Definitions

For the purposes of this chapter, the following terms, phrases, words and derivations shall have the meanings given herein. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number, and words in the singular number include the plural number. The words "shall" and "will" are mandatory, and "may" is permissive. Words not otherwise defined herein or in any license agreement that might be granted hereunder shall be given the meaning set forth in the Communications Act of 1934, 47 U.S.C. § 521 et seq., and the Cable Communications Policy Act of 1984, as amended by the Cable Television Consumer Protection and Competition Act of 1992, and as amended by the Telecommunications Act of 1996, and as those Acts may hereinafter be amended (collectively the "Cable Act"), and, if not defined therein, the common and ordinary meaning.

Activated channel means those channels engineered at the headend of a cable system for the provision of services generally available to subscribers of the cable system, regardless of whether such services actually are provided, including any channel designated for public, educational, or governmental use. Channels on which signals flow in the direction from the headend to the subscriber are referred to as "downstream channels." Where the signal flows to the headend for redistribution, it shall be referred to as an "upstream channel."

Access channel means any channel on a cable system set aside without charge by the licensee for public, educational and/or local governmental use.

Affiliate means any person who directly or indirectly owns or controls, is owned or controlled by, or is under common ownership or control with a licensee.

Analog channel means no less than six MHz of bandwidth.

Applicant means any person submitting an application within the meaning of this chapter.

Application means any proposal, submission or request to (1) construct and operate a cable system within the city; (2) transfer a license or control of the license or the licensee; (3) renew a license; (4) modify a license; or (5) seek any other relief from the city pursuant to this chapter, a license agreement, the Cable Act, or other applicable law.

Basic cable service or basic service means any service tier which includes the retransmission of local television broadcast signals, and public, educational, or governmental access channels and such services as may be defined as basic by applicable law, as otherwise provided in the license agreement, during the term of any license granted pursuant to this chapter.

Cable Act means the Communications Act of 1934, 47 U.S.C. § 521 et seq., as that Act has and may hereinafter be amended.

Cable operator means any person or group of persons who provides cable service over a cable system and directly or through one or more affiliates owns a significant interest in such cable system, or who otherwise controls or is responsible for, through any arrangement, the management and operation of such a cable system.

Cable service means the transmission of video or other programming services over a cable system to subscribers together with subscriber interaction, if any, which is required for the selection or use of such video programming or other programming services. To the extent not prohibited by applicable law, a licensee agrees that cable internet services, including, but not limited to @Home, Roadrunner and MediaOne Express, or other similar services, provided by a licensee, its parent, affiliates or subsidiaries, over the cable system shall be deemed "cable services" as permitted under Title VI of the Communications Act of 1934, as amended.

Cable system, or system means any facility consisting of a set of closed transmission paths or other transmission lines 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 the city. Such term does not include (1) a facility that serves only to retransmit the television signals of one or more television broadcast stations; (2) a facility that serves subscribers without using any public rights-of-way; (3) a facility of a common carrier that is subject, in whole or in part, to the provisions of Title II of the Communications Act of 1934, 47 U.S.C. § 201 et seq., except that such facility shall be considered a cable system (other than for purposes of Section 621(c) of the Cable Act) to the extent it is used in the transmission of video programming directly to subscribers, unless the extent of such use is solely to provide interactive on demand services; (4) an open video system that complies with Section 653 of the Telecommunications Act of 1996; or (5) any facilities of any electric utility used solely for operating its electric utility systems. The foregoing definition of "cable system" shall not be deemed to circumscribe the valid authority of the city to regulate the activities of any other communications system or provider of communications services, including but not limited to telephony and open video systems.

City means the City of Miami, a municipal corporation of the State of Florida, in its present incorporated form or in any later reorganized, consolidated, enlarged or reincorporated form.

Commission means the city commission of the City of Miami, Florida.

Control of a licensee or applicant means possession of the ability to direct or cause the direction of the management or policies of a licensee or applicant, or the operation of the licensee's system, whether through operational control in whatever manner exercised or ownership of voting securities, by contract or understanding, or in any other manner.

Fair market value means the price that a willing buyer would pay to a willing seller for a going concern but with no value allocated to the license itself.

FCC means the Federal Communications Commission, or any successor governmental entity thereto.

Gross revenues means all revenues recognized in accordance with Generally Accepted Accounting Principles (GAAP) generated directly or indirectly by the licensee and, any affiliates, subsidiaries or parent of the licensee, provided that such entities are considered cable operators as such term is defined herein, from any source whatsoever arising from, attributable to, or in any way derived from the operation of the cable system to provide cable services in the city. Notwithstanding anything to the contrary contained in this subparagraph, gross revenues include, but are not limited to, fees charged subscribers for basic service; fees charged subscribers for any optional, premium, per-channel or per-program service; fees charged subscribers for any tier of service other than basic service; installation, disconnection, reconnection and change-in-service fees; late fees; leased access fees; revenue from converter, remote, modem or any other equipment rentals; revenues from installation, service and content enhanced internet products and services including, but not limited to, access services and content enhanced services to the extent said services may be considered Title VI services according to applicable law; revenues from cable guides; advertising revenues allocable to the city based on a percentage of subscribers in the city divided by the subscribers in the system (such percentage shall then be multiplied by the total advertising revenue of the system to determine the allocable gross revenue stemming from advertising); and revenues from home shopping channels or other sources allocable to the city, provided that where certain home shopping channel or other such revenue is allocable to more than one license area due to common zip codes, the licensee shall allocate the percentage of revenue to the city which is equivalent to the percentage of the population of the city divided by the total population for the allocable license areas in question. Gross revenues shall be the basis for computing the license fee imposed pursuant to section 11-16 hereof. Gross revenues shall not include revenues received from programmers and used by licensee to market or promote a programming service; any revenue received by licensee for payment in connection with PEG access or facilities as required by subsection 11-15(b); any taxes on services furnished by the licensee which are imposed upon any subscriber or user by the state, county, city or other governmental unit and collected by the licensee on behalf of said governmental unit and which the licensee passes on in full to the applicable tax authority. However, it is hereby expressly provided that license fees shall be included in the calculation of gross revenues. Further, license fees shall not be paid on subscriber deposits unless and until said deposits are applied to a customer account for services rendered. Notwithstanding anything herein to the contrary, a licensee shall include in gross revenues, subject to license fees, revenues received from any and all cable services for which such licensee, or any affiliate, subsidiary or parent of the licensee pays a license fee to any other jurisdiction, provided that such cable service is offered over the cable system in the city, unless the city and licensee otherwise agree to exclude certain revenues from license fees.

