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.
|
(127th General Assembly)
(Amended Substitute Senate Bill Number 117)
AN ACT
To amend section 153.64, to enact sections 1332.21,
1332.22, 1332.23, 1332.24, 1332.25, 1332.26,
1332.27, 1332.28, 1332.29, 1332.30, 1332.31,
1332.32, 1332.33, and 1332.34, and to repeal
sections 505.90, 505.91, and 505.92 of the Revised
Code to provide for the issuance of video service
authorizations by the Director of Commerce.
Be it enacted by the General Assembly of the State of Ohio:
SECTION 1. That section 153.64 be amended and sections
1332.21, 1332.22, 1332.23, 1332.24, 1332.25, 1332.26, 1332.27,
1332.28, 1332.29, 1332.30, 1332.31, 1332.32, 1332.33, and 1332.34
of the Revised Code be enacted to read as follows:
Sec. 153.64. (A) As used in this section:
(1) "Public improvement" means any construction,
reconstruction, improvement, enlargement, alteration, or repair
of
a building, highway, drainage system, water system, road,
street,
alley, sewer, ditch, sewage disposal plant, water works,
and all
other structures or works of any nature by a public
authority.
(2) "Public authority" includes the state, or a county,
township, municipal corporation, school district, or other
political subdivision, or any public agency, authority, board,
commission, instrumentality, or special district of or in the
state or a county, township, municipal corporation, school
district, or other political subdivision.
(3) "Underground utility facilities" includes any item
buried
or placed below ground or submerged under water for use in
connection with the storage or conveyance of water or sewage; or
electronic, telephonic, or telegraphic communications;
electricity; electric energy; petroleum products; manufactured,
mixed, or natural gas; synthetic or liquified natural gas;
propane
gas; or other substances. "Underground utility
facilities"
includes, but is not limited to, all operational
underground
pipes, sewers, tubing, conduits, cables, valves,
lines, wires,
manholes, and attachments, whether owned by any
public or private
or profit or nonprofit person, firm,
partnership, company,
corporation, joint stock association, joint
venture, or voluntary
association, wherever organized or
incorporated, except for a
private septic system in a single- or
double-family dwelling
utilized only for that dwelling and not
connected to any other
system.
(4) "Underground utility protection service" means a
notification center not an owner of an underground utility
facility, existing for the purpose of receiving notice from
public
authorities and from other persons that plan to prepare
plans and
specifications for, or engage in, public improvements
involving
digging, blasting, excavating, or other underground
construction
activities and distributing this information to its
members.
"Registered underground utility protection service"
means an
underground utility protection service registered with
the
secretary of state and the public utilities commission of
Ohio
pursuant to division (F) of this section.
(5) "Owner of underground utility facility" does not
include
telephone companies classified as medium or small under
rule
4901-7-01 of the Ohio Administrative Code, owners of
pipelines
that conduct liquid petroleum products, or cable
television
companies as defined in division (B) of section 505.90
of the
Revised Code to the extent that it requires membership in
an
underground utility protection service.
(6) "Construction area" means the area delineated on the
plans and specifications for the public improvement within which
the work provided for in the contract will be performed.
(B) In any public improvement which may involve
underground
utility facilities, the public authority, prior to
preparing plans
and specifications, shall contact the registered
underground
utility protection services and the owners of
underground utility
facilities that are not members of a
registered underground
utility protection service for the
existence and location of all
underground utility facilities
within the construction area. The
public authority shall
include, in the plans and specifications
for such improvement,
the identity and location of the existing
underground utility
facilities located in the construction area as
provided to the
public authority by the owner of the underground
utility facility
and the name, address, and telephone number of
each owner of any
underground utility facilities in the
construction area that does
not subscribe to a registered
underground utility protection
service. Any anticipated temporary
or permanent relocation of
underground utility facilities deemed
necessary by the public
authority shall be negotiated or arranged
by the public authority
with the owners of the underground utility
facilities prior to
the start of construction. If a temporary or
permanent
relocation of utility facilities is necessary, the owner
of the
underground utility facility shall be given a reasonable
time to
move such utility facilities unless the contractor to whom
the
contract for a public improvement is awarded or its
subcontractor
agrees with the owner of the underground utility
facility to
coordinate relocation with construction operations.
The public
authority, within ten calendar days after award of a
contract for
a public improvement, shall notify in writing all
owners of
underground utility facilities known to be located in
the
construction area of the public improvement of the name and
address of the contractor to whom the contract for the public
improvement was awarded. Where notice is given in writing by
certified mail, the return receipt, signed by any person to whom
the notice is delivered, shall be conclusive proof of notice.
(C) The contractor to whom a contract for a public
improvement is awarded or its subcontractor, at least two working
days, excluding Saturdays, Sundays, and legal holidays, prior to
commencing construction operations in the construction area which
may involve underground utility facilities, shall cause notice to
be given to the registered underground utility protection
services
and the owners of underground utility facilities shown
on the
plans and specifications who are not members of a
registered
underground utility protection service, in writing, by
telephone,
or in person. Where notice is given in writing by
certified mail,
the return receipt, signed by any person to whom
the notice is
delivered, shall be conclusive proof of notice.
The owner of the
underground utility facility, within forty-eight
hours, excluding
Saturdays, Sundays, and legal holidays, after
notice is received,
shall stake, mark, or otherwise designate the
location of the
underground utility facilities in the
construction area in such a
manner as to indicate their course
together with the approximate
depth at which they were installed.
The marking or locating shall
be coordinated to stay
approximately two days ahead of the planned
construction.
(D) If the public authority fails to comply with the
requirements of division (B) of this section, the contractor to
whom the work is awarded or its subcontractor complies with the
requirements of division (C) of this section, and the contractor
or its subcontractor encounters underground utility facilities in
the construction area that would have been shown on the plans and
specifications for such improvement had the registered
underground
utility protection service or owner of the
underground utility
facility who is not a member of a registered
underground utility
protection service whose name, address, and
telephone number is
provided by the public authority been
contacted, then the
contractor, upon notification to the public
authority, is entitled
to an increase to the contract price for
itself or its
subcontractor for any additional work that must be
undertaken or
additional time that will be required and is
entitled to an
extension of the completion date of the contract
for the period of
time of any delays to the construction of the
public improvement.
