This public local law shall be known and may
be cited as the "Caroline County Cable Television Franchise Act" (hereinafter
"chapter"). The purposes of this chapter are to establish the terms
and conditions under which a cable television or open video system
occupying the public rights-of-way must operate within Caroline County,
Maryland (which may hereinafter be referred to as "County," "franchising
authority" or "grantor"); to provide for the payment of a franchise
fee to the County for use of public rights-of-way and the costs associated
with administering and regulating the system; and to enhance the County's
authority to grant a cable television system franchise while managing
the public rights-of-way.
For the purpose of this chapter and any franchise
agreement entered into hereunder, the following terms, phrases, words
and their derivations shall have the meaning given herein. Words used
in the present tense include the future, words in the plural number
include the singular number, and words in the singular number include
the plural number. All capitalized terms used in the definition of
any other term shall have their meaning as otherwise defined in this
section. The words "shall" and "will" are mandatory and "may" is permissive.
Words not defined shall be given their common and ordinary meaning.
ACCESS MANAGER
Any entity, including a nonprofit community access corporation,
designated by the County to perform any or all of the following functions:
A.
Manage any necessary scheduling or allocation
of any PEG or institutional network channel capacity; and/or
B.
Program any PEG channel on the County's behalf.
AFFILIATE
Each person who falls into one or more of the following categories:
A.
Each person having a controlling interest in
a grantee;
B.
Each person in which a grantee has a controlling
interest; or
C.
Each person, directly or indirectly, controlling,
controlled by or under common control with a grantee; provided that
"affiliate" shall in no event mean any creditor or a grantee solely
by virtue of its status as a creditor and which is not otherwise an
affiliate by reason of owning a controlling interest in, being owned
by or being under common ownership, common management or common control
with a grantee.
AGREEMENT or FRANCHISE AGREEMENT
A binding contract granting a franchise pursuant to this
chapter, and any amendments, exhibits or appendices thereto, containing
the specific provisions of the franchise granted, including references,
specifications, requirements and other related matters.
BASIC SERVICE or BASIC CABLE TELEVISION SERVICE
Any service tier, which includes the retransmission or delivery
of local television broadcast signals, origination channels and public,
educational and governmental access channels, covered by a regular
monthly charge paid by all subscribers to a particular service tier.
In the event that the definition of basic cable television service
is amended by an act of the United States Congress, under the Cable
Act or otherwise, or by the FCC, then the definition under this section
shall be amended to conform thereto.
CABLE ACT
The Cable Communications Policy Act of 1984 as amended by
the Cable Television Consumer Protection and Competition Act of 1992,
and the Telecommunications Act of 1996, and as may be amended from
time to time.
CABLE TELEVISION SYSTEM or CABLE SYSTEM or SYSTEM
A.
A facility consisting of a set of closed transmission
paths and associated signal generation, reception, transmission and
control equipment that is designed to provide cable television service
which includes video programming and which is provided to multiple
subscribers within Caroline County, 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
any public rights-of-way;
(3)
A facility of a common carrier which is subject,
in whole or in part, to the provisions of Title II of the Cable Act,
except that such facility shall be considered a cable system if 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; or
(4)
Any facilities of any electric utility used
solely for operating its electric utility system.
B.
A reference to a cable system in this chapter
refers to any part of such system, including, without limitation,
converters. The foregoing definition of "cable system" shall not be
deemed to circumscribe or limit the authority of the County to regulate
or franchise the activities of any other communications system or
provider of communications services to the full extent permitted by
law.
CABLE SERVICE
A.
The one-way transmission to subscribers of video
programming or other programming services; and
B.
Subscriber interaction, if any, which is required
for the selection or use of such video programming or other programming
service, as further defined by an act of the United States Congress,
under the Cable Act or otherwise, or by the FCC.
CHANNEL or CABLE CHANNEL
A portion of the electromagnetic frequency spectrum that
is used in a cable system and which is capable of delivering a television
channel, as further defined by an act of the United States Congress,
under the Cable Act or otherwise, or by the FCC.
