HomeMy WebLinkAbout44-13 RESOLUTIONRESOLUTION NO.44-13
A RESOLUTION TO EXPRESS THE CITY COUNCIL'S OPPOSITION TO
SENATE BILL 101, THE VIDEO SERVICES ACT, AND TO REQUEST OUR
SENATORS AND REPRESENTATIVES AND ALL ARKANSAS
LEGISLATORS TO REJECT THIS UNFAIR AND UNNEEDED BILL
WHEREAS, the City of Fayetteville has for decades enjoyed a good working
relationship with the various television cable companies that serve our citizens and maintained
cable franchise agreements as authorized by federal law; and
WHEREAS, our citizens have benefitted from the City's franchising authority which
was used to establish and finance Public, Educational and Government Channel cablecasting and
to ensure as good customer service as possible; and
WHEREAS, the cable industry has now pushed SB 101, the Video Services Act, to take
away our existing cable franchise rights and transfer this power to the state with no local
governmental protection for our citizens' right to be treated fairly and equitably by the cable
industry; and
WHEREAS, SB 101, the Video Services Act, endangers our federal rights to Public,
Educational and Government channel access so that our public's freedom of speech and
expression rights are weakened, the availability of the Education Channel for the Fayetteville
Public Schools is brought into question and the Government Channel's commitment to provide
transparency of government meetings and operation is threatened; and
WHEREAS, the Fayetteville Telecommunication Board voted unanimously on February
21, 2013 to recommend that the Fayetteville City Council pass a Resolution asking our State
Senators and Representatives to oppose and vote against Senate Bill 101.
NOW, THEREFORE BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF FAYETTEVILLE, ARKANSAS:
Section 1: That the City Council of the City of Fayetteville, Arkansas hereby expresses
its strong opposition to Senate Bill 101, the Video Services Act, as unneeded, a removal of active
local control and regulation to protect our citizens and school children to be replaced by passive
state control; and a blow against freedom of information and a citizenry's right to easily see their
government decision making process and operation.
Section 2: That the City Council of the City of Fayetteville, Arkansas hereby requests
that all of our State Senators and State Representatives (especially those representing citizens of
Fayetteville) strongly oppose and vote against Senate Bill 101, the Video Services Act.
Page 2
Resolution No. 44-13
PASSED and APPROVED this 5 h day of March, 2013.
APPROVED:
Lm
ATTEST:
By:
SONDRA E. SMITH, City Clerk/Treasurer
%°%Ajnnrrr��
: FA YETTEVI
LLF_ a -
kANSP
City of Fayetteville Staff Review Form
City Council Agenda Items
and
Contracts, Leases or Agreements
3/5/2013
City Council Meeting Date
Agenda Items Only
Lindsley Smith Cable Administration Communication
Submitted By Division Department
Cost of this request Category / Project Budget Program Category / Project Name
Account Number Funds Used to Date Program / Project Category Name
Project Number Remaining Balance Fund Name
Budgeted Item
Budget Adjustment Attached
a-aG-i3
D2grdwreK Directo Date
City Attorney Date
0. Q.,�9.,�-... 1-zc-A0&3
Finance and Internal Services Director Date
2-- b 13
Date
Previous Ordinance or Resolution #
Original Contract Date:
Original Contract Number:
VL LJ I J 2:J'2 ..L
Received in City
Clerk's Office
Received in ED
Mayor's Office l3
Revised January 15, 2009
Zay7e•
evle
LlrLy SASS
CITY COUNCIL AGENDA MEMO
To: The Fayetteville City Council
Thru: Mayor Lioneld Jordan
Don Marr, Chief of Staff
From: Lindsley Smith, Director of Communication
Date: February 26, 2013
Subject: Resolution expressing opposition to Senate Bill 101
THE CITY OF FAYETTEVILLE, ARKANSAS
DEPARTMENT CORRESPONDENCE
BACKGROUND:
On Thursday, February 21, 2013, the Telecommunications Board of the City of Fayetteville conducted its
regular monthly meeting. On the agenda was a discussion of the proposed Senate Bill 101—Video Service Act
that is being considered in the Arkansas State Legislature. The Board heard comments from Lindsley Smith,
Director of Communication; Kit Williams, City Attorney; and Fritz Gisler, Director of Media Services, all from
the City of Fayetteville; and Susan Norton from Fayetteville Public Schools. All the presenters expressed
opposition to the Bill.
After discussion and consideration, the Board voted unanimously to request the City Council to adopt a
Resolution expressing the City of Fayetteville's opposition to the passage of Senate Bill 101. Please see the
attached document from the Telecommunications Board.
RECOMMENDATION:
The Telecommunications Board, in its advisory role to the City Council, advises the City Council of the City of
Fayetteville to adopt a Resolution expressing the City's opposition to the passage of Senate Bill 101.
DATE: February 21, 2013
TO: Fayetteville City Council
FROM: Telecommunications Board
RE: Senate Bill 101
In its meeting of February 21, 2013, the Telecommunications Board voted unanimously to recommend
that the Fayetteville City Council pass a Resolution asking our State Senators and State Representatives
to oppose and vote against Senate Bill 101, the Video Services Act, currently being considered by the
Arkansas General Assembly. A copy is attached.
The Telecommunications Board received no notice, communication, or information regarding this bill or
any perceived problems with the existing city franchise agreements from either Cox Communications or
AT&T before it was introduced. Both franchisees were invited to attend the February 21" meeting of the
Telecommunications Board to discuss these issues, but both declined to do so. We did hear comments
from City Attorney Kit Williams, City Communication Director Lindsley Smith, and Susan Norton from the
Fayetteville School District, all of whom discussed the numerous harms that would result from
enactment of the proposed legislation.
Among other things, Senate Bill 101 would, if enacted, allow video service providers to revoke the
existing franchise agreements from the City of Fayetteville and acquire a certificate of franchise
authority from the Arkansas Secretary of State. The franchisees would be released from all provisions of
the existing franchises regarding use of rights of way, service requirements, complaint procedures, areas
of service, and other provisions previously negotiated and agreed to that protect the interests of the
City and its residents.
No local residents have expressed to the Telecommunication Board any support for this legislation, and
we can identify no benefits to either the City of Fayetteville or its residents that would result from
revocation of the existing franchises and transfer of local authority to the Secretary of State, who would
be barred from negotiating any additional services, benefits, regulations, or controls to protect the
rights of municipalities or their residents with regard to video services transmitted over the public rights
of way.
Furthermore, Fritz Gisler, Director of Media Services for the City of Fayetteville, who provides staff
support to the Telecommunications Board, addressed areas of concern within the purview of our Board
and concluded that among the negative consequences of the proposed legislation would be:
1. The removal of any regulations regarding the operation of video service providers whatsoever. Not only
will local authority be eliminated, no comparable authority on the state level is established.
2. Ensuring compliance with the few rules of operation that will remain will be costly and difficult, with
little or no incentive on the part of the providers to be concerned about compliance.
3. All control of operations will now reside with the provider. The bill will totally remove any provision for
local control of how providers implement their services, notwithstanding that said providers are utilizing
wholly local resources. This includes everything from the scope of services to geographic areas of
operation.
4. The provision for non-commercial/public service access (PEG) channels is minimal. It does not allow for
expansion, such as the addition of channels if the citizens desire. It allows providers to place the
channels on a subscription level that will prevent many citizens from seeing them without increased
expense. It increases the cost to the city or county that is with providing the programming. It allows the
provider to reduce the technical quality of the signal, and provides no incentive to improve. For
example, if Fayetteville had a High Definition channel, we would telecast much of our Government
Channel programming in HD. Under this bill, the transmission quality of our channel will be reduced
even further from the Standard Definition it is now. This reduces our opportunity to improve our
communication with our citizens.