In the event of a dispute as to the application of this
section, procedures may be commenced under the applicable terms
of
the construction contract, or if the contract contains no
provision for final resolution of the dispute, pursuant to the
procedures for arbitration in Chapter 2711. of the Revised Code.
This section does not affect rights between the contractors
and the public authority for any increase in contract price or
additional time to perform the contract when the public authority
complies with division (B) of this section.
Any public authority who complies with the requirements of
division (B) of this section and any contractor or its
subcontractor who complies with the requirements of division (C)
of this section shall not be responsible to the owner of the
underground utility facility if underground utility lines are
encountered not as marked in accordance with the provisions of
division (C) of this section by the owner of the underground
utility facility, unless the contractor or its subcontractor has
actual notice of the underground utility facility. Except as
noted
in this division, this section does not affect rights
between the
contractor or its subcontractor and the owner of the
underground
utility facility for failure to mark or erroneously
marking
utility lines. The public authority shall not make as a
requirement of any contract for public improvement any change in
responsibilities between the public authority and the owners of
the underground utility facilities in connection with damage,
injury, or loss to any property in connection with underground
utility facilities.
The contractor or its subcontractor shall alert immediately
the occupants of nearby premises as to any emergency that he the
contractor or subcontractor may
create or discover at or near such
premises. The contractor or
its subcontractor shall report
immediately to the owner or
operator of the underground facility
any break or leak on its
lines or any dent, gouge, groove, or
other damage to such lines
or to their coating or cathodic
protection, made or discovered in
the course of their excavation.
(E) This section does not affect rights between the public
authority and the owners of the underground utility facilities
for
responsibility for costs involving removal, relocation, or
protection of existing underground utility facilities, or for
costs for delays occasioned thereby.
(F) An underground utility protection service shall
register
with the secretary of state and the public utilities
commission of
Ohio, identifying its name, address, telephone
number, membership,
and other pertinent information. The
secretary of state and
commission shall establish procedures for
accepting such
registrations and providing information about
registrants to
public authorities on request.
Sec. 1332.21. As used in sections 1332.21 to 1332.34 of the
Revised Code:
(A) "Access to video service" means the capability of a video
service provider to provide video service at a household address
irrespective of whether a subscriber has ordered the service or
whether the service is actually provided at that address.
(B) "Basic local exchange service" has the same meaning as in
section 4927.01 of the Revised Code.
(C) "Cable operator," "cable service," "cable system,"
"franchise," and "franchising authority" have the same meanings as
in the "Cable Communications Policy Act of 1984," Pub. L. No.
98-549, 98 Stat. 2780, 2781, 47 U.S.C. 522, as amended by the
"Telecommunications Act of 1996," Pub. L. No. 104-104, 110 Stat.
56.
(D) "Competitive video service agreement" means any
agreement, memorandum of understanding, or other document that
provides or has the effect of providing, whether or not as a
franchise, authorization by a municipal corporation or township
for the provision of video service within its boundaries by a
person using telecommunications facilities to provide that
service.
(E) "Household" means, consistent with the regulations of the
bureau of the census of the United States department of commerce,
a house, an apartment, a mobile home, a group of rooms, or a
single room that is intended for occupancy as separate living
quarters. "Separate living quarters" are those in which the
occupants live and eat separately from any other persons in the
building and that have direct access from the outside of the
building or through a common hall.
(F) "Low-income households" means those residential
households that are located within the video service provider's
video service area and have an average annual household income of
less than thirty-five thousand dollars based on United States
census bureau estimates on January 1, 2007.
(G) "PEG channel" means a channel, for public, educational,
and governmental programming, made available by a video service
provider or cable operator for noncommercial use.
(H) "Telecommunications service" has the same meaning as in
the "Telecommunications Act of 1996," Pub. L. No. 104-104, Title
I, Section 3, 110 Stat. 60, 47 U.S.C. 153.
(I) "Video programming" has the same meaning as in the "Cable
Communications Policy Act of 1984," Pub. L. No. 98-549, 98 Stat.
2781, 47 U.S.C. 522.
(J) "Video service" means the provision of video programming
over wires or cables located at least in part in public
rights-of-way, regardless of the technology used to deliver that
programming, including internet protocol technology or any other
technology. The term includes cable service, but excludes video
programming provided to persons in their capacity as subscribers
to commercial mobile service as defined in the "Telecommunications
Act of 1996," Pub. L. No. 104-104, Title VII, Sections 704(a) and
705, 110 Stat. 61, 151, 153, 47 U.S.C. 332; video programming
provided solely as part of and via a service that enables users to
access content, information, electronic mail, or other services
offered over the public internet; and signals distributed by a
cable television system to paying subscribers in the
unincorporated area of a township prior to October 1, 1979, as
authorized under section 505.91 of the Revised Code as that
section existed prior to its repeal by S.B. 117 of the 127th
general assembly, unless a franchise was subsequently issued to
the same company as authorized under that section.
(K) "Video service area" means the service area specified
pursuant to divisions (A) and (B) of section 1332.25 of the
Revised Code.
(L) "Video service network" means wires or cables and
associated facilities or components used to deliver video service
and includes a cable system.
(M) "Video service provider" means a person granted a video
service authorization under sections 1332.21 to 1332.34 of the
Revised Code.
Sec. 1332.22. The general assembly finds and declares all of
the following for the purposes of sections 1332.21 to 1332.34 of
the Revised Code:
(A) Video service brings significant daily benefits to this
state by providing news, education, and entertainment.
