For the purpose of this subchapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number, and words in the singular number include the plural number. The words "shall" and "will" are mandatory, and "may" is permissive. Words not otherwise defined herein or in any franchise agreement that might be granted hereunder shall be given the meaning set forth in the Communications Act of 1934, 47 USC 521 et seq., and the Telecommunications Act of 1996, codified at 47 USC, as amended, and if not defined therein, their common and ordinary meaning:
ACCESS CHANNEL. Any channel on a cable system set aside without charge by a franchisee for non- commercial, public, educational and/or local governmental use.
ACTIVATED CHANNEL. Those channels engineered at the headend of a cable system for the provision of services generally available
subscribers of the cable system, regardless of whether such services actually are provided, including any access channels.
AFFILIATE. Any person who owns or controls, is owned or controlled by, or is under common ownership or control with a franchisee.
APPLICANT. Any person submitting an application within the meaning of this subchapter.
APPLICATION. Any proposal, submission or request to:
(1) Construct and operate a cable system or open video system within the city;
(2) Transfer a franchise or control of the franchisee;
(3) Assign a franchise;
(4) Renew a franchise;
(5) Modify a franchise; and/or
(6) Seek any other relief from the city pursuant to this subchapter, a franchise agreement, the Cable Act, or other applicable law. An application includes an applicant's initial proposal, submission or request, any and all subsequent amendments or supplements to the proposal and relevant correspondence, and all written and oral representation and/or material made or provided by the franchisee, whether in writing, in a public hearing, or in any other type of correspondence between the city and the franchisee or the franchisee and any other person.
BASIC CABLE SERVICE or BASIC SERVICE. Any service tier that includes local television broadcast signals, and access channels. BASIC CABLE SERVICE as defined herein shall be consistent with 47 USC 543(b)(7), as may be amended from time to time.
CABLE ACT. The Cable Communications Policy Act of 1984, 47 USC 151 et seq., as that Act has been amended by the Cable Television Consumer Protection and Competition Act of 1992, P.L. 102-385, and the Telecommunications Act of 1996, P.L. 104-104, codified at 47 USC, and as may be amended from time to time.
CABLE SERVICE. The transmission of video or other programming services to subscribers together with any subscriber interaction, if any, which is required for the selection or use of such video programming or other programming services. CABLE SERVICE shall include entities that provide cable service in their communities, regardless of whether the entity is a cable operator, an open video system operator, or another form of video service provider, which utilizes part or all of public rights-of-way.
CABLE SYSTEM, CABLE TELEVISION SYSTEM, or SYSTEM. Any facility consisting of a set of closed transmission paths or other transmission lines or forms of terrestrial transmission 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 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 subscribers without using any public rights-of-way;
(3) A facility of a common carrier that is subject, in whole or in part, to the provisions of Title 11 of the Communications Act of 1934, 47 USC 201 et seq., except that such facility will be considered a cable system to the extent it 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;
(4) An open video system that complies with Section 653 of the Telecommunications Act of 1996, 47 USC 573;
(5) Any facilities of any electric utility used solely for operating its electric utility systems. The foregoing definition of
CABLE SYSTEM shall
not be deemed to circumscribe the valid authority of the city to regulate the activities of any other communications system or provider of communications services, including, but not limited to, telephone and open video systems.
CHANNEL. A portion of the electromagnetic spectrum that is capable of carrying one industry standard video signal, in either analog or digital form.
CITY. Pembroke Pines, Florida, a municipal corporation of the state, in its present incorporated form or in any later reorganized, consolidated, enlarged or reincorporated form.
COMPLAINT. Any oral, written or electronic inquiry, allegation or assertion made by a person regarding service, a franchisee or system operations.
CONTROL OF A FRANCHISEE OR APPLICANT. Possessing the ability to direct or cause the direction of the management or policies of a franchisee or applicant, or the operation of a franchisee's cable system or open video system, whether through operational control in whatever manner exercised or ownership of voting securities, by contract or understanding, or in any other manner.
DROP. The cable or cables that connect the subscribers of the system to the distribution system.
