For the purposes of this Chapter, the following terms, phrases, words, and abbreviations shall have the meanings given herein, unless otherwise expressly stated. 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. Unless otherwise expressly stated, words not defined herein shall be given the meaning set forth in Title 47 of the United States Code, Chapter 5, Subchapter V-A, 47 U.S.C. § 521 et seq., as amended, 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.
(A) “Access”(1) (2) (3) (4)
means the availability of the cable system(s) (as it relates to PEG access) for use by various agencies, institutions, organizations, groups, and individuals in the community, including the City and its designees, to acquire, create, and distribute programming not under a franchisee’s editorial control, including, but not limited to:
“Public access”
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 programming;
“Educational access”
means access where accredited educational institutions are the primary or designated programmers or users having editorial control over their programming;
“Governmental access”
means access where governmental institutions or their designees are the primary or designated programmers or users having editorial control over their programming; and
“PEG access”
means public access, educational access, and governmental access, collectively.
(B) “Access channel”
means any channel capacity on a cable system set aside by a franchisee for public, educational, or governmental use.
(C) “Affiliate”
means any person who owns or controls, is owned or controlled by, or is under common ownership or control with a franchisee.
(D) “Applicant”
means any person submitting an application within the meaning of this Chapter.
(E) “Application”(1) (2) (3) (4) (5)
means any proposal, submission or request to:
Construct and/or operate a cable system within the City;
Transfer a franchise;
Renew a franchise;
Modify a franchise; or
Seek any other relief from the City pursuant to this Chapter or a franchise agreement.
An application includes an applicant’s initial proposal, submission or request, as well as any and all subsequent amendments or supplements to the proposal and relevant correspondence. |
(F) “Applicable law”
means all duly enacted and applicable federal, state, and City laws, ordinances, codes, rules, regulations and orders as the same may be amended from time to time.
(G) “Basic cable service” or “basic service”
means any service tier that includes the retransmission of local television broadcast signals or such other definition as may be adopted by federal law. It shall include all PEG access channels.
(H) “Cable Act”
means the Cable Communications Policy Act of 1984, 47 U.S.C. § 521 et seq., as amended by the Cable Television Consumer Protection and Competition Act of 1992, and the Telecommunications Act of 1996, and as further amended from time to time.
(I) “Cable ordinance”
shall refer to Chapter 5-20 SJBMC.
(J) “Cable service”
means:
(K) “Cable system” or “system”(1) (2) (3) (4)
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 television service which includes video programming and which is provided to multiple customers within the City, 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 only customers in one (1) or more multiple unit dwellings under common ownership, control, or management, unless such facility or facilities use subscribers without using any public right-of-way, including streets or easements;
A facility of a common carrier which is subject, in whole or in part, to the provisions of Title II of the Communications Act of 1934, except that such facility shall be considered a Cable System (other than for purposes of 47 U.S.C. § 541(c)) if such facility is used in the transmission of video programming, whether on a common carrier or noncommon carrier basis, directly to customer directly to subscribers, unless the extent of such use is solely to provide interactive on-demand services; or
Any facilities of any electric utility used solely for operating its electric utility systems. Notwithstanding the above, the term cable system also includes any facility that is a community antenna television system under California law, and the term cable system shall only apply to open video systems that comply with 47 U.S.C. § 573 as specifically provided herein. A reference to a cable system refers to any part thereof, including, without limitation, converters.
(L) “City”
means the City of San Juan Bautista. Any act that may be taken by the City may be taken by the City Council or any agency, department, agent or other entity now or hereafter authorized to act on the City’s behalf.
(M) “City Council”
means the governing body of the City of San Juan Bautista.
(N) “City Manager”
means the City Manager of the City. Any act that may be taken by the City Manager may be taken by any agency, department, agent or other entity now or hereafter authorized to act on behalf of the City Manager.
(O) “Construction”
means any new construction, reconstruction, rebuild, or upgrade of the system construction, operation or repair.
(P) “Construction,” “operation,” or “repair”
and similar formulations of those terms mean the named actions interpreted broadly, encompassing, among other things, installation, extension, maintenance, replacement of components, relocation, undergrounding, grading, site preparation, adjusting, testing, make-ready, excavation and tree trimming.
(Q) “Designated access provider”
means the entity or entities designated by the City under SJBMC 5-20-610.
