BILL ANALYSIS Ó
AB 185
Page 1
Date of Hearing: April 17, 2013
ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT
K.H. "Katcho" Achadjian, Chair
AB 185 (Roger Hernández) - As Amended: April 2, 2013
SUBJECT : Open and public meetings: televised meetings.
SUMMARY : Requires a local agency that collects a franchise fee
pursuant to the Digital Infrastructure and Video Competition Act
to televise the open and public meetings of its legislative body
and planning commission, and provides that an audio or video
recording of an open and public meeting may be erased or
destroyed after two years. Specifically, this bill :
1)Requires a local agency that collects a franchise fee adopted
pursuant to the Digital Infrastructure and Video Competition
Act of 2006 (DIVCA) from the holder of a state franchise that
provides public, educational, and governmental access (PEG)
channels to televise the open and public meetings of its
legislative body and planning commission.
2)Requires, if it is financially feasible to do so, these same
local agencies to also televise the open and public meetings
of their advisory committees that are governed by the Ralph M.
Brown Act (Brown Act).
3)Allows a local agency to utilize any portion of franchise fees
collected from the holder of a state franchise pursuant to
DIVCA to televise the open and public meetings of the local
agency, including, but not limited to, any necessary expenses
for implementing the televising of the local agency's open and
public meetings.
4)Provides that, if there are franchise fee moneys available in
excess of the amount necessary to televise open and public
meetings as required under this bill, the local agency may use
that money to fund live streaming of its open and public
meetings on the Internet.
5)Defines "necessary expenses" to include, but not be limited
to, the hiring of personnel, the purchase and maintenance of
equipment, or the rental or leasing of production facilities.
6)Provides that an audio or video recording of an open and
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public meeting made for whatever purpose by or at the
direction of the local agency may be erased or destroyed two
years after the recording.
7)Finds and declares that:
a) There have been over 50 public access channel closures
in California municipalities. Seven of those
municipalities are found within the boundaries of the 48th
Assembly District;
b) Unfortunately, many local governments are not utilizing
General Fund moneys or franchise fees for support, in
addition to PEG channel funds, for the operation of public
access television. Not televising open meetings or
providing public access television is a threat to accessing
public information in a readily available medium; and,
c) PEG channels permit schools, governments, individuals,
and groups to provide and receive information about local
events, emergencies, and issues. PEG channels encourage
the creation of local programming not only by local
municipalities but by civic groups and nonprofits to
promote localism and civic engagement.
8)Provides that no reimbursement is required by this bill under
Section 6 of Article XIII B of the California Constitution
because the only costs that may be incurred by a local agency
or school district under this bill are the costs of complying
with the Brown Act and subdivision (c) of Section 36 of
Article XIII of the California Constitution provides that
costs of this type are not reimbursable.
EXISTING LAW :
1)Provides, pursuant to DIVCA, that the Public Utilities
Commission (PUC) is the sole franchising authority for a state
franchise to provide video service, and outlines the
procedures for issuing a state video franchise.
2)Establishes a state franchise fee payable as rent or a toll
for the use of the public rights-of-way by holders of the
state franchise issued pursuant to DIVCA and sets the amount
of the franchise fee at 5% of gross revenues, as specified,
unless the local entity adopts an ordinance setting the amount
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of the franchise fee at less than 5%.
3)Allows local entities to use the franchise fee for any lawful
purpose.
4)Establishes requirements for the provision of PEG channels by
holders of a state franchise and requires PEG channels to be
for the exclusive use of the local entity or its designee to
provide public, educational, and governmental channels.
5)Provides for the financial support of PEG programming on a
roll-out basis depending on the expiration of franchises that
were in place prior to DIVCA and, thereafter, allows a local
entity to establish a fee via ordinance to support PEG channel
facilities, as specified, that shall not exceed 1% of the
franchise holder's gross revenues.
6)Requires, under the Brown Act, that all meetings of a
legislative body be open and public and all persons be
permitted to attend unless a closed session is authorized.
7)Provides that any audio or video recording of an open and
public meeting made for whatever purpose by or at the
direction of the local agency shall be subject to inspection
pursuant to the California Public Records Act but may be
erased or destroyed 30 days after the recording.
FISCAL EFFECT : Unknown
COMMENTS :
1)This bill requires all local agencies that receive franchise
fees from state video franchise holders that provide PEG
channels to televise the open and public meetings of their
governing boards and planning commissions, and to televise the
open and public meetings of their advisory committees that are
governed by the Brown Act, if it is financially feasible to do
so. This bill also provides that an audio or video recording
of an open and public meeting made for whatever purpose by or
at the direction of the local agency may be erased or
destroyed two years after the recording. This bill is
sponsored by the author.
2)According to the author's office, "Some local governments are
not utilizing funds already being collected for the purpose of
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funding Public Access television. Not televising open
meetings, even after funds are being collected from consumers
to do so, poses a threat to good governance, transparency and
the public's access to information in a readily available
medium...This bill ensures that these existing funds be
utilized for their purpose, rather than be used for unintended
purposes or returned to consumers."