EQUITABLE PRICE. The fair market value adjusted downward to account for harm to the city or subscribers, if any, resulting from a franchisee's breach of its franchise or violation of this chapter, and as further adjusted to account for other equitable factors that may be considered consistent with the Cable Act, 47 USC 547.
FAIR MARKET VALUE. The price that a willing buyer would pay to a willing seller for a cable system or open video system valued as a going concern but with no value allocated to the franchise itself.
FCC. The Federal Communications Commission, or any successor governmental entity.
FRANCHISE. The right granted by the city to a franchisee in a franchise agreement to construct, maintain and operate a cable system or open video
system under, on, and over streets, roads and any other public ways, rights-of-ways, or easements within the city. The term does not include any local business tax receipt or permit that may be required by this subchapter or other laws, ordinances or regulations of the city for the privilege of transacting and carrying on a business within the city or for construction or carrying out any work on any street.
FRANCHISE AGREEMENT. A contract entered into in accordance with the provisions of this subchapter between the city and a franchisee that sets forth the terms and conditions under which the franchise will be exercised.
FRANCHISEE. Any person granted a franchise pursuant to this subchapter who has entered into a franchise agreement with the city.
GROSS REVENUES. All revenues recognized in accordance with generally accepted accounting procedures (GAAP) generated directly or indirectly by the franchisee and any affiliates, subsidiaries or parent of the franchisee from any source whatsoever arising from, attributable to, or in any way derived from the operation of the cable system to provide cable services within the city. By way of illustration, gross revenues include, but are not limited to, fees charged for basic service; fees charged for any optional, premium, or any tier of service other than basic service; installation, disconnection, reconnection and change-in-service fees; late fees; leased access fees; revenue from cable internet service (unless the FCC determines in a final binding order that such service is not a cable service), payments or other consideration from programmers for carriage of programming on the system including, but not limited to, infomercials (excluding marketing support provided for the launch of new services on the system to the extent such funds are not considered revenue under GAAP); net launch fees, revenue from converter, remote, modem or any other equipment rentals or sales; revenues from studio and studio equipment rental; revenues from leases of cable or fiber optic lines and other transmission devices and equipment; revenues from transmission of data; revenues from consumer products including, but not limited to, cable guides; and advertising revenues allocable to the city based on a percentage of subscriber base in the city divided by the subscriber base of the system. Such percentage will then be multiplied by the system's total advertising revenue to determine the allocable gross revenue
stemming from advertising; revenues from home shopping channels or other sources allocable to the city, provided that where certain home shopping channel or other such revenue is allocable to more than one franchise authority due to common zip codes, the franchisee will allocate the percentage of revenue to the city which is equivalent to the percentage of the city's population divided by the total population for the allocable franchise areas in question.
GROSS REVENUES shall be the basis for computing the franchise fee imposed pursuant to this subchapter. GROSS REVENUES shall not include any taxes on services furnished by the franchisee which are imposed upon any subscriber or user by the state, city or other governmental unit and collected by the franchisee on behalf of said governmental unit and which the franchisee passes on in full to the applicable tax authority or authorities. However, it is hereby expressly provided that unless otherwise prohibited by applicable law, franchise fees shall be included in the calculation of gross revenues. The definition of GROSS REVENUES contained herein is subject to state and federal law, and shall only apply if the city is able to charge and collect franchise fees pursuant to this chapter and a franchise agreement.
INITIAL FRANCHISE. An initial authorization issued by a franchising authority which authorizes the construction and/or operation of a cable system and which expressly states that such authorization is intended as a cable franchise.
INSTITUTIONAL NETWORK or I-NET. A voice, data and/or video communications network constructed, operated and/or maintained by a franchisee for the city, the transmissions on which are generally available only to, and intended to be sent and received by, governmental and other users other than subscribers.
INTERCONNECTION. The electronic connection of two or more cable systems for the purpose of sharing programming on access channels.
LAW. All duly enacted federal, state, county and city laws, ordinances, codes, rules, regulations and orders.
LEASED ACCESS CHANNEL. A channel designated in accordance with Section 612 of the Cable Act, 47 USC 532, for commercial use by persons unaffiliated with the franchisee.
