Title 13 - Streets and Sidewalks

1. A.

   Access Facilities means:

   1. 1.
      Channel capacity designated for non-commercial Public, Educational or Governmental Access use; and
   2. 2.
      The facilities and equipment for the use of such channel capacity.

Effective on: 1/1/1901

2. B.
   Affiliate means each person, directly or indirectly, controlling, controlled by, or under common control with the Franchisee; provided that Affiliate shall in no event mean any limited partner or shareholder holding an interest of less than 15 percent of such Franchisee, or any creditor of such Franchisee solely by virtue of its status as a creditor and which is not otherwise an Affiliate by reason of owning a controlling interest in, being owned by, or being under common ownership, common management, or common control with, such Franchisee.

Effective on: 1/1/1901

3. C.
   Basic Cable Service means any Cable Service tier that includes the lawful retransmission of local television broadcast signals and any Public, Educational, and Governmental Access programming required by this Ordinance to be carried on the basic tier. Basic Cable Service as defined herein shall be consistent with 47 U.S.C. § 543(b)(7) (1997).

Effective on: 1/1/1901

4. D.
   Cable Act means the Cable Communications Policy Act of 1984, Pub. L. No. 98-549, (codified at 47 U.S.C. §§ 521-611 (1982 & Supp. V. 1987) as amended by the Cable Television Consumer Protection and Competition Act of 1992, Pub. L. No. 102-385, and the Telecommunications Act of 1996, Pub. L. No. 104-104 (1996) as it may, from time to time, be amended.

Effective on: 1/1/1901

5. E.
   Cable Franchise means an initial Cable Franchise authorization, or renewal thereof (including a renewal of an authorization which has been granted subject to Section 626 of the Cable Act), issued by the City, whether such authorization is designated as a franchise, permit, license, resolution, contract, certificate, agreement, or otherwise, which authorizes the construction or operation of a Cable System.

Effective on: 1/1/1901

6. F.
   Cable Franchisee means a Person who is granted a Cable Franchise to construct, operate or maintain Cable Facilities or provides Cable Services by use of the Rights-of-Way, and that Person's agents, employees, lawful successors, transferees, or assignees.

Effective on: 1/1/1901

7. G.
   Cable Franchise Fee means any tax, fee, or assessment of any kind imposed by the City or other governmental entity on a Cable Service Franchisee or its Cable Subscribers, or both, solely because of their status as such, pursuant to this Code. The term "Cable Franchise Fee" does not include: (i) any tax, fee, or assessment of general applicability (including any such tax, fee, or assessment imposed on both utilities and Cable Operators or their Cable Services but not including a tax, fee, or assessment that is unduly discriminatory against Cable Franchisees or Cable Subscribers); (ii) Capital Costs that are required by a Cable Franchise to be incurred by a Cable Franchisee for public, educational or governmental ("PEG") Access facilities; (iii) requirements or charges incidental to the award or enforcement of a Cable Franchise, including payments for bonds, security funds, letters of credit, insurance, indemnification, penalties, or liquidated damages; or (iv) any fee imposed under Title 17 of the United States Code.

Effective on: 1/1/1901

8. H.
   Cable Services or Services means:

   1. 1.
      The one-way transmission to subscribers of (i) video programming, or (ii) other programming service; and
   2. 2.
      Subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service;

Effective on: 1/1/1901

9. I.
   Cable Internet Services means the offering of direct access by a Cable System to the international computer network of both federal and non-federal interoperable packet switched data networks to customers for a fee.  For purposes of this Code, Cable Internet Service shall mean the direct access to the Internet provided to customers over the Cable System and shall include the provision of incidental services and such other revenues that are required by applicable law to be treated under the same regulation as such direct access service, but not including revenue from independent services such as Internet web design or Internet web hosting or the sale of  modems for Cable Internet Services. Except as may lawfully be required by the City or otherwise dictated by applicable law, all Franchises granted hereinafter shall authorize use of the Rights-of-Way for Cable Internet Service only pursuant to a Cable Franchise.  Pending any legally binding determination to the contrary, all payments made to the City prior to the date of such determination attributable to such Cable Internet Service under a Cable Franchise shall be irrefutably deemed to be lawful compensation for the past use of the City's Rights-of-Way.

Effective on: 1/1/1901

10. J.
    Cable System or 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 programming and which is provided to multiple Subscribers within the Franchise Area, but such term does not include:

    1. 1.
       A facility that serves only to retransmit the television signals of one or more television broadcast stations;
    2. 2.
       A facility that serves Subscribers without using any public Rights-of-Way; or
    3. 3.
       A facility of a common carrier which is subject, in whole or in part, to the provisions of 47 U.S.C. §§ 201-226, except that such facility shall be considered a Cable System (other than for purposes of 47 U.S.C.§541(c)) to the extent such facility is used in the transmission of video programming directly to Subscribers, unless the extent of such use is solely to provide interactive on-demand services;
    4. 4.
       An Open Video System that complies with Section 653 of the Cable Act; or
    5. 5.
       Any facility of any electric utility used solely for operating its electric utility system.

