HomeMy WebLinkAboutOrdinance 2311 N.C.S. 10/06/0008 EFFECTIVE DATE ORDINANCE NO. 2311 N.C.S.
OF ORDINANCE
November 6, 2008
1 Introduced by Seconded by
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4 Mike O'Brien Samantha Freitas
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9 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PETALUMA
10 ADDING CHAPTER 14.48 TO TITLE 14 OF THE PETALUMA MUNICIPAL
11 CODE, RELATING TO REGULATIONS FOR THE PROVISION OF
12 VIDEO SERVICE BY STATE FRANCHISE HOLDERS
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14
15 THE COUNCIL OF THE. CITY OF PETALUMA ORDAINS AS FOLLOWS:
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17 SECTION 1. The Council finds as follows:
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19 1. Local entities within the state of California have traditionally had the authority to
20 regulate, in accordance with federal, state, and local law, certain aspects of the
21 provision of video services, including the authority to award franchises, within the
22 boundaries of those local entities.
23
24 2. The state Legislature adopted the Digital Infrastructure and Video Competition Act of
25 2006., California Public Utilities Code sections 5800 et seq. ("DIVCA"), which became
26 effective January 1, 2007.
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28 3. DIVCA substantially changed California law by establishing a statewide franchising
29 procedure for video service providers to be administered by the California Public Utilities
30 Commission ("CPUC").
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32 4. DIVCA establishes that the CPUC is the sole authority to award statewide franchises for
33 the provision of video services, which preempts local franchising authority.
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35 5. DIVCA establishes limited authority of local entities over state franchise holders.
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37 b. The City of Petaluma desires to exercise that authority and to facilitate the
38 implementation of DIVCA by setting forth regulations for the provision of video service by
39 state franchise holders within the City of Petaluma, in accordance with the requirements
40 set forth in DIVCA.
41
42 SECTION 2. Chapter 14.48 is hereby added to Title 14 of the Petaluma City Municipal Code to
43 read as follows:
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Ordinance No. 231 1 N.C.S. Page 1
1
2 Chapter 14.48
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4 VIDEO SERVICE PROVIDED BY STATE FRANCHISE HOLDERS
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6 Sections:
7 14.48.010 Purpose and Applicability.
8 14.48.015 Definitions.
9 14.48.020 Franchise Fee for State Franchise Holders.
10 14.48.025 Public, Educational, and Government Channels.
11 14.48.030 Payment of Fees.
12 14.48.035 Customer Service Penalties for State Franchise. Holders.
13 14.48.040 Appeal Process for Customer Service Penalties.
14 14.48.045 Encroachment Permit.
15 14.48.050 Authority to Examine and Audit Business Records.
16 14.48.055 Environmental Review.
17 14.48.060 Emergency Alert System.
18 14.48.065 Non-Discriminatory Video Service.
19 14.48.070 City Response to State Video Franchise Applications
20
21 14.48.010 Purpose and Applicability.
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23 The purpose of this chapter is to set forth regulations for the provision of video service by state
24 franchise holders, in accordance with the Digital Infrastructure and Video Competition Act,
25 California Public Utilities Code sections 5800 et seq ("DIVCA"). This chapter shall apply only to
26 video service providers issued a state franchise to serve any area within the City by the
27 California Public Utilities Commission ("CPUC") pursuant to DIVCA.
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29 14.48.015 Definitions.
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31 For the purposes of this chapter, the words set out in this section shall have the following
32 meanings:
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34 A. "Cable service" shall have the meaning given that term by the California Public Utilities
35 Code section 5830(c).
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37 B. "City" shall mean the City of Petaluma
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39 C. "City Council" shall mean the City Council of the City.
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41 D. "Encroachment'` includes going upon, over or under a public right-of-way or easement or
42 an area adjacent to a public right-of-way or easement, or using a public right-of-way or
43 easement or an area adjacent to a public right-of-way or easement in such a manner as
44 to prevent, obstruct or interfere with the intended use or modified use of the public right-
45 of-way or easement and shall include excavation and disturbance, installation,
46 construction, placement, erection and maintenance of any physical improvement
47 (permanent or temporary) within, upon, over or under the public right-of way or
48 easement.
