016-93-Ordinance-Regulating Cable Rates-10/18/1993CITY SECRETARY
ORIGINAL COPY
ORDINANCE NO. #016-93 co-y �
CITY OF SANGER, TEXAS f,`I� ld8Y
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AN ORDINANCE REGULATING THE RATES CHARGED BY CABLE
TELEVISION OPERATORS WITHIN THE CITY OF
SANGER , TEXAS, FOR THE BASIC SERVICE TIER AND
RELATED EQUIPMENT AND INSTALLATION CHARGES, IN ACCORDANCE
WITH THE CABLE TELEVISION CONSUMER PROTECTION AND
COMPETITION ACT OF 1992, PUBLIC LAW NO. 102-385;
PROVIDING DEFINITIONS; REQUIRING NOTICE OF BASIC TIER
AVAILABILITY; REQUIRING CERTAIN INFORMATION ON CABLE
MONTHLY BILLS; PROHIBITING NEGATIVE OPTION BILLING;
PROVIDING FOR ITEMIZED SUBSCRIBER BILLS; PROVIDING
FORMULA FOR CALCULATION OF BASIC SERVICE TIER RATES AND
EQUIPMENT AND INSTALLATION CHARGES; PROVIDING FOR COST
ACCOUNTING AND COST ALLOCATION REQUIREMENTS; PROVIDING
FOR PASS -THROUGH OF COSTS OF SATISFYING FRANCHISE
REQUIREMENTS; PROVIDING GUIDELINES FOR CERTAIN CUSTOMER
CHARGES; REQUIRING NOTICE OF PROPOSED RATE INCREASES;
PROVIDING FOR REVIEW OF BASIC CABLE SERVICE AND EQUIPMENT
RATES; PROVIDING PROTECTIONS FOR PROPRIETARY INFORMATION;
PLACING BURDEN OF PROOF ON THE CABLE OPERATOR; PROVIDING
FOR WRITTEN DECISIONS BY THE CITY; PROVIDING FOR POSSIBLE
RATE REDUCTIONS AND REFUNDS; PROVIDING FOR SEVERABILITY
AND EFFECTIVE DATE; AND ORDAINING OTHER PROVISIONS
RELATED TO THE SUBJECT MATTER HEREOF.
WHEREAS, the Cable Television Consumer Protection and
Competition Act of 1992, Public Law No. 102-385 ("Cable Act of
1992") became law on October 5, 1992; and
WHEREAS, the Cable Act of 1992 provides that municipalities
may regulate the rates charged by cable operators for the basic
service tier and related equipment charges to subscribers within
the corporate limits of the municipality if the operator is not
subject to effective competition; and
WHEREAS, the City of Sanger , in accordance with the
Cable Act of 1992 and regulations adopted thereunder by the Federal
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GSECREI'A
Communications Commission (the "FCC"), filed the appropr'SQQyY
documents with the FCC to obtain certification to regulate the
basic service tier rates and related equipment and installation
charges of all cable operators within the City; and
WHEREAS, in order to be able to regulate the basic service
tier rates and related equipment and installation charges, it is
necessary for the City to adopt the following regulations in
conformance with the regulations of the FCC; and
WHEREAS, it is the intent of the City to regulate cable TV
operators within the City to the full extent authorized by the
Cable Act of 1992;
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY
OF SANGER , TEXAS:
GENERAL PROVISIONS
Section 1. The following regulations are hereby adopted and shall
be known as the Cable TV Regulations 'for the City of
Sanger , Texas.
Section 2. Definitions.
Unless otherwise apparent, the following definitions shall
apply in this ordinance:
(a) Affiliated programmer. An affiliated programmer is a
programmer with an ownership interest of 5 percent or more
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including general partnership interests, direct ownership
interests, and stock interests in a corporation where such
stockholders are officers or directors or who directly or
indirectly own 5 percent or more of the outstanding stock, whether
voting or nonvoting. Such interests include limited partnership
interests of 5 percent or greater.
(b) Basic service tier. The basic service tier shall, at a
minimum, include all signals of domestic television broadcast
stations provided to any subscriber (except a signal secondarily
transmitted by satellite carrier beyond the local service area of
such station, regardless of how such signal is ultimately received
by the cable system), any public, educational, and governmental
programming required by the franchise to be carried on the basic
tier, and any additional video programming signals or service added
to the basic tier by the cable operator.
