As used in this article, the following words and terms have the following meanings:
Applicable law means all lawfully enacted and applicable federal, state, and city laws, ordinances, codes, rules, regulations, and orders as the same may be amended or adopted from time to time.
Basic service tier. A basic service tier shall, at a minimum, consist of the following: All signals carried in fulfillment of the requirements of sections 614 (47 U.S.C. 534) and 615 (47 U.S.C. 535) of the Communications Act of 1934, as amended. Each such tier shall also include any public, educational and governmental access programming required by the franchise of the cable system to be provided to subscribers; and any signal of any television broadcast station that is provided by the cable operator to any subscribers (except a signal which is secondarily transmitted by a satellite carrier beyond the local service area of such station), plus any additional video programming signals the cable operator desires to be added to the basic tier.
Cable service means (a) the one-way transmission to subscribers of (i) video programming, or (ii) other programming service, and (b) 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 the city. Such term shall 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 of the Communications Act of 1934, except that such facility shall be considered a cable system (other than for purposes of section 621(c)) to the extent such facility is used in the transmission of video programming directly to subscribers; (d) any facilities of any electric utility used solely for operating its electric utility systems; (e) an open video system that complies with the requirements of the Cable Act. A reference to a cable system refers to any part thereof, including, without limitation, converters. The foregoing definition of cable system shall not be deemed to circumscribe or limit the valid authority of the city to regulate or franchise the activities of any other telecommunications system or provider of telecommunications services to the full extent permitted by law. Any franchise agreement shall define the services any franchisee is authorized to provide.
Cable system operator means any person, group of persons, firm or corporation (a) who provides cable service over a cable television system and directly or through one or more affiliates owns a significant interest in such cable system, or (b) who otherwise controls or is responsible for, through any arrangement, the management and operation of such cable system.
City means the City of Longview, a municipality and home rule city, organized and existing under the laws of the State of Texas and its city Charter, and the area within its territorial limits.
City Council or Council. Wherever the words Council or City Council are used, they shall be construed to mean the City Council of the City of Longview, Texas.
Communications Act of 1934 means the legislation passed by Congress in 1934 that established a national telecommunications goal of high quality, universally available telephone service at reasonable cost. The Act also established the Federal Communications Commission (FCC). The Cable Communications Policy Act of 1984, the Cable Television Consumer Protection and Competition Act of 1992, and the Telecommunications Act of 1996 have all amended the Communications Act of 1934 as newer telecommunications technologies and national policies have evolved.
Federal Communications Commission
or
FCC. That federal agency as presently constituted by the Communications Act of 1934, as amended, or any successor agency.
Franchise means a non-exclusive authorization granted in accordance with this article and exercised in accordance with a franchise agreement to install cables, wires, lines, optical fiber, underground conduit, and other devices necessary and appurtenant to the construction, operation, and maintenance of a cable system along the public rights-of-way within all or a portion of the city to provide cable service. 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, franchise for non-cable services, 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; or (iii) express or implicit authorization to provide cable service to, or install a cable system on, private property without owner consent (except for use of compatible easements pursuant to section 621(a)(2) of the Cable Act, 47 U.S.C. section 541(a)(2).
Franchise agreement means a contract entered into in accordance with the provisions of this article between the city and a grantee that sets forth, subject to this article, the terms and conditions under which a franchise will be exercised.
Franchise area means the area of the city that a grantee is authorized to serve by its franchise agreement.
Grantee. A natural person, partnership, domestic and or foreign corporation or entity, association, joint venture or organization of any kind granted a franchise by the City Council under this article and its lawful successor, transferee or assignee.
Gross revenues means all amounts, which are charged and/or received, directly or indirectly, by a grantee from or in connection with the operation of the cable system to provide cable services including, without limitation:
Any revenue received from subscribers, including but not limited to revenue for basic service, expanded basic service, other tier services, additional outlets, FM service, commercial service, premium channel service, pay-per-view service and related per-event services, or for the distribution of any other cable service over the system, including internet access and related internet services, or the provision of any service-related activity in connection with the operation of the system.
Revenue received from subscribers for installation, change in service and reconnection charges and similar fees.
Revenue received from subscribers for converters, remote controls or other equipment leased or rented to subscribers in connection with the delivery of cable services to such subscribers.
Revenue received from subscribers for service charges and late fees attributable to delinquent accounts.
Revenue received from third parties, including advertising revenue, tower rental revenues, home shopping commissions, guide commissions, leased access payments, and studio and other facilities or equipment rentals.
Revenue shall include any payment or consideration (including copyright and franchise fees, but excluding any utility users tax or new sales tax imposed by the city, state, or federal government) collected for direct payment to a third party. Franchise fees paid to the city are not deemed to be taxes and are not to be deducted from the total gross revenue figure on which franchise fees are paid.
Gross revenues shall include amounts collected from subscribers for franchise agreement fees in accordance with the Court of Appeals decision resolving the case commonly known as the Dallas or Baltimore case, In re: United Artists Cable of Baltimore, 11 FCC Rcd 18,158 (FCC 96-188, April 26, 1996); reversed by the United States Court of Appeals for the 5th Circuit sub nom City of Dallas v. FCC. 119 F/ 3d 917 (5th Cir 1997).
Gross revenue shall also include the gross revenue of any other person which is derived directly or indirectly from or in connection with the operation of a system to the extent that said revenue is derived, through a means which has the effect of avoiding the payment of franchise fees to the city that would otherwise be paid herein.
There shall be deducted from gross revenue:
(1) Bad debts written off by grantee in the normal course of its business, provided, however, that bad debt recoveries shall be included in gross revenue.
(2) Refunds made to subscribers or other third parties.
In computing gross revenue from sources other than a grantee's subscribers, including without limitation, revenue derived from the sale of advertising, home shopping services, guide sales, the lease of channel capacity on its cable system, or any other such revenues derived from the operation of the cable system, the amount of such revenues attributable or allocated to grantee in accordance with generally accepted accounting principles, for the purpose of determining gross revenues, shall be the aggregate revenue received by grantee from such other sources during the period in question multiplied by a fraction, the numerator of which shall be the number of grantee's subscribers in the city as of the last day of such period and the denominator of which shall be the number of subscribers within all areas of such period.
Person means an individual, partnership, association, joint stock grantee, organization, corporation, or any lawful successor thereto or transferee thereof, but such term does not include 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, 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 installing and maintaining, a cable system. No reference herein, or in any franchise agreement, to a public rights-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.
Subscriber. Any person who legally receives any service delivered over a cable system.
Total number of subscribers means the number of subscribers determined as follows: In the event a single fee is paid for service to a multiple dwelling unit the number of equivalent subscribers shall be determined by dividing such fee by the then prevailing basic service tier rate and rounding the resulting quotient to the nearest whole number. To this number shall be added the number of all other subscribers.
The definitions contained in this article rely on those contained in the Communications Act of 1934 (47 U.S.C. Section 521 et seq.), as it is from time to time amended and interpreted. Any ambiguity shall be resolved by reference to the federal statutes, regulations and the decisions interpreting the same.
(Ord. No. 2801, § 3, 2-25-99)