H.B. 4240
(By Delegates Trump, Miller, L. White
and Hutchins)
[Introduced February 2, 1998; referred to
the Committee on the Judiciary.]
A BILL to repeal section seven, article eighteen, chapter five of
the code of West Virginia, one thousand nine hundred and
thirty-one, as amended, and to further amend said article by
amending and reenacting sections one, two, three, four, five,
six, eight, nine, ten, eleven, twelve, thirteen, fourteen,
fifteen, sixteen, seventeen, eighteen, nineteen, twenty,
twenty-one, twenty-two, twenty-three, twenty-four, twenty- five, twenty-six, twenty-seven, twenty-eight, twenty-nine, and
thirty, article eighteen, chapter five of the code of West
Virginia, one thousand nine hundred and thirty-one, as
amended, and to further amend said article by adding thereto
one new section, designated section eleven-a, and further to
amend and reenact section three, article three-d, chapter
sixty-one of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, all relating generally to cable television service; providing for the issuance of
franchises for cable televisions systems, and providing for
the regulation thereof; providing a short title, legislative
findings and definitions used in the act; providing for
franchising authorities, and requiring franchises for the
construction, operation or acquisition of cable television
systems; providing for the continuation of existing franchises
and the enforcement of the terms and conditions of existing
franchise agreements; providing for and delineating the powers
of franchising authorities; providing procedures for
applications for cable televisions franchises and for
application fees therefor; providing for public hearing upon
an application for a cable television franchise, and for
criteria to be considered on the question of the issuance of
franchises; providing for a written franchise agreement and
mandatory and permissive provisions and terms therefor;
providing general requirements relating to the installation,
construction and operation, and removal of cable television
systems; providing for revocations and suspensions of cable
franchises; providing for civil penalties that can be
assessed; providing a procedure for the renewal of cable
television franchises; providing for the restriction of
transfers of cable television franchises; providing for the
regulation of cable television rates by the franchising authorities; requiring adequate service for subscribers;
providing for credits to subscribers for interruptions of
cable television service; providing for cable operators to
maintain offices and have them open in normal business hours;
requiring notices to the subscribers regarding the quality of
their service; requiring the recordation of subscriber
complaints; providing that the Public Service Commission will
serve as a document clearinghouse; providing for
nondiscrimination; providing a mechanisms for the handling of
subscriber complaints; providing for other powers to be vested
within franchising authorities; providing for reports to be
filed by cable operators; providing for annual fees and other
franchise fees; providing for the recovery of attorney's fees
in actions against cable operators; providing for liberal
construction of certain provisions of the article;
establishing criminal offenses relating to the theft of cable
television services; and creating and defining a misdemeanor
offense, penalties, a civil action and remedies for the
attachment, maintenance or use of devices to acquire
unauthorized cable for commercial gain or remuneration.
Be it enacted by the Legislature of West Virginia:
That section seven, article eighteen, chapter five of the code
of West Virginia, one thousand nine hundred and thirty-one, as
amended, be repealed; that sections one, two, three, four, five, six, eight, nine, ten, eleven, twelve, thirteen, fourteen, fifteen,
sixteen, seventeen, eighteen, nineteen, twenty, twenty-one, twenty- two, twenty-three, twenty-four, twenty-five, twenty-six, twenty- seven, twenty-eight, twenty-nine, and thirty, article eighteen,
chapter five of the code of West Virginia, one thousand nine
hundred and thirty-one, as amended, be amended and reenacted; that
article eighteen, chapter five of the code of West Virginia, one
thousand nine hundred and thirty-one, as amended, be further
amended by adding a new section thereto, designated section eleven- a; that section three, article three-d, chapter sixty-one of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted, all to read as follows:
§5-18-1. Short title.
This article may be cited as the "West Virginia Cable
Television Systems Act of 1998."
§5-18-2. Legislative findings.
The Legislature finds that television is an important source
of information and entertainment affecting the welfare and economy
of the state, and that cable television services have become
widespread, often providing the only access to quality television
signals in many areas of the state. The Legislature finds that
cable television services in West Virginia are often not subject to
effective competition and that cable television services have
become more and more expensive for the citizens of West Virginia, and that to the extent permitted by federal law, the State of West
Virginia should provide a mechanism for the local regulation of the
service provided and the prices charged by cable television
providers. Further, the Legislature finds that it is in the public
interest to establish uniform standards within the state of West
Virginia for the issuance, renewal and transfer of cable television
franchises; to establish procedures for local franchising
authorities to set uniform standards for the provision of cable
service in the franchise areas ; to permit local franchising
authorities to develop and establish uniform procedures for the
investigation and resolution of complaints concerning cable
service; and to authorize local franchising authorities to
establish just, reasonable and nondiscriminatory rates and charges
for the provision of cable service within their franchise areas. to
the extent that the service is not subject to effective
competition. The purpose of this article is to promote such goals
by all available means not in conflict with clearly preempted by
federal law, rules or regulations.
§5-18-3. Definitions.
As used in this article:
(1) "Applicant" means a person who initiates an application or
proposal.
(2) "Application" means an unsolicited a filing for a cable
franchise.
(3) "Basic cable service" means any service tier which
includes the retransmission of local television broadcast signals.
(4) "Board" means the West Virginia cable television advisory
board created under the provisions of this article.
(4)(5) "Cable franchise" means a nonexclusive initial
authorization or renewal thereof issued pursuant to this article,
whether the authorization is designated as a franchise, permit,
order, contract, agreement or otherwise, which authorizes the
construction or operation of a cable system.
(5)(6) "Cable operator" 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 the
cable system or (B) who otherwise controls or is responsible for,
through any arrangement, the management and operation of a cable
system.
(6)(7) "Cable service" means (A) the one-way transmission to
subscribers of video programming or other programming service and
(B) subscriber interaction, if any, which is required for the
selection of video programming or other programming service.
(7)(8) "Cable system" means any facility within this state
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 does 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 only subscribers in one or more multiple
unit dwellings under common ownership, control or management,
unless that facility or facilities uses any public right-of-way; or
(C) a facility of a public utility subject, in whole or in part, to
the provisions of chapter twenty-four of this code, except to the
extent that those facilities provide video programming directly to
subscribers.
