A. Defined terms. Whenever used in this chapter, the following terms shall have the following meanings unless a different meaning is required by the context.
1. “Act” shall mean the Communications Act of 1934, as amended from time to time, 47 U.S.C. §§ 151 et seq., and the rules and regulations of the FCC promulgated thereunder.
2. “Affiliate” and “affiliated” shall mean any entity controlling, controlled by, or under common control with, the person or entity in question.
3. “Authorized area” shall mean the entire area within the corporate limits of the Village.
4. “Cable franchise” shall have the meaning set forth for the term “franchise” in 47 U.S.C. § 522(9) or any successor provision.
5. “Cable services” shall mean only:
a. The one-way transmission to subscribers of (i) video programming, or (ii) other programming services; and
b. Subscriber interaction, if any, which is used for the selection or use of such video programming or other programming services. For the purpose of this definition, “other programming services” shall mean information that a licensee makes available to all subscribers generally.
6. “Cable system” or “video system” or “system” shall mean a licensee's facilities, consisting of a set of closed transmission paths and associated signal generation, reception and control equipment, that is designed and used solely to provide cable service which includes video programming and which is provided to multiple subscribers within the authorized area, but such term does not include (i) a facility that serves only to re-transmit the television signals of one (1) or more television broadcast stations; (ii) a facility that serves subscribers without using any public right-of-way, (iii) a facility of a common carrier which is subject, in whole or in part, to the provisions of Title II of the act, except that such a facility shall be considered a cable system (other than for purposes of Section 621(c) of the act) to the extent such facility 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; (iv) an open video system that complies with Section 653 of the act; or (v) any facilities of any electric utility used solely for operating its electric utility systems. For the purpose of this definition, the term “interactive on-demand services” means 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 provider.
7. “Construction” shall mean the installation, erection, alteration, enlargement, replacement removal or demolition of any structure or property.
8. “Converter” shall mean an electronic device that converts signals to a frequency acceptable to a television receiver of a subscriber and, by an appropriate selector, permits a subscriber to receive all cable services that the subscriber is lawfully authorized to receive.
9. “Corporate authorities” shall mean the President and Board of Trustees of the Village of Winnetka, or its designee.
10. “Drop” shall mean the cable or wire that connects the distribution portion of a cable system to a subscriber's premises.
11. “FCC” shall mean the Federal Communications Commission, or the successor to its responsibilities.
12. “Franchise agreement” or “agreement” shall mean any agreement, and all amendments made to it from time to time, that grants a franchise and is executed pursuant to this chapter.
13. “Franchise fee” shall mean any tax, fee or assessment of any kind imposed by the Village on a licensee or a subscriber, or both, solely because of their status as such. The term “franchise fee” does not include: (i) any tax, fee or assessment of general applicability (including any such tax, fee 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 cable operators or cable subscribers); (ii) capital costs that are required by a franchise agreement to be incurred by a licensee for public, educational or government access; (iii) requirements or charges incidental to the awarding or enforcing of the franchise, including payments for bonds, letters of credit, insurance, indemnification, penalties or liquidated damages; or (iv) any fee imposed under Title 17 of the United States Code.
14. “Franchise ordinance” shall mean an ordinance approving (i) the grant of a franchise to a licensee and (ii) a franchise agreement.
15. “Gross revenues” means 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 local unit of government's jurisdiction.
a. Gross revenues shall include the following:
i. Recurring charges for cable service or video service.
ii. Event-based charges for cable service or video service, including, but not limited to, pay-per-view and video-on-demand charges.
iii. Rental of set top boxes and other cable service or video service equipment.
iv. Service charges related to the provision of cable service or video service, including but not limited to activation, installation, and repair charges.
v. Administrative charges related to the provision of cable service or video service, including but not limited to service order and service termination charges.
vi. Late payment fees or charges, insufficient funds check charges, and other charges assessed to recover the costs of collecting delinquent payments.
vii. 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 local unit of government's jurisdiction. The allocation shall be based on the number of subscribers in the local unit of government divided by the total number of subscribers in relation to the relevant regional or national compensation arrangement.
viii. 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 subsection b.ix.
ix. 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 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.
x. The service provider fee permitted by Section 21-801(b) of this Article.
b. Gross revenues do not include any of the following:
i. Revenues not actually received, even if billed, such as bad debt, subject to Section 21-801(c)(1)(vi).
ii. 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.
iii. 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 telecommunications 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 nonvideo 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.
iv. The sale of cable service 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 local unit of government's jurisdiction and pay the fee permitted by Section 21-801(b) with respect to the service.
v. Any tax or fee of general applicability imposed upon the subscribers or the transaction by a city, state, federal, or any other governmental entity and collected by the holder of the State-issued authorization and required to be remitted to the taxing entity, including sales and use taxes.
vi. Security deposits collected from subscribers.
vii. 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 Section 21-801(b) of this Article which would otherwise be paid by the cable service or video service.
16. “JULIE” shall mean the joint utility locating information for excavators utility notification program or the successor to its responsibilities.
17. “Licensee” shall mean any person receiving a franchise pursuant to this chapter and under a franchise ordinance, and its lawful successor, transferee, or assignee.
18. “Municipal code” shall mean this Code.
19. “Normal business hours” means 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 (1) night per week and/or some weekend hours.
20. “Normal operating conditions” shall mean those service conditions that are within the control of a licensee. Those conditions which are not within the control of a licensee include, but are not limited to, natural disasters, civil disturbances, power outages, telephone network outages, severe or unusual weather conditions. Those conditions that are ordinarily within the control of a licensee include, but are not limited to, special promotions, pay-per-view events, rate increases, regular peak or seasonal demand periods, maintenance or upgrade of the cable system.
21. “Person” shall mean and include all corporations, associations, partnerships, limited liability companies, firms, and bodies politic and corporate as well as individuals.
22. “Public, educational or governmental” (“PEG”) shall mean public, educational and/or governmental.
23. “Public, educational or governmental (PEG) access facilities” shall mean channel capacity designated for public, educational, or governmental use; and facilities and equipment for the use of such channel capacity.
24. “Public, educational or governmental (PEG) access user” shall mean a person authorized to administer or operate a PEG channel, and shall include the Village. If several persons share a PEG channel, each entity shall be a separate user.
25. “Public ways” shall mean all dedicated public rights-of-way, streets, highways, easements, and alleys. “Public ways” shall not include property of the Village that is not a dedicated public right-of-way, street, highway, easement or alley, and shall not include any Village buildings or other structures or improvements, regardless of whether they are situated in a public right-of-way, street, highway, easement or alley.
26. “Subscriber” shall mean any person who or that elects to subscribe to, for any purpose, and pay for cable service provided by a licensee by means of or in connection with the cable system and whose premises are physically wired and lawfully activated to receive cable services from licensee's cable system.
27. “Video programming” shall mean programming provided by, or generally considered comparable to programming provided by, a television broadcast station.
28. “Village manager” or “manager” shall mean the Winnetka Village Manager or his or her designee.
B. Other Defined Terms. Any term not defined in this chapter but defined in chapter 1.08 or chapter 14.04 of this Code shall have the meanings ascribed to them therein.
C. Other Terms. Terms not otherwise defined in this Code shall take their meanings from the Act. Where a conflict arises regarding a term defined both in this chapter and in the Act, the definition set forth in the act shall control.
(MC-10-2007, Added, 07/10/2007)