A.
The
city council finds and determines as follows:
1.
The
development of cable, video and telecommunications 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,
video and telecommunications services and systems, the public convenience,
safety, and general welfare can best be served by exercise of the
city's regulatory powers.
3.
To
obtain fair and reasonable compensation for the city and its residents
in exchange for the private use of the public right-of-way and public
property by entities that is not exempt from paying compensation for
such use.
4.
The
cable, video and telecommunications services that are addressed in
this chapter include without limitation services provided by the following:
cable television systems; open video systems; master antenna television
systems; satellite master antenna television systems; direct broadcast
satellite systems; multi-channel multipoint distribution systems;
and local multipoint distribution systems. This also includes voice
and data services provided by telephone corporations.
B.
The
purpose of this chapter 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
authorize and to manage reasonable access to the city's public rights-of-way
and public property for cable, video and telecommunications purposes
on a competitively neutral and nondiscriminatory basis.
3.
To
obtain fair and reasonable compensation for the city and its residents
in exchange for the private use of the public rights-of-way and public
property by entities that are not exempt from paying compensation
for such use.
4.
To
promote competition in cable, video and telecommunications services,
minimize unnecessary local regulation of cable, video and telecommunications
service providers, and encourage the delivery of advanced and competitive
cable, video and telecommunications services on the broadest possible
basis to local government and to the businesses, institutions, and
residents of the city.
5.
To
establish clear local guidelines, standards, and time frames for the
exercise of local authority with respect to the regulation of cable,
video and telecommunications service providers.
6.
To
encourage the deployment of advanced cable, video and telecommunications
infrastructure that satisfies local needs, delivers enhanced government
services and provides informed consumer choices in an evolving cable,
video and telecommunications marketplace.
(Ord. 1515; Ord. 1521)
For the purposes of this chapter, the following words and phrases
have the meanings set forth below. Unless otherwise expressly stated,
words and phrases not defined in this chapter will be given their
meaning as used in Title 47 of the United States Code and, if not
defined in that code, their meaning as used in Title 47 of the Code
of Federal Regulations.
any antenna used for transmitting and receiving radio signals
in conjunction with an amateur radio station licensed by the Federal
Communications Commission (FCC).
any system of poles, panels, rods, reflecting discs or similar
devices used for the transmission or reception of electromagnetic
waves or radio frequency signals, including devices with active elements
extending in any direction, and directional parasitic arrays with
elements attached to a generally horizontal boom which may be mounted
on a vertical support structure.
equipment, switches, wiring, cabling, power sources, shelters
or cabinets associated with an antenna, located at the same fixed
location as the antenna, and, when collocated on a structure, is mounted
or installed at the same time as such antenna.
an antenna and associated antenna equipment.
any natural person, firm, partnership, association, joint
venture, corporation, or other entity (or combination of entities),
and the agents, employees, and contractors of such person or entity
that seeks city permits or other authorizations under this chapter.
the director of public works designated to review and issue
a decision on a proposed permit or other authorization under this
chapter.
any approval that the approval authority must issue under applicable law prior to the installation, construction or other deployment of a small wireless facility, eligible facility, or any other wireless communications facility under Section 6.10.070 or 6.10.075 of this chapter, including, but not limited to, encroachment permit, excavation permit, zoning approval and/or building permit.
an antenna mounted on the side or top of a building or another
structure (e.g., water tank, billboard, church steeple, freestanding
sign, etc.), where the entire weight of the antenna is supported by
the building, through the use of an approved framework or other structural
system which is attached to 1 or more structural members of the roof
or walls of the building.
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.
Government Code Section 53054 et seq.
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. "Cable
television system" does not include any of the following:
A facility that serves only to retransmit the television signals
of one or more television broadcast stations.
A facility that serves subscribers without using any public
right-of-way.
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.
An open video system that complies with Section 653 of the Communications
Act.
Facilities of an electric utility that are used solely for operating
its electric utility system.
any person or group of persons who either:
the Code of Federal Regulations.
For a small wireless facility subject to Section 6.10.070 of this chapter, "collocation" means: (a) mounting or installing an antenna facility on a pre-existing structure; and/or (b) modifying a structure for the purpose of mounting or installing an antenna facility on that structure.
For an eligible facility subject to Section 6.10.075 of this chapter, "collocation" has the meaning set forth in Section 6.10.075.B of this chapter.
For any other wireless communication facility subject to Section 6.10.070 of this chapter, "collocation" means the location of 2 or more wireless, hard wire, or cable communication facilities on a single support structure or otherwise sharing a common location. Collocation shall also include the location of communication facilities with other facilities (e.g., water tanks, light standards, and other utility facilities and structures).
the Communications Act of 1934 (47 U.S.C. Section 153 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.
a telecommunications company that competes with local telephone
companies in providing local exchange service, as defined and regulated
by the CPUC pursuant to Public Utilities Code Section 1001 as amended.
the California Public Utilities Commission.
any light fixture that incorporates ornamental design features
while also meeting the specific spread and lumen requirements dictated
by the location and purpose. Design features may include post top
and pendant bulbs, posts, bases, cross-arms, bollards and signage.
Height, density and placement relative to nearby architectural features
are also relevant to the design and purpose. Some examples in the
City of Seal Beach include the Electric Avenue greenbelt, Seal Beach
Pier and Main Street Business District.
the installation, placement, construction, or modification
of a small wireless facility, eligible facility or other wireless
communications facility.
the public works director of the City of Seal Beach.
a dish-like antenna used to link communication sites together
by wireless transmissions of voice or data. Also called microwave
dish antenna.
a network of 1 or more antenna and fiber optic nodes connecting
to a common base station or "hub."
the local electric and magnetic fields caused by voltage
and the flow of electricity that envelop the space surrounding an
electrical conductor.
as defined in Section 6409(a). See Section 6.10.075 of this chapter.
a cabinet or structure used to house equipment associated
with a wireless, hard wire, or cable communication facility.
the Federal Aviation Administration.
Federal Communications Commission.
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.
a fee or assessment of any kind that is authorized by state
or federal law to be imposed by the city on a franchisee as compensation
in the nature of rent for the franchisee's use of the public rights-of-way.
"Franchise fee" does not include any of the following:
Any tax, fee or assessment of general applicability (including
any such tax, fee or assessment imposed on both utilities and franchisees
or their services).
Capital costs that are required by the franchise to be incurred
by a franchisee for PEG access facilities.
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.
Any fee imposed under Title 17 of the United States Code.
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.
any person that is awarded a franchise in accordance with
this chapter, and that person's lawful successor, transferee, or assignee.
the annual gross revenues derived from the franchisee's operations
of its cable television system to provide cable services within the
city, excluding uncollected bad debt, refundable deposits, rebates
or credits, and further excluding any sales, excise, or other taxes
or charges that are required to be collected for direct pass-through
to the local, state or federal government. Revenues identified and
collected from subscribers as franchise fees may not be excluded from
a franchisee's gross annual cable service revenues.
any freestanding antenna, the entire weight of which is supported
by an approved freestanding platform, framework, or other structural
system which is attached to the ground by a foundation.
the Joint Forces Training Base, Los Alamitos, California,
also known as the Los Alamitos Army Airfield.
an excavation permit, encroachment permit, or building permit
and any required ministerial permit application form and supporting
documents required by the city.
a single freestanding pole, post, or similar structure, used
to support equipment associated with a single communication facility.
a person who makes available multiple channels of video programming
for purchase by subscribers or customers. "Multi-channel video programming
distributor" includes without limitation the following: a cable system
operator; an open video system operator; a multi-channel multipoint
distribution service; a direct broadcast satellite service; and a
television receive-only satellite program distributor.
the Naval Weapon Station, Seal Beach, California.
the National Environmental Policy Act.
the National Historical Preservation Act.
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.
any person or group of persons who provides cable service
over an open video system and directly or through 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.
information that a cable system operator makes available
to all subscribers generally.
an antenna or array of antennas that are flat and rectangular
and are designed to concentrate a radio signal in a particular area.
Also referred to as a directional antenna.
the total of the following:
an individual, corporation, limited liability company, partnership,
association, trust, or other entity or organization, including a governmental
entity.
a single shaft of wood, steel, concrete or other material
capable of supporting the equipment mounted thereon in a safe and
adequate manner and as required by provisions of this code.
any public road, highway, sidewalk or other area described
in and subject to California Public Utilities Code Section 7901 or
7901.1, as interpreted by applicable case law, and owned, licensed,
leased or otherwise under the control of the city.
radio frequency.
The policies, rules, guidelines, regulations and procedures
adopted from time to time by the city council to administer and implement
this chapter.
Section 6409(a) of the Middle Class Tax Relief and Job Creation
Act of 2012, Pub. L. No. 112-96, 126 Stat. 156, codified as 47 U.S.C.
Section 1455(a) (the "Spectrum Act"), as may be amended.
a facility that meets each of the following conditions:
The facility:
Is mounted on structures 50 feet or less in height including
its antennas as defined in this section, or
Is mounted on structures no more than 10% taller than other
adjacent structures, or
Does not extend existing structures on which it is located to
a height of more than 50 feet or by more than 10%, whichever is greater;
Each antenna associated with the deployment, excluding associated
antenna equipment (as defined in this section), is no more than 3
cubic feet in volume;
All other wireless equipment associated with the structure,
including the wireless equipment associated with the antenna and any
pre-existing associated equipment on the structure, is no more than
28 cubic feet in volume;
The facility does not require antenna structure registration
under Part 17 of Subchapter A of Chapter 1 of Title 47 C.F.R., or
its successor regulations;
The facility is not located on Tribal lands, as defined under
36 C.F.R. Section 800.16(x), or its successor regulation; and
The facility does not result in human exposure to radio frequency
radiation in excess of the applicable safety standards specified in
47 C.F.R. Section 1.1307(b), or its successor regulation.
a telecommunications facility that is designed to blend into
the surrounding environment, typically one that is architecturally
or aesthetically camouflaged or otherwise integrated into a structure.
Also referred to as a concealed antenna.
a pole, tower, base station, or other building, whether or
not it has an existing antenna facility, that is used or to be used
for the provision of wireless communications service (whether on its
own or comingled with other types of services).
any person who, for any purpose, subscribes to the services
provided by a multi-channel video programming distributor and who
pays the charges for those services.
the transmission, between or among points specified by the
user, of information of the user's choosing, without change in the
form or content of the information as sent and received.
equipment, other than customer premises equipment, used by
a telecommunications service provider to provide telecommunications
service, including software that is integral to that equipment.
the offering of telecommunications directly to the public
for a fee, or to such classes of users as to be effectively available
directly to the public, regardless of the equipment or facilities
that are used.
any provider of telecommunications service.
any person, company, firm or entity that qualifies as a "telephone
corporation" pursuant to California Public Utilities Code Section
234 as amended from time to time.
portable wireless facilities intended or used to provide
wireless communications services on a temporary or emergency basis,
such as a large-scale special event in which more users than usual
gather in a confined location or when a disaster disables permanent
wireless facilities. Temporary wireless communications facilities
include, without limitation, cells-on-wheels ("COWs"), sites-on-wheels
("SOWs"), cells-on-light-trucks ("COLTs") or other similarly portable
wireless facilities not permanently affixed to the site on which it
is located.
any ground or roof mounted pole, spire, structure, or combination
thereof taller than 15 feet, including supporting lines, cables, wires,
braces, and masts, intended primarily for the purpose of mounting
an antenna or similar apparatus above grade.
Government Code Section 53088 et seq.
programming provided by, or generally considered comparable
to programming provided by, a television broadcast station.
any person or group of persons who has the right under the
federal copyright laws to select and to contract for the carriage
of specific video programming on a cable system or an open video system.
any person, company, or service that provides one or more
channels of video programming to a residence, including a home, multifamily
dwelling complex, congregate-living complex, condominium, apartment,
or mobile home, where some fee is paid for that service, whether directly
or as included in dues or rental charges, and whether or not public
rights-of-way are used in the delivery of that video programming.
"Video provider" includes without limitation providers of the following:
cable television service; open video system service; master antenna
television; satellite master antenna television; direct broadcast
satellite; and multipoint distribution services.
an antenna consisting of a single, slender, rod-like element,
which is supported only at or near its base. They are typically less
than 6 inches in diameter and measure up to 18 feet in height. Also
referred to as omnidirectional, stick or pipe antennas.
the same as a "wireless telecommunications colocation facility"
is defined in Government Code Section 65850.6, as may be amended,
which defines a "wireless telecommunications colocation facility"
as a wireless telecommunications facility that includes colocation
facilities; a "colocation facility" as the placement or installation
of wireless facilities, including antennas, and related equipment,
on, or immediately adjacent to, a wireless telecommunications colocation
facility; a "wireless telecommunications facility" as equipment and
network components such as towers, utility poles, transmitters, base
stations, and emergency power systems that are integral to providing
wireless telecommunications services.
public, commercial and private electromagnetic and photoelectrical
transmission, broadcast, repeater and receiving stations for radio,
television, telegraph, telephone, data network, and wireless telecommunications,
including commercial earth stations for satellite-based communications,
whether such service is provided on a stand-alone basis or commingled
with other wireless communications services. Includes antennas, commercial
satellite dish antennas, and equipment buildings. Does not include
telephone, telegraph and cable television transmission facilities
utilizing hard-wired or direct cable connections.
a permit issued by the city pursuant to this chapter, and
including the following categories:
Small Wireless Facility Permit (SWFP):
a permit issued by the director pursuant to the requirements of Section 6.10.070 of this chapter for: (a) the deployment of a new small wireless facility; or (b) the replacement of, collocation on, or modification of, an existing small wireless facility.
Eligible Facility Permit (EFP):
a permit issued for an eligible facility as defined in and subject to the requirements of Section 6.10.075 of this chapter.
Maintenance Encroachment Permit:
an encroachment permit issued by the director pursuant to Section 6.10.070 of this chapter to carry out minor modifications, minor emergency maintenance or repairs, or other routine maintenance or repairs to an existing WCF.
the provision of services using a wireless communications
facility, and shall include, but not be limited to, the following
services: personal wireless services as defined in the federal Telecommunications
Act of 1996 at 47 U.S.C. Section 332(c)(7)(C) or its successor statute,
cellular service, personal communication service, and/or data radio
telecommunications.
(Ord. 1515; Ord. 1677)
A.
Franchise
Purposes. A franchise granted by the city under the provisions of
this section may authorize the franchisee to do the following:
1.
Engage
in the business of providing cable service and such other telecommunications
services as may be authorized by law and that the franchisee elects
to provide to its subscribers within the designated franchise service
area.
2.
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 or other public places within the designated franchise
service area.
3.
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
Requirement. It is unlawful for any person to construct, install,
or operate a cable television system within any public right-of-way
in the city without first obtaining a franchise under the provisions
of this chapter.
C.
Franchise
Term.
1.
A
franchise granted under this chapter shall be for the term specified
in the franchise agreement, commencing upon the effective date of
the ordinance or resolution adopted by the city council that authorizes
the franchise.
2.
A
franchise granted under this chapter may be renewed upon application
by the franchisee in accordance with the then-applicable provisions
of state and federal law and this chapter.
D.
Franchise
Territory. 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.
E.
Federal
or State Jurisdiction. This chapter will be construed in a manner
consistent with applicable federal and state laws, and it applies
to all franchises granted or renewed after the effective date of this
chapter, to the extent authorized by applicable law.
F.
Franchise
Nontransferable.
1.
A
franchisee 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 franchisee, or any mortgage or other
hypothecation, will not be deemed a transfer for the purposes of this
paragraph.
2.
The
requirements of paragraph 1 of this subsection apply to any change
in control of a franchisee. 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 a franchisee is a partnership or a corporation, prior authorization
of the city council is required where ownership or control of 25%
or more of the partnership interests or of the voting stock of the
franchisee, or any company in the tier of companies controlling the
franchisee, whether directly or indirectly, is acquired by a person
or a group of persons acting in concert, none of whom, singularly
or collectively, owns or controls those partnership interests or that
voting stock of the franchisee, or of the franchisee's upper tier
of controlling companies, as of the effective date of the franchise.
3.
A
franchisee must notify the city in writing of any foreclosure or judicial
sale of all or a substantial part of the franchisee's franchise property,
or upon the termination of any lease or other interest covering all
or a substantial part of that franchise property. That notification
will be considered by the city as notice that a change in control
of ownership of the franchise has taken place, and the provisions
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 the franchisee
must assist the city in that inquiry. In seeking the city's consent
to any change of ownership or control, the franchisee or the proposed
transferee, or both, must complete FCC 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
operate and maintain the cable system and to comply with all franchise
requirements during the remaining term of the franchise. 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 franchisee'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 the franchisee'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 insure 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 18 months
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 franchisee.
6.
A
franchisee 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 may include without
limitation costs of the following: 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; and document preparation. The total
amount of these reimbursable expenses may be subject to maximum limits
that are specified in the franchise agreement between the city and
the franchisee. No reimbursement may be offset against any franchise
fee payable to the city during the term of the franchise.
G.
Geographical
Coverage.
1.
Unless
otherwise provided in the franchise agreement, a franchisee must design,
construct and maintain the cable television system to have the capability
to pass every dwelling unit and commercial building in the franchise
service area, subject to any service-area line extension requirements
or territorial restrictions set forth in the franchise agreement.
2.
After
service has been established within all or any part of the franchise
service area by activating trunk or distribution cables, a franchisee
must provide service to any requesting subscriber within that activated
part of the service area within 5 days from the date of request, provided
that the franchisee is able to secure on reasonable terms and conditions
all rights-of-way necessary to extend service to that subscriber within
that 5-day period.
H.
Non-exclusive
Franchise. Every franchise granted is non-exclusive. 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 franchisee, a noticed public hearing
shall first be held if required by Government Code Section 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:
a.
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.
b.
The benefits that may accrue to subscribers as a result of cable
system competition, such as lower rates and improved service.
c.
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 franchisee be responsible for its own
underground trenching and the associated costs if, in the city's opinion,
the public rights-of-way in any particular area cannot reasonably
accommodate additional cables.
(Ord. 1515)
A.
Filing
of Applications. Any person desiring an initial franchise for a cable
television system must file an application with the city. A reasonable
application fee deposit in an amount established by city council resolution
must accompany the application. That application fee deposit will
cover all anticipated costs associated with reviewing and processing
the application including without limitation costs of the following:
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;
and document preparation. 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.
B.
Applications
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.
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% or more
of the partnership interests, or of the issued and outstanding capital
stock, must be identified.
4.
A
list of officers, directors, and managing employees of the applicant,
together with a description of the background of each such person.
5.
The
names and addresses of any parent or subsidiary of the applicant,
or any other business entity owning or controlling the applicant in
whole or in part, or that is owned or controlled in whole or in part
by the applicant.
6.
A
current financial statement of the applicant verified by a certified
public accountant or otherwise certified to be accurate.
7.
The
proposed construction and service schedule, the proposed rate structure
for cable services, and the proposed commitment to provide PEG access
facilities.
8.
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
shall prepare a report and make recommendations to the city council
concerning that application.
2.