(8)(9) "County commission" means the commissioners composing
the county commission in pursuance of section nine, article IX of
the constitution of this state within whose jurisdiction there
exists a cable system or where such cable system is hereafter
constructed, operated, acquired or extended.
(9)(10) "Facility" includes all real property, antennas,
poles, supporting structures, wires, cables, conduits, amplifiers,
instruments, appliances, fixtures and other personal property used
by a cable operator in providing service to its subscribers.
(10)(11) "Franchising authority" means a municipality, or a
county commission or the West Virginia cable television advisory
board.
(11)(12) "Institution of higher education" means an academic
college or university accredited by the North Central Association
of Colleges and Schools.
(12)(13) "Municipality" means any municipal corporation duly
chartered in the state of West Virginia within whose jurisdiction
there exists a cable system or where such cable system is hereafter
constructed, operated, acquired or extended.
(13)(14) "Other programming service" means information that a
cable operator makes available to all subscribers generally.
(14)(15) "Person" means an individual, partnership,
association, joint stock company, trust, corporation or
governmental agency.
(15)(16) "Proposal" means a filing solicited by the
franchising authority for a cable franchise.
(16)(17) "Public, educational or governmental access
facilities" means (A) channel capacity designated for public,
educational or governmental uses and (B) facilities and equipment
for the use of that channel capacity.
(17)(18) "Public place" includes any property, building,
structure or water to which the public has a right of access and
use.
(18)(19) "School" means an academic and noncollege type
regular or special education institution of learning established
and maintained by the department of education and the arts or
licensed and supervised by that department.
(19)(20) "Service area" means the geographic area for which a
cable operator has been issued a cable franchise.
(20)(21) "Video programming" means programming provided by, or
generally considered comparable to programming provided by, a
television broadcast station.
§5-18-4. Cable franchise required; franchising authority.
(a) No person may construct, operate or acquire a cable
system, or extend an existing cable system outside its designated
service area, without first obtaining a cable franchise from a
franchising authority as provided in this article.
(b) Any person operating a cable system on the effective date
of this article without a franchise shall, within sixty days of the
effective date of this article, notify the board municipality, if
any, in which the cable system, or any portion thereof, is located
and the county in which in which the cable system or any portion
thereof is located. The notice(s) provided for hereunder shall be
in writing setting forth: (1) The name, business address and
telephone number of the cable operator; (2) the principals and
ultimate beneficial owners of the cable system or systems; (3) the
geographic location and service area of any cable system operated
by such person; and (4) the number of subscribers within the cable
system or systems. If the board shall not have been appointed and
organized within sixty days of the effective date of this article,
then such filing shall be made with the public service commission
where such documents shall be retained for delivery to the board
following the appointment and organization of its members.
(c) The board shall, upon receipt of such information,
determine the appropriate franchising authority or authorities for
the purposes of the consideration of the issuance of a franchise to
such cable operator or operators and shall notify the appropriate
franchising authority or authorities and any such cable system
operator of the franchise application procedures to be followed by
the respective parties. Any such cable operator shall, within
sixty days of receipt of such notice from the board, make formal
application to the appropriate franchising authority or authorities
for a franchise in accordance with the provisions of this article.
(c)(d) The franchising authority shall be the municipality in
which a cable system is to be constructed, operated, acquired or
extended, or if there be no such municipality or if the
municipality so elects not to act as a franchising authority, then
the franchising authority shall be the county commission of the
county in which such cable system is to be constructed, operated,
acquired or extended: Provided, That nothing herein shall prohibit
any county commission of a county in which a municipality acting as
a franchising authority is located from also acting as a
franchising authority for any cable system to be constructed,
operated, acquired or extended within the jurisdiction of such
county commission, nor prohibit any county commission of a county
acquiring the franchise authority from a municipality from electing
to transfer such authority to the board.
(d) With respect to any franchise for which the West Virginia
Cable Television Advisory Board, which existed under a former
enactment of this article, was the franchising authority, after the
effective date of this section, the county commission of the county
wherein such franchisee's service area is located will be the
franchising authority.
(e) If a county commission elects not to act as the franchise
authority, the board shall become the franchise authority. A
county commission acting as a franchise authority for
unincorporated areas of the county may elect separately to transfer
to the board any franchise authority acquired from a municipality.
If any municipality or county commission so elects not to be the
franchise authority, the mayor or president of the county
commission shall certify such delegation in writing to the
presiding officer of the board. Such election shall be promptly
made upon written request of the board or the cable operator.
§5-18-5. Existing cable franchises.
(a) The provisions of any cable franchise in effect on the
effective date of this article shall remain in effect, subject to
the express provisions of this article, and for no longer than the
then current remaining term of the franchise as such franchise
existed on the effective date. All terms and conditions of any
written cable franchise agreement entered into between and cable
operator and any franchising authority, which agreement was entered into before the effective date of the reenactment of this article
in the year one thousand nine hundred and ninety-eight, including,
but not limited to, any provisions permitting the regulation of
cable rates by franchising authorities, shall be enforceable under
the provisions of this act.
(b) For purposes of subsection (a) of this section and other
provisions of this article, a cable franchise shall be considered
in effect on the effective date of this article if such franchise
was granted on or before such effective date.
§5-18-6.
West Virginia cable television advisory board created;
appointments and terms of members; meetings; vacancies;
quorum. General Powers and of Franchising Authorities.
(a) There is hereby created a cable review board to be known
as the "West Virginia Cable Television Advisory Board" which board
shall, in consultation with the attorney general's office,
implement the provisions of this article and consider subscriber
complaints in accordance with the provisions of section twenty-five
of this article.
(b) The board shall consist of seven members, who shall be
residents of this state, and who shall be appointed as follows:
(1) The governor shall appoint one member to represent the
viewpoint of the public service commission. When the member is to
be appointed, the governor shall request from the public service
commission a list of three nominees for such position. A summary of the qualifications of each nominee shall be submitted with each
list. When the completed list of nominees is submitted in
accordance with the provisions hereof, the governor shall make his
or her appointment from the persons so nominated.
