Chapter 23
CABLE COMMUNICATIONS

Article I. In General

Secs. 23-1– 23-25. Reserved.

Article II. Cable Television Franchise

Sec. 23-26. Short title.

Sec. 23-27. Terms.

Sec. 23-27.1. Franchise required.

Sec. 23-28. Regulatory practices for all cable operators– Annual compliance statement required.

Sec. 23-29. Same– Performance evaluations.

Sec. 23-30. Same– Alternative user charge.

ARTICLE I.
IN GENERAL

Secs. 23-1– 23-25. Reserved.

ARTICLE II.
CABLE TELEVISION FRANCHISE

Sec. 23-26. Short title.

This article shall be known and cited as the "Cable Franchise Ordinance".

(Ord. No. 95-25, § 1, 12-27-95)

Sec. 23-27. Terms.

For the purposes of this article, the following terms, phrases, words and abbreviations shall have the meanings ascribed to them below. When not inconsistent with the context, words used in the present tense include the future tense, words in the plural number include the singular number, and words in the singular number include the plural number:

Affiliate means an entity which owns or controls, is owned or controlled by, or is under ownership with a cable operator.

Cable act means the Cable Communications Policy Act of 1984, as amended ("CCPA") and the Cable Television Consumer Protection Act of 1992, as amended.

Cable operator is any person or group of persons who:

(1) Provides cable service over a cable system and directly or through one or more affiliates owns a significant interest in such cable system;

(2) Otherwise controls or is responsible for, through any arrangement, the management and operation of such a cable system;

(3) Is a cable operator, as such term is defined in the Federal Cable Act, being Title VI of the Federal Communication Act of 1934, 47 U.S.C. Sections 521 and following, or is otherwise required to obtain a "franchise," as such term is defined in such Act;

(4) Is an operator of an open video system, as such term is defined in Title VI of the Federal Communications Act of 1934 and implementing regulations;

(5) Provides multichannel video service to a resident, business or person within the city, where such service is transmitted in whole or in part via wires or lines that are in or cross any public rights of way within the city. The preceding sentence shall apply whether the provider owns, leases or otherwise obtains the right to use such wires or lines, including wires or lines of a telecommunications provider used pursuant to tariff or otherwise for such purpose. Multichannel video service means multiple channels of video programming where the individual video channels are generally considered comparable to programming provided by a television broadcast station or by a direct to home satellite service; or

(6) Is providing multichannel video service who is otherwise required to obtain a franchise or similar permission or approval under applicable law.

Cable service means:

(1) The one-way transmission to subscribers of video programming or other programming service; and

(2) Subscriber interaction, if any, which is required for the selection of such video programming.

Cable system means a facility consisting of a set of closed transmission paths and associated signal generation, reception and control equipment or other communications equipment that is designed to provide cable service and other service to subscribers.

FCC means the Federal Communications Commission, or successor governmental entity thereto.

Franchise shall mean the initial authorization, or renewal thereof, issued by the franchising authority, whether such authorization is designated as a franchise, permit, license, resolution, contract, certificate or otherwise, which authorizes construction, maintenance and operation of the cable system for the purpose of offering cable services or other service to subscribers.

Franchise fee includes any tax, fee or assessment of any kind imposed by a franchising authority or other governmental entity on a cable operator or cable subscriber, or both, solely because of their status as such. The term "franchise fee" does not include:

(1) Any tax, fee or assessment of general applicability (including any such tax, fee or assessment imposed on both utilities and cable operators or their services but not including a tax, fee or assessment which is unduly discriminatory against cable operators or cable subscribers);

(2) In the case of any franchise in effect on October 30, 1984, payments which are required by the franchise to be made by the cable operator during the term of such franchise for, or in support of the use of public, educational or governmental access facilities;

(3) In the case of any franchise granted after October 30, 1984, capital costs which are required by the franchise to be incurred by the cable operator for public, educational or governmental access facilities;

(4) Requirements or charges incidental to the awarding or enforcing of the franchise, including payments for bonds, security funds, letters of credit, insurance, indemnification, penalties or liquidated damages; or

(5) Any fee imposed under Title 17.

Gross revenues means all revenues, as determined according to generally accepted accounting principles as a discipline consistently applied, derived directly or indirectly by the cable operator, arising from or attributable to operation of the cable system in the service area, including but not limited to:

(1) Revenue from all charges for services provided to subscribers of entertainment and nonentertainment services (including leased access fees);

(2) Revenue from all charges for the insertion of local and regional commercial advertisements upon the cable system in the service area;

(3) Revenue from all charges for the leased use of studios and other production facilities and equipment in the service area;

(4) Revenue from all regularly and nonregularly occurring charges;

(5) Grantee's pro rata portion of any revenues on a subscriber base basis derived from any other person or source arising from or attributable to the cable operator's operation of the cable system in the service area, to which the city is authorized to apply a franchise fee, or regulate the services thereof, under federal state or local law as it may exist from time to time during the term of the franchise.

