07 LC 36
0444
House
Bill 227
By:
Representatives Lewis of the
15th,
Martin of the
47th,
Stephens of the
164th,
Ehrhart of the
36th,
Watson of the
91st,
and others
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Title 36 of the Official Code of Georgia Annotated, relating to local
government, so as to provide for the expedited franchising of cable and video
services by the Secretary of State; to provide for a short title; to provide for
definitions; to provide franchise options for cable service providers and video
service providers; to provide a process for the issuance of a state franchise;
to provide for transfers, modifications, and terminations of a state franchise;
to provide for franchise fees; to require customer service; to provide for
public, educational, and governmental programming under a state franchise; to
provide a service outlet to municipalities and counties and complimentary basic
cable service or video service to public schools and public libraries over such
service outlet; to provide certain limitations on requirements that may be
imposed upon holders of a state franchise; to prohibit discrimination towards
potential residential subscribers; to provide for related matters; to provide an
effective date; to repeal conflicting laws; and for other purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
Title
36 of the Official Code of Georgia Annotated, relating to local government, is
amended by adding a new chapter to read as follows:
"CHAPTER
76
36-76-1.
This
chapter shall be known and may be cited as the 'Consumer Choice for Television
Act.'
36-76-2.
As
used in this chapter, the term:
(1)
'Advertising and home shopping services revenues' means the amount of a cable
service provider or video service provider´s nonsubscriber revenues from
advertising disseminated through cable service or video service and home
shopping services. The amount of such revenues that are allocable to a
municipality or county is equal to the total amount of the cable service
provider or video service provider´s revenue received from such advertising
and home shopping services multiplied by the ratio of the number of such
provider´s subscribers located in such municipality or in the
unincorporated area of such county to the total number of such provider´s
subscribers. Such ratio shall be based on the number of such provider´s
subscribers as of January 1 of the current year, except that in the first year
in which services are provided, such ratio shall be computed as of the earliest
practical date.
(2)
'Affected local governing authority' means any municipal governing authority
when any part of such municipality is located within the service area and any
county governing authority when any part of the unincorporated area of such
county is located within the service area.
(3)
'Cable service' means 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 shall not include any video programming
provided by a provider of commercial mobile service as defined in 47 U.S.C.
Section 332(d).
(4)
'Cable service provider' means any person or group of persons:
(A)
Who provides cable service over a cable system and 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.
(5)
'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 shall not
include:
(A)
A facility that serves only to retransmit the television signals of one or more
television broadcast stations;
(B)
A facility that serves subscribers without using any public right of way as
defined in this Code section;
(C)
A facility of a common carrier which is subject, in whole or in part, to the
provisions of 47 U.S.C. Sections 201 through 276, except that such facility
shall be considered a cable system, other than for purposes of 47 U.S.C. Section
541(c), 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;
(D)
An open video system that complies with 47 U.S.C. Section 573; or
(E)
Any facility of any electric utility used solely for operating such electric
utility system.
(6)
'Franchise' means an initial authorization or renewal of an authorization issued
by a franchise authority, regardless of whether the authorization is designated
as a franchise, permit, license, resolution, contract, ordinance, certificate,
agreement, or otherwise, that authorizes the construction or operation of a
cable service provider or video service provider´s network in the public
rights of way.
(7)
'Franchise authority' means any governmental entity empowered by federal, state,
or local law to grant a franchise. With regard to the holder of a state
franchise within the service areas covered by such state franchise, the
Secretary of State is the sole franchising authority. With respect to a
franchise agreement with a municipal or county governing authority, that
municipality or county is the sole franchising authority within the service
areas covered by that local franchise.
