Cosponsors:
Senators Miller, R., Spada, Buehrer, Mumper, Niehaus, Stivers, Mason, Fedor, Harris, Coughlin, Wilson, Sawyer
Representatives Hottinger, Williams, S., Bacon, Hagan, J., Barrett, Beatty, Blessing, Boyd, Budish, Collier, Daniels, DeBose, Distel, Driehaus, Dyer, Evans, Flowers, Luckie, Mallory, Otterman, Schneider, Seitz, Wagoner, Webster, Yuko, Zehringer
| Section 1. That section 153.64 be amended and sections | 8 |
| 1332.21, 1332.22, 1332.23, 1332.24, 1332.25, 1332.26, 1332.27, | 9 |
| 1332.28, 1332.29, 1332.30, 1332.31, 1332.32, 1332.33, and 1332.34 | 10 |
| of the Revised Code be enacted to read as follows: | 11 |
| (1) "Public improvement" means any construction, | 13 |
|
reconstruction, improvement, enlargement, alteration, or repair
of | 14 |
| a building, highway, drainage system, water system, road,
street, | 15 |
| alley, sewer, ditch, sewage disposal plant, water works,
and all | 16 |
| other structures or works of any nature by a public
authority. | 17 |
| (2) "Public authority" includes the state, or a county, | 18 |
|
township, municipal corporation, school district, or other | 19 |
|
political subdivision, or any public agency, authority, board, | 20 |
|
commission, instrumentality, or special district of or in the | 21 |
|
state or a county, township, municipal corporation, school | 22 |
|
district, or other political subdivision. | 23 |
| (3) "Underground utility facilities" includes any item
buried | 24 |
| or placed below ground or submerged under water for use in | 25 |
|
connection with the storage or conveyance of water or sewage; or | 26 |
|
electronic, telephonic, or telegraphic communications; | 27 |
|
electricity; electric energy; petroleum products; manufactured, | 28 |
|
mixed, or natural gas; synthetic or liquified natural gas;
propane | 29 |
| gas; or other substances. "Underground utility
facilities" | 30 |
| includes, but is not limited to, all operational
underground | 31 |
| pipes, sewers, tubing, conduits, cables, valves,
lines, wires, | 32 |
| manholes, and attachments, whether owned by any
public or private | 33 |
| or profit or nonprofit person, firm,
partnership, company, | 34 |
| corporation, joint stock association, joint
venture, or voluntary | 35 |
| association, wherever organized or
incorporated, except for a | 36 |
| private septic system in a single- or
double-family dwelling | 37 |
| utilized only for that dwelling and not
connected to any other | 38 |
| system. | 39 |
| (4) "Underground utility protection service" means a | 40 |
|
notification center not an owner of an underground utility | 41 |
|
facility, existing for the purpose of receiving notice from
public | 42 |
| authorities and from other persons that plan to prepare
plans and | 43 |
| specifications for, or engage in, public improvements
involving | 44 |
| digging, blasting, excavating, or other underground
construction | 45 |
| activities and distributing this information to its
members. | 46 |
| "Registered underground utility protection service"
means an | 47 |
| underground utility protection service registered with
the | 48 |
| secretary of state and the public utilities commission of
Ohio | 49 |
| pursuant to division (F) of this section. | 50 |
| (5) "Owner of underground utility facility" does not
include | 51 |
| telephone companies classified as medium or small under
rule | 52 |
| 4901-7-01 of the Ohio Administrative Code, owners of
pipelines | 53 |
| that conduct liquid petroleum products, or cable
television | 54 |
companies as defined in division (B) of section 505.90
of the | 55 |
Revised Code to the extent that it requires membership in
an | 56 |
| underground utility protection service. | 57 |
| (B) In any public improvement which may involve
underground | 61 |
| utility facilities, the public authority, prior to
preparing plans | 62 |
| and specifications, shall contact the registered
underground | 63 |
| utility protection services and the owners of
underground utility | 64 |
| facilities that are not members of a
registered underground | 65 |
| utility protection service for the
existence and location of all | 66 |
| underground utility facilities
within the construction area. The | 67 |
| public authority shall
include, in the plans and specifications | 68 |
| for such improvement,
the identity and location of the existing | 69 |
| underground utility
facilities located in the construction area as | 70 |
| provided to the
public authority by the owner of the underground | 71 |
| utility facility
and the name, address, and telephone number of | 72 |
| each owner of any
underground utility facilities in the | 73 |
| construction area that does
not subscribe to a registered | 74 |
| underground utility protection
service. Any anticipated temporary | 75 |
| or permanent relocation of
underground utility facilities deemed | 76 |
| necessary by the public
authority shall be negotiated or arranged | 77 |
| by the public authority
with the owners of the underground utility | 78 |
| facilities prior to
the start of construction. If a temporary or | 79 |
| permanent
relocation of utility facilities is necessary, the owner | 80 |
| of the
underground utility facility shall be given a reasonable | 81 |
| time to
move such utility facilities unless the contractor to whom | 82 |
| the
contract for a public improvement is awarded or its | 83 |
| subcontractor
agrees with the owner of the underground utility | 84 |
| facility to
coordinate relocation with construction operations. | 85 |
| The public
authority, within ten calendar days after award of a | 86 |
| contract for
a public improvement, shall notify in writing all | 87 |
| owners of
underground utility facilities known to be located in | 88 |
| the
construction area of the public improvement of the name and | 89 |
|
address of the contractor to whom the contract for the public | 90 |
|
improvement was awarded. Where notice is given in writing by | 91 |
|
certified mail, the return receipt, signed by any person to whom | 92 |
|
the notice is delivered, shall be conclusive proof of notice. | 93 |
| (C) The contractor to whom a contract for a public | 94 |
|
improvement is awarded or its subcontractor, at least two working | 95 |
|
days, excluding Saturdays, Sundays, and legal holidays, prior to | 96 |
|
commencing construction operations in the construction area which | 97 |
|
may involve underground utility facilities, shall cause notice to | 98 |
|
be given to the registered underground utility protection
services | 99 |
| and the owners of underground utility facilities shown
on the | 100 |
| plans and specifications who are not members of a
registered | 101 |
| underground utility protection service, in writing, by
telephone, | 102 |
| or in person. Where notice is given in writing by
certified mail, | 103 |
| the return receipt, signed by any person to whom
the notice is | 104 |
| delivered, shall be conclusive proof of notice.