(B) This state's economy will be enhanced by investment in
new communications and video programming infrastructure, including
fiber optic and internet protocol technologies.
(C) Enhancing the existing broadband infrastructure and
increasing consumer access to robust and reliable broadband
products and services are important, statewide concerns.
(D) To date, there has been only minimal competitive entry by
telephone companies into the facilities-based video programming
market in this state, in part, because local franchise
requirements may present barriers to entry.
(E) Increased competition in the provision of video service
will provide new and more video programming choices for consumers
in this state, and new providers have stated their desire to
supply that service.
(F) The time-to-market interval is critical for new entrants
seeking to compete with incumbents.
(G) Local franchise and other requirements may present
inordinate delays for new entrants.
(H) This state can and should provide a uniform regulatory
framework by which persons can rapidly and expeditiously provide
video service to residents of this state regardless of their
jurisdictional locations, which framework will promote rapid
competitive entry into the video service market and encourage
additional, significant infrastructure investment.
(I) Maintaining an existing franchise in cases where new
entrants obtain video service authorizations is not appropriate
unless the incumbent chooses to maintain that franchise.
(J) The continued development of Ohio's video service market
and promotion of infrastructure investment are matters of
statewide concern and are properly subject to exercises of this
state's police power.
(K) By analogy to Am. Financial Servs. Assn. et al. v.
Cleveland, 112 Ohio St. 3d 170, 2006-Ohio-6043, citing Canton v.
State, 95 Ohio St.3d 149, 2002-Ohio-2005, syllabus, sections
1332.21 to 1332.34 of the Revised Code are intended as a
comprehensive legislative enactment operating uniformly throughout
this state, setting forth police regulations, and prescribing a
rule of conduct upon citizens generally.
Sec. 1332.23. (A) Except as otherwise provided in divisions
(B)(1) and (2) of this section, no person shall provide video
service in this state on or after the effective date of this
section except pursuant to a video service authorization issued
under section 1332.24 of the Revised Code. Nothing in sections
1332.21 to 1332.34 of the Revised Code equates authority to
construct and operate telecommunications facilities in a public
right-of-way to authority to provide access to video service.
(B)(1)(a) Subject to division (B)(2) of this section, a
person that offers service under a franchise or competitive video
service agreement in effect on the effective date of this section
may continue on and after that date to provide service within the
franchise area or the respective municipal corporation or
unincorporated area of a township pursuant to the terms and
conditions of the franchise or agreement. However, no such
franchise or agreement shall be renewed or extended beyond the
existing term of the franchise or agreement or its earlier
termination pursuant to the terms and conditions of the franchise
or agreement. With respect to such a franchise or competitive
video service agreement but only for the time the franchise or
agreement is in effect as provided under divisions (B)(1)(a) and
(2) of this section, the authority of a township under sections
505.90 to 505.92 of the Revised Code, as those sections existed on
the day before their repeal by Am. Sub. S.B. 117 of the 127th
General Assembly, shall continue, notwithstanding their repeal by
that act.
(b) Any person that is providing video service in this state
on the effective date of this section pursuant to the terms and
conditions of an expired franchise or competitive video service
agreement, or is otherwise providing video service on that date
other than as described in division (B)(1)(a) of this section, has
ninety days beginning on the effective date of this section to
file an application for a video service authorization under
section 1332.25 of the Revised Code.
(2) A person that offers service under a franchise or
competitive video service agreement pursuant to division (B)(1)(a)
of this section may apply, under any of the following
circumstances, under section 1332.25 of the Revised Code for a
video service authorization to provide video service within an
area served by its video service network on the effective date of
this section under that franchise or agreement:
(a) Not sooner than one hundred twenty days before the
expiration or termination of the person's franchise or competitive
video service agreement for that area in accordance with its terms
and conditions;
(b) After any other person provides or sells video service in
that area;
(c) After receiving notice pursuant to division (A) of
section 1332.27 of the Revised Code;
(d) After a determination by the federal communications
commission under 47 C.F.R. 76.907 that the person is subject in
that area to effective competition as defined in 47 C.F.R.
76.905(b).
Upon the effective date of a video service authorization
obtained by the person under division (B)(2) of this section, the
franchise or competitive video service agreement terminates, and
no provision of that franchise or agreement is enforceable.
(C) Video service constitutes cable service over a cable
system for the purposes of sections 1332.01 to 1332.10 of the
Revised Code. For purposes of division (B)(4) of section 4939.05
and divisions (A)(3) and (D)(2) of section 4939.08 of the Revised
Code, a municipal corporation that receives a video service
provider fee described in section 1332.32 of the Revised Code
constitutes a municipal corporation that charges a franchise fee,
and a video service authorization described in section 1332.24 of
the Revised Code constitutes a franchise between a cable operator
and a municipal corporation.
Sec. 1332.24. (A)(1) In accordance with section 1332.25 of
the Revised Code, the director of commerce may issue to any
person, or renew, a video service authorization, which
authorization confers on the person the authority, subject to
sections 1332.21 to 1332.34 of the Revised Code, to provide video
service in its video service area; construct and operate a video
service network in, along, across, or on public rights-of-way for
the provision of video service; and, when necessary to provide
that service, exercise the power of a telegraph company under
section 4931.04 of the Revised Code. The term of a video service
authorization or authorization renewal shall be ten years.
(2) For the purposes of the "Cable Communications Policy Act
of 1984," Pub. L. No. 98-549, 98 Stat. 2779, 47 U.S.C. 521 et
seq., a video service authorization shall constitute a franchise
under that law, and the director shall be the sole franchising
authority under that law for video service authorizations in this
state.
(B)(1) The director may investigate alleged violations of or
failures to comply with division (A) of section 1332.23, division
(C) of section 1332.25, division (C) or (D) of section 1332.26,
division (A), (B), or (C) of section 1332.27, division (A) of
section 1332.28, division (A) or (B) of section 1332.29, or
section 1332.30 or 1332.31 of the Revised Code, or complaints
concerning any such violation or failure. Except as provided in
this section, the director has no authority to regulate video
service in this state, including, but not limited to, the rates,
terms, or conditions of that service.