(2) The governor shall appoint one member to represent the
viewpoint of those cable operators whose cable system or systems in
the aggregate have five thousand subscribers or more, and one
member to represent the viewpoint of cable operators whose cable
system or systems in the aggregate have less than five thousand
subscribers. The governor shall request from the trade association
representing cable operators in this state a list of three nominees
for each such position of the board. All nominees shall be persons
with special experience and competence in cable television
operations. A summary of the qualifications of each nominee shall
be submitted with each list. When the completed list of nominees
for each position is submitted in accordance with the provisions
hereof, the governor shall make his or her appointments from the
persons so nominated.
(3) The governor shall appoint one member to represent the
viewpoint of municipalities within the state and one member to
represent the counties within the state. The governor shall
request from the associations representing the municipalities and
counties, respectively, a list of three nominees for such position.
A summary of the qualifications of each nominee shall be submitted with each list. When the completed list of nominees is submitted
in accordance with the provisions hereof, the governor shall make
his or her appointments from the persons so nominated.
(4) The governor shall appoint two members from the general
public who shall be from different political parties and who shall
not represent the viewpoint of the members appointed in accordance
with the provisions of subdivision (2) or (3) of this subsection.
(5) All appointments made by the governor under the provisions
of this section shall be with the advice and consent of the Senate.
(c) Upon the initial appointment of members, the governor
shall specify the length of the beginning term which each member
shall serve, pursuant to the following formula:
(1) With regard to the two members appointed in accordance
with the provisions of subdivisions (2) and (3), subsection (b) of
this section, one member shall serve a beginning term of two years,
and one member shall serve a beginning term of three years;
(2) The two members appointed in accordance with the
provisions of subdivision (3), subsection (b) of this section shall
serve a term of two years;
(3) The member appointed in accordance with the provisions of
subdivision (1), subsection (b) of this section shall be appointed
to serve a beginning term of one year; and
(4) Following the beginning terms provided for in this
subsection, members shall be nominated and appointed in the manner provided for in this section and shall serve for a term of three
years. Members are eligible for reappointment.
(d) The board shall meet at least once during each calendar
quarter, or more often as may be necessary, and at other times upon
the call of the chairman or upon the request of any three members
of the board. The chairman shall set the agenda for all meetings.
No meeting of the board may be conducted unless said notice and
agenda are given to the board members at least five days in
advance, as provided herein, except in cases of emergency, as
declared by the chairman, in which event members shall be notified
of the board meeting and the agenda in a manner to be determined by
the chairman. Four members of the board shall constitute a quorum
and no action may be taken by the board unless agreed to by a
majority of the members present.
(e) Each member of the board shall take and subscribe to the
oath or affirmation required pursuant to section 5, article IV of
the constitution of West Virginia. A member may be removed by the
governor for substantial neglect of duty or gross misconduct in
office, after written notice and an opportunity to reply.
(f) The board shall meet within thirty days of the initial
appointments to the board, at a time and place to be determined by
the governor, who shall designate a member to preside at that
meeting until a chairman is elected. At its first meeting, the
board shall elect a chairman and such other officers as are necessary.
(g) The board shall, within six months after the appointment
of the initial board, promulgate rules for its procedure and to
otherwise carry out its duties under the provisions of this
article. Such rules shall be promulgated as legislative rules
subject to legislative rule-making review and subject to the
administrative procedures act.
(h) The board A franchising authority may subpoena witnesses,
compel their attendance and testimony, administer oaths and
affirmations, take evidence and require by subpoena the production
of books, logs, papers, records or other evidence needed for the
performance of the board's franchising authority's duties or
exercises of its power under the provisions of section twenty-five
of this article. A franchising authority may enter into contracts
and initiate suits as may be necessary for the franchising
authority to issue franchises and regulate franchises, as provided
for in this article.
(I) The board may request the attorney general to provide
legal advice to the board and the attorney general shall comply
with the request. The board shall employ an executive secretary to
be compensated from the cable advisory board fund created under the
provisions of this article in an amount to be fixed by the board.
Such executive secretary shall be in charge of its offices which
shall be within the public service commission, shall be responsible to the board for the maintenance of such offices and shall be the
custodian of all documents filed by cable operators and of any
complaints or other documents which may be filed with the board in
accordance with the provisions of this article. The board is also
authorized to employ and assign the necessary professional and
clerical staff and such hearing examiners as may be necessary to
conduct hearings in such various locations in the state, under the
provisions of section twenty-five of this article, in order to
provide a convenient forum for persons making subscriber complaints
to be heard. The salaries and expenses of any such staff and
hearing examiners shall be paid from the fees assessed and
collected under provisions of this article.
§5-18-7. Compensation and expenses of board members.
Each member of the board not otherwise employed by the state
shall receive a per diem in the amount of fifty dollars while
actually engaged in the performance of the duties of the board,
which shall be paid out of the cable advisory board fund created
under the provisions of this article. Each member shall be
reimbursed for all reasonable and necessary expenses actually
incurred during the performance of his or her duties. Each member
shall receive meals, lodging and mileage expense reimbursements at
the rates established by rule of the secretary of the department of
administration for in-state travel of public employees. The
reimbursement shall be paid out of the state treasury upon a requisition upon the state auditor, properly certified by the
chairman of the board.
§5-18-8.
Duties Additional Powers of franchising authority. West
Virginia cable television advisory board.