The owner of the | 105 |
| underground utility facility, within forty-eight
hours, excluding | 106 |
| Saturdays, Sundays, and legal holidays, after
notice is received, | 107 |
| shall stake, mark, or otherwise designate the
location of the | 108 |
| underground utility facilities in the
construction area in such a | 109 |
| manner as to indicate their course
together with the approximate | 110 |
| depth at which they were installed.
The marking or locating shall | 111 |
| be coordinated to stay
approximately two days ahead of the planned | 112 |
| construction. | 113 |
| (D) If the public authority fails to comply with the | 114 |
|
requirements of division (B) of this section, the contractor to | 115 |
|
whom the work is awarded or its subcontractor complies with the | 116 |
|
requirements of division (C) of this section, and the contractor | 117 |
|
or its subcontractor encounters underground utility facilities in | 118 |
|
the construction area that would have been shown on the plans and | 119 |
|
specifications for such improvement had the registered
underground | 120 |
| utility protection service or owner of the
underground utility | 121 |
| facility who is not a member of a registered
underground utility | 122 |
| protection service whose name, address, and
telephone number is | 123 |
| provided by the public authority been
contacted, then the | 124 |
| contractor, upon notification to the public
authority, is entitled | 125 |
| to an increase to the contract price for
itself or its | 126 |
| subcontractor for any additional work that must be
undertaken or | 127 |
| additional time that will be required and is
entitled to an | 128 |
| extension of the completion date of the contract
for the period of | 129 |
| time of any delays to the construction of the
public improvement. | 130 |
| Any public authority who complies with the requirements of | 140 |
|
division (B) of this section and any contractor or its | 141 |
|
subcontractor who complies with the requirements of division (C) | 142 |
|
of this section shall not be responsible to the owner of the | 143 |
|
underground utility facility if underground utility lines are | 144 |
|
encountered not as marked in accordance with the provisions of | 145 |
|
division (C) of this section by the owner of the underground | 146 |
|
utility facility, unless the contractor or its subcontractor has | 147 |
|
actual notice of the underground utility facility. Except as
noted | 148 |
| in this division, this section does not affect rights
between the | 149 |
| contractor or its subcontractor and the owner of the
underground | 150 |
| utility facility for failure to mark or erroneously
marking | 151 |
| utility lines. The public authority shall not make as a | 152 |
|
requirement of any contract for public improvement any change in | 153 |
|
responsibilities between the public authority and the owners of | 154 |
|
the underground utility facilities in connection with damage, | 155 |
|
injury, or loss to any property in connection with underground | 156 |
|
utility facilities. | 157 |
| The contractor or its subcontractor shall alert immediately | 158 |
the occupants of nearby premises as to any emergency that hethe | 159 |
|
contractor or subcontractor may
create or discover at or near such | 160 |
| premises. The contractor or
its subcontractor shall report | 161 |
| immediately to the owner or
operator of the underground facility | 162 |
| any break or leak on its
lines or any dent, gouge, groove, or | 163 |
| other damage to such lines
or to their coating or cathodic | 164 |
| protection, made or discovered in
the course of their excavation. | 165 |
| (F) An underground utility protection service shall
register | 171 |
| with the secretary of state and the public utilities
commission of | 172 |
| Ohio, identifying its name, address, telephone
number, membership, | 173 |
| and other pertinent information. The
secretary of state and | 174 |
| commission shall establish procedures for
accepting such | 175 |
| registrations and providing information about
registrants to | 176 |
| public authorities on request. | 177 |
| (C) "Cable operator," "cable service," "cable system," | 186 |
| "franchise," and "franchising authority" have the same meanings as | 187 |
| in the "Cable Communications Policy Act of 1984," Pub. L. No. | 188 |
| 98-549, 98 Stat. 2780, 2781, 47 U.S.C. 522, as amended by the | 189 |
| "Telecommunications Act of 1996," Pub. L. No. 104-104, 110 Stat. | 190 |
| 56. | 191 |
| (E) "Household" means, consistent with the regulations of the | 199 |
| bureau of the census of the United States department of commerce, | 200 |
| a house, an apartment, a mobile home, a group of rooms, or a | 201 |
| single room that is intended for occupancy as separate living | 202 |
| quarters. "Separate living quarters" are those in which the | 203 |
| occupants live and eat separately from any other persons in the | 204 |
| building and that have direct access from the outside of the | 205 |
| building or through a common hall. | 206 |
| (J) "Video service" means the provision of video programming | 221 |
| over wires or cables located at least in part in public | 222 |
| rights-of-way, regardless of the technology used to deliver that | 223 |
| programming, including internet protocol technology or any other | 224 |
| technology. The term includes cable service, but excludes video | 225 |
| programming provided to persons in their capacity as subscribers | 226 |
| to commercial mobile service as defined in the "Telecommunications | 227 |
| Act of 1996," Pub. L. No. 104-104, Title VII, Sections 704(a) and | 228 |