(R) “Document” or “record”
means those materials normally generated, used and retained in the operation and management of a cable system, in whatever form stored, including but not limited to computerized records and programs, paper records, and video or audio-taped records.
(S) “Downstream channel”
means a channel capable of carrying a transmission from the headend to remote points on the cable system or to interconnection points on the cable system.
(T) “Equitable price”
means fair market value adjusted downward for the harm to the City or subscribers, if any, resulting from a franchisee’s breach of its franchise agreement or violation of this Chapter and as further adjusted to account for other equitable factors that may be considered consistent with 47 U.S.C. § 547.
(U) “Fair market value”
means the price that a willing buyer would pay to a willing seller for a going concern based on the cable system valuation prevailing in the industry at the time for the cable system valued as a going concern but with no value allocated to the franchise itself.
(W) “Franchise”(1) (2) (3) (4)
means a nonexclusive authorization granted in accordance with this Chapter to install cables, wires, lines, optical fiber, underground conduit, and other devices necessary and appurtenant to the construction, rebuilding, operation, and maintenance of a cable system along the public rights-of-way within all or a specified area of the City. 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;
Any permit or authorization required in connection with operations on public streets or property including, without limitation, permits for attaching devices to poles or other structures, whether owned by the City or a private entity, or for excavating or performing other work in or along public rights-of-way;
Agreements required for the use of conduits and poles, whether publicly or privately owned; or
Express or implicit authorization to provide service to, or install a cable system on, private property without owner consent (except for use of compatible easements pursuant to Section 621(a)(2) of the Cable Act, 47 U.S.C. § 541(a)(2)).
(X) “Franchise agreement”
means a contract entered into in accordance with the provisions of this Chapter between the City and a franchisee that sets forth, subject to this Chapter, the terms and conditions under which a franchise will be exercised.
(Y) “Franchise area”
means the geographic area of the City that a franchisee is authorized to serve by its franchise agreement. The franchise area may be specified to authorize provision of service not only in areas within the existing City limits, but also in other areas, as those areas are annexed in the future.
(Z) “Franchisee”
means a natural person, partnership, domestic or foreign corporation, association, joint venture, or organization of any kind that has been granted a cable television franchise by the City.
(AA) “Gross revenues”(1) (2) (3)
means any and all cash, credits, property or other consideration of any kind or nature received directly or indirectly by a franchisee, its affiliates, or by any other entity that is a cable operator of a system, arising from, attributable to, or in any way derived from the operation of a franchisee’s cable system to provide cable services, including the studios and other facilities associated therewith. Gross revenues include, by way of illustration and not limitation, monthly fees charged subscribers for any basic, optional, premium, per-channel, or per-program service; installation, disconnection, reconnection, and change-in-service fees; leased channel fees; late fees and administrative fees; fees, payments, or other consideration received from programmers for carriage of programming on the cable system; revenues from rentals or sales of converters or other equipment; studio rental, production equipment, and personnel fees; advertising revenues including a per capita share of advertising revenues for advertising carried on more than one (1) cable system; barter; revenues from sales of and/or program guides; revenues from the sale or carriage of noncable services, including information services and bypass services; and revenues from home shopping and bank-at-home channels and such other revenue as may now exist or hereafter develop. Gross revenues shall be the basis for computing the franchise fee under any franchise and 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 shall not include:
Any taxes on services furnished by a franchisee which are imposed directly on any subscriber or user by the state, City, or other governmental unit and which are collected by a franchisee on behalf of said governmental unit (the franchise fee is not such a tax);
Any bad debt (defined as unpaid subscriber or advertiser accounts); and
Programming revenues of any affiliate of a franchisee whose programming is carried on the cable system where such revenues are paid to said affiliate by the franchisee and recovered by the franchisee through charges to subscribers that are included in gross revenues. A franchise fee is not a tax. The amount paid as a franchise fee shall not be deducted from gross revenues unless required to be deducted under federal law.
(BB) “Interconnect” or “interconnection”
means the provision by a franchisee of technical, engineering, physical, and all other necessary components to accomplish, complete, and adequately maintain a physical linking of a franchisee’s cable system and cable services or any designated channel or signal pathway thereof, with any other designated cable system so that cable services of technically adequate quality may be sent to and received from such other systems.
(CC) “Overbuild”
means a cable system constructed to serve subscribers in an area of the City served by an existing cable system.
