HomeMy WebLinkAboutTC Res 2020-04-01 I2TSOLUTION NO. 11-2020
A R�SOLUTION OF THE TOWN COUNCIL OF THE
TOWN OF TIBURON AUTNORIZING THL MARIN
G�N�RAL S�RVICI;S AU1'HOIZITY TO COLLECT
FRANCHIS� AND PI:G ACC�SS FTLS FROM CABL� �
TLL�VISION PROVID�RS AND TO �XT�RCIST ALL
POWERS AND FUNCTIONS ASSOCIAT�D WITH TH�
DIGITAL INFI2ASTI2UCTURr AND VIDEO
COMNTTITION ACT
WH�REAS, in 1998, the Cities of Belvedei-e_ Larlcspui-, Mill Valley, and San Rafael, the
Towns of Corte Madera, Fairfax, Ross, San Ansel»�o, S�tasalito, a»d Tiburon, and the County of
Marin adopted an ordinance a�ld entered into a foi-mation agreeme�lt establishing a joint powers
authority, the Marin Telecommtu�ications Ageney (MTn). to oversee a��d regulate a variety of
telecommunications scrvices, including cable television and video services.
WH�REAS, tl�e MTA is �overned by a boai-d of�directors composed of elected nlembers
of the menzber agency's legislative bodies.
WHEREAS, tl�e MTA evolved fi-o»� the Mai-in Cow�ty Cable Rate Regulation Joint
Powers Authority, which was foi-med in 1994 to administe��cable television services in the County.
WHEREAS, the Marii� `Telecomn�unic�tions Abency was created in response to
Telecominunications Act of 1996. At that time, local agencies a�Iticipated that local franchise
authority could expand to include other forms of telecomn�unications, howevel-, this did not occur
as evolving state and federal law preempted local co�ltrol over the public rights-of way.
WH�I2EAS, pi�ior to November 2006, the MTA negotiated and appi•oved fi�anchise
agreements with cable video service providers_ i�Icluding tl�e pi-edec�ssoi•s to Comeast,AT&T, and
Horizon.
WH�REAS, in Novenlber 2006. the State of California enacted tl�e Digital Infrastructtu•e
and Video Coinpetition Act ("DIVCA"), wl�ich supei-seded local govermnents' authority to
negotiate cable television fi-ai�cl�ises aild to negotiate for- fi-anehise f�ees.
WH�REAS, despite its cui-rent »a�1�e. the M"TA's ��ole i� limited to ovei•seeing cable
television franchises and it does »ot have the authoi-ity to tal�e a policy role on broadei-
telecom�nunications issues.
WHER�AS, DIVCA sets the maximun� an�otznt of fi-anchi5e fees and Public, Education
and Goverml�ent ("PEG") access fees that local gover�lments can cullect.
WH�REAS, in June 2008, thc M"I�A entered into a Dedicated Access Provider (DAP)
Agi•eement witl� the Community Media Centel� of Marin (CMCM). based in San Rafael, to deliver
P�G access progra�nzni»g and services witl�in t17e MTA s�rvice ai-ea. I» accordance witl� CMCM's
bylaws,the MTA appoints two membe��s to the boai-d of directors of CMCM,usually one city/towi�
managei- and one elected official.
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WHTI2EAS, since, 2009; CMCM has broadcasted PEG programs, provided equipment
(through P�G access fees) for recording govcr»lnent»>eetinbs and otl�ei-capital expenditures, and
� provided classes, training, and a media centei- fi-om wllich reinote a�ld on-site locally produced
programs could be delivered.
WHER�AS,in June 2011, the MTA converted its local cable televisioi� franchises to state
fianchises under DIVCA.
WH�REAS, in 2012, a dispute ai•ose witll Comcast over tl�e pay�n�nt of P�G fees afiei•
MTA's transition fi�om local fi�anchise to DIVCA, ihe MTA and Comcast entel-ed into a settlement
agreelnent whereby t�1e MTA agreed to split PEG l�ees tu�til Comcast was able to recover $3.1
million that Comcast had paid undei-the local fi-anchise agreenlent.