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50 E. "Encroachment permit" shall have the meaning given that term by the California Public
51 Utilities Code section 5885(c) (1), which shall include any permit issued by the City
Ordinance No. 231 1 N.C.S. Page 2
1 pursuant to Chapter 13.04, Chapter 13.12, and Chapter 13.14 of Tifle 13 of the Petaluma
2 Municipal Code.
3
4 F. "Franchise" shall have the meaning given that term by the California Public Utilities Code
5 section 5830(f).
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7 G. "Franchise fee" shall have the meaning given that term by the California Public Utilities
8 Code section 5830(g).
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10 H. "Gross revenues" shall have the meaning given that term by the California Public Utilities
11 Code section 5860.
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13 I. "Holder" shall have the meaning given that term by the California Public Utilities Code
14 section 5830(1).
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16 J. "Incumbent cable operator" shall have the meaning given that term by the California
17 Public Utilities Code section 5830(j).
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19 K. "Lead agency" shall have the meaning given that term by the. California Public
20 Resources Code section 21067.
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22 L. "Local franchise" shall mean a cable television franchise, permitting the incumbent
23 cable operator to own, operate, and maintain a cable system and provide cable
24 services within the City, issued by the City prior to December 31, 2006.
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26 M. "Material breach" shall have the meaning given that term by the California Public Utilities
27 Code section 5900(j).
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29 N. "Network" sh-all have the meaning given that term by the California Public Utilities Code
30 section 5830(1), which shall include any component of a facility used to provide video
31 service, cable service, voice, or data services that is wholly or partly physically located
32 within, upon, over or under a public right-of-way.
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34 O. "Public right-of-way" shall have the meaning given that term by the California Public
35 Utilities Code section 5830(0) and include public rights-of-way which have been
36 dedicated to the public or are hereafter dedicated to the public and maintained under
37 public authority or by others and located within the serviced area such as streets,
38 roadways, highways, avenues, lanes, alleys, sidewalks, easements, rights-of-way and
39 similar public property.
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41 P. "State franchise" shall have the meaning given that term by the California Public Utilities
42 Code section 5830(p).
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44 Q. "Video service" shall have the meaning given that term by the California Public Utilities
45 Code section 5830(s).
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47 14.48.020 Franchise Fee for State Franchise Holders
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49 Any state franchise holder shall remit to the City a franchise fee in the amount of five percent
50 (5%) of the gross revenues of the state franchise holder in compliance with California Public
51 Utilities Code sections 5840(q) and 5860.
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Ordinance No. 231 1 N.C.S. Page 3
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3 14.48.025 Public, Educational, and Government Channels.
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5 A. All unsatisfied obligations, existing on January 1, 2007, to remit any cash payments to the
6 City for the ongoing costs of public, educational, and government ("PEG") channel
7 facilities or institutional networks contained in a local franchise, shall continue until August
8 19, 2010 and shall be paid by the incumbent cable operator and any state franchise
9 holders pursuant to California Public Utilities Code section 5870. Such cash payments
10 shall, be divided among the incumbent cable operator and all state franchise holders
11 pursuant to California Public Utilities Code section 5870.
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13 B. All obligations, existing on December 31, 2006, to provide and support PEG channel
14 facilities and institutional networks and to provide cable services to community buildings
15 contained in a local franchise shall continue until August 19, 2010 pursuant to California
16 Public Utilities Code section 5870.
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18 C. Commencing August 20, 2010, any state franchise holder shall remit to the City a fee to
19 support PEG channel facilities in the amount of one percent (1%) of the gross revenues of
20 the state franchise holder in compliance with California Public Utilities Code section 5870.
21 All revenue collected pursuant to this fee shall be deposited in a separate fund and shall
22 only be expended for the purpose of supporting PEG channel facilities.