(2) In conducting an investigation under division (B)(1) of
this section, the director, by subpoena, may compel witnesses to
testify in relation to any matter over which the director has
jurisdiction and may require the production of any book, record,
or other document pertaining to that matter. If a person fails to
file any statement or report, obey any subpoena, give testimony,
produce any book, record, or other document as required by a
subpoena, or permit photocopying of any book, record, or other
document subpoenaed, the court of common pleas of any county in
this state, upon application made to it by the director, shall
compel obedience by attachment proceedings for contempt, as in the
case of disobedience of the requirements of a subpoena issued from
the court or a refusal to testify.
(C)(1) If the director finds that a person has violated or
failed to comply with division (A) of section 1332.23, division
(C) of section 1332.25, division (C) or (D) of section 1332.26,
division (A), (B), or (C) of section 1332.27, division (A) of
section 1332.28, division (A) or (B) of section 1332.29, or
section 1332.30 or 1332.31 of the Revised Code, and the person has
failed to cure the violation or failure after reasonable, written
notice and reasonable time to cure, the director may do any of the
following:
(a) Apply to the court of common pleas of any county in this
state for an order enjoining the activity or requiring compliance.
Such an action shall be commenced not later than three years after
the date the alleged violation or failure occurred or was
reasonably discovered. Upon a showing by the director that the
person has engaged in a violation or failure to comply, the court
shall grant an injunction, restraining order, or other appropriate
relief.
(b) Enter into a written assurance of voluntary compliance
with the person;
(c) Pursuant to an adjudication under Chapter 119. of the
Revised Code, assess a civil penalty in an amount determined by
the director, including for any failure to comply with an
assurance of voluntary compliance under division (C)(1)(b) of this
section. The amount shall be not more than one thousand dollars
for each day of violation or noncompliance, not to exceed a total
of ten thousand dollars, counting all subscriber impacts as a
single violation or act of noncompliance. In determining whether a
civil penalty is appropriate under division (C)(1)(c) of this
section, the director shall consider all of the following factors:
(i) The seriousness of the noncompliance;
(ii) The good faith efforts of the person to comply;
(iii) The person's history of noncompliance;
(iv) The financial resources of the person;
(v) Any other matter that justice requires.
Civil penalties collected pursuant to division (C)(1)(c) of
this section shall be deposited to the credit of the video service
enforcement fund in the state treasury, which is hereby created,
to be used by the department of commerce in carrying out its
duties under this section.
(2) Pursuant to an adjudication under Chapter 119. of the
Revised Code, the director may revoke, in whole or in part, the
video service authorization of any person that has repeatedly and
knowingly violated or failed to comply with division (A) of
section 1332.23, division (C) of section 1332.25, division (C) or
(D) of section 1332.26, division (A), (B), or (C) of section
1332.27, division (A) of section 1332.28, division (A) or (B) of
section 1332.29, or section 1332.30 or 1332.31 of the Revised Code
and that has failed to cure the violations or noncompliances after
reasonable written notice and reasonable time to cure. Such person
acts knowingly, regardless of the person's purpose, when the
person is aware that the person's conduct will probably cause a
certain result or will probably be of a certain nature. A person
has knowledge of circumstances when the person is aware that such
circumstances probably exist.
(3) The court shall conduct a de novo review in any appeal
from an adjudication under division (C)(1)(c) or (C)(2) of this
section.
(D) The public utilities commission has no authority over a
video service provider in its offering of video service or a cable
operator in its offering of cable or video service, or over any
person in its offering of video service pursuant to a competitive
video service agreement.
Sec. 1332.25. (A) An application made to the director of
commerce for a video service authorization under section 1332.24
of the Revised Code shall require and contain only the following:
(1) Specification of the location of the applicant's
principal place of business and the names of the applicant's
principal executive officers;
(2) Specification of the geographic and political boundaries
of the applicant's proposed video service area;
(3) A general description of the type or types of
technologies the applicant will use to deliver the video
programming, which may include wireline, wireless, or any other
alternative technology, subject, as applicable, to section 1332.29
of the Revised Code;
(4) An attestation that the applicant has filed or will
timely file with the federal communications commission all forms
required by that agency in advance of offering video service in
this state;
(5) An attestation that the applicant will comply with
applicable federal, state, and local laws;
(6) An attestation that the applicant is legally,
financially, and technically qualified to provide video service;
(7) A description of the applicant's customer complaint
handling process, including policies on addressing customer
service issues, billing adjustments, and communication with
government officials regarding customer complaints, and a local or
toll-free telephone number at which a customer may contact the
applicant.
(B) For the purpose of division (A)(2) of this section:
(1) The video service areas of video service providers may
overlap.
(2) A specified video service area shall be coextensive with
municipal, township unincorporated area, or county boundaries,
except as authorized under division (B)(3) or (4) of this section,
but nothing in sections 1332.21 to 1332.34 of the Revised Code
shall require a video service provider to provide access to video
service within the entire video service area.
(3) The specified video service area of a person using
telecommunications facilities to provide video service on the
effective date of this section or of any other person later so
using telecommunications facilities shall be the geographic area
in which the person offers basic local exchange service.
(4) Subject to division (C)(2) of section 1332.27 of the
Revised Code, the specified video service area of an applicant
cable operator that offers service under a franchise in effect on
the effective date of this section initially shall be, at minimum,
the franchise area established under that franchise.
(C) A video service provider shall immediately file an
application to amend its video service authorization with the
director to reflect any change in the information required under
division (A)(1), (2), or (3) of this section. An amendment
pursuant to division (A)(2) of this section shall include any new
delivery technology information required by division (A)(3) of
this section.
