93-052 ORD REGULATING RATES CHARGED BY CABLE TELEVISION OPERATORS WITHIN COP FOR THE BASIC SERVICE TIER AND RELATED EQUIMENT AND INSTALLATION CHARGES
ORDINANCE NU. 93-052
AN ORDINANCE REGULATING THE RATES CHARGED BY CABLE TELEVISION
OPERATORS WITHIN THE CITY OF PARIS, TEXAS, FOR THE BASIC
SERVICE TIER AND RELATED EQUIPMENT AND INSTALLATION CHARGES,
IN ACCORDANCE WITH THE CABLE TELEVISION CONSUMER PROTECTION
AND COMPETITION ACT OF 1992, PUSLIC LAW N0. 102-385; PROVID-
ING DEFINITIUNS; REQUIRING NUTICE OF BASIC CABLE TIER AVAIL-
ABILITY; REQUIRING CERTAIN INFORMATION OT3 CABLE MONTHLY
BILLS; PROHIBITING NEGATIVE UPTION B,ILLING; PROVIDING FOR
ITEMIZED SUBSCRIBER BILLS; PROVIDING FORMULA FOR CALCULATION
OF BASIC SERVICE TIER RATES AND EQUIPMENT AND INSTALLATION
CHARGES; PROVIDING FOR COST ACCOUNTING AND COST ALLOCATION
REQUIREMENTS; PROVIDING FOR PASS-THROUGEi OF COSTS OF SATISFY-
ING FRANCHISE REQUIREMENTS; PROVIDING GUIDELINES FOR CERTAIN
CUSTOMER CHARGES; REQUIRING NOTICE OF PROPOSE:D RATE IN-
CREASES; PROVIDING FOR REVIELd OF BASIC CABLE SERVICE AND
EQUIPMENT RATES; PROVIDING PROTECTIONS FOR PROPRIETARY
INF'ORr1ATI0N; PLACING BURDEN OF PROOF ON THE CABLE OPERATOR;
PROVIDING FOR WRITTEN DECISIONS BY THE CITY; PROVIDING FOR
POSSIBLE RATE REDUCTIONS AND REFUNDS; PROVIDING FOR SEVER-
ABILITY; ORDAINING OTHER PROVISIONS RELATED TO THE SUBJECT
NrATTER HEREOF; AND YROVIDING FOR AN EFFECTIVE DATE OF
NOVEMBER 15, 1993.
WHEKEAS, the Cable Television Consumer Protection and
Competition Act of 1992, Public Law No. 102-385 ("Cable Act
of 1992") became law on October 5, 1992; and,
WHEREAS, the Cable Act of 1992 provides that municipal-
ities may regulate the rates charged by cable operators for
the cable service tier and related equipment charges to
subscribers within the corporate iimits of the municipality
if the operator is not subject to effective competition; and,
WHEREAS, the City of Paris, hereinafter called CITY, in
acco dance with the Cable Act of 1992 ar,d regulations adopted
thereunder by the Federal Communications Commission, herein-
after called the FCC, filed the appropriate documents with
the FCC to obtain certification to regulate the basic service
tier rates and related equipment and installation charges of
all cable operators within CITY; and,
WHEREAS, in order to be able to regulate the basic
service tier rates and related equipment and installation
charges, it is necessary for CITY to adopt the following
regulatioris in conformance with the regulations of the FCC;
and,
WHEREAS, it is the intent of CITY to regulate cable TV
operators within CITY to the full extent authorized by the
Cable Act of 1992;
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF
THE CITY OF PARIS, PARIS, TEXAS:
GENERAL PROVISIONS
Section 1. The followin re ulations are hereb
a o te an shall e known as the Cable
TV Regulations for the City of Paris,
Paris, Texas.
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Section 2. Definitions.
Unless otherwise apparent, the following definitions
shall apply in this ordinance:
(a) Affiliated programmer. An affiliated programmer is
a programmer with an ownership interest of 5 percent or more
including general partnership interests, direct ownership
interests, and stock interests in a corporation where such
stockholders are officers or directors or who directly or
indirectly own 5 percent or more of the outstanding stock,
whether voting or nonvoting. Such interests include limited
partnership interests of 5 percent or greater.
(b) Basic service tier. The basic service tier shall,
at a minimum, include all signals of domestic television
broadcast stations provided to any subscriber (except a
signal secondarily transmitted by satellite carrier beyond
the local service area of such station, regardless of how
such signal is ultimately received by the cable system), and
public, educational, and governmental programming required by
the tranchise to be carried on the basic tier, and any
additional video programming signals or service added to the
basic tier by the cable operator.
