Clovis Municipal Code Art. 2 Definitions

Unless the particular provision or the context requires, the definitions and provisions contained in this article shall govern the construction, meaning, and application of words and phrases used in this chapter. Whenever any words or phrases used in this chapter are not defined, but are defined in Title 47 of the United States Code and amendments thereto, such definitions shall apply, and if not defined therein, their common and ordinary definitions shall apply. The definition of each word or phrase shall constitute, to the extent applicable, the definition of each word or phrase which is derivative from it, or from which it is a derivative, as the case may be. When not inconsistent with the context, words used in the present tense include the future tense; words in the plural number include the singular number; and words in the singular number include the plural number; and the masculine gender includes the feminine gender. References to governmental entities (whether persons or entities) refer to those entities or their successors in authority. If specific provisions of law referred to herein are renumbered, then the reference shall be read to refer to the renumbered provision. References to laws, ordinances or regulations shall be interpreted broadly to cover government actions, however nominated, and include laws, ordinances and regulations now in force or hereinafter enacted or amended.

(§ 4, Ord. 05-23, eff. September 1, 2005)

“Access,” “PEG access,” or “PEG use”

refers to the availability of a cable system or open video system for public, education or government use (including institutional network use) by various agencies, institutions, organizations, groups, and individuals (including the City and its designated access providers) to acquire, create, and/or distribute programming, not under a franchisee’s editorial control, and advertise to the extent authorized by law, including without limitation channel capacity designated for public, educational, or governmental use, and facilities and equipment for the use of such channel capacity.

(§ 4, Ord. 05-23, eff. September 1, 2005)

“Affiliate”

means a person that directly or indirectly owns or controls, is owned or controlled by, or is under common ownership or control with, another person.

(§ 4, Ord. 05-23, eff. September 1, 2005)

“Application”

means any application, proposal submission, or request, including any and all documents and materials submitted therewith, filed pursuant to the requirements of this chapter to obtain, modify, transfer, or extend a franchise.

(§ 4, Ord. 05-23, eff. September 1, 2005)

“Application fee”

means a charge to recover the City’s actual costs of processing applications hereunder.

(§ 4, Ord. 05-23, eff. September 1, 2005)

“Basic service”

means any service tier which includes the retransmission of local television broadcast signals.

(§ 4, Ord. 05-23, eff. September 1, 2005)

“Cable Act”

means the Cable Communications Policy Act of 1984, 47 U.S.C. Sections 521 et seq., as amended by the Cable Television Consumer Protection and Competition Act of 1992, as further amended by the Telecommunications Act of 1996, and as may further be amended from time to time.

(§ 4, Ord. 05-23, eff. September 1, 2005)

“Cable communications system”

refers to open video systems (OVS) and cable systems.

(§ 4, Ord. 05-23, eff. September 1, 2005)

“Cable operator”

means any person or group of persons (a) who provides cable service over a cable system and, directly or through one or more affiliates, owns a significant interest in such cable system; or (b) who otherwise controls or is responsible for, through any arrangement, the management and operation of such a cable system.

(§ 4, Ord. 05-23, eff. September 1, 2005)

“Cable service”

means (a) the one-way transmission to subscribers of video programming or other programming service, and subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service, or (b) any other programming or service which may lawfully be characterized as a cable service.

(§ 4, Ord. 05-23, eff. September 1, 2005)

(a)

“Cable system”

means a facility, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment, designed to provide cable service to multiple subscribers within a community, and shall include CATV and any other system that may lawfully be characterized as a cable system. Any reference to a cable system includes the cable system as a whole, or any part thereof, including all facilities, pedestals, equipment cabinets, electronic equipment and devices appurtenant to the cable system.

(b)

“Cable system”

does not include:

(1)

A facility that only retransmits the television signals of one or more television broadcast stations;

(2)

A facility serving subscribers without using or connecting to a facility that uses any public rights-of-way within the City;

(3)

A facility of a common carrier subject, in whole or in part, to the provisions of Title II of the Communications Act of 1934, as amended, except that such facility shall be considered a cable system 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;

(4)

Any facilities of any electric utility used solely for operating its electric utility systems; or

(5)

An OVS that complies with 47 U.S.C. Section 573 and is certified by the FCC as an OVS.

