ORDINANCE NO._______________

BOARD OF SUPERVISORS, COUNTY OF SAN MATEO,

STATE OF CALIFORNIA

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AN ORDINANCE REPEALING AND REPLACING SECTIONS 5.104.010 THROUGH 5.104.060 AND ADDING SECTIONS 5.104.070 THROUGH 5.104.120 TO CHAPTER 5.104 OF TITLE 5 OF THE SAN MATEO COUNTY ORDINANCE CODE GOVERINING CABLE TELEVISION FRANCHISES TO CONFORM TO THE CALIFORNIA DIGITAL INFRASTRUCTURE AND VIDEO COMPETITION ACT OF 2006

The Board of Supervisors of the County of San Mateo, State of California, ORDAINS as follows:

SECTION 1.

Section 5.104.010 through Section 5.104.060 of Chapter 5.104, Title 5 of the San Mateo County Ordinance Code are hereby repealed and replaced to read as follows:

5.104.010 Purpose and Implementation.

It is the purpose of this chapter to implement the provisions of the California Digital Infrastructure and Video Competition Act of 2006 (Public Utilities Code Section 5800 et seq., “DIVCA”) and the rules promulgated thereunder by the California Public Utilities Commission as they apply to a “local franchising entity” or a “local entity” as defined under DIVCA in Sections 5830(h) and 5830(k) of the California Public Utilities Code, respectively within the unincorporated areas of San Mateo County (County). Consistent with that purpose, the provisions of this Chapter are to be construed in a manner consistent with DIVCA and the applicable rules of the California Public Utilities Commission promulgated thereunder.

On January 1, 2007, the State of California became the sole authority with power to grant state video franchises pursuant to the DIVCA under the California Public Utilities

Commission final rulemaking decision dated March 1, 2007. Pursuant to DIVCA, the County shall receive a franchise fee and a fee for public, educational and/or government (PEG) purposes from all state video franchise holders operating within County. Additionally, the County acquired the responsibility to establish and enforce penalties, consistent with state law, against all state video franchise holders operating within the County for violations of customer service standards pursuant to DIVCA. DIVCA leaves unchanged the County’s franchise Agreements with Comcast and Open Video Service Agreements with Astound Broadband to operate in the County, until those Agreements expire.

5.104.020 Definitions.

For the purposes of this Chapter, the following words, terms, phrases, and abbreviations and their similar formulations shall have the meanings given them in this Chapter. Words not defined in this Chapter, shall have the same meanings as established in (1) DIVCA, and if not defined therein, (2) California Public Utilities Commission rules promulgated thereunder, and if not defined therein, (3) their common and ordinary meaning.

a)

“Access”, “PEG access”, or “PEG use” means the availability of cable system or video service provider network capacity for public, educational, or governmental use by various agencies, institutions, organizations, groups, individuals, including County and its designated access providers, to acquire, create, and distribute programming not under a cable operator’s or video service provider’s editorial control, including, but not limited to:

1.

“Public access” or “Public use” means access where organizations, groups or individual members of the general public, on a nondiscriminatory basis, are the primary or designated programmers, or users having editorial control over their programming;

2.

“Educational access” or “Educational use” means access where accredited educational institutions are the primary or designated programmers or users having editorial control over their programming; and

3.

“Governmental access” or “Governmental use” means access where governmental institutions or their designees are the primary or designated programmers or users having editorial control over their programming.

(b)

“Cable Coordinator” means the County Manager or the individual or individuals designated by the County Manager to administer oversight of county franchisees or state franchisees in unincorporated San Mateo County.

(c)

“Channel” means a portion of the electromagnetic frequency spectrum which is used in a cable system or the network of a video service provider and which is capable of delivering a television signal, whether in an analog or digital format. The definition does not restrict the use of any channel to the transmission of analog television signals.

(d)

“County” means the government of the County of San Mateo, a chartered county and a municipal corporation duly organized and validly existing under the laws of the State of California, and all departments, divisions, and offices thereof.

(e)

“Board” means the County Board of Supervisors.

(f)

“Commission” means the California Public Utilities Commission.

(g)

“County Franchise” means any cable and/or video franchise issued by the County through an Agreement between the County and a provider on or before January 1, 2007.

