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HomeMy WebLinkAbout94-86 - Adopting Procedures to Regulate Cable Rates1 RESOLUTION NO. 94-86 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF COSTA MESA, CALIFORNIA, ADOPTING ADMINISTRATIVE PROCEDURES TO REGULATE CABLE TELEVISION SERVICES AND EQUIPMENT RATES. THE CITY COUNCIL OF THE CITY OF COSTA MESA DOES HEREBY RESOLVE AS FOLLOWS: WHEREAS, pursuant to the Cable Television Consumer Protection and Competition Act of 1992 ("1992 Cable Act")(47 U.S.C. Sections 521 et seq.), and the regulations of the Federal Communications Commission ("FCC")(Title 47 Sections 76.900 et seq. of the Code of Federal Regulations), the City has been certified to regulate the rates charged for cable television services and equipment; and WHEREAS, the FCC regulations require the City to adopt procedures for regulating the basic service tier within 120 days of being certified; and WHEREAS, the City has previously adopted rate regulation procedures in Costa Mesa Municipal Code Section 19-190 and it desires to supplement these procedures; NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Costa Mesa hereby adopts City Council Policy No. 600-1 and it shall be added to the City Council Policy Manual as set forth in Exhibit "A", attached hereto and incorporated herein by this reference. PASSED AND ADOPTED this 19th day of September, 1994. ATTEST: 1 Deputy City 5 lerk of the City of Costa Mesa STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss CITY OF COSTA MESA ) Mayor of the City of Costa Mesa I, MARY T. ELLIOTT, Deputy City Clerk and ex -officio Clerk of the City Council of the City of Costa Mesa, hereby certify that the above and foregoing Resolution No. 94-86 was duly and regularly passed and adopted by the said City Council at a regular meeting thereof held on the 19th day of September, 1994. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the Seal of the City of Costa Mesa this 20th day of September, 1994. Deputy &cil Clerk and ex -officio Clerk of the City of the City of Costa Mesa -239 CITY OF COSTA MESA, CALIFORNIA EXHIBIT A COUNCIL POLICY POLICY EFFECTIVE SUBJECT CABLE TELEVISION NUMBER DATE PAGE RATE REGULATIONS 600-1 9-20-94 1 of 6 BACKGROUND AND PURPOSE: .The City Council has caused the City of Costa Mesa to become certified to regulate the rates that the cable operator charges for cable television services and equipment. In order to adequately determine maximum cable television rates, the information submitted by the cable operator on Federal Communications Commission forms needs to be supplemented by additional information so that the City can fully determine whether the cable operator has correctly completed the form. REGULATIONS AND POLICY: Section 1. DEFINITIONS. 1.1 "1992 Cable Act" means the Cable Television Consumer Protection and Competition Act of 1992 (27 U.S.C. § 521 et seq.) 1.2 "Cable Operator" means any person or business entity operating a cable television system within the City and subject to regulation of cable television services and equipment pursuant to the 1992 Cable Act. 1.3 "FCC Regulations" mean the regulations the FCC has adopted regarding rate regulation as set forth at Title 47 of the Code of Federal Regulations, § 76.900 et seq., including any amendments thereto. 1.4 "City Manager" means the City Manager or his or her designee. 1.5 "City Attorney" means the City Attorney or his or her designee. 1.6 "FCC Rate Regulation Form" means FCC Form 393, 1200, 12051 1210, 1215, 1220, 1225 or such similar forms as the FCC may adopt for the determination of maximum permitted rates for regulated cable services and equipment. Exhibit "A" Resolution No. 94-86 Page 1 of 6 1.7 "Subscriber" means any person or entity utilizing or desiring to utilize cable operator provided cable television services for consideration. "Subscriber" also means "customer(s)" and/or "subscribers" as those terms are used in the 1992 Cable Act and FCC Rate Regulations. 1.8 "FCC" means the Federal Communications Commission. Section 2. INCORPORATION OF THE FCC RATE REGULATIONS. 2.1 Incorporation of FCC Regulations. The City Council hereby incorporates by reference the FCC Regulations as part of these procedures. 2.2 Compliance with the 1992 Cable Act and FCC Regulations. These procedures shall at all times be interpreted to comply with the 1992 Cable Act as amended and the FCC Regulations. In the event any provision of these procedures shall be invalidated for any reason or cause, any remaining portions shall be deemed severed and shall remain in full force and effect. Section 3. CERTIFICATION. 