§ 78-282. Definitions.

For the purpose of this article, the following terms, phrases, words and their derivations shall have the meanings given herein. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number, and words in the singular number include the plural number. The words "shall" and "will" are mandatory, and "may" is permissive. Words not otherwise defined herein or in any franchise agreement that might be granted hereunder shall be given the meaning set forth in the Communications Act of 1934, as amended, 47 U.S.C. § 521 et seq., and as hereinafter amended (collectively the "Communications Act"), and, if not defined therein, their common and ordinary meaning.

Access channel means any channel on a cable system set aside without charge by the franchisee for public, educational and/or local governmental use.

Affiliate means any person who owns or controls, is owned or controlled by, or is under common ownership or control with a franchisee.

Applicant means any person submitting an application as defined herein.

Application means any proposal, submission or request to (1) construct and operate a cable system within the city; (2) sell, assign or otherwise transfer a franchise or transfer control of the franchisee; (3) renew a franchise; (4) modify a franchise; or (5) seek any other relief from the city pursuant to this article, a franchise agreement, the Cable Communications Act, or other applicable law. An application includes an applicant's initial proposal, submission or request, as well as any and all subsequent written amendments or supplements to the proposal and relevant correspondence.

Basic cable service or basic service means any service tier which includes the retransmission of local television broadcast signals, and public, educational, or governmental access channels.

Cable service means (a) the one-way transmission to subscribers of (i) video programming service; or (ii) other programming service, and (b) subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service, or as otherwise permitted under applicable federal and state law.

Cable system, cable television system, or system means 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 which includes video programming and which is provided to multiple subscribers within the city. Such term does not include (i) a facility that serves only to retransmit the television signals of one or more television broadcast stations; (ii) a facility that serves subscribers without using any public rights-of-way; (iii) 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 will be considered a cable system to the extent it is used in the transmission of video programming directly to subscribers unless the extent of such use is solely to provide interactive on demand service; (iv) an open video system that complies with section 653 of the Telecommunications Act of 1996; and (v) any facilities of any electric utility used solely for operating as an electric utility system. The foregoing definition of "cable system" shall not be deemed to circumscribe the valid authority of the city to regulate the activities of any other communications system or provider of communications services or facilities as permitted by applicable federal or state law.

City means the City of West Palm Beach, Florida, a municipal corporation of the State of Florida, in its present incorporated form or in any later reorganized, consolidated, enlarged or reincorporated form.

Communications Act means the Communications Act of 1934, and amendments thereto including, but not limited to Cable Communications Policy Act of 1984, 47 U.S.C. § 521 et seq., and the Cable Television Consumer Protection and Competition Act of 1992, Pub. L. No. 102-385, 106 Stat. 1460, and the Telecommunications Act of 1996 as those acts may hereinafter be amended.

Control of a franchisee or applicant means possession of the ability to direct or cause the direction of the management or policies of a franchisee or applicant, or the operation of a franchisee's cable system, either directly or indirectly, whether through ownership of voting securities, by contract or understanding, or in any other manner.

Fair market value means the price that a willing buyer would pay to a willing seller for a going concern but with no value allocated to the franchise itself.

FCC means the Federal Communications Commission or any successor governmental entity thereto.

Franchise means the non-exclusive right granted by the city to a franchisee in a franchise agreement to construct, maintain and operate a cable system to provide cable services under, on, and over streets, roads and any other public ways, rights-of-ways, or easements within all or specified areas of the city. The term does not include any license or permit that may be required by this article or other laws, ordinances or regulations of the city for the privilege of transacting and carrying on a business within the city or for disturbing or carrying out any work on any street.

Franchise agreement means a contract entered into in accordance with the provisions of this article between the city and a franchisee that sets forth the terms and conditions under which the franchise will be exercised.

Franchise area means the entire area within the legal boundaries of the city and such other areas as may hereinafter be annexed or incorporated by the city or, alternatively, that area designated in a franchise agreement.

Franchisee means any person granted a franchise pursuant to this article who has entered into a franchise agreement with the city.

