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HomeMy Public PortalAbout1994_04_26_O012The Town of Leesburg, .rg ma ORDINANCE NO. AN ORDINANCE: 94-0-12 PRESENTED April 26, 1994 ADOPTED April 26, 1994 AMENDING CHAPTER 5.1, ARTICLE I, ARTICLE XlI AND ARTICLE XIV, OF THE LEESBURG TOWN CODE REGARDING CABLE TELEVISION RATE REGULATION WHEREAS, the Cable Television Consumer Protection and Competition Act of 1992 allows local franchising authorities to regulate basic cable service rates and the charges for associated equipment, installation and services, provided that the local franchising authority is certified by the Federal Communications Commission and adopts regulations consistent with those established by the FCC; and WHEREAS, the Town of Leesburg is a franchising authority with the legal authority to adopt, and the personnel to administer, regulations with respect to the basic service rates and charges of any cable television system operating in the town, including, without limitation, the system currently being operated by Benchmark Acquisition Fund I, L.P. (Cablevision of Loudoun) pursuant to tlhe Franchise Agreement; and WHEREAS, the Town desires to regulate the basic service rates and charges of the company and any other cable television system operating in the Town and shall do so in accordance with the FCC Rate Regulations, notwithstanding any different or inconsistent provisions in the Franchise; and WHEREAS, in connection with such regulation, the town will ensure a reasonable opportunity for consideration of the views of interested parties. THEREFORE ORDAINED by the Council of the Town of Leesburg in Virginia as follows: SECTION I. Chapter 5.1, Article I, of the Town Code is hereby amended as follows: Sec. 5.1-3. Definitions. Where used within this chapter, unless the context clearly indicates otherwise, the following words and terms shall have the meaning indicated below: Applicant means any applicant for a Franchise pursuant to this Chapter. AN ORDINANCE: -2- AMENDING CHAPTER 5.1, ARTICLE I, ARTICLE XII AND ARTICLE XIV, OF THE LEESBURG TOWN CODE REGARDING CABLE TELEVISION RATE REGULATION Basic cable service shall mean any service tier which includes the retransmission of local television broadcast signalsl public, educational and government access channels; and any other video programmine or service a cable operator chooses to place on the basic tier. Cable television system or systems shall mean any 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, except that such definition shall not include (i) a system that serves fewer than twenty (20) subscribers, (ii) a facility that serves only to retransmit the television signals of one or more television broadcast stations, (iii) a facility that serves only subscribers in one or more multiple unit dwellings under common ownership, control, or management, unless such facility or facilities use any public right-of-way, (iv) a facility of a common carrier which is subject, in whole or in part, to the provisions ,of Title II of the Communications Act of 1934, 47 U.S.C. { 201 et seq., 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, or (v) any facilities of any electric utility used solely for operating its electric systems. Cablecasting shall mean originating programming over a cable television system. Converter shall mean an electronic device, which converts signals to a frequency not susceptible to interference within the television receiver of a subscriber and, by an appropriate channel :selector, also permits a subscriber to view all signals delivered at designated dial locations. Earth station shall mean the electronic equipment and hardware necessary to receive., signals from satellites. FCC shall mean the Federal Communications Commission or its successor. Franchise shall mean an authorization granted pursuant to this chapter and applicable state law in terms of a privilege, permit and license to construct, operate and maintain a cable television system within the town. Any such authorization, in whatever form granted, shall not include any license or permit required for the privilege of transacting and carrying on a business within the town as required by other ordinances and laws of the town. Franchise territory shall mean all the area within the corporate limits of the town arid any future extension thereof by annexation or bounda~ line adiustment. Franchisee shall mean the person, firm or corporation granted a franchise by the town under the provisions of this chapter and the lawful successor, transferee or assignee of said person, firm or corporation. Local origination channel shall mean a channel which is programmed by the cable system and subject to its exclusive control. Monitoring shall mean observing a one-way