[HISTORY: Adopted by the Board of Supervisors of Mathews County 2-24-2015. Amendments noted where applicable.]
This chapter shall be known and may be cited as the "Mathews County Cable Television Ordinance."
This chapter establishes the criteria, procedures and standards by which Mathews County will grant and enforce an ordinance cable franchise to a provider of cable services pursuant to § 15.2-2108 et seq. of the Code of Virginia as an alternative to a negotiated cable franchise pursuant to § 15.2-2108.20 of the Code of Virginia. The County, on request by an applicant, will continue to grant a negotiated cable franchise in accordance with Title VI of the Communications Act of 1934, as amended, 47 U.S.C. § 521 et seq., and as provided by § 15.2-2108.20 of the Code of Virginia. The ability to seek an ordinance cable franchise under this chapter shall be available to:
A cable operator with previous consent to use the public rights-of-way to provide cable services whose negotiated franchise with the County is up for renewal and who seeks to renew that franchise pursuant to Virginia Code § 15.2-2108.30;
A certificated provider of telecommunications services with previous consent to use the public rights-of-way in the County through a franchise; and
A certificated provider of telecommunications services that lacked previous consent to provide cable service in the County but provided telecommunications services over facilities leased from an entity having previous consent to use of the public rights-of-way in the County through a franchise.
No person shall construct, install, maintain, expand, enlarge or otherwise increase or operate a cable system through, on, over or under any public way or public right-of-way in the unincorporated area of the County without first having applied for, been granted and accepted a franchise under the provisions hereof and its franchise is in full force and effect.
Any person who constructs, installs, maintains, expands, enlarges, or otherwise increases, or operates a cable system through, on, over, or under any public way or public right-of-way, or within any privately owned area in the County which has not yet become a public street but is designated or delineated as a proposed public street on any tentative subdivision map approved by the County, in the unincorporated area of the County without first having applied for, been granted, and accepted a franchise under the provisions hereof, or a franchise under the County's preexisting cable ordinance, shall be guilty of a Class 4 misdemeanor.
Nothing in this chapter shall be deemed to abrogate the constitutionally protected rights of a cable system operating in the County on the date of the adoption or amendment of this chapter.
As used in this chapter, the following terms shall have the meanings indicated:
- The Communications Act of 1934.
- In relation to any person, means another person who owns or controls, is owned or controlled by, or is under common ownership or control with such person.
- The governing body of Mathews County, Virginia.
- (1) Any person or group of persons that:
- (2) "Cable operator" does not include a provider of wireless or direct-to-home satellite transmission service.
- 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 service" does not include any video programming provided by a commercial mobile service provider defined in 47 U.S.C. § 332(d).
- CABLE SYSTEM or CABLE TELEVISION SYSTEM
- Any facility consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide cable service that includes video programming and that is provided to multiple subscribers within a community, except that such definition shall not include:
- (1) A system that serves fewer than 20 subscribers;
- (2) A facility that serves only to retransmit the television signals of one or more television broadcast stations;
- (3) A facility that serves only subscribers without using any public rights-of-way;
- (4) A facility of a common carrier that is subject, in whole or in part, to the provisions of Title II of the Communications Act of 1934, 47 U.S.C. § 201 et seq., except that such facility shall be considered a cable system to the extent such facility is used in the transmission of video programming directly to subscribers, unless the extent of such use is solely to provide interactive on-demand services;
- (5) Any facilities of any electric utility used solely for operating its electric systems;
- (6) Any portion of a system that serves fewer than 50 subscribers in the County, where such portion is a part of a larger system franchised in an adjacent county; or
- (7) An open video system that complies with § 653 of Title VI of the Communications Act of 1934, as amended, 47 U.S.C. § 573.
- CERTIFICATED PROVIDER OF TELECOMMUNICATIONS SERVICES
- A person holding a certificate issued by the State Corporation Commission to provide local exchange telephone service.
