[HISTORY: Adopted 7-25-2011 by Ord. No. 11-10. Amendments noted where applicable.]
The municipal officers may contract on such terms and conditions
as are in the best interests of the municipality, including the grant
of an exclusive franchise for a period not to exceed 10 years, for
the placing and maintenance of community cable television systems
and appurtenances or parts thereof along the public ways, and including
contracts with operators of such systems which receive the services
of television signal transmission offered by any public utilities
using public ways for such transmission.
A.Â
The purpose of this title is to implement the authority conferred
on cable television franchising authorities to regulate basic service
rates and charges.
B.Â
This title is enacted pursuant to the Cable Television and Consumer
Protection and Competition Act of 1992, as amended; pursuant to regulations
adopted by the Federal Communications Commission ("FCC"), including
but not limited to the FCC Rate Regulations as defined herein; and
pursuant to 30-A M.R.S. § 3001, as amended.
For the purposes of this title or the franchisee agreement,
the following terms, phrases, words, abbreviations and their derivations
have the meanings given herein, as set forth in this appendix, attached
hereto as part of this title. When not inconsistent with the context,
words used in the present tense include the future; and words in the
plural number include the singular number, and vice versa. The word
"shall" is always mandatory and not merely directory.
A video channel(s) which the franchisee makes available to
the Town, without charge, for the purpose of transmitting programming
by/for members of the public, Town departments, boards and agencies,
public schools, educational, institutional, nonprofit and similar
organizations.
Public: noncommercial programming produced by the Town, or produced
by any noncommercial operator authorized by the Town to provide public
programming.
Educational: noncommercial programming produced by the Town's
public schools, or produced by any other noncommercial educational
organization authorized by the Town to provide educational programming.
Governmental: noncommercial programming produced by any Town
departments, agencies, boards, or committees, or produced by any noncommercial
governmental organization authorized by the Town to provide governmental
programming.
The aforementioned items are abbreviated as "PEG" (public, educational,
and governmental) access channel(s).
Consisting of a combination of letters and numbers, used
in reference to keyboards permitting communication in such form and
in reference to channels or programs transmitting information in such
form.
Basic service tier rates and the charges for related equipment,
installation and services which, pursuant to federal laws and regulations,
may be regulated by franchising authorities.
That tier of cable television service which contains, at
a minimum, all local broadcast signals and the public, educational
and governmental channels required by the franchise agreement. Provided
that the contents of this tier meet this definition, the cable operator
may, in its sole discretion, determine what (if any) additional service
will be provided as part of this tier. Additionally, basic service
tier means a separately available or "unbundled" tier of cable service
that must include:
All signals of local commercial and noncommercial educational
television and qualified low-power stations carried to meet "must-carry"
status under Sections 614 and 615 of the Cable Act and FCC rules;
Any PEG access programming required by the franchise to be provided
to subscribers;
Any signal of any television broadcast station that is provided
by the franchisee to any subscriber, except a signal which is secondarily
transmitted by a satellite carrier beyond the local service area of
such station; and
Any additional video programming signals or services added to
the basic tier by the franchisee.
That theory of rate regulation which sets rates based upon
"benchmarks" established by the FCC.
The Cable Communications Policy and Communications Act of
1984, as amended by the Cable Consumer Protection and Competition
Act of 1992 and the Telecommunications Act of 1996, and as further
amended.
Any video programming provided over a cable system, regardless
of service tier, including installation or rental of equipment used
for the receipt of such video programming, other than:
That theory of rate regulation, to be initiated only by the
cable operator, which allows the cable operator to charge rates in
excess of the FCC benchmark rates upon a showing that the cost of
providing cable service exceeds the benchmark rate.
Report and Order, In the Matter of Implementation of Sections
of Cable Television Consumer Protection and Competition Act of 1992:
Rate Regulation, MM Docket 92-266, FCC 93-177 (released May 3, 1993),
as amended.
The nonexclusive right, privilege and authorization granted
in accordance with this title to construct, operate and maintain a
cable system, and appurtenances or parts thereof, in the streets,
roads, alleys, and other public ways of the Town.
Any such authorization, in whatever form granted, does not mean
or include any license or permit required for the privilege of transacting
and carrying on a business within the Town as required by the ordinances
and laws of the Town, or for attaching devices to poles or other structures,
whether owned by the Town or a private entity, or for excavating or
performing other work in or along street or public ways.
A franchise agreement further defines the rights and responsibilities
of each party in the operation of the cable system within the geographical
area of the Town.
