The online versions of legislation provided on this website are not official. Enrolled bills are the final version passed by the Ohio General Assembly and presented to the Governor for signature. The official version of acts signed by the Governor are available from the Secretary of State's Office in the Continental Plaza, 180 East Broad St., Columbus.
|
***
An attempt was made to recreate these historic documents. The original text was retained, however, during the process some errors in formatting may have been introduced. The official version of the act may be obtained from the Secretary of State's Office listed above.
***
|
(123rd General Assembly)(Amended Substitute Senate Bill Number 67)
AN ACT
To enact sections 1332.01 to 1332.10 of the Revised Code to
provide a fair opportunity to compete with the cable system of a
political subdivision that also serves as a franchising authority
for cable systems and to prohibit unfair competition in cable
operations, by prohibiting discriminatory treatment in favor of a cable
service provider operated by a political subdivision, requiring specified
notice prior to public action on a cable system,
and authorizing
arbitration or judicial remedies to settle disputes. Be it enacted by the General Assembly of the State of Ohio:
SECTION 1 . That sections 1332.01, 1332.02, 1332.03, 1332.04,
1332.05, 1332.06, 1332.07, 1332.08, 1332.09, and 1332.10
of
the Revised Code be enacted to read as follows:
Sec. 1332.01. As used in sections 1332.01 to 1332.10 of the Revised Code: (A) "Applicable generally accepted accounting principles" means
accounting principles and standards set forth in all applicable pronouncements
of the governmental accounting standards board. (B) "Cable service," "cable system," "franchise," and
"franchising authority" have the same meanings as in the
"Telecommunications Act of 1996," Pub. L.
No. 104-104, Title III, Sections
301(a) and 302 (b)(2), 110 Stat. 114,
124, 47
U.S.C.A. 522. (C) "Cable service provider" means any person or group of persons
that is engaged in the provision of cable service over a cable system and
directly or
indirectly owns a significant interest in the cable system, or that through
any
arrangement otherwise
controls or is responsible for the management and operation of the
cable system. (D) "Color of office," "public office," and "public official"
have the same meanings as in section 117.01 of the Revised Code. (E) "Direct costs" means all costs, whether capital costs,
operating costs, or otherwise, that would be
eliminated if the
service or function to which they relate were discontinued. (F) "Full cost accounting" means, in accordance with applicable
generally accepted accounting principles,
accounting for all direct and indirect costs, including capital costs, that
are incurred in the
ownership, management, or operation of a cable system or provision
of cable service over a cable system. (G) "Indirect costs" means all costs, whether capital costs,
operating costs, or otherwise, that
are not
direct costs.
Indirect
costs that support multiple services or
functions shall be allocated
among those services and functions in proportion to the
relative burden each service or function places on the cost category and by
any reasonable method consistent with applicable generally accepted accounting
principles. (H) "Person" includes any individual, corporation, partnership,
limited liability company, association, trust, or political
subdivision. (I) "Private cable service provider" means any cable service
provider other than a public cable service provider. (J)
"Private cable service regulation" means any regulation, rule,
requirement, or restriction of or by a political subdivision of this state
that applies, by resolution,
ordinance, rule, regulation, franchising agreement, or otherwise, to the terms
and
conditions of service, conditions of access to public property, permits
for pole attachments, or any other matter concerning or affecting the
provision
of cable service over a cable system by a private cable service
provider. (K) "Public cable service provider" means any cable service
provider that is a political subdivision of this state. (L) "Public Cable Service Recipient" means any household or
business that receives cable service or benefits from video programming
service, transmission service, distribution service, repair service, billing
service, or customer service that is provided by, originates from, or is
controlled by a public cable service provider of a political subdivision. (M) "Public money"
means any of the following: (1) Any money received, collected by, or due a public official
under color of office; (2) Any money collected by any person on behalf of a public
office or as a purported representative or agent of the public
office; (3) Any money received by any person, whether directly or
indirectly, from the United States, this state, a county,
municipal corporation, township, or any other public office for the purpose of
performing or assisting with a governmental function or program authorized
by or the responsibility of the United States, this state, a
county, municipal corporation, township, or any other public
office. Sec. 1332.02. It is the public policy of this state under
sections 1332.01 to 1332.10 of the Revised Code to: (A) Ensure fair competition in the provision in this state of
cable service over a cable system, consistent with the procompetitive
policies of the "Telecommunications Act of 1996,"
Pub. L. No.