Within
30 days after the close of the public hearing on the application,
the city council will make a decision, based upon the 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 the franchisee, 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 city council resolution
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 without
limitation: the review of franchisee'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 franchisee must pay the difference
to the city within 30 days following receipt of an itemized statement
of those costs.
(Ord. 1515)
A.
The
terms and provisions of a franchise agreement for the operation of
a cable television system shall relate to or include, without limitation,
the following subject matters:
1.
The
nature, scope, geographical area and duration of the franchise.
2.
The
applicable franchise fee to be paid to the city, including the percentage
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 franchisee'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, those set forth in this
chapter.
8.
Requirements
relating to the franchisee's support of local cable usage, including
the provision of PEG access facilities, the coverage of public meetings
and special events, and financial support for the PEG access facilities.
9.
Requirements
relating to construction, operation, and maintenance of the cable
television system within the public rights-of-way, including compliance
with applicable building codes and permit requirements of the city,
the abandonment, removal, or relocation of facilities, and compliance
with FCC technical standards.
10.
Requirements relating to recordkeeping, accounting procedures, reporting,
periodic audits and performance reviews, the inspection of the franchisee's
books and records, and reimbursement for technical audits and franchise
fee audits under specified circumstances.
11.
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.
12.
Requirements relating to the sale, assignment or other transfer or
change in control of the franchise.
13.
The franchisee's obligation to maintain continuity of service and
to authorize, under certain specified circumstances, the city's operation
and management of the cable system.
14.
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 protect the public health, welfare, and safety.
B.
If there
is any conflict or inconsistency between the provisions of a franchise
agreement and provisions of this chapter, the provisions of the franchise
agreement will control.
(Ord. 1515)
A.
Operational
Standards. Unless otherwise provided in the franchise agreement, the
franchisee must maintain the necessary facilities, equipment, and
personnel to comply with the following consumer protection and service
standards under normal operating conditions not less than 95% of the
time, measured on a quarterly basis:
1.
Sufficient
toll-free telephone line capacity shall be provided during normal
business hours to ensure that telephone calls are answered before
the 4th ring. Telephone answer time by a customer service representative,
including wait time, may not exceed 30 seconds. Callers who must be
transferred may not be required to wait more than 30 seconds before
being connected to a service representative.
2.
A
caller must receive a busy signal less than 3% of the time.
3.
Emergency
toll-free telephone line capacity shall be provided on a 24-hour-per-day
basis, including weekends and holidays. After normal business hours,
the telephone calls may be answered by an answering service in accordance
with the telephone answering standards set forth above. Calls received
after normal business hours must be responded to by a trained company
representative on the next business day.
4.
A
conveniently-located local business and service or payment office
shall be open during normal business hours at least 8 hours daily
on weekdays, and at least 4 hours weekly on evenings or weekends.
The office shall be adequately staffed with trained customer service
representatives to accept subscriber payments and to respond to service
requests, inquiries and complaints.
5.
Emergency
system maintenance and repair staff shall be available on a 24-hour-per-day
basis for response to major system malfunctions.
6.
A
trained installation staff must provide service to any subscriber
requiring a standard installation within 5 days after receipt of a
request, in all areas where trunk and feeder cable have been activated.
"Standard installations" are those that are located up to 125 feet
from the existing distribution system, unless otherwise defined in
the franchise agreement.
7.
The
franchisee must schedule, within a specified 4-hour time period Monday
through Saturday (holidays excluded), all appointments with subscribers
for installation of service, service calls and other activities at
the subscriber's location. The franchisee may schedule installation
and service calls outside of normal business hours for the convenience
of the subscriber. The franchisee may not cancel an appointment with
a subscriber after the close of business on the business day prior
to the scheduled appointment. If a franchisee representative is delayed
in keeping an appointment with a subscriber and will not be able to
honor the scheduled appointment, the subscriber must be contacted
prior to the time of the scheduled appointment, and the appointment
must be rescheduled, as necessary, at a time that is convenient for
the subscriber. The franchisee must use its best efforts to contact
the customer within 2 weeks after an installation or repair work is
completed to ensure that the customer is satisfied with the work.
8.
Subscribers
who have experienced a missed appointment due to the fault of the
franchisee will receive an installation free of charge if the appointment
was for an installation. If an installation was to have been provided
free of charge, and for all other appointments, the subscriber will
receive one month of the subscribed-to service tier, free of charge.
Subscribers also will be entitled to receive a free installation,
or one month free service, as provided above if the franchisee fails
to complete a standard installation within 5 days of receiving an
installation request due to its fault, its failure to schedule an
appointment within a specified 4-hour time period, or its failure
to notify the subscriber that the franchisee's representative will
be late for an appointment. Subscribers who have experienced 2 missed
appointments due to the fault of the franchisee will receive 2 months
of the subscribed-to service tier, free of charge, in addition to
the free installation or free month of service provided for the first
missed appointment.
9.
Upon
a subscriber's request, the franchisee will arrange for pickup or
replacement of converters or other equipment provided by the franchisee
at the subscriber's address within 14 days after the request is made
if the subscriber is mobility-limited.
B.
Service
Standards.
1.
The
franchisee will render efficient service, make repairs promptly, and
interrupt service only for good cause and for the shortest time possible.
Except in emergency situations, scheduled interruptions will occur
during a period of minimum use of the cable system, preferably between
midnight and 6:00 a.m. Unless the scheduled interruption lasts for
no more than 2 hours and occurs between midnight and 6:00 a.m. (in
which event 24 hours prior notice must be given to the city), 48 hours
prior notice must be given to subscribers.
2.
The
franchisee will maintain a repair force of technicians who will respond
to subscriber requests for service within the following time frames:
a.
For a system outage: within 2 hours, including weekends, of receiving
subscriber calls or requests for service that by number identify a
system outage of sound or picture, affecting 5 or more subscribers.
b.
For an isolated outage: within 24 hours, including weekends, of receiving
requests for service identifying an isolated outage of sound or picture.
c.
For inferior signal quality: no later than the following business
day, excluding Sundays and holidays, after a request for service identifying
a problem concerning picture or sound quality.
3.
The
franchisee will be deemed to have responded to a request for service
under this paragraph when a technician arrives at the service location
and begins work on the problem. If a subscriber is not home when the
technician arrives, the technician must leave written notification
of arrival.
4.
The
franchisee may not charge for the repair or replacement of defective
or malfunctioning equipment provided by the franchisee to subscribers,
unless the defect or malfunction was caused by the subscriber.
5.
The
franchisee must determine the nature of the problem within 24 hours
after commencing work and resolve all cable system related problems
within 3 business days, unless technically infeasible.
C.
Billing
and Information Standards.
1.
Subscriber
bills must be clear, concise, and understandable. Bills must be fully
itemized, with itemizations including without limitation basic and
premium service charges and equipment charges. Bills also must clearly
delineate all activity during the billing period, including optional
charges, rebates and credits.
2.
The
first billing to a subscriber after a new installation or service
change must be prorated based upon when the new or changed service
commenced. Subscribers must not be charged a late fee or otherwise
penalized for any failure attributable to the franchisee, including
the failure to timely or correctly bill the subscriber.
3.
In
case of a billing dispute, the franchisee must respond in writing
to a written complaint from a subscriber within 10 days after receiving
the complaint at the office specified on the billing statement for
receiving that complaint.
4.
Credits
or refunds must be provided by the franchisee to subscribers who experience
an outage, interruption, or disconnection of service of 4 or more
consecutive hours, provided that such loss of service is neither caused
by the subscriber nor attributable to scheduled repairs, maintenance
or construction in circumstances where the franchisee has provided
advance written notice to subscriber, and the loss of service does
not exceed the time period specified by the franchisee. Subject to
these exceptions, credits or refunds must be provided under the following
circumstances:
a.
The outage, interruption or disconnection is isolated and involves
the sound, picture or reception, and affects no more than 4 subscribers.
b.
The outage, interruption, or disconnection is of a system-wide nature
that involves the sound, picture or reception, and affects 5 or more
subscribers.
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If the franchisee's cable system is equipped with monitoring
equipment that enables the franchisee to identify an isolated or system-wide
loss of service, then the credit or refund referenced in this paragraph
will be provided to subscribers without the necessity for any prior
notice or request from the affected subscribers. If the franchisee's
cable system has no such monitoring equipment, then prior notice or
request must be given by the affected subscribers, and the franchisee
must maintain a record of such notices or requests. The existence
of monitoring equipment for the franchisee's cable system will be
determined at the time of the grant or renewal of a cable television
franchise agreement, or at such other times as may be agreed upon.
For each day that an isolated or system-wide loss of service has continued
for 4 consecutive hours or more, the credit or refund must equal a
pro rata share of the monthly billing for one full day. The credits
or refunds for such loss of service must be issued no later than the
subscriber's next billing cycle following the franchisee's determination
that a credit or refund is due. For subscribers terminating service,
credits or refunds must be issued promptly, but no later than 30 days
after the return of any franchisee-supplied equipment.
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5.
Subject
to prior review by the city, the franchisee must provide written information
on each of the following areas at the time of the installation of
service, at least annually to all subscribers, and at any time upon
request:
a.
Products and services offered.
b.
Prices and options for programming services and conditions of subscription
to programming and other services.
c.
Installation and service maintenance policies.
d.
Instructions on the use of the cable service.
e.
Channel positions of programming carried on the system.
f.
Billing and complaint procedures, including the address and telephone
number of the city's office designated for dealing with cable-related
issues.
g.
Consumer protection and service standards and penalties for noncompliance.
6.
Subscribers
must be notified of any changes in rates, programming services or
channel positions as soon as possible through announcements on the
cable system and in writing. Notice must be given to subscribers a
minimum of 30 days in advance of those changes if the change is within
the control of the franchisee. In addition, the franchisee must notify
subscribers through announcements on the cable system and in writing
30 days in advance of any significant changes in the information required
in the preceding subparagraph.
7.
The
franchisee must maintain a public file containing all notices provided
to subscribers under these consumer protection and service standards
and all promotional offers made by the franchisee to subscribers.
These documents must be maintained for a minimum period of 4 years.
D.
Verification
of Compliance with Standards.
1.
Upon
15 days' prior written notice, the city may require the franchisee
to provide a written report demonstrating its compliance with any
of the consumer service standards specified in this section. The franchisee
must provide sufficient documentation to enable the city to verify
compliance.
2.
A
repeated and verifiable pattern of noncompliance with the consumer
protection and service standards of this section, after the franchisee's
receipt of written notice and an opportunity to cure, may be deemed
a material breach of the franchise agreement.
E.
Subscriber
Complaints and Disputes.
1.
The
franchisee must establish written procedures for receiving, acting
upon and resolving subscriber complaints without intervention by the
city. The written procedures must prescribe the manner in which a
subscriber may submit a complaint, either orally or in writing, specifying
the subscriber's grounds for dissatisfaction. The franchisee must
file a copy of these procedures with the city. These procedures must
include a requirement that the franchisee respond in writing to any
written complaint from a subscriber within 10 days after receiving
the complaint at the office specified on the billing statement for
receiving that complaint.
2.
The
city has the right to review the franchisee's response to subscriber
complaints in order to determine the franchisee's compliance with
the franchise requirements.
3.
All
subscribers have the right to continue receiving service so long as
their financial and other obligations to the franchisee are honored.
If the franchisee elects to rebuild, modify or sell the system, or
if the city gives notice of intent to terminate or not to renew the
franchise, the franchisee must act so as to ensure that all subscribers
receive service while the franchise remains in force.
4.
Upon
a change of control of the franchisee, or if a new operator acquires
the cable system, the original franchisee must cooperate with the
city, the new franchisee or the new operator in maintaining continuity
of service to all subscribers. During that transition period, the
franchisee is entitled to the revenues derived from its operation
of the cable system.
F.
Disconnection/Downgrades.
1.
A
subscriber may terminate or downgrade service at any time, and the
franchisee must promptly comply with the subscriber's request within
5 days or at any later time requested by the subscriber. No period
of notice prior to voluntary termination or downgrade of service may
be required of subscribers. A franchisee will impose no charges for
the voluntary termination or downgrade of service unless a visit to
the subscriber's premises is required to remove a converter box or
other equipment or property owned by the franchisee.
2.
The
franchisee may disconnect a subscriber's service if the subscriber
fails to pay a monthly fee or charge, but such disconnection must
not occur prior to 45 days after the fee or charge is due, plus 10
days prior written notice to the subscriber of the franchisee's intent
to disconnect service. If the subscriber pays all past due amounts,
including late charges, before the scheduled disconnection date, the
franchisee may not disconnect service. If service is disconnected
for nonpayment of past due fees or charges, the franchisee must promptly
reinstate service upon payment in full by the subscriber of all such
fees and charges, including late charges.
3.
Notwithstanding
the requirements of the preceding subparagraph, the franchisee may
immediately disconnect service to a subscriber if the subscriber is
damaging or destroying the franchisee's cable system or equipment.
In the event of disconnection on such grounds, the franchisee will
resume service to the subscriber upon receiving adequate assurances
that the subscriber has ceased the conduct that resulted in disconnection
and has paid all proper fees and charges, including any amounts reasonably
owed the franchisee for the damage caused by the subscriber.
4.
The
franchisee may also disconnect service to a subscriber when it causes
signal leakage exceeding federal limits. If service is disconnected,
the franchisee will immediately resume service without charge upon
the satisfactory correction of the signal leakage problem.
5.
Upon
termination of service to a subscriber, the franchisee will remove
its equipment from the subscriber's premises within 30 days. The equipment
will be deemed abandoned if it is not removed within such time period
unless the franchisee has been denied access to the subscriber's premises.
G.
Changes
in Service. Except as otherwise provided by federal or state law,
subscribers must not be required to pay any additional fee or charge,
other than the regular service fee, in order to receive the services
selected (such as upgrade or downgrade charges). No charge may be
imposed for any service or product that the subscriber has not affirmatively
selected. Payment of the regular monthly bill will not by itself constitute
an affirmative selection.
H.
Deposits.
The franchisee may require a reasonable, nondiscriminatory deposit
on equipment provided to subscribers. Such deposits must be placed
in an interest-bearing account. The deposit must be returned, with
interest earned to the date of repayment, within 30 days after the
equipment is returned to the franchisee.
I.
Parental
Control Option. The franchisee must provide parental control devices
to all subscribers who desire to block the video or audio portion
of any programming that the subscriber finds objectionable. Such devices
will be provided at no charge to the subscriber, unless otherwise
required by federal law or unless a converter box is required to be
installed for the purpose of providing the parental control device.
J.
Additional
Requirements.
1.
If
the franchisee fails to operate the system for 7 consecutive days
without the city's prior approval or subsequent ratification, the
city may, at its sole option, operate the system or designate an operator
until the franchisee restores service under conditions acceptable
to the city, or until a permanent operator is selected. If the city
satisfies this obligation on behalf of the franchisee, then during
that time period the city is entitled to collect all revenues derived
from the system, and the franchisee will indemnify the city against
any damages that the city may suffer as a result of the franchisee's
failure to operate the system.
2.
All
officers, agents, and employees of the franchisee, or of its contractors
or subcontractors, who, in the normal course of work come into contact
with members of the public, or who require entry onto subscribers'
premises, must carry a photo identification card in a form approved
by the city. The franchisee must account for all identification cards
at all times. All vehicles of the franchisee or its subcontractors
must be clearly identified as vehicles engaged in providing services
for the franchisee.
3.
Additional
standards relating to service, consumer protection and response by
the franchisee to subscriber complaints not otherwise provided for
in this section may be set forth in the franchise agreement or by
separate ordinance, and the franchisee must comply with those standards
in the operation of the cable television system. A verified and continuing
pattern of noncompliance may be deemed a material breach of the franchise
agreement, provided that the franchisee receives written notice and
an opportunity to cure before any penalty or other remedy is imposed.
K.
Penalties
for Noncompliance.
1.
Purpose.
The purpose of this paragraph is to authorize the imposition of penalties
for the violation of the customer service standards established by
this section in accordance with the Video Customer Service Act (Government
Code Section 53088 et seq.). These penalties are in addition to any
other remedies provided by this chapter, the franchise agreement or
any other law, and the city has the discretion to elect the remedy
that it will apply. The imposition of penalties authorized by this
paragraph will not prevent the city or any other affected party from
exercising any other remedy to the extent permitted by law, including,
but not limited to, any judicial remedy.
2.
Administration
and Appeals.
a.
The city manager is authorized to administer this chapter. Decisions
by the city manager to assess penalties against the franchisee must
be in writing and must contain supporting findings. Decisions by the
city manager are final unless appealed to the city council.
b.
If the franchisee or any interested person is aggrieved by a decision
of the city manager, the aggrieved party may, within 10 days of the
written decision, appeal that decision in writing to the city council.
The appeal letter must be accompanied by the fee established by city
council resolution for processing the appeal. The city council may
affirm, modify or reverse the decision of the city manager.
c.
Schedule of Penalties. The following
schedule of monetary penalties may be assessed against the franchisee
for the material breach of the provisions of the customer service
standards set forth in this section, provided that the breach is within
the reasonable control of the franchisee:
(1)
The maximum penalty is $200 for each day of material breach, but
not to exceed $600 for each occurrence of the material breach.
(2)
For a second material breach of the same nature within a 12-month
period for which the city has provided notice and a penalty has been
assessed, the maximum penalty is $400 for each day of the material
breach, but not to exceed $1,200 for each occurrence of the material
breach.
(3)
For a third material breach of the same nature within a 12-month
period for which the city has provided notice and a penalty has been
assessed, the maximum penalty is $1,000 for each day of the material
breach, but not to exceed $3,000 for each occurrence of the material
breach.
d.
Notification of Breach. The city must give the franchisee written
notice of any alleged breach of the consumer service standards and
allow the franchisee at least 30 days from receipt of the notice to
remedy the specified breach. For the purpose of assessing penalties,
a material breach is deemed to have occurred for each day, following
the expiration of the period for cure specified herein, that any breach
has not been remedied by the franchisee, irrespective of the number
of subscribers affected.
L.
Free
Service for Noncompliance. Notwithstanding any other penalties or
remedies provided by this section, the franchise agreement or any
other law, the franchisee must provide the following months of free
service to subscribers affected by the franchisee's failure to comply
with the specified consumer protection and service standard:
1.
One
Month Free Service. The franchisee will provide one month of free
service to each subscriber affected by the failure of the franchisee
to timely and satisfactorily comply with any of the following requirements:
a.
Pickup or replacement of converters or other equipment within 14
days after subscriber request.
b.
48-hour notice of service interruption.
c.
Response time for system outages and inferior signal quality as set
forth in Section 6.10.030.B, Service Standards.
d.
Resolution of cable system related problems within 3 business days.
One additional month of free service will be provided for each 7-day
period that the problem remains unresolved.
e.
Written response to billing complaints.
f.
Credits and refunds.
g.
Provision of all required information to subscribers.
h.
Notification of rate, service or channel changes.
i.
Completion of termination or downgrade of service.
j.
Provision of parental control devices.
2.
Three
Months Free Service. The franchisee will provide 3 months of free
service to each subscriber affected by the franchisee's disconnection
of subscriber service without just cause, provided that the franchisee
fails to restore service within 4 hours after the disconnection.
