For the purposes of §§ 13-5-1-1 et seq., the following definitions shall apply unless the context clearly indicates or requires a different meaning. 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; words in the singular number include the plural number; and, the masculine gender includes the feminine gender. The words "shall" and "will" are mandatory when applied to any person, and "may" is permissive. Words not defined in Chapter 13, Article 5 shall have the same meaning as in Title VI of Title 47 of the United States Code in effect on October 1, 2001, and, if not defined there, then the same meaning as in Title 47 Code of Federal Regulations, and if not defined there, then shall have their common and ordinary meaning. References to governmental entities (whether the reference is to a person, office, agency or otherwise) refer to those entities or their successors in authority. If specific provisions of law referred to herein are renumbered, then the reference shall be read to refer to the renumbered provision. Unless otherwise specified, references to laws, ordinances or regulations shall be interpreted to include laws, ordinances and regulations now in force or hereinafter enacted or amended.
ACCESS, PEG ACCESS,
or
PEG USE
. The availability of a cable system or open video system for non-commercial public, education or government use (including institutional network use) by various eligible agencies, institutions, organizations, groups, and individuals, including the city and its designated access providers, to acquire, create, and distribute programming not under a grantee's editorial control (except as required by applicable law), including, but not limited to:
(1) Public access or public use. Non-commercial access where organizations, groups, or individual members of the general public are the primary or designated programmers or users having editorial control over their programming.
(2) Education access or education use. Non-commercial access where accredited schools are the primary or designated programmers or users having editorial control over their programming.
(3) Government access or government use. Non-commercial access where government institutions or their designees are the primary or designated programmers or users having editorial control over their programming.
AFFILIATE.
A person that (directly or indirectly) owns or controls, is owned or controlled by, or is under common ownership with another person.
APPLICANT.
Any person which shall have filed a written application for a franchise under §§ 13-5-1-1 et seq. herein provided.
CABLE MODEM SERVICE. A two-way activated system that provides access to the internet and data transmission at speeds at least as great as 200 kilobits per second.
CABLE SERVICE.
The one-way transmission to subscribers of (i) video programming, or (ii) other programming service; and the subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service.
CABLE 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, 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, or connecting to a facility that uses, any public right-of-way within the city; (3) a facility of a common carrier which is subject, in whole or in part, to the provisions of Title II (Common Carriers) of the federal Communications Act of 1934, as amended, 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; (4) any facilities of any electric utility used solely for operating its electric utility systems; or (5) an OVS that is certified by the Federal Communications Commission (FCC).
CHANNEL.
A portion of the electromagnetic frequency spectrum which is used in a cable system or open video system and which is capable of delivering video programming comparable in quality to that delivered by a television broadcast station.
CITY.
The City of Albuquerque; except that, when used to describe a geographic area, the term refers to the boundaries of the City of Albuquerque, New Mexico, as they exist now or may exist in the future via annexation or consolidation.
CITY COUNCIL.
The legislative body of the city, or where specified its designee.
CONSTRUCTION, OPERATION OR REPAIR.
This and similar formulations refer to the named actions interpreted broadly, encompassing, among other things, installation, extension, maintenance, replacement of components, relocation, undergrounding, grading, site preparation, adjusting, testing, make-ready, excavation, and the management of the cable system and its operations.
DIRECTOR OF PUBLIC WORKS
or
DIRECTOR.
The Director of the Public Works Department of the city or his or her designee charged with the administration of the public rights-of-way.
FCC.
The United States Federal Communications Commission.
FRANCHISE.
An authorization granted by the city to the operator of a cable system which authorized the upgrade, maintenance, construction or operation of a cable system, including giving the operator the non-exclusive right to occupy the space, or use facilities upon, across, beneath, or over public rights-of-way in the city, to provide services within a franchise area. A permit is not a franchise.
FRANCHISE AREA.
All parts of the city now existing or hereafter annexed or consolidated.
GRANTEE.
The person to whom a franchise is granted by the city under §§ 13-5-1-1 et seq.
GROSS REVENUES.
Any and all revenue of a grantee, of any kind, nature or form derived from the operation of a cable system to provide cable service. Gross revenues shall be interpreted consistent with FCC regulations and rulings and include, by way of example and not limitation, revenues from equipment sales and rentals, services (including cable modem services, unless such services are determined by statute, the FCC, a court of competent jurisdiction, or local agreement to be other than a cable service), installation, late fees and other subscriber charges, advertising, and shopping services; the term encompasses revenues that are received now, as well as new revenue sources from delivery of cable service that may develop in the future; but it does not extend to amounts received by grantee as a tax, fee or assessment of general applicability collected by grantee for pass-through to a governmental agency or reimbursement from third parties for expenses, nor to bad debt or to refunds or credits issued. Further, gross revenues shall not include any value assigned to non-monetary transactions for cable or other services provided by grantee. The term shall be construed to include revenues of a grantee's affiliates (other than those revenues which are already treated as the revenues of the grantee upon which a fee is paid), only to the extent necessary to prevent avoidance of fees owed on grantee's gross revenues from the delivery of cable service. Cable system revenues shall be as defined by GAAP. Gross revenues shall include cable modem service unless specifically exempted pursuant to any franchise authorized.
MAYOR.
The Mayor or the Mayor's designee.
OPERATOR.
A person or group of persons who (1) provides cable service or open video service over a cable system and directly or through one or more affiliates owns a significant interest in such cable system; or (2) who otherwise controls or is responsible for, through any arrangement, the management and operation of such a cable system.
OVS.
An open video system. A reference to an OVS includes pedestals, equipment enclosures (such as equipment cabinets), amplifiers, power guards, nodes, cables, fiber optics and other equipment necessary to operate the OVS, or installed in conjunction with the OVS.
PEG CHANNEL.
Any channel on a cable system set aside by a grantee for non-commercial public, educational, or governmental access, including by way of example and not limitation, a digital PEG channel or an analog PEG channel.
PERSON.
Any person, individual, firm, organization, corporation, partnership, association, limited liability company, joint stock or other company, business or other trust, public agency, school district, the State of New Mexico, its political subdivisions and/or instrumentalities, or any other legal entity, but not the city.
PUBLIC PROPERTY.
Any property that is owned or under the control of the city that is not a public right-of-way, including but not limited to, buildings, parks, structures such as utility poles and light poles, or similar facilities or property located in a public right-of-way or owned by or leased to the city.
PUBLIC RIGHTS-OF-WAY.
The surface of and the space above and below any street, road, highway, freeway, bridge, lane, path, alley, court, sidewalk, parkway, or right-of-way or easement dedicated to compatible uses, now or hereafter existing within the city which may be properly used for the purpose of installing, maintaining, and operating a cable system; and any other property that a grantee is entitled by state or federal law to use by virtue of the grant of a franchise.
SCHOOL.
Any accredited public or private primary or secondary educational institution that receives Title I funding.
SUBSCRIBER.
The city or any person who lawfully is receiving cable service from a grantee and does not further distribute such service.
USER.
A person or city utilizing a channel, capacity or equipment and facilities of a cable system for purposes of producing or transmitting programming and other communication material, as contrasted with the receipt thereof in the capacity of a subscriber.
(Ord. 24-2002)