For the purpose of this chapter 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 number include the singular number. The word "shall" is mandatory and "may" is permissive. Words not defined shall be given their common and ordinary meaning:
Basic cable service means any service tier which includes the retransmission of local television broadcast signals.
Cable service means the one-way transmission to subscribers of (i) video programming (ii) 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 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 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 any public right of way;
(3) A facility of a common carrier which is subject, in whole or in part, to the provisions of title II of the Communications Act, except that such facility shall be considered a cable system (other than for purposes of section 621 (c)) of the communications act 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) An open video system that complies with section 653 of the Communications Act; or
(5) Any facilities of any electric utility used solely for operating its electric utility system.
Cablecast signal means a nonbroadcast signal that originates within the facilities of the cable communications system.
Channel means a frequency band, which is capable of carrying either one standard video signal, a number of audio, digital or other nonvideo signals or some combination of such signals.
Closed-circuit or institutional service means such video, audio, data and other services provided to institutional users on an individual application basis. These may include, but are not limited to, one-way video, two-way video, audio or digital signals among institutions to residential subscribers.
Commercial subscriber means a subscriber who receives a service in a place of business where the service may be utilized in connection with a business, trade or profession.
Communications act means the communications act of 1934 as it may be amended.
Converter means an electronic device which converts signals to a frequency not susceptible to interference within the television receiver of a subscriber, and any channel selector which permits a subscriber to view all signals delivered at designated converter dial locations at the set or by remote control.
Council means the council of the town of Cary.
CPI shall mean the national percentum increase for the most recently completed calendar year of the average consumer price index for all items as published by the bureau of labor statistics of the United States department of labor, subject to maximum limits as may be set forth within the franchise agreement.
Discrete channel shall mean a channel which can only be received by the person and/or institution intended to receive signals on such channel.
Downstream signal means a signal originating from or provided by a cable television system to a subscriber terminal or other terminal including video, audio, or digital signals or any other type of data or information for either programs or other uses such as security alert services, etc.
Drop shall mean a connection from feeder cable to the subscriber/user television set, radio or other terminal.
Educational access channel means any channel designated for noncommercial educational access use.
Fair market value means the price that a willing buyer would pay to a willing seller for a going concern based on the system valuation prevailing in the industry at the time.
FCC means the federal communications commission.
Franchise means the nonexclusive rights granted pursuant to this chapter to construct, operate and maintain a cable system along the public ways within all or a specified area in the town. Any such authorization, in whatever form granted, shall not mean or include any license or permit or other nondiscriminatory charge required for the privilege of transacting and carrying on a business within the town as required by other ordinances and laws of the town.
Franchise area means the entire town, or portions thereof, for which a franchise is granted under the authority of this chapter or the franchise. If not otherwise stated in the franchise, the franchise area shall be the corporate limits of the town, including all territory thereafter annexed to the town.
Franchise fee means the percentage, as specified by the town, of the franchisee's gross revenues in exchange for the rights granted pursuant to this chapter and the franchise.
Government access channel means any channel specifically designated or dedicated for noncommercial government access use.
Grantee or franchisee means the natural person(s), partnership(s), domestic and foreign corporation(s), association(s), joint venture(s), or organization(s) of any kind which has been legally granted a franchise by the town, and its lawful successor, transferee or assignee.
Grantor means the town of Cary as represented by the town council acting within the scope of its jurisdiction.
Gross annual revenues or gross revenues means all revenues received directly or indirectly from the operation of the cable system to provide cable service in the town by the grantee, its affiliates, subsidiaries or any person in which grantee has a financial interest. Gross revenue shall include, but not be limited to:
(1) All cable service fees;
(2) franchise fees;
(3) Installation and reconnection fees;
(4) Upgrade and downgrade fees;
(5) Advertising revenue;
(6) Home shopping commissions;
(7) Converter and remote control rental fees;
(8) Lockout device fees; and
(9) Unless excluded under generally accepted accounting principles ("GAAP"), guides and late fees.