(c) Cable operator. Cable operator means any person or
group of persons (1) who provides cable service over a cable
system within CITY under a franchise issued by CITY, and who
directly or through one or more affiliates owns a significant
interest in such cable system, or (2) who otherwise controls
or is resporrsible for, through any arrangement, the manage-
ment and operation of such a cable system.
(d) Cable programming service. Cable programming
service includes any video programming provided over a cable
system, regardless of service tier, including installation or
rental of equipment used for the receipt of such video
programming, other than:
(1) Video programming carried on the basic service
tier as defined in this section;
(2) Video programming affered on a pay-per-channel
or pay-per-program basis; or
(3) A combination of multiple channels of pay-per-
channel or pay-per-program video programming offered on
a multiplexed or time-shifted basis so long as the
combined service:
(A) Consists of commonly-identified video
programming; and
(B) is not bundled with any regulated tier of
service.
(e) CITY. The City of Paris, Paris, Texas.
(f) FCC. The Federal Communications Commission.
(g) Small system. A small system is a cable television
system that serves fewer than 1,000 subscribers. The service
area of a small system is determined by the number of sub-
scribers that are served by a system's principal headend,
iricluding any other headend or microwave receive sites that
are technically integrated ta the system's principal headend.
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Section 3. Information to be rovided b cable
operator on monthly su scri er ills.
A cable operator must provide the following information
to subscribers on monthly bills:
(a) A statement substantially the same as the follow-
ing: "The basic service tier rates and related equipment and
installation charges are regulated by the City. If you have
any questions or comments regarding these rates, you may call
or write the City at (903) 785-7511, P. 0. Box 9037, Paris,
Texas 75461"; and
(b) The FCC community unit identifier for the basic
cable system.
Section 4. Negative option billing.
A cable operator shall not charge a subscriber for any
service or equipment that the subscriber has not affirma-
tively requested by name. This provision, however, shall not
preclude the addition or deletion of a specific program from
a service offering, the addition or deletion of specific
channels from an existing tier or service, or the restructur-
ing or division of existing tiers of service that do not
result in a fundamental change in the nature of an existing
service or tier of service, provided that such change is
otherwise consistent with applicable regulations. A sub-
scriber's failure to refuse a cable operator's proposal to
provide such service or equipment is not an affirmative
request for service or equipment. A subscriber's affirmative
request for service or equipment may be made orally or in
writing.
Section 5. Subscriber bill itemization.
(a) Cable operators may identify as a separate line
item of each regular subscriber bill the following:
(1) The amount of the total bill assessed as a
franchise fee.
(2) The amount of the total bill assessed to
satisfy any requirements imposed on the cable operator by the
franchise agreement to support public, educational, or
governmental channels or the use of such channels.
(3) The amount of any other fee, tax, assessment,
or charge of any kind imposed by any governmental
authority on the transaction between the operator and
the subscriber. In order for a governmental fee or
assessment to be separately identified under this
section, it must be directly imposed by a governmental
body on a transaction between a subscriber and an
operator.
(b) The charge identified on the subscriber bill as the
total charge for cable service should include all fees and
costs itemized pursuant to this section.
RATE PROVISIONS
Section 6. Rates for the basic service tier.
(a) Basic service tier rates. Basic service tier rates
are subject to regulation by CITY in order to assure that
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they are in compliance with the requirements of 47 U.S.C. §
543. Rates that are demonstrated, in accordance with this
ordinance, not to exceed the "Initial Permitted Per Channel
Charge" or the "Subsequent Permitted Per Channel Charge" as
described below, or the equipment charges as specified in
Section 7, will be accepted as in compliance. The maximum
monthly charge per subscriber for the basic service tier
offered by a cable operator shall consist of a permitted per
channel charge multiplied by the number of channels on the
tier, plus a charge for franchise fees. The maximum monthly
charges for the basic service tier shall not include any
charges for equipment and installations. Charges for equip-
ment and installations are to be calculated separately
pursuant to Section 7 of this ordinance.
(b) Initial Permitted Yer Channel Charge.
(1) For purposes of this section, the initial date
of regulation for the basic service tier shall be the
date on which CITY gives written notice to the cable
operator that (1) CITY has been certified by the FCC to
regulate rates for the basic service tier and (2) this
ordinance has been adopted by CtTY.
(2) For purposes of this section, rates "in effect
on the initial date of regulation" or "in effect on
September 30, 1992," shall be the rates charged to
subscribers tor service received on that respective
date.
