2397ORDINANCE NO. 2397
AN ORDINANCE TO AMEND THE BLAIR MUNICIPAL CODE BY AMENDING
CHAPTER 10 BUSINESS REGULATIONS ARTICLE 19, CABLE TELEVISION,
REGULATING THE CITY'S PROCESSING OF APPLICATIONS FOR THE USE OF THE
PUBLIC RIGHT OF WAY BY CABLE TELEVISION COMPANIES; AND TO PROVIDE
THE EFFECTIVE DATE THEREOF; REPEALING ALL ORDINANCES OR PARTS OF
ORDINANCES IN CONFLICT HEREWITH, PROVIDING. WHEN THIS ORDINANCE
SHALL BE IN FULL FORCE AND EFFECT AND PUBLISHING IN PAMPHLET FORM.
BE IT ORDAINED by the City Council of the City of BLAIR, Nebraska as follows:
Section 1. That the BLAIR Municipal Code is amended by amending Chapter 10
Business Regulations, Article 19. Cable Television, amending the following sections, namely:
Sections 10-1904, 10-1917, 10-1918, 10-1944, and 10-1961.
Sec. 10-1904 DEFINITIONS.
1. "AB switch" or "Input selector switch" means any device that enables a viewer to
select between a multi -channel service and off -the -air television signals. Such a
device may be more sophisticated than a mere two-sided switch, may utilize other
multi -channel system interface equipment, and may be built into television
receivers.
2. "Access channel" or "non -broadcast channel" means a government, education, or
public channel which is carried on a multi -channel system, but which is not part of
any institutional network.
3. "Activated channel" means a channel engineered at the headend of the cable system
for the provision of services generally available to residential subscribers of the
cable system, regardless of whether such services actually are provided, including
any channel designated for governmental, educational, or public use.
4. "Alternative user charge" means a charge used in place of a franchise fee that the
Council requires as payment for the privilege of using the streets, easements, public
ways, or rights-of-way of the City in order to construct, maintain, and operate a
multi -channel system. An alternative user fee is not based on an MCS provider's
gross annual revenues (as is the case in a franchise fee), but rather is based on the
value of the City property that an MCS provider is using to construct, maintain, and
operate its multi -channel system.
5. "Annual gross revenues" means any and all compensation which is derived from
the operation of the MCS system, and which is attributed to the subscribers or
customers within the City, or the grant of a franchise granted to a franchisee to
operate a multi -channel system. Further, "annual gross revenues" means any and
all compensation in whatever form (except as exempted by this definition),
exchange or otherwise derived from all multi -channel services, MCS operations,
and MCS -related activities within the City including but not limited to revenues
from subscriber rates, pay television, premium channels, service tiers, service
clusters, institutional networks, advertising, installations, rebates or commissions
received from services carried or provided on the system, or commercial access.
Also, unless prohibited or pre-empted by either Federal or State law, "annual gross
revenues" shall mean any and all compensation from all ancillary multi -channel
services, MCS operations, and MCS -related activities within the City, including but
not limited to sale of MCS or MCS equipment, advertising stuffers inserted into
periodic billing statements, or other notices, rental or sale of video disc, rental or
sale of video cassettes, rental or sale of descrambling converters, or other devices,
rental or sale of remote control devices (including those with volume control),
rental or sale of a/b or input switches, rental or sale of channel lock -out devices or
technology, rental or sale of interactive games or software, rental or sale of digital
radio equipment, sale of satellite antenna dishes, sale of satellite antenna -received
programming for a programmer or distributor of services, or from revenues
received as the billing agent, collector, or retailer of satellite antenna -received
service. Annual gross revenues shall include revenues derived outside of the
municipal limits where MCS utilizes City street, right of ways, easements, and
public ways to provide service to any MCS subscriber outside of the municipal
limits. However, "annual gross revenues" does not mean any taxes imposed and/or
assessed by law on subscribers (including State sales taxes, but excluding any state
or local franchise fees) which an MCS provider is obligated to collect and pay in
full to the applicable authorities.
6. "Application" or "Proposal" are synonymous for the purposes of this ordinance.
