Mendocino County Municipal Code Div. I General Provisions

This Chapter is known and may be cited as the "Cable, Video, and Telecommunications Service Providers Ordinance" of the County of Mendocino.

(Ord. No. 4115 § 1 (part), adopted 2003.)

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

(Ord. No. 4115 § 1 (part), adopted 2003.)

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.

(A) "Access," "peg access" or "peg use" refers to the availability or 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 not limited to the following:

(1) 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;

(2) Educational access or educational use where educational institutions are the primary or designated programmers or users having editorial control over their programming;

(3) 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.

(B) "Affiliate" means any person directly or indirectly controlling, controlled by, or under common control of Grantee.

(C) "Cable Act" means the Cable Communications Policy Act of 1984 (47 USCS 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) as hereinafter may be amended.

(D) "Cable service" constitutes the following:

(1) The one-way transmission to subscribers of (a) video programming, or (b) other programming service; and

(2) Subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service, as hereinafter may be amended.

(E) "Cable system" or "system" means 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 which is provided to multiple subscribers within the County. Such term does not include:

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

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

(3) A facility of a common carrier which 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

(4) An open video system, as defined subsection V of this Section, that complies with 47 USC Section 573; or

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

(F) "County" means the County of Mendocino.

(G) "County Administrator" means the County Administrator of the County of Mendocino, or his or her designee.

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

(I) "Complete system construction" means 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 dependant upon such construction is verified. The term "complete system construction" does not include marketing and installation of subscriber service.

(J) "Control(ing/ed)" means 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.

(K) "Distribution facility(ies)" means cable equipment which is not specific to a subscriber, including trunk and distribution lines, but excluding drop lines to specific locations.

(L) "Drop lines" means the cable and related equipment connecting the cable system's plant to equipment at the subscriber's premises.

(M) "Educational access channel" means a channel on the cable system which designates educational institutions as the primary providers of non-commercial programming.

(N) "FCC" means the Federal Communications Commission.

(O) "Franchise" means the right to construct, operate and maintain a cable system using the County's streets and rights-of-way pursuant to the terms and conditions of this Chapter and other relevant provisions of the County Code, the franchise agreement, any Resolution approving the transfer of the franchise and any agreement between the County and Grantee relating to the operation of the cable system.

(P) "Franchise agreement" means an agreement granting a franchise pursuant to the terms of the agreement and this Chapter. Any conflict between the terms of this Chapter and the franchise agreement shall be resolved in favor of the franchise agreement.

(Q) "Franchise area" means the geographic area within the County designated in a franchise where Grantee may operate a cable system, as defined in the franchise agreement.

(R) "Government access channel" means a channel on the cable system which is provided by Grantee to Grantor and other governmental institutions designated by Grantor on which non-commercial informational programming regarding government activities and programs may be presented.

(S) "Grantee" means any person to whom a valid franchise is granted by the County under this Chapter, and the lawful successor, transferee or assignee of such person.

(T) "Gross revenues" means any and all revenue which is received, whether directly or indirectly, by Grantee, from or in connection with the provision of cable services over the subject cable system, or any part of such system. Such revenue shall include but not be limited to the following:

(1) Any and all fees charged to subscribers for cable services including without limitation fees for any and all basic service, optional service, tier service, audio service, commercial service, premium service, pay television service, pay-per-view service and related per-event service, or for the distribution of any other cable services over the cable system;

(2) Any and all fees charged to subscribers for installation, disconnection, reconnection, change in service and similar fees;

(3) Any and all fees charged to subscribers for converters, remote controls or other equipment leased, rented or sold to subscribers in connection with the delivery of cable services;

(4) Any and all fees charged to subscribers for service charges and/or late fees attributable to delinquent accounts;

(5) Any and all revenue collected by Grantee from its subscribers for direct payment to a third party as a cost of doing business (including without limitation possessory interest tax, copyright fees, program license fees and subscriber payments for PEG access);

