Loading...
HomeMy WebLinkAboutOrd 1995-10® ORDINANCE NO 95-10 AN ORDINANCE OF THE MAYOR AND COMMON COUNCIL OF THE TOWN OF FOUNTAIN HILLS AMENDING CHAPTER 13 OF THE TOWN CODE ENTITLED CABLE COMMUNICATIONS AND SPECIFICALLY AMENDING SECTION 13-3 DEFINITIONS BY ADDING A NEW DEFINITION FOR THE TERM ACCESS CHANNEL AND AMENDING THE DEFINITIONS OF CABLE ACT, GROSS REVENUE, PEG ACCESS CHANNEL, STANDARD DROP, AND SUBSCRIBER; AMENDING SECTION 13-7 B.1. AND ADDING SECTION 13-7 B.11 REGARDING LICENSE AGREEMENTS; AMENDING SECTION 13-8 A.S.(a) REGARDING SUBSCRIBER SERVICE; AMENDING SECTION 13-8 G.3 REGARDING ACCESS AND COMMUNITY PROGRAMMING CHANNELS; ADDING SECTION 13-8 J. REGARDING TECHNOLOGY REVIEW; AMENDING SECTION 13-9 B.3. AND ADDING SECTION 13-9 B.8. REGARDING LICENSE FEES; AND AMENDING SECTIONS 13-9 E.9., 13-15 C., AND 13-16 ON REMEDIES AND RIGHTS. BE IT ORDAINED BY THE MAYOR AND COMMON COUNCIL OF THE TOWN OF FOUNTAIN HILLS AS FOLLOWS: SECTION 1. That the Town Code Chapter 13 Cable Communications Section 13-3 Definitions is hereby amended to add the following definition: is "Access Channel" shall mean one or more channels dedicated in whole or in part for local non-commercial programming which is set aside for educational use or governmental use without a charge by the licensee for channel usage and which is not originated by a cable company; provided that such access programming shall not include (i) the retransmission of local television broadcast signals or (ii) programming produced by persons unaffiliated with the cable company under the provisions of Section 612 of the Cable, Act. SECTION 2. That the Town Code Chapter 13 Cable Communications Section 13-3 Definitions is hereby amended for the terms Cable Act, Gross Revenue, PEG Access channel, Standard Drop, and Subscriber to read as follows: "Cable Act" means the Cable Communications Policy Act of 1984 (also known as 47 U.S.C. Section 521 et seq.), as amended. "Gross Revenues" shall mean all cash, credits, property of any kind or nature, or other consideration, less related bad debts up to a maximum of one and one-half percent (1-1/2%) annually of such cash, credits and property, received directly or indirectly by a licensee, its affiliates, subsidiaries, parent and any person, firm ® or corporation in which a licensee has a financial interest or which has a financial interest in a licensee, arising from or ® attributable to the licensee's operation of its cable television system within the Town, including, but not limited to: (a) Revenue from all charges for services provided to subscribers; (b) Revenue for all charges for the insertion of commercial advertising upon the cable system; (c) Revenue from all charges for the leased use of studios; (d) Revenue from all charges for the installation, removal, connection and reinstatement of equipment necessary for a subscriber to receive cable service; (e) Revenue from the sale, exchange, use or cablecast of any programming developed for community use or institutional users. (f) Revenue from all charges for the use of or lease of leased access channels or band width. (g) Revenue from the production or transmission over the Cable System of video programming by licensee including programming produced by its mobile facilities. ® (h) Any other income derived from the Cable System. Gross Revenues shall not include taxes collected by licensee on behalf of any governmental authority; any surcharges for underground conversion of cable plant costs; any increase in the value of any stock, security or asset; the value of complimentary services provided to Licensee's employees and is required by the Ordinance or any License; and dividends or other distributions made in respect of any stock or securities, or value received by a licensee or any of its affiliates, subsidiaries or parent relating to Licensee services or through cooperative advertising. "Gross Revenues" shall not include cash, credit, property of any kind or nature or other consideration received by a licensee's affiliates, subsidiaries, parent, or any person, firm or corporation ("Affiliate") in which a license has a financial interest or which has financial interest in a licensee for any sales of advertising on the cable system, services to provide programming on the cable system, production services, and/or telecommunication services which are Cable Services when such services are provided by an Affiliate, which has all the following characteristics: the Affiliate is a separate legal entity, with separate employees, with separate financial records (which may be ® part of consolidated financial reporting records), and a separate 2 ® mission; it makes payments to licensee which meet market standards for the services and industries involved, even if it does not offer and provide its services to persons other than licensee in the same industry as licensee; and it was established for valid business purposes and not with the intent and purpose of circumventing payment of license fees on Gross Revenues. Nothing contained in this exclusion from Gross Revenues shall be interpreted to exclude from Gross Revenues such cash, credit, property of any kind or nature or other consideration which would be considered the licensee's Gross Revenues derived from the operation of the cable system under the Cable Act. Except for Gross Revenue from such sales of advertising on the cable system, services to provide programming on the cable system, production services, or telecommunication services which are Cable Services