3)AB 2987 (Nuñez), Chapter 700, Statutes of 2006, or DIVCA, was
one of the more highly debated bills in the 2005-2006
legislative session. The purpose of DIVCA was twofold: to
promote widespread competition in the video and broadband
markets; and, to accelerate the deployment of video and
advanced broadband infrastructure and services within
California, especially in unserved and underserved areas.
DIVCA brought about major changes for local governments by
allowing telecommunications companies to obtain a single
franchise from the PUC in order to deliver Internet and
television services to homes and business, instead of having
to negotiate for individual franchises with each city and
county. DIVCA was supported by a broad coalition of business
and labor groups, and community groups representing the needs
of minorities, among other organizations, and was opposed
mainly by cities, counties, and community television groups.
4)One of the hotly-contested issues during DIVCA debates
involved PEG programming under the new franchise structure.
Supporters of community access television were concerned that
DIVCA would erode the traditional level of financial support
PEG programming had received under local franchise agreements.
DIVCA includes the following provisions in this regard:
a) Provides that the franchise holder must designate a
sufficient amount of capacity on its network to provide the
same number of PEG channels that the incumbent cable
operator prior to DIVCA provided within the local entity's
jurisdiction. If less than three PEG channels were
provided within that local entity, the local entity was
allowed to request the holder to provide up to three PEG
channels if they produce more than 56 hours per week of
original, locally produced programming on the current
channels;
b) Requires video service providers to offer PEG
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programming to all subscribers, and to provide the PEG
programming at a similar quality and functionality as it
offers for its basic tier of service;
c) Requires incumbent cable operators to continue to offer
the same level of PEG support as they did under their
franchise agreements through January 1, 2009, or until the
franchise expires, or would have expired had it not been
abrogated, whichever is later. Requires all holders of
state franchises to contribute a pro rata share of the
ongoing cash obligations of the incumbent cable operator
for PEG support; and,
d) Provides that, after the expiration of current franchise
agreements, local entities can require all video providers
to pay a fee of up to 1% of gross revenue to support PEG
operations. If the franchise agreement that was in place
requires the incumbent cable operator to pay a fee greater
than 1%, the local entity can set the fee at that higher
level, not to exceed 3%.
DIVCA also requires the holder of a state franchise to pay
rent to each local entity where it provides video service, in
the form of a franchise fee based on gross revenue for the use
of the public right-of-way. This franchise fee was set at 5%
of gross revenue or a lower level set by the local government
through ordinance. DIVCA allows local jurisdictions to use
franchise fees for any lawful purpose.
5)According to information provided by the author's office and
prepared by the Buske Group, there have been 50 public access
television closures since the passage of DIVCA. However, the
data contains a footnote stating that no government access
operations in the state have been closed due to DIVCA.
6)Opponents have raised several concerns with this measure:
a) Franchise fees are collected in return for the use of
public rights-of-way, and their use is allowable for any
lawful purpose. Franchise fees were never intended to be
collected for PEG programming. PEG fees are dedicated to
this purpose. Franchise fees contribute to local agencies
general funds and are used for critical government services
such as police and fire services. Opponents are concerned
that AB 185 will force local agencies to divert general
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fund resources to pay for the bill's mandate to televise
local agency meetings;
b) Opponents assert that this bill is contrary to the
policy direction adopted by the Legislature in approving
DIVCA with regard to PEG programming, and that this bill
inappropriately expects local agencies to pay for this
change in policy direction;
c) Opponents also contend that this bill is an unreasonable
mandate on local agencies that are already strapped for
resources by requiring the televising of all open and
public meetings. For example, Butte County reports that it
would have to televise meetings for more than 30 committees
and advisory bodies;
d) The author has not provided justification for changing
the 30-day retention period for audio or video recordings
of open and public meetings to a two-year time frame.
Local agencies are concerned with their ability to comply
with this provision with existing resources; and,
e) Opponents also raise concerns with the bill's lack of
definition for what is "financially feasible," which could
lead to confusion regarding how franchise fees are to be
expended.
7)It is also worth noting that PEG channels provide more than
just government programming. In its own findings and
declarations, the bill discusses the importance and value of
public and educational programming. By prioritizing
government programming, this bill could perversely limit
public and educational programming.
8)Support arguments : The author's office argues that this bill
promotes transparency and accountability at the local level of
governance.
Opposition arguments : Opponents argue that this bill is an
unfunded and unreasonable mandate that is inconsistent with
state policy.
REGISTERED SUPPORT / OPPOSITION :
Support
AB 185
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None on file
Opposition
Butte County Board of Supervisors
California State Association of Counties
City of West Covina
League of California Cities
Los Angeles County Board of Supervisors
Marin County Council of Mayors and Council Members
Rural County Representatives of California
Sacramento County Board of Supervisors
Urban Counties Caucus
Analysis Prepared by : Angela Mapp / L. GOV. / (916) 319-3958