The following words shall have the corresponding meanings set forth in this § 5.28.020 unless the context shall clearly require otherwise. When not inconsistent with the context in which they are used, 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. The word “shall” is always mandatory and not merely directory. The word “may” is not mandatory and is merely permissive.
ACT OR CABLE ACT: The Cable Communications Policy Act of 1984 (47 USC § 521 et seq.) as amended by the Cable Television Consumer Protection and Competition Act of 1992 and the Telecommunications Act of 1996 and subsequent amendments thereto.
AS-BUILT: The Cable Communication System existing and installed within the Service Area from time to time by a Grantee. An as-built map is a map of all of a Grantee’s facilities and equipment located within the Service Area including, but not limited to, the location of all cable.
BASIC CABLE SERVICE: Any service tier which includes, at a minimum, the retransmission of local television broadcast signals as well as all signals of domestic television broadcast stations provided to any Subscriber (except a signal secondarily transmitted by satellite carrier beyond the local service area of such station, regardless of how such signal is ultimately received by the Cable System), any other television signals other than superstations, any educational and governmental programming carried on the basic tier, and any additional video programming signals or service added to the basic tier by the Cable Operator.
BASIC CABLE EQUIPMENT: The equipment used by Subscribers to receive the basic service tier, including, but not limited to, converter boxes, remote controls, connections for additional television sets and cable home wiring.
BOARD: The corporate authorities of the County of McHenry consisting of the Chairman and the County Board members.
BROADCAST SERVICES: A broad category of programming which is received from broadcast television, low-power television and radio stations and is capable of being received in the Service Area.
CABLE COMMUNICATIONS SYSTEM OR SYSTEM (ALSO REFERRED TO AS A “CABLE TELEVISION SYSTEM”, “CABLE SYSTEM”, “CATV SYSTEM” OR “COMMUNITY ANTENNA TV SYSTEM”): A facility consisting of a set of closed transmission paths and associated signal generation, reception and control equipment or other communications equipment, that is designed to provide Cable Service, 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 only Subscribers in one or more Multiple Dwelling Units under common ownership, control or management, unless such facility uses any public right-of-way;
3. A facility of a common carrier, except that such facility shall be considered a Cable System to the extent such facility is used in the transmission of video programming directly to Subscribers; or
4. Any facilities of any electric utility used solely for operating its electric utility system.
CABLECAST SIGNAL: A signal that originates within the facilities of the Cable Communications System.
CABLE SERVICE: The total of the following:
1. The one-way transmission to Subscribers of video programming or other programming services; and
2. Subscriber interaction, if any, which is required for the selection of such video programming or other lawful communication service; and
3. Any other lawful services provided to a Subscriber by a Grantee considered to be a cable service under applicable law.
CHANNEL or CABLE CHANNEL: A portion of the electromagnetic frequency spectrum which is used in a Cable System and which is capable of delivering a television channel as defined by the FCC.
COUNTY: The County of McHenry, its lawful successor, transferee or assignee thereof.
COMMENCE CONSTRUCTION: The time and date when construction of the Cable Communications System is considered to have commenced, which shall be when the first connection is physically made to a utility pole, or undergrounding of cables is initiated, after preliminary engineering and after all necessary permits and authorizations have been obtained.
COMMENCE OPERATION: That time and date when operation of a Cable Communications System is considered to have commenced which shall be when sufficient distribution facilities have been installed so as to permit the offering of full services to every Dwelling Unit located within the Service Area.
COMMERCIAL USE CHANNEL(S): The channel capacity designated for commercial use as defined and required by federal law.
COMPLETION OF CONSTRUCTION: That point in time when all distribution facilities specified in this Ordinance have been installed by a Grantee so as to permit the offering of Cable Service to all of the potential Subscribers in the Service Area, as well as the provision, in an operational state, of any facilities required by this Ordinance.
CONTROL or CONTROLLING INTEREST: Actual working control or ownership of the Cable System in whatever manner exercised. A rebuttable presumption of the existence of control or a controlling interest shall arise from the beneficial or other ownership, directly or indirectly, by any person or entity (except underwriters during the period in which they are offering securities to the public) of five percent or more of a Cable System or the Franchise under which the System is operated. However, a change in the control or controlling interest of an entity which has control of, or a controlling interest in, a Grantee shall constitute a change in the control or controlling interest of the Cable System under the same criteria. Control or controlling interest as used herein may be held simultaneously by more than one person or entity.
CONVERTER: An electronic device which converts signal carriers from one form to another.
DWELLING UNIT: Any individual, residential place of occupancy.
EDUCATIONAL AND GOVERNMENTAL ACCESS FACILITIES (ALSO REFERRED TO AS EG ACCESS FACILITIES): Education and government channels provided by a Grantee on a Cable System and shall consist of the:
1. Channel capacity designated for educational or governmental use; and
2. Facilities and equipment for the use of such channel capacity.
FCC: The Federal Communications Commission and any legally appointed or elected successor.
FRANCHISE: The right granted by this Ordinance, as well as a Franchise Agreement between the County and a Grantee, if any, by which the County authorizes a Grantee to erect, construct, reconstruct, operate, dismantle, test, use and maintain a System for the purpose of offering Cable Service or other services to Subscribers in accordance with this Ordinance and the Franchise Agreement, if any.
FRANCHISE AGREEMENT: A contractual agreement entered into between the County and any Grantee hereunder, which is enforceable by the County and said Grantee, and which sets forth the rights and obligations between the County and said Grantee in connection with the Franchise.
FRANCHISE AUTHORITY: The County of McHenry or the lawful successor, transferee or assignee thereof.
