For the purposes of this article, 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. The words "shall"
and "will" are mandatory and "may" is permissive. Words not defined
shall be given their common and ordinary meaning.
ACCESS CHANNELS
Those channels which, by the terms of this article or the
franchise agreement, are required to be kept available by the franchisee
for partial or total dedication to noncommercial educational or governmental
access use.
AFFILIATE
Any person controlling, controlled by, or under common control
with the franchisee.
BASIC CABLE SERVICE
Any service tier which includes the retransmission of local
television broadcast signals and access channels. This definition
shall be consistent with and deemed to change pursuant to any changes
in applicable federal law or the FCC rules.
CABLE ACT
The Cable Communications Policy Act of 1984, Pub. L. No.
98-549, 98 Stat. 2779 (1984) [codified at 47 U.S.C. §§ 521
to 611 (1982 and Supp. V 1987)], as amended by the Cable Television
Consumer Protection and Competition Act of 1992, Pub. L. No. 102-385,
and the Telecommunications Act of 1996, Pub. L. No. 104-104, as may,
from time to time, be amended.
CABLE SERVICE
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.
CABLE TELEVISION SYSTEM, CABLE SYSTEM or SYSTEM
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.
Such term does not include:
A.
A facility that serves only to retransmit the
television signals of one or more television broadcast station;
B.
A facility that serves subscribers without using
any public right-of-way;
C.
A facility of a common carrier which is subject,
in whole or in part, to the provisions of 47 U.S.C. § 201
et seq., except that such facility shall be considered a cable system
[other than for purposes of 47 U.S.C. § 541(C)] to the extent
such facility is used in the transmission of video programming directly
to subscribers; or
D.
Any facilities of any electric utility used
solely for operating its electric utility system.
CHANNEL or CABLE CHANNEL
A six-megahertz portion of the electromagnetic frequency
spectrum which is used in a cable system and which is capable of delivering
a television channel as defined by the Federal Communications Commission.
CITY
The City of Parsons, Kansas, and all territory within its
existing and future territorial corporate limits or jurisdiction for
purposes of this article.
COMPLAINT
Any verbal or written inquiry, allegation or assertion made
by a person requiring subsequent corrective action to the system or
any portion thereof.
FCC
The Federal Communications Commission, its designee, or any
successor thereof.
FRANCHISE
An initial authorization or renewal thereof issued by the
City, whether such authorization is designated as a franchise, permit,
license, resolution, contract, certificate, agreement, or otherwise,
which authorizes the construction or operation of the cable system.
"Franchise" shall include both the franchise granted pursuant to this
article and the franchise agreement, or granting ordinance, and all
rights, powers and privileges thereunder.
FRANCHISE AGREEMENT
The separate agreement or granting ordinance by which the
franchise is granted to the franchisee, as required by this article.
FRANCHISEE
Includes all persons having any rights, powers, privileges,
duties, liabilities, or obligations under this article and the franchise
agreement (herein collectively called the "franchise") and any lawful
successor, transferee, or assignee of the original franchisee.
FRANCHISOR
The City of Parsons, as represented by the Commissioners
of the City of Parsons or any delegate acting within the scope of
its jurisdiction.
GROSS REVENUES
All revenues received directly or indirectly by the franchisee
arising from or in connection with the provision of cable service
in the City and consistent with local, state, and federal law, including
but not limited to subscriber revenues (including pay TV), advertising
income, home shopping programs, rentals of equipment, antenna, or
signal space, and any and all other gross revenues received by the
franchisee from the provision of cable service in the area under the
jurisdiction of the City of Parsons. The franchisee is not required
to include revenues recorded as received but which are bad debt, but
it must include any recoveries of bad debt. This definition of "gross
revenues" also does not include any sales, excise or other taxes collected
by the franchisee on behalf of a federal, state, county, city, or
other governmental unit.
INSTALLATION
The act of connecting the system from the feeder cable to
the subscriber terminal so that cable service may be received by the
subscriber.
