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HomeMy WebLinkAbout11078 - Community Antenna Televisionw RESOLUTION NO. 11078 • A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH DECLARING ITS INTENTION TO HOLD A PUBLIC HEARING REGARDING VARIOUS AMENDMENTS TO MUNICIPAL CODE SECTION 5.44, "COMMUNITY ANTENNA TELEVISION" WHEREAS, the City has conducted a comprehensive review of the provisions of Municipal Code Section 5.44 - "Community Antenna Television "; and WHEREAS, it has been determined that existing Section 5.44 of the Newport Beach Municipal Code is generally out -of -date and should be revised to reflect current developments in the Community Antenna Television (hereinafter "CATV ") services field; and WHEREAS, CATV, as presently defined in Section 5.44.010(e), unreasonably limits the means and manner of transmission; and WHEREAS, CATV, as presently defined in Section 5.44.010(e), excludes "Pay TV" from its definition, although both existing franchises offer this service to their subscribers; and WHEREAS, the present definition of Section 5.44.010(f) - Subscribers, is inadequate; and WHEREAS, the term "Users" is not presently defined in Chapter 5.44 of the Newport Beach Municipal Code; and WHEREAS, the terms "Basic Subscriber Services" and "Non - Basic Subscriber Services" are not presently defined in Chapter 5.44 of the Newport Beach Municipal Code; and WHEREAS, the regulation of rates and services for "Basic Subscriber Services" and "Non -Basic Subscriber Services" should be • administered in a manner reasonable and appropriate to each type of service; and WHEREAS, the City has developed a number of proposed amendments to Municipal Code Section 5.44 to more accurately reflect current conditions while providing for a more efficient, effective and adaptable CATV system in the future; and WHEREAS, the proposed amendments are attached hereto as Exhibit "A" and incorporated herein by reference; and • WHEREAS, standards do not presently exist in the Municipal Code to allow determination of when to include, as feasible or appropriate, technological developments to existing franchise services in order that said franchise services can maintain their systems; and WHEREAS, City, pursuant to its review powers, generally and as applied to the existing Municipal Code, needs and requires information relating to the feasibility or appropriateness of particular improvements or modifications provided for in the proposed amendments; and WHEREAS, knowledge and capability presently exists, within the cable television community, sufficient to interconnect and make compatible with, other systems in adjacent cities; and WHEREAS, the creation of a regional cable system is in the best interests of the citizens of the City of Newport Beach; and WHEREAS, since "Basic Subscriber Services" and "Non -Basic Subscriber Services" as proposed to be defined, substantially differ one from the other, the regulation of each franchise rate and service should be administered in a manner and by a process which is reasonable and appropriate to each.. WHEREAS, the proposed definitions of the terms "Basic Subscriber Services" and "Non -Basic Subscriber Services" will more fully and adequately define and delineate the rights and duties of cable television companies within City territority; and WHEREAS, the proposed amended definition of CATV will specifically include microwave systems; and • WHEREAS, the proposed amended definition of CATV takes account of and specifically ennumerates the means and manner of transmission presently available and expected to be available; and 2 WHEREAS, the proposed amended definition of CATV does not • contain the exclusionary language regarding "Pay TV ", permitting, thereby, the inclusion of "Pay TV" revenues under the definition of Section 5.44.010(g) - Gross Annual Receipts; and WHEREAS, the amended definitions of "Gross Annual Receipts" and "CATV System" clarifies and more fully sets forth those matters to which these definitions shall apply; harmonizes said definitions with other sections of the chapter and the state -of- the -art means and manners of transmission; and WHEREAS, the existing provisions of Section 5.44 do not provide for the issuance of CATV locking devices to permit the exercise of parental discretion; and WHEREAS, the amendments to the definition of CATV and Gross Annual Receipts are proper and appropriate actions, since CATV's systems were prohibited, by franchise, from offering "Pay TV ", prior to Federal rule and regulation enactment permitting said offerings and, thereby, pre - empting this area from any local regulation as to program content or rates charged; and WHEREAS, the amended definition of "Subscriber" and the new definition of "Users" more fully and cogently defines said terms; and WHEREAS, the proposed section entitled "Technological Developments" provides a standard for implementation of such technological developments under the present franchises and further provides a means of securing information sufficient to make determinations as to the feasibility and appropriateness of improvements and modifications; and 3 NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Newport Beach as follows: 1. A public hearing shall be held on the 9th day of • November, 1981, at 7:30 p.m. in the City Council Chambers, City Hall, 3300 West Newport Blvd., Newport Beach, California, at which time any person desiring to comment, either in support of or in objection to the proposed amendments and may appear before the City Council and be heard thereon. 