(D) Within thirty days after its filing or within thirty days
after the filing of supplemental information necessary to make it
complete, the director shall determine the completeness of an
application filed under division (A) or (C) of this section
relative to the respective requirements of divisions (A), (B), and
(C) of this section and, as applicable, shall notify the applicant
of an incompleteness determination, state the bases for that
determination, and inform the applicant that it may resubmit a
corrected application. The director shall issue a video service
authorization, authorization renewal, or amended authorization
within fifteen days after the director's determination that the
filed application is complete.
If the director does not notify the applicant regarding the
completeness of the application within the time period specified
in this division or does not issue the authorization requested by
a completed application within the applicable time period, the
application shall be deemed complete, and the authorization or
amended authorization deemed issued on the forty-fifth day after
the application's filing date.
(E) An applicant shall pay a two thousand dollar
nonrefundable fee for each application filed under division (A) of
this section and a one hundred dollar nonrefundable fee for each
application to amend filed under division (C) of this section.
Fees collected under this division shall be deposited to the
credit of the video service authorization fund in the state
treasury, which is hereby created, to be used by the department of
commerce in carrying out its duties under this section.
(F) No video service provider shall identify or make
reference to an application fee under division (E) of this section
on any subscriber bill or in conjunction with charging any fee to
the subscriber.
(G) An applicant may identify any information in its
application as trade secret information, and if, upon its written
request to the director, the director reasonably affirms all or
part of that information as trade secret information, the
information so affirmed does not constitute a public record for
the purpose of section 149.43 of the Revised Code.
Sec. 1332.26. (A) No political subdivision shall require a
video service provider to obtain from it any authority to provide
video service within its boundaries.
(B) Except as authorized under division (C) of this section
and under sections 1332.30 and 1332.32 of the Revised Code, no
political subdivision shall request anything of value from a video
service provider for providing video service; impose any fee,
license, or gross receipt tax on the provision of video service by
such a provider; or impose any franchise or other requirement on
the provision of video service by a video service provider,
including, but not limited to, any provision regulating rates
charged by a video service provider or establishing any build-out
requirement or requirement to deploy any facility or equipment.
(C) When requested to do so, a video service provider shall
assist a municipal corporation or township in addressing video
service subscriber complaints, in a manner consistent with the
provider's complaint handling process set forth in its application
pursuant to division (A)(7) of section 1332.24 of the Revised
Code. Nothing in sections 1332.21 to 1332.34 of the Revised Code
affects any authority granted under sections 1345.01 to 1345.13 of
the Revised Code.
(D) A video service provider shall meet all of the following
customer service standards:
(1) The provider shall restore video service within
seventy-two hours after a subscriber reports a service
interruption or other problem if the cause was not a natural
disaster.
(2) Upon a report by a subscriber of a service interruption
and if the interruption is caused by the video service provider
and lasts for more than fours hours in a given day, the provider
shall give the subscriber a credit in the amount of the cost of
each such day's video service as would be billed to the
subscriber.
(3) Upon a report by a subscriber of a service interruption
and if the interruption is not caused by the video service
provider and lasts for more than twenty-four consecutive hours,
the provider shall give the subscriber, for each hour of service
interruption, a credit in the amount of the cost of per hour video
service as would be billed to the subscriber.
(4) The provider shall give a subscriber at least thirty
days' advance, written notice before removing a channel from the
provider's video service, but no such notice is required if the
provider must remove the channel because of circumstances beyond
its control.
(5) The provider shall give a subscriber at least ten days'
advance, written notice of a disconnection of all or part of the
subscriber's video service, except if the disconnection has been
requested by the subscriber, is necessary to prevent theft of
video service, or is necessary to reduce or prevent signal leakage
as described in 47 C.F.R. 76.611.
(6) The provider shall not disconnect all or part of a
subscriber's video service for failure of the subscriber to pay
its video service bill, until the bill is at least forty-five days
past due.
(7) The provider shall give a subscriber at least thirty
days' advance, written notice before instituting an increase in
video service rates.
Sec. 1332.27. (A) Before it provides or sells video service
to one or more subscribers within its video service area or any
additional video service area under division (C) of section
1332.25 of the Revised Code, a video service provider shall
provide ten days' advance, written notice of that service or
additional service to the respective municipal corporation or
township and to every person providing video service in all or
part of that video service area.
(B) A video service provider may transfer its video service
authorization to a successor. Within ten days after completing the
transfer, the provider shall provide written notice to the
respective municipal corporation or township. The transfer is not
valid until the date that the successor files a complete affidavit
with the director of commerce containing the information specified
in division (A) of section 1332.25 of the Revised Code. The
director has no authority to act upon the notice or the completed
affidavit.
(C)(1) A video service provider may terminate video service
to its video service area, but only after providing ninety days'
advance, written notice to the director, affected subscribers, and
the respective municipal corporations or townships comprising the
video service area. The director has no authority to act upon the
notice.
(2) Notwithstanding division (C)(1) of this section, a video
service provider that provided video service in this state under a
franchise on the effective date of this section shall not abandon
the video service it provided within the franchise area to
subscribers served on that effective date, at least until the
franchise would have expired if not terminated under division (B)
of section 1332.23 of the Revised Code.
Sec. 1332.28. (A) Consistent with the "Telecommunications Act
of 1996," Pub. L. No. 104-104, Title III, Sections 303(a), 110
Stat. 61, 124, 47 U.S.C. 541(a)(3) and to prohibit discriminatory
practices against a group of potential residential subscribers, no
video service provider shall deny access to video service to any
group of potential residential subscribers in its video service
area because of the race or income of the residents in the local
area in which the group resides.
(B) It is an affirmative defense to a violation of division
(A) of this section if the video service provider can demonstrate
either of the following:
(1) Three years after the date it began providing video
service in its video service area, at least twenty-five per cent
of households with access to the provider's video service are
low-income households.
(2) Five years after the date it began providing video
service in its video service area and thereafter, at least thirty
per cent of the households with access to the provider's video
service are low-income households.
