HomeMy WebLinkAbout9/5/2018 - STAFF REPORTS - 3.A.CITY COUNCIL STAFF REPORT
LEGISLATIVE
DATE: September 5, 2018
SUBJECT: INTRODUCTION OF AN ORDINANCE OF THE CITY OF PALM SPRINGS ,
CALIFORNIA AND FIRST READING OF AN ORDINANCE TO REAUTHORIZE
THE COLLECTION OF A FEE TO SUPPORT PUBLIC , EDUCATIONAL, AND
GOVERNMENTAL ("PEG ") CHANNEL FACILITIES WITHIN THE CITY , AND
ALSO ADOPTION OF AN IDENTICAL INTERIM URGENCY ORDINANCE
(4/5ths Vote Required)
FROM : David H. Ready , City Manager
BY : Peter Nelson King , Assistant City Attorney
RECOMMENDATION:
1. Give first reading to Ordinance No . , to be read by t itle only, reauthorizing
the pub lic , educational , and governmenta l fee on state video franchisees
operating within the City.
2 . Waive full reading and adopt, by four-fifths vote , Urgency Ordinance No. __
reauthorizing the public , educationa l, and governmental fee on state video
franchisees operating within the City .
BACKGROUND :
As authorized by State law, the City of Palm Springs ("City") imposes a one percent (1 %)
public, educational , and governmental access fee ("PEG Fee ") on a ll state-franchised video
service providers operating within the City to support PEG channel facilities and activities.
The City's existing PEG Fee ordinance does not include any provisions stating it is to expire ,
but instead is intended to apply to all franchisees operating in the City . However, State law
states that the City should reauthorize the PEG Fee upon the exp i ration of an applicable
state franchise . There is current ly one state-franch ised video servi ce prov ider operating
within the City, Charter Communications ("Charter") formerly Time Warner. The Charter
franchise has expired and was renewed by the State , requiring action by the City to ensure
the co ntinu ed authority to co ll ect the PEG Fee from Charter.
ITEM NO. I 3 . A.
City Cou nci l St aff Report
September 5 , 2018 --Page 2
Reautho ri zat ion of the Collection of a Fee to Sup port Public, Edu cat iona l , and Governmental C hannel Facilities
ANALYSIS :
In 2006, the California Legislatu re adopted the Digital Infrastructure and Video Competition
Act ("DIVCA"), which changed the manner in which video services are regulated by placing
local franchising within a state franchis ing system administered by the California Public
Utilities Commission ("CPUC").
DIVCA authorizes c ities to adopt an o rdinance imposing a fee on state franchise holders to
support PE G channel facilitie s. The C ity Council es tablished such a fee on Marc h 25 , 2009
by adopting Ordinance No. 1759 to req uire state-franchised video service providers to pay
the City a PEG fee of one percent (1 %) of the video service provider's gross revenues
attributable to the City. DIVCA also provides , however, that an ordinance adopting a PEG
fee "shall expire, and may be reauthori zed, upon th e expiration of the state franchise ." (Cal.
Pub. Utilities Code§ 5870(n))
Charter Communications rece ive d a state v ideo franchise to operate with i n the City , which
became effective on De cembe r 20 , 2007 , effective January 2 , 2008 .
Pursuant to DIVCA, the City should reauthorize the PEG Fee established by Ordinance No .
1759. The proposed ordinances would reauthorize the City's PEG Fee , and therefore
preserve funding available to s upp o rt PEG programming facilities a nd activities going
forwa rd . Thus , because th e C ity depends up on th e PEG Fee for cap it a l cost s re lating to
PEG channel facilities, which are essential t o providing City residents with important ci vi c
programm in g including emergency a lerts and co mmunity and government news , an
Urg e ncy Ord i na nce is necessary for the immediate preservation of th e public peace , health
and saf ety.