5. There is no accountability for providers. They will basically be able to do as they please.
Consequently, the Telecommunications Board, taking seriously its responsibility to advise the Council, voted
unanimously to recommend that the Fayetteville City Council pass a Resolution asking our State Senators and
State Representatives to oppose and vote against Senate Bill 101, currently being considered by the Arkansas
General Assembly.
RESOLUTION NO.
A RESOLUTION TO EXPRESS THE CITY COUNCIL'S OPPOSITION TO
SENATE BILL 101, THE VIDEO SERVICES ACT, AND TO REQUEST OUR
SENATORS AND REPRESENTATIVES AND ALL ARKANSAS
LEGISLATORS TO REJECT THIS UNFAIR AND UNNEEDED BILL
WHEREAS, the City of Fayetteville has for decades enjoyed a good working
relationship with the various television cable companies that serve our citizens and maintained
cable franchise agreements as authorized by federal law; and
WHEREAS, our citizens have benefitted from the City's franchising authority which
was used to establish and finance Public, Educational and Government Channel cablecasting and
to ensure as good customer service as possible; and
WHEREAS, the cable industry has now pushed SB 101, the Video Services Act, to take
away our existing cable franchise rights and transfer this power to the state with no local
governmental protection for our citizens' right to be treated fairly and equitably by the cable
industry; and
WHEREAS, SB 101, the Video Services Act, endangers our federal rights to Public,
Educational and Government channel access so that our public's freedom of speech and
expression rights are weakened, the availability of the Education Channel for the Fayetteville
Public Schools is brought into question and the Government Channel's commitment to provide
transparency of government meetings and operation is threatened; and
WHEREAS, the Fayetteville Telecommunication Board voted unanimously on February
21, 2013 to recommend that the Fayetteville City Council pass a Resolution asking our State
Senators and Representatives to oppose and vote against Senate Bill 101.
NOW, THEREFORE BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF FAYETTEVILLE, ARKANSAS:
Section 1: That the City Council of the City of Fayetteville, Arkansas hereby expresses
its strong opposition to Senate Bill 101, the Video Services Act, as unneeded, a removal of active
local control and regulation to protect our citizens and school children to be replaced by passive
state control; and a blow against freedom of information and a citizenry's right to easily see their
government decision making process and operation.
Section 2: That the City Council of the City of Fayetteville, Arkansas hereby requests
that all of our State Senators and State Representatives (especially those representing citizens of
Fayetteville) strongly oppose and vote against Senate Bill 101, the Video Services Act.
LIZ
PASSED and APPROVED this 5t' day of March, 2013
ATTEST:
LIONELD JORDAN, Mayor SONDRA E. SMITH, City Clerk/Treasurer
e�Vl a Departmental Correspondence
-ARKANSAS
Kit Williams
City Attorney
TO: Mayor Jordan Jason B. Kelley
Don Marr, Chief of Staff Assistant City Attorney
Lindsley Smith, Communications & Marketing Director
FROM: Kit Williams, City Attorney
DATE: January 25, 2013
RE: SB 101— State franchising damages cities'
and their citizens' access to cable television
This cable industry bill reduces Arkansas cities' rights and powers to protect
their citizens, to ensure that the city's government would be shown to our citizens on
the Government Channel, to allow the Fayetteville School District to cablecast school
activities on the Education Channel and to promote our citizens' First Amendment
rights on the Public Access Channel.
The Emergency Clause language shows there is no reason for this bill except to
take away power to protect citizens from Arkansas cities in favor of the national cable
television industry (with a little bonus for the Secretary of State). The Emergency
Clause states:
"It is found and determined by the General Assembly of the
State of Arkansas that perhaps the lack of uniformity in the
laws governing video service providers is inequitable to certain
citizens and government entities ...." (emphasis added).
Of course this Bill has to say "perhaps" because what city or governmental
entity claims the existing federal cable law is inequitable or damaging to them? Local
governments have lost some power to protect local interests as the cable industry's
lobbying at the federal level has succeeded in some roll back of local government
power. But this bill would be much worse for our cities and their citizens. What
citizens have asked for this bill which reduces their local government's power to try to
ensure fairness and equity? Cities are best protectors of their citizens which is why
cities have occasionally required a cable company to build out its system to reach the
vast majority of its citizens rather than cherry -picking the most affluent and dense
neighborhoods. This protection against inequity has been specifically outlawed by SB
101 {§23-19-207(b)}.
How does limiting the availability of Public, Education and Government
Channels that cities can presently require under federal law help citizens or cities?
Obviously, these restrictions are placed within this bill ONLY TO HELP CABLE
COMPANIES to the detriment of open government and democracy.
Because of digital cablecasting, many more cable channels are now available to
the cable industry. What is the rationale then of restricting a city's existing federal
right to use free Public, Education and Government Channels by the three pages. of
regulations in this proposal? Cities should be encouraged to cablecast city council,
planning commission and other city meetings to their citizens. That is the essence of
open government. Cities should be encouraged to make its Education Channel freely
and easily accessible to its public schools and universities. Arkansas students should
have an opportunity to learn the basics of this vital industry. Cities should be
encouraged to provide a Public Access cable channel to give its citizens the venue to
express themselves, their hopes and dreams. Instead of promoting open
government, fostering education in the telecommunication area and encouraging
free speech and artistic expression, SB 101 throws roadblocks in the way of any
city wanting to provide those services to its citizens.
SB 101 also could totally prohibit a city from having any public, education or
government channel if the company's "common head -end or hub office" (the size and
location which is obviously under the total control of the cable company) is already
furnishing public channels to another city or county. {§23-19-209 (d)). So the cable
industry gets to choose which city gets public access channels and which city gets no
access.. This is indeed to "inequitable to certain citizens and government entities."
(Emergency Clause)
Current federal law requires that the public channels be available to subscribers
at the lowest cost tier level (which likely makes them accessible to all subscribers).
SB 101 cuts this in half so that as many as 49% of all subscribers may not be able to
receive the public channel cablecasting. §23-19-209 (e)(2)(A). Does the Legislature
want to prevent half of a community's cable viewers from being able to see the
community's city council, planning commission and other important local government
committees discussing local issues? This seems directly contrary to the Legislature's
explicit policy of open government expressed in the Freedom of Information Act.
2
The real question before such a statewide removal of power from cities and
counties is why? Have cable companies not been granted franchises by other cities?
Fayetteville has had franchise agreements for decades. We have franchise agreements
with both Cox Communications and AT&T U-Verse and renewed both with no
trouble or major issues. There is no problem to fix. At the very least, Fayetteville
and every city with existing franchise agreements should be fully exempted from
this bill and all of its requirements and limitations.
Local service issues and citizen complaints have long been handled fairly,
quickly and locally by persons who best know our City, its citizens and their needs.
With SB 101, most of the cities' power is being removed. This proposed bill tries to
force every issue into Court {§23-19-207(c)). We have not had to resort to Court
before. Why should litigation be encouraged when our city franchise system has
worked well without having to sue and litigate issues we solved amicably and quickly
before this bill?
3
•
eevl e Departmental Correspondence
-ARKANSAS
Kit Williams
City Attorney
TO: Mayor Jordan Jason B. Kelley
Don Marr, Chief of StaffAssistant City Attorney
Lindsley Smith, Communications & Marketing Director
FROM: Kit Williams, City Attorney
DATE: February 8, 2013
RE: SB 101— State franchising impairs cities' contractual rights
The City of Fayetteville as many other cities in Arkansas have contractually
entered into franchise agreements with cable and video transmission companies such
as Cox Communications and AT&T Arkansas to better supply programming including
Public Access, Educational and Government channels for our citizens. These decades
long agreements agreed to by both the companies and city councils would be impaired
by SB 101's current wording. This would make. that law not only unwise, but
unconstitutional.