FRANCHISE FEE: Any assessment imposed hereunder by the County on a Grantee solely because of its status thereas. The term “Franchise Fee” does not include:
1. Any tax, fee or assessment of general applicability (including any such tax or assessment imposed on both utilities and cable operators or their services) but not including a tax, fee or assessment which is unduly discriminatory against a Grantee;
2. Capital costs which are required by the Franchise to be incurred by a Grantee for educational or governmental access facilities;
3. Requirements or charges incidental to the awarding or enforcing of the Franchise, including payments from bonds, security funds, letters of credit, insurance, indemnification, penalties or liquidated damages; or
4. Any fee imposed under Title 17 of the United States Code.
GRANTEE: Any person or entity granted a Franchise hereunder, its agents, employees and subsidiaries.
GROSS REVENUES:
1. All cash, credits, property of any kind or nature or other consideration derived directly or indirectly by a Grantee, its subsidiaries, or any other entity in which a Grantee has a financial interest or which has a financial interest in said Grantee arising from or attributable to the operation of System, including, but not limited to:
a. Gross Revenue from all charges for services provided to Subscribers of entertainment and non-entertainment services including but not limited to late fees, disconnection charges, reconnection and change in service fees, leased access fees, revenue from Converter sales, leasing and rentals, remote controls, additional outlets and other Subscriber premises equipment and downgrading charges;
b. Gross Revenue from all charges for the insertion of commercial advertisements upon the System;
c. Gross Revenue from all charges for any optional, premium, per-channel or per-program service;
d. Gross Revenues from all charges for 1eased access or use of said Grantee’s studios or equipment;
e. Gross Revenue from all charges for the installation, connection and reinstallation of equipment for utilization of the System and provision of Subscriber services;
f. Gross Revenue from the sale, exchange or use or cablecast of any programming developed on the System for community or institutional use;
g. Gross Revenue from home shopping channels;
h. In value at retail price levels, the value of any goods, services or other remuneration in nonmonetary form received by said Grantee in consideration of the performance of any advertising or other service on the System; and
i. Any and all other revenues which are deemed a part of Gross Revenues, as provided in 47 USC § 542 et seq. and City of Dallas v. FCC, 118 F.3d 393 (5th Circuit, 1997).
2. Gross Revenues shall include all amounts received, earned or accrued during a period regardless of whether (1) received or not in the case of amounts earned or accrued; (2) the amounts are to be paid in cash, in trade, or by means of some other benefit to said Grantee or any entity in any way affiliated with said Grantee; (3) the goods or services with which the revenue is associated are provided at cost or the revenue amount can be matched against an equivalent expenditure; (4) the amounts are characterized, separately identified, or accounted as being for goods, services, or fees to be paid to units of government or government agencies; or (5) the amounts are initially recorded or received by said Grantee or by an entity in any way affiliated with said Grantee. Gross Revenues shall be computed at the level where first received from an entity, whether or not in any way affiliated with said Grantee, and shall not be net of: (1) any operating expense; (2) any accrual, including without limitation, any accrual for commissions; or (3) any other expenditure.
3. Gross Revenues from Subscribers shall be allocated to the County based upon whether or not the location being provided Cable Service is located in the Service Area or not, and not by any other allocation method. Advertising revenues, tower rental revenues, home shopping network revenues or other revenues whose source cannot be specifically identified with a particular Subscriber shall be allocated among the units of government served by said Grantee from the Cable System “headend” serving the Service Area in proportion to the number of Subscribers in each.
INSTALLATION: The connection of the System from feeder cable to potential Subscribers, terminals and the initial provision of Cable Service.
LEASED ACCESS: The use of the System by any person, business enterprise or other entity whether profit, nonprofit or governmental, to render services to Residents and shall include, without limitation, all use pursuant to the Cable Act.
LOCAL ORIGINATION CHANNEL: Any channel where a Grantee or its designated agent is the primary programmer, and provides video programs or other lawful communication services to Subscribers.
MULTIPLE DWELLING UNIT: Any multiple, residential place of occupancy.
NORMAL BUSINESS HOURS: (AS APPLIED TO A GRANTEE): Normal Business Hours shall be 6:00 a.m. to 8:00 p.m. at least five days per week, and 9:00 a.m. to 1:00 p.m. every Saturday.
NORMAL OPERATING CONDITIONS: Those service conditions which are within the control of a Grantee. Those conditions which are not within the control of the Grantee include: natural disasters, civil disturbances, power outages, telephone network outages and severe weather conditions. Those conditions which are ordinarily within the control of the Grantee 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.
RESIDENT: Any person residing in the Service Area.
SCHOOL: Any public or private elementary school, secondary school, junior college, college or university which conducts classes or provides instructional services and which has been granted a certificate of recognition by the State of Illinois.
SERVICE AREA: The entire geographic area within the County exclusive of those areas within the corporate boundaries of incorporated municipal corporations.
SERVICE INTERRUPTION: The inferior reception and/or loss of picture or sound on one or more cable channels.
SERVICE TIER: A category of Cable Service or other services provided by a Grantee and for which a separate charge is made by said Grantee.
STANDARD INSTALLATION: Cable connections that are located up to 250 feet from the existing distribution system.
STREET: The surface of, and the space above and below, any public street, road, highway, freeway, easement, lane, path, alley, court, sidewalk, parkway, driveway or other public way now or hereafter existing as such within the County.
SUBSCRIBER: A subscriber, customer or user of the Cable System who lawfully receives Cable Service or other service therefrom with a Grantee’s express permission.
TENANT: Any person who holds or occupies land or a building by renting, including, but not limited to, persons who have a written or oral lease and tenants at will.
(Ord. O-200203-12-002, passed 3-5-2002)