HomeMy WebLinkAboutOrdinance 011 - Cable FranchisesDeschutes County Board of Commissioners
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AGENDA REQUEST & STAFF REPORT
For Board Business Meeting of January 30, 2008
DATE: January 23, 2008
FROM: Dave Kanner
Administration 388-6565
TITLE OF AGENDA ITEM:
First and second reading of Ordinance No. 2008-011, An Ordinance Creating Title 13 Chapter 44 of the
Deschutes County Code Regarding Cable Franchises and Declaring an Emergency.
PUBLIC HEARING. ON THIS DATE? No.
BACKGROUND AND POLICY IMPLICATIONS:
Federal law requires that all cable TV operators must obtain a franchise agreement from a local
franchising authority in order to operate a cable system. Deschutes County is the local franchising
authority for all areas outside of incorporated cities in the county. The County recently completed IL
year-long negotiation on franchise agreements with the three cable operators who currently serve the
unincorporated areas. This ordinance provides to these three cable operators additional protection from
unfranchised competition by requiring that any other cable operator who seeks to provide service in the
County must obtain a franchise agreement. It provides for a "level playing field" by ensuring that the
existing operators do not find themselves at a competitive disadvantage by having to comply with
regulatory burdens that an unfranchised competitor does not.
FISCAL IMPLICATIONS:
None.
RECOMMENDATION & ACTION REQUESTED:
Approve Ordinance No. 2008-011 on first reading. Second reading will be scheduled for February 13,
2008
ATTENDANCE: Dave Kanner
DISTRIBUTION OF DOCUMENTS:
Allison Hilber, Office of County Legal Counsel
Bonnie Baker
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LEGAL COUNSEL
For Recording Stamp Only
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Ordinance Creating Title 13 Chapter 44 of the
Deschutes County Code Regarding Cable
Franchises and Declaring an Emergency
ORDINANCE NO. 2008-011
WHEREAS, the Board of County Commissioners has determined it is necessary to amend Deschu es
County Code Title 13, Public Services, by adding chapter 13.44, Cable Franchises; now, therefore,
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, HEREBY
ORDERS as follows:
Section 1. Amendment. That the Deschutes County Code Title 13 Chapter 44 regarding Cable
Franchises is created and reads as set forth in Exhibit "A," attached hereto and by this reference incorporated
herein with new language underlined and deleted language set forth in sail _gh.
Section 2. Emergency. This Ordinance being necessary for the immediate preservation of the public
peace, health and safety, an emergency is declared to exist, and this Ordinance takes effect upon its passage.
DATED this day of , 2008.
BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
DENNIS R. LUKE, Chair
TAMMY (BANEY) MELTON, Vice Chair
MICHAEL M. DALY, Commissioner
PAGE 1 OF 2- ORDINANCE No. 2008-011 (1/30/08)
Date of 1s` Reading: day of , 2008.
Date of 2nd Reading: day of , 2008.
Record of Adoption Vote
Commissioner Yes No Abstained Excused
Dennis R. Luke
Tammy Melton
Michael M. Daly
Effective Date:
ATTEST:
day of , 2008.
Recording Secretary
PAGE 2 OF 2- ORDINANCE NO. 2008-011 (1/30/08)
EXHIBIT A
CHAPTER 13.44. CABLE FRANCHISES
13.44.01. Purpose and I ntent.
13.44.02. Definitions.
13.44.03. Authority.
13.44.04. Grant of Franchise; Renewal.
13.44.05. Administration of Cable Communications Chapter and Franchise.
13.44.06. Intergovernmental Agreements.
13.44.07. Violation; Penalties and Remedies.
13.44.08. Severability.
13.44.01. Purpose and Intent.
The Deschutes County Board of County Commissioners has determined that it is in the public
interest and necessary for the promotion of the safety, convenience and general welfare of the
citizens of the County to have a chapter which authorizes the County to grant nonexclusive
franchises and regulate the use of rights of way, and identifies the conditions upon which the
County will grant a franchise or franchises allowing the construction, maintenance and operation
of a cable communications system within public rights of way located outside of incorporated
cities within the County.