"Section 17 of the Declaration of Rights in our Constitution
provides that no law impairing the obligation of contracts
shall ever be passed." Pool v. Mitchell, 139 Ark..319, 213
S.W. 752 (1917).
"The Constitution of the United States § 10 Article 1
provides that no state shall pass any law impairing the
obligations of contracts, while our Arkansas Constitution
Article 2 § 17 provides `No bill of attainder, ex post facto law
or law impairing the obligation of contracts shall ever be
passed.'
The classes of contracts entered into voluntarily that are
based on the assent of the parties expressly or impliedly
given ... are protected by the Constitutional provisions
against impairing the obligation of a contract." Jones v.
Cheney, 253 Ark. 926, 931, 489 S.W. 2d 785, 788 (1973).
The constitutionally objectionable part of SB 101 is in Section 23-19-203
which the gives the cable company (strangely refered to as "person") the unilateral
right to ignore an existing cable franchise contract with a city and instead get a state
franchise. If the cable company or AT&T Arkansas, Inc. decides to get a state
franchise agreement, "the incumbent video service provider's franchise from the
political subdivision (city) shall no longer be of any force or effect." Section 23-19-
203 (b) (2).
Thus, Fayetteville's contractual rights under our franchise contracts have not
only been impaired, but destroyed by SB 101. Why would the State Legislature
ignore and repudiate Arkansas cities' right to contract that is guaranteed by both the
United States and Arkansas Constitutions? What horror stories have the TV cable
companies told that would inspire a repudiation of one of our basic rights and
freedoms?
A COMPROMISE
I would suggest the following wording for Section 23-19-203:
"23-19-203. Franchising authority.
(a) After June 30, 2013, a company shall not act as a video service provider within a
city's jurisdiction that was being served on the effective date of this Act by one or
more video service providers within Arkansas unless the company:
(1) Is an incumbent video service provider or any successor or assignee or other
entity that provides video service within a city which had a franchise agreement or
agreements with video service providers which were in effect on January 1, 2013;
(2) Is a nonincumbent video service provider who enters into a franchise
agreement with the served city under the same basic terms as the other video services
providers; or
(3) Both the City and the video service provider agree to terminate the local
franchise agreement so that the video supplier can and does obtain a state franchise
agreement pursuant to this Subchapter.
(4) No terms, conditions or tests within this subchapter are applicable to or of
any effect upon franchise agreements currently existing or entered into between
companies providing video service and the city served by such service.
(b) After June 30, 2013 a company shall not act as a video service provider within a
political subdivision' jurisdiction that was not being served pursuant to a franchise
agreement on the effective date of this Act by a video service provider until the
company has been granted a certificate of franchise authority by the Secretary of
State."
2
roe ri hfs, and other issues with SB101 Seite 1
(2/26/2013) Kit Williams p11 ublic rights of way, p p rty g
From: Lindsley Smith
To: cicollins6@cox.net
Date: 2/22/2013 3:45 PM
Subject: public rights of way, property rights, and other issues with SB101
Attachments: Senator Woods Letter from Fritz Gisler SB101.doc
Representative Collins,
Thanks for calling yesterday and meeting with me and Don. I will probably see you today at 4 pm at the
Legislative Panel sponsored by the Fayetteville Chamber of Commerce, but I wanted to write as a follow-
up from our talk related to SB101 yesterday and get you the attached letter that our Television Center
Manager Fritz Gisler recently sent to Senator Jon Woods who is on the Senate Insurance and Commerce
Committee where SB101 was sent.
While I will agree that SB101 is now much better than the original one (particularly on the points of
citizen access to local government and the terrible regulations on PEG Channels in the original bill --
although the unilateral ability for "video service" providers to choose what tier the channels go on goes
against what cities have fought for for 30 years to assure that those who can only afford the basic tier of
service can get access to their local government programming is still assured --and that is the most
requested citizen request related to PEG Channels in Fayetteville), but the original bill was so far off the
mark on many levels, that any change could be better. This bill remains a bad one for Arkansas and
particularly for the citizens of Arkansas.
Arkansasis a state that has high protection constitutionally of contracts (our Constitution stating that no
law should be passed that impedes contracts, and that is exactly what this bill does to local governments
with existing contracts). SB101 allows unilateral corporate choice to end a contract with a municipality
and replace it merely with a piece of paper that is no contract at all --it is a certificate of occupancy that
assures the Secretary of State has the name of the company, the address, a few other minor things and
that the company has car insurance --that is not a statewide franchise as some lobbying Legislators would
have Legislators believe --it is a non-negotiable certificate in which even the Secretary of State's role is
assured statutorily to be merely "ministerial".
This bill, if it passes, would be the Legislature ending local control of its own property right of ways that
it protects for the owners (The People) for a scheme of unilateral choice by any corporation that merely
provides the basics of information (with no accountability) to get a piece of paper being called a
"certificate of franchise authority" --in fact, the bill doesn't even provide for authority provisions other
than unilateral corporate control of PUBLIC rights of way --it is, essentially, merely replacing a contract
with a shell paper. It is, essentially, turning over the control of the public's property to a private
corporate renter to a variety of actions in which the property owner (Citizens) have no choice or control.
Cable companies (like other utility companies) rent public property rights of ways from the public through
local governments, but this bill would turn that renting of use situation into a corporate -control -of -public -
land -situation (and it would be a statutorily -select set of private businesses at that). If someone rents a
house from someone, we would all be appalled if state law permitted the ending of a landlord contract
for the unilateral ability of the person, just because they are renting the land, to dig anywhere in the
yard for a pool that never gets finished or tear down walls in the house. We would be appalled if the
state required home owners to have to take in a person they didn't know into their home to have
him/her rent out a room and, if that occupier wanted, to decide unilaterally to turn one of the home
owner's kids out of her room because the renter liked that room better. Arkansas has high protection of
property rights, which makes this bill antithetical to our existing property protections —particularly a state -
sponsored taking of property control from the public to statutorily give that control of property to a
private corporation if that corporation so chooses. There are other problems with this legislation, but I
(2/26%2013) Kit Williams public rights of way property rights, and other issues with SB101 Seite 2'
mainly wanted to write to you to assure I forwarded our City's television center manager's letter that he
provided to Senator Jon Woods, who is on Insurance and Commerce, so that you also have it, and
provide information on some of the right of way issues in the bill.
I will note, as well that currently I as Communication Director for the City of Fayetteville (which still
opposes SB101 as recently amended) and I work with our cable and Uverse providers on their customer
complaints (in fact, my name is listed on all COX bills that go out as a contact for citizens to help provide
their cable concerns/complaints and then I work with a designated COX rep (Kelly Zega at COX) to help
get their customer complaints resolved), but SB101 (while seemingly giving something by stating in
statute that a business should have its own informal process of handling complaints, billing issues,
service issues, and other complaints" --which any company should have anyway and do), adds a terrible
level of legislative -endorsed (if passed) secrecy and increased taxpayer costs through the requirement on
page 15 of any unresolved issue that this private company has with its own private customers not getting
resolved to go to a paid "nonbinding mediation with the video service provider, with the costs of the
mediation to be shared equally between the political subdivision and the video service provider". This
also does not make sense --we will take control of your land by a state -endorsed statute and then have
you pay for litigation in which we can't resolve our own business problems with our own customers?
