Sec. 6-4. - Franchise fees received; office of cable and communications' use.
This chapter shall be known and may be cited as the Wilmington Cable Video and Telecommunications Regulatory Ordinance.
(Ord. No. 07-001(sub 1), § 1(Exh. A), 4-19-07)
The following words, terms and phrases, when used in this chapter, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:
Access channel means any channel on a cable system designated by a franchisee for educational or governmental use.
Basic service means that cable service tier which includes the retransmission of all local television broadcast signals of domestic television broadcast stations provided to any subscriber (except a signal secondarily transmitted by satellite carrier beyond the local service area of such station, regardless of how such signal is ultimately received by the cable system); any educational and governmental programming required by the franchise to be carried on the basic tier; and any additional video programming signals added to the basic tier by the cable operator.
Cable 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 a substantial portion of such cable system, or (B) who otherwise controls or is responsible for, through any arrangement, the management and operation of such a cable system.
Cable service means (a) The one-way transmission to subscribers of video programming or 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 television system or cable system shall mean 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:
(1)
A facility that serves only to retransmit the television signals of one or more television broadcast stations;
(2)
A facility that serves subscribers without using any public right-of-way;
(3)
Facility of a common carrier which is subject, in whole or in part, to the provisions of Title II of the Communications Act, except that such facility shall be considered a cable system if such facility is used in the transmission of video programming directly to subscribers;
(4)
An open video system that complies with 47 U.S.C. § 573; or
(5)
Any facilities of any electric utility used solely for operating its electric utility system.
CCPA means the Cable Communications Policy Act of 1984, as amended.
Channel means a six megahertz (MHz) frequency band, which is capable of carrying either one standard video signal, a number of audio, digital or other nonvideo signals or some combination of such signals.
Converter means an electronic device, which converts signals to a frequency not susceptible to interference within the television receiver of a subscriber, and any channel selector, which permits a subscriber to view all signals delivered at designated converter dial locations at the set or by remote control.
Drop means a connection from the system splice point in the public right-of-way closest to the subscriber's location to the subscriber/user television set, radio or other terminal.
FCC means the Federal Communications Commission and any legally appointed or elected successor.
Franchise means the nonexclusive rights authorized by this chapter and granted through a franchise agreement approved by resolution of council to construct and operate a cable system along the public ways within all or a specified area in the city. Any such authorization shall not mean or include any license or permit required for the privilege of transacting and carrying on a business within the city as may be required by other ordinances and laws of the city.
Franchise agreement means a franchise contract entered into voluntarily by a franchisee, containing the specific provisions of the franchise granted, including referenced specifications, franchise proposals, applications and other related material.
Franchise area means that portion of the city for which a franchise is granted under the authority of this chapter and a duly approved franchise agreement. If not otherwise stated in the franchise agreement, the franchise area shall be the corporate limits of the city, including all territory thereafter annexed to the city.
Franchise fee means the percentage, as specified by the city, of the franchisee's gross revenues from all sources payable in exchange for the rights authorized pursuant to this chapter and granted by the franchise agreement.
Franchisee means the natural person, partnership, domestic and foreign corporation, association, joint venture, or organization of any kind which has been legally granted a cable communications franchise by the city, and its lawful successor, transferee or assignee.
Installation means the connection of the system services to subscribers' television receivers or other subscriber-owned or -provided terminal equipment.
Institutional network or institutional service means video, audio, data and other services provided to institutional users on an individual application basis.
"EG" channel means any channel designated or dedicated for government use or educational use.
Public property means any real property owned in whole or in part by the city other than a highway, sidewalk, easement or dedication.
Public rights-of-way means the surface and space above, on, and below any public highway, avenue, street, lane, alley, boulevard, concourse, driveway, bridge, tunnel, park, parkway, waterway, dock, bulkhead, wharf, pier, public easement, right-of-way or any other public ground or water within or in which the city now or hereafter holds any property interest which, consistent with the purposes for which it was dedicated or otherwise acquired, may be used for the purpose of constructing, operating, and maintaining a communications facility.
Resident means any person residing in the city as otherwise defined by applicable law.
