[HISTORY: Adopted by the Borough Council of Jim Thorpe 12-9-2010 by Ord. No.
2010-8. Amendments noted where applicable.]
This chapter shall be known and may be cited as "the Jim Thorpe
Borough Franchise Ordinance."
A.
AFFILIATED ENTITY
BASIC SERVICE
BROADCAST
CABLE OPERATOR
CABLE SERVICE
CABLE SYSTEM
(1)
(2)
(3)
(4)
(5)
DROP
FCC
GROSS REVENUES
(1)
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(l)
(m)
(n)
(o)
(p)
(q)
(r)
(s)
(t)
(u)
(v)
(2)
MUNICIPALITY
NORMAL OPERATING CONDITIONS
OUTLET
PROGRAMMING
SUBSCRIBER
As used in this chapter, the following terms shall have the meanings
indicated:
Any corporation, partnership or other business entity that
owns or controls, is owned or controlled by, or is under common ownership
or control with a cable operator.
That service tier which shall include at least the retransmission
of local broadcast television signals for which a cable operator has
obtained retransmission consent and/or must carry agreements and any
educational and governmental ("EG") access channel.
Over-the-air transmission by a television or radio station.
Any corporation, person, partnership or entity which provides
or operates a cable system.
The one-way transmission to subscribers of video programming
or other programming service and subscriber interaction, if any, which
is required for the selection or use of such video programming or
other programming service.
A facility, consisting of a set of closed transmission paths
and associated signal generation, reception, and control equipment
that is designed to provide cable service which includes video programming
and which is provided to multiple subscribers within the municipality,
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
right-of-way;
A facility of a common carrier which is subject, in whole or
in part, to the provisions of Title II of the Cable Act, except that
such facility shall be considered a cable system (other than for purposes
of § 621 of the Cable Act) to the extent that facility is
used in the transmission of video programming directly to subscribers
unless the extent of that use is solely to provide interactive on-demand
services;
An open video system that complies with § 653 of the
Cable Act; or
Any facilities of any electric utility used solely for operating
its electric utility systems.
The coaxial or fiber optic or other cable that connects a
home or building to the cable system.
The Federal Communications Commission.
All revenue received directly or indirectly by a cable operator
from any source whatsoever arising from, attributable to, or in any
way derived from the operation of cable operator's cable system
located within the municipality to provide cable services. Gross revenues
shall include, but are not limited to, the following:
Basic service fees;
Fees charged to subscribers for any service tier other than
basic service;
Fees charged for premium services;
Fees charged to subscribers for any optional, per-channel or
per-program services;
Revenue from the provision of any other cable services;
Charges for installation, additional outlets, relocation, disconnection,
reconnection and change-in-service fees for video or audio programming;
Fees for downgrading any level of cable service programming;
Fees for "trouble calls";
Fees for leasing of channels;
Charges based on the sale or lease of any portion of the cable
system or fiber capacity;
Rental or sales of any and all equipment, including converters
and remote-control devices;
Any and all advertising revenues;
Revenues or commissions from home shopping channels;
Internet access or cable modem service fees (provided such service
is deemed to be a cable service by the FCC or a court of competent
jurisdiction);
Revenue from interactive television services;
Bank-at-home services and other revenue-sharing arrangements
provided through the cable system;
Fees for any and all music services;
Fees for video-on-demand;
Sales of program guides;
Late payment fees;
NSF check charges; and
Franchise fees.
Gross revenues shall not include bad debts or any taxes on services
furnished by the cable operator and imposed directly upon any subscriber
or user by the municipality, state, federal or other governmental
unit.
Borough of Jim Thorpe.
Business conditions within the cable operator's service
department which are within the control of the cable operator. Those
conditions that are not within the control of the cable operator include,
but are not limited to, natural disasters, civil disturbances, power
outages, telephone network outages and severe or unusual weather conditions.
An interior receptacle that connects a television set to
the cable system.
Any video, audio, text or data coded signal carried over
the cable system.
A person or entity who contracts with cable operator for,
and lawfully receives, the video signals and cable services distributed
by the cable system.
B.
Nothing herein shall be interpreted to enlarge the municipality's
right to collect franchise fees beyond the authority granted to the
municipality by the Cable Act; and, the municipality acknowledges
that revenues from advertising revenue and home shopping channels
are received based on zip codes that do not conform to municipality
boundaries. For the purpose of calculating franchise fees, these revenues
will be prorated among franchise authorities based upon the number
of subscribers within each.
A.
Franchise fee. Every cable operator shall pay to the municipality an amount equal to 4% of the gross revenues derived from the operation of its cable system in the municipality. The term "gross revenues" is defined in § 245-2, Definitions. The cable operator shall not deduct or otherwise credit against the franchise fee any tax, fee or assessment of general applicability. The municipality may amend the franchise fee upon 60 days' written notice to the cable operator provided that the franchise fee may not exceed 5%. In the event that federal law is amended to authorize a franchise fee higher than 5%, the municipality may, at its discretion, direct the cable operator to pay a higher franchise fee. The cable operator may pass franchise fees through to subscribers pursuant to applicable law and regulations.
