[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.
ACCESS FACILITIES
1. 
Channel capacity designated for public, educational or governmental access use; and
2. 
The facilities and equipment for the use of such channel capacity.
AFFILIATE
A person who owns or controls, is owned or controlled by or under common control with the licensee.
AGREEMENT
A communications rights-of-way use agreement authorized herein and executed by the city and licensee.
ANTENNA
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.
BASIC CABLE SERVICE
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).
CABLE ACT
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.
CABLE SERVICES
1. 
One-way transmission to subscribers of:
a. 
Video programming, or
b. 
Other programming service; and
2. 
Subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service.
CABLE INTERNET SERVICES
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.
CABLE SYSTEM
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:
1. 
A facility that serves only to retransmit the television signals of one (1) or more television broadcast stations;
2. 
A facility that serves subscribers without using any public rights-of-way; or
3. 
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;
4. 
An open video system that complies with Section 653 of the Cable Act; or
5. 
Any facility of any electric utility used solely for operating its electric utility system.
CAPITAL COSTS
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.
CHANNEL
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).
CITY OR GRANTOR
The City of Pacific, Missouri.
CITY ENGINEER
The City Engineer, Director of Public Works or other designated City Official or designee thereof.
CODE
This "Communications and Cable Services Code" and all provisions therein established by this Chapter.
COLLOCATION
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).
COMMUNICATIONS
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.
COMMUNICATIONS SERVICE
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.
COMPLAINT
Any oral, written or electronic inquiry, allegation or assertion made by a person regarding cable service or cable system operations.
CONVERTER
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.
DIRECT INCREMENTAL COSTS
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.
DROP
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.
FACILITIES
Any portion of a system located in, along, over, upon, under or through the rights-of-way.
FRANCHISE
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:
1. 
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;
2. 
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.
FRANCHISE AREA
All area within the incorporated limits of the City unless otherwise expressly modified by the franchise.
FRANCHISE FEE
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:
1. 
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);
2. 
Capital costs that are required by a cable franchise to be incurred by a grantee for public, educational or governmental ("PEG") access facilities;
3. 
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;
4. 
Any permit fee or other fee imposed under any valid right-of-way ordinance; or
5. 
Any fee imposed under Title 17 of the United States Code.
GOVERNING BODY
The legislative body of the City.
GRANTEE
A person who is granted a cable franchise and that person's agents, employees, lawful successors, transferees or assignees.
GROSS RECEIPTS
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.
GROSS REVENUES
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:
1. 
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;
2. 
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
3. 
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
4. 
Franchise fees collected from cable subscribers.
INSTITUTIONAL NETWORK OR I-NET
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.
INSTITUTIONAL NETWORK SERVICES
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.
LICENSEE
The party or its successor, assigns or transferee subject to a right-of-way use agreement authorizing communications facilities in the right-of-way.
LINEAR FOOT
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.
NORMAL BUSINESS HOURS
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.
NORMAL OPERATING CONDITIONS
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.
OPEN VIDEO SERVICES
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.
PERSON
Any corporation, partnership, proprietorship, individual, organization, governmental entity or any natural person other than the City.
PROVIDER
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.
PUBLIC BUILDING
Any building owned or for the greater part occupied by the City or other governmental unit.
RENEWAL
A new communications service agreement or cable service franchise granted to an existing provider.
REPORTS
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.
RESELLER SERVICE PROVIDER
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.
RIGHTS-OF-WAY
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.
ROW ORDINANCE
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.
ROW USER
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.
SERVICE INTERRUPTION
The loss of picture or sound on one (1) or more channels on the cable system.
STANDARD INSTALLATION
Any service installation that can be completed using a drop of one hundred twenty-five (125) feet or less.
SUBSCRIBER
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.
SYSTEM
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.
TELECOMMUNICATIONS ACT
The Telecommunications Act of 1996 codified at Title 47 of the Unites States Code.
TRAINED REPRESENTATIVE
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.
USE FEE
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.