§ 7-59-309 — Notice of authorized and activated public, educational, and governmental access channels - Additional channels - Operation and content - Access support fees

(a) (1) A county or municipality shall, within ten (10) days following the receipt of an application for a state-issued certificate of franchise authority from a cable or video service provider seeking approval to provide cable or video service to the county or municipality, provide notice to the department regarding the number of public, educational, and governmental access channels, "PEG" channels, that have been activated and are authorized to be activated and the amount of any fee or other payment for PEG access support required under the terms of the franchise agreement with the incumbent cable service provider with the most subscribers in the municipality or county on January 1, 2008, whether or not the agreement has expired. (2) For purposes of this section, a PEG channel is deemed activated if it is being utilized for PEG programming within the municipality or county. (3) For purposes of this section, "PEG programming" means noncommercial local interest programming that may include meetings of local governing bodies, boards and commissions, community events, community sporting events, community school programs, arts programs, educational programming provided by departments or agencies of the federal or state government, cultural and history programs, classroom and instructional programs, community news and information programs, programs for children and seniors, or other similar programs. (b) If a municipality or county has provided the notice required under subsection (a), then within ninety (90) days after beginning to offer cable or video service for purchase in a municipality or county, or, in the case such notice has not occurred, within ninety (90) days after the date the notice occurs, a holder of a state-issued certificate of franchise authority shall designate the same number of PEG channels for PEG programming that a municipality or county has activated as described in the notice provided pursuant to subsection (a). If access to PEG facilities or appropriate PEG personnel is not reasonably available to the holder during the ninety-day period, the period shall be extended proportionately day for day for up to ninety (90) additional days unless the party controlling access to the facility where the PEG programming is produced unreasonably denies the provider with access to the facility. The channels shall be provided notwithstanding whether the applicable incumbent cable service provider has terminated its franchise in favor of a state-issued certificate of franchise authority and no interruption in PEG programming distribution shall occur as a result of the termination. (c) (1) In the event a municipality or county has not utilized the maximum number of PEG channels as described in the notice provided pursuant to subsection (a), access to the additional channel or channels shall be provided upon one hundred twenty (120) days' request to the holder of a state-issued certificate of franchise authority or incumbent cable service provider. PEG channels shall be subject to the utilization standards contained in the unexpired franchise until the expiration date of the franchise even if terminated for a state-issued certificate of franchise authority. In all cases following the expiration date of existing franchises, "substantial utilization" shall be determined as follows: (A) For the first PEG channel activated on a system, eight (8) hours of PEG programming per day is programmed on average for each calendar quarter, which programming may include character-generated programming that is not outdated and is of interest to the local community; and (B) For each additional activated PEG channel, ten (10) hours of PEG programming per business day, other than character-generated programming, is programmed for each calendar quarter. (2) For purposes of measuring compliance with the minimum programming per day as provided in this subsection (c), the broadcast of any one (1) program in excess of two (2) times within any twenty-four-hour period or in excess of six (6) times in a business week shall not count toward the minimum requirement. An incumbent cable service provider or holder of a state-issued certificate of franchise authority may give notice of its intent to recover for its own use any PEG channel that is not substantially utilized; provided, that, if within ninety (90) days of the giving of the notice the county or municipality begins substantially utilizing the PEG channel, it shall remain a PEG channel. If at the end of such period the channel is not being substantially utilized, the incumbent cable service provider or holder of a state-issued certificate of franchise authority may recover the channel for its own use. (d) After July 1, 2008, the maximum number of PEG channels to which a municipality or county has access with regard to a cable or video service provider shall be the number, if any, provided for in any local franchise agreement in effect as of January 1, 2008, notwithstanding the subsequent expiration of the agreement or termination of the agreement for a state-issued certificate of franchise authority. (e) If a municipality or county did not have PEG channels under the incumbent cable service provider's franchise agreement