HomeMy WebLinkAbout021802 ORD - 11/16/1993AN ORDINANCE
PRESCRIBING PROCEDURAL REGULATIONS GOVERNING REVIEW OR
ESTABLISHMENT OF RATES CHARGED OR TO BE CHARGED BY CABLE
OPERATORS TO CABLE TELEVISION SUBSCRIBERS FOR THE BASIC
CABLE SERVICE TIER AND ASSOCIATED EQUIPMENT; SPECIFYING
PROCEDURES WHEREBY THE VIEWS OF INTERESTED PARTIES MAY BE
HEARD CONCERNING RATES CHARGED OR TO BE CHARGED FOR THE
BASIC CABLE SERVICE TIER AND ASSOCIATED EQUIPMENT; AND
PROVIDING FOR SEVERABILITY.
WHEREAS, the Federal Communications Commission ("FCC")
has issued rules pursuant to the Cable Television Consumer
Protection and Competition Act ("1992 Cable Act") implementing the
regulation of cable television subscriber rates; and
WHEREAS, these rules allow local franchising authorities
to regulate rates for the basic cable service tier and associated
equipment; and
WHEREAS, it is the intention of the City Council to adopt
cable rate regulations consistent with the federal regulations
adopted by the FCC pursuant to 47 U.S.C. § 543(b);
WHEREAS, the City of Corpus Christi franchises cable
television service for the benefit of its citizens; and
WHEREAS, the City has submitted its application for
certification to regulate Basic Cable Rates to the FCC and it is
expedient to adopt the required rate regulations at the earliest
possible date to ensure the most competitive rates for the City's
cable ratepayers;
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CORPUS
CHRISTI:
SECTION 1. Chapter 55 of the Corpus Christi Code of Ordinances
is hereby amended by adding a new Article XV, Cable Television Rate
Regulation, to hereafter read as follows:
Sec. 55-190. Definitions.
(A) Basic Cable Rates means the monthly charges for a
subscription to the basic cable service tier and for the
associated equipment.
(B) Basic Cable Service Tier means a separately available
service tier to which subscription is required for access
to any other tier of service. The Basic Cable Service
Tier shall include, at a minimum, the local and domestic
broadcast signals distributed by the cable operator
(except for superstations), all channels designated for
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public, educational or government use and all local
commercial and noncommercial educational television and
qualified low-power station signals carried to meet
carriage obligations imposed by 47 U.S.C. §§ 534, 535.
(C) Benchmark Rate means a per channel rate of charge for
cable service and associated equipment which the FCC has
determined is reasonable.
(D) Cable Act of 1992 means the Cable Television Consumer
Protection and Competition Act of 1992.
(E) Cable Operator means any person or group of persons:
(1) who provide cable service over a cable system and
directly or through one or more affiliates owns a
significant interest in such a cable system; or
(2) who otherwise controls or is responsible for,
through any arrangement, the management and
operation of such a cable system.
(F) Channel means a unit of cable service identified and
selected by a channel number or similar designation.
(G) Cost -of -Service Showing means a filing in which the Cable
Operator attempts to show that the Benchmark Rate or the
Price Cap is not sufficient to allow the Cable Operator
to recover fully the costs of providing the Basic Cable
Service Tier.
(H) FCC means the Federal Communications Commission.
(I) Initial Basic Cable Service Rates means the rates which
the Cable Operator is charging for the Basic Cable
Service Tier, including charges for associated equipment,
at the time the City notifies the Cable Operator that the
City has been certified by the FCC to regulate Basic
Cable Rates and that the City has adopted this ordinance
specifying regulations which are consistent with FCC
rules.
(J) Must -Carry Signal means the signal of any local broadcast
station (except a superstation) which is required to be
carried on the Basic Cable Service Tier.
(K) PEG Channel means the channel capacity designated for
public, educational or government use, and facilities and
equipment for the use of that channel capacity.
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(L) Price Cap shall mean the limits set by the FCC to govern
rate increases for the Basic Cable Service Tier
(including associated equipment) once the initial
regulated per channel rate has been determined.
Reasonable Rate Standard means a per channel rate that is
at or below the Benchmark Rate or Price Cap level, as
applicable.
Superstation means a television broadcast station the
signal of which is secondarily transmitted by a satellite
carrier beyond the local service area of such a station.
Sec. 55-191. Rules and Procedures for Review of Initial
Basic Cable Service Rates.
The following rules and procedures shall apply to allow the
City to review a Cable Operator's Initial Basic Cable Service Rates
to determine whether such rates are reasonable under applicable
laws and regulations.