communications signal, or the absence of a signal, AN ORDINANCE: -3- AMENDING CHAPTER 5.1, ARTICLE I, ARTICLE XII AND ARTICLE XIV, OF THE LEESBURG TOWN CODE REGARDING CABLE TELEVISION RATE REGULATION whether the signal is observed by visual or electronic means for any purpose whatsoever. Pay television shall mean the delivery over the cable television system of video signals to subscribers for a fee or charge, over and above the charge for basic service, on a per program, per channel or other subscription basis. Property of franchisee shall mean all property owned, installed or used within the town by a franchisee in the conduct of a cable television system business under the authority of a franchise granted pursuant to this chapter. Service tier shall mean a category of cable service or services provided by a franchisee's cable television system and for which a separate rate is charged. Signals, whether distant, local radio, television or kinds of channels such as class I, Iii, III and IV, shall be given the meanings found in applicable FCC rules and regulations. Subscriber shall mean any person or entity receiving for any purpose any service of the cable television system including, but not limited to, the conventional cable television system service or retransmission of television broadcast, radio signals, the franchisee's original cablecasting and the local government, education and public access channels and other services including, but not limited to, leasing of channels, data and facsimile transmission, pay television and police, fire and similar public service communication. Town manager shall mean the manager of the town or an official authorized by him to administer the terms, provisions and regulations of this chapter. SECTION II. Chapter 5.1, Article XII, of the Town Code is hereby amended as follows: ARTICLE XII. RATES; RATE REGU].ATION; COMPLAINTS; PROCEEDINGS Sec. 5.1-61. ~l.{ng ,.,a .,..m{,,,,+;,,., ,,r ,.+ ..... s ....a .... l.+:,,,o Rates. Filin~ and publication of rates, rules and regulations. Charges to subscribers and users shall be uniform throughout the franchise area with a written schedule of fees for all services offered and available from the franchisee upon request. A franchisee shall publish and file with the town manager schedules of all rates and charges for all services offered to the subscribing public. Such schedules shall plainly state the cost of each particular service or combination of services, together with all rules, regulations and requirements AN ORDINANCE: -4- AMENDING CHAPTER 5.1, ARTICLE I, ARTICLE XII AND ARTICLE XIV, OF THE LEESBURG TOWN CODE REGARDING CABLE TELEVISION RATE REGULATION affecting the installation, the quality or cost of such service to the subscriber. The manner and form by which such schedules are published shall be reviewed and approved by the town manager. C'npi,~o ~,~ o. ~,,,,h ~..h~a,,~,~ ~ho, kb o,,o;Iohl,~ ttn th~ r~.~kl;r. ~.~t~r~ r~n'~r~ t~: o ~ (b) Diseriminato~ or preferential practices prohibited. ~e ~anchi~e shall not. in its rates or ~ char~es, or in ma~ng available the ~s ~ o~ facilities of its ~stem. or in its rules or re~lations, or in any other respect, make or ~ant a preference or advantage to any sub~riber or ~tential ~ sub~ri~r of the cable tele~sion ~stem or to any user or ~tential user of the cable television ~stem; and shall not subject ~ any such per~n to any prejudice or disadvantage. This pro. sion shall not be deemed to prohibit promotional ~mpai~s to stimulate sub~riptions to the cable television ~stem or other le~timate uses thereoL No~ithstan~ng the aforementione~ this pro. sion shall not prohibit the ~anchisee's establishment of special rates or charges for sub~ri~rs eli~ble and pa~icipating in the town's real estate t~ relief for the elderly pro.am or handicap~d per.ns, as defined in S<tion 46.1-104.1(al) of the Code of Vir~nia. Disconnection. No di~nn<tion fee shall be charged to a sub~riber. Customer-requested di~nnection shall ~ made as ~n as pra~i~blc and in no case shall billing ~ntinuc longer than ~o (2) business days following written noti~ to the ~anchisee of same ~ sub~iber. ~e ~anchisce shall not enter into any a~eement with a sub~riber which im~ses any charge other than past due balances and unreturned equipment charges following di~nnection of se~ce, except for re~nn~tion and subsequent monthly or periodic charges, and those charges shall be no ~eater AN ORDINANCE: -5- AMENDING CHAPTER 5.1, ARTICLE I, ARTICLE XII AND ARTICLE XIV, OF THE LEESBURG TOWN CODE REGARDING CABLE TELEVISION RATE REGULATION than charges for new customers. This section shall not prevent the franchisee from refusing service to any person because the franchisee's prior accounts with that person remain due and owing. _eec. 5.!