(8)
'Gross revenues' means all revenues received from subscribers for the provision
of cable service or video service, including franchise fees for cable service
providers and video service providers, and advertising and home shopping
services revenues and shall be determined in accordance with generally accepted
accounting principles. Gross revenues shall not include:
(A)
Amounts billed and collected as a line item on the subscriber´s bill to
recover any taxes, surcharges, or governmental fees that are imposed on or with
respect to the services provided or measured by the charges, receipts, or
payments therefor; provided, however, that for purposes of this Code section,
such tax, surcharge, or governmental fee shall not include any ad valorem taxes,
net income taxes, or generally applicable business or occupation taxes not
measured exclusively as a percentage of the charges, receipts, or payments for
services;
(B)
Any revenue, such as bad debt, not actually received, even if
billed;
(C)
Any revenue received by any affiliate or any other person in exchange for
supplying goods or services used by the provider to provide cable service or
video programming;
(D)
Any amounts attributable to refunds, rebates, or discounts;
(E)
Any revenue from services provided over the network that are associated with or
classified as noncable or nonvideo services under federal law, including,
without limitation, revenues received from telecommunications services,
information services other than cable service or video service, Internet access
services, or directory or Internet advertising revenue, including, without
limitation, yellow pages, white pages, banner advertisements, and electronic
publishing advertising. Where the sale of any such noncable or nonvideo service
is bundled with the sale of one or more cable services or video services and
sold for a single nonitemized price, the term 'gross revenues' shall include
only those revenues that are attributable to cable service or video service
based on the provider´s books and records, such revenues to be allocated in
a manner consistent with generally accepted accounting principles;
(F)
Any revenue from late fees not initially booked as revenues, returned check
fees, or interest;
(G)
Any revenue from sales or rental of property, except such property as the
subscriber is required to buy or rent exclusively from the cable service
provider or video service provider to receive cable service or video
service;
(H)
Any revenue received from providing or maintaining inside wiring;
(I)
Any revenue from sales for resale with respect to which the purchaser is
required to pay a franchise fee, provided the purchaser certifies in writing
that it shall resell the service and pay a franchise fee with respect thereto;
or
(J)
Any amounts attributable to a reimbursement of costs including, but not limited
to, the reimbursements by programmers of marketing costs incurred for the
promotion or introduction of video programming.
(9)
'Incumbent service provider' means any cable service provider or video service
provider providing cable service or video service, respectively, in a
municipality or in an unincorporated area of a county on July 1,
2007.
(10)
'Original programming' means programming produced specifically for or about a
municipality or county or citizens thereof and includes public government
meetings. Original programming shall not include character generated messages,
video bulletin board messages, traffic cameras, or other passively produced
content.
(11)
'PEG' means public, educational, or governmental.
(12)
'Public right of way' means the area in, on, along, over, or under the public
roads that are part of the municipal or county road system or the state highway
system.
(13)
'Service area' means the geographic territory within a municipality or
unincorporated area of a county where a cable service provider or video service
provider provides or has proposed to offer cable service or video service
pursuant to a franchise.
(14)
'Subscriber' means any person or entity lawfully receiving video service from a
video service provider or cable service from a cable service
provider.
(15)
'Video programming' means programming provided by, or generally considered
comparable to programming provided by, a television broadcast station, as set
forth in 47 U.S.C. Section 522(20).
(16)
‘Video service' means the provision of video programming through wireline
facilities located at least in part in the public rights of way without regard
to delivery technology, including Internet protocol technology. This term shall
not include any video programming provided by a provider of commercial mobile
service as defined in 47 U.S.C. Section 332(d) or video programming provided as
part of and via a service that enables users to access content, information,
e-mail, or other services offered over the public Internet.
(17)
'Video service provider' means an entity providing video service as defined in
this Code section. This term shall not include a cable service
provider.
36-76-3.
(a)(1)
Any entity or person seeking to provide cable service or video service in this
state after July 1, 2007, at the discretion of the cable service provider or
video service provider, may elect from among the franchise options as set forth
in this Code section. A cable service provider or video service provider may
not provide cable service or video service without a franchise obtained pursuant
to this chapter.
(2)
A cable service provider or video service provider may elect to negotiate a
local cable service or video service franchise agreement with a municipal or
county franchise authority duly authorized under the laws of Georgia and may
enter into a negotiated cable television franchise agreement in accordance with
Title VI of the Communications Act of 1934, as amended, 47 U.S.C. Section 521 et
seq., or a video service franchise agreement in accordance with applicable state
and federal law that establishes the terms and conditions for the franchise
agreement within the jurisdictional limits of that municipality or county. A
local cable service or video service franchise agreement entered into after July
1, 2007, shall remain in force and effect through its expiration date
notwithstanding subsection (g) of Code Section 36-76-4.
(3)
A cable service provider or video service provider may elect to adopt the terms
of a negotiated franchise agreement entered into between a cable service
provider or video service provider and a municipal or county franchise authority
in the service area in which the provider desires to provide service. The
municipal or county franchise authority shall be required to enter into any such
negotiated franchise agreement upon the same terms and conditions to any
requesting cable service provider or video service provider. A local cable
service or video service franchise agreement that is adopted by a cable service
provider or video service provider after July 1, 2007, shall remain in force and
effect through its expiration date notwithstanding subsection (g) of Code
Section 36-76-4.
(4)
A cable service provider or video service provider may elect after July 1, 2007,
to file an application for a state franchise in one or more specified service
areas with the Secretary of State in accordance with the procedures set forth in
this chapter.