(§ 4, Ord. 05-23, eff. September 1, 2005)

“Channel”

means a portion of the electromagnetic frequency spectrum which is used in a cable system or OVS and which is capable of delivering a television signal whether in an analog or digital format. This definition does not restrict the use of any channel to transmit analog television signals or one-way transmission.

(§ 4, Ord. 05-23, eff. September 1, 2005)

“City”

means the City of Clovis and all departments, divisions, and agencies thereof.

(§ 4, Ord. 05-23, eff. September 1, 2005)

“City Manager”

means the City Manager of the City or his or her authorized designee(s).

(§ 4, Ord. 05-23, eff. September 1, 2005)

“Construction,” “operation” or “repair”

and similar formulations of these terms mean the named actions interpreted broadly, encompassing, among other things, installation, extension, maintenance, replacement of components, relocation, undergrounding, grading, site preparation, adjusting, testing, make-ready, and/or excavation.

(§ 4, Ord. 05-23, eff. September 1, 2005)

“Council”

means the City Council of the City.

(§ 4, Ord. 05-23, eff. September 1, 2005)

“Downstream channel”

means a channel designed and activated to carry a transmission from the head-end to other points on a cable communications system, including interconnections.

(§ 4, Ord. 05-23, eff. September 1, 2005)

“Education access” or “education use”

means access where accredited educational institutions are the primary or designated programmers or users having editorial control over their communications.

(§ 4, Ord. 05-23, eff. September 1, 2005)

“FCC”

means the Federal Communications Commission.

(§ 4, Ord. 05-23, eff. September 1, 2005)

“Facilities”

means any physical element used or designed to be used to provide cable services, whether or not located in the public rights-of-way, including, without limitation, pedestals, cabinets, ducts and conduits (whether empty or occupied), transformers, equipment, drains, handholds, lines, line extensions, service drops, manholes, poles, power supplies, generators, splice boxes, surface location markers, vaults, tunnels, amplifiers, power guards, nodes, cables, and fiber optics (whether active or dark).

(§ 4, Ord. 05-23, eff. September 1, 2005)

“Formal renewal” or “formally renew”

means renewal of a cable system franchise pursuant to the provisions set forth in 47 U.S.C. Section 546, subdivisions (a) to (g), of the Cable Act.

(§ 4, Ord. 05-23, eff. September 1, 2005)

“Franchise”

means an initial authorization, or renewal thereof, granted by the City to a cable operator or an operator of a cable communications system, giving the operator the nonexclusive right to occupy the space or use facilities upon, across, beneath, or over public rights-of-way or portions thereof in the City, to provide specified services within a franchise area.

(§ 4, Ord. 05-23, eff. September 1, 2005)

“Franchise area”

means the area or portion of the City that a franchisee is authorized to serve by the terms of its franchise or by operation of law.

(§ 4, Ord. 05-23, eff. September 1, 2005)

“Franchise documents”

refers to the provisions of this chapter, the map defining any franchise area for the franchise as adopted by resolution of the Council, any request for proposals issued by the City pursuant to this chapter in connection with the franchise, the application for the franchise submitted by the franchisees, the resolution by the Council granting the franchise and any amended resolution(s) issued thereafter, the certificate of acceptance of the franchise by the franchisee, any franchise agreement between the City and the franchisee, and all other documents and instruments approved or adopted by the City.

(§ 4, Ord. 05-23, eff. September 1, 2005)

“Franchisee”

refers to a cable operator or a person who operates a cable communications system to whom the City has granted a franchise to operate and maintain a cable communications system within the city limits of the City.

(§ 4, Ord. 05-23, eff. September 1, 2005)

“Franchise fee”

means the fee payable to the City, as provided in this chapter and the franchise agreement, in consideration of the City’s grant of a franchise for a franchisee to construct, install, operate, or provide services using facilities in the public rights-of-way, expressed as a percentage of gross revenues or some other measure.