104-104, 110 Stat. 56, 47 U.S.C.A. 151, for the purposes of providing
the widest possible diversity of entertainment, information, and news sources
to the general public; advancing the unfettered exercise of rights under the
first amendment to the United States Constitution
to free speech and the free flow
of information; enhancing the development and widespread use of technological advances in the provision of cable service over a cable system; and encouraging
improved customer service at competitive rates; (B) Ensure that all cable service over a cable system is provided
in this state within a comprehensive and nondiscriminatory federal,
state, and local scheme. Sec. 1332.03.
(A) Nothing in sections 1332.01 to 1332.10 of the Revised Code is a
determination by the general assembly that the provision of cable service over
a cable system by a municipal corporation does or does not constitute a public
utility pursuant to Section 4 of Article
XVIII,
Ohio
Constitution. (B) Nothing in sections 1332.01 to 1332.10 of the Revised Code
confers authority on a political subdivision of this state to own, lease, or
operate a cable
system or to provide cable service over a cable system; rather, that
authority, if any, is
as otherwise may be conferred by law. (C) Except as expressly provided in sections 1332.01 to 1332.10
of the Revised Code, nothing in those sections restricts the
authority of a political subdivision of this state, otherwise conferred by
law,
to grant a franchise to provide cable service. Sec. 1332.04. (A) No political subdivision of this state shall
provide cable service over a cable system, whether bundled with other services
or unbundled, except in accordance with sections
1332.01 to 1332.10 of the Revised Code. (B)(1) No political subdivision of this state that is a public
cable
service provider or contracts with a public cable service provider for cable
service over a cable system shall, by any means, do any of the following: (a) Prefer or advantage any public cable service provider or
discriminate
against any private cable service provider in any material matter affecting
the
provision, within the jurisdiction of the political subdivision,
of cable service over a cable system; (b) fail to apply any private cable service regulation WITHOUT
DISCRIMINATION to a public cable service provider within the JURISDICTION
of the political subdivision; (c) fail to pay all applicable fees, including, but not
limited
to, franchise fees, permit fees, pole attachment fees, or the equivalent
of any such fees. (2) Nothing in division (B)(1) of this section requires
the
application of a private cable service regulation to a public cable service
provider if that application would be without legal or
practical consequence, such as the application of a private cable
service regulation requiring provision of an INSURANCE bond, which
application to a public cable service provider would require it to
insure its performance to itself. (C) no political subdivision of this state that is a public
cable service pROVIDER shall have extraterritorial public cable
service recipients in excess of fifty per cent of the number of
public cable service recipients that reside within the
geographical limits of the political subdivision. nothing in this
division prohibits public cable service providers from
jointly owning and operating head-end equipment. each such public
cable service provider shall pay that proportion of the full costs
of owning and operating such head-end EQUIPMENT, including, but
not limited to, the costs of construction, acquisition,
installation, improvement, enhancement, modification, financing,
maintenance, repair, and operation, equal to the total population
of the POLITICAL subdivision that is such public cable service
PROVIDER divided by the total population of all political
subdivisions that are public cable service providers jointly owning
and operating such head-end equipment, determined annually or with
such FREQUENCY as such public cable service providers otherwise
agree. (D) No political subdivision of this state that is
a franchising authority shall unreasonably withhold a request by a
cable service provider to transfer, modify, or renew, in accordance with the
terms of the franchise and in accordance with the provisions of the
"Telecommunications Act of 1996," Pub. L.
No. 104-104, Title III, Section
301(i), 110 Stat. 117, 47
U.S.C.A. 537, the "Cable
Communications Policy Act of 1984," Pub.