(b)
The alternatives in subsection (a) of this Code section are not mutually
exclusive. A cable service provider or video service provider may elect after
July 1, 2007, to negotiate with a municipal or county franchise authority to
enter into a franchise agreement within a specified service area and may also
obtain a state franchise for a different service area. A cable service provider
or video service provider may not operate under a franchise agreement with a
municipal or county governing authority and a state franchise from the Secretary
of State for the same service area.
36-76-4.
(a)
To receive a state franchise, a cable service provider or video service provider
shall file an application for a state franchise with the Secretary of State,
with a copy of such application provided simultaneously to each affected
municipal or county governing authority at least 45 days prior to offering cable
service or video service to subscribers within a specified service
area.
(b)
The Secretary of State may impose a fee not to exceed $500.00 for a state
franchise application.
(c)
The application for a state franchise shall consist of an affidavit signed by an
officer or general partner of the applicant that contains each of the
following:
(1)
An affirmative declaration that the applicant shall comply with all applicable
federal and state laws and regulations, including municipal and county
ordinances and regulations regarding the placement and maintenance of facilities
in the public right of way that are generally applicable to all users of the
public right of way and specifically including Chapter 9 of Title 25, the
'Georgia Utility Facility Protection Act';
(2)
A description of the applicant´s service area, which description shall be
sufficiently detailed so as to allow a local government to respond to subscriber
inquiries, including the name of each municipal or county governing authority
within the service area. For the purposes of this paragraph, an applicant may,
in lieu of or as supplement to a written description, provide a map on 8 1/2 by
11 inch paper that is clear and legible and that fairly depicts the service area
by making reference to the municipal or county governing authority to be served.
If the geographical area is less than an entire municipality or county, the map
shall describe the boundaries of the geographic area to be served in clear and
concise terms;
(3)
The location of the applicant´s principal place of business, the name or
names of the principal executive officer or officers of the applicant,
information concerning payment locations or addresses, and general information
concerning equipment returns; and
(4)
Certification that the applicant is authorized to conduct business in the State
of Georgia and that the applicant possesses satisfactory financial and technical
capability to provide cable service or video service and a description of such
capabilities. Such certification is not required from an incumbent service
provider or any cable service provider or video service provider that has
wireline facilities located in the public right of way as of July 1,
2007.
(d)
If an application is incomplete, the Secretary of State shall notify the
applicant within ten days of the receipt of such application and shall provide
the applicant with a reasonable period of time in which to provide a complete
application. If no such notification is made within ten days of the receipt of
the application, the application shall be deemed complete. Within 45 days of
the receipt of a completed application, the Secretary of State shall, except as
set forth in subsection (f) of this Code section, issue a state franchise that
contains the following:
(1)
A nonexclusive grant of authority to provide cable service or video service as
requested in the application;
(2)
A nonexclusive grant of authority to construct, maintain, and operate facilities
along, across, or on the public right of way in the delivery of cable service or
video service, subject to applicable federal and state laws and regulations,
including municipal and county ordinances and regulations, regarding the
placement and maintenance of facilities in the public right of way that are
generally applicable to all users of the public right of way and specifically
including Chapter 9 of Title 25, the 'Georgia Utility Facility Protection Act';
and
(3)
The expiration date of the state franchise, which shall be ten years from the
date of issuance, subject to renewal.
(e)
The failure of the Secretary of State to issue a state franchise within 45 days
of the receipt of a completed application from an incumbent service provider or
a cable service provider or video service provider that has wireline facilities
located in any public right of way as of July 1, 2007, shall constitute issuance
of the requested state franchise to the applicant without further action
required by the applicant. The failure of the Secretary of State to issue a
state franchise within 45 days of the receipt of a completed application from a
cable service provider or video service provider that does not have an existing
franchise with a municipal or county governing authority or that does not have
wireline facilities located in any public right of way as of July 1, 2007, shall
constitute temporary issuance of the requested state franchise to the applicant
subject to the provisions of subsection (f) of this Code section.
(f)
A municipal or county governing authority that reasonably believes an applicant
that has not yet accessed rights of way in that municipality or unincorporated
area of a county and does not possess satisfactory financial and technical
capability to provide cable service or video service or is not duly authorized
to conduct business in Georgia must object to the issuance of a state franchise
before it is officially issued by the Secretary of State. If a municipal or
county governing authority objects to the issuance of a state franchise on these
grounds, the Secretary of State shall consider whether the objection is well
founded and shall make a determination as to whether to grant the state
franchise notwithstanding the objection or to deny or suspend the application
pending the receipt of information sufficient to demonstrate the applicant has
satisfactory financial and technical capability. If the Secretary of State has
not acted on the objection of a municipal or county governing authority´s
objection and a state franchise is issued as set forth in subsection (e) of this
Code section, then such temporary issuance of the state franchise shall be
subject to the Secretary of State´s determination on the
objection.