(A) Notice. Upon the City's certification by the FCC to
regulate Basic Cable Rates and upon passage of this
ordinance, the City shall notify a Cable Operator that
the City intends to regulate Basic Cable Rates as
authorized by the Cable Act of 1992. This notice shall
be sent to a Cable Operator by certified mail, return
receipt requested.
(B) Cable Operator Response.
(1) Within thirty (30) days after receiving this notice
from the City, a Cable Operator shall file with the
City a schedule specifying its Initial Basic Cable
Service Rates (the "Rate Submission"). By this
same deadline, a Cable Operator shall file with the
City any necessary supporting materials showing how
the Cable Operator's Basic Cable Service Rates
conform to FCC rate regulations and any supporting
material concerning the reasonableness of such
rates.
(2) For purposes of this ordinance, "filing
City" shall be accomplished by delivering
to the City Secretary and by delivering
such materials to the City Attorney at
time. The filing date for rate -related
shall be the date of actual receipt by
Secretary.
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with the
materials
a copy of
the same
materials
the City
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(C) Consideration of Cable Operator's Initial Basic Cable
Service Rates.
(1)
If the City Council is able to determine that a
Cable Operator's Initial Basic Cable Service Rates
as specified in its Rate Submission, are reasonable
under the FCC's rate regulations, then on or before
thirty (30) days after the Cable Operator files the
Rate Submission with the City:
(a) the City Council shall hold a public hearing
at which interested persons may express their
views concerning the Rate Submission; and
(b) the City Council may act to approve the rates
specified in the Rate Submission.
(2) If the City Council takes no action regarding the
Rate Submission within thirty (30) days after the
date it is filed with the City, then the Initial
Basic Cable Service Rates will continue in effect
subject to subsequent refund orders or other
remedial action by the City Council to the extent
allowed by applicable laws or regulations.
(D) Extended Review Period for Consideration of Cable
Operator's Initial Basic Cable Service Rates.
(1) If, on or before thirty (30) days after the Rate
Submission is filed with the City, the City Council
has yet to determine whether the Cable Operator's
Initial Basic Cable Service Rates are reasonable
according to FCC regulations, then the City Council
may issue a tolling order ("Tolling Order") to
allow the City Council more time to make a final
determination (a "Disposition Order") concerning
the reasonableness of such rates.
(2) The City Council may issue any such Tolling Order
on or before thirty (30) days after the filing date
of a Rate Submission. In a Tolling Order, the City
Council may obtain the following periods of time to
issue a Disposition Order concerning the Cable
Operator's Initial Basic Cable Service Rates (the
"Extended Review Periods"):
(a) 120 days after a Rate Submission filing date
to ensure that the Initial Basic Cable Service
Rates are within the FCC's Reasonable Rate
Standard; or
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(b) 180 days after a Rate Submission filing date
if the Cable Operator has submitted a Cost -of -
Service Showing to justify Initial Basic Cable
Service Rates above the applicable Benchmark
Rate.
During an Extended Review Period, the Cable
Communications Commission (the "Commission") shall
meet to conduct a public hearing at which
interested persons may appear to express their
views concerning the Cable Operator's Rate
Submission. Instead of or in addition to appearing
before the Commission, interested persons may
submit written objections to the Rate Submission
prior to such Commission meeting by filing them
with the City Secretary. Written objections may
also be submitted to the Commission at the time of
the above-described public hearing. To be
considered by either the Commission or the City
Council, a written objection must state the
objector's name and address.
(4) At any time after a Rate Submission, the City
Council may issue an accounting order (the
"Accounting Order"). The Accounting Order shall
request that the Cable Operator maintain its books
and records to reflect accurately the amounts
received by the Cable Operator because of the
Initial Basic Cable Service Rates and on whose
behalf such amounts are paid. The Accounting Order
is intended to facilitate repayment of any rate
refunds directly to individual or specific
subscribers who pay unreasonable rates.
Sec. 55-192. Rules and Procedures for Review of Proposed
Rate Increases.
The following rules and procedures shall apply to allow the
City to review a Cable Operator's proposed increase in rates above
the approved Initial Basic Cable Service Rates to determine whether
such an increase is reasonable under applicable laws and
regulations. "Approved" Initial Basic Cable Service Rates shall be
those approved by the City Council in a Disposition Order except as
such rates may be modified by a subsequent FCC order. Such an FCC
order shall control unless enforcement of that order is stayed or
enjoined.