NORMAL BUSINESS HOURS
Those hours during which most similar businesses in the community
are open to serve customers. At the request of the City, "normal business
hours" will include some evening hours at least one night per week
and/or some weekend hours, but the franchisee shall not be required
to exceed 40 hours in any week.
NORMAL OPERATING CONDITIONS
Those service conditions which are within the control of
the franchisee. Those conditions which are not within the control
of the franchisee include, but are not limited to, natural disasters,
civil disturbances, power outages, telephone network outages, and
severe or unusual weather conditions. Those conditions which are ordinarily
within the control of the franchisee include, but are not limited
to, special promotions, pay TV events, rate increases, regular peak
or seasonal demand periods, and maintenance or upgrade of the system.
PAY TV
The delivery over the system of per-channel or per-program
programming to subscribers for a separate fee or charge from basic
cable service.
PERSON
Any natural person or any association, firm, individual,
partnership, joint-stock company, joint venture, corporation, or other
legally recognized entity, public or private, whether for profit or
not for profit.
SERVICE AREA
The entire geographic area within this City as it is now
constituted or may in the future be constituted, unless otherwise
specified in the franchise agreement.
STATE OF THE ART
A.
Equipment and/or activation of two-way capability
that:
(1)
Is readily available with reasonable delivery
schedules from two or more sources of supply;
(2)
Has the capability to perform the intended functions
demonstrated within communities with similar characteristics (including
but not limited to population, density, and subscriber penetration)
under actual operating conditions for purposes other than test or
experimentation; and
(3)
Can be implemented by the franchisee in an economically
feasible manner.
B.
"State of the art" does not include equipment
or facilities associated with public, educational, or governmental
access.
STREET
Each of the following which have been dedicated to the public
or are hereafter dedicated to the public and maintained under public
authority or by others and located within the City limits: streets,
roadways, highways, avenues, lanes, alleys, sidewalks, easements,
rights-of-way and similar public property and areas that the City
shall permit to be included within the definition of "street" from
time to time.
SUBSCRIBER
Any person who lawfully receives the cable service provided
by the franchisee.
VIDEO PROGRAMMING
Programming provided by, or generally considered comparable
to programming provided by, a television broadcast station.
No person shall own or operate a cable system,
as defined herein, in the City except by franchise granted by the
City in the form of a franchise agreement between the City and the
franchisee which shall comply with all the specifications of this
article.
Franchise renewals shall be according to applicable
law. The City and franchisee, by mutual consent, may enter into renewal
negotiations at any time during the term of the franchise. The City
reserves any rights it may have to be compensated for funds expended
as a result of the franchise renewal process as allowed by local,
state, and federal laws. Such compensation, when combined with the
franchise fee imposed by the franchise agreement, shall not exceed
5% of the franchisee's gross revenues for that year. In the event
that the costs incurred by the City will not be fully compensated
in a given year due to the five-percent limit, such amount may be
carried forward for compensation in future years. However, such amounts
may not be carried forward for more than three years after the year
the costs are incurred. This provision does not constitute an agreement
by the franchisee to reimburse the City for the cost of the application
process.
A franchisee must provide access channels. If
there are one or more franchisees under this article, any new franchisee
must provide at a minimum the same number of channels as the franchisee
with the lowest number of access channels.
The franchisee shall, without charge for installation,
maintenance, or monthly service, provide one outlet of its basic cable
service at each fire and police station, public school, secondary
private school with students receiving funding under Title I of the
Education and Secondary School Act of 1965, City Hall, public library,
rescue squad building, recreation center, and other City facility,
provided that such locations are within 150 feet of the franchisee's
cable system and serviceable through a standard aerial drop. Such
installations shall be made at such reasonable locations as shall
be requested by the respective units of government or educational
institutions. Any charge for relocation of such installations shall,
however, be charged at actual cost. Additional installations at the
same location may be made at cost. No monthly service charges shall
be made for distribution of the franchisee's signals within such publicly
owned buildings. The franchisee shall provide a converter box, if
necessary, for receipt of basic cable service at no cost to each of
the above entities. The franchisee shall also wire any rooms in the
above-described buildings to receive cable at no more than the cost
to the franchisee.