(g)(1)
At any time after July 1, 2007, an incumbent service provider may file an
application for a state franchise pursuant to this Code section with the
Secretary of State with a copy provided to each affected municipal or county
governing authority except as set forth in paragraphs (2) and (3) of subsection
(a) of Code Section 36-76-3. Upon the Secretary of State issuing such state
franchise, any existing franchise for the service area covered by the state
franchise shall, subject to the continuation of PEG support obligations in
paragraph (4) of this subsection, terminate and be of no further force or
effect.
(2)
An incumbent service provider that elects to terminate an existing franchise for
the service area covered by the state franchise under this subsection remains
subject to the contractual rights, duties, and obligations incurred by the
incumbent service provider under the terms and conditions of the terminated
local franchise that are owed to any private person, including a
subscriber.
(3)
As used in this subsection, the term 'private person' shall not
include:
(A)
The municipal or county governing authority that issued the terminated local
franchise;
(B)
A political subdivision, government agency, or authority of the state not
described in subparagraph (A) of this paragraph; or
(C)
Any official, agent, or employee acting in an official capacity of the municipal
or county governing authority that issued the terminated local
franchise.
(4)
An incumbent service provider that elects to terminate a franchise under this
subsection shall continue to provide PEG access support under the same terms as
the terminated local franchise had it not been terminated until the local
franchise would have expired under its own terms.
(5)
Notwithstanding a termination of a local franchise pursuant to this subsection,
a municipality or county shall be entitled to operate its existing PEG channel
or channels relating to the number of channels and the usage criteria for such
channels under the same terms as the terminated local franchise had it not been
terminated, pursuant to this subsection, until July 1, 2012.
(6)
An incumbent service provider that elects to terminate a franchise under this
subsection, shall, until July 1, 2012, continue to provide access on the
nonbasic or digital tier to any municipality or county that has an activated
public safety training channel as of July 1, 2007. This channel must be used
exclusively for the purpose of training public safety personnel. After July 1,
2012, the state franchise holder shall be entitled to use other reasonable,
readily accessible means to accomplish the purpose of the channel.
(7)
Each holder of a state franchise shall have the obligation to provide access to
the same number of PEG channels pursuant to Code Section 36-76-8 and the
additional PEG support cash payments specified in this paragraph for PEG access
facilities in a service area as the incumbent service provider with the most
subscribers in such service area as of January 1, 2007, which obligation
shall continue until the local franchise would have expired under its own terms
as specified in paragraph (4) of this subsection. To the extent such incumbent
service provider provides PEG access support during said period in the form of
periodic payments to the municipal or county governing authority equal to a
percentage of gross revenue or a prescribed per subscriber amount, the state
franchise holder shall be obligated to make the same periodic payments to the
governing authority at the same time and equal to the same percentage of gross
revenue or prescribed per subscriber amount. To the extent such incumbent
service provider provides PEG access support to the applicable governing
authority during said period in the form of a lump sum payment that remains
unsatisfied as of July 1, 2007, the holder of a state franchise shall be
obligated to provide a lump sum payment to said authority based on its
proportion of the total number of cable service and video service subscribers of
all service providers in such service area. No payments shall be due under this
paragraph until the municipality or county notifies the respective providers, in
writing, of the percentage of gross revenues, the per subscriber amount, or the
lump sum payment amount and the expiration date of the local franchise obtaining
such obligations. The holder of a state franchise may designate that portion of
the subscriber´s bill attributable to any fee imposed pursuant to this
paragraph as a separate item on the bill and recover such amount from the
subscriber.
36-76-5.
(a)
A state franchise shall be fully transferable to any successor in interest to
the applicant. A notice of transfer shall be filed by the transferee with the
Secretary of State with a copy provided to each affected municipal or county
governing authority within 45 days of such transfer. The transfer notification
shall consist of an affidavit signed by an officer or general partner of the
transferee that contains each of the following:
(1)
An affirmative declaration that the applicant shall comply with all applicable
federal and state laws and regulations, including municipal and county
ordinances and regulations, regarding the placement and maintenance of
facilities in any public right of way that are generally applicable to all users
of the public right of way and specifically including Chapter 9 of Title 25, the
'Georgia Utility Facility Protection Act';
(2)
A description of the transferee´s service area, including the name of each
municipal or county governing authority within the service area;
(3)
The location of the transferee´s principal place of business and the name
or names of the principal executive officer or officers of the transferee;
and
(4)
A description of material changes, if any, of the information set forth in the
applicant´s initial application for a state franchise.
