[HISTORY: Adopted by the Borough Council of the Borough of
Middletown 3-3-2003 by Ord. No.
1157, approved 3-3-2003. Amendments noted where applicable.]
This chapter shall be known and may be cited as the "Middletown
Borough Cable Rate Regulation Ordinance."
This chapter is enacted pursuant to the federal Cable Television
Consumer Protection and Competition Act of 1992 and the federal Telecommunications
Act of 1996, both of which amended the federal Communications Act
of 1934. Section 623 of the Communications Act, 47 U.S.C. § 543,
states that "any franchising authority may regulate the rates for
the provisions of cable services . . . but only to the extent provided
under this section." This chapter is also enacted pursuant to the
rate regulations adopted by the FCC contained in Subpart N entitled "Cable
Rate Regulation," 47 CFR 76.900 et seq.
The following terms used in this chapter shall have the following
meanings:
All equipment in a subscriber's home, provided and maintained
by the operator, that is used to receive the basic service tier, regardless
of whether such equipment is additionally used to receive other tiers
of regulated programming service and/or unregulated service. Such
equipment shall include, but is not limited to converter boxes, remote
control units and inside wiring.
At a minimum, all signals of domestic television broadcast
stations provided to any subscriber (except a signal secondarily transmitted
by satellite regardless of how such signal is ultimately received
by the cable system), any public, educational, and governmental programming
required by the franchise to be carried on the basic tier, and any
additional video programming signals or service added to the basic
tier by the cable operator.
The governing body of Middletown Borough.
Any person or group of persons that provides cable service
over a cable system and directly or through one or more affiliates
owns a significant interest in such cable system, or who otherwise
controls or is responsible for, through any arrangement, the management
and operation of such a cable system.
The one-way transmission to subscribers of video programming
or other programming service and subscriber interaction, if any, which
is required for the selection or use of such video programming or
other programming service.
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:
A facility that serves only to retransmit the television signals
of one or more television broadcast stations;
A facility that serves subscribers without using any public
right-of-way;
A facility of a common carrier which is subject, in whole or
in part, to the provisions of Title II of the Communications Act,[1] except that such facility shall be considered a cable
system (other than for purposes of Section 621(c) of the Communications
Act) to the extent such facility is used in the transmission of video
programming directly to subscribers unless the extent of that use
is solely to provide interactive on-demand services;
An open video system that complies with Section 653 of the Communications
Act; or
Any facilities of any electric utility used solely for operating
its electric utility systems.
The Federal Communications Commission.
A governmental or public entity that has filed a Form 328
with the FCC and is certified by the FCC to regulate basic service
and associated equipment rates, oversee the operations of a cable
operator and its compliance with a franchise agreement.
An individual, partnership, association, joint-stock company,
trust, corporation or governmental entity.
Any person or entity who contracts with a cable operator
for, and lawfully receives, the video signals and applicable cable
services distributed by the cable system.
[1]
Editor's Note: See generally 47 U.S.C.A. § 151 et
seq.
The Borough has submitted a completed FCC Form 328 with the
FCC and is certified by the FCC as a franchising authority to regulate
basic service and associated equipment rates in accordance with the
applicable regulations of the FCC.
In addition to the regulations contained in this chapter, the
rate regulations of the FCC contained in Subpart N entitled "Cable
Rate Regulation," 47 CFR 76.900 et seq., as may be amended, are hereby
adopted for the review and determination of reasonable and lawful
rates for basic service and associated equipment.
Only the rates of cable systems that are not subject to effective
competition may be regulated. In the absence of a demonstration by
a cable operator to the contrary, a cable system is presumed not to
be subject to effective competition.
The Compliance Officer shall be responsible for:
A.
Taking
such actions on behalf of the Borough as may from time to time be
required to obtain or maintain the Borough's certification to
regulate basic service and associated equipment rates.
B.
Notifying
all cable operators serving the Borough when the Borough has become
certified by the FCC to regulate basic service and associated equipment
rates and has adopted this chapter.
C.
Receiving,
filing in the public records of the Borough, reviewing for completeness,
and if appropriate, placing on the Borough Council agenda for consideration,
rate regulatory forms and other filings by cable operators required
to be submitted pursuant to applicable federal law and regulations.
D.
Enforcing
the provisions of this chapter and all decisions of the Borough Council
made hereunder to the fullest extent permitted by federal law and
regulations, subject to the oversight and control of the Borough Council.
E.
Taking
such other actions as may be necessary from time to time, subject
to the oversight and control of the Borough Council, to protect the
rights of the Borough to regulate basic service and associated equipment
rates to the fullest extent permitted by federal law and regulations.