(DD) “Person”
means an individual, sole proprietorship, partnership, association, joint stock company, organization, corporation, or any other form of organization authorized to do business in the State of California, and including any natural person, or any lawful successor thereto or transferee thereof, but such term does not include the City.
(EE) “Programming”
means the process of causing television programs or other patterns of signals in video, voice, or data formats to be transmitted on the cable system either upstream or downstream, and includes all programs or patterns of signals transmitted or capable of being transmitted on the cable system.
(FF) “Public property”
means any real property owned by the City or any other governmental unit that is not otherwise defined herein as a public rights-of-way.
(GG) “Public rights-of-way”
means the surface, the air space above the surface, and the area below the surface of any public street, road, highway, freeway, lane, path, alley, court, sidewalk, boulevard, drive, bridge, tunnel, park, parkway, waterway, easement, rights-of-way or other public way, or similar property in which the City now or hereafter holds any property interest, now or hereafter existing which, consistent with the purposes for which it was dedicated, may be used for the purpose of installing, maintaining and operating a cable system. No reference herein, or in any franchise agreement, to a “public right-of-way” shall be deemed to be a representation or guarantee by the City that its interest or other right to control the use of such property is sufficient to permit its use for such purposes, and a franchisee shall be deemed to gain only those rights to use as are properly in the City and as the City may have the undisputed right and power to give.
(HH) “Rebuild”
means to alter a cable system through the replacement of cable, amplifiers, passive devices, and headend electronics as necessary so as to increase the channel capacity of the system by at least twenty (20) channels.
(JJ) “Service tier”
means a package of two (2) or more cable services for which a separate charge is made by the franchisee, other than a package of premium and pay-per-view services that is not subject to rate regulation under the Cable Act and applicable FCC regulations because those services are also sold on a true a la carte basis.
(KK) “Subscriber”
means any person who legally receives for any purpose or reason any service delivered by a franchisee by means of or in connection with a cable system whether or not a fee is paid for such service.
(LL) “Transfer”(1) (2) (3) (4) (5) (6) (7)
means any transaction in which:
Any ownership or other right, title, or interest in a franchisee’s cable system is transferred, sold, assigned, leased, sublet, or mortgaged, directly or indirectly, in whole or in part, other than the sale or disposal of equipment in the ordinary course of business that is no longer to be used in providing service all or substantially all of the cable system is sold or assigned; or
There is any change, acquisition, or transfer of control of the franchisee or any person which owns, controls, or manages the franchisee directly or through one (1) or more intervening persons; or franchisee; or
The rights and/or obligations held by the franchisee under the franchise are transferred, sold, assigned, or leased, in whole or in part, directly or indirectly, to another party; or
Any change or substitution occurs in the managing general partners of the franchisee; or
The franchisee, or its corporate parents, enter into any transaction that materially increases the debt that is to be borne by the cable system directly or indirectly, in a manner that may adversely affect system rates or services; or
Any assets or property of a franchisee used or held in connection with a cable system are subjected to any lien, mortgage, lease or security interest; or
Generally there is any sale, lease, assignment, mortgage, consolidation, merger, or any other disposition of a franchise, or any change in the ownership or control of a franchisee or any person which owns, controls, or manages the franchisee directly or through one (1) or more intervening partnerships or corporations.
(MM) “Control”
for purposes of this Section means the legal or practical ability to exert actual working control over the affairs of a franchisee or applicant, either directly or indirectly, whether by contractual agreement, majority ownership interest, any lesser ownership interest, or in any other manner. Any change in ownership of five percent (5%) or more of a franchisee or an entity that is a cable operator of a franchisee’s cable system shall be deemed a transfer of control of the franchise.
(NN) “Control of the franchisee”
for purposes of this Section means the ability to exert actual working control, in whatever manner exercised, over the affairs of a franchisee or a cable operator of a cable system, either directly or indirectly. Without limiting the above, any change in the managing general partners of the franchisee shall be presumed a change in control.
(OO) “Upgrade”
means an improvement in channel capacity or other technical aspect of cable system capacity which may be accomplished without a rebuild of the cable system.
(PP) “Upstream channel”
means a channel capable of carrying a transmission to the headend from remote points on the cable system or from interconnection points on the cable system.
(QQ) “User”
means a person or organization 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.
(RR) Other Terms.
Words not defined herein shall be given the meaning set forth in the Cable Communications Policy Act of 1984, 47 U.S.C. § 521 et seq., as amended.