The City has determined that cable television
technology, programs and services are subject to continuing change.
This includes changes in law and regulations as well as technological
and service advancements. For this reason, it is essential that any
franchise which is granted pursuant to this article must include provisions
for periodic review, evaluation and modification and procedures and
requirements relating to evaluation of the state of the art technology
and services, permitting the City to require appropriate upgrade and
changes based upon its review and in accordance with the procedures
outlined in the franchise agreement.
Any damage caused to the property of building
owners or users or any other person by the franchisee's negligence
shall be repaired fully to a condition as good as that prevailing
before said work by the franchisee.
Upon termination of service to any subscriber,
the franchisee shall promptly remove all its facilities and equipment
from the premises of such subscriber upon his or her request.
The franchisee shall not oppose intervention
by the City in any suit or proceeding to which the franchisee is a
party.
The franchisee shall comply with the subscriber
privacy standards located in 47 U.S.C. § 551. If the standards
in 47 U.S.C. § 551 cease to exist, the City shall have the
right to implement the following:
A. No signal shall be transmitted from a subscriber terminal
for purposes of monitoring individual viewing patterns or practices
without the express written permission of the subscriber. The request
for such permission shall be contained in a separate document with
a prominent statement that the subscriber is authorizing the monitoring
and acknowledging the provisions. The authorization shall be revocable
at any time by the subscriber without penalty of any kind whatsoever;
provided, however, that the franchisee shall be entitled, without
permission, to conduct system-wide or individually addressed sweeps
for the purpose of verifying system integrity, controlling return
transmission or billing for services.
The franchisee or applicant for franchise shall
diligently apply for all necessary permits and authorizations required
in the conduct of its business and shall diligently pursue the acquisition
thereof, including necessary pole attachment contracts and necessary
authorizations from the Federal Aviation Administration to construct
such receiving antenna towers as may be required and any necessary
authorizations or waivers from the FCC. After the franchisee has diligently
pursued the acquisition of necessary pole attachment contracts or
other necessary easements, and where such necessary contracts have
not been entered or easements obtained after a reasonable period of
time, the franchisee may submit the matter to the City Commissioners
and the City Commissioners may thereupon provide assistance that may
be necessary to arrive at a solution so that scheduled construction
of the system will not be impaired.
A franchisee shall at all times comply with
the emergency alert system requirements of the FCC. The franchisee
shall, in the case of any emergency or disaster, make its entire system
available without charge to the City or to any other governmental
or civil defense agency that the City shall designate.
The City Commissioners may amend this article
whenever necessary to enable the franchisee to take advantage of any
developments in the field of transmission of communication signals
and upgrade the system which will afford it an opportunity to more
effectively, efficiently or economically serve its customers, provided
that this section shall not be construed to require the City to make
any such amendment.
All persons, including officers of any franchisee,
causing, participating in, or permitting any violation of any provision
of this article shall be severally or jointly liable therefor.
Any proceeding relating to enforcement or interpretation
of the provisions of this article or any franchise granted pursuant
to it shall, if brought in state court, be venued in the County of
Labette, in the State of Kansas, or if brought in federal court shall
be in the Federal District Court in the State of Kansas.
The franchisee shall not be relieved of its
obligation to comply promptly with any of the provisions of the franchise
by any failure of the City to enforce prompt compliance.
If any provision of this article is held by
any court or by any federal or state agency of competent jurisdiction
to be invalid as conflicting with any federal or state law, rule,
or regulation now or hereafter in effect, or is held by such court
or agency to be modified in any 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 article, and such
holding shall not affect the validity and enforceability of all other
provisions hereof. In the event that such law, rule, or regulation
is subsequently repealed, rescinded, amended, or otherwise changed,
so that the provision hereof which had been held invalid or modified
is no longer in conflict with such law, rule, or regulation, said
provision shall thereupon return to full force and effect and shall
thereafter be binding on the City and franchisee, provided that the
City shall give the franchisee 30 days' written notice of such change
before requiring compliance with said provision or such longer period
of time as may be reasonably required for the franchisee to comply
with such provision.