-63. ............................................... rr ............ r ........ r-~r AN ORDINANCE: -6- AMENDING CHAPTER 5.1, ARTICLE I, ARTICLE XII AND ARTICLE XIV, OF THE LEESBURG TOWN CODE REGARDING CABLE TELEVISION RATE REGULATION Sec. 5.1-62. Rate Regulation. Compliance with FCC regulations. In regulating rates for basic cable service and associated equipment~ installation and services as allowed by federal law, the Town shall be governed by and shall comply with all controlling FCC regulations and State and federal statutes, notwithstanding any different or inconsistent provisions in the franchise. (b) Notice and comment. LD The franchisee must give thirty (30) days prior written notice Go the Town Manager and all affected subscribers of any proposed rate changes or additional charges, excluding temporary marketing and sales discounts or offers. Upon receipt of the cable operator's submission describing its rates or proposed rates, the Town of Leesburg shall publish notice in a newspaper of general circulation in the Town requesting oral and/or written comments from the public or any interested person. The notice shall name the franchisee, announce that the Town is conducting a review of the franchisee's schedule of rates or proposed rate increase, establish a closing date and provide an address where the comments will be sent. The comment period shall be open for no less than seven (7) calendar days after publication. The Town shall review and consider such comments in making any determination under this section. (2) Unless the proposed rate is disapproved or the town issues an order tolling the time for consideration of the rate consistent with FCC regulations, proposed rates will become effective after 30 days from the date the franchisee's rate submission is received by the Town. In the event that the Town issues a tolling order, if no action is taken by AN ORDINANCE: -7- AMENDING CHAPTER 5.1, ARTICLE I, ARTICLE XII AND ARTICLE XIV, OF THE LEESBURG TOWN CODE REGARDING CABLE TELEVISION RATE REGULATION the Town within the additional allowable time, the proposed rates will go into effect, subject to refunds if the Town subsequently issues a written decision disapproving any portion of such rates. The calculation of any such refunds shall be consistent with FCC reeulations. Additional information. At any point during the review process, the Town, at its discretion, may (1) hold public hearings provided that 48 hours prior written notice is sent to the cable operator and 48 hours prior published notice is provided the public; (2) seek additional written comments; (3) require the franchisee to produce additional information, including but not limited to certified financial statements, and all worksheets, working papers, ledgers, receipts, and all other financial and accounting records underlying the franchisee's submission, the calculations used in the .submission, and the franchisee's finances and accounts necessary to verify the accura~ of the submission; (4) require the franchisee to allow the town and its agents to audit and review the franchisee's books and accounts including but not limited to the information described in subsection (3) above; and (5) obtain relevant information from other sources. Confidential Business Information. If the franchisee believes that any of the additional information ordered produced is confidential business information in need of protection from disclosure, the franchisee must request confidentially and make a showing, by a predominance of evidence, that non-disclosure is consistent with provisions of the Federal Freedom of Information Act, 5 U.S.C. section 55~ and the Virginia Freedom of Information Act. If the Town denies the request for confidentiality, .the operator must appeal to the FCC within five (5) working days. In such cases, the operator AN ORDINANCE: -8- AMENDING CHAPTER 5.1, ARTICLE I, ARTICLE XII AND ARTICLE XIV, OF THE LEESBURG TOWN CODE REGARDING CABLE TELEVISION RATE REGULATION shall provide the requested material, but release of the information to the public will be stayed pending review. Determination of rates. {~ Final rate determinations will be made by the Town Council pursuant to FCC regulations. In making a final rate determination, the Town Council may take into consideration and rely in whole or in part upon the recommendations of the town manager and Cable Television Advisory Commission, and public comments received pursuant to Sec. 5.1-62~)(1). The Town may hire consultants to perform studies to assist in its review. The Town reserves the right to prescribe a reasonable rate for the basic service tier or associated equipment if it is determined that a proposed rate is unreasonable. {2) The Town Council shall issue a written