2. At said public hearing the City Council shall proceed to hear any persons interested in this matter and wishing to be heard shall pass upon all protests or objections to said proposed amendments, and its decision thereon shall be final and conclusive. Thereafter, the City Council may, by Ordinance, amend Chapter 5.44 of the Newport Beach Municipal Code. Copies of the proposed amendments shall be available for inspection at the City Clerk's office located in the City Hall, 3300 West Newport Boulevard, Newport Beach, California. 3. The City Clerk is directed to publish this Resolution at least once within fifteen (15) days of its passage and at least ten (10) days prior to the date set for public hearing in the official newspaper of the City. ADOPTED this 26th day of October, 1981. ;ATTE T: City Clerk 10/26/81 pr 4 Nlaydr 0 • PROPOSED AMENDMENTS MUNICIPAL CODE SECTION 5.44 Definitions A. Under general provisions, add the following section - "To the extent any conflict exists between these definitions and the definitions as set forth in other ordinances, these defini- tions will control." I B. "Community Antenna Television Systems" or "CATV System" shall mean a system employing antennae, microwave, wires, waveguides, coaxial cables, or other conductors, equipment or facilities designed, constructed or used for any or all of the following purposes: (1) collecting or amplifying local and distant broadcast television, satellite, microwave or radio signals and distributing and • transmitting them; (2) transmitting original cablecast programming not received through television broadcast signals; (3) transmitting television signals, film and video tape programs not received through broadcast television signals, whether or not encoded or processed to permit reception by only selected :receivers; (4) transmitting or receiving two -way signals or transmissions; (5) providing data transfer capability in any shape or form, including that of a security system or a common carrier should CATV systems ever be so defined by Federal rule or regulation; (6) transmitting or receiving all other signals whether digital, voice or audio visual. C. "Subscribers" or "Users" shall mean any person(s) or entity(.ies) receiving for any purpose any service of the Grantee's community antenna television system, including, but not limited to, the conventional cable television system service of retransmission of television broadcast, satellite, microwave or radio signals, Grantee's original cablecasting, local government, education and public access channel cablecasting and other services, such as leasing of channels, data and facsimile transmissions and police, fire and similar public service com- munications. D. "Gross Annual Receipts" shall mean any and all compensation and other consideration in any form whatsoever and any contributing grant or subsidy received directly or indirectly by Grantee from: • 0 • • (1) subscribers or users in payment for any CATV system services including television broadcast, satellite,microwave,or FM radio signals, reception or service received with- in the City or transmitted in any shape or form from the City for which local subscri- bers or users make payment,whether said signals, reception or service is included within the terms "basic subscriber services" or "non basic services" as said terms may be de- fined in the Municipal Code, as well as any in- stallation or line extension charges therefor;" (2) any other compensation for utilization of or connection to the property of Grantee used within the City including the sale, rental or provision of any equipment, parts or add - ons to be used in connection with the CATV system. (3) notwithstanding the above, gross annual receipts shall not include any taxes on services furnished by the Grantee and imposed directly on any subscribers or users by any City, State or other governmental unit and collected by the Grantee for such govern- mental unit. E. "Basic Subscriber Services" shall mean and include the delivery by the Grantee to all subscribers within the confines of its franchise area o£: (1) all signals of over the air television broadcast pursuant to FCC license or all those over the air signals which are received and transmitted in the community without the aid of a cable television system or similar apparatus; (2) all satellite signals.received and transmitted in the community by the Grantee as of the effective date of this Section; (3) all satellite signals received and transmitted in the community after the effective date of this Section with the exception of those in- cluded under Section F.