Any person or persons owning, controlling, operating, managing
or leasing a cable system within the Town, pursuant to this title,
and pursuant to any franchise granted to it by the Town. This term
includes any lawful successor(s) to the interest of such person or
persons where consent to such successor(s) is approved under the provisions
of this title and under any applicable terms of a franchise agreement
entered into pursuant to this title.
A fee that may be imposed by the franchisor on the franchisee
as compensation for the rights provided to the franchisee under a
franchise, including the rights to use the streets and public ways
of the franchisor to operate and maintain the franchisee's cable
system.
The Town of Kittery, acting through its municipal officers
pursuant to its authority under federal, state and local laws and
regulations to authorize and oversee the provision of cable television
service in Kittery.
The acronym for public, educational, and governmental access
channels; any channel(s) made available for the presentation of programming
originated by the Town, or its authorized representative(s).
Any audible, visual or facsimile signal, message, graphics,
data or communication of any kind transmitted on the cable system,
whether analog or digital.
Programming provided by, or generally considered comparable
to programming provided by, a television broadcast station.
All public schools, parks, police and fire stations, public
libraries, recreation facilities, and any other buildings owned or
leased by the Town.
A category of cable service or other services provided by
the franchisee and for which a separate rate is charged by the franchisee.
Programming provided by, or generally considered comparable
to programming provided by, a television broadcast station, superstations,
satellite-delivered cable networks and pay cable, whether the subscriber
fee is on a per-channel or per-program basis.
FCC-approved worksheets accompanying a rate filing to the
franchise authority. Worksheets are used to calculate a franchisee
base rate per channel. The base rate per channel must not exceed the
adjusted benchmark channel rate.
A.Â
Cable operator submission. Within 30 days of the date of a notice
from the franchising authority to the cable operator, the cable operator
must file its rate justification with the franchising authority.
B.Â
Franchising authority response.
(1)Â
The franchising authority must make a decision on the rate request
within 30 days after the cable operator submits its rate justification.
The rates proposed by the cable operator automatically take effect
after that thirty-day period unless the franchising authority issues
a statement that it needs additional time to make its decision.
(2)Â
If the franchising authority decides that it needs longer than
the initial thirty-day period to consider the rate request, it may
issue a statement to that effect. Such statement may provide for up
to 90 additional days to review a rate request based upon a benchmark
approach and up to 150 days to review a rate request based upon a
cost-of-service approach.
(3)Â
If the franchising authority cannot reach a decision by the
end of the extended period set forth in the preceding subsection,
the rates proposed by the cable operator go into effect, subject to
refund. If the franchising authority intends to seek refunds, it must
issue an order to the cable operator prior to expiration of the time
period for response, notifying the cable operator to keep accurate
records with respect to rates.
C.Â
Public hearing required. A public hearing is to be held in connection
with every rate setting proceeding. At least 10 days prior to the
hearing date, the Town Clerk must publish a notice of the hearing
in a newspaper of general circulation in the Town. The notice must
identify the name of the cable operator, indicate that a rate change
has been requested, and identify the time and place of the public
hearing.
D.Â
Proprietary information. The franchising authority may require the
cable operator to furnish proprietary information in connection with
any rate setting proceeding.
E.Â
Calculation of rates and refunds. In setting basic tier rates and
charges, and in setting any refunds, the franchising authority is
governed by the FCC Rate Regulations, as amended. The FCC Rate Regulations
govern notwithstanding any different or inconsistent provisions in
the franchise agreement.
F.Â
Decision of franchising authority.
(1)Â
The franchising authority must issue a written rate decision
with appropriate findings and conclusions if the franchising authority:
(2)Â
Notice to the public must be posted in the Town Hall and local
post offices of any such written decision, which must include release
of the text of the written decision to the public. No written decision
is required to approve an unopposed existing or proposed rate.
G.Â
Appeals.
(1)Â
The FCC has exclusive jurisdiction to hear appeals challenging whether the franchising authority's decision is consistent with the 1992 Cable Act or any applicable FCC rules. Any participant in a franchising authority's rate regulation proceeding may appeal the franchising authority's decision on such grounds to the FCC within 30 days of release of the public notice required under Subsection F of this section.
(2)Â
Appeals on grounds other than those stated in the preceding
subsection may be made to Superior Court in accordance with Rule 80B
of the Maine Rules of Civil Procedure.
The Town Manager is authorized to execute on behalf of the Town
and file with the FCC such certifications, forms or other instruments
as are now or may hereafter be required by the FCC Rate Regulations
in order to enable the Town to regulate basic service rates and charges.