An "application" or "proposal" means the process by which the applicant submits
a request and indicates a desire to be granted a license or franchise (where required)
for all or a part of the City. An "application" or "proposal" includes all written
documentation and verbal statements and representations, in whatever form or
forum, made by an applicant to the Council concerning the construction, rendering
of services, maintenance, or any other matter pertaining to the proposed multi-
channel system.
7. "Assignment of a franchised MCS provider's franchise" or "Transfer of a
franchised MCS provider's franchise" means any transaction or action which
effectively or actually changes operational or managerial control from one person
or entity to another.
8. "Auxiliary equipment" means equipment supplied by the MCS provider (such as a
converter, remote control unit, or input selector switch), which enhances or assists
in the reception or provision of multi -channel service.
9. "Basic cable television service" means any service tier which includes the
retransmission of local television broadcast signals and shall include the
retransmission of all services required by 10-1968(A).
10. "Cable channel" or "Cable television channel" or "Data channel" means a portion
of the electromagnetic or light frequency spectrum which is capable of delivering
a television channel (as "television channel" is defined by the FCC regulation).
11. "Cable operator" or "operator" means any person or group of persons who:
a) provides cable television service over a cable system and directly or through
one (1) or more affiliates owns a significant interest in such cable system; or
b) otherwise controls or is responsible for, through any arrangement, the
management and operation of such a cable system.
12. "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 such video
programming service.
13. "Cable system" or "Cable television system" means a facility consisting of a set of
closed transmission paths and associated signal generation, reception, and control
equipment that is designed to provide cable service which includes video, voice or
data programming, and which is provided to multiple subscribers within the City.
However, such terms do not include the following:
a) A facility that serves only to retransmit the television signals of one (1) or more
broadcast stations; or
b) A facility that serves only subscribers in one (1) or more multiple unit dwellings
under common ownership, control, or management unless such facility or
facilities uses any public right-of-way; or
c) A facility or common carrier which is subject, in whole or in part, to the
provisions of Title II of the Communications Act of 1934, except that such
facility shall be considered a cable system (other than for purposes of 47 USC
541) to the extent such facility is used in the transmission of video, voice, or
data programming or service directly to subscribers or;
d) Any facilities of any electric utility used solely for operating its electric utility.
14. "CCPR" means the Cable Communications Policy Act of 1984, as amended.
15. "Charge" means a one-time or non -regularly occurring cost paid by the
subscriber and which is associated with the installation, maintenance, service, or
repair of the multi -channel service.
16. "Cherry -picking" or "cream -skimming" means the process whereby an
MCS provider targets only selected areas of the City for service (either through a
new -build, overbuild, or selective upgrade), and then primarily for reasons of
higher than average density, or the relative affluence of the area.
17. "City" means the City of Blair, Nebraska, or its lawful successor.
18. "Collection charge" means a charge or fee imposed on a customer by an MCS
provider for such provider's efforts at collecting, or attempting to collect a past due
account.
19. "Commercially impracticable" means with respect to any requirement applicable
to an MCS provider, that it is commercially impracticable for such an MCS
provider to comply with such requirement as a result of a change in conditions
which is beyond the control of such an MCS provider, and the non-occurrence of
which was the basic assumption on which the requirement was based.
20. "Converter" means any electric, electronic, or other device, separate and
apart from the subscriber's receiver that is capable of converting or changing
signals to a frequency not intended to be susceptible to interference within the
television, video, or data receiver of a subscriber, and by an appropriate channel or
other type of selector may also permit a subscriber to view or otherwise use signals
delivered at designated dial locations, or such other reception and use allocations
as may be applicable and required for the practical use of the signal.
21. "Council" means the City Council for the City of Blair, Nebraska.
22. "Customer" means a subscriber or user of the services and/or facilities of the multi-
channel system provided by an MCS provider.
23. "DBS" means direct broadcasting satellite.
24. "DBS provider" or "Direct Broadcast Satellite provider" means any person who
delivers and/or provides multi -channel services from a satellite to a subscriber's
residence through the use of a small earth or satellite station.
25. "Decoder" or "Descrambler" means a device which enables a subscriber to convert
a scrambled signal into a viewable or otherwise usable signal.