And, such requirement also restricts a "political subdivision" from reporting or discussing complaints that
the company can't resolve by forcing a "confidential, nonbinding mediation" set-up, when now our city
has monthly Telecommunication Board meetings of citizens on that Board who hear reports of any public
complaints in the broad area of Telecommunication. So this bill would not only take control of public
land from the public and give that control of the rights -of -ways to private corporations (absolute control),
the Legislature would then throw a bone to citizens who no longer hold control of those rights of ways
and require the citizens to then pay for 1/2 of the legal mediation for a private company to resolve
complaints with its own private customers? This is what we call the improper use of taxpayer funds for
private company benefit. That is particularly egregious when considering that this bill then allows those
companies with a ministerial -only filing with the Secretary of State's Office for a certificate of occupancy
to control at will public land in their renting role, cities would have no control of who gets to rent the land
and what they do to the people's land, cities must allow the holder of a certificate of franchise authority
to install or construct anything on the public rights of ways, change the boundaries of an existing service
area merely by filing a written notice that they intend not to serve a certain section of town and cut them
off from tv service, and transfer their certificate to do these things to any other company with no
determination by anyone (even the Secretary of State ---"A notice of transfer is approved once received
by the Secretary of State). So a private entity can control public lands through this bill and give that land
control to another private entity by merely the Secretary of State's office opening the envelope in which a
mere notice of transfer is enclosed.
I could provide more, but I'm already longer than intended (and way over the paragraph you asked for J
I will just end by saying that we are a state that has high levels of property rights protections, contract
rights protections, and one of the strongest (if not strongest) FOIA laws and commitments to open
government in the nation, and this bill hurts all three of those Arkansas values. Last night, our
Telecommunications Board voted unanimously to inform the Fayetteville City Council to oppose this bill,
and they were shocked by its provisions. I'll see you in a bit at the Chamber.
Lindsley Smith
Lindsley Smith
Communication Director
City of Fayetteville
(smith@ci.fayetteville.ar.us
PHONE 479-575-8330
FAX 479-575-8257
TDD 479-521-1316
Senator Woods,
Please allow me a moment of your time. I am Fritz Gisler, Director of Media Services for the
City of Fayetteville. One of my primary responsibilities is the management of the City's
government television operation, which includes The Government Channel, Fayetteville Public
Access Television, and our Education Channel which is operated by Fayetteville Public Schools
I have been following closely the progress of Senate Bill 101, The Video Service Act. I have
been following the developments of state-wide cable franchise initiatives for several years now. I
have also looked at the implementation of these initiatives in many other states.
There are many complex issues surrounding the proposal of a state-wide franchise authority and
operations for video service providers. There are issues of commerce, of authority, of
compliance, of control, of access, and of accountability. This is not simply a matter, as some
would have you believe, of creating "a level playing field", or making the rules "the same for
everybody." There are far-reaching implications and unforeseen consequences of this legislation
that warrant much further investigation and a very careful approach.
It is understandable that the video service providers would desire to operate under the same rules
of commerce that are available to some, but not others. This bill will accomplish that goal. But at
what cost? Here are some consequences of this legislation that I have identified:
1. The removal of any regulations regarding the operation of video service providers
whatsoever. Not only will local authority be eliminated, no comparable authority on the
state level is established.
2. Ensuring compliance with the few rules of operation that will remain will be costly and
difficult, with little or no incentive on the part of the providers to be concerned about
compliance.
3. All control of operations will now reside with the provider. The bill will totally remove
any provision for local control of how providers implement their services,
notwithstanding that said providers are utilizing wholly local resources. This includes
everything from the scope of services to geographic areas of operation.
4. The provision for non-commercial/public service access (PEG) channels is minimal. It
does not allow for expansion, such as the addition of channels if the citizens desire. It
allows providers to place the channels on a subscription level that will prevent many
citizens from seeing them without increased expense. It increases the cost to the city or
county that is with providing the programming. It allows the provider to reduce the
technical quality of the signal, and provides no incentive to improve. For example, if
Fayetteville had a High Definition channel, we would telecast much of our Government
Channel programming in HD. Under this bill, the transmission quality of our channel will
be reduced even further from the Standard Definition it is now. The reduces our
opportunity to improve our communication with our citizens.
5. There is no accountability for providers. They will basically be able to do as they please.
Many will tell you that the marketplace will provide all the incentive necessary to ensure good
customer service and good corporate citizenship. Time after time this has proven to not be the
case. The removal of a local jurisdiction's ability to regulate businesses for the benefit of the
citizens sets a precedent that is very concerning. For decades cable television providers enjoyed a
virtual monopoly in their business sector. Now that is no longer the case. But they still use local
resources that belong to the public to provide their service. That, alone, provides a level of
business advantage few others enjoy. Additional responsibility to the local citizens should
accompany that advantage.
I believe anyone would agree that one of the greatest challenges facing our legislators today is
trying to update the law to adequately deal with today's level of technology. This is a prime
example of that challenge. Unfortunately, Senate Bill 101 still does not adequately deal with the
challenges of providing television and video service in an equitable manner. A small example of
this: In a few short years, cable and IPTV operators will probably no longer provide video
programming in the way we have always known it. OTT, or 'over the top', distribution of
television programming is using the Internet to distribute programming a la carte. Services such
as Netflix and Hulu are examples of this. What do we do when the 'cable' company no longer
provides 'television', but is only an Internet access provider? Where will that leave cities like
Fayetteville?
I encourage the ongoing investigation of how our laws and statutes can be updated to
accommodate how technology has become such an integral part of our lives. I would welcome an
opportunity to assist in the development of legislation that would allow both our government and
our corporate citizens to utilize technology for the best benefit of all our citizens.
I respectfully request that you not support this bill. The consequences of its passage will benefit
only a few select business entities. The consequences of this bill will be detrimental to the local
jurisdictions in which those entities operate, as well as the citizens in those jurisdictions.
If I may be of any service, or you have any further questions regarding my position on this
legislation, please contact me.
Most respectfully,
Fritz Gisler
Director of Media Services
City of Fayetteville
101 W. Rock Street
Fayetteville, AR 72701
479-444-3438
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
Stricken language would be deleted from and underlined language would be added to present law.
State of Arkansas As Engrossed: S216113 S2120113 S2125113
89th General Assembly A Bill
Regular Session, 2013 SENATE BILL 101
By: Senators Files, Bookout, J. Dismang, J. Key, Rapert, D. Sanders, J. Woods
By: Representatives Wright, D. Altes, Branscum, Cozart, Gillam, Linck, Perry, Ratliff, Slinkard, Steel,
Vines, Wren
For An Act To Be Entitled
AN ACT TO ESTABLISH THE ARKANSAS VIDEO SERVICE ACT;
TO DECLARE AN EMERGENCY; AND FOR OTHER PURPOSES.
Subtitle
TO ESTABLISH THE ARKANSAS VIDEO SERVICE
ACT; AND TO DECLARE AN EMERGENCY.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF ARKANSAS:
SECTION 1. Arkansas Code Title 19, Chapter 6, Subchapter 8, is amended
to add an additional section to read as follows:
19-6-819. Arkansas Video Service Fund.
(a) There is created on the books of the Treasurer of State, Auditor
of State, and Chief Fiscal Officer of the State a special revenue fund to be
known as the "Arkansas Video Service Fund".
(b)(1) All moneys collected under 6 23-19-204 shall be deposited into
the State Treasury to the credit of the fund as special revenues.
(2) The fund shall also consist of any other revenues as may be
authorized by law.
(c) The fund shall be used by the Secretary of State to review and
issue certificates of franchise authority.
SECTION 2. Arkansas Code Title 23 is amended to add an additional
chapter to read as follows:
01-22-2013 15:02:42 ANS065
As Engrossed: S2/6/13 S2/20/13 S2/25/13 SB101
1 CHAPTER 19
2 CABLE AND VIDEO COMKUNICATIONS
3 Subchapter 1 — General Provisions
4 [Reserved]
5
6 Subchapter 2 — Arkansas Video Service Act
7
8 23-19-201. Title.
9 This subchapter shall be known and may be cited as the "Arkansas Video
10 Service Act"
11
12 23-19-202. Definitions.
