HomeMy WebLinkAboutCC Resolution 9085 (Cable Rate JPA)RESOLUTION NO. 9085
A RESOLUTION OF THE SAN RAFAEL CITY COUNCIL
APPROVING AND AUTHORIZING THE CITY MANAGER
TO TAKE STEPS NECESSARY FOR THE CITY TO ENTER INTO
THE MARIN COUNTY CABLE RATE REGULATION
JOINT POWERS AUTHORITY AGREEMENT;
DELEGATING RATE REGULATORY AUTHORITY TO THE MARIN COUNTY
CABLE RATE REGULATION JOINT POWERS AUTHORITY;
PROVIDING FOR CONFLICTS; PROVIDING FOR SEVERABILITY
WHEREAS, in October 1992 the United States Congress enacted
the Cable Television Consumer Protection and Competition Act
of 1992 (the "Act"), which, among other things, authorized local
franchising authorities to regulate rates for cable television
services under certain circumstances; and
WHEREAS, the Act requires the Federal Communications
Commission ("FCC") to promulgate rules concerning, among other
things, the requirements and procedures for regulation of rates
for certain cable television services; and
WHEREAS, the rules adopted by the FCC require a local
franchising authority to file for certification with the FCC
and to take certain other steps in order to be authorized to
regulate rates for cable television services; and
WHEREAS, pursuant to Resolution No. 9078, the City Council
authorized the City Manager to file certification for cable
rate regulation authority with the FCC and to take all necessary
steps to implement rate regulation authority and reserved the
right to delegate rate regulatory authority to a duly created
joint powers authority; and
WHEREAS, the Joint Exercise of Powers Act (Gov't Code 96500,
et seq.) provides for the creation of legal and administrative
entities to exercise jointly the powers of public agencies of
this State; and
WHEREAS, a number of municipalities located in Marin County
have considered the establishment of such a joint powers
authority, to be known as the Marin County Cable Rate Regulation
Joint Powers Authority ("Authority"), and have prepared an
agreement to that effect; and
WHEREAS, the City Council deems it to be in the best
interests of the citizens and residents of the City to approve
ORIGI 11 �4,s
and authorize the City Manager to take the steps necessary for
the City to enter into the Marin County Cable Rate Regulation
Joint Powers Authority Agreement (the "Agreement");
WHEREAS, the City Council deems it to be in the best
interests of the citizens and residents of the City to approve
and authorize the Authority to take all steps necessary in
connection with the regulation of rates for cable television
services and equipment in the City;
NOW, THEREFORE, BE IT RESOLVED by the City Council of the
City of San Rafael:
Section 1. The City Manager is hereby authorized to sign
the Agreement (a copy of which is attached hereto and made a
part hereof) on behalf of the City and take all other actions
necessary to implement the Agreement on behalf of the City.
Section 2. Upon execution of the Agreement by the City
Manager, the Authority is hereby delegated full authority to
act on behalf of the City in all matters related to the regulation
of rates for cable services and equipment charges by cable
licensees in the City, including, without limitation, authority
to adopt and enforce regulations governing the regulation of
rates for cable services and equipment and to make filings at
the FCC or in court on behalf of the Authority.
Section 3. The City Manager shall keep the Council informed
of actions taken pursuant to this Resolution and of developments
relating to cable television regulation.
Section 4. All resolutions, ordinances or other provisions
of City law, or parts thereof in conflict herewith, are hereby
repealed to the extent of such conflict.
Section 5. If any clause, section, or other part of
application of this Resolution is held by any court of competent
jurisdiction to be unconstitutional or invalid, in part or
application, it shall not affect the validity of the remaining
portions or applications of this Resolution.
I, JEANNE M. LEONCINI, Clerk of the City of San Rafael,
hereby certify that the foregoing resolution was duly and
regularly introduced and adopted at a regular meeting of the
City Council of said City held on Tuesday, the eighteenth day
of January, 1994, by the following vote, to wit:
AYES: COUNCILMEMBERS: Cohen, Heller, Thayer, Zappetini & Mayor Boro
NOES: COUNCILMEMBERS: None
ABSENT: COUNCILMEMBERS: None
JEA E M. LEONC�City'
,erk
MARIN COUNTY CABLE RATE REGULATION
JOINT POWERS AUTHORITY AGREEMENT
A JOINT POWERS AGREEMENT ENTERED INTO BETWEEN
THE UNDERSIGNED LOCAL GOVERNMENTS, PURSUANT
TO CALIFORNIA GOVERNMENT CODE SECTION 6500.1,
AND CREATING THE MARIN COUNTY CABLE RATE
REGULATION JOINT POWERS AUTHORITY AS THE CABLE
TELEVISION REGULATORY AUTHORITY FOR THE
PARTICIPATING LOCAL GOVERNMENTS.
THIS AGREEMENT is by and between the undersigned local
governments ("Participants").