Th e reg ul a r Ordinance will become effective thirty (30) days after its second rea ding and
will be in effect upon any expiration of the Urg ency Ordinance . In additi on t o th e Urg e ncy
Ordinance , staff recommends th at the Ci ty introduce a nd give first readi ng to Ordinance
__ ,to be read by title only, which re lates to the exact same issue .
FI SCAL REVIEW:
The ordinances will reauthorize a one perce nt (1 %) PEG fe e that th e C ity c urren tly imposes
o n state-franchised video se rv ice prov iders o pe rating within the City. The C ity co ll ects
approximate ly $65 ,000 in PEG fees from Cha rt e r annua ll y .
J zt;:. . A[ 9n 1
Peter Nel son King
Ass ist a nt City Attorney
Attachments: 1. Ordinance
2 . Urg e nc y Ord in ance
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ATTACHMENT 1
ATTACHMENT 1
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ORDINANCE NO.
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
PALM SPRINGS, CALIFORNIA, REAUTHORIZING THE
PUBLIC, EDUCATIONAL, AND GOVERNMENTAL FEE ON
STATE VIDEO FRANCHISEES OPERATING WITHIN THE
CITY OF PALM SPRINGS
WHEREAS, Section 5870(n) of the California Public Utilities Code ("Section
5870(n)") was enacted as part of the Digital Infrastructure and Video Competition Act of
2006 and authorized the City of Palm Springs ("City") to adopt an ordinance establishing a
fee on state-franchised video service providers to support public, educational, and
governmental ("PEG") channel facilities; and
WHEREAS, on April 1, 2009, the City adopted Ordinance No. 1759, establishing a
one percent (1 °/o) fee for the support of PEG channel facilities and activities within the City
("PEG Fee"), which is codified in Section 5. 79 of the Palm Springs Municipal Code; and
WHEREAS, Ordinance No. 1759 has never been repealed and did not include any
expiration date, but was intended to apply to and regulate all current and future
franchisees, through 2017 and beyond; and
WHEREAS, Section 5870(n) states that such ordinance shall expire, and may be
reauthorized, upon the expiration of the state franchise, and therefore it could be argued
that the City's ordinance has lapsed; and
WHEREAS, Charter Communications operates within the City under a state video
franchise that expired on December 20, 2017 and has renewed; and
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF PALM SPRINGS
DOES ORDAIN AS FOLLOWS:
SECTION 1. Reauthorization. The City's PEG Fee imposed in Section 5. 79 of
the Palm Springs Municipal Code is reauthorized to the extent required by California Public
Utilities Code section 5870(n). All state-franchised video service providers operating
within the City, including but not limited to those operating pursuant to the Charter
Communications Franchise, shall continue to be subject to the PEG Fee required by
Section 5.79 of the Palm Springs Municipal Code, which fee shall remain unchanged and
in full effect as to all state-franchised video service providers operating within the City.
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SECTION 2. Automatic Reauthorization. Commencing from, and after, the
effective date of this Ordinance, the City's PEG fee set forth in Section 5. 79 of the Palm
Springs Municipal Code shall continue to apply to any new or existing franchisee operating
in the City and shall automatically be reauthorized upon the expiration of any existing or
future state video franchise(s) held by any state-franchised video service provider
operating within the City. This Ordinance shall so renew until such time that the City
Council takes formal affirmative action to cease the renewals.
SECTION 3. Compliance with CEQA. Adoption of this Ordinance is exempt from
the California Environmental Quality Act ("CEQA") under CEQA Guidelines section
15061 (b )(3) because it can be seen with certainty that there is no possibility that the
Ordinance may have a significant effect on the environment.
SECTION 4. Inconsistencies. Any provision of the Palm Springs Municipal Code
or appendices thereto inconsistent with the provisions of this Ordinance, to the extent of
such inconsistencies and no further, is hereby repealed or modified to that extent
necessary to effect the provisions of this Ordinance.
SECTION 5. Severability. If any section, subsection, sentence, clause, phrase or
portion of this Ordinance is for any reason held to be invalid or unconstitutional by the
decision of any court of competent jurisdiction, such decision shall not affect the validity
of the remaining portions of this Ordinance. The City Council of the City of Palm Springs
hereby declares that it would have adopted this Ordinance and each section, subsection,
sentence, clause, phrase, or portion thereof, irrespective of the fact that any one or more
sections, subsections, sentences, clauses, phrases or portions be declared invalid or
unconstitutional.
