[Ord. No. 1681 §1(1.1), 12-17-2001]
A.
The City
hereby declares as a legislative finding that the rights-of-way within
Lake Saint Louis:
1.
Are
a unique and physically limited resource;
2.
Are
critical to the travel and transport of persons and property in the
City; and
3.
Are
intended for public uses and must be managed and controlled consistent
with that intent; and can be partially occupied by the facilities
of utilities and public service entities to the enhancement of the
health, welfare, and general economic well-being of the City and its
citizens; and require adoption of the specific additional regulations
established by this Code to ensure coordination of users, maximize
available space, reduce maintenance and costs to the public, and facilitate
entry of a maximum number of providers of cable communications and
other services in the public interest.
[Ord. No. 1681 §1(1.2), 12-17-2001]
This Chapter may be referred to and cited as the "Communications
and Cable Services Code" or herein as the "Code" of the City of Lake Saint Louis.
[Ord. No. 1681 §1(1.3), 12-17-2001; Ord. No. 1981 §1, 2-17-2004]
The requirements of this Code shall apply to the full extent
of the terms herein and shall be limited in scope or application only
to the extent as may be required by applicable Federal or State law,
including such changes in applicable law as may be hereinafter enacted.
No provisions of this Code shall be disregarded pursuant to this Subsection
except on express application to and determination by the City to
such effect based on the specific factual circumstances demonstrated.
The provisions of this Code shall be deemed incorporated in each franchise
or agreement granted. Nothing in this Code shall be interpreted to
unilaterally deprive any person of any rights or obligations imposed
by any binding and existing valid franchise or contract during the
term thereof and shall impose obligations on any such person additional
to those included in such franchise or contract only to the extent
permitted by law; provided that the failure of the City to enforce
any provision herein or the failure of any person to comply with any
provisions herein shall not be a waiver of the City's right to enforce
such provisions nor shall it in any way constitute evidence or agreement
by the City that such person has a valid existing franchise or agreement.
The provisions of this Code shall apply irrespective of whether a
provider is operating pursuant to a valid franchise or agreement.
[Ord. No. 1681 §1(1.4), 12-17-2001]
Any rights granted pursuant to this Code and pursuant to any
franchise or agreement authorized hereunder are subject to the authority
of the City to adopt and enforce ordinances necessary to the health,
safety and welfare of the public. Providers shall be subject to and
comply with all applicable Laws enacted by the City pursuant to its
statutory powers to the extent not in conflict with Missouri or Federal
law. Nothing in this Code shall be deemed to waive a right, if any,
that any party may have to seek judicial or regulatory review as to
the provisions herein or as to actions of the parties under applicable
Federal, State or local law currently in effect or as may hereinafter
be amended.
[Ord. No. 1681 §1(1.5), 12-17-2001]
Certain information required to be filed with the City pursuant to this Code is subject to inspection and copying by the public pursuant to the provisions of the Missouri Open Records Act, Section 610.010, et seq., RSMo. Notwithstanding any ordinance or provision to the contrary, the City may disclose any proposed or existing facilities locations of provider as deemed in the public interest and as may be established by City policy establishing requirements for notification and/or joint installation of facilities.
[Ord. No. 1681 §1(1.6), 12-17-2001]
As a condition of use of the rights-of-way, provider at its
sole cost and expense shall indemnify, protect, defend (with counsel
acceptable to the City) and hold harmless the City, its elected officials,
officers, employees and agents from and against any and all claims,
demands, losses, damages, liabilities, fines, charges, penalties,
administrative and judicial proceedings and orders, judgments, remedial
actions of any kind and all costs and expenses of any kind including,
without limitation, reasonable attorney's fees and costs of defense
arising, directly or indirectly, in whole or in part, out of the fact
that the City approved an agreement or franchise with provider, the
rights granted to provider or the activities performed, or failed
to be performed, by provider under the agreement or use of the rights-of-way,
or otherwise, except to the extent arising from or caused by the sole
or gross negligence or willful misconduct of the City, its elected
officials, officers, employees, agents or contractors. This indemnification
shall survive the expiration or termination of any agreement or use
of the rights-of-way for a period of five (5) years after the effective
date of expiration or termination.
[Ord. No. 1681 §1(1.7), 12-17-2001]
In performing activities and exercising its rights and obligations
under any agreement or franchise, the provider shall comply with all
applicable Federal, State and local laws, ordinances, regulations
and policies including, but not limited to, all laws, ordinances,
regulations and policies relating to construction and use of public
property.
[Ord. No. 1681 §1(1.8), 12-17-2001]
The City shall be entitled to enforce this Code and any agreement
or franchise through all remedies lawfully available, and provider
shall pay City its costs of enforcement, including reasonable attorneys'
fees, in the event that provider is determined judicially to have
violated the terms of this Code or any agreement or franchise.