WHEREAS, in October 1992 the United States Congress enacted the
Cable Television Consumer Protection and Competition Act of 1992 (the "Act"),
which, among other things, authorized local franchising authorities to regulate rates
for cable television services and equipment under certain circumstances; and
WHEREAS, the Act requires the Federal Communications Commission
("FCC") to promulgate rules concerning, among other things, the requirements and
procedures for regulation of rates for certain cable television services and equipment
by local franchising authorities; and
WHEREAS, the rules adopted by the FCC require that a franchising
authority wishing to regulate rates for basic cable service and equipment must adopt
and administer regulations consistent with the regulations adopted by the FCC
pursuant to 47 U.S.C. § 543(b); and
WHEREAS, the Participants deem it to be in the best interests of their
citizens and residents to adopt such regulations to implement cable rate regulation
authority under the Act and the FCC rules; and
WHEREAS, the Joint Exercise of Powers Act (Gov't Code §6500, et
seq.), provides for the creation of legal and administrative entities to exercise jointly
the powers of public agencies of this state; and
WHEREAS, the Participants deem that a joint powers authority would be
the most appropriate body to carry out the Participants' cable rate regulatory authority
under the Act in the most effective and efficient manner;
NOW, THEREFORE, in consideration of the promises and undertakings
herein, and other good and valuable consideration, the receipt and the adequacy of
which is hereby acknowledged,
THE SIGNATORIES DO HEREBY AGREE AS FOLLOWS:
SECTION 1. TITLE
This agreement shall be known generally as the "Marin County Cable
Rate Regulation Joint Powers Authority Agreement."
SECTION 2. DEFINITIONS
For the purpose of this Agreement, the following terms shall have the
meaning given herein. When not inconsistent with the context, words used in the
present tense include the future, words in the plural number include the singular
number, and words in the singular number include the plural number. The words
"shall" and "will" are mandatory, and "may" is permissive. Words not defined herein
shall be given the meaning set forth in the Cable Communications Policy Act of 1984
("Cable Act"), 47 U.S.C. § 521 et seg., as amended by the Cable Television
Consumer Protection and Competition Act of 1992, and as hereinafter may be
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amended, and, if not defined therein, their common and ordinary meaning.
2.1 "Basic Service" or "Basic Cable Service" has the same meaning as
the term "basic service" at 47 C.F.R. § 76.901.
section 2.8.
2.2. "Cable Operator" means the recipient of any license as defined in
2.3. "Cable Service" means the one-way transmission of video or other
programming services over a cable system to subscribers together with any subscriber
interaction, if any, which is required for the selection of such programming services
available to all subscribers generally.
2.4. "Cable System" means any facility, operating by means of coaxial
cable, optical fiber, or other transmission lines or forms of transmission and associated
signal generation, reception and control equipment, that is designed to providd
telecommunications services and uses public rights of way. Such term does not
include (a) a facility that serves only to retransmit the television signals of one (1) or
more television broadcast stations; (b) a facility that serves only subscribers in one (1)
or more multiple unit dwellings under common ownership, control, or management,
unless such facility uses any Street; (c) a facility of a common carrier that is subject,
in whole or in part, to the provisions of Title Il of the Communications Act of 1934,
47 U.S.C. § 201 et seg., except that such facility will be considered a cable system
to the extent it is used in the transmission of video programming, whether on a
common carrier or non -common carrier basis, directly to subscribers; or (d) any
facilities of any electric utility used solely for operating its electric utility systems.
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2.5. "County" means the geographic territory comprising Marin County,
including the incorporated municipalities contained therein.
2.6 "Equipment" means all equipment and services subject to
regulation under 47 C.F.R. § 76.923.
2.7. "Joint Powers Authority" or "Authority" means the Marin County
Cable Rate Regulation Joint Powers Authority established pursuant to section 5.1.
2.8. "License" means the right granted by Participants or any Participant
to a person to construct, maintain or operate a cable system under, on, and over
Streets, roads or any other public ways and easements within all or specified areas
of the County.
2.9. "Ordinance" as used herein shall include, along with ordinances of
any of the Participants, appropriate action by the governing bodies of Participants
according to resolution or otherwise pursuant to law.
2.10. "Participants" means the undersigned local governments
(excluding any which have withdrawn pursuant to section 14.2).
2.11. "Street or Streets" means the surface, the air space above the
surface and the area below the surface of any public street, highway, road, freeway,
thoroughfare, parkway, sidewalk, bridge, court, lane, path, alley, way, drive, circle,
easement, or any other public right-of-way or public place, including public utility
easements, or any property in which the Participants hold any kind of property interest
and any temporary or permanent fixtures or improvements located thereon.
2.12. "Subscriber" means any person who legally receives service
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delivered over a cable system.