A franchising authority may:
The West Virginia cable television advisory board shall:
statewide local plan for the
provision of cable services, setting forth the objectives which the
board franchising authority deems to be in the best interest of the
citizens of the service area this state;
(2) To the extent permitted by, and not contrary to applicable
federal law , rules and regulations:
(A) Prescribe their own standards for procedures and practices
which franchising authorities shall to follow in considering the
issuance of cable franchises, which standards shall and provide for
the forms of applications and proposals, the filing of all
franchise applications, proposals and related documents as public
records, with reasonable notice to the public that such records are
open to inspection and examination during reasonable business
hours; the holding of a public hearing, upon reasonable notice to
the public, at which the applications or proposals shall be
examined and members of the public and interested parties are
afforded a reasonable opportunity to express their views thereon;
the rendition of a written report by the franchising authority made to the public, setting forth the reasons for its decision in
awarding or not awarding the franchise; and such other procedural
standards governing the issuance of cable franchises mandated by
the provisions of this article or as the board franchising
authority may otherwise deem necessary or appropriate to assure
maximum public participation and competition and to protect the
public interest;
(B) Prescribe minimum standards Mandate for inclusion in
franchises, including maximum initial and renewal franchise terms
within the limits set forth in this article; minimum channel
capacity; provisions regarding public, educational or governmental
access facilities; a requirement that no such franchise may be
exclusive; standards necessary or appropriate to protect the
interests of viewers of free broadcast television and the public
generally, which prohibit or limit cable operators from prohibiting
or entering into agreements prohibiting the sale or other transfer
of rights for the simultaneous or subsequent transmission over free
broadcast television; and such other standards for inclusion in
franchises as the board franchising authority shall deem necessary
or appropriate to protect the public interest, including any
provision regulating the rates for cable services to the extent
that the same is not in conflict with preempted by federal law,
rules or regulations;
(C) Prescribe standards by which a it, as franchising authority shall determine whether an applicant possesses (I) the
technical ability, (ii) the financial ability, (iii) the good
character and (iv) other qualifications necessary to operate a
cable system in the public interest;
(D) Prescribe standards for the construction and operation of
cable systems, which standards shall be designed to promote (I)
safe, adequate and reliable service to subscribers, (ii) the
construction and operation of systems consistent with the most
advanced state of the art, (iii) a construction schedule providing
for maximum penetration as rapidly as possible within the
limitations of economic feasibility, (iv) the construction of
systems with the maximum practicable channel capacity, facilities
for local program origination, facilities to provide service in
areas conforming to various community interests, facilities with
the technical capacity for interconnection with other systems
within regions as established in the board's statewide franchise
authority's plan and facilities capable of transmitting signals
from subscribers to the cable system or to other points, and (v)
the prompt handling of inquiries, complaints and requests for
repairs;
(E) Prescribe such standards for the prohibition or limitation
of concentration of control over mass media and communication
companies and facilities and methods of enforcing such standards,
as the board franchising authority may determine to be necessary or appropriate to protect the public interest: Provided, That nothing
contained herein shall be construed to authorize the impairment of
any existing rights of any mass media and communication company or
any subsidiary thereof;
(3) Provide advice and technical assistance to other
franchising authorities and community organizations in matters
relating to cable franchises and services;
(4) Establish minimum specifications for equipment, service
and safety of cable;
(5) Represent the interests of citizens of this state before
the federal communication commission or before any other court or
tribunal and make available information to the public on
communications developments at the federal level;
(6) Stimulate and encourage cooperative arrangements among
organizations, institutions, counties and municipalities in the
development of public, educational or governmental access
facilities;
(7) Maintain liaison with the communications industry and
other parties, both public and private, having an interest therein,
other states and political subdivisions of this state to promote
the rapid and harmonious development of cable services as set forth
in the legislative findings and intent of this article;
(7)(8) Undertake such studies as may be necessary to meet the
responsibilities and objectives of this article; and
(9) Implement the provisions of this article in a manner which
is cognizant of the differing financial and administrative
capabilities of cable systems of different sizes.
§5-18-9. Application or proposal for cable franchise; fee; certain
requirements.
(a) No cable franchise shall be issued except upon written
application or proposal therefor to the franchising authority,
accompanied by a nonrefundable fee of two hundred fifty one
thousand dollars.
(b) An application for issuance of a cable franchise shall be
made on a form prescribed by the board franchising authority. The
application shall set forth the facts as required by the board
franchising authority to determine whether a cable franchise should
be issued, including facts as to:
(1) The citizenship and character of the applicant;
(2) The financial, technical and other qualifications of the
applicant;
(3) The principals and ultimate beneficial owners of the
applicant;
(4) The public interest to be served by the requested issuance
of a cable franchise; and
(5) Any other matters deemed appropriate and necessary by the
board franchising authority, including the proposed plans and
schedule of expenditures for or in support of the use of public, educational and governmental access facilities.
(c) A proposal for issuance of a cable franchise shall be
accepted for filing only when made in response to the written
request of the franchising authority for the submission of
proposals.
§5-18-10. Cable franchise application or proposal procedure;
public hearing; notice.
An application or proposal for a cable franchise shall be
processed as follows:
(1) After the application or proposal and required fee are
received by the franchising authority within a time frame
established by rule promulgated by the board,
sixty days, the
franchising authority shall notify an applicant in writing of the
acceptance or nonacceptance for filing of an application or
proposal for issuance of a cable franchise required by this
article.
(2) Within ninety days after the issuance of a notice of
acceptance for filing, and within a time frame established by rule
promulgated by the board, the franchising authority shall hold a
public hearing on the application or proposal to afford interested
persons the opportunity to submit data, views or arguments, orally
or in writing. If the franchising authority is the board, notice
thereof shall be given to the city council and mayor of any
municipalities affected, the county commission of any counties affected and to any telephone or other utility and cable company in
the county or counties in which the proposed service area is
located, and a representative of the governing body of a
municipality or county commission may appear at the public hearing
to represent the interests of the public which will be served by
the issuance of a cable franchise. The franchising authority shall
also cause notice of the application and hearing to be published at
least once in each of two successive weeks in a newspaper of
general circulation in the county or counties in which the proposed
service area is located. The last published notice shall appear at
least fifteen days prior to the date of the hearing.
(3) After holding a public hearing, the franchising authority
shall approve the application or proposal, in whole or in part,
with or without conditions or modifications, or shall deny the
application or proposal, with reasons for denial sent in writing to
the applicant. Upon denial of the application or proposal, the
applicant may appeal such denial to the circuit court of the county
in which the franchise is to be located, which appeal shall be
filed and considered in accordance with the provisions of section
four, article five, chapter twenty-nine-a of this code. In such a
proceeding, the applicant shall have the burden of proving that the
franchising authority acted unreasonably or arbitrarily in denying
the application.
§5-18-11. Issuance of cable franchise authority; criteria; content.
