[Ord. No. 5045 § 1, 8-14-2008]
For the purposes of this Chapter,
the following words and phrases shall have the meanings respectively
ascribed to them by this Section:
The availability for use by various agencies, institutions,
organizations, groups and individuals in the community, including
City and its designees, of a video service network to acquire, create,
receive and/or distribute video service and/or other services and
signals as permitted under applicable law, including but not limited
to:
Public access, which shall mean access
where community-based organizations, groups or individual members
of the general public, on a non-commercial, non-discriminatory basis,
are the primary users.
Educational access, which shall mean
access where schools are the primary users having editorial control
over programming and services.
Government access, which shall mean
access where governmental institutions or their designees are the
primary users having editorial control over programming and services;
and
PEG access, which shall mean public
access, educational access, and government access, collectively.
Any channel, or portion thereof, designated for access purposes
or otherwise made available to facilitate or transmit access programming
or services.
Any video service provided by a video service provider over
its video service network for which a special charge is made based
on program or service content, time or spectrum space usage.
Any entity controlling, controlled by, or under common ownership
or control with a video service provider which directs, or has the
power to direct, the management and policies of a video service provider,
whether through the ownership of voting securities or other equity
interest, by contract or otherwise.
The Board of Aldermen of the City or its legally appointed
designee.
The Communications Act of 1934, as presently amended, including
amendments enacted in the Cable Communications Policy Act of 1984,
the Cable Consumer Protection and Competition Act of 1992 and the
Telecommunications Act of 1996.
Means "cable operator" as defined in 47 U.S.C. Section 522(5).
The one-way transmission to subscribers
of (i) video programming, or (ii) other programming services; and
Subscriber interaction, if any, which
is required for the selection or use of such video programming or
other programming service. By way of example and not limitation, Internet
access and service, cable modem service, and high speed data service
provided over a cable system shall be a cable service to the extent
permitted under applicable law.
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 City, but
such term does not include:
A facility that serves only to retransmit
the television signals of one (1) or more television broadcast stations;
A facility that serves subscribers
without using any public rights-of-way and without connecting to a
facility that uses the 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 of 1934, except that such facility shall be
considered a cable system if such facility is used in the transmission
of video programming directly to subscribers;
An open video system that complies
with 47 U.S.C. Sections 522(7) and 573;
Any facilities of any electric utility
used solely for operating its electric utility system.
|
A reference to a cable system refers
to any part thereof including, without limitation, converters. The
foregoing definition of "cable system" shall not be deemed to circumscribe
or limit the valid authority of the City to regulate or franchise
the activities of any other communications system or provider of communications
services to the full extent permitted by law. Any franchise granted
shall define the services any grantee is authorized to use the public
rights-of-way to provide.
|
A band of frequencies, six (6) megahertz wide in the electromagnetic
spectrum, which is capable of carrying either one (1) standard analog
audio-video television signal, a number of audio, digital or other
non-video signals, or some combination of such signals.
The Federal Communications Commission and any legally appointed
or elected successor.
An initial authorization, or renewal of an authorization,
issued by the City, regardless of whether the authorization is designated
as a franchise, permit, license, resolution, contract, certificate,
agreement or otherwise, that authorizes the provision of video service
and any affiliated or subsidiary agreements related to such authorization.
Any such authorizations, in whatever form granted, shall not mean
and include any license or permit required for the privilege of transacting
and carrying on a business within the City as required by other ordinances
and laws of the City.
An agreement entered into pursuant to this Chapter between
the City and a cable operator that sets forth, subject to this Chapter,
the terms and conditions under which a franchise granted prior to
August 28, 2007 is continued.
The total geographic area authorized to be served by an incumbent
cable operator in the City as of August 28, 2007 or, in the case of
an incumbent local exchange carrier, as such term is defined in 47
U.S.C. Section 251(h), or affiliate thereof, the area within the City
in which such carrier provides telephone exchange service.
Includes all charges imposed by the City as a video service
provider fee.
Means limited to amounts billed to
video service subscribers or received from advertisers for the following:
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 within
the franchise area or the corporate boundaries of the City, where
the numerator is the number of subscribers within such area, and the
denominator is the total number of subscribers reached by such advertising.
Gross revenues do not include:
Discounts, refunds and other price
adjustments that reduce the amount of compensation received by an
entity holding a video service authorization or cable franchise;
Uncollectibles;
Late payment fees;
Amounts billed to video service subscribers
to recover taxes, fees or surcharges imposed on video service subscribers
or video service providers in connection with the provision of video
services, including the video service provider fee authorized by this
Chapter;
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 video
service subscribers, if the entity holding a video service authorization
reasonably can 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 cable service provider serving cable subscribers in a
particular franchise area on September 1,2007.
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.
The area of real property in which the City has a dedicated
or acquired right-of-way interest in the real property, including
the area on, below or above the present and future streets, alleys,
avenues, roads, highways, parkways or boulevards dedicated or acquired
as right-of-way and utility easements dedicated for compatible uses.