SECTION 3. STATUTORY AUTHORITY
This Agreement is a joint powers agreement pursuant to the Government
Code Section 6500. Except as to matters which are governed solely by federal law
or regulation, it shall be construed, and the legal relations between the parties
determined, in accordance with the laws of the State of California.
SECTION 4. DURATION
4.1. This Agreement shall remain in effect for ten years from the date
of execution, or until terminated pursuant to the provisions of Section 21 .1,
whichever comes first.
4.2. This Agreement may be renewed for additional ten-year periods,
without limitation, by consent of two or more of the Participants. If the Agreement
is renewed, any Participants which decline to renew shall be considered to have
withdrawn under Section 21 herein.
SECTION 5. CREATION OF THE AUTHORITY
5.1. There shall be established by this Agreement a cable television
regulatory authority entitled the Marin County Cable Rate Regulation Joint Powers
Authority.
5.2. This Agreement shall have the force of an ordinance and shall
supersede the relevant sections of all Ordinances with respect to all Participants.
SECTION 6. PURPOSE OF THE AUTHORITY
6.1. The purpose of the Authority shall be to exercise jointly the powers
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of the Board of Supervisors of Marin County, and the corresponding bodies of the
respective participating governments of the incorporated municipalities therein, to
regulate the rates for cable television service and equipment and to advise the
Participants in their exercise of their license authority.
SECTION 7. COMPOSITION OF THE AUTHORITY
7.1. The Authority shall be comprised of one member of each of the
governing bodies of the Participants.
7.2. The terms of the appointment of each member of the Authority
shall be determined by the appointing body.
7.3 No employee of a licensee of a Participant shall serve as a member
of the Authority.
SECTION 8. POWERS OF THE CABLE AUTHORITY
The Authority shall act as the agent of the Participants in all matters
relating to cable service, and shall have the following specific powers, which are
hereby delegated to the Authority:
8.1. To make and enforce such regulations as it shall find reasonable or
necessary in the exercise of its lawful powers,
to hold hearings pursuant to such regulations, and to do all things reasonable or
necessary effectively to perform the duties specified in this Agreement;
8.2. To regulate rates for cable service and equipment, to the full extent
permitted by federal and state law, and to take all appropriate steps relating to the
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activation, exercise, and defense of rate regulatory authority, including but not limited
to making any necessary certifications or representations, filing and serving forms,
complaints, notices, and other documents, and establishing regulations and
procedures;
8.3. To conduct or supervise any investigations, audits, performance
evaluations, or other reviews of cable service related to the powers given to the
Authority herein;
8.4. To acquire and dispose of property in accordance with the California
Constitution, Ordinances, and such agreements as the Participants may enter into; and
8.5. To determine its meeting dates and rules of order and operation in
accordance with state law.
SECTION 9. FINANCING OF THE AUTHORITY
The Authority shall adopt an operating budget for its activities before
April 1 each year. The budget shall set forth anticipated expenses, financing sources
and proposed service levels necessary to carry out the purposes of this agreement.
Each Member's financial cost shall be paid within 30 days of billing.
The financial responsibility of each Member shall be based upon
its number of CATV subscribers. The total budget shall be divided by the total
number of subscribers to obtain a subscriber rate. Members who consent to the us
of their personnel by the Authority may receive credit as determined by the Board of
Directors.
The initial Authority budget shall be adopted by the Board of
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Directors within one hundred nd twenty (120) days of the date this Agreement is
executed by all of its Members. Any Member who fails or refuses to approve the
budget within forty-five (45) days of its submittal to the Members shall be deemed to
have withdrawn from the Authority. The time for budget approval may be extended
by a majority vote of the Board of Directors.
In subsequent years a Member shall approve the annual budget
within forty-five (45) days of its submittal to the Member. Failure or refusal to so
approve the annual budget shall be deemed to be a withdrawal pursuant to Paragraph
21 of this Agreement; provided, however, that if the budget increase a Member's
contribution by less than $5,000.00, the Members shall be deemed to have
automatically approved the annual budget. A withdrawal shall be effective at the end
of the fiscal year for which the proposed annual budget was being submitted. A
Member so withdrawing shall not be responsible for more than its contribution under
the then existing budget.
SECTION 10. RATE REGULATION -- SCOPE AND APPLICABILITY
10.1 The Authority is hereby empowered to regulate the rates for basic
service and equipment within the County for any cable licensee that holds a license
granted by a Participant, to the full extent permitted by law, and to take any and all
steps necessary or incident to carrying out such powers.
10.2 The provisions set forth in Sections 10 through 17 hereof are
intended to be consistent with all Federal Communications Commission ("FCC")
regulations governing the regulation of cable service rates and equipment, and the
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rules set forth herein will be interpreted, and rates will be regulated, in a manner
consistent with FCC regulations, as if those regulations were set forth in full herein;
a cable licensee is prohibited from engaging in any activity it is prohibited from
engaging in under FCC rules, as if those rules were set forth in full herein.