(a) A franchising authority is empowered to issue a cable
franchise to construct or operate facilities for a cable system
upon the terms and conditions provided in this article.
(b) The franchising authority, after a public hearing as
provided in this article, shall issue a cable franchise to the
applicant when the franchising authority is convinced that it is in
the public interest to do so. In determining whether a cable
franchise shall be issued, the franchising authority shall take
into consideration, among other things, any objections or comments
arising from the public hearing, along with any objections or
comments which have been submitted in writing, the content of the
application or proposal, the public need for the proposed service,
the ability of the applicant to offer safe, adequate and reliable
service at a reasonable cost to the subscribers, the suitability of
the applicant, the financial responsibility of the applicant, the
technical and operational ability of the applicant to perform
efficiently the service for which authority is requested, and any
other matters as the franchising authority considers appropriate in
the circumstances.
(c) In determining the area which is to be serviced by the
applicant, the franchising authority shall take into account the
geography and topography of the proposed service area, and the
present, planned and potential expansion in facilities or cable services of the applicant's proposed cable system and any of the
applicant's existing cable systems.
(d) In issuing a cable franchise under this article, the
franchising authority is not restricted to approving or
disapproving the application or proposal, but may issue it for only
partial exercise of the privilege sought or may attach to the
exercise of the right granted by the cable franchise terms,
limitations which the franchising authority considers the public
interest may require. The cable franchise shall be nonexclusive,
shall include a description of the service area in which the cable
system is to be constructed, extended or operated and the
approximate date on which the service is to commence. and shall
authorize the cable operator to provide service for a term of
fifteen years.
(a) The complete terms and conditions of any franchise shall
be reduced to writing and shall be signed, in the form of an
agreement, by authorized persons on behalf of the franchising
authority and the franchisee.
(b) To the extent that these conditions are not preempted by
federal law, the written franchise agreement shall:
(1) state that the franchise is not exclusive;
(2) state that the franchising authority will not grant to any other applicant a franchise for the same service area containing
more favorable terms and conditions than those contained in the
instant franchise agreement;
(3) state the term of the franchise, which shall not be less than
five years, nor more than ten years;
(4) describe specifically the service area of the franchise;
(5) describe specifically the unserved and uncabled areas within
the jurisdiction of the franchising authority to which the
franchisee is required to expand its cable service;
(6) state specifically the time periods within which the expansions
set forth in subdivision (5) above are required to be done;
(7) state specifically the minimum channels to be provided to the
subscribers of the system;
(8) state specifically the procedures by which the franchisee may
be required to provide additional channels to the subscribers of
the system.
(9) state specifically the maximum charges or rates that the
franchisee may impose on the subscribers of the system for cable
service subscriptions, including detailed charges for each type or
package of subscription;
(10) state specifically whether or not the franchisee is permitted
ever during the life of the franchise to increase rates charged to
subscribers, and if so, the circumstances permitting increases in
rates and the maximum amounts by which cable rates may be increased in such circumstances;
(11) state specifically the maximum amount(s) that the franchisee
may charge for any other service that it may perform, including
charges for hook-ups, disconnections, reconnections, service calls,
and any other charges that the franchisee will ever impose upon a
subscriber;
(12) state specifically whether or not the franchisee is permitted
ever during the life of the franchise to increase
charges set forth
in subdivision (11) above, and if so, the circumstances permitting
increases and the maximum amounts by which those charges may be
increased in such circumstances;
(13) state specifically that subscribers shall be entitled to
credit upon their cable television bills for one-thirtieth (1/30th)
of the subscriber's monthly bill for each day in which the
subscriber has a loss of service for six hours or more;
(14) state specifically that the franchisee consents to the
jurisdiction of the circuit court of the county in which the
franchise is located for all suits and actions arising under the
provisions of this article or arising out of any franchise
agreement.
(15) state specifically that an action to enforce the provisions of
this article, or for damages or other relief contemplated under
this article, may be brought by any of the following persons:
(A) the franchising authority;
(B) any subscriber of the franchisee's cable television system;
(C) any person in any area to which the franchisee is required to
extend cable service;
The written franchise agreement may contain such other terms
and conditions as the parties may agree upon and reduce to writing.
§5-18-12. Cable system installation, construction, operation,
removal; general provisions.
(a) A cable franchise shall be construed to authorize the
construction or operation of a cable system within the service area
above, below, on, in or along any highway or other public place and
through easements which have been dedicated for compatible
purposes.
(b) The technical specifications, general routes of the
distribution system and the schedule for construction of the cable
system are subject to the approval of the franchising authority.
(c) In installing, operating and maintaining facilities, the
cable operator shall avoid all unnecessary damage and injury to any
trees, structures and improvements in and along the routes
authorized by the franchising authority.
(d) The cable operator shall indemnify and hold the state,
county and municipality harmless at all times from any and all
claims for injury and damage to persons or property, both real and
personal, caused by the installation, operation or maintenance of
its cable system, notwithstanding any negligence on the part of the state, county and/or municipality, their employees or agents. Upon
receipt of notice in writing from the state, county and/or
municipality, the cable operator shall, at its own expense, defend
any action or proceeding against the state, county and/or
municipality in which it is claimed that personal injury or
property damage was caused by activities of the cable operator in
the installation, operation or maintenance of its cable system.
(e) The cable operator shall provide a cable drop and basic
cable service at no cost to any school or institution of higher
education within its service area if service is actually being
delivered within a reasonable distance from the school or
institution of higher education which may request service.
(f) The cable operator shall be required to designate at least
ten percent but not more than three of all of its channels for
public, educational or governmental use.
(g) Upon termination of the period of the cable permit or of
any renewal thereof, by passage of time or otherwise, the cable
operator shall remove its facilities from the highways and other
public places in, on, over, under or along which they are installed
if so ordered by the franchising authority and shall restore the
areas to their original or other acceptable condition or otherwise
dispose of its facilities. If removal is not completed within six
months of the termination, any property not removed shall be deemed
to have been abandoned and forfeited to the franchising authority, and, if the property be removed, the cable operator shall be liable
for the cost of its removal.
