Emeryville Municipal Code Part 1 General Provisions

This chapter is known and may be cited as the "Cable, Video, and Telecommunications Service Providers Ordinance" of the City of Emeryville.

(Sec. 1 (part), Ord. 06-016, eff. Nov. 17, 2006)

This chapter is enacted by the City of Emeryville pursuant to the Cable Act, the City's police powers, its powers and rights to control the use of the public right-of-way within the City, and all other applicable laws.

(Sec. 1 (part), Ord. 06-016, eff. Nov. 17, 2006)

For the purposes of this chapter, the following terms, phrases, words, and abbreviations shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future tense, and words in singular number include the plural number. Words not defined by this section shall be given the meaning set forth in the Cable Act, and if not defined therein, their common and ordinary meaning.

ACCESS, PEG ACCESS OR PEG USE.

Refers to the availability or non-commercial use of a cable system or open video system for public, educational or government use (including Institutional Network use) by public or private agencies, institutions, organizations, groups, and individuals, including, but not limited to grantor, and its designated Access providers, to acquire, create, and distribute programming not under grantee's editorial control, including, but limited to, the following:

(a)

Public access or public use where members of the general public are the primary or designated programmers or users having editorial control over their programming.

(b)

Educational access or educational use where educational institutions are the primary or designated programmers or users having editorial control over their programming.

(c)

Government access or government use where grantor or other governmental institutions designated by grantor are the primary or designated programmers having editorial control over their programming.

AFFILIATE.

The term "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. For purposes of this paragraph, the term "own" means to own an equity interest (or the equivalent thereof) of more than ten percent (10%).

CABLE ACT.

The Cable Communications Policy Act of 1984 (47 USC 521 et seq., as amended by the Cable Television Consumer Protection and Competition Act of 1992 (Public Law No. 102-385) and the Telecommunications Act of 1996 (Public Law No. 104-104), and as hereinafter may be amended.

CABLE SERVICE.

Means the following: (A) the one-way transmission to subscribers of (i) video programming, or (ii) other programming service, (B) subscriber interaction, if any, that is required for the selection or use of such video programming or other programming service, as hereinafter may be amended, regardless of the content of such video programming or communications or the technology or method used to deliver such programming.

CABLE SYSTEM OR SYSTEM.

Grantee's facilities, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide video programming and that is provided to multiple subscribers within the City. Such term does not include:

(a)

A facility that serves solely to retransmit the television signals of one or more television broadcast stations; or

(b)

A facility that serves subscribers without using any public right-of-way; or

(c)

A facility of a common carrier that is subject, in whole or in part, to the provisions of Subchapter II of Chapter 5 of Title 47 of the United States Code, except that such facility shall be considered a cable system (other than for purposes of 47 USC 541(c)) 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; or if such facility is used to provide cable service, whether on a common carrier or non-common carrier basis, directly to customers; or

(d)

An open video system, as defined below, that complies with 47 USC Section 573; or

(e)

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

CITY.

The City of Emeryville, California.

CITY MANAGER.

The City Manager of the City of Emeryville, or his or her designee.

COMMUNICATIONS ACT.

The Communications Act of 1934 (48 Stat. 1064, 15 USC § 21; 47 USC §§ 35, 151 – 155, 201 – 221, 301 – 329, 401 – 416, 501 – 505, 601 – 609 (as subsequently amended and as hereinafter may be amended).

COMPLETE SYSTEM CONSTRUCTION.

The point in time when all transmission equipment, facilities, and construction work is installed and completed, and when all appropriate tests have been completed such that applicable performance standards pertaining to or dependent upon such construction is verified. The term "complete system construction" does not include marketing and installation of subscriber service.

CONTROL(ING/ED).

The possession, directly or indirectly, of the power to direct, or to cause the direction of, the management and policies of a specified person, whether through the ownership of voting securities, by contract or otherwise.

DISTRIBUTION FACILITY(IES).

Cable equipment that is not specific to a subscriber, including trunk and distribution lines, but excluding drop lines to specific locations.

DROP LINES.

The cable and related equipment connecting the cable system's plant to equipment at the subscriber's premises.

EDUCATIONAL ACCESS CHANNEL.

A channel on the cable system that designates educational institutions as the primary providers of non-commercial programming.

FCC.

The Federal Communications Commission.

FRANCHISE.

The right to construct, operate and maintain a cable system using the city's streets and rights-of-way pursuant to the terms and conditions of this chapter and other relevant provisions of the Municipal Code, the franchise agreement, and any ordinance or resolution approving the transfer of the franchise, and any agreement between the City and grantee relating to the operation of the cable system.

FRANCHISE AGREEMENT.

An agreement granting a franchise pursuant to the terms of the agreement, state and federal law, and this chapter. Any conflict between the terms of this chapter and the franchise agreement shall be resolved in favor of the franchise agreement. In the event a franchise is in existence as of the effective date of this ordinance, the terms of the franchise shall govern; provided however, that upon the renewal, extension, amendment or other modification of any such franchise, the renewed, extended, amended or otherwise modified franchise shall comply with this ordinance.

FRANCHISE AREA.

The geographic area within the City designated in a franchise where grantee may operate a cable system, as defined in the franchise agreement.

GOVERNMENT ACCESS CHANNEL.

A channel on the cable system that is provided by grantee to grantor and other governmental institutions designated by grantor on which noncommercial informational programming regarding government activities and programs may be presented.

