City of Pagedale, MO Chapter 635 Video Services Providers

Article I General Provisions

Section 635.010 Conflicting Provisions — Repealed.

[Ord. No. 1383 §1, 11-8-2007]

Any Sections of the Pagedale City Code in contrast to Sections 67.2675 through 67.2714, RSMo., shall hereby be repealed; provided that if any portion of the Sections 67.2675 through 67.2714, RSMo., be inclusive, or determined to be invalid, this Section 635.010 shall be of no force and effect and the repealed City Code Sections shall continue in effect until or unless subsequently modified or repealed; and further provided that nothing herein shall be deemed to alter the continuing obligations set forth in Section 635.020(F) of this Chapter.

Section 635.020 Video Services Providers.

[Ord. No. 1383 §2, 11-8-2007]

A. Definitions. The words and phrases used in this Section shall have the meaning as set forth in Section 67.2677, RSMo., or, if not defined therein, shall have such meanings as established by City Code.

B. Franchise Fee. Pursuant to Section 67.2689, RSMo., and as partial compensation for use of the City's public rights-of-way, each video services provider or other person providing cable services or video services within the City shall, to the extent permitted by law, pay to the City a fee of eight percent (8%) of the gross revenues from such video services provider in the geographic area of the City. Such payment shall be made as required by Section 67.2689, RSMo. The City shall have the right to audit any video services provider as authorized by Section 67.2691, RSMo. Late payments shall accrue interest due to the City compounded monthly at one and one-half percent (1.5%) or such other maximum rate as may be established by law.

C. Customer Service Requirements. All video services providers providing service within the City shall adopt and comply with the minimum customer service requirements set forth in Section 67.2692, RSMo. Notice or receipt of this Chapter by the video services provider shall be deemed notice of the City invoking such customer service requirements.

D. Rights-Of-Way Regulation — Indemnification — Permits And Compliance With Other Laws. Video services providers shall comply with the requirements of Sections 67.2707, 67.2709 and all applicable ordinances and regulations consistent with Sections 67.1830 to 67.1846, RSMo., relating to use of the City rights-of-way. Each video services provider shall indemnify and hold harmless the City and its officers, employees and agents from any loss or damage, including, but not limited to, attorneys' fees, as provided in such ordinances or regulations, but in no event less than the obligation on video services providers set forth in Section 67.2695, RSMo. The City may require documentation of such indemnification by written agreement or other instrument to the extent permitted by law. In addition, video services providers shall be subject to and comply with such supplementary provisions relating to placement, screening and relocation of facilities as provided in Section 635.030 of this Chapter and such other applicable laws of the City, except as may be otherwise validly pre-empted. Notwithstanding any other ordinance to the contrary, no facilities to be used for video services shall be installed without obtaining a permit from the City authorizing the location and plans for such facilities; provided that this provision shall not apply to installation of otherwise lawful and authorized poles or wires.

E. Public Educational And Governmental Channels. Each video services provider shall designate a number of channels for public, educational and governmental programming consistent with Section 67.2703, RSMo.; provided that any greater number of channels, as may be required in the incumbent cable franchise or franchise ordinance, shall be required pursuant to Section 67.2703.2, RSMo. The City shall bear no cost relating to the transmission, availability or maintenance of such channels unless expressly authorized by the City in writing and approved by the Governing Body. Incumbent cable operators and other video services providers shall provide support for such public, educational and governmental channels consistent with Section 67.2703.8, RSMo.

F. Continued Obligations. The obligations of a cable service provider or video services provider as set forth in any existing cable services or video services franchise or ordinance shall also continue to apply to the full extent permitted by applicable law.

G. Reservation Of Rights. The City retains all rights in Sections 67.2675 through 67.2714, RSMo., inclusive, and may take any and all actions permitted by law to exercise such rights or to enforce such obligations on providers of video services.

H. Notice. A copy of this Chapter shall be delivered to each video services provider operating in the City after notice to the City that such provider is authorized to provide service within the City; provided that the provisions of this Chapter shall, to the extent permitted by law, not be affected by any claimed or actual failure of a service provider to have received delivery of a copy of this Chapter.

Section 635.030 Accessory Utility Facilities — Supplementary Regulations.

[Ord. No. 1383 §3, 11-8-2007]

A. Every public utility, cable company, video services provider and other users of the City rights-of-way or adjacent easements to provide services shall comply with the supplemental regulations in this Section regarding the placement of accessory utility facilities on public or private property. For purposes of this Section, "accessory utility facilities" shall mean such facilities, including pedestals, boxes, vaults, cabinets, or other ground-mounted or below ground facilities that directly serve the property or local area in which the facility is placed, are not primarily for transmission or distribution to other locations, do not materially alter the character of the neighborhood or area, and otherwise are customarily found in such areas.

