HomeMy WebLinkAboutCM Termination of the Marin Telecommunications Agency____________________________________________________________________________________
FOR CITY CLERK ONLY
Council Meeting: April 20, 2020
Disposition: Passed Ordinance 1984 to print x Resolution 14788
Agenda Item No: 6.a
Meeting Date: April 20, 2020
SAN RAFAEL CITY COUNCIL AGENDA REPORT
Department: CITY MANAGER
Prepared by: Andrew Hening,
Director of Homeless
Planning and Outreach
City Manager Approval: __________
TOPIC: TERMINATION OF THE MARIN TELECOMMUNICATIONS AGENCY
SUBJECT: 1) INTRODUCTION OF AN ORDINANCE TO TERMINATE THE MARIN
TELECOMMUNICATIONS AGENCY BY REPEALING CHAPTER 10.74 OF THE SAN
RAFAEL MUNICIPAL CODE
2) RESOLUTION AUTHORIZING THE MARIN GENERAL SERVICES AUTHORITY
TO COLLECT FRANCHISE AND PUBLIC, EDUCATION, AND GOVERNMENT
ACCESS FEES FROM CABLE TELEVISION PROVIDERS AND TO EXERCISE ALL
POWERS AND FUNCTIONS ASSOCIATED WITH THE DIGITAL INFRASTRUCTURE
AND VIDEO COMPETITION ACT
RECOMMENDATION:
It is recommended that the City Council take the following actions:
1. Pass to print an ordinance to terminate the Marin Telecommunications Agency by repealing
Chapter 10.74 of the San Rafael Municipal Code.
2. Adopt Resolution authorizing the Marin General Services Authority to collect franchise and
public, education, and government access fees from cable television providers on behalf of the
City of San Rafael, and exercise all the functions previously performed by the Marin
Telecommunications Agency.
BACKGROUND:
The Marin Telecommunications Agency (MTA) was formed in 1997 as a Joint Powers Authority (JPA)
with the adoption of a “Telecommunications Ordinance” by each of its member agencies, which
included San Rafael, Mill Valley, San Anselmo, Belvedere, Corte Madera, Fairfax, Tiburon, Ross,
Sausalito and the County of Marin. The original purpose of MTA was to negotiate local franchises for all
types of telecommunications facilities.
In 2006, the State of California passed the Digital Infrastructure and Video Competition Act (DIVCA),
which preempted local cable television franchises and moved cable television providers to a state
franchise system. With this change, MTA went from negotiating local cable franchises to simply serving
as the “local entity” authorized to collect state-mandated franchise and public, education and
SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 2
government (PEG) fees. Additional changes to state and federal law have further eroded local
government’s regulatory control and oversight of telecommunications.
As a result of this shifting regulatory environment, the MTA has been reduced to a primarily
administrative role. Currently, the MTA’s primary purposes are to collect franchise and PEG fees on
behalf of the member agencies, oversee its designated PEG access provider agreement with the
Community Media Center of Marin (CMCM), and to audit state franchise holder records as appropriate.
There is no longer a need for a standalone JPA to perform these functions.
ANALYSIS:
With the resignation and planned departure of the MTA’s Executive Officer effective June 30, 2020, the
MTA Board asked its staff to consider options for transitioning the MTA from its current structure into
other alternative arrangements. The Board referred the detailed consideration of options to its Finance
and Policy (F&P) Committee members, comprised of Chair Barbara Coler, Vice Chair Sashi McEntee,
Andrew McCullough, Dennis Rodoni and David Kulik. The F&P Committee met on December 12, 2019
to discuss possible transition options, including:
a. Retain the Existing MTA Structure and Recruit a New Executive Officer.
b. Retain the Existing MTA Structure and Contract with a Member Agency for Operations,
such as the County of Marin or the City of San Rafael.
c. Dissolve the MTA and transfer its functions to the Marin General Services Authority
(MGSA).
d. Dissolve the MTA entirely, allowing individual member agencies to collect franchise fees
under DIVCA and separately contract for PEG services.