(3) The permitted per channel charge on the
initial date of regulation shall be, at the election of
the cable operator, either:
(A) A charge determined pursuant to a cost-
of-service proceeding; or
(B) The charge specified in subparagraphs
(i), (ii), or (iii) of this paragraph as applic-
able;
(i) If the operator's per channel charge
for the basic service tier and equipment in
effect on the date of initial regulation is
equal to or below the benchmark per channel
charge, as adjusted forward for inflation from
September 30, 1992, to the date of initial
regulation, then the permitted per channel
charge shall be the per channel charge in
effect on the date of initial regulation,
adjusted for equipment.
(ii) If (1) the operator's per channel
charge for the basic service tier and equip-
ment in effect on the date of initial regula-
tion is above the benchmark per channel
charge, as adjusted forward for inflation from
September 30, 1992, until the initial date of
regulation, and (2) the operator's per channel
charge tor the basic service tier and equip-
ment in effect on September 30, 1992, was
above the benchmark per channel charge, then
the permitted per channel charge is nine-
tenths (9/10) of the per channel charge in
effect on September 30, 1992, but no lower
than the benchmark per channel charge,
additionally adjusted for inflation from
September 30, 1992, to the initial date of
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regulation, for equipment, and for any changes
in the number of channels offered on the basic
service tiers.
(iii) If (1) the operator's per channel
charge for the basic service tier and equip-
ment in effect on the date of initial regula-
tion is above the benchmark per channel
charge, as adjusted forward for inflation from
September 30, 1992, until the initial date of
regulation, and (2) the operator's per channel
charge for the basic service tier and equip-
ment in effect on September 30, 1992, was
below the benchmark per channel charge, then
the permitted per channel charge is the
benchmark rate per channel adjusted for
inflation from September 30, 1992, to the
initial date of regulation, for equipment, and
for any changes in the number of channels
offered on the basic service tier.
(c) Subsequent Permitted Per Channel Charge. After the
initial date of regulation, the permitted per channel charge
for the basic service tier shall be, at the election of the
cable operator, either:
(1) A per channel rate determined pursuant to a
cost-ot-service showing, or
(2) The prior permitted per channel charge pre-
viously approved by CITY, adjusted for inflation and
external costs in accordance with the price cap require-
ments set forth in paragraph (d) of the section.
(d) Price cap requirements.
(1) Inflation adjustments. Permitted per channel
charges for the basic service tier may be adjusted
periodically on account of inflation. Adjustments to
permitted per channel charges on account of inflation
shall be based on changes in the Grass National Product
Price Index ("GNP-PI") published by the Bureau of
Economic Analysis of the United States Department of
Commerce.
(2) External costs. Permitted per channel charges
tor the basic service tier may also be adjusted for
changes in external costs measured on a per channel per
subscriber basis. To the extent external cost increases
are greater or less than the GNP-PI for the relevant
period, the per channel charge will be adjusted accord-
ingly. Per channel charges may not be increased if
external costs other than franchise fees increase at a
rate less than inflation. Permitted per channel charges
also shall be decreased on account of external costs to
the extent such costs decrease from previous levels.
(A) Categories. External costs shall consist
of costs in the following categories:
(i) State and local taxes applicable to
provision of cable television service;
(ii) Franchise fees;
(iii) Costs of complying with franchise
requirements, including costs of providing
public, educational, and governmental access
channels as required by CITY;
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(iv) Retransmission consent fees; and
(v) Programming costs.
(B) The permitted per channel charge for the
basic service tier shall be adjusted on account of
programming costs and retransmission consent fees
only for programming or broadcast signals offered
on that tier.
(C) The permitted per channel charge shall
not be adjusted for costs of retransmission consent
fees or changes in those fees incurred prior to
October 6, 1994.
(D) The starting date for adjustments on
account of external costs for the basic service
tier shall be the initial date of regulation or 180
days from September 1, 1993, if the initial date of
regulation occurs on or after 180 days from Septem-
ber 1, 1993.
(E) Changes in franchise fees shall not
result in an adjustment to permitted per channel
charges, but rather shall be calculated separately
as part of the maximum monthly charge per sub-
scriber for the basic service tier.
(F) Adjustments to permitted per channel
charges on account of increases in costs of pro-
gramming obtained from affiliated programmers shall
be the lesser of actual increases or the previous
permitted rate level increased by the amount of
inflation.
(G) Adjustments to permitted per channel
charges on account of increases in costs of pro-
gramming shall be further adjusted to reflect any
revenues received by the operator from the program-
mer.
Section 7. Rates for e ui ment and installation used to
receive t e asic service tier.
(a) Scope. The equipment regulated under this section
consists of all equipment in a subscriber's location that is
used to receive the basic service tier, regardless of whether
such equipment is additionally used to receive other tiers of
regulated programming service and/or unregulated service.
