[Adopted 8-23-1994 by Ord. No. 94-13 (Ch. 13, Part 8, of the 1992 Code)]
[Amended 3-25-1997 by Ord. No. 97-03]
As used in this article, the following terms shall have the meanings indicated:
ANNUAL RATE ADJUSTMENT
A proposed change in a cable operator's existing rates for the basic service tier and associated equipment, costs, using the annual filing system pursuant to §§ 76.922(e) and 76.923 of the Federal Communications Commission rules.
BASIC SERVICE TIER
The basic service tier shall, at a minimum, include all signals of domestic television broadcast stations provided to any subscriber [except a signal secondarily transmitted by satellite carrier beyond the local service area of such station, regardless of how such signal is ultimately received by the cable operator(s)], any public, educational and governmental programming required by the franchise agreement to be carried on the basic tier and any additional video programming signals or service added to the basic tier by the cable operator(s).
CABLE ACT OF 1992
Cable Television Consumer Protection and Completion Act, Pub. L. 102-385, 106 Stat. 1460 (1992).
CABLE OPERATOR(S)
All cable television operators who are party to a franchise agreement with the franchising authority.
CABLE PROGRAMMING SERVICE
Any video programming provided over a cable television system, regardless of service tier, including installation or rental of equipment used for the receipt of such video programming, other than:
A. 
Video programming carried on the basic service tier.
B. 
Video programming offered on a pay-per-channel or pay-per-program basis.
C. 
A combination of multiple channels of pay-per-channel or pay-per-program video programming offered on a multiplexed or time-shifted basis so long as the combined service consists of commonly identified video programming and is not bundled with any regulated tier of service.
CERTIFICATION
The certification received by the franchising authority from the FCC, empowering the franchising authority to regulate certain cable television rates.
COST-OF-SERVICE RATE APPLICATION
A rate application filed in the manner prescribed and on the forms adopted by the FCC. A cost-of-service rate application may be submitted by a cable operator, in its sole discretion, in support of its current rates or a proposed rate increase.
CURRENT RATES
Those rates in effect for the basic service tier and for the equipment and installation necessary to receive the basic service tier existing on the date when the franchising authority notifies the cable operator(s) that it has received certification.
FCC
The Federal Communications Commission.
FRANCHISE AGREEMENT
The agreement between one or more cable operator(s) and the franchising authority pursuant to which the cable operator(s) was granted a franchise to offer cable television services to subscribers.
FRANCHISE AUTHORITY
Board of Supervisors of the Township of Middletown.
MAXIMUM PERMITTED RATES
Those rates against which all rate applications shall be measured. The maximum permitted rates shall be determined consistent with the rules adopted by the FCC.
OPINION
An opinion issued by the franchising authority in response to any rate application.
ORDER
An order issued by the franchising authority advising the cable operator(s) and other interested parties of the franchising authority's intent to take additional time to review and approve or disapprove any rate application.
PRESCRIBED RATE
The rate prescribed by the franchising authority for the basic service tier and/or for the equipment and installation necessary to receive the basic service tier, which may differ from the proposed rates submitted by the cable operator(s) in a rate application.
PROSPECTIVE RATE ADJUSTMENT
A reduction by the franchising authority in the current rates charged by cable operator(s).
RATE APPLICATION
An application on the form adopted by the FCC to be submitted by the cable operator(s) for approval of its current rates and/or any proposed increase in the rates for the basic service tier and/or for the equipment and installation necessary to receive the basic service tier.
REFUND
Any refund order by the franchising authority of rates charged for the basic service tier and/or the rates for the equipment and installation necessary to receive the basic service tier pursuant to the terms contained in § 178-104D(2).
SUBSCRIBER
A customer of the cable operator(s) receiving cable television service within the geographic boundaries of the franchising authority.
A. 
The franchising authority is hereby empowered to make application for certification with the Federal Communications Commission (FCC) to regulate cable television rates for the basic service tier, the equipment and installation necessary to receive the basic service tier and to provide notice to the cable operator(s) of its application for certification. Application shall be made in the manner and on the forms adopted by the FCC, and notice shall be provided to the cable operator(s) before or on the same day of filing of the application.
