[R.O. 2008 § 650.010; Ord. No. 5765.1 § 1, 2-9-2012]
A.
To the extent permitted by the 2007 Video
Services Providers Act, the City Council of the City of O'Fallon hereby
ratifies all existing agreements, franchises, and ordinances regulating
cable television operators and other video service providers, including
the imposition of a franchise fee of five percent (5%) imposed on
the gross revenues of all such providers, and further declares that
such agreements, franchises, and ordinances shall continue in full
force and effect until expiration as provided therein, or until pre-empted
by the issuance of video service authorizations by the Missouri Public
Service Commission or otherwise by law, but only to the extent of
said pre-emption.
[R.O. 2008 § 650.020; Ord. No. 5765.1 § 1, 2-9-2012]
A.
FRANCHISE AREA
GROSS REVENUES
1.
2.
3.
4.
5.
6.
a.
b.
c.
d.
e.
f.
HOUSEHOLD
INCUMBENT CABLE OPERATOR
LOW INCOME HOUSEHOLD
PERSON
SUBSCRIBER
VIDEO SERVICE
VIDEO SERVICE AUTHORIZATION
VIDEO SERVICE NETWORK
VIDEO SERVICE PROVIDER OR PROVIDER
VIDEO SERVICE PROVIDER FEE
Definitions. The following terms shall
have the following meanings unless otherwise defined by context:
The total geographic area of the City authorized to be served
by an incumbent cable television operator or incumbent local exchange
carrier, or affiliate thereof.
The total amounts billed to subscribers or received from
advertisers for the provision of video services within the City, including:
Recurring charges for video service;
Event-based charges for video service,
including, but not limited to, pay-per-view and video-on-demand charges;
Rental of set top boxes and other
video service equipment;
Service charges related to the provision
of video service, including, but not limited to, activation, installation,
repair, and maintenance charges;
Administrative charges related to
the provision of video service, including, but not limited to, service
order and service termination charges; and
A pro rata portion of all revenue
derived, less refunds, rebates, or discounts, by a video service provider
for advertising over the video service network to subscribers, where
the numerator is the number of subscribers within the City and the
denominator is the total number of subscribers reached by such advertising;
but gross revenues do not include:
Discounts, refunds, and other price
adjustments that reduce the amount of compensation received by a video
service provider;
Uncollectibles;
Late payment fees;
Amounts billed to subscribers to
recover taxes, fees, or surcharges imposed on subscribers or video
service providers in connection with the provision of video services,
including the video service provider fee authorized herein;
Fees or other contributions for PEG
or I-Net support; or
Charges for services other than video
service that are aggregated or bundled with amounts billed to subscribers,
provided the video service provider can reasonably identify such charges
on books and records kept in the regular course of business or by
other reasonable means. Except with respect to the exclusion of the
video service provider fee, gross revenues shall be computed in accordance
with generally accepted accounting principles.
An apartment, a house, a mobile home, or any other structure
or part of a structure intended for residential occupancy as separate
living quarters.
The video service provider(s) serving video subscribers within
the City of O'Fallon, Missouri, prior to the effective date of this
Chapter.
A household with an average annual household income of less
than thirty-five thousand dollars ($35,000.00) as determined by the
most recent decennial census.
An individual, partnership, association, organization, corporation,
trust, or government entity.
Any person who receives video services in the franchise area.
The provision of video programming provided through wireline
facilities, without regard to delivery technology, including Internet
protocol technology, whether provided as part of a tier, on demand,
or a per-channel basis, including cable service as defined by 47 U.S.C. § 522(6),
but excluding video programming provided by a commercial mobile service
provider defined in 47 U.S.C. § 332(d), or any video programming
provided solely as part of and via a service that enables users to
access content, information, electronic mail, or other services offered
over the public Internet.
The right of a video service provider or an incumbent cable
operator that secures permission from the Missouri Public Service
Commission pursuant to Sections 67.2675 to 67.2714, RSMo., to offer
video service to subscribers.
Wireline facilities, or any component thereof, that deliver
video service, without regard to delivery technology, including Internet
protocol technology or any successor technology. The term "video service
network" shall include cable television systems.
Any person authorized to distribute video service through
a video service network pursuant to a video service authorization.
The fee imposed under Section 650.020(C)(1) hereof.
B.
General Regulations.
1.
A video service provider shall provide
written notice to the City at least ten (10) days before commencing
video service within the City. Such notice shall also include:
a.
The name, address and legal status
of the provider;
b.
The name, title, address, telephone
number, e-mail address, and fax number of individual(s) authorized
to serve as the point of contact between the City and the provider
so as to make contact possible at any time [i.e., twenty-four (24)
hours per day, seven (7) days per week]; and
c.