(A) Notice. A Cable Operator in the City which desires to
increase rates for the Basic Cable Service Tier and
associated equipment shall file a written request (the
"Rate Increase Submission") with the City at least thirty
(30) days before the Cable Operator desires the increase
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to take effect. The Cable Operator shall notify cable
subscribers of the proposed increase in writing at the
billing cycle that is at least thirty (30) days before
any proposed increase is effective.
(B) Bases for Rate Increases. A request for a rate increase
may be based on grounds including inflation and increases
in "external costs" ("External Costs"). External Costs
are defined by the FCC. Generally, they are categories
of costs which a Cable Operator may "pass through" to
subscribers without a Cost -of -Service Showing even if
resulting rates exceed the applicable Price Cap.
In accordance with FCC rules, to the extent that a Cable
Operator files a Rate Increase Submission based on
increases in External Costs, the City Council shall issue
a Disposition Order concerning those portions of the
requested rate increase within thirty (30) days. Rate
increase issues other than External Cost increases may be
disposed of in accordance with the schedule specified
below.
Any Rate Increase Submission proposing increased rates to
reflect increases in External Costs or the annual
inflation adjustment must also reflect any decreases in
External Costs that have occurred since the time External
Costs were most recently subject to review by the City
Council.
In addition, a Cable Operator shall file with the City
revised rates to reflect decreases in External Costs (a
"Rate Decrease Submission"). A Rate Decrease Submission
shall be filed no later than one year after a decrease in
an External Cost occurs.
(C) Consideration of Cable Operator's Request to Increase
Basic Cable Service Rates.
(1) If the City Council is able to determine that a
Cable Operator's request to increase rates for the
Basic Cable Service Tier (including associated
equipment), as specified in its Rate Increase
Submission, is reasonable under the FCC's rate
regulations, then on or before thirty (30) days
after the Cable Operator files the Rate Increase
Submission with the City:
(a) the City Council shall hold a public hearing
at which interested persons may express their
views concerning the Rate Increase Submission;
and
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(b) the City Council may act to approve the rates
specified in the Rate Increase Submission.
(2) If the City Council takes no action regarding the
Rate Increase Submission within thirty (30) days
after the date it is filed with the City, then the
increased rates will become effective after this
thirty -day period subject to subsequent refund
orders or other remedial action by the City Council
to the extent allowed by applicable laws or
regulations.
(D) Extended Review Period for Consideration of a Request to
Increase Basic Cable Service Rates.
(1) If, on or before thirty (30) days after the Rate
Increase Submission is filed with the City, the
City Council has yet to determine whether the Cable
Operator's proposed rate increase is reasonable
according to FCC regulations, then the City Council
may issue a tolling order ("Tolling Order") to
allow the City Council more time to make a final
determination (a "Disposition Order") concerning
the reasonableness of the proposed rate increase.
(2) The City Council may issue any such Tolling Order
on or before thirty (30) days after the filing date
of a Rate Increase Submission. In a Tolling Order,
the City Council may obtain the following periods
of time to issue a Disposition Order concerning the
proposed rate increase (the "Extended Review
Periods"):
(3)
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(a) 120 days after a Rate Increase Submission
filing date to ensure that the proposed
increase is within the FCC's Reasonable Rate
Standard as determined by the applicable Price
Cap; or
(b) 180 days after a Rate Increase Submission
filing date if the Cable Operator has
submitted a Cost -of -Service Showing to justify
a rate increase above the applicable Price
Cap.
During an Extended Review Period, the Cable
Communications Commission (the "Commission") shall
meet to conduct a public hearing at which
interested persons may appear to express their
views concerning the Cable Operator's Rate Increase
Submission. Instead of or in addition to appearing
before the Commission, interested persons may
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submit written objections to the Rate Increase
Submission prior to such Commission meeting by
filing them with the City Secretary. Written
objections may also be submitted to the Commission
at the time of the above-described public hearing.
To be considered by either the Commission or the
City Council, a written objection must state the
objector's name and address.
(4) During any Extended Review Period, a proposed rate
increase shall not be effective.
(5) The City Council may issue an Accounting Order
before the end of any Extended Review Period.
Sec. 55-193. Methods of Rate Analysis.
The City Council will review the Initial Basic Cable Service
Rates or proposed rate increases utilizing Benchmark Rate, Price
Cap, Cost -of -Service, GNP -PI or External Cost analysis, or other
methodology, as appropriate, in accordance with applicable laws or
regulations.
Sec. 55-194. Disposition Orders.