(2) of "non basic services" as defined herein; (4) all public, local local origination and signals; (5) other channels, s and services, part of the basic education, and public ignals (inc .provided subscriber -2- local government, access channels Luding microwave) programs by the Grantee as service package. D F. "Non Basic Services" shall mean and include channels, signals, programs and services not provided as part of the "basic subscriber ser- vices" package as defined herein above. These shall include: (1) pay or subscription television as defined by the FCC; and radio services supplied by the Grantee; • (2) satellite or microwave signals which are offered to subscribers as optional tiered services for a separate fee or charge and which are independent of those satellite or microwave signals provided as part of the "basic subscriber services" package as defined herein, (3) advertising or commercial messages; (4) equipment and appurtenances representing technological developments and enhance ments in the field which the Grantee may, from time to time, make available to sub- scribers, provided that subscribers have the option of not acquiring said additional equipment or appurtenances and further, pro- vided that the exercise of the option not to purchase shall in no way affect a subscriber's existing service or preclude him from re- ceiving "basic subscriber services" as defined herein. II. Technological Developments A. It is the desire of the City that all CATV systems franchised to operate within the City shall maintain, operate and where feasible, modify the CATV system to insure its performance in accordance with the highest and best accepted standards of the industry. B. Whenever the Grantee, in consultation with the City, has determined that it is financially and techni- cally feasible and appropriate within the context of local needs and demands, the Grantee shall provide technical improvements and modifications to insure the operation of the CATV system in accordance with the highest and best accepted standards of the industry. Such improvements and modifications shall include, but not necessarily be limited to: -3- • 0 (1) continued availability and enhancement of national or international transmission capa- bilities via communications satellites; (2) enhancement and expansion of system channel capacity and programming; (3) improvement of public access and local pro- gramming capabilities; • (4) maintenance and improvement of system physical plant in accordance with the highest and best accepted CATV industry practices and FCG regulations; (5) implementation of two -way, interactive capa- bility; (6) provision of security systems; (7) application of technologies, such as fiber optics or other such advances in the CATV .field. C. In making determinations relative to the financial and technical feasibility or appropriateness of specific system improvements or modifications, the following factors shall be considered: (1) whether there exists a reasonable subscriber demand for the proposed improvements or modifications; (2) whether the technology associated with the proposed improvements or modifications has been tested and proven reliable; (3) whether the Grantee is financially and techni- cally able to provide the proposed improve- ments or modifications; (4) whether the provision of the proposed improve- ments or modifications will allow the Grantee a reasonable return on its investment in such proposed improvements or modifications. D. In implementing the provisions of this section, the City may, from time to time, request, and the Grantee shall provide, information relative to the feasibility or appropriateness of implementing specific system improvements or modifications deemed desirable by the City but Grantee shall not be required to in- corporate technological developments into the CATV system which do not meet the provisions of Section C. 1 -4 above. -4- • E. The Grantee shall provide the City with written notification of any system improvements or modi- fications proposed for implementation within its respective franchise area. F. Any controversy between the parties hereto in- volving the construction or application of any of the terms, covenants, or conditions of this Section, . shall on written request of one party served on the other be submitted to arbitration, and such arbi- tration shall comply with and be governed by the provisions of the California Arbitration Act, Sections 1280 through 1294.2 of the California Code of Civil Procedure. III. System Compatability and Connectibility A. It is the desire of the City that all CATV systems franchised to operate within the City shall be compatible and interconnectable with one another and with systems in adjacent cities. B. When it is financially and technically feasible within the area served, the Grantee shall nego- tiate the construction, operation and modification of its system to interconnect same with all other systems within and adjacent to the City for the purpose of sharing locally originated public and educational programming. IV. Locking Devices to Permit Exercise of Parental Discretion A. Grantee shall make available to its subscribers, upon request and for a reasonable charge, locking devices to permit parental control over program- ming. V. Regulation of Rates and Services The City Council shall establish or approve all subscri- ber,installation and other incidental rates and charges for "basic subscriber services" as defined herein, and no such rates or charges shall be changed at any time except by authority of the! Council, and upon written request of the Grantee. The rates and charges for those services included under the definition "non basic services" shall not require City Council review and approval. The Grantee shall however, provide the City with 60 -day prior written notification of any new rates or charges associated with non basic services to be provided within its franchise area. -5- •