[Ord. No. 2929 §1, 11-19-2007]
To the extent permitted by the 2007 Video Services Providers Act, the Board of Aldermen of the City of Fenton hereby ratifies all existing agreements, franchises and ordinances regulating cable television operators and other video service providers, including the imposition of a franchise fee of three percent (3%) imposed on the gross revenues of all such providers and further declares that such agreements, franchises and ordinances shall continue in full force and effect until expiration as provided therein or until pre-empted by the issuance of video service authorizations by the Missouri Public Service Commission or otherwise by law, but only to the extent of said pre-emption.
[Ord. No. 2929 §2, 11-19-2007]
Definitions. The following terms shall have the following meanings unless otherwise defined by context:
- FRANCHISE AREA
- The total geographic area of the City authorized to be served by an incumbent cable television operator or incumbent local exchange carrier or affiliate thereof.
- GROSS REVENUES
- The total amounts billed to subscribers or received from advertisers for the provision of video services within the City, including:
- 1. Recurring charges for video service,
- 2. Event-based charges for video service including, but not limited to, pay-per-view and video-on-demand charges,
- 3. Rental of set top boxes and other video service equipment,
- 4. Service charges related to the provision of video service including, but not limited to, activation, installation, repair and maintenance charges,
- 5. Administrative charges related to the provision of video service including, but not limited to, service order and service termination charges, and
- 6. A pro rata portion of all revenue derived, less refunds, rebates or discounts, by a video service provider for advertising over the video service network to subscribers, where the numerator is the number of subscribers within the City and the denominator is the total number of subscribers reached by such advertising; but gross revenues do not include:
- a. Discounts, refunds and other price adjustments that reduce the amount of compensation received by a video service provider,
- b. Uncollectibles,
- c. Late payment fees,
- d. Amounts billed to subscribers to recover taxes, fees or surcharges imposed on subscribers or video service providers in connection with the provision of video services, including the video service provider fee authorized herein,
- e. Fees or other contributions for PEG or I-Net support, or
- f. Charges for services other than video service that are aggregated or bundled with amounts billed to subscribers, provided the video service provider can reasonably identify such charges on books and records kept in the regular course of business or by other reasonable means. Except with respect to the exclusion of the video service provider fee, gross revenues shall be computed in accordance with generally accepted accounting principles.
- An apartment, a house, a mobile home or any other structure or part of a structure intended for residential occupancy as separate living quarters.
- LOW INCOME HOUSEHOLD
- A household with an average annual household income of less than thirty-five thousand dollars ($35,000.00) as determined by the most recent decennial census.
- An individual, partnership, association, organization, corporation, trust or government entity.
- Any person who receives video services in the franchise area.
- VIDEO SERVICE
- The provision of video programming provided through wireline facilities, without regard to delivery technology, including Internet protocol technology, whether provided as part of a tier, on demand or a per-channel basis, including cable service as defined by 47 U.S.C. Section 522(6), but excluding video programming provided by a commercial mobile service provider defined in 47 U.S.C. Section 332(d) or any video programming provided solely as part of and via a service that enables users to access content, information, electronic mail or other services offered over the public Internet.
- VIDEO SERVICE AUTHORIZATION
- The right of a video service provider or an incumbent cable operator that secures permission from the Missouri Public Service Commission pursuant to Sections 67.2675 to 67.2714, RSMo., to offer video service to subscribers.
- VIDEO SERVICE NETWORK
- Wireline facilities or any component thereof that deliver video service without regard to delivery technology, including Internet protocol technology or any successor technology. The term "video service network" shall include cable television systems.
- VIDEO SERVICE PROVIDER OR PROVIDER
- Any person authorized to distribute video service through a video service network pursuant to a video service authorization.
A video service provider shall provide written notice to the City at least ten (10) days before commencing video service within the City. Such notice shall also include:
The name, address and legal status of the provider;
The name, title, address, telephone number, e-mail address and fax number of individual(s) authorized to serve as the point of contact between the City and the provider so as to make contact possible at any time (i.e., twenty-four (24) hours per day, seven (7) days per week); and
A copy of the provider's video service authorization issued by the Missouri Public Service Commission.
