(A) Definitions. For the purposes of this franchise, the following terms, phrases, words and their derivations shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future, words in the plural include the singular, and words in the singular include the plural. Words not defined shall be given their common and ordinary meaning. The word "shall" is always mandatory and not merely directory.
ACCESS. The availability for noncommercial use by various agencies, institutions, organizations, groups and individuals in the community, including the city and its designees, of the cable system to acquire, create, receive, and distribute video cable services and other services and signals as permitted under applicable law including but not limited to:
(a) PUBLIC ACCESS. Access where community- based, noncommercial organizations, groups or individual members of the general public, on a nondiscriminatory basis, are the primary users.
(b) EDUCATIONAL ACCESS. Access where schools are the primary users having editorial control over programming and services. For purposes
of this definition, "school" means any state-accredited educational institution, public or private, including, for example, primary and secondary schools, colleges and universities.
(c) GOVERNMENT ACCESS. Access where governmental institutions or their designees are the primary users having editorial control over programming and services.
ACCESS CHANNEL or PEG CHANNEL. Any channel or portion thereof designated for access purposes or otherwise made available to facilitate or transmit access programming or services.
ACTIVATED. The status of any capacity or part of the cable system in which any cable service requiring the use of that capacity or part is available without further installation of system equipment, whether hardware or software.
AFFILIATE. When used in connection with grantee, means any person who owns or controls, is owned or controlled by, or is under common ownership or control with grantee.
APPLICABLE LAW. Any statute, ordinance, judicial decision, executive order or regulation having the force and effect of law that determines the legal standing of a case or issue.
BAD DEBT. Amounts lawfully billed to a subscriber and owed by the subscriber for cable service and accrued as revenues on the books of grantee, but not collected after reasonable efforts have been made by grantee to collect the charges.
BASIC SERVICE. The level of programming service that includes the retransmission of local television broadcast channels and is made available to all cable services subscribers in the franchise area.
BROADCAST CHANNEL. Local commercial television stations, qualified low power stations and qualified local noncommercial educational television stations, as referenced under 47 USC §§ 534 and 535.
BROADCAST SIGNAL. A television or radio signal transmitted over the air to a wide geographic audience and received by a cable system by antenna, microwave, satellite dishes or any other means.
CABLE ACT. Title VI of the Communications Act of 1934, as amended.
CABLE OPERATOR. Any person or groups of persons, including grantee, who provide(s) cable service over a cable system and directly or through one or more affiliates owns a significant interest in such cable system or who otherwise control(s) or is (are) responsible for, through any arrangement, the management and operation of such a cable system.
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 SYSTEM. Any facility, including grantee's, consisting of a set of closed transmissions 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:
(a) A facility that serves only to retransmit the television signals of one or more television broadcast stations;
(b) A facility that serves subscribers without using any right-of-way;
(c) A facility of a common carrier which is subject, in whole or in part, to the provisions of Title II of the Federal Communications Act (47 U.S.C. 201 et seq.), except that such facility shall be considered a cable system (other than for purposes of Section 621(c) (47 U.S.C. 541(c))) 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;
(d) An open video system that complies with federal statutes; or
(e) Any facilities of any electric utility used solely for operating its electric utility systems.
CHANNEL. A portion of the electromagnetic frequency spectrum which is used in the cable system and which is capable of delivering a television channel (as television channel is defined by the FCC by regulation).
CITY. Albuquerque, New Mexico, a body politic and incorporated with home-rule powers under the laws of the State of New Mexico.
CITY COUNCIL. The Albuquerque City Council, or its successor, the governing body of the City of Albuquerque, New Mexico.
COMMERCIAL SUBSCRIBERS. Any subscribers other than residential subscribers.
DESIGNATED ACCESS PROVIDER. The entity or entities designated now or in the future by the city to manage or co-manage access channels and facilities. The city may be a designated access provider.
DIGITAL STARTER SERVICE. The tier of optional video programming services, which is the level of cable service received by most subscribers above basic service, and does not include premium services.
DOWNSTREAM. Carrying a transmission from the headend to remote points on the cable system or to interconnection points on the cable system.
DWELLING UNIT. Any building or portion thereof that has independent living facilities, including provisions for cooking, sanitation and sleeping, and that is designed for residential occupancy. Buildings with more than one set of facilities for cooking shall be considered multiple dwelling units unless the additional facilities are clearly accessory.
FCC. The Federal Communications Commission.
FIBER OPTIC. A transmission medium of optical fiber cable, along with all associated electronics and equipment, capable of carrying cable service by means of electric lightwave impulse.
FRANCHISE or FRANCHISE ORDINANCE. The document in which this definition appears, i.e., the contractual agreement, executed between the city and grantee, containing the specific provisions of the authorization granted, including references, specifications, requirements and other related matters.
FRANCHISE AREA. The area within the jurisdictional boundaries of the city, including any areas annexed by the city during the term of this franchise.
GRANTEE. Comcast of New Mexico, LLC, or its lawful successor, transferee or assignee.
GROSS REVENUES. Means and shall be construed broadly to include all revenues derived directly or indirectly by grantee and/or an affiliate that is the cable operator of the cable system, from the operation of grantee's cable system to provide cable services within the city.