13.44.02. Definitions.
For the purposes of this chapter, unless the context requires otherwise:
A. "Access" means the availability for use by various agencies, institutions, organizations,
groups and individuals in the community, including the County and its designees, of the
cable communications system to acquire, create, and distribute programming not under the
franchisee's editorial control, including, but not limited to, public, educational and
government programming.
B. "Cable communications system" means a system of plant, facilities, equipment, and closed
signal transmission paths, including, without limitation, antennas, cables, amplifiers, towers,
microwave links, studios, real and personal property, direct broadcast satellite service, and
any and all other conductors, home terminals, converters, remote control units, and all
associated equipment or facilities designed and constructed for the purposes of distributing
cable service to subscribers and of producing, receiving, amplifying, storing, processing or
distributing audio, video, voice, digital, analog or other forms of electronic or optical signals,
whether processed by or owned, rented, leased, leased -purchased or otherwise controlled by
or within the responsibility of the franchisee.
C. "Cable service" means programming, in any combination, provided on the cable
communications system to subscribers.
D. "Franchise" means the privilege conferred upon a person, firm or organization by the County
to operate a cable communications system under the terms and provisions of this chapter.
Page 1 of 4 - Ex. A — Ordinance No. 2008-011 (1/30/08)
E. "Franchisee" means the person, firm or organization to which a franchise is granted to
operate a cable communications system pursuant to the authority of this chapter.
F. "Leased access channel" means any channel or portion of a channel commercially available
for programming for a fee or charge by persons other than the franchisee.
G. "Programming" means the process of causing television programs or other patterns of signals
in video, voice or data formats to be transmitted on the cable communications system, and
includes all programs, or patterns of signals transmitted or capable of being transmitted, on
the cable system.
H. "Public rights of way" means the surface of, and the space above and below, any public
street, road, alley, highway, dedicated way, local access road or road easement used or
intended to be used by the general public for motor vehicles, and any utility easement within
the County, to the extent the County has the right to allow the franchisee to use them.
(Ord. 2008-011 §1, 2008)
13.44.03. Authority.
The Board of County Commissioners of Deschutes County recognizes, declares and establishes
the authority to regulate the construction, operation and maintenance of cable communications
systems (hereinafter "systems") for the unincorporated area of the County and to exercise all
powers necessary for that purpose, including, but not limited to, the following:
A. To grant by order nonexclusive franchises for the development and operation of a system or
systems;
B. To impose different franchise requirements based on reasonable classifications;
C. To contract, jointly agree or otherwise provide with other local or regional governments,
counties or special districts for the development, operation, and/or regulation of systems, or
franchises therefor, notwithstanding the fact that the systems extend beyond the jurisdiction
of the County;
D. To purchase, hire, construct, own, maintain, operate or lease a system and to acquire property
necessary for any such purpose;
E. To regulate and supervise all facets of a system, including, but not limited to:
1. Consumer service, consumer protection and privacy standards;
2. Disputes among the County, franchisees, and subscribers;
3. Franchisee fair employment practices;
4. The development, management and control of access channels;
5. Programming, channel capacity and system interconnections;
6. Rates and review of finances for rate adjustments;
7. Construction timetables, standards, and service extension policies;
8. Modernization and upgrade of technical aspects;
9. Leased access channels;
10. Ensuring adherence to Federal, State and local regulations;
11. Franchise transfer and transfer of control or ownership;
12. Franchise renewal;
13. Franchise revocation;
14. Enforcement of buy-back, lease -back or option -to -purchase provisions;
15. Receivership and foreclosure procedures;
16. Compliance with County standards for public rights of way;
17. Regulate telecommunications utilities which operate a cable communications system;
Page 2 of 4 - Ex. A — Ordinance No. 2008-011 (1/30/08)
18. Regulate direct broadcast satellite service.
F. To reserve the power to exercise this grant of authority to the fullest extent allowed by law,
and in a manner that is consistent with superior law.
