Part I — General

A.

The definitions set forth in this Part shall govern the application and interpretation of this chapter.

B.

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.

C.

Subject to the provisions of Section 1.04.020 of Title 1 of the Municipal Code, the words "shall" and "will" are mandatory, and "may" is permissive.

D.

Words not defined in this chapter shall have the same meaning as in Title VI of Title 47 of the United States Code in effect on the effective date of the ordinance enacting this chapter, and, if not defined therein, their common and ordinary meaning.

B.

References to governmental entities (whether persons or entities) refer to those entities or their successors in authority.

F.

If specific provisions of law referred to herein are renumbered, then the reference shall be read to refer to the renumbered provision.

G.

Unless otherwise specified, 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.

(Ord. 12729 § 1 (part), 2006)

"Access," "PEG access," or "PEG use" refers to the availability of a cable system or OVS for public, education or government use (including channel capacity on institutional networks designated for PEG use) by various agencies, institutions, organizations, groups, and individuals, including the city and its designated access providers, to distribute programming not under a franchisee's editorial control, including, but not limited to the access or use described in Sections 5.16.030, 5.16.040 and 5.16.050 below.

(Ord. 12729 § 1 (part), 2006)

"Public access" or "public use" means access where organizations, groups, or individual members of the general public are the designated programmers or users having editorial control over their communications.

(Ord. 12729 § 1 (part), 2006)

"Education access" or "education use" means access where schools are the designated programmers or users having editorial control over their communications.

(Ord. 12729 § 1 (part), 2006)

"Government access" or "government use" means access where government institutions or their designees are the designated programmers or users having editorial control over their communications.

(Ord. 12729 § 1 (part), 2006)

"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.

(Ord. 12729 § 1 (part), 2006)

"Basic service" means any service tier regularly provided on a cable communications system to all subscribers which includes the retransmission of local television broadcast signals.

(Ord. 12729 § 1 (part), 2006)

"Cable Act" means the Cable Communications Policy Act of 1984, 47 U.S.C. § 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, as it may be amended from time to time.

(Ord. 12729 § 1 (part), 2006)

"Cable communications system" refers to open video systems (OVS) and cable systems.

(Ord. 12729 § 1 (part), 2006)

"Cable service" shall have the same meaning as in Title VI of Title 47 of the United States Code, as amended from time to time.

(Ord. 12729 § 1 (part), 2006)

"Cable system" means a facility, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide cable service which includes video programming and which is provided to multiple subscribers within a community, but such term does not include:

A.

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

B.

A facility that serves subscribers without using, or connecting to a facility that uses, any public right-of-way within the city;

C.

A facility of a common carrier which is subject, in whole or in part, to the provisions of Title II (Common Carriers) of the Federal 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;

D.

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

E.

An OVS that complies with 47 USC Section 573 and FCC regulations promulgated thereunder.

(Ord. 12729 § 1 (part), 2006)

"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 standard NTSC broadcast video programming service whether in an analog or digital format. The definition does not restrict the use of any channel to the transmission of analog television signals.

(Ord. 12729 § 1 (part), 2006)

"City" means the city of Oakland and all departments, divisions, and agencies thereof except that, when used to describe a geographic area, the term refers to the boundaries of the city of Oakland, California, as they exist now or may exist in the future.

(Ord. 12729 § 1 (part), 2006)

"City Administrator" means the City Administrator or the City Administrator's designee.

(Ord. 12729 § 1 (part), 2006)

"Construction, operation or repair" and similar formulations of that term means the named actions interpreted broadly, encompassing, among other things, installation, extension, maintenance, replacement of components, relocation, undergrounding, grading, site preparation, adjusting, testing, make-ready, excavation and the management of the cable system and its operations.

(Ord. 12729 § 1 (part), 2006)

"FCC" means the Federal Communications Commission.

(Ord. 12729 § 1 (part), 2006)

"Franchise" refers to an authorization granted by the city to the operator of a cable communications system giving the operator the non-exclusive right to occupy the space, or use facilities upon, across, beneath, or over public rights-of-way in the city, to provide specified services within a franchise area. A permit is not a franchise.

(Ord. 12729 § 1 (part), 2006)

"Franchise area" means the area of the city that a franchisee is authorized to serve by the terms of its franchise ordinance or by operation of law.

(Ord. 12729 § 1 (part), 2006)

"Franchisee" refers to a person holding a cable communications system franchise granted by the city.

(Ord. 12729 § 1 (part), 2006)

"Gross revenues" means any and all revenue as determined in accordance with generally accepted accounting principles ("GAAP") derived from the operation of a cable communications system to provide cable service. Gross revenues include, by way of example and not limitation, revenues from equipment sales and rentals services, installation, late fees and other subscriber charges, fees for carriage of programming, advertising revenue and shopping services recorded as revenue in accordance with GAAP; the term encompasses revenues that are received now, as well as new revenue sources that may develop in the future. "Gross revenues" shall include revenues of affiliates using the cable communications system in the city to provide cable service (other than those revenues which are already treated as the revenues of the franchisee) to the extent required to prevent avoidance of fees owed on gross revenues.

(Ord. 12729 § 1 (part), 2006)

"Operator" when used with reference to a cable communications system, refers to a person (a) who directly or through one or more affiliates provides cable service or OVS over a cable communications system and directly or through one or more affiliates owns a significant interest in such system; and (b) who otherwise controls or is responsible for, through any arrangement, the management and operation of such a system.

(Ord. 12729 § 1 (part), 2006)

"OVS" means an open video system. 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.

(Ord. 12729 § 1 (part), 2006)

"OVS agreement" means a franchise entered into in accordance with the provisions of this chapter between the city and an OVS franchisee setting forth the terms and conditions under which the OVS franchise will be exercised.

(Ord. 12729 § 1 (part), 2006)

"Person," unless it otherwise appears from the context as used, means and includes any person, individual, firm, organization, corporation, partnership, association, limited liability company, joint stock or other company, business or other trust, public agency, school district, the state of California, its political subdivisions and/or instrumentalities, or any other legal entity, but not the city.

(Ord. 12729 § 1 (part), 2006)

"Public property" means any property that is owned or under the control of the city that is not a public right-of-way, including but not limited to, buildings, parks, structures such as utility poles and light poles, or similar facilities or property located in a public right-of-way or owned by or leased to the city.

(Ord. 12729 § 1 (part), 2006)

"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, parkstrip, drive, or right-of-way or easement generally available to and used by utilities, communication companies, or for travel by the public, now or hereafter existing within the city which may be properly used and the city has the authority to allow the use of, 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.

(Ord. 12729 § 1 (part), 2006)

"School" means any publicly funded charter school or public primary and secondary schools (K—12) located within the city.

(Ord. 12729 § 1 (part), 2006)

"Subscriber" means 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.

(Ord. 12729 § 1 (part), 2006)

"User" means a person or the city utilizing a channel, capacity or equipment and facilities of a cable communications system for purposes of transmitting programming material, as contrasted with the receipt thereof in the capacity of a subscriber.

(Ord. 12729 § 1 (part), 2006)