For purposes of this chapter and a franchise, the following terms, phrases, words and their derivatives shall have the meanings set forth in this section and any franchise granted by city, unless the context clearly indicates that another meaning is intended or unless otherwise more specifically defined in another chapter or code of the city. Words used in the present tense include the future tense, words in the single number include the plural number, and words in the plural number include the singular. The words
SHALL and WILL are mandatory, and MAY is permissive. Words not defined shall be given their common and ordinary meaning.
AFFILIATE. When used in relation to any person, means another person who owns or controls, is owned or controlled by, or is under common ownership or control with, the person.
APPLICABLE LAW. The Cable Act, all applicable FCC rules, this chapter, all generally applicable ordinances, and state statutes and rules and regulations, any amendments thereto, and any of the applicable federal and/or state laws that are now existing or hereafter adopted or amended.
APPLICANT. Any person that applies for a franchise pursuant to this chapter.
APPLICATION. The process by which an applicant submits a request and indicates a desire to be granted a franchise to provide cable service. An application shall be considered an open record unless otherwise exempted by state law.
BASIC CABLE. The lowest priced tier of cable service that includes the retransmission of local broadcast television signals and public, educational and governmental access channels.
CABLE ACT. The Cable Communications Policy Act of 1984, Pub. L. No. 98-549, (codified at 47 U.S.C. §§ 521-611 (1982 & Supp. V. 1987)) as amended by the Cable Television Consumer Protection and Competition Act of 1992, Pub. L. No. 102-385 and the Telecommunications Act of 1996, Pub. L. No. 104-104 (1996) as it may, from time to time, be amended.
CABLE OPERATOR. Any person or groups of persons, who provide(s) cable service over a cable system and directly or through one or more affiliates owns a significant interest in the cable system or who otherwise control(s) or is (are) responsible for, through any arrangement, the management and operation of a cable system.
CABLE SERVICE or SERVICES.
(1) The one-way transmission to subscribers of:
A. Video programming; or
B. Other programming service.
(2) Subscriber interaction, if any, which is required for the selection or use of video programming or other programming service.
CABLE SERVICE as defined herein shall not be inconsistent with the definition set forth in 47 U.S.C. § 522(6).
CABLE SYSTEM or SYSTEM. Any facility, consisting of a set of closed transmission paths and associated signal generation, reception and control equipment that is designed or used to provide cable services which includes video programming and which is provided to multiple subscribers within the city, but the 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 rights-of-way;
(3) A facility of a common carrier which is subject, in whole or in part, to the provisions of 47 U.S.C. §§ 201-226, except that the facility shall be considered a cable system (other than for purposes of 47 U.S.C. § 541(c)) to the extent the facility is used in the transmission of video programming directly to subscribers, unless the extent of the use is solely to provide interactive on-demand services;
(4) An open video system that complies with 47 U.S.C. § 573; or
(5) Any facilities of any electric utility used solely for operating its electric utility systems.
CHANNEL. A portion of the spectrum which is capable of carrying one video signal.
CITY or GRANTOR. The City of Sioux Falls, South Dakota.
CITY COUNCIL. The governing body of city.
COUNTY. Minnehaha and Lincoln Counties, South Dakota.
EFFECTIVE DATE. The date that a grantee files its written acceptance of a franchise with the city or as otherwise described in a franchise.
FACILITY or FACILITIES. Wires, cables, fibers, equipment facilities, wireless communications facilities and other component parts utilized to provide cable service and/or video programming to be installed or located in, along, over, upon, under or through the rights-of-way by a grantee.
FEDERAL COMMUNICATIONS COMMISSION or FCC. The agency of the federal government authorized to adopt and enforce rules pertaining to cable systems and any cable service(s) contemplated by application of this chapter.
FRANCHISE or FRANCHISE AGREEMENT.
(1) A cable system and/or cable service authorization adopted by the city council and granted by the city authorizing the grantee to construct a cable system in the rights-of-way in the city and/or provide cable service in the city.
(2) Any 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 city required by the ordinances and laws of the city, including the provision of telecommunications services; and
B. Any permit, agreement or authorization required in connection with operations in the rights-of-way 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 the rights-of-way.
FRANCHISE FEE.
(1) Any tax, fee or assessment of any kind imposed by the city or other governmental entity on a grantee or its subscribers, or both, solely because of their status and activities as such.
(2) The term
FRANCHISE FEE does not include:
A. Any tax, fee or assessment of general applicability (including any tax, fee or assessment imposed on both utilities and grantee or their cable services, but not including a tax, fee or assessment that is unduly discriminatory against grantees or subscribers);
B. Capital costs that are required by a franchise to be incurred by a grantee for public, educational or governmental (“PEG”) access;
C. Requirements or charges incidental to the award or enforcement of a franchise, including payments for bonds, security funds, letters of credit, insurance, indemnification, penalties or liquidated damages;
D. Any permit fee or other fee imposed under any valid rights-of-way ordinance;
E. Any fee imposed under Title 17 of the United States Code; or
F. City utility pole fees.
GRANTEE. Any person, including a cable operator, required to have a franchise pursuant to this chapter. A GRANTEE is not a person that provides direct broadcast satellite services for purposes of this chapter.