A copy of the provider's video service
authorization issued by the Missouri Public Service Commission.
3.
A video service provider shall not
deny access to service to any group of potential residential subscribers
because of the race or income of the residents in the area in which
the group resides. A video service provider shall be governed in this
respect by Section 67.2707, RSMo. The City may file a complaint in
a court of competent jurisdiction alleging a germane violation of
this Subsection, which complaint shall be acted upon in accordance
with Section 67.2711, RSMo.
4.
A video service provider shall comply
with all Federal Communications Commission requirements involving
the distribution and notification of emergency messages over the emergency
alert system applicable to cable operators.
5.
A video service provider shall, at
its sole cost and expense, indemnify, hold harmless, and defend the
City, its officials, boards, board members, commissions, commissioners,
agents, and employees against any and all claims, suits, causes of
action, proceedings, and judgments ("claims") for damages or equitable
relief arising out of (i) the construction, maintenance, repair or
operation of its video services network, (ii) copyright infringements,
and (iii) failure to secure consents from the owners, authorized distributors,
or licenses or programs to be delivered by the video service network.
Such indemnification shall include, but is not limited to, the City's
reasonable attorneys' fees incurred in defending against any such
claim prior to the video service provider assuming such defense. The
City shall notify the provider of a claim within seven (7) business
days of its actual knowledge of the existence of such claim. Once
the provider assumes the defense of the claim, the City may at its
option continue to participate in the defense at its own expense.
This indemnification obligation shall not apply to any claim related
to the provision of public, educational, or governmental channels
or programming or to emergency interrupt service announcements.
C.
Video Service Provider Fee.
1.
Each video service provider shall
pay to the City, for the use of the City's right-of-way and other
facilities, a video service provider fee in the amount of five percent
(5%) of the provider's gross revenues on or before the last day of
the month following the end of each calendar quarter. The City may
adjust the video service provider fee as permitted in Section 67.2689,
RSMo.
2.
A video service provider may identify
and pass through on a proportionate basis the video service provider
fee as a separate line item on subscribers' bills.
3.
The City, not more than once per
calendar year and at its own cost, may audit the gross revenues of
any video service provider as provided in Section 67.2691, RSMo. A
video service provider shall make available for inspection all records
pertaining to gross revenues at the location where such records are
kept in the normal course of business.
D.
Customer Service Regulations.
1.
NORMAL BUSINESS HOURS
NORMAL OPERATING CONDITIONS
SERVICE INTERRUPTION
For purposes of this Subsection,
the following terms shall mean:
Those hours during which most similar businesses in the community
are open to serve customers. In all cases the term normal business
hours must include some evening hours at least one (1) night per week
or some weekend hours;
Those service conditions which are within the control of
the video service provider. Those conditions which are not within
the control of the video service provider 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 video service provider
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 video system.
The loss of picture or sound on one (1) or more video channels.
2.
All video service providers shall
adopt and abide by the following minimum customer service requirements.
a.
Video service providers shall maintain
a local, toll-free or collect call telephone access line which may
be available to subscribers twenty-four (24) hours a day, seven (7)
days a week.
b.
Video service providers shall have
trained company representatives available to respond to customer telephone
inquiries during normal business hours. After normal business hours,
the access line may be answered by a service or an automated response
system, including an answering machine. Inquiries received after normal
business hours shall be responded to, by a trained company representative,
on the next business day.
c.
Under normal operating conditions,
telephone answer time by a customer representative, including wait
time, shall not exceed thirty (30) seconds when the connection is
made. If the call needs to be transferred, transfer time shall not
exceed thirty (30) seconds. These standards shall be met no less than
ninety percent (90%) of the time under normal operating conditions,
measured on a quarterly basis.
d.
Under normal operating conditions,
the customer will receive a busy signal less than three percent (3%)
of the time.
e.
Customer service centers and bill
payment locations shall be open at least during normal business hours
and shall be conveniently located.
f.
Under normal operating conditions,
each of the following standards shall be met no less than ninety-five
percent (95%) of the time measured on a quarterly basis:
(1)
Standard installations
shall be performed within seven (7) business days after an order has
been placed. "Standard" installations are those that are located up
to one hundred twenty-five (125) feet from the existing distribution
system.
(2)
Excluding conditions
beyond the control of the video service provider, the video service
provider shall begin working on "service interruptions" promptly and
in no event later than twenty-four (24) hours after the interruption
becomes known. The video service provider must begin actions to correct
other service problems the next business day after notification of
the service problem.