CONTROL and/or CONTROLLING INTEREST
Actual working control or ownership of a system in whatever
manner exercised. A rebuttable presumption of the existence of control
or a controlling interest shall arise from the beneficial ownership,
directly or indirectly, by any person or entity (except underwriters
during the period in which they are offering securities to the public)
of 25% or more of a cable system or a franchise under which the system
is operated. A change in the control or controlling interest of any
entity which has control or a controlling interest in a grantee shall
constitute a change in the control or controlling interest of the
system under the same criteria. Control or controlling interest as
used herein may be held simultaneously by more than one person or
entity.
CONVERTER
An electronic device which converts signals to a frequency
not susceptible to interference within the television receiver of
a subscriber, and by an appropriate channel selector also permits
a subscriber to view more than 12 channels delivered by a system at
designated converter dial locations.
COUNTY
The County Commissioners of Caroline County, Maryland, and
any agency or department thereof. The County may also be referenced
as "franchising authority" or "grantor."
FRANCHISE
A nonexclusive authorization, or renewal thereof, evidenced
by a written franchise agreement, granted pursuant to this chapter
and applicable law, to construct, operate and maintain a cable system
within the public rights-of-way to provide cable service within all
or a specified area of Caroline County. The term "franchise" includes
the franchise agreement. 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
Caroline County as required by state or local law, ordinances or regulations,
or for attaching devices to poles or other structures, whether owned
by the County or a private entity, or for excavating or performing
other work in or along the public rights-of-way.
FRANCHISE AREA
The geographic area within Caroline County that a grantee
is authorized to serve by its franchise.
FRANCHISE FEE
The fee imposed by the County pursuant to §
90-13 of this chapter. The term "franchise fee" does not include:
A.
Any tax, fee or assessment of general applicability
(including any such tax, fee, or assessment imposed on both utilities
and cable operators);
B.
Capital costs that are required by a franchise
agreement to be incurred by the cable operator for public, educational
or governmental access facilities, or
C.
Requirements or charges incidental to the awarding
or enforcing of a franchise, including payments for bonds, security
funds, letters of credit, insurance, indemnification, penalties or
liquidated damages.
FCC
The Federal Communications Commission and any legally appointed,
designated or elected agent or successor.
GRANTEE
A person or entity to whom or which a franchise is granted
by the County pursuant to this chapter, along with the lawful successors
or assigns of such person or entity.
GROSS REVENUE
All revenue, as determined in accordance with generally accepted
accounting principles, that is derived by the grantee and by each
affiliate from the operation of the cable system to provide cable
services.
[Amended 10-9-2007 by Bill No. 2007-4]
A.
Gross revenue shall include, to the extent it
is received by the grantee, revenue from any other person, including,
without limitation, leased or PEG channel programmers, that is derived
from the operation of the cable system to provide cable services.
B.
Gross revenue shall also include by way of example
and without limitation:
(1)
The fair market value of any nonmonetary (i.e.,
barter) transactions between the grantee and any affiliate, which
fair market value shall not be less than the customary prices paid
in connection with equivalent transactions conducted with persons
who are not affiliates and which would, if received in the form of
cash, otherwise be of a kind or character constituting gross revenue;
(2)
Revenue received by the grantee which represents
or can be attributed to a subscriber fee or a payment for the use
of the cable system for the sale of merchandise through any cable
service distributed over the cable system;
(3)
Franchise fees received from subscribers;
(4)
Fees received from subscribers to support PEG
channels;
(5)
To the extent allowed by applicable law, revenue
generated from the provision of cable modem service and voice over
internet protocol (VOIP) service;
(6)
Any revenue generated by the grantee or by any
affiliate through any means which has the effect of avoiding the payment
of compensation that would otherwise be paid to the grantor for the
franchise granted in this agreement;
(7)
Any revenue from subscriber equipment sold or
leased by the grantee or an affiliate;
(8)
Late fees and administrative fees;
(9)
Revenue derived from program guides;
(10)
Revenue derived from forfeited deposits;
(11)
Revenue derived from installation, disconnection,
or service call fees;
(12)
Revenue derived from game channels;
(13)
Studio rental, rental of or charges for production
equipment, and personnel fees;
(14)
Revenue derived from commissions;
(15)
Any actual bad debt that is written off but
subsequently collected (Such bad debt shall be included as gross revenue
for the period in which it is collected.); and
(16)
Other revenues that may be posted in the general
ledger as an offset to an expense account.
