For the purposes of this chapter, the following terms, phrases,
words, and abbreviations shall have the meanings given herein. When
not inconsistent with the context, words used in the present tense
include the future tense; words in the plural number include the singular
number; and words in the singular number include the plural number;
and the masculine gender includes the feminine gender. The words "shall"
and "will" are mandatory, and "may" is permissive. Words not defined
in this chapter shall have the same meaning as in Title VI of the
Communications Act of 1934, as amended, 47 USC Section 521 et seq.,
and, if not defined therein, their common and ordinary meaning. References
to governmental entities (whether persons or entities) refer to those
entities or their successors in authority. If specific provisions
of law referred to herein are renumbered, then the reference shall
be read to refer to the renumbered provision. References to laws,
ordinances or regulations shall be interpreted broadly to cover government
actions, however nominated, and include laws, ordinances and regulations
now in force or hereinafter enacted or amended.
"Access," "PEG access," or "PEG use"
refers to the availability of a cable system or open video
system for public, education or government use (including institutional
network use) by various agencies, institutions, organizations, groups,
and individuals, including the City of Blue Lake and its designated
access providers, to acquire, create, and distribute programming not
under a franchisee's editorial control, including, but not limited
to:
1.
"Public access" or "public use"
means access where organizations, groups, or individual members
of the general public, on a nondiscriminatory basis, are the primary
or designated programmers or users having editorial control over their
communications;
2.
"Education access" or "education use"
means access where accredited educational institutions are
the primary or designated programmers or users having editorial control
over their communications;
3.
"Government access" or "government use"
means access where government institutions or their designees
are the primary or designated programmers or users having editorial
control over their communications; "affiliate" means a person that
(directly or indirectly) owns or controls, is owned or controlled
by, or is under common ownership or control with, another person.
"Basic service"
means any service tier regularly provided to all subscribers
which includes the retransmission of local television broadcast signals.
"Cable Act"
means the Cable Communications Policy Act of 1984, 47 U.S.C.
Sections 521 et seq., as amended by the Cable Television Consumer
Protection and Competition Act of 1992, as further amended by the
Telecommunications Act of 1996, as further amended from time to time.
"Cable service"
means:
1.
The 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 system"
means 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 a community,
but such term does not include:
1.
A facility that serves only to retransmit the television signals
of one or more television broadcast stations;
2.
A facility that serves subscribers without using, or connecting
to a facility that uses, any public right-of-way within the City of
Blue Lake;
3.
A facility of a common carrier which is subject, in whole or
in part, to the provisions of Title II (Common Carriers) of the Communications
Act of 1934, as amended, 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.
Any facilities of any electric utility used solely for operating
its electric utility systems; or
5.
An OVS that is certified by the FCC. Any reference to a cable
system includes the cable system as a whole, or any part thereof,
including all facilities, pedestals, equipment cabinets, electronic
equipment and devices appurtenant to the system.
"Channel"
means a portion of the electromagnetic frequency spectrum
which is used in a cable system or OVS and which is capable of delivering
a television signal whether in an analog or digital format. The definition
does not restrict the use of any channel to the transmission of analog
television signals or one way transmission.
"City"
means the City of Blue Lake in its present incorporated form
and all departments, divisions, and agencies thereof, or any later
reorganized, consolidated, enlarged, or reincorporated form.
"Construction, operation or repair"
and similar formulations of that term means the named actions
interpreted broadly, encompassing, among other things, installation,
extension, maintenance, replacement of components, relocation, undergrounding,
grading, site preparation, adjusting, testing, make-ready, and excavation.
"Downstream channel"
means a channel designed and activated to carry a transmission
from the headend to other points on a cable communications system,
including interconnections.
"FCC"
means the Federal Communications Commission.
"Franchise"
refers to an authorization granted by the City to the operator
of a cable communications giving the operator the nonexclusive right
to occupy the space, or use facilities upon, across, beneath, or over
public rights-of-way in the City, to provide specified services within
a franchise area.
"Franchise area"
means the area of the City that a franchisee is authorized
to serve by the terms of its franchise or by operation of law.
"Franchise fee."
In consideration of the grant and exercise of a franchise
to construct, install, operate, or provide services using a cable
communications system in the public rights-of-way, a grantee shall
pay to the City a franchise fee expressed as a percentage of gross
revenues. The franchise shall specify the fee to be paid, and the
gross revenues to be included in the fee calculation. If a franchise
granted pursuant to this chapter specifies a franchise fee established
as the result of limiting applicable law, the City shall have the
option to renegotiate the amount of the franchise fee upon a change
in applicable law. Nothing herein requires a person to pay amounts
in excess of any limits that may be established by state or federal
law.