Such equipment shall include, but is not limited to:
(1) Converter boxes;
(2) Remote control units;
(3) Connections for additional television
receivers; and
(4) Other cable home wiring.
Subscriber charges for such equipment shall not exceed
charges based on actual costs in accordance with the require-
ments set forth below.
(b) Unbundling. A cable operator shall establish rates
for remote control units, converter boxes, other customer
equipment, installation, and additional connections separate
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from rates for basic service tier. In addition, the rates
for such equipment and installations shall be unbundled one
from the other.
(c) Equipment basket. A cable operator shall establish
an Equipment Basket, which will include all costs associated
with providing customer equipment and installation under this
section. Equipment Basket costs shall be limited to the
direct and indirect material and labor costs of providing,
leasing, installing, repairing, and servicing customer
equipment, as determiried in accordance with the cost account-
ing and cost allocation requirements of Section 8. The
Equipment Basket shall not include general administrative
overhead including general marketing expenses. The Equipment
Basket may include a reasonable profit.
(d) Hourly service charge. A cable operator sha11
establish charges for equipment and installation using the
Hourly Service Charge ("HSC") methodology. The HSC shall
equal the operator's antiual Equipment Basket costs, excluding
the purchase costs of customer equipment, divided by the
total person hours involved in installing, repairing, and
servicing customer equipment during the same period. The
purchase cost of custouier equipment shall include the cable
operator's invoice price plus all other costs incurred with
respect to the equipment until the time it is provided ta the
customer. The HSC is calculated according to the following
formula:
HSC = (EB - CE) = H
Where, EB = annual Equipment Basket cost;
CE = annual purchase cost of all customer
equipment; and
H= person hours irivolved in installing and
repairing equipment per year.
(e) Installation charges. Installation charges shall
be either:
(1) The HSC multiplied by the actual time spent on
each individual installation; or
(2) The HSC multiplied by the average time spent
on a specific type of installation.
(f) Remote charges. Nionthly charges for rental of a
remote control unit shall consist ot average annual unit
purchase cost of the type of remote leased, including acqui-
sition price and incidental cost such as sales tax, financing
and storage up to the time it is provided to the customer,
added to the product of the HSC times the average number of
hours annually repairing or servicing a remote, divided by 12
to determine the monthly lease rate for a remote according to
the following formula:
Monthly Charge =[UCE -(HSC x HR)] = 12
Where, HR = average hours repair per year; and
UCE = average annual unit cost of remote.
Separate charges shall be established for each signifi-
cantly different type of remote control unit.
(g) Other equipment charges. The monthly charges for
rental of converter boxes and other customer equipment shall
be calculated in the same manner as for remote control units.
Separate charges shall be established for each significantly
different type af converter box and each significantly
different type of other customer equipment.
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(h) Additional connection charges. The costs of
iristallation and monthly use of additional connections shall
be recovered as charges associated with the installation and
equipment cost categories, and at rate levels determined by
the actual cost methodology presented in the foregoing
paragraphs (e), (f), and (g) of this section. An operator
may recover additional programming costs and the costs of
signal boosters on the customer's premises, if any,
associated with the additional connection as a separate
monthly unbundled charge for additional connections.
(i) Charges for equipment sold. A cable operator may
sell customer premises equipment to a subscriber. The
equipment price shall recaver the operator's cost of the
equipment, including costs associated with storing and
preparing the equipment for sale up to the time it is sold to
the customer, plus a reasonable profit. An operator may sell
service contract for the maintenance and repair of equipment
sold to subscribers. The charge for a service contract shall
be the HSC times the estimated average number ot hours for
maintenance and repair over the life of the equipment.
(j) Promotions. A cable operator may offer equipment
or installation at charges below those determined under
paragraphs (e) through (g) of this section, so long as those
offerings are reasonable in scope in relation to the opera-
tor's overall offerings in the Equipment Basket and not
unreasonably discriminatory. Operators may not recover the
cost of a promotional offering by increasing charges for
other Equipment Basket elements, or by increasing programming
service rates above the maximum monthly charge per subscriber
prescribed by this ordinance. As part of a general cost-of-
service showing, an operator may include the cost ot promo-
tions in its general system overhead costs.
(k) F'ranchise fees. Equipment charges may include a
properly allocated portion of franchise fees paid to CITY.
Section 8. Cost accounting and cost allocation
requirements.
(a) Applicability. The requirements of this section
are applicable for purposes of rate adjustments on account of
external costs and for cost-cf-service showings.