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24 D. Any state franchise holder shall designate a sufficient amount of capacity on its network
25 to allow the provision of PEG channels in accordance with California Public Utilities Code
26 section 5870. Any state franchise holder shall have three (3) months from the date the
27 City requests the PEG channels to designate the capacity. The three (3) month period
28 shall be tolled by any period during which the designation or provision of PEG channel
29 capacity is technically infeasible.
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31 E. Notwithstanding California Public Utilities Code Section 5870(n), upon the expiration of
32 any state franchise, this section shall be deemed to have been automatically
33 reauthorized without further action of the City Council, unless the state franchise holder
34 has given the City Manager and the City Clerk written notice sixty (60) days prior to the
35 expiration of its state franchise that the state franchise holder will consider this section
36 and the PEG fee established by this section to have expired, pursuant to California Public
37 Utilities Code Section 5870(n), upon the expiration of its state franchise.
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39 F. This section shall be enforced, and disputes regarding this section shall be resolved,
40 pursuant to California Public Utilities Code section 5870.
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42 14.48.030 Payment of Fees.
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44 A. Any state franchise holder shall pay the franchise fee established in section 14.48.020 and
45 the PEG channel facilities fee established in section 14.48.025.0 on a quarterly basis in a
46 manner consistent with California Public Utilities Code section 5860.
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48 B. Any state franchise holder shall deliver to the City by check, or other means agreeable
49 to the City Manager, a separate payment for the franchise fee established. in section
50 14.48.020 and the PEG channel facilities fee established in section 14.48.0025.0 not later
51 than forty-five (45) days after the end of each calendar quarter.
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Ordinance No. 231 1 N.C.S. Page 4
1 C. Each payment of the franchise fee established in section 14.48.020 delivered to the City
2 shall be accompanied by a summary report explaining the basis for the calculation of
3 the payment.
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5 D. Any state franchise holder shall deliver to the City by check, or other means agreeable
6 to the City Manager, any cash payment required by section 14.48.025.A in accordance
7 with the provisions of section 14.48.025.A and Public Utilities Code section 5870.
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9 E. If any state franchise holder fails to remit the franchise fee established in section 14.48.020
10 when due, the state franchise holder shall remit to the City a late payment charge at the
11 rate per year equal to the highest prime lending rate during the period of delinquency
12 plus one percent (1 .
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14 14.48.035 Customer Service Penalties for State Franchise Holders.
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16 A. Any state franchise holder shall comply with the customer service provisions set forth in
17 California Public Utilities Code section 5900.
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19 B. The City shall impose the following penalties against a state franchise holder for any
20 material breach of the customer service provisions set forth in California Public Utilities
21 Code section 5900:
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23 1. For the first occurrence of a material breach, a fine of five hundred. dollars
24 ($500.00) shall be imposed for each day of each material breach, not to exceed
25 one thousand five hundred dollars ($1,500.00) for each occurrence of the
26 material breach.
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28 2. For a second occurrence of a material breach of the same nature as the first
29 material breach that occurs within twelve (12) months, a fine of one thousand
30 dollars ($1,000.00) shall be imposed for each day of each material breach, not to
31 exceed three thousand dollars ($3,000.00) for each occurrence of the material
32 breach.
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34 3. For a third or further occurrence of a material breach of the same nature as the
35 previous material breaches that occurs within twelve (12) months, a fine of two
36 thousand five hundred dollars ($2,500.00) shall be imposed for each day of each
37 material breach, not to exceed seven thousand five hundred dollars ($7,500.00)
38 for each occurrence of the material breach.
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40 C. The City shall provide the state franchise holder with written notice of any alleged
41 material breach of the customer service provisions set forth in California Public Utilities
42 Code section 5900 and shall. allow the state franchise holder at least thirty (30) days from
43 receipt of the notice to remedy the specified material breach.
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45 D. A material breach for the purposes of assessing penalties shall be deemed to have
46 occurred for each day within the jurisdiction of the City, following the expiration of the
47 period specified in section 14.48.035.C, that any material breach has not been remedied
48 by the state franchise holder, irrespective of the number of customers affected. No
49 monetary penalties shall be assessed for a material breach if it is out of the reasonable
50 control of the state franchise holder.