13 As used in this subchapter:
14 (1) "Access to video service" means the capability of a video
15 service provider to provide video service at a household address irrespective
16 of whether a subscriber has ordered the service or the service is provided at
17 the address;
18 (2) "Books and records" includes without limitation:
19 (A) Records kept in the regular course of business and
20 that are not limited to accounting records;
21 (B) Billing detail records; and
22 (C) Tax billing detail records;
23 (3) "Cable service" means the same as defined in 47 U.S.C. §
24 522, as it existed on January 1, 2013;
25 (4) "Certificate of franchise authority" means a certificate
26 issued by the Secretary of State to a video service provider under this
27 subchapter;
28 (5)(A)(i) "Franchise" means the same as defined in 47 U.S.C. §
29 522, as it existed on January 1, 2013.
30 (ii) A certificate of franchise issued under § 23-
31 19-203 shall constitute a franchise for the purpose of 47 U.S.C. § 542, as it
32 existed on January 1, 2013.
33 (B) "Franchise" also means any agreement between a video
34 service provider and a political subdivision under which a video service
35 provider is authorized or otherwise permitted to provide video service in the
36 political subdivision;
2 01-22-2013 15:02:42 ANS065
As Engrossed: S2/6/13 S2/20/13 S2/25/13
SB101
1 (6) "Franchising entity" means this state or a city or county in
2 this state authorized by state or federal law to grant a franchise;
3 (7) "Governing body" means the city council or the county quorum
4 court of a political subdivision;
5 (8) "Incumbent video service provider" means a person that
6 provides cable or video service and holds a franchise issued by a political
7 subdivision before July 1, 2013;
8 (9) "Nonincumbent video service provider" means:
9 (A) A person authorized under this subchapter to provide
10 video service in an area in which video service is being provided by an
11 incumbent video service provider;
12 (B) A person authorized under this subchapter to provide
13 service in a geographical area in which on July 1, 2013, there was no
14 incumbent video service provider providing video service; or
15 (C) Any other person that provides video service after the
16 effective date of this act that is not an incumbent video service provider;
17 (10) "Political subdivision" means a city, county, or other
18 governmental entity of the state having maintenance and operation
19 responsibility over the public rights -of -way in a geographical area for which
20 a franchise or certificate of franchise authority has been issued by a
21 franchising entity;
22 (11) "Public rights -of -way" means the area on, below, or above a
23 public roadway, highway, street, public sidewalk, alley, waterway, or utility
24 easement dedicated for compatible uses;
25 (12) "Service area" means contiguous geographical territory in
26 the state where a video service provider may provide video service under a
27 certificate of franchise authority;
28 (13) "Service tier" means a category of video service provided
29 by a video service provider to a subscriber and for which a separate rate is
30 charged by the video service provider;
31 (14)(A) "Subscriber" means a person in this state that buys
32 video service.
33 (B) "Subscriber" does not include a person that buys video
34 service for resale and who, on resale, is required to pay a video service
35 provider fee under this subchapter or under the terms of a franchise with a
36 political subdivision;
3 01-22-2013 15:02:42 ANS065
As Engrossed: S2/6/13 S2/20/13 S2/25/13
SB101
1 (15)(A) "Video service" means the delivery of video programming
2 to subscribers in which:
3 (i) The video programming is generally considered
4 comparable to video programming delivered to viewers by a television
5 broadcast station, cable service, or digital television service, without
6 regard to the technology used to deliver the video service, including
7 internet protocol technologies; and
8 (ii) The service is provided primarily through
9 equipment or facilities located in whole or in part in, on, under, or over
10 any public right-of-way.
11 (B) "Video service" includes cable service and video
12 service delivered by a community antenna television system but excludes video
13 programming:
14 (i) Provided to persons in their capacity as
15 subscribers to commercial mobile service as defined in 47 U.S.C. § 332(d), as
16 it existed on January 1, 2013; or
17 (ii) Provided as part of and via a service that
18 enables end users to access content, information, electronic mail, or other
19 services offered over the public Internet;
20 (16) "Video service provider" means a provider of video service,
21 including without limitation a cable service provider, an incumbent video
22 service provider, and a nonincumbent video service provider; and
23 (17) "Video service provider fee" means the amount paid by a
24 video service provider to a political subdivision under § 23-19-206.
25
26
23-19-203. Franchising authority
— Application for certificate of
27
franchise
authority — Modification of
service areas — Term of certificate of
28
franchise
authority and termination of
certificate of franchise authority.
29
(a)
After June 30, 2013:
30
(1) A person shall not act as a video service provider within
31
the state
unless the person:
32
(A) Is providing video service under a franchise from a
33
political
subdivision in effect on the
effective date of this act or a
34
subsequent renewal of the franchise;
35
(B) Elects to:
36
(1) Negotiate
a franchise with a political
4 01-22-2013 15:02:42 ANS065
As Engrossed: S2/6/13 S2/20/13 S2/25/13 SB101
1 subdivision that establishes the terms and conditions applicable to that
2 person to provide video service within the jurisdictional boundaries of the
3 political subdivision and has been issued a franchise from the political
4 subdivision for such a purpose; or
5 (ii) Adopt the terms and conditions of an existing
6 franchise issued by a political subdivision to an incumbent video service
7 provider providing video service within the same service area and that has
8 been issued a franchise from the political subdivision authorizing the video
9 service provider to provide video services within the political subdivision
10 under the same terms and conditions as the franchise issued to an incumbent
11 video service provider in the political subdivision; or
12 (C) Has been ,granted a certificate of franchise authority
13 to do business in the state by the Secretary of State as authorized in this
14 subchapter; and
15
16
(2)
service provider
A franchise between a political subdivision and a video
described in subdivision (a)(1)(A) or (B) of this section
17
expires on the earlier of:
18
(A) Ten (10) years from the date
the franchise was
19
effective; or
20
(B) The original expiration date
of the franchise.
21
(b)(1)(A)
This subchapter does not prohibit a
person from holding a
22
franchise issued
by a political subdivision and holding
a certificate of
23
franchise authority issued by the Secretary of State
for a different service
24 area.
25 (B) Except as permitted under this section, a video
26 service provider shall not hold a franchise issued by a political subdivision
27 and a certificate of franchise authority issued by the Secretary of State for
28 the same service area.
29 (2) An incumbent video service provider may submit an
30 application for a certificate of franchise authority for a service area in
31 which the incumbent video service provider has an existing franchise from a
32 political subdivision for the service area, and upon the granting of a
33 certificate of franchise authority to the incumbent video service provider,
34 the incumbent video service provider's franchise from the political
35 subdivision shall no longer be of any force or effect.
36 (3) In each service area in which an incumbent video service
5 . 01-22-2013 15:02:42 ANS065
As Engrossed: S2/6/13 S2/20/13 S2/25/13
SB101
1 provider provides
video service, the incumbent video service provider has
2 sole discretion to determine whether or not to apply for a
certificate of
3 franchise
authority or continue to provide service under an
existing
4 franchise
5 (c)
issued by a political subdivision.
An applicant seeking a certificate of franchise
authority shall:
6
(1) Submit an application to the Secretary of
State that
7 provides•
8 (A) The name of the applicant;
9 (B) The address of the applicant's principal place of
10 business in the state;
11 (C) The names of the applicant's principal executive
12 officers;
13 (D) The designated Arkansas representative for the
14 applicant;
15 (E) Identification of the political subdivisions, or parts
16 of political subdivisions, constituting the service areas in which the
17 applicant intends to provide video service; and
18 (F) The date on which the applicant intends to begin
19 providing video service in the service area described in the application;
20 (2) Provide verification from an officer, general partner, or
21 managing member of the applicant that:
22 (A) The applicant has filed with the Federal
23 Communications Commission the applicable forms needed by the Federal
24 Communications Commission in advance of offering video service in this state;
25 (B) The applicant is legally, financially, and technically
26 qualified to provide video service; and
27 1 (C)(i) The applicant has and maintains with one (1) or
28 more companies licensed to do business in the state comprehensive general
29 liability insurance coverage and automobile liability insurance coverage.