Sec. 1332.29. (A)(1) A video service provider that both uses
telecommunications facilities to provide video service and has
more than one million telephone access lines in this state shall
provide access to video service to at least:
(a) Twenty-five per cent of the households in its video
service area within two years after the date it began providing
video service in that area;
(b) Fifty per cent of the households in its video service
area within five years after the date it began providing video
service in that area, except that a video service provider need
not meet that fifty per cent requirement until two years after at
least thirty per cent of the households with access to the
provider's video service under its video service authorization
subscribe to the service for six consecutive months.
(2) A video service provider may comply with division
(A)(1)(a) or (b) of this section through the use of alternative
technology, except satellite technology, that offers service,
functionality, and content demonstrably similar to the service,
functionality, and content the provider otherwise provides through
its video service network.
(B) A video service provider shall file an annual report with
the director of commerce describing its compliance with division
(A) of this section or, as applicable, its progress toward that
compliance.
(C) A video service provider may apply to the director for a
waiver of or for an extension of time to comply with division
(A)(1) of this section. The director may grant the waiver or
extension only if the director determines that the video service
provider has made substantial and continual effort to comply and
determines that one or more of the following caused the provider's
inability to comply:
(1) The provider is unable to obtain access to public and
private rights-of-way under reasonable terms and conditions.
(2) Developments or buildings are not subject to competition
because of existing, exclusive service arrangements.
(3) Developments or buildings are inaccessible using
reasonable technical solutions under commercially reasonable terms
and conditions.
(4) A natural disaster prevents compliance.
(5) There are other factors beyond the provider's control.
If an extension of time is granted, the director shall
establish a new compliance deadline. If a waiver is granted, the
director shall specify the requirement or requirements waived.
Sec. 1332.30. (A)(1)(a) If a municipal corporation or
township has three or more PEG channels programmed on January 1,
2007, the person providing those channels pursuant to a franchise,
competitive video service agreement, ordinance, or resolution or
otherwise shall continue to provide those PEG channels, three of
which shall be on the person's basic cable service, with the
additional PEG channels on the person's basic cable service or on
any service tier viewed by more than fifty per cent of the
subscribers in the video service area. Any such additional channel
may be reclaimed if it is not substantially utilized. For the
purpose of divisions (A)(1)(a) and (B)(2) of this section, a PEG
channel is "not substantially utilized" when fewer than forty
hours of noncharacter-generated content are programmed on that
channel each week and less than sixty per cent of the programming
is nonrepeat and locally produced.
(b) If the municipal corporation or township has one or two
PEG channels programmed on January 1, 2007, the person providing
those channels pursuant to a franchise, competitive video service
agreement, ordinance, or resolution or otherwise shall continue to
provide the channel or channels, with one PEG channel on the
person's basic cable service and, as applicable, the second PEG
channel on the person's basic cable service or on any service tier
viewed by more than fifty per cent of the subscribers in the video
service area.
(2) A municipal corporation or township by written notice
shall require a person providing video service in the municipal
corporation or township on or after the effective date of this
section, other than a person described in division (A)(1)(a) or
(b) of this section, to provide the same number of PEG channels
under the same service tier conditions and subject to the same
channel reclamation as those required under division (A)(1)(a) or
(b) of this section of the incumbent person but, if there is more
than one such incumbent that provided PEG channels on January 1,
2007, the person shall provide the same number required of the
incumbent with the most recent obligation. The notice shall state
the appropriate number of PEG channels and the service tiers
required. Following receipt of that notice, the person shall
provide the PEG channels not later than one hundred twenty days
after the municipal corporation or township is able to deliver the
PEG channel content.
(3) Nothing in division (A) of this section precludes a
person and a municipal corporation or township from entering into
other arrangements for PEG channels, including agreements
increasing or decreasing the number of channels required under
division (A)(1)(a) or (b) of this section.
(B)(1) A municipal corporation or a township that has no PEG
channels programmed on January 1, 2007, and lies within a video
service provider's video service area may require the video
service provider by written notice to provide PEG channels
beginning after the provider initially provides video service
within the municipal corporation or unincorporated area of the
township. The video service provider shall provide the PEG
channels one hundred twenty days after the municipal corporation
or township is able to deliver the PEG channel content. The
provider may use any service tier viewed by more than fifty per
cent of the subscribers in the video service area to provide the
PEG channels.
(a) Except as provided in division (B)(2) of this section,
the number of required PEG channels shall not exceed three if the
respective municipal corporation or township has a population of
at least fifty thousand, or two if the population is less than
fifty thousand. If there is more than one video service provider
providing PEG channels in the municipal corporation or township,
the number of channels shall be the same for all the video service
providers.
(b) If a video service provider distributes video programming
to more than one municipal corporation or township through a
single headend or video hub office and the aggregate population of
the municipal corporations or townships is at least fifty
thousand, none of those municipal corporations or townships shall
require the provider to provide, in the aggregate, channel
capacity for more than three PEG channels. If the aggregate
population is less than fifty thousand, none of those municipal
corporations or townships shall require the provider to provide,
in the aggregate, channel capacity for more than two PEG channels.
(2) A video service provider may reclaim a PEG channel under
division (B) of this section that it determines is not
substantially utilized. At such time as the municipal corporation
or township that caused the establishment of the PEG channel can
later certify that the channel will be substantially utilized, the
video service provider, within one hundred twenty days after the
date the video service provider receives that certification, shall
restore the reclaimed channel as a PEG channel. However, the
provider need not carry that channel on any specified tier of
service.