A video service provider shall not deny access to service to any group of potential residential subscribers because of the race or income of the residents in the area in which the group resides. A video service provider shall be governed in this respect by Section 67.2707, RSMo. The City may file a complaint in a court of competent jurisdiction alleging a germane violation of this Subsection, which complaint shall be acted upon in accordance with Section 67.2711, RSMo.
A video service provider shall comply with all Federal Communications Commission requirements involving the distribution and notification of emergency messages over the emergency alert system applicable to cable operators. Any video service provider other than an incumbent cable operator serving a majority of the residents within a political subdivision shall comply with this Section by December 31, 2007.
A video service provider shall, at its sole cost and expense, indemnify, hold harmless and defend the City, its officials, boards, board members, commissions, commissioners, agents and employees against any and all claims, suits, causes of action, proceedings and judgments ("claims") for damages or equitable relief arising out of:
The construction, maintenance, repair or operation of its video services network,
Copyright infringements, and
Failure to secure consents from the owners, authorized distributors or licenses or programs to be delivered by the video service network.
Such indemnification shall include, but is not limited to, the City's reasonable attorneys' fees incurred in defending against any such claim prior to the video service provider assuming such defense. The City shall notify the provider of a claim within seven (7) business days of its actual knowledge of the existence of such claim. Once the provider assumes the defense of the claim, the City may at its option continue to participate in the defense at its own expense. This indemnification obligation shall not apply to any claim related to the provision of public, educational or governmental channels or programming or to emergency interrupt service announcements.
Video Service Provider Fee.
Each video service provider shall pay to the City a video service provider fee in the amount of three percent (3%) of the provider's gross revenues on or before the last day of the month following the end of each calendar quarter. The City may adjust the video service provider fee as permitted in Section 67.2689, RSMo.
A video service provider may identify and pass through on a proportionate basis the video service provider fee as a separate line item on subscribers' bills.
The City, not more than once per calendar year and at its own cost, may audit the gross revenues of any video service provider as provided in Section 67.2691, RSMo. A video service provider shall make available for inspection all records pertaining to gross revenues at the location where such records are kept in the normal course of business.
Customer Service Regulations.
For purposes of this Section, the following terms shall mean:
- NORMAL BUSINESS HOURS
- Those hours during which most similar businesses in the community are open to serve customers. In all cases the term normal business hours must include some evening hours at least one (1) night per week or some weekend hours.
- NORMAL OPERATING CONDITIONS
- Those service conditions which are within the control of the video service provider. Those conditions which are not within the control of the video service provider include, but are not limited to, natural disasters, civil disturbances, power outages, telephone network outages and severe or unusual weather conditions. Those conditions which are ordinarily within the control of the video service provider include, but are not limited to, special promotions, pay-per-view events, rate increases, regular peak or seasonal demand periods and maintenance or upgrade of the video system.
- SERVICE INTERRUPTION
- The loss of picture or sound on one (1) or more video channels.
All video service providers shall adopt and abide by the following minimum customer service requirements.
Video service providers shall maintain a local, toll-free or collect call telephone access line which may be available to subscribers twenty-four (24) hours a day, seven (7) days a week.
Video service providers shall have trained company representatives available to respond to customer telephone inquiries during normal business hours. After normal business hours, the access line may be answered by a service or an automated response system, including an answering machine. Inquiries received after normal business hours shall be responded to, by a trained company representative, on the next business day.
Under normal operating conditions, telephone answer time by a customer representative, including wait time, shall not exceed thirty (30) seconds when the connection is made. If the call needs to be transferred, transfer time shall not exceed thirty (30) seconds. These standards shall be met no less than ninety percent (90%) of the time under normal operating conditions, measured on a quarterly basis.
Under normal operating conditions, the customer will receive a busy signal less than three percent (3%) of the time.