(§ 4, Ord. 05-23, eff. September 1, 2005)

“Government access” or “government use”

means access, where government institutions or their designees are the primary or designated programmers or users, having editorial control over their communications.

(§ 4, Ord. 05-23, eff. September 1, 2005)

“Gross revenues”

means all cash, credits, property, or other consideration of any kind or nature, and any contributing grant or subsidy, received directly or indirectly by a franchisee and its affiliates, from any source whatsoever arising from, attributable to, or in any way derived from a franchisee’s operation of a cable communication system within the franchise area, including but not limited to fees charged to subscribers for basic service; fees charged to subscribers for any optional, premium, per-channel, or per-program service; monthly fees charged to subscribers for any tier of service other than basic service; installation, disconnection, re-connection, and change-in-service fees; leased channel fees; fees, payments, or other payment received as consideration from programmers for carriage of programming on the cable system; converter rentals or sales; studio rental, production equipment, and personnel fees; advertising revenues, including a per capita share of advertising revenues for advertising carried on more than one cable system; revenues from home shopping channels; sales of programming guides; and such other revenue sources as may now exist or hereafter develop. The definition shall be interpreted in a manner that permits the City to collect the maximum franchise fee permitted by law, irrespective of the source of revenue. Gross revenues, however, shall not include any bad debt (defined as unpaid subscriber or advertiser accounts), any taxes on services furnished to a franchisee and imposed directly upon any subscriber or user by the state, City, or other governmental unit and collected by a franchisee on behalf of said governmental unit. The amount paid as a franchise fee shall not be deducted from gross revenues unless required to be deducted under applicable law.

(§ 4, Ord. 05-23, eff. September 1, 2005)

“Informal renewal” or “informally renew”

means renewal of a cable system franchise other than pursuant to the provisions set forth in 47 U.S.C. Section 546, subdivisions (a) to (g), of the Cable Act. This term shall refer to the alternative renewal procedures set forth in 47 U.S.C. Section 546, subdivision (h), of the Cable Act or such other renewal procedures as may be agreed upon between the franchisee and the City.

(§ 4, Ord. 05-23, eff. September 1, 2005)

“May” or “can”

refers to actions that are permissive.

(§ 4, Ord. 05-23, eff. September 1, 2005)

“Open video system” or “OVS”

means a facility consisting of a set of transmission paths and associated signal generation, reception, and control equipment that is: (a) designed to provide cable service, including video programming, to multiple subscribers within a community, (b) certified by the FCC as an open video system, and (c) complies with the requirements of 47 U.S.C. Section 573. A reference to an OVS includes pedestals, equipment enclosures (such as equipment cabinets), amplifiers, power guards, nodes, cables, fiber optics and other equipment necessary to operate the OVS, or installed in conjunction with the OVS.

(§ 4, Ord. 05-23, eff. September 1, 2005)

“Other programming services”

means information that a cable operator makes available to all subscribers generally.

(§ 4, Ord. 05-23, eff. September 1, 2005)

“Person”

includes any individual, corporation, partnership, association, joint stock company, trust, government entity, or any other legal entity.

(§ 4, Ord. 05-23, eff. September 1, 2005)

“Public access” or “public use”

means access where organizations, groups, or individual members of the general public, on a nondiscriminatory basis, are the primary or designated programmers or users having editorial control over their communications.

(§ 4, Ord. 05-23, eff. September 1, 2005)

“Public rights-of-way”

means the surface of and the space above and below any street, road, highway, freeway, bridge, lane, path, alley, court, sidewalk, parkway, drive, utility right-of-way, right-of-way easement or any other easement primarily granted or dedicated to travel, public or quasi-public services, now or hereafter existing within the City, which may be properly used for the purpose of installing, maintaining, and operating a cable communications system; and any other property that a franchisee is entitled by state or federal law to use by virtue of the grant of a franchise.

(§ 4, Ord. 05-23, eff. September 1, 2005)

“Public property”

means any property that is owned or under the control of the City, including but not limited to any public rights-of-way, buildings, parks, utility and light poles, or other structures on property owned by or leased to the City.

