Section 10-2 Video service provider fee.


Prior to the adoption of Ord. 19672 on 09/17/2007, Section 10-2 read as follows.

    Words not defined in this chapter or in chapter 1 of this code shall have the same meaning as in Title 47 of the United States Code, § 521 et seq., and, if not defined therein, their common and ordinary meaning.  The following definitions apply to this chapter.

         "Access," "PEG access," or "PEG use" refers to the availability of a cable system or open video system for public, education or government use (including institutional network use) by various agencies, institutions, organizations, groups, and individuals, including the city and its designated access providers, to acquire, create, and distribute programming  not under a franchisee's editorial control.

        “Affiliate” means a person that (directly or indirectly) owns or controls, is owned or controlled by, or is under common ownership or control with, another person.

        “Basic service” means any service tier regularly provided to all subscribers which includes the retransmission of local television broadcast signals.

        “Cable act” means the Cable Communications Policy Act of 1984, 47 U.S.C. § 521 et seq., as amended by the Cable Television Consumer Protection and Competition Act of 1992, as further amended by the Telecommunications Act of 1996, as further amended from time to time.

        “Cable communications system” refers to open video systems (OVS) and cable systems.

        “Cable system” means a 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 a community, but such term does not include:


    (1)    A facility that serves only to retransmit the television signals of one or more television broadcast stations;



    (2)    A facility that serves subscribers without using, or connecting to a facility that uses, any public right-of-way within the city;



    (3)    A facility of a common carrier which is subject, in whole or in part, to the provisions of Title II (Common Carriers) of the Communications Act of 1934, as amended, except that such facility shall be considered a cable system to the extent such facility is used in the transmission of video programming or cable services directly to subscribers, unless the extent of such use is solely to provide interactive on-demand services;



    (4)    Any facilities of any electric utility used solely for operating its electric utility systems; or



    (5)     An OVS that is certified by the FCC.   Any reference to a cable system includes the cable system as a whole, or any part thereof, including all facilities, pedestals, equipment cabinets, electronic equipment and devices appurtenant to the system.


    “Cable service” means:

    (1)    The one-way transmission to subscribers of (i) video programming, or (ii) other programming service, and

    (2)    Subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service.

    “Change of Control” or “Controlling Interest”  means actual working control in whatever manner exercised, including, without limitation, working control through ownership or management of the Franchise.

    “Channel” means a portion of the electromagnetic frequency spectrum which is used in a cable system or OVS and which is capable of delivering a television signal whether in an analog or digital format.  The definition does not restrict the use of any channel to the transmission of analog television signals or one way transmission.

    “City Manager” means the city manager or  the city manager’s designee.

    “Construction, operation or repair” and similar formulations of that term means the named actions interpreted broadly, encompassing, among other things, installation, extension, maintenance, replacement of components, relocation, undergrounding, grading, site preparation, adjusting, testing, make-ready, and excavation.

    "Downstream channel" means a channel designed and activated to carry a transmission from the headend to other points on a cable communications system, including interconnections.

    “FCC” means the Federal Communications Commission.

    “Franchise”  means an initial authorization, or renewal thereof, issued by the city which authorizes the construction or operation of a cable system.

    “Franchise area” means the area of the city that a franchisee is authorized to serve by the terms of its franchise or by operation of law.

    “Franchisee” means a person holding a cable communications system franchise granted by the city.

    “Gross revenues" means all revenue of any kind, nature or form in any way derived from a franchisee's operation of a cable system within the franchise area.  Gross revenues include, but are not limited to, fees charged to subscribers for basic service; fees charged to subscribers for any optional, premium, per-channel, or per-program service; monthly fees charged to subscribers for any tier of service other than basic service; installation, disconnection, re-connection, and change-in-service fees; leased channel fees; fees, payments, or other payment received as consideration from programmers for carriage of programming on the cable system; converter rentals or sales; studio rental, production equipment, and personnel fees; advertising revenues, including a per capita share of advertising revenues for advertising carried on more than one cable system; revenues from home shopping channels; sales of programming guides; and such other revenue sources as may now exist or hereafter develop.  The definition shall be interpreted in a manner that permits the city to collect the maximum franchise fee permitted by law, irrespective of the source of revenue.  Gross revenues, however, shall not include any unpaid subscriber or advertiser accounts or any sales taxes collected by a franchisee.  The amount paid as a franchise fee shall not be deducted from gross revenues unless required to be deducted under federal law.