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Ordinance No. 231 1 N.C.S. Page 5
1 E. Pursuant to California Public Utilities Code section 5900, any penalty remitted to the City
2 by a state franchise holder for a material breach of the customer service provisions set
3 forth in California Public Utilities Code section 5900 shall be split in half, and the City shall
4 submit one half of the penalty amount to the Digital Divide Account established by
5 California Public Utilities Code section 280.5.
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7 14.48.040 Appeal Process for Customer Service Penalties.
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9 A. Any state franchise holder may appeal any customer service penalty assessed pursuant
10 to section 14.48.035 according to the following procedure:
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12 B. The state franchise holder may file a Request for Hearing form with the City Clerk within
13 thirty (30) days from receipt of the written notice specified in section 14.48.035.C with an
14 advance deposit of the penalty amount.
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16 C. A Request for Hearing form may be obtained from the City Clerk.
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18 D. The state franchise holder requesting the hearing shall be notified by the City Clerk of the
19 time and place set for the hearing at least ten (10) days prior to the date of the hearing.
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21 E. The hearing shall be set by the City Clerk for a date that is not less than fifteen (15) days
22 and not more than sixty (60) days from the date that the .Request for Hearing form is filed
23 with the City Clerk.
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25 F. At the hearing, the City shall bear the burden of proof by a preponderance of the
26 evidence that the material breach occurred as charged. The City may be represented
27 by counsel:
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29 G. At the hearing, the state franchise holder may cross examine any witness against the
30 state franchise holder and may present evidence. The state franchise holder may be
31 represented by counsel.
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33 H. The formal rules of evidence shall not apply at the hearing. The hearing officer may rely
34 upon such evidence as he or she believes reasonable persons would rely upon in the
35 conduct of their affairs. Any witnesses shall testify under oath.
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37 I. After hearing and reviewing all of the testimony and evidence submitted at the hearing,
38 the hearing officer shall issue a written decision to uphold or cancel the penalty and shall
39 list in the decision the reasons for that decision.. The decision of the hearing officer shall
40 be final.
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42 J. If the hearing officer determines that the penalty should be canceled, the City shall
43 promptly refund the amount of the deposited penalty, together with interest at the
44 average rate earned on the City's investment portfolio for the period of time that the
45 penalty amount was held by the City.
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47 K. The hearing officer shall be the City Manager or his or her designee.
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49 L. Any interested person may obtain review of the decision of the hearing officer by filing
50 an appeal in a court of competent jurisdiction pursuant to California Public Utilities Code
51 section 5900.
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Ordinance No. 2311 N.C.S. Page 6
1 14.48.045 Encroachment Permit.
2
3 A. Any state franchise holder shall apply for an encroachment permit to install, construct or
4 maintain a network pursuant to Section 13.12 120 or Section 13.04.120 of the Petaluma
5 Municipal Code as determined by the Superintendent t of Streets. In addition to the
6 procedures set forth in Section 13.12 120 or Section 13.04.120 of the Petaluma Municipal
7 Code, the following shall apply to any state franchise holder applying for an
8 encroachment permit:
9
10 1. Any encroachment permit application submitted by any state franchise holder
11 shall be approved or denied within sixty (60) days of receipt by the City of a
12 completed application. An application for an encroachment permit is complete
13 when the state franchise holder has complied with all statutory requirements,
14 including requirements of the California Environmental quality Act, Public
15 Resources Code sections 21000 et seq. ("CEQA"), pursuant to California Public
16 Utilities Code section 5885.
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18 2. The sixty (60) day time period for approval or denial of an encroachment permit
19 application may be extended if mutually agreed to in a written agreement
20 between the state franchise holder and the City.
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22 3. Any denial of an encroachment permit application submitted to any state
23 franchise holder by the City shall be written and shall include a detailed
24 explanation of the reason for the denial.
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26 4. Any state franchise holder may appeal a denial of an encroachment permit
27 application to the City Council pursuant to Section 13.04.1.60 of the Petaluma
28 Municipal Code.
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30 B. In the event that any part of this section conflicts in any way with Chapters 13..04, 13.12,
31 and 13.14 of the Petaluma Municipal Code, this section shall apply.