[Ord. No. 1681 §1(1.9), 12-17-2001]
Under no circumstances shall any agreement or franchise authorized
by this Code be construed to create any relationship of agency, partnership,
joint venture or employment between the parties.
[Ord. No. 1681 §1(1.10), 12-17-2001; Ord. No. 1981 §1, 2-17-2004]
For purposes of this Code, the following terms, phrases, words
and their derivatives shall have the meanings set forth in this Section,
unless the context clearly indicates that another meaning is intended.
Words used in the present tense include the future tense, words in
the single number include the plural number, and words in the plural
number include the singular. The words "shall" and "will" are mandatory, and "may" is permissive.
Words not defined shall be given their common and ordinary meaning.
A person who owns or controls, is owned or controlled by
or under common control with the licensee.
A communications rights-of-way use agreement authorized herein
and executed by the City and licensee.
Any device that transmits and/or receives radio waves for
voice, data or video communications purposes including, but not limited
to, television, AM/FM radio, microwave, cellular telephone and similar
forms of communications. A combination of panels, boxes or other antenna
physically connected and designed in conjunction to receive signals
at one (1) location in the system shall be considered one (1) antenna.
Any cable service tier that includes the lawful retransmission
of local television broadcast signals and any public, educational
and governmental access programming required by this Chapter to be
carried on the basic tier. Basic Cable Service as defined herein shall
be consistent with 47 U.S.C. Section 543(b)(7), 1997.
The Cable Communications Policy Act of 1984, Pub. L. No.
98-549 (codified at 47 U.S.C. Sections 521 — 611 (1982 and Supp.
V, 1987)) as amended by the Cable Television Consumer Protection and
Competition Act of 1992, Pub. L. No. 102-385 and the Telecommunications
Act of 1996, Pub. L. No. 104-104 (1996) as it may, from time to time,
be amended.
The offering of direct access by a cable license to the international
computer network of both Federal and non-Federal interoperable packet
switched data networks to customers for a fee. For purposes of an
agreement, "cable internet service" shall mean the
direct access to the internet provided to customers over the cable
system and shall include the provision of incidental services or revenues
that are required by law to be treated under the same regulation as
such direct access service. Except as may be otherwise required by
applicable law or a binding provision of a franchise issued by the
City prior to the effective date of this Code, a provider receiving
revenue from cable internet service shall include such revenue in
the calculation of gross receipts from communication services and
shall be required to have a communications agreement with the City
governing the use of the rights-of-way for such purpose. Except as
may lawfully be required by the City or otherwise dictated by applicable
law, all agreements or franchises granted hereinafter shall authorize
use of the rights-of-way for cable internet service only pursuant
to a communications use agreement. All prior payments to the City
attributable to such cable internet service under a cable franchise
shall be irrefutably deemed to be lawful compensation for the past
use prospectively paid under any new communications agreement, irrespective
of any rates or terms required for any future use under any new communications
agreement.
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 franchise
area, 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;
A facility of a common carrier which is subject, in whole or
in part, to the provisions of 47 U.S.C. Sections 201 — 226,
except that such facility shall be considered a cable system, other
than for purposes of 47 U.S.C. Sections 541(c), to the extent 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;
An open video system that complies with Section 653 of the Cable
Act; or
Any facility of any electric utility used solely for operating
its electric utility system.
Costs associated with the purchase of assets, products or
other resources that will provide service for more than one (1) year
but shall not have any meaning inconsistent with generally accepted
accounting principles.
A portion of the electromagnetic frequency spectrum which
is used in a cable system and which is capable of carrying one (1)
industry standard video signal, in either analog or digital form.
At the time of the passage of this Chapter, analog standard channel
is defined as 6 MHz.
The City of Lake Saint Louis, Missouri.
This "Communications and Cable Services Code" and all provisions
therein established by this Chapter.
The shared use of facilities including, but not limited to,
the placement of conduit owned by more than one (1) rights-of-way
user in the same trench or boring and the placement of equipment owned
by more than one (1) user in the same or connected conduit. Collocation
does not include interconnection of facilities or the sale or purchase
of capacity, whether bundled or unbundled.
The transmission via the facilities, in whole or in part,
between or among points specified by the user of information of the
user's choosing (e.g., data, video, voice), without change in the
form or content of the information as sent and received, regardless
of the statutory or regulatory scheme to which such transmissions
may be subject.
The transmission via facilities, in whole or in part, of
any writings, signs, signals, pictures, sounds or other forms of intelligence
through wire, wireless or other means including, but not limited to,
any "telecommunications service", "enhanced service", "information
service", "internet service" or "cable internet service" as such terms
are now, or may in the future be, defined under Federal law and including
all instrumentalities, facilities, conduit, apparatus ("communications
facilities") and services (among other things, the receipt, forwarding
and delivery of telecommunications) incidental to or designed to directly
or indirectly facilitate or accept such transmission. This term does
not include "cable television service", but these services shall be
subject to separate cable franchising requirements and application.