(c) Cable operator. Cable operator means any person or group
of persons (A) who provides cable service over a cable system
within the City under a franchise issued by the City, and who
directly or through one or more affiliates owns a significant
interest in such cable system, or (B) who otherwise controls or is
responsible for, through any arrangement, the management and
operation of such a cable system.
(d) Cable programming service. Cable programming service
includes any video programming provided over a cable system,
regardless of service tier, including installation or rental of
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equipment used for the receipt of such video programming, other
than:
(1) Video programming carried on the basic service tier as
defined in this section;
(2) Video programming offered on a pay -per -channel or pay -
per -program basis; or
(3) A combination of multiple channels of pay -per -channel or
pay -per -program video programming offered on a multiplexed or
time -shifted basis so long as the combined service:
(i) Consists of commonly -identified video programming;
and
(ii) is not bundled with any regulated tier of service.
(e) City. The City of Sanger , Texas.
(f) Commission. The Federal Communications Commission.
(g) Small system. A small system is a cable television
system that serves fewer than 1,000 subscribers. The service area
of a small system is determined by the number of subscribers that
are served by a system's principal headend, including any other
headends or microwave receive sites that are technically integrated
to the system's principal headend.
Section 3. Information to be provided by cable operator on
monthly subscriber bills.
A cable operator must provide the following information to
subscribers on monthly bills:
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(a) A statement substantially the same as the following:
"The basic service tier rates and related equipment and
installation charges are regulated by the City. If you have
any questions or comments regarding these rates, you may call
or write the City at [address and telephone number]"; and
(b) The FCC community unit identifier for the cable
system.
Section 4. Negative option billing.
A cable operator shall not charge a subscriber for any service
or equipment that the subscriber has not affirmatively requested
by name. This provision, however, shall not preclude the addition
or deletion of a specific program from a service offering, the
addition or deletion of specific channels from an existing tier of
service, or the restructuring or division of existing tiers of
service that do not result in a fundamental change in the nature
of an existing service or tier of service, provided that such
change is otherwise consistent with applicable regulations. A
subscriber's failure to refuse a cable operator's proposal to
provide such service or equipment is not an affirmative request for
service or equipment. A subscriber's affirmative request for
service or equipment may be made orally or in writing.
Section 5. Subscriber bill itemization.
(a) Cable operators may identify as a separate line item of
each regular subscriber bill the following:
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fee.
(1) The amount of the total bill assessed as a franchise
( 2 ) The amount of the total bill assessed to satisfy any
requirements imposed on the cable operator by the franchise
agreement to support public, educational, or governmental
channels or the use of such channels.
(3) The amount of any other fee, tax, assessment, or
charge of any kind imposed by any governmental authority on
the transaction between the operator and the subscriber. In
order for a governmental fee or assessment to be separately
identified under this section, it must be directly imposed by
a governmental body on a transaction between a subscriber and
an operator.
(b) The charge identified on the subscriber bill as the total
charge for cable service should include all fees and costs itemized
pursuant to this section.
Section 6. Rates for the basic service tier.
(a) Basic service tier rates. Basic service tier rates are
subject to regulation by the City in order to assure that they are
in compliance with the requirements of 47 U.S.C. S 543. Rates that
are demonstrated, in accordance with this ordinance, not to exceed
the "Initial Permitted Per Channel Charge" or the "Subsequent
Permitted Per Channel Charge" as described below, or the equipment
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charges as specified in Section 7, will be accepted as in
compliance. The maximum monthly charge per subscriber for the
basic service tier offered by a cable operator shall consist of a
permitted per channel charge multiplied by the number of channels
on the tier, plus a charge for franchise fees. The maximum monthly
charges for the basic service tier shall not include any charges
for equipment or installations. Charges for equipment and
installations are to be calculated separately pursuant to Section
7 of this ordinance.
(b) Initial Permitted Per Channel Charge. (1) For purposes
of this section, the initial date of regulation for the basic
service tier shall be the date on which the City gives written
notice to the cable operator that (A) the City has been certified
by the Commission to regulate rates for the basic service tier and
(B) this ordinance has been adopted by the City.
(2) For purposes of this section, rates "in effect on the
initial date of regulation" or "in effect on September 30, 1992,"
shall be the rates charged to subscribers for service received on
that respective date.