GROSS REVENUE. Any and all revenue in whatever form from any source received by a grantee or an affiliate of grantee that would otherwise be subject to the payment of franchise fees pursuant to the provisions of 47 U.S.C. § 542 derived from the operation of the cable system to provide cable service within the city. GROSS REVENUES shall include, but are not limited to, all revenue received from basic and expanded basic, pay cable, digital services, high definition services, digital video recorder, video on-demand, revenue for lease of system to others, converter rentals and fees for cable Internet service (if the service is deemed to be a cable service). The term does not include any taxes or fees on cable services furnished by a grantee and imposed directly upon any subscriber, nonsubscriber or user by federal, state or local law and collected by grantee on behalf of the governmental unit, or amounts collected from subscribers for public, educational and/or governmental access.
(1) GROSS REVENUES does not include any revenue which cannot be collected by a grantee and are identified as bad debt, provided, that if revenue previously representing bad debt is collected, this revenue shall be included in gross revenues for the collection period.
(2) The term does not include revenue received from advertising, home shopping service commissions, leased access and service charges, including, but not limited to, installation, disconnection, repair or other similar service charges.
(3) It is understood that over the term of a franchise, a grantee may provide new services that are classified as cable services under a franchise and federal law. The parties anticipate and agree that the services shall be subject to franchise fees under this chapter and a franchise without any further amendment or other action by the parties hereto.
INSTITUTIONAL NETWORK. A communication network for educational or governmental use which is constructed or operated by a grantee and which is generally available only to subscribers who are not residential subscribers.
INTERACTIVE ON-DEMAND SERVICES. A service providing video programming to subscribers over switched networks on an on-demand, point-to-point basis, but does not include services providing video programming prescheduled by the programming providers.
MAYOR. The mayor of Sioux Falls, SD.
NON-CABLE SERVICES. Any use of rights-of- way by any person to make available its services outside the service area.
NORMAL BUSINESS HOURS. Those hours during which most similar businesses in the community are open to serve customers. In all cases, NORMAL BUSINESS HOURS must include some evening hours at least one night per week and/or some weekend hours.
NORMAL OPERATING CONDITIONS. Those service conditions which are within the control of a grantee. Those conditions which are not within the control of a grantee, 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 within the control of a grantee include, but are not limited to, special promotions, pay-per-view events, rate increases, regular peak or seasonal demand periods, and maintenance or rebuild of the cable system.
OTHER PROGRAMMING SERVICE. Information that a cable operator or a provider of cable service makes available to all subscribers generally.
PERSON. Any corporation, partnership, proprietorship, individual, organization, governmental entity, including the city, or any natural person.
PUBLIC, EDUCATIONAL OR GOVERNMENTAL ACCESS. The availability of channels on the cable system for noncommercial public, educational or governmental use by agencies, institutions, organizations, groups and individuals in the community, including the city for the distribution of noncommercial programming not under a grantee’s editorial control and consistent with applicable law, including:
(1) PUBLIC ACCESS shall mean access where organizations, groups or individual members of the general public are the designated programmers having editorial control over their programming pursuant to rules which may be promulgated by the city;
(2) EDUCATIONAL ACCESS shall mean access where local schools or educational institutions, public or private, K-12, technical and community colleges, as well as other accredited institutions of higher learning, are the designated programmers having editorial control over their programming which shall concern their educational functions;
(3) GOVERNMENTAL ACCESS shall mean access where the city, county or other governmental entities, agencies or institutions, or their designees, are the primary or designated programmer having editorial control over its programming which shall concern governmental meetings, activities, services or community affairs; and
(4) PEG ACCESS or PEG ACCESS CHANNELS. Public access, educational access and governmental access or the channels designated for those purposes, collectively.
RENEWAL. A new franchise and franchise agreement granted pursuant to this chapter to an existing cable operator.
RIGHT-OF-WAY or RIGHTS-OF-WAY. The surface of and the space above and below any public street, public road, public highway, public freeway, public lane, public path, public way, public alley, public court, public sidewalk, public boulevard, public parkway, public drive or any public easement or rights-of-way now or hereafter held by the city which shall, within its proper use and meaning, entitle a grantee to the use thereof for the purpose of installing or transmitting over poles, wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, attachments and other property as may be ordinarily necessary and pertinent to a system.
SCHOOL DISTRICT. The Sioux Falls School District No. 49-5.
SERVICE AREA. The present municipal boundaries of the city, and shall include any additions thereto by annexation or other legal means.
SERVICE INTERRUPTION. The loss of picture or sound on one or more cable channels or channel equivalents.
STANDARD INSTALLATION. Installations within 150 feet from the nearest tap to the subscriber’s terminal.
STATE. The State of South Dakota.
SUBSCRIBER. A person who lawfully receives cable service from a cable system with a grantee’s express permission.
TELECOMMUNICATIONS. The transmission between or among points specified by the user of information of the user’s choosing without change in the form or content of the information as sent and received regardless of the technology used. This term does not include cable service.
TELECOMMUNICATIONS ACT. The Telecommunications Act of 1996 codified at Title 47 of the United States Code.
TELECOMMUNICATIONS SERVICE. The offering of telecommunications for a fee directly to the public, or to the classes of users as to be effectively available directly to the public. This term does not include cable service, which is instead subject to separate cable franchising requirements under this chapter.
VIDEO PROGRAMMING. Programming provided by or generally considered comparable to programming provided by a television broadcast station.
(1992 Code, § 44-12) (Ord. 104-09, passed 11-16-2009)