Effective on: 1/1/1901

11. K.
    Capital Costs means costs associated with the purchase of assets, products or other resources that will provide service for more than one year, but shall not have any meaning inconsistent with generally accepted accounting principles.

Effective on: 1/1/1901

12. L.
    Channel means a portion of the electromagnetic frequency spectrum which is used in a Cable System and which is capable of carrying a television channel as defined by the FCC.

Effective on: 1/1/1901

13. M.
    City or Grantor means the City of Overland Park, Kansas.

Effective on: 1/1/1901

14. N.
    Code means this "Cable Services Code" and all provisions herein established by this Ordinance.

Effective on: 1/1/1901

15. O.
    Collocation means the shared use of Facilities, including, but not limited to, the placement of conduit owned by more than one Rights-of-Way user in the same trench or boring and the placement of equipment owned by more than one user in the same or connected conduit. Collocation does not include interconnection of Facilities or the sale or purchase of capacity (whether bundled or unbundled).

Effective on: 1/1/1901

16. P.
    Complaint means any oral, written or electronic, allegation, or assertion made by a Person regarding Cable Service or Cable System operations that the Cable Franchisee is not in compliance with its Franchise or this Code.

Effective on: 1/1/1901

17. Q.
    Converter means an electronic device that converts signals to a frequency not susceptible to interference within the television receiver of a Subscriber and, through the use of an appropriate Channel selector, permits a Cable Subscriber to view all authorized Cable Subscriber signals delivered at designated converter dial locations.

Effective on: 1/1/1901

18. R.
    Direct Incremental Costs means the costs actually incurred by a Cable Franchisee in meeting an obligation under its Franchise which the Franchisee would not otherwise have incurred in order to either operate and conduct the business of its Cable System or meet another obligation of the Franchise.

Effective on: 1/1/1901

19. S.
    Drop means the cable or cables that connect the ground block on the Cable Subscriber's property to the nearest feasible point on the Cable System in order to receive Cable Service.

Effective on: 1/1/1901

20. T.
    Facilities means any portion of a Cable or OVS System located in, along, over, upon, under, or through the Rights-of-Way.

Effective on: 1/1/1901

21. U.
    Franchise Area unless otherwise specified in the applicable Franchise, as provided for in 13.50.140.J., means the entire geographic area within the City as it is now constituted or may in the future be constituted.

Effective on: 1/1/1901

22. V.
    Gross Revenues means any revenue actually received by a Cable Franchisee, or by any other entity that is a Cable Operator on a Cable Franchisee's Cable System including the Cable Franchisee's Affiliates, from the operation of the Cable Franchisee's Cable System to provide Cable Services. By way of illustration and not limitation, this definition would include to the extent permitted by law revenue derived from pay cable fees, installation and reconnection fees, leased channel access fees; Converter rentals; revenue from Cable Internet Service (unless it is conclusively determined that such revenues may not be legally included as Cable Services); all Cable Service lease payments from the Cable System; payments or other consideration received by the Cable Franchisee from programmers for the carriage of programming, including home shopping channels, except as provided herein, that is accounted for as revenue under generally accepted accounting principles ("GAAP"); advertising revenues; revenues from data transmissions to the extent these transmissions are considered Cable Services under federal law; payments or other consideration received by the Cable Franchisee for the use of the Cable System to provide Cable Service and accounted for as revenue under GAAP. Revenues which are not directly attributable to specific Cable Subscribers, including, but not limited to, leased access fees, advertising revenues, and home shopping commissions, shall be allocated among the franchising jurisdictions served by the Cable Franchisee's Cable System on a per Subscriber or other equitable basis measured in a consistent manner from period to period. Gross Revenues shall not include (i) to the extent consistent with GAAP, bad debt; provided, however, that all or part of any such bad debt that is written off but subsequently collected shall be included in Gross Revenues in the period collected; (ii) amounts collected from Cable Subscribers for public, educational and governmental access, provided, however, this exclusion does not limit a Cable Franchisee's ability to pass through franchise related costs to the extent allowed by applicable law; (iii) any taxes on Cable Services furnished by Cable Franchisee which are imposed directly upon any Subscriber or user by the State, City, or other governmental unit and which are collected by Cable Franchisee on behalf of said governmental unit; (iv) Franchise Fees collected from Subscribers, or (v) payments or other consideration received by the Cable Franchisee from programmers for carriage of programming on the Cable System to the extent that such Cable Franchisee's books and records indicate that all such payments are utilized for public interest community events or are payments for advertising or promotions which are contractually required by said programmers.