(h)

“DIVCA” means the Digital Infrastructure and Video Competition Act of 2006, Assembly Bill 2987 (Ch 700, Stats 2006), and as that Act may hereafter be amended.

(j)

“EAS” means Emergency Alert System.

(k)

“FCC” means the Federal Communications Commission.

(l)

“Person” includes any natural person, association, company, corporation, limited liability company, limited liability partnership, limited partnership, joint stock company, partnership, trust, or any other legal entity, but not the County.

(m)

“PEG” means public, educational and governmental access.

(n)

“Public rights-of-way” means the surface of and the space above and below any street, road, highway, freeway, bridge, lane, path, alley, court, sidewalk, parkway, drive, or right-of-way or easement primarily dedicated to travel, now or hereafter existing within the unincorporated areas of the County which may be properly used for the purpose of installing, constructing, operating, maintaining, and repairing a cable system or a video service provider’s network; and any other property that a county franchisee or state franchisee is entitled by California or Federal law to use by virtue of the grant of a county franchise or a state franchise.

(o)

“Public property” means any property that is owned or under the control of the County that is not located in the public rights-of-way, including, for purposes of this Chapter, but not limited to, buildings, parks, and pole structures, such as utility poles and light poles, or similar facilities or property owned by or leased to the County.

(p)

“State franchisee” means any cable operator or video service provider that, pursuant to DIVCA, has been granted a state franchise to provide cable or video service by the Commission and whose video service area includes all or any part of the unincorporated limits of the County.

(q)

“Video service provider” has the meaning set forth in DIVCA and, in addition, refers collectively to any cable operator, video service provider or Open Video Service (OVS) operator as defined in DIVCA.

(r)

“Material Breach” is defined as set forth in DIVCA Section 5900.

5.104.030 State Video Franchise Fees.

Any state franchisee operating within the boundaries of the County shall pay a fee to the County equal to five percent (5%) of the “gross revenue” of that state franchisee. Gross revenue, for the purposes of this chapter, shall have the definition set forth in California Public Utilities Code § 5860. The state franchise fee shall be remitted to the County, within 45 days after the end of the quarter for that calendar quarter. Each payment shall be accompanied by a summary explaining the basis for the calculation of the state franchise fee. If the holder does not pay the franchise fee when due, the holder shall pay a late payment charge at a rate per year equal to the highest prime lending rate during the period of delinquency, plus 1 percent. If the holder has overpaid the franchise fee, it may deduct the overpayment from its next quarterly payment.

5.104.040 Public, Education and Government (PEG) Channel Capacity, PEG Support Fees, PEG Interconnection, and County Franchisee’s Obligations.

(a)

PEG Channel Capacity.

1.

The current County Franchises provide for seven (7) or four (4) Public, Educational and Governmental channels for PEG programming depending on the service area. Local franchisees and holders of a state franchise under DIVCA shall provide the same number of PEG channels as provided in the County Franchise service areas.

2.

All state franchisees shall comply with the provisions of DIVCA related to PEG channels. Without limiting the foregoing, the PEG channels shall be carried on the basic service tier. To the extent feasible, the PEG channels shall not be separated numerically from other channels carried of the basic service tier and the channel numbers for the PEG channels shall be the same channel numbers used by the incumbent cable operator as defined in Public Utilities Code Section 5830(i) unless prohibited by federal law and shall provide video and sound quality, recording capability, channel accessibility and location equal to, or substantially equal to, that provided by the incumbent cable providers. After the initial designation of PEG channel numbers, the channel numbers shall not be changed without agreement from the County unless the change is required by federal law.

3.

A state franchise holder shall have three (3) months from the date the County requests the PEG channels to designate the capacity. However, the three-month period shall be tolled by any period during which the designation or provision of PEG channel capacity is technically infeasible, including any failure or delay of the incumbent cable operator to make adequate interconnection available, as required by DIVCA. Any state franchise holder who believes that the designation or provision of PEG channel capacity is technically infeasible, shall provide to the County, in writing, its reasons therefore and its plan for correcting or solving the infeasibility. County may hold a hearing on the claim of infeasibility and, thereafter, take such action as County deems proper to require the designation and provision of the PEG channels on the state franchise holder’s system.

