This chapter shall be known and may be cited as the "Cecil County Cable Service Franchising Act" (this "chapter"). The purposes of this chapter are to: (i) establish the terms and conditions under which a grantee occupying the public rights-of-way must operate within Cecil County; (ii) provide for the payment of a franchise fee to the County for use of the public rights-of-way and other costs associated with administering and regulating cable service; and (iii) enhance the County's authority to grant a cable service franchise while managing the public rights-of-way.
As used in this chapter, the following terms shall have the meanings indicated. Words not defined shall be given their common and ordinary meaning.
Any person, including a nonprofit community access corporation, designated by the County to perform any or all of the following functions:
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; or
Each person, directly or indirectly, controlling, controlled by or under common management, common ownership or 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, directly or indirectly, a controlling interest in, being owned by or being under common ownership, common management or common control with a grantee.
A binding contract granting a cable service franchise pursuant to this chapter, and any amendments, exhibits or appendices thereto, containing the specific provisions of the cable service franchise granted, including references, specifications, requirements and other related matters.
Any service tier, which includes the retransmission or delivery of local television broadcast signals, origination channels and PEG access channels. In the event that the definition of "basic cable service" is amended by an act of the United States Congress, under the Cable Act or otherwise, then the definition under this section shall be amended to conform therewith.
The Cable Communications Policy Act of 1984, codified at Title VI of the Communications Act of 1934, 47 U.S.C. §§ 521 through 573, as amended by the Cable Television Consumer Protection and Competition Act of 1992 and the Telecommunications Act of 1996, and as may be amended from time to time.
The one-way transmission to subscribers of video programming or other programming services and subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service.
A system of poles, wires, cables, fibers, lines, underground conduits, converters, equipment, appliances and/or facilities designed, constructed or used for the purpose of producing, receiving, amplifying, transmitting and distributing radio, television, telephone, data and two-way interactive impulses and energy and other information, related services, products or matters to residential and commercial customers of a grantee 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 Chapter II of the Cable 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; 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 cable system. The foregoing definition of "cable system" shall not be deemed to circumscribe or limit the ability of the grantee to provide any other service over its facilities that may be permitted under applicable law or the authority of the County to regulate or franchise the activities of any such service to the maximum extent permitted by law. |
A portion of the electromagnetic frequency spectrum that is used in a cable system and which is capable of delivering a television channel (as a "television channel" is defined by the FCC).
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 any 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 a controlling interest, as used herein, may be held simultaneously by more than one person or entity.
An electronic tuning device which converts cable service signals into a signal that can be received and displayed on a subscriber's television set. While not an explicit part of signal conversion, many cable converter boxes include forms of descrambling to manage carrier-controlled access restriction to various channels.
Cecil County, Maryland, a body politic and corporate under the laws of the State of Maryland, and any agency or department thereof.
The administrative head of the County, or his/her designee, appointed by the County Executive.
[Amended 11-13-2012 by Ord. No. 2012-12]
The Federal Communications Commission and any legally appointed, designated or elected agent or successor.
A nonexclusive authorization, or renewal thereof, evidenced by a written franchise agreement, granted pursuant to this chapter and applicable law, to construct, operate and maintain a cable system and other services offered by a grantee from time to time within the public rights-of-way to provide cable service within all or a specified area of Cecil County. The term "franchise" includes a 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 Cecil County as required by applicable law, 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 public rights-of-way.
The geographic area within Cecil County that a grantee is authorized to serve by its franchise.
The fee imposed by the County pursuant to § A381-12 of this chapter. The term "franchise fee" does not include:
Any tax, fee or assessment of general applicability (including any such tax, fee or assessment imposed on both utilities and cable operators);
Capital costs that are required by a franchise agreement to be incurred by the cable operator for public, educational or governmental access facilities; or
Requirements or charges incidental to the awarding or enforcing of a franchise, including payments for bonds, security funds, letters of credit, insurance, indemnification, penalties or liquidated damages.
A person to whom or which a franchise is granted by the County pursuant to this chapter, along with the lawful successors or assigns of such person.
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 grantee, 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 any other cable service;
Installation, disconnection, reconnection, change-in-service and late fees;
Leased access channel fees; and
Revenues from rentals or sales of converters and/or other subscriber equipment.
