Article 5 — Definitions

• A. The words, terms, phrases and their derivations set forth in this chapter have the meanings set forth in this section. Words used in the present tense include the future tense and words in the singular include the plural number.

"Affiliate" means, when used in relation to any person, another person who owns or controls, is owned or controlled by or is under common ownership or control with, such person. For purposes of this definition, the term "own" means to own an equity interest or its equivalent, of ten percent or more.

"Cable service" means the one-way transmission to subscribers of video programming or other programming services and subscriber interaction, if any, that is required for the selection or use of that video programming or other programming service. For the purposes of this definition, "video programming" means programming provided by or generally considered comparable to programming provided by, a television broadcast station; and "other programming service" means information that a cable system operator makes available to all subscribers generally.

"Cable system" or "cable communications system" or "cable television 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 that includes video programming and that is provided to multiple subscribers within a community. The term "cable system" 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 any public right-of-way;

• c. A facility of a common carrier that is subject, in whole or in part, to the provisions of Title II of the Telecommunications Act of 1996, except that such facility will be considered a cable system (other than for purposes specified in Section 621(c) of the 1984 Cable Act) 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 ondemand services;

• d. An open video system that complies with Section 653 of Title VI of the Telecommunications Act of 1996; or

• e. Any facilities of an electric utility that are used solely for operating its electric utility system.

• "Cable system 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 that cable system; or

• b. Who otherwise controls or is responsible for, through any arrangement, the management and operation of that cable system.

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City of Palm Desert, CA

FRANCHISES

§ 14.01.170

§ 14.01.170

"City" means the city of Palm Desert as represented by its city council or by any delegate acting within the scope of its delegated authority.

"CFR Section" means the Code of Federal Regulations. Thus, the citation of "47 CFR 80.1" refers to Title 47, Part 80, Section 1 of the Code of Federal Regulations.

"Communications Act" means the Communications Act of 1934 (47 U.S.C. Sections151, et seq.), as amended by the Cable Communications Policy Act of 1984, the Cable Television Consumer Protection and Competition Act of 1992 and the Telecommunications Act of 1996.

"FCC" or "Federal Communications Commission" means the federal administrative agency, or any lawful successor, that is authorized to regulate telecommunications services and telecommunications service providers on a national level.

"Franchise" means an initial authorization, or the renewal of an initial authorization, issued by the city council, whether such authorization is designated as a franchise, agreement, permit, license, resolution, contract, certificate or otherwise, that authorizes the construction or operation of a cable system or an open video system.

"Franchise fee" means any fee or assessment of any kind that is authorized by state or federal law to be imposed by the city on a grantee as compensation in the nature of rent for the grantee's use of the public rights-of-way. The term "franchise fee" does not include:

• a. Any tax, fee or assessment of general applicability (including any such tax, fee or assessment imposed on both utilities and grantees or their services);

• b. Capital costs that are required by the franchise to be incurred by a grantee for public, educational or governmental access facilities;

• c. Costs or charges that are incidental to the award or enforcement of the franchise, including payments for bonds, security funds, letters of credit, insurance, indemnification, penalties or liquidated damages; or

• d. Any fee imposed under Title 17, United States Code.

"Franchise service area" or "service area" means the entire geographic area of the city as it is now constituted, or may in the future be constituted, unless otherwise specified in the ordinance or resolution granting a franchise, or in a franchise agreement.

"Grantee" means any person that is awarded a franchise in accordance with this chapter, and that person's lawful successor, transferee or assignee.

"Gross annual cable service revenues" means, as applied to the grantee of a cable television franchise, the annual gross revenues received by a grantee from all operations of its cable television system within the city, excluding uncollected bad debt, refundable deposits, rebates or credits and further excluding any sales, excise or other taxes or charges that are required to be collected for direct pass-through to the local, state or federal government. Revenues identified and collected from subscribers as franchise fees may not be excluded from a grantee's gross annual cable service revenues, unless otherwise provided by federal law.

"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, a multichannel multipoint distribution service, a direct broadcast satellite service

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City of Palm Desert, CA § 14.01.170

PALM DESERT CODE

§ 14.01.170

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" means a facility consisting of a set of transmission paths and associated signal generation, reception and control equipment that is designed to provide cable service, 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 Section1500, et seq., entitled "Open Video Systems."

"Open video system operator" means any person or group of persons who provides cable service 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.

"Person" means an individual, partnership, limited liability company, association, joint stock company, trust, corporation or governmental entity.

"Public, educational or government access facilities" or "PEG access facilities," means the total of the following:

• a. Channel capacity designated for noncommercial public, educational or government use; and

• b.

• Facilities and equipment for the use of that channel capacity.

"Subscriber" or "customer" or "consumer" means any person who, for any purpose, subscribes to the services provided by a multichannel video programming distributor and who pays the charges for those services.

"Street" or "public way" means each of the following that has been dedicated to the public and maintained under public authority or by others and is located within the city limits: streets, roadways, highways, avenues, lanes, alleys, sidewalks, easements, rights-of-way and similar public property that the city from time to time authorizes to be included within the definition of a street.

"Telecommunications" means the transmission, between or among points specified by the user, of information of the user's choosing, without change in the form or content of the information as sent and received.

"Telecommunications equipment" means equipment, other than customer premises equipment, used by a telecommunications service provider to provide telecommunications service, including software that is integral to that equipment.

"Telecommunications service" means the offering of telecommunications directly to the public for a fee, or to such classes of users as to be effectively available directly to the public, regardless of the equipment or facilities that are used.

"Telecommunications service provider" means any provider of telecommunications service.

"U.S.C. Section" means the United States Code. Thus, the citation of "47 U.S.C. Section 153" refers to Title 47, Section 153, of the United States Code.

"Video programming provider" means any person or group of persons who has the right under the federal copyright laws to select and to contract for the carriage of specific video programming on a cable system or an open video system.

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City of Palm Desert, CA

FRANCHISES

§ 14.01.170

§ 14.01.170

"Video provider" means any person, company or service that provides one or more channels of video programming to a residence, including a home, multi-family dwelling complex, congregate-living complex, condominium, apartment or mobilehome, 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, open video system service, master antenna television, satellite master antenna television, direct broadcast satellite, multipoint distribution services and other providers of video programming, whatever their technology.

• B. Unless otherwise expressly stated, words, terms and phrases not defined in this chapter will be given their meaning as used in Title 47 of the United States Code, as amended and, if not defined in that code, their meaning as used in Title 47 of the Code of Federal Regulations.

• (Ord. 946 § 2, 2000)

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City of Palm Desert, CA

FRANCHISES

§ 14.01.180

§ 14.01.190