Town of Kittery, ME
York County
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Table of Contents
Table of Contents
[HISTORY: Adopted 7-25-2011 by Ord. No. 11-10. Amendments noted where applicable.]
The municipal officers may contract on such terms and conditions as are in the best interests of the municipality, including the grant of an exclusive franchise for a period not to exceed 10 years, for the placing and maintenance of community cable television systems and appurtenances or parts thereof along the public ways, and including contracts with operators of such systems which receive the services of television signal transmission offered by any public utilities using public ways for such transmission.
A. 
The purpose of this title is to implement the authority conferred on cable television franchising authorities to regulate basic service rates and charges.
B. 
This title is enacted pursuant to the Cable Television and Consumer Protection and Competition Act of 1992, as amended; pursuant to regulations adopted by the Federal Communications Commission ("FCC"), including but not limited to the FCC Rate Regulations as defined herein; and pursuant to 30-A M.R.S. § 3001, as amended.
For the purposes of this title or the franchisee agreement, the following terms, phrases, words, abbreviations and their derivations have the meanings given herein, as set forth in this appendix, attached hereto as part of this title. When not inconsistent with the context, words used in the present tense include the future; and words in the plural number include the singular number, and vice versa. The word "shall" is always mandatory and not merely directory.
ACCESS CHANNEL(S)
A video channel(s) which the franchisee makes available to the Town, without charge, for the purpose of transmitting programming by/for members of the public, Town departments, boards and agencies, public schools, educational, institutional, nonprofit and similar organizations.
A. 
Public: noncommercial programming produced by the Town, or produced by any noncommercial operator authorized by the Town to provide public programming.
B. 
Educational: noncommercial programming produced by the Town's public schools, or produced by any other noncommercial educational organization authorized by the Town to provide educational programming.
C. 
Governmental: noncommercial programming produced by any Town departments, agencies, boards, or committees, or produced by any noncommercial governmental organization authorized by the Town to provide governmental programming.
D. 
The aforementioned items are abbreviated as "PEG" (public, educational, and governmental) access channel(s).
ALPHANUMERIC
Consisting of a combination of letters and numbers, used in reference to keyboards permitting communication in such form and in reference to channels or programs transmitting information in such form.
BASIC SERVICE RATES AND CHARGES
Basic service tier rates and the charges for related equipment, installation and services which, pursuant to federal laws and regulations, may be regulated by franchising authorities.
BASIC SERVICE TIER
That tier of cable television service which contains, at a minimum, all local broadcast signals and the public, educational and governmental channels required by the franchise agreement. Provided that the contents of this tier meet this definition, the cable operator may, in its sole discretion, determine what (if any) additional service will be provided as part of this tier. Additionally, basic service tier means a separately available or "unbundled" tier of cable service that must include:
A. 
All signals of local commercial and noncommercial educational television and qualified low-power stations carried to meet "must-carry" status under Sections 614 and 615 of the Cable Act and FCC rules;
B. 
Any PEG access programming required by the franchise to be provided to subscribers;
C. 
Any signal of any television broadcast station that is provided by the franchisee to any subscriber, except a signal which is secondarily transmitted by a satellite carrier beyond the local service area of such station; and
D. 
Any additional video programming signals or services added to the basic tier by the franchisee.
BENCHMARK APPROACH
That theory of rate regulation which sets rates based upon "benchmarks" established by the FCC.
CABLE ACT
The Cable Communications Policy and Communications Act of 1984, as amended by the Cable Consumer Protection and Competition Act of 1992 and the Telecommunications Act of 1996, and as further amended.
CABLE PROGRAMMING SERVICE
Any video programming provided over a cable system, regardless of service tier, including installation or rental of equipment used for the receipt of such video programming, other than:
A. 
Video programming carried on the basic service tier;
B. 
Video programming offered on a pay-per-channel or pay-per-program basis; or
C. 
A combination of multiple channels of pay-per-channel or pay-per-program video programming offered on a multiplexed or time-shifted basis so long as the combined service:
(1) 
Consists of commonly identified video programming; and
(2) 
Is not bundled with any regulated tier of service.
COST-OF-SERVICE APPROACH
That theory of rate regulation, to be initiated only by the cable operator, which allows the cable operator to charge rates in excess of the FCC benchmark rates upon a showing that the cost of providing cable service exceeds the benchmark rate.
FCC RATE REGULATIONS
Report and Order, In the Matter of Implementation of Sections of Cable Television Consumer Protection and Competition Act of 1992: Rate Regulation, MM Docket 92-266, FCC 93-177 (released May 3, 1993), as amended.
FRANCHISE and/or FRANCHISE AGREEMENT
The nonexclusive right, privilege and authorization granted in accordance with this title to construct, operate and maintain a cable system, and appurtenances or parts thereof, in the streets, roads, alleys, and other public ways of the Town.
A. 
Any such authorization, in whatever form granted, does not mean or include any license or permit required for the privilege of transacting and carrying on a business within the Town as required by the ordinances and laws of the Town, or for attaching devices to poles or other structures, whether owned by the Town or a private entity, or for excavating or performing other work in or along street or public ways.