3.
Definition
of Free Service. The free service required by this subsection relates
to the service tier subscribed to by the affected subscriber.
(Ord. 1515; Ord. 1533)
The open video system provisions of this chapter apply to an
open video system operator that intends to deliver video programming
to consumers in the city over an open video system.
(Ord. 1515)
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 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 desires 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:
8.
An
accurate map showing the location of any existing telecommunications
facilities in the city that the applicant intends to use, purchase
or lease.
9.
If
the applicant's operation of the open video system will require the
construction of new physical plant and facilities in the city, the
following additional information must be provided:
a.
A preliminary construction schedule and completion dates.
b.
Preliminary engineering plans,
specifications, and a network map of any new facilities to be constructed
in the city, in sufficient detail to identify:
(1)
The location and route requested for the applicant's proposed facilities.
(2)
The locations, if any, for interconnection with the facilities of
other telecommunications service providers.
(3)
The specific structures, improvements, facilities, and obstructions,
if any, that the applicant proposes to add, remove, or relocate on
a temporary or permanent basis.
c.
The applicant's statement that, in constructing any new physical
plant, the applicant will comply with 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.
11.
Such additional information as may be requested by the city manager.
12.
An application fee deposit in an amount established by resolution
of the city council.
B.
If any
item of information specified above 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.
(Ord. 1515)
Within 30 days after receipt of an application 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.
(Ord. 1515)
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 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:
a.
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.
b.
The term "gross revenue" has the meaning set forth in 47 CFR 76.1511,
and includes: (i) 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 (ii) 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 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.
4.
The
obligation of the open video system operator to meet the city's requirements
with respect to PEG access facilities, as provided for in 47 CFR 76.1505.
In this regard, the following standards and procedures are applicable:
a.
The open video system operator is subject to the same PEG access
facilities requirements that apply within the cable television franchise
service area with which its system overlaps.
b.
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.
c.
The open video system operator may negotiate with the city to establish
the operator's obligations with respect to PEG access facilities.
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.
d.
If the open video system operator
and the city are unable to reach an agreement regarding the operator's
obligations with respect to PEG access facilities within the city's
jurisdiction, then the following obligations will be imposed:
(1)
The open video system operator must satisfy the same PEG access facility
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 PEG access facilities 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.
(2)
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.
e.
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 have not agreed on how to accomplish the connection after
15 days of negotiations, then 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.
f.
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 (d)(1).
g.
The city will not impose upon the open video system operator any
PEG access facility obligations that are greater than those imposed
upon the franchised cable operator.
h.
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.
i.
The open video system operator must adjust its system to comply with
new PEG access facility 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 such 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 PEG access facilities, 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.
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.
7.
The
authority of an open video system operator 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(f).
8.
The
obligation of the open video system operator to comply with applicable
federal, state, and local statutes, ordinances, and regulations relating
to customer service standards and this chapter.
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:
a.
Compliance with applicable city codes, including applications for
excavation, encroachment and construction permits and the payment
of all required permit and inspection fees.
b.
The coordination of construction activities.
c.
Compliance with established standards and procedures for constructing
lines across private property.
d.
Compliance with applicable insurance and indemnification requirements.
e.
The repair and resurfacing of construction-damaged streets.
f.
Compliance with all public safety requirements that are applicable
to cable television and telecommunications service providers using
public property or public rights-of-way.
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 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
protect the public health, welfare, and safety.
(Ord. 1515)
The term "cable system," as defined in federal law and in this
chapter, does not include a facility that serves subscribers without
using any public rights-of-way. Consequently, the categories of multi-channel
video programming distributors identified below are not deemed to
be "cable systems" and are therefore exempt from the city's franchise
requirements and from certain other local regulatory provisions authorized
by federal law, provided that their distribution or transmission facilities
do not involve the use of public rights-of-way.
A.
Multi-channel
multipoint distribution service ("MMDS"), also known as "wireless
cable," which typically involves the transmission by a FCC licensed
operator of numerous broadcast stations from a central location using
line-of-sight technology.
B.
Local
multipoint distribution service ("LMDS"), another form of over-the-air
wireless video service for which licenses are auctioned by the FCC,
and which offers video programming, telephony, and data networking
services.
C.
Direct
broadcast satellite ("DBS"), also referred to as "direct-to-home satellite
services," which involves the distribution or broadcasting of programming
or services by satellite directly to the subscriber's premises without
the use of ground receiving or distribution equipment, except at the
subscriber's premises or in the uplink process to the satellite.
(Ord. 1515)
A.
Unless
the customer protection and customer service obligations of a video
provider are specified in a franchise, license, lease, or similar
written agreement with the city, a video provider must comply with
applicable provisions of the following state statutes:
B.
All
video providers that are operating in the city on the effective date
of this chapter, or that intend to operate in the city after the effective
date of this chapter, must register with the city; provided, however,
that this registration requirement is not applicable to any video
provider that has executed a franchise, license, lease or similar
written agreement with the city. The registration form must include
or be accompanied by the following:
1.
The
video provider's name, address and local telephone numbers.
2.
The
names of the officers of the video provider.
3.
A
copy of the video provider's written policies and procedures relating
to customer service standards and the handling of customer complaints.
These customer service standards must include, without limitation,
standards regarding the following:
a.
Installation, disconnection, service and repair obligations, employee
identification and service call response time and scheduling.
b.
Customer telephone and office hours.
c.
Procedures for billing, charges, refunds and credits.
d.
Procedures for termination of service.
e.
Notice of the deletion of a programming service, the changing of
channel assignments or an increase in rates.
f.
Complaint procedures and procedures for bill dispute resolution.
g.
The video provider's written commitment to distribute annually to
the city, and to its employees and customers, a notice describing
the customer service standards specified above. This annual notice
must include the report of the video provider on its performance in
meeting its customer service standards.
4.
Unless
a video provider is exempt under federal law from its payment, a registration
fee in an amount established by city council resolution to cover the
reasonable costs incurred by the city in reviewing and processing
the registration.
5.
In
addition to the registration fee, the written commitment of the video
provider to pay to the city, when due, all costs and expenses reasonably
incurred by the city in resolving any disputes between the video provider
and its subscribers.
C.
Pursuant
to Government Code Sections 53088.2(a)—(n) and 53056(a), the
city council hereby establishes the following schedule of monetary
penalties for material breaches by a video provider and for the failure
of a video provider to distribute the annual notice required by Government
Code Section 53055.1:
1.
The
maximum penalty is $200 for each day of material breach, but not to
exceed $600 for each occurrence of the material breach.
2.
For
a second material breach of the same nature within a 12-month period
for which the city has provided notice and a penalty has been assessed,
the maximum penalty is $400 for each day of the material breach, but
not to exceed $1,200 for each occurrence of the material breach.
3.
For
a third material breach of the same nature within a 12-month period
for which the city has provided notice and a penalty has been assessed,
the maximum penalty is $1,000 for each day of the material breach,
but not to exceed $3,000 for each occurrence of the material breach.
(Ord. 1515)
A.
The
city council finds and determines as follows:
1.
The
Communications Act preempts and declares invalid all state rules that
restrict entry or limit competition in both local and long-distance
telephone service.
2.
The
California Public Utilities Commission ("CPUC") is primarily responsible
for the implementation of local telephone competition, and it issues
certificates of public convenience and necessity to new entrants that
are qualified to provide competitive local telephone exchange services
and related communications service, whether using their own facilities
or the facilities or services provided by other authorized telephone
corporations.
3.
Public
Utilities Code Section 234(a) defines a "telephone corporation" as
"every corporation or person owning, controlling, operating, or managing
any telephone line for compensation within this state."
4.
Public
Utilities Code Section 616 provides that a telephone corporation "may
condemn any property necessary for the construction and maintenance
of its telephone line."
5.
Public
Utilities Code Section 2902 authorizes municipal corporations to retain
their powers of control to supervise and regulate the relationships
between a public utility and the general public in matters affecting
the health, convenience, and safety of the general public, including
matters such as the use and repair of public streets by any public
utility and the location of the poles, wires, mains, or conduits of
any public utility on, under, or above any public streets.
6.
Public
Utilities Code Section 7901 authorizes telephone and telegraph corporations
to construct telephone or telegraph lines along and upon any public
road or highway, along or across any of the waters or lands within
this state, and to erect poles, posts, piers or abutments for supporting
the insulators, wires and other necessary fixtures of their lines,
in such manner and at such points as not to incommode the public use
of the road or highway or interrupt the navigation of the waters.
7.
Public
Utilities Code Section 7901.1 confirms the right of municipalities
to exercise reasonable control as to the time, place, and manner in
which roads, highways, and waterways are accessed, which control must
be applied to all entities in an equivalent manner. Nothing in Section
7901.1 adds to or subtracts from any existing authority that municipalities
have with respect to the imposition of fees.
8.
Government
Code Section 50030 provides that any permit fee imposed by a city
for the placement, installation, repair, or upgrading of communications
facilities, such as lines, poles, or antennas, by a telephone corporation
that has obtained all required authorizations from the CPUC and the
FCC to provide communications services, must not exceed the reasonable
costs of providing the service for which the fee is charged, and must
not be levied for general revenue purposes.
B.
In recognition
of and in compliance with the statutory authorizations and requirements
set forth above, the following regulatory provisions are applicable
to a telephone corporation that desires to provide communications
service by means of facilities that are proposed to be constructed,
installed or otherwise deployed within public rights-of-way:
2.
In
addition to the information required by this code in connection with
an application for a ministerial permit or a wireless communications
facility permit, a telephone corporation must submit to the city the
following supplemental information:
a.
A copy of the certificate of public convenience and necessity issued
by the CPUC to the applicant, and a copy of the CPUC decision that
authorizes the applicant to provide the communications service for
which the facilities are proposed to be constructed in the public
rights-of-way. Any applicant that, prior to 1996, provided communications
service under administratively equivalent documentation issued by
the CPUC may submit copies of that documentation in lieu of a certificate
of public convenience and necessity.
b.
If the applicant has obtained from the CPUC a certificate of public
convenience and necessity to operate as a "competitive local carrier,"
the following additional requirements are applicable:
i.
As required by Decision No. 95-12-057 of the CPUC, the applicant
must establish that it has timely filed with the city a quarterly
report that describes the type of construction and the location of
each construction project proposed to be undertaken in the city during
the calendar quarter in which the application is filed, so that the
city can coordinate multiple projects, as may be necessary.
ii.
If the applicant's proposed construction project will extend beyond
the utility rights-of-way into undisturbed areas or other rights-of-way,
the applicant must establish that it has filed a petition with the
CPUC to amend its certificate of public convenience and necessity
and that the proposed construction project has been subjected to a
full-scale environmental analysis by the CPUC, as required by Decision
No. 95-12-057 of the CPUC.
iii.
The applicant must inform the city whether its proposed construction
project will be subject to any of the mitigation measures specified
in the Negative Declaration ["Competitive Local Carriers (CLCs) Projects
for Local Exchange Communication Service throughout California"] or
to the Mitigation Monitoring Plan adopted in connection with Decision
No. 95-12-057 of the CPUC. The city's issuance of a ministerial permit,
and/or wireless communications facility permit will be conditioned
upon the applicant's compliance with applicable mitigation measures
and monitoring requirements imposed by the CPUC upon telephone corporations
that are designated as "competitive local carriers."
C.
The
city reserves all rights that it now possesses or may later acquire
with respect to the regulation of any cable or communications service
that is provided, or proposed to be provided, by a telephone corporation.
These reserved rights may relate, without limitation, to the imposition
of reasonable conditions in addition to or different from those set
forth in this section, the exaction of a fee or other form of consideration
or compensation for use of public rights-of-way, and related matters;
provided, however, that such regulatory rights and authority must
be consistent with federal and state law that is applicable to cable
or communications services provided by telephone corporations.
(Ord. 1515; Ord. 1677)
A.
Purpose
and Intent.
1.
The
purpose of this section is to provide a uniform and comprehensive
set of standards and procedures to regulate the location, placement,
installation, height, appearance, and operation of wireless telecommunications
antennas and related facilities ("wireless communications facilities"
or WCFs) in the PROW, consistent with city laws, applicable state
and federal requirements, and changing technology. The regulations
are intended to provide for the appropriate development of wireless
communications facilities within the PROW to meet the needs of residents,
business-owners, and visitors while protecting public health and safety
and preventing visual blight and degradation of the community's aesthetic
character and scenic vistas.
2.
The
procedures set forth in this section are intended to permit wireless
communications facilities in the PROW that blend with their existing
surroundings and do not negatively impact the environment, historic
properties, aesthetics or public safety. The procedures prescribed
by this section are tailored to the type of wireless communication
facility that is sought. Collocation of facilities are preferred and
encouraged, subject to all other provisions of this section.
3.
This
section is not intended to, nor shall it be interpreted or applied
to:
a.
Prohibit or effectively prohibit any wireless service provider's
ability to provide wireless communications services;
b.
Prohibit or effectively prohibit any entity's ability to provide
any interstate or intrastate wireless communications service, subject
to any competitively neutral and nondiscriminatory rules, regulations
or other legal requirements for rights-of-way management;
c.
Unreasonably discriminate among providers of functionally equivalent
services;
d.
Deny any request for authorization to place, construct or modify
WCFs on the basis of environmental effects of radio frequency emissions
to the extent that such WCFs comply with the FCC's regulations concerning
such emissions;
e.
Prohibit any collocation or modification that the city may not deny
under federal or California State law; or
f.
Otherwise authorize the city to preempt any applicable federal or
state law.
4.
Due
to rapidly changing technology and regulatory requirements, and to
further implement this section, the city council may adopt written
policies, rules, regulations and/or guidelines (collectively "Rules
and Guidelines") by resolution governing WCFs in the PROW, which may
include but are not limited to, requirements related to applications,
notices, review procedures, development and design standards, conditions,
and operation and maintenance requirements. The director may adopt
policies, procedures and forms consistent with this section and any
council-adopted Rules and Guidelines, which shall be posted on the
city's website and maintained at the department for review, inspection
and copying by applicants and other interested members of the public.
The city council and the director may update their rules, policies,
procedures and forms in their discretion to adjust for new technologies,
federal and/or state regulations, and/or to improve and adjust the
city's implementing regulatory procedures and requirements, and compliance
therewith is a condition of approval in every wireless communications
facility permit.
B.
Administrative Review:
Application:
Day:
Rules and Guidelines:
Definitions. For the purpose of this section, the following words and phrases have the meanings set forth below. Words and phrases not specifically defined in this section will be given their meaning ascribed to them in Section 6.10.010 or as otherwise provided in Section 6409(a), the Communications Act, or any applicable federal or state law or regulation.
ministerial review of an application by the city relating
to the review and issuance of a wireless communications facility permit
(WCFP), including review by the director of public works to determine
whether the issuance of a WCFP is in conformity with the applicable
provisions of this section.
any written submission to the city for the installation,
construction or other deployment of a WCFP and related ministerial
permits to obtain final approval of the deployment of a WCF at a specified
location.
a calendar day, except as otherwise provided in this section.
The policies, rules, guidelines, regulations and procedures
adopted from time to time by resolution of the city council to administer
and implement this section.
C.
Applicability.
1.
This
section applies to the siting, construction or modification of any
and all WCFs located or proposed to be located within the PROW as
follows:
a.
All WCFs for which applications were not approved prior to the effective
date of this section shall be subject to and comply with all provisions
of this section.
b.
All WCFs for which applications were approved and permits issued
by the city prior to the effective date of this section shall not
be required to obtain a new or amended WCFP until such time as this
section so requires. If a WCF was lawfully constructed or installed
within the PROW in accordance with applicable local, state or federal
regulations prior to the effective date of the ordinance codified
in this section but does not comply with the current standards, regulations
and/or requirements of this section, such WCF shall be deemed a legal
nonconforming facility and shall also be subject to the provisions
of subsection Y of this section.
c.
Any WCF proposed to be installed, modified or otherwise deployed
on any existing utility structure (e.g., Southern California Edison
or Southern California Gas Company) in the PROW, except as otherwise
required by state or federal pole attachments rules or any other provision
of federal and/or state law, subject to submittal of documentation
establishing the applicable exemption; and provided further that such
WCF shall comply with all other standards set forth in this chapter
and the rules and guidelines, and shall obtain any related ministerial
permit(s) (encroachment permit, excavation permit, or building permit)
required in order to access and/or use the PROW.
d.
Any WCF proposed to be installed, modified or replaced on any city
infrastructure located within the PROW, including, but not limited
to, any city-owned, leased or licensed pole, tower, base station,
cabinet, structure, building, or facility of any kind. The city and
an applicant may enter into a license, lease or other agreement in
a form acceptable to the city, which includes, but is not limited
to, terms relating to rent, inspection, operations and maintenance
requirements, defense and indemnification, insurance requirements,
waiver of monetary damages against the city, removal, restoration
and clean-up requirements, and requirement for payment of any possessory
interest taxes. Any such agreement shall not substitute for any permit
required by this section or any other provision of this code.
e.
All WCFs, notwithstanding the date approved, shall be subject immediately to the provisions of this section governing operation and maintenance standards (subsection O), radio frequency emissions and other monitoring requirements (subsection P), the prohibition of dangerous conditions or obstructions (subsection Q), cessation of use and abandonment (subsection S), revocation or modification; removal (subsection T), effect on other ordinances (subsection V), and state or federal law (subsection W), and the rules and guidelines adopted by resolution of the city council. In the event a condition of approval conflicts with a provision of this section, the condition of approval shall control until the permit is amended or revoked.
2.
Exemptions.
This section does not apply to the following WCFs:
a.
A WCF that qualifies as an amateur station as defined by the FCC,
47 C.F.R. Part 97, of the FCC's Rules, or its successor regulation.
b.
Any antenna facility that is subject to the FCC Over-the-Air-Receiving
Devices rule, 47 C.F.R. Section 1.4000, or its successor regulation,
including, but not limited to, direct-to-home satellite dishes that
are less than 1 meter in diameter, TV antennas used to receive television
broadcast signals and wireless cable antennas.
c.
Portable radios and devices, including, but not limited to, hand-held,
vehicular, or other portable receivers, transmitters or transceivers,
cellular phones, CB radios, emergency services radio, and other similar
portable devices as determined by the director.
d.
Any WCF owned, leased and/or operated by the city or any other governmental
agency.
e.
Emergency medical care provider-owned and operated WCFs.
f.
Mobile services providing public information coverage of news events
of a temporary nature.
g.
Any other WCF exempted from this code by federal law or state law,
subject to submittal of documentation establishing the applicable
exemption.
h.
Any WCF proposed to be installed, placed, modified or replaced on
any city-owned or controlled infrastructure located outside the PROW,
including, but not limited to, any city-owned, leased or licensed
street lights, traffic light poles, wires, fiber-optic strands, conduit,
and any other city-owned or controlled poles, towers, base stations,
cabinets, structures, buildings, or facility of any kind located outside
the PROW. Such WCFs shall require a license, lease or other agreement
in the form and terms required by the city from time to time, which
shall include, but not be limited to, terms relating to permit requirements,
rent, inspection, operations and maintenance requirements, defense
and indemnification, insurance requirements, waiver of monetary damages
against the city, removal, restoration and clean-up requirements,
and requirement for payment of any possessory interest taxes; and
any and all other permits required by this code. Any such agreement
shall be in addition to, and shall not substitute for, any permit
required by any provision of this code.
i.