C.
Gross revenue shall also include all advertising
revenue which is derived, directly or indirectly, from or in connection
with the sale of advertising on the cable system, whether by the grantee
or whether collected by an affiliate or any other person for the grantee.
If the advertising revenue received from the affiliate is only net
advertising revenue, advertising revenues from an affiliate shall
be grossed up as if the grantee had received the advertising revenue
directly. Notwithstanding the preceding sentence, standard and reasonable
commissions retained by a regional interconnect that is an affiliate
may be excluded from gross revenue.
D.
Gross revenue shall not include:
(1)
Any compensation awarded to the grantee based
on the grantor's condemnation of property of the grantee;
(2)
The revenue of any person, including, without
limitation, a supplier of programming to the grantee, to the extent
that such revenue is also included in gross revenue of the grantee;
(3)
The revenue of the grantee or any other person
which is generated directly from the sale of any merchandise through
any service distributed over the cable system, other than that portion
of such revenue which represents or can be attributed to a subscriber
fee or a payment for the use of the cable system for the sale of such
merchandise, for example, the portion of such payment attributable
to a commission for the grantee or an affiliate, which portion shall
be included in gross revenue;
(4)
Taxes imposed by law on subscribers which the
grantee is obligated to collect, it being acknowledged that franchise
fees under this agreement are not considered taxes;
(5)
Amounts collected by the grantee from subscribers
on behalf of leased or PEG channel programmers, other than affiliates,
to the extent that all of the amounts collected, in excess of the
amounts deducted and paid to the grantor, are passed on by the grantee
to such programmers;
(6)
The revenue of any affiliate which represents
standard and reasonable amounts paid by the grantee to the affiliate
for ordinary and necessary business expenses of the grantee, including,
without limitation, professional service fees and insurance or bond
premiums;
(7)
Advertising commissions deducted by advertising
agencies, other than an agency which is an affiliate, before advertising
revenues are paid over to the grantee;
(8)
To the extent consistent with generally accepted
accounting principles, consistently applied, actual bad debt write-offs
taken in the ordinary course of business;
(9)
Amounts recovered by the grantee for theft or
loss of portions of the cable system, which amounts were previously
written off;
(11)
Payments received by the grantee or an affiliate
that represent a reimbursement for work performed by the grantee or
its agents on behalf of a contractor or third party, where payment
for such work would not normally be considered gross revenue based
on the nature of the work performed.
INITIAL GRANTEE
A grantee who has not previously been granted a franchise
by the County.
INITIAL SERVICE AREA
All areas in Caroline County that will receive cable service
initially, as set forth in any franchise agreement.
INSTALLATION
The connection of the system to subscribers' terminals, and
the provision of cable service.
NORMAL BUSINESS HOURS
As applied to a grantee, shall mean those hours during which
similar businesses in Caroline County are open to serve customers.
In all cases, normal business hours shall include some evening hours
at least one night per week, and some weekend hours.
NORMAL OPERATING CONDITIONS
Those service conditions which are within the control of
a grantee. Those conditions which are not within the control of a
grantee include, but are not limited to, natural disasters, civil
disturbances, power outages, telephone network outages and severe
or unusual weather conditions. Conditions which are ordinarily within
the control of the grantee include, but are not limited to, special
promotions, pay-per-view events, rate increases, regular peak or seasonal
demand periods and maintenance or upgrade of the cable system.