| 705, 110 Stat. 61, 151, 153, 47 U.S.C. 332; video programming | 229 |
| provided solely as part of and via a service that enables users to | 230 |
| access content, information, electronic mail, or other services | 231 |
| offered over the public internet; and signals distributed by a | 232 |
| cable television system to paying subscribers in the | 233 |
| unincorporated area of a township prior to October 1, 1979, as | 234 |
| authorized under section 505.91 of the Revised Code as that | 235 |
| section existed prior to its repeal by S.B. 117 of the 127th | 236 |
| general assembly, unless a franchise was subsequently issued to | 237 |
| the same company as authorized under that section. | 238 |
| (K) By analogy to Am. Financial Servs. Assn. et al. v. | 284 |
| Cleveland, 112 Ohio St. 3d 170, 2006-Ohio-6043, citing Canton v. | 285 |
| State, 95 Ohio St.3d 149, 2002-Ohio-2005, syllabus, sections | 286 |
| 1332.21 to 1332.34 of the Revised Code are intended as a | 287 |
| comprehensive legislative enactment operating uniformly throughout | 288 |
| this state, setting forth police regulations, and prescribing a | 289 |
| rule of conduct upon citizens generally. | 290 |
| Sec. 1332.23. (A) Except as otherwise provided in divisions | 291 |
| (B)(1) and (2) of this section, no person shall provide video | 292 |
| service in this state on or after the effective date of this | 293 |
| section except pursuant to a video service authorization issued | 294 |
| under section 1332.24 of the Revised Code. Nothing in sections | 295 |
| 1332.21 to 1332.34 of the Revised Code equates authority to | 296 |
| construct and operate telecommunications facilities in a public | 297 |
| right-of-way to authority to provide access to video service. | 298 |
| (B)(1)(a) Subject to division (B)(2) of this section, a | 299 |
| person that offers service under a franchise or competitive video | 300 |
| service agreement in effect on the effective date of this section | 301 |
| may continue on and after that date to provide service within the | 302 |
| franchise area or the respective municipal corporation or | 303 |
| unincorporated area of a township pursuant to the terms and | 304 |
| conditions of the franchise or agreement. However, no such | 305 |
| franchise or agreement shall be renewed or extended beyond the | 306 |
| existing term of the franchise or agreement or its earlier | 307 |
| termination pursuant to the terms and conditions of the franchise | 308 |
| or agreement. With respect to such a franchise or competitive | 309 |
| video service agreement but only for the time the franchise or | 310 |
| agreement is in effect as provided under divisions (B)(1)(a) and | 311 |
| (2) of this section, the authority of a township under sections | 312 |
| 505.90 to 505.92 of the Revised Code, as those sections existed on | 313 |
| the day before their repeal by Am. Sub. S.B. 117 of the 127th | 314 |
| General Assembly, shall continue, notwithstanding their repeal by | 315 |
| that act. | 316 |
| (b) Any person that is providing video service in this state | 317 |
| on the effective date of this section pursuant to the terms and | 318 |
| conditions of an expired franchise or competitive video service | 319 |
| agreement, or is otherwise providing video service on that date | 320 |
| other than as described in division (B)(1)(a) of this section, has | 321 |
| ninety days beginning on the effective date of this section to | 322 |
| file an application for a video service authorization under | 323 |
| section 1332.25 of the Revised Code. | 324 |
| (2) A person that offers service under a franchise or | 325 |
| competitive video service agreement pursuant to division (B)(1)(a) | 326 |
| of this section may apply, under any of the following | 327 |
| circumstances, under section 1332.25 of the Revised Code for a | 328 |
| video service authorization to provide video service within an | 329 |
| area served by its video service network on the effective date of | 330 |
| this section under that franchise or agreement: | 331 |
| (C) Video service constitutes cable service over a cable | 348 |
| system for the purposes of sections 1332.01 to 1332.10 of the | 349 |
| Revised Code. For purposes of division (B)(4) of section 4939.05 | 350 |
| and divisions (A)(3) and (D)(2) of section 4939.08 of the Revised | 351 |
| Code, a municipal corporation that receives a video service | 352 |
| provider fee described in section 1332.32 of the Revised Code | 353 |
| constitutes a municipal corporation that charges a franchise fee, | 354 |
| and a video service authorization described in section 1332.24 of | 355 |
| the Revised Code constitutes a franchise between a cable operator | 356 |
| and a municipal corporation. | 357 |
| Sec. 1332.24. (A)(1) In accordance with section 1332.25 of | 358 |
| the Revised Code, the director of commerce may issue to any | 359 |
| person, or renew, a video service authorization, which | 360 |
| authorization confers on the person the authority, subject to | 361 |
| sections 1332.21 to 1332.34 of the Revised Code, to provide video | 362 |
| service in its video service area; construct and operate a video | 363 |
| service network in, along, across, or on public rights-of-way for | 364 |
| the provision of video service; and, when necessary to provide | 365 |
| that service, exercise the power of a telegraph company under | 366 |
| section 4931.04 of the Revised Code. The term of a video service | 367 |
| authorization or authorization renewal shall be ten years. | 368 |
| (B)(1) The director may investigate alleged violations of or | 375 |
| failures to comply with division (A) of section 1332.23, division | 376 |