10.3 The Authority is hereby empowered to adopt additional regulations
for the regulation of rates for cable service and equipment to the full extent permitted
by law and to amend the cable rate regulations set forth in Sections 11 through 17
hereof to the extent necessary to comply with FCC rules and regulations or to more
effectively carry out the rate regulatory authority granted to it hereunder, provided
that any such amendment is consistent with applicable FCC rules and any other
applicable law.
10.4 The Authority is hereby empowered to file and prosecute with the
FCC complaints against the rates charged by any cable licensee for cable programming
services or equipment.
SECTION 11. FILING AND REVIEW OF RATES
11.1 Initial Filinas By Licensees.
11.1.1 Filinas: When Made. A licensee that is notified that its
basic service and equipment rates are subject to regulation must file with the
Authority a submission ("the rate filing") within 30 days of the notification, justifying
its then -existing basic service and equipment rates. All rates, for all customer
classifications, must be justified. Once a licensee has been so notified by the
Authority or a Participant that its rates are subject to regulation, it may not thereafter
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increase its rates for basic service or equipment without the prior approval of the Joint
Powers Authority. This requirement applies in all cases, including with respect to
increases in rates announced prior to the date the operator was notified its rates were
subject to regulation where the increases were not implemented prior to the date of
notice. A licensee must submit to the Authority a rate filing to justify any increase
in basic service or equipment rates or any new basic service or equipment rate
(collectively referred to herein as rate- increases). An "increase" occurs when there
is an increase in rates or a decrease in program or customer services. Rate filings
proposing and supporting rate increases must be filed for review at least 30 days in
advance of the proposed effective date of the increase. This requirement does not
alter or eliminate any other notice requirement.
1 1.1.2 Filinos: Where Made. Every rate filing must be submitted
to the Joint Powers Authority. A rate filing shall be considered filed for review on the
date the rate filing and all required copies are received by the Authority. Ten (10)
copies of each rate filing (including all supporting materials) must be submitted.
11.1.3 Filings: Contents. Subject to any FCC regulations
governing the burden of proof, a rate filing submitted by a licensee must show that
the rates the licensee proposes to charge for basic service and equipment are
reasonable. Except as inconsistent with FCC rules:
11.1.3.1 Every rate filing must clearly state in a covering
letter whether it justifies existing rates; or proposes an increase in rates. The covering
letter must also identify any rate that' is derived in whole or in part based upon cost
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of service, and identify any pages of the rate filing that contain information that the
licensee claims is proprietary. It must state whether any part of the proposed increase
is based on an inflation adjustment or an alleged increase in external costs. The cover
letter should also contain a brief, narrative description of any proposed changes in
rates o -r in service.
sequentially.
1 1.1.3.2 The pages of each rate filing must be numbered
11.1.3.3 The rate filing must contain all applicable FCC
forms and these forms must be correctly completed.
11.1.3.4 If different rates are proposed for basic service for
different classes of customers, the filing must show that the classifications and the
differences in the rate charged are reasonable and consistent with federal law.
11.1.3.5 If the licensee seeks to support a rate based upon
a cost of service, the Joint Powers Authority will establish a rate that provides the
licensee an opportunity to recover the reasonable costs associated with providing
basic cable service, including a reaso-nable profit. An expense or investment is not
presumed reasonable merely because the licensee has incurred or made it. A licensee
is not entitled to recover monopoly rents in any form.
11.1.3.6 In addition to information the Joint Powers
Authority requires the licensee to provide, and unless the Joint Powers Authority
grants a waiver of this provision, a licensee who seeks to justify all or any part of its
rates based upon its cost of service must submit a complete cost of service analysis
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that shows all expenses it incurs and all revenues derived from the system, directly
or indirectly by the licensee or any person that constitutes a cable operator of the
system within the meaning of 47 U.S.C. § 522(4). The cost of service must identify
the accounting level (as that term is used in the FCC's regulations) at which each
expense or revenue identified was aggregated and show clearly how the expense or
revenue was allocated. The licensee may not include costs at an accounting level
unless it also includes all revenues from that same level attributable to the system or
to a group of systems of which the system serving the Participant is a part. The
replacement cost of a comparable system must be identified and supported. The
licensee must identify the name and address of any entity with which it has a
contract, other than a programmer, which derives revenues from the system, and
must state whether and how the revenues of that entity were included in the cost of
service. In addition, the cost of service shall clearly show the derivation of a proposed
charge per channel and the application of that charge to yield a basic service rate. It
must also show and support the derivation and allocation of any amounts included in
the derivation of the rate for:
11.1.3.7 operation and maintenance expenses;
1 1.1.3.8 administrative and general expenses;
11.1.3.9 programming expenses (identifying retransmission
consent costs and copyright fees separately);
network;
11.1.3.10 costs for PEG access and any institutional
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depreciation;
taxes, itemized; and
11.1.3.11 license fee expenses;
11.1.3.12 investment in the system and associated
11.1.3.13 other expenses, including federal, state and local
1 1.1.3.14 the proposed return on equity and actual interest
expense paid by the licensee.