(a) GROSS REVENUES include, by way of illustration and not limitation:
(i) Fees for cable services, regardless of whether such cable services are provided to residential or commercial subscribers, including revenues derived from the provision of all cable services (including but not limited to pay or premium cable services, digital cable services, pay-per-view, pay-per-event and video-on-demand cable services);
(ii) Installation, reconnection, downgrade, upgrade or similar charges associated with changes in subscriber cable service levels;
(iii) Repair, maintenance or service call charges;
(iv) Payments made by non-subscriber third parties to grantee for access to grantee's cable system and derived from the operation of grantee's cable system for the provision of cable services within the city;
(v) Fees paid to grantee for channels designated for commercial/leased access use, which shall be allocated on a pro rata basis using total cable service subscribers within the city;
(vi) Converter, remote control, and other cable service equipment rentals, leases, or sales;
(vii) Advertising revenues as defined herein;
(viii) Late fees, convenience fees, administrative fees and similar multi-service fees, which shall be allocated on a pro rata basis using cable services revenue as a percentage of total subscriber revenues within the city;
(ix) Revenues from program guides;
(x) Franchise fees and PEG fees;
(xi) FCC regulatory fees; and
(xii) Commissions from home shopping channels and other cable service revenue sharing arrangements, which shall be allocated on a pro rata basis using total cable service subscribers within the city.
(b) ADVERTISING REVENUES shall mean revenues derived from sales of advertising that are made available to grantee's cable system subscribers within the city and shall be allocated on a pro rata basis using total cable service subscribers reached by the advertising. Additionally, grantee agrees that gross revenues subject to franchise fees shall include all commissions, representative fees, affiliate entity fees, or rebates paid to National Cable Communications and Comcast Spotlight or their successors associated with sales of advertising on the cable system within the city, allocated according to this subsection using total cable service subscribers reached by the advertising.
(c) GROSS REVENUES shall not include:
(i) Actual bad debt write-offs, except any portion which is subsequently collected which shall be allocated on a pro rata basis using cable services revenue as a percentage of total subscriber revenues within the city;
(ii) Any taxes and/or fees on services furnished by grantee imposed by any municipality, state or other governmental unit, provided that franchise fees, the PEG fee and the FCC regulatory fee shall not be regarded as such a tax or fee;
(iii) Fees imposed by any municipality, state or other governmental unit on grantee;
(iv) Launch fees and marketing co-op fees received as reimbursement by programmers for the introduction of new programming; and
(v) Unaffiliated third-party advertising sales agency fees which are reflected as a deduction from revenues.
(d) To the extent revenues are received by grantee for the provision of a discounted bundle of services which includes cable services and non-cable services, grantee shall calculate revenues to be included in gross revenues using a methodology that allocates revenue on a pro rata basis when comparing the bundled service price and its components to the sum of the published rate card. Except as required by specific federal, state or local law, it is expressly understood that equipment may be subject to inclusion in the bundled price at full rate card value. This calculation shall be applied to every bundled service package containing cable service from which grantee derives revenues in the city. The city reserves its right to review and to challenge grantee's calculations.
(e) Grantee reserves the right to change the allocation methodologies set forth in this definition in order to meet the standards required by governing accounting principles as promulgated and defined by the Financial Accounting Standards Board ("FASB"), the Emerging Issues Task Force ("EITF") and/or the U.S. Securities and Exchange Commission ("SEC"). Grantee will explain and document the required changes to the city within three months of making such changes and as part of any audit or review of franchise fee payments, and any such changes shall be subject to subsection (f) below.
(f) Resolution of any disputes over the classification of revenue should first be attempted by agreement of the parties, but should no resolution be reached, the parties agree that reference shall be made to generally accepted accounting principles ("GAAP") as promulgated and defined by the FASB, EITF and/or the SEC. Notwithstanding the forgoing, the city reserves its right to challenge grantee's calculation of gross revenues, including the interpretation of GAAP as promulgated and defined by the FASB, EITF and/or the SEC.
HEADEND. Any facility for signal reception and dissemination on a cable system, including cables, antennas, wires, satellite dishes, monitors, switchers, modulators, processors for broadcast signals, equipment for the interconnection of the cable system with adjacent cable systems and interconnection of any networks which are part of the cable system, and all other related equipment and facilities.
LEASED ACCESS CHANNEL. Any channel or portion of a channel commercially available for video programming by persons other than grantee, for a fee or charge.
MAYOR. The Mayor of the city or designee.
PERSON. Any individual, sole proprietorship, partnership, association, or corporation, or any other form of entity or organization.
PREMIUM SERVICE. Programming choices (such as movie channels, pay-per-view programs, or video on demand) offered to subscribers on a per- channel, per-program or per-event basis.
RESIDENTIAL SUBSCRIBER. Any subscriber who receives cable service delivered to dwelling units or multiple dwelling units, excluding such multiple dwelling units billed on a bulk-billing basis.
RIGHT-OF-WAY. 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: streets, roadways, highways, avenues, lanes, alleys, bridges, sidewalks, easements, and similar public property and areas.
STATE. The State of New Mexico.
SUBSCRIBER. Any person that elects to subscribe to, for any purpose, cable service provided by grantee by means of or in connection with the cable system and whose premises are physically wired and lawfully activated to receive cable service from grantee's cable system, and that is in compliance with grantee's regular and nondiscriminatory terms and conditions for receipt of service.
SUBSCRIBER NETWORK. That portion of the cable system used primarily by grantee in the transmission of cable services to residential subscribers.
TELECOMMUNICATIONS. The transmission between or among points specified by the user of information of the user's choosing, without change in the form or content of the information as sent and received (as provided in 47 U.S.C. Section 153(50)).
TELECOMMUNICATIONS SERVICE. The offering of telecommunications for a fee directly to the
public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used (as provided in 47 U.S.C. Section 153(53)).
TIER. A group of channels for which a single periodic subscription fee is charged.
TWO-WAY. The cable system is capable of providing both upstream and downstream transmissions.
UPSTREAM. Carrying a transmission to the headend from remote points on the cable system or from interconnection points on the cable system.
(B) Exhibits.
(1) Exhibit A, Franchise Fee Reporting Form.
(2) Exhibit B, Customer Service Standards.
(3) Exhibit C, Dark Fiber Contract.