SECTION 6. Effective Date. This Ordinance shall take effect thirty (30) days after
its final passage.
SECTION 7. Certification. The City Clerk shall certify to the passage and adoption
of this Ordinance and shall cause the same to be published or posted in the manner
required by law.
PASSED AND ADOPTED this_ day of ___ , 2018.
ATIEST:
Anthony J. Mejia, City Clerk
Robert Moon, Mayor
APPROVED AS TO FORM:
Peter Nelson King,
Assistant City Attorney
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STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE ) ss
CITY OF PALM SPRINGS )
I, ANTHONY J. MEJIA, City Clerk of the City of Palm Springs, do hereby certify that the
foregoing ordinance was duly passed and adopted by the City Council of the City of Palm Springs
at a regular meeting held on the _ day of , 2018, by the following roll call vote, to
wit:
AYES: COUNCIL MEMBERS:
NOES: COUNCIL MEMBERS:
ABSENT: COUNCIL MEMBERS:
IN WITNESS WHEREOF, I have hereby set my hand and affixed the seal of the City of
Palm Springs this __ day of , 2018.
ANTHONY J. MEJIA, CITY CLERK
(SEAL)
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ATTACHMENT 2
ATTACHMENT 2
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ORDINANCE NO.
AN URGENCY ORDINANCE OF THE CITY COUNCIL OF
THE CITY OF PALM SPRINGS, CALIFORNIA,
REAUTHORIZING THE PUBLIC, EDUCATIONAL, AND
GOVERNMENTAL FEE ON STATE VIDEO FRANCHISEES
OPERATING WITHIN THE CITY OF PALM SPRINGS
WHEREAS, Section 5870(n) of the California Public Utilities Code ("Section
5870(n)") was enacted as part of the Digital Infrastructure and Video Competition Act of
2006 and authorized the City of Palm Springs ("City") to adopt an ordinance establishing a
fee on state-franchised video service providers to support public, educational, and
governmental ("PEG") channel facilities; and
WHEREAS, on April 1, 2009, the City adopted Ordinance No. 1759, establishing a
one percent (1 °/o) fee for the support of PEG channel facilities and activities within the City
("PEG Fee"), which is codified in Section 5. 79 of the Palm Springs Municipal Code; and
WHEREAS, Ordinance No. 1759 has never been repealed and did not include any
expiration date, but was intended to apply to and regulate all current and future
franchisees, through 2017 and beyond; and
WHEREAS, Section 5870(n) states that such ordinance shall expire, and may be
reauthorized, upon the expiration of the state franchise, and therefore it could be argued
that the City's ordinance has lapsed; and
WHEREAS Charter Communications operates within the City under a state video
franchise that expired on December 20, 2017 and was renewed; and
WHEREAS, the City Council desires to expressly reauthorize the PEG Fee codified
in 5. 79 of the Palm Springs Municipal Code, which fee shall remain unchanged and in full
effect as to all state-franchised video service providers operating within the City, including
but not limited to, Charter Communications, and to further provide for automatic
reauthorization of the PEG Fee upon the expiration of future video franchises held by
state-franchised video service providers operating within the City.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF PALM SPRINGS
DOES ORDAIN AS FOLLOWS:
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SECTION 1. Urgency Findings. The City Council finds and declares as follows:
The adoption of this Urgency Ordinance is necessary for the immediate
preservation of the public peace, health, and safety. Currently, the City depends upon the
PEG Fee to support PEG access channel facilities, which are essential to providing City
residents with important civic programming, including emergency alerts and community
and government news. The City was only recently made aware that the Charter
Communications Franchise expired on December 20, 2017, thus potentially requiring
reauthorization of the City's PEG Fee pursuant to Public Utilities Code section 5870(n).