(C) No municipal corporation or township shall require a
video service provider to provide any institutional network on its
video service network, except that a person that, pursuant to a
franchise, competitive video service agreement, ordinance, or
resolution or otherwise, provided any institutional network on
January 1, 2007, shall continue to provide the institutional
network until the obligation would have expired if not terminated
pursuant to division (B) of section 1332.23 of the Revised Code,
or, if earlier and as applicable, until January 1, 2012, or such
earlier date as may be specified in an ordinance or resolution in
effect on the effective date of this section. The provider shall
give the municipal corporation or township at least one hundred
twenty days' written advance notice of that termination. If the
obligation included terms regarding the infrastructure of the
institutional network upon the expiration of the obligation, the
video service provider shall honor those terms. Nothing in this
division precludes such a video service provider and a municipal
corporation or township from entering into other arrangements for
institutional networks.
(D) A video service provider shall accept PEG channel content
and programming under this section that, at the least, meets the
transmission standards of the national television standards
committee in effect on the effective date of this section.
(E)(1) The unfulfilled obligation of a person under a
franchise, competitive video service agreement, ordinance, or
resolution in effect on the effective date of this section to
provide monetary or other support to a municipal corporation or
township for PEG channel facilities shall continue until the
obligation would have expired if not terminated pursuant to
division (B) of section 1332.23 of the Revised Code or, if earlier
and as applicable, January 1, 2012, or such earlier date as many
be specified in an ordinance or resolution in effect on the
effective date of this section.
(2)(a) Each other person providing access to video service
within the municipal corporation or the unincorporated area of a
township after the effective date of this section shall have a pro
rata share of the same unfulfilled obligation to support PEG
channel facilities during the same time period as the incumbent
under division (E)(1) of this section, but, if there is more than
one such incumbent, each other person shall have the same
obligation as the incumbent with the most recent obligation.
(i) If the incumbent support is in the form of a percentage
of gross revenues or a per subscriber fee, the video service
provider shall provide that same level of support in that same
form.
(ii) If the incumbent support is in the form of a lump sum
payment without an offset to its video service provider fee, the
video service provider shall be responsible for a pro rata share
of that payment.
(iii) If the incumbent provides in-kind support, the video
service provider shall pay the municipal corporation or township a
pro rata share of the fair market value of that support.
The video service provider may identify and collect the
amount of any fees authorized by divisions (E)(2)(a)(i) or any
payment authorized under division (E)(2)(a)(ii) or (iii) of this
section and the cost of any content conversion, if applicable, as
a separate line item on the bills of its subscribers having
service addresses within the municipal corporation or
unincorporated area of the township.
(b) A video service provider's pro rata share of the
unfulfilled obligation under division (E)(2)(a)(ii) or (iii) of
this section shall be based on its proportion of video service
subscribers with service addresses in the municipal corporation or
unincorporated area of the township. For the purpose of
determining the pro rata shares, all persons under divisions
(E)(1) and (2) of this section shall report quarterly to the
municipal corporation or township the total number of subscribers
served within the municipal corporation or the unincorporated area
of the township. This information shall be treated as confidential
by the municipal corporation or township and shall be used only to
derive the pro rata shares.
(c) The person shall remit its pro rata share to the
municipal corporation or township quarterly, not sooner than
forty-five nor later than sixty days after the end of the
preceding calendar quarter. However, the person need not pay its
pro rata share unless the municipal corporation or township
provided notice to the person of the amount due. The municipal
corporation or township shall use the payments only as authorized
under federal law.
(F)(1) If a municipal corporation or township requires a
person to provide connectivity for PEG channel programming on
January 1, 2007, the person shall fulfill that obligation and
provide connectivity sufficient to connect its headend or video
hub office to the municipality's or township's PEG access channel
origination points existing as of January 1, 2007. The obligation
shall expire January 1, 2012, or such earlier date as may be
specified in an ordinance or resolution of the municipal
corporation or township in effect on the effective date of this
section or, if earlier, at the end of the most recent such
connectivity obligation of any person to the municipal corporation
or township. The person may use the most economically and
technologically efficient means of providing that capacity.
The person may identify and collect the amount of its costs
to provide connectivity as a separate line item on the bills of
its subscribers having service addresses in the municipal
corporation or unincorporated area of the township.
(2) During the time described in division (F)(1) of this
section, if the municipal corporation or township requests that a
PEG channel origination point existing as of January 1, 2007, be
relocated, the person may charge the municipal corporation or
township for the costs of constructing that part of a transmission
line, connecting the person's headend or video hub office to the
relocated point, that extends two hundred feet beyond the headend
or video hub, but not for the costs associated with the
transmission of the PEG programming. Also, during that time, the
person may charge for the construction costs associated with
additional origination points, but not for the costs associated
with the transmission of the PEG programming.
(G) Except as otherwise provided in this section, no
municipal corporation or township shall require a video service
provider to provide any funds, services, programming, facilities,
or equipment related to PEG channels. PEG channel operation and
programming shall be the sole responsibility of the municipal
corporation or township. Except as otherwise provided in this
section, the video service provider shall bear only the
responsibility for the transmission to subscribers of the PEG
channel programming once the programming is delivered to the video
service provider.
Sec. 1332.31. Not later than six months after the effective
date of its video service authorization, a video service provider
shall carry emergency interrupt service announcements transmitted
by local television broadcasters and shall transmit national,
state, and local emergency interrupt service announcements as
required by 47 C.F.R. 11.11 et seq. or as otherwise required by
the federal communications commission.
Sec. 1332.32. (A) Not sooner than forty-five nor later than
sixty days after the end of each calendar quarter, a video service
provider shall pay a video service provider fee to each municipal
corporation and each township in which it offers video service.
The fee shall be calculated quarterly by determining the
provider's gross revenue for the preceding calendar quarter as
described in division (B) of this section and multiplying the
result by the percentage specified in division (C)(1)(a) or (b) of
this section.
(B) Gross revenue shall be computed in accordance with
generally accepted accounting principles.
(1) Gross revenue shall consist of all of the following
revenue for the calendar quarter that is collected by the provider
for video service from all its subscribers having service
addresses within the municipal corporation or, respectively, the
unincorporated area of the township:
(a) Recurring monthly charges for video service;
(b) Event-based charges for video service, including, but not
limited to, pay-per-view and video-on-demand charges;
(c) Charges for rental of set top boxes and other video
service equipment;
(d) Service charges related to the provision of video
service, including, but not limited to, activation, installation,
and repair;
(e) Administrative charges related to the provision of video
service, including, but not limited to, service order and service
termination charges.