| (C) of section 1332.25, division (C) or (D) of section 1332.26, | 377 |
| division (A), (B), or (C) of section 1332.27, division (A) of | 378 |
| section 1332.28, division (A) or (B) of section 1332.29, or | 379 |
| section 1332.30 or 1332.31 of the Revised Code, or complaints | 380 |
| concerning any such violation or failure. Except as provided in | 381 |
| this section, the director has no authority to regulate video | 382 |
| service in this state, including, but not limited to, the rates, | 383 |
| terms, or conditions of that service. | 384 |
| (2) In conducting an investigation under division (B)(1) of | 385 |
| this section, the director, by subpoena, may compel witnesses to | 386 |
| testify in relation to any matter over which the director has | 387 |
| jurisdiction and may require the production of any book, record, | 388 |
| or other document pertaining to that matter. If a person fails to | 389 |
| file any statement or report, obey any subpoena, give testimony, | 390 |
| produce any book, record, or other document as required by a | 391 |
| subpoena, or permit photocopying of any book, record, or other | 392 |
| document subpoenaed, the court of common pleas of any county in | 393 |
| this state, upon application made to it by the director, shall | 394 |
| compel obedience by attachment proceedings for contempt, as in the | 395 |
| case of disobedience of the requirements of a subpoena issued from | 396 |
| the court or a refusal to testify. | 397 |
| (C)(1) If the director finds that a person has violated or | 398 |
| failed to comply with division (A) of section 1332.23, division | 399 |
| (C) of section 1332.25, division (C) or (D) of section 1332.26, | 400 |
| division (A), (B), or (C) of section 1332.27, division (A) of | 401 |
| section 1332.28, division (A) or (B) of section 1332.29, or | 402 |
| section 1332.30 or 1332.31 of the Revised Code, and the person has | 403 |
| failed to cure the violation or failure after reasonable, written | 404 |
| notice and reasonable time to cure, the director may do any of the | 405 |
| following: | 406 |
| (a) Apply to the court of common pleas of any county in this | 407 |
| state for an order enjoining the activity or requiring compliance. | 408 |
| Such an action shall be commenced not later than three years after | 409 |
| the date the alleged violation or failure occurred or was | 410 |
| reasonably discovered. Upon a showing by the director that the | 411 |
| person has engaged in a violation or failure to comply, the court | 412 |
| shall grant an injunction, restraining order, or other appropriate | 413 |
| relief. | 414 |
| (c) Pursuant to an adjudication under Chapter 119. of the | 417 |
| Revised Code, assess a civil penalty in an amount determined by | 418 |
| the director, including for any failure to comply with an | 419 |
| assurance of voluntary compliance under division (C)(1)(b) of this | 420 |
| section. The amount shall be not more than one thousand dollars | 421 |
| for each day of violation or noncompliance, not to exceed a total | 422 |
| of ten thousand dollars, counting all subscriber impacts as a | 423 |
| single violation or act of noncompliance. In determining whether a | 424 |
| civil penalty is appropriate under division (C)(1)(c) of this | 425 |
| section, the director shall consider all of the following factors: | 426 |
| (2) Pursuant to an adjudication under Chapter 119. of the | 437 |
| Revised Code, the director may revoke, in whole or in part, the | 438 |
| video service authorization of any person that has repeatedly and | 439 |
| knowingly violated or failed to comply with division (A) of | 440 |
| section 1332.23, division (C) of section 1332.25, division (C) or | 441 |
| (D) of section 1332.26, division (A), (B), or (C) of section | 442 |
| 1332.27, division (A) of section 1332.28, division (A) or (B) of | 443 |
| section 1332.29, or section 1332.30 or 1332.31 of the Revised Code | 444 |
| and that has failed to cure the violations or noncompliances after | 445 |
| reasonable written notice and reasonable time to cure. Such person | 446 |
| acts knowingly, regardless of the person's purpose, when the | 447 |
| person is aware that the person's conduct will probably cause a | 448 |
| certain result or will probably be of a certain nature. A person | 449 |
| has knowledge of circumstances when the person is aware that such | 450 |
| circumstances probably exist. | 451 |
| (D) Within thirty days after its filing or within thirty days | 513 |
| after the filing of supplemental information necessary to make it | 514 |
| complete, the director shall determine the completeness of an | 515 |
| application filed under division (A) or (C) of this section | 516 |
| relative to the respective requirements of divisions (A), (B), and | 517 |
| (C) of this section and, as applicable, shall notify the applicant | 518 |
| of an incompleteness determination, state the bases for that | 519 |
| determination, and inform the applicant that it may resubmit a | 520 |
| corrected application. The director shall issue a video service | 521 |
| authorization, authorization renewal, or amended authorization | 522 |
| within fifteen days after the director's determination that the | 523 |
| filed application is complete. | 524 |
| If the director does not notify the applicant regarding the | 525 |
| completeness of the application within the time period specified | 526 |
| in this division or does not issue the authorization requested by | 527 |
| a completed application within the applicable time period, the | 528 |
| application shall be deemed complete, and the authorization or | 529 |