1 1.1.4 Notwithstanding the foregoing, a licensee is not required
to submit the cost of service specified in Section 1 1.1.3.6 for equipment rates, and
instead initially shall complete, submit and support the costs of equipment using
applicable FCC forms. Any cost -of -service filing submitted to justify basic service
rates must show that the cost of service does not include equipment costs.
11.2 Initial Joint Powers Authoritv Review.
11.2.1 After receiving a rate filing, the Joint Powers Authority
shall promptly cause to be published a notice that a filing has been received and that,
except for those parts which may be withheld as proprietary, it is available for public
review. The notice shall state that interested parties may comment on the filing, and
shall provide interested parties seven (7) days to submit written comments on the
filing to the Joint Powers Authority. Any comments received and any
recommendations for action by the Joint Powers Authority staff shall be made
available for public inspection no later than twenty (20) days after the filing. The
licensee may submit a response to public comments or staff recommendations, but
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must do so no later than three business days after the staff recommendations are
made available for public inspection. The response shall be filed with the Joint
Powers Authority.
1 1.2.2 Within thirty (30) days of the date of the filing, the Joint
Powers Authority shall issue a written order, which may be in any lawful form,
approving the proposed rate in whole or in part; denying the proposed rate in whole
or in part; or tolling the proposed rate- in whole or part. If the Joint Powers Authority
tolls the rate in whole or in part, its written order shall explain that it requires
additional time to review the rate filing, identify generally any then -known deficiencies
in the licensee's filing and state that the licensee may cure any deficiency in its filing
by submitting a supplementary filing as provided in Section 11.3. With respect to
existing rates, tolling means the rates may remain in effect, subject to refund; with
respect to rate changes, tolling means the portion of the rate change that is tolled
may not go into effect.
11.3 SUDDlementary Filinos.
11.3.1 If a proposed rate is tolled in whole or in part, the licensee
shall submit a supplementary filing 20 days from the date the tolling order issues,
containing corrections, if any, to its filing (including any required supplement to its
cost of service filing) and any response to information filed by interested parties or to
the recommendations of the Joint Powers Authority staff, or any additional
information necessary to support the proposed rate. The Authority may require
additional supplementary filings as necessary to carry out its rate regulatory
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responsibilities. A licensee must submit any such supplementary filings within 20
days of a request from the Authority, or such other time period as the Authority may
reasonably set. Supplementary filings must be filed in accordance with Section
11.1.2.
11.3.2 A supplementary filing also must contain such information
as the Joint Powers Authority directs the licensee to provide.
11.3.3 In addition to information the Joint Powers Authority
requires the licensee to provide, and unless the Joint Powers Authority grants a
waiver of this provision, a licensee who claims that it is entitled to a rate in whole or
in part based upon the adjustments for inflation and external costs contemplated by
47 C.F.R. § 76.922(d)(1)-(2) must submit the following:
adjustment was derived.
11.3.3.1 a calculation showing how each part of the
11.3.3.2 a statement itemizing each external cost (as
defined by FCC regulations), the amount of that external cost for the most recent
eight calendar quarters prior to the date of the filing and the quarter -to -date in which
the filing is made; and the projected amount of the external cost for the remainder of
the year in which the filing is made and for the following calendar year. The
statement must specifically show any increases in revenues from programming
services. "Revenues" include all revenues, in whatever form received.
11.3.3.3 if the increase is attributable to any increase in
programming service costs, the contract for each programming service whose cost
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has increased; a sworn statement identifying each programming service whose costs
increased where the programmer is an affiliate of the licensee (as defined by FCC
regulations); and, for any contract that has been in effect less than twelve (12)
months, the prior contract for the service.
11.3.3.4 a sworn statement by the licensee's chief financial
officer or an independent, certified accountant stating that he or she has examined all
external costs (including all programming costs) and has offset against any increase
claimed, the amount of any decreases in external costs, and the amount by which any
increase in external costs was below the GNP -PI, as required by 47 C.F.R.
§ 76.922(d)(2); affirming that the licensee has only sought to recover any external
cost to the extent that cost exceeded the GNP -PI; and affirming that the licensee has
not attempted to recover any increase in the cost of programming purchased by an
affiliate except as provided in 47 C.F.R. § 76.922(d)(2)(vi).
11.3.4 Upon receiving the supplementary filing, the Joint Powers
Authority shall promptly cause to be published a notice that a filing has been received
and that it is available for public review (except those parts which may be withheld
as proprietary). The notice shall state that interested parties may comment on the
filing, and shall provide interested parties twenty (20) days to submit written
comments on the filing to the Joint Powers Authority. Any comments received and
any recommendations for action by the Joint Powers Authority staff shall be made
available for public inspection no later than thirty (30) days prior to the date the Joint
Powers Authority must act under Section 11.3.6. The licensee may submit a
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response to public comments or the Joint Powers Authority staff's recommendations,
but must do so no later than ten (10) days after those recommendations are made
available for public inspection. The response shall be filed with the Joint Powers
Authority.