(b)
Any outstanding liabilities that have become due and are still owed to a
municipal or county governing authority under a state franchise issued pursuant
to this chapter shall be fully transferable under this Code section to any
successor in interest to the applicant.
(c)
The failure of the Secretary of State to issue an amended state franchise within
45 days of the receipt of a completed transfer notice shall constitute issuance
of the requested amended state franchise to the transferee without further
action required.
(d)
A cable service provider or video service provider may modify its service area
covered by the state franchise by notifying the Secretary of State of changes to
the service area, with a copy provided to each affected municipal or county
governing authority, at least ten days prior to the effective date of such
change. Such notification shall contain a geographic description of the new
service area or areas and a list of each municipal or county governing authority
within the service area.
(e)
A state franchise issued pursuant to this chapter may be terminated by the cable
service provider or video service provider by submitting a notice of termination
to the Secretary of State with a copy provided to each affected municipal or
county governing authority. Such notice shall identify the cable service
provider or video service provider, the affected service area, and the effective
date of such termination, which shall not be more than 60 days from the date of
filing the notice of termination.
36-76-6.
(a)
The holder of a state franchise shall pay to each affected local governing
authority a franchise fee equal to 5 percent of such holder´s gross
revenues received from the provision of cable service or video service to
subscribers located within such municipality or unincorporated area of the
county in which it provides service.
(b)
Such franchise fee shall be paid directly to each affected local governing
authority within 45 days after the last day of each calendar quarter. Such
payment shall be considered complete if accompanied by a statement showing, for
the quarter covered by the payment:
(1)
The aggregate amount of the state franchise holder´s gross revenues,
specifically identifying subscriber and advertising and home shopping services
revenues under this chapter insofar as the franchise holder´s existing
billing systems include such capability, attributable to such municipality or
unincorporated areas of the county; and
(2)
The amount of the franchise fee payment due to such municipality or
county.
In
the event that franchise fees are not paid on or before the dates specified
above, then the affected local governing authority shall provide written notice
to the franchise holder giving the cable service provider or video service
provider 30 days from the date of the franchise holder´s receipt of such
notice to cure any such nonpayment. In the event franchise fees are not
remitted to the affected local government authority postmarked on or before the
expiration of the 30 day cure period, then the holder of the state franchise
shall pay interest thereon at a rate of 1 percent per month to the affected
local governing authority. If the 30 day cure period expires on Saturday,
Sunday, or a legal holiday, the due date shall be the next business day. A
local governing authority shall waive any late payment penalties if the
franchise holder has previously submitted timely payments on seven consecutive
occasions. Moreover, the franchise holder shall not be assessed interest on
late payments if franchise payments were submitted in error to a neighboring
local governing authority.
(c)
Each affected local governing authority may, no more than once annually, audit
the business records of the state franchise holder to the extent necessary to
ensure payment in accordance with this Code section. Once any audited period of
a state franchise holder has been the subject of a requested audit, such audited
period of such state franchise holder may not again be the subject of any audit.
In the event of a dispute concerning the amount of the franchise fee due to an
affected local governing authority under this Code section, an action may be
brought in a court of competent jurisdiction by an affected local governing
authority seeking to recover an additional amount alleged to be due or by a
state franchise holder seeking a refund of an alleged overpayment; provided,
however, that any such action must be brought within three years following the
end of the quarter to which the disputed amount relates. Such time period may
be extended by written agreement between the state issued franchise holder and
such affected local governing authority. Each party shall bear the party´s
own costs incurred in connection with any such examination or dispute. No
affected local governing authority may employ, appoint, or retain any person or
entity for compensation that is dependent in any manner upon the outcome of any
such audit, including, without limitation, the audit findings, the recovery of
fees, or the recovery of any other payments. A person or entity may not solicit
or accept compensation dependent in any manner upon the outcome of any such
audit, including, without limitation, the audit findings, the recovery of fees,
or the recovery of any other payments by an affected local governing authority.
In the event that an affected local governing authority files an action to
recover alleged underpayments of franchise fees and a court of competent
jurisdiction determines the cable service provider or video service provider has
underpaid franchise fees due for any 12 month period by 10 percent or more, the
cable service provider or video service provider may be required to pay the
affected local governing authority its reasonable costs associated with the
audit along with any franchise fee underpayments; provided, however, late
payments shall not apply.