3.1 Application for Certification. The City Manager or City Attorney is directed to take all necessary action to secure FCC certification for the City to regulate rates charged for cable television services and equipment. Section 4. DETERMINATION OF MAXIMUM PERMITTED RATES FOR CABLE TELEVISION SERVICES AND EQUIPMENT. 4.1 Submittal of FCC Rate Regulation Forms. The City Manager or City Attorney is directed to take all necessary action to secure submittal by the Cable Operator of completed FCC Rate Regulation Forms pursuant to Costa Mesa Municipal Code § 19-190. -4.2 Submittal of Additional Information with FCC Rate Regulation Form 1200. When submitting FCC Rate Regulation Form 1200, the Cable Operator shall also submit the following information to the City: a. The name, address and telephone number of the person who prepared the FCC Rate Regulation Form or the person the Cable Operator otherwise designates Exhibit "A" Resolution No. 94-86 Page 2 of 6 241 42 to answer any questions the City may have regarding the Form. b. Channel Line-up and rates for each tier and channel, and for equipment and installation as of (i) the initial date of regulation; (ii) the date of the Rate Regulation Form; (iii) September 30, 1992; (iv) April 1, 1993; (v) March 31, 1994; and (vi) July 15, 1994. C. Subscriber counts as of (i) September 30, 1992; (ii) April 5, 1993; (iii) the initial date of regulation; (vi) March 31, 1994; (v) July 15, 1994; and (vi) the date of the FCC Rate Regulation Form. Counts should be for the basic and cable programming services tiers, and for all a la carte channels. Subscribers to bulk rate agreements should be itemized separately. d. Schedules supporting all allocation and computations on the FCC Rate Regulation. e. Report of gross revenues for purposes of franchise fee payments for two (2) years preceding the date of FCC Rate Regulation Form. f. Description of all bulk rate and special (i.e., senior citizens) rate agreements. g. State whether a customer may subscribe to basic tier service and purchase a pay channel or pay-per- view programming without purchasing an intermediate tier or paying any additional fee. If the answer is no, explain why. The above information shall be submitted concurrently with submitting Form 1200 to the City, or within 14 days after adoption of this resolution, whichever occurs later. 4.3 Additional Information. The Cable Operator shall submit such additional information as the City Manager or City Attorney may determine is necessary to determine maximum permitted rates_ for cable television services and equipment. Upon each request for additional information by the City Manager or City Attorney, which request shall state clearly the reason the information is needed, and where applicable which part of the FCC Rate Regulation Form the request specifically relates, the Cable Operator shall submit such information. The Cable Operator shall fully respond to such requests for additional information within 14 days of receipt of the request. The City Exhibit "A" Resolution :No. 94-86 Page 3 of 6 1 Manager or City Attorney may extend the time to respond beyond 14 days for good cause. 4.4 City's Power to Examine Cable Operator Records. Pursuant to 47 CFR § 76.938 and Costa Mesa Municipal Code § 19- 190, the City may examine the financial records of the Cable Operator to determine if the FCC Rate Regulation Form truly and accurately reflects the actual cost of regulated equipment. 4.5 Time to Determine Rates. Pursuant to 47 CFR § 76.9334, the City Manager or City Attorney may issue such orders as he determines are reasonably necessary to extend the time to review the FCC Rate Regulation Form submitted and determine the maximum permitted rates. 4.6 Cost of Service Showing. Upon receipt of a Cost of Service Showing, the City Manager or City Attorney will take all steps necessary, including filing a petition for special relief, to cause the FCC to evaluate the Cost of Service Showing. 4.7 Rate Report. The City Manager or City Attorney will review the FCC Rate Regulation Form and additional information submitted by Cable Operator, and prepare a written report to the City Council recommending whether the existing or proposed rates are within the FCC's permitted basic service tier charge or actual cost of equipment as defined in §§ 76.922 and 76.923 of the FCC Regulations. 4.8 Public Hearing. Prior to making any determination whether the Cable operator's existing or proposed rates are within the FCC's permitted basic service tier charge or actual cost of equipment as defined in §§ 76.922 and 76.923, the City Council will conduct a noticed public hearing pursuant to Costa Mesa Municipal Code § 19-190, at which time interested parties will be given the opportunity to submit written and oral testimony. Written notice of the public hearing will be provided to the Cable Operator at least ten (10) days prior to the public hearing. 