The term does not include the airwaves above a right-of-way with regard
to wireless telecommunications or other non-wire telecommunications
or broadcast service.
Any accredited educational institution, public or independent,
including primary and secondary schools, and community colleges (excluding
living facilities).
Except as otherwise set forth in a franchise agreement, written
notice addressed to a video service provider at its principal office
in the City or such other office as such provider has designated to
the City as the address to which notice should be transmitted to it,
which notice shall be given not less than four (4) days prior to that
day in which the party giving such notice shall commence any action
which requires the giving of notice. In computing such four (4) days,
Saturdays, Sundays and holidays recognized by the City shall be excluded.
Includes any sale, exchange, barter or offer for sale.
Any person who or which elects to subscribe to, for any purpose,
video services provided by a video services provider by means of or
in connection with a video services network and whose premises are
physically wired and lawfully activated to receive video services
from a provider's network.
Any transaction in which:
Any ownership or other right, title
or interest in a franchise or its cable system is transferred, sold,
assigned, leased, sublet or mortgaged, directly or indirectly, in
whole or in part; or
There is any change, acquisition
or transfer of control of a franchise holder; or
The rights and/or obligations held
by a franchise holder under the franchise are transferred, directly
or indirectly, to another party; or
Any change or substitution occurs
in the managing general partners of a franchise holder, where applicable;
or
A franchise holder, or its corporate
parents at any level, enter into any transaction that materially increases
the debt that is to be borne by the cable system directly or indirectly
in a manner that may adversely affect cable system rates or services;
or
Any assets or property of a franchise
holder used or held in connection with a cable system are subjected
to any lien, mortgage, lease or security interest.
|
"Control" or the transfer of or acquisition
of "control of a franchise holder" shall mean any change in the identity
of the entities, individuals or group which directs, or has the power
to direct, the management and policies of a franchise holder, whether
through the ownership of voting securities or other equity interest,
by contract or otherwise. Without limiting the generality of the foregoing,
for the purposes hereof, such a change shall be deemed to have occurred
at any point in time when there is:
| |
|
1.
|
A change in working or effective
voting control, in whatever manner effectuated, of a franchise holder;
|
|
2.
|
An agreement of the holders of voting
stock or rights of a franchise holder which effectively vests or assigns
policy decision-making in any person or entity other than a franchise
holder;
|
|
3.
|
A sale, assignment or transfer of
any shares or interest in a franchise holder which results in a change
in the control of such holder; or
|
|
4.
|
MM Docket 92-264, 8 FCC Rcd 6828 (1993) at paragraphs 22directly or indirectly controls the holder occurs of a nature that would be required to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A promulgated under the Securities Exchange Act of 1934, as amended. A transfer or acquisition of less than control of a franchise holder or of any entity, at any tier or level, which directly or indirectly controls such holder, shall not require the prior written consent of City. Control (and its variants) shall mean effective control, by whatever means exercised, such as those described in Report and Order and Further Notice of Proposed Rule Making in MM Docket 92-264, 8 FCC Rcd 6828 (1993) at paragraphs 22 — 28 (adopting broadcast transfer of control standards as then in effect) and in Part 11 hereof.
|
|
A rebuttable presumption that a transfer
of control has occurred shall arise upon the acquisition or accumulation
of ten percent (10%) or more of the ownership of a franchise holder
by any person or group of persons acting in concert, none of whom
already own or control fifty percent (50%) or more of such right or
control, singularly or collectively.
| |
Programming provided by, or generally considered comparable
to programming provided by, a television broadcast station as set
forth in 47 U.S.C. Section 522(20).
The provision of video programming provided through wireline
facilities located at least in part in the public right-of-way without
regard to delivery technology, including Internet protocol technology
whether provided as part of a tier, on demand or a per channel basis.
This definition includes cable service as defined by 47 U.S.C. Section
522(6), but does not include any video programming provided by a commercial
mobile service provider defined in 47 U.S.C. Section 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 Public Service Commission
pursuant to Sections 67.2675 to 67.2714, RSMo., to offer video service
to subscribers in the City.
Wireline facilities, or any component thereof, located at
least in part in the public right-of-way 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 systems.
Any person that distributes video service through a video
service network pursuant to a video service authorization.
The fee imposed under Section 635.040.
[Ord. No. 5045 § 1, 8-14-2008]
This Chapter shall be amended where
necessary to conform to all amendments to Part 76 of the rules and
regulations of the Federal Communications Commission within twelve
(12) months of the order of such amendments.
[Ord. No. 5045 § 1, 8-14-2008]
A.
The City shall exercise the maximum authority
to regulate video service networks and franchises as may now or hereafter
be lawfully permissible. Except where rights are expressly waived
by a franchise agreement, they are reserved, whether expressly enumerated
or not.
B.
The City may, from time to time, enact
such reasonable rules and regulations concerning video service networks
as are consistent with applicable law.
[Ord. No. 5045 § 1, 8-14-2008]
The provisions of this Chapter and
any franchise granted heretofore granted by the City shall be liberally
construed in favor of the City.