decision whenever it disapproves an initial rate in whole or in part, disapproves a request for a rate increase in whole or in part, or approves a request for an increase in whole or in part over the objections of interested parties. The Town is not required to issue a written decision that approves an unopposed existing or proposed rate. Refunds to subscribers. The Town may order a franchisee to refund to subscribers that portion of previously paid rates determined to be in excess of the prescribed reasonable rate as provided tbr under the Cable Act of 1992. In the event the Town orders refunds to subscribers, the refunds shall include interest computed at applicable rates published by the Internal Revenue Service for its tax refunds and additional tax payments. Notice and opportunity to comment will be provided AN ORDINANCE: -9- AMENDING CHAPTER 5.1, ARTICLE I, ARTICLE XII AND ARTICLE XIV, OF THE LEESBURG TOWN CODE REGARDING CABLE TELEVISION RATE REGULATION pursuant to FCC regulations. Fines. The Town reserves the right to impose fines or other appropriate sanctions on a franchisee that does not comply with any lawful order of the town issued pursuant to these regulations. (h) Further Regulations. Nothing herein shall be construed to limit thc right of thc Town of Leesburg to modify, amend, or add to these regulations in order to comply with applicable law or to protect the interests of franchisees or subscribers. ~ Sec. $.1-63. Complaints. (a) Complaints by any subscriber may bc filed with thc franchisee in writing or delivered to thc franchiscc orally in person or by telephone. The Town will assist subscribers with filing complaints re~arding cable oroexammin~ service rates with the FCC. Co) Any complaints received from subscribers shall bc investigated by the franchisee and acted upon as soon as possible, ,,m~,;, ,~,~ ~,,,~;,,.co 4,,, ,,~ m,~ ,.oo,~;,,, but in no event later than the next business day. (c) The franchisee shall keep a maintenance service log that will indicate the nature of each complaint, the name of the employee of the franchisee receiving the complaint, the date and time it was received, the disposition of the complaint and time and date thereof. The log shall also indicate specific steps taken by the franchisee to remedy the complaint. The log shall be made available for inspection upon request by the town manager. (d) Notwithstanding the above, the franchisee shall advise the town manager in writing on a AN ORDINANCE: -10- AMENDING CHAPTER 5.1, ARTICLE I, ARTICLE XII AND ARTICLE XIV, OF THE LEESBURG TOWN CODE REGARDING CABLE TELEVISION RATE REGULATION quarterly basis of all unresolved complaints. The nature and number of unresolved complaints shall be considered by the town council during any subsequent renegotiations for extension of any cable television system franchise. Sec. 51-64. Reserved. SECTION III. Chapter 5.1, Article XIV, of the Town Code is hereby amended as follows: ARTICLE XIV. ADMINISTRATION Sec. 5.1-69. Town manager-Generally. The day-to-day regulation, enforcement and administration of any franchise granted under this chapter shall be the responsibility of the town manager. Sec. 5.1-70. Same-Functions. The town manager's authority and responsibilities with respect to a franchise granted pursuant to this chapter shall include the following: (a) To assist in the preparation of the invitation to bid for cable television system franchises, establish criteria for review and ranking of franchise application, review and screen applications for franchises and make selection recommendations to the council. Co) To monitor and enforce all aspects of the franchisee's performance in meeting all terms, provisions, requirements and construction schedules established in this chapter. (c) To advise and make recommendations to the council on matters which may constitute grounds for revocation of a franchise in accordance with this chapter. (d) To monitor and investigate where appropriate complaints against the franchisee by any person. (e) To conduct investigations and reviews of cable television rates, to consider input from the AN ORDINANCE: -11- AMENDING CHAPTER 5.1, ARTICLE I, ARTICLE XII AND ARTICLE XIV, OF THE LEESBURG TOWN CODE REGARDING CABLE TELEVISION RATE REGULATION Cable Television Advisory Commission and to hire consultants if needed in order to make recommendations to the Town Council regarding rate determinations. SECTION IV. If any section, subsection, sentence, clause or provision of this ordinance is held invalid, the remainder of this ordinance shall not be affected by such invalidity. SECTION V. This ordinance shall take effect upon its passage. PASSED this 26th day of Apr~_l ,1994. ATTEST: Clerk of C~un~il o:cablea.mend James E. Clem, Mayor Town of Leesburg