"Gross revenues"
means all cash, credits, property, or other consideration
of any kind or nature received directly or indirectly by a grantee
or its affiliates, from any source whatsoever arising from, attributable
to, or in any way derived from a grantee's operation of a cable system
within the franchise area. Gross revenues include, but are not limited
to, fees charged to subscribers for basic service; fees charged to
subscribers for any optional, premium, per-channel, or per-program
service; monthly fees charged to subscribers for any tier of service
other than basic service; installation, disconnection, re-connection,
and change-in-service fees; leased channel fees; fees, payments, or
other payment received as consideration from programmers for carriage
of programming on the cable system; converter rentals or sales; studio
rental, production equipment, and personnel fees; advertising revenues,
including a per capita share of advertising revenues for advertising
carried on more than one cable system; revenues from home shopping
channels; sales of programming guides; and such other revenue sources
as may now exist or hereafter develop. The definition shall be interpreted
in a manner which permits the City to collect the maximum franchise
fee permitted by law, irrespective of the source of revenue. Gross
revenues, however, shall not include any bad debt (defined as unpaid
subscriber or advertiser accounts), any taxes on services furnished
to a grantee and imposed directly upon any subscriber or user by the
state, City, or other governmental unit and collected by a grantee
on behalf of said governmental unit. The amount paid as a franchise
fee shall not be deducted from gross revenues unless required to be
deducted under federal law.
"License"
refers to the legal authorization, terminable at will, to
use a particular, discrete, and limited portion of the public rights-of-way
to construct, operate, or repair a communications facility.
"Operator"
when used with reference to a system, refers to a person
or group of persons (1) who provides service over a cable communications
system and directly or through one or more affiliates owns a significant
interest in such cable communication system; or (2) who otherwise
controls or is responsible for, through any arrangement, the management
and operation of such a cable communication system facility.
"OVS"
means an open video system within the meaning of federal
law. A reference to an OVS includes pedestals, equipment enclosures
(such as equipment cabinets), amplifiers, power guards, nodes, cables,
fiber optics and other equipment necessary to operate the OVS, or
installed in conjunction with the OVS.
"Person"
includes any individual, corporation, partnership, association,
joint stock company, trust, or any other legal entity, but not the
City.
"Public property"
means any property that is owned or under the control of
the City that is not a public right-of-way, including, for purposes
of this chapter, but not limited to, buildings, parks, poles, structures
in the public rights-of-way such as utility poles and light poles,
or similar facilities or property owned by or leased to the City.
"Public rights-of-way"
means the surface of and the space above and below any street,
road, highway, freeway, bridge, lane, path, alley, court, sidewalk,
parkway, drive, or right-of-way or easement dedicated for compatible
uses, now or hereafter existing within the City which may be properly
used for the purpose of installing, maintaining, and operating a cable
communications system; and any other property that a franchisee is
entitled by state or federal law to use by virtue of the grant of
a franchise.
"Revocation"
means the City's affirmative act of terminating a franchise.
"School"
means any accredited primary school, secondary school, college,
and university.
"Subscriber"
means the City or any person who is lawfully receiving, for
any purpose or reason, any cable service via a cable communications
system, whether or not a fee is paid for such service.
"Termination"
means the conclusion of a franchise by any means, including,
but not limited to, by expiration of its term, abandonment, or revocation.
"Transfer"
means any transaction in which:
1.
All or a portion of any cable communication system or any rights
to use or operate facilities located in the public rights-of-way are
sold, conveyed, transferred, assigned, encumbered (except as set forth
herein) or leased, in whole or in part, directly or indirectly, by
one or more transactions to another person, whether voluntarily or
by operation of law or otherwise; or
2.
There is any change, acquisition, or transfer in the identity
of the person in control of the grantee, or any person that controls
grantee, including, without limitation, forced or voluntary sale,
merger, consolidation, or receivership; or
3.
The rights or obligations under the franchise are sold, conveyed,
transferred, assigned, encumbered (except as set forth herein) or
leased, in whole or in part, directly or indirectly, by one or more
transactions to another person, whether voluntarily or by operation
of law or otherwise. It will be presumed, for purposes of paragraph
2 of this definition, that any transfer or cumulative transfer of
a voting interest by a person or group of persons acting in concert
of 10% or more of grantee, or person that controls grantee, or any
change in the managing general partners of a grantee is a change of
control. "Transfer" does not include: (1) a lease of channel capacity
pursuant to 47 U.S.C. Section 532 or 573; (2) the transmission of
a commodity or electronic signal using facilities on a common carrier
basis; (3) a lease or other right to use the cable communications
system mandated pursuant to 47 U.S.C. Section 224; or (4) a pledge
in trust, mortgage or other encumbrance against the cable communications
system, or any portion thereof, given to a bona fide institutional
lender in connection with a loan or other financing required to secure
the construction, operation, or repair of the cable communications
system ("loan") provided that such loan is subject to the rights and
powers of the City pursuant to the franchise and applicable law, including,
without limitation, the right of the City to approve any transfer
upon foreclosure. "Transferring" and "transferee" shall have correlative
meanings.
