For the purposes of this chapter, the following terms, phrases, words, and abbreviations shall have the meanings given herein. 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. The words “shall” and “will” are mandatory, and “may” is permissive. Words not defined in this chapter shall have the same meaning as in Title VI of the Communications Act of 1934, as amended, 47 U.S.C. § 521 et seq., 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.
ACCESS, PEG ACCESS, or PEG USE. The availability of a cable system or open video system for public, education or government use (including institutional network use) by various agencies, institutions, organizations, groups, and individuals, including the city and its designated access providers, to acquire, create, and distribute programming not under a franchisee's editorial control, including, but not limited to:
(1) EDUCATION ACCESS or EDUCATION USE. Access where accredited educational institutions are the primary or designated programmers or users having editorial control over their communications;
(2) GOVERNMENT ACCESS or GOVERNMENT USE. Access where government institutions or their designees are the primary or designated programmers or users having editorial control over their communications;
(3) PUBLIC ACCESS or PUBLIC USE. Access where organizations, groups, or individual members of the general public, on a non-discriminatory basis, are the primary or designated programmers or users having editorial control over their communications;
AFFILIATE. A person that (directly or indirectly) owns or controls, is owned or controlled by, or is under common ownership or control with, another person.
BASIC SERVICE. Any service tier regularly provided to all subscribers which includes the retransmission of local television broadcast signals.
CABLE ACT. The Cable Communications Policy Act of 1984, 47 U.S.C. §§ 521 et seq., as amended by the Cable Television Consumer Protection and Competition Act of 1992, as further amended by the Telecommunications Act of 1996, as further amended from time to time.
CABLE COMMUNICATIONS SYSTEM. Open video systems (OVS) and cable systems.
CABLE SERVICE. Shall include the following:
(1) The one-way transmission to subscribers of video programming or 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. 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: (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, or connecting to a facility that uses, any public right-of-way within the city; (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 (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, unless the extent of such use is solely to provide interactive on-demand services; (D) any facilities of any electric utility used solely for operating its electric utility systems; or (E) an OVS that is certified by the FCC. Any reference to a cable system includes the cable system as a whole, or any part thereof, including all facilities, pedestals, equipment cabinets, electronic equipment and devices appurtenant to the system.
CHANNEL. A portion of the electromagnetic frequency spectrum which is used in a cable system or OVS and which is capable of delivering a television signal, whether in an analog or digital format. The definition does not restrict the use of any channel to the transmission of analog television signals or one way transmission.
CITY. The City of Eureka in its present incorporated form and all departments, divisions, and agencies thereof, or any later reorganized, consolidated, enlarged or reincorporated form.
CITY MANAGER. The City Manager or the City Manager's designee.
CONSTRUCTION, OPERATION OR REPAIR AND THE LIKE. 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.
DOWNSTREAM CHANNEL. A channel designed and activated to carry a transmission from the headend to other points on a cable communications system, including interconnections.
FCC. The Federal Communications Commission.
FRANCHISE. An authorization granted by the city to the operator of a cable communications system, 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 specified services within a franchise area.
FRANCHISE AREA. The area of the city that a franchisee is authorized to serve by the terms of its franchise or by operation of law.
FRANCHISE FEE. In consideration of the grant and exercise of a franchise to construct, install, operate, or provide services using a cable communications system in the public rights-of-way, a grantee shall pay to the city a franchise fee expressed as a percentage of gross revenues. The franchise shall specify the fee to be paid, and the gross revenues to be included in the fee calculation. If a franchise granted pursuant to this chapter specifies a franchise fee established as the result of limiting applicable law, the city shall have the option to renegotiate the amount of the franchise fee upon a change in applicable law. Nothing herein requires a person to pay amounts in excess of any limits that may be established by state or federal law.
FRANCHISEE or GRANTEE. A person holding a cable communications system franchise granted by the city.
