COMMITTEE SUBSTITUTE
FOR
H. B. 4240
(By Delegates Trump, Miller, L. White and Hutchins)
(Originating in the Committee on the Judiciary)
[March 5, 1998]
A BILL to repeal section seven, article eighteen, chapter five
of the code of West Virginia, one thousand nine hundred
thirty-one, as amended; to amend and reenact sections two,
three, four, five, six, eight, nine, ten, eleven, twelve,
thirteen, fourteen, fifteen, sixteen, seventeen, nineteen,
twenty-one, twenty-two, twenty-three, twenty-five, twenty- seven, twenty-eight, twenty-nine and thirty of said article;
to further amend said article by adding thereto two new
sections, designated sections eleven-a and eleven-b; and to
amend and reenact section three, article three-d, chapter
sixty-one of said code, all relating generally to the
regulation of cable television service; establishing a short
title; modifying prior legislative findings and definitions;
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; reestablishing
and delineating the duties and powers of the cable
television advisory board; providing procedures for
applications and proposals for cable televisions franchises
and establishing 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; permitting certain agreements involving
cable rates; providing general requirements relating to the
installation, construction and operation, and removal of
cable television systems; providing for revocation,
alteration and suspension of cable franchises; providing for
civil penalties; providing for the renewal of franchises;
restricting transfers of cable television franchises;
permitting the board to regulate rates in certain instances;
requiring adequate service; providing refunds and credits
for service interruptions; requiring notices to subscribers
regarding quality of service; requiring recordation of
subscriber complaints; requiring that the public service
commission serve as a document clearinghouse; providing a
mechanism for the handling of subscriber complaints;
providing for other powers to be vested in franchising authorities; requiring certain 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 two, three, four, five,
six, eight, nine, ten, eleven, twelve, thirteen, fourteen,
fifteen, sixteen, seventeen, nineteen, twenty-one, twenty-two,
twenty-three, twenty-five, twenty-seven, twenty-eight, twenty- nine and thirty of said article be amended and reenacted; that
said article be further amended by adding thereto two new
sections, designated sections eleven-a and eleven-b; and that
section three, article three-d, chapter sixty-one of said code be
amended and reenacted, all to read as follows:
CHAPTER 5. GENERAL POWERS AND AUTHORITY OF THE GOVERNOR,
SECRETARY OF STATE AND ATTORNEY GENERAL; BOARD OF PUBLIC WORKS;
MISCELLANEOUS AGENCIES, COMMISSIONS, OFFICES, PROGRAMS, ETC.
ARTICLE 18. WEST VIRGINIA CABLE TELEVISION SYSTEMS ACT.
§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
regulation of the service provided and the prices charged by
cable television operators. 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 uniform
standards for the provision of cable service; to permit local
franchising authorities to develop and establish uniform
procedures for the investigation and resolution of complaints
concerning cable service; and 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.
(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.
(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.
(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.
(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.
(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.
(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.
(11) "Franchising authority" means a municipality, a county
commission or the West Virginia cable television advisory board.
(12) "Institution of higher education" means an academic
college or university accredited by the North Central Association
of Colleges and Schools.
(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.
(14) "Other programming service" means information that a
cable operator makes available to all subscribers generally.
(15) "Person" means an individual, partnership, association,
joint stock company, trust, corporation or governmental agency.
(16) "Proposal" means a filing solicited by the franchising
authority for a cable franchise.
(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.
(18) "Public place" includes any property, building,
structure or water to which the public has a right of access and
use.
(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.
(20) "Service area" means the geographic area for which a
cable operator has been issued a cable franchise.
(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 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.
(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.
(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 a cable operator and any franchising authority 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 under which a cable operator has voluntarily
agreed to limit its cable rates to subscribers, 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.
(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 terms of office of all of the members of the board
serving on the effective date of the reenactment of this section
in the year one thousand nine hundred ninety-eigh
t shall expire
on the effective date of such reenactment, and the governor shall
appoint a new board forthwith as provided herein. The new board
shall consist of seven nine members, who shall be residents of
this state, and who shall be appointed as follows from the lists
of nominees submitted to the governor pursuant to this
subsection. Each body submitting a list of nominees pursuant to
this subsection shall also submit a summary of the qualifications
of each nominee on the list. When a 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 on the list.
(1) The governor shall appoint one member to represent the
viewpoint of the public service commission senior citizens living
on fixed incomes. When the this member is to be appointed, the
governor shall request from the public service commission West
Virginia chapter of the American association of retired persons
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 fewer 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 one member to represent the consumer advocate division
of the public service commission. The governor shall request
from the director of the consumer advocate division a list of
three nominees for such position.
(5) The governor shall appoint one member to represent the
interests of the consumer protection and antitrust division of
the office of the attorney general. The governor shall request
from the attorney general a list of three nominees for such
position.
(6) The governor shall appoint one member to represent the interests of children and children's cable television
programming. The governor shall request from the governor's
cabinet on families and children a list of three nominees for
such position.
(7) The governor shall appoint one member to represent the
interests of the deaf and hard of hearing. The governor shall
request from the West Virginia commission for the deaf and hard
of hearing a list of three nominees for such position.