Because the expiration date for the Charter Communications Franchise has passed, the
City arguably faces a lapse in PEG funding from the Charter Communications Franchise
until the City reauthorizes the PEG Fee. If the City's PEG Fee is not reauthorized
immediately, the City may lose funding for its PEG programming facilities. Any loss of
funding would jeopardize a trustworthy, reliable and immediate means by which the City
communicates with its residents. Any lapse in funding may also lead to confusion among
state video franchisees operating within the City regarding the payment of the PEG Fee,
leading the City to incur additional costs to recover any overdue fees.
Therefore, the City Council finds and determines that the immediate preservation
of the public peace, health and safety requires that this Ordinance be enacted as an
urgency ordinance pursuant to Government Code section 36937(b) and take effect
immediately upon adoption. If this Ordinance does not become effective immediately, but
instead becomes effective thirty (30) days after its second reading, funding for City PEG
facilities could lapse, causing residents who rely on PEG channels for emergency
broadcasts and news updates to lose a vital source of City information. Based on the
foregoing, the City Council declares this Ordinance is necessary for the immediate
preservation of the public peace, health and safety.
SECTION 2. Reauthorization. The City's PEG Fee imposed in Section 5.79 of
the Palm Springs Municipal Code is reauthorized to the extent required by California Public
Utilities Code section 5870(n). All state-franchised video service providers operating within
the City, including but not limited to those operating pursuant to the Charter Communications
Franchise, shall continue to be subject to the PEG Fee required by Section 5. 79 of the
Palm Springs Municipal Code, which fee shall remain unchanged and in full effect as to all
state-franchised video service providers operating within the City.
SECTION 3. Automatic Reauthorization. Commencing from, and after, the
effective date of this Ordinance, the City's PEG fee set forth in Section 5. 79 of the Palm
Springs Municipal Code shall continue to apply to any new or existing franchisee operating
in the City and shall automatically be reauthorized upon the expiration of any existing or
future state video franchise(s) held by any state-franchised video service provider
operating within the City. This Ordinance shall so renew until such time that the City
Council takes formal affirmative action to cease the renewals.
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SECTION 4. Compliance with CEQA. Adoption of this Ordinance is exempt from the
California Environmental Quality Act ("CEQA") under CEQA Guidelines section
15061 (b)(3) because it can be seen with certainty that there is no possibility that the
Ordinance may have a significant effect on the environment.
SECTION 5. Inconsistencies. Any provision of the Palm Springs Municipal Code
or appendices thereto inconsistent with the provisions of this Ordinance, to the extent of
such inconsistencies and no further, is hereby repealed or modified to that extent
necessary to effect the provisions of this Ordinance.
SECTION 6. Severability. If any section, subsection, sentence, clause, phrase or
portion of this Ordinance is for any reason held to be invalid or unconstitutional by the
decision of any court of competent jurisdiction, such decision shall not affect the validity ·
of the remaining portions of this Ordinance. The City Council of the City of Palm Springs
hereby declares that it would have adopted this Ordinance and each section, subsection,
sentence, clause, phrase, or portion thereof, irrespective of the fact that any one or more
sections, subsections, sentences, clauses, phrases or portions be declared invalid or
unconstitutional.
SECTION 7. Effective Date. This Ordinance shall become effective immediately.
SECTION 8. Certification. The City Clerk shall certify to the passage and adoption
of this Ordinance and shall cause the same to be published or posted in the manner
required by law.
PASSED AND ADOPTED this __ day of September, 2018.
ATTEST:
Anthony J. Mejia, City Clerk
Robert Moon, Mayor
APPROVED AS TO FORM:
Peter Nelson King,
Assistant City Attorney
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STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE ) ss
CITY OF PALM SPRINGS )
I, ANTHONY J. MEJIA, City Clerk of the City of Palm Springs, do hereby certify that the
foregoing urgency ordinance was introduced and adopted by the City Council of the City of Palm
Springs at a regular meeting held on the_ day of September, 2018, by the following roll call vote,
to wit
AYES: COUNCIL MEMBERS:
NOES: COUNCIL MEMBERS:
ABSENT: COUNCIL MEMBERS:
IN WITNESS WHEREOF, I have hereby set my hand and affixed the seal of the City of
Palm Springs this __ day of September, 2018.
ANTHONY J. MEJIA, CITY CLERK
(SEAL)
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