30 (ii) The insurance policy shall require that the
31 insurance carrier pay on behalf of the applicant, up to a limit of not less
32 than one million dollars ($1,000,000) for bodily or personal injury, death,
33 or property damage or loss as a result of any one (1) occurrence or accident,
34 regardless of the number of persons injured or the number of claimants,
35 arising out of the negligent or otherwise wrongful act or omission of the
36 applicant, or the applicant's employees or agents.
6 01-22-2013 15:02:42 ANS065
As Engrossed: S2/6/13 S2/20/13 S2/25/13 SB101
1 (iii) A certificate of automobile liability self-
2 insurance issued to the applicant and maintained under § 27-19-207 satisfies
3 the liability insurance coverage requirements of this subsection; and
4 (3) Submit the filing fee required under § 23-19-204.
5 (d) Upon receipt of an application for a certificate of franchise
6 authority under this section, the Secretary of State shall:
7 (1) Notify the applicant within thirty (30) days after receipt
8 of the application whether the application needs additional information or is
9 complete;
10 (2) Issue a certificate of franchise authority within fifteen
11 (15) days after the application is complete; and
12 (3) Provide written notice of a certificate of franchise
13 authority within fifteen (15) days after issuance of a certificate of
14 franchise authority to the governing body of each political subdivision
15 located in the service area designated in the application for a certificate
16 of franchise authority.
17 (e)(1) A holder of a certificate of franchise authority may change the
18 boundaries of an existing service area authorized under the certificate of
19 franchise authority by filing written notice of the modification with the
20 Secretary of State with the filing fee required under § 23-19-204.
21 (2) The boundary modifications are effective on the date the
22 written notice is filed with the Secretary of State.
23 (3) Such modifications shall not extend the term of the
24 certificate of franchise authority as established in subsection (h) of this
25 section.
26 (f)(1) A certificate of franchise authority is transferrable.
27 (2) To transfer a certificate of franchise authority, the
28 successor shall:
29 (A) File an application containing the information
30 required in subsection (c) of this section; and
31 (B) Acknowledge with the Secretary of State that the
32 successor shall provide notice to the political subdivision with jurisdiction
33 concerning the public rights -of -way to be used to undertake operation and
34 maintenance of video facilities under an approved certificate of franchise
35 authority.
36 (3) A notice of transfer is approved once received by the
7 01-22-2013 15:02:42 ANS065
As Engrossed: S2/6/13 S2/20/13 S2/25/13 SB101
1 Secretary of State.
2 (g) The holder of a certificate of franchise authority may terminate
3 the certificate of franchise authority by submitting a written notice to the
4 Secretary of State and an affected political subdivision.
5 (h) A certificate of franchise authority is:
6 (1) Nonexclusive;
7 (2) Valid for an initial term of ten (10) years, subject to
8 changes in federal law; and
9 (3) Renewable for additional ten-year periods for video service
10 providers in compliance with the requirements of subsection (c) of this
11 section.
12 (i) To the extent required for the purposes of 47 U.S.C. §§ 521 — 561,
13 as it existed on January 1, 2013, the state shall constitute the franchising
14 authority for video service providers in the state.
15 M The duties of the Secretary of State under this subchapter are
16 ministerial. The Secretary of State shall not condition or limit a
17 certificate of franchise authority by imposing on the holder of a certificate
18 of franchise authority any obligations or requirements that are not
19 authorized by this subchapter.
20
21 23-19-204. Certificate of franchise authority — Fees.
22 The fees for a certificate of franchise authority to be collected by
23 the Secretary of State include:
24 (1) An application filing fee of one thousand five hundred
25 dollars ($1,500) that includes the cost of issuance of a certificate of
26 franchise authority by the Secretary of State; and
27 (2) A fee of one hundred dollars ($100) for accepting an
28 amendment to a certificate of franchise authority or providing a notice
29 required by this subchapter.
30
31 23-19-205 Use of public rights -of -way by holder of certificate of
32 franchise authority.
33 (a) A video service provider has the rights, powers, and duties
34 provided for telephone and telegraph companies under 6§ 23-17-101 -- 23-17-
35 105.
36 (b) To enable the provision of video service, a political subdivision
8 01-22-2013 15:02:42 ANS065
As Engrossed: S2/6/13 S2/20/13 S2/25/13
SB101
1 shall allow the holder of a certificate of franchise authority to install,
2 construct, and maintain facilities in the public rights -of -way over which the
3 political subdivision has jurisdiction.
4 (c) A political subdivision shall provide the holder of a certificate
5 of franchise authority with open, comparable, nondiscriminatory, and
6 competitively neutral access to the public rights -of -way in its jurisdiction.
7 (d) This subchapter does not exempt a video service provider from
8 compliance with all lawful political subdivision land use regulations,
9 including without limitation zoning laws, building permit requirements, pole
10 attachment agreements, street cut permits, and other permits required for the
11 use of a political subdivision's right of way.
12 _(e)(1) In order to construct, maintain, or remove facilities necessary
13 to provide video services, a video service provider may peacefully enter upon
14 the right of way of a political subdivision.
15 (2) A video service provider is liable for any damage that may
16 result from exercising a right under subdivision (e)(I) of this section.
17
18 23-19-206. Video service provider fee -- Definitions.
19 (a) As used in this section:
20 (1) "City subscribers" means a subscriber whose service address
21 is in the jurisdictional limits of a city;
22 (2) "County subscribers" means a subscriber whose service
23 address is outside the jurisdictional limits of a city;
24 (3)(A) "Gross revenue" shall be calculated in accordance with
25 generally accepted accounting principles and means all consideration of any
26 kind or nature, including without limitation cash, credit, property, and in-
27 kind contributions, services or goods derived by the holder of a certificate
28 of franchise authority from the operation of the video service provider's
29 network to provide video service within the political subdivision.
30 (B) "Gross revenue" includes all consideration paid to the
31 holder of a certificate of franchise authority and its affiliates only to the
32 extent that the holder of a certificate of franchise authority or its
33 affiliates are acting as a provider of video service under this subchapter,
34 which includes the following:
35 (i) All fees charged to subscribers for any video
36 services provided by the holder of a certificate of franchise authority;
9 01-22-2013 15:02:42 ANS065
As Engrossed: S2/6/13 S2/20/13 S2/25/13 SB101
1 (ii) Any fee imposed on the holder of a certificate
2 of franchise authority by this subchapter that is passed through and paid by
3 subscribers, including without limitation the video service fee;
4 (iii) Compensation received by the holder of a
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
certificate of franchise authority or its affiliates that is derived from the
operation of the holder of a certificate of franchise authority's network to
provide video service with respect to commissions that are paid to the holder
of a certificate of franchise authority as compensation for promotion or
exhibition of any products or services on.the holder of certificate of
franchise authority's network, including "home shopping" or a similar channel
under subdivision (a)(3)(B)(v) of this section; and
(iv) A pro rata portion of all revenue derived by the
holder of a certificate of franchise authority or its affiliates under
compensation arrangements for advertising derived from the operation of the
holder of a certificate of franchise authority's network to provide the video
service within a political subdivision under subdivision (a) (3) (B) (iii) of
this section. The allocation is based on the number of subscribers in the
political subdivision divided by the total number of subscribers in relation
to the relevant regional or national compensation arrangement. Advertising
commissions paid to third parties shall not be netted against advertising
revenue included in gross revenue. Revenue of an affiliate derived from the
affiliate's provision of video service is gross revenue to the extent the
treatment of such revenue as revenue of the affiliate and not of the holder
of a certificate of franchise authority has the effect, whether intentional
or unintentional, of evading the payment of fees that would otherwise be paid
to the political subdivision. In no event shall revenue of an affiliate be
gross revenue to the holder of a certificate of franchise authority if such
revenue is otherwise subject to fees to be paid to the political subdivision.