L. No. 98-549, Section 2, 98 Stat. 2790,
47 U.S.C.A. 545, or the "Cable Television Consumer
Protection and Competition Act of 1992,"
Pub. L. No. 102-385, Section 18, 106
Stat. 1493, 47 U.S.C.A. 546, its existing franchise to provide cable
service over a cable system. Sec. 1332.05. (A)(1) In addition to satisfying any other
applicable notice and hearing requirements, the legislative authority of a
political
subdivision of this state shall provide notice in accordance with division
(B) of this section of its consideration of an ordinance
or resolution that would authorize the expenditure of public money for a cable
system
or
the provision of cable service over a cable system,
including, but not limited to, an ordinance or resolution that would authorize
any of
the following: (a) A feasibility study, marketing study, or any
cost-benefit analysis concerning the establishment, acquisition,
construction, improvement, financing, leasing, management, or
operation of a cable system or the provision of cable service over
a cable system; (b) The acquisition, construction, installation, improvement,
financing, lease, or agreement for management or operation of facilities
capable of providing cable service over a cable system; (c) An agreement or arrangement for the use of a cable
system or for the provision of cable service over a cable system; (d) Approval of the terms of a franchise agreement
for the political subdivision as a public cable service provider, if any such
agreement exists, or with any
other public cable service provider to provide cable service over a cable
system. (2)
Any ordinance or resolution enacted by the legislative AUTHORITY
of a political subdivision of this state AUTHORIZING the formation of a
public cable service provider by the political subdivision shall include
a comprehensible STATEMENT of the general plan for financing the
acquisition, construction, installation, improvement, or lease of
the cable system. no such ORDINANCE or resolution shall be deemed
an emergency ordinance or resolution or a measure necessary for
the immediate preservation of the public peace, health, or SAFETY
in the POLITICAL subdivision, and no such ORDINANCE or resolution
shall take effect sooner than thirty days after its date of
enactment. if, within thirty days after such date of enactment, a
petition signed by ten per cent of the electors of the political
subdivision, based upon the total number of votes CAsT at the last
preceding general election of the political subdivision, shall be
filed with the appropriate office demanding a referendum on the
ordinance or resolution, the ordinance or resolution shall not
take effect until submitted to the electors and approved by a
majority of those voting on it. (3) Divisions (A)(1) and (2) of this section apply only with
respect to
the first time an ordinance or resolution described, respectively, in division
(A)(1) or (2) of this section is considered or enacted, respectively,
by a legislative authority,
and a legislative authority need not comply with division (A)(1) or
(2)
of this section regarding any
ordinance or resolution that
pertains to the same
cable system and that is considered or enacted, respectively, subsequent to an
ordinance or resolution that was enacted and that complied with division
(A)(1) or (2) of this section, respectively. (B) Notice under division (A)(1) of this section
shall be given at least forty-five days prior to the
enactment of the ordinance or resolution and shall be given to all persons
that have filed a pending application with the political subdivision to
provide
within its jurisdiction cable service over a cable system or
are providing cable service over a cable system pursuant to a franchise
granted by the political subdivision. The notice shall
be in writing, delivered to the address designated by the person
as the address for receipt of notices or, if no such designation
has been made, to the operating address of that person as
registered with the political subdivision. The notice shall be
delivered by certified mail, registered mail, overnight delivery,
or a similar method of receipted delivery. (C) No political subdivision shall fail to comply with division
(A) of this section. Sec. 1332.06. (A) A political subdivision of this state
that is a public cable service provider shall maintain a
special fund for its cable system and the provision of cable service over that
cable system and shall be subject, with respect to that special fund, to
sections 5705.09, 5705.10, 5705.14, 5705.15, 5705.16, 5705.39, 5705.40,
5705.41, 5705.44, and 5705.45 and any other applicable provision
of Chapter 5705. of the Revised Code concerning the establishment or maintenance of
the special fund. (B) A political subdivision of this state
that is a public cable service provider shall prepare and publish,
on or before the first day of June of each year for the prior
calendar year, an annual report on its cable system and the provision of
cable service over that cable system.
The report shall be substantially in accordance with full cost accounting and
shall include disclosure of
the amount, source, and cost of working capital utilized
for its cable system and the provision of cable service over that
cable system and estimates of the amount of any franchise fee,
regulatory fee, occupation tax, pole attachment fee, property tax,
or other fee or tax that would be applicable to its cable system
and the provision of cable service over that cable system but for
any exemption by reason of its status as a political subdivision, which
exemption is authorized by law. Nothing in sections 1332.01 to 1332.10 of the
Revised
Code
requires any elected official of the political subdivision to maintain a log
or other record of the
time the official spends on the business of the public cable
service provider in the course of official duties. (C) No political subdivision shall fail to comply with division
(A) or (B) of this section. Sec. 1332.07. A violation of any provision of division (B) of
section 1332.04 of the Revised Code by a political subdivision, whether
as a franchising authority, public cable service
provider, or otherwise, relieves any other cable service provider
in the jurisdiction of the political subdivision from any
obligation to comply with or perform any regulation, rule,
requirement, or restriction that is the subject of the violation,
and entitles any such other cable service provider to equivalent
treatment, right, or benefit. Sec. 1332.08. (A) A dispute for which a civil action is