(b)

PEG Support Fees.

1.

Amount of PEG support fee.

(A)

Except as provided in subparagraphs (B) and (C), every state franchisee operating within the boundaries of the unincorporated areas of the County shall pay a PEG support fee to the County calculated on the same basis as the PEG support fee paid by the incumbent County Franchise for the corresponding service area.

(B)

Upon the expiration of any County Franchise or its earlier termination pursuant to California Public Utilities Code Section 5840(o)(3), every state franchisee operating within the corresponding unincorporated boundaries of the County shall pay a new PEG support fee to the County calculated on the same basis as the PEG support fee paid by the incumbent County Franchise for the corresponding service area or the equivalent of 1% of the state franchisee’s revenue, whichever is higher. State franchisees shall remit PEG fees in the same manner as franchise fees, pursuant to Section 5.104.030.

(C)

As of December 31, 2006, pursuant to the most recent franchise agreement, the County also imposed on the local cable operator a one-time capital grant of three hundred seventy nine thousand nine hundred and eight dollars ($379,908) for PEG equipment and facilities. Pursuant to section 5870(l) of the California Public Utilities Code, every state franchisee operating within the boundaries of the County shall be responsible for a pro-rata, per subscriber share of any outstanding capital grant payments.

2.

The PEG support fee shall be used by the County for PEG purposes consistent with state and federal law.

(c)

PEG Interconnection.

1.

If a state franchisee and an incumbent cable operator cannot reach a mutually acceptable interconnection agreement for PEG carriage, the County shall require the incumbent cable operator to allow the state franchisee to interconnect its network with the incumbent cable operator’s network at a technically feasible point on the state franchisee’s network as identified by the state franchisee. If no technically feasible point of interconnection is available, the state franchisee shall make interconnection available to the PEG channel originator and shall provide the facilities necessary for the interconnection. The cost of any interconnection shall be borne by the state franchisee requesting the interconnection unless otherwise agreed to by the parties.

(d)

County Franchisee’s Obligations

An incumbent cable operator’s obligation to provide and support PEG channel facilities and institutional networks and to provide free cable service to schools and other public buildings shall continue until the expiration of the incumbent cable operator’s existing County Franchise.

5.104.050 Audits and Records.

(a)

Not more than once annually, the County or its designee may examine and perform an audit of the business records of a state franchisee to ensure compliance with the franchise fee payment obligations of and the PEG support fee payment obligations contained in this Chapter.

(b)

A state franchisee shall keep all business records reflecting any gross revenues, even if there is a change in ownership of the state franchisee, for at least four (4) years after such gross revenues are recognized by the state franchisee on its books and records. In the case of subscriber numbers used for calculating the PEG fee, a state franchisee shall keep data on the number of its subscribers in the unincorporated areas of the County, even if there is a change in ownership of the state franchisee, for at least four (4) years after the close of each calendar quarter on which the PEG support fee is to be paid.

(c)

To the extent consistent with DIVCA and other applicable law, the County may request, and a state franchisee shall provide, information and books and records to the extent necessary to monitor a state franchisee’s compliance with this Chapter.

5.104.060 State Franchise Service Obligations.

The County may bring complaints to the Commission that a state franchisee is not offering video service as required by California Public Utilities Code Section 5890.

SECTION 2. Sections 5.104.070 through 5.104.120 are added to Chapter 5.104, Title 5 of the San Mateo County Ordinance Code and shall read as follows:

5.104.070 Customer Service and Protection.

(a)

A state franchisee shall comply with California Government Code Sections 53055, 53055.1, 53055.2 and 53088.2; the FCC customer service and notice standards set forth in Title 47 of the Code of Federal Regulations Sections 76.309, 76.1602, 76.1603 and 76.1619; California Penal Code Section 637.5; the privacy standards of Title 47 Section 551 of the United States Code; and all other applicable state and federal customer service and consumer protection standards pertaining to the provision of video service, including any such standards hereafter adopted. In case of a conflict, the stricter standard shall apply. All customer service and consumer protection standards under this paragraph shall be interpreted and applied to accommodate newer or different technologies while meeting or exceeding the goals of the standards.