(C) "Gross revenue" does not include:
(1) Any revenue not actually received even if
billed, such as bad debt;
(ii) Non -video service revenues received by any
affiliate or any other person in exchange for supplying goods or services
used by the holder of a certificate of franchise authority to provide video
service;
(iii) Refunds, rebates, or discounts made to
10 01-22-2013 15:02:42 ANS065
As Engrossed: S2/6/13 S2/20/13 S2/25/13 SB101
1 subscribers, leased access providers, or a political subdivision;
2 (iv) Any revenues from services classified as non-
3 video service under federal law, including without limitation revenue
4 received from telecommunications services revenue received from information
5 services but not excluding video services, and any other revenues attributed
6 by the holder of a certificate of franchise authority to non -video service
7 according to Federal Communications Commission rules, regulations, standards,
8 or orders;
9 (v) Any revenue paid by subscribers to home shopping
10 programmers directly from the sale of merchandise through any home shopping
11 channel offered as part of the video services but not excluding anY
12 commissions that are paid to the holder of a certificate of franchise
13 authority as compensation for promotion or exhibition of any products or
14 services on the holder of a certificate of franchise authority's network,
15 such as a "home shopping" or a similar channel;
16 (vi) The sale of video services for resale in which
17 the purchaser is required by this subchapter to collect the fees from the
18 purchaser's customer. This subchapter is not intended to limit state's
19 rights under 47 U.S.C. Section 542(h);
20 (vil) The provision of video services to customers
21 at no change, including without limitation the provision of video services to
22 public institutions, public schools, or governmental entities;
23 (vill) Any tax of ,general applicability imposed upon
24 the holder of a certificate of franchise authority or upon subscribers by a
25 city, state, federal, or any other ,governmental entity and required to be
26 collected by the holder of a certificate of franchise authority and remitted
27 to the taxing entity, including sales and use tax, ,gross receipts tax, excise
28 tax, utility users' tax, public service tax, communication taxes, and fees
29 not imposed by this subchapter;
30 (ix) Any foregone revenue from the holder of a
31 certificate of franchise authority's provision of free or reduced cost video
32 services to any person, including without limitation employees of the holder
33 of a certificate of franchise authority, to the political subdivision and
34 other public institutions or other institutions. However, any foregone
35 revenue that the holder of a certificate of franchise authority chooses not
36 to receive in exchange for trades, barters, services, or other items of value
11 01"22-2013 15:02:42 ANS065
As Engrossed: S2/6/13 S2/20/13 S2/25/13
1 is included in Pross revenue.
SB101
2
3 equipment
(x)
that are not used
Sales of capital assets or sales of surplus
by the purchaser to receive video services from
4 the holder
of a certificate
of franchise authority;
5
(xi)
Directory or Internet advertising revenue,
6 including
yellow pages, white pages, banner advertisement, and electronic
7 publishing;
and
8 (xii) Reimbursement by programmers of marketing
9 costs incurred by the holder of a franchise for the introduction of new
10 programming that exceeds the actual costs; and
11 (4) "Provider's network" means the optical spectrum
12 wavelengths, bandwidth, or other current or future technological capacity
13 used for the transmission of video programming over wireline directly to
14 subscribers within the geographic area within the political subdivision as
15 designated by the provider in its franchise.
16 (b) A video service provider offering video service in a political
17 subdivision under a certificate of franchise authority shall pay to the
18 political subdivision where it provides video service a video service
19 provider fee as may be required by the political subdivision under this
20 section.
21
(c) The video service provider's
fee is:
22
(1) Paid to the political
subdivision
where video service is
23
provided quarterly, forty-five
(45) days after the
close of each calendar
24
quarter;
25
(2) Computed as a
percentage of gross
revenue; and
26
(3) Beginning on
the first day after
the forty-fifth day after
27
the close of the previous calendar quarter, simple
interest at a rate equal
28
to that for iudgments shall apply
to video service
provider fee payments Past
29 due.
30 (d) The political subdivision shall not require:
31 (1) Except as otherwise provided in this section or § 23-19-205,
32 any additional fee or charge from the video service provider; or
33 (2) The use of a different calculation method.
34 (e)(1) The video service provider fee is a percentage of gross revenue
35 and determined by the political subdivision.
36 (2)(A) If there is an incumbent video service provider providing
12 01-22-2013 15:02:42 ANS065
As Engrossed: S2/6/13 S2/20/13 S2/25/13
SB101
1 video service in the political subdivision, the video service provider shall
2 pay an amount equal to the percentage of gross revenue paid by an incumbent
3 video service provider or five percent (5%), whichever is less.
4 (B) If there is not an incumbent video service provider
5 having a franchise agreement with the political subdivision, or if a
6 political subdivision has not previously established and assessed a fee to an
7 incumbent video service provider the political subdivision may establish the
8 video service provider fee in an amount not in excess of five percent (5%) of
9 the gross revenue.
10 (C) The percentage of gross revenue shall apply equally to
11 all video service providers in the political subdivision, regardless of
12 whether they provide video service under a local franchise or a certificate
13 of franchise authority. However, a fee shall not be imposed on any video
14 service customer except pursuant to a valid franchise or pursuant to a
15 certificate of franchise authorit
16 (f)(1) A political subdivision shall provide ninety -days' notice to a
17 video service provider operating in the political subdivision before
18 establishing, increasing, or lowering a video service provider fee.
19 (2) A video service provider fee or a change to the percentage
20 level of an existing fee is not effective until ninety (90) days after the
21 notice required in this subsection is given to the video service provider.
22 (g) Payment of the fees required in this section shall accompany a
23 written report that:
24 (1) Identifies the amount of gross revenues received from
25 subscribers for the provision of video service to subscribers; and
26 (2) Allows for a proper compliance review by the political
27 subdivision.
28 (h)(1) A political subdivision may conduct an audit of a video service
29 provider to ensure proper and accurate payment of the video service provider
30 fee.
31 (2) To conduct an audit, the political subdivision shall:
32 (A) Provide reasonable advance written notice;
33 (B) Audit the video service provider not more than one (1)
34 time in a calendar year; and
35 (C) At its discretion, review the books and records at the
36 location in the jurisdiction where the books and records are kept or consent
13 01-22-2013 15:02:42 ANS065
As Engrossed: S2/6/13 S2/20/13 S2/25/13 SB101
1 to review copies of the books and records provided electronically.
2 (3) The political subdivision and the video service provider are
3 responsible for their respective costs of the audit.
4 (i) Payment of an undisputed amount or refund due to the political
5 subdivision or the video service provider is required within sixty (60) days
6 after it is recognized, plus the interest as computed on civil judgments.
7 M The video service provider shall keep business records showing any
8 gross revenue, even if there is a change in ownership, for at least three (3)
9 years after the revenue is recognized by the video service provider in its
10 books and records.
11 (k) A video service provider may identify and collect the amount of
12 the video service provider fee as a separate line item on the regular bill of
13 each subscriber.
14 (1)(1) Any city annexing lands shall notify a video service provider
15 in writing of anv such annexation, including a description of the territory
16 annexed.
17 (2) Beginning the first day of the calendar quarter occurring
18 after the video service provider has received at least ninety -days' notice of
19 annexation of customers into the city's corporate limits, subscribers within
20 the annexed territory shall be considered city subscribers for purposes of
21 this section.
22
23 23-19-207. Prohibited activity — Remedies for noncompliance.
24 (a) A video service provider shall not deny access to video service to
25 any group of potential residential subscribers based on the income of the
26 residents in the local area in which such a group resides.
27 (b) A franchising authority or political subdivision'shall not impose
28 on a video service provider any build -out or other requirements for the
29 construction, placement, or installation of facilities used to provide video
30 services.
