(a) As used in this chapter, the following words and terms have the following meanings:
(1) “Applicable law” means all lawfully enacted and applicable Federal, State and County laws, ordinances, codes, rules, regulations and orders, as the same may be amended or adopted from time to time.
(2) “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 subscriber, except a signal which is secondarily transmitted 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.
(3) “Cable service” means:
A. The one-way transmission to subscribers of
1. Video programming, or
2. Other programming service, and
B. Subscriber interaction, if any, which is required for the selection of such video programming or other programming service.
(4) “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 Loudoun County. 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 Telecommunications Act of 1996; or
F. The facilities of any other person that is required to obtain a franchise or permit for the use of the public rights-of-way to provide cable service under applicable law. 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 County 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.
(5) “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.
(6) “County” means Loudoun County, organized and existing under the laws of the Commonwealth of Virginia, and the area within its territorial limits.
(7) “County Administrator” means the present or succeeding chief executive officer of the County (or his or her designee) who is appointed by the Board of Supervisors.
(8) “County Board of Supervisors” or “Board of Supervisors” or “Board” means the County Board of Supervisors of Loudoun County, Virginia.
(9) “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.
(10) “Depreciated value” means the value as shown on the grantee's books and records of all the cable system's tangible assets, after depreciation, which shall be calculated to the end of the grantee's fiscal year. Such value shall not include goodwill or any value that the grantee's books and records attribute to the franchise.
(11) “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 and sale multiples prevailing in the industry at the time at which the Board elects to exercise its options.
(12) “Federal Communications Commission” or “FCC” is that Federal agency as presently constituted by the Communications Act of 1934, as amended, or any successor agency.
(13) “Franchise” means a non-exclusive authorization granted in accordance with this chapter 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 County, to provide cable service. Any such authorization, in whatever form granted, shall not mean or include:
A. Any other permit or authorization required for the privilege of transacting and carrying on a business within the County required by the ordinances and laws of the County;
B. 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 County or a private entity, or for excavating or performing other work in or along public rights-of-way; or
C. 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. 541(a)(2)).
(14) “Franchise area” means the area of the County that a grantee is authorized to serve by its franchise agreement.
(15) “Franchise agreement” means a contract entered into in accordance with the provisions of this chapter between the County and a grantee that sets forth, subject to this chapter, the terms and conditions under which a franchise will be exercised.
(16) “Grantee” means a natural person, partnership, domestic and/or foreign corporation or entity, association, joint venture or organization of any kind, granted a franchise by the Loudoun County Board of Supervisors under this chapter, and its lawful successor, transferee or assignee.
(17) “Gross revenues” means all amounts, which are received, directly or indirectly, by a grantee from or in connection with the operation of the system, including, without limitation:
A. 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, as defined by Federal law, over the system or the provision of any service-related activity in connection with the operation of the system.
B. Revenue received from subscribers for installation, change in service and reconnection charges and similar fees.
C. 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.
D. Revenue received from subscribers for service charges and late fees attributable to delinquent accounts.
E. Revenue received from third parties, including advertising revenue, home shopping commissions, guide commissions, leased access payments and studio and other facilities or equipment rentals.
F. Any payment or consideration (including copyright and franchise fees, but excluding any utility users tax or new sales tax imposed by the County or the State or Federal government) collected for direct payment to a third party. Franchise fees paid to the County are not deemed to be taxes and are not to be deducted from the total gross revenue figure on which franchise fees are paid.
G. Revenue received by the grantee from the delivery of other communications services over its cable system, including, without limitation, telephony, data transmission, interactive services and other broadband information services, to the extent that the inclusion of such revenue is not prohibited by law and is defined as a cable service under Federal law or by the franchise agreement.
H. 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 County that would otherwise be paid herein.
I. There shall be deducted from gross revenue:
1. Bad debts written off by the 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 the grantee in accordance with generally accepted accounting principles, for the purpose of determining gross revenues, shall be the aggregate revenue received by the grantee from such other sources during the period in question multiplied by a fraction, the numerator of which shall be the number of the grantee's subscribers in the County as of the last day of such period, and the denominator of which shall be the number of subscribers within all areas served by the grantee's regional cable system (if any) as of the last day of such period.
(18) “Normal business hours” means twelve hours per day on weekdays and four hours on weekends, excluding holidays.
(19) “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.
(20) “Person” means an individual, partnership, association, joint stock company, organization, corporation, or any lawful successor thereto or transferee thereof, but such term does not include the County.
(21) “Public rights-of-way” or “public way” means the surface, the air space above the surface, and the area below the surface of any public street, road, highway, lane, path, alley, sidewalk, boulevard, drive, bridge, tunnel, parkway, waterway, easement, or similar property in which the County 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 right-of- way shall be deemed to be a representation or guarantee by the County that its interest or other right to control the use of such property is sufficient to permit its use for such purposes, and a grantee shall be deemed to gain only those rights to use as are properly in the County and as the County may have the undisputed right and power to give.
(22) “Service interruption” means the loss of picture or sound on one or more cable channels.
(23) “Subscriber” means any person who legally receives any cable service delivered over a cable system.
(24) “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 building, 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.
(b) The definitions contained in this chapter rely on those contained in the Communications Act of 1934 (47 U.S.C. 521 et seq.), as it is from time to time amended and interpreted. Any ambiguity shall be resolved by reference to the Federal statutes and regulations and the decisions interpreting the same.
(Ord. 98-05. Passed 4-15-98.)