- An initial authorization, or renewal thereof, issued by a franchising authority, including the County or the Commonwealth Transportation Board, whether such authorization is designated as a franchise, permit, license, resolution, contract, certificate, agreement, or otherwise, that authorizes the construction or operation of a cable system, a telecommunications system, or other facility in the public rights-of-way. A negotiated cable franchise is granted by a County after negotiation with an applicant pursuant to Code of Virginia, § 15.2-2108.20. An ordinance cable franchise is granted by the County when an applicant provides notice pursuant to Code of Virginia, § 15.2-2108.21 that it will provide cable service in the County.
- A person that has been granted a cable television franchise by the County pursuant to this chapter or any predecessor ordinance or franchise agreement.
- INTERACTIVE ON-DEMAND SERVICES
- A service providing video programming to subscribers over switched networks on an on-demand, point-to-point basis, but does not include services providing video programming prescheduled by the programming provider.
- An individual, partnership, association, joint-stock company, organization, corporation, or any other legal entity, but such term does not include the County.
- PUBLIC RIGHTS-OF-WAY
- The surface, the air space above the surface, and the area below the surface of any public street, highway, lane, path, alley, sidewalk, boulevard, drive, bridge, tunnel, park, parkway, waterway, casement, or similar property in which the County or the Commonwealth of Virginia now or hereafter holds any property interest, which, consistent with the purposes for which it was dedicated, may be used for the purpose of installing and maintaining cable facilities. No reference herein, or in any franchise, to public rights-of-way shall be deemed to be a representation or guarantee by the County that its interest or other right to control the use of such property is sufficient to permit its use for such purposes, and a franchisee shall be deemed to gain only those rights to use as are properly in the County and as the County may have the undisputed right and power to give.
- Any transaction in which:
- (1) An ownership or other interest in the cable operator is transferred, directly or indirectly, from one person or group of persons to another person or group of persons, so that majority control of the cable operator is transferred; or
- (2) The rights and obligations held by the cable operator under the cable franchise granted under this chapter are transferred or assigned to another person or group of persons. However, notwithstanding clauses (1) and (2) of the preceding sentence, a transfer of the cable franchise shall not include:
- (a) Transfer of an ownership or other interest in the cable operator to the parent of the cable operator or to another affiliate of the cable operator;
- (b) Transfer of an interest in the cable franchise granted under this chapter or the rights held by the cable operator under the cable franchise granted under this chapter to the parent of the cable operator or to another affiliate of the cable operator;
- (c) Any action that is the result of a merger of the parent of the cable operator;
- (d) Any action that is the result of a merger of another affiliate of the cable operator; or
- (e) A transfer in trust, by mortgage, or by assignment of any rights, title, or interest of the cable operator in the cable franchise or the system used to provide cable in order to secure indebtedness.
- The Virginia Department of Transportation.
- VIDEO PROGRAMMING
- Programming provided by, or generally considered comparable to, programming provided by a television broadcast station.
All terms used herein, unless otherwise defined, shall have the same meaning as set forth in § 15.2-2108.19 et seq., of the Code of Virginia, and if not defined therein, then as set forth in Title VI of the Communications Act of 1934, 47 U.S.C. § 521 et seq., and if not defined therein, their common and ordinary meaning. In addition, references in this chapter to any federal or state law shall include amendments thereto as are enacted from time-to-time.
In order to obtain a franchise, an applicant shall first file with the County Administrator a request, in writing, to negotiate the terms and conditions of a negotiated franchise agreement.
All applications for an initial franchise agreement shall include the following minimum information:
A map delineating all areas to which cable service shall initially be provided and anticipated future service areas, and a statement explaining the applicant's line extension requirements.
A detailed statement of services proposed to be offered to subscribers.
A detailed statement of any services to be offered to the County, including but not limited to access channels, cable service outlets to public locations, capital grants/support, etc.
A detailed statement of the service characteristics and capabilities of the applicant's proposed cable system.
A schedule of initial rates, fees and other charges to be established by the applicant.