Any WCF proposed to be installed, construed, modified, or replaced
on any private property. (See Chapter 11.4.070.)
D.
General
Small Wireless Facility Permit Requirements.
1.
Permit Required. A SWF shall not be constructed, installed, modified, or replaced in the PROW except upon approval of a SWFP in accordance with the requirements of this section, or an EFP in accordance with the requirements of Section 6.10.072, and all related ministerial permits.
2.
Conflicting
Provisions. An application for a SWFP shall be processed in compliance
with this section and the Rules and Guidelines adopted by resolution
of the city council, and any supplemental rules, regulations, procedures
and forms adopted by the director. Ministerial permits shall meet
all requirements of this section and all other applicable provisions
of this code, the Rules and Guidelines, and any such director-adopted
rules, regulations, policies and forms. In the event of any conflict
between the provisions of this section and any other provision of
this code, the Rules and Guidelines, and/or the director-adopted provisions,
the provisions of this section shall govern and control.
3.
Permit
Type. Table 6.10.070.D identifies the type of permit required for
each WCF and the approval authority.
|
Table 6.10.070.D
Public Rights-of-Way Wireless Communications Facilities Required
Permit Matrix
| ||
|---|---|---|
|
TYPE OF FACILITY
|
TYPE OF PERMIT
|
APPROVAL AUTHORITY
|
|
Small wireless facility (as defined in Section 6.10.010)
|
Small wireless facility permit (SWFP)1
|
Public works director or designee2
|
|
Eligible facility (as defined in Section 6.10.010 and 6.10.072.B)
|
Eligible facility permit (EFP)3
|
Public works director or designee2
|
|
Maintenance and repairs, including minor modifications and emergency
maintenance and repairs4
|
Maintenance encroachment permit5
|
Public works director or designee
|
|
Encroachment or excavation within or on public rights-of-way
|
Encroachment permit, excavation permit and/or building permit5
|
Public works director or designee
|
|
Notes:
| |
|---|---|
|
1
|
For small wireless facility requests and permit procedures,
see subsection D.4.
|
|
2
|
Subject to public notice and review by the director. See subsection F.
|
|
3
|
For eligible facility requests and procedures, see Section 6.10.072 of this chapter.
|
|
4
|
For definition of maintenance and repairs, and minor modifications,
see subsection D.6.
|
|
5
| |
4.
Small
Wireless Facility Permit (SWFP). An SWFP, subject to the city's determination
of compliance with the applicable requirements of this section and
the Rules and Guidelines may be issued by the director or designee
following public notice and review under any of the following circumstances:
a.
The application is for installation of a new small wireless facility
within the PROW, or the replacement of, or collocations on or modifications
to an existing small wireless facility, within the PROW, that meets
all of the following criteria:
b.
The application is for a subsequent collocation to be located on
an existing legally established small wireless communications collocation
facility within the PROW provided that all of the following conditions
are met:
i.
The existing collocation facility was approved after January 1, 2007
by discretionary permit, and
ii.
The existing collocation facility was approved subject to an environmental
impact report, negative declaration, or mitigated negative declaration,
and
iii.
The existing collocation facility otherwise complies with the requirements
of Government Code Section 65850.6(b), for wireless communication
collocation facilities or its successor provision, for addition of
a collocation facility to a wireless communication collocation facility,
including, but not limited to, compliance with all performance and
maintenance requirements, regulations and standards in this section
and the conditions of approval in the wireless communications collocation
facility permit,
iv.
Provided, however, only those collocations that were specifically
considered when the relevant environmental document was prepared are
permitted uses,
v.
The collocated facility does not increase the height or location
of the existing permitted tower/structure, or otherwise change the
bulk, size, or other physical attributes of the existing permitted
small wireless facility, and
vi.
Before collocation, the applicant seeking collocation shall obtain
all other applicable nondiscretionary permit(s), as required pursuant
to this code;
c.
The application shall meet the requirements of subsection E and the Rules and Guidelines. No public hearing shall be required. The director shall review the application, pertinent information and documentation and public comments in accordance with subsection F. An application for a SWFP shall be approved if the director makes all of the findings required by subsection I of this chapter. The director's decision shall be issued in writing in accordance with the procedures set forth in subsection F and the Rules and Guidelines. The director may impose additional conditions on the permit relating to time, place and manner pursuant to subsection H.
5.
Maintenance
Encroachment Permit. Minor modifications to an existing SWF, including
replacement with the in-kind, number size or with smaller or less
visible equipment, that: (a) meet the standards set forth in this
section; (b) will have little or no change in the visual appearance
of the SWF; and (c) do not increase the RF output of the SWF, are
considered to be routine maintenance and repairs, and may be approved
by an encroachment permit and without any public notice or public
hearing, subject to compliance with all other requirements of this
chapter and the Rules and Guidelines. Maintenance and repairs include,
but are not limited to, those minor modifications that result from
an emergency. The upgrade or any other replacement of existing facilities
and all new antennas, structures, and other facilities, including,
but not limited to, those resulting from an emergency, shall comply
with the SWFP or EFP requirements of this chapter and the Rules and
Guidelines.
6.
Power Generators. An exception approved by the director pursuant to subsection H shall be required for any application for installation of a new small wireless facility within the PROW that includes a power generator, or the replacement of, or collocations on or modifications to an existing small wireless facility within the PROW that includes a power generator.
7.
Eligible Facilities. Unless specifically exempt by federal or state law, any application for the installation or modification of a WCF that constitutes an "eligible facilities request" within the meaning of Section 6409(a) shall require the approval of an eligible facility permit (EFP) by the director in accordance with Section 6.10.072 of this chapter and the rules and guidelines prior to deployment of the eligible facility.
8.
Other
Permits Required. In addition to any permit that may be required under
this subsection, the applicant must obtain all other required prior
permits or other approvals from other city departments, or state or
federal agencies. Any SWFP granted under this section shall also be
subject to the conditions and/or requirements of all such other required
city, state or federal prior permits or other approvals.
9.
Eligible
Applicants. Only applicants who have been granted the right to enter
the PROW pursuant to state or federal law, or who have entered into
a franchise or license agreement with the city permitting them to
use the PROW, shall be eligible to construct, install, modify or otherwise
deploy a SWF in the PROW.
10.
Speculative Equipment or Facilities Prohibited. The city finds that
the practice of "pre-approving" wireless communications equipment
or other improvements that the applicant does not presently intend
to install but may wish to install at some undetermined future time
does not serve the public's best interest. The city shall not approve
any equipment or other improvements in connection with a SWFP when
the applicant does not actually and presently intend to install such
equipment or construct such improvements.
11.
Prohibited Facilities. Any SWF that does not comply with the most
current regulatory and operational standards and regulations (including,
but not limited to, RF emission standards) adopted by the FCC is prohibited.
E.
Application Requirements. An application for a SWF shall be filed and reviewed in accordance with the following provisions and the Rules and Guidelines, except as otherwise provided for eligible facilities in Section 6.10.072 (Wireless Communications Facilities in the Public Rights-of-Way—Eligible Facilities).
1.
Complete
Application Required. The applicant shall submit a SWFP application
in writing to the public works department on a city-approved form
as prescribed by the director, and shall submit all information, materials
and documentation required by this section and the Rules and Guidelines
and as otherwise determined to be necessary by the director to effectuate
the purpose and intent of this section. The director may waive certain
submittal requirements or require additional information based on
specific project factors. Unless an exemption or waiver applies, all
applications shall include all of the forms, information, materials
and documentation required by the city. An application shall not be
deemed complete by the city unless the completed city application
form and all required information, materials and documentation have
been submitted to the city. An application which does not include
all required forms, information, materials and documentation required
by this section and the Rules and Guidelines, shall be deemed incomplete,
and a notice of incomplete application shall be provided to the applicant
in accordance with subsection E.6.
2.
Application
Fees. Concurrent with submittal of the application, the applicant
shall pay an application fee and processing fee, a deposit for an
independent expert review as set forth in this section, and a deposit
for review by the city attorney's office, in a payment format accepted
by the city finance department and in amounts set by resolution of
the city council. The amounts of such fees shall be fair and reasonable
compensation for the applicant's use of the PROW, and shall be competitively
neutral and nondiscriminatory. Fees shall not exceed any maximum fees
set by federal or state law except to the extent that such fees are:
(a) a reasonable approximation of costs; (b) those costs themselves
are reasonable; and (c) are non-discriminatory. Failure to pay the
fees in full at the time of application submittal shall result in
the city deeming the application incomplete.
3.
Voluntary
Pre-Submittal Conference. Prior to application submittal, the applicant
may schedule and attend a voluntary pre-submittal conference with
the public works department and community development department staff
for all proposed SWFs in the PROW, including all new or replacement
WCFs, and all proposed collocations or modifications to any existing
WCF. The purpose of the pre-submittal conference is to provide informal
feedback on the proposed classification, review procedure, location,
design and application materials, to identify potential concerns and
to streamline the formal application review process after submittal.
Participation in a voluntary pre-submittal conference shall not commence
the shot clock (timeline for review) requirements under subsection
E.6 of this section.
4.
Appointments.
The director may require that an application shall be submitted only
at a pre-arranged appointment in accordance with the Rules and Guidelines.
The director has the discretion to set the frequency and number of
appointments that will be granted each day. The requirement for an
appointment shall be published on the department's website.
5.
Independent
Expert. The director is authorized to retain on behalf of the city
an independent, qualified consultant to review any application for
a SWFP to review the technical aspects of the application, including,
but not limited to: the accuracy, adequacy, and completeness of submissions;
compliance with applicable radio frequency emission standards; whether
any requested exception is necessary; technical demonstration of the
facility designs or configurations, technical feasibility; coverage
analysis; the validity of conclusions reached or claims made by applicant;
and other factors deemed appropriate by the director to effectuate
the purposes of this section. The cost of this review shall be paid
by the applicant through a deposit pursuant to an adopted fee schedule
resolution.
6.
Shot
Clocks—Timeline for Review and Action. The timeline for review
of and action on a SWFP application shall begin to run when the application
is submitted in writing to the department but may be reset or tolled
by mutual agreement or upon the city's issuance of a notice of incomplete
application to the applicant pursuant to subsection E.7 of this section.
Applications shall be processed in conformance with the time periods
and procedures established by applicable state and federal law, and
FCC regulations and orders. The following provisions shall apply:
a.
Small Wireless Facilities Request. For review of an application for
a SWFP, the city shall act upon the application in accordance with
the following timing requirements:
i.
60 Days. For an application to collocate a small wireless facility
using an existing structure, the city will act upon the application
within 60 days from the department's receipt of the written application
packet, unless the time period is re-set or tolled by mutual agreement
or pursuant to subsection E.7.
ii.
90 Days. For an application to deploy a small wireless facility using
a new structure, the city will act upon the application within 90
days from the department's receipt of the written application packet,
unless the time period is re-set or tolled by mutual written agreement
or pursuant to subsection E.7.
b.
Eligible Facilities Request. For an eligible facilities request,
the city will act on the application within 60 days of the department's
receipt of the written application packet, unless the time period
is tolled by mutual written agreement or pursuant to Section 6.10.072.E.6
of this chapter.
c.
Batching. An applicant may submit a single application for authorization
of multiple deployments of WCFs pursuant to this section. An application
containing multiple deployments shall comply with the following timing
requirements.
i.
The deadline for the city to act upon the application shall be that
for a single deployment within that category,
ii.
90 Days. If a single application seeks authorization for multiple
deployments of small wireless facilities, the components of which
are a mix of deployments that fall within subsection E.6.a.i and deployments
that fall within subsection E.6.a.ii, then the city shall act upon
the application as a whole within 90 days, unless tolled or reset
by mutual written agreement or pursuant to subsection E.7.
7.
Resetting
or Tolling of Shot Clock—Incomplete Application Notices. Unless
a written agreement between the city and the applicant provides otherwise,
in the event that department staff determines that a permit application
is incomplete because it does not contain all the information, materials
and/or other documentation required by this section, department staff
may issue a notice of incomplete application to the applicant, and
the shot clocks set forth above shall be re-set or tolled as set forth
in this subsection.
a.
First Incomplete Notice—Small Wireless Facility Resetting of
Shot Clock. Department staff shall determine whether an application
for a SWF is complete or incomplete within 10 days of the city's receipt
of the initial application and shall notify the applicant in writing
if the application is materially incomplete. The notice of incomplete
application shall identify the specific missing information, materials
and/or documents, and the ordinance, rule, statute or regulation creating
the obligation to submit such information, materials and/or documents.
The applicable shot clock date calculation set forth in subsection
E.6.a.i or E.6.a.ii shall re-start at zero on the date that the applicant
submits all the information, materials and documents identified in
the notice of incomplete application to render the application complete.
b.
Subsequent Incomplete Notices. For resubmitted applications following
the initial notice of incomplete application under subsection E.7.a,
department staff will notify the applicant within 10 days of the city's
receipt of the resubmitted application whether the supplemental submission
is complete or incomplete, If the supplemental submission was incomplete,
the notice shall specifically identify the missing information, materials,
and/or documents that must be submitted based on the department's
initial incomplete notice. In the case of any such subsequent notices
of incomplete application, the applicable timeframe for review set
forth in subsection E.6.a or E.6.b shall be tolled from the day after
the date the city issues the second or subsequent notice of incomplete
application to the applicant until the applicant submits all the information,
materials and documents identified by the city to render the application
complete.
c.
One Submittal. The applicant's response and submission of supplemental
materials and information in response to a notice of incomplete application
must be given to the city in 1 submittal packet.
d.
Determination of Shot Clock Date.
i.
The shot clock date for a SWFP application is determined by counting
forward, beginning on the day after the date when the application
was submitted, by the number of days of the shot clock period identified
pursuant to subsection E.6.a or E.6.b. and including any pre-application
period asserted by the city; provided, that if the date calculated
in this manner is a holiday, the shot clock date is the next business
day after such date.
ii.
For purposes of this subsection E.7.d, the term "holiday" means any
of the following: Saturday, Sunday, any holiday recognized by the
city; and any other day recognized as a holiday by the FCC pursuant
to any applicable federal regulations, orders or rulings of the FCC
for the subject SWFP.
iii.
For purposes of this subsection E.7.d, the term "business day" means
any day that is not a holiday, as defined in subparagraph ii.
8.
Withdrawal—Extensions
of Time. To promote efficient review and timely decisions, any application
deemed incomplete must be resubmitted within 180 days after issuance
of any notification of incompleteness, or the application shall be
deemed automatically withdrawn. Following the applicant's request,
the director may, in his or her discretion, grant a one-time extension
in processing time to resubmit, not to exceed 150 days. If the application
is deemed automatically withdrawn (and any applicable extension period,
if granted, has expired), a new application (including, fees, plans,
exhibits, and other materials) shall be required in order to commence
processing of the project. No refunds will be provided for withdrawn
applications.
9.
Leases, Licenses and Agreements for City Infrastructure or Property in the PROW. The city and an applicant may mutually agree to enter into a lease, license or other agreement for the applicant's installation, modification or other deployment of a SWF on any city-owned infrastructure or other city property within the PROW. The proposed agreement may include multiple SWFs, as mutually agreed upon. The agreement shall be in addition to, and not a substitute, for any permit required by any provision of this code. An WCFP shall be required for all proposed facilities that are to be covered by an agreement between the city and the applicant. The agreement shall be fully executed by the city and applicant prior to the applicant's submittal of any SWFP application under this section or any other provision of this code. In addition, all ministerial permits shall be obtained as a condition of the installation, construction or other deployment of any proposed SWF within the PROW. The shot clock provisions set forth in subsection E shall not apply during any negotiations for any such lease, license or other agreement. The shot clock provisions set forth in subsection E shall commence upon the date of submittal of an application for a SWFP for specific small wireless facility(ies) following the effective date of the lease, license or other agreement.
F.
Notice and Decision. Procedures for public notice, approval authority review of and action on WCFP applications are set forth in this subsection and in the Rules and Guidelines.
1.
Public
Notice of Application. Upon submittal of a complete SWFP application
to the city, the applicant shall send the city-approved public notice
of the application to all businesses and residents within a 150-foot
radius of the proposed SWF in accordance with the Rules and Guidelines.
Concurrently with service on the businesses and residents, the applicant
shall also send a copy of the approved public notice to the department
along with proof of service of the public notice on all residents
and businesses as required by this subsection.
2.
Public
Comment. Within 10 days from service of the notice, any interested
person may submit comments on the proposed SWF to the city by U.S.
mail or through the city's website. Any timely public comments received
will be considered during the director's review of the application.
3.
Director
Decision on SWFP Applications.
a.
Director Review, Decision and Notice. Upon receipt of a complete application for a SWFP pursuant to this section, the director or designee shall carry out administrative review of the application and all pertinent information, materials, documentation and public comments. The director may approve, or conditionally approve an application for a SWFP only after the director makes all of the findings required in subsection I. The director may impose conditions in accordance with subsection H. Within 5 days after the director approves or conditionally approves an application under this section, the director shall issue a written determination letter, and shall serve a copy of the determination letter on the applicant at the address shown in the application and shall cause the determination letter to be published on the city's website.
b.
Conditional Approvals. Subject to any applicable limitations in federal or state law, and in addition to the standard conditions of approval required by subsection H, nothing in this section is intended to limit the city's authority to conditionally approve an application for a SWFP to protect and promote the public health, safety and welfare in accordance with this section and the rules and guidelines.
c.
Final Decision. The director's decision on an application for a SWFP
shall be final and conclusive and not be appealable to the city council.
G.
Design, Aesthetic and Development Standards. In order to ensure compatibility with surrounding land uses, protect public safety and natural, cultural, and scenic resources, preserve and enhance the character of residential neighborhoods and promote attractive nonresidential areas, in addition to all other applicable requirements of this code, all SWFs in the PROW shall be located, developed, and operated in compliance with the following standards set forth in this subsection and in the Rules and Guidelines, unless the director approves an exception subject to the findings required by subsection J: Exceptions.
1.
General
Requirements. All SWFs that are located within the PROW shall be designed
and maintained as to minimize visual clutter, and reduce noise and
other impacts on and conflicts with the surrounding community in accordance
with the code and Rules and Guidelines.
2.
Traffic
Safety. All SWFs shall be designed and located in such a manner as
to avoid adverse impacts on traffic safety, and shall comply with
the most recent edition of the California Manual on Uniform Traffic
Control Devices (MUTCD) and any other traffic control rules, regulations
or ordinances of the city.
3.
Space
Occupied. Each SWF shall be designed to occupy the least amount of
space in the right-of-way that is technically feasible.
4.
Location.
a.
The preferred location for a SWF shall be on existing infrastructure
such as utility poles or street lights. The infrastructure selected
shall be located at alleys, streets and/or near property line prolongations.
If the SWF is not able to be placed on existing infrastructure, the
applicant shall provide a map of existing infrastructure in the service
area and describe why each such site was not technically feasible,
in addition to all other application requirements of this section.
b.
