(A) For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
CABLE ACT. Title 47 of the United States Code, Chapter 5, Subchapter V-A, 47 U.S.C. §§ 521 et seq., as amended from time to time.
CABLE SERVICE. The term as defined in 47 U.S.C. § 522(6).
COMMISSION. The Illinois Commerce Commission.
COUNTY. The County of Madison, Illinois, and its agencies, departments, agents and employees acting within their respective areas of authority.
COUNTY BOARD or BOARD. The governing body of the county.
FCC. The Federal Communications Commission, its designee or any successor governmental entity thereto.
FRANCHISE AGREEMENT. A contract entered into in accordance with the provisions of this chapter between the county and a franchisee that sets forth, subject to this chapter, the terms and conditions under which a franchise will be exercised.
FRANCHISE AREA. The area of the county that a franchisee is authorized to serve by its franchise agreement.
FRANCHISE TRANSFER.
(a) Any transaction in which:
1. Any ownership or other right, title or interest of more than 10% in a franchisee or its cable system is transferred, sold, assigned, leased, sublet, mortgaged or otherwise disposed of or encumbered directly or indirectly, voluntarily or by foreclosure or other involuntary means, in whole or in part;
2. There is any change in or substitution of, or acquisition or transfer of control of, the franchisee or any person which has more than a 10% interest in a franchisee or has responsibility for or control over a franchisee’s operations or over the system; or
3. The rights or obligations held by the franchisee under the franchise are transferred, directly or indirectly, to another person.
(b) CONTROL means the legal or practical ability to direct the affairs of another person, either directly or indirectly, whether by contractual agreement, majority ownership interest, any lesser ownership interest or in any other manner.
(c) A rebuttable presumption that a change, acquisition or transfer of control has occurred shall arise upon the acquisition or accumulation of a 10% or larger ownership interest by any person or group of persons acting in concert, none of whom already have more than a 50% ownership interest, alone or collectively.
(d) Notwithstanding the foregoing,
FRANCHISE TRANSFER does not include:
1. Disposition or replacement of worn out or obsolete equipment, property or facilities in the normal course of operating a cable system, including the renewal or extension of equipment or property leases and contracts;
2. Acquisition, transfer, sale or other disposition of leases, licenses, easements and other interests in real property in the normal course of operating a cable system and not involving the relinquishment of any right or power affecting the franchisee’s ability to provide services in whole or in part; or
3. Pledge or mortgage of a franchisee’s assets to a financial institution in return for sums necessary to construct or operate (or both) the cable system, provided that such pledge or mortgage and related agreements obligate and limit such financial institution as follows: any foreclosure or exercise of lien over the franchise or facilities shall only be by assumption of control over the entire cable system; prior to assumption of control, the institution shall notify the county that it or a designee acceptable to the county will take control of and operate the system, and shall submit a plan for such operation ensuring continued service and compliance with this chapter, and all franchise obligations during the term the institution exercises such control; and the institution shall not exercise control for longer than one year unless extended by the county for good cause and shall prior to the expiration of such period (as extended) obtain the county’s approval of a franchise transfer for the remaining term of the franchise or award of a new franchise to another qualified person pursuant to this chapter.
FRANCHISEE. A person that has been granted a franchise by the county in accordance with this chapter.
GROSS REVENUES. All consideration of any kind or nature, including, without limitation, cash, credits, property and in-kind contributions received by the holder for the operation of a cable or video system to provide cable service or video service within the holder’s cable service or video service area within the county.
(a) GROSS REVENUES shall include the following:
1. Recurring charges for cable or video service;
2. Event-based charges for cable service or video service, including, but not limited to, pay-per-view and video-on-demand charges;
3. Rental of set top boxes and other cable service or video service equipment;
4. Service charges related to the provision of cable service or video service, including, but not limited to, activation, installation and repair charges;
5. Administrative charges related to the provision of cable service or video service, including, but not limited to, service order and service termination charges;
6. Late payment fees or charges, insufficient funds check charges and other charges assessed to recover the costs of collecting delinquent payments;
7. A pro rata portion of all revenue derived by the holder or its affiliates pursuant to compensation arrangements for advertising or for promotion or exhibition of any products or services derived from the operation of the holder’s network to provide cable service or video service within the county. The allocation shall be based on the number of subscribers in the county divided by the total number of subscribers in relation to the relevant regional or national compensation arrangement;
8. Compensation received by the holder that is derived from the operation of the holder’s network to provide cable service or video service with respect to commissions that are received by the holder as compensation for promotion or exhibition of any products or services on the holder’s network, such as a “home shopping” or similar channel, subject to division (a)9. below;
9. In the case of a cable service or video service that is bundled or integrated functionally with other services, capabilities or applications, the portion of the holder’s revenue attributable to the other services, capabilities or applications shall be included in the gross revenue unless the holder can reasonably identify the division or exclusion of the revenue from its books and records that are kept in the regular course of business; and