(d)
The statements made pursuant to subsection (b) of this Code section and any
records or information furnished or disclosed by a cable service provider or
video service provider to an affected local governing authority pursuant to
subsection (c) of this Code section shall be exempt from public inspection under
Code Section 50-18-70.
(e)
No acceptance of any payment shall be construed as a release or as an accord and
satisfaction of any claim an affected local governing authority may have for
further or additional sums payable as a franchise fee.
(f)
To the extent possible, any amounts overpaid by the holder of a state franchise
shall be deducted from future franchise payments.
(g)
The holder of a state franchise may designate that portion of a
subscriber´s bill attributable to any franchise fee imposed pursuant to
this Code section as a separate item on the bill and recover such amount from
the subscriber; provided, however, that such separate listing shall be referred
to as a 'franchise' or a 'franchise fee.'
(h)
No affected local governing authority shall levy any additional tax, license,
fee, surcharge, or other assessment on a cable service provider or video service
provider for or with respect to the use of any public right of way other than
the franchise fee authorized by this Code section. Nor shall an affected local
governing authority levy any other tax, license, fee, or assessment on a cable
service provider or video service provider or its subscribers that is not
generally imposed and applicable to a majority of all other businesses. The
franchise fee authorized by this Code section is in lieu of any permit fee,
encroachment fee, degradation fee, or other fee that could otherwise be assessed
on a state issued franchise holder for the holder´s occupation or work
within the public right of way; provided, however, that nothing in this Code
section shall restrict the right of any municipal or county governing authority
to impose ad valorem taxes, sales taxes, or other taxes lawfully imposed on a
majority of all other businesses within such municipality or
county.
36-76-7.
The
holder of a state franchise shall comply with the customer service standards as
set forth in 47 C.F.R. 76.309(c). Each affected local governing authority shall
receive and handle complaints from subscribers of the holder of a state
franchise that reside in the local governing authority´s jurisdiction. If
an affected local governing authority determines that the holder of a state
franchise is in material noncompliance with the customer service standards
required in this Code section, the affected local governing authority shall give
the cable service provider or video service provider a reasonable time to cure
such violation. If the cable service provider or video service provider does
not cure such violation within the time frame specified by the affected local
governing authority, then the affected local governing authority may file a
complaint with the Governor´s Office of Consumer Affairs. The
Governor´s Office of Consumer Affairs shall have jurisdiction over such
complaints and over any complaints filed pursuant to subsection (c) of Code
Section 36-76-11 and shall, after conducting a rulemaking proceeding in which
all interested parties may participate, promulgate rules and regulations setting
forth the process of handling such complaints and any penalties for
noncompliance. For purposes of this Code section 'material noncompliance' means
substantial and repeated failure of a cable service or video service provider to
comply with the subscriber service requirements set forth in 47 C.F.R.
76.309(c).
36-76-8.
(a)
No later than 12 months after receipt of a written request by a municipal or
county governing authority, the holder of a state franchise shall designate
capacity in its network to allow for the airing of noncommercial PEG programming
required by this Code section.
(b)(1)
Subject to the usage criteria set forth in this subsection, a municipal or
county governing authority that does not have PEG access channels activated
under the incumbent service provider´s franchise agreement as of July 1,
2007, may request a sufficient amount of capacity on its network to support up
to three PEG channels for a municipality or unincorporated area of a county with
a population of 50,000 or more or up to two PEG channels for a municipality or
unincorporated area of a county with a population of less than 50,000, and the
cable service provider or video service provider shall designate such sufficient
amount of capacity. No cable service provider or video service provider shall
be required to provide more than three PEG access channels on its network within
a municipality or unincorporated area of a county if there does not exist at the
time of the state franchise more than three active PEG channels in such
municipality or unincorporated area of the county.
(2)
To qualify for the first PEG channel, the written request of the municipality or
county must include a certification that it has produced at least 15 hours of
nonduplicative original programming for production in the first month of
operation and that the municipality or county shall continue to produce at least
15 hours of nonduplicative original programming for each month that the channel
is provided.
(3)
Alternatively, to qualify for the first PEG channel, two or more municipalities
or counties can collectively include a certification that they have produced at
least 15 hours of nonduplicative original programming for production in the
first month of operation and that the municipalities or counties shall continue
to produce at least 15 hours of nonduplicative original programming for each
month that the channel is provided.