Gross revenues shall not include:
To the extent consistent with generally accepted accounting principles, actual bad-debt write-offs;
Any taxes or fees, including the franchise fee, on services furnished by a grantee which are imposed directly on any subscriber or user by the state, the County or other governmental unit and which are collected by the grantee on behalf of said governmental unit.
All areas in Cecil County that will receive cable service initially, as set forth in a franchise agreement.
The connection of the system to subscribers' terminals, and the provision of cable service.
Any channel designated or dedicated for use by persons unaffiliated with a grantee.
Those hours during which businesses in Cecil County similar to a grantee are open to serve customers.
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. Conditions which are ordinarily within the control of a grantee include, but are not limited to, special promotions, pay-per-view events, rate increases, regular peak or seasonal demand periods and maintenance or upgrades of the cable system.
The complete loss of picture, sound or both on multiple channels from multiple programmers due to a common problem which affects multiple customers on the system.
A person authorized to administer or operate a PEG facility and shall include the County and the access manager. If several persons operate or share the same PEG facility, each person shall be considered a separate PEG access user.
Any natural person or any partnership, association, joint-stock company, joint venture, domestic or foreign corporation, stock or nonstock corporation, limited-liability company, professional limited-liability company, an organization or entity of any kind or any lawful successor thereto or transferee thereof. Such term does not include the County.
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, bridge, driveway, drive or easement now or hereafter held by the County for the purpose of public travel and shall include other similar 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.
The loss of either picture or sound or both, on one or more channels, affecting at least one subscriber on the system.
The State of Maryland.
Any person lawfully receiving cable service provided by a grantee by means of or in connection with the cable system, whether or not a fee is paid for such cable service, including such persons authorized to receive cable service without charge as provided for in a franchise agreement.
Any franchise granted by the County shall grant to a grantee the nonexclusive right and privilege to construct, erect, install, maintain or operate: (i) a cable system in, upon, along, across, above, over and under the public rights-of-way within Cecil County now in existence and as may be created or established during any franchise term; (ii) 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; and (iii) other services as may lawfully be allowed 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 the Cable Act) or to use publicly or privately owned conduits or any other public property without a separate agreement with the owner(s) thereof.
A.
Any person desiring an initial franchise for cable service or the renewal or modification of an existing franchise for cable service shall file a written application with the County. The application shall be in such form and under such terms and conditions as determined by the County.
B.
To be acceptable for filing, a signed original of the application shall be submitted together with sufficient copies required by the County. The application must be accompanied by any required application filing fee, conform to any applicable request for proposals and contain all required information. All applications shall include the names and addresses of persons authorized to act on behalf of all applicants with respect to the application.
C.
All applications accepted for filing shall be made available by the County for public inspection.
D.
A person may apply for an initial franchise by submitting an application containing, at a minimum, the following information:
(1)
Name and address of the applicant and identification of the ownership and control of the applicant, including:
(a)
The names and addresses of the 10 largest holders of an ownership interest in the applicant and affiliates of the applicant, and all persons with 5% or more ownership interest in the applicant and its affiliates;
(b)
The persons who control the applicant and its affiliates; and
(c)
All officers and directors of the applicant and its affiliates;
(2)
A demonstration of the applicant's technical ability to construct and/or operate the proposed cable system, including identification of key personnel;
(3)
A demonstration of the applicant's legal qualifications to construct and/or operate the proposed cable system;
(4)
A statement prepared by a certified public accountant regarding the applicant's financial ability to complete the construction and operation of the cable system proposed;
(5)
A description of the applicant's prior experience in cable system ownership, construction and operation and identification of communities in which the applicant or any of its principals have, or have had, a cable franchise or any interest therein;
(6)
Identification of the area of Cecil County to be served by the proposed cable system, including a description of the proposed franchise area's boundaries;
(7)
A detailed description of the physical facilities proposed, including channel capacity, technical design, performance characteristics, head end and access facilities;
(8)