10. The service provider fee permitted by 220 ILCS 5/21-801(b).
(b) GROSS REVENUES do not include any of the following:
1. Revenues not actually received, even if billed, such as bad debt, subject to 220 ILCS 5/21-801(c)(1)(vi);
2. Refunds, discounts or other price adjustments that reduce the amount of gross revenues received by the holder of the state-issued authorization to the extent the refund, rebate, credit or discount is attributable to cable service or video service;
3. Regardless of whether the services are bundled, packaged or functionally integrated with cable service or video service, any revenues received from services not classified as cable service or video service, including, without limitation, revenue received from telecommunication services, information services or the provision of directory or internet advertising, including yellow pages, white pages, banner advertisement and electronic publishing or any other revenues attributed by the holder to noncable service or non-video service in accordance with the holder’s books and records and records kept in the regular course of business and any applicable laws, rules, regulations, standards or orders;
4. The sale of cable services or video services for resale in which the purchaser is required to collect the service provider fee from the purchaser’s subscribers to the extent the purchaser certifies in writing that it will resell the service within the County and pay the fee permitted by 220 ILCS 5/21-801(b) with respect to the service;
5. Any tax or fee of general applicability imposed upon the subscribers or the transaction by a city, state, federal or any other governmental entity, collected by the holder of the state-issued authorization, and required to be remitted to the taxing entity, including sales and use taxes;
6. Security deposits collected from subscribers; and
7. Amounts paid by subscribers to “home shopping” or similar vendors for merchandise sold through any home shopping channel offered as part of the cable service or video service.
(c) Revenue of an affiliate of a holder shall be included in the calculation of
GROSS REVENUES to the extent the treatment of the revenue as revenue of the affiliate rather than the holder has the effect of evading the payment of the fee permitted by 220 ILCS 5/21-801(b) which would otherwise be paid by the cable service or video service.
HOLDER. A person or entity that has received authorization to offer or provide cable or video service from the Commission pursuant to 220 ILCS 5/21-401.
NORMAL BUSINESS HOURS. 8:00 a.m. to 5:00 p.m., Monday through Friday.
NORMAL OPERATING CONDITIONS. Those service conditions that are within the control of a franchisee. Conditions that are not within the control of a franchisee include, but are not limited to, natural disasters, civil disturbances, power outages in excess of two hours in length, telephone network outages and severe or unusual weather conditions. Conditions that are within the control of a franchisee include, but are not limited to, special promotions, rate increases, regular peak or seasonal demand periods, maintenance or upgrade of the cable system, and power outages of two hours or less in length.
PERSON. An individual, partnership, limited liability corporation or partnership, association, joint stock company, trust, organization, corporation or other entity, or any lawful successor thereto or transferee thereof, but such term does not include the county.
PUBLIC RIGHTS-OF-WAY. The surface, the air space above the surface and the area below the surface of any public street, right-of-way, highway, lane, path, alley, way for public service facilities, sidewalk, boulevard, drive, bridge, tunnel, park, parkway, waterway, easement, playgrounds, school grounds 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 franchisee 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.
RFP. Request for proposal.
SALE. Any sale, exchange or barter transaction.
SERVICE. The provision of cable service or video service to subscribers and the interaction of subscribers with the person or entity that has received authorization to offer or provide cable or video service from the Commission pursuant to 220 ILCS 5/21-401.
SERVICE INTERRUPTION. The loss of picture or sound on one or more cable channels.
SERVICE PROVIDER FEE. The amount paid under this chapter and 220 ILCS 5/21-801 by the holder to a county for the service areas within its territorial jurisdiction.
SUBSCRIBER. Any person who legally receives any cable service delivered over a cable system and the county in its capacity as a recipient of such service.
USER. A person utilizing part or all of a cable system for purposes of producing or transmitting video programming or other programming services as contrasted with the receipt thereof in the capacity of a subscriber.
VIDEO SERVICE. Video programming and subscriber interaction, if any, that is required for the selection or use of such video programming services, and which is provided through wireline facilities located at least in part in the public right-of-way without regard to delivery technology, including internet protocol technology. This definition does not include any video programming provided by a commercial mobile service provider defined in 47 U.S.C. § 332(d) or any video programming provided solely as part of, and via, service that enables users to access content, information, electronic mail or other services offered over the public internet.
(B) When not inconsistent with the context, words used in the present tense include the future tense and vice versa, words in the plural number include the singular number, and vice versa, and the masculine gender includes the feminine gender and vice versa. The words “shall” and “will” are mandatory, and “may” is permissive. Unless otherwise expressly stated or clearly contrary to the context, terms, phrases, words and abbreviations not defined herein shall be given the meaning set forth in Title 47 of the United States Code, Chapter 5, Subchapter V-A, 47 U.S.C. §§ 521 et seq., as amended, and regulations issued pursuant thereto, and, if not defined therein, their common and ordinary meaning. For convenience, federal and state definitions are set forth in Appendix A to this chapter, which glossary may be revised by the County Attorney to reflect subsequent changes in federal law without the need for an amendment of this chapter.
(1993 Code, § 72.004) (Ord. 96-12, passed 10-16-1996; Ord. 2013-04, passed 3-20-2013)