Of the four options listed, the F&P Committee members ultimately determined that transferring the
MTA’s statutory, administrative, financial, and contract management functions into MGSA was its
preferred path forward. The F&P Committee did ask staff to contact the County of Marin and City of
San Rafael to determine if there was any interest in assuming these responsibilities; however, after
reviewing a legal memo prepared by the MTA and following internal conversations, neither jurisdiction
expressed interest given other viable options, particularly the transfer of functions to MGSA.
The preferred option of consolidating MTA functions into the MGSA program structure has been
discussed and considered periodically over the past several years. The issue arose again most recently
with a 2019 Civil Grand Jury report suggesting such a consolidation take place. As discussed in the
Grand Jury response, the proposition was not possible at the time; however, those impediments no
longer exist.
The collective financial benefit to member jurisdictions in dissolving the MTA and transferring its
functions to the MGSA is significant. While expenses the first fiscal year will most likely remain the
same, future years should generate annual savings in the $100,000 range as elements of MTA’s work
program become fully incorporated into the program structure of MGSA. Any savings will be realized by
the member agencies as it will reduce the overhead deductions from disbursed franchise fees (keeping
in mind that such fees are expected to decrease for a variety of reasons).
Additionally, multiple shared service agreements are already occurring between MGSA and MTA. The
two JPAs coordinate and/or have the same office space, accounting and financial staff, office
furnishings and equipment, records management systems, internet provider, phone system, insurance
SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 3
providers and independent auditors. The MTA Executive Officer and the MGSA Executive Officer also
provide general administrative backup to each other and share some limited clerical support.
With the F&P Committee’s authorization, staff has discussed these options with MGSA Executive
Officer Michael Frank, who shared the information with the MGSA Board of Directors. The Marin
Managers Association was also approached regarding input and any concerns they might have, and
MTA Chair Coler spoke with CMCM Executive Officer Michael Eisenmenger to let him know about the
possible changes, since CMCM holds a key stakeholder role with the MTA.
If the recommendation described above is approved by a majority of member jurisdictions, the last
meeting of the MTA Board would likely occur on Wednesday, June 10, 2020 to close out the MTA and
complete the transfer of functions to MGSA. In addition, the subsequent tasks that need occur are
described below:
• The Designated Access Provider Agreement between MTA and the Community Media Center of
Marin (CMCM) will be transferred to MGSA for future management, and to assure continuation
of the community media services that the MTA jurisdictions have enjoyed for many years.
[Approved by the MTA Board April 8, 2020, 7-0 with 3 absent]
• MTA and MGSA will work with the County of Marin and other member agencies to develop a
seamless transition of financial and administrative functions from MTA to MGSA.
• MTA and MGSA will coordinate to assign or transition all contracts to MGSA. [Approved by the
MTA Board April 8, 2020, 7-0 with 3 absent]
• MTA and MGSA will prepare a joint estimated Fiscal Year 2020/21 budget for the Program
which will continue the administrative/financial/contract functions of MTA while also providing
transition funding to complete the process over the next six to 12 months.
• The MTA’s PEG fee ordinances for Comcast, AT&T and Horizon will be transferred to MGSA for
future management.
On March 12, 2020 the MGSA Board of Directors voted 7-0 to introduce a PEG Fee Ordinance that will
allow the MGSA to collect PEG fee revenues on behalf of participating member agencies starting July
1, 2020. The MGSA unanimously passed a resolution to provide notice to member agencies of its
intent to amend its Joint Powers Agreement to include the Cable Television Franchise and Public,
Educational, and Government Access as a program under MGSA. The attached Resolution authorizes
the MGSA to collect franchise fees and perform all other functions previously performed by the MTA on
the City of San Rafael’s behalf. The attached ordinance repealing San Rafael Municipal Code Chapter
10.74 (Telecommunications) and terminating the MTA is necessary in order to terminate the MTA under
its agreement of formation (please note that the repealed ordinance does not impact the City of San
Rafael’s zoning regulations regarding telecommunications facilities). Both must be adopted in order to
effectuate the termination of the MTA and the transfer of its powers and obligations to MGSA.