A detailed statement of the applicant's customer service standards.
A detailed statement of the types of reports and records maintained by the applicant with regard to customer service, line extension deployment and annual performance summaries.
Evidence of the financial stability, technical and other qualifications of the applicant.
Full and true disclosure of the actual ownership of the applicant, including the identity of all principals and ultimate beneficial owners, however designated, specifically including all stock holders of corporations (nominal and beneficial) owning more than 1% of the issued and outstanding stock and all partners of any general or limited partnership.
Any additional information that the County may require.
Submitted applications may be amended only with the consent of the Board.
Applications shall be signed by the applicant or by a duly authorized representative of the applicant, evidence of whose authority shall be supplied with the application.
Each person applying for an initial Franchise shall pay a nonrefundable fee in the amount of $2,500 to defray expenses incurred by the County in processing applications. Such nonrefundable payment shall be used to offset any direct costs incurred by the franchising authority in connection with the application and this chapter.
The applicant shall make itself available to participate in franchise negotiations with the County and/or its representatives.
After considering the financial, technical and legal qualifications of the applicant, the Board may enter into a negotiated franchise agreement if it determines that the applicant's plans for constructing, operating, and maintaining its cable system are adequate and will sufficiently meet the current and future cable-related needs and interests of the residents of the County.
Should an applicant intend to elect to obtain an ordinance cable franchise from the County in lieu of a negotiated agreement, it shall give the County written notice of such election at least 45 calendar days prior to filing a notice electing an ordinance cable franchise. This requirement is not applicable if the County refuses to engage in negotiations with the applicant, or the applicant has an existing negotiated franchise agreement with the County.
After the forty-five-day period set forth in Subsection H above, an applicant, through its president or chief executive officer, shall file written notice with the County that the applicant elects to receive an ordinance cable franchise at least 30 days prior to offering cable service in the County.
The notice shall be accompanied by a map or a boundary description showing:
The map or boundary description of the initial service area may be amended by the applicant by filing with the County a new map or boundary description of the initial service area.
The County will adopt an ordinance within 120 days of the applicant's filing of the notice required in Subsection H above. An ordinance adopted under this section that relates to an applicant's provision of cable service shall apply to such applicant retroactively to the date on which the applicant began to offer cable service in the County pursuant to this chapter.
Notice of any ordinance that requires a public hearing shall be advertised once a week for two successive weeks in a newspaper having general circulation in the County. The advertisement shall include a statement that a copy of the full text of the ordinance is on file in the office of the clerk of the County. All costs of such advertising shall be assessed against the applicant or grantee.
A grantee electing to renew its cable franchise shall do so pursuant to the renewal procedures in 47 U.S.C. § 546, or by providing notice to the County that it will opt into an ordinance cable franchise pursuant to this chapter. A grantee may file such notification that its cable franchise will be renewed by an ordinance cable franchise not more than one year in advance of the expiration date of its existing franchise. Except as provided by federal law, the restrictions in §§ 15.2-2015 through 15.2-2018, 15.2-2100 through 15.2-2105, 15.2-2106 and 15.2-2107 of the Code of Virginia, including, but not limited to, the advertisement and receipt of bids for cable franchises, shall not apply to renewal certifications except where a renewal would result in the County having granted a cable franchise and a renewal with combined terms in excess of 40 years.
No transfer of any franchise granted under this chapter shall occur without the prior consent of the County, provided that the Board shall not unreasonably withhold, delay, or condition such consent. No transfer shall be made to a person, group of persons or affiliate that is not legally, technically, and financially qualified to operate the cable system and satisfy the franchise obligations.
Any modification to a franchise shall require the approval of the Board.
Sections 15.2-2108.19 through 15.2-2108.31 of the Code of the Virginia 1950, as amended, and all of the provisions and standards referenced therein, are hereby adopted and incorporated as fully as if set out at length herein. All future amendments to such sections and provisions are hereby automatically incorporated into the County Code.