| amended authorization deemed issued on the forty-fifth day after | 530 |
| the application's filing date. | 531 |
| (E) An applicant shall pay a two thousand dollar | 532 |
| nonrefundable fee for each application filed under division (A) of | 533 |
| this section and a one hundred dollar nonrefundable fee for each | 534 |
| application to amend filed under division (C) of this section. | 535 |
| Fees collected under this division shall be deposited to the | 536 |
| credit of the video service authorization fund in the state | 537 |
| treasury, which is hereby created, to be used by the department of | 538 |
| commerce in carrying out its duties under this section. | 539 |
| (B) Except as authorized under division (C) of this section | 553 |
| and under sections 1332.30 and 1332.32 of the Revised Code, no | 554 |
| political subdivision shall request anything of value from a video | 555 |
| service provider for providing video service; impose any fee, | 556 |
| license, or gross receipt tax on the provision of video service by | 557 |
| such a provider; or impose any franchise or other requirement on | 558 |
| the provision of video service by a video service provider, | 559 |
| including, but not limited to, any provision regulating rates | 560 |
| charged by a video service provider or establishing any build-out | 561 |
| requirement or requirement to deploy any facility or equipment. | 562 |
| (C) When requested to do so, a video service provider shall | 563 |
| assist a municipal corporation or township in addressing video | 564 |
| service subscriber complaints, in a manner consistent with the | 565 |
| provider's complaint handling process set forth in its application | 566 |
| pursuant to division (A)(7) of section 1332.24 of the Revised | 567 |
| Code. Nothing in sections 1332.21 to 1332.34 of the Revised Code | 568 |
| affects any authority granted under sections 1345.01 to 1345.13 of | 569 |
| the Revised Code. | 570 |
| Sec. 1332.27. (A) Before it provides or sells video service | 607 |
| to one or more subscribers within its video service area or any | 608 |
| additional video service area under division (C) of section | 609 |
| 1332.25 of the Revised Code, a video service provider shall | 610 |
| provide ten days' advance, written notice of that service or | 611 |
| additional service to the respective municipal corporation or | 612 |
| township and to every person providing video service in all or | 613 |
| part of that video service area. | 614 |
| (B) A video service provider may transfer its video service | 615 |
| authorization to a successor. Within ten days after completing the | 616 |
| transfer, the provider shall provide written notice to the | 617 |
| respective municipal corporation or township. The transfer is not | 618 |
| valid until the date that the successor files a complete affidavit | 619 |
| with the director of commerce containing the information specified | 620 |
| in division (A) of section 1332.25 of the Revised Code. The | 621 |
| director has no authority to act upon the notice or the completed | 622 |
| affidavit. | 623 |
| (2) Notwithstanding division (C)(1) of this section, a video | 630 |
| service provider that provided video service in this state under a | 631 |
| franchise on the effective date of this section shall not abandon | 632 |
| the video service it provided within the franchise area to | 633 |
| subscribers served on that effective date, at least until the | 634 |
| franchise would have expired if not terminated under division (B) | 635 |
| of section 1332.23 of the Revised Code. | 636 |
| Sec. 1332.28. (A) Consistent with the "Telecommunications Act | 637 |
| of 1996," Pub. L. No. 104-104, Title III, Sections 303(a), 110 | 638 |
| Stat. 61, 124, 47 U.S.C. 541(a)(3) and to prohibit discriminatory | 639 |
| practices against a group of potential residential subscribers, no | 640 |
| video service provider shall deny access to video service to any | 641 |
| group of potential residential subscribers in its video service | 642 |
| area because of the race or income of the residents in the local | 643 |
| area in which the group resides. | 644 |
| (2) A video service provider may comply with division | 670 |
| (A)(1)(a) or (b) of this section through the use of alternative | 671 |
| technology, except satellite technology, that offers service, | 672 |
| functionality, and content demonstrably similar to the service, | 673 |
| functionality, and content the provider otherwise provides through | 674 |
| its video service network. | 675 |
| Sec. 1332.30. (A)(1)(a) If a municipal corporation or | 699 |
| township has three or more PEG channels programmed on January 1, | 700 |
| 2007, the person providing those channels pursuant to a franchise, | 701 |
| competitive video service agreement, ordinance, or resolution or | 702 |
| otherwise shall continue to provide those PEG channels, three of | 703 |
| which shall be on the person's basic cable service, with the | 704 |
| additional PEG channels on the person's basic cable service or on | 705 |
| any service tier viewed by more than fifty per cent of the | 706 |
| subscribers in the video service area. Any such additional channel | 707 |
| may be reclaimed if it is not substantially utilized. For the | 708 |
| purpose of divisions (A)(1)(a) and (B)(2) of this section, a PEG | 709 |
| channel is "not substantially utilized" when fewer than forty | 710 |
| hours of noncharacter-generated content are programmed on that | 711 |
| channel each week and less than sixty per cent of the programming | 712 |
| is nonrepeat and locally produced. | 713 |
| (b) If the municipal corporation or township has one or two | 714 |