(3) The permitted per channel charge on the initial date of
regulation shall be, at the election of the cable operator, either:
(i) A charge determined pursuant to a cost -of -service
proceeding; or
(ii) The charge specified in subparagraphs (A), (B), or
(C) of this paragraph, as applicable;
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(A) If the operator's per channel charge for the
basic service tier and equipment in effect on the date
of initial regulation is equal to or below the benchmark
per channel charge, as adjusted forward for inflation
from September 30, 1992, to the date of initial
regulation, then the permitted per channel charge shall
be the per channel charge in effect on the date of
initial regulation, adjusted for equipment.
(B) If: (1) The operator's per channel charge for
the basic service tier and equipment in effect on the
date of initial regulation is above the benchmark per
channel charge, as adjusted forward for inflation from
September 30, 1992, until the initial date of regulation,
and:
(2) The operator's per channel charge for
the basic service tier and equipment in effect on
September 30, 1992, was above the benchmark per channel
charge, then the permitted per channel charge is nine -
tenths of the per channel charge in effect on September
30, 1992, but no lower than the benchmark per channel
charge, additionally adjusted for inflation from
September 30, 1992, to the initial date of regulation,
for equipment, and for any changes in the number of
channels offered on the basic service tiers.
(C) If: (1) The operator's per channel charge for
the basic service tier and equipment in effect on the
,u,
date of initial regulation is above the benchmark per
channel charge, as adjusted forward for inflation from
September 30, 1992, until the initial date of regulation,
and:
(2) The operator's per channel charge for
the basic service tier and equipment in effect on
September 30, 1992, was below the benchmark per channel
charge, then the permitted per channel charge is the
benchmark rate per channel adjusted for inflation from
September 30, 1992, to the initial date of regulation,
for equipment, and for any changes in the number of
channels offered on the basic service tier.
(c) Subsequent Permitted Per Channel Charge. After the
initial date of regulation, the permitted channel charge for the
basic service tier shall be, at the election of the cable operator,
either:
(1) A per channel rate determined pursuant to a cost -
of -service showing, or:
(2) The prior permitted per channel charge previously
approved by the City, adjusted for inflation and external
costs in accordance with the price cap requirements set forth
in paragraph (d) of this section.
(d) Price cap requirements -- (1) Inflation
adjustments. Permitted per channel charges for the basic service
tier may be adjusted periodically on account of inflation.
Adjustments to permitted per channel charges on account of
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inflation shall be based on changes in the Gross National Product
Price Index ("GNP -PI") published by the Bureau of Economic Analysis
of the United States Department of Commerce.
(2) External costs. Permitted per channel charges for the
basic service tier may also be adjusted for changes in external
costs measured on a per channel per subscriber basis. To the
extent external cost increases are greater.or less than the GNP -
PI for the relevant period, the per channel charge will be adjusted
accordingly. Per channel charges may not be increased if external
costs other than franchise fees increase at a rate less than
inflation. Permitted per channel charges also shall be decreased
on account of external costs to the extent such costs decrease from
previous levels.
(i) Categories. External costs shall consist of costs
in the following categories:
(A) State and local taxes applicable to provision
of cable television service;
(B) Franchise fees;
(C) Costs of complying with franchise requirements,
including costs of providing public, educational, and
governmental access channels as required by the City;
(D) Retransmission consent fees; and
(E) Programming costs.
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(ii) The permitted per channel charge for the basic
service tier shall be adjusted on account of programming costs
and retransmission consent fees only for programming or
broadcast signals offered on that tier.
(iii) The permitted per channel charge shall not be
adjusted for costs of retransmission consent fees or charges
in those fees incurred prior to October 6, 1994.
(iv) The starting date for adjustments on account of
external costs for the basic service tier shall be the initial
date of regulation or 180 days from September 1, 1993, if the
initial date of regulation occurs on or after 180 days from
September 1, 1993.
(v) Changes in franchise fees shall not result in an
adjustment to permitted per channel charges, but rather shall
be calculated separately as part of the maximum monthly charge
per subscriber for the basic service tier.
(vi) Adjustments to permitted per channel charges on
account of increases in costs of programming obtained from
affiliated programmers shall be the lesser of actual increases
or the previous permitted rate level increased by the amount
of inflation.
(vii) Adjustments to permitted per channel charges on
account of increases in costs of programming shall be further
adjusted to reflect any revenues received by the operator from
the programmer.
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Section 7. Rates for equipment and installation used to receive
the basic service tier.
