(1) Generally. For the purposes of this article, the following terms, phrases, words, and abbreviations shall have the meanings given herein, unless otherwise expressly stated. 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; and words in the singular number include the plural number; and the masculine gender includes the feminine gender. "And" and "or" may be read conjunctively or disjunctively. The words "shall" and "will" are mandatory, and "may" is permissive. Unless otherwise expressly stated, words not defined in this article shall be given the meaning set forth in 47 USC, and, if not defined therein, their common and ordinary meaning. References to governmental entities (whether persons or entities) 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. References to laws, ordinances or regulations shall be interpreted broadly to cover government actions, however nominated, and include laws, ordinances and regulations now in force or hereinafter enacted or amended.
(2) Definitions.
Affiliate, means a person that, (directly or indirectly), owns or controls, is owned or controlled by, or is under common ownership or control with, another person.
Cable service means:
1. The one-way transmission to subscribers of (i) video programming, or (ii) other programming service, and
2. Subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service.
Cable System means 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 terms 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 public right-of-way; (C) a facility of a common carrier which is subject, in whole or in part, to the provisions of Title II (Common Carriers) of the 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; or (D) any facilities of any electric utility used solely for operating its electric utility systems; or (E) an open video system that is certified by the FCC. A reference to a cable system includes pedestals, equipment enclosures (such as equipment cabinets), amplifiers, power guards, nodes, cables, fiber optics and other equipment necessary to operate the cable system.
Construction, operation or repair. "Const- ruction, operation or repair" and similar formulations of that term means the named actions interpreted broadly, encompassing, among other things, installation, extension, maintenance, replacement of components, relocation, undergrounding, grading, site preparation, adjusting, testing, make-ready, and excavation.
FCC means the Federal Communications Commission or its designee.
Franchise refers to the authorization granted by the city to an operator of a cable system or an open video system, giving the operator the non-exclusive right to provide, through facilities maintained or operated upon, across, beneath, or over any public right-of-way in the city, a specified service within a franchise area. Any such authorization, in whatever form granted, shall not mean or include: (i) any other permit or authorization required for the privilege of transacting and carrying on a business within the city required by the ordinances and laws of the city; (ii) any permit, agreement or authorization required in connection with operations on public streets or property including, without limitation, permits and agreements for placing devices on or in poles, conduits or other structures, whether owned by the city or a private entity, or for excavating or performing other work in or along public rights-of- way.
Franchise Agreement means a contract entered into in accordance with the provisions of this chapter between the city and a franchisee that sets forth, subject to this chapter, the terms and conditions under which a franchise will be exercised.
Franchise area means the area of the city that a franchisee is authorized to serve by its Franchise Agreement.
Franchisee refers to a person holding a franchise issued under this chapter, or a franchise issued prior to this chapter, subject to the provisions of Section 5-12 hereof.
License refers to the legal authorization, terminable at will, to use a particular, discrete and limited portion of the public rights-of-way.
Open Video System, or "OVS", refers to a facility consisting of a set of transmission paths and associated signal generation, reception, and control equipment that is designed to provide cable service, which includes video programming, which is provided to multiple subscribers within a community, and which the Federal Communications Commission or its successor has certified as compliant with Part 76 of the Rules of the Federal Communications Commission, 47 CFR 76, as amended from time-to-time.
Operator, when used with reference to a system, refers to a person (A) who provides service over a cable system or an open video system and directly or through one or more affiliates owns a significant interest in such facility; or (B) who otherwise controls or is responsible for, through any arrangement, the management and operation of such a facility.
Person includes any individual, corporation, partnership, association, joint stock company, trust, or any other legal entity, but not the city.
Public rights-of-way means the surface, the air space above the surface, and the area below the surface of any public street, highway, lane, path, alley, sidewalk, boulevard, drive, bridge, tunnel, parkway, waterway, public easement, or similar property in which the city now or hereafter holds any property interest, which, consistent with the purposes for which it was dedicated, may be used for the purpose of constructing, operating and repairing a cable system or open video system. Public rights-of- way do not include buildings, parks, or other property owned or leased by the city. No reference herein, or in any franchise agreement, to a public right-of-way shall be deemed to be a representation or guarantee by the city that its interest or other right to control the use of such property is sufficient to permit its use for such purposes, and a franchisee shall be deemed to gain only those rights to use as are properly in the city and as the city may have the undisputed right and power to give.
Telecommunications services means the transmission, for hire, of information in electronic or optical form, including, but not limited to voice, video, or data, whether or not the transmission medium is owned by the provider itself. "Telecommunications services" includes telephone service but does not include over-the-air broadcasts to the public-at-large from facilities licensed by the Federal Communications Commission or any successor thereto.
Transfer means any transaction in which: (i) all or a portion of the cable system or open video system is sold or assigned (except a sale or assignment that results in removal of a particular portion of the facility from the public rights-of-way); (ii) there is any change, acquisition, or direct or indirect transfer of control of the franchisee or licensee; or (iii) the rights and/or obligations held by the franchisee or licensee under the franchise or license are transferred, sold, assigned, or leased, in whole or in part, directly or indirectly, to another party. In succeeding provisions of this chapter, all these activities are referred to as franchise transfers.