Gross revenues. As of the effective date of this article, the provisions of this definition are preempted pursuant to the communications service tax, F.S. ch. 202, and will remain preempted until such time as applicable law changes. Should applicable law change so as to allow the city to calculate franchise fees as a percentage of gross revenues, gross revenues shall mean, unless prohibited by applicable federal or state law, or as otherwise provided in a franchise agreement, all revenues recognized according to generally accepted accounting principles (GAAP) generated by the franchisee from the operation of the cable system to provide cable services in the city. Notwithstanding anything to the contrary contained in this subsection, gross revenues include, but are not limited to, fees charged subscribers for basic service; fees charged subscribers for any optional, premium, per-channel or per-program service; fees charged subscribers for any tier of service other than basic service; installation, disconnection, reconnection and change-in-service fees; late fees; leased access fees; and shall include the following services to the extent such services are considered Title VI services according to applicable law: revenue from cable service converters, cable service remotes, or any other cable service equipment rentals; revenues from cable guides; revenues from leases of the cable system; advertising revenues allocable to the city based on a percentage of subscribers in the city divided by the subscribers in the cable system (such percentage shall then be multiplied by the total advertising revenue of the cable system to determine the allocable gross revenue stemming from advertising); and revenues from home shopping channels or other sources allocable to the city, provided that where certain home shopping channel or other such revenue is allocable to more than one franchise area due to common zip codes, the franchisee shall allocate the percentage of revenue to the city that is equivalent to the percentage of the subscribers of the city divided by the total subscribers for the allocable franchises within the zip code. Unless prohibited by applicable law, gross revenues shall be the basis for computing the franchise fee imposed pursuant to section 78-297 hereof. Gross revenues shall not include revenues received from programmers and used by franchisee to market, promote or advertise a programming service; any revenue received by franchisee for payment in connection with PEG access or facilities as required by section 78-296 hereof; any taxes or fees on services furnished by the franchisee that are imposed upon any subscriber or user by the state, Palm Beach County, city or other governmental unit and collected by the franchisee on behalf of such governmental unit and that the franchisee passes on in full to the applicable authority. However, it is hereby expressly provided that franchise fees shall be included in the calculation of gross revenues. Further, franchise fees shall not be paid on subscriber deposits unless and until such deposits are applied to a customer account for services rendered.

Institutional network means a communications system constructed or operated by the franchisee for the city, the transmissions on which are generally available only to, and intended to be sent and received by, persons other than residential cable subscribers generally.

Interconnection means the electronic connection of two or more cable systems for the purpose of sharing access channel programming.

Law means all duly enacted and applicable federal, state, county and city laws, ordinances, codes, rules, regulations and orders.

Leased access channel means a channel designated in accordance with section 612 of the Communications Act, 47 U.S.C., § 532, for commercial use by persons unaffiliated with the franchisee.

Overbuild means a cable system constructed to serve subscribers in an area of the city actually served by an existing franchised cable system.

Person means any individual, corporation, partnership, association, joint venture, organization or legal entity of any kind, and any lawful trustee, successor, assignee, transferee or personal representative thereof, but shall not mean the city.

Service tier means a category of cable service provided by a franchisee and for which a separate charge is made by the franchisee.

State of the art shall mean that level of technical performance, equipment, components and cable services (without reference to the content of the cable service) which has been developed and demonstrated to be generally accepted and used in the cable industry, excluding "tests" involving new products offered for one year or less. Nothing herein shall be construed to require a franchisee to employ any specific transmission technology or to carry any particular programming services.

Street or streets means the surface, the air space above the surface and the area below the surface of any public street, highway, road, boulevard, concourse, driveway, freeway, thoroughfare, parkway, sidewalk, bridge, tunnel, park, waterway, dock, bulkhead, wharf, pier, court, lane, path, alley, way, drive, circle, easement, or any other public right-of-way or public place, including public utility easements dedicated for compatible uses, or any other property in which the city holds any kind of property interest or over which the city exercises any type of lawful control, and any temporary or permanent fixtures or improvements located thereon, as may be ordinarily necessary and pertinent to construct and operate a cable system.

Subscriber means any person who lawfully receives cable service delivered over the cable system. Any person who lawfully receives cable service but is not billed on an individual basis shall not be considered a subscriber for the purpose of rate notification.

Subscriber base means the total number of residential and commercial subscribers within the city. For purposes of calculating subscribers under bulk contracts, the franchisee shall count each individual unit served as one subscriber. Franchisee may use any lawful and reasonable equivalency measures provided it uses such measures uniformly for all franchise areas served by the cable system, or as provided for in a franchise agreement.

System malfunction means any cable system equipment, facility or signal failure or malfunction that results in the loss of satisfactory service on one or more channels to one or more subscribers. A malfunction is major if it affects 200 or more subscribers.

Transfer of a franchise means any transaction in which (1) any ownership or other interest in a franchisee or its cable system is transferred from one person or group of people to another person or group of people so that control of a franchisee or control of franchisee's cable system is transferred; or (2) the rights and/or obligations held by a franchisee under a franchise agreement are transferred or assigned to another person, group of people or entity. A transfer shall be considered "pro forma" only when it involves a transfer to a person, group of people or business entity that is a wholly owned or controlled affiliate or subsidiary of the franchisee or franchisee's parent entity and shall not result in a change in the ultimate parental control or ownership of the franchisee.

Two-way capability means the incorporation into a cable system of all appropriate design and engineering characteristics and features so that two-way transmission, including, but not limited to, addressability, over the cable system can be implemented and activated.

Video channel or channel means a portion of the electromagnetic frequency spectrum which is used in a cable system and which is capable of delivering a television channel, including the associated audio signal, as television channel is defined by the FCC by regulation or otherwise.

(Ord. No. 3806-04, § I, 10-25-2004)

Cross reference

Definitions generally, § 1-2.