B. 
Upon the effective date of certification, the franchising authority shall provide notice to the cable operator(s) of its certification, its intention to regulate rates for the basic service tier and the equipment and installation necessary to receive the basic service tier.
C. 
In the event that the franchising authority shall not obtain certification, or that its certification shall be reconsidered and revoked, the franchising authority is hereby authorized to take such steps as are necessary to receive certification.
Pursuant to the power and authority granted to the franchising authority under the Cable Act of 1992, its certification by the FCC for regulating rates for the basic service tier and rates for the equipment and installation necessary to receive the basic service tier and other charges which may be regulated by the franchising authority pursuant to the regulations adopted by the FCC under the Cable Act of 1992, the franchising authority shall exercise regulatory power over the rates charged or to be charged to a subscriber for the basic service tier and for the equipment and installation necessary to receive the basic service tier applicable to those subscribers of the cable operator(s).
[Amended 3-25-1997 by Ord. No. 97-03]
A. 
Initial procedures.
(1) 
The cable operator(s) shall give notice to its subscribers within 90 days (or three billing cycles) of the effective date of the rules adopted by the franchising authority and to all new subscribers at the times of installation of the availability of the basic service tier.
(2) 
Each cable operator shall submit a rate application to the franchising authority for approval of that cable operator's current rates for the basic service tier and for approval of its rates for the equipment and installation necessary to receive the basic service tier, and for approval of any proposed rate increase.
(a) 
The rate application for approval of current rates for the basic service tier and the rates for the equipment and installation necessary to receive the basic service tier shall be filed within 30 days of notice from the franchising authority to the cable operator(s) that the franchising authority has been certified by the FCC and has adopted the regulations required by the FCC for rate regulation.
(b) 
The rate application for any proposed increase in rates for the basic service tier or for the equipment and installation necessary to receive the basic service tier other than an annual rate adjustment shall be filed a minimum of 30 days before the effective date of the proposed increase.
(c) 
A cable operator that submits for review an annual rate adjustment for the basic service tier and associated equipment costs shall do so no later than 90 days from the effective date of the proposed rates.
(d) 
Included in a rate application shall be such information as is set forth in the application form adopted by the FCC.
(e) 
The cable operator(s) shall submit any relevant information as is permitted by FCC rules, as contained on the application and worksheets adopt by the FCC for rate applications, and which the cable operator(s) would like the franchising authority to consider in evaluating the current rates for the basic service tier and/or for the equipment and installation necessary to receive the basic service tier, and/or in evaluating any proposed rate increase of those same items.
(f) 
If the current rates for the basic service tier and/or for the equipment and installation necessary to receive the basic service tier or any proposed rate increase exceeds the maximum permitted rates, the cable operator(s) may submit a cost-of-service rate application in conformity with FCC rules. Only the cable operator(s) may decide whether to submit a cost-of-service rate application.
(3) 
The cable operator shall give notice to its subscribers that a rate application has been filed at least 30 days prior to the effective date of any proposed rate increase. In the case of an annual rate adjustment rate application, the cable operator may give subscribers notice of the proposed rate changes at the time a cable operator files its rates with the franchise authority. Such notice should state that the proposed rate change is subject to approval by the franchise authority. If the cable operator is only permitted a smaller increase than was provided for in the notice, the cable operator must provide an explanation to subscribers on the bill in which the rate adjustment is implemented. If the cable operator is not permitted to implement any of the rate increase that was provided for in the notice, the cable operator must provide an explanation to subscribers within 60 days of the date of the franchise authority's opinion. Said notice shall provide the name and address of the franchising authority before whom the rate application is pending.
(4) 
The cable operator(s) bears the burden of proof that its current rates or any proposed rate increase complies with the statutes of the United States and the regulations of the FCC.
(5) 
Within 14 days of receipt of a rate application, the franchising authority shall provide notice in a newspaper of general circulation within the jurisdiction of the franchising authority, which notice shall contain at a minimum:
(a) 
Notice that the rate application has been received from the cable operator(s).