LOCAL BUSINESS TAX RECEIPT. The legal authorization, terminable at will, to use particular and limited portions of the public rights-of-way.
OPEN VIDEO SYSTEM or OVS. A facility consisting of a set of transmission paths and associated signal generation, reception, and control equipment that is designed to provide cable service, which includes video programming, which is provided to multiple subscribers within a community, and which the FCC has certified as compliant with Part 76 of the Rules of the FCC, 47 CFR Part 76, as amended from time-to- time.
OVERBUILD. A cable system or OVS constructed to serve subscribers already served by an existing cable system or OVS.
PERSON. Any individual, corporation, partnership, association, joint venture, organization or legal entity of any kind, and any lawful trustee, successor, assignee, transferee or personal representative thereof, but shall not mean the city.
PUBLIC RIGHTS-OF-WAY. The surface, the air space above the surface and the area below the surface of any public street, highway, road, boulevard, concourse, driveway, freeway, thoroughfare, parkway, sidewalk, bridge, tunnel, waterway, dock, bulkhead, wharf, pier, court, lane, path, alleyway, drive, circle, easement or any other public right-of-way or public place, including public utility easements dedicated for compatible uses, or any other property in which the city holds any kind of property interest or over which the city exercises any type of lawful control, and any temporary or permanent fixtures or improvements located thereon, as may be ordinarily necessary and pertinent to construct and operate a cable system or OVS. PUBLIC RIGHTS-OF-WAY do not include buildings, parks, or other property owned or leased by the city.
RENEWAL OF A FRANCHISE. Renewal of an authorization issued by the city, which authorizes the upgrade or continued operation of a cable system or OVS for an additional term.
SERVICE INTERRUPTION. Any interference with cable service so as to interrupt the audio or video portion of the transmission.
SERVICE TIER. A category of cable service provided by a franchisee and for which a separate charge is made by the franchisee.
STATE OF THE ART. That level of production facilities, technical performance, channel capacity, equipment, components and service equivalent to that which has been developed and demonstrated to be at least as modern as generally accepted and used in the cable industry in the state. In no event shall a system having a bandwidth of less then 750 MHz be considered state of the art unless the city, in its sole discretion, determines that a cable system operating at less than 750 MHz is state of the art; and offers a level of production facilities, technical performance, channel capacity, and service equivalent to a system operating at a bandwidth of no less than 750 MHz.
SUBSCRIBER. Any person who lawfully receives cable service delivered over a cable system or OVS. However, notwithstanding anything to the contrary, SUBSCRIBER shall not mean any homeowner or condominium association or other bulk purchaser unless mandated by FCC rules.
SUBSCRIBER BASE. The total number of residential and commercial subscribers within the city. For purposes of calculating and identifying subscribers under bulk or multi-user contracts, for determining compliance with this subchapter, for imposing capital contributions pursuant to this chapter and fines for violations of this chapter, a franchisee shall count each individual unit or home (e.g., in a multiple family dwelling, a unit will be defined as each subscriber unit within the structure) included within a contract as one subscriber. The franchisee shall not use any equivalency measures except as may be required by FCC rules.
TRANSFER. Any transaction in which:
(1) An ownership or other interest in a franchisee is transferred from one person or group of persons to another person or group of persons so that control of a franchisee is transferred;
(2) Assignment, sale or transfer of more than 20% of the ownership of any parent corporation, parent entity or holding company that owns or, by ownership of other entities, controls a franchisee;
(3) All or a portion of a cable system or OVS is sold or assigned; or
(4) The rights and/or obligations held by a franchisee under a franchise agreement are transferred or assigned to another person or group of persons.
A transfer shall be considered “pro forma” when it involves a transfer to a person or group of persons wholly owned by the franchisee or the same legal entity with controlling interest in the franchisee, and will not result in a change in the control or ultimate ownership of the franchisee.
TWO-WAY CAPABILITY. The incorporation into a cable system or OVS of all appropriate design and engineering characteristics and features so that two- way transmission, including, but not limited to, addressability, can be implemented and activated.
(Ord. 1406, passed 5-15-02; Am. Ord. 1576, passed 4-18-07)