This chapter shall be known and may be cited as the "Cable Television
Franchise Chapter" (hereinafter "chapter").
For the purpose of this chapter and any franchise agreement entered
into hereunder the following terms, phrases, words and their derivations shall
have the meanings given herein:
ACCESS MANAGER
Any entity, including a nonprofit community access corporation, designated
by the county to perform any or all of the following functions: manage any
necessary scheduling or allocation of any PEG or institutional network channel
capacity; and/or program any PEG channel on the county's behalf.
AFFILIATE
Each person who falls into one or more of the following categories:
each person having, directly or indirectly, a controlling interest in a grantee;
each person in which a grantee has, directly or indirectly, a controlling
interest; each person, directly or indirectly, controlling, controlled by,
or under common control with, a grantee; provided that "affiliate" shall in
no event mean any creditor of a grantee solely by virtue of its status as
a creditor and which is not otherwise an affiliate by reason of owning a controlling
interest in, being owned by, or being under common ownership, common management,
or common control with, a grantee.
BASIC SERVICE
Any subscriber tier provided by the grantee which includes the delivery
of local broadcast stations, and public, educational and governmental access
channels. Basic service does not include optional program and satellite service
tiers, a la carte services, per channel, per program, or auxiliary services
for which a separate charge is made. However, grantee may include other satellite
signals on the basic service tier.
CABLE SERVICE
A.
The one-way transmission to subscribers of video programming or other
programming services; and
B.
Subscriber interaction, if any, which is required for the selection
or use of such video programming or other programming service.
CABLE SYSTEM or SYSTEM or CABLE TELEVISION SYSTEM
A facility consisting of a set of closed transmission paths and associated
signal generation, reception and control equipment that is designed to provide
cable television service which includes video programming and which is provided
to multiple subscribers within the county, but such term does not include
a facility that serves only to retransmit the television signals of one or
more television broadcast stations; a facility that serves subscribers without
using any public rights-of-way; a facility of a common carrier which is subject,
in whole or in part, to the provisions of Title II of the Communications Act,
except that such facility shall be considered a cable system if such facility
is used in the transmission of video programming directly to subscribers,
unless the extent of such use is solely to provide interactive on-demand services;
an open video system that complies with 47 U.S.C. § 573; or any
facilities of any electric utility used solely for operating its electric
utility system. A reference to a cable system in this chapter refers to any
part of such system, including, without limitation, converters. The foregoing
definition of "cable system" shall not be deemed to circumscribe or limit
the authority of the county to regulate or franchise the activities of any
other communications system or provider of communications services to the
full extent permitted by law.
CHANNEL
A portion of the electromagnetic frequency spectrum, which is used
in a cable system and which is capable of delivering a television channel
(as defined by the FCC).
CONTROL and/or CONTROLLING INTEREST
Actual working control or ownership of a system in whatever manner
exercised. A rebuttable presumption of the existence of control or a controlling
interest shall arise from the beneficial ownership, directly or indirectly,
by any person or entity (except underwriters during the period in which they
are offering securities to the public) of 25% or more of a cable system or
a franchise under which the system is operated. A change in the control or
controlling interest of an entity which has control or a controlling interest
in a grantee shall constitute a change in the control or controlling interest
of the system under the same criteria. Control or controlling interest as
used herein may be held simultaneously by more than one person or entity.
CONVERTER
An electronic device which converts signals to a frequency not susceptible
to interference within the television receiver of a subscriber and, by an
appropriate channel selector, also permits a subscriber to view more than
12 channels delivered by a system at designated converter dial locations.
COUNTY
Wicomico County, Maryland, and any agency or department thereof.
COUNTY EXECUTIVE
The executive head of the county government, or his designee.
[Added 10-17-2006 by Bill No. 2006-11]
FCC
The Federal Communications Commission and any legally appointed,
designated or elected agent or successor.
FRANCHISE
A nonexclusive authorization, evidenced by a written franchise agreement,
granted pursuant to this chapter and applicable law to construct, operate
and maintain a cable system within the streets to provide cable service within
all or a specified area of the county. The term "franchise" includes the franchise
agreement. Any such authorization, in whatever form granted, shall not mean
or include any license or permit required for the privilege of transacting
and carrying on a business within the county as required by state or county
law, ordinances, or regulations, or for attaching devices to poles or other
structures, whether owned by the county or a private entity, or for excavating
or performing other work in or along the streets.
