Sierra Madre Municipal Code Art. 1 General Provisions

This title is known and may be cited as the "Cable, Video, and Telecommunications Service Providers Ordinance" of the city of Sierra Madre.

(Ord. 1195 § 1 (part), 2002)

This chapter is enacted by the city of Sierra Madre under its authority as recognized by the Cable Act, and also separately by its police power authority and its authority and right to control the use of and encroachment upon the public right-of-way within the city.

(Ord. 1195 § 1 (part), 2002)

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 herein shall be given the meaning set forth in the Cable Communications Policy Act of 1984 ("Cable Act"), 47 U.S.C. Section 521 et seq. and as amended, and if not defined therein, their common and ordinary meaning.

"Access corporation" means a nonprofit, public corporation established or authorized by the city, whose duties shall include the management and operation of the PEG Access Channels.

"Affiliate' means any person directly or indirectly controlling, controlled by, or under common control of grantee.

"Application" or "proposal" means a formal response by a qualified cable company in accordance with the city specifications to provide cable services to residents, businesses, industries and institutions within the city, which has been submitted to and received by the city.

"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).

"Cable service" means (A) the one-way transmission to subscribers of (i) video programming, or (ii) other programming service, and (B) subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service.

"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 city. 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 that complies with 47 USC Section 573; or

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

"City manager" means the city manager of the city of Sierra Madre, or his/her designee.

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

"Control" 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.

"Distribution facilities" means cable equipment which is not specific to a subscriber, including trunk and distribution lines, but excluding drop lines to specific locations.

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

"Educational access channel" means a channel which designates educational institutions as the primary suppliers of non-commercial programming.

"FCC" means the Federal Communications Commission.

"Franchise" means the right to construct, operate and maintain a cable system using the city of Sierra Madre streets and rights-of-way pursuant to the terms and conditions of the Cable Television Ordinance and other relevant provisions of the this code, this agreement, any resolution approving the transfer of the franchise and any agreement or contract between the city and grantee relating to the operation of the cable system.

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

"Franchise area" means 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" means a channel on the cable system which is made available by grantee on which non-commercial informational programming regarding government activities and programs may be presented.

"Grantee" means any person to whom a valid franchise is granted by the city under this chapter, and the lawful successor, transferee or assignee of said person.

"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 service 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 service 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 service 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 service related activities (as defined herein) 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 service over the cable system, including but not limited to revenue or compensation which is paid by any of the following: (i) the subscribers or users of such cable system, or (ii) the advertisers on such cable system, or (iii) any other party; and is paid to any of the following: (i) the suppliers of programming on such cable system, or (ii) 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 (iii) leased access programmers for programming transmitted over such cable system; and

7. Refundable deposits that are not returned to subscriber following termination of service;

8. Gross revenues shall include revenue derived from subscriptions to cable information service provided over the cable system in the franchise area should 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 service (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 city, 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 city and in areas outside the city, 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 city 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.

"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 or a television receive-only satellite program distributor, who makes available multiple channels of video programming for purchase by subscribers or customers.

"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.

"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 Section 1500 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 any individual, corporation, partnership, proprietorship or other organization authorized to do business in the state of California.

"Public right-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, rights-of-way and similar public property within which grantee may place its facilities for operating a cable system.

"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.

"Service related activity" means any activity or function for which grantee receives revenue from any user or person other than a subscriber and which is associated with the provision of cable service over the cable system.

"Subscriber" means any person who pays for cable service provided by grantee by means of the cable system.

(Ord. 1195 § 1 (part), 2002)