[Ord. No. 2374 §1, 2-17-2004]
A.
The
City hereby declares as a legislative finding that the rights-of-way
within the City:
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. 2374 §1, 2-17-2004; Ord. No. 2566 §3, 10-16-2007]
This Chapter may be referred to and cited as the "Utilities
and Communications Services Code" or herein as the "code" of the City
of Pacific.
[Ord. No. 2374 §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 or ROW permit 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
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 franchise, agreement
or permit. The provisions of this Code shall apply irrespective of
whether a provider is operating pursuant to a valid franchise or agreement.
[Ord. No. 2374 §1, 2-17-2004]
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 or other 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. 2374 §1, 2-17-2004]
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. 2374 §1, 2-17-2004]
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. 2374 §1, 2-17-2004]
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. 2374 §1, 2-17-2004]
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. 2374 §1, 2-17-2004; Ord. No. 2766 §3, 10-16-2007]
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, 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 communications services and shall be required
to have a communications agreement with the City governing the use
of the rights-of-way for such purposes. 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 additional
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; 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 delivering a television
channel. At the time of the passage of this Chapter, analog standard
channel is defined as six megahertz (6 MHz).
The City of Pacific, Missouri.
The City Engineer, Director of Public Works or other designated
City Official or designee thereof.
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" or "Internet service" and "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 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.
All area within the incorporated limits of the City unless
otherwise expressly modified by the franchise.
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 Article III of this Code. 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 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 legislative body of the City.
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 cable 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; or
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 telephony channels connecting and interconnecting
user facilities.
The party or its successor, assigns or transferee subject
to a right-of-way use agreement authorizing communications facilities
in the right-of-way.
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 exterior 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. Each provider shall
be subject to a separate linear foot charge for facilities used by
provider and subject to this Code to the extent permitted by 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 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. Section 573, as may be amended, regardless of
the facilities used.
Any corporation, partnership, proprietorship, individual,
organization, governmental entity or any natural person other than
the City.
A licensee or grantee or any person required to have a communications
service agreement or cable service franchise and such other users
of the ROW 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 communications service 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 person providing communications or cable service within
the City that does not have ownership, possessory interest or control
of identifiable 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 using excess capacity or bandwidth 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
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, City Hall property or public works
facilities.
The regulations of the City of Pacific applicable to use
of the rights-of-way including such provisions as are included herein
that regulates, without limitation, the excavation, construction and
use of the rights-of-way.
Such persons and entities maintaining or installing facilities
in the rights-of-way of the City that provide a service for or without
a fee including, but not limited to, every cable television service
provider, pipeline corporation, gas corporation, electrical corporation,
rural electric cooperative, telecommunications company, water corporation,
heating or refrigerating corporation or sewer corporation under the
jurisdiction of the Public Service Commission; every municipally owned
or operated utility pursuant to Chapter 91, RSMo., or pursuant to
a Charter form of government or cooperatively owned or operated utility
pursuant to Chapter 394, RSMo.; every street light maintenance district;
every privately owned utility; and every other entity, regardless
of its form of organization or governance, whether for profit or not,
which in providing a public utility type of service for members of
the general public utilizes pipes, cables, conduits, wires, optical
cables, poles or other means of transmission, collection or exchange
of communications, information, substances, data or electronic or
electrical current or impulses in the collection, exchange or dissemination
of its product or services through the public rights-of-way and all
other persons or entities installing or maintaining facilities in
the rights-of-way of the City not otherwise expressly exempted.
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, if any, imposed by the City on licensee for use of the rights-of-way pursuant to the ROW Ordinance or Article II herein.