No SWF shall be located within 6 feet of the living area of any residential
dwelling unit. As used herein, the term "living area" means the interior
habitable area of a dwelling unit, including, but not limited to,
bedrooms, windows, basements and attics but does not include a garage
or any accessory structure. The 6-foot distance shall be measured
from the dwelling unit's outer wall located nearest to the proposed
SWF.
c.
No SWF shall be located within the PROW or any poles, infrastructure,
buildings or other structures of any kind in the PROW, in any of the
following locations or sites:
i.
On the Seal Beach Pier, or any decorative lighting or poles on the
Seal Beach Pier;
ii.
On any decorative lighting or poles on Main Street from and including
Pacific Coast Highway to the Seal Beach Pier; or
iii.
On Electric Avenue between Marina to Ocean (including, but not limited
to, within the parkway, greenbelt, bike path or any other PROW within
Electric Avenue), except in the following locations:
(A)
On the north side of the PROW adjacent to the westbound lanes
of Electric Avenue; or
(B)
On the south side of the PROW adjacent to the eastbound lanes
of Electric Avenue.
|
The permissible locations for SWFs on the PROW along Electric
Avenue are shown on the Site Diagram contained in Figure 6.10.070.G.4.c.
as follows:
|
 Figure 6.10.070.G.4.c Electric Avenue—Permissible
Locations for WCFs
|
iv.
On any decorative lighting or decorative poles located within any
other PROW in the city.
d.
Each component part of a SWF shall be located so as not to cause
any physical or visual obstruction to pedestrian or vehicular traffic,
inconvenience to the public's use of the PROW, or safety hazards to
pedestrians and motorists, or interference with any path of travel
or other disability access requirements imposed under federal or state
law.
e.
A SWF shall not be located within any portion of the PROW in a manner
that interferes with access to a fire hydrant, fire station, fire
escape, water valve, underground vault, valve housing structure, or
any other public health and safety facility.
f.
Any SWFs mounted to a communications tower, above-ground accessory
equipment, or walls, fences, landscaping or other screening methods
shall have and maintain a minimum setback of 18 inches from the front
of a curb.
g.
To conceal the non-antenna equipment, applicants shall install all non-antenna equipment (including, but not limited to, all cables) underground to the extent technically feasible. If such non-antenna equipment is proposed in within an underground utility district and the type of non-antenna equipment has been exempted by the city council from undergrounding pursuant to Section 9.55.015.B.6 of Chapter 9.55 of the code, the non-antenna equipment shall comply with the requirements of this section if the director finds that such undergrounding is technically feasible and undergrounding is required for building, traffic, emergency, disability access, or other safety requirements. Additional expense to install and maintain an underground equipment enclosure does not exempt an applicant from this requirement, except where the applicant demonstrates by clear and convincing evidence that this requirement will effectively prohibit the provision of wireless communications services.
5.
Concealment
or Stealth Elements. Stealth or concealment elements may include,
but are not limited to:
a.
Radio frequency transparent screening;
b.
Approved, specific colors;
c.
Minimizing the size of the site;
d.
Integrating the installation into existing utility infrastructure;
e.
Installing new infrastructure that matches existing infrastructure
in the area surrounding the proposed site. The new infrastructure
is then dedicated to the city and the installation is integrated into
the new infrastructure; and
f.
Controlling the installation location pursuant to subsection G.4
of this section.
6.
Collocation.
The applicant and owner of any site on which a SWF is located shall
cooperate and exercise good faith in collocating SWFs on the same
support structures or site. Good faith shall include sharing technical
information to evaluate the feasibility of collocation, and may include
negotiations for erection of a replacement support structure to accommodate
collocation. A competitive conflict to collocation or financial burden
caused by sharing information normally will not be considered as an
excuse to the duty of good faith.
a.
All SWFs shall make available unused space for collocation of other
WCFs, including space for these entities providing similar, competing
services. Collocation is not required if the host facility can demonstrate
that the addition of the new service or facilities would impair existing
service or cause the host to go offline for a significant period of
time. In the event a dispute arises as to whether a permittee has
exercised good faith in accommodating other users, the director may
require the applicant to obtain a third-party technical study at applicant's
expense. The director may review any information submitted by applicant
and permittee(s) in determining whether good faith has been exercised.
b.
All collocated and multiple-user SWFs shall be designed to promote
facility and site sharing. Communication towers and necessary appurtenances,
including, but not limited to, parking areas, access roads, utilities
and equipment buildings, shall be shared by site users whenever possible.
c.
No collocation may be required where it can be shown that the shared
use would or does result in significant interference in the broadcast
or reception capabilities of the existing WCFs or failure of the existing
facilities to meet federal standards for emissions.
d.
When antennas are co-located, the director may limit the number of
antennas with related equipment to be located at any 1 site by any
provider to prevent negative visual impacts.
e.
Failure to comply with collocation requirements when feasible or
cooperate in good faith as provided for in this section is grounds
for denial of a permit request or revocation of an existing permit.
7.
Radio
Frequency Standards—Noise.
a.
SWFs shall comply with federal standards for radio frequency (RF)
emissions and interference. No SWF or combination of facilities shall
at any time produce power densities that exceed the FCC's limits for
electric and magnetic field strength and power density for transmitters
or operate in a manner that will degrade or interfere with existing
communications systems as stipulated by federal law. Failure to meet
federal standards may result in termination or modification of the
permit.
b.
SWFs and any related equipment, including backup generators and air
conditioning units, shall not generate continuous noise in excess
of 40 decibels (dBA) measured at the property line of any adjacent
residential property, and shall not generate continuous noise in excess
of 50 dBA during the hours of 7:00 a.m. to 10:00 p.m. and 40 dBA during
the hours of 10:00 p.m. to 7:00 a.m. measured at the property line
of any nonresidential adjacent property. Backup generators shall only
be operated during power outages and for testing and maintenance purposes.
Testing and maintenance shall only take place on weekdays between
the hours of 8:30 a.m. and 4:30 p.m.
8.
Additional
Standards. Consistent with federal and state laws and regulations,
the city council may further establish design and development standards
pursuant to rules and guidelines, including, but not limited to, relating
to antennas, new, existing and replacement poles, wind loads, obstructions,
supporting structures, screening, accessory equipment, landscaping,
signage, lighting, security and fire prevention.
9.
Modification.
To the extent authorized by state and federal laws and regulations,
at the time of modification of a SWF, existing equipment shall, to
the extent feasible, be replaced with equipment that reduces visual,
noise and other impacts, including, but not limited to, undergrounding
the equipment and replacing larger, more visually intrusive facilities
with smaller, less visually intrusive facilities.
H.
Standard
Conditions of Approval. All SWFP approvals, whether approved by the
approval authority or deemed approved by the operation of law, shall
be automatically subject to the conditions in this subsection, in
addition to any conditions imposed by the approval authority pursuant
to this section and the rules and guidelines. The approval authority
shall have discretion to modify or amend these conditions on a case-by-case
basis as may be necessary or appropriate under the circumstances to
protect public health and safety or allow for the proper operation
of the approved eligible facility consistent with the goals of this
section.
1.
Permit Term. A SWFP shall be valid for a period of 10 years, unless it is revoked sooner in accordance with this section or pursuant to any other provision of federal or state law that authorizes the city to issue a SWFP with a shorter term, or such SWFP is extended pursuant to subsection R. At the end of the term, the SWFP shall automatically expire. Any other permits or approvals issued in connection with any collocation, modification or other change to the SWF, which includes without limitation any permits or other approvals deemed-granted or deemed-approved under federal or state law, will not extend the 10-year term limit unless expressly provided otherwise in such permit or approval or required under federal or state law.
2.
Strict
Compliance with Approved Plans. Any application filed by the permittee
for a ministerial permit to construct or install the SWF approved
by a SWFP must incorporate the SWFP approval, all conditions associated
with the SWFP approval and the approved photo simulations into the
project plans (the "approved plans"). The permittee must construct,
install and operate the WCF in strict compliance with the approved
plans. Any alterations, modifications or other changes to the approved
plans, whether requested by the permittee or required by other departments
or public agencies with jurisdiction over the SWF, must be submitted
in a written request subject to the director's prior review and approval.
3.
Build-Out
Period. The SWFP approval will automatically expire one year from
the SWFP approval or deemed-granted date unless the permittee obtains
all other permits and approvals required to install, construct and/or
operate the approved SWF under this code, and any other permits or
approvals required by any federal, state or other local public agencies
with jurisdiction over the subject property, the eligible facility
or its use. The director may grant 1 written extension to a date certain
when the permittee shows good cause to extend the limitations period
in a written request for an extension submitted at least 30 days prior
to the automatic expiration date in this condition.
4.
Maintenance
Obligations—Vandalism. The permittee shall keep the site, which
includes, without limitation, any and all improvements, equipment,
structures, access routes, fences and landscape features, in a neat,
clean and safe condition in accordance with the approved plans and
all conditions in the SWFP. The permittee shall keep the site area
free from all litter and debris at all times. The permittee, at no
cost to the city, shall remove and remediate any graffiti or other
vandalism at the site within 48 hours after the permittee receives
notice or otherwise becomes aware that such graffiti or other vandalism
occurred. Each year after the permittee installs the SWF, the permittee
shall submit a written report to the director, in a form acceptable
to the director, that documents the then-current site condition.
5.
Property
Maintenance. The permittee shall ensure that all equipment and other
improvements to be constructed and/or installed in connection with
the approved plans are maintained in a manner that is not detrimental
or injurious to the public health, safety, and general welfare and
that the aesthetic appearance is continuously preserved, and substantially
the same as shown in the approved plans at all times relevant to the
SWFP. The permittee further acknowledges that failure to maintain
compliance with this condition may result in a code enforcement action.
6.
Compliance
With Laws. The permittee shall maintain compliance at all times with
all federal, state and local statutes, regulations, orders or other
rules that carry the force of law ("governing laws") applicable to
the permittee, the subject property, the SWF and any use or activities
in connection with the use authorized in the WCFP, which includes,
without limitation, any laws applicable to human exposure to RF emissions.
The permittee expressly acknowledges and agrees that this obligation
is intended to be broadly construed and that no other specific requirements
in these conditions are intended to reduce, relieve or otherwise lessen
the permittee's obligations to maintain compliance with all governing
laws. In the event that the city fails to timely notice, prompt or
enforce compliance with any applicable provision in the Seal Beach
Municipal Code, any permit, any permit condition or any governing
laws, the applicant or permittee will not be relieved from its obligation
to comply in all respects with all applicable provisions in the code,
any permit, any permit condition or any governing laws.
7.
Adverse
Impacts on Other Properties. The permittee shall use all reasonable
efforts to avoid any and all undue or unnecessary adverse impacts
on nearby properties that may arise from the permittee's or its authorized
personnel's construction, installation, operation, modification, maintenance,
repair, removal and/or other activities at the site. Impacts of radio
frequency emissions on the environment, to the extent that such emissions
are compliant with all governing laws, are not "adverse impacts" for
the purposes of this condition. The permittee shall not perform or
cause others to perform any construction, installation, operation,
modification, maintenance, repair, removal or other work that involves
heavy equipment or machines except during normal construction hours
authorized by the code. The restricted work hours in this condition
will not prohibit any work required to prevent an actual, immediate
harm to property or persons, or any work during an emergency declared
by the city. The director or the director's designee may issue a stop
work order for any activities that violate this condition.
8.
Inspections—Emergencies.
The permittee expressly acknowledges and agrees that the city's officers,
officials, staff or other designee may enter onto the site and inspect
the improvements and equipment upon reasonable prior notice to the
permittee; provided, however, that the city's officers, officials,
staff or other designee may, but will not be obligated to, enter onto
the site area without prior notice to support, repair, disable or
remove any improvements or equipment in emergencies or when such improvements
or equipment threatens actual, imminent harm to property or persons.
The permittee will be permitted to supervise the city's officers,
officials, staff or other designee while any such inspection or emergency
access occurs to the extent not inconsistent with city requirements.
9.
Permittee's
Contact Information. The permittee shall furnish the director with
accurate and up-to-date contact information for a person responsible
for the SWF, which includes, without limitation, such person's full
name, title, direct telephone number, facsimile number, mailing address
and email address. The permittee shall keep such contact information
up-to-date at all times and immediately provide the director with
updated contact information in the event that either the responsible
person or such person's contact information changes.
10.
Insurance. The permittee shall obtain, pay for and maintain, in full
force and effect until the SWF approved by the permit is removed in
its entirety from the PROW, an insurance policy or policies of public
liability insurance which shall be in the form and substance satisfactory
to the city, and shall be maintained until the term of the permit
ended and the WCF is removed from the PROW. The insurance shall comply
with the minimum limits and coverages and provisions set forth in
the rules and guidelines, and as otherwise established from time to
time by the city, and which fully protect the city from claims and
suits for bodily injury, death, and property damage.
11.
Indemnification.
a.
The permittee shall agree in writing to defend, indemnify, protect
and hold harmless city, its elected and appointed officials, officers,
boards, commissions, agents, consultants, employees, volunteers and
independent contractors serving as city officials (collectively "Indemnitees"),
from and against any and all claims, actions, or proceeding against
the Indemnitees or any of them, to attack, set aside, void or annul,
an approval of the director or city council concerning the permit
and the construction, operation, maintenance and/or repair of the
SWF. Such indemnification shall include damages, judgments, settlements,
penalties, fines, defensive costs or expenses, including, but not
limited to, interest, reasonable attorneys' fees and expert witness
fees, or liability of any kind related to or arising from such claim,
action, or proceeding. The permittee shall also agree not to sue or
seek any money or damages from the city in connection with the grant
of the permit and also agree to abide by the city's ordinances and
other laws. The city shall promptly notify the permittee of any claim,
action, or proceeding. Nothing contained herein shall prohibit city
from participating in a defense of any claim, action or proceeding.
The city shall have the option of coordinating the defense, including,
but not limited to, choosing counsel for the defense at the permittee's
expense.
b.
Additionally, to the fullest extent permitted by law, the permittee,
and every permittee and person in a shared permit, jointly and severally,
shall defend, indemnify, protect and hold the city and its elected
and appointed officials, officers, boards, commissions, agents, consultants,
employees and volunteers harmless from and against all claims, suits,
demands, actions, losses, liabilities, judgments, settlements, costs
(including, but not limited to, attorney's fees, interest and expert
witness fees), or damages claimed by third parties against the city
for any injury claim, and for property damage sustained by any person,
arising out of, resulting from, or are in any way related to the SWF,
or to any work done by or use of the PROW by the permittee, owner
or operator of the SWF, or their agents, excepting only liability
arising out of the sole negligence or willful misconduct of the city
and its elected and appointed officials, officers, boards, commissions,
agents, consultants, employees and volunteers and independent contractors
serving as city officials.
12.
Performance Security. Prior to issuance of any SWFP, the permittee
shall pay for and provide a performance bond or other form of security
that complies with the following minimum requirements.
a.
The security shall be in effect until the SWF is fully and completely
removed and the site reasonably returned to its original condition,
to cover the removal costs of the WCF in the event that use of the
SWF is abandoned or the approval is otherwise terminated.
b.
The security shall be in a format and amount approved by the director
and city attorney's office. The amount of security shall be as determined
by the director to be necessary to ensure proper completion of the
applicant's removal obligations. In establishing the amount of the
security, the director shall take into consideration information provided
by the applicant regarding the cost of removal. The amount of the
security instrument shall be calculated by the applicant as part of
its application in an amount rationally related to the obligations
covered by the security instrument. The permittee shall be required
to submit the approved security instrument to the director prior to
issuance of any SWFP for the proposed facility.
c.
Security shall always be imposed if the SWF is located in a PROW
adjacent to any residentially zoned property or residential uses.
13.
Acceptance of Conditions. The SWFP shall not become effective for
any purpose unless/until a city "Acceptance of Conditions" form, in
a form approved by the city attorney's office, has been signed and
notarized by the applicant/permittee before being returned to the
director within 10 days after the determination letter has been served
on the applicant and published on the city's website in accordance
with subsection G.3.a. The permit shall be void and of no force or
effect unless such written agreement is received by the city within
said 10-day period.
I.
Findings
on Small Wireless Facility Permit Applications. No permit shall be
granted for a SWFP unless all of the following findings are made by
the director:
1.
General
Findings. The director may approve or approve with conditions any
SWFP required under this section only after making all of the following
findings:
a.
All notices required for the proposed deployment have been given
by the applicant.
b.
The applicant has provided substantial written evidence supporting
the applicant's claim that it has the right to enter and use the PROW
pursuant to state or federal law, or the applicant has entered into
a franchise or other agreement with the city permitting them to enter
and use the PROW.
c.
The applicant has demonstrated that the SWF complies with all applicable
design, aesthetic and development standards and will not interfere
with access to or the use of the PROW, existing subterranean infrastructure,
or the city's plans for modification or use of such PROW location
and infrastructure.
d.
The applicant has demonstrated that the SWF will not cause any interference
with emergency operations, as evidenced by competent evidence.
e.
The proposed SWF's impacts have been mitigated through the use of
stealth and concealment elements in accordance with the requirements
of this section and the rules and guidelines.
f.
The proposed SWF complies with all federal RF emissions standards
and all other requirements of any federal and/or state agency.
g.
The proposed SWF conforms with all applicable provisions of this
section and federal and state law.
h.
The findings required by this subsection shall be in addition to
any other findings required for approval of a ministerial permit under
this code.
2.
Additional
Findings for SWFs Not Collocated. To approve a wireless telecommunications
antenna that is not collocated with other existing or proposed WCFs
or a new or replacement ground-mounted antenna, monopole, or lattice
tower, the director shall be required to also find that collocation
or siting on an existing structure is not feasible because of technical,
aesthetic, or legal consideration including that such siting:
J.
Exceptions—Director
Findings.
1.
General Requirements. An exception from the strict locational, physical, or design, or development requirements of subsection G, or as provided in the Rules and Guidelines, may be granted by the director in his or her discretion, when it is shown to the director's satisfaction, based on substantial evidence, any of the following:
a.
Because of special, unique circumstances applicable to the proposed
location and/or the proposed WCF, the strict application of the requirements
of the section would deprive the applicant of privileges enjoyed by
other permittees in the vicinity operating a similar WCF; or
b.
Denial of the SWF as proposed would violate federal law, state law,
or both; or
c.
A provision of this section, as applied to applicant, would deprive
applicant of its rights under federal law, state law, or both.
2.
Application
Requirements. An applicant may only request an exception at the time
of applying for a SWFP. The request must include both the specific
provision(s) of this section from which the exception is sought and
the basis of the request. Any request for an exception after the city
has deemed an application complete shall be treated as a new application.
3.
Burden.
The applicant shall have the burden of establishing the basis for
any requested exception.
4.
Scope—Conditions. The director shall limit its exception to the extent to which the applicant demonstrates such an exception is necessary to reasonably achieve its reasonable technical service objectives. In addition to the standard conditions of approval pursuant to subsection H, the director may adopt other conditions of approval as will assure that the adjustment thereby authorized shall not constitute a grant of special privileges inconsistent with the limitations upon other wireless providers seeking to locate any WCF in the area where such property is situated and that are reasonably necessary to promote the purposes in this section and protect the public health, safety and welfare.