After the City Council has completed its review of Initial
Basic Cable Service Rates or a proposed rate increase, it shall
issue a Disposition Order concerning the Rate Submission or Rate
Increase Submission. A Disposition Order shall state the reasons
for the City Council's decision. A Disposition Order need not be
in writing except when a written decision is required by FCC
regulations. Public notice of such a written decision shall be
given by publishing a notice of the decision one time in a
newspaper of general circulation in the city.
Sec. 55-195. Remedies.
A Disposition Order concerning a Rate Submission or Rate
Increase Submission may approve or deny a submission, in whole or
in part, and provide for any remedies allowed by applicable laws or
regulations. The City Council may order:
(A) prospective rate reductions (rate rollbacks);
(B) the imposition of prescribed rates; and
(C) refunds (with interest).
Prior to prescribing a rate (a "Prescribed Rate") in a
Disposition Order, the City Council shall provide a Cable Operator
notice, by certified mail, return receipt requested, of its
intention to impose a Prescribed Rate. Then, the Cable Operator
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may file a written submission with the City stating why the
proposed Prescribed Rate should not be imposed. Such a submission
shall be filed with the City no later than ten (10) days after the
date a Cable Operator receives notice of the City Council's
intention to impose a Prescribed Rate. If a Disposition Order
specifies a Prescribed Rate, the Disposition Order shall
affirmatively demonstrate why the Initial Basic Service Rates or a
proposed rate increase are unreasonable and why the Prescribed Rate
is reasonable.
In its Disposition Order, the City Council may order refunds
to subscribers to the full extent allowed by applicable laws or
regulations. Without limiting the availability of the refund
remedy, refunds to subscribers may be ordered in circumstances
where:
(D) a Cable Operator fails to comply with a rate decision
(Disposition Order) and continues to charge rates which
are unreasonable under FCC regulations;
(E) the City Council finds that Initial Basic Cable Service
Rates are unreasonable under FCC regulations and that
such rates are not supported by a persuasive Cost -of -
Service Showing by the Cable Operator; or
(F) the City Council has issued a Tolling Order but has not
completed its review of the proposed rate increase by the
end of the applicable Extended Review Period and the
proposed rate increase is later found to be unreasonable
under FCC regulations.
Refunds shall be paid in accordance with applicable laws or
regulations; however, in circumstances where a Cable Operator can,
without undue administrative difficulty or unreasonable burden,
identify actual subscribers who have paid unreasonable charges, the
City Council encourages a Cable Operator to pay refunds directly to
those subscribers either through direct payment or as a
specifically identified credit to their bills.
Before refunds may be ordered, the City Council shall afford
a Cable Operator due process by giving it notice and an opportunity
to participate. Thus, the City Council shall provide a Cable
Operator notice, by certified mail, return receipt requested, of
its intention to order refunds. Then, a Cable Operator may file a
written submission with the City stating why refunds should not be
ordered. Such a submission shall be filed with the City no later
than ten (10) days after the Cable Operator receives the notice.
The submission shall also state to whom and how refunds will be
repaid if refunds are ordered over the objection of the Cable
Operator. If a Cable Operator does not intend to pay ordered
refunds directly to the subscribers who have paid the charges, the
submission shall specify in detail the nature of the undue
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administrative difficulties or unreasonable burdens which prevent
such repayment.
Sec. 55-196. Obtaining Information From a Cable Operator to
Evaluate Rate Submissions or Rate Increase
Submissions.
(A) After a Rate Submission or Rate Increase Submission is
filed with the City, the Cable Operator may be required
to file additional information with the City regarding
its submission as follows. In cases where a submission
specifies or proposes rates which exceed the FCC's
presumptively reasonable level, the City Council may
collect additional information, including confidential or
proprietary information, to make a rate determination.
Such information may include, but is not limited to,
information concerning the Cable Operator's actual costs
including equipment costs.
(B) In cases where the submission specifies or proposes rates
which appear to comply with the FCC's reasonableness
standard, requests for additional information should
relate to having the Cable Operator properly document
that its prices are in accord with the FCC's
reasonableness standard.
(C) The burden of proof is on a Cable Operator to demonstrate
that its Initial Basic Cable Service Rates, or proposed
increases in these rates, comply with 47 U.S.C. § 543 and
FCC regulations. Thus, a Cable Operator shall file with
the City sufficient information to allow the City Council
to make such determinations.
(D) To protect confidentiality of Rate Submission or Rate
Increase Submission materials, or other materials filed
with the City in connection with such submissions, the
following procedures shall apply.