Institutional network means a dedicated closed network, or an alternative acceptable to the city, for use by the city to provide cable services and non-cable services for public, educational and governmental use within the city. The network shall be capable of providing one-way, two-way, interactive, and machine-to-machine transfer of audio, video, voice and data signals within the network as designated by the city.

Interconnection means the electronic connection of two or more cable systems for the purpose of sharing public, education and government access programming or transmissions.

Law means all duly enacted and applicable federal, state, county and city laws, ordinances, codes, rules, regulations and orders.

Leased access channel means a channel designated in accordance with Section 612 of the Communications Act, 47 U.S.C. § 532, for commercial use by persons unaffiliated with the licensee.

License means the nonexclusive right granted by the city to a licensee in a license agreement to construct, maintain and operate a cable system under, on, and over streets, roads and any other public ways, rights-of-ways, or easements within the city. The term does not include any license or permit that may be required by this chapter or other laws, ordinances or regulations of the city for the privilege of transacting and carrying on a business within the city or for disturbing or carrying out any work on any street.

License agreement means a contract entered into in accordance with the provisions of this chapter between the city and a licensee that sets forth the terms and conditions under which the license shall be exercised.

License area means that territory within the corporate limits of the city, as those limits may change from time to time through annexation or contraction, over which the terms of a license agreement shall extend.

Licensee means any person granted a license pursuant to this chapter who has entered into a license agreement with the city.

Overbuild means a cable system constructed to serve subscribers already served by an existing cable system.

Person means any individual, corporation, partnership, association, joint venture, organization or legal entity of any kind, and any lawful trustee, successor, assignee, transferee or personal representative thereof, but shall not mean the city.

Service tier means a category of cable service provided by a licensee and for which a separate charge is made by the licensee.

State-of-the-art means that level of technical performance, equipment, components and services more modern than that which has been developed and demonstrated to be generally accepted and used in the cable industry, excluding "tests" involving new products offered for one year or less. The system shall have, at a minimum, the capability of no less than the channel capacity, products and services available from a system serving any similarly sized city or other community in the state, or other such system owned and operated by the licensee, its parent, affiliates or subsidiaries outside the state, except as otherwise set forth in a license agreement. In no event shall a system having a bandwidth of less than 750 MHZ be considered "state-of-the-art." Nothing herein shall be construed to require a licensee to employ any specific transmission technology.

Street or streets means the surface, the air space above the surface and the area below the surface of any public street, highway, road, boulevard, concourse, driveway, freeway, thoroughfare, parkway, sidewalk, bridge, tunnel, park, waterway, dock, bulkhead, wharf, pier, court, lane, path, alley, way, drive, circle, easement, or any other public right-of-way or public place, including public utility easements dedicated for compatible uses, or any other property in which the city holds any kinds of property interest or over which the city exercises any type of lawful control, and any temporary or permanent fixtures or improvements located thereon, as may be ordinarily necessary and pertinent to construct and operate a cable system; but shall not include city-owned buildings or city private property.

Subscriber means any person who lawfully receives cable service delivered over the cable system.

Subscriber base means the total number of subscribers who receive cable service delivered to individual homes, dwelling units or multiple dwelling units, excluding such multiple dwelling units billed on a bulk-billing basis.

System malfunction means any cable system equipment, facility or signal failure or malfunction that results in the loss of satisfactory service on one or more channels to one or more subscribers. A malfunction is major if it affects 50 or more subscribers.

Transfer of a license means any transaction in which (1) any ownership or other interest in a licensee or its cable system is transferred from one person or group of persons to another person or group of persons so that control of a licensee or control of licensee's system is transferred; or (2) the rights and/or obligations held by a licensee under a license agreement are transferred or assigned to another person, group of persons or business entity. A transfer shall be considered "pro forma" only when it involves a transfer to a person, group of persons or business entity wholly owned or controlled by the licensee and shall not result in a change in the control or ownership of the licensee or licensee's system.

Two-way capability means the incorporation into a cable system of all appropriate design and engineering characteristics and features, including all necessary equipment, which shall be installed and operational, so that two-way transmission, including but not limited to addressability, over the system can be implemented and activated.

Video channel or channel means a portion of the electromagnetic frequency spectrum which is used in a cable system and which is capable of delivering a television channel, including the associated audio signal.

(Ord. No. 11936, § 3, 6-8-00)