26. "Disaster emergency" or "Disaster" or "Emergency" means any imminent,
impending, or actual natural or humanly induced situation wherein the health,
safety, or welfare of all, or a representative portion of the residents of the City is
threatened.
27. "Drop" means a small branch of cable, or other transmitting medium which
connects the terminals on the back of the subscriber's receiver to the feeder cable
or future technical equivalent on the street, easement, rights-of-way, or public way.
28. "Easement" means and shall include and public easement or other compatible use
created by dedication, or by other means, to the City for public utility purposes or
any other purpose whatsoever, including cable television, or any other MCS
provider. "Easement" shall include a private easement used for the provision of
cable service or any other multi -channel service.
29. "FCC' or "Federal Communications Commission" means the Federal
administrative agency, or lawful successor, authorized to oversee cable television
and other multi -channel regulation on a national level.
30. "Application Fee" means a one-time, nonrecurring charge, to be collected upon
application.
31. "Fiber cable" or "Fiber optic cable" means very thin and pliable cylinders, or
strands of glass or plastic, or any future developed technical equivalent, used to
carry wide bands or multiple frequencies.
32. "Franchise" means the initial authorization or subsequent renewal granted by the
Council in order for a person to construct, operate, and maintain a franchised MCS
system in all or part of the City.
33. "Franchised MCS provider" means a person that is awarded a franchise by the
Council to construct and operate a franchised multi -channel system within all or
part of the City. The term "franchised MCS provider" specifically includes the
term "cable operator."
34. "Franchise expiration" means the date of expiration, or the end of the term of a
franchised MCS provider as provided under a franchise agreement.
35. "Franchise fee" means a fee or charge that the City requires as payment for the
privilege of using the streets, rights-of-way, public ways, and easements of the City
in order to construct, maintain, and operate a franchised MCS system.
36. "Headend" means the electronic control center where incoming signals, including
those of television broadcast stations are amplified, modulated, filtered, converted,
or in any way processed or converted for redistribution to subscribers.
37. "Hub" means the satellite or remote receiving, processing, and/or transmitting
facility enabling the signal to be extended beyond the physical/electronic
capabilities of the multi -channel electronics and/or to serve as a remote switching
facility.
38. "Late charges" means a charge which is added to a subscriber's account or bill for
non-payment of a previously due and delinquent account.
39. "MCS" means multi -channel service.
40. "MCS Provider" or "Multi -channel service provider" means any person or group
of persons who:
a) provides multi -channel communications service over a multi -channel system
and directly or indirectly owns a significant interest in such multi -channel
system; or
b) who otherwise controls or is responsible through any arrangement, the
management and operation of such a multi -channel system.
The term "MCS provider" or "multi -channel service provider" specifically includes
the terms "cable operator," "DBS operator," or "direct broadcast satellite provider,"
"MDS provider," or multi -point distribution system provider," MMDS provider,"
and "SMATV operator."
41. "MDS" means multi -point distribution system.
42. "MDS provider" or "Multi -point distribution system provider" means any person
or group of persons who is authorized by the FCC to transmit (via Super High
Frequency) specialized multi -channel programming or date or facsimile
transmission to subscriber -selected locations.
43. "Multi -channel programming service" or "Multi -channel 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 such video
programming or other programming service.
44. "Other programming service" means information that an MCS provider
(specifically including a cable operator) makes available to all subscribers
generally.
45. "Pay-per-view" or "Premium channel" means the delivery over the multi -channel
system of audio and/or video signals in an unintelligible form to subscribers for a
fee or charger (over and above the charge for standard or basic service) on a per
program or per channel basis where said unintelligible or unusable form for viewing
is made intelligible only to subscribers paying a separate fee or charge for viewing
or using of the signals.
46. "Person" means any individual, corporation, business trust, estate, trust,
partnership, association of two (2) or more persons having a joint common interest,
governmental agency, or other legal entity including the City.
47. "Proposed abandonment of multi -channel service" or "Proposed withdrawal of
multi -channel service" or "Proposed cessation of multi -channel service" means the
anticipated, imminent, or expected (either voluntary or involuntary) disruption,
discontinuance, desertion, or removal of an MCS provider's operation and
provision of multi -channel service from all, or part of the City projected period
exceeding three (3) months in duration.