Multichannel service means the one-way transmission to subscribers of video programming, or other programming service, and subscriber interaction, if any, which is required for the selection of such video programming or other programming service. Synonymous with "basic cable service" as defined in the cable act, or the FCC's rules and regulations thereunder.

Subscriber means a person or user of the cable system who lawfully receives cable services or other service therefrom with grantee's authorized permission.

(Ord. No. 95-25, § 2, 12-27-95; Ord. No. 98-27, § 1, 10-26-98)

Sec. 23-27.1. Franchise required.

All cable operators shall obtain a franchise from the city prior to providing service to any resident, business or person within the city and shall have a franchise in full force and effect at all times while such service is being provided.

(Ord. No. 98-27, § 2, 10-26-98)

Sec. 23-28. Regulatory practices for all cable operators– Annual compliance statement required.

(a) Within 90 days from the date that this article becomes effective, the council/franchising authority shall develop a cable operator's compliance statement in an effort to determine whether such cable operator is complying with the various provisions and/or requirements of this article. The form or content of the compliance statement may be amended from time to time.

(b) Prior to December 1 of each calendar year, the franchising authority shall furnish a compliance statement to each cable operator.

(c) Prior to December 31 of each calendar year, each cable operator shall return to the council/franchising authority a completed and executed (by owner or officer) compliance statement.

(d) There shall be no charge or fee associated with returning the annual compliance statement. However, if the cable operator supplies incomplete information which requires independent verification by the franchising authority or its consultant, then the cable operator be required to reimburse the franchising authority for all costs associated with the independent verification.

(Ord. No. 95-25, § 3.1, 12-27-95)

Sec. 23-29. Same– Performance evaluations.

The council/franchising authority is authorized to design a performance evaluation procedure which periodically monitors compliance of the franchised cable operator with the terms and conditions of both the franchise and this article. Moreover, the council/franchising authority may periodically review and examine whether a franchised cable operator's financial, technical, legal and character qualifications continue to meet required operational, maintenance and performance levels in order to ensure the uninterrupted provision of cable services. Such performance evaluations may be conducted every three years during the franchise term, and may be done as part of any survey.

(Ord. No. 95-25, § 3.2, 12-27-95)

Sec. 23-30. Same– Alternative user charge.

(a) This section is applicable to any licensed, but enfranchised cable operator, and to any cable operator who has had its franchise (or any portion thereof) determined to be unconstitutional, unenforceable, or invalid.

(b) Where not specifically prohibited by federal or state law, and as an alternative to the imposition of a franchise fee, the council/franchising authority may impose, extract and collect a charge from an effected cable operator for the use by such provider of the streets, rights-of-way, easements and public ways of the city.

(c) The alternative user charge shall be based on the following mathematical mode:

(1) Determine the present value of all streets, right-of-way, easements and public ways of the city in which the cable operator's cable system are located;

(2) Take the average percentage increase in land appraisals within the city (as determined by the amount of property appraiser for the city), for the years that the present term has been in effect;

(3) Take the average percentage increase for the past years and use it to determine the dollar amount of property value increase for the remaining term of the franchise (if no franchise applicable then use five years);

(4) Add the present value to the dollar amount of property value increase for the remaining term of the franchise (if no franchise applicable then use five years);

(5) Divide the adjusted value by the remaining number of years on the term of the franchise (if no franchise applicable then use five years);

(6) Multiply that figure by five percent to arrive at the annual user charge that is to be collected from the affected cable operator.

For purposes of illustration only, the formula reads as follows:

Present value, + dollar amount of property increase for remaining term of the franchise (based on average percentage increase of land appraisals for past years of franchise term), divide the adjusted value by the remaining years on the term of the franchise, multiply that figure by five percent = the annual alternative user charge.

(d) The council/franchising authority adopts such an alternative user charge, in order to receive fair compensation for the affected cable operator's use of the streets and public ways if such compensation cannot be obtained by imposing a flat percentage fee on such cable operator's annual gross revenues. However, an affected cable operator may agree to an alternative charge that is based on a flat percentage of gross revenues, as long as that charge does not exceed five percent of an affected cable operator's annual gross revenues.

(e) A franchise fee and an alternative user charge will not be imposed on the same cable operator at the same time, for the same period.

(f) An affected cable operator shall at no time be charged or obligated to pay an alternative user charge that exceeds five percent of such provider's gross revenues for any particular reporting period. In the event that the alternative user charge does exceed five percent of gross revenues, then such alternative user charge should be reduced to reflect an amount not greater than the five percent cap.

(g) An affected cable operator shall file with the franchising authority, within 45 days after the expiration of each of the cable operator's fiscal quarters, a detailed statement clearly showing the gross revenues received by cable operator during the preceding quarter and certified by a certified public accountant or officer of cable operator attesting to the accuracy, completeness, and veracity of the revenue figures. Revenue will be reported by service category, type and level showing computations an using incremental billing rates for all sources, levels, tiers and types of service and other revenue sources of all types.

(h) Payment of the quarterly portion of the alternative user charge shall be rendered to the franchising authority at the time the financial statement is filed.

(Ord. No. 95-25, § 3.3, 12-27-95)