07 LC 36
0600S
House
Bill 227 (COMMITTEE SUBSTITUTE)
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 shall be 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) or video programming provided as part of and via a service that
enable users to access content, information, e-mail, or other services offered
over the public Internet.
(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 as that term is defined in 47 U.S.C.
Section 522(12);
(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 shall be the sole franchising authority. With respect to a
franchise agreement with a municipal or county governing authority, that
municipality or county shall be 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 shall 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 shall be 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 shall be
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 January 1,
2008.
(10)
'Original programming' means programming produced specifically for or about a
municipality or county or citizens thereof and shall include 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 January 1, 2008, 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 shall
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
January 1, 2008, 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 cable service provider or video service
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 January 1, 2008, 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 January 1,
2008, 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 shall not be mutually
exclusive. A cable service provider or video service provider may elect after
January 1, 2008, 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 shall 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 and a fee not to exceed $250.00 for an amendment to a
state franchise.
(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 shall not be 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 January 1,
2008; and
(5)
Notice to the affected local governing authority of its right to designate a
franchise fee pursuant to Code Section 36-76-6.
(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 January 1, 2008, 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 January 1,
2008, 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 shall 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 January 1, 2008, 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 shall
remain 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)
The 12 month development period for PEG channels set forth in subsection (a) of
Code Section 36-76-8 shall not apply to any incumbent service provider that
adopts a state franchise or any holder of a state franchise that renews such
state franchise on or after July 1, 2012.
(7)
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 January 1, 2008. This channel shall 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.
(8)
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; provided, however, that if a
local franchise would have expired before July 1, 2012, the holder of a state
franchise shall continue to provide access to the same number of PEG channels
until July 1, 2012, as provided in paragraph (5) 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 January 1, 2008, 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 20 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, whether a cable service provider or a video
service provider, shall pay to each affected local governing authority which
complies with this Code section a franchise fee which shall not exceed the
maximum percentage rate permitted in 47 U.S.C. Section 542(b) of such
holder´s gross revenues received from the provision of cable service or
video service to subscribers located within such holder´s service
area.
(1)
Each affected local governing authority or its authorized designee shall provide
written notice to the Secretary of State and each applicant for or holder of a
state franchise with a service area located within that affected local governing
authority´s jurisdiction of the franchise fee rate that applies to the
applicant for or holder of such state franchise. The applicant for or holder of
a state franchise shall start assessing the franchise fee within 15 days of
receipt of written notice from the affected local governing authority or its
authorized designee and shall not be required to pay such franchise fee until
the expiration of 15 days after receipt of such written notice. Any incumbent
service provider who obtains a state franchise under paragraph (1) of subsection
(g) of Code Section 36-76-4 shall pay its existing franchise fee during the 15
day period after receipt of written notice of the new fee. The franchise fee
rate shall be uniformly applicable to all cable service providers and video
service providers that obtain a state franchise within the affected local
governing authority. For purposes of this Code section, an authorized designee
is an agent authorized by charter or other act of the affected local governing
authority.
(2)
Any affected local governing authority may change the franchise fee applicable
to holders of a state franchise once every two years. The affected local
governing authority or its authorized designee shall provide written notice to
the Secretary of State and the applicants for or holders of a state franchise
with a service area within that affected local governing authority´s
jurisdiction of the new franchise fee rate. The holder of a state franchise
shall start assessing the new franchise fee within 45 days of receipt of written
notice of the change from the affected local governing authority or its
authorized designee. The franchise fee rate shall be uniformly applicable to
all cable service providers and video service providers that obtain a state
franchise within the affected local governing authority´s
jurisdiction.
(b)
Such franchise fee shall be paid directly to each affected local governing
authority within 30 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 15 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 15 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 15 day cure period expires on Saturday,
Sunday, or a legal holiday, the due date shall be the next business day.
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. For purposes of this
subsection, an audit shall be defined as a comprehensive review of the records
of the holder of a state franchise. 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 shall 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 shall 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. 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)
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 shall be 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.
(a)
The holder of a state franchise shall comply with the customer service standards
as set forth in 47 C.F.R. 76.309(c). No franchising authority shall have the
power to require the holder of a state franchise to comply with any customer
service standards other than those set forth in this Code section.
(b)
Except as provided in paragraph (2) of subsection (c) of this Code section, each
affected local governing authority shall receive and handle complaints from
subscribers of the holder of a state franchise that reside in the affected local
governing authority´s jurisdiction.
(c)(1)
By December 31, 2007, the Secretary of State´s office shall conduct a
rulemaking to establish a uniform set of rules pursuant to which an affected
local governing authority shall resolve subscriber complaints and to establish
any uniform procedures necessary to implement subsection (c) of Code Section
37-76-11. Said rules shall include a requirement that the cable service
provider or video service provider participate in mandatory nonbinding mediation
with the affected local governing authority and the subscriber if the issue
cannot be resolved between the cable service provider or video service provider
and the subscriber. Said rules shall apply only until 25 percent of the
potential subscribers within an affected local governing authority are offered
service by two or more cable service providers or video service providers
holding a state franchise or a local franchise.
(2)
After such time as 25 percent of the potential subscribers within an affected
local governing authority are being offered service by two or more cable service
providers or video service providers holding a state franchise or a local
franchise, an affected local governing authority may, in its discretion, by the
adoption of a resolution or ordinance, discontinue receiving and handling all
subscriber inquires, billing issues, and other complaints for state franchise
holders. Notwithstanding any other provision of law, where an affected local
governing authority discontinues receiving and handling subscriber inquires,
billing issues, and other complaints relating to state franchise holders by
adoption of a resolution or ordinance pursuant to this paragraph, bills to
subscribers by cable service providers or video service providers holding a
state franchise shall not include the contact information of such affected local
governing authority for the purpose of directing or initiating complaints or
making other such subscriber inquires.
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 January
1, 2008, 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 on the basic or analog tier of service, the
written request of the municipality or county shall 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 on the basic or analog tier
of service, two or more municipalities or counties may 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 shall 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, shall be nonduplicative programming. Nonduplicative
programming shall include the first three broadcasts 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 shall 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 shall be 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 shall 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 January 1, 2008.
(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 shall 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 cable service provider or video
service 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 cable service provider or video service provider shall constitute
authorization for such cable service provider or video service provider to carry
such content on the PEG channel of the municipality or county including, at the
cable service provider or video service provider´s option, providing such
content beyond the jurisdictional boundaries of the municipality or county to
the extent permitted by federal law.
(i)
Where technically feasible, the holder of a state franchise and an incumbent
service provider shall 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 shall not unreasonably withhold
interconnection of PEG channels.
(j)
A holder of a state franchise shall not be 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 provider 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 shall
impose any build-out requirement on system construction or service deployment on
a holder of a state franchise. This chapter shall occupy 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 shall be 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 shall 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 shall be 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 shall 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 shall 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 shall not be
considered a violation of subsection (a) of this Code section. This Code
section shall 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 affected local governing
authority, 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 affected local governing authority 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 affected local governing authority in response
to the complaint. If the affected local governing authority is not satisfied
with the response, the affected local governing authority shall compel the cable
service provider or video service provider to participate in nonbinding
mediation. If the mediation does not resolve the matter to the satisfaction of
the affected local governing authority, the affected local governing authority
may file a complaint with a court of competent jurisdiction. No affected local
governing authority shall file an action in court without having participated in
a mediation of the complaint. If such court finds that the 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. The court may also award the affected local governing authority
its reasonable costs and attorneys fees in seeking enforcement of subsection (a)
of this Code section."
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.