(Ord. No. 00-31, § 1, 6-20-00)
(1) Every operator must obtain. A cable operator must obtain a franchise prior to constructing a cable system or providing cable service; an operator of an open video system must obtain a franchise before constructing an open video system or providing services via an open video system. No franchise shall become effective without the franchisee entering into a franchise agreement with the city. The fact that a cable system or open video system may be used for multiple purposes does not obviate the need to obtain a franchise, license, or other authorization for those other purposes. By way of illustration and not limitation, a cable operator of a cable system must obtain a cable franchise, and, should it intend to provide telecommunications services over the same facilities, it must comply with requirements applicable to providers of telecommunications services or to operators of telecommunication facilities.
(2) Purpose and characteristics. The purpose of requiring authorizations by service is to ensure as far as possible and appropriate that persons providing similar services are treated similarly, considering differences in circumstances, and to comply with requirements of federal law which may require the city to separate its authority over cable systems or open video systems from its authority over other providers of telecommunications services, the city shall require individual franchises for the provision of particular services. The revocation of a franchise for one particular service in and of itself will not affect the authority of a franchise holder to continue to provide services for which it holds other franchises. No franchise shall be exclusive and competition shall be encouraged. The issuance of a franchise shall not affect the city's right to itself construct, operate, or repair any cable system or open video system, with or without a franchise.
(3) Exceptions. A franchise requirement may be waived for a cable system or an open video system that is not designed to provide service in the city, and that does not provide service in the city. For such facilities, the city may issue a license. Every license shall require the licensee to obtain a franchise if it is determined that the license is being used in a manner that creates a competitive advantage for that operator or otherwise unduly discriminates in favor of such operator. In any case, the license must provide that if limitations of license are violated, the licensee must pay the maximum franchise fee required by Articles IIB and IIC and otherwise bring itself into compliance with this chapter.
(4) Nature of grant. Neither a franchise nor a license shall convey title, equitable or legal, in the rights-of-way. The right is only the personal right to occupy rights-of-way, for the purposes and for the period stated in the franchise or license; the right may not be subdivided or subleased.
(Ord. No. 00-31, § 1, 6-20-00) Penalty, see Section 5-11
(2) Exceptions. The franchise fees required under Articles IIB and IIC need not be paid if:
(A) State law or Charter requires otherwise; or during any transition period for a current franchise holder. In cases subject to this exception, the highest permissible fee shall be paid.
(B) In the case of a cable system or an open video system that is not designed to provide service in the city, and that does not provide service in the city. The city shall establish a fee in lieu of the fees specified in Articles IIB and IIC that recovers an amount equivalent to the fair market value of the property used in the City and reserves the right to charge additional fees as contemplated by Section 5-8(4).
(3) Application to persons that provide different types of services. The fact that a fee is paid on one type of service provided over a cable or open video system, does not excuse an operator from its duty to pay fees on other types of services provided over that facility. As an example, and not as a limitation of the foregoing, a cable operator that pays a franchise fee on revenues derived from the provision of cable services must pay the fees imposed upon telecommunication service providers to the extent that it provides telecommunications services; likewise, the operator of a telecommunications facility must pay a franchise fee to the extent it provides cable services to subscribers via a cable system.
(4) General rules for payment of fees.
(A) Unless otherwise specified in a franchise agreement or a license, franchise and license fees shall be paid to the city quarterly, and not later than forty-five (45) calendar days after the end of each calendar quarter.
(B) Unless a franchise agreement or license provides otherwise, each franchise or license fee payment shall be accompanied by a statement showing the manner in which the fee was calculated.
(C) No acceptance by the city of any franchise or license fee shall be construed as an accord that the amount paid is in fact the correct amount, nor shall such acceptance of such franchise fee payment be construed as a release of any claim the city may have for additional sums payable.
(D) The franchise or license fee payment is not a payment in lieu of any tax, fee or other assessment except as specifically provided in this title, or as required by applicable law. By way of example, and not limitation, permit fees and business license taxes are not waived and remain applicable, and other fees and assessments to recover costs associated with operating and maintaining the right-of-way that may be established from time to time by resolution of the city commission.
(E) Within ninety (90) calendar days following the end of the calendar year, each person which paid a franchise fee based upon gross revenues shall submit a statement, attested to by a certified public accountant or the chief financial officer of such person, setting forth gross revenues of the cable or open video system, by category, and describing what revenues were included and what revenues, if any, generated or derived from operations in the city were excluded in the fee calculation, and any adjustments made to gross revenues. If payments are late, in addition to paying any applicable penalties or damages, the person that owes the fee shall pay interest on the amount owed at the statutory interest rates applicable to judgments.
(F) The city may, upon five (5) business days advance written notice, inspect and examine any and all books and records reasonably necessary to the determination of whether fees have been accurately computed and paid.
(G) Notwithstanding the foregoing, in the event that a person that is obligated to pay a fee ceases to provide service for any reason (including as a result of a transfer), such person shall make a final payment of any amounts owed to the city within ninety (90) calendar days of the date its operations in the city cease, and shall provide a statement of gross revenues for the calendar year through the dates operations ceased, which statement shall contain the information and certification required by Section 5-8(4)(E).
(Ord. No. 00-31, § 1, 6-20-00) Penalty, see Section 5-11
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