(a) Scope. The equipment regulated under this section
consists of all equipment in a subscriber's location that is used
to receive the basic service tier, regardless of whether such
equipment is additionally used to receive other tiers of regulated
programming service and/or unregulated service. Such equipment
shall include, but is not limited to:
(1) Converter boxes;
(2) Remote control units;
(3) Connections for additional television receivers; and
(4) Other cable home wiring.
Subscriber charges for such equipment shall not exceed charges
based on actual costs in accordance with the requirements set forth
below.
(b) Unbundling. A cable operator shall establish rates for
remote control units, converter boxes, other customer equipment,
installation, and additional connections separate from rates for
basic service tier. In addition, the rates for such equipment and
installations shall be unbundled one from the other.
(c) Equipment basket. A cable operator shall establish an
Equipment Basket, which will include all costs associated with
providing customer equipment and installation under this section.
Equipment Basket costs shall be limited to the direct and indirect
material and labor costs of providing, leasing, installing,
repairing, and servicing customer equipment, as determined in
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accordance with the cost accounting and cost allocation
requirements of Section 8. The Equipment Basket shall not include
general administrative overhead including general marketing
expenses. The Equipment Basket may include a reasonable profit.
(d) Hourly service charge. A cable operator shall establish
charges for equipment and installation using the Hourly Service
Charge ("HSC") methodology. The HSC shall equal the operator's
annual Equipment Basket costs, excluding the purchase cost of
customer equipment, divided by the total person hours involved in
installing, repairing, and servicing customer equipment during the
same period. The purchase cost of customer equipment shall include
the cable operator's invoice price plus all other costs incurred
with respect to the equipment until the time it is provided to the
customer. The HSC is calculated according to the following
formula:
HSC =
M
Where, EB
= annual
Equipment Basket
Cost;
CE
= annual
purchase cost of
all customer equipment; and
H =
person
hours involved in
installing and repairing
equipment per year.
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(e) Installation charges. Installation charges shall be
either:
(1) The HSC multiplied by the actual time spent on each
individual installation; or
(2) The HSC multiplied by the average time spent on a
specific type of installation.
(f) Remote charges. Monthly charges for rental of a remote
control unit shall consist of the average annual unit purchase cost
of the type of remote leased, including acquisition price and
incidential costs such as sales tax, financing and storage up to
the time it is provided to the customer, added to the product of
the HSC times the average number of hours annually repairing or
servicing a remote, divided by 12 to determine the monthly lease
rate for a remote according to the following formula:
UCE+(HSC X HR)
Monthly =
Charge
12
Where, HR = average hours repair per year; and
UCE = average annual unit cost of remote.
Separate charges shall be established for each significantly
different type of remote control unit.
(g) Other equipment charges. The monthly charges for rental
of converter boxes and other customer equipment shall be calculated
in.the same manner as for remote control units. Separate charges
shall be established for each significantly different type of
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converter box and each significantly different type of other
customer equipment.
(h) Additional connection charges. The costs of installation
and monthly use of additional connections shall be recovered as
charges associated with the installation and equipment cost
categories, and at rate levels determined by the actual cost
methodology presented in the foregoing paragraphs (e), (f), and (g)
of this section. An operator may recover additional programming
costs and the costs of signal boosters on the customers premises,
if any, associated with the additional connection as a separate
monthly unbundled charge for additional connections.
(i) Charges for equipment sold. A cable operator may sell
customer premises equipment to a subscriber. The equipment price
shall recover the operator's cost of the equipment, including costs
associated with storing and preparing the equipment for sale up to
the time it is sold to the customer, plus a reasonable profit. An
operator may sell service contracts for the maintenance and repair
of equipment sold to subscribers. The charge for a service
contract shall be the H5C times the estimated average number of
hours for maintenance and repair over the life of the equipment.
(j) Promotions. A cable operator may offer equipment or
installation at charges below those determined under paragraphs (e)
through (g) of this section, as long as those offerings are
reasonable in scope in relation to the operator's overall offerings
in the Equipment Basket and not unreasonably discriminatory.
Operators may not recover the cost of a promotional offering by
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increasing charges for other Equipment Basket elements, or by
increasing programming service rates above the maximum monthly
charge per subscriber prescribed by this ordinance. As part of
a general cost -of -service showing, an operator may include the cost
of promotions in its general system overhead costs.
(k) Franchise fees. Equipment charges may include a properly
allocated portion of franchise fees paid to the City.
Section 8. Cost accounting and cost allocation requirements.
(a) Applicability. The requirements of this section are
applicable for purposes of rate adjustments on account of external
costs and for cost -of -service showings.
