This chapter shall be known and may be cited as the "Bar Harbor Cable
Communications Regulatory Ordinance" and, pursuant to 30-A M.R.S.A. § 3008(2)
it shall become effective immediately upon adoption.
A.Â
The Town of Bar Harbor finds that the development of
cable television systems has the potential of greatly benefiting and having
a positive impact on the people of Bar Harbor. Cable technology is rapidly
changing, and cable is expected to play an essential role as part of the Town's
basic infrastructure. Cable television systems extensively make use of scarce
and valuable public rights-of-way, in a manner different from the way in which
the general public uses them, and in a manner reserved primarily for those
that provide services to the public, such as utility companies. The Town finds
that public convenience, safety, and general welfare can best be served by
establishing regulatory powers vested in the Town or such persons as the Town
so designates to protect the public and to ensure that any franchise granted
is operated in the public interest.
B.Â
In light of the foregoing, the following goals and the
state policies set forth at 30-A M.R.S.A. § 3008(1), among others,
underlie the provisions set forth in this chapter:
(1)Â
Cable should be available to as many Town residents as
possible.
(2)Â
A cable system should be capable of accommodating both
the present and reasonably foreseeable future cable-related needs of the community,
to the extent economically feasible.
(3)Â
A cable system should be constructed and maintained during
a franchise term so that changes in technology may be integrated to the maximum
extent that is economically feasible into existing system facilities.
(4)Â
A cable system should be responsible to the needs and
interests of the local community.
C.Â
The Town intends that all provisions set forth in this
chapter be construed to serve the public interest and the foregoing public
purposes and that any franchise issued pursuant to this chapter be construed
to include the foregoing findings and public purposes as integral parts thereof.
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.
Any person who owns or controls, is owned or controlled by, or is
under common ownership or control with a grantee.
Any service tier that includes the retransmission of local television
broadcast signals.
The Cable Communications Policy Act of 1984, 47 U.S.C § 521
et seq., as amended by the Cable Competition and Consumer Protection Act of
1992, the Telecommunications Act of 1996, and as it may be further amended
from time to time.
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:
This term shall have the meaning given it by the Cable Act, as amended.
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 subscribers within the Town, 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 of 1934, except that
such facility shall be considered a cable system 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;
An open video system that complies with federal law; or
Any facilities of any electric utility used solely for operating its
electric utility systems.
A reference to a cable system refers to any part thereof, including,
without limitation, facilities located in the interior of a subscriber's residence
or other premises.
The Federal Communications Commission, its designee, or any successor
governmental entity thereto.
The nonexclusive authorization granted in accordance with this chapter
to construct, operate, and maintain a cable system along the public rights-of-way
within the Town. Any such authorization, in whatever form granted, shall 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 public rights-of-way.
A contract entered into in accordance with the provisions of this
chapter between the Town and a grantee that sets forth, subject to applicable
state and federal law, the terms and conditions under which a franchise will
be exercised.
The term "franchise area" for any franchise granted under this chapter
shall mean the whole of the Town of Bar Harbor. All new or renewal franchise
agreements granted under this chapter shall require the grantee, within a
reasonable period after the effective date of the franchise agreement, to
extend service to all areas of the Town that meet density requirements to
be set out in the franchise agreement. No franchise or renewal franchise approved
under this chapter shall contain density requirements that are less restrictive
than the density requirements of franchise agreements with other grantees
that are then in force.
The natural person(s), partnership(s), domestic or foreign corporation(s),
association(s), joint venture(s), or organization(s) of any kind which has
(have) been granted a cable television franchise by the Town.
Those items within the scope of the term "gross revenues" as used
in the Cable Act, as amended, including any and all cash, credits, or other
consideration of any kind or nature received directly or indirectly by a grantee,
an affiliate of a grantee, or any person in which a grantee has a five-percent
or greater financial interest, or by any other entity that is a cable operator
of a cable system arising from, attributable to, or in any way derived from
the operation of a grantee's cable system to provide cable service, including
the facilities associated therewith.
Gross revenues include, but are not limited to, 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; payments or other consideration received
from programmers for carriage of programming on the system; revenues from
converter rentals or sales; advertising revenues; barter; revenues from program
guides; and revenues from home shopping channels. Gross revenues do not include
reimbursed expenses unless the expense is separately claimed. Gross revenues
earned on a system-wide basis shall be allocated to the Town on the basis
of the ratio of the subscribers in the Town to the total subscribers in all
the franchising authorities served by the system. Gross revenues shall be
the basis for computing the franchise fee under this chapter.
Gross revenues shall not include:
To the extent consistent with generally accepted accounting principles,
actual bad debt writeoffs; provided, however that all or part of any such
actual bad debt that is written off but subsequently collected shall be included
in gross revenues in the period collected;
The value of free cable services provided to the grantee's employees
or to the Town;
Revenues received by an affiliate from the grantee on which the grantee
has already paid the franchise fee;
Any taxes on services furnished by a grantee which are imposed directly
on any subscriber or user by the state, Town, or other governmental unit and
which are collected by a grantee on behalf of said governmental unit; and
Revenues from the provision of telecommunications services.
An individual, partnership, association, joint-stock company, organization,
corporation, or any lawful successor thereto or transferee thereof, but such
term does not include the Town.
The surface, the air space above the surface, and the area below
the surface of any public street, highway, lane, path, alley, sidewalk, boulevard,
drive, bridge, tunnel, park, parkway, waterway, easement, or similar property
in which the Town now or hereafter holds any property interest, or may lawfully
grant the use of, which, consistent with the purposes for which it was dedicated,
may be used for the purpose of installing and maintaining 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 Town that its interest
or other right to control the use of such property is sufficient to permit
its use for such purposes, and a grantee shall be deemed to gain only those
rights to use as are properly in the Town and as the Town may have the undisputed
right and power to give.
Any sale, exchange, or barter transaction.
A package of two or more cable services for which a separate charge
is made by the grantee, other than a package of premium and pay-per-view services
that may also be sold on a true a la carte basis.
Any person who legally receives cable service, whether or not a fee
is paid for such service.
The Town of Bar Harbor, Maine, and any agency, department, or agent
thereof.
Any transaction in which:
An ownership or other interest in a grantee, its cable system, or any
person that is a cable operator of the cable system is transferred from one
person or group of persons to another person or group of persons so that control
of a grantee is transferred; or
The rights or obligations held by a grantee under a franchise agreement
are transferred or assigned to another person or group of persons.
"Control" for these purposes means working control, in whatever manner
exercised. By way of illustration and not limitation, the addition, deletion,
or other change of any general partner of a grantee, any person who owns or
controls a grantee, or a cable operator of a cable system is such a change
of control.
A person or organization utilizing a channel or equipment and facilities
for purposes of producing or transmitting material, as contrasted with the
receipt thereof in the capacity of a subscriber.