5.
Prohibited
Locations—No Exception. Notwithstanding any other provision
of this section, SWFs are prohibited in any of the following locations,
and no exception shall be granted by the director:
K.
Reserved.
L.
Nonexclusive
Grant. No permit or approval granted under this section shall confer
any exclusive right, privilege, license or franchise to occupy or
use the PROW of the city for any purpose whatsoever. Further, no approval
shall be construed as any warranty of title.
M.
Business
License. A SWFP issued pursuant to this section shall not be a substitute
for any business license otherwise required under this code.
N.
Temporary
Small Wireless Facilities.
1.
Emergency
Deployment. In the event of a declared federal, state, or local emergency,
or when otherwise warranted by conditions that the director deems
to constitute an emergency, the director may approve the installation
and operation of a temporary small wireless facility, subject to such
reasonable conditions that the director deems necessary.
2.
Exclusions—Removal. A temporary small wireless facility shall not be permitted for maintenance activities or while awaiting an expected entitlement or pending plan review, and the allowance of a temporary small wireless facility during an emergency shall not be considered to establish a permanent use of such a facility after the emergency has ended, as declared by the city manager or other appropriate federal, state, or local official. Any temporary small wireless facilities placed pursuant to this subsection N must be removed within 5 days after the date the emergency is lifted. Any person or entity that places temporary small wireless facilities pursuant to this subsection must send a written notice that identifies the site location and person responsible for its operation to the director as soon as reasonably practicable.
O.
Operation
and Maintenance Standards. All SWFs must comply at all times with
the following operation and maintenance standards and other standards
set forth in the rules and guidelines adopted by resolution of the
city council.
1.
Each
SWF shall be operated and maintained to comply with all conditions
of approval. Each owner or operator of a SWF shall routinely inspect
each site to ensure compliance with the same and the standards set
forth in this section.
2.
No
SWF shall be operated and maintained in any manner that causes any
interference with any emergency operations of the city and any other
public agency.
3.
Each
SWF shall be operated and maintained in compliance with all local,
federal and state laws and regulations.
P.
Radio
Frequency (RF) Emissions and Other Monitoring Requirements.
1.
The
permittee, owner and operator of a SWF shall submit within 90 days
of beginning operations under a new or amended permit, and every 5
years from the date the SWF began operations, a technically sufficient
report ("monitoring report") that demonstrates all of the following:
Q.
No Dangerous
Condition or Obstructions Allowed. No person shall install, use or
maintain any SWF which in whole or in part rests upon, in or over
any PROW, when such installation, use or maintenance endangers or
is reasonably likely to endanger the safety of persons or property,
or when such site or location is used for public utility purposes,
public transportation purposes or other governmental use, or when
such SWF unreasonably interferes with or unreasonably impedes the
flow of pedestrian or vehicular traffic including any legally parked
or stopped vehicle, the ingress into or egress from any residence
or place of business, the use of poles, posts, traffic signs or signals,
hydrants, mailboxes, permitted sidewalk dining, permitted street furniture
or other objects permitted at or near said location.
R.
Permit
Extension.
1.
Time
of Application. A permittee may apply for extensions of its SWFP in
increments of no more than 10 years and no sooner than 180 days (6
months) prior to expiration of the permit. Any request for an extension
that is filed less than 180 days (6 months) prior to expiration shall
require a new permit in accordance with the application and procedural
requirements of the then-current requirements of this code.
2.
Application
Requirements. In addition to all other requirements of this section
and the Rules and Guidelines, the permittee's application for extension
shall include proof that the permittee continues to have the legal
authority to occupy and use the PROW for the purpose set forth in
its SWFP, that the SWF site as it exists at the time of the extension
application is in full compliance with all applicable city permits
issued for the site, and shall be accompanied by an affidavit and
supporting documentation that the SWF is in compliance with all applicable
FCC and NWS and other governmental regulations. At the director's
discretion, additional studies and information may be required of
the applicant. The application shall be accompanied by the fee for
renewal, as set by the city council from time to time. Grounds for
non-renewal of the SWFP shall include, but are not limited to, the
permittee's failure to submit the affidavit or proof of legal authority
to occupy or use the PROW. The burden is on the permittee to demonstrate
that the SWF complies with all requirements for an extension.
3.
Director
Decision. If a SWFP has not expired at the time a timely application
is made for an extension, the director may administratively extend
the term of the SWFP for subsequent 10-year terms upon verification
of continued compliance with the findings and conditions of approval
under which the application was originally approved, all provisions
set forth in subsection R.2 and any other applicable provisions of
this code that are in effect at the time the permit extension is granted.
The director's decision shall be issued in the form of a written determination
letter in accordance with subsection F.3. The director's decision
on an application for a SWFP shall be final and conclusive and not
be appealable to the city council.
S.
Cessation
of Use or Abandonment.
1.
A
SWF or wireless communications collocation facility is considered
abandoned and shall be promptly removed as provided herein if it ceases
to provide wireless communications services for 90 or more consecutive
days. If there are two or more users of a single facility, then this
provision shall not become effective until all users cease using the
facility.
2.
The
operator of a facility shall notify the city in writing of its intent
to abandon or cease use of a permitted site or a nonconforming site
(including an unpermitted site) within 10 days of ceasing or abandoning
use. Notwithstanding any other provision herein, the operator of the
SWF shall provide written notice to the director of any discontinuation
of operations of 30 days or more.
T.
Revocation
or Modification—Removal.
1.
Revocation
or Modification of SWFP. The director may modify or revoke any SWFP
if the operation or maintenance of the SWF violates any of the permit's
terms or conditions, this section or any other ordinance or law in
accordance with the following procedures.
a.
When the director has reason to believe that grounds exist for the
modification or revocation of a SWF, he or she shall give written
notice by certified mail thereof to the permittee setting forth a
statement of the facts and grounds. The permittee shall have not less
than 10 days to submit a written response and supporting documentation
to the director prior to the director's decision. The director's decision
shall be issued in writing, and shall be posted on the city's website
in accordance with the procedures set out in subsection F.3.a.
b.
The director may revoke or modify the SWFP if he or she makes any
of the following findings:
c.
If the director determines that modification of the SWFP is warranted,
he or she may impose any revised or new conditions that he or she
deems appropriate based on his or her other findings.
d.
Decisions of the director to modify or revoke a SWF shall be subject to the administrative review procedure of Chapter 1.20 of this code. The city manager shall be the hearing officer for purposes of such procedure and may not delegate such responsibility. The city manager's administrative review decision shall be final and shall not be subject to city council review pursuant to Chapter 1.20 of this code.
2.
Permittee's
Removal Obligation. Upon the expiration date of the SWFP, including
any extensions, earlier termination or revocation of the SWFP or abandonment
of the SWF, the SWFP shall become null and void, and the permittee,
owner or operator shall completely remove its SWF or wireless communications
collocation facility. Removal shall be in accordance with proper health
and safety requirements and all ordinances, rules, and regulations
of the city. The SWF or wireless communications collocation facility
shall be removed from the property within 30 days, at no cost or expense
to the city. If the SWF or wireless communications collocation facility
is located on another SWF or other private property, the private property
owner shall also be independently responsible for the expense of timely
removal and restoration.
3.
Failure
to Remove. Failure of the permittee, owner, or operator to promptly
remove its SWF wireless communications collocation facility and restore
the property within 30 days after expiration, earlier termination,
or revocation of the SWFP, or abandonment of the SWF or wireless communications
collocation facility, shall be a violation of this code, and be grounds
for:
a.
Prosecution;
b.
Calling of any bond or other assurance required by this section or
conditions of approval of permit;
c.
Removal of the SWF or wireless communications collocation facility
by the city in accordance with the procedures established under this
code for abatement of a public nuisance at the owner's expense; and/or
d.
Any other remedies permitted under this code.
4.
Summary
Removal. In the event the director determines that the condition or
placement of a SWF or wireless communications collocation facility
located in the PROW constitutes a dangerous condition, obstruction
of the PROW, or an imminent threat to public safety, or determines
other exigent circumstances require immediate corrective action (collectively,
"exigent circumstances"), the director may cause the SWF or wireless
communications collocation facility to be removed summarily and immediately
without advance notice or a hearing. Written notice of the removal
shall be served upon the person who owns the SWF or wireless communications
collocation facility within 5 business days of removal and all property
removed shall be preserved for the owner's pick-up as feasible. If
the owner cannot be identified following reasonable effort or if the
owner fails to pick-up the property within 60 days, the SWF or wireless
communications collocation facility shall be treated as abandoned
property.
5.
Removal
of Facilities by City. In the event the city removes a SWF or wireless
communications collocation facility in accordance with nuisance abatement
procedures or summary removal, any such removal shall be without any
liability to the city for any damage to such WCF or wireless communications
collocation facility that may result from reasonable efforts of removal.
In addition to the procedures for recovering costs of nuisance abatement,
the city may collect such costs from the performance bond posted and
to the extent such costs exceed the amount of the performance bond,
collect those excess costs in accordance with this code. Unless otherwise
provided herein, the city has no obligation to store such SWF or wireless
communications collocation facility. Neither the permittee nor the
owner nor operator shall have any claim if the city destroys any such
SWF or wireless communications collocation facility not timely removed
by the permittee, owner, or operator after notice, or removed by the
city due to exigent circumstances.
6.
Non-Exclusive
Remedies. Each and every remedy available for the enforcement of this
section shall be non-exclusive and it is within the discretion of
the authorized inspector or enforcing attorney to seek cumulative
remedies set forth in this code, except that multiple monetary fines
or penalties shall not be available for any single violation of this
section.
U.
Deemed
Granted. In the event that a SWFP application is deemed granted by
rule of federal or state law, all conditions, development and design
standards, and operations and maintenance requirements imposed by
this section and any rules and guidelines are still applicable and
required for the installation.
V.
Effect
on Other Ordinances—Conflicting Code Provisions Superseded.
1.
Compliance
with the provisions of this section shall not relieve a person from
complying with any other applicable provision of this code.
2.
The
provisions of this section shall govern and supersede any conflicting
provisions of the code with respect to the permitting and regulation
of wireless communications facilities in the public right-of-way.
W.
State
or Federal Law.
1.
In
the event it is determined by the city attorney that state or federal
law prohibits discretionary permitting requirements for certain SWFs,
such requirement shall be deemed severable and all remaining regulations
shall remain in full force and effect. Such a determination by the
city attorney shall be in writing with citations to legal authority
and shall be a public record. For those WCFs, in lieu of a SWFP, a
ministerial wireless facilities permit shall be required prior to
installation or modification of a SWF, and all provisions of this
section shall be applicable to any such facility with the exception
that the required permit shall be reviewed and administered as a ministerial
permit by the director rather than as a discretionary permit. Any
conditions of approval set forth in this section or the rules and
guidelines, or deemed necessary by the director, shall be imposed
and administered as reasonable time, place and manner rules.
2.
If
subsequent to the issuance of the city attorney's written determination
pursuant to subsection W.1, the city attorney determines that the
law has changed and that discretionary permitting is permissible,
the city attorney shall issue such determination in writing with citations
to legal authority and all discretionary permitting requirements shall
be reinstated. The city attorney's written determination shall be
a public record.
3.
All
SWFs shall be built in compliance with all federal and state laws,
including, but not limited to, the Americans with Disabilities Act
(ADA).
4.
Changes
in Law. All SWFs shall meet the current standards and regulations
of the FCC, the CPUC and any other agency of the federal or state
government with the authority to regulate wireless communications
providers and/or WCFs. If such standards and/or regulations are changed,
the permittee and/or wireless communications provider shall bring
its SWF into compliance with such revised standards and regulations
within 90 days of the effective date of such standards and regulations,
unless a more stringent compliance schedule is mandated by the controlling
federal or state agency. Failure to bring SWFs into compliance with
any revised standards and regulations shall constitute grounds for
the immediate removal of such facilities at the permittee and/or wireless
communications provider's expense.
X.
Nonconforming
Small Wireless Communications Facilities.
1.
A
legal nonconforming SWF is a facility that was lawfully constructed,
installed, or otherwise deployed in the PROW prior to the effective
date of this section in compliance with all applicable city, state
and federal laws and regulations, and which facility does not conform
to the requirements of this section.
2.
Legal
nonconforming SWFs shall comply at all times with the city, state
and federal laws, ordinances, and regulations in effect at the time
the application was deemed complete, and any applicable federal or
state laws as they may be amended or enacted from time to time, and
shall at all times comply with the conditions of approval. Any legal
nonconforming facility which fails to comply with applicable laws,
ordinances, regulations or the conditions of approval may be required
to conform to the provisions of this section.
4.
Any
nonconforming SWF that was not lawfully installed, constructed or
otherwise deployed in the PROW in violation of any applicable ordinances,
laws or regulations in effect at the time of its deployment is an
illegal use and shall be subject to abatement as a public nuisance
in accordance with the code and/or any other applicable federal and/or
state laws, and the owner thereof shall subject to all civil and criminal
remedies provided by the code and law.
(Ord. 1677)
A.
Purpose
and Intent.
1.
Section
6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012,
Pub. L. 112-96, codified as 47 U.S.C. Section 1455(a) ("Section 6409(a)"),
generally requires that state and local governments "may not deny,
and shall approve" requests to collocate, remove or replace transmission
equipment at an existing tower or base station. Federal Communication
Commission ("FCC") regulations interpret this statute and establish
procedural rules for local review, which generally preempt certain
subjective land-use regulations, limit permit application content
requirements and provide the applicant with a potential "deemed-granted"
remedy when the state or local government fails to approve or deny
the request within 60 days after submittal (accounting for any tolling
periods). Moreover, whereas Section 704 of the Telecommunications
Act of 1996, Pub. L. 104-104, codified as 47 U.S.C. Section 332, applies
to only "personal wireless service facilities" (e.g., cellular telephone
towers and equipment), Section 6409(a) applies to all "wireless" facilities
licensed or authorized by the FCC (e.g., cellular, Wi-Fi, satellite,
microwave backhaul, etc.).
2.
The
city council finds that the overlap between wireless deployments covered
under Section 6409 and other wireless deployments, combined with the
different substantive and procedural rules applicable to such deployments,
creates a potential for confusion that harms the public interest in
both efficient wireless facilities deployment and carefully planned
community development in accordance with local values. The city council
further finds that a separate permit application and review process
specifically designed for compliance with Section 6409(a) contained
in a section devoted to Section 6409(a) will mitigate such potential
confusion, streamline local review and preserve the city's land-use
authority to maximum extent possible.
3.
This
section establishes reasonable and uniform standards and procedures
in a manner that protects and promotes the public health, safety and
welfare, consistent with and subject to federal and California State
law, for wireless facilities collocations and modifications pursuant
to Section 6409(a), and related FCC regulations codified in 47 C.F.R.
Section 1.6100 et seq., or any successor regulation. This section
is not intended to, nor shall it be interpreted or applied to:
a.
Prohibit or effectively prohibit any wireless service provider's
ability to provide wireless communications services;
b.
Prohibit or effectively prohibit any entity's ability to provide
any interstate or intrastate wireless communications service, subject
to any competitively neutral and nondiscriminatory rules, regulations
or other legal requirements for rights-of-way management;
c.
Unreasonably discriminate among providers of functionally equivalent
services;
d.
Deny any request for authorization to place, construct or modify
WCFs on the basis of environmental effects of radio frequency emissions
to the extent that such WCFs comply with the FCC's regulations concerning
such emissions;
e.
Prohibit any collocation or modification that the city may not deny
under federal or California State law; or
f.
Otherwise authorize the city to preempt any applicable federal or
state law.
4.
Due
to rapidly changing technology and regulatory requirements, and to
further implement this section, the city council may adopt written
policies, rules, regulations and guidelines by resolution to further
implement and administer this section, which may include, but are
not limited to, provisions addressing applications and the application
review process, notices, location, development and design standards,
conditions, and operations and maintenance requirements for eligible
facilities. The director may adopt policies, procedures and forms
consistent with this section and any council-adopted Rules and Guidelines,
which such director-adopted provisions shall be posted on the city's
website and maintained at the department for review, inspection and
copying by applicants and other interested members of the public.
The city council and the director may update their rules, policies,
procedures and forms in their discretion to adjust for new technologies,
federal and/or state regulations, and/or to improve and adjust the
city's implementing regulatory procedures and requirements, and compliance
therewith is a condition of approval in every eligible facility permit.
B.
Application:
Base Station:
Collocation:
Day:
Eligible Facility Permit (EFP):
Eligible Facilities Request:
Eligible Support Structure:
Existing:
Rules and Guidelines:
Site:
Substantial Change:
1.
a.
b.
c.
d.
2.
a.
b.
c.
d.
e.
3.
a.
b.
4.
Tower:
Transmission Equipment:
Definitions. For the purposes of this section, the following words and phrases have the meanings set forth below. Words and phrases not specifically defined in this section will be given their meaning ascribed to them in Section 6.10.070 of this chapter or as otherwise provided in Section 6409(a), the Communications Act or any applicable federal or state law or regulation.
a written submission to the city for the installation, construction
or other deployment of an eligible facility and other related ministerial
permits to obtain final approval of the deployment of an eligible
facility at a specified location.
the same as defined by the FCC in 47 C.F.R. Section 1.6100(b)(1),
or any successor regulation, which defines that term as a structure
or equipment at a fixed location that enables FCC-licensed or authorized
wireless communications between user equipment and a communications
network. The term does not encompass a tower as defined in 47 C.F.R.
Section 1.6100(b)(9), or any successor regulation, or any equipment
associated with a tower. The term includes, but is not limited to,
equipment associated with wireless communications services such as
private, broadcast, and public safety services, as well as unlicensed
wireless services and fixed wireless services such as microwave backhaul.
The term includes, but is not limited to, radio transceivers, antennas,
coaxial or fiber-optic cable, regular and backup power supplies, and
comparable equipment, regardless of technological configuration (including
distributed antenna systems and small-cell networks). The term includes:
(1) any structure other than a tower that, at the time the relevant
application is filed with the state or local government under 47 C.F.R.
Section 1.6100, or any successor regulation, supports or houses equipment
described in 47 C.F.R. Sections 1.6100(b)(1)(i), or any successor
regulation; and (2) that has been reviewed and approved under the
applicable zoning or siting process, or under another state or local
regulatory review process, even if the structure was not built for
the sole or primary purpose of providing such support. The term does
not include any structure that, at the time the relevant application
is filed with the state or local government under this section, does
not support or house equipment described in 47 C.F.R. Sections 1.6100(b)(1)(i)
and (ii), or any successor regulation.