B. Except where limited by other provisions of City ordinance, accessory utility facilities shall be subject to the following supplementary regulations:

1. Approval — design — location — application. The design, location and nature of all accessory utility facilities on private or public property shall require approval of the City, which approval shall be considered in a non-discriminatory manner, in conformance with this Chapter, and subject to reasonable permit conditions as may be necessary to meet the requirements of this Chapter. In considering applications for individual or multiple location applications, the City shall review the request to ensure the proposed facilities do not impair public safety, harm property values or significant sight lines, or degrade the aesthetics of the adjoining properties or neighborhood, and taking into consideration reasonable alternatives. Any material changes or extensions to such facilities or the construction of any additional structures shall be subject to the requirements and approvals as set forth herein. Unless otherwise prohibited, utility facilities subject to this Subsection may be located in minimum setback areas provided that all other requirements are met. To the extent permitted by Section 67.2707.3, RSMo., the time, method, manner or location of facilities to be located in the rights-of-way may be established or conditioned by the City to protect the rights-of-way or to ensure public safety. An inspection fee shall be required as may be established by the City for the costs of review and inspection of accessory utility facilities as may be permitted by applicable law.

2. General regulations. The following general regulations apply to all accessory utility facilities:

a. All such facilities shall be placed underground except as otherwise provided in Subsections (3) and (4) herein or as approved by special use permit.

b. All such facilities shall be constructed and maintained in such a manner so as not to emit any unnecessary or intrusive noise.

c. All facilities and utility boxes shall be deemed abandoned after six (6) continuous months of non-use and shall therefore be removed within thirty (30) days thereafter at the cost of the utility.

d. Unless otherwise restricted, utility poles for authorized above ground lines or facilities shall be permitted up to forty-five (45) feet in height where utilities are not otherwise required to be placed underground; provided that such poles shall be no higher than necessary, maintained so as to avoid leaning from upright position, and without use of guy wires crossing rights-of-way or pedestrian routes except where approved by the City as necessary due to the lack of feasible alternatives.

e. Utility facilities placed in designated historic areas may be subject to additional requirements regarding the placement and appearance of facilities as may be necessary to reasonably avoid or reduce any negative impact of such placement.

f. Any damage to landscaping or vegetation on private or public property during installation or maintenance of facilities shall be promptly remedied by the facility owner.

g. At least forty-eight (48) hours prior to any installation, replacement or expansion of any facility located on private property, the facility owner shall provide notice to all property owners within one hundred eighty-five (185) feet from the site. Notice shall include detailed description of work to be done, the exact location of work and the time and duration when it will be undertaken.

h. No facilities may be located so as to interfere, or be likely to interfere, with any public facilities or use of public property.

i. All utility facilities not authorized by this Subsection or specifically addressed elsewhere in this Code shall be authorized only as a special use permit.

3. Residential districts. In residential districts, accessory utility facilities less than three and one-half (3.5) feet in height and covering less than eight (8) square feet in area may be installed above ground with the prior approval of the City. Except as otherwise may be authorized herein, any larger utility facility shall be installed underground or authorized to be installed above ground only by special use permit. All above ground facilities, where authorized, shall be placed in the rear yard wherever practical. If locating these facilities in the rear yard is not practical, then such facilities may be located in the side yard. Such facilities shall not be located in the front yard or within the public right-of-way unless otherwise approved by the City upon a determination that all other alternatives are not feasible.

4. Non-residential districts. In non-residential districts, accessory utility facilities with a height of less than five (5) feet and covering less than sixteen (16) square feet in area may be installed above ground with the prior approval of the City. Except as otherwise may be authorized herein, any larger utility facility shall be installed underground or authorized to be installed above ground only by special use permit. All above ground facilities, where authorized, shall be placed in the rear yard wherever practical. If locating these facilities in the rear yard is not practical, then such facilities may be located in the side yard. Such facilities shall not be located in the front yard or within the public right-of-way unless otherwise approved by the City upon a determination that all other alternatives are not feasible.

5. Landscape screening. A sight proof landscape screen shall be provided for all authorized above ground facilities taller than three (3) feet in height or covering in excess of four (4) square feet in size. Such screen shall be required to sufficiently conceal the facility. A landscape plan identifying the size and species of landscaping materials shall be submitted by the utility and approved by the City prior to installation of any facility requiring landscape screening. The utility shall be responsible for the installation, repair or replacement of screening materials. Alternative screening or concealment may be approved by the City to the extent it meets or exceeds the purposes of these requirements. Facilities located in rear yards may be exempted from screening where located so as not to be visible from (1) any public property and (2) more than two (2) residential dwelling units.

6. Compliance with other laws. All accessory utility 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 supplementary regulations herein. The provisions of this Section 635.030 shall not apply to any circumstance or entity in which application under such circumstances is pre-empted or otherwise precluded by superseding law.

Section 635.040 through Section 635.310. (Reserved)

Article II Additional Regulations

Section 635.320 Ratification of Existing Franchises.

