15.95.020 Definitions.
For the purposes of this chapter only, the following terms, phrases, words, and abbreviations shall have the meanings given herein. When not inconsistent with the context, words used in the present tense include the future tense; words in the plural number include the singular number; and words in the singular number include the plural number; and the masculine gender includes the feminine gender. The words “shall” and “will” are mandatory, and “may” is permissive. Words not defined in this chapter shall have the same meaning as in PMC 15.10.020, and if not defined therein, the same meaning as in Title VI of the Communications Act of 1934, as amended, 47 USC §§ 521 et seq., and, if not defined therein, their common and ordinary meaning. References to governmental entities (whether persons or entities) refer to those entities or their successors in authority. If specific provisions of law referred to herein are renumbered, then the reference shall be read to refer to the renumbered provision. References to laws, ordinances or regulations shall be interpreted broadly to cover government actions, however nominated, and include laws, ordinances and regulations now in force or hereinafter enacted or amended.
“Access,” “PEG access,” or “PEG use” refers to the availability of a cable system or open video system for public, education or government use (including institutional network use) by various agencies, institutions, organizations, groups, and individuals, including the City of Pasco and its designated access providers, to acquire, create, and distribute programming not under a franchisee’s editorial control, including, but not limited to:
(a) “Public access” or “public use” means access where organizations, groups, or individual members of the general public, on a nondiscriminatory basis, are the primary or designated programmers or users having editorial control over their communications.
(b) “Educational access” or “educational use” means access where educational institutions are the primary or designated programmers or users having editorial control over their communications.
(c) “Government access” or “government use” means access where government institutions or their designees are the primary or designated programmers or users having editorial control over their communications.
(d) “PEG” means public, educational, and government access collectively.
“Basic service” means any service tier regularly provided to all subscribers which includes the public, educational, and government access channels and the retransmission of local television broadcast signals.
“Cable Act” means Title VI of the Communications Act of 1934, 47 USC §§ 521 et seq., as amended by the Cable Television Consumer Protection and Competition Act of 1992, as further amended by the Telecommunications Act of 1996 and as further amended from time to time.
“Cable communications system” refers to open video systems (OVS) and cable systems.
“Cable franchise” means a franchise for providing cable service.
“Channel” means a time or frequency slot or technical equivalent on the cable system, discretely identified and capable of carrying full motion color video and audio, and may include other nonvideo subcarriers and digital information.
“City Manager” means the City Manager or the City Manager’s designee.
“Construction, operation or repair” and similar formulations of that term mean the named actions interpreted broadly, encompassing, among other things, installation, extension, maintenance, replacement of components, relocation, undergrounding, grading, site preparation, adjusting, testing, make-ready, and excavation.
“Downstream channel” means a channel designed and activated to carry a transmission from the headend to other points on a cable communications system, including interconnections.
“Franchise” refers to an authorization granted by the City to the operator of a cable communications system giving the operator the nonexclusive right to occupy the space, or use facilities upon, across, beneath, or over public rights-of-way in the City, to provide cable service within a franchise area.
“Franchisee” or “grantee” refers to a person holding a cable communications system franchise granted by the City.
Franchise Fee.
(a) In consideration of the grant and exercise of a franchise to construct, install, operate, or provide services using facilities in the public rights-of-way, a franchisee shall pay to the City a franchise fee expressed as a percentage of gross revenues. The franchise shall specify the fee to be paid, and the gross revenues to be included in the fee calculation. If a franchise granted pursuant to this chapter specifies a franchise fee established as the result of limiting applicable law, the City shall have the option to renegotiate the amount of the franchise fee upon a change in applicable law. Nothing herein requires a person to pay amounts in excess of any limits that may be established by state or federal law.
(b) UVPP Fees. A UVPP (unaffiliated video program provider) that provides services using a cable communications system for which charges are assessed to subscribers, but are not received by the franchisee, shall pay a fee in lieu of a franchise fee on such service pursuant to the franchise fee calculation contained in the franchisee’s franchise.
“Gross revenues” means all cash, credits, property, or other consideration of any kind or nature received directly or indirectly by a franchisee or its affiliates, from any source whatsoever arising from, attributable to, or in any way derived from a franchisee’s operation of a cable communications system to provide cable service within the franchise area. Gross revenues include, but are not limited to, fees charged to subscribers for basic service; fees charged to subscribers for any optional, premium, per-channel, or per-program service; monthly fees charged to subscribers for any tier of service other than basic service; installation, disconnection, reconnection, and change-in-service fees; leased channel fees; fees, payments, or other payment received as consideration from programmers for carriage of programming on the cable communications system; converter rentals or sales; studio rental, production equipment, and personnel fees; advertising revenues, including a per capita share of advertising revenues for advertising carried on more than one cable communications system; revenues from home shopping channels; sales of programming guides; late fees; and such other revenue sources as may now exist or hereafter develop. The definition shall be interpreted in a manner that permits the City to collect the maximum franchise fee permitted by law, irrespective of the source of revenue. Gross revenues, however, shall not include any bad debt (defined as unpaid subscriber or advertiser accounts), any taxes on services furnished by a franchisee or UVPP and imposed directly upon any subscriber or user (as opposed to the franchisee or UVPP) by the state, City, or other governmental unit and collected by a franchisee or UVPP on behalf of said governmental unit. The franchise fee is not such a tax, and the amount paid as a franchise fee shall not be deducted from gross revenues.
“Operator,” when used with reference to a system, refers to a person (a) who, directly or through one or more affiliates, provides service over a cable communications system and directly or through one or more affiliates owns a significant interest in such facility; or (b) who otherwise controls or is responsible for, through any arrangement, the management and operation of such a system.
“Public rights-of-way” means “right-of-way” or “public way” as defined in this title.
“Public property” means “City property” as defined in PMC 15.10.020.
“Revocation” means the City’s affirmative act of terminating a franchise.
“School” means any public accredited primary school, secondary school, college, and university.
“Subscriber” means the City or any person who is lawfully receiving, for any purpose or reason, any cable service via a cable communications system with franchisee’s express permission, whether or not a fee is paid for such service.
“Termination” means the conclusion of a franchise by any means, including, but not limited to, by expiration of its term, abandonment, or revocation.
“Transfer” means any transaction in which:
(a) All or a portion of the communications system is sold or assigned (except a sale or assignment that results in removal of a particular portion of the facility from the public rights-of-way);
(b) There is any change, acquisition, or direct or indirect transfer of control of the franchisee or right-of-way use permit holder; or
(c) The rights and/or obligations held by the franchisee or right-of-way use permit holder under the franchise or right-of-way use permit are transferred, sold, assigned, or leased, in whole or in part, directly or indirectly, to another party. It will be presumed that any transfer or cumulative transfer of voting interest of 10 percent or more is transfer of control within the meaning of subsection (b) of this definition.
“Upstream channel” means a channel designed and activated to carry transmissions from a point on the cable communications system, other than the headend, to the headend or another point on the cable communications system.
“User” means a person or the City utilizing a channel, capacity or equipment and facilities for purposes of producing or transmitting material, as contrasted with the receipt thereof in the capacity of a subscriber. [Ord. 4298 § 4, 2016; Code 1970 § 15.95.020.]