(b) Generally accepted accounting principles. Cable
operators shall maintain their accounts in accordance with
generally accepted accounting principles, except as otherwise
directed by the City.
(c) Accounts required. Cable operators shall maintain
accounts in a manner that will enable identification of appropriate
costs and application of the City's cost assignment and allocation
procedures, to cost categories necessary for rate adjustments due
to changes in external costs and for cost -of -service showings.
Such categories shall be sufficiently detailed and supported to
permit verification and audit against the company's accounting
records.
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(d) Accounting level. Except to the extent indicated below,
cable operators shall aggregate expenses and revenues at either the
franchise, system, regional, or company level in a manner
consistent with practices of the operator as of April 3,.1992.
However, in all events, cable operators shall identify at the
franchise level their costs of franchise requirements, franchise
fees, local taxes, and local programming.
(e) Cost Allocation Requirements.
(1) For purposes of establishing expenses at the
franchise level, cable operators shall allocate expenses and
revenues aggregated at higher levels to the franchise level
based on the ratio of the total number of subscribers served
at the franchise level to the total number of subscribers
served at the higher level.
(2) Except to the extent indicated below, all categories
of costs allocated to, or identified at, the franchise level
shall be allocated to the basic service tier based on the
ratio of channels in the basic tier to the total number of
channels offered in the franchise area, including nonregulated
and leased commercial access channels. These costs shall be
allocated to each tier of cable programming services based on
the ratio of channels in that tier to the total number of
channels offered in the franchise area.
(3) Costs of programming and retransmission consent
fees, however, shall be allocated only to the tier on which
the programming or broadcast signal at issue is offered.
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(4) Costs of franchise fees shall be allocated among
equipment and installations, program service tiers, and
subscribers in a manner that is most consistent with the
methodology of assessment of franchise fees by the City.
(5) Costs of public, educational, and governmental
access channels carried on the basic tier shall be directly
assigned to the basic tier where possible.
(f) Common costs. Expenses which cannot be assigned to any
single expense or service category shall be described as common
costs. Common costs shall be allocated to expense categories as
follows:
(1) Wherever possible, common costs are to be allocated
to service cost categories based on direct analysis of the
origin of the costs themselves.
(2) When direct analysis is not possible, common costs
shall, if possible, be allocated to service cost categories
based on an indirect, cost -causative linkage to other costs
directly assigned or allocated to the service cost category.
(3) When neither direct nor indirect measures of cost
allocation can be found, common costs shall be allocated to
each service cost category based on the ratio of all costs
directly assigned and attributed to a service cost category
over total costs directly assignable and attributable.
(g) Unrelated expenses and revenues. Cable operators shall
exclude from cost categories used to develop rates for the
provision of basic service tier and equipment, any direct or
s
indirect expenses and revenues not related to the provision of such
services. Common costs of providing basic service tier and
equipment, and unrelated activities shall be allocated between them
in accordance with paragraph (f) of this section.
(h) Part-time channels. In situations where a single channel
is divided on a part-time basis and is used to deliver service
associated with different tiers or with pay per channel or pay per
view service, a reasonable and documented allocation of that
channel between services shall be required along with the
associated revenues and costs.
Section 9. Costs of franchise requirements.
(a) The costs of satisfying franchise requirements to support
public, educational, and governmental channels shall consist of the
sum of:
(1) All per channel costs for the number of channels
used to meet franchise requirements for public, educational,
and governmental channels;
(2) Any direct costs of meeting such franchise
requirements; and
(3) A reasonable allocation of general and
administrative overhead.
(b) The costs of satisfying any other requirement under the
franchise shall consist of the direct and indirect costs, including
a reasonable allocation of general and administrative overhead.
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Section 10. Charges for customer changes.
(a) This section shall govern charges for any changes in
service tiers or equipment provided to the subscriber that are
initiated at the request of a subscriber after initial service
installation.
(b) The charge for customer changes in service tiers effected
solely by coded entry on a computer terminal or by other similarly
simple methods shall be a nominal amount, not exceeding actual
costs, as defined in paragraph (c) of this section.
(c) The charge for customer changes in service tiers or
equipment that involve more than coded entry on a computer or other
similarly simple method shall be based on actual cost. The actual
cost charge shall be either the HSC, as defined in Section 6 of
this ordinance, multiplied by the number of person hours needed to
implement the change, or the HSC multiplied by the average number
of person hours involved in implementing customer changes.