as of July 1, 2008, the cable or video service provider shall designate upon written request a sufficient amount of capacity on its cable system or video service network to support up to three (3) PEG channels for a municipality or county with a population of fifty thousand (50,000) or more households; up to two (2) PEG channels for a municipality or county with less than fifty thousand (50,000) but not more than twenty-five thousand (25,000) households; and one (1) PEG channel for a municipality or county with less than twenty-five thousand (25,000) households. If a provider serves more than one (1) municipality or county from a single headend, then the number of households served over the entire system shall be aggregated for purposes of calculating the maximum number of channels that must be provided over the system under this subsection (e). The municipalities or counties served over a system shall determine how the channel or channels provided will be shared. To qualify for the first PEG channel on a system under this subsection (e), a municipality or county shall affirm its intent to substantially utilize the channel as provided for in this subsection (e). With regard to the first PEG channel, the substantial utilization standard shall not be reviewed until nine (9) months after the channel is activated by the municipality or county. Where one (1) or more PEG channels are authorized over a system, an additional channel, up to the maximum number of PEG channels allowed under this subsection (e), may be requested upon a showing that existing PEG channel or channels are being substantially utilized as provided for in this subsection (e). (f) (1) The operation and content of any PEG channel provided pursuant to this section shall be the responsibility of the municipality or the county receiving the benefit of the channel and the cable or video service provider bears only the responsibility for the transmission of the channel. A holder of a state-issued certificate of franchise authority must transmit a PEG channel by one (1) of the following methods: (A) Interconnection, which may be accomplished by direct cable, microwave link, satellite or other method of connection. Upon request, if technically feasible, an incumbent cable service provider must interconnect its network for the provision of PEG programming with a holder of a state-issued certificate of franchise authority. The terms of the interconnection shall be as mutually agreed and shall require the requesting holder to pay the reasonable costs of establishing the interconnection. It is declared to be the legislative intent that an incumbent cable service provider should not incur any additional cost as a result of an interconnection required pursuant to this subdivision (f)(1)(A). In the event a holder of a state-issued certificate of franchise authority and the incumbent cable service provider cannot agree upon the terms under which the interconnection is to be made or the costs of the interconnection, either party may request the department to determine the terms under which the interconnection shall be made and the costs of the interconnection. The determination of the department shall be final. Upon notice to the governing authority of the county or municipality, the time for the holder of a state-issued certificate of franchise authority to begin providing PEG programming as required in this section shall be tolled during the time the department is making its determination; or (B) Transmission of the signal from each PEG channel programmer's local origination point, at the holder's expense, such expense to include any equipment necessary for the holder to transmit the signal from PEG channels activated as of July 1, 2008, if the origination point is in the holder's service area. (2) All PEG channel programming provided to a cable or video service provider for transmission must meet the federal national television system committee standards or the advanced television committee standards. If a PEG channel programmer complies with these standards and the holder does not provide transmission of the programming without altering the transmission signal, then the holder must do one (1) of the following: (A) Alter the transmission signal to make it compatible with the technology or protocol the holder uses to deliver its service; or (B) Provide to the municipality or county, at the holder's expense, in the case of PEG channels activated as of July 1, 2008, the equipment needed to accomplish such alteration. (3) If accessibility to PEG programming or a subscriber's ability to utilize PEG programming transmitted by a holder of a state-issued certificate of franchise authority is materially different than that provided by an incumbent cable provider, then the holder shall make available a description of the differences on a publicly accessible website and within the holder's marketing materials and customer service agreements. (g) The provision of PEG content to the provider shall constitute authorization for the provider to carry the content, including, at the provider's option, beyond the jurisdictional boundaries of the municipality or county; provided, that the municipality or county can acquire the rights at no additional cost. If the municipality or county cannot acquire the rights, then the municipality or county shall be responsible for not transmitting the