Any oral, written or electronic inquiry, allegation or assertion
made by a person regarding cable service or cable system operations.
An electronic device that changes the frequency of a signal.
A subscriber converter may expand reception capacity and/or unscramble
coded signals distributed over the cable system.
The costs actually incurred by a cable provider in meeting
an obligation under its franchise which the provider would not otherwise
have incurred in order to either operate and conduct the business
of its cable system or meet another obligation of the franchise.
The cable or cables that connect the ground block on the
cable subscriber's property to the nearest feasible point on the cable
system in order to receive cable service.
Any portion of a system located in, along, over, upon, under
or through the rights-of-way.
The rights and obligations extended by the City to a person
to own, lease, construct, maintain or operate a cable system in the
rights-of-way within the franchise area for the purpose of providing
cable services. Any such authorization, in whatever form granted,
shall not mean or include:
Any other permit or authorization required for the privilege
of transacting and carrying on a business within the City required
by the ordinances and laws of the City, including the provision of
communications services.
Any permit, agreement or authorization required in connection
with operations in the rights-of-way including, without limitation,
permits and agreements for placing devices on or in poles, conduits
or other structures, whether owned by the City or a private entity,
or for excavating or performing other work in or along the rights-of-way.
Unless otherwise specified in the applicable franchise, means
the entire geographic area within the City as it is now constituted
or may in the future be constituted.
Any tax, fee or assessment of any kind imposed by the City
or other governmental entity on a cable service provider or its cable
subscribers, or both, solely because of their status and activities
as such pursuant to this Code. The term "franchise fee" does not include:
Tax, fee or assessment of general applicability (including any
such tax, fee or assessment imposed on both utilities and cable operators
or their cable services but not including a tax, fee or assessment
that is unduly discriminatory against cable service providers or cable
subscribers);
Capital costs that are required by a cable franchise to be incurred
by a grantee for public, educational or governmental ("PEG") access
facilities;
Requirements or charges incidental to the award or enforcement
of a cable franchise, including payments for bonds, security funds,
letters of credit, insurance, indemnification, penalties or liquidated
damages;
Any permit fee or other fee imposed under any valid right-of-way
ordinance; or
Any fee imposed under Title 17 of the United States Code.
The Mayor and Board of Aldermen of the City of Lake Saint
Louis, Missouri.
A person who is granted a cable franchise and that person's
agents, employees, lawful successors, transferees or assignees.
All revenues received directly or indirectly by a licensee
or its affiliates for services originating, terminating or otherwise
rendered within the corporate limits of the City and all revenue derived
from the use of the communications services facilities to the extent
permitted by law.
Any revenue actually received by a grantee, or by any other
entity that is a cable operator on a grantee's cable system including
the grantee's affiliates, from the operation of the grantee's cable
system to provide cable services. By way of illustration and not limitation,
this definition would include revenue derived from pay cable fees,
installation and reconnection fees, leased channel access fees; converter
rentals; revenue from cable internet service (unless it is determined
by applicable law that it is not a cable service); revenue from home
shopping to the extent conducted through a cable service; all cable
service lease payments from the cable system; payments or other consideration
received by the grantee from programmers for carriage of programming
on the cable system and accounted for as revenue under generally accepted
accounting principles ("GAAP"); advertising revenues; revenues from
data transmissions to the extent these transmissions are considered
cable services under Federal law; payments or other consideration
received by the grantee for the use of the cable system to provide
cable service and accounted for as revenue under GAAP. "Gross
revenues" shall include revenue received by any entity other
than the grantee where necessary to prevent evasion or avoidance of
the obligations under this Code or a franchise to pay the applicable
franchise fees. Revenues which are not directly attributable to specific
cable subscribers, including, but not limited to, leased access fees,
advertising revenues, and home shopping commissions, shall be allocated
among the franchising jurisdictions served by the grantee's cable
system on a per subscriber or other equitable basis measured in a
consistent manner from period to period. "Gross revenues" shall not include:
To the extent consistent with GAAP, bad debt; provided however,
that all or part of any such bad debt that is written off but subsequently
collected shall be included in gross revenues in the period collected;
Amounts collected from cable subscribers for public, educational
and governmental access, provided however, this exclusion does not
limit a grantee's ability to pass through franchise related costs
to the extent allowed by applicable law;
Any taxes on cable services furnished by grantee which are imposed
directly upon any subscriber or user by the State, City or other governmental
unit and which are collected by grantee on behalf of said governmental
unit; or
Franchise fees collected from cable subscribers.