48. "Public, educational, or governmental access facilities" means:
a) Channel capacity designated exclusively for public, educational, or
governmental use; and
b) facilities and equipment for the use of such channel capacity.
49. "Public way" means any public street, public way, public place, or rights-of-way
now laid out or dedicated and all extensions thereof, and additions thereto in the
area served by the MCS provider.
50. "Rate" means the price paid by a subscriber in order to receive standard or basic,
tiered, clustered, premium, or pay-per-view multi -channel service.
51. "Revocation," "Termination," or "Non -renewal" means an official act by the City
whereby the Council removes, repeals, or rescinds previously approved
authorization for a licensed or franchised MCS provider to conduct the running of
a multi -channel system within the City.
52. "Service cluster" means the grouping, aligning, or packaging of one (1) or more
multi -channel programming services by category (such as sports and/or news), or
by rate, or by some other identifiable method, and charging a separate price or rate
for each service cluster.
53. "Service day" means any day, other than a Sunday or MCS provider holiday in
which employees of the MCS provider (including customer service representatives
and service technicians) regularly respond to service requests, inquiries, and
complaints.
54. "Service outage" means the loss of picture or sound on all standard or basic
subscriber channels, or one (1) or more auxiliary programming channels
(including tiers and clusters), and which is not caused by the subscriber's television
receiver or by the subscriber.
55. "Service tier" means a category of multi -channel service or other programming
service provided by an MCS provider and for which a separate rate is charged by
an MCS provider.
56. "SMATV" means Satellite Master Antenna Television.
57. "SMATV operator" or "Satellite Master Antenna Television operator" means any
person or group of persons who:
a) provides multi -channel service over an SMATV system; or
b) otherwise controls or is responsible for, through any arrangement, the
management of an SMATV system.
58. "SMATV system" means a private multi -channel system not crossing any public
rights-of-way and which is located on private property and servicing private
dwellings. Multi -channel programming services are obtained via an earth station,
amplification, and a distribution system.
59. "Standard multi -channel service" means the lowest priced or least comprehensive
service cluster or service tier available to residential subscribers.
60. "Street" means the surface of and the space above and below a public street, road,
highway, freeway, land, path, public way or place, alley, court, boulevard, parkway,
drive, or other easement now or hereafter held by the City (including any street, as
defined, which is acquired by eminent domain) for the purpose of public travel and
shall include other easements or rights-of-way now or hereafter held by the City
(including any easements or rights-of-way acquired by eminent domain) which
shall, with their proper use and meaning, entitle the City and MCS provider to use
therefore for the purpose of installing or transmitting multi -channel system
transmissions over poles, wires, cable, conductors, ducts, conduits, viaducts,
manholes, amplifiers, appliances, attachments, and other property as may
ordinarily be necessary and pertinent to a multi -channel system.
61. "Subscriber" means a person lawfully receiving multi -channel service delivered by
he MCS provider.
62. "User" means a person or organization utilizing a multi -channel system and/or its
equipment for purposes of production and/or transmission of material as contrasted
with receipt thereof in a subscriber capacity.
63. "Video programming" means programming provided by or generally considered
comparable to programming provided by a television broadcast station.
Sec. 10-1917 LIABILITY INSURANCE.
An MCS provider shall secure and maintain, for as long as it provides multi -channel
service to subscribers, public liability, property damage insurance, and umbrella
coverage in at least the following amounts:
a) Public liability: $2,000,000.00 per person/per occurrence;
b) Property damage: $2,000,000.00 per any one (1) claim;
c) Umbrella liability: $4,000,000.00 with up to a
$50,000.00 deductible and/or base insurance.
d) A bond as required by Sec. 10-1918.
2. An MCS provider's public and personal liability and property damage insurance
policy shall specifically include the City, the Mayor, the Council, their officials,
agents, employees or representatives as additional named insured.
3. The public and personal liability and property damage insurance policy shall be
issued by an agent or representative of an insurance company licensed to do business
in the State and which has one (1) of the Three highest or best ratings from the Alfred
M. Best Company and which is acceptable to the City.
4. Whenever needed to protect the interest of the citizens of the City, the Council may
require an MCS provider to provide insurance for greater amounts than listed herein.