(1) Information filed with the City will be considered
routinely available for public inspection unless a
Cable Operator files a written request with the
City requesting confidential treatment. If no
request for confidentiality is made, the City
Council assumes no obligation to consider the need
for nondisclosure but, in the unusual instance, the
City Council may determine on its own motion, and
in accordance with applicable law, that the
materials should be withheld from public
inspection.
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(2) A copy of the request shall be attached to and
shall cover all of the materials to which it
applies including all copies of those materials.
This also includes copies of materials delivered to
the City Attorney in accordance with the
requirements of this ordinance.
Such written request shall specify in detail all
materials to which the request pertains. If
feasible, the materials to which the request
applies shall be physically separated from any
materials to which the request does not apply.
(3)
(4) A request shall contain a statement of the reasons
for withholding the materials from public
inspection and of the facts upon which those
reasons are based. If the request is that
materials be withheld from inspection for a limited
period of time, that period will be specified.
(5) Requests for confidentiality which do not comply
with the requirements of this section 55-196(D)
will not be considered.
(6) The City Council will grant the request if it finds
by a preponderance of the evidence that
nondisclosure is consistent with the provisions of
the Freedom of Information Act ("FOIA"). If the
request is granted, a copy of an order in this
regard will be available for public inspection
instead of the materials sought to be kept
confidential.
(7)
If materials are filed voluntarily (i.e., absent
any direction by the City Council), the Cable
Operator submitting them may request the City
Council to return the materials, without
considering them, if the request for
confidentiality is denied. In that event, the
materials will ordinarily be returned. Only in the
unusual instance where the public interest so
requires will the materials be made available for
public inspection.
(8) If submission of materials is required by the City
Council and the request for confidentiality is
denied, the materials will be made available for
public inspection.
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If the City Council denies a request for
confidentiality, the Cable Operator which submitted
the request may, within five (5) working days, file
an application for review by the FCC. If the
application for review is denied, the Cable
Operator shall notify the City Attorney immediately
in writing. The Cable Operator will be afforded
five (5) working days in which to seek a judicial
stay of the FCC ruling. If these periods expire
without action by the Cable Operator, the materials
will be returned to the Cable Operator which
submitted them or they will be placed in a public
file.
Sec. 55-197. Disposition Order Appeals and Motions for
Rehearing.
A Disposition Order may be appealed to the FCC in accordance
with applicable laws or regulations. If an appeal to the FCC is
initiated, a Cable Operator shall also file a motion for rehearing
in accordance with Section 23(D)(5) of Ordinance Number 16133.
Proceedings before the City Council in connection with such a
motion for rehearing may render moot such an FCC appeal thus saving
the public money which might otherwise be spent prosecuting such an
appeal to conclusion.
Sec. 55-198. Rate Consultant Costs.
When TCI Cablevision of Texas, Inc. ("TCI") files a Rate
Submission or Rate Increase Submission, or to the extent its rates
for services are reviewed by the City Council in accordance with
its franchise with the City, the City may retain consultants.
Costs of such consultants shall be borne equally by the City and
TCI in accordance with Section 23(D)(4) of Ordinance Number 16133.
SECTION 2. If for any reason any section, paragraph,
subdivision, clause, phrase, word or provision of this ordinance
shall be held invalid or unconstitutional by final judgment of a
court of competent jurisdiction, it shall not affect any other
section, paragraph, subdivision, clause, phrase, word or provision
of this ordinance for it is the definite intent of this City
Council that every section, paragraph, subdivision, clause, phrase,
word or provision hereof be given full force and effect for its
purpose.
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That the foregoing ordinance was read for the first time and passed
to its second reading on this the 2(c day of Oct-ob ✓
19 C3 , by the following vote:
Mary Rhodes
Dr. Jack Best
Melody Cooper
Cezar Galindo
Betty Jean Longoria
Cktoak
Cc
(L&y
Edward A. Martin _n
Dr. David McNichols (,1�1 k'
David Noyola
Clif Moss uttA L_
That the foregoing ordinance was read for the second time and
passe�V
finally on this the Flo day of OK ink6t r ,
19 , by the following vote:
Mary Rhodes t-st Edward A. Martin
Dr. Jack Best � Dr. David McNichols (AV -
Melody
" YMelody Cooper
(AY -
David Noyola 0//9e,�,�i
Cezar Galindo Clif Moss
Betty Jean Longoria l/612.-
PAASED AND APPROVED, this the 1(0 day of KIVe., Ytv ,
1
ATTEST:
City Secretary
APPROVED: 02:.2DAY OF
JAMES R. BRAY, JR., CITY ATTORNEY
Assistant City Attorney
\forms\044
MAYOR
THE CI CORPUS CHRISTI
021802
, 19 93