(b) Generally accepted accounting principals. Cable
operators shall maintain their accounts in accordance with
generally accepted accounting principles, except as otherwise
directed by CITY.
(c) Accounts required. Cable operators shall maintain
accounts in a manner that will enable identification of
appropriate costs and application of the City's cost assign-
ment and allocation procedures, to cost categories necessary
for rate adjustments due to changes in external costs and for
cost-of-service showings. Such categories shall be suffi-
ciently detailed and supported to permit verification and
audit against the company's accounting records.
(d) Accounting level. Except to the extent indicated
below, cable operators shall aggregate expenses and revenues
at either the franchise, system, regional, or company level
in a manner consistent with practices of the operator as of
April 3, 1992. However, in all events, cable operators shall
identify at the franchise level their cost of franchise
requirements, tranchise fees, local taxes, and local program-
ming.
(e) Cost allocation requirements.
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(1) For purposes of establishing expenses at the
franchise level, cable operators shall allocate expenses
and revenues aggregated at higher levels to the fran-
chise level based on the ratio ot the total number of
subscribers served at the franchise level to the total
number of subscribers served at the higher level.
(2) Except to the extent indicated below, all
categories af costs allocated to, or identified at, the
franchise level shall be allocated ta the basic service
tier based on the ratio of channels in the basic tier to
the total number of channels offered in the franchise
area, including nonregulated and leased commercial
access channels. These costs shall be allocated to each
tier of cable programming services based on the ratio of
channels in that tier to the total number of channels
offered in the franchise area.
(3) Ccsts of programming and retransmission
consent fees, however, shall be allocated only to the
tier on which the programming or broadcast signal at
issue is offered.
(4) Costs of franchise fees shall be allocated
among equipment and installations, program service tiers
and subscribers in a manner that is most consistent with
the methodology of assessment of franchise fees by CITY.
(5) Costs of public, educational, and governmental
access channels carried on the basic tier shall be
directly assigned to the basic tier where possible.
(f) Common costs. Expenses which cannot be assigned to
ariy single expense or service category shall be described as
common costs. Common costs will be allocated to expense
categories as follows:
(1) Wherever possible, common costs are to be
allocated to service cost categories based on direct
analysis of the origin of the costs themselves.
(2) When direct analysis is not possible, common
costs shall, if possib]_e, be allocated to service cost
categories based on indirect, cost-causative linkage to
other costs directly assigned or allocated to the
service cost category.
(3) When neither direct nor indirect measures of
cost allocation can be found, common costs shall be
allocated to each service cost category based on the
ratio of all costs directly assigned and attributed to a
service cost category over total costs directly assign-
able and attributable.
(g) Unrelated expenses and revenues. Cable operators
shall exclude from cost categories used to develop rates for
the provision of basic service tier and equipment, any direct
or indirect expenses and revenues not related to the provi-
sion of such services. Common costs of providing basic
service tier and equipment, and unrelated activities shall be
allocated between them in accordance with paragraph (f) of
this section.
(h) Part-time channels, In situations where a single
channel is divided ori a part-time basis and is used to
deliver service associated with different tiers or with pay
per channel or pay per view service, a reasonable and docu-
mented allocation of that channel between services shall be
required along with the associated revenues and costs.
Page 9
Section 9. Costs of franchise requirements.
(a) The costs of satisfying franchise requirements to
support public, educational, and governmental channels shall
consist of the sum of:
(1) All per channel costs for the number of
channels used to meet franchise requirements for public,
educational, and governmental channels;
(2) Any direct costs of ineeting such franchise
requirements; and
(3) A reasonable allocation of general and admin-
istrative overhead.
(b) The costs of satisfying any other requirement under
the rranchise shall consist of the direct and indirect costs,
including a reasonable allocation of general and administra-
tive overhead.
Section 10. Charges for customer changes.
(a) This section shall govern charges tor any changes
in service tiers or equipment provided to the subscriber that
are initiated at the request of a subscriber after initial
service installation.
(b) The charge for cUStomer changes in service tiers
effected solely by coded entry on a computer terminal or by
other similarly simple methods shall be a nominal amount, not
exceeding actual costs, as defined in paragraph (c) of this
section.
(c) The charge for customer changes in service tiers or
equipment that involve more than coded entry on a computer or
other similarly simple method shall be based on actual cost.
The actual cost charge shall be either the HSC, as defined in
Section 6 of this ordinance, multiplied by the number of
person hours needed to implement the change, or the HSC
multiplied by the average number of person hours involved in
implementing customer changes.