WHEREAS, in order to conlpensate fo��the loss of P�G reveuues 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 fiznding to CMCM to cover the shortfall in PEG revenue
under the nnrtual understanding that this was a one-tin�e request.
WHEREAS, in 2015, the City of� Larl<spul- withdi-ew fi-om the M"TA, leaving the ten
current member agencies: County of Marin, City ol Belvedere, Town of Corte Madera, Town of
Fairfax, City of Mill Valley, Town of Ross, To���i of San Anselmo, City of San Rafael, City of
Sausalito, and Town of Tiburarl ("MTA Member Agencies"). The MTA subsequently entei•ed into
an agreenlent with Larkspur to provide PEG access.
WHEREAS, subsequent to the adoption of DIVCA and ot]Zei-cl�anbes to state and fedei•al
law further limiting the ability of local governinents to 1•egulate telecommunicatioi7s facilities, the
MTA no longer takes the active policy role that it did priol-to the adoption of DIVCA.
WHEREAS, the MTA's role has become primarily ad�ninistrative in that it collects and
distributes franchise fees to the n�ember agencies, ti-ai�sfers PEG access fecs to CMCM and
ovcr•sees its operations, and reviews and audits the payi�lei�t of sucll fees by state-fi•anchised cable
television providers.
WH�R�AS,the Marin General Services Authority ("MGSA") is a joint powei•s authority
formed on October 1, 2005, by the City of Belvedere, Town of Corte Madera, Town of Fairfa�,
City of Larkspur, City of Mill Valley. City of No�ato. Town of Ross. Town of San Anselmo. City
of San RafaeL City of Sausalito, Tow�i of I�ibtu�on_ Cotn�ty of Mari», Bel Marin Keys Con�ir�unity
Services Distriet, and Marinwood Commu�iity Services Distriet_ for the ptu�pose of financing,
impleinenting, aud managing t11e vai-ious municipal services assigned to tl�e Autllority.
WH�R�AS,the MGSA has a stafl=leve] board and admi��isters a numl�cr of programs in
Marin Coilnty. The MGSA performs primarily administrative functio�ls. avoiding significant
involvement in policy decisions (signit7cant or contcntious policy considerations are generally
directed back to its inember a�e»cies).
WHEREAS,DIVCA authorizes a "local entity"to perform certain ftmetions including but
not liinited to t�he collectiol� o�I�state fi�a»c}iise fees_ e�amine the l�ecords of state 1-rarlchise holders,
designate the PEG ehannels operator, and adopt an ordinance to establish and c��llect PEG access
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fees. It is not necessaiy to niaintain a joint powers authority specifically for these functions. "I.,ocal
entity" is defined by Public Utilities Code Section 5830(j) as a "city, couniy. cit�y and cou�lty, or
joint powers authoi-ity within the state within whose jui-isdiction a holdel-of a state fi-anchise tmd�r
� [DIVCA] may provide cable service or video service."
WHER�AS, since 2008,the MTA Board and Fi»ance a�id I'olicy Committee has engaged
in strategic planning discussions regarding the Futtu-e of the MT�. Si�lce 2016. tl�e MTA has
discussed delegatii�g or tr�nsitioning the duties and fiu�ctions of the MTA to another agency.
WHEREAS, these discussions were recently revisited when the Exccutive Officer of the
MTA announced hei• intent to resign effective June 30, 2020.
WHEREAS, the MGSA is willing to funetion as t11e "local entit��" and incoiporate
oversight of cable televisioil franchise authority and PEG access oversight as a program under its
joint powers agreement, and to assume the role previot�sly pel-formed by the MTA. Tl�e MGSA is
willing to admiilister the fi�nctions of the MTA, includi�i� but not liinited to ensuring the
continuation of the PEG access channels. the collectio» of YEG access and fianchise fees
(including the adoption of a PEG fee ol-dinailce), overseeing tlle DAP agi-eeme�lt (inchiding
reilewing and renegotiating as ileeded), auditing tl�e records of state francl�ise l�olders, inaintaining
memberships in organizations that are knowledgeable about le�islation or changes to the law
affecting local regulation of cable television, working with the loeal agcilcies and the DAP
provider to direct any signifieant or contentious policy �natters back to th� affected lneinber
agencies, ensui•ing that a city/town n�anager a11d elected official are designated to serve on the
boai•d of directors of CMCM, and other fiu�ctions of the M�I�n.