Customer service centers and bill payment locations shall be open at least during normal business hours and shall be conveniently located.
Under normal operating conditions, each of the following standards shall be met no less than ninety-five percent (95%) of the time measured on a quarterly basis:
Standard installations shall be performed within seven (7) business days after an order has been placed. "Standard" installations are those that are located up to one hundred twenty-five (125) feet from the existing distribution system.
Excluding conditions beyond the control of the operator, the video service provider shall begin working on "service interruptions" promptly and in no event later than twenty-four (24) hours after the interruption becomes known. The video service provider must begin actions to correct other service problems the next business day after notification of the service problem.
The "appointment window" alternatives for installations, service calls and other installation activities will be either a specific time or, at maximum, a four (4) hour time block during normal business hours. The operator may schedule service calls and other installation activities outside of normal business hours for the express convenience of the customer.
A video service provider shall not cancel an appointment with a customer after the close of business on the business day prior to the scheduled appointment.
If a video service provider's representative is running late for an appointment with a customer and will not be able to keep the appointment as scheduled, the customer must be contacted. The appointment shall be rescheduled, as necessary, at a time convenient for the customer.
Credits for service shall be issued no later than the customer's next billing cycle following the determination that a credit is warranted.
Video service providers shall not disclose the name or address of a subscriber for commercial gain to be used in mailing lists or for other commercial purposes not reasonably related to the conduct of the businesses of the video service provider or its affiliates as required under 47 U.S.C. §551, including all notice requirements. Video service providers shall provide an address and telephone number for a local subscriber to use without toll charge to prevent disclosure of the subscriber's name or address.
As required by Section 67.2692, RSMo., this Subsection (D) shall be enforced only as follows:
Each video service provider shall implement an informal process for handling inquiries from the City and customers concerning billing issues, service issues and other complaints. If an issue is not resolved through this informal process, the City may request a confidential non-binding mediation with the video service provider, with the costs of such mediation to be shared equally between the City and the video service provider.
In the case of repeated, willful and material violations of the provisions of this Section by a video service provider, the City may file a complaint on behalf of a resident harmed by such violations with Missouri's Administrative Hearing Commission seeking an order revoking the video service provider's Public Service Commission authorization. The City or a video service provider may appeal any determination made by the Administrative Hearing Commission under this Section to a court of competent jurisdiction, which shall have the power to review the decision de novo. The City shall not file a complaint seeking revocation unless the video service provider has been given sixty (60) days' notice to cure alleged breaches but has failed to do so.
Public, Educational And Government Access Programming.
Each video service provider shall designate the same number of channels for non-commercial public, educational or governmental ("PEG") use as required of the incumbent cable television franchisee as of August 28, 2007.
Any PEG channel that is not substantially utilized by the City may be reclaimed and programmed by the video service provider at the provider's discretion. If the City finds and certifies that a channel that has been reclaimed by a video service provider will be substantially utilized, the video service provider shall restore the reclaimed channel within one hundred twenty (120) days. A PEG channel shall be considered "substantially utilized" when forty (40) hours per week are locally programmed on that channel for at least three (3) consecutive months. In determining whether a PEG channel is substantially utilized, a program may be counted not more than four (4) times during a calendar week.
The operation of any PEG access channel and the production of any programming that appears on each such channel shall be the sole responsibility of the City or its duly appointed agent receiving the benefit of such channel and the video service provider shall bear only the responsibility for the transmission of the programming on each such channel to subscribers. The City must deliver and submit to the video service provider all transmissions of PEG content and programming in a manner or form that is capable of being accepted and transmitted by such video service provider holder over its network without further alteration or change in the content or transmission signal. Such content and programming must be compatible with the technology or protocol utilized by the video service provider to deliver its video services. The video service provider shall cooperate with the City to allow the City to achieve such compatibility.