For purposes of an eligible facilities request, means the
same as defined by the FCC in 47 C.F.R. Section 1.6100(b)(2), or any
successor regulation, which defines that term as the mounting or installation
of transmission equipment on an eligible support structure for the
purpose of transmitting and/or receiving radio frequency signals for
communications purposes, or as otherwise defined by federal law with
respect to eligible facilities. As an illustration and not a limitation,
the FCC's definition effectively means "to add" and does not necessarily
refer to more than one wireless facility installed at a single site.
a calendar day, except as otherwise provided in this section.
a permit for an eligible facilities request under Section
6409(a) that meets the criteria set forth in this section.
the same as defined by the FCC in 47 C.F.R. Section 1.6100(b)(3),
or any successor regulation, which defines that term as any request
for modification of an existing tower or base station that does not
substantially change the physical dimensions of such tower or base
station, involving: (1) collocation of new transmission equipment;
(2) removal of transmission equipment; or (3) replacement of transmission
equipment.
the same as defined by the FCC in 47 C.F.R. Section 1.6100(b)(4),
or any successor regulation, which defines that term as any tower
or base station as defined in 47 C.F.R. Section 1.6100(b)(1) or (9),
or any successor regulation; provided, that it is existing at the
time the relevant application is filed with the state or local government
under this definition.
the same as defined by the FCC in 47 C.F.R. Section 1.6100(b)(4),
or any successor regulation, which provides that a constructed tower
or base station is existing for purposes of the FCC's Section 6409(a)
regulations if it has been reviewed and approved under the applicable
zoning or siting process, or under another state or local regulatory
review process; provided, that a tower that has not been reviewed
and approved because it was not in a zoned area when it was built,
but was lawfully constructed, is existing for purposes of this definition.
The rules, guidelines, regulations and procedures adopted
from time to time by resolution of the city council to administer
and implement this section.
the same as defined by the FCC in 47 C.F.R. Section 1.6100(b)(6),
or any successor regulation, which provides that for towers other
than towers in the public rights-of-way, the current boundaries of
the leased or owned property surrounding the tower and any access
or utility easements currently related to the site, and, for other
eligible support structures, further restricted to that area in proximity
to the structure and to other transmission equipment already deployed
on the ground.
the same as defined by the FCC in 47 C.F.R. Section 1.6100(b)(7),
or any successor regulation, which defines that term differently based
on the type of eligible support structure (tower or base station)
and location (in or outside the PROW). For clarity, this definition
organizes the FCC's criteria and thresholds for determining if a collocation
or modification substantially changes the physical dimensions of a
wireless tower or base station based on the type and location.
For towers outside the PROW, a substantial change occurs when:
The proposed collocation or modification increases the overall
height of the tower by more than 10% or the height of one additional
antenna array with separation from the nearest existing antenna not
to exceed 20 feet (whichever is greater); or
The proposed collocation or modification adds an appurtenance
to the body of the tower that would protrude from the edge of the
tower more than 20 feet, or more than the width of the tower structure
at the level of the appurtenance (whichever is greater); or
The proposed collocation or modification involves the installation
of more than the standard number of equipment cabinets for the technology
involved, but not to exceed 4; or
The proposed collocation or modification involves excavation
outside the current boundaries of the leased or owned property surrounding
the wireless tower, including any access or utility easements currently
related to the site.
For towers in the PROW and for all base stations, a substantial
change occurs when:
The proposed collocation or modification increases the overall
height of the tower more than 10% or 10 feet (whichever is greater);
or
The proposed collocation or modification involves adding an
appurtenance to the body of the structure that would protrude from
the edge of the tower or base station by more than 6 feet; or
The proposed collocation or modification involves the installation
of any new ground-mounted equipment cabinets when there are no pre-existing
ground-mounted equipment cabinets associated with the structure; or
The proposed collocation or modification involves the installation
of any new ground-mounted equipment cabinets that are more than 10%
larger in height or overall volume than any other existing ground-mounted
equipment cabinets; or
The proposed collocation or modification involves excavation
outside the area in proximity to the structure and other transmission
equipment already deployed on the ground.
In addition, for all towers and base stations wherever located,
a substantial change occurs when:
The proposed collocation or modification would defeat the existing
concealment elements of the eligible support structure (wireless tower
or base station) as reasonably determined by the director; or
The proposed collocation or modification violates a prior condition
of approval; provided, however, that the collocation need not comply
with any prior condition of approval related to height, width, equipment
cabinets or excavation that is inconsistent with the thresholds for
a substantial change described in this section.
For purposes of this definition, changes in height should be
measured from the original support structure in cases where deployments
are or will be separated horizontally, such as on buildings' rooftops;
in other circumstances, changes in height should be measured from
the dimensions of the tower or base station, inclusive of originally
approved appurtenances and any modifications that were approved prior
to the passage of the Spectrum Act.
the same as defined by the FCC in 47 C.F.R. Section 1.6100(b)(9),
or any successor regulation, which defines that term as any structure
built for the sole or primary purpose of supporting any FCC-licensed
or authorized antennas and their associated facilities, including
structures that are constructed for wireless communications services
including, but not limited to, private, broadcast, and public safety
services, as well as unlicensed wireless services and fixed wireless
services such as microwave backhaul, and the associated site. Examples
include, but are not limited to, monopoles, monotrees and lattice
towers.
the same as defined by the FCC in 47 C.F.R. Section 1.6100(b)(8),
or any successor regulation, which defines that term as equipment
that facilitates transmission for any FCC-licensed or authorized wireless
communications service, including, but not limited to, radio transceivers,
antennas, coaxial or fiber-optic cable, and regular and backup power
supply. The term includes equipment associated with wireless communications
services including, but not limited to, private, broadcast, and public
safety services, as well as unlicensed wireless services and fixed
wireless services such as microwave backhaul.
C.
Applicability. This section applies to all requests for approval to collocate, replace or remove transmission equipment at an existing wireless tower or base station submitted pursuant to Section 6409(a). Even if the proposed project would otherwise require a SWFP under Section 6.10.070 of this chapter, and/or a ministerial permit, eligible facility requests submitted for approval pursuant to Section 6409(a) must be first reviewed under this section. If the approval authority finds that the project qualifies for approval under Section 6409(a), then no SWFP will be required. However, the applicant may voluntarily elect to seek a SWFP under Section 6.10.070 either in lieu of an EFP approval or after the approval authority finds that an application does not qualify for an EFP approval pursuant to Section 6409(a).
D.
Approvals
Required.
1.
Eligible
Facility Permit (EFP) Approval. Any request to collocate, replace
or remove transmission equipment at an existing wireless tower or
base station shall require approval of an EFP subject to the director's
approval, conditional approval or denial without prejudice pursuant
to the standards and procedures contained in this section and the
rules and guidelines.
2.
Other
Permits and Regulatory Approvals. No collocation or modification approved
pursuant to this section may occur unless the applicant also obtains
all other permits and regulatory approvals as may be required by any
other federal, state or local government agencies, which include without
limitation any ministerial permits and/or regulatory approvals issued
by other departments or divisions within the city. Furthermore, any
EFP approval granted under this section shall remain subject to any
and all lawful conditions and/or legal requirements associated with
any other permits or regulatory approvals for the existing wireless
tower or base station.
E.
Application
Requirements. An application for a EFP shall be filed and reviewed
in accordance with the following provisions and the rules and guidelines.
1.
Complete
Application Required. The applicant shall submit an EFP application
in writing to the public works department on a city-approved form
as prescribed by the director, and shall contain all required notices,
information, materials and documentation required by this section
and the Rules and Guidelines, or as otherwise determined to be necessary
by the director to effectuate the purpose and intent of this section.
The director may waive certain submittal requirements or require additional
information based on specific project factors. Unless an exemption
or waiver applies, all applications shall include the completed form
and all information, materials, and documentation required by the
city. An application which does not include all of the required forms,
information, materials and documentation shall be deemed incomplete,
and a notice of incomplete application shall be provided to the applicant
in accordance with subsection E.6 of this section.
a.
Public Notice. In addition to all other requirements of this section
and the rules and guidelines, the application shall include a notice
that complies with the city-approved text and format, and contains
all of the following information:
i.
A general explanation of the proposed collocation or modification;
ii.
The applicant's identification and contact information as provided
on the application submitted to the city;
iii.
Contact information for the approval authority; and
iv.
A statement substantially similar to the following: "Federal Communications
Commission regulations may deem this application granted by the operation
of law unless the city approves or denies the application within 60
days from the filing date, or the city and applicant reach a mutual
tolling agreement."
2.
Application
Fees. Concurrent with submittal of the application, the applicant
shall pay an application fee and processing fee, a deposit for an
independent expert review as set forth in this section, and a deposit
for review by the city attorney's office, in a payment format accepted
by the city finance department and in amounts set by resolution of
the city council. Failure to pay the fees in full at the time of application
submittal shall result in the city deeming the application incomplete.
Fees shall be set by resolution of the city council, and shall be
determined in accordance with subsection E.3 of this chapter.
3.
Voluntary
Pre-Submittal Conference. Prior to application submittal, the applicant
may schedule and attend a voluntary pre-submittal conference with
the public works department and community development department staff
for all proposed eligible facilities in the PROW. The purpose of the
voluntary pre-submittal conference is to provide informal feedback
on the proposed classification of the facility as an eligible facility
under Section 6409(a), review procedure, location, design and application
materials, to identify potential concerns and to streamline the formal
application review process after submittal. Participation in a voluntary
pre-submittal conference shall not trigger the shot clocks specified
in subsection E.6.
4.
Appointments.
The director may require that an application shall be submitted only
at a pre-arranged appointment in accordance with the Rules and Guidelines.
The director has the discretion to set the frequency and number of
appointments that will be granted each day. The requirement for an
appointment shall be published on the department's website.
5.
Independent
Expert. The director is authorized to retain on behalf of the city
an independent, qualified consultant to review any application for
an EFP to review the technical aspects of the application, including,
but not limited to: the accuracy, adequacy, and completeness of submissions;
compliance with applicable radio frequency emission standards; whether
any requested exception is necessary, technical demonstration of the
facility designs or configurations; technical feasibility; coverage
analysis; the validity of conclusions reached or claims made by applicant
or other factors as deemed appropriate by the director to determine
whether the proposed facility qualifies as an eligible facility under
Section 6409(a). The cost of this review shall be paid by the applicant
through a deposit pursuant to an adopted fee schedule resolution.
6.
Shot
Clock—Timeline for Review and Action. The timeline for review
of and action on an EFP application shall begin to run when the application
is submitted in writing to the department but may be tolled by mutual
agreement or upon the city's issuance of a notice of incomplete application
to the applicant pursuant to subsection E.7 of this section. Applications
shall be processed in conformance with the time periods and procedures
established by applicable state and federal law, and FCC regulations
and orders. The following provisions shall apply:
a.
60 Days. Within 60 days of the date on which an applicant submits
a written request seeking approval of an eligible facilities request
under this section, the city will approve the application unless the
city determines that the application is not covered by this section
or the 60-day deadline is tolled pursuant to mutual agreement or subsection
E.6.b.
b.
Tolling of Shot Clock. The 60-day timeframe for review of a proposed
eligible facility shall begin to run when the application for the
EFP is submitted in writing to the department but may be tolled by
mutual agreement or upon the city's issuance of a notice of incomplete
application to the applicant pursuant to this subsection.
i.
First Incomplete Notice. Within 30 days of the city's receipt of
the initial application for an EFP, Department staff shall provide
written notice to the applicant that the application is complete or
incomplete. If the application is incomplete, the notice shall clearly
and specifically delineate all missing information and documents.
The 30-day shot clock date shall be tolled until the applicant makes
a supplemental submission in response to the city's notice of incompleteness.
ii.
Subsequent Incomplete Notices. Within 10 days of each supplemental
submission, the city shall deem the application complete or incomplete.
If the supplemental submission is incomplete, the notice shall clearly
and specifically delineate all missing information and documents from
the supplemental submission based on the information or documents
identified in the first notice delineating missing information or
documentation. The 10-day timeframe is tolled in the case of second
or subsequent notices pursuant to this procedure. Second or subsequent
notices of incompleteness may not specify missing documents or information
that were not delineated in the original notice of incompleteness.
iii.
One Submittal. The applicant's response and submission of supplemental
materials and information in response to a notice of incomplete application
must be given to the city in 1 submittal packet.
F.
Notice and Decision. Procedures for public notice, approval authority review of and action on EFP applications are set forth in this subsection and in the Rules and Guidelines.
1.
Public
Notice of Application. Upon submittal of a complete EFP application
to the city, the applicant shall send the city-approved public notice
of the application to all businesses and residents within a 150-foot
radius of the proposed eligible facility in accordance with the rules
and guidelines. Concurrently with service on the businesses and residents,
the applicant shall also send a copy of the approved public notice
to the department along with proof of service of the public notice
on all residents and businesses as required by this subsection.
2.
Public
Comment. Within 10 days from service of the notice, any interested
person may submit comments on the proposed eligible facility to the
city by U.S. mail or through the city's website. Any timely public
comments received will be considered during the director's review
of the application.
3.
Director
Decision on EFP Applications.
a.
Director Review, Decision and Notice. Upon receipt of a complete
application for EFP pursuant to this section, the director shall undertake
administrative review of the application and all pertinent information,
materials, documentation and public comments. The director may approve,
or conditionally approve an application for an EFP if the director
makes all of the findings required in subsection F.4. The director
may impose conditions in accordance with subsection F.6. Within 5
days after the director approves or conditionally approves an application
under this section, or expiration of the shot clock period set forth
in subsection E.6, whichever occurs sooner, the director shall issue
a written determination letter, and shall serve a copy of the determination
letter on the applicant at the address shown in the application and
shall cause the determination letter to be published on the city's
website.
4.
Required
Findings for EFP Approval. The director shall approve or conditionally
approve an application for an EFP pursuant to Section 6409(a) and
this section if the director makes all of the following findings:
a.
The applicant has provided all forms, information, materials, and
documentation for the proposed project required by this section;
b.
The proposed project is for the collocation, removal or replacement
of transmission equipment on an existing wireless tower or base station;
c.
The proposed project does not constitute a substantial change to the physical dimensions of the existing wireless tower or base station, as defined in subsection B; and
d.
The proposed project otherwise qualifies as an eligible facility
under then-existing provisions of Section 6409(a).
5.
Criteria
for Denial Without Prejudice. Notwithstanding any other provisions
in this chapter, and consistent with all applicable federal laws and
regulations, the director may deny without prejudice an application
for approval of an EFP when the director finds that the proposed project:
a.
Does not satisfy the findings for approval as an eligible facility
under subsection E.3 of this section;
b.
Involves the replacement of the entire support structure;
c.
Violates any legally enforceable standard or permit condition related
to compliance with generally applicable disability access, building,
structural, electrical and/or safety codes;
d.
Violates any legally enforceable standard or permit condition reasonably
related to public health and safety then in effect; or
e.
Does not qualify for mandatory approval under Section 6409(a) for
any lawful reason.
6.
Conditional Approvals. Subject to any applicable limitations in federal or state law, and in addition to the standard conditions of approval required by subsection F.6, nothing in this section is intended to limit the city's authority to conditionally approve an application for an EFP under Section 6409(a) to protect and promote the public health, safety and welfare in accordance with this section and the Rules and Guidelines, including, but not limited to, building code standards and health and safety conditions, and such other reasonable time, place and manner conditions authorized under applicable federal and state laws and regulations. The standard conditions set forth in of subsection G shall apply to all eligible facilities.
7.
Written
Decision. The director's decision shall be issued in writing in accordance
with the procedures set forth in subsection F.3.a. and the Rules and
Guidelines. The director's decision on an application for an EFP shall
be final and conclusive and shall not be appealable to the city council.
8.
Deemed
Approved.
a.
If the city fails to act on an EFP application within the 60-day
review period referenced in subsection E.6.a. (subject to any tolling
pursuant to written agreement or subsection E.6.b.), the applicant
may provide the city written notice that the time period for acting
has lapsed.
b.
The applicant shall provide written notice to the city at least 7
days prior to beginning construction or collocation pursuant to an
EFP issued pursuant to a deemed approved application.
c.
An EFP deemed approved pursuant to Section 6409(a) shall comply with
all applicable building code standards and traffic, health and safety
requirements of the code deemed applicable by the director.
d.
Effect of Changes to Federal Law. This subsection does not and shall
not be construed to grant any rights beyond those granted by Section
6409(a) and its implementing federal regulations. In the event Section
6409(a) or applicable regulations are stayed, amended, revised or
otherwise not in effect, no modifications to an eligible facility
shall be processed or approved under this subsection E.9 or any other
provision of this code.
G.
Standard Conditions of Approval Applicable to All Applications. All EFP approvals, whether approved by the approval authority or deemed approved by the operation of law, shall be automatically subject to the conditions in this subsection, in addition to any conditions imposed pursuant to subsection F and the rules and guidelines. The director (or the city council on appeal) shall have discretion to modify or amend these conditions on a case-by-case basis as may be necessary or appropriate under the circumstances to protect public health and safety or allow for the proper operation of the approved eligible facility consistent with the goals of this section.
1.
Permit
Term. The city's grant or grant by operation of law of an EFP constitutes
a federally-mandated modification to the underlying permit, approval
or other prior regulatory authorization for the subject tower or base
station pursuant to Section 6409(a), for 10 years, subject to the
following provisions. The city's grant or grant by operation of law
of an EFP will not extend the term, if any, for any ministerial permit
or other underlying prior regulatory permit, approval or other authorization.
Accordingly, the term for an EFP approval shall be coterminous with
the ministerial permit and other underlying permit, approval or other
prior regulatory authorization for the subject tower or base station.
This condition shall not be applied or interpreted in any way that
would cause the term of the underlying permit for the modified facility
to be less than 10 years in total length, unless such underlying permit
is abandoned or revoked pursuant to this code or any other provision
of federal or state law.
2.
Accelerated Approval Terms Due to Invalidation. In the event that any court of competent jurisdiction invalidates any portion of Section 6409(a) or any FCC rule that interprets Section 6409(a) such that federal law would not mandate approval for any eligible facilities request pursuant to Section 6409(a), such EFP approval shall automatically expire 1 year from the effective date of the judicial order, unless the decision would not authorize accelerated termination of any previously approved EFP or the director grants an extension upon written request from the permittee that shows good cause for the extension, which includes without limitation extreme financial hardship. Notwithstanding anything in the previous sentence to the contrary, the director may not grant a permanent exemption or indefinite extension. A permittee shall not be required to remove any equipment, components, structures and improvements approved under the invalidated EFP approval when it has submitted an application for either a SWFP under Section 6.10.070 for those WCFs before the 1-year period ends. If the SWFP is denied, the permittee shall remove all its equipment, components, structures and improvements before the 1-year period ends.
3.
No
Waiver of Standing. The approval of an EFP (either by express approval
or by operation of law) does not waive, and shall not be construed
to waive, any standing by the city to challenge Section 6409(a), any
FCC rules that interpret Section 6409(a) and/or any eligible facilities
approval pursuant to Section 6409(a) (whether by the approval authority
or by operation of law).
4.
Strict
Compliance with Approved Plans. Any application filed by the permittee
for a ministerial permit to construct or install the eligible facility
approved by an EFP must incorporate the EFP approval, all conditions
associated with the EFP approval and the approved photo simulations
into the project plans (the "approved plans"). The permittee must
construct, install and operate the eligible facility in strict compliance
with the approved plans. Any alterations, modifications or other changes
to the approved plans, whether requested by the permittee or required
by other departments or public agencies with jurisdiction over the
eligible facility, must be submitted in a written request subject
to the director's prior review and approval, who may revoke the EFP
approval if the director finds that the requested alteration, modification
or other change may cause a substantial change as that term is defined
by Section 6409(a) or the FCC in 47 C.F.R. Section 1.6100(b)(7), as
may be renumbered or amended.