received by such Affiliate, this paragraph shall not exclude from Gross Revenues any source of Gross Revenues which an existing licensee itself is receiving at the time it is granted a license under this chapter, as revised April 6, 1995. When a licensee (or an Affiliate) holds one or more other cable television licenses in Maricopa County, Arizona and receives and allocates Gross Revenues from (b), (f) and (g), then Gross Revenues derived from (b), (f), and (g), shall be allocated pro rata to the Town based on the ratio of the number of Subscribers of licensee ® (or an Affiliate), in the Town to the number of Subscribers of licensee (or an Affiliate) in all the jurisdictions in Maricopa County, Arizona, in which licensee (or an Affiliate) holds a cable license. If a licensee does not allocate its Gross Revenues derived from (b), (f) and (g) from such other jurisdiction(s) then the number of Subscribers in such jurisdiction(s) shall not be included in the total number of Subscribers in all other jurisdictions. C "PEG Access channel" or "PEG Channel" means any channel set aside for Educational use or Governmental use without a charge by the licensee for channel usage. "Standard Drop" means that Cable connection which requires no more than two hundred fifty (250) foot drop measured from the nearest point of Subscribers home or place of business to the nearest active tap on the cable system, involving only one outlet and standard materials, and does not involve a wallfish. In addition, a Standard Drop shall exclude custom installation work including specific Subscriber requested work that requires non— standard inventory or cable routing that requires construction methods exceeding reasonable underground or aerial work. 3 ® "Subscriber" means any individual or entity legally receiving, for any purpose, cable services of the Licensee's Cable Television system including, but not limited to, the basic service, redistribution of television broadcast signals, radio signals, Licensee's original cablecasting, community programming, government and education access channels; and other services such as leased channels, data and facsimile distribution, premium and pay per view channels, and police, fire and similar public service communication. SECTION 3. That the Town Code Chapter 13 Cable Communications Section 13-7 B.1. License Agreement is hereby amended to read as follows: 1. It authorizes use of the public rights -of -way for installing cables, wires, lines, and other facilities to operate a cable system, but does not expressly or implicitly authorize the licensee to provide service to, or install cable, wires, lines, or any other equipment or facilities upon property without owner consent [except for compatible easements or rights -of -way pursuant to 47 U.S.C. Section 541(a)(2)), or to use publicly or privately owned utility poles or conduits without a separate agreement with the owners. It also authorizes the licensee so to use, operate, and provide similar facilities or properties rented, licensed, or ® leased from other persons, firms or corporations, including but not limited to any public utility or other licensee licensed or permitted to do business in the Town; provided, however, that neither the licensee nor the third party shall be relieved of any regulation or obligations as to its use of such facilities in the streets. SECTION 4. That the Town Code Chapter 13 Cable Communications Section 13-7 B. is hereby amended to add 13-7 B.11. to read as follows: 11. Insofar as it is not inconsistent with or otherwise preempted by federal or state regulations, the license agreement shall grant the right and privilege to the licensee to provide non - cable communications services. Insofar as it is not inconsistent with or otherwise preempted by federal or state regulations, the Town Council shall retain all authority to regulate non -cable telecommunication services to the extent necessary to protect the public interest and to ensure compliance with all provisions of this chapter. V ® SECTION 5. That the Town Code Chapter 13 Cable Communications Section 13-8 A.5.(a) is hereby amended to read as follows: (a) written instructions for placing a service call, filing a complaint, or requesting an adjustment, including the phone number and address of licensee's office; SECTION 6. That the Town Code Chapter 13 Cable Communications Section 13-8 G.3. is hereby amended to read as follows: 3. The following requirements apply to access and community programming channels: (a) Applications for a license shall include proposals for the provision of educational and governmental access channel sufficient to meet community needs during the term of the license as determined by the Town Council. A licensee or applicant shall specify what grants, if any, it is willing to make for studio equipment and facilities to be used for local program production by all cable access users. Applicants are encouraged to include proposals for local origination programming by the licensee. (b) All access channel operations must conform to the following minimum requirements: ® (1) Access channels shall be carried on the licensee's lowest priced service offering. (2) The license may require a licensee or other entity to manage the access channels and to establish reasonable rules for the use of access channels consistent with the requirements of this chapter and the intended purpose of such channels. (3) The use of any educational access channel shall be made available free of charge to