Effective on: 1/1/1901

23. W.
    Institutional Network or I-Net means a communication network which is constructed or operated by Cable Franchisee and which is generally available only to Institutional Users. As may be required in the applicable Cable Franchise, the I-Net may consist of capacity, fibers or both, from both within the primary cable network and/or separately constructed networks that may be dedicated to governmental, educational and other publicly funded users for two-way, broadband communications. The I-Net includes all equipment and maintenance of equipment required to make the capacity available, including, but not limited to, fiber and coaxial cable, cable modems, switching, routing, transmitting and receiving necessary for the use of the network as set out in the individual Cable Franchise.

Effective on: 1/1/1901

24. X.
    Institutional Network Services means the provision of an I-Net by a Cable System operator to governmental, educational and other Institutional Users pursuant to the terms of its Franchise for non-commercial applications including, but not limited to, two-way dedicated voice, video, data and telephony channels connecting and interconnecting user facilities.

Effective on: 1/1/1901

25. Y.
    Institutional Users means governmental, educational, and other non-profit publicly funded users delineated in the individual Cable Franchise, as may be amended from time to time with the consent of the Cable Franchisee.

Effective on: 1/1/1901

26. Z.
    Normal Business Hours means those hours during which most similar businesses in the community are open to serve customers. In all cases, Normal Business Hours must include some evening hours, at least one night per week, and some weekend hours.

Effective on: 1/1/1901

27. AA.
    Normal Operating Conditions means those Cable Services offered and controlled by the Cable Franchisee or those conditions that are within the control of a Cable Franchisee. Those conditions which are ordinarily within the control of Cable Franchisee include, but are not limited to, special promotions; pay-per-view events; rate increases; regular peak or seasonal demand periods; and maintenance or upgrade of the Cable System. Those conditions that are not within the control of Cable Franchisee include, but are not limited to, natural disasters; civil disturbances; power outages; telephone network outages; vandalism, public works projects for which no advanced notice is given, and severe or unusual weather conditions.

Effective on: 1/1/1901

BB. Open Video Services or OVS means any video programming Services provided to any person by a Franchisee certified by the FCC to operate an Open Video System pursuant to Section 47 U.S.C. 573, as may be amended, regardless of the Facilities used.

Effective on: 1/1/1901

CC. Person means any corporation, partnership, proprietorship, individual, organization, governmental entity or any natural person.

Effective on: 1/1/1901

DD. Public Building means any building identified in the applicable Franchise which is owned or for the greater part occupied by the City or on behalf of the City by other governmental units performing traditional municipal governmental functions.

Effective on: 1/1/1901

EE. Renewal means a new Cable Franchise granted to an existing Franchisee.

Effective on: 1/1/1901

FF. Reports means any and all non-trade secret documents and information required to be completed and/or kept or filed by a Cable Franchisee on order of the Federal Communications Commission, State or City. To the extent permitted by applicable law, the City shall maintain such information as confidential to the extent that the Franchisee identifies specific information as such.

Effective on: 1/1/1901

GG. Rights-of-Way means the surface and space on, above and below every municipal street, alley, road, highway, lane or City right-of-way dedicated or commonly used now or hereafter for utility purposes and facilities thereon, including, but not limited to, overhead lighting facilities. This term shall not include any county, state, or federal rights-of-way except where controlled or maintained by the City, or as otherwise provided by applicable Laws or pursuant to an agreement between the City and any such Person or Agency. "Rights-of-Way" shall not include public property owned or leased by the City and not intended for right-of-way use, including, but not limited to, municipal office building property or public works facilities.

Effective on: 1/1/1901

HH. ROW Ordinance means "An Ordinance for Managing the Use and Occupancy of Public Right-of-Way for the City of Overland Park, Kansas," adopted as Ordinance No. RW-2184 that regulates the excavation, construction and use of the Rights-of-Way by all persons, or as amended or supplemented hereinafter.

Effective on: 1/1/1901

II. Service Interruption means the loss of picture or sound on one or more Channels on the Cable System.

Effective on: 1/1/1901

JJ. Standard Installation means any Service installation that can be completed using a Drop of one hundred twenty-five (125) feet or less.

Effective on: 1/1/1901

KK. Subscriber means any Person, who or which lawfully elects to subscribe for any purpose to Cable Service provided by a Cable Franchisee by means of, or in connection with, the Cable System, and whose premises or facilities are physically wired and lawfully activated to receive Cable Service from Cable Franchisee's Cable System, including Persons who receive Cable Service without charge according to the terms of the Code or Franchise.

Effective on: 1/1/1901

LL. Telecommunications Act means the Telecommunications Act of 1996 codified at Title 47 of the United States Code.

Effective on: 1/1/1901

MM. Trained Representative means employees of a Cable Franchisee who have the authority and capability while speaking with a Cable Subscriber to, among other things, answer billing questions, adjust bills, and schedule service and installation calls.

(History: Ord. CaSC-2293 §1, 2001)

Effective on: 1/1/1901