FISCAL IMPACT:
There is no cost to the City for supporting this new management structure. In fact, beyond FY20-21, the
City could receive higher disbursed franchise fees due to new cost-savings.
OPTIONS:
There are two actions before City Council. First, there is an ordinance to terminate the MTA by
repealing Chapter 10.74 of the San Rafael Municipal Code. Second, there is a Resolution authorizing
SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 4
MGSA to take over the previous functions of the MTA. For these actions, the City Council has the
following options to consider:
1. Adopt the resolution and ordinance as presented;
2. Adopt the resolution and ordinance with modifications;
3. Direct staff to return with more information; or
4. Take no action.
RECOMMENDED ACTION:
It is recommended that the City Council take the following actions:
1. Pass to print an ordinance to terminate the Marin Telecommunications Agency and to repeal
Chapter 10.74 of the San Rafael Municipal Code.
2. Adopt Resolution authorizing the Marin General Services Authority to collect franchise and
public, education, and government access fees from cable television providers on behalf of the
City of San Rafael, and exercise all of the functions previously performed by the Marin
Telecommunications Agency.
ATTACHMENTS:
1. Ordinance – Terminate MTA
2. Resolution – MTA to MGSA
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ORDINANCE NO. 1984
AN ORDINANCE OF THE CITY OF SAN RAFAEL PROVIDING FOR THE TERMINATION OF
THE MARIN TELECOMMUNICATIONS AGENCY AND REPEALING THE
TELECOMMUNICATIONS ORDINANCE CODIFIED IN CHAPTER 10.74 OF THE SAN RAFAEL
MUNICIPAL CODE
WHEREAS, in 1997, the City Council of the City of San Rafael adopted Ordinance No.
1719, approving an Agreement of Formation of the Marin Telecommunications Agency (“MTA”),
a California joint powers agency pursuant to the provisions of Title 1, Division 7, Chapter 5 of the
Government Code (commencing with Section 6500), and adding Chapter 10.74 to the San Rafael
Municipal Code.
WHEREAS, the current member agencies of the MTA are: the Cities of Belvedere, Mill
Valley, Sausalito, and San Rafael, the Towns of Corte Madera, Fairfax, Ross, San Anselmo, and
Tiburon, and the County of Marin (“MTA Member Agencies”).
WHEREAS, in 2006 the California Legislature approved, and the Governor enacted the
Digital Infrastructure and Video Competition Act of 2006 (“DIVCA”), creating a process for the
issuance of franchises by the California Public Utilities Commission and superseding locally
issued franchises.
WHEREAS, subsequent to the adoption of DIVCA and other changes to state and federal
law further limiting the ability of local governments to regulate telecommunications facilities, the
MTA no longer takes the active policy role that it did prior to the adoption of DIVCA.
WHEREAS, the MTA Member Agencies find it desirable to terminate the MTA and
delegate its duties to the Marin General Services Agency (“MGSA”), a California joint powers
authority that was formed on October 1, 2005, by the City of Belvedere, Town of Corte Madera,
Town of Fairfax, City of Larkspur, City of Mill Valley, City of Novato, Town of Ross, Town of San
Anselmo, City of San Rafael, City of Sausalito, Town of Tiburon, County of Marin, Bel Marin Keys
Community Services District, and Marinwood Community Services District.
WHEREAS, Paragraph 13 of the Agreement of Formation of the MTA provides that the
MTA may be terminated by the enactment of an ordinance in substantially identical form by the
majority of the MTA Member Agencies specifying such termination, with each such ordinance
being adopted within no more than ninety days of each other. Upon such action, the MTA will be
deemed terminated.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SAN RAFAEL DOES
ORDAIN AS FOLLOWS:
Section 1. Recitals. The above recitals are true and correct and are hereby incorporated by
reference.
Section 2. Termination of MTA. Pursuant to Paragraph 13 of the Agreement of Formation, the
City Council declares that this Ordinance is intended to serve to terminate the Agreement of
Formation and the MTA.