FRANCHISE AREA
The area of the county that a grantee is authorized to serve by its
franchise.
GRANTEE
A person or entity to whom or which a franchise under this chapter
is granted by the county, along with the lawful successors or assigns of such
person or entity.
GROSS REVENUE
Any and all revenues or consideration of any kind or nature that
constitutes revenue within generally accepted accounting principles (including,
without limitation, cash, and credits) actually received by a grantee or by
any other operator that is a cable operator of a cable system, from the provision
of cable service over the cable system within the franchise area. Gross revenues
include, by way of illustration and not limitation, monthly fees charged to
subscribers for any basic, optional, premium, per-channel, per-program service,
or other cable service; installation, disconnection, reconnection and change-in-service
fees; leased access channel fees; late fees; revenues from rentals or sales
of converters or other equipment; advertising revenues; and revenues from
home shopping. Gross revenues shall include revenues received by an entity
other than a grantee, that operates the system where necessary to prevent
evasion or avoidance of the obligation under this chapter or a franchise to
pay the franchise fee. Gross revenues shall not include: to the extent consistent
with generally accepted accounting principles, actual bad-debt write-offs;
or any taxes on services furnished by a grantee which are imposed directly
on any subscriber or user by the State of Maryland, the county or other governmental
unit and which are collected by the grantee on behalf of said governmental
unit. A franchise fee is not such a tax. Gross revenue includes an allocated
portion of all revenue derived by the grantee from local advertising, home
shopping, or other similar services. The allocation shall be based on the
number of subscribers in the franchise area divided by the total number of
subscribers on the system. Gross revenues shall include any revenue received
by the grantee through any means which has the effect of avoiding the payment
of franchise fees to the franchise authority which it is lawfully entitled
to receive under the terms of this chapter.
INITIAL GRANTEE
A grantee who has not previously been granted a franchise by the
county.
INSTALLATION
The connection of the system from feeder cable to subscribers'
terminals.
NORMAL BUSINESS HOURS
As applied to a grantee, those hours during which similar businesses
in the county are open to serve customers. In all cases, normal business hours
shall include some evening hours at least one night per week, and/or some
weekend hours.
NORMAL OPERATING CONDITIONS
Those service conditions which are within the control of a grantee.
Those conditions which are not within the control of a grantee include, but
are not limited to, natural disasters, civil disturbances, power outages,
telephone network outages, and severe or unusual weather conditions. Those
conditions which are ordinarily within the control of the grantee include,
but are not limited to, special promotions, pay-per-view events, rate increases,
regular peak or seasonal demand periods, and maintenance or upgrade of the
cable system.
OUTAGE
The complete loss of picture, sound or both on multiple channels
from a common problem which affects multiple customers.
PEG
Public, educational and governmental.
PERSON
An individual, partnership, association, joint stock company, joint
venture, domestic or foreign corporation, stock or nonstock corporation, limited
liability company, professional limited liability company, or organization
of any kind, or any lawful successor thereto or transferee thereof. Such term
does not include the county.
STREET or PUBLIC RIGHTS-OF-WAY
The surface of and all rights-of-way and the space above and below
any public street, road, highway, freeway, lane, path, public way or place,
sidewalk, alley, court, boulevard, parkway, drive or easement now or hereafter
held by the county for the purpose of public travel and shall include other
easements or rights-of-way as shall be now held or hereafter held by the county
which shall, within their proper use and meaning, entitle a grantee to the
use thereof for the purposes of installing poles, wires, cable, conductors,
ducts, conduits, vaults, manholes, amplifiers, appliances, attachments, and
other property as may be ordinarily necessary and pertinent to a cable system.
SUBSCRIBER
Any person, firm, grantee, corporation, or association lawfully receiving
basic service and/or any additional service from the grantee.
USER
A party utilizing a cable television system channel for purposes
of production or transmission of material to subscribers, as contrasted with
receipt thereof in a subscriber capacity.