11.3.5 The Joint Powers Authority shall issue a written order,
which may be in any lawful form, approving the proposed rate in whole or in part;
denying the proposed rate in whole or in part; or allowing the rate to go into effect in
whole or in part, subject to refund. If the Joint Powers Authority issues an order
allowing the rates to go into effect subject to refund, it shall also direct the licensee
to maintain an accounting in accordance with 47 C.F.R. § 76.933.
11.3.6 The order specified in Section 11.3.5 shall be issued
ninety (90) days after the tolling order for any rate the licensee justifies based on the
FCC benchmark. The order shall be issued within one hundred fifty (150) days of the
tolling order for any rate the licensee justified with a cost -of -service showing.
SECTION 12. PROVISIONS GENERALLY APPLICABLE TO RATE ORDERS
12.1 Any rate order of the Joint Powers Authority shall be effective on
adoption. Each rate order shall be released to the public and the licensee. In any case
where the Joint Powers Authority approves, denies, or tolls a rate; orders that a rate
may go into effect subject to refund; or orders refunds or establishes rates, the Joint
Powers_ Authority shall cause a public notice to be published stating that the order has
issued and is available for review. Any such order shall be in writing.
12.2 The Joint Powers Authority may take any steps that it is not
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prohibited from taking by federal law to protect the public interest as part of any rate
order or by any other means. By way of illustration and not limitation, it may require
refunds, set rates, and impose forfeitures and penalties directly or through its
delegated representatives, and enforce refund orders. Any order prescribing a rate
must explain why the licensee's proposed rate was unreasonable and why the
prescribed rate is reasonable. However, before prescribing a rate or ordering a refund
to subscribers, the Joint Powers Authority shall ensure the licensee has had notice
and opportunity to comment on the proposed rate or refunds. If the recommendations
of the Joint Powers Authority staff propose a refund or a rate, then mailing a copy of
the recommendation to the licensee at the time they are made available for public
inspection shall be deemed to provide the licensee this notice and the licensee must
comment on the refund or rate in its response to the recommendations.
12.3 No order approving or setting a rate using the FCC benchmarks
shall be interpreted to establish the just and reasonable rate to subscribers. Every
such rate approved or established shall be subject to further reduction and refund to
the extent permitted under applicable laws and regulations, as the same may be
amended from time to time. By way of illustration and not limitation, should the FCC
reduce the benchmarks, the Joint Powers Authority shall have the right to reduce a
licensee's rates and to require the licensee to refund any amounts collected above the
benchmark, except to the extent prohibited by federal law.
SECTION 13. LICENSEES' DUTIES
13.1 A licensee must implement remedial requirements, including
prospective rate reductions and refunds, within sixty (60) days of the date the Joint
Powers Authority issues an order mandating a remedy.
13.2 Within ninety (90) days of the date an order mandating a remedy
is issued, a licensee must file a certification, signed by an authorized representative
of the cable company, stating:
13.2.1 whether the licensee has complied fully with all provisions
of the Joint Powers Authority's order; and
13.2.2 describing in detail the precise measures taken to
implement the Joint Powers Authority's order; and
13.2.3 showing how refunds (including interest) were calculated
and distributed.
13.3 It is each licensee's responsibility to keep accurate and adequate
books and records of account so that it can properly and accurately refund any
amounts owed to subscribers.
13.4 It is each licensee's duty to submit as complete and accurate a
filing as possible, and knowingly withholding information or making a filing that is
incomplete or inaccurate under applicable law shall be treated as an evasion of the
licensee's franchise ordinance and of the Authority's rate regulations.
13.5 Information Reauests
13.5.1 A licensee and any other entity that has records of
revenues or expenses that are allocated to the licensee's system must respond to
requests for information from the Joint Powers Authority by deadlines established by
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the Joint Powers Authority. A licensee is responsible for ensuring that such other
entity responds to the Joint Powers Authority's requests.
13.5.2 Because federal law limits the time available for an initial
response to a filing by a licensee, before the order contemplated by Section 11.2
issues, the licensee must be prepared to respond to requests for information regarding
its filing within five (5) days of the date an information request is mailed to it. The
information may include the information the licensee would be required to provide as
part of any supplementary filing.
SECTION 14. DUTIES OF THE JOINT POWERS AUTHORITY CHAIR AND STAFF
14.1 The Joint Powers Authority may delegate certain responsibilities,
other than decisions required by Sections 11.2.2 and 11.3.5, to the Chair of the Joint
Powers Authority or to staff. Staff may include consultants. Without limitation and
by way of illustration:
14.1.1 The Chair or staff shall ensure notices are given to the
public and each licensee as required herein and by FCC regulations.