B. 
A franchise agreement further defines the rights and responsibilities of each party in the operation of the cable system within the geographical area of the Town.
FRANCHISEE
Any person or persons owning, controlling, operating, managing or leasing a cable system within the Town, pursuant to this title, and pursuant to any franchise granted to it by the Town. This term includes any lawful successor(s) to the interest of such person or persons where consent to such successor(s) is approved under the provisions of this title and under any applicable terms of a franchise agreement entered into pursuant to this title.
FRANCHISEE FEE
A fee that may be imposed by the franchisor on the franchisee as compensation for the rights provided to the franchisee under a franchise, including the rights to use the streets and public ways of the franchisor to operate and maintain the franchisee's cable system.
FRANCHISING AUTHORITY
The Town of Kittery, acting through its municipal officers pursuant to its authority under federal, state and local laws and regulations to authorize and oversee the provision of cable television service in Kittery.
PEG
The acronym for public, educational, and governmental access channels; any channel(s) made available for the presentation of programming originated by the Town, or its authorized representative(s).
PROGRAM
Any audible, visual or facsimile signal, message, graphics, data or communication of any kind transmitted on the cable system, whether analog or digital.
PROGRAMMING and/or VIDEO PROGRAMMING
Programming provided by, or generally considered comparable to programming provided by, a television broadcast station.
PUBLIC BUILDINGS AND GROUNDS
All public schools, parks, police and fire stations, public libraries, recreation facilities, and any other buildings owned or leased by the Town.
SERVICE TIER
A category of cable service or other services provided by the franchisee and for which a separate rate is charged by the franchisee.
VIDEO PROGRAMMING
Programming provided by, or generally considered comparable to programming provided by, a television broadcast station, superstations, satellite-delivered cable networks and pay cable, whether the subscriber fee is on a per-channel or per-program basis.
WORKSHEETS
FCC-approved worksheets accompanying a rate filing to the franchise authority. Worksheets are used to calculate a franchisee base rate per channel. The base rate per channel must not exceed the adjusted benchmark channel rate.
A. 
Cable operator submission. Within 30 days of the date of a notice from the franchising authority to the cable operator, the cable operator must file its rate justification with the franchising authority.
B. 
Franchising authority response.
(1) 
The franchising authority must make a decision on the rate request within 30 days after the cable operator submits its rate justification. The rates proposed by the cable operator automatically take effect after that thirty-day period unless the franchising authority issues a statement that it needs additional time to make its decision.
(2) 
If the franchising authority decides that it needs longer than the initial thirty-day period to consider the rate request, it may issue a statement to that effect. Such statement may provide for up to 90 additional days to review a rate request based upon a benchmark approach and up to 150 days to review a rate request based upon a cost-of-service approach.
(3) 
If the franchising authority cannot reach a decision by the end of the extended period set forth in the preceding subsection, the rates proposed by the cable operator go into effect, subject to refund. If the franchising authority intends to seek refunds, it must issue an order to the cable operator prior to expiration of the time period for response, notifying the cable operator to keep accurate records with respect to rates.
C. 
Public hearing required. A public hearing is to be held in connection with every rate setting proceeding. At least 10 days prior to the hearing date, the Town Clerk must publish a notice of the hearing in a newspaper of general circulation in the Town. The notice must identify the name of the cable operator, indicate that a rate change has been requested, and identify the time and place of the public hearing.
D. 
Proprietary information. The franchising authority may require the cable operator to furnish proprietary information in connection with any rate setting proceeding.
E. 
Calculation of rates and refunds. In setting basic tier rates and charges, and in setting any refunds, the franchising authority is governed by the FCC Rate Regulations, as amended. The FCC Rate Regulations govern notwithstanding any different or inconsistent provisions in the franchise agreement.
F. 
Decision of franchising authority.
(1) 
The franchising authority must issue a written rate decision with appropriate findings and conclusions if the franchising authority:
(a) 
Disapproves, in whole or in part, the initial rate scheduled or a proposed rate increase; or
(b) 
Approves the initial rate or proposed rate increase over the objection of an interested party.
(2) 
Notice to the public must be posted in the Town Hall and local post offices of any such written decision, which must include release of the text of the written decision to the public. No written decision is required to approve an unopposed existing or proposed rate.
G. 
Appeals.
(1) 
The FCC has exclusive jurisdiction to hear appeals challenging whether the franchising authority's decision is consistent with the 1992 Cable Act or any applicable FCC rules. Any participant in a franchising authority's rate regulation proceeding may appeal the franchising authority's decision on such grounds to the FCC within 30 days of release of the public notice required under Subsection F of this section.
(2) 
Appeals on grounds other than those stated in the preceding subsection may be made to Superior Court in accordance with Rule 80B of the Maine Rules of Civil Procedure.
The Town Manager is authorized to execute on behalf of the Town and file with the FCC such certifications, forms or other instruments as are now or may hereafter be required by the FCC Rate Regulations in order to enable the Town to regulate basic service rates and charges.