(§ 4, Ord. 05-23, eff. September 1, 2005)

“Revocation”

means the City’s affirmative act of terminating a franchise.

(§ 4, Ord. 05-23, eff. September 1, 2005)

“School”

means any accredited primary school, secondary school, college, or university.

(§ 4, Ord. 05-23, eff. September 1, 2005)

“Shall” or “will”

refers to actions that are mandatory.

(§ 4, Ord. 05-23, eff. September 1, 2005)

“Subscriber”

means the City or any person who is lawfully receiving, for any purpose or reason, any cable service via a cable communications system, whether or not a fee is paid for such service.

(§ 4, Ord. 05-23, eff. September 1, 2005)

“Termination”

means the conclusion of a franchise by any means, including, but not limited to, by expiration of its term, abandonment, or revocation.

(§ 4, Ord. 05-23, eff. September 1, 2005)

(a)

“Transfer”

means any transaction involving one or more of the following:

(1)

All or a portion of any cable communications system facilities or any rights to use or operate such facilities located in the public rights-of-way are sold, conveyed, transferred, assigned, encumbered and/or leased, in whole or in part, directly or indirectly, by one or more transactions to another person or group of persons, whether voluntarily, by operation of law, or otherwise.

(2)

There is any change or transfer in the identity of the person in control of the franchisee or any person who controls the franchisee, including, without limitation, forced or voluntary sale, merger, acquisition, consolidation, or receivership. For purposes of this clause, any transfer or cumulative transfer of a voting interest by a person or group of persons of ten percent (10%) or more of the franchisee, or of a person who controls the franchisee, or of any change in the managing general partners of a franchisee is a change of control.

(3)

There is any change or transfer of control of the franchisee and/or its direct or indirect parents, including, without limitation, forced or voluntary sale, merger, acquisition, consolidation, or receivership.

(4)

Any rights or obligations of the franchise are sold, conveyed, transferred, assigned, encumbered (except as set forth herein) or leased, in whole or in part, directly or indirectly, by one or more transactions to another person, whether voluntarily or by operation of law or otherwise.

(b)

“Transfer”

does not include:

(1)

A lease to a UVPP pursuant to 47 U.S.C. Section 532 or 573;

(2)

The transmission of a commodity or electronic signal using facilities on a common carrier basis;

(3)

A lease or other right to use facilities mandated pursuant to 47 U.S.C. Section 224; or

(4)

A pledge in trust, mortgage or other encumbrance against the facilities, or any portion thereof, given to a bona fide institutional lender in connection with a loan or other financing required to secure the construction, operation, or repair of the facilities (“loan”); provided, that such loan is subject to the rights and powers of the City pursuant to the franchise and applicable law, including, without limitation, the right of the City to approve any transfer upon assignment or foreclosure.

(c)

“Transferring” and “transferee”

shall have correlative meanings.

(§ 4, Ord. 05-23, eff. September 1, 2005)

“Unaffiliated video programming provider” or “UVPP”

means any person who uses capacity on a cable communications system to deliver cable service or other communications service to subscribers and who is not an affiliate of the franchisee.

(§ 4, Ord. 05-23, eff. September 1, 2005)

“UVPP fees”

means fees payable by a UVPP that provides services using a cable system for which charges are assessed to subscribers, but are not received by the cable system franchisee, payable to City in lieu of a franchise fee on such service pursuant to the franchise fee calculation contained in the cable communications system franchise.

(§ 4, Ord. 05-23, eff. September 1, 2005)

“Upstream channel”

means a channel designed and activated to carry transmissions from a point on the cable system, other than the headend, to the head-end or another point on the cable system.

(§ 4, Ord. 05-23, eff. September 1, 2005)

“User”

means a person or the City utilizing a channel, capacity or equipment and facilities for purposes other than in the capacity of a subscriber.

(§ 4, Ord. 05-23, eff. September 1, 2005)

“Video programming”

means programming provided by, or generally considered comparable to programming provided by, a television broadcast station.

(§ 4, Ord. 05-23, eff. September 1, 2005)