(b) 
The manner in which interested parties may review and/or obtain copies of the rate application.
(c) 
The effective date of the proposed rate increase, if that is the subject of the rate application.
(d) 
The manner in which interested parties may offer their comments regarding the rate application.
(e) 
The date all comments must be received by the franchising authority.
(f) 
The date on which the franchising authority must act on the rate application or the rate application shall have become effective without action.
(6) 
Within 30 days of receipt of the rate application, other than an annual rate adjustment, the franchising authority shall:
(a) 
Review the rate application and documentation submitted by the cable operator(s).
(b) 
Compare the current rates or the proposed rate increase submitted by the cable operator(s) with the maximum permitted rates or with such other applicable standards as have been adopted and/or approved by the FCC.
(c) 
Consider any public input on the rate application which may have been provided.
(d) 
Approve, disapprove or seek additional time to consider the rate application.
(7) 
In the event the cable operator files an annual rate adjustment, the franchise authority shall have 90 days from the date of the filing to:
(a) 
Review the rate application and documentation submitted by the cable operator(s).
(b) 
Compare the current rates or the proposed rate increase submitted by the cable operator(s) with the maximum permitted rates or with such other applicable standards as have been adopted and/or approved by the FCC.
(c) 
Consider any public input on the rate application which may have been provided.
(d) 
Approve, disapprove or seek additional time to consider the rate application. However, if the franchise authority or its designee concludes that the cable operator has submitted a facially incomplete filing, the franchise authority's deadline for issuing an opinion, the date on which rates may go into effect if no opinion is issued, and the period for which refunds are payable will be tolled while the franchise authority is waiting for this information, provided that, in order to toll these effective dates, the franchise authority or its designee notifies the cable operator of the incomplete filing within 45 days of the date of the filing is made.
(8) 
If the franchising authority shall fail to either approve, disapprove or seek additional time to consider the rate application, other than an annual rate adjustment, within said 30 days, the rate application shall be deemed approved on the 30th day after submission. Notwithstanding anything to the contrary contained in this article, in the event the cable operator files an annual rate adjustment, if the franchise authority has taken no action within the ninety-day review period, then the proposed rates may go into effect at the end of the review period, subject to a prospective rate reduction and refund, if the franchise authority subsequently issues an opinion disapproving any portion of such rates; provided, however, that in order to order a prospective rate reduction and refund, if the cable operator who made the filing inquires as to whether the franchise authority intends to issue an opinion after the initial review period, the franchise authority or its designee must notify the cable operator of its intent in this regard within 15 days of the cable operator's inquiry. If a proposed rate goes into effect before the franchise authority issues its opinion, the franchise authority shall have 12 months from the date the cable operator filed for the rate adjustment to issue its opinion. In the event the franchise authority does not act within this twelve-month period, it may not at a later date order a refund or a prospective rate reduction to that rate filing.[1]
[1]
Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I).
B. 
Request for additional time.
(1) 
Rate application. If the franchising authority is unable to determine from the rate application, including any supporting documentation submitted by the cable operator(s), whether the current rates for the basic service tier and/or for the equipment and installation necessary to receive the basic service tier and/or the proposed rate increase are within the maximum permitted rates, the franchising authority may, in cases not involving an annual rate adjustment or cost-of-service showings, take an additional 90 days to consider the rate application.
(a) 
The franchising authority shall issue an order and serve the same upon the cable operator(s) indicating that additional time is required to consider the rate application. The order shall be issued prior to the expiration of the 30 days during which the franchising authority may consider the rate application. Within 10 days of issuance of such order, the franchising authority shall publish notice in a newspaper of general circulation within the jurisdiction of the franchising authority, which notice shall contain a summary of the order, including the additional time requested, and the reason for requesting such additional time.
(b) 
The cable operator may submit such additional information as it believes will cure any deficiencies in the rate application during the additional time.
(c) 
The franchising authority may require the cable operator(s) to furnish additional specified information, including proprietary information, when the current rate or proposed rate increase is in excess of the maximum permitted rate. When the current rate is equal to or below the maximum permitted rate, the franchising authority may only require furnishing of documentation that the rate is within the maximum permitted rate.