(d) A cable operator may establish a higher charge for
changes effected solely by coded entry on a computer terminal
or by other similarly simple methods, subject to approval by
CITY, for a subscriber changing service tiers more than two
times in a twelve month period, except for such changes
ardered in response to a change in price or channel line-up.
If a cable system adopts such an increased charge, the cable
system must notify all subscribers in writing that they may
be subject to such a charge tor changing service tiers more
than the specified number of times in any twelve month
period.
(e) Downgrade charges that are the same as, or lower
than, upgrade charges are evidence of the reasonableness of
such downgrade charges.
(f) For 30 days after notice of retiering or rate
increases, a customer may obtain changes in service tiers at
no additional charge.
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REGULATORY PROVISIONS
Section 11. Notification of proposed rate increase.
(a) A cable operator shall provide written notice ta a
subscriber of any increase in the price to be charged for the
basic service tier or associated equipment at least 30 days
befare any proposed increase is effective. The notice shall
include a provision stating that protests to such process may
be filed with CITY at P. 0. Box 9037, Paris, Texas. The
notice shall also include a statement that such protests must
be filed with CITY no later than 30 days after the notice is
received by the subscriber.
(b) In additiori to the notice required in paragraph
(a), the cable operator shall give CITY a minimum of 30 days
advance written notification of any changes in rates for
cable programming service or associated equipment.
Section 12. Initiation of review of basic cable service
and equipment rates.
A cable operator shall file its schedule of rates for
the basic service tier and associated equipment with CITY
within 30 days of receiving written notification from CITY
that CITY has been certified by the FCC to regulate rates for
the basic service tier, or by November 15, 1993, whichever is
later.
Section 13. City review of basic cable rates and
equipment costs.
(a) After a cable operator has submitted to CITY for
review its existing rates for the basic service tier and
associated equipment costs, or a proposed increase in these
rates (including increases in the baseline channel charge
that results from reductions in the number of channels in a
tier) the existing rates will remain iri effect or the pro-
posed rates will become effective after 30 days from the date
of submission to CITY. Provided, however, that CITY may toll
this 30-day deadline for an additional time by issuing a
brief written order as descr.ibed in paragraph (d) within 30
days of the rate submission explaining that it needs addi-
tional time to review the rates. CITY may, at any time,
require the cable operator to produce additional information,
including proprietary information, that CITY deems necessary
in order to make a rate determination. If proprietary
informatian is provided, the provisions of Section 14 hereof
will apply to such information.
(b) Upon receipt by CITY, the cable operator's submit-
tal sha11 be available for public inspection and copying.
Comments on the submittal by interested persons may be
submitted in writing or orally at a City Council meeting held
at any time during the initial 30-day review period. Written
comments shall be addressed to the City Manager or the City
Clerk, and must by received prior to the end of the 30-day
review period.
(c) If a cable operator submits a proposed rate in-
crease for review that appears to exceed the presumptively
reasonable level and does not include a cost-of-service
showing to justify the rate, CITY wi11 permit the cable
operator to cure this deficiency and submit a cost-of-service
showing.
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(d) If CITY is unable to determine, based upon the
material submitted by the cable operator, that the existing
or proposed rates are within the permitted basic service tier
change or actual cost of equipment as defined in Sections 6
and 7 hereof, or if a cable operator has submitted a cost-of-
service showing pursuant to Sections 8 and 15 hereof, seeking
to justify a rate above the basic service tier charge as
defined in Sections 6 and 7 hereof, CITY may toll the 30-day
deadline in paragraph (a) of this section to request and/or
consider additional information or to consider the comments
from interested parties as follows:
(1) For an additional 90 days in cases not in-
volving cost-of-service showings; or
(2) For an additional 150 days in cases involving
cost-of-service showings.
The order tolling the effective date of the proposed
rate shall explain why CITY could not make the necessary
determination, and it shall also provide the cable operator
an opportunity to cure any deficiencies in its original
filing. During the additional time periods provided in this
paragraph, comments from interested persons may be submitted
in writing, as provided in paragraph (b) of this sectiori, or
orally during at least one City Council meeting duririg the
period of abatement.
(e) If CITY has availed itself of the additional 90 or
150 days permitted in paragraph (c) of this section, and has
taken no action within these additional time periods, then
the proposed rates will go into effect at the end of the 90-
or 150-day period, or existing rates will remain in effect at
such times, subject to refunds if CITY subsequently issues a
written decision disapproving any portion of such rates.
Provided, however, that in order to order refunds, CITY must
have issued a briet written order to the cable operator by
the end of the 90- or 150-day period permitted in paragraph
(c) of this section directing the operator to keep an accu-
rate account of all amounts received by reason of the rate in
issue and on whose behalf such amounts were paid.