A.
A
cable operator shall file its schedule of rates for the basic service
tier and associated equipment within 30 days of receiving written
notification from the Borough that is has been certified as a franchising
authority to regulate rates. The cable operator shall include rate
cards and channel line-ups with its filing and include an explanation
of any discrepancy in the figures provided in these documents and
its rate filing.
B.
A
cable operator shall provide written notice to each subscriber of
any increase in the rates to be charged for the basic service tier
or associated equipment at least 30 days before any increase becomes
effective.
C.
A
cable operator shall submit to the Borough the rate regulatory forms
required by the FCC, including, but not limited to, FCC Form 1240
and FCC Form 1205, on a periodic basis and in a timely fashion as
required by applicable federal law and regulations. The deadlines
for submission of such forms are dependent upon the cable operator's
election to employ the annual rate adjustment method or the quarterly
rate adjustment method. Should applicable federal law and/or regulations
be amended to alter the rate adjustment methods, then the cable operator
shall comply with such amendments.
D.
A
cable operator shall comply with all requests for information, orders
and decisions of the Borough. No cable operator shall, in any information
submitted to the Borough in making a rate determination pursuant to
an FCC rate regulatory form filing, make any misrepresentation or
willful material omission bearing on any matter within the Borough's
jurisdiction.
A.
Upon receipt of FCC rate regulatory forms, including, but not limited
to, FCC Form 1240 and FCC Form 1205, from a cable operator proposing
any change in basic service and/or associated equipment rates, the
Compliance Officer shall review the forms to determine whether the
filing is complete. If the filing is incomplete, the Compliance Officer
shall notify the cable operator within the applicable time period
required by federal law and regulations and ask the cable operator
to submit such additional information as is necessary to make the
filing complete. The time period for review by the Borough shall be
extended for the cable operator to complete the filing in accordance
with applicable federal law and regulations.
B.
Upon receipt of completed FCC rate regulatory forms from a cable
operator, the Compliance Officer shall make an initial determination
as to whether the proposed rate adjustments are reasonable and lawful
pursuant to applicable federal law and regulations. The Compliance
Officer may engage the services of an expert in cable rate regulation
to assist in making such initial determination.
C.
Should the Compliance Officer make an initial determination that
the cable operator's proposed rates are unreasonable and unlawful,
the Compliance Officer shall place the issue on the Borough Council's
agenda for public consideration in the form of a rate-making proceeding.
The Borough Council shall provide a reasonable opportunity for public
comment and for consideration of the views of interested parties.
D.
Upon conclusion of the rate-making proceeding, the Borough Council
shall render a decision on whether the cable operator's proposed
rates are reasonable and lawful. The Borough Council shall issue a
written decision if it disapproves an initial rate for basic service
and/or associated equipment in whole or in part, disapproves a request
for a rate increase in whole or in part, or approves a request for
a rate increase in whole or in part over the objections of interested
parties. Public notice shall be given regarding any written decision,
including releasing the text of the written decision to the public.
E.
As part of the rate-making proceeding, the Borough may require the
production of proprietary information to make a rate determination.
The Borough shall state a justification for each item of information
requested and, where related to an FCC form, indicate the question
or section of the form to which the request specifically relates.
Upon request by a cable operator, the parties to a rate proceeding
shall have access to such information subject to the Borough's
procedures governing nondisclosure by the parties. Public access to
such proprietary information shall be governed by applicable state
and local law.
In rendering its decisions, the Borough Council shall have the
full authority to order a cable operator to take any and all enforcement
actions permitted by applicable federal law and regulations, including,
but not limited to, the following:
A.
Ordering a cable operator to implement a reduction in basic service
or associated equipment rates where necessary to bring rates into
compliance with the standards set forth in applicable federal law
and regulations.
B.
Prescribing a reasonable rate for basic service or associated equipment
after it determines that a proposed rate is unreasonable and unlawful.
C.
Ordering a cable operator to refund to subscribers that portion of
previously paid rates determined to be in excess of the permitted
tier charge or above the actual cost of equipment, unless the operator
has submitted a cost-of-service showing which justifies the rate charged
as reasonable. Any such refund order shall be further subject to the
limitations contained in applicable federal law and regulations.
In the event that a cable operator does not comply with an order
or decision made pursuant to this chapter and directed specifically
toward the cable operator, the Borough may assess a fine against the
cable operator of not more than $500 per violation. Each day of continuous
violation of any of the provisions of this chapter shall constitute
a separate violation.