(6) Any and all revenue received from cable services related activities including without limitation any and all revenue received from leased access programmers and other users, or the use, license or lease of studio rental and production equipment, or the sale, exchange or cablecast of any programming developed on or for community service channels or institutional users, or the sale of advertising or the lease of channel capacity on a cable system, without deduction for any commission paid to an advertising agency in connection with the sale of advertising on a cable system. Any and all revenue of any person which is derived directly or indirectly from or in connection with the provision of cable services over the cable system, including but not limited to revenue or compensation which is paid by any of the following: (a) the subscribers or users of such cable system, or (b) the advertisers on such cable system, or (c) any other party; and is paid to any of the following: (a) the suppliers of programming on such cable system, or (b) home shopping services in connection with the sales of products or services derived from programming transmitted over such cable system, to the extent such revenue represents payment, in whole or in part, for the use of a channel on the system; or (c) leased access programmers for programming transmitted over such cable system;

(7) Refundable deposits that are not returned to subscribers following termination of service;

(8) Gross revenues shall include revenue derived from subscriptions to cable information services as defined by the Communications Act provided over the cable system in the franchise area should a final determination by Congress, a court of competent jurisdiction, or the FCC which classifies cable information service, or any other service offered by Grantee, as a cable services (as that term is defined in the Cable Act) beginning on the effective date of the final determination.

Gross Revenues shall not include any tax of general applicability imposed upon Grantee by the County, state, federal or any other governmental entity and required to be collected by Grantee and passed through to the taxing entity, provided such taxes are identified as a separate line item on subscriber statements. The franchise fee shall be included in gross revenues.

In computing gross revenues from sources other than subscribers, including but not limited to revenue from the sale of advertising, lists of the names and addresses of Grantee's subscribers, home shopping services, guide sales or the lease of channel capacity over its cable system, which revenue is attributable both to the operation of Grantee's cable system inside the County and in areas outside the County, the aggregate revenue received by Grantee from such other sources shall first be multiplied by a fraction, the numerator of which shall be the number of Grantee's subscribers in the County as of the last day of the relevant billing period and the denominator of which shall be the number of subscribers within all relevant areas served by Grantee for that specific service as of the last day of such period, and then assessed for franchise fees.

Gross Revenues shall include revenue received by any entity other than the Grantee where necessary to prevent evasion or avoidance of the obligation under this agreement to pay the franchise fees.

(U) "Multichannel video programming distributor" or "video programming distributor" means a person such as, but not limited to, a cable system operator, an open video system operator, as defined in subsection W of this Section, 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.

(V) "Open video system" means 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 County, provided that the FCC has certified that such system complies with 47 CFR § 1500 et seq., entitled "Open Video Systems."

(W) "Open video system operator" means any person or group of persons who provide 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.

(X) "Normal operating conditions" means 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.

(Y) "Person" means any individual, corporation, partnership, proprietorship or other organization authorized to do business in the State of California.

(Z) "Public access channel" means a channel on the cable system which is provided by Grantee for non-commercial programming produced by members of the public or a nonprofit corporation formed by the County to operate and manage such a channel.

(AA) "Public right(s)-of-way" means any of the following that are controlled, used or dedicated for use by the public and located within the County's jurisdictional limits: streets, roadways, highways, avenues, lanes, alleys, sidewalks, rights-of-way and similar public property within which Grantee may place its facilities for operating a cable system.

(BB) "Service interruption" means 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.

(CC) "Subscriber" means any person who pays for cable services provided by Grantee by means of the cable system.

(DD) "Video provider" means any person, company or service that provides one or more channels of video programming to a residence, including a home, condominium, apartment or mobile-home, where some fee is paid for that service, whether directly or as included in dues or rental charges, and whether or not public rights-of-way are used in the delivery of that video programming. A "video provider" includes, without limitation, providers of cable television service, master antenna television, satellite master antenna television, direct broadcast satellite, multipoint distribution services and other providers of video programming, whatever their technology.

(Ord. No. 4115 § 1 (part), adopted 2003.)