14.1.2 The Chair or staff may submit requests for information to
the licensee and establish deadlines for response to them, as provided in Section 13.
14.1.3 For good cause, the Chair may waive any provision herein
or extend any deadline for filing or response except as to such matters as are
mandatory under FCC regulations.
14.1.4 The Chair or staff shall prepare any recommendations to
the Joint Powers Authority contemplated by Sections 11.2 and 11.3. If the Chair or
staff recommends that any proposed rate increase be denied in whole or in part, he
or she shall
14.1.4.1 recommend a rate and explain the basis for that
recommendation (the Chair or staff may also recommend that rates remain at existing
levels); and
should issue; and
14.1.4.2 recommend whether and on what basis refunds
14.1.4.3 notify the licensee of his or her recommendations
at the time they are submitted to the Joint Powers Authority.
SECTION 15. PENALTIES AND FORFEITURES .
Except as prohibited by federal law, a licensee shall be subject to
penalties and forfeitures under any and all applicable provisions of law and under its
license agreement with the respective Participant, and its request for approval of a
rate may be denied, if it:
15.1 knowingly submits false or fraudulent information to the Joint
Powers Authority in connection with any rate proceeding;
15.2 fails to comply with any lawful order or request of the Joint
Powers Authority, including, but not limited to, a request for information or an order
setting rates; or
15.3 evades or attempts to evade federal or local rate regulation;
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provided that, filing for approval of a rate that is later determined to be unreasonable
is not in and of itself an evasion of federal or local rate regulation.
SECTION 16. PROPRIETARY INFORMATION
16.1 If these provisions, or any request for information, requires the
production of proprietary information, the licensee must produce the information.
However, at the time the allegedly proprietary information is submitted, a licensee
may request that specific, identified portions of its response be treated as confidential
and withheld from public disclosure. The request must identify specifically what
portions of the information are requested to receive confidential treatment; must state
the reason why the licensee believes the information should be treated as proprietary;
and must set forth the facts (and legal argument where appropriate) that support
those reasons. The request for confidentiality will be gra,ited if the Joint Powers
Authority determines that the preponderance of the evidence shows that non-
disclosure is consistent with the provisions of the Freedom of Information Act, 5
U.S.C. § 552. The Joint Powers Authority shall place in a public file for inspection
any decision that results in information being withheld. If the licensee requests
confidentiality and the request is denied, (1) where the licensee is proposing a rate
increase, it may withdraw the proposal, in which case the allegedly proprietary
information will be returned to it; or (2) the licensee may seek review within five (5)
working days of the denial in any appropriate forum. Release of the information will
be stayed pending review.
16.2 Any interested party may file with the Joint Powers Authority a
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request to inspect material withheld as proprietary. The Joint Powers Authority shall
weigh the policy considerations favoring non -disclosure against the reasons cited for
permitting inspection in light of the facts of the particular case. The Joint Powers
Authority will then promptly notify the requesting entity and the cable licensee that
submitted the information as to the disposition of the request. The Joint Powers
Authority may grant, deny or condition a request. The requesting party or the
licensee may seek review of the decision by filing an appeal with any appropriate
forum. Disclosure.will be stayed pending resolution of any appeal.
SECTION 17. PETITION FOR CHANGE IN STATUS
Any licensee may petition for a change in status in accordance with 47
C.F.R. § 79.15, and the Joint Powers Authority shall consider that petition in
accordance with 47 C.F.R. § 79.15. The petition and ten (10) copies must be filed
with the Joint Powers Authority.
SECTION 18. INSURANCE
The Authority shall obtain appropriate insurance coverage for its
operations and the actions of its members and employees, either as an authorized
agency of each of the Participants, or as an independent entity.
SECTION 19. EXECUTION AND EFFECTIVE DATE
19.1. Execution. This Agreement shall be executed by signature of the
Participants, as authorized by resolutions adopted by each Participant individually.
19.2. Counterparts. This Agreement may be executed in counterpart.
[19.3. Amendment of Prior Law. Resolutions adopted by the
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Participants to authorize this Agreement shall include language stating that the terms
of this Agreement supersede any conflicting provisions of local law in effect prior to
that enactment.
later of:
19.4. Effective Date. The effective date of this Agreement shall be the
(a) the first date on which all the Participants have authorized
this Agreement by resolution and signed it; or
(c) the date on which a certified copy of this Agreement is
filed with the secretary of state, pursuant to California
Government Code § § 6503.5 and 6503.7.
SECTION 20. AMENDMENT
This Agreement may be changed, modified, or amended only by the
agreement of a majority of the Participants, pursuant to an instrument in writing duly
executed by the Participants.
