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Ordinance 29680006.080.003E WSS:smh:are 01/04/94 ORDINANCE NO. 2968 AN ORDINANCE OF THE CITY OF EDMONDS, WASHINGTON, TO ADD A NEW CHAPTER 3.60 PROVIDING FOR REGULATION OF CABLE TELEVISION RATES IN ORDER TO PROVIDE FOR THE REGULATION OF BASIC SERVICE TIER RATES AND RELATED EQUIPMENT, INSTALLATION AND SERVICE CHARGES OF ANY CABLE TELEVISION FRANCHISED BY THE CITY OF EDMONDS, AND FIXING A TIME WHEN THE SAME SHALL BECOME EFFECTIVE. WHEREAS, on October 5, 1992, Congress enacted the Cable Television Consumer Protection and Competition Act of 1992 (hereinafter "Act "), which, among other things, provided that the basic service tier rates and the charges for related equipment installation and services of the cable television system (hereinafter "Basic Service Rates and Charges ") shall be subject to regulation by a franchising authority in accordance with the regulations prescribed by the Federal Communications Commission (hereinafter "FCC "); and WHEREAS, on April 1, 1993, the FCC prescribed such regulations in the Report and Order, in the Matter of Implementa- tion of Sections of Cable Television Consumer Protection and Competition Act of 1992: Rate Regulation, MM Docket 92 -266, FCC 93 -177 (released May 3, 1993) (hereinafter referred to as "FCC Rate Regulations "); and WHEREAS, the City of Edmonds (hereinafter the "City ") is a franchising authority with the legal authority to adopt and the WSS64361.1 -I- personnel to administer regulations with respect to the Basic Service Rates and Charges of any cable television system operating in the City, including, without limitation, the system currently being operated by the Edmonds Cable Company (hereinafter the "Company ") pursuant to applicable franchising documents (herein- after "Franchise "); and WHEREAS, the City desires to regulate the Basic Service Rates and Charges of the Company and other cable television systems operating in the City and shall do so in accordance with the FCC Rate Regulations, notwithstanding any different or inconsistent provisions in the Franchise; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF EDMONDS, WASHINGTON DO ORDAIN AS FOLLOWS: Section 1. The Edmonds City Code is hereby amended by the adoption of a new Chapter 3.60 relating to the regulation of basic service rates to read as follows: Chapter 3.60 - Regulation of Basic Service Rates of the Cable Franchise 3.60.010 Definitions of Generally Applicable Terms. A. Benchmark rate shall mean a target (benchmark) rate established by the FCC and currently applicable to a franchise operating in the City of Edmonds. B. Company shall mean any individual company or company holding a franchise for the operation of a cable television system within the City limits. C. FCC shall mean the Federal Communications Commission. WSS64361.1 -2- D. FCC regulation shall mean any duly established federal regulation covering the activities of a cable television franchise and its relation with the City. Such term shall include at a minimum the final rules promulgated as MM Docket 92- 266, FCC 93 -177 codified as 47 CFR §§ 76.990 - 985 as the same exist or are hereinafter amended. E. Equipment is hereby defined to include converter boxes, remote control units, connections for additional outlets and cable home wiring. F. Franchise shall mean all ordinances, regulations, laws and franchise documents governing the activities of a company authorized by the City to provide cable television services in the City of Edmonds. 3.60.020 Designation of Staff Contact. In accordance with the FCC Rate Regulations, the Mayor has designated the Community Service Director as the appropriate staff person to execute on behalf of the City and file with the FCC such certification forms or other instruments that are now or may hereafter be required pursuant to the FCC regulations in order to enable the City to regulate Basic Service Rates and other related charges. 3.60.030 Adoption of FCC Regulations. The regulation of Basic Service Rates and Charges of the Company shall be undertaken in accordance with adopted FCC Rate Regulations as the same exist or are hereafter amended. Such regulations are generally codified at 47 Code Federal Register §§ 76.900 -985. In the event of conflict between any City procedure or these ordinances and the Regulations, such Regulations shall control. 3.60.040 Rates Subject to Regulations. The City Council has been certified to regulate Basic Service Rates which include the rate for service for the provision of all local broadcast signals as well as the public, educational and governmental access channels required pursuant to FCC regulation and any WSS64361.1 -3- other programming services that the Company chooses to include in its basic service rate along with: A. All equipment and installation used to receive basic service, even if that equipment is also used to receive other regulated and /or unregulated services; B. The installation and monthly use of connections for additional receivers. 3.60.050 Initial Application. Following the written notice provided to the Company, the cable operator shall have thirty (30) days after receipt of such notice to file its rate justification with the franchising authority on FCC Form 393. The initial rate schedule shown on Form 393 shall be considered by the City Council within thirty (30) days after receipt of the form. The Council may make a rate determination or issue a brief order within the thirty (