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Section 3. Repeal of Chapter 10.74 as of Operative Date. Chapter 10.74,
“Telecommunications,” of the San Rafael Municipal Code is hereby repealed, effective as of the
Operative Date. The repeal of Chapter 10.74 shall not affect the City’s consent to the termination
of the Marin County Cable Rate Regulation Joint Powers Agency (“MCCRRJPA”) or the actual
termination of MCCRRJPA, as provided for in Division 2 of Ordinance No. 1719.
For purposes of this section, the “Operative Date” shall mean the later of the following two dates:
(1) July 1, 2020; or (2) the date upon which a majority of the MTA Member Agencies has adopted
a resolution authorizing the MGSA to collect franchise and PEG access fees and to exercise all
powers and functions associated with DIVCA, as well as an ordinance of termination substantially
identical in form pursuant to Paragraph 13 of the Agreement of Formation of the MTA and such
ordinance of termination has become effective.
Section 4. Effective Date and Publication. This Ordinance shall be published once, in full or
in summary form, before its final passage, in a newspaper of general circulation, published, and
circulated in the City of San Rafael, and shall be in full force and effect thirty (30) days after its
final passage. If published in summary form, the summary shall also be published within fifteen
(15) days after the adoption, together with the names of those Councilmembers voting for or
against same, in a newspaper of general circulation published and circulated in the City of San
Rafael, County of Marin, State of California.
GARY O. PHILLIPS, Mayor
ATTEST:
LINDSAY LARA, City Clerk
The foregoing Ordinance No. 1984 was introduced at a regular meeting of the City Council
of the City of San Rafael, held on the 20th day of April 2020 and was ordered passed to print by
the following vote, to wit:
AYES: Councilmembers: Bushey, Colin, Gamblin, McCullough & Mayor Phillips
NOES: Councilmembers: None
ABSENT: Councilmembers: None
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And will come up for adoption as an Ordinance of the City of San Rafael at a Regular Meeting of
the Council to be held on the 4th day of May 2020.
LINDSAY LARA, City Clerk
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RESOLUTION NO. 14788
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL AUTHORIZING THE
MARIN GENERAL SERVICES AUTHORITY TO COLLECT FRANCHISE AND PUBLIC,
EDUCATION, AND GOVERNMENT ACCESS FEES FROM CABLE TELEVSION PROVIDERS
AND TO EXERCISE ALL POWERS AND FUNCTIONS ASSOCIATED WITH THE DIGITAL
INFRASTRUCTURE AND VIDEO COMPETITION ACT
WHEREAS, in 1998, the Cities of Belvedere, Larkspur, Mill Valley, Sausalito and San
Rafael, the Towns of Corte Madera, Fairfax, Ross, San Anselmo, and Tiburon, and the County of
Marin adopted an ordinance and entered into a formation agreement establishing a joint powers
authority, the Marin Telecommunications Agency (MTA), to oversee and regulate a variety of
telecommunications services, including cable television and video services.
WHEREAS, the MTA is governed by a board of directors composed of elected members
of the member agency’s legislative bodies.
WHEREAS, the MTA evolved from the Marin County Cable Rate Regulation Joint Powers
Authority, which was formed in 1994 to administer cable television services in the County.
WHEREAS, the Marin Telecommunications Agency was created in response to
Telecommunications Act of 1996. At that time, local agencies anticipated that local franchise
authority could expand to include other forms of telecommunications, however, this did not occur
as evolving state and federal law preempted local control over the public rights-of-way.
WHEREAS, prior to November 2006, the MTA negotiated and approved franchise
agreements with cable video service providers, including the predecessors to Comcast, AT&T,
and Horizon.
WHEREAS, in November 2006, the State of California enacted the Digital Infrastructure
and Video Competition Act (“DIVCA”), which superseded local governments’ authority to
negotiate cable television franchises and to negotiate for franchise fees.