[Ord. No. 1478 §§1 — 2, 12-8-2011]

A. To the extent permitted by the 2007 Video Services Providers Act, the City Council of the City of Pagedale, Missouri, hereby ratifies all existing agreements, franchises, Code provisions and ordinances regulating cable television operators and other service providers, including the imposition of a franchise fee of eight percent (8%) 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.

B. It shall be unlawful for any person to provide video services, as defined in Section 635.330, within the City of Pagedale, Missouri, without an agreement, franchise or ordinance approved by the City or a video service authorization issued by the Missouri Public Service Commission.

Section 635.330 Video Service Regulations.

[Ord. No. 1479, 12-8-2011]

A. Definitions. As used in this Article, 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 carrier or affiliate thereof.

GROSS REVENUES

1. The total amounts billed to subscribers or received by an entity holding a video service authorization from advertisers for the provision of video services within the City, including:

a. Recurring charges video services;

b. Even-based charges for video service, including, but not limited to, pay-per-view and video-on-demand charges;

c. Rental of set-top boxes and other video service equipment;

d. Service charges related to the provision of video service, including, but not limited to, activation, installation, repair and maintenance charges;

e. Administrative charges related to the provision of video service, including, but not limited to, service order and service termination charges; and

f. 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:

(1) Discounts, refunds and other price adjustments that reduce the amount of compensation received by an entity holding a video service authorization;

(2) Uncollectibles;

(3) Late payment fees;

(4) 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;

(5) Fees or other contributions for PEG or 1-net support; or

(6) Charges for services other than video service that are aggregated or bundled with amounts billed to subscribers, provided that 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.

2. Except with respect to the exclusion of the video service provider fee, gross revenues shall be computed in accordance with generally accepted accounting principles.

HOUSEHOLD

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.

PERSON

An individual, partnership, association, organization, corporation, trust or government entity.

SUBSCRIBER

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. § 522(6), but excluding video programming provided by a commercial mobile service provider defined in 47 U.S.C. § 332(6) or any video programming provided solely as part of and via a service that enables users to access content, information, electronic mail or other series 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 Section 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 FEE

The fee imposed under Subsection (C) hereof.

VIDEO SERVICE PROVIDER or PROVIDER

Any person authorized to distribute video service through a video service network pursuant to a video service authorization.

B. General Regulations.

1. 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:

a. The name, address and legal status of the provider;

b. 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

c. A copy of the provider's video service authorization issued by the Missouri Public Service Commission.

2. A video service provider shall also notify the City, in writing, within thirty (30) days of:

a. Any changes in the information set forth in or accompanying its notice of commencement of video service; or

b. Any transfer of ownership or control of the provider's business assets.

3. 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 Section, which complaint shall be acted upon in accordance with Section 67.2711, RSMo.

4. 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 minority of the residents within the political subdivision shall comply with this Section by December 31, 2007.

5. 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 judgment (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 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 attorney's 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.

C. Video Service Provider Fee.

1. Each video service provider shall pay to the City a video service provider fee in the amount of eight percent (8%) 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.

2. 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' bill.

3. The City, not more than once per calendar year and at its own cost, may audit the gross revenue 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 are kept in the normal course of business.

D. Customer Service Regulations.

1. 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 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 ordinary within the control of the video service provider include, but 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.

2. All video service providers shall adopt and abide by the following minimum customer service requirements.

a. 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.

b. 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.

c. 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.

d. Under normal operating conditions, the customer will receive a busy signal less than three percent (3%) of the time.

e. Customer service centers and bill payment locations shall be open at least during normal business hours and shall be conveniently located.

f. 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:

(1) Standard installation 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.

(2) Excluding conditions beyond the control of the operator, the video service provider shall begin working on service interruption 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.

(3) The appointment window alternatives for installations, service calls and other installation activities will be either a specific time or, at maximum, a four-hour time block. The operator may schedule service calls and other installation activities outside of normal business hours for the express convenience of the customer.

(4) 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.

(5) 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.

g. Refund checks shall be issued promptly, but no later than either a) the customer's next billing cycle following resolution of the request or thirty (30) days, whichever is earlier or b) the return of the equipment supplied by the video service provider if the service is terminated.

h. Credits for service shall be issued no later than the customer's next billing cycle following the determination that a credit is warranted.

i. 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 business 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.

3. As required by Section 67.2692, RSMo., this Article II, Section 635.320 et seq. shall be enforced only as follows:

a. 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.

b. In this 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 service provider has been given sixty (60) days' notice to cure alleged breaches but has failed to do so.

E. Public, Educational And Government Access Programming.

1. Each video service provider shall designate the same number of channels for non-commercial public, educational or governmental (PEG) use as designated by the incumbent cable operator.

2. 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 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.

3. 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 appointment 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.

4. 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.

5. 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 early termination by virtue 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 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.

6. 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.

F. Compliance With Other Regulations. All video service providers shall comply with all other applicable laws and regulations.

G. This Section shall be in full force and effect from and after its passage and it is recorded.