| PEG channels programmed on January 1, 2007, the person providing | 715 |
| those channels pursuant to a franchise, competitive video service | 716 |
| agreement, ordinance, or resolution or otherwise shall continue to | 717 |
| provide the channel or channels, with one PEG channel on the | 718 |
| person's basic cable service and, as applicable, the second PEG | 719 |
| channel on the person's basic cable service or on any service tier | 720 |
| viewed by more than fifty per cent of the subscribers in the video | 721 |
| service area. | 722 |
| (2) A municipal corporation or township by written notice | 723 |
| shall require a person providing video service in the municipal | 724 |
| corporation or township on or after the effective date of this | 725 |
| section, other than a person described in division (A)(1)(a) or | 726 |
| (b) of this section, to provide the same number of PEG channels | 727 |
| under the same service tier conditions and subject to the same | 728 |
| channel reclamation as those required under division (A)(1)(a) or | 729 |
| (b) of this section of the incumbent person but, if there is more | 730 |
| than one such incumbent that provided PEG channels on January 1, | 731 |
| 2007, the person shall provide the same number required of the | 732 |
| incumbent with the most recent obligation. The notice shall state | 733 |
| the appropriate number of PEG channels and the service tiers | 734 |
| required. Following receipt of that notice, the person shall | 735 |
| provide the PEG channels not later than one hundred twenty days | 736 |
| after the municipal corporation or township is able to deliver the | 737 |
| PEG channel content. | 738 |
| (B)(1) A municipal corporation or a township that has no PEG | 744 |
| channels programmed on January 1, 2007, and lies within a video | 745 |
| service provider's video service area may require the video | 746 |
| service provider by written notice to provide PEG channels | 747 |
| beginning after the provider initially provides video service | 748 |
| within the municipal corporation or unincorporated area of the | 749 |
| township. The video service provider shall provide the PEG | 750 |
| channels one hundred twenty days after the municipal corporation | 751 |
| or township is able to deliver the PEG channel content. The | 752 |
| provider may use any service tier viewed by more than fifty per | 753 |
| cent of the subscribers in the video service area to provide the | 754 |
| PEG channels. | 755 |
| (a) Except as provided in division (B)(2) of this section, | 756 |
| the number of required PEG channels shall not exceed three if the | 757 |
| respective municipal corporation or township has a population of | 758 |
| at least fifty thousand, or two if the population is less than | 759 |
| fifty thousand. If there is more than one video service provider | 760 |
| providing PEG channels in the municipal corporation or township, | 761 |
| the number of channels shall be the same for all the video service | 762 |
| providers. | 763 |
| (b) If a video service provider distributes video programming | 764 |
| to more than one municipal corporation or township through a | 765 |
| single headend or video hub office and the aggregate population of | 766 |
| the municipal corporations or townships is at least fifty | 767 |
| thousand, none of those municipal corporations or townships shall | 768 |
| require the provider to provide, in the aggregate, channel | 769 |
| capacity for more than three PEG channels. If the aggregate | 770 |
| population is less than fifty thousand, none of those municipal | 771 |
| corporations or townships shall require the provider to provide, | 772 |
| in the aggregate, channel capacity for more than two PEG channels. | 773 |
| (2) A video service provider may reclaim a PEG channel under | 774 |
| division (B) of this section that it determines is not | 775 |
| substantially utilized. At such time as the municipal corporation | 776 |
| or township that caused the establishment of the PEG channel can | 777 |
| later certify that the channel will be substantially utilized, the | 778 |
| video service provider, within one hundred twenty days after the | 779 |
| date the video service provider receives that certification, shall | 780 |
| restore the reclaimed channel as a PEG channel. However, the | 781 |
| provider need not carry that channel on any specified tier of | 782 |
| service. | 783 |
| (C) No municipal corporation or township shall require a | 784 |
| video service provider to provide any institutional network on its | 785 |
| video service network, except that a person that, pursuant to a | 786 |
| franchise, competitive video service agreement, ordinance, or | 787 |
| resolution or otherwise, provided any institutional network on | 788 |
| January 1, 2007, shall continue to provide the institutional | 789 |
| network until the obligation would have expired if not terminated | 790 |
| pursuant to division (B) of section 1332.23 of the Revised Code, | 791 |
| or, if earlier and as applicable, until January 1, 2012, or such | 792 |
| earlier date as may be specified in an ordinance or resolution in | 793 |
| effect on the effective date of this section. The provider shall | 794 |
| give the municipal corporation or township at least one hundred | 795 |
| twenty days' written advance notice of that termination. If the | 796 |
| obligation included terms regarding the infrastructure of the | 797 |
| institutional network upon the expiration of the obligation, the | 798 |
| video service provider shall honor those terms. Nothing in this | 799 |
| division precludes such a video service provider and a municipal | 800 |