content to any provider that is unable to restrict the content to a jurisdictional boundary. (h) (1) All PEG channels provided by either an incumbent cable or video service provider or by a holder of a state-issued certificate of franchise authority may be provided in a digital format at the provider's or holder's option; provided, that the availability to subscribers of the PEG programming provided by an incumbent cable provider or a holder of a state-issued certificate of franchise authority shall be in accordance with the terms of any applicable local franchise agreement, except as provided in this section. (2) PEG channels may be provided as follows: (A) If, as of July 1, 2008, a county or municipality has activated more than three (3) channels: (i) One (1) such channel may, upon one hundred twenty (120) days' notice to the county or municipality, be moved to any tier of service to which at least fifty percent (50%) of the subscribers served by the cable or video service provider in the area served by the PEG channel actually subscribe; (ii) Not earlier than two (2) years following July 1, 2008, an additional channel may be moved as provided in subdivision (h)(2)(A)(i); and (iii) Not earlier than three (3) years after July 1, 2008, one (1) additional channel may be moved as provided in subdivision (h)(2)(A)(i); (B) If, as of July 1, 2008, a county or municipality has activated three (3) channels: (i) One (1) such channel may, upon one hundred twenty (120) days' notice to the county or municipality, be moved to any tier of service to which at least fifty percent (50%) of the subscribers served by the cable or video service provider in the area served by the PEG channel actually subscribe; and (ii) Not earlier than two (2) years following July 1, 2008, an additional channel may be moved as provided in subdivision (h)(2)(B)(i); (C) If, as of July 1, 2008, a county or municipality has activated two (2) channels, one (1) such channel may, upon one hundred twenty (120) days' notice to the county or municipality, be moved to any tier of service to which at least fifty percent (50%) of the subscribers served by the cable or video service provider in the area served by the PEG channel actually subscribe; or (D) Notwithstanding any provision in this section to the contrary, up to three (3) PEG channels of a municipality or county may, upon one hundred twenty (120) days' notice to the county or municipality, be provided on any tier of service if the channels are available to subscribers that only subscribe to a cable or video service provider's lowest cost tier. If additional equipment is required for such a subscriber to have access to the PEG channels provided on the tier of service, then the monthly cost for the equipment shall not exceed the greater of three dollars ($3.00), adjusted annually to reflect inflation commencing after the effective date in accordance with the consumer price index, or ten percent (10%) of the cost of the tier. The cable or video service provider may seek a waiver from the department of the foregoing price limitation if it can show that under the circumstances, the limitation is unreasonable. In addition to the PEG channel relocation rights under subdivisions (h)(2)(A), (B) and (C), following October 1, 2009, to the extent that a provider makes at least three (3) PEG channels available to subscribers as described in this subdivision (h)(2)(D), then upon at least sixty (60) days' notice to the county or municipality, any additional PEG channels may be moved to any tier of service to which at least fifty percent (50%) of the subscribers served by the cable or video service provider in the area served by the PEG channel actually subscribe. (3) Any PEG channels activated after April 1, 2008, may be provided on any tier of service to which at least fifty percent (50%) of the subscribers served by the cable or video service provider in the area served by the PEG channel actually subscribe. (4) The determination as to whether a particular PEG channel or channels are to be moved pursuant to this subsection (h) shall be subject to the approval of the governing authority of the affected county or municipality. (i) A holder of a state-issued certificate of franchise authority is not required to interconnect for or otherwise transmit PEG content that is branded with the logo, name, or other identifying marks of another cable or video service provider. (j) Municipalities and counties shall be eligible for state-authorized PEG access support fees as follows: (1) A holder of a state-issued certificate of franchise authority shall, immediately upon beginning to offer cable or video service for purchase in a municipality or county, be required to make state-authorized PEG access support payments that are equivalent to any PEG access support payments required to be made by the incumbent cable service provider in accordance with the notice required by subsection (a). The obligation shall continue until the natural expiration date of the incumbent cable service provider's local franchise that was in existence as of January 1, 2008, or, in the case of a local franchise that has expired but the terms of which are still in effect, until a new local franchise agreement or a state-issued certificate of franchise authority for the provider becomes effective, referred to in this section as the initial PEG support period. The