5. The public liability and property damage insurance policy shall contain an
endorsement obligating the insurance company to furnish the Council with at least
thirty (30) days written notice in advance of the cancellation of the insurance.
6. Renewal or replacement policies or certificates shall be delivered to the Council at
least thirty (30) days before the expiration of the insurance which such policies are
to renew or replace.
7. Before a multi -channel system provides multi -channel service to subscribers, the
MCS provider shall deliver the policies or certificates representing the insurance to
the Council and each policy or certificate delivered shall be accompanied by evidence
of payment of the premium thereon.
Sec. 10-1918 PERFORMANCE AND CONSTRUCTION/COMPLETION BOND.
1. An MCS provider shall furnish to the Council in an amount totaling at least Fifty
Thousand Dollars ($50,000.00) a performance bond or security bond executed by
a surety licensed to do business in this State. The purpose of the performance bond
is to ensure performance of any requirements imposed by this ordinance on an MCS
provider. Further, the purpose is to guarantee that should the MCS provider not
fulfill any obligations imposed by this ordinance (or where applicable a franchise
agreement), then the surety will make whole (to the extent of the policy) and
monetary losses incurred by the City.
2. An MCS provider shall furnish to the Council, a constiuction/completion bond
prior to the time it commences a construction, upgrade, rebuild, or
repair/maintenance project that has a capital construction cost or outlay exceeding
fifty thousand dollars ($50,000.00) in value. The amount of the bond shall equal at
least ninety percent (90%) of the projected capital construction cost or outlay. The
construction/ completion bond shall remain in force at all times, unless relief is
granted or a reduction schedule is detailed in an agreement between the Council,
and the MCS provider.
3. The construction/completion bond or security bond shall specifically guarantee that
an MCS provider will timely abide by its construction, upgrade, rebuild, or
repair/maintenance schedule for the multi -channel system and/or any time table for
technical and service improvements or additions to the multi -channel system as
may be committed to, or agreed upon, from time to time by the Council and MCS
provider.
4. If the City draws on a performance or completion bond, or cash deposit, or letter of
credit as a result of an MCS provider's failure to timely discharge its obligations,
or failure to construct and activate the multi -channel system, or failure to complete
a multi -channel system upgrade or rebuild or repair/maintain, then the MCS
provider shall be required, within thirty (30) days to replenish the completion and
performance bond or security bond to the minimal level required by the Council.
5. Based upon such reasons as the Council might feel is necessary to protect the public
interest and welfare, the Council may raise the minimal amount of the performance
bond.
6. The performance bond and construction/completion bond, the Council may accept
a written guarantee of an MCS provider pledging the full faith and credit of the
affected MCS provider should there be a breach in a material franchise term or
failure to meet any construction schedule.
See. 10-1944 APPLICATION FEES, ANNUAL RATES, AND CONDITIONS ON USE OF
STREETS AND PUBLIC WAYS
1. Application fees.
A. An application for a permit under this article for the installation of cable and/or
internet wiring and/or equipment above ground on the public right of way shall be
accompanied by an application fee in the amount of $100.00 per location if it is on an existing
utility pole or support structure.
B. An application for a permit for one new, modified, or replacement utility pole or
support structure intended to support one or more cable and/or internet wiring and/or
equipment to be placed on such pole or structure, shall be accompanied by an application fee
of $250.00 per pole or structure.
C. An application for a permit to utilize the public right of way below ground, shall be
accompanied by an application fee in the amount of $100.00 per location.
2. Annual rates. A permittee who does not pay the city any occupation taxes under Chapter 10,
Article 18 of this Code or a finnchise fee shall pay to the city an annual rate of $20.00 for each
cable/internet facility located to a utility pole in city right of way, and an annual rate of $250.00
for each cable/internet facility located anywhere else in city right of way or city property. In the
event the permittee is utilizing the public right of way below ground, the annual rate shall be $100.00 per
location. A permittee who does pay the city any occupation taxes under Chapter 10, Article 18
of this Code or a franchise fee shall pay to the city an animal rate and the annual rate shall be
paid by or before January 1, in advance for the ensuing year.
