed to be constructed within the City, the obligation of the open video system operator to comply with the following rights-of-way use and management responsibilities that are also imposed by the City upon other cable television and telecommunications service providers in a nondiscriminatory and competitively neutral manner: (i) Compliance with all applicable City codes, including applications for excavation, encroachment, and construction permits and the payment of all required permit and inspection fees. (ii) The coordination of construction activities. (iii) Compliance with established standards and procedures for constructing lines across private property. (iv) Compliance with all applicable insurance and indemnification requirements. (v) The repair and resurfacing of construction-damaged streets. (vi) Compliance with all public safety requirements that are applicable to cable television and telecommunications service providers using public property or public rights-of-way. Ordinance No. NS-2468 Page 18 of 24 (10) Acts or omissions constituting breaches or defaults of the agreement, and the applicable penalties, liquidated damages, and other remedies, including fines or the suspension, revocation, or termination of the agreement. (11) Requirements relating to the sale, assignment, or transfer of control of the open video system. (12) Requirements relating to the open video system operator's compliance with and implementation of state and federal laws, rules, and regulations pertaining to the operation of the open video system. (13) Such additional requirements, conditions, terms, policies, and procedures as may be mutually agreed upon by the City and the open video system operator and that will, in the judgment of the City Council, best serve the public interest and protect the public health, welfare, and safety. Sec. 15-263 - Sec. 15-267. Reserved. PART 4. DEFINITIONS Sec. 15-268 Defined Terms and Phrases (a) The words, terms, phrases, and their derivations set forth in this article have the meanings set forth below. Words used in the present tense include the future tense, and words in the singular include the plural number. "Affiliate" means, when used in relation to any person, another person who owns or controls, is owned or controlled by, or is under common ownership or control with, such person. For purposes of this definition, the term "own" means to own an equity interest, or its equivalent, of 10 percent or more. "Cable service" means the one-way transmission to subscribers of video programming, or other programming services, and subscriber interaction, if any, that is required for the selection or use of that video programming or other programming service. For the purposes of this definition, "video programming" means programming provided by, or generally considered comparable to programming provided by, a television broadcast station; and "other programming service" means information that a cable system operator makes available to all subscribers generally. "Cable system," or "cable communications system" or "cable television system," means a facility, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide cable service that includes video programming and that is provided to multiple subscribers within a community. The term "cable system" does not include: Ordinance No. NS-2468 Page 19 of 24 (i) a facility that serves only to retransmit the television signals of one or more television broadcast stations; (ii) a facility that serves subscribers without using any public right-of- way; (iii) a facility of a common carrier that is subject, in whole or in part, to the provisions of Title II of the Communications Act, except that such facility will be considered a cable system (other than for purposes specified in Section 621(c) of the Communications Act) to the extent such facility is used in the transmission of video programming directly to subscribers, unless the extent of such use is solely to provide interactive on-demand services; (iv) an open video system that complies with Section 653 of the Communications Act; or (v) any facilities of an electric utility that are used solely for operating its electric utility system. "Cable system operator" means any person or group of persons: (i) who provides cable service over a cable system and directly or through one or more affiliates owns a significant interest in that cable system; or (ii) who otherwise controls or is responsible for, through any arrangement, the management and operation of that cable system. "City" means the City of Santa Ana as represented by its City Council or by any delegate acting within the scope of its delegated authority. " CFR" means the Code of Federal Regulations. Thus, the citation of "47 CFR 80.1" refers to Title 47, part 80, section 1, of the Code of Federal Regulations. ."Communications Act" means the Communications Act of 1934 (47 U.S.C. §§151, et seq.), as amended by the Cable Communications Policy Act of 1984, the Cable Television Consumer Protection and Competition Act of 1992, and the Telecommunications Act of 1996. "FCC" or "Federal Communications Commission" means the federal administrative agency, or any lawful successor, that is authorized to regulate telecommunications services and telecommunications service providers on a national level. Ordinance No. NS-2468 Page 20 of 24 "Franchise" means an initial authorization, or the renewal of an initial authorization, granted by the City Council, whether such authorization is designated as a franchise, agreement, permit, license, resolution, contract, certificate, or otherwise, that authorizes the construction or operation of a cable system or an open video system. "Franchise fee" means any fee or assessment of any kind that is authorized by state or federal law to be imposed by the City on a Grantee as compensation in the nature of rent for the Grantee's use of the public rights-of-way. The term "franchise fee" does not include: (i) Any tax, fee, or assessment of general applicability (including any such tax, fee, or assessment imposed on both utilities and Grantees or their services); (ii) Capital costs that are required by the franchise to be incurred by a Grantee for public, educational, or governmental access facilities; (iii) Costs or charges that are incidental to the award or enforcement of the franchise, including payments for bonds, security funds, letters