(d) 
If no decision is issued by the franchising authority at the expiration of the additional time, the current rates or proposed rate increase shall become effective, subject to any later refund order adopted by the franchising authority. Notwithstanding the foregoing, the franchising authority, in order to later order a refund, must within the text of the order direct the cable operator(s) to keep an accurate account of all amounts received by reason of the rate in issue and on whose behalf such amounts were paid.
(2) 
Cost-of-service rate application. If the cable operator(s) has submitted a cost-of-service rate application and the franchising authority is unable to determine whether the current rates for the basic service tier and/or for the equipment and installation necessary to receive the basic service tier and/or the proposed rate increase are within the maximum permitted rates, the franchising authority may take an additional 150 days to consider the cost-of-service rate application.
(a) 
The franchising authority shall issue an order and serve the same upon the cable operator(s) indicating that additional time is required to consider the rate application because it is a cost-of-service rate application. The order shall be issued prior to the expiration of the 30 days during which the franchising authority may consider the rate application. Within 10 days of issuance of such order, the franchising authority shall publish notice in a newspaper of general circulation within the jurisdiction of the franchising authority, which notice shall contain a summary of the order, including the additional time requested, and the reason for requesting such additional time.
(b) 
The franchising authority may require the cable operator(s) to furnish additional specified information, including proprietary information, when the current rate or proposed rate increase is in excess of the maximum permitted rate. When the current rate is equal to or below the maximum permitted rate, the franchising authority may only require furnishing of documentation that the rate is within the maximum permitted rate.
(c) 
If no decision is issued by the franchising authority at the expiration of the additional time, the current rates or proposed rate increase shall become effective, subject to any later refund order adopted by the franchising authority. Notwithstanding the foregoing, the franchising authority, in order to later order a refund, must within the text of the order direct the cable operator(s) to keep an accurate account of all amounts received by reason of the rate in issue and on whose behalf such amounts were paid.
(d) 
Notwithstanding anything to the contrary contained in this article, the franchising authority may, pursuant to a petition for special relief filed with the FCC, request the FCC to examine a cable operator's cost-of-service rate application, and such procedures and deadlines as specified by rule or order of the FCC shall control.
C. 
Decision of the franchising authority.
(1) 
The franchising authority shall issue a written opinion when:
(a) 
The rate application is not approved, in whole or in part, by the franchising authority.
(b) 
The rate application is approved by the franchising authority over the objection(s) of any interested party.
(2) 
The franchising authority may, but is not required to, issue a written opinion when the rate application is approved and there have been no objections filed.
(3) 
Within 10 days of issuance of an opinion, the franchising authority shall provide notice in a newspaper of general circulation within the jurisdiction of the franchising authority, which notice shall contain at a minimum that:
(a) 
The franchising authority has reached a decision on the rate application and announcing that decision.
(b) 
The manner in which interested parties may review and/or obtain copies of the opinion.
(c) 
The right of interested parties to take an appeal from the opinion of the franchising authority.
(d) 
The deadline for taking any such appeal.
D. 
Disapproval of the rate application.
(1) 
Rate reduction.
(a) 
Current rates. If the franchising authority shall issue an opinion disapproving the current rates of the cable operator(s) for the basic service tier or for rates for the equipment and installation necessary to receive the basic service tier, the franchising authority may order a reduction in the current rates for the basic service tier and/or for the equipment and installation necessary to receive the basic service tier. The prospective rate adjustment may be set at: (i) a level consistent with the FCC adopted maximum permitted rates; (ii) another rate, based on review of a cost-of-service rate application; or (iii) another rate consistent with FCC rules.
(b) 
Proposed rates. If the franchising authority shall issue an opinion disapproving of any proposed rate increase, the franchising authority may:
[1] 
Prescribe a reasonable rate to be charged by the cable operator(s) instead of the proposed rate. The prescribed rate may not be lower than the maximum permitted rate unless a cost-of-service rate application has been submitted by the cable operator(s) and the franchising authority determines that the cost-of-service analysis justifies a lower rate.
