Ontario Municipal Code Art. 1 General Provisions

This chapter is known and may be cited as the "Video Provider Ordinance" of the City of Ontario.

(§ 1, Ord. 2833, eff. August 5, 2006)

This chapter is enacted by the City pursuant to City's authority pursuant to the Cable Act, the California Government Code, 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.

(§ 1, Ord. 2833, eff. August 5, 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, the California Video Customer Service Act, the California Cable Television and Video Provider Customer Service and Information 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 video provider system as set forth in the license agreement for public, educational or government use (PEG), by public 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:

(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 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 definition, the term "own" means to own an equity interest (or the equivalent thereof) of more than thirty-five percent (35%).

(c) "Cable Act" is 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 (Public Law No. 102-385) and the Telecommunications Act of 1996 (Public Law No. 104-104), and as hereinafter may be amended.

(d) "Cable service" shall be defined herein as it is defined under Section 602 of the Cable Act, 47 U.S.C. § 522(6), meaning the one-way transmission to subscribers of video programming, or other programming service, 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.

(e) "Cable system" shall be defined herein as it is defined under Section 602 of the Cable Act, 47 U.S.C. § 522(7), meaning 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:

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

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

(3) A facility of a common carrier that is subject, in whole or in part, to the provisions of Subchapter II of Chapter 5 of 47 U.S.C., except that such facility shall be considered a cable system (other than for purposes of 47 U.S.C. § 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;

(4) An open video system, as defined below, that complies with 47 U.S.C. § 573; or

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

(f) "City" means the City of Ontario, California.

(g) "City Manager" means the City Manager of the City of Ontario, or his or her designee.

(h) "Communications Act" means the Communications Act of 1934 (48 Stat. 1064, 15 U.S.C. § 21; 47 U.S.C. §§ 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) "Educational access channel" is a channel on the video provider system that designates educational institutions as the primary providers of non-commercial programming.

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

(m) "Government access channel" means a channel on the video provider system that 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.

(n) "Grantee" means any person to whom a valid license is granted by the City under this chapter or to whom an existing franchise agreement was granted by the City under previous ordinances, and the lawful successor, transferee or assignee of such person.

(o) "Gross revenues."

(1) All revenue, cash, credits, property of any nature, and other consideration derived directly or indirectly by grantee, from or attributable to the sale of any video programming by or through the video provider system; or in any manner derived from the operation of the video provider system to provide cable service, unless otherwise prohibited by federal or state law. Without limiting the foregoing, as provided by the Cable Act, gross revenues shall be those revenues derived from the operation of a cable system to provide cable service. Such revenue and other consideration, regardless of technological platform, includes, without limitation, the following:

(i) Fees received from residential and commercial subscribers for all video programming services.

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

(iii) Late fees and interest collected on delinquent subscriber fees or charges.

(iv) Fees paid for channels that are designated for commercial use.

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

(vi) Leased or access channel revenues received in connection with the distribution of any video programming service.

(vii) All bad debts that are recovered.

(viii) All revenue that is received by grantee from the conduct of any service-related activity directly involving the video portion of the video provider system, including without limitation revenues derived from advertising sales, commissions or other compensation paid to the grantee as compensation for promotion or exhibition of products or services on home shopping channels, and the sale of program guides.

(ix) The fair market value of any nonmonetary consideration received by grantee in any transaction with another person relating to the receipt of video programming or the operation of the video provider system as it pertains to the offering of video programming, such as a barter transaction, but not de minimis amounts or the value of free service to municipal buildings, employees or other not-for-profit entities and not less than the customary prices paid in connection with equivalent transactions.

(x) All carriage revenues received from video programming providers, including incentive fees for carriage, contra expense, barters, or other transactions, but only to the extent that generally accepted accounting principles would require treatment as revenue.

(xi) A license fee or franchise fee if itemized and added to the bill.

(2) 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 license agreement.

(vi) Advertising commissions paid to advertisers 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.

(viii) All fees received by an affiliate or other person in exchange for supplying goods or services used by licensee to provide video programming over the video provider system.

(ix) The sale of video programming on the video provider system for resale in which the purchaser is required to collect license fees, as that term is used in § 14-9.16, from purchaser's customer.

(x) The sale of video programming to customers who are exempt, as required or allowed by City, including, without limitation, the provision of video programming to public institutions as required or permitted under this chapter.

(xi) Sales of capital assets or sales of surplus equipment.

(3) 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 license fees. Gross revenues shall be computed in accordance with generally accepted accounting principles.

(p) "License" means the right to construct, operate and maintain a video provider 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 license agreement, and any ordinance or resolution approving the transfer of the license, and any agreement between the City and grantee relating to the operation of the video provider system.

(q) "License agreement" means an agreement granting a license pursuant to the terms of the agreement and this chapter. Any conflict between the terms of this chapter and the license agreement shall be resolved in favor of the license agreement.

(r) "License area" means the geographic area within the City designated in a license where grantee

may operate a video provider system, as defined in the license agreement.

(s) "Non-video services" means any service that does not constitute the provision of video programming directly to multiple subscribers in the license area.

(t) "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 video provider 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. See 47 C.F.R. § 76.309(c)(4)(ii).

(u) "OntarioNet" means the fiber-to-the-home network owned by the City and available for use on a wholesale basis by qualified service providers, including video providers.

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

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

(x) "Public access channel" means a channel on the video provider 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.

(y) "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 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 video provider system.

(z) "Service interruption" means the loss or impairment of the video programming services on one (1) or more channels or frequency bands of the video provider system used in connection with the provision of video programming to any subscriber.

(aa) "Subscriber" means any person who lawfully receives video programming provided by a video provider.

(ab) "Telecommunications facilities" means a video provider's existing and future telecommunications services facilities.

(ac) "Telecommunications services" shall be defined herein as it is defined under Section 3 of the Communications Act, 47 U.S.C. § 153(46).

(ad) "Video programming" shall be defined herein as it is defined under Section 602 of the Cable Act, 47 U.S.C. § 522(20), meaning any programming provided by, or generally considered comparable to programming provided by, a television broadcast station.

(ae) "Video service" means video programming services provided through wireline facilities located at least in part in the public rights-of-way without regard to delivery technology, including Internet protocol technology. This definition does include any video programming provided by a commercial mobile service provider defined in Section 322(d) of the Communications Act.

(af) "Video provider" means any person, company, or service which provides one (1) or more channels of video programming to a business or residence, including a home, condominium, apartment, or mobile home, in the City, where some fee is paid, whether directly or as included in dues or rental charges, for that service, whether or not public rights-of-way are utilized in the delivery of the video programming. A "video provider" shall include, but not be limited to, providers of cable television, master antenna television, satellite master antenna television, direct broadcast satellite, multi-point distribution services, and other providers of video programming, whatever their technology. A video provider shall not include a landlord providing only broadcast video programming to a single-family home or other residential dwelling consisting of four (4) units or less.

(ag) "Video provider system" means any video provider's facilities, whether leased or owned, located at least in part in the public rights-of-way, and used to deliver cable services or video services to subscribers, without regard to delivery technology. However, a video provider's use of OntarioNet, as authorized by ordinance or agreement with the City, shall not constitute a video provider system for purposes of determining whether a video provider is subject to the licensing requirements of this chapter.

(§ 1, Ord. 2833, eff. August 5, 2006)