(d) A cable operator may establish a higher charge for
changes effected solely by coded entry on a computer terminal or
by other similarly simple methods, subject to approval by the
City, for a subscriber changing service tiers more than two times
in a twelve month period, except for such changes ordered in
response to a change in price or channel line-up. If a cable
system adopts such an increased charge, the cable system must
notify all subscribers in writing that they may be subject to such
a charge for changing service tiers more than the specified number
of times in any twelve month period.
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(e) Downgrade charges that are the same as, or lower than,
upgrade charges are evidence of the reasonableness of such
downgrade charges.
(f) For 30 days after notice of retiering or rate increases,
a customer may obtain changes in service tiers at no additional
charge.
REGULATORY PROVISIONS
Section 11. Notification of proposed rate increase.
(a) A cable operator shall provide written notice to a
subscriber of any increase in the price to be charged for the basic
service tier or associated equipment at least 30 days before any
proposed increase is effective. The notice shall include a
provision stating that protests to such prices may be filed with
the City at Sanger, P. O. Box 578, Sangerraddress of City]. The
notice shall also include a statement that such protests must be
filed with the City no later than 30 days after the notice is
received by the subscriber.
(b) In'addition to the notice required in paragraph (a), the
cable operator shall give the City a minimum of 30 days advance,
written notification of any changes in rates for cable programming
service or associated equipment.
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Section 12. Initiation of review of basic cable service and
equipment rates.
A cable operator shall file its schedule of rates for the
basic service tier and associated equipment with the City within
30 days of receiving written notification from the City that the
City has been certified by the Commission to regulate rates for
the basic service tier, or by November 15, 1993, whichever is
later.
Section 13. City review of basic cable rates and equipment
costs.
(a) After a cable operator has submitted to the City for
review its existing rates for the basic service tier and associated
equipment costs, or a proposed increase in these rates (including
increases in the baseline channel charge that results from
reductions in the number of channels in a tier) , the existing rates
will remain in effect or the proposed rates will become effective
after 30 days from the date of submission to the City. Provided,
however, that the City may toll this 30-day deadline for an
additional time by issuing a brief written order as described in
paragraph (d) within 30 days of the rate submission explaining that
it needs additional time to review the rates. The City may, at any
time, require the cable operator to produce additional information,
including proprietary information, that the City deems necessary
in order to make a rate determination. If proprietary information
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is provided, the provisions of Section 14 hereof will apply to such
information.
(b) Upon receipt by the City, the cable operator's submittal
shall be available for public inspection and copying. Comments on
the submittal by interested persons may be submitted in writing or
orally at a City Council meeting held at any time during the
initial 30-day review period. Written comments shall be addressed
to the City Administrator [ the City Administrator, City
Secretary, Mayor, or cable officer], and must be received prior to
the end of the 30-day review period.
(c) If a cable operator submits a proposed rate increase for
review that appears to exceed the presumptively reasonable level
and does not include a cost -of -service showing to justify the rate,
the City will permit the cable operator to cure this deficiency and
submit a cost -of -service showing.
(d) If the City is unable to determine, based upon the
material submitted by the cable operator, that the existing or
proposed rates are within the permitted basic service tier charge
or actual cost of equipment as defined in Sections 6 and 7 hereof,
or if a cable operator has submitted a cost -of -service showing
pursuant to Sections 8 and 15 hereof, seeking to justify a rate
above the basic service tier charge as defined in Sections 6 and
7 hereof, the City may toll the 30-day deadline in paragraph (a)
of this section to request and/or consider additional information
or to consider the comments from interested parties as follows:
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(1) For an additional 90 days in cases not involving
cost -of -service showings; or
(2) For an additional 150 days in cases involving cost -
of -service showings.
The order tolling the effective date of the proposed rate
shall explain why the City could not make the necessary
determination, and it shall also provide the cable operator an
opportunity to cure any deficiencies in its original filing.
During the additional time periods provided in this paragraph,
comments from interested persons may be submitted in writing, as
provided in paragraph (b) of this section, or orally during at
least one City Council meeting during the period of abatement.
(e) If the City has availed itself of the additional 90 or
150 days permitted in paragraph (c) of this section, and has taken
no action within these additional time periods, then the proposed
rates will go into effect at the end of the 90 or 150 day periods,
or existing rates will remain in effect at such times, subject to
refunds if the City subsequently issues a written decision
disapproving any portion of such rates. Provided, however, that
in order to order refunds, the City must have issued a brief
written order to the cable operator by the end of the 90 or 150-
day period permitted in paragraph (c) of this section directing the
operator to keep an accurate account of all amounts received by
reason of the rate in issue and on whose behalf such amounts were
paid.
