§ 15-2 — Definitions

§ 15-2 - Definitions.

For the purpose of this article, the following terms, phrases, words and their derivations shall have the meanings given herein. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number, and words in the singular number include the plural number. The words "shall" and "will" are mandatory, and "may" is permissive. Words not otherwise defined herein or in any franchise agreement that might be granted hereunder shall be given the meaning set forth in the Communications Act of 1934, 47 U.S.C. §§ 521 et seq., and the Telecommunications Act of 1996, and as those acts may hereinafter be amended (collectively the "Communications Act"), and, if not defined therein, their common and ordinary meaning. ACTIVATED CHANNEL. Those channels engineered at the headend of a cable system for the provision of services generally available to residential subscribers of the cable system, regardless of whether the services actually are provided, including any channel designated for educational or governmental use. Channels on which signals flow in the direction from the headend to the subscriber are referred to as "downstream channels". Where the signal flows to the headend for re-distribution, it shall be referred to as an "upstream channel". ACCESS CHANNEL. Any channel on a cable system set aside without charge by the franchisee for non-commercial educational and/or local governmental use. AFFILIATE. Any person which directly or indirectly owns or controls a grantee or franchisee, any person which a grantee or franchisee directly or indirectly owns or which it controls, or any person under common ownership or control with a grantee or franchisee. ANALOG CHANNEL. Bandwidth in the electromagnetic spectrum capable of carrying one standard television signal that is delivered in an analog format. APPLICANT. Any person submitting an application within the meaning of this article. APPLICATION. Any proposal, submission or request to: (1) Construct and operate a cable system within the city; (2) Transfer a franchise or control of the franchisee; (3) Renew a franchise; (4) Modify a franchise; or (5) Seek any other relief from the city pursuant to this article, a franchise agreement, the Communications Act or other applicable law. An application includes an applicant's initial proposal, submission or request, as well as any and all subsequent amendments or supplements to the proposal and relevant correspondence. BASIC CABLE SERVICE or BASIC SERVICE. Any service tier which includes the retransmission of local television broadcast signals, and educational or governmental access channels. COMMUNICATIONS ACT. The Communications Act of 1934, 47 U.S.C. §§ 151 et seq., as that Act has been and may hereinafter be amended. CABLE SERVICE. The transmission of video or other programming services over a cable system to subscribers together with any subscriber interaction, if any, which is required for the selection or use of the video programming or other programming services. Unless otherwise preempted by applicable law, cable internet services, including, but not limited to Home, Roadrunner or other services, provided by a franchisee, its parent, affiliate or subsidiary over the cable system shall be deemed cable services as permitted under Title VI of the Communications Act of 1934, as amended. CABLE SYSTEM or SYSTEM. Any facility consisting of a set of closed transmission paths or other transmission lines or forms of terrestrial transmission 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 the city. This 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) A facility of a common carrier that 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 the facility will be considered a cable system to the extent it is used in the transmission of video programming directly to subscribers, unless the extent of the use is solely to provide interactive on demand services; (4) An open video system that complies with § 653 of the Telecommunications Act of 1996; or (5) Any facilities of any electric utility used solely for operating its electric utility systems. The foregoing definition of CABLE SYSTEM shall not be deemed to circumscribe the valid authority of the city to regulate the activities of any other communications system or provider of communications services, including but not limited to telephony and open video systems. CITY. The City of Cape Coral, a municipal corporation of the State of Florida, in its present incorporated form or in any later reorganized, consolidated, enlarged or reincorporated form. CONTROL OF A FRANCHISEE OR APPLICANT. Possession of the ability to direct or cause the direction of the management or policies of a franchisee, grantee or applicant, or the operation of a franchisee's system, either directly or indirectly, whether through ownership of voting securities, by contract or in any other manner. FAIR MARKET VALUE. The price that a willing buyer would pay to a willing seller for a going concern but with no value allocated to the franchise itself. FCC. The Federal Communications Commission, or any successor governmental entity thereto. FRANCHISE. (1) The right granted by the city to a franchisee in a franchise agreement to construct, maintain and operate a cable system under, on and over streets, roads and any other public ways, rights-of-way or easements within the city. (2) The term does not include any license or permit that may be required by this article or other laws, ordinances or regulations of the city for the privilege of transacting and carrying on a business within the city or for disturbing or carrying out any work on any street. FRANCHISE AGREEMENT. A contract entered into in accordance with the provisions of this article between the city and a franchisee that sets forth the terms and conditions under which the franchise will be exercised. FRANCHISE AREA. That territory within the corporate limits of the city, as those limits may change from time to time through annexation or contraction, over which the terms of a franchise agreement shall extend. FRANCHISEE. Any person granted a franchise pursuant to this article who has entered into a franchise agreement with the city. GROSS REVENUES. All revenues derived by the franchisee and, any affiliates, subsidiaries or parent of the franchisee from the operation of the cable system to provide cable services in the city. Gross revenues include, but are not limited to, fees charged subscribers for basic service; fees charged subscribers for any optional, premium, per-channel or per-program service; fees charged subscribers for any tier of service other than basic service; installation, disconnection, reconnection and change in-service fees; late fees in excess of $5, (plus any amount of any increase no greater than any increase in the annual CPI); leased access fees, payments or other consideration from programmers for carriage of programming on the system (excluding marketing support to the extent the funds are not considered revenue under GAAP); revenue from converter, remote, modem or any other equipment rentals; revenues from leases of cable or fiber optic lines and other transmission devices and equipment; cable modem and internet services to the extent included under the definition of "cable service" above; advertising