Where applicable, a description of the construction of the proposed cable system, including an estimate of plant mileage and its location; the proposed construction schedule; a description, where appropriate, of how services will be converted from existing facilities to new facilities; and information on the availability of space in conduits, including, where appropriate, an estimate of the cost of any necessary rearrangement of existing facilities;
(9)
The proposed rate structure, including projected charges for each service, installation, converters and all other proposed equipment or service;
(10)
A demonstration of how the applicant will reasonably meet the future cable-related needs and interests of Cecil County, including descriptions of how the applicant will meet the needs described in any recent community needs assessment conducted by or for the County, and how the applicant will provide adequate PEG channel capacity, facilities or financial support to meet Cecil County's needs and interests;
(11)
Pro forma financial projection for the proposed franchise term, including a statement of projected income, and a schedule of planned capital additions, with all significant assumptions explained in notes or supporting schedules;
(12)
If the applicant proposes to provide cable service to an area already served by an existing grantee, the identification of the area where the overbuild would occur and the ability of the public rights-of-way and other property that would be used by the applicant to accommodate an additional cable system;
(13)
Any other information that may be reasonably necessary to demonstrate compliance with the requirements of this chapter;
(14)
Any additional information that the County may request of the applicant that is relevant to the County's consideration of the application; and
(15)
An affidavit or declaration of the applicant or authorized officer certifying the truth and accuracy of the information in the application, acknowledging the enforceability of application commitments and certifying that the application complies with applicable law.
| The County may, at its discretion and upon request of an applicant, waive in writing the provision of any of the information required by this section. |
E.
An applicant shall be notified of any public hearings held in connection with the evaluation of its application and shall be given an opportunity to be heard.
F.
A nonrefundable application fee shall accompany any initial franchise application, renewal application or modification application, unless otherwise stipulated by the County. The amount of the application fee shall be established by resolution of the County from time to time. In addition, the County may require an applicant to reimburse the County for its reasonable out-of-pocket expenses in considering the application, including attorney and consultant fees. Payments made by a grantee hereunder shall not be deemed to be franchise fees within the meaning of the Cable Act, and such payment shall not be deemed to be involuntary payment chargeable against, or part of, the compensation to be paid to the County by the grantee pursuant to § A381-12 of this chapter and applicable provisions of any franchise agreement. The purpose of the application fee is to cover costs incidental to processing and evaluating the application and/or enforcement of the franchise.
A.
A franchise and the rights, privileges and authority granted thereto shall take effect and be in force as set forth in the franchise agreement and shall continue in force and effect for a term of no longer than 15 years. Such franchise shall be nonexclusive and revocable.
B.
Within 30 days after the County's decision to grant a franchise, the intended grantee shall file with the County its unconditional acceptance of the franchise and its promise to comply with and abide by all its provisions, terms and conditions.
Franchise renewals shall be conducted in accordance with applicable law, including, but not limited to, the Cable Act, as amended. The County and a grantee, by mutual consent, may enter into renewal negotiations at any time during the term of a franchise agreement.
All notices, reports or demands required to be given in writing pursuant this chapter shall be delivered personally to the Director of Administration or his/her designee, if to the County, and to the person designated by the grantee in a franchise agreement, if to the grantee. A grantee shall maintain with the County, throughout the term of a franchise, an address for personal service and a central office to address any issues relating to a franchise operating under this chapter.
A.
In entering into a franchise agreement with the County, a grantee shall acknowledge that its rights thereunder are subject to the police powers of the County to adopt and enforce general public local laws pursuant to applicable law and necessary to the health, safety and welfare of the public. A grantee shall also agree to comply with all applicable laws enacted or adopted by the County pursuant to such power.
B.
Any conflict between the provisions of this chapter and any other present or future lawful exercise of the County's police powers shall be resolved in favor of the latter, except that any such exercise that is not of general application in Cecil County, or applies exclusively to a grantee or cable service, which contains provisions inconsistent with the grantee's franchise agreement, shall prevail only if upon such exercise the County finds an emergency exists constituting a danger to health, safety, property or general welfare or such exercise is mandated by law.
C.
In the event that the state or federal government discontinues preemption in any area of cable service over which it currently exercises jurisdiction in such manner as to expand rather than limit municipal regulatory authority, the County is authorized to adopt rules and regulations in such area(s) to the extent permitted by law.