WHEREAS, despite its current name, the MTA’s role is limited to overseeing cable
television franchises and it does not have the authority to take a policy role on broader
telecommunications issues.
WHEREAS, DIVCA sets the maximum amount of franchise fees and Public, Education
and Government (“PEG”) access fees that local governments can collect.
WHEREAS, in June 2008, the MTA entered into a Dedicated Access Provider (DAP)
Agreement with the Community Media Center of Marin (CMCM), based in San Rafael, to deliver
PEG access programming and services within the MTA service area. In accordance with CMCM’s
bylaws, the MTA appoints two members to the board of directors of CMCM, usually one city/town
manager and one elected official.
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WHEREAS, since, 2009, CMCM has broadcasted PEG programs, provided equipment
(through PEG access fees) for recording government meetings and other capital expenditures,
and provided classes, training, and a media center from which remote and on-site locally
produced programs could be delivered.
WHEREAS, in June 2011, the MTA converted its local cable television franchises to state
franchises under DIVCA.
WHEREAS, in 2012, a dispute arose with Comcast over the payment of PEG fees after
MTA’s transition from local franchise to DIVCA, and the MTA and Comcast entered into a
settlement agreement whereby the MTA agreed to split PEG fees until Comcast was able to
recover $3.1 million that Comcast had paid under the local franchise agreement.
WHEREAS, in order to compensate for the loss of PEG revenues to CMCM as a result of
the settlement agreement, in May 2014, MTA and CMCM approved an amendment to the DAP
agreement to provide one-time bridge funding to CMCM to cover the shortfall in PEG revenue
under the mutual understanding that this was a one-time request.
WHEREAS, in 2015, the City of Larkspur withdrew from the MTA, leaving the ten current
member agencies: County of Marin, City of Belvedere, Town of Corte Madera, Town of Fairfax,
City of Mill Valley, Town of Ross, Town of San Anselmo, City of San Rafael, City of Sausalito,
and Town of Tiburon (“MTA Member Agencies”). The MTA subsequently entered into an
agreement with Larkspur to provide PEG access.
WHEREAS, subsequent to the adoption of DIVCA and other changes to state and federal
law further limiting the ability of local governments to regulate telecommunications facilities, the
MTA no longer takes the active policy role that it did prior to the adoption of DIVCA.
WHEREAS, the MTA’s role has become primarily administrative in that it collects and
distributes franchise fees to the member agencies, transfers PEG access fees to CMCM and
oversees its operations, and reviews and audits the payment of such fees by state-franchised
cable television providers.
WHEREAS, the Marin General Services Authority (“MGSA”) is a joint powers authority
formed on October 1, 2005, by the City of Belvedere, Town of Corte Madera, Town of Fairfax,
City of Larkspur, City of Mill Valley, City of Novato, Town of Ross, Town of San Anselmo, City of
San Rafael, City of Sausalito, Town of Tiburon, County of Marin, Bel Marin Keys Community
Services District, and Marinwood Community Services District, for the purpose of financing,
implementing, and managing the various municipal services assigned to the Authority.
WHEREAS, the MGSA has a staff-level board and administers a number of programs in
Marin County. The MGSA performs primarily administrative functions, avoiding significant
involvement in policy decisions (significant or contentious policy considerations are generally
directed back to its member agencies).
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WHEREAS, DIVCA authorizes a “local entity” to perform certain functions including but
not limited to the collection of state franchise fees, examine the records of state franchise holders,
designate the PEG channels operator, and adopt an ordinance to establish and collect PEG
access fees. It is not necessary to maintain a joint powers authority specifically for these functions.
“Local entity” is defined by Public Utilities Code Section 5830(j) as a “city, county, city and county,
or joint powers authority within the state within whose jurisdiction a holder of a state franchise
under [DIVCA] may provide cable service or video service.”
WHEREAS, since 2008, the MTA Board and Finance and Policy Committee has engaged
in strategic planning discussions regarding the future of the MTA. Since 2016, the MTA has
discussed delegating or transitioning the duties and functions of the MTA to another agency.
