[HISTORY: Adopted by the Mayor and Council
of the Town of Elsmere 1-13-1994 by Ord. No. 305. Amendments noted where
applicable.]
GENERAL REFERENCES
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:
A.
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.
B.
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.
C.
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.
(1)
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.
(2)
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.
(3)
Delegation. The Franchising Authority may delegate
the responsibility to conduct the proceeding to any duly qualified
and eligible individual(s) or entity.
(4)
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.
D.
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.
(1)
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.
(2)
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.
(3)
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.
E.
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.
F.
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.
G.
Consistent with FCC Rules and Regulations, the Franchising
Authority's decision may be reviewed only by the FCC.
H.
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:
A.
Administer oaths and affirmations.
B.
Issue subpoenas.
C.
Examine witnesses.
D.
Rule upon questions of evidence.
E.
Take or cause depositions to be taken.
F.
Conduct proceedings in accordance with this chapter.
G.
Exclude from the proceeding any person engaging in
contemptuous conduct or otherwise disrupting the proceedings.
H.
Hold conferences for the settlement or simplification
of the issues by consent of the parties.
I.
Issue notices and orders, take actions and make decisions
or recommend decisions in conformity with this chapter.