The City shall make the programming of any PEG access channel available to all video service providers in a non-discriminatory manner. Each video service provider shall be responsible for providing the connectivity to the City's or its duly appointed agent's PEG access channel distribution points existing as of August 27, 2007. Where technically necessary and feasible, video service providers shall use reasonable efforts and shall negotiate in good faith to interconnect their video service networks on mutually acceptable rates, terms and conditions for the purpose of transmitting PEG programming. A video service provider shall have no obligation to provide such interconnection to a new video service provider at more than one (1) point per headend, regardless of the number of political subdivisions served by such headend. The video service provider requesting interconnection shall be responsible for any costs associated with such interconnection, including signal transmission from the origination point to the point of interconnection. Interconnection may be accomplished by direct cable microwave link, satellite or other reasonable method of connection acceptable to the person providing the interconnect.
The franchise obligation of an incumbent cable operator to provide monetary and other support for PEG access facilities existing on August 27, 2007 shall continue until the date of franchise expiration (ignoring any termination by notice of issuance of a video service authorization) or January 1, 2012, whichever is earlier. Any other video service provider shall have the same obligation to support PEG access facilities as the incumbent cable operator, but if there is more than one (1) incumbent, then the incumbent with the most subscribers as of August 27, 2007. Such obligation shall be prorated, depending on the nature of the obligation, as provided in Section 67.2703.8, RSMo. The City shall notify each video service provider of the amount of such fee on an annual basis, beginning one (1) year after issuance of the video service authorization.
A video service provider may identify and pass through as a separate line item on subscribers' bills the value of monetary and other PEG access support on a proportionate basis.
[Ord. No. 2929 §4, 11-19-2007]
Definitions. The following terms shall have the following meanings unless otherwise defined by context:
- The City's Public Works Director or such other person designated to administer and enforce this Chapter.
- A network or system or any part thereof used for providing or delivering a service and consisting of one (1) or more lines, pipes, irrigation systems, wires, cables, fibers, conduit facilities, cabinets, poles, vaults, pedestals, boxes, appliances, antennas, transmitters, radios, towers, gates, meters, appurtenances or other equipment.
- FACILITIES PERMIT
- A permit granted by the City for placement of facilities on private property.
- An individual, partnership, limited liability corporation or partnership, association, joint stock company, trust, organization, corporation or other entity or any lawful successor thereto or transferee thereof
- Providing or delivering an economic good or an article of commerce including, but not limited to, gas, telephone, cable television, Internet, open video systems, video services, alarm systems, steam, electricity, water, telegraph, data transmission, petroleum pipelines, sanitary or stormwater sewerage or any similar or related service to one (1) or more persons located within or outside of the City using facilities located within the City.
Any person desiring to place facilities on private property must first apply for and obtain a facilities permit in addition to any other building permit, license, easement, franchise or authorization required by law. The Director may design and make available standard forms for such applications, requiring such information as allowed by law and as the Director determines in his or her discretion to be necessary and consistent with the provisions of this Chapter and to accomplish the purposes of this Chapter. Each application shall at minimum contain the following information, unless otherwise waived by the Director:
The name of the person on whose behalf the facilities are to be installed and the name, address and telephone number of a representative whom the City may notify or contact at any time (i.e., twenty-four (24) hours per day, seven (7) days per week) concerning the facilities;
A description of the proposed work, including a site plan and such plans or technical drawings or depictions showing the nature, dimensions and description of the facilities, their location and their proximity to other facilities that may be affected by their installation.
Each such application shall be accompanied by an application fee approved by the City to cover the cost of processing the application.
Application review and determination.
The Director shall promptly review each application and shall grant or deny the application within thirty-one (31) days. Unless the application is denied pursuant to Subparagraph (d) hereof, the Director shall issue a facilities permit upon determining that the applicant:
Has submitted all necessary information,
Has paid the appropriate fees, and
Is in full compliance with this Chapter and all other City ordinances. The Director may establish procedures for bulk processing of applications and periodic payment of fees to avoid excessive processing and accounting costs.