OUTAGE
The complete loss of picture, sound, or both, on multiple
channels from a common problem which affects multiple customers on
the system.
PERSON
Any natural person or any partnership, association, joint-stock
company, joint venture, domestic or foreign corporation, stock or
nonstock corporation, limited liability company, professional limited
liability company, or organization of any kind, or any lawful successor
thereto or transferee thereof. Such term does not include the County.
PUBLIC RIGHTS-OF-WAY or STREET
The surface of and all rights-of-way and the space above
and below any public street, road, highway, freeway, lane, path, public
way or place, sidewalk, alley, court, boulevard, parkway, drive or
easement now or hereafter held by the County for the purpose of public
travel and shall include other similar easements or rights-of-way
as shall be now held or hereafter held by the County which shall,
within their proper use and meaning, entitle a grantee to the use
thereof for the purposes of installing poles, wires, cable, conductors,
ducts, conduits, vaults, manholes, amplifiers, appliances, attachments
and other property as may be ordinarily necessary and pertinent to
a cable system.
SERVICE INTERRUPTION
The loss of either picture or sound, or both, on one or more
channels, affecting at least one subscriber on the system.
STATE
The State of Maryland.
SUBSCRIBER
Any person lawfully receiving cable service provided by a
grantee by means of or in connection with the cable system and who
pays the charges therefor, except such persons or entities authorized
to receive cable service without charge as provided for in a franchise
agreement.
USER
A person utilizing a cable television system channel for
purposes of production or transmission of material to subscribers,
as contrasted with receipt thereof in a subscriber capacity.
It shall be unlawful for any person to construct,
install or operate a cable television system in Caroline County within
any public right-of-way without a properly granted franchise issued
pursuant to the provisions of this chapter.
Any franchise granted by the County shall grant
to a grantee the nonexclusive right and privilege to erect, construct,
operate and maintain in, upon and along, across, above, over and under
the public rights-of-way, now in existence and as may be created or
established during a franchise term, any poles, wires, cable, underground
conduits, manholes and other television conductors and fixtures necessary
for the maintenance and operation of a cable system to provide cable
service within a franchise area. A franchise granted by the County
does not expressly or implicitly authorize a grantee to provide service
to or install a cable system on private property without the owner's
consent (except for use of compatible easements pursuant to the Cable
Act, or to use publicly or privately owned conduits or any other public
property without a separate agreement with the owners thereof).
Any franchise to provide cable service shall
be valid within all the unincorporated territorial limits of Caroline
County, Maryland, unless otherwise specified in the franchise agreement.
A franchise and the rights, privileges and authority
granted shall take effect and be in force as set forth in the franchise
agreement and shall continue in force and effect for a term of no
longer than 15 years. Such franchise shall be nonexclusive and revocable.
Franchise renewals shall be conducted in accordance
with applicable law, including, but not necessarily limited to, the
Cable Act, as amended. Grantor and grantee, by mutual consent, may
enter into renewal negotiations at any time during the term of the
franchise.
The County shall have the right, during the
term of a franchise, to install and maintain free of charge upon the
poles of a grantee any wire or pole fixtures that do not unreasonably
interfere with the cable television system operations of the grantee.
The County shall indemnify and hold harmless, to the extent permitted
by law, the grantee from any claim that might arise due to or as a
result of such usage.
Costs to be borne by an initial grantee shall
include, but shall not be limited to, any reasonable charges incidental
to the awarding or enforcing of an initial grantee's franchise, all
costs of publications of notices prior to any public meeting provided
for pursuant to this chapter and any costs not covered by application
fees but incurred by the County in its study, preparation of proposal
documents, evaluation of all applications and examinations of the
applicants' qualifications. Any payments made to the County pursuant
to this section shall not be considered franchise fees.
All notices from a grantee to the County pursuant
to this chapter shall be to the County Administrator's office. Every
grantee shall maintain with the County, throughout the term of a franchise,
an address for service of notices by mail. A grantee shall maintain
a central office to address any issues relating to operating under
this chapter.