"Upstream channel"
means a channel designed and activated to carry transmissions
from a point on the cable communications system, other than the headend,
to the headend or another point on the cable communications system.
"User"
means a person or the City utilizing a channel, capacity
or equipment and facilities for purposes of producing or transmitting
material, as contrasted with the receipt thereof in the capacity of
a subscriber.
No person may construct or operate a cable communications system
in the City without first obtaining a grant of a franchise from the
City.
The following persons or entities shall not be required to obtain
a franchise under this chapter:
B. A UVPP
(unaffiliated video program provider) that is only delivering cable
service or other communications service (as that term is used in 47
U.S.C. Section 542(h)) to subscribers.
Consistent with the requirements of due process, a person's
failure to obtain a franchise as required by this chapter may, in
the City's discretion, result in:
A. Forfeiture,
by operation of law, of the person's cable communication system located
in the public rights-of-way that are not authorized by an existing
franchise; and/or
B. A requirement
that the cable communication system be removed, and that penalties
and damages be paid.
Grantees of franchises existing as of the effective date of
the ordinance codified in this chapter shall, in addition to all the
obligations and duties prescribed by the terms of their existing franchises,
be subject to the substantive and procedural requirements herein,
except as prohibited by applicable law. Nothing herein is intended
to invalidate a lawful, existing franchise or to waive any obligations
imposed by such a franchise. Notwithstanding the foregoing, provisions
of this chapter that expressly refer to a "franchise granted pursuant
to this chapter" shall not apply to franchises initially granted prior
to the effective date of the ordinance codified in this chapter.
A franchise shall be issued in the form of written agreement,
approved by resolution of the City Council, and must be accepted by
the franchisee to become effective.
A person seeking to (1) obtain a franchise; (2) transfer a franchise;
(3) extend the term of an existing franchise; (4) renew a franchise;
or (5) modify an existing franchise to add new services that are required
to be authorized by a franchise pursuant to this chapter, shall submit
a signed original of its application and six copies to the Clerk of
the Board. The Clerk of the Board shall make a proposal available
for public inspection. The application must conform to all of the
requirements of this chapter. Requests for other types of franchise
modifications may be processed by the City without an application,
and submitted for approval. However, nothing herein shall prevent
the City from requiring an application in the event the City determines,
based on the nature of the requested modification, that the public
interest would best be served by the submission of an application
pursuant to this chapter.
Each franchisee shall maintain accurate maps and improvement
plans which show the location, size, and a general description of
all facilities installed in the public rights-of-way and any power
supply sources (including voltages and connections). Maps shall be
based upon post-construction inspection to verify location. Each franchisee
shall provide a map to the City showing the location of its facilities,
in such detail and scale as may be directed by the City Public Works
Director and update the map at least annually, and whenever the facility
expands or is relocated. Copies of maps shall be provided in hard
copy and on disk, in a commercially available electronic format specified
by the City Public Works Director. Any disk provided to the City shall
be returned to the franchisee after information contained therein
is entered into the City's electronic mapping or other similar such
system.
Unless the City Manager waives the requirement, a franchisee
shall at all times maintain:
A. Complaint
Records. Records of all complaints received, their nature and resolution.
The term "complaints" refers to complaints about any aspect of the
franchisee's operations or customer service.
B. Outage
Records. Records of outages known to the franchisee, their cause and
duration.
C. Complaint
Response. Records of service calls for repair and maintenance indicating
the date and time service was requested, the date of acknowledgment
and date and time service was scheduled (if it was scheduled), and
the date and time service was provided, and (if different) the date
and time the problem was solved.
D. Installation
Records. Records of installation/reconnection and requests for service
extension, indicating date of request, date of acknowledgment, and
the date and time service was extended.
E. Customer
Service. Records sufficient to show whether the franchisee has complied
with each customer service standard that applies to it.
The City Manager may temporarily exempt any franchisee from its obligations under Sections
13.32.160—
13.32.190 if the Manager determines that the requirement would be unduly burdensome or unnecessary, and that the City and subscriber interests may be adequately protected in some other manner.
A franchisee shall take all reasonable steps required so that
it is able to provide reports, books and records to the City, including
by providing appropriate subscriber privacy notices. Each franchisee
shall be responsible for redacting data that applicable law prevents
it from providing to the City. Nothing in this section shall be read
to require a franchisee to violate state or federal subscriber privacy
laws.