Residential subscriber means a subscriber who receives a cable communication system service in an individual dwelling unit where the service is not to be utilized in connection with a business, trade or profession.
Service interruption means loss of picture or sound on one or more channels, or degradation of picture or sound beyond permissible levels as defined by applicable law.
Subscriber means the city or any person who is lawfully receiving, for any purpose or reason, any cable service via a cable system, whether or not a fee is paid for such service.
Transfer means any transaction in which: (A) any ownership or other right, title, or interest of more than five percent in a franchisee or its cable system is transferred, sold, assigned, leased, sublet, or mortgaged, directly or indirectly, in whole or in part; or (B) there is any change in control of the franchisee; or (C) the rights and/or obligations held by the franchisee under the franchise are transferred, directly or indirectly, to another party; or (D) any change or substitution occurs in the managing general partners of the franchisee, where applicable; or (E) the franchisee, or its corporate parents at any level, enter into any transaction that materially increases the debt that is to be borne by the cable system directly or indirectly, in a manner that may adversely affect system rates or services; or (F) any assets or property of the franchisee used or held in connection with a cable system are subjected to any lien, mortgage, lease or security interest.
"Control" for purposes of this section means the legal or practical ability to exert actual working control over the affairs of an entity, either directly or indirectly, whether by contractual agreement, majority ownership interest, any lesser ownership interest, or in any other manner.
A rebuttable presumption that a transfer of control has occurred shall arise upon the acquisition or accumulation of five percent or more of the ownership of a entity by any person or group of persons acting in concert, none of whom already own or control 50 percent or more of such right or control, singularly or collectively.
A franchisee is responsible for ensuring that the intent of section 6-44 herein is carried out. If for any reason an event occurs that would require the city's approval under section 6-44, whether or not such event is directly or indirectly within the franchisee's control, such event shall constitute a "transfer" for purposes of this chapter and any applicable law.
Upstream signal means a signal traveling from subscriber to the headend.
(Ord. No. 07-001(sub 1), § 1(Exh. A), 4-19-07)
Cross reference— Definitions and rules of construction generally, § 1-2.
(a)
The city finds that the development of cable television and communications systems has the potential of having great benefit to and impact upon the people of the city. Because of the complex and rapidly changing technology associated with cable television, the city further finds that the public convenience, safety and general welfare can best be served by establishing regulatory powers, which should be vested in the city or such persons as the city shall designate. It is the intent of this chapter and any subsequent amendments to provide for and specify the means to attain the best possible public interest and public purpose in these matters and any franchise issued pursuant to this chapter shall be deemed to include this finding as an integral part thereof.
(b)
It is recognized that cable systems have the capacity to provide not only entertainment and information services to the city's residents, but can provide a variety of broadband, interactive communications services to institutions and individuals. Many of these services may involve city agencies and other public institutions.
(c)
For these purposes, the following goals underlie the regulations contained in this chapter:
(1)
Communications services should be provided to the maximum number of city residents.
(2)
The initially constructed system, or the reconstruction of an existing system, should be capable of accommodating both the present and reasonably foreseeable future communications needs of the city.
(3)
The system should be improved and upgraded during the franchise term so that the new facilities necessary for the operation of this system shall be integrated to the maximum extent possible with existing facilities.
(Ord. No. 07-001(sub 1), § 1(Exh. A), 4-19-07)
Sec. 6-4. - Franchise fees received; office of cable and communications' use.
In each fiscal year, any and all franchise fees received by the city pursuant to this chapter and pursuant to any cable television franchise agreement under which a cable operator provides cable television services within the city shall be allocated for the use of the office of cable and communications of the city, exclusively for its operational and capital equipment needs.
The budgeted amount for the cable television division of the city council's budget for each ensuing fiscal year shall be equal to the revenue projections for the cable television franchise fees for that ensuing fiscal year. Such amounts shall be adjusted as may be necessary, as part of the annual reconciliation of accounts ordinance, enacted by the council after the close of each fiscal year, in accordance with section 2-358 of the City Code.
(Ord. No. 07-001(sub 1), § 1(Exh. A), 4-19-07)