(4)
To qualify for a second PEG channel on the basic or analog tier of service, the
municipality or county must certify that the first channel is being
substantially utilized, and that upon activation, the second PEG channel shall
also be substantially utilized. For purposes of this subsection, PEG channels
shall be considered 'substantially utilized' when 12 continuous hours of content
are programmed on that channel each calendar day. In addition, at least 75
percent of the 12 hours of programming for each business day over each calendar
quarter, on average, must be nonduplicative programming. Nonduplicative
programming shall include the first three broadcasts of a program within a month
or the first three showings in a day of a meeting of an elected government
body.
(5)
To qualify for a third PEG channel, a municipality or county with a population
of 50,000 or greater must certify that the channel shall be programmed for at
least eight continuous hours of nonduplicative content per day. The third PEG
channel shall only be available on the nonbasic digital tier.
(6)
Any municipality or county that has not obtained a second PEG channel on the
basic or analog tier may qualify for a second PEG channel on the nonbasic
digital tier by certifying that the channel shall be programmed for at least
eight continuous hours of nonduplicative content per day.
(7)
Any PEG channel capability provided pursuant to this Code section that does not
comply with the usage criteria set forth in this subsection or is not
substantially utilized by the municipality or county shall no longer be made
available after reasonable notice is provided to the municipality or county but
may be programmed at the franchise holder´s discretion. At such time as
the municipality or county certifies to the franchise holder that it shall meet
the usage criteria for that particular channel, the cable service provider or
video service provider shall restore the previously lost channel. However, the
franchise holder shall be under no obligation to carry that channel on a basic
or analog tier.
(c)
Upon request by a municipality or county that does not have an activated PEG
channel, the state franchise holder shall provide access to one nonexclusive PEG
channel for the purpose of providing public, educational, and government
programming. This nonexclusive channel is available as an additional option to
municipalities and counties and shall not eliminate the requirements of
subsection (b) of this Code section.
(d)
In the event that the provision of video service and cable service is federally
mandated to be digitally provided, the franchise holder shall be entitled to
satisfy the PEG obligations by locating the channels on any channel provided in
the basic subscription service offered by the provider.
(e)
Municipalities, counties, and cable service providers and video service
providers must cooperate in the sharing of channel capacity to provide PEG
access for municipalities and counties served by the cable service provider or
video service provider.
(f)
The holder of a state franchise shall designate capacity on its system
sufficient to allow the provision of the same number of PEG access channels that
a municipal or county governing authority has activated under the incumbent
service provider´s franchise agreement as of July 1, 2007.
(g)
The operation of any PEG access channel provided pursuant to this Code section
and the production of programming thereon, including all capital costs and costs
of production, shall be the responsibility of the municipality or the county
receiving the benefit of such channel, and the holder of a state franchise shall
only have the responsibility to transmit such channel to subscribers. If the
holder elects not to seek interconnection with the incumbent under subsection
(i) of this Code section or if the incumbent service provider and the holder of
a state franchise cannot reach mutual agreement on interconnection terms, the
holder of a state franchise shall be responsible for providing one location of
connectivity to each PEG access channel up to the first 200 feet from the
holder´s activated wireline video programming distribution facility located
in the holder´s designated service area.
(h)
The municipality or the county must ensure that all transmissions of content and
programming provided by or arranged by them to be transmitted over a PEG channel
by a holder of a state franchise are provided and submitted to the cable service
provider or video service provider in a manner or form that is capable of being
accepted and transmitted by such provider over its system without further
alteration or change in the content or transmission signal and which is
compatible with the technology or protocol utilized by the cable service
provider or video service provider to deliver its cable services or video
services. The provision of PEG content to the provider shall constitute
authorization for the provider to carry such content including, at the
provider´s option, providing such content beyond the jurisdictional
boundaries of the municipality or county.
(i)
Where technically feasible, the holder of a state franchise and an incumbent
service provider must use reasonable efforts to interconnect their systems on
mutually acceptable and reasonable terms for the purpose of providing PEG
programming. Interconnection may be accomplished by direct cable microwave
link, satellite, or other reasonable method of connection. Holders of a state
franchise and incumbent service providers may not unreasonably withhold
interconnection of PEG channels.
(j)
A holder of a state franchise is not required to interconnect for or otherwise
transmit commercial PEG programming content or PEG content that is branded with
the logo, name, or other identifying marks of another cable service provider or
video service provider, and a municipality or county may require a cable service
provider or video service provider to remove its logo, name, or other
identifying marks from PEG content that is to be made available to another
provider.
36-76-9.