WH�R�AS, to avoid confizsion abotat tl�e eatent of the MGSA's role in
telecon�munications policy, the MGSA intends to title the aforementioned program the "Cable
Television Fr•anchise and Public, Educational, and Governmental Access Program."
WHTREAS, the termination of the MTA and delegation of authority to the MGSA to
perfoi-m the functions spelled out by DIVCA w�ll tal<c advantage o�f eco�lomies of scale,will reduce
tl�e administrative vui•dens associated with maintaining the M"I�A as a separate agency,and is likely
to i-esult in long term eost savinbs to the member agencies �uhile continuing to ensure the
continuation of PEG aecess services. tl�e collection of i-i�anchise fees, and tl�e perforn�allce of othei•
j�unctions pursuant to DIVCA and related to cable fi-anchises generally.
NOW, THEREFOR�, B� IT R�SOLVED:
Section 1. Terinination of the MTA. With tl�e adoptio�� of Ordina»ce 588 N.S. the
Town of 7'iburon ("Tow�l") is talcing action to terinin�te the 1v1TA pui-sL�ant to the ternls of its
lorination agreenlent, contingent on the adoption of this resolution autl�orizi»g the MGSA to
perform all of the fimctio»s and assume all of the duti�s and �-esponsibilities pr��viously pe1•formed
or assLuned by the MTA.
Section 2. Delegation of Authority t�o MGSn. 'I,he 7�ow�n of"I�ibw-on hereby authorizes
t11e MGSA to perform all functions and duties on its behalf pursuant to DIVC:�. Tl�e MGSA sl�all
act as tl�e "local entity" as defined by DIVCA under Public Utilities Code S�ction 5830(j) with
regard to state-fi�ancl�ised cable television providers operating ��-ithin the jtu�isclictioil of the Town,
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�nd shall perfor�n all of tl�e functions and assume all of the obligatioils previously performed on
its behalf by tille MTA witl� respect to DIVCA, including, but not limited to, the collection of PEG
access fees and fi-anchise fees, the disti•ibutio�7 of PEG fccs to tl�e designated PEG access pi-ovidei•
� and the fi�ancl�ise fees to the Town, the oversight of the designated PEG access pi-ovider tmder tl�e
DAP Agi•eement, the exami�iation and audit o1� state fi-a�ichise holclers' i-ecords, a�ld tl�e lebal
� defense or settlement of displites related to th� payment of PEG or franchise Ices. The MGSA is
further authorized to take any actions or exercise any other poweT�s i•elated to tlle provisioi� of cable
televisio�l that are authorized Lulder the MGSA's joint powers agreement and state and federal law.
Section 3. Operative Date. The intent of this Resolution is to sinootl�ly transition the
fimctions and powers previously ex�rcised by the MTA to the MGS�1 without any interruption in
those fiu�ctions. Therefoi-e,this Resoltrtion shall take effect on the later of tlle following two dates:
(1) tlie date upo11 which a majority of MTA Membei- Agencies has ado}�ted a i-esolution
substantially identical to this aetion, authorizing the MGSA to collect fi-ancliise and PEG access
fees and exercise all powers and functions associated ���ith DIVCA_ as wel] as an ordinance oF
termination substantially identical in form pursuant to Paragraph 13 of the Agreement of
Forl��ation of the MTA al�d such oi•dinance of termination is fillly effective; or (2) July 1, 2020.
PASSED AND ADOPTED this lsr day of April 2020, by the following vote;
AYFS: COUNCILMEMBERS: Fredericl<s, Kulil<, Thiei-. Welnel-
NAYS: COUNCILMEMBERS: None
ABSENT: COIJNCILMEMBERS: One Vacant Seat
ALICE FREDLRICKS, MAYOR
TOWN OF TIBURON
ATTI�ST:
�'���c%' ' r�_ '
LEA S``�A� I. TOWN CL�RK
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