It is the intention of the City that proposed facilities will not impair public safety, harm property values or significant sight lines or degrade the aesthetics of the adjoining properties or neighborhood and that the placement and appearance of facilities on private property should be minimized and limited in scope to the extent allowed by law to achieve the purposes of this Section. To accomplish such purposes, the Director may impose conditions on facilities permits, including alternative landscaping, designs or locations, provided that such conditions are reasonable and necessary, shall not result in a decline of service quality and are competitively neutral and non-discriminatory.
An applicant receiving a facilities permit shall promptly notify the Director of any material changes in the information submitted in the application or included in the permit. The Director may issue a revised facilities permit or require that the applicant reapply for a facilities permit.
The Director may deny an application, if denial is deemed to be in the public interest, for the following reasons:
Delinquent fees, costs or expenses owed by the applicant;
Failure to provide required information;
The applicant being in violation of the provisions of this Chapter or other City ordinances;
For reasons of environmental, historic or cultural sensitivity as defined by applicable Federal, State or local law;
For the applicant's refusal to comply with reasonable conditions required by the Director; and
For any other reason to protect the public health, safety and welfare, provided that such denial does not fall within the exclusive authority of the Missouri Public Service Commission and is imposed on a competitively neutral and non-discriminatory basis.
Permit revocation and ordinance violations.
The Director may revoke a facilities permit without fee refund after notice and an opportunity to cure, but only in the event of a substantial breach of the terms and conditions of the permit or this Chapter. Prior to revocation the Director shall provide written notice to the responsible person identifying any substantial breach and allowing a reasonable period of time not longer than thirty (30) days to cure the problem, which cure period may be immediate if certain activities must be stopped to protect the public safety. The cure period shall be extended by the Director on good cause shown. A substantial breach includes, but is not limited to, the following:
A material violation of the facilities permit or this Chapter;
An evasion or attempt to evade any material provision of the permit or this Chapter or the perpetration or attempt to perpetrate any fraud or deceit upon the City or its residents;
A material misrepresentation of fact in the permit application;
A failure to complete facilities installation by the date specified in the permit, unless an extension is obtained or unless the failure to complete the work is due to reasons beyond the applicant's control; and
A failure to correct, upon reasonable notice and opportunity to cure as specified by the Director, work that does not conform to applicable national safety ordinances, industry construction standards or the City's pertinent and applicable ordinances including, but not limited to, this Chapter, provided that City standards are no more stringent than those of a national safety ordinance.
Any breach of the terms and conditions of a facilities permit shall also be deemed a violation of this Chapter and in lieu of revocation the Director may initiate prosecution of the applicant or the facilities owner for such violation.
Appeals and alternative dispute resolution.
Any person aggrieved by a final determination of the Director may appeal in writing to the City Manager within five (5) business days thereof. The appeal shall assert specific grounds for review and the City Manager shall render a decision on the appeal within fifteen (15) business days of its receipt affirming, reversing or modifying the determination of the Director. The City Manager may extend this time period for the purpose of any investigation or hearing deemed necessary. A decision affirming the Director's determination shall be in writing and supported by findings establishing the reasonableness of the decision. Any person aggrieved by the final determination of the City Manager may file a petition for review pursuant to Chapter 536, RSMo., as amended, in the Circuit Court of the County of St. Louis. Such petition shall be filed within thirty (30) days after the City Manager's final determination.
On agreement of the parties and in addition to any other remedies, any final decision of the City Manager may be submitted to mediation or binding arbitration.
In the event of mediation, the City Manager and the applicant shall agree to a mediator. The costs and fees of the mediator shall be borne equally by the parties and each party shall pay its own costs, disbursements and attorney fees.
In the event of arbitration, the City Manager and the applicant shall agree to a single arbitrator. The costs and fees of the arbitrator shall be borne equally by the parties. If the parties cannot agree on an arbitrator, the matter shall be resolved by a three (3) person arbitration panel consisting of one (1) arbitrator selected by the City Manager, one (1) arbitrator selected by the applicant or facilities owner and one (1) person selected by the other two (2) arbitrators, in which case each party shall bear the expense of its own arbitrator and shall jointly and equally bear with the other party the expense of the third (3rd) arbitrator and of the arbitration. Each party shall also pay its own costs, disbursements and attorney fees.