A
cable service provider or video service provider shall, upon written request by
a municipality or county, install, at no charge, one service outlet to a
demarcation point located on the outside of any designated municipal or county
building or multibuilding complex, provided such building demarcation point is
within 125 feet from the cable service provider or video service provider´s
activated distribution point of connection. A cable service provider or video
service provider shall not be required to extend its facilities beyond the
appropriate demarcation point located outside the building or to perform any
inside wiring. The cable service provider or video service provider shall
provide complimentary basic cable service or video service to public schools and
public libraries over that one service outlet free of charge, which service
shall not be used for commercial purposes. The cable service provider or video
service provider shall provide complimentary basic cable service or video
service to public buildings other than public schools and public libraries only
to the extent such a complimentary service arrangement existed under the terms
of a local franchise agreement in effect as of January 1, 2007, and shall
continue only until the local franchise agreement would have expired under its
own terms; provided, however, that such provider shall not be precluded from
providing such additional complimentary service at its option. The municipality
or county may not receive service at the same building from more than one cable
service or video service provider at a time under this Code section.
36-76-10.
No
franchising authority, state agency, or political subdivision of the state may
impose any build-out requirement on system construction or service deployment on
a holder of a state franchise. This chapter occupies the entire field of
franchising or otherwise regulating cable service and video service. An
affected local governing authority´s power to regulate the holder of a
state franchise is limited to:
(1)
A requirement that the holder of a state franchise who is providing cable
service or video service within the municipality or unincorporated area of the
county notify each affected local governing authority at least ten days before
providing service in such municipality or county. A municipal or county
governing authority may require the holder of a state franchise to update the
description of the service area provided in the application for a state
franchise annually and may also require the holder of a state franchise to
maintain a point of contact that is available during normal business
hours;
(2)
The establishment of reasonable guidelines regarding the use of PEG access
channels;
(3)
The lawful and reasonable exercise of the police powers of the municipal or
county governing authority to the extent reasonably necessary to protect the
health, safety, and welfare of the public;
(4)
The enactment and enforcement of lawful and reasonable laws and rules and
municipal or county ordinances and regulations concerning excavation,
permitting, bonding requirements, indemnification requirements, and placement
and maintenance of facilities in any public right of way that are generally
applicable to all users of any public right of way, except to the extent
specifically precluded by subsection (h) of Code Section 36-76-6;
and
(5)
The lawful and reasonable exercise of the rights established in this
chapter.
36-76-11.
(a)
A holder of a state franchise may not deny access to service to any group of
potential residential subscribers because of the income of the residents in the
local area in which such group resides.
(b)
For purposes of determining whether a cable service provider or video service
provider has violated subsection (a) of this Code section, cost, density,
distance, and technological or commercial limitations shall be taken into
account. An alleged violation of subsection (a) of this Code section may only
be considered within the description of the service area set forth in an
application or amended application for a state franchise. The inability to
serve an end user because a holder is prohibited from placing its own facilities
in a building or property shall not be found to be a violation of subsection (a)
of this Code section. Use of an alternative technology or service arrangement
that provides comparable content, service, and functionality may not be
considered a violation of subsection (a) of this Code section. This Code
section may not be construed as authorizing any build-out requirements on a
cable service provider or video service provider.
(c)
Any potential residential subscriber or group of residential subscribers who
believes it is being denied access to services in violation of subsection (a) of
this Code section may file a complaint with the Governor´s Office of
Consumer Affairs, along with a clear statement of the facts and the information
upon which it is relying to support the complaint. Upon receipt of any such
complaint, the Governor´s Office of Consumer Affairs shall serve a copy of
the complaint and supporting materials upon the subject cable service provider
or video service provider, which shall have 60 days after receipt of such
information to submit a written answer and any other relevant information the
provider wishes to submit to the Governor´s Office of Consumer Affairs in
response to the complaint. If, after further investigation of the allegations
contained in the complaint, the Governor´s Office of Consumer Affairs
determines, based on the information submitted or gathered pursuant to such
process, that a material violation of subsection (a) of this Code section has
occurred, the Governor´s Office of Consumer Affairs shall issue a written
order setting forth the basis for such findings and giving the cable service
provider or video service provider a reasonable time to cure such
violation.
(d)
A holder of a state franchise is entitled to de novo review by a court of
competent jurisdiction of any order or finding by the Governor´s Office of
Consumer Affairs issued pursuant to this Code section, and if such court finds
that a holder of a state franchise is in material noncompliance with this Code
section, the holder shall have a reasonable period of time, as specified by the
court, to cure such noncompliance."
SECTION
2.
This
Act shall become effective on July 1, 2007.
SECTION
3.
All
laws and parts of laws in conflict with this Act are repealed.