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Section 14. Proprietary information.
( a ) If the City has required the cable operator to produce
proprietary information under the provisions of this ordinance, the
cable operator may submit therewith a request that such information
not be made routinely available for public inspection. A copy of
the request shall be attached to and shall cover all of the
materials to which it applies and all copies of those materials.
If feasible, the materials to which the request applies shall be
physically separated from any materials to which the request does
not apply. If this is not feasible, the portion of the materials
to which the request applies shall be identified.
(b) Each such request shall contain a statement of the
reasons for withholding the materials from inspection and of the
facts upon which those reasons are based. If the request is that
the materials be withheld from inspection for a limited period of
time, that period shall be specified.
(c) Casual requests which do not comply with the requirements
of paragraphs (a) and (b) of this section will not be considered.
(d) Upon receipt of a request in compliance with paragraphs
(a) and (b), the City will not grant routine public access to the
materials. A letter to that effect will be placed in a public file
in lieu of the materials withheld from public inspection.
(e) Provided, however, if a written request for the materials
is received by the City pursuant to the Open Records Act, Chapter
552, Texas Government Code, the City will notify the person
providing the materials of the request for the materials. If the
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person providing the materials requests the City to do so, the City
will request an opinion from the Attorney General, pursuant to the
Open Records Act, regarding the public availability of the
materials. If the person providing the materials does not request
the City to request an opinion from the Attorney General, the City
may, at its option, either request such an opinion or provide the
materials to the public.
(f) If the Attorney General issues an opinion or letter
ruling requiring the City to make the materials available to the
public, the materials will be made available for public inspection.
(g) If no request for confidentiality is submitted, the City
assumes no obligation to consider the need for non -disclosure.
Section 15. Burden of proof.
(a) A cable operator has the burden of proving that its
existing or proposed rates for basic service and associated
equipment comply with 47 U.S.C. S 543, and Sections 6 and 7 hereof.
(b) For an existing or a proposed rate for basic service tier
or associated equipment that is within the permitted tier charge
and actual cost of equipment as set forth in Sections 6 and 7, the
cable operator must submit the appropriate FCC form to the City.
( c ) For an existing or a proposed rate for basic service tier
that exceeds the permitted tier charge as set forth in Sections 6
and 7 hereof, the cable operator must submit to the City a cost -
of -service showing to justify the proposed rates. The cost -of -
service showing must in conformance with Accounting and Cost
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Allocation Requirements as adopted and amended by the Commission
for cable system operators.
Section 16. Small systems.
Option 1: (a) A small system, as defined in Section 2, may certify
that the small system's initial rates for basic service and
associated equipment comply with Section 6 hereof. A certification
by a small system under this Section shall be filed with the City
within 30 days of receiving written notification from the City that
the City has been certified by the Commission to regulate rates for
the basic service tier. The certification shall be in writing,
shall be signed by the General Manager of the system, and shall be
verified.
(b) Such certification shall be subject to verification by
the City on its own motion or upon complaint by a subscriber. The
City may request additional information from the operator in order
to verify the certification. In the event proprietary information
is requested by the City, the provisions of Section 14 hereof shall
control the availability of such information to the public.
( c ) As used in this section, "initial rates" shall mean those
rates charged by the small system operator on the date on which the
City gives written notice to the cable operator that (A) the City
has been certified by the Commission to regulate rates for the
basic service tier and (B) this ordinance has been adopted by the
City.
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(d) If the City determines that the small system's
certification is in error, it shall so notify the small system
operator and shall require the small system to comply with all
filing requirements for non -small systems in this ordinance.
(e) Subsequent rate filings by a small system operator shall
comply in all respects with the provisions of this ordinance.
Option 2 : ( a ) A small system, as defined in Section 2, may certify
that the small system's rates for basic service and associated
equipment, and subsequent rate increases, comply with Section 6
hereof. A certification by a small system under this Section for
its initial rates shall be filed with the City within 30 days of
receiving written notification from the City that the City has been
certified by the Commission to regulate rates for the basic service
tier. Certifications for subsequent rate increases shall be filed
with the City at the same time that notice is given to the small
system's subscribers of the proposed rate increase, in conformance
with Section 11 hereof. All certifications shall be in writing,
shall be signed by the General Manager of the system, and shall be
verified.