4.9 Rate Determination. At the public hearing, Cable Operator shall have the burden of proving that its existing or proposed rates for basic service and associated equipment comply with 47 U.S.C. § 543 and 47 CFR §§ 76.922 and 76.923. If the Cable Operator does not attempt to demonstrate the reasonableness of its rates, the Council may find the Operator in default and, using the best information available, enter an order finding the Cable Operator's rates unreasonable and mandating Exhibit "A" Resolution No. 94-86 Page 4 of 6 243 244 appropriate relief, as specified in 47 CFR §§ 76.940 and 76.942. The City Council will make all rate determinations by way of written resolution pursuant to Costa Mesa Municipal Code § 19-190. 4.10 Submittal of FCC Form 329. The City Manager or City Attorney is directed to submit an FCC Form 329 within 45 days of any rate increase by the Cable Operator to ensure FCC review of cable programming service rates. Section 5. REFUNDS TO SUBSCRIBERS. 5.1 Refunds to Subscribers. All refunds owing by the Cable Operator to Subscribers pursuant to the FCC Regulations shall, at the cable operator's discretion, be made as follows: (i) by direct payment to Subscribers; (ii) as a specifically identified credit to the Subscriber's bill; (iii) or by means of prospective percentage reduction in the rates for the basic service tier or associated equipment for subscribers who remain in the service area. All refunds shall be made within sixty (60) days from the date of the City Council Order. Section 6. ENFORCEMENT. 6.1 In addition to Costa Mesa Municipal Code 5 19-165, whenever the City Manager or City Attorney believes there has been a material breach of these procedures and/or the FCC Regulation, he or she shall notify the Cable Operator in writing to cure the breach. The City Manager or City Attorney will establish a minimum time to cure the breach, which in no event shall be less than thirty (30) days. The notice shall specify any refund liability, if any. The written notice to the Cable Operator shall be by certified mail or other means providing for certification of receipt. 6.2 In addition to Costa Mesa Municipal Code § 19-165, upon receiving the City Manager's or City Attorney's notice of the breach, the Cable operator shall investigate the alleged breach, and within the time period established in the notice, notify the City Manager or City Attorney in writing of the results of the investigation and its proposed action or resolution, if any. In the event the City Manager or City Attorney does not refer the matter to the City Council, as provided under this resolution, within thirty (30) days of the receipt of the Cable Operator's response, the Operator's proposed action or resolution shall be final. 6.3 In addition to Costa Mesa Municipal Code § 19-165, following a determination of the City Manager or City Exhibit "A" Resolution No. 94-86 Page 5 of 6 1 breach of these procedures and/or the FCC Regulations, the City Manager or City Attorney may initiate enforcement proceedings with respect to the breach. Such enforcement proceedings may be initiated by the City Manager or City Attorney providing the Cable Operator notice of a public hearing before the City Council. Notice shall be provided to the Cable Operator by certified mail or other means providing for certification of receipt. 6.4 In addition to Costa Mesa Municipal Code § 19-165, the City Council will commence the hearing no less than ten (10) days after the hearing notice. 6.5 In addition to Costa Mesa Municipal Code § 19-165, upon the conclusion of the hearing, the City Council shall adopt a decision which includes findings of fact and conclusions of law. 6.6 The City Council may impose fines or monetary forfeitures on the Cable Operator if it fails to comply with these procedures, the FCC Regulations or a rate decision of the City Council pursuant to Costa Mesa Municipal Code §§ 19- 165 and 19-200. 6.7 Neither monetary sanctions imposed hereunder nor any order issued by the City Council related hereto shall be deemed to bar or otherwise limit the right of the City Council to obtain judicial enforcement of the Cable Operator's obligations by means of specific performance, injunctive relief, mandate or other remedies at law or inequity, other than monetary damages. Exhibit "A" Resolution No. 94-86 Page 6 of 6 .945