revenues allocable to the city based on a percentage of subscriber base in the city divided by the subscriber base of the system. The percentage shall then be multiplied by the total advertising revenue of the system to determine the allocable gross revenue stemming from advertising; revenues from home shopping channels or other sources allocable to the city, provided that where certain home shopping channel or other such revenue is allocable to more than one franchise area due to common zip codes, the franchisee shall allocate the percentage of revenue to the city which is equivalent to the percentage of the population of the city divided by the total population for the allocable franchise areas in question. Gross revenues shall be the basis for computing the franchise fee imposed pursuant to § 15-16 below. Gross revenues shall not include revenues directly generated by affiliated programmers for the provision of programming; any taxes on services furnished by the franchisee which are imposed upon any subscriber or user by the state, county, city or other governmental unit and collected by the franchisee on behalf of the governmental unit and which the franchisee passes on in full to the applicable tax authority. In addition, gross revenues shall not include the first $5 (plus any amount of any increase no greater than any increase in the annual CPI), of late fee payments; return check charges, and in returned equipment charges. However, it is hereby expressly provided that franchise fees shall be included in the calculation of gross revenues. Further, franchise fees shall not be paid on subscriber deposits unless and until those deposits are applied to a customer account for services rendered. Revenue of an affiliate, subsidiary or parent shall be gross revenues under this definition only to the extent the revenue is derived from the operation of the cable system to provide cable service by the affiliate, subsidiary or parent acting in the capacity of a cable operator and not in another capacity such as programmer. INSTITUTIONAL NETWORK. A dedicated closed network, or an alternative acceptable to the city, for use by the city to provide cable services and non-cable services for educational and governmental use within the city. The network shall be capable of providing one way, two way, interactive and machine-to-machine transfer of audio, video, voice and data signals within the network as designated by the city. INTERCONNECTION. The electronic connection of two or more franchised cable systems for the purpose of sharing programming. INTERNET. Collectively, the myriad of computer and telecommunications facilities, including equipment and operating software, which comprise the interconnected worldwide network of networks that employ the Transmission Control Protocol/Internet Protocol, or any predecessor or successor protocols to the protocols to communicate information of all kinds by wire or radio. INTERNET SERVICE PROVIDER. A person who provides a service that enables users to access content, information, electronic mail or other services offered over the internet. LAW. All duly enacted and applicable federal, state, county and city laws, ordinances, codes, rules, regulations and orders. LEASED ACCESS CHANNEL. A channel designated in accordance with § 612 of the Communications Act, 47 U.S.C. § 532, for commercial use by persons unaffiliated with the franchisee. OVERBUILD. That portion of a cable system constructed to serve subscribers already served by an existing cable system. PERSON. Any individual, corporation, partnership, association, joint venture, organization or legal entity of any kind, and any lawful trustee, successor, assignee, transferee or personal representative thereof, but shall not mean "the city". SERVICE TIER. A category of multi-channel cable service provided by a franchisee and for which a separate charge is made by the franchisee. STATE OF THE ART. That level of cable system technical performance, capacity, equipment, components and service (without reference to the content of service) equal to that which has been developed and demonstrated to be generally acceptable and used by the franchisee, its parents, affiliates or subsidiaries in systems of comparable size based upon number of subscribers, excluding tests, and which is technically and commercially feasible in the franchisee's system. STREET or STREETS. The surface, the air space above the surface and the area below the surface of any public street, highway, road, boulevard, concourse, driveway, freeway, thoroughfare, parkway, sidewalk, bridge, tunnel, park, waterway, dock, bulkhead, wharf, pier, court, lane, path, alley, way, drive, circle, easement or any other public right-of-way or public place, including public utility easements dedicated for compatible uses, or any other property in which the city holds any kind of property interest or over which the city exercises any type of lawful control, and any temporary or permanent fixtures or improvements located thereon, as may be ordinarily necessary and pertinent to construct and operate a cable system. The term includes any right-of-way granted to the public or to any governmental body by way of conveyance, dedication, restriction or by easement and any area within an easement given for governmental purposes. SUBSCRIBER. Any person who lawfully receives cable service delivered over the cable system. SUBSCRIBER BASE. (1) The total number of residential and commercial subscribers within the city. (2) For purposes of calculating subscribers under bulk or multi-user contracts, the franchisee shall count each individual unit (e.g., in a multiple-family dwelling, a unit will be defined as each subscriber unit within the structure) included within a contract for service as one subscriber, or may use any reasonable equivalency measures provided it uses the measures uniformly for all franchise areas served by the system. SYSTEM MALFUNCTION. Any cable system equipment, facility or signal failure or malfunction that results in the loss of satisfactory service on one or more channels to one or more subscribers. A MALFUNCTION is major if it affects ten or more subscribers. TRANSFER OF A FRANCHISE. (1) Any transaction in which: a. Any ownership or control of a franchisee or its cable system is transferred from one person or group of persons to another person or group of persons so that control of a franchisee is transferred; or b. The rights and/or obligations held by a franchisee under a franchise agreement are transferred or assigned to another person, group of persons or business entity. (2) A TRANSFER shall be considered "pro forma" when it involves a transfer to a person, group of persons or business entity affiliated with the franchisee and will not result in a change in the control or ownership of the franchisee. TWO WAY CAPABILITY. The incorporation into a cable system of all appropriate design and engineering characteristics and features so that two-way transmission, including but not limited to addressability, over the system can be implemented and activated. VIDEO CHANNEL or CHANNEL. A portion of the electromagnetic frequency spectrum which is used in a cable system and which is capable of delivering a television channel, including the associated audio signal.

(Ord. 90-00, § 3, 9-11-2000)