Section 14. Proprietary information.
(a) If CITY has required the cable operator to produce
proprietary information under the provisions of this
ordinance, the cable operator may submit therewith a request
that such information not be made routinely available for
public inspection. A copy of the request shall be attached
to and shall cover all af the materials to which it applies
and all copies of those materials. If feasible, the mater-
ials to which the request applies shall be physically sepa-
rated from any materials to which the request does not apply.
If this is not feasible, the portion of the materials to
which the request applies shall be identitied.
(b) Each such request shall contain a statement of the
reasons for withholding the materials from inspection and of
the facts upon which those reasons are based. If the request
is that the materials be withheld from inspection for a
limited period of time, that period shall be specified.
(c) Casual requests which da not comply with the
requirements of paragraphs (a) and (b) of this section will
not be considered.
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(d) Upon receipt of a request in compliance with
paragraphs (a) and (b), CITY will not grant routine public
access to the materials. A letter to that effect will be
placed in a public file in lieu of the materials withheld
from public inspection.
(e) Provided, however, if a written request for the
materials is received by CITY pursuant to the Open Records
Act, Chapter 552, Texas Government Code, CITY will notify the
person providing the materials of the request for the mater-
ials. If the person providing the materials requests CITY to
do so, C1TY will request an opinion from the Attorney
General, pursuant to the Open Records Act, regarding the
public availability of the materials. If the person provid-
ing the materials does not request CITY to request an opinion
from the Attorney General, CITY may, at its option, either
request such an opinion or provide the materials to the
public.
(f) If the Attorney General issues an opinion or letter
ruling requiring CITY to make the materials available to the
public, the materials will be made available for public
inspection.
(g) If no request for confidentially is submitted, CITY
assumes no obligation to consider the need for nondisclosure.
Section 15. Burden of proof.
(a) A cable operator has the burden of proving that its
existing or proposed rates for basic service and associated
equipment comply with 47 U.S.C. § 543, and Sections 6 and 7
hereof.
(b) For an existing or a proposed rate for basic
service tier or associated equipment that is within the
permitted tier charge and actual cost of equipment as set
forth in Sections 6 and 7, the cable operator must submit the
appropriate FCC form to CITY.
(c) For an existing or a proposed rate for basic
service tier that exceeds the permitted tier charge as set
forth in Section 6 and 7 hereof, the cable operator must
submit to CITY a cost-of-service showing to justify the
proposeci rates. The cost-of-service showing must be in
conformance with Accounting and Cost Allocation Requirements
as adopted and amended by the FCC for cable system operators.
Section 16. Small systems.
Option l.
(a) A small system, as defined in Section 2, may
certify that the small system's initial rates for basic
service and associated equipment comply with Section 6
hereof. A certification by a small system under this Section
shall be filed with CITY within 30 days of receiving written
notification from CITY that CITY has been certified hy the
FCC to regulate rates for the basic service tier. The
certification shall be in writing, shall be signed by the
General Manager of the system, and shall be verified.
(b) Such certification shall be subject to verification
by CITY on its own motion or upon complaint by a subscriber.
CITY may request additional information from the operator in
order to verify the certification. In the event proprietary
Page 13
information is requested by CITY, the provisions of Section
14 hereof shall control the availability of such information
to the public.
(c) As used in this Section, "initial rates" shall mean
those rates charged by the small system operator on the date
on which CITY gives written notice to the cable operator that
(1) CITY has been certified by the FCC to regulate rates for
the basic service tier and (2) this ordinance has been
adopted by CITY.
(d) If CITY determines that the small system's certifi-
cation is in error, it shall so notify the small system
operator and shall require the small system to comply with
all filing requirements for non-small systems in this ordi-
nance.
(e) Subsequent rate filings by a small system operator
shall comply in all respects with the provisions of this
ordinance.
Option 2.
(a) A small system, as defined in Section 2, may
certify that the small system's rates for basic service and
associated equipment, and subsequent rate increases, comply
with Section 6 hereof. A certification by a small system
under this Section tor its initial rates shall be filed with
CITY within 30 days of receiving written notification from
CITY that CITY has been certified by the FCC to regulate
rates for the basic service tier. Certifications for subse-
quent rate increases shall be filed with CITY at the same
time that notice is given to the small system's subscribers
of the proposed rate increasz, in conformance with Section 11
hereof. Al1 certifications shall be in writing, shall be
signed by the General Manager of the system, and shall be
verified.
(b) Such certification shall be subject to verification
by CITY on its own motion or upon complaint by a subscriber.
CITY may request additional information from the operator in
order to verify the certification. In the event proprietary
information is requested by CITY, the provisions of Section
14 hereof shall control the availability of such information
to the public.