(2) Gross revenue shall not include any of the following:
(a) Any taxes, fees, or assessments that are collected by the
video service provider from video service subscribers for
pass-through to any federal, state, or local government agency,
including the video service provider fee authorized under this
section, the fee authorized under division (F) of section 1332.30
of the Revised Code, and the federal communication commission user
fee;
(b) Uncollectible charges, except that uncollectible charges,
all or part of which are written off as bad debt but subsequently
collected, less the expenses of their collection shall be included
in gross revenue in the quarter collected;
(c) Late payment charges;
(d) Maintenance charges;
(e) Charges for services other than video service, reasonably
identifiable on books or records the video service provider keeps
in the regular course of business or by other reasonable means,
that are aggregated or bundled with amounts billed to video
service subscribers, including, but not limited to, any revenue
received by a video service provider or its affiliates for
telecommunications service, information service, or the provision
of directory or internet advertising, including yellow pages,
white pages, banner advertising, and electronic publishing;
(f) Reimbursement by programmers of marketing costs actually
incurred by the video service provider;
(g) Advertising revenue, unless a municipal corporation
enacts an ordinance or a board of township trustees adopts a
resolution that uniformly applies to all video service providers.
For those purposes, "advertising revenue" means the net revenue
received by the video service provider for advertising on its
subscription-based video service within a municipal corporation or
the unincorporated area of a township. If such revenue is derived
under a regional or national compensation contract or arrangement
between the video service provider and one or more advertisers or
advertising representatives, the amount of revenue derived for a
municipal corporation or for the unincorporated area of a township
shall be determined by multiplying the total net revenue received
by the video service provider under the contract or arrangement by
the percentage resulting from dividing the number of subscribers
in the municipal corporation or unincorporated area of a township
by the total number of regional or national subscribers that
potentially receive the advertising under the contract or
arrangement. The municipal corporation or township shall promptly
notify affected video service providers of the ordinance or
resolution, which shall not take effect until the first day of the
first calendar quarter that begins more than thirty days after the
notice.
(h) Subject to division (B)(2)(g) of this section, any
revenue not expressly enumerated in division (B)(1) of this
section.
(C)(1)(a) If in the calendar quarter a franchise fee is
payable by a cable operator under a franchise in effect in a
municipal corporation or township as provided under division (B)
of section 1332.23 of the Revised Code, the percentage of gross
revenue payable in that calendar quarter by a video service
provider to the municipal corporation or township shall be the
same percentage of gross revenue payable in that calendar quarter
pursuant to that franchise, not to exceed five per cent. If there
is more than one such franchise of a cable operator in effect in
that quarter, the lowest such percentage shall be used.
(b) Otherwise, the percentage shall be zero or such higher
percentage, not to exceed five per cent, as is specified in an
ordinance or resolution that the municipal corporation or township
may enact or adopt for the purpose of this section.
(2) The municipal corporation or township shall provide
written notice to the video service provider of the appropriate
percentage under division (C)(1)(a) or (b) of this section within
ten days after it receives the notice required by division (A) of
section 1332.27 of the Revised Code that the video service
provider will commence to provide access to video service in the
municipal corporation or unincorporated area of the township. A
provider need not pay the fee unless the municipal corporation or
township provided that notice.
(D) A video service provider that pays a video service
provider fee pursuant to this section may identify and collect the
amount of that fee as a separate line item on the regular bill of
each of its video service subscribers that has a service address
within any portion of the municipal corporation or, respectively,
within the unincorporated area of the township.
Sec. 1332.33. (A) At its sole expense and not more often than
once per calendar year, a municipal corporation or township may
conduct an audit for the purpose of verifying the accuracy of a
video service provider's calculation of the video service provider
fees it paid to the municipal corporation or township in the audit
period. For the purpose of the audit, the video service provider
shall make available for inspection, at the location where such
records are kept in the normal course of business, those records
pertaining to its gross revenue as defined in division (B) of
section 1332.32 of the Revised Code. The provider need not retain
those records for longer than three years after the year for which
the fee was payable, unless the municipal corporation or township
has commenced an action under division (C) of this section.
(B) A video service provider shall pay any amounts found to
have been underpaid in the audit within thirty days after notice
and shall include interest on the underpayments as provided in
section 1343.03 of the Revised Code. However, payment need not be
made in that thirty-day period if the video service provider
brings an action under division (D) of this section.
(C)(1) No municipal corporation or township shall employ,
appoint, or retain any person to conduct an audit under division
(A) of this section for compensation that is dependent on the
dollar amount of the audit findings. Divisions (C)(1) and (2) of
this section do not prohibit or limit the hiring of legal counsel
on a contingency fee basis to enforce the findings of an audit.
(2) No person shall solicit or accept compensation that is
dependent in any manner upon the outcome of an audit under
division (A) of this section, including compensation dependent on
the audit findings or the recovery of fees or other payment by the
municipal corporation, township, or video service provider.
(D) An action by the municipal corporation or township or by
the video service provider to dispute the amount of video service
provider fee due based on the audit results shall be brought in a
court of competent jurisdiction not later than two years following
the end of the quarter to which the disputed amount relates.
(E) A municipal corporation or township shall be deemed to
accept as full payment any payment of a video service provider fee
that it does not challenge as provided under division (D) of this
section.
Sec. 1332.34. Nothing in sections 1332.21 to 1332.33 of the
Revised Code is intended to be inconsistent with the "Cable
Communications Policy Act of 1984," 98 Stat. 2779, 47 U.S.C. 521
to 573.
SECTION 2. That existing section 153.64 and sections 505.90,
505.91, and 505.92 of the Revised Code are hereby repealed.
|