[Ord. No. 1283 §1(900.100), 1-16-2003]
This Chapter may be referred to and cited as the "Cable Services
Code" (or herein as the "code") of the City of Platte City, Missouri.
[Ord. No. 1283 §1(900.105), 1-16-2003]
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 Section
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 cable
franchise granted. Nothing in this code or amendments thereto shall
be interpreted to unilaterally deprive any person of any rights or
obligations imposed by any binding and existing valid cable franchise
or contract during the term thereof, whether entered into before or
after enactment of this code, and shall impose obligations on any
such person additional to those included in such franchise or contract
only to the extent permitted by law and to the extent not inconsistent
with such franchise or contract; provided that the failure of the
City to enforce any provision herein or the failure of any person
to comply with any provision 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
cable franchise. The provisions of this code shall apply irrespective
of whether a franchisee is determined to be operating pursuant to
a valid cable franchise.
[Ord. No. 1283 §1(900.110), 1-16-2003]
Any rights granted pursuant to this code and pursuant to any
franchise authorized hereunder are subject to the authority of the
City to adopt and enforce ordinances for the health, safety and welfare
of the public. Franchisees shall be subject to and comply with all
ordinances enacted by the City pursuant to Missouri law.
[Ord. No. 1283 §1(900.115), 1-16-2003]
As a condition of use of the rights-of-way, franchisees at their
sole cost and expense shall indemnify, protect, defend (with legal
counsel representing the City that is 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 a franchise with franchisee, the rights granted to franchisee
or the activities performed or failed to be performed by franchisee
under the franchise or use of the rights-of-way, or otherwise, to
the extent caused by the franchisee. This indemnification shall survive
the expiration or termination of any franchise or use of the rights-of-way
for a period of five (5) years after the effective date of expiration
or termination.
[Ord. No. 1283 §1(900.120), 1-16-2003]
A franchisee shall have no cause of action whatsoever against
the City for damages of any kind arising from any of the provisions
or requirements of a franchise or because of the enforcement thereof
by said City or for the failure of said City to have the authority
to grant all or any part of the franchise therein granted; provided
that said franchisee expressly acknowledges that it accepted the rights
therein granted in reliance upon its independent and personal investigation
and understanding of the power of authority of said City to enter
into the franchise authorized therein with franchisee; provided further,
that the franchisee acknowledges by its acceptance of said franchise
that it has not been induced to enter into a franchise upon any understanding
or promise, whether given verbally or in writing by or on behalf of
said City, or by any other person concerning any term or condition
of a franchise not expressed therein; provided further, that the franchisee
acknowledges by the acceptance of any franchise that it has carefully
read the provisions, terms and conditions hereof and of its franchise
and is willing to and does accept all of the risk attendant to said
provisions, terms and conditions.
[Ord. No. 1283 §1(900.125), 1-16-2003]
To the extent not inconsistent with code Section 620.100(E), in performing activities and exercising its rights and obligations under any franchise, franchisees 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. 1283 §1(900.130), 1-16-2003]
The City shall be entitled to enforce this code and any franchise
through all remedies lawfully available and franchisee shall pay City
its costs of enforcement, including reasonable attorneys' fees, in
the event that franchisee is determined judicially to have violated
the material terms of this code or any franchise.
[Ord. No. 1283 §1(900.135), 1-16-2003]
Under no circumstances shall any franchise authorized by this
code be construed to create any relationship of agency, partnership,
joint venture or employment between the parties.
[Ord. No. 1283 §1(900.140), 1-16-2003]
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 that, directly or indirectly, owns or controls,
is owned or controlled by or is under common ownership or control
with another person. The term "own" means to own
an equity interest, or the equivalent thereof, of ten percent (10%)
or more. Affiliate shall not mean any creditor of a franchisee solely
by virtue of its status as a creditor.
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.
An initial cable franchise authorization or renewal thereof
(including a renewal of an authorization which has been granted subject
to Section 626 of the Cable Act) issued by the City, whether such
authorization is designated as a franchise, permit, license, resolution,
contract, certificate, agreement or otherwise, which authorizes the
construction or operation of a cable system.
Any tax, fee or assessment of any kind imposed by the City
or other governmental entity on a cable service franchisee or its
cable subscribers, or both, pursuant to this code or any franchise
agreement. The term "cable 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 or their cable services, but not including a tax, fee or
assessment that is unduly discriminatory against cable franchisees
or cable subscriber(s);
Capital costs that are required by a cable franchise to be incurred
by a cable franchisee 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; or
Any fee imposed under Title 17 of the United States Code.
A person who is granted a cable franchise to construct, operate
or maintain cable facilities or provides cable services by use of
the rights-of-way and that person's agents, employees, lawful successors,
transferees or assignees.
The internal wiring contained within the premises of a subscriber
which begins at the demarcation point as established by the FCC. Cable
home wiring includes passive splitters on the subscriber's side of
the demarcation point, but does not include any active elements such
as amplifiers, converters or decoder boxes, residential gateways,
ethersets or remote control units.
The offering of direct access by a cable system to the international
computer network of both Federal and non-Federal interoperable packet
switched data networks to customers for a fee. For purposes of this
code, "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 and such other
revenues that are required by applicable law to be treated under the
same regulation as such direct access service, but not including revenue
from independent services such as Internet web design or Internet
web hosting or the sale of modems for cable Internet services. Except
as may lawfully be required by the City or otherwise dictated by applicable
law, all franchises granted hereinafter shall authorize use of the
rights-of-way for cable Internet service only pursuant to a cable
franchise. Pending any legally binding determination to the contrary,
all payments made to the City prior to the date of such determination
attributable to such cable Internet service under a cable franchise
shall be irrefutably deemed to be lawful compensation for the past
use of the City's rights-of-way.