(h) The use of public highways and other public places shall
be subject to:
(1) All applicable state statutes, municipal ordinances and
all applicable rules and orders of the public service commission
governing the construction, maintenance and removal of overhead and
underground facilities of public utilities;
(2) For county highways, all applicable rules adopted by the
governing body of the county in which the county highways are
situated; and
(3) For state or federal-aid highways, all public welfare
rules adopted by the secretary of the department of transportation.
(I) In the use of easements dedicated to compatible purposes,
the cable operator shall ensure:
(1) That the safety, functioning and appearance of the
property and the convenience and safety of other persons is not
adversely affected by the installation or construction of
facilities necessary for a cable system;
(2) That the cost of the installation, construction, operation
or removal of facilities is borne by the cable operator or
subscribers, or a combination of both; and
(3) That the owner of the property is justly compensated by
the cable operator for any damages caused by the installation, construction, operation or removal of facilities by the cable
operator.
§5-18-13. Revocation, alteration, or suspension of cable
franchise; penalties.
(a) Any cable franchise issued in accordance with the
provisions of this article may be revoked, altered or suspended by
the franchising authority upon the recommendation of the cable
advisory board to a municipality or county acting as a franchising
authority or after a hearing before the franchising authority, for
the following reasons:
(1) For making material false or misleading statements in, or
for material omissions from, any application or proposal or other
filing made with the franchising authority;
(2) For failure to maintain signal quality under the standards
prescribed by the board franchising authority;
(3) For any sale, lease, assignment or other transfer of its
cable franchise without consent of the franchising authority;
(4) Except when commercially impracticable, for unreasonable
delay in construction or operation or for unreasonable withholding
of the extension of cable service to any person in a service area;
(5) For violation of the terms of its cable franchise;
(6) For failure to comply with this article or any rules,
regulations or orders prescribed by the board;
(7) For violation of its filed schedule of terms and conditions of service; and
(8) For engaging in any unfair or deceptive act or practice.
(b) In lieu of, or in addition to, the relief provided by
subsection (a) hereof, the franchising authority may fine a cable
operator, for each violation under the provisions of this section,
in an amount not less than fifty dollars nor more than five
thousand dollars for each violation. Each day's continuance of a
violation may be treated as a separate violation pursuant to rules
and regulations adopted by the board. Any penalty assessed under
this section shall be in addition to any other costs, expenses or
payments for which the cable operator is responsible under other
provisions of this article.
(c) Any cable operator against whom a fine is levied or a
franchise is revoked or suspended, pursuant to the provisions of
this section, shall have the right to appeal such revocation of
suspension to the circuit court of the county in which the
franchise is located. In such an appeal, the appellant shall have
the burden of proving that the franchising authority acted in an
arbitrary and capricious manner. If a petition for appeal is not
filed with the circuit court by a cable operator within thirty (30)
days of the action complained of, then the right of such an appeal
shall be forever waived.
§5-18-14. Renewal of cable franchise.
Any cable franchise issued pursuant to this article may be renewed by the franchising authority upon approval of a cable
operator's application or proposal therefor and in accordance with
the provisions of 47 U.S.C. §546 as the same is federal law in
effect on the effective date of this article. The form of the
application or proposal shall be prescribed by the board
franchising authority. The application or proposal fee shall be
the same fee prescribed for franchise applications. The periods of
renewal shall be not less than five nor more than twenty ten years
each. The board franchising authority shall require of the
applicant full disclosure, including the proposed plans and
schedule of expenditures for or in support of the use of public,
educational or governmental access facilities.
§5-18-15. Transfer of cable franchise.
(a) No cable system and no cable franchise, including any
system without a franchise and any franchise in existence on the
effective date of this article, and including the rights,
privileges and obligations thereof, may be assigned, sold, leased
or otherwise transferred, voluntarily or involuntarily, directly or
indirectly, including a transfer of control of any cable system,
whether by change in ownership or otherwise, except upon written
application to and approval of the appropriate franchising
authority or authorities. The form of the application for transfer
shall may be prescribed by the board franchising authority.
(b) Notice provisions may be prescribed by the board franchising authority for encumbrances creating potential
transfers.
(c) The procedure for consideration of any transfer under the
provisions of this section shall conform, as nearly as possible, to
the procedures prescribed in sections nine and ten of this article
for the consideration of issuing cable franchises, including the
application fee therefor.
§5-18-16. Rates; filing with board franchising authority;
approval.
(a) The board shall require each Every cable operator is
required to file a schedule of its rates of service on a form and
with the notice that the board franchising authority may prescribe.
(b) To the extent permitted by federal law, the board
franchising authority shall regulate rates to ensure that they are
just and reasonable both to the public and to the cable operator
and are not unduly discriminatory.
(c) To the extent permitted by federal law, the board
franchising authority shall regulate charges other than those
related to rates for the provision of basic cable service to ensure
that they are just and reasonable and not unduly discriminatory.
§5-18-17. Requirement for adequate service; terms and conditions
of service.
(a) Every cable operator shall provide safe, adequate and
reliable service in accordance with applicable laws, rules, franchise requirements and its filed schedule of terms and
conditions of service.
(b) The board shall require each Every cable operator to shall
submit a schedule of all terms and conditions of service in the
form and with the notice that the board franchising authority may
prescribe.
(c) The board shall ensure that the terms and conditions upon
which cable service is provided are fair both to the public and to
the cable operator, taking into account the geographic, topographic
and economic characteristics of the service area and the economics
of providing cable service to subscribers in the service area.
§5-18-18. Procedures for restoring interrupted service and
improving substandard service.
(a) Each cable operator, for the purpose of restoring
interrupted service and improving substandard service, shall be
able to receive calls twenty-four hours a day, seven days a week,
and shall have one or more qualified persons as may be necessary to
repair the cable system, facilities and equipment owned by the
cable operator and located on a subscriber's premises, including,
but not limited to, cable receiving equipment and directly
associated equipment.