Gross Revenues shall not include:
a. The revenues of any entity or Person where such revenues have been included in grantee's gross revenues so as to preclude double imposition of franchise fees;
b. Bad debt write-offs; or
c. Any taxes on services furnished by a grantee which are imposed upon any Subscriber or User by the state, town or other governmental unit and collected by the grantee on behalf of said governmental unit.
Installation shall mean the connection of the system from feeder cable to subscribers' terminals.
Leased access channel, or commercial access channel means any channel designated or dedicated for use by persons unaffiliated with the grantee, at rates which are fair and reasonable.
Monitoring means observing a communications signal, or the absence of a signal, where the observer is not a party to the communication, whether the signal is observed by visual or electronic means, for any purpose whatsoever.
Narrowcasting shall mean the ability to distribute cable programming to a particular segment or segments of the cable subscribers.
Normal business hours means those hours during which most similar businesses in the community are open to serve customers. In all cases, "normal business hours" must include some evening hours at least one night per week and/or some weekend hours.
Normal operating conditions means those service conditions which are within the control of the cable operator. Those conditions which are not within the control of the cable operator 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 cable operator include, but are not limited to, special promotions, pay-per-view events rate increases, regular peak or seasonal demand periods, and maintenance or upgrade of the cable system.
Operator shall mean the entity granted a franchise.
Origination site means a location capable of transmitting audio-video television signals to the operator's headend or other location as provided.
OVS shall refer to open video system as defined by the federal communications commission.
Person means an individual, partnership, association, organization, corporation or any other legal entity including any lawful successor transferee of said individual, or entity.
Plant mile means a linear mile of strand-bearing cable as measured on the street or easement from pole to pole or pedestal to pedestal. In cases where cable is on both sides of the street, only the cable on one side of the street will be utilized in measuring a plant mile.
Public access channel means any channel designated or dedicated for use by the general public or noncommercial organizations which is made available for noncommercial access use without charge on a first-come, first-served, nondiscriminatory basis.
Public way or 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, park, parkways, waterways, utility easements or other public right of way, including state and private streets, or hereafter held by the town which shall entitle the town and the company to the use thereof for the purpose of installing and maintaining the company cable television system. No reference herein, or in any franchise, to the "public way" shall be deemed to be a representation or guarantee by the town that its title to any property is sufficient to permit its use for such purpose, and the grantee shall, by its use of such terms, be deemed to gain only such rights to use property in the town as the town may have the undisputed right and power to give.
Reasonable notice shall be written notice addressed to the grantee at its principal office within the town or such other office as the grantee has designated to the town as the address to which notice shall be transmitted to it, which notice shall be certified and postmarked not less than seven business days prior to that day in which the party giving such notice shall commence any action which requires the giving of notice. In computing said seven business days, town holidays shall be excluded.
Resident means any person residing in the town as otherwise defined by applicable law.
Residential subscriber means a subscriber who receives a service in an individual dwelling unit where the service is not to be utilized in connection with a business, trade or profession.
Sale shall include any sale, exchange or barter.
School means any state accredited public or nonprofit educational institution including primary and secondary schools, colleges and universities.
Service interruption means the loss of picture or sound on one or more cable channels.
State means the state of North Carolina.
Town means the town of Cary, North Carolina.
Transfer means the disposal of the franchise by the grantee, directly or indirectly, by gift, assignment, voluntary sale, merger, consolidation or otherwise. "transfer" shall also mean a sale or fundamental corporate change of or in grantee, including, but not limited to, a fundamental corporate change in grantee's parent corporation or any entity having a controlling interest in grantee, the sale of controlling interest in the grantee's assets, a merger, including a merger of a subsidiary and parent entity, consolidation, or the creation of a subsidiary or affiliate entity.
(Ord. No. 04-009, § 6-3, 8-26-2004)