Subscriber interaction, if any, which is required for the selection
or use of such video programming or other programming service; and
Cable Internet services unless it is conclusively determined
by a final and unappealable judicial or administrative order or decision
that such services are not a cable service.
The laws, ordinances and regulations enacted by the City
establishing regulations for the use of the rights-of-way to construct,
operate and/or maintain cable systems and establishing required terms
for granting cable services, franchises and establishing compensation
for such use of the rights-of-way as may be from time to time in effect
and as amended.
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; or
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. Section 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 a television
channel as defined by the FCC.
The City of Platte City, Missouri.
This Cable Services Code and all provisions herein 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 of writing, 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" or "Internet service", as such terms
are now, or may in the future be, defined under Federal law including
all instrumentalities, facilities, apparatus and services (among other
things, the receipt, forwarding and delivery of telecommunications)
incidental to such transmission. This term does not include "cable
service" as defined under this agreement. All providers of communications
service that own or control their own facilities within the rights-of-way
shall be required to obtain a separate franchise from the City.
Any oral, written or electronic allegation or assertion of
customer or consumer dissatisfaction made by a person regarding cable
service or cable system operations that the cable franchisee is not
in compliance with its franchise or this code.
An electronic device that converts signals to a frequency
not susceptible to interference within the television receiver of
a subscriber and, through the use of an appropriate channel selector,
permits a cable subscriber to view all authorized cable subscriber
signals delivered at designated converter dial locations.
The costs actually incurred by a cable franchisee in meeting
an obligation under its franchise which the franchisee 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 network interface device
on the subscriber's property to the nearest feasible point on the
cable system in order to receive service.
Any portion of a cable or OVS system located in, along, over,
upon, under or through the rights-of-way.
The Federal Communications Commission or a designated representative.
The rights and obligations extended by the City to a person
to own, lease, construct, maintain or operate a cable system in the
right-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,
for excavating or performing other work in or along the rights-of-way.
A cable television franchise granted to a franchisee.
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
on grantee or its subscribers, or both, solely because of their status
and activities as such. 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 or their services, but not including, a tax, fee or assessment
that is unduly discriminatory against cable operators or cable subscribers);
Capital costs that are required by a franchise agreement to
be incurred by grantee for public, educational or governmental ("PEG")
access facilities;
Requirements or charges incidental to the award or enforcement
of a franchise, including payments for bonds, security funds, letters
of credit, insurance, indemnification, compliance audits, penalties
or liquidated damages; or
Any fee imposed under Title 17 of the United States Code.
The Board of Aldermen of the City of Platte City, Missouri.
Any franchisee or its lawful successors, transferees or assigns.
The City of Platte City, Missouri, provided that the City
may delegate the day-to-day administrative functions of a franchise
and any associated ordinances to appropriate City departments.
Any revenue actually received by the grantee or by any other
entity that is a cable operator of the cable system, including 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, franchise fees collected from subscribers; 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 a franchise to pay the applicable
franchise fees. Revenues which are not directly attributable to specific
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 system on a per
subscriber or other equitable basis measured in a consistent manner
from period to period. Such allocation methodology shall be subject
to the approval of the grantor. 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 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 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.
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In determining the gross revenue from home shopping where the
cable system serves subscribers both within and without the City limits
with the same zip code, that portion of the gross revenue to which
the franchise fee shall apply shall be computed on a pro rata basis
based upon the total number of subscribers located within the City's
limits as compared to the total number of subscribers served with
the same zip code.
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A communication network which is constructed or operated
by cable franchisee and which is generally available only to institutional
users. As may be required in the applicable cable franchise, the I-net
may 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 institutional users pursuant to the terms of
its franchise for non-commercial applications including, but not limited
to, two-way dedicated voice, video, data and telephony channels connecting
and interconnecting user facilities.
Governmental, educational and other non-profit publicly funded
users delineated in the individual cable franchise, as may be amended
from time to time with the consent of the cable franchisee.
A device by which the subscriber can prohibit viewing of
a particular cable service during periods selected by the subscriber.
The City's Cable Services Code developed to govern all cable
television franchises granted or renewed after or simultaneously with
the effective date of such ordinance and all amendments thereto.
Channels or programming that are operated on a non-commercial
or not-for-profit basis in a manner consistent with the rules and
regulations of the national public broadcasting system and applicable
law.
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 offered and controlled by the cable
franchisee or those conditions that are within the control of a cable
franchisee. Those conditions which are ordinarily within the control
of cable franchisee 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 cable franchisee 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 franchisee 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.
Information that the grantee makes available to all subscribers
generally.
Any corporation, partnership, proprietorship, individual,
organization, governmental entity or any natural person.
Any building identified in the applicable franchise which
is owned or for the greater part occupied by the City or on behalf
of the City by other governmental units performing traditional municipal
governmental functions.
A new cable franchise granted to an existing franchisee.
Any and all non-trade secret documents and information required
to be completed and/or kept or filed by a cable franchisee 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 franchisee identifies specific information
as such.
The period between when a problem is reported and/or a request
for action is made by a subscriber or the grantor and when the action
is commenced by the grantee.
Any person residing in the City.
The City of Platte City's ordinances regulating the excavation,
construction and use of the rights-of-way by all persons in the City
as they now exist or may hereafter be amended.
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
except where controlled or maintained by the City or as otherwise
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, municipal office building property
or public works facilities.
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 cable franchisee 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 cable franchisee's cable system, including persons
who receive cable service without charge according to the terms of
the code or franchise.
The Telecommunications Act of 1996 codified at Title 47 of
the United States Code.
Employees of a cable franchisee 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.