B.
Quarterly payments. Franchise fee payments to the municipality under
this provision shall be computed at the end of each calendar quarter
and shall be due and payable within 60 days after the end of each
calendar quarter. Specifically, payments shall be due and payable
on or before May 31 (for the first quarter), August 31 (for the second
quarter), November 30 (for the third quarter), and the last day of
February (for the fourth quarter) of each year. In the event that
any franchise fee payment is not made on or before the applicable
dates, then interest shall be added at the then-current prime rate
of the largest commercial bank in Carbon County plus three percentage
points. The interest rate shall be applied as described from the date
such franchise fee payment was originally due. No acceptance of any
payment shall be construed as an accord that the amount paid is in
fact the correct amount, nor shall acceptance of any payment be construed
as a release of any claim the municipality may have for additional
sums payable under this chapter.
C.
Quarterly reports. Each franchise fee payment shall be accompanied
by a written report containing an accurate statement of the cable
operator's gross revenues received for cable services for the
quarter in connection with the operation of the cable operator's
cable system and a brief report showing the basis for computation
of fees. The report shall contain a line item for every source of
revenue received and the amount of revenue received from each source.
The report shall be verified by a financial representative of the
cable operator.
D.
Audits. On an annual basis, upon 30 days' prior written notice, the
municipality shall have the right to conduct an independent audit
of the cable operator's records reasonably related to the sources,
amounts and computation of gross revenues in accordance with generally
accepted accounting principles. Any reproduction of such records for
purposes of inspection shall be performed at the cable operator's
expense. If the audit shows that franchise fees have been underpaid,
then the cable operator shall pay the underpaid amount plus interest
in the amount of the then-current prime rate of the largest bank in
Carbon County plus three percentage points. If franchise fees have
been underpaid by 5% or more, then the cable operator shall also pay
the total cost of the audit.
A.
Quarterly franchise fee report. In accordance with § 245-3C of this chapter, cable operator shall accompany each quarterly franchise fee payment with a written report containing an accurate statement of the cable operator's gross revenues received for the quarter in connection with the operation of the cable operator's cable system and a brief report showing the basis for computation of fees. The report shall contain a line item for every source of revenue received and the amount of revenue received from each source. The report shall be verified by a financial representative of the cable operator.
B.
Government reports. The cable operator shall provide to the municipality,
upon written request, copies of any reports, documents, and pleadings
which the cable operator has submitted to any federal, state or local
regulatory agencies, courts or other governmental bodies if such documents
relate directly to the cable operator's cable system within the
municipality. The cable operator shall provide copies of such documents
no later than 30 days after such written request.
A.
Violations.
(1)
If the municipality has reason to believe that the cable operator
violated any provision of this chapter, it shall notify the cable
operator in writing of the nature of such violation and the section
of this chapter that it believes has been violated. If the municipality
does not notify the cable operator of any violation of this chapter,
it shall not operate as a waiver of any rights of the municipality
hereunder or pursuant to applicable law.
(2)
The cable operator shall have 30 days to cure such violation after
written notice is received by taking appropriate steps to comply with
the terms of this chapter. If the nature of the violation is such
that, in the municipality's reasonable judgment, it cannot be
fully cured within 30 days due to circumstances outside of the cable
operator's control, the period of time in which the cable operator
must cure the violation may be extended by the municipality in writing
for such additional time necessary to complete the cure, provided
that the cable operator shall have promptly commenced to cure and
is diligently pursuing its efforts to cure in the reasonable judgment
of the municipality.
(3)
Should the cable operator dispute that a violation has in fact occurred,
then the cable operator must notify the municipality in writing of
such dispute within 10 days of receipt of the notice of violation
by the municipality. Such notice by the cable operator shall state
with particularity the matters disputed by the cable operator and
shall stay the running of the above-referenced time period. If the
cable operator disputes the violation as described above, then the
municipality shall conduct an administrative review of the dispute.
If, after the administrative review is concluded, the municipality
determines that a violation has in fact occurred, then the cable operator
shall have 30 days from the municipality's final determination
to cure the violation.
A.
Any person, partnership or corporation who or which has violated
the provisions of this chapter shall, upon being found liable therefore
in a civil proceeding, will pay a judgment of not less than $100 nor
more than $300 plus all court costs including reasonable attorney
fees incurred by the municipality as a result thereof.
B.
In addition to all other remedies provided herein, the municipality
may institute and maintain appropriate actions by law or in equity
to restrain, correct or abate violations, to recover damages and to
prevent illegal operations in violation of this chapter.