| corporation or township from entering into other arrangements for | 801 |
| institutional networks. | 802 |
| (E)(1) The unfulfilled obligation of a person under a | 807 |
| franchise, competitive video service agreement, ordinance, or | 808 |
| resolution in effect on the effective date of this section to | 809 |
| provide monetary or other support to a municipal corporation or | 810 |
| township for PEG channel facilities shall continue until the | 811 |
| obligation would have expired if not terminated pursuant to | 812 |
| division (B) of section 1332.23 of the Revised Code or, if earlier | 813 |
| and as applicable, January 1, 2012, or such earlier date as many | 814 |
| be specified in an ordinance or resolution in effect on the | 815 |
| effective date of this section. | 816 |
| (2)(a) Each other person providing access to video service | 817 |
| within the municipal corporation or the unincorporated area of a | 818 |
| township after the effective date of this section shall have a pro | 819 |
| rata share of the same unfulfilled obligation to support PEG | 820 |
| channel facilities during the same time period as the incumbent | 821 |
| under division (E)(1) of this section, but, if there is more than | 822 |
| one such incumbent, each other person shall have the same | 823 |
| obligation as the incumbent with the most recent obligation. | 824 |
| (b) A video service provider's pro rata share of the | 843 |
| unfulfilled obligation under division (E)(2)(a)(ii) or (iii) of | 844 |
| this section shall be based on its proportion of video service | 845 |
| subscribers with service addresses in the municipal corporation or | 846 |
| unincorporated area of the township. For the purpose of | 847 |
| determining the pro rata shares, all persons under divisions | 848 |
| (E)(1) and (2) of this section shall report quarterly to the | 849 |
| municipal corporation or township the total number of subscribers | 850 |
| served within the municipal corporation or the unincorporated area | 851 |
| of the township. This information shall be treated as confidential | 852 |
| by the municipal corporation or township and shall be used only to | 853 |
| derive the pro rata shares. | 854 |
| (c) The person shall remit its pro rata share to the | 855 |
| municipal corporation or township quarterly, not sooner than | 856 |
| forty-five nor later than sixty days after the end of the | 857 |
| preceding calendar quarter. However, the person need not pay its | 858 |
| pro rata share unless the municipal corporation or township | 859 |
| provided notice to the person of the amount due. The municipal | 860 |
| corporation or township shall use the payments only as authorized | 861 |
| under federal law. | 862 |
| (F)(1) If a municipal corporation or township requires a | 863 |
| person to provide connectivity for PEG channel programming on | 864 |
| January 1, 2007, the person shall fulfill that obligation and | 865 |
| provide connectivity sufficient to connect its headend or video | 866 |
| hub office to the municipality's or township's PEG access channel | 867 |
| origination points existing as of January 1, 2007. The obligation | 868 |
| shall expire January 1, 2012, or such earlier date as may be | 869 |
| specified in an ordinance or resolution of the municipal | 870 |
| corporation or township in effect on the effective date of this | 871 |
| section or, if earlier, at the end of the most recent such | 872 |
| connectivity obligation of any person to the municipal corporation | 873 |
| or township. The person may use the most economically and | 874 |
| technologically efficient means of providing that capacity. | 875 |
| (2) During the time described in division (F)(1) of this | 880 |
| section, if the municipal corporation or township requests that a | 881 |
| PEG channel origination point existing as of January 1, 2007, be | 882 |
| relocated, the person may charge the municipal corporation or | 883 |
| township for the costs of constructing that part of a transmission | 884 |
| line, connecting the person's headend or video hub office to the | 885 |
| relocated point, that extends two hundred feet beyond the headend | 886 |
| or video hub, but not for the costs associated with the | 887 |
| transmission of the PEG programming. Also, during that time, the | 888 |
| person may charge for the construction costs associated with | 889 |
| additional origination points, but not for the costs associated | 890 |
| with the transmission of the PEG programming. | 891 |
| (G) Except as otherwise provided in this section, no | 892 |
| municipal corporation or township shall require a video service | 893 |
| provider to provide any funds, services, programming, facilities, | 894 |
| or equipment related to PEG channels. PEG channel operation and | 895 |
| programming shall be the sole responsibility of the municipal | 896 |
| corporation or township. Except as otherwise provided in this | 897 |
| section, the video service provider shall bear only the | 898 |
| responsibility for the transmission to subscribers of the PEG | 899 |
| channel programming once the programming is delivered to the video | 900 |
| service provider. | 901 |
| Sec. 1332.31. Not later than six months after the effective | 902 |
| date of its video service authorization, a video service provider | 903 |
| shall carry emergency interrupt service announcements transmitted | 904 |
| by local television broadcasters and shall transmit national, | 905 |
| state, and local emergency interrupt service announcements as | 906 |
| required by 47 C.F.R. 11.11 et seq. or as otherwise required by | 907 |
