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
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® 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.
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"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.
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® "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.
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® 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
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® 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
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® 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.
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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.
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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