3. Reimbursement of direct costs. If the applicant or permittee excavates or damages city right
of way or other city property and the city repairs such excavation or damage, the applicant or
permittee shall reimburse to the city the actual cost of such repair, as provided in Chapter 10,
Article 19.
4. All wires, conduits, cable (coaxial, fiber, or functional equivalent), and other property and
facilities of an MCS provider shall be so located, constructed, installed, and maintained so as not
to endanger or unnecessarily interfere with usual and customary use, traffic, and travel upon the
streets, rights-of-way, easements, and public ways of the City. The Director of Public Works or
his or her Designee shall approve all Application permits for installation on the City Right of Way.
5. In the event an MCS provider's system creates a hazardous of unsafe condition or
an unreasonable interference with property, then at its own expense such MCS
provider shall voluntarily, or upon the request of the Council, remove that part of
the system that creates the hazardous condition from the subject property.
6. An MCS provider shall not place equipment where it will interfere with the rights
of property owners or with gas, electric, or telephone fixtures or with the City's
water and sewer system or any other service or facility that benefits the City's or
its residents' health, safety, or welfare.
7. An MCS provider, at either its own expense or that of a private contractor shall
protect rights-of-way, easements, and support or temporarily disconnect or
relocate in the same street or other public way, any property of such MCS
provider when necessitated by reason of;
a) traffic conditions;
b) public safety;
c) street closing;
d) street construction or resurfacing;
e) change or establishment of street grade;
f) installation of sewers, drains, water pipes, storm drains, lift stations, force
mains, power or signal lines; or
g) any improvement, construction or repair related to the City's or its residents
health safety or welfare.
8. It shall be the responsibility of and MCS provider (acting alone or in conjunction
with another person) to locate and mark or otherwise visibly indicate and alert others to the location
of its underground cable (coaxial, fiber, or functional equivalent) before employees, agents, or
independent contractors of such MCS provider, install cable in the marked off area.
9. An MCS provider shall, on the request of any person holding a building moving
permit temporarily remove, raise or lower the cable wires to allow the moving of the building. The
expense of temporary removal shall be paid by the person requesting it, and such MCS provider
may require payment in advance. The affected MCS provider shall be given not less than five (5)
days notice of a contemplated move to arrange for temporary wire exchanges.
10. For all construction and installations occurring after the effective date of this
ordinance, all cable (coaxial, fiber, or functional equivalent) shall be placed underground.
See. 10-1961 APPLICATION FOR FRANCHISE; APPLICATION FEE.
1. The Council may develop rules and regulations with respect to the submission and
processing of applications for a franchise. Such rules and regulations shall primarily be
aimed at determining the legal, financial, technical, and character qualifications of the
applicant and the applicant's project.
2. Application fees. These fees are also outlined in Section 10-1961.
A. An application for a permit under this article for the installation of cable and/or internet
wiring and/or equipment above ground on the public right of way shall be accompanied
by an application fee in the amount of $100.00 per location if it is on an existing utility
pole or support structure.
B. An application for a permit for one new, modified, or replacement utility pole or
support structure intended to support one or more cable and/or internet wiring and/or
equipment to be placed on such pole or structure, shall be accompanied by an application fee
of $250.00 per pole or structure.
C. An application for a permit to utilize the public right of way below ground, shall be
accompanied by an application fee in the amount of $100.00 per location.
Section 2. Effective Date. This Ordinance shall be in full force and effect fifteen (15)
days after its passage. The City Clerk is directed to effectuate the publishing of this Ordinance
for at least one (1) week in a newspaper in general circulation within the City of Blair, which
publication must take place within fifteen days of the passage of this Ordinance by the City
Council. The City Clerk shall cause this Ordinance to bepublished inbook orpamphlet form.
That this Ordinance shall have the same force and effect as though it had been published at
large.
That a copy of said Ordinance shall be filed for use and examination by the public in the office
ofthe City Clerk.
PASSED AND APPROVED this 12th day of May 2020.
CITY OF BLAIR,
RICHARD HANSEN, MAYOR
Attest:
BRENDA WHEELER, CITY CLERK
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