(c) If CITY determines that the small system's certifi-
cation is in error, it shall so notify the small system
operator and shall require the small system to comply with
a11 filing requirements for non-small systems in this ordi-
nance.
Section 17. Written decision.
(a) CITY shall issue a written decision in a ratemaking
proceeding whenever it disapproves an initial rate for the
basic service tier or associated equipment in whole or lIl
part, disapproves a request for a rate increase in whole or
in part, or approves a request for an increase in whole or in
part over the objections of interested parties. CITY is not
required to issue a written decision that approves an un-
opposed existing or progosed rate for the basic service tier
or associated equipment.
(b) Public notice shall be given of any written deci-
sion required in paragraph (a) of this section, by making the
text of any written decision available to the public, and by
publication of the decision one time in the official news-
paper of CITY.
Page 14
Section 18. Reduction of Rates; Prescription of Rates.
(a) CITY may order a cable operator to implement a
prospective reduction in basic service tier or associated
equipment rate where necessary to bring rates into compliance
with the standards set forth in Sections 6 and 7 hereof.
(b) CITY may prescribe a reasonable rate for the basic
service tier or associated equipment after it determines that
a proposed rate is unreasonable.
Section 19. Refunds.
(a) CITY may order a cable operator to refund to
subscribers that portion of previously paid rates determined
by CITY to be in excess of the permitted tier charge or above
the actual cost of equipment, unless the operator has submit-
ted a cost-of-service showing which justifies the rate
charged as reasonable. Before ordering a cable operator to
refund previously paid rates to subscribers, CITY shall give
the operator notice and opportunity to comment. The opera-
tor's opportunity to comment upon the proposed refunds may be
at any meeting of the City Council during the City's period
of review of the operator's rates. If CITY has extended its
review period under Section 13, and has issued an accounting
order under Section 13(e), then the operator, prior to
refunds being ordered, may request an opportunity to appear
before the City Council to camment upon the proposed retunds.
(b) An operator's liability for retunds is limited to a
one-year period, except that an operator that fails to comply
with a valid order issued by CITY shall be liable for refunds
commencing from the effective date of such order until such
time as it complies with such order.
(c) The refund period shall run as follows:
(1) From the date the operator implements a
prospective rate reduction back in time to September 1,
1993, or one year, whichever is shorter.
(2) From the date CITY issues an accounting order
pursuant to Section 13(d) hereof, and ending on the date
the operator implements a prospective rate reduction
ordered by CITY or one year, whichever is shorter.
(d) The cable operator, in its discretion, may imple-
ment a refund in the following manner:
(1) By returning overcharges to those subscribers
who actually paid the overcharges, either through direct
payment or as a specifically identified credit to those
subscribers' bills; or
(2) By means of a prospective percentage reduction
in the rates for the basic service tier or associated
equipment to cover the cumulative overcharge. This
shall be reflected as a specifically identified, onetime
credit on prospective bills to the class of subscribers
that currently subscribe to the cable system.
(e) Refunds shall include interest computed at applic-
able rates published by the Internal Revenue Service for tax
refunds and additional tax payments.
Page 15
Section 20. Severability.
If any section, sentence, or clause of this ordinance is
for any reason held to be illegal, ultra vires, or unconsti-
tutional, such validity sha11 not affect the validity of the
remaining portions of this ordinance.
Section 21. Governing Law; Venue.
This ordinance shall be construed under and in accord-
ance with the laws ot the State of Texas, the City Charter,
and City Codes to the extent that such Charter and Codes are
not in conflict with or in violation of the Constitution and
laws of the United States or the State of Texas. Al1 obliga-
tions of the parties hereunder are performable in Lamar
County, Texas. In the event that any proceeding is brought
to enforce the terms of this ordinance, the same shall be
brought in Lamar County, Texas.
Section 22. Compliance with Open Meetings Act.
It is hereby officially found and determined that the
meeting at which this ordinance is passed is open to the
public as required by law and that public notice of the time,
place, and purpuse of said meeting was given as required, in
accordance with Chapter 551, Texas Government Code.
SECtion 23. Repeal of Conflicting Ordinances.
Al1 ordinances or parts of ordinances in conflict here-
with are hereby expressly repealed.
Section 24. Effective Date.
This ordinance shall become effective on November 15,
1993.
PASSED AND aDOPTED this 15th day of November, A.D.,
1993.
G rge Fis er, Mayor
ATTEST:
~
Mattie Cunningham, Cit C er
APPROVED ~ 0 FORM:
T. K. Haynes, City Attorney
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