GROSS REVENUES. All cash, credits, property, or other consideration of any kind or nature received directly or indirectly by a grantee or its affiliates, from any source whatsoever arising from, attributable to, or in any way derived from a grantee's operation of a cable system within the franchise area. Gross revenues include, but are not limited to, fees charged to subscribers for basic service; fees charged to subscribers for any optional, premium, per-channel, or per-program service; monthly fees charged to subscribers for any tier of service other than basic service; installation, disconnection, re- connection and change-in-service fees; leased channel fees; fees, payments or other payment received as consideration from programmers for carriage of programming on the cable system; converter rentals or sales; studio rental, production equipment and personnel fees; advertising revenues, including a per capita share of advertising revenues for advertising carried on more than one cable system; revenues from home shopping channels; sales of programming guides; and such other revenue sources as may now exist or hereafter develop. The definition shall be interpreted in a manner which permits the city to collect the maximum franchise fee permitted by law, irrespective of the source of revenue. GROSS REVENUES, however, shall not include any bad debt (defined as unpaid subscriber or advertiser accounts), any taxes on services furnished to a grantee and imposed directly upon any subscriber or user by the state, city or other governmental unit and collected by a grantee on behalf of said governmental unit. The amount paid as a franchise fee shall not be deducted from gross revenues unless required to be deducted under federal law.
LICENSE. The legal authorization, terminable at will, to use a particular, discrete, and limited portion of the public rights-of-way to construct, operate, or repair a communications facility.
OPERATOR. When used with reference to a system, refers to a person or group of persons: (A) who provides service over a cable communications system and directly or through one or more affiliates owns a significant interest in such cable communication system; or (B) who otherwise controls or is responsible for, through any arrangement, the management and operation of such a cable communication system facility.
OVS. An open video system within the meaning of federal law. 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.
PERSON. Includes any individual, corporation, partnership, association, joint stock company, trust 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, for purposes of this chapter, but not limited to, buildings, parks, poles, structures in the public rights-of-way such as utility poles and light poles, or similar facilities or property 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, drive, or right-of-way or easement dedicated for compatible uses, now or hereafter existing within the city which may be properly used for the purpose of installing, maintaining, and operating a cable communications system; and any other property that a franchisee is entitled by state or federal law to use by virtue of the grant of a franchise.
REVOCATION. The city's affirmative act of terminating a franchise.
SCHOOL. Any accredited primary school, secondary school, college, and university.
SUBSCRIBER. The city or any person who is lawfully receiving, for any purpose or reason, any cable service via a cable communications system, whether or not a fee is paid for such service.
TERMINATION. The conclusion of a franchise by any means, including, but not limited to, by expiration of its term, abandonment or revocation.
TRANSFER.
(1) Any transaction in which:
(a) All or a portion of any cable communication system or any rights to use or operate facilities located in the public rights-of-way are sold, conveyed, transferred, assigned, encumbered (except as set forth herein) or leased, in whole or in part, directly or indirectly, by one or more transactions to another person, whether voluntarily or by operation of law or otherwise; or
(b) There is any change, acquisition, or transfer in the identity of the person in control of the grantee, or any person that controls grantee, including, without limitation, forced or voluntary sale, merger, consolidation or receivership; or
(c) The rights or obligations under the franchise are sold, conveyed, transferred, assigned, encumbered (except as set forth herein) or leased, in whole or in part, directly or indirectly, by one or more transactions to another person, whether voluntarily or by operation of law or otherwise. It will be presumed, for purposes of division (1)(b) of this definition, that any transfer or cumulative transfer of a voting interest by a person or group of persons acting in concert of 10% or more of grantee, or person that controls grantee, or any change in the managing general partners of a grantee is a change of control.
(2) TRANSFER does not include:
(a) A lease of channel capacity pursuant to 47 U.S.C. §§ 532 or 573;
(b) The transmission of a commodity or electronic signal using facilities on a common carrier basis;
(c) A lease or other right to use the cable communications system mandated pursuant to 47 U.S.C. § 224; or
(d) A pledge in trust, mortgage or other encumbrance against the cable communications system, or any portion thereof, given to a bona fide institutional lender in connection with a loan or other financing required to secure the construction, operation, or repair of the cable communications system (“loan”) provided that such loan is subject to the rights and powers of the city pursuant to the franchise and applicable law, including, without limitation, the right of the city to approve any transfer upon foreclosure. “Transferring” and “Transferee” shall have correlative meanings.
UPSTREAM CHANNEL. A channel designed and activated to carry transmissions from a point on the cable communications system, other than the headend, to the headend or another point on the cable communications system.
USER. A person or the city utilizing a channel, capacity or equipment and facilities for purposes of producing or transmitting material, as contrasted with the receipt thereof in the capacity of a subscriber.
(Ord. 678-C.S., passed 4-20-04)