The following general regulations apply to the placement and appearance of facilities:
Facilities shall be placed underground, except when other similar facilities exist above ground or when conditions are such that underground construction is impossible, impractical or economically unfeasible, as determined by the City, and when in the City's judgment the above ground construction has minimal aesthetic impact on the area where the construction is proposed. Facilities shall not be located so as to interfere or be likely to interfere with any public facilities or use of public property.
Facilities shall be located in such a manner as to reduce or eliminate their visibility. Non-residential zoning districts are preferred to residential zoning districts. Preferred locations in order of priority in both type districts are:
Facilities shall be a neutral color and shall not be bright, reflective or metallic. Black, gray and tan shall be considered neutral colors, as shall any color that blends with the surrounding dominant color and helps to camouflage the facilities. Sightproof screening, landscape or otherwise, may be required for facilities taller than three (3) feet in height or covering in excess of four (4) square feet in size. Such screening shall be sufficient to reasonably conceal the facility. A landscape plan identifying the size and species of landscaping materials shall be approved by the Director prior to installation of any facility requiring landscape screening. The person responsible for the facilities shall be responsible for the installation, repair or replacement of screening materials. Alternative concealment may be approved by the Director to the extent it meets or exceeds the purposes of these requirements.
Facilities shall be constructed and maintained in a safe manner and so as to not emit any unnecessary or intrusive noise and in accordance with all applicable provisions of the Occupational Safety and Health Act of 1970, the National Electrical Safety Code and all other applicable Federal, State or local laws and regulations.
No person shall place or cause to be placed any sort of signs, advertisements or other extraneous markings on the facilities, except such necessary minimal markings approved by the City as necessary to identify the facilities for service, repair, maintenance or emergency purposes or as may be otherwise required to be affixed by applicable law or regulation.
If the application of this Subsection excludes locations for facilities to the extent that the exclusion conflicts with the reasonable requirements of the applicant, the Director shall cooperate in good faith with the applicant to attempt to find suitable alternatives, but the City shall not be required to incur any financial cost or to acquire new locations for the applicant.
Any person installing, repairing, maintaining, removing or operating facilities, and the person on whose behalf the work is being done, shall protect from damage any and all existing structures and property belonging to the City and any other person. Any and all rights-of-way, public property or private property disturbed or damaged during the work shall be repaired or replaced and the responsible person shall immediately notify the owner of the fact of the damaged property. Such repair or replacement shall be completed within a reasonable time specified by the Director and to the Director's satisfaction.
The applicant shall provide written notice to all property owners within one hundred eighty-five (185) feet of the site at least forty-eight (48) hours prior to any installation, replacement or expansion of its facilities. Notice shall include a reasonably detailed description of work to be done, the location of work and the time and duration of the work.
At the City's direction, a person owning or controlling facilities shall protect, support, disconnect, relocate or remove facilities, at its own cost and expense, when necessary to accommodate the construction, improvement, expansion, relocation or maintenance of streets or other public works or to protect the ROW or the public health, safety or welfare.
If a person installs facilities without having complied with the requirements of this Chapter or abandons the facilities, said person shall remove the facilities and if the person fails to remove the facilities within a reasonable period of time, the City may, to the extent permitted by law, have the removal done at the person's expense.
Facilities shall be subject to all other applicable regulations and standards as established as part of the City Code including, but not limited to, building codes, zoning requirements and rights-of-way management regulations in addition to the regulations provided herein.
[Ord. No. 2929 §5, 11-19-2007]
Any person found guilty of violating any provision of this Chapter shall be punished by a fine not to exceed one thousand dollars ($1,000.00) or by imprisonment not to exceed ninety (90) days or by both such fine and imprisonment and each day the violation continues shall constitute a separate offense.