of credit, insurance, indemnification, penalties, or liquidated damages; or (iv) Any fee imposed under Title 17, United States Code. "Franchise service area" or "service area" means the entire geographic area of the City as it is now constituted, or may in the future be constituted, unless otherwise specified in the ordinance granting a franchise, or in a franchise agreement. "Grantee" means any person that is awarded a franchise in accordance with this article, and that person's lawful successor, transferee, or assignee. "Open video system" means a facility consisting of a set of transmission paths and associated signal generation, reception, and control equipment that is designed to provide cable service, including video programming, and that is provided to multiple subscribers within the City, provided that the FCC has certified that such system is authorized to operate in the City and complies with 47 CFR 1500 et seq., entitled "Open Video Systems." "Open video system operator'' means any person or group of persons who provides cable service over an open video system and directly or through one or more affiliates owns a significant interest in that open video system, or otherwise controls or is responsible for the management and operation of that open video system. "Person" means an individual, partnership, limited liability company, association, joint stock company, trust, corporation, or governmental entity. Ordinance No. NS-2468 Page 21 of 24 "Public, educational or government access facilities" or "PEG access facilities," means the total of the following: (i) Channel capacity designated educational, or government use; and for noncommercial public, (ii) Facilities and equipment for the use of that channel capacity. "Subscriber" or "customer" or "consumer" means any person who, for any purpose, subscribes to the services provided by a multichannel video programming distributor and who pays the charges for those services. "Street" or "public way" means each of the following that has been dedicated to the public and maintained under public authority or by others and is located within the City limits: streets, roadways, highways, avenues, lanes, alleys, sidewalks, easements, rights-of-way, and similar public property that the City from time to time authorizes to be included within the definition of a street. " U.S.C. § "means the United States Code. Thus, the citation of "47 U.S.C. §153" refers to Title 47, section 153, of the United States Code. (b) Unless otherwise expressly stated, words, terms, and phrases not defined in this article will be given their meaning as used in Title 47 of the United States Code, as amended, and, if not defined in that Code, their meaning as used in Title 47 of the Code of Federal Regulations. PART 5. VIOLATIONS Sec. 15:269 Violations; Enfomement (a) The penalties for violation of this article, as otherwise specified in this Code, are not applicable to a violation of any provision of this article for which another sanction or penalty may be imposed under any franchise, license, lease, or similar written agreement between the City and a multichannel video programming distributor or telecommunications service provider. (b) The City may initiate a civil action in any court of competent jurisdiction to enjoin any violation of this article. Section 3. If any provision of this article is determined by any court of competent jurisdiction, or by any federal or state agency having jurisdiction over its subject matter, to be invalid and in conflict with any paramount federal or state law or regulation now or hereafter in effect, or is determined by that court or agency to require modification in order to conform to the requirements of that paramount law or regulation, then that provision will be deemed a separate, distinct, and independent part of this article, and such determination will not affect the validity and enforceability of any other provisions. Ordinance No. NS-2468 Page 22 of 24 If that paramount federal or state law or regulation is subsequently repealed or amended so that the provision of this article determined to be invalid or subject to modification is no longer in conflict with that law or regulation, then that provision will again become effective and will thereafter be binding on the City and any affected video or telecommunications service provider; provided, however, that the City must give the affected video or telecommunications service provider 30 days written notice of that change before requiring compliance with that provision, or such longer period of time as may reasonably be required for the video or telecommunications service provider to comply with that provision. Section 4. Notwithstanding any provisions to the contrary set forth in this ordinance, Article II, entitled "Community Antenna Television Systems," and Article III, entitled "Cable Television Subscriber Protection," both of which were previously codified in Chapter 15 of the Municipal Code, will continue in full force and effect as uncodified ordinances of the City. These uncodified ordinances will continue to be applicable to the existing cable television franchise agreement between the City and its franchised cable operator, Comcast Cablevision of Santa Ana, Inc., a Delaware corporation, or its duly authorized assignee or transferee. These uncodified ordinances are subject to repeal by the City Council at such time as the franchised cable operator executes an amendment to the existing cable television franchise agreement, or executes a cable television franchise renewal agreement, the terms of which subject the franchised cable operator to Article II of Chapter 15 of the Municipal Code, as adopted by this ordinance. ADOPTED this 4th day of June, 2001. ATTEST: Patricia E. Healy Clerk of the Council COUNCILMEMBERS: Pulido Aye McGuigan Aye Alvarez Aye Bist Aye Christy Aye Franklin Aye Solorio Aye APPROVED AS TO FORM: Joseph W. Fletcher, City Attorney BY:B K Chie~vl~ssistant City Attorney Ordinance No. NS-2468 Page 23 of 24 CERTIFICATE OF ORIGINALITY & PUBLICATION I, PATRICIA E. HEALY, Clerk of the Council, do hereby certify the attached Ordinance No. NS-2468 to be the original ordinance adopted by the City Council of the City of Santa Ana on June 4, 2001; and that said ordinance was published in accordance with the Charter of the City of Santa Aha. Ordinance No. NS-2468 Page 24 of 24