[2] 
Advise the cable operator(s) of a rate level to which it would not object if a modified rate application were resubmitted.
(2) 
Refunds. The franchising authority may order a refund, if:
(a) 
The cable operator fails to comply with a rate decision by the franchising authority. The refund period may be retroactive to the effective date of the rate order issued by the franchising authority.
(b) 
The franchising authority determines in its initial review of the current rates that they exceed the maximum permitted rates and are unsupported by a cost-of-service rate application. In such instance, the refund period may be retroactive to September 1, 1993, or one year prior to the date on which the cable operator(s) implement(s) the prospective rate adjustment, whichever is shorter.
(c) 
The franchising authority: (i) has issued an order permitting it to take an additional 90 or 150 days to consider a rate application; and (ii) has directed the cable operator(s) to keep an accurate account of all amounts received by reason of the rate in issue and on whose behalf such amounts were paid; but (iii) failed to issue an opinion during that time period, causing the rates to become provisionally effective, and the franchising authority later finds all or a portion of the rates to be unreasonable. In such instance, the refund period may be retroactive to the date of the order and ending on the date on which the cable operator(s) implements the prospective rate reduction or one year, whichever is shorter.
(3) 
Before any refund order shall become effective, the franchising authority must send notice to the cable operator(s) and provide said cable operator(s) a maximum of 30 days to submit additional information to the franchising authority as to why the refund should not be ordered. At the end of said period, the franchising authority shall either confirm, amend or rescind said refund order.
(4) 
Refunds shall include interest computed at applicable rates published by the Internal Revenue Service for tax refunds and additional tax payments.
(5) 
If any proposed rate increase has gone into effect due to inaction of the franchising authority to issue an order stating a need for additional time, the franchising authority has no right to order a refund.
(6) 
Any violation of any order issued hereunder shall be considered a violation of this article.
A. 
Cumulative remedies. Where this article provides alternative penalties or remedies, they shall be cumulative, and the imposition of one penalty or remedy shall not prevent the franchising authority from invoking any other penalty or remedy provided herein.
B. 
In addition to all other rights and remedies provided herein, the franchising authority shall have all rights and remedies afforded under the franchise agreement.
C. 
Unless otherwise provided, any person convicted of violating any provision of this article, including any order issued or any rule or regulation promulgated hereunder, shall, upon conviction, be fined not more than $600 and costs for each offense and, in default of payment thereof, may be imprisoned for not more than 30 days. Each day of a continuing violation shall constitute a separate and distinct offense.
Appeals of all ratemaking decisions by the franchising authority may be taken to the FCC by the cable operator(s), subscribers or other interested parties.
A. 
Appeals must be filed within 30 days of the date of public release of the franchising authority's opinion.
B. 
Opposition to an appeal must be filed within 15 days after the filing of the appeal and must be served on the party appealing.
C. 
Replies to oppositions shall be filed within seven days of the filing of an opposition and served on all parties.
[Amended 3-25-1997 by Ord. No. 97-03]
A. 
Cable programming service rates.
(1) 
The franchising authority is hereby authorized to file complaints with the FCC on behalf of itself and/or any subscriber(s) who files a complaint with the franchising authority for those cable programming service rates solely regulated by the FCC.
(2) 
The decision to file a complaint with the FCC by the franchising authority shall be in the sole discretion of the franchising authority.
(3) 
Any such complaint filed by the franchising authority shall be in conformity with the rules of the FCC.
(4) 
The franchising authority shall not file a complaint unless within 90 days after a rate increase in cable programming service rates becomes effective it receives no less than two complaints from subscribers.
(5) 
No formal review or adjudication by the franchising authority of any such complaint is permitted.
B. 
Information to be included in billing.
(1) 
A cable operator(s) shall provide the following information to subscribers on monthly bills:
(a) 
The name and mailing address of the franchising authority.
(b) 
The FCC community unit identifier for the cable system.
(2) 
A cable operator(s) shall provide notice to the franchising authority at least 30 days in advance of any change in rates for cable programming service or associated equipment.