§ 12-1Short title.
§ 12-2Legal authority.
§ 12-4Franchising authority.
§ 12-5Adoption of regulations.
§ 12-6Presumption of no effective competition.
§ 12-7Appointment and powers of Compliance Officer.
§ 12-8Duties of Compliance Officer.
§ 12-9Duties of cable operators.
§ 12-10Review of basic service rates and associated equipment.
§ 12-12Violations and penalties.
This chapter shall be known and may be cited as the "Middletown Borough Cable Rate Regulation Ordinance."
This chapter is enacted pursuant to the federal Cable Television Consumer Protection and Competition Act of 1992 and the federal Telecommunications Act of 1996, both of which amended the federal Communications Act of 1934. Section 623 of the Communications Act, 47 U.S.C. § 543, states that "any franchising authority may regulate the rates for the provisions of cable services ... but only to the extent provided under this section." This chapter is also enacted pursuant to the rate regulations adopted by the FCC contained in Subpart N entitled "Cable Rate Regulation," 47 U.S.C. § 76.900 et seq.
The following terms used in this chapter shall have the following meanings:
- ASSOCIATED EQUIPMENT
- All equipment in a subscriber's home, provided and maintained by the operator, that is used to receive the basic service tier, regardless of whether such equipment is additionally used to receive other tiers of regulated programming service and/or unregulated service. Such equipment shall include, but is not limited to converter boxes, remote control units and inside wiring.
- BASIC SERVICE
- At a minimum, all signals of domestic television broadcast stations provided to any subscriber (except a signal secondarily transmitted by satellite regardless of how such signal is ultimately received by the cable system), any public, educational, and governmental programming required by the franchise to be carried on the basic tier, and any additional video programming signals or service added to the basic tier by the cable operator.
- BOROUGH COUNCIL
- The governing body of Middletown Borough.
- CABLE OPERATOR or OPERATOR
- Any person or group of persons that provides cable service over a cable system and directly or through one or more affiliates owns a significant interest in such cable system, or who otherwise controls or is responsible for, through any arrangement, the management and operation of such a cable system.
- CABLE SERVICE
- The one-way transmission to subscribers of video programming or other programming service and subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service.
- CABLE SYSTEM
- 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:
A facility that serves only to retransmit the television signals of one or more television broadcast stations;
A facility that serves subscribers without using any public right-of-way;
A 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 (other than for purposes of Section 621(c) of the Communications Act) to the extent such facility is used in the transmission of video programming directly to subscribers unless the extent of that use is solely to provide interactive on-demand services;
An open video system that complies with Section 653 of the Communications Act; or
Any facilities of any electric utility used solely for operating its electric utility systems.
- The Federal Communications Commission.
- FRANCHISING AUTHORITY
- A governmental or public entity that has filed a Form 328 with the FCC and is certified by the FCC to regulate basic service and associated equipment rates, oversee the operations of a cable operator and its compliance with a franchise agreement.
- An individual, partnership, association, joint-stock company, trust, corporation or governmental entity.
- Any person or entity who contracts with a cable operator for, and lawfully receives, the video signals and applicable cable services distributed by the cable system.
The Borough has submitted a completed FCC Form 328 with the FCC and is certified by the FCC as a franchising authority to regulate basic service and associated equipment rates in accordance with the applicable regulations of the FCC.
In addition to the regulations contained in this chapter, the rate regulations of the FCC contained in Subpart N entitled "Cable Rate Regulation," 47 C.F.R. § 76.900 et seq., as may be amended, are hereby adopted for the review and determination of reasonable and lawful rates for basic service and associated equipment.
Only the rates of cable systems that are not subject to effective competition may be regulated. In the absence of a demonstration by a cable operator to the contrary, a cable system is presumed not to be subject to effective competition.
The Compliance Officer shall be responsible for:
Taking such actions on behalf of the Borough as may from time to time be required to obtain or maintain the Borough's certification to regulate basic service and associated equipment rates.
Notifying all cable operators serving the Borough when the Borough has become certified by the FCC to regulate basic service and associated equipment rates and has adopted this chapter.
Receiving, filing in the public records of the Borough, reviewing for completeness, and if appropriate, placing on the Borough Council agenda for consideration, rate regulatory forms and other filings by cable operators required to be submitted pursuant to applicable federal law and regulations.
Enforcing the provisions of this chapter and all decisions of the Borough Council made hereunder to the fullest extent permitted by federal law and regulations, subject to the oversight and control of the Borough Council.