Minimum public notice of any public meeting
relating to a franchise shall be made as prescribed by the County.
A grantee shall carry insurance in such forms
and in such companies as specified in the franchise agreement.
A grantee shall provide cable service throughout
its entire franchise area pursuant to the provisions of this chapter
and its franchise agreement, and shall keep a record for at least
three years of all requests for service received by the grantee. Upon
reasonable notice, this record shall be available for inspection by
the County at the local office of the grantee during normal business
hours.
A grantee shall have the authority to promulgate
such rules, regulations, terms and conditions governing the conduct
of its business as shall be reasonably necessary to enable the grantee
to exercise its rights and perform its obligations under a franchise
and to assure an uninterrupted service to each and all of its customers;
provided, however, that such rules, regulations, terms and conditions
shall not be in conflict with the provisions of this chapter or applicable
state and federal laws, rules and regulations.
Copies of all petitions, applications, communications
and reports either submitted by a grantee to the FCC, Securities and
Exchange Commission or any other federal or state regulatory commission
or agency having jurisdiction in respect to any matters affecting
cable television operations authorized pursuant to the franchise,
or received from such agencies, shall be provided to the County upon
request.
A grantee shall file annually with the County,
no later than 120 days after the end of the grantee's fiscal year,
a copy of a gross revenues statement certified by an officer of the
grantee.
At the expiration of the term for which a franchise
is granted or if any renewal request is denied, or upon the termination
of a franchise as provided herein, a grantee shall forthwith, upon
reasonable notice by the County, remove at its own expense all designated
portions of its cable television system from all streets and public
property within the County. If a grantee fails to do so within 12
months of notice, the County may perform the work at the grantee's
expense. Upon such notice of removal, a bond shall be furnished by
a grantee in an amount sufficient to cover this expense.
In addition to the inherent powers of the County
to regulate and control a cable television franchise, and those powers
expressly reserved by the County or agreed to and provided for in
a franchise agreement, the right and power is hereby reserved by the
County to promulgate such additional regulations as it shall find
necessary in the exercise of its lawful powers and furtherance of
the terms and conditions of this chapter; provided, however, that
such rules, regulations, terms or conditions shall not be in conflict
with any franchise agreement granted hereunder or applicable state
and federal laws, rules and regulation.
The County reserves the right to regulate rates
for basic cable service and any other services offered over the cable
system, to the extent permitted by federal or state law. The grantee
shall be subject to the rate regulation provisions provided for herein
and those of the FCC. The County shall follow the rules relating to
cable rate regulation promulgated by the FCC.
If any provision of this chapter is held by
any court or by any state or federal agency of competent jurisdiction
to be invalid as conflicting with any federal or state law, rule or
regulation now or hereinafter in effect, or is held by such court
or agency to be modified in an way in order to conform to the requirements
of any such law, rule or regulation, such provision shall be considered
a separate, distinct and independent part of this chapter, and such
holding shall not affect the validity and enforceability of all other
provisions hereof.
A grantee shall not oppose intervention by the
County in any suit or proceeding to which the grantee is a party in
connection with a franchise hereunder.
[Added 11-18-2008 by Bill
No. 2008-8]
The County Commissioners of Caroline County have granted and awarded a cable television franchise pursuant to this Chapter
90 to Comcast of Delmarva, Inc. upon the terms and conditions of this chapter and as may be provided for in the franchise agreement executed in connection with the grant and award of the franchise. A copy of the franchise agreement is available from the Office of the County Administrator upon request.
[Added 6-12-2012 by Bill
No. 2012-5]
The County Commissioners of Caroline County have granted and awarded a cable television franchise pursuant to this Chapter
90 to Atlantic Broadband (Delmar) LLC upon the terms and conditions of this chapter and as may be provided for in the franchise agreement executed in connection with the grant and award of the franchise. A copy of the franchise agreement is available from the Office of the County Administrator upon request.