31 (c)(1) If a court of competent jurisdiction finds that the holder of a
32 certificate of franchise authority is not in compliance with this subchapter,
33 the court shall order the holder of the certificate of franchise authority to
34 cure the noncompliance within a reasonable time.
35 (2) If the holder of a certificate of franchise authority fails
36 to cure the noncompliance as ordered by a court under subdivision (c)(1) of
14 01-22-2013 15:02:42 ANS065
As Engrossed: S2/6/13 S2/20/13 S2/25/13 SB101
1 this section, the court may remedy the noncompliance.
2
3 23-19-208. Customer service standards.
4 (a) A video service provider shall comply with the customer service
5 requirements under 47 C.F.R. § 76.309(c), as it existed on January 1, 2013.
6 (b)(1) A video service provider shall maintain a local or toll -free
7 number for customer service contact.
8 (2)(A) A video service provider shall implement an informal
9 process for handling political subdivision or customer inquiries, billing
10 issues,_ service issues, and other complaints.
11 (B) If an issue is not resolved through the informal
12 process under subdivision (b)(2)(A) of this section, a political subdivision
13 may request a confidential, nonbinding mediation with the video service
14 provider, with the costs of the mediation to be shared equally between the
15 political subdivision and the video service provider.
16 .(c)(1) A video service provider shall notify customers in writing of a
17 than--e in rates, pro,eramminz services, or channel positions as soon as
18 possible.
19 (2) Written notice shall be ,given to subscribers at least thirty
20 (30) days in advance of the change if the change is within the control of the
21 video service provider.
22
23 23-19-209. Designation and use of channel capacity for public,
24 educational, or governmental use.
25 (a) As used in this section, "public, education, and ,government access
26 channels" also known as "PEG channels" means channels used for
27 noncommercial local interest programming.
28 (b)(1) A video service provider, on the date that it first provides
29 video service to a subscriber in the service area of a political subdivision
30 or within a reasonable time, shall:
31 (A) Designate a sufficient amount of capacity on its video
32 service network to allow PEG channels for noncommercial programming; and
33 (B) Designate a sufficient amount of capacity on its
34 network to allow up to three (3) PEG channels or channels equal in number to
35 those that have been activated by an incumbent video service provider, if
36 any, on the date that the video service provider first provides video service
15 01-22-2013 15:02:42 ANS065
As Engrossed: S2/6/13 S2/20/13 S2/25/13
1 to a subscriber in a political subdivision. whichever is less.
SB101
2 (2)(A) A political subdivision served by an incumbent video
3 service_ provider that opts to provide service under a certificate of
4 franchise authority issued under § 23-19-203 is entitled to PEG channels
5 under this section.
6 (B) If the political subdivision was not served by an
7 incumbent video service provider, the video service provider shall provide
8 one (1) PEG channel for the use of the political subdivision.
9 (3) A political subdivision may waive its rights to a PEG
10 channel.
11 (c)(1) A video service provider is responsible for:
12 (A) The transmission of the programming on each channel to
13 subscribers; and
14 (B) Providing one (1) point of connectivity to each PEG
15 channel distribution point in the political subdivision to be served.
16 (2) A video service provider may:
17 (A) Provide PEG channels on a service tier subscribed to
18 by more than fifty percent (50%) of a video service provider's subscribers;
19 (B) Consolidate PEG channels to a single channel location;
20 and
21 (C) Provide PEG channels through an application on a menu
22 or as a choice on an assigned channel.
23 (3) A video service provider shall not:
24 (A) Change a channel location assigned to a PEG channel
25 without providing written notice to the affected political subdivision at
26 least thirty (30) days before the date on which the change is to become
27 effective; or
28 (B) Be required to provide an institutional network or
29 equivalent capacity on' its video service network.
30 (4) When technically and economically possible, a video service
31 provider shall:
32 (A) Use reasonable efforts to interconnect its video
33 network to share PEG channel programming with other video service providers
34 through direct cable, microwave link, satellite, or other reasonable method
35 of connection;
36 (B) Negotiate in good faith to provide interconnection of
16 01-22-2013 15:02:42 ANS065
As Engrossed: S2/6/13 S2/20/13 S2/25/13 SB101
1 PEG channels; and
2 (C) If requesting to interconnect its video network to
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
share PEG channel nrop-ramminR with another video service provider, pay for
the cost of the interconnection.
(d)(1) The operation, production, and content of any programming aired
on a PEG channel is solely the responsibility of the public, educational, and
governmental agencies receiving the benefit of the capacity.
(2) The entity producing the PEG channel programming and sending
it to the video service provider shall ensure that transmissions, content, or
programming to be sent to the video service provider is:
(A) Provided in a manner that is capable of being accepted
and sent by the video service provider over its video service network without
alteration or change in the content or transmission signal; and
(B) Compatible with the technology or protocol used by the
video service provider to deliver its video service.
(3) Governmental entities utilizing PEG channels shall make the
programming available to video service providers providing service in the
governmental entity's jurisdiction in a nondiscriminatory manner.
(4) The governmental entity providing programming for use on a
channel designated for public, education, and government access use may
request a change of the point of connectivity but shall pay the video service
provider for costs associated with the change of the point of connectivity.
23-19-210. Applicability of other laws.
(a) The General Assembly intends that this subchapter be consistent
with the Cable Communications Policy Act of 1984, 47 U.S.C. H 521 et seq.,
as it existed on January 1, 2013.
(b) Except as otherwise stated in this subchapter, this subchapter
shall not be interpreted to prevent a video service provider, a political
subdivision, or a franchising entity from entering into a negotiated
franchise agreement with a political subdivision or seeking clarification of
its rights and obligations under federal or state law or to exercise a right
or authority under federal or state law.
(c) This subchapter does not limit, abrogate, or supersede Title 23,
Chapter 17, regarding telecommunications service in the state, and does not
require a telephone corporation to get a certificate of franchise authority
17 01-22-2013 15:02:42 ANS065
As Engrossed: S2/6/13 S2/20/13 S2/25/13 SB101
1 or local authorization under this subchapter to permit the telephone
2 corporation to construct, upgrade, operate, or maintain its
3 telecommunications system to provide telecommunications service.
4 (d) The regulation of a person holding a certificate of franchise
5 authority issued under this subchapter shall be exclusive to the Secretary of
6 State as provided under this subchapter.
7 (e) A person holding a certificate of franchise, with respect to any
8 political subdivision identified by the video service provider in its
9 application or modifications filed under § 23-19-203, shall not be required
10 to obtain any authorization, permit, franchise, or license from, or pay
11 another fee or franchise tax to, or post bond in any political subdivision of
12 this state to engage in the business or perform any service authorized under
13 this subchapter.
14
15 SECTION 3. EMERGENCY CLAUSE. It is found and determined by the
16 General Assembly of the State of Arkansas that perhaps the lack of uniformity
17 in the laws governing video service providers is inequitable to certain
18 citizens and government entities; that this act establishes uniform
19 regulation of video service providers and a simplified process for the
20 issuance of a state franchise that will encourage entry of new video service
21 providers to the state marketplace; and that this act is immediately
22 necessary because it ensures uniform regulation of video service providers,
23 assures equality of treatment of video service providers, and encourages new
24 video service providers to enter the state. Therefore, an emergency is
25 declared to exist, and this act being immediately necessary for the
26 preservation of the public peace, health, and safety shall become effective
27 on:
28
(1)
The date of
its approval by the Governor;
29
(2)
If the bill
is neither approved nor vetoed by the Governor,
30
the expiration
of the period
of time during which the Governor may veto the
31
bill; or
32
(3)
If the bill
is vetoed by the Governor and the veto is
33
overridden the
date the last
house overrides the veto.
34
35
/s/FIles
36
18 01-22-2013 15:02:42 ANS065