G. If and when the County is authorized to regulate direct broadcast satellite systems, it elects to
do so and will require the granting of a franchise prior to a person providing such service.
(Ord. 2008-011 §1, 2008)
13.44.04. Grant or Franchise; Renewal.
A. In the event that the Board finds it in the best interests of the County to consider granting a
franchise for a system, the County Administrator shall be directed to prepare a proposed
franchise, containing at least the following requirements for presentation to the operator:
1. The length, renewal and transfer or assignment of the franchise, including foreclosure and
receivership provisions;
2. A description of the franchise territory and the extension of service;
3. Access requirements;
4. The system design;
5. Technical performance standards;
6. Fees, records and reporting;
7. Indemnification, insurance, and liability for damages; and
8. Provision of an option for the County to acquire the system upon revocation or expiration
of the franchise;
B. The Board, by order, may approve the proposed franchise, as proposed, or modify or
otherwise make amendments thereto as it deems necessary.
C. A request for renewal of a franchise will be considered and processed in conformance with
Federal law.
(Ord. 2008-011 §1, 2008)
13.44.05. Administration of cable Communications Chapter and Franchise.
A. The Board shall have the power to carry out any or all of the following functions:
1. Employ the service of a technical consultant, to assist in the analysis of any matter related
to any franchise, RFP or proposed franchise under this chapter;
2. Act on applications for franchises;
3. Act on matters which might constitute grounds for revocation or termination of a
franchise pursuant to its terms;
4. Resolve disagreements among franchisees and public and private users of the system;
5. Consider requests for rate settings or adjustments;
6. Coordinate and facilitate the use of access channels;
7. Act in intergovernmental matters relating to systems, cooperate with regulators and
operators of other systems, and supervise interconnection of systems;
8. Review all franchisee records required by the franchise and, in the Board's discretion,
require the preparation and filing of information additional to that required by the
franchise;
9. Conduct evaluations of the system and the franchisee's compliance with franchise
requirements at least every three years;
10. Adopt and amend regulations and procedures necessary to enforce franchises and to
clarify terms thereof;
Page 3 of 4 - Ex. A — Ordinance No. 2008-011 (1/30/08)
11. Any other actions the Board deems necessary to carry out the purpose of this chapter.
B. The County Administrator is authorized to carry out day-to-day administration of such
functions on behalf of the Board.
(Ord. 2008-011 §1, 2008)
13.44.06. Intergovernmental Agreements.
The Board may enter into intergovernmental agreements as authorized by Oregon law, with any
other jurisdiction to provide for the cooperative regulation and control of any aspect of a cable
communications system. Such agreements may provide for the delegation of any and all powers
of the Board to an entity provided for in the intergovernmental agreement, except for the powers
to enter into or revoke a franchise agreement.
(Ord. 2008-011 §1, 2008)
13.44.07. Violation; Penalties and Remedies
A. Violation and Penalties.
1. Any person, firm or corporation, other than the County, whether as principal, agent,
employee or otherwise, violating or causing the violation of any provision of this chapter
or performing any of the acts or functions itemized under Section 13.44.02(B) of this
chapter, which defines a cable communications system, without having been awarded a
franchise to perform said acts or functions pursuant to the terms of this chapter, shall be
deemed to have committed a violation.
2. Violation by a franchisee of any provision of a franchise granted pursuant to this chapter
is a violation.
3. Each violation occurring on a separate day is considered a separate violation of this
chapter.
B. Cumulative Remedies. The rights, remedies and penalties provided in this section are
cumulative and not mutually exclusive and are in addition to any other rights, remedies and
penalties available to the County under any other ordinance or law.
C. Injunctive Relief. Upon authorization by the Board, the County Counsel may commence an
action in the Circuit Court or other appropriate court to enjoin the continued violation of any
provision of this chapter.
(Ord. 2008-011 §1, 2008)
13.44.08. Severability.
Invalidity of a section or part of this chapter shall not affect the validity of the remaining sections
or parts of sections.
(Ord. 2008-011 §1, 2008)
Page 4 of 4 - Ex. A — Ordinance No. 2008-011 (1/30/08)