SECTION! 21. TERMINATION AND WITHDRAWAL
21.1. Termination. This Agreement may be terminated by mutual
consent of a majority of the Participants. Upon such agreement, each Participant shall
pass a resolution enacting the termination. The Authority shall thereupon cease to
exist.
21.2. Withdrawal. Any Participant may withdraw from this Agreement,
with or without cause, upon ninety days' prior written notice to the other Participants
OZI]
and the passage of a resolution by the withdrawing Participant.
21.3. Indemnification Upon Withdrawal. Any Participant that withdraws
from this Agreement shall first agree to indemnify, defend and hold harmless the
Authority and all other Participants, their officials, officers, boards, commissions,
commissioners, agents, and employees, against any and all actions, claims, suits,
penalties, liabilities and judgments for damages at law or equity of any nature
whatsoever, by any party, arising out of the acts or omissions of the withdrawing
Participant with respect to cable service or licenses, including but not limited to
expenses for legal fees and disbursements incurred by the Authority and all other
Participants.
21.4. Disposition of Property.
21.4.1. Upon Termination. If this Agreement should be
terminated pursuant to section 21.1, all property belonging to the Authority shall be
sold or otherwise disposed of, in such a way that each Participant may receive a pro
rata share of that property.
21.4.1.1. For purposes of subsection 21.4, Participants'
pro rata shares of the Authority's property shall be defined as the total dollar value of
all real and personal property belonging to the Authority as of the date of termination,
allocated among the Participants according to the total number of cable subscribers
receiving cable service within each Participant's jurisdiction. In such computations all
subscribers receiving cable service from any cable operator shall be included;
subscribers, if any, that receive cable service from more than one cable operator shall
25
be counted once for each separate operator's subscription they receive.
21.4.1.2. The date of termination, for purposes of
subsection 21.4 shall be the effective date of an agreement to terminate this
Agreement, or, if no agreement to terminate is to be executed, the first date on which
all Participants have ratified by resolution the termination of this Agreement.
21.4.1.3. If property belonging to the Authority is to be
sold pursuant to subsection 21.4, each Participant shall have the right to make an
offer for that property before it is sold to a non -Participant. The Authority need not
accept any such offers, but shall dispose of its property according to its best
judgment in the interests of (a) a fair distribution of the assets among the Participants
and (b) the preservation and improvement of cable service in the County.
21.4.2. Upon Withdrawal. Any Participant that withdraws from
this Agreement shall be entitled to receive a pro rata share of the Authority's property.
Such a share may be taken in cash, payable within 90 days of withdrawal; in the form
of a promissory note or similar instrument executed by the Authority; or in kind.
SECTION 22. ENFORCEMENT AND REMEDIES
In the event of a breach of this Agreement, the Authority, or any
Participant, may seek legal or equitable relief from any court of competent jurisdiction.
SECTION 23. INTERPRETATION
The captions to Sections of this Agreement are for convenience of
reference only and are not a part of this Agreement. They shall not be used in
determining the intent of the Participants.
�Xtj
SECTION 24. NEW MEMBERS
After the effective date of this Agreement, additional governmental
entities may become Members of the Authority upon application and approval of the
Board of Directors. Approval by the Board of additional Members shall be conditioned
upon the following:
a. The new Members reimburse the Authority for the expenses
of the Authority resulting from the addition of the new Member, including, but not
limited to, reasonable attorneys fees, consultants' fees, accountants' fees, engineering
fees and all other such reasonable out-of-pocket expenses as may be incurred.
b. The elected governing body of the new Member adopt such
resolutions and ordinances as shall be appropriate to permit the Authority to operate
in a manner that is consistent with the existing operation of Authority.
C. The new Member comply with such other conditions as may
be determined appropriate by the Board of Directors, before such new Member is
admitted as a Member of Authority.
d. The new Member execute a counterpart of this Agreement
creating the authority.
SECTION 25. SEVERABILITY
If any part, section, subsection, or other portion of this Agreement or any
application thereof to any person or circumstance is declared void, unconstitutional
or invalid for any reason, such part, section, subsection, or other portion, or the
27
prescribed application thereof, shall be severable, and the remaining provisions of this
Agreement, and all applications thereof not having been declared void,
unconstitutional or invalid, shall remain in full force and effect.
THIS AGREEMENT is entered into by the undersigned on the dates indicated below:
COUNTY OF MARIN By:
Name Date
CITY OF BELVEDERE By:
Name Date
TOWN OF By:
CORTE MADERA Name Date
TOWN OF FAIRFAX By:
Name Date
CITY OF LARKSPUR By:
Name Date
CITY OF MILL VALLEY By:
Name Date
TOWN OF ROSS By:
Name Date
TOWN OF By:
SAN ANSELMO Name Date
CITY OF SAUSALITO By:
Name Date
CITY OF SAN RAFAEL By:
Name
TOWN OF TIBURON By:
Name
GAamd\cabla�pa.apr
29
Date
Date