    “Operator” when used with reference to a system, refers to a person (a) who directly or through one or more affiliates provides cable service regardless of the technology used over a cable communications system using the public rights of way and directly or through one or more affiliates owns a significant interest in such facility; or (b) who otherwise controls or is responsible for, through any arrangement, the management and operation of such a facility.

    “OVS” means an open video system.  A reference to an OVS includes pedestals, equipment enclosures (such as equipment cabinets), amplifiers, power guards, nodes, cables, fiber optics and other equipment necessary to operate the OVS, or installed in conjunction with the OVS.

    “Person” includes any individual, corporation, partnership, association, joint stock company, trust, or any other legal entity, but not the city.

    “Public rights-of-way” means the surface of and the space above and below any street or easement primarily dedicated to travel, now or hereafter existing within the city which may be properly used for the purpose of installing, maintaining, and operating a cable communications system; and any other property that a franchisee is entitled by state or federal law to use by virtue of the grant of a franchise.

    “Public Property” means any property that is owned or under the control of the city that is not a public right-of-way, including, but not limited to, buildings, parks, poles, structures in the public rights-of-way such as utility poles and light poles, or similar facilities or property owned by or leased to the city.

    “Revocation” means the city’s affirmative act of terminating a franchise.

    "School" means any accredited primary school, secondary school, college, or university.

    "Subscriber" means the city or any person who is lawfully receiving any cable service from a cable communications system.

    “Termination” means the conclusion of a franchise by any means, including, but not limited to, by expiration of its term, abandonment, or revocation.

    “Transfer”  includes any transaction in which:

    (1)    There is any change, acquisition, or transfer in the identity of the person in control of the franchisee, or any person that controls franchisee, including, without limitation, forced or voluntary sale, merger, consolidation, or receivership; or

    (2)    The rights or obligations under the franchise are sold, conveyed, transferred, assigned, encumbered (except as set forth herein) or leased, directly or indirectly, by one or more transactions to another person, whether voluntarily or by operation of law or otherwise. 

        It will be presumed, for purposes of clause (1) above, that any transfer or cumulative transfer of a voting interest by a person or group of persons acting in concert of ten percent (10%) or more of franchisee, or person that controls franchisee, or any change in the managing general partners of a franchisee is a change of control.

    “Transfer” does not include:

    (1)    A lease to a UVPP pursuant to 47 U.S.C. Sections 532 or 573;

    (2)    A lease or other right to use facilities mandated pursuant to 47 U.S.C. Section 224; or

    (3)    A pledge in trust, mortgage or other encumbrance against the facilities, or any portion thereof, given to a bona fide institutional lender in connection with a loan or other financing required to secure the construction, operation, or repair of the facilities (“loan”) provided that such loan is subject to the rights and powers of the city pursuant to the franchise and applicable law, including, without limitation, the right of the city to approve any transfer upon foreclosure.

    “Unaffiliated Video Programming Provider” or “UVPP” means any person who uses capacity on a franchised cable system to deliver cable service or other communications service (as that term is used in 47 U.S.C. Section 542(h)) to subscribers and who is not an affiliate of the franchisee.

    "Upstream channel" means a channel designed and activated to carry transmissions from a point on the cable system, other than the headend, to the headend or another point on the cable system.

    (a)    As partial compensation for use of public rights-of-way, each video service provider providing video service in the city shall pay city a video service provider fee equal to three percent (3%) of its gross revenue from providing video service in the geographic area of the city. This subsection shall remain in effect until December 21, 2007.

    (b)    As partial compensation for use of public rights-of-way, each video service provider providing video service in the city shall pay city a video service provider fee equal to five percent (5%) of its gross revenues from providing video service in the geographic area of the city.  This subsection shall be in effect on and after December 21, 2007.  

    (c)    Video service provider fee payments shall be made as required by Sec. 67.2689 RSMo.  Late payments shall accrue interest due to the city compounded monthly at one and one-half percent (1½%).

(Ord. No. 18917, § 2, 3-6-06)