| the federal communications commission. | 908 |
| Sec. 1332.32. (A) Not sooner than forty-five nor later than | 909 |
| sixty days after the end of each calendar quarter, a video service | 910 |
| provider shall pay a video service provider fee to each municipal | 911 |
| corporation and each township in which it offers video service. | 912 |
| The fee shall be calculated quarterly by determining the | 913 |
| provider's gross revenue for the preceding calendar quarter as | 914 |
| described in division (B) of this section and multiplying the | 915 |
| result by the percentage specified in division (C)(1)(a) or (b) of | 916 |
| this section. | 917 |
| (a) Any taxes, fees, or assessments that are collected by the | 937 |
| video service provider from video service subscribers for | 938 |
| pass-through to any federal, state, or local government agency, | 939 |
| including the video service provider fee authorized under this | 940 |
| section, the fee authorized under division (F) of section 1332.30 | 941 |
| of the Revised Code, and the federal communication commission user | 942 |
| fee; | 943 |
| (e) Charges for services other than video service, reasonably | 950 |
| identifiable on books or records the video service provider keeps | 951 |
| in the regular course of business or by other reasonable means, | 952 |
| that are aggregated or bundled with amounts billed to video | 953 |
| service subscribers, including, but not limited to, any revenue | 954 |
| received by a video service provider or its affiliates for | 955 |
| telecommunications service, information service, or the provision | 956 |
| of directory or internet advertising, including yellow pages, | 957 |
| white pages, banner advertising, and electronic publishing; | 958 |
| (g) Advertising revenue, unless a municipal corporation | 961 |
| enacts an ordinance or a board of township trustees adopts a | 962 |
| resolution that uniformly applies to all video service providers. | 963 |
| For those purposes, "advertising revenue" means the net revenue | 964 |
| received by the video service provider for advertising on its | 965 |
| subscription-based video service within a municipal corporation or | 966 |
| the unincorporated area of a township. If such revenue is derived | 967 |
| under a regional or national compensation contract or arrangement | 968 |
| between the video service provider and one or more advertisers or | 969 |
| advertising representatives, the amount of revenue derived for a | 970 |
| municipal corporation or for the unincorporated area of a township | 971 |
| shall be determined by multiplying the total net revenue received | 972 |
| by the video service provider under the contract or arrangement by | 973 |
| the percentage resulting from dividing the number of subscribers | 974 |
| in the municipal corporation or unincorporated area of a township | 975 |
| by the total number of regional or national subscribers that | 976 |
| potentially receive the advertising under the contract or | 977 |
| arrangement. The municipal corporation or township shall promptly | 978 |
| notify affected video service providers of the ordinance or | 979 |
| resolution, which shall not take effect until the first day of the | 980 |
| first calendar quarter that begins more than thirty days after the | 981 |
| notice. | 982 |
| (C)(1)(a) If in the calendar quarter a franchise fee is | 986 |
| payable by a cable operator under a franchise in effect in a | 987 |
| municipal corporation or township as provided under division (B) | 988 |
| of section 1332.23 of the Revised Code, the percentage of gross | 989 |
| revenue payable in that calendar quarter by a video service | 990 |
| provider to the municipal corporation or township shall be the | 991 |
| same percentage of gross revenue payable in that calendar quarter | 992 |
| pursuant to that franchise, not to exceed five per cent. If there | 993 |
| is more than one such franchise of a cable operator in effect in | 994 |
| that quarter, the lowest such percentage shall be used. | 995 |
| (2) The municipal corporation or township shall provide | 1000 |
| written notice to the video service provider of the appropriate | 1001 |
| percentage under division (C)(1)(a) or (b) of this section within | 1002 |
| ten days after it receives the notice required by division (A) of | 1003 |
| section 1332.27 of the Revised Code that the video service | 1004 |
| provider will commence to provide access to video service in the | 1005 |
| municipal corporation or unincorporated area of the township. A | 1006 |
| provider need not pay the fee unless the municipal corporation or | 1007 |
| township provided that notice. | 1008 |
| Sec. 1332.33. (A) At its sole expense and not more often than | 1015 |
| once per calendar year, a municipal corporation or township may | 1016 |
| conduct an audit for the purpose of verifying the accuracy of a | 1017 |
| video service provider's calculation of the video service provider | 1018 |
| fees it paid to the municipal corporation or township in the audit | 1019 |
| period. For the purpose of the audit, the video service provider | 1020 |
| shall make available for inspection, at the location where such | 1021 |
| records are kept in the normal course of business, those records | 1022 |
| pertaining to its gross revenue as defined in division (B) of | 1023 |
| section 1332.32 of the Revised Code. The provider need not retain | 1024 |
| those records for longer than three years after the year for which | 1025 |
| the fee was payable, unless the municipal corporation or township | 1026 |
| has commenced an action under division (C) of this section. | 1027 |