payment obligation shall be as follows: (A) If the incumbent cable service provider provides PEG access support in the form of periodic payments to the municipal or county governing authority that are equal to a percentage of gross revenue or a specified per-subscriber amount, the holder of a state-issued franchise shall make state-authorized PEG support payments to the governing authority equal to the same percentage of gross revenue or per-subscriber amount; or (B) If the incumbent cable service provider provides PEG access support to the municipal or county governing authority in the form of a lump-sum payment or a series of fixed payments, then to the extent that the incumbent cable service provider's obligation to make the payments remains unsatisfied as of January 1, 2008, the holder of a state-issued certificate of franchise authority shall pay to the municipality or county a state-authorized PEG support payment amount equal to the portion of the incumbent cable service provider's remaining obligation due during the calendar year multiplied by a fraction, the numerator of which is the total number of the holder's subscribers in the municipality or county thirty (30) days prior to the payment due date and the denominator of which is the total number of cable service and video service subscribers of all providers of cable and video service in the municipality or county as of the same date. (2) Following the initial PEG support period, a municipality or county that had received initial PEG access support shall, upon written notification to all cable and video service providers serving the municipality or county, be entitled to continue to receive state-authorized PEG access support equal to the same percentage of gross revenues, not to exceed one percent (1%), as it was receiving at the end of the initial PEG support period; provided, however, that no municipality or county shall receive less on a per subscriber basis than it received from the initial PEG support payments. If such a municipality or county is receiving state-authorized PEG support in an amount that is less than one percent (1%), then a municipality or county may, pursuant to a duly adopted ordinance or resolution, increase its state-authorized PEG support to an amount not to exceed one percent (1%) of gross revenue for the sole purposes of paying any category of costs that were being covered by initial PEG support payments. The right of a municipality or county to require a state-authorized PEG support payment following the initial PEG support period under this subsection (j) is discretionary with the municipality or county and nothing shall prohibit a reduction of the payments. (3) A municipality or county not receiving initial PEG support payments, may, pursuant to a duly adopted ordinance or resolution, require that a holder of a state-issued certificate of franchise authority pay state-authorized PEG support payments to the county or municipality in an amount not to exceed one percent (1%) of gross revenue, for the sole purpose of paying capital costs of equipment in connection with the operation of PEG channels; provided, that the aggregate amount of state-authorized PEG support payments pursuant to this subdivision (j)(3) together with any franchise fees required to be paid under § 7-59-306 shall not exceed five percent (5%) of gross revenues. (4) Notwithstanding any provision of this part or state law to the contrary, amounts received by a municipality or county for PEG support may not be used for other purposes. (5) All payments due under this section shall be remitted with the franchise fee payment, and the administrative provisions of § 7-59-306 and the definitions of § 7-59-303 shall apply. (6) All cable and video service providers may designate that portion of the subscriber's bill attributable to any payment required under this section as a separate item on the bill and recover the amount from the subscriber. (k) (1) Notwithstanding § 7-59-307(c) , an incumbent cable service provider that provides free cable service to schools or government offices in a municipality or county on July 1, 2008, shall be required to continue to provide the free service to those locations until the natural termination date of the local franchise agreement; provided, that the municipality or county provides the incumbent with a list of locations where the free service is provided as of July 1, 2008. Any other cable or video service provider or holder of a state-issued certificate of franchise authority that serves the same municipality or county as an incumbent cable service provider that is offering free cable service as provided for in this subsection (k) shall provide a comparable level of free cable or video service to the same locations as listed by the municipality or county until the natural termination date of the incumbent's local franchise agreement. (2) Notwithstanding the requirements of subdivision (k)(1), all cable or video service providers providing cable or video services in a municipality or county, including all holders of a state-issued certificate of franchise authority providing services under the state-issued certificate, and the municipality or county are authorized to negotiate any other arrangement agreed to by all parties other than meeting the requirements of subdivision (k)(1).

Legislative History

Acts 2008 , ch. 932, § 10.