A communication network which is constructed or operated
by grantee and which is generally available only to cable subscribers
who are not residential subscribers. The I-Net shall consist of capacity,
fibers or both, from both within the primary cable network and/or
separately constructed networks that may be dedicated to governmental,
educational and other publicly funded users for two-way, broadband
communications. The I-Net includes all equipment and maintenance of
equipment required to make the capacity available including, but not
limited to, fiber and coaxial cable, cable modems, switching, routing,
transmitting and receiving necessary for the use of the network as
set out in the individual cable franchise.
The provision of an I-Net by a cable system operator to governmental,
educational and other non-profit, publicly funded users, as determined
by the City, pursuant to the terms of its franchise for non-commercial
applications including, but not limited to, two-way dedicated voice,
video, data and telephone channels connecting and interconnecting
user facilities.
The party subject to a communications rights-of-way agreement
or its successor, assigns or transferee.
The length in feet of cable, wire, fiber, conduit or other
linear facilities. Facilities that are physically connected, wrapped
or lashed as a single cable, conduit or bundle of cables or conduit
shall be considered a single facility for purposes of calculating
each linear foot, provided that each conduit or bundle of conduit
up to and including four (4) inches in diameter shall constitute a
separate facility for calculating linear feet. Conduit having fiber
optic or other cable or wire installed within it shall not be considered
separate facilities but shall be considered part of the single "conduit"
or bundle for purposes of calculating linear feet.
Those hours during which most similar businesses in the community
are open to serve customers. In all cases, normal business hours must
include some evening hours, at least one (1) night per week and some
weekend hours.
Those cable services or conditions that are within the control
of a cable system franchise grantee. Those conditions, which are ordinarily
within the control of grantee, 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 cable system. Those
conditions that are not within the control of grantee include, but
are not limited to, natural disasters; civil disturbances; power outages;
telephone network outages; vandalism; public works projects for which
no advanced notice is given; and severe or unusual weather conditions.
Any video programming services provided to any person by
a licensee certified by the FCC to operate an open video system pursuant
to Section 47 U.S.C. 573, as may be amended, regardless of the facilities
used.
Any corporation, partnership, proprietorship, individual,
organization, governmental entity or any natural person.
A licensee or grantee or any person required to have a communications
services agreement or cable service franchise, and such other users
of the rights-of-way installing or maintaining facilities unless otherwise
exempted by the City.
Any building owned or for the greater part occupied by the
City or other governmental unit.
A new use agreement or cable service franchise granted to
an existing provider.
Any and all non-trade secret documents and information required
to be completed and/or kept or filed by a grantee or licensee on order
of the Federal Communications Commission, State or City. In accordance
with applicable law, the City shall maintain such information as confidential
to the extent that the provider identifies specific information as
such.
A communications service provider providing service within
the City that does not have ownership, possessory interest or control
of facilities in the rights-of-way, but instead uses the rights-of-way
by interconnecting with or using the network elements of another communications
service provider utilizing the rights-of-way, and/or by leasing excess
capacity from a facility-based communications service provider.
The surface and space on, above and below every municipal
street, alley, road, highway, lane or City right-of-way dedicated
or commonly used now or hereafter for utility purposes and facilities
thereon including, but not limited to, overhead lighting facilities.
This term shall not include any County, State or Federal rights-of-way
or any real property owned or controlled by any person or agency other
than the City, except as provided by applicable laws or pursuant to
an agreement between the City and any such person or agency. "Rights-of-way" shall not include public property owned
or leased by the City and not intended for right-of-way use including,
but not limited to, City Hall property or public works facilities.
The ROW Management Ordinance for Lake Saint Louis, Missouri, set out in Sections 630.450 et seq., that regulates the excavation, construction and use of the rights-of-way by all persons.
The loss of picture or sound on one (1) or more channels
on the cable system.
Any service installation that can be completed using a drop
of one hundred twenty-five (125) feet or less.
Any person who or which lawfully elects to subscribe for
any purpose to cable service provided by a grantee by means of, or
in connection with, the cable system and whose premises or facilities
are physically wired and lawfully activated to receive cable service
from grantee's cable system, including persons who receive cable service
without charge according to the terms of the Code or franchise.
The cables, wires, lines, towers, wave guides, optic fiber,
antennae and any associated converters, equipment or other facilities
designed and constructed for the purpose of producing, receiving,
amplifying or distributing communications to or from locations within
the City.
The Telecommunications Act of 1996 codified at Title 47 of
the Unites States Code.
Employees of a grantee who have the authority and capability
while speaking with a cable subscriber to, among other things, answer
billing questions, adjust bills, and schedule service and installation
calls.
The fee imposed by the City on licensee for use of the rights-of-way
for communications services pursuant to this Code.
Any antenna located on the rights-of-way connected directly
to the wire, cable or fiber optic communications facilities within
the City or any antenna having its highest point positioned in the
rights-of-way at a height in excess of forty (40) feet.