(b) Each cable operator shall restore interrupted service not
later than twenty-four hours after being notified by a subscriber
that service has been interrupted, unless (1) service cannot be restored until another company repairs facilities owned by such
company and leased to, or required for the operation of, the cable
service, (2) the interruption was caused by an act of nature or (3)
the cable operator is unable to restore service within twenty-four
hours due to extenuating circumstances. In the event of such
extenuating circumstances, the company shall restore service as
soon as feasible and then submit a written notice to the board
franchising authority indicating that service has been restored and
explaining the nature of the extenuating circumstances.
§5-18-19. Credit or refund for interrupted service.
(a) If cable service to a subscriber is interrupted for more
than twenty-four six continuous hours, such subscriber shall, upon
request, receive a credit or refund from the cable operator in an
amount that represents the proportionate share of such service not
received in a billing period, provided such interruption is not
caused by the subscriber.
(b) The board shall promulgate rules establishing a viewing
time reliability standard for cable operators and requiring such
companies to file with the board information on service
interruptions not caused by subscribers.
§5-18-20. Office operating requirements; office hours.
Each cable operator shall operate a business office in or near
its area of operation as approved by the franchise authority or the
board that shall be open during normal business hours, and each cable operator shall operate sufficient telephone lines, including
a toll-free number or any other free calling option, as approved by
the board, staffed by a company customer service representative
during normal business hours.
§5-18-21. Notice to subscribers regarding quality of service.
(a) Annually, every cable operator shall mail to each of its
subscribers a notice which:
(1) Informs subscribers how to communicate their views and
complaints to the cable operator and to the board franchising
authority;
(2) States the responsibility of the board franchising
authority to receive and act on consumer complaints concerning all
matters regulated under this article; other than channel selection,
programming and rates; and
(3) States the policy regarding the method by which
subscribers may request rebates or pro rata credit as described in
section nineteen of this article.
(b) The notice shall be in nontechnical language,
understandable by the general public, and in a convenient format.
On or before the thirtieth day of January of each year, the
operator shall certify to the franchising authority and the board
that it has distributed the notice as provided in this section
during the previous calendar year as required by this section.
§5-18-22. Recording of subscriber complaints.
(a) Every cable operator shall keep a record or log of all
complaints received regarding quality of service, rates,
programming, equipment malfunctions, billing procedure, employee
relations with customers and similar matters as may be prescribed
by the board franchising authority. The records shall be
maintained for a period of two years.
(b) The record or log shall contain the following information
for each complaint received:
(1) Date, time, nature of complaint;
(2) Name, address, telephone number of complainant;
(3) Investigation of complaint; and
(4) Manner and time of resolution of complaint.
(c) Consistent with the subscriber privacy provisions
contained in 47 U.S.C. §551 as the same is in effect on the
effective date of this article federal law, every cable operator
shall make the logs or records, or both, of such complaints
available to any authorized agent of the board and the franchising
authority, upon request during normal business hours for on-site
review.
§5-18-23. Public Service Commission to be franchise document
clearinghouse.
(a) Within sixty days of the effective date of this article,
all cable operators holding an existing franchise shall file a copy
of the franchise and any federal communications commission rulings or other rulings affecting such franchises with the board If the
board shall not have been appointed and organized within sixty days
of the effective date of this article, then such filing shall be
made with the public service commission where such documents shall
be retained for delivery to the board following the appointment and
organization of its members. examination by other franchising
authorities and citizens.
(b) Within sixty days of the granting of an initial franchise,
a renewal franchise or a transferred franchise, the franchisee
shall file a copy of the franchise and any federal communications
commission rulings or other rulings affecting such franchise with
the board public service commission and the franchising authority.
The board public service commission and franchising authority shall
maintain a file of all franchise documents so recorded and make
copies available upon request for the cost of reproduction and
mailing, plus a reasonable administrative fee. The filing fee for
initial, renewal or transfer franchise documents is two hundred
and fifty dollars per franchise, renewal or transfer of such
franchise. In years in which the filing of initial, renewal or
transfer franchise documents is not required, the franchisee shall
pay a fee of twenty-five one hundred dollars for each franchise it
holds.
(c) All such fees paid by any cable operator are franchise
fees with the intent and meaning of 47 U.S.C. §542 as the same is in effect on the effective date of this article federal law.
§5-18-24. Rights of individuals.
A cable television system operator may not deny service, deny
access, or otherwise discriminate against subscribers, channel
users, or any other citizens on the basis of age, race, religion,
sex, physical handicap or country of natural origin.
§5-18-25. Complaints; violations; penalties.
(a) Subscriber complaints regarding the operation of a cable
system must may be made in writing and filed with the board
franchising authority. The board franchising authority shall take
up such complaints with the cable operator complained against in an
endeavor to bring about satisfaction of the complaint without
formal hearing.
(b) The board franchising authority shall resolve all
complaints, if possible, informally. No form of informal complaint
is prescribed, but the writing must contain the essential elements
of a complaint, including the name and address of the complainant,
the correct name of the cable operator against which the complaint
is made, a clear and concise statement of the facts involved and a
request for affirmative relief.
(c) In the event that the board franchising authority cannot
resolve the complaint to the satisfaction of all parties, the
complainant may file a formal request to the board franchising
authority and he or she is entitled to a hearing before the board franchising authority., which hearing shall be conducted in
accordance with chapter twenty-nine-a of the code, and The
complainant and cable operator shall be afforded all rights
including the right of appeal as set forth in said chapter herein.
(d) A cable operator may be subject to a fine or civil penalty
in accordance with subsection (e) hereof, upon a determination by
the board franchising authority or court that the cable operator
has violated any of the following:
(1) The material terms of its cable franchise; or
(2) Substantial compliance with this article or rules or
orders prescribed by the board.
(e) The board franchising authority may fine or assess obtain
civil penalties against a cable operator for each violation of
subsection (d) of this section in an amount not less than fifty
dollars nor more than five hundred dollars for each violation. Any
penalty assessed under this section is in addition to any other
costs, expenses or payments for which the cable operator is
responsible under other provisions of this section.
(f) The board franchising authority may permit, in lieu of a
full hearing before the board, one of its hearing examiners to
conduct hearings and report its findings to the board.
(f)(g) No cable operator shall charge for more than one outlet
per household.