authorized under section 1332.09 of the Revised Code may
first be submitted to
arbitration in accordance with the procedures and subject to the
conditions set forth in divisions (B) to (D) of this
section. (B) Prior to initiating a civil action under section
1332.09 of
the Revised Code, a person authorized to bring such an
action
may provide written notice of proposed arbitration under this section to all
persons that would be party to the civil
action. the notice shall describe with reasonable specificity the
issues that would be the subject of the civil action. the issues
shall be submitted to arbitration only if each person receiving
such a notice of proposed arbitration gives its written consent
not later than seven days after the date of receipt of the notice. (C) Arbitration under this section shall be conducted and
decided by a panel of three arbitrators in accordance with procedures
established by the American arbitration association. the
persons that would be the complainants in a civil action under section
1332.09 of the Revised Code regarding the issues submitted
to arbitration shall select one of the arbitrators, the persons
that would be the respondents in the civil action shall select
another one of the arbitrators, and the two arbitrators so
selected shall jointly select the third arbitrator. If the two
arbitrators selected are unable to agree on a third arbitrator
within seven days after the latest date either of the two
arbitrators was selected,
they are removed, and the parties to the proposed ARBITRATION
shall each select one substitute arbitrator in the same manner as
previously provided in this division, and the two substitute arbitrators so
selected shall jointly select the THIRD arbitrator. if the substitute
arbitrators are unable to agree on a third ARBITRATOR within seven
days after the latest date either such substitute arbitrator was
selected, they are removed, and the issues shall not be submitted
to arbitration. (D) Not more than one hundred twenty days after the date
a panel of arbitrators is selected under division (c) of this
section, the panel shall issue a written opinion setting forth findings and
decisions respecting
the issues submitted to arbitration. the findings and decisions
of the majority of the arbitrators on the panel shall be deemed
the findings and decisions of the panel. the findings and
decisions shall not be binding but shall be admissible into
evidence in any civil action brought under section 1332.09 of the
Revised Code respecting the issues submitted to
arbitration. the arbitrators shall not have continuing jurisdiction after the
written opinion required by this
division is issued. (E) Issues submitted to arbitration under this section may be
resolved at any time by binding settlement agreement among the parties to
the arbitration. Sec. 1332.09. (A) a political subdivision subject to division
(A), (b), or (c) of section 1332.04 or division
(C) of section 1332.05 of the Revised Code may bring a civil
action for declaratory relief in the court of common pleas in the county in
which the political
subdivision is located or in any county of this STATE IN which the political
subdivision is a
public cable service provider. (B) a person that is or is likely to be adversely
affected by a
violation of division (A), (b), or (C) of section
1332.04 or
division (c) of section 1332.05 of the Revised Code may bring a
civil action for DECLARATorY or injunctive relief in such a court of common
pleas. such person that is or is likely to be adversely affected includes a
person that
provides, or has filed a pending application to provide, within
the JURISDICTION of the political subdivision, cable service over
a cable system, and includes any other political subdivision in
WHICH such allegedly noncomplying political subdivision Is, or has
filed a PENDING application to become, a public cable service
provider. (C)(1) if an arbitration opinion under section 1332.08 of the Revised Code
contains a finding
of a violation by a political subdivision of division (A),
(B), or
(C) of section 1332.04 or division (C) of section 1332.05
of the Revised Code and
the political
subdivision fails to rectify the violation promptly, and any person adversely
affected by the VIOLATION
substantially prevails in a subsequent civil action against the political
subdivision under division
(B) of this section regarding the violation not promptly
RECTIFIED, the POLITICAL subdivision is liable to the person for the person's
costs and reasonable
attorney's fees incurred in connection with the civil action. (2) if an arbitration opinion under section 1332.08 of the Revised Code does not contain
a finding of a violation by a political
subdivision of division (A), (b), or (C) of section
1332.04 or
division (C) of section 1332.05 of the Revised Code and the
political subdivision substantially prevails in a subsequent civil
action brought against it under division (B) of this section
respecting an alleged violation, the complainants in the civil action are
LIABLE to the political
subdivision for its costs and reasonable ATTORNEY'S fees incurred in
connection with the civil
action. (3)
The court shall exercise its equitable
discretion in determining the appropriate amount of attorney's fees to
be awarded under division (C)(1) or (2) of this section. In
exercising that discretion, the court shall
consider at least all of the following: the degree to which the
party partially prevailed, the reasonableness of the party's
action, the reasonableness of the arbitrator's decision, the
effort or lack of effort of the parties to reach a settlement, and
the good faith or lack of good faith of the parties. Sec. 1332.10. any right of action, remedy, or penalty under
section 1332.08 or 1332.09 of the Revised Code is in addition to
any right of action, remedy, or penalty otherwise available under
law. SECTION 2 . If any provision of law that constitutes the whole or
part of a codified section of law contained in this act, or if any
application of any provision of law that constitutes the whole or
part of a codified section of law contained in this act, is held
invalid, the invalidity does not affect other provisions of law or
application of provisions of law that can be given effect without
the invalid provision of law or application. To this end, the
provisions of law of which the codified sections contained
in this act are composed, and their applications, are
independent and severable.
|