(3)
The "appointment window"
alternatives for installations, service calls, and other installation
activities will be either a specific time or, at maximum, a four-hour
time block during normal business hours. The operator may schedule
service calls and other installation activities outside of normal
business hours for the express convenience of the customer.
(4)
A video service provider
shall not cancel an appointment with a customer after the close of
business on the business day prior to the scheduled appointment.
(5)
If a video service provider's
representative is running late for an appointment with a customer
and will not be able to keep the appointment as scheduled, the customer
must be contacted. The appointment shall be rescheduled, as necessary,
at a time convenient for the customer.
h.
Credits for service shall be issued
no later than the customer's next billing cycle following the determination
that a credit is warranted.
i.
Video service providers shall not
disclose the name or address of a subscriber for commercial gain to
be used in mailing lists or for other commercial purposes not reasonably
related to the conduct of the businesses of the video service provider
or its affiliates, as required under 47 U.S.C. § 551, including
all notice requirements. Video service providers shall provide an
address and telephone number for a local subscriber to use without
toll charge to prevent disclosure of the subscriber's name or address.
3.
As required by Section 67.2692, RSMo., Subsection (D)(2) of Section 650.020 shall be enforced only as follows:
a.
Each video service provider shall
implement an informal process for handling inquiries from the City
and customers concerning billing issues, service issues, and other
complaints. If an issue is not resolved through this informal process,
the City may request a confidential non-binding mediation with the
video service provider, with the costs of such mediation to be shared
equally between the City and the video service provider.
b.
In the case of repeated, willful,
and material violations of the provisions of this Section by a video
service provider, the City may file a complaint on behalf of a resident
harmed by such violations with Missouri's Administrative Hearing Commission
seeking an order revoking the video service provider's Public Service
Commission authorization. The City or a video service provider may
appeal any determination made by the Administrative Hearing Commission
under this Section to a court of competent jurisdiction, which shall
have the power to review the decision de novo. The City shall not
file a complaint seeking revocation unless the video service provider
has been given sixty (60) days' notice to cure alleged breaches but
has failed to do so.
E.
Public, Educational, And Government Access
Programming.
1.
Each video service provider shall
designate the same number of channels for non-commercial public, educational,
or governmental ("PEG") used as designated by the incumbent cable
operator as of the effective date of this Chapter.
2.
Any PEG channel that is not substantially
utilized by the City may be reclaimed and programmed by the video
service provider at the provider's discretion. If the City finds and
certifies that a channel that has been reclaimed by a video service
provider will be substantially utilized, the video service provider
shall restore the reclaimed channel within one hundred twenty (120)
days. A PEG channel shall be considered "substantially utilized" when
forty (40) hours per week are locally programmed on that channel for
at least three (3) consecutive months. In determining whether a PEG
channel is substantially utilized, a program may be counted not more
than four (4) times during a calendar week.
3.
The operation of any PEG access channel
and the production of any programming that appears on each such channel
shall be the sole responsibility of the City or its duly appointed
agent receiving the benefit of such channel, and the video service
provider shall bear only the responsibility for the transmission of
the programming on each such channel to subscribers. The City must
deliver and submit to the video service provider all transmissions
of PEG content and programming in a manner or form that is capable
of being accepted and transmitted by such video service provider over
its network without further alteration or change in the content or
transmission signal. Such content and programming must be compatible
with the technology or protocol utilized by the video service provider
to deliver its video services. The video service provider shall cooperate
with the City to allow the City to achieve such compatibility.
4.
The City shall make the programming
of any PEG access channel available to all video service providers
in a non-discriminatory manner. Each video service provider shall
be responsible for providing the connectivity to the City's or its
duly appointed agent's PEG access channel distribution points existing
as of the effective date of this Chapter. Where technically necessary
and feasible, video service providers shall use reasonable efforts
and shall negotiate in good faith to interconnect their video service
networks on mutually acceptable rates, terms, and conditions for the
purpose of transmitting PEG programming. A video service provider
shall have no obligation to provide such interconnection to a new
video service provider at more than one (1) point per headend, regardless
of the number of political subdivisions served by such headend. The
video service provider requesting interconnection shall be responsible
for any costs associated with such interconnection, including signal
transmission from the origination point to the point of interconnection.
Interconnection may be accomplished by direct cable microwave link,
satellite, or other reasonable method of connection acceptable to
the person providing the interconnect.
5.
A video service provider may identify
and pass through as a separate line item on subscribers' bills the
value of monetary and other PEG access support on a proportionate
basis.
F.
Compliance With Other Regulations. All
video service providers shall comply with all other applicable laws
and regulations.