schools and other qualified educational institutions for the transmission of local educational programming. (4) The use of any local government access channels shall be made available free of charge to the Town Council for the transmission of government related programming. (5) The licensee shall submit to the Town Council on an annual basis a plan for publicizing access programs and access use. (c) At the request of a licensee the Town Council may ® promulgate rules under which channel capacity dedicated to access 5 ® use may be used by the licensee when it is not being used for access purposes. (d) A license shall include a provision for the licensee to provide channel capacity for community programming on terms and conditions specified in the license agreement. SECTION 7. That the Town Code Chapter 13 Cable Communications Section 13-8 is hereby amended to add Section 13-8 J. to read as follows: J. Technology Review. 1. The Town and licensee shall meet at periods not exceeding three (3) years or upon request of either to discuss changes in cable television laws, regulations, technology, competing services, the needs of the community and other factors impacting cable television. As a result of these discussions, this license may be modified by the Town and the licensee to respond to the change in laws, regulations, technology, competing services, the needs of the community or other factors impacting cable television. 2. If any of the following conditions occur, and upon written request of either licensee or Town, the Town Manager and ® licensee agree to meet and discuss in good faith the terms of a mutually agreeable license amendment: (a) Cable Service similar to cable television service offered by licensee is provided by any entity using the Streets and public ways, which is not subject to similar licensing requirements of the Town. (b) The Cable Act is amended to allow licensee to provide intrastate or interstate telecommunication and any regional Bell operating company to provide Cable Service. (c) Any other significant event occurs, including but not limited to a final non —appealable order or judgement by a court of competent jurisdiction, which either licensee or Town believes may impact the current terms and conditions of the license. The purpose of the meeting and discussion is to use best efforts to reach mutually acceptable agreement for recommendation to the Town Council for proposed Town Council action within 90 days of such written request, on how to amend the license to relieve Town or the licensee from any commercial impracticability, which arises from the condition • in question. This provision shall not require that the 0 ® license be amended, process whereby the agreement. however it is intended to facilitate a parties may reach a mutually acceptable SECTION 8. That the Town Code Chapter 13 Cable Communications Section 13-9 B.3. is hereby amended to read as follows: 3. Except as provided in subsection B.8, the payment required pursuant to this section shall be in addition to any other tax or payment owed to the Town pursuant to any other applicable ordinance or chapter of the Town code, regulation or law of the County, State or federal government. SECTION 9. That the Town Code Chapter 13 Cable Communications Section 13-9.B. is hereby amended to add Section 13-9.B.8. to read as follows: 8. There shall be allowed as an offset against the license fee due under this section any amounts licensee paid to the Town during the prior quarter in privilege license (sales) taxes; provided, however, that there shall be no offset to the extent that licensee made payments of privilege license (sales) taxes on any gross income (within the meaning of the privilege license [sales] tax ordinance) which is not included in gross revenues under this ® chapter. The license shall provide for suitable procedures and methods for audit of this offset. Ll SECTION 10. That the Town Code Chapter 13 Cable Communications Section 13-9.E.9. is hereby amended to read as follows: 9. The imposition and collection of liquidated damages as set forth above shall not prevent the Town Manager from pursuing other remedies for other violations of either the article or the license agreement for which liquidated damages have not been imposed and collected. SECTION 11. That the Town Code Chapter 13 Cable Communications Section 13-15.C. is hereby amended to read as follows: C. Cumulative Rights and Remedies. Except as specified herein, all rights and remedies of the Town Manager and the Town Council in this chapter are cumulative and may be exercised singly or cumulatively at the discretion of the Town Manager and/or the Town Council. 7 El 1 C SECTION 12. That the Town Code Chapter 13 Cable Communications Section 13-16 is amended to read: Without limitation upon the rights which the Town Council may otherwise have and subject to Section 13-7.B(9) of this chapter, the Town Council does hereby expressly reserve the right to amend any section or provision of this chapter for any reason determined to be desirable by the Town Council including, but not limited to: A. New developments in the state of technology of cable communications systems. B. Any changes in federal or state laws, rules or regulations. Passed and adopted by the Mayor and Common Council of the Town of Fountain Hills, Arizona, this 6th day of April, 1995. ATTEST TO: Cassie B. Hansen Town Clerk APPROVED AS TO FORM: P� X - William E. Farr 1 Town Attorney N mowolan Cutilro REVIEWED BY: Paul L. Nordin Town Manager