Any franchise granted by the county shall grant to a grantee the right
and privilege to erect, construct, operate and maintain in, upon, and along,
across, above, over and under the streets, now in existence and as may be
created or established during a franchise term, any poles, wires, cable, underground
conduits, manholes, and other television conductors and fixtures necessary
for the maintenance and operation of a cable system to provide cable service
within a franchise area. A franchise granted by the county does not expressly
or implicitly authorize a grantee to provide service to, or install a cable
system on, private property without the owner's consent [except for use
of compatible easements pursuant to Section 621 of the Cable Act, 47 U.S.C.
§ 541(A)(2)], or to use publicly or privately owned conduits or
any other public property without a separate agreement with the owners thereof.
Any franchise to provide cable service is for the franchise area defined
in a franchise agreement.
A franchise and the rights, privileges and authority granted shall take
effect and be in force as set forth in a franchise agreement and shall continue
in force and effect for a term of no longer than 15 years, provided that within
15 days after the date of final passage of the franchise, a grantee shall
file with the county its unconditional acceptance of the franchise and promise
to comply with and abide by all its provisions, terms and conditions. Such
acceptance and promise shall be in writing duly executed and sworn to, by,
or on behalf of the grantee before a notary public or other officer authorized
by law to administer oaths. Such franchise shall be nonexclusive and revocable.
Franchise renewals shall be conducted in accordance with Section 626
of the Cable Communications Policy Act of 1984 as amended, or then applicable
law.
No cable system shall be allowed to occupy or use the public right-of-way
of the county for system installation and maintenance purposes, or be allowed
to operate without a valid franchise issued pursuant to this chapter.
The county shall have the right, during the life of a franchise, to
install and maintain, free of charge upon the poles of a grantee any wire
or pole fixtures that do not unreasonably interfere with the cable television
system operations of the grantee. The county shall indemnify and hold harmless,
to the extent permitted by law, the grantee from any claim that might arise
due to or as a result of such usage.
Costs to be borne by an initial grantee shall include but shall not
be limited to any reasonable charges incidental to the awarding or enforcing
of an initial grantee's franchise, all costs of publications of notices
prior to any public meeting provided for pursuant to this chapter, and any
costs not covered by application fees, incurred by the county in its study,
preparation of proposal documents, evaluation of all applications, and examinations
of the applicants' qualifications. Any payments made to the county pursuant
to this section shall not be considered franchise fees within the meaning
of 47 U.S.C. § 542.
All notices from a grantee to the county pursuant to this chapter shall
be to the Administrative Director's office. Every grantee shall maintain
with the county, throughout the term of a franchise, an address for service
of notices by mail. A grantee shall maintain a central office to address any
issues relating to operating under this Cable Television Chapter.
Minimum public notice of any public meeting relating to a franchise
shall be made as prescribed by the County Council.
A grantee shall provide cable service throughout its entire franchise
area pursuant to the provisions of this chapter and its franchise agreement,
and shall keep a record for at least three years of all requests for service
received by the grantee. This record shall be available for inspection by
the county at the local office of the grantee during regular office hours.
A grantee shall have the authority to promulgate such rules, regulations,
terms and conditions governing the conduct of its business as shall be reasonably
necessary to enable the grantee to exercise its rights and perform its obligations
under a franchise and to assure an uninterrupted service to each and all of
its customers; provided, however, that such rules, regulations, terms and
conditions shall not be in conflict with the provisions hereof or applicable
state and federal laws, rules and regulations.
Copies of all petitions, applications, communications and reports either
submitted by a grantee to the Federal Communications Commission, Securities
and Exchange Commission, or any other federal or state regulatory commission
or agency having jurisdiction in respect to any matters affecting cable television
operations authorized pursuant to the franchise, or received from such agencies,
shall be provided to the county upon request.
A grantee shall file annually with the county, no later than 120 days
after the end of the grantee's fiscal year, a copy of a gross revenues
statement certified by an officer of the grantee.
At the expiration of the term for which a franchise is granted or if
any renewal request is denied, or upon the termination of a franchise as provided
herein, a grantee shall forthwith, upon notice by the county, remove at its
own expense all designated portions of its cable television system from all
streets and public property within the county. If a grantee fails to do so
within one year of notice, the county may perform the work at the grantee's
expense. Upon such notice of removal, a bond shall be furnished by a grantee
in an amount sufficient to cover this expense.