GRANTEE.

Any person to whom a valid franchise is granted by the City under this chapter, and the lawful successor, transferee or assignee of such person.

GROSS REVENUES.

All revenue, cash, credits, property of any nature, and other consideration derived directly or indirectly by grantee from or attributable to the sale or exchange of any cable service by or through the cable system, or from or attributable to the sale or exchange of any video programming over the respective open video service system; or in any manner derived from the operation of the cable system or the respective video service system, unless otherwise prohibited by federal or state law. Such revenue and other consideration, regardless of. technological platform, includes, without limitation, the following:

(a)

Fees received from residential and commercial subscribers to any tier of cable service and for all video programming services.

(b)

Fees received for installation, reconnection, downgrade, upgrade, and similar services.

(c)

Late fees and interest collected on delinquent subscriber fees or charges.

(d)

Fees paid for channels that are designated for commercial use.

(e)

Fees paid in connection with the rental, lease, or sale of converters, remote controls, and other equipment.

(f)

Leased or access channel revenues received in connection with the distribution of any cable service.

(g)

All bad debts that are recovered.

(h)

All revenue that is received by grantee, or its subsidiaries or affiliates, from the conduct of any service related activity directly involving the video portion of the cable system, including without limitation revenues derived from advertising sales, the sale of products or services on home shopping channels, and the sale of program guides.

(i)

The fair market value of any nonmonetary consideration received by grantee in any transaction with another person relating to the receipt of cable service or the operation of the cable system as it pertains to the offering of cable service, such as a barter transaction, but not less than the customary prices paid in connection with equivalent transactions.

(j)

All carriage revenues received from video programming providers, including incentive fees for carriage, contra-expense, barters, or other transactions where generally accepted accounting principles would require treatment as revenue.

(k)

A franchise fee if itemized and added to the bill. The term "gross revenues" does not include the following:

(i)

Refundable deposits, rebates, or credits.

(ii)

Bad debt that is unrecovered or unrecoverable.

(iii)

Taxes imposed by law on subscribers that grantee is obligated to collect on behalf of any governmental agency.

(iv)

Revenues collected by unaffiliated video programming providers.

(v)

PEG fees paid to the grantor per subscriber as required by the franchise agreement.

(vi)

Advertising commissions paid to advertising rep firms and ad agencies that are not wholly-owned subsidiaries of grantee.

(vii)

Programming launch fees and marketing support payments where grantee receives reimbursements for mandatory marketing costs associated with the launch and promotion of services offered.

MULTICHANNEL VIDEO PROGRAMMING DISTRIBUTOR.

A person such as, but not limited to, a cable system operator, an open video system operator, as defined below, a multichannel multipoint distribution service, a direct broadcast satellite service, or a television receive-only satellite program distributor, who makes available multiple channels of video programming for purchase by subscribers or customers.

OPEN VIDEO SYSTEM.

A facility consisting of a set of transmission paths and associated signal generation, reception, and control equipment that is designed to provide cable services, including video programming, and that is provided to multiple subscribers within the City, provided that the FCC has certified that such system complies with 47 CFR §§ 1500 et seq., entitled "open video systems."

OPEN VIDEO SYSTEM OPERATOR.

Any person or group of persons who provides cable services over an open video system and directly or through one or more affiliates owns a significant interest in that open video system, or otherwise controls or is responsible for the management and operation of that open video system.

NORMAL OPERATING CONDITIONS.

Service conditions that are within the control of grantee. Those conditions that are ordinarily within the control of grantee include, but are not limited to, special promotions, rate increases, regular peak or seasonal demand periods, and scheduled maintenance or upgrade of the cable system. Those conditions that are not in control of grantee include, but are not limited to, natural disasters, civil disturbances, power outages, telephone network outages, and severe or unusual weather conditions.

PERSON.

Any individual, corporation, partnership, proprietorship, or other organization authorized to do business in the State of California.

PUBLIC ACCESS CHANNEL.

A channel on the cable system that is provided by grantee for non-commercial programming produced by members of the public or a nonprofit corporation formed by the City to operate and manage such a channel.

PUBLIC RIGHT(S)-

OF-WAY. Any of the following that are controlled, used or dedicated for use by the public and located within the City's jurisdictional limits: streets, roadways, highways, avenues, lanes, alleys, sidewalks, public utility easements, rights of way and similar public property within which grantee may place its facilities for operating a cable system.

SERVICE INTERRUPTION.

The loss or impairment of the cable services on one or more channels or frequency bands of the cable system used in connection with the provision of cable services to any subscriber.

SUBSCRIBER.

Any person who pays for cable services provided by grantee by means of the cable system.

VIDEO PROGRAMMING PROVIDER AND VIDEO SERVICE SUPPLIER.

Any person, company, or service that provides one or more channels of video programming including any communications that are ancillary, necessary or common to the use and enjoyment of the video programming, to or from an address in the City, including to or from a business, home, condominium, or apartment, where some fee is paid, whether directly or included in dues or rental charges for that service, when public rights-of-way are utilized in the delivery of the video programming or communications, regardless of the content of such video programming or communications or the technology and method used to deliver such programming.

VIDEO PROGRAMMING.

Any and all video programming (including, but not limited to, origination programming) provided by the grantee to subscribers and any communications that are ancillary, necessary or common to the use or enjoyment of such video programming.

(Sec. 1 (part), Ord. 06-016, eff. Nov. 17, 2006)