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33 14.48.050 Authority to Examine Business Records.
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35 A. The City may examine once per year the business records of any state franchise holder
36 relating to gross revenues in a manner consistent with California .Public Utilities Code
37 section 5860.
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39 B. All state franchise holders shall keep and maintain all business records reflecting any
40 gross revenues, regardless of change in ownership, for at least four (4) years after those
41 gross revenues are recognized by the state franchise holder on its books and records
42 pursuant to California Public Utilities Code section 5860.
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44 C. If the state franchise holder has underpaid the franchise fee established by section
45 14.48.020 by more than five percent (5%), the state franchise holder shall pay the
46 reasonable and actual costs of the examination. If the state franchise holder has not
47 underpaid the franchise fee established in section 14.48.020; the City shall pay the
48 reasonable and actual costs of the examination. If the state franchise holder, however,
49 has underpaid the franchise fee established by section 14.48.020 by five percent (5~0) or
50 less, the state franchise holder and the City shall each bear its own costs of the
51 examination.
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Ordinance No. 231 1 N.C.S. Page 7
1 14.48.055 Environmental Review.
2
3 The City shall serve as the lead agency for any environmental review under DIVCA. The City
4 may impose conditions to mitigate environmental impacts of any state franchise holder's use of
5 the public rights-of-way that may be required pursuant to CEQA.
6
7 14.48.060 Emergency Alert System.
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9 All state franchise holders shall comply with the Emergency Alert System requirements of the
10 Federal Communications Commission in order that emergency messages may be distributed
11 over all state franchise holders' networks.
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13 14.48.065 Non-Discriminatory Video Service.
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15 Any state franchise holder is prohibited from discriminating against or denying access to service
16 to any group of potential residential subscribers within the City because of fhe income of the
17 residents in the local area in which the group resides. This requirement may be satisfied pursuant
18 to California Public Utilities Code section 5890. The City may bring complaints to the CPUC that
19 a state franchise holder is not offering video services as required by California Public Utilities
20 Code section 5890.
21
22 14.48.070 City Response to State Video Franchise Applications
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24 A. Applicants for state video franchises within the boundaries of the City of Petaluma must
25 concurrently provide complete copies to the City of any application or amendments to
26 applications filed with the California Public Utilities Commission (PUC) and any other
27 agency. One complete copy must be provided to the City Manager.
28
29 B. Within 30 days of receipt, the City Manager may provide any appropriate comments to
30 the PUC or other agency regarding an application or an amendment to an application
31 for a state video franchise.
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33 SECTION 3. Severability. The provisions of this Ordinance are severable and if any provision,
34 clause, sentence, word or part thereof is held illegal, invalid, unconstitutional, or inapplicable to
35 any person or circumstances, such illegality, invalidity, unconstitutionality, or inapplicability shall
36 not affect or impair any of the remaining provisions, clauses, sentences, sections, words or parts
37 thereof of this Ordinance or their applicability to other persons or circumstances.
38
39 SECTION 4. Effective Date. This Ordinance of the City of Petaluma shall be effective thirty
40 (30) days after the date of its passage.
41
42 SECTION 5. Publication. The City Clerk is hereby directed to post and/or publish this ordinance
43 or a synopsis of this ordinance for the period and in the manner required by the City Charter.
44
45 INTRODUCED AND ORDERED POSTED/p"R'D THIS 15'h day of September, 2008.
46
47 ADOPTED THIS 6'" day of October, 2008, by the following vote:
48
49
50 AYES: Barrett, Freitas, Harris, Nau, O'Brien, Vice Mayor Babbitt, Mayor Torliatt
51
52 NOES: None
Ordinance No. 231 1 N.C.S. Page 8
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2 ABSENT: None
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4 ABSTAIN: .None
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10 Pa ela Torliatt, Mayor
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14 ATTEST: APPROVED AS TO FORM:
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21 Claire Cooper, CMC, City Clerk Eric W. Danly, City Attorney
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Ordinance No. 231 1 N.C.S. Page 9