(8) No person who is employed by, who has any financial
dealings with, other than as a subscriber, or interest in any
cable operator or cable company shall be eligible to a seat on
the board.
(5) (9)
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 this subsection.
(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. Three of the members shall be appointed for
terms of one year, three shall be appointed for two years, and
three shall be appointed for three years. The governor shall
designate which members shall serve initial terms of one, two or
three years. After the initial terms have expired, all members
of the board shall be appointed for terms 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 Five 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 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 duties or exercises of its power under the provisions
of section twenty-five of 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.
§5-18-8. Duties
and powers of West Virginia cable television
advisory board.
The West Virginia cable television advisory board shall:
(1) Develop and maintain a statewide plan for the provision
of cable services, setting forth the objectives which the board
deems to be in the best interest of the citizens of this state;
(2) To the extent permitted by, and not contrary to
applicable federal law, rules and regulations:
(A) Prescribe standards for procedures and practices which
franchising authorities shall
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 may otherwise deem
necessary or appropriate to assure maximum public participation
and competition and to protect the public interest;
(B) Prescribe minimum standards for inclusion in franchises,
including maximum initial and renewal terms, which shall be not
less than five nor more than ten years; 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 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 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 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 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 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;
(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. Stimulate and
encourage the creation of competition between cable operators in
every franchise area of this state.
§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. The application shall
set forth the facts as required by the board 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, 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.
§5-18-11a.
Franchise agreement in writing; mandatory and
permissive terms and conditions.
(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) Recite specifically any maximum charges or rates to
which the franchisee has voluntarily agreed that it would limit itself in imposing charges and rates on the subscribers of the
system for cable service subscriptions, including detailed
charges for each type or package of subscription;
(10) Recite specifically whether or not the franchisee has
voluntarily entered into any agreement by which the franchisee
has agreed to limit itself in the increases it will impose ever
during the life of the franchise on the rates charged to
subscribers, and if so, the franchise agreement shall recite the
specific circumstances which the franchisee has voluntarily
agreed upon 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 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; and
(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; and
(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.
§5-18-11b. Voluntary agreements regarding cable rates
distinguished from rate regulation.
A cable operator or franchisee may enter into a voluntary
agreement with a franchising authority under which the cable
operator agrees to charge its subscribers less than the maximum
amount that it could charge under the lawful rate regulations of
the board. Such an agreement shall be enforceable against the
cable operator, the board and any subscriber in the franchise area. If a cable operator enters into such an agreement, the
limitations on cable rates therein shall not be construed as the
regulation of cable rates by the franchising authority.
§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 is 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;
(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 the franchise of which has been
revoked, modified or suspended pursuant to the provisions of this
section shall have the right to appeal such revocation,
modification or 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 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 federal law
as the same is in effect on the effective date of this article. The form of the
application or proposal shall be prescribed by the board. 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 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 be prescribed by the board.
(b) Notice provisions may be prescribed by the board 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; approval.
(a) The board shall require each cable operator to file a
schedule of its rates of service on a form and with the notice
that the board may prescribe.
(b) To the extent permitted by federal law, the board 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. The board's primary mission in this regard is to
keep the rates as low as possible for the cable subscribers of
this state.
(c) To the extent permitted by federal law, the board 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.
(d) For purposes of this article, "rate regulation" does not
include any voluntary agreement on the part of a cable operator
to limit cable rates to amounts specified in a franchise
agreement. If a franchise agreement provides for cable rates in
excess of those permitted by the board in the exercise of its
authority to regulate rates, then the rates set by the board
shall govern.
§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 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.
§5-18-19. 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.
§5-18-21. 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;
(2) States the responsibility of the board to receive and
act on consumer complaints concerning all matters other than
channel selection, programming and rates regulated under this
article;
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. 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 federal law as the same is in effect
on the effective date of the reenactment of this article in the
year one thousand nine hundred ninety-eight, 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 federal law
as
the same is in effect on the effective date of the reenactment of
this article in the year one thousand nine hundred ninety-eight,
.
§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 on a
form prescribed by the board. The complaint form shall be in
non-technical language which is clearly understandable to the
general public. The board 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 shall resolve all complaints, if possible,
informally. No form of informal complaint is prescribed, but the
writing An informal complaint 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 cannot resolve the complaint
to the satisfaction of all parties, the complainant may file a
formal request to the board and he or she is entitled to a
hearing before the board. which hearing shall be conducted in
accordance with chapter twenty-nine-a of the code, and the 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 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 may fine or 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 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.
(g) No cable operator shall charge for more than one outlet
per household.
(h) No cable operator may raise rates or retier and charge
subscribers without providing to his or her subscribers
sufficient advance written notice and opportunity to discontinue
service complete compliance with the terms of this article and
the applicable franchise agreement.
(i) As an alternative to filing an informal or formal
complaint with the board, 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.
§5-18-27. Reports.
Each cable operator shall file with the board 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 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 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) 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.
§5-18-29. 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 board, the franchising authority or any other court or
tribunal, including proceedings in a 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. 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.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
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.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added. However, sections 5-18-11a and 5-18-11b are
new, therefore, strike-throughs and underscoring have been
omitted from those sections.