WHEREAS, these discussions were recently revisited when the Executive Officer of the
MTA announced her intent to resign effective June 30, 2020.
WHEREAS, the MGSA is willing to function as the “local entity” and incorporate oversight
of cable television franchise authority and PEG access oversight as a program under its joint
powers agreement, and to assume the role previously performed by the MTA. The MGSA is willing
to administer the functions of the MTA, including but not limited to ensuring the continuation of
the PEG access channels, the collection of PEG access and franchise fees (including the
adoption of a PEG fee ordinance), overseeing the DAP agreement (including renewing and
renegotiating as needed), auditing the records of state franchise holders, maintaining
memberships in organizations that are knowledgeable about legislation or changes to the law
affecting local regulation of cable television, working with the local agencies and the DAP provider
to direct any significant or contentious policy matters back to the affected member agencies,
ensuring that a city/town manager and elected official are designated to serve on the board of
directors of CMCM, and other functions of the MTA.
WHEREAS, to avoid confusion about the extent of the MGSA’s role in telecommunications
policy, the MGSA intends to title the aforementioned program the “Cable Television Franchise
and Public, Educational, and Governmental Access Program.”
WHEREAS, the termination of the MTA and delegation of authority to the MGSA to
perform the functions spelled out by DIVCA will take advantage of economies of scale, will reduce
the administrative burdens associated with maintaining the MTA as a separate agency, and is
likely to result in long term cost savings to the member agencies while continuing to ensure the
continuation of PEG access services, the collection of franchise fees, and the performance of
other functions pursuant to DIVCA and related to cable franchises generally.
NOW THEREFORE BE IT RESOLVED:
1. Termination of the MTA. With the adoption of Ordinance # 1984, the City of San
Rafael is taking action to terminate the MTA pursuant to the terms of its formation agreement,
contingent on the adoption of this resolution authorizing the MGSA to perform all of the functions
and assume all of the duties and responsibilities previously performed or assumed by the MTA.
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2. Delegation of Authority to MGSA. The City of San Rafael hereby authorizes the
MGSA to perform all functions and duties on its behalf pursuant to DIVCA. The MGSA shall act
as the “local entity” as defined by DIVCA under Public Utilities Code Section 5830(j) with regard
to state-franchised cable television providers operating within the jurisdiction of the City of San
Rafael, and shall perform all of the functions and assume all of the obligations previously
performed on its behalf by the MTA with respect to DIVCA, including, but not limited to, the
collection of PEG access fees and franchise fees, the distribution of PEG fees to the designated
PEG access provider and the franchise fees to the City of San Rafael, the oversight of the
designated PEG access provider under the DAP Agreement, the examination and audit of state
franchise holders’ records, and the legal defense or settlement of disputes related to the payment
of PEG or franchise fees. The MGSA is further authorized to take any actions or exercise any
other powers related to the provision of cable television that are authorized under the MGSA’s
joint powers agreement and state and federal law.
3. Operative Date. The intent of this Resolution is to smoothly transition the functions
and powers previously exercised by the MTA to the MGSA without any interruption in those
functions. Therefore, this Resolution shall take effect on the later of the following two dates: (1)
the date upon which a majority of MTA Member Agencies has adopted a resolution substantially
identical to this action, authorizing the MGSA to collect franchise and PEG access fees and
exercise all powers and functions associated with DIVCA, as well as an ordinance of termination
substantially identical in form pursuant to Paragraph 13 of the Agreement of Formation of the
MTA and such ordinance of termination is fully effective; or (2) July 1, 2020.
I, LINDSAY LARA, Clerk of the City of San Rafael, California, hereby certify that the
foregoing resolution was duly and regularly introduced and adopted at a regular meeting of the
Council of the City of San Rafael held on the 20th day of April 2020, by the following vote, to wit:
AYES: COUNCILMEMBERS: Bushey, Colin, Gamblin, McCullough & Mayor Phillips
NOES: COUNCILMEMBERS: None
ABSENT: COUNCILMEMBERS: None
LINDSAY LARA, City Clerk