(g)(h) No cable operator may raise rates or retier and charge subscribers without complete compliance with the terms of this
article and the applicable franchise agreement. providing to his or
her subscribers sufficient advance written notice and opportunity
to discontinue service.
(h) As an alternative to filing an informal or formal
complaint with the franchising authority, any subscriber or person
to whom cable service is required by the franchise agreement to be
extended may file an action in the circuit court of the county
wherein the franchise exists. In any such action, the circuit court
shall have authority to fashion any legal or equitable relief as
may be just and appropriate under the circumstances.
§5-18-26. Other duties of board powers of franchising authority;
suit to enforce article.
(a) The board Every franchising authority has the power and
jurisdiction to supervise every cable operator within this state
its jurisdiction so far as may be necessary to carry out the
purposes of this article and to do all things which are necessary
or convenient in the exercise of this power and jurisdiction.
(b) The board may adopt rules and regulations as are necessary
to implement the provisions of this article.
(b)(c) The board or the board's franchising authority or the
franchising authority's designated representatives may, from time
to time, visit the places of business and other premises and
examine the records and facilities of all cable operators to ascertain if all laws, rules, regulations and cable franchise
provisions have been complied with, and may examine all officers,
agents and employees of cable operators and all other persons,
under oath, and compel the production of papers and the attendance
of witnesses to obtain the information necessary for administering
this article.
(d) The board may appoint or contract for assistants and
clerical, stenographic and other staff as may be necessary for the
proper administration and enforcement of this article.
(d)(e) The board franchising authority or other aggrieved
party may institute, or intervene as a party in, any action in any
court of law seeking a mandamus, or injunctive or other relief to
compel compliance with this article, or any rule, regulation, or
order adopted hereunder, or to restrain or otherwise prevent or
prohibit any illegal or unauthorized conduct in connection with
this article.
§5-18-27. Reports.
Each cable operator shall file with the board franchising
authority and the public service commission reports of its
financial, technical and operational condition and its ownership.
The reports shall be made quarterly in a form and on the time
schedule prescribed by the board prescribed by the public service
commission and shall be kept on file open to the public.
§5-18-28. Annual fees; effect of application and filing fees on franchise fees.
(a) Each cable operator shall pay to the franchising authority
board an annual fee in an amount not less than twenty thirty cents
per subscriber or such greater annual fee as may be determined by
the board. Such funds and all other funds to be paid to the board
under the provisions of this article shall be deposited into a
special fund designated the "cable advisory board fund". Such fund
shall be used for purposes of administering the provisions of this
article. To the extent permitted by federal law, the board may
prohibit cable operators from assessing subscribers for any
contribution toward the annual fee to be paid hereunder.
(b) In addition to all other fees set forth in this article,
every cable operator shall pay a franchise fee to the franchising
authority in which the cable operator, which shall be that which is
permitted under 47 U.S.C. § 542.
(c)(b) Any filing fee required under the provisions of this
article and the annual fee to be paid to the board under the
provisions of this section, together with any franchise fee paid to
any franchising authority, may not exceed the maximum amount for
any franchise fee as set forth in 47 U.S.C. §542 as the same is in
effect on the effective date of this article. To the extent
permitted by federal law, the board franchising authority may
prohibit cable operators from assessing subscribers for any
contribution toward the annual fee to be paid hereunder.
§5-18-29.
Cable television industry not regulated as a utility
Attorney's Fees.
No provision of this article may be construed to grant the
board the power to regulate the cable television industry as a
utility.
In any action authorized under this article, whether before
the franchising authority or any other court or tribunal, including
proceedings in the circuit court, if the decision or judgment be
against a cable operator, then the cable operator shall be liable
to the opposing parties for all of their costs ,including their
reasonable attorney's fees, expended in the matter.
§5-18-30. Severability. Construction of Article.
If any provision of any subparagraph, subsection or section of
this article is held to be unconstitutional or void, the remaining
provisions of such subparagraph, subdivision, subsection or section
shall remain valid, unless the court finds the valid provisions are
so essentially and inseparably connected with, and so dependent
upon the unconstitutional or void provision that the court cannot
presume the Legislature would have enacted the remaining valid
provisions without the unconstitutional or void one, or unless the
court finds that the remaining valid provisions, standing alone,
are incomplete and are incapable of being executed in accordance
with the legislative intent.
(b) With respect to the rights of enforcement conferred by
this article upon franchising authorities, subscribers and other
citizens, this article shall be liberally construed in favor of
those rights.
ARTICLE 3D. THEFT OF CABLE TELEVISION SERVICES.
§61-3D-3. Device or plan intended for acquisition or diversion;
penalties; civil action; remedies.
(a) A person who sells, gives or otherwise transfers to
another or offers, advertises or exposes for sale to another any
device, mechanism, tool or printed circuit, or any kit, plan or
instructional procedure for the making of such device, mechanism,
tool or printed circuit, with the knowledge that another will
acquire cable television services in violation of this article; or
who attaches, maintains the attachment of or uses any of the
foregoing devices for the purpose of remuneration or for commercial
advantage, with the knowledge that cable television services will
be or are being acquired in violation of this article, shall be
guilty of a misdemeanor and shall be punishable in accordance with
subsection (b) of this section, or shall be civilly liable in
accordance with subsection (c) of this section, or both: Provided,
That the provisions of this section do not apply to solely private
use of the foregoing devices.
(b) A person convicted of a misdemeanor under this section
shall be punished as follows:
(1) Upon a first conviction under this section, the defendant
shall be fined not less than two hundred fifty dollars, nor more
than five hundred dollars.
(2) Upon a second conviction under this section, the defendant
shall be fined not less than five hundred dollars, nor more than
one thousand dollars, or imprisoned in the county jail not more
than thirty days, or both fined and imprisoned.
(3) Upon a third conviction under this section, the defendant
shall be fined not less than five hundred dollars, nor more than
one thousand dollars, or imprisoned in the county jail not less
than sixty days, nor more than one year.
(c) Any cable operator, cable system or other aggrieved party
may bring an action in any court of competent jurisdiction to
enjoin and restrain any violation of the provisions of this
section, or may bring a civil action for damages, or both.