(b) Such certification shall be subject to verification by
the City on its own motion or upon complaint by a subscriber. The
City may request additional information from the operator in order
to verify the certification. In the event proprietary information
is requested by the City, the provisions of Section 14 hereof shall
control the availability of such information to the public.
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(c) If the City determines that the small system's
certification is in error, it shall so notify the small system
operator and shall require the small system to comply with all
filing requirements for non -small systems in this ordinance.
Section 17. Written decision.
(a) The City shall issue a written decision in a ratemaking
proceeding whenever it disapproves an initial rate for the basic
service tier or associated equipment in whole or in part,
disapproves a request for a rate increase in whole or in part, or
approves a request for an increase in whole or in part over the
objections of interested parties. The City is not required to
issue a written decision that approves an unopposed existing or
proposed rate for the basic service tier or associated equipment.
(b) Public notice shall be given of any written decision
required in paragraph (a) of this section, by making the text of
any written decision available to the public, and by publication
of the decision one time in the official newspaper of the City.
Section 18. Reduction of Rates; Prescription of Rates.
(a) The City may order a cable operator to implement a
prospective reduction in basic service tier or associated equipment
rates where necessary to bring rates into compliance with the
standards set forth in Sections 6 and 7 hereof.
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(b) The City may prescribe a reasonable rate for the basic
service tier or associated equipment after it determines that a
proposed rate is unreasonable.
Section 19. Refunds.
(a) The City may order a cable operator to refund to
subscribers that portion of previously paid rates determined by the
City to be in excess of the permitted tier charge or above the
actual cost of equipment, unless the operator has submitted a cost -
of -service showing which justifies the rate charged as reasonable.
Before ordering a cable operator to refund previously paid rates
to subscribers, the City shall give the operator notice and
opportunity to comment. The operator's opportunity to comment upon
the proposed refunds may be at any meeting of the City Council
during the City's period of review of the operator's rates. If the
City has extended its review period under Section 13, and has
issued an accounting order under Section 13(e), then the operator,
prior to refunds being ordered, may request an opportunity to
appear before the City Council to comment upon the proposed
refunds.
(b) An operator's liability for refunds is limited to a one-
year period, except that an operator that fails to comply with a
valid rate order issued by the City shall be liable for refunds
commencing from the effective date of such order until such time
as it complies with such order.
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(c) The refund period shall run as follows:
(1) From the date the operator implements a prospective
rate reduction back in time to September 1, 1993, or one year,
whichever is shorter.
(2) From the date the City issues an accounting order
pursuant to Section 13(d) hereof, and ending on the date the
operator implements a prospective rate reduction ordered by
the City or one year, whichever is shorter.
(d) The cable operator, in its discretion, may implement a
refund in the following manner:
(1) By returning overcharges to those subscribers who
actually paid the overcharges, either through direct payment
or as a specifically identified credit to those subscribers'
bills; or
(2) By means of a prospective percentage reduction in
the rates for the basic service tier or associated equipment
to cover the cumulative overcharge. This shall be reflected
as a specifically identified, one-time credit on prospective
bills to the class of subscribers that currently subscribe to
the cable system.
(e) Refunds shall include interest computed at. applicable
rates published by the Internal Revenue Service for tax refunds and
additional tax payments.
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Section 20. Severability.
If any section, sentence, or clause of this ordinance is for
any reason held to be illegal, ultra vires, or unconstitutional,
such invalidity shall not affect the validity of the remaining
portions of this ordinance.
Section 21. Governing Law; Venue.
This ordinance shall be construed under and in accordance with
the laws of the State of Texas [and the City Charter] and City
Codes to the extent that such [Charter and] Codes are not in
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conflict with or in violation of the Constitution and laws of the
United States or the State of Texas. All obligations of the
parties hereunder are performable in Denton County, Texas.
In the event that any proceeding is brought to enforce the terms
of this ordinance, the same shall be brought in Denton
County, Texas.
Section 22. Compliance with Open Meetings Act.
It is hereby officially found and determined that the meeting
at which this ordinance is passed is open to the public as required
by law and that public notice of the time, place, and purpose of
said meeting was given as required, in accordance with Chapter 551,
Texas Government Code.
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APPROVED this 18 day of
ATTEST:
City Secretary
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October
MAYOR
, A.D. 1993.