(b)

The Cable Coordinator shall monitor the compliance of state franchisees with respect to the state and federal customer service and consumer protection standards set forth in paragraph (a). The Cable Coordinator will provide a state franchisee with written notice of any material breaches of applicable customer service or consumer protection standards, and will allow the state franchisee 30 days from the receipt of the notice to remedy the specified material breach. Material breaches not remedied within the 30-day time period will be subject to the following penalties to be imposed by the County:

1.

For the first occurrence of a violation, a fine of five hundred dollars ($500.00) shall be imposed for each day the violation remains in effect, not to exceed one thousand five hundred dollars ($1,500) for each violation.

2.

For a second violation of the same nature within twelve (12) months, a fine of one thousand ($1,000) shall be imposed for each day the violation remains in effect, not to exceed three thousand ($3,000) for each violation.

3.

For a third or further violation of the same nature within twelve (12) months, a fine of two thousand five hundred dollars ($2,500) shall be imposed for each day the violation remains in effect, not to exceed seven thousand five hundred dollars ($7,500) for each violation.

(c)

A state franchisee may appeal a penalty assessed by the Cable Coordinator to the Board within 60 days of the initial assessment. The Board shall hear all evidence and relevant testimony and may uphold, modify or vacate the penalty. The Board’s decision on the imposition of a penalty shall be final.

5.104.080 Emergency Alert System.

(a)

A state franchisee shall comply with the EAS requirements of the FCC in order that emergency messages may be distributed over the state franchisee’s network.

(b)

A state franchisee’s EAS shall be remotely activated by telephone and shall allow an authorized representative of the County to override the audio and video on all channels on the state franchise’s network that may be lawfully overridden, without the assistance of the state franchisee, for emergency broadcasts from a location designated by the County in the event of a civil emergency or for reasonable tests. Testing of a state franchisee’s EAS shall occur at times that will cause minimal subscriber inconvenience.

(c)

The County shall permit only appropriately trained and authorized persons to operate the EAS equipment. Except to the extent expressly prohibited by applicable law, the County shall hold the state franchisee, its employees and officers harmless from any claims arising out of the emergency use of its facilities by the County.

(d)

Subsections (b) and (c) of this section shall expire and no longer be effective after the natural expiration of the incumbent County Franchise Agreement serving the same corresponding area of the unincorporated County being served by a state franchisee.

5.104.090 Notices.

All notices and copies of documents that DIVCA requires to be provided to the County, as a local entity or a local franchising entity, shall be addressed to the County Manager, Attention: Cable Coordinator.

5.104.100 Response to State Franchise Applications.

(a)

Applicants for state franchises within the boundaries of the County must concurrently provide complete copies to the County of any application or amendments to applications filed with the California Public Utilities Commission (PUC). One complete copy must be provided to the County Manager.

(b)

Within 30 days of receipt, the County Manager will provide any appropriate comments to the PUC regarding an application or an amendment to an application for a state franchise.

5.104.110 Miscellaneous Provisions.

(a)

The captions to sections throughout this Chapter are intended solely to facilitate reading and reference to the sections and provisions of this Chapter. Such captions shall not affect the meaning or interpretation of this Chapter.

(b)

Unless otherwise indicated, when the performance or doing of any act, duty, matter, or payment is required under this chapter, and a period of time or duration for the fulfillment of doing thereof is prescribed and is fixed herein, the time shall be computed so as to exclude the first and include the last day of the prescribed or fixed period of time.

(c)

If any term, condition, or provision of this chapter shall, to any extent, be held to be invalid or unenforceable by a valid order of any court or regulatory agency of competent jurisdiction, the remainder hereof shall be valid in all other respects and continue to be effective. In the event of a subsequent change in applicable law that renders valid the provision that had been held invalid that provision shall thereupon return to full force and effect without further action by the County and shall thereafter be binding on the state franchisee and the County.

5.104.120 Severability.

If any section of this chapter, or part hereof, is held by a court of competent jurisdiction in a final judicial action to be void, voidable or unenforceable, such section, or part hereof, shall be deemed severable from the remaining sections of this chapter and shall in no way affect the validity of the remaining sections hereof.

SECTION 3. This Ordinance shall be effective thirty (30) days from the passage date thereof.

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