5.
Build-Out
Period. The EFP approval will automatically expire 1 year from the
EFP approval or deemed-granted date unless the permittee obtains all
other permits and approvals required to install, construct and/or
operate the approved eligible facility, which include, without limitation,
any city ministerial permit, and any other permits or approvals required
by any federal, state or other local public agencies with jurisdiction
over the subject property, the eligible facility or its use. The director
may grant one written extension to a date certain when the permittee
shows good cause to extend the limitations period in a written request
for an extension submitted at least 30 days prior to the automatic
expiration date in this condition.
6.
Maintenance
Obligations—Vandalism. The permittee shall keep the site, which
includes, without limitation, any and all improvements, equipment,
structures, access routes, fences and landscape features, in a neat,
clean and safe condition in accordance with the approved plans and
all conditions in the EFP approval. The permittee shall keep the site
area free from all litter and debris at all times. The permittee,
at no cost to the city, shall remove and remediate any graffiti or
other vandalism at the site within 48 hours after the permittee receives
notice or otherwise becomes aware that such graffiti or other vandalism
occurred. Each year after the permittee installs the wireless facility,
the permittee shall submit a written report to the director, in a
form acceptable to the director, that documents the then-current site
condition.
7.
Property
Maintenance. The permittee shall ensure that all equipment and other
improvements to be constructed and/or installed in connection with
the approved plans are maintained in a manner that is not detrimental
or injurious to the public health, safety, and general welfare and
that the aesthetic appearance is continuously preserved, and substantially
the same as shown in the approved plans at all times relevant to the
EFP. The permittee further acknowledges that failure to maintain compliance
with this condition may result in a code enforcement action.
8.
Compliance
with Laws. The permittee shall maintain compliance at all times with
all federal, state and local statutes, regulations, orders or other
rules that carry the force of law ("laws") applicable to the permittee,
the subject property, the eligible facility or any use or activities
in connection with the use authorized in the EFP approval. The permittee
expressly acknowledges and agrees that this obligation is intended
to be broadly construed and that no other specific requirements in
these conditions are intended to reduce, relieve or otherwise lessen
the permittee's obligations to maintain compliance with all laws.
In the event that the city fails to timely notice, prompt or enforce
compliance with any applicable provision in the code, any permit,
any permit condition or any governing laws, the applicant or permittee
will not be relieved from its obligation to comply in all respects
with all applicable provisions in the code, any permit, any permit
condition or any governing laws.
9.
Adverse
Impacts on Other Properties. The permittee shall use all reasonable
efforts to avoid any and all undue or unnecessary adverse impacts
on nearby properties that may arise from the permittee's or its authorized
personnel's construction, installation, operation, modification, maintenance,
repair, removal and/or other activities at the site. Impacts of radio
frequency emissions on the environment, to the extent that such emissions
are compliant with all governing laws, are not "adverse impacts" for
the purposes of this condition. The permittee shall not perform or
cause others to perform any construction, installation, operation,
modification, maintenance, repair, removal or other work that involves
heavy equipment or machines except during normal construction hours
authorized by the code. The restricted work hours in this condition
will not prohibit any work required to prevent an actual, immediate
harm to property or persons, or any work during an emergency declared
by the city. The director or the director's designee may issue a stop
work order for any activities that violate this condition.
10.
Inspections—Emergencies. The permittee expressly acknowledges
and agrees that the city's officers, officials, staff or other designee
may enter onto the site and inspect the improvements and equipment
upon reasonable prior notice to the permittee; provided, however,
that the city's officers, officials, staff or other designee may,
but will not be obligated to, enter onto the site area without prior
notice to support, repair, disable or remove any improvements or equipment
in emergencies or when such improvements or equipment threatens actual,
imminent harm to property or persons. The permittee will be permitted
to supervise the city's officers, officials, staff or other designee
while any such inspection or emergency access occurs.
11.
Permittee's Contact Information. The permittee shall furnish the
department with accurate and up-to-date contact information for a
person responsible for the eligible facility, which includes without
limitation such person's full name, title, direct telephone number,
facsimile number, mailing address and email address. The permittee
shall keep such contact information up-to-date at all times and immediately
provide the director with updated contact information in the event
that either the responsible person or such person's contact information
changes.
12.
Indemnification.
a.
The permittee, and if applicable, the property owner of the property
upon which the eligible facility is installed in the PROW, shall agree
in writing to defend, indemnify, protect and hold harmless city, its
elected and appointed officials, officers, boards, commissions, agents,
consultants, employees, volunteers and independent contractors serving
as city officials (collectively "Indemnitees"), from and against any
and all claims, actions, or proceeding against the Indemnitees or
any of them, to attack, set aside, void or annul, an approval of the
director or city council concerning the EFP and the construction,
operation, maintenance and/or repair of the eligible facility. Such
indemnification shall include damages, judgments, settlements, penalties,
fines, defensive costs or expenses, including, but not limited to,
interest, reasonable attorneys' fees and expert witness fees, or liability
of any kind related to or arising from such claim, action, or proceeding.
The permittee, and if applicable, the property owner of the property
upon which the eligible facility is installed in the PROW, shall also
agree not to sue or seek any money or damages from the city in connection
with the grant of the permit and also agree to abide by the city's
ordinances and other laws. The city shall promptly notify the permittee
and property owner (if any) of any claim, action, or proceeding. Nothing
contained herein shall prohibit city from participating in a defense
of any claim, action or proceeding. The city shall have the option
of coordinating the defense, including, but not limited to, choosing
counsel for the defense at the permittee's expense.
b.
Additionally, to the fullest extent permitted by law, the permittee,
and every permittee and person in a shared permit, jointly and severally,
shall defend, indemnify, protect and hold the city and its elected
and appointed officials, officers, boards, commissions, agents, consultants,
employees and volunteers harmless from and against all claims, suits,
demands, actions, losses, liabilities, judgments, settlements, costs
(including, but not limited to, attorney's fees, interest and expert
witness fees), or damages claimed by third parties against the city
for any injury claim, and for property damage sustained by any person,
arising out of, resulting from, or are in any way related to the EFP,
or to any work done by or use of the PROW by the permittee, owner
or operator of the EFP, or their agents, excepting only liability
arising out of the sole negligence or willful misconduct of the city
and its elected and appointed officials, officers, boards, commissions,
agents, consultants, employees and volunteers and independent contractors
serving as city officials.
13.
Performance Security. Prior to issuance of any ministerial permit,
the permittee shall pay for and provide a performance bond or other
form of security that complies with the following minimum requirements
and the Rules and Guidelines.
a.
The security shall be in effect until the eligible facility is fully
and completely removed and the site reasonably returned to its original
condition, to cover the removal costs of the eligible facility in
the event that its use is abandoned or the approval is otherwise terminated.
b.
The security shall be in a format and amount approved by the director
and city attorney's office. The amount of security shall be as determined
by the director to be necessary to ensure proper completion of the
removal of the eligible facility. In establishing the amount of the
security, the director shall take into consideration information provided
by the applicant regarding the cost of removal. The amount of the
security instrument shall be calculated by the applicant as part of
its application in an amount rationally related to the obligations
covered by the security instrument. The permittee shall be required
to submit the approved security instrument to the director prior to
issuance of any ministerial for the proposed eligible facility.
c.
Security shall always be imposed if the eligible facility is located
in a PROW adjacent to any residentially zoned property or residential
uses.
14.
Insurance. The permittee shall obtain, pay for and maintain, in full
force and effect until the eligible facility approved by the permit
is removed in its entirety from the PROW, an insurance policy or policies
of public liability insurance which shall be in the form and substance
satisfactory to the city in accordance with the Rules and Guidelines,
and shall be maintained until the term of the permit ended and the
eligible facility is removed from the PROW. The insurance shall comply
with the minimum limits and coverages and provisions set forth in
the Rules and Guidelines, and as otherwise established from time to
time by the city, and which fully protect the city from claims and
suits for bodily injury, death, and property damage.
15.
Acceptance of Conditions. The EFP shall not become effective for
any purpose unless/until a city "Acceptance of Conditions" form, in
a form approved by the city attorney's office, has been signed and
notarized by the applicant/permittee before being returned to the
director; within 10 days after the determination letter has been served
on the applicant and published on the city's website in accordance
with Section 6.10.070.F.3.a. The permit shall be void and of no force
or effect unless such written agreement is received by the city within
said 10-day period.
H.
Operation
and Maintenance Standards. The permittee shall comply with all operations
and maintenance standards set forth in Section 6.10.070.0 of this
chapter and the Rules and Guidelines.
I.
Additional Requirements. All eligible facilities (including eligible facilities granted by the city and eligible facilities requests granted by operation of law) shall comply with and be subject to all of the following provisions of Section 6.10.070 of this chapter.
1.
Section
6.10.070.G.4(b), (c) and (d) (locational restrictions).
2.
Section
6.10.070.J: Exceptions; Director's Findings.
3.
Section
6.10.070.L: Nonexclusive Grant.
4.
Section
6.10.070.M: Business License.
5.
Section
6.10.070.P: Radio Frequency (RF) Emissions and Other Monitoring Requirements.
6.
Section
6.10.070.Q: No Dangerous Condition or Obstructions Allowed.
7.
Section
6.10.070.R: Permit Extension.
8.
Section
6.10.070.S: Cessation of Use or Abandonment.
9.
Section
6.10.070.T: Revocation or Modification; Removal.
10.
Section 6.10.070.V: Effect on Other Ordinances.
11.
Section 6.10.070.W: State or Federal Law.
12.
Section 6.10.070.X: Nonconforming Wireless Communications Facilities.
J.
Effect
on Other Ordinances—Conflicting Code Provisions Superseded.
1.
Compliance
with the provisions of this section shall not relieve a person from
complying with any other applicable provision of this code.
2.
The
provisions of this section shall govern and supersede any conflicting
provisions of the code with respect to the permitting and regulation
of eligible facilities in the public right-of-way.
(Ord. 1677)
A.
Unless
precluded by law, any person who violates any provision of this title
is guilty of a misdemeanor.
B.
The
misdemeanor penalty specified above is not applicable to a violation
of any provision of this chapter for which another sanction or penalty
may be imposed under any franchise, license, lease, or similar written
agreement between the city and a multi-channel video programming distributor
or telecommunications service provider.
(Ord. 1515; Ord. 1521)
Notwithstanding any provisions to the contrary set forth in
this chapter, the provisions of Chapter 23A (entitled "Franchises
for Cable Television Systems and Telecommunications Systems") of the
previous city code will continue in full force and effect as an uncodified
ordinance of the city. This uncodified ordinance will continue to
be applicable to the existing cable television franchise agreement
between the city and its franchised cable operator, Adelphia Communications
Corporation, or its duly authorized assignee. This uncodified ordinance
is subject to repeal by the city council at such time as the franchised
cable operator executes an amendment to the existing cable television
agreement or executes a new cable television franchise agreement,
the terms of which subject the franchised cable operator to this chapter.
(Ord. 1515)
A.
Fee
for Support of PEG Access Facilities and Activities.
1.
The
city council has determined that the public interest will best be
served by imposing, to the extent authorized by applicable law, comparable
financial obligations upon similarly-situated multi-channel video
programming providers that are franchised to provide video services
within the city. Consistent with the city's policy of requiring franchisees
to provide financial support for public, educational, and governmental
(PEG) access channel facilities and activities, a fee is established
as set forth below in paragraph 3 of this subsection.
2.
On
December 31, 2006, the city's incumbent cable operator was contractually
obligated to pay an annual fee of $75,000 to support PEG channel facilities
and activities. This fee is in excess of 1% of the cable operator's
reported gross revenues, and it is approximately equivalent to 1.20%
of the reported gross revenues. The term "gross revenues" shall be
defined as set forth in California Public Utilities Code Section 5860.
3.
The
city hereby establishes and imposes upon any state video franchise
holder operating in the city a fee, separate from the 5% franchise
fee, to support PEG access channel facilities and activities. This
separate fee is in the amount of 1.20% of a video service provider's
gross revenues. The restrictions and limitations set forth below in
paragraph 4 of this subsection apply to this PEG access support fee.
4.
The
fee in support of PEG access channel facilities and activities specified
above in paragraph 3 of this subsection, as applied to a state video
franchise holder, is subject to the following provisions:
a.
The fee must not exceed 3% of the holder's gross revenues, as the
term "gross revenues" is defined in the Public Utilities Code Section
5860.
b.
The fee will terminate upon expiration of the state video franchise,
but it may be reauthorized by ordinance adopted by the city council.
c.
If the imposition of this fee, or any component thereof, is determined
to be contrary to or inconsistent with the provisions of Public Utilities
Code Section 5870 by subsequent legislative action, judicial decision,
or administrative interpretation, then an alternative fee for PEG
support obligations may be imposed by ordinance adopted by the city
council.
d.
The fee established by this subsection A shall be remitted quarterly to the city treasurer and must be received not later than 45 days after the end of the preceding calendar quarter. The fee payment shall be accompanied by a summary that describes all sources of the gross revenues upon which the fee is based, which summary must be verified by a responsible financial officer or employee of the video service provider.
e.
A late payment charge equal to the highest prime lending rate during
the period of delinquency plus 1% of the amount due and delinquent
shall be applied to any amount due from a state-franchised video service
provider for PEG support fees not received by the city when due pursuant
to this chapter.
B.
Franchise
Fee. A state video franchise holder operating in the city shall pay
to the city a franchise fee that is equal to 5% of the gross revenues
of that state video franchise holder. The term "gross revenues" shall
be defined as set forth in Public Utilities Code Section 5860.
C.
Audit
Authority. Not more than once annually, the city may examine and perform
an audit of the business records of a holder of a state video franchise
to ensure compliance with all applicable statutes and regulations
related to the computation and payment of franchise fees.
D.
Customer
Service Penalties Under State Video Franchises.
1.
The
holder of a state video franchise shall comply with all applicable
state and federal customer service and protection standards pertaining
to the provision of video service.
2.
The
city shall monitor a state video franchise holder's compliance with
state and federal customer service and protection standards. The city
will provide to the state video franchise holder written notice of
any material breaches of applicable customer service and protection
standards, and will allow the state video franchise holder 30 days
from 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 monetary penalties to be imposed by the
city in accordance with state law:
a.
For the first occurrence of a violation, a monetary penalty of $500
shall be imposed for each day the violation remains in effect, not
to exceed $1,500 for each violation.
b.
For a second violation of the same nature within 12 months, a monetary
penalty of $1,000 shall be imposed for each day the violation remains
in effect, not to exceed $3,000 for each violation.
c.
For a third or further violation of the same nature within 12 months,
a monetary penalty of $2,500 shall be imposed for each day the violation
remains in effect, not to exceed $7,500 for each violation.
3.
A
state video franchise holder may appeal a monetary penalty assessed
by the city within 60 days. After relevant evidence and testimony
is received, and staff reports are submitted, the city council will
vote to either uphold or vacate the monetary penalty. The city council's
decision on the imposition of a monetary penalty shall be final.
E.
City
Response to State Video Franchise Applications.
1.
Applicants
for state video franchises within the boundaries of the city must
concurrently provide to the city complete copies of any application
or amendments to applications filed with the California Public Utilities
Commission. One complete copy must be provided to the city manager.
2.
The
city will provide any appropriate comments to the California Public
Utilities Commission regarding an application or an amendment to an
application for a state video franchise.
F.
PEG
Access Channel Capacity.
1.
A
state video franchise holder that uses the public rights-of-way shall
designate sufficient capacity on its network to enable the carriage
of at least 3 public, educational, or governmental (PEG) access channels.
2.
Additional
requirements relating to PEG access channels are as follows:
a.
A state video franchise holder is subject to payment of the PEG support fee specified above in subsection A of this section.
b.
PEG access channels shall be for the exclusive use of the city or
its designees to provide public, educational, or governmental programming.
c.
Advertising, underwriting, or sponsorship recognition may be carried
on the PEG access channels for the purpose of funding PEG-related
activities.
d.
The PEG access channels shall be carried on the basic service tier.
e.
To the extent feasible, the PEG access channels shall not be separated
numerically from other channels carried on the basic service tier,
and the channel numbers for the PEG access channels shall be the same
channel numbers used by the incumbent cable operator unless prohibited
by federal law.
f.
After the initial designation of PEG access channel numbers, the
channel numbers shall not be changed without the prior written consent
of the city, unless the change is required by federal law.
g.
Each PEG access channel shall be capable of carrying a National Television
System Committee (NTSC) television signal.
G.
Interconnection.
Where technically feasible, a state video franchise holder and incumbent
cable operator shall negotiate in good faith to interconnect their
networks for the purpose of providing PEG access channel programming.
Interconnection may be accomplished by direct cable, microwave link,
satellite, or other reasonable method of connection. State video franchise
holders and incumbent cable operators shall provide interconnection
of the PEG access channels on reasonable terms and conditions and
may not withhold the interconnection. If a state video franchise holder
and an incumbent cable operator cannot reach a mutually acceptable
interconnection agreement, the city may require the incumbent cable
operator to allow the state video franchise holder to interconnect
its network with the incumbent's network at a technically feasible
point on the holder's network as identified by the holder. If no technically
feasible point for interconnection is available, the state video franchise
holder shall make an interconnection available to the channel originator
and shall provide the facilities necessary for the interconnection.
The cost of any interconnection shall be borne by the state video
franchise holder requesting the interconnection unless otherwise agreed
to by the parties.
H.
Emergency
Alert System and Emergency Overrides. A state video franchise holder
must comply with the Emergency Alert System requirements of the Federal
Communications Commission in order that emergency messages may be
distributed over the holder's network. Provisions in city-issued franchises
authorizing the city to provide local emergency notifications shall
remain in effect, and shall apply to all state video franchise holders
in the city for the duration of the city-issued franchise, or until
the term of the franchise would have expired had it not been terminated
pursuant to subdivision (m) of Section 5840 of the California Public
Utilities Code, or until January 1, 2009, whichever is later.
I.
Encroachment
Permit Applications.
1.
As
used in this section, the term "encroachment permit" means any permit
issued by the city relating to construction or operation of facilities
by the holder of a state video franchise.
2.
The
city shall either approve or deny an application from a holder of
a state video franchise for an encroachment permit within 60 days
of receiving a completed application.
3.
If
the city denies an application for an encroachment permit, the city
shall, at the time of notifying the applicant of the denial, furnish
to the applicant a detailed explanation of the reason for the denial.
An applicant may appeal the city's denial of an encroachment permit
application to the city council. A written notice of appeal stating
the facts of the matter and the grounds for appeal shall be filed
with the city clerk within 10 days of the denial. The city clerk shall
set the matter for hearing at a regular meeting of the city council
and shall give the appellant written notice of the time and place
of hearing at least five days before the hearing. The decision of
the city council taken after the appellant has had an opportunity
to be heard will be final.
(Ord. 1515; Ord. 1563; Ord. 1668)