Taking such other actions as may be necessary from time to time, subject to the oversight and control of the Borough Council, to protect the rights of the Borough to regulate basic service and associated equipment rates to the fullest extent permitted by federal law and regulations.
A cable operator shall file its schedule of rates for the basic service tier and associated equipment within 30 days of receiving written notification from the Borough that is has been certified as a franchising authority to regulate rates. The cable operator shall include rate cards and channel line-ups with its filing and include an explanation of any discrepancy in the figures provided in these documents and its rate filing.
A cable operator shall provide written notice to each subscriber of any increase in the rates to be charged for the basic service tier or associated equipment at least 30 days before any increase becomes effective.
A cable operator shall submit to the Borough the rate regulatory forms required by the FCC, including, but not limited to, FCC Form 1240 and FCC Form 1205, on a periodic basis and in a timely fashion as required by applicable federal law and regulations. The deadlines for submission of such forms are dependent upon the cable operator's election to employ the annual rate adjustment method or the quarterly rate adjustment method. Should applicable federal law and/or regulations be amended to alter the rate adjustment methods, then the cable operator shall comply with such amendments.
A cable operator shall comply with all requests for information, orders and decisions of the Borough. No cable operator shall, in any information submitted to the Borough in making a rate determination pursuant to an FCC rate regulatory form filing, make any misrepresentation or willful material omission bearing on any matter within the Borough's jurisdiction.
Upon receipt of FCC rate regulatory forms, including, but not limited to, FCC Form 1240 and FCC Form 1205, from a cable operator proposing any change in basic service and/or associated equipment rates, the Compliance Officer shall review the forms to determine whether the filing is complete. If the filing is incomplete, the Compliance Officer shall notify the cable operator within the applicable time period required by federal law and regulations and ask the cable operator to submit such additional information as is necessary to make the filing complete. The time period for review by the Borough shall be extended for the cable operator to complete the filing in accordance with applicable federal law and regulations.
Upon receipt of completed FCC rate regulatory forms from a cable operator, the Compliance Officer shall make an initial determination as to whether the proposed rate adjustments are reasonable and lawful pursuant to applicable federal law and regulations. The Compliance Officer may engage the services of an expert in cable rate regulation to assist in making such initial determination.
Should the Compliance Officer make an initial determination that the cable operator's proposed rates are unreasonable and unlawful, the Compliance Officer shall place the issue on the Borough Council's agenda for public consideration in the form of a rate-making proceeding. The Borough Council shall provide a reasonable opportunity for public comment and for consideration of the views of interested parties.
Upon conclusion of the rate-making proceeding, the Borough Council shall render a decision on whether the cable operator's proposed rates are reasonable and lawful. The Borough Council shall issue a written decision if it disapproves an initial rate for basic service and/or associated equipment in whole or in part, disapproves a request for a rate increase in whole or in part, or approves a request for a rate increase in whole or in part over the objections of interested parties. Public notice shall be given regarding any written decision, including releasing the text of the written decision to the public.
As part of the rate-making proceeding, the Borough may require the production of proprietary information to make a rate determination. The Borough shall state a justification for each item of information requested and, where related to an FCC form, indicate the question or section of the form to which the request specifically relates. Upon request by a cable operator, the parties to a rate proceeding shall have access to such information subject to the Borough's procedures governing nondisclosure by the parties. Public access to such proprietary information shall be governed by applicable state and local law.
In rendering its decisions, the Borough Council shall have the full authority to order a cable operator to take any and all enforcement actions permitted by applicable federal law and regulations, including, but not limited to, the following:
Ordering a cable operator to implement a reduction in basic service or associated equipment rates where necessary to bring rates into compliance with the standards set forth in applicable federal law and regulations.
Prescribing a reasonable rate for basic service or associated equipment after it determines that a proposed rate is unreasonable and unlawful.
Ordering a cable operator to refund to subscribers that portion of previously paid rates determined to be in excess of the permitted tier charge or above the actual cost of equipment, unless the operator has submitted a cost-of-service showing which justifies the rate charged as reasonable. Any such refund order shall be further subject to the limitations contained in applicable federal law and regulations.
In the event that a cable operator does not comply with an order or decision made pursuant to this chapter and directed specifically toward the cable operator, the Borough may assess a fine against the cable operator of not more than $500 per violation. Each day of continuous violation of any of the provisions of this chapter shall constitute a separate violation.