[HISTORY: Adopted by the Mayor and Council of the Town of Elsmere 1-13-1994 by Ord. No. 305. Amendments noted where applicable.]
Cable Television Franchise — See Ch. A230.
The Town of Elsmere, as the Franchising Authority for the Town of Elsmere, has the legal authority to administer and shall enforce against any non-municipally-owned cable television system operator, as permitted therein, the provisions of Part 76, Subpart N, of the Rules and Regulations of the FCC, concerning cable rate regulation, 47 CFR 76.900 et seq., as they currently read and hereafter may be amended, which are herewith incorporated by reference.
Any rate regulation proceedings conducted under § 9-1 hereto shall provide a reasonable opportunity for consideration of the views of any interested party, including but not limited to the Franchising Authority or its designee, the cable operator, subscribers and residents of the franchise area. In addition to all other provisions required by the laws of the State of Delaware and the Town of Elsmere for such proceedings, and in order to provide for such opportunity for consideration of the views of any interested party, the Franchising Authority shall take the following actions:
The Franchising Authority shall publish in a local newspaper (and/or, as appropriate, post in a conspicuous place in Town Hall), and mail, by certified mail, to the cable operator a public notice of the intent to conduct a public proceeding on basic service tier rates and/or charges for equipment to receive such basic service tier, as defined by the FCC, the cable operator will pay for any costs associated with the public notice.
Said public notice shall state, among other things, that cable television rates are subject to municipal review and explain the nature of the rate review in question; that any interested party has a right to participate in the proceeding, that public views may be submitted in the proceeding, explaining how they are to be submitted and the deadline for submitting any such view; that a decision concerning the reasonableness of the cable television rates or equipment rate in question will be governed by the Rules and Regulations of the FCC; and that the decision of the Franchising Authority is subject to review by the FCC.
The Franchising Authority shall conduct a public proceeding to determine whether the rates or proposed rate increase or decrease are reasonable and shall be vested with all powers of a presiding officer to conduct such public proceeding.
Nature of the proceeding. The nature of such proceeding will be determined by the Franchising Authority and may include public hearing, opportunities for the submission of written or oral comment, informal meetings or as the Franchising Authority otherwise determines appropriate under the circumstances.
Record. The Franchising Authority will maintain a record of all written submission. At the discretion of the Franchising Authority, in appropriate cases, a transcript of any statement made at a public proceeding will be maintained; provided, however, that the cable operator may request, at the time it submits any proposed rates or changes in rate, that the Franchising Authority direct a transcript of such proceeding, provided further that upon such request the cable operator shall pay all costs of such transcript, including copies for the Franchising Authority, and shall provide two copies of such transcript to the Franchising Authority as soon as reasonably possible.
Delegation. The Franchising Authority may delegate the responsibility to conduct the proceeding to any duly qualified and eligible individual(s) or entity.
Orders. If the Franchising Authority or its designee cannot determine the reasonableness of a proposed rate increase within the time period permitted by the FCC Rules and Regulations, it may toll the effective date of the proposed rates for an additional period of time as permitted by the FCC Rules and Regulations, and issue any other necessary or appropriate order and give public notice accordingly.
In the course of the rate regulation proceeding, the Franchising Authority may request additional information from the cable operator or any other party that is reasonably necessary to determine the reasonableness of the basic service tier rates and equipment charges.
Verification. Any such additional information submitted to the Franchising Authority by the cable operator shall be verified by an authorized representative of the cable television system supervising the preparation of the response on behalf of the entity, and submitted by way of affidavit or under penalty of perjury, stating that the response is true and accurate to the best of that person's knowledge, information and belief formed after reasonable inquiry.
Proprietary information. The Franchising Authority may request propriety information, provided that the Franchising Authority shall consider a timely request from the cable operator that said proprietary information shall not be made available for public information, consistent with the procedures set forth in Section 0.459 of the FCC Rules and Regulations. Furthermore, said proprietary information may be used only for the purpose of determining the reasonableness of the rates and charges or the appropriate rate level based on a benchmark rate or a cost-of-service showing submitted by the cable operator.
Powers. The Franchising Authority may exercise all powers under the laws of evidence applicable to administrative proceedings under the laws of the State of Delaware and of the Town of Elsmere to discover any information relevant to the rate regulation proceeding, including but not limited to subpoena, interrogatories, production of documents and deposition. The Franchising Authority may require the attendance as witness of one or more representatives of the cable operator.
Upon termination of the rate regulation proceeding, the Franchising Authority shall adopt and release a written decision as to whether the rate or proposed rate increase are reasonable or unreasonable, and if unreasonable, its remedy, including prospective rate reduction, rate prescription and refunds.
The Franchising Authority may not impose any fines, penalties, forfeitures or other sanctions, other than permitted by the FCC Rules and Regulations, for charging an unreasonable rate or proposing an unreasonable rate increase. However, the Franchising Authority may impose fines or monetary forfeitures on a cable operator that does not comply with a rate decision or refund order of the Franchising Authority, directed specifically at the cable operator, pursuant to the laws of the State of Delaware, the Codes, Rules and Regulations of the Town of Elsmere.
Consistent with FCC Rules and Regulations, the Franchising Authority's decision may be reviewed only by the FCC.
The Franchising Authority shall be authorized, at any time, whether or not in the course of a rate regulation proceeding, to gather information as necessary to exercise its jurisdiction as authorized by the laws of the State of Delaware, the Communications Act of 1934, as amended, and the FCC Rules and Regulations. Any information submitted to the Franchising Authority shall be verified by an authorized representative of the cable television system supervising the preparation of the response on behalf of the entity, and submitted by way of affidavit or under penalty of perjury, stating that the response is true and accurate to the best of that person's knowledge, information and belief formed after reasonable inquiry.
The Franchising Authority shall file with the FCC the required Certification form (FCC Form 328). Thirty days later, or as soon thereafter as appropriate, the Franchising Authority shall notify the cable operator that the Franchising Authority has been certified by the FCC and that it has adopted all necessary regulations so as to begin regulating basic service tier cable television rates and equipment charges.
With regard to the cable programming service tier, as defined by the Communications Act of 1934, as amended, and the FCC Rules and Regulations, and over which the Franchising Authority is not empowered to exercise rate regulation, the cable operator shall give notice to the Franchising Authority of any change in rate for the cable programming service tier or tiers, any change in the charge for equipment required to receive the tier or tiers, and any changes in the nature of the services provided, including the program services included in the tier or tiers. The cable operator shall provide such notice 30 days before the charges are to become effective.
Except with respect to final rate orders, the Franchising Authority may delegate its powers to enforce this chapter to any qualified and eligible individuals. Such designee will have the authority to:
Administer oaths and affirmations.
Rule upon questions of evidence.
Take or cause depositions to be taken.
Conduct proceedings in accordance with this chapter.
Exclude from the proceeding any person engaging in contemptuous conduct or otherwise disrupting the proceedings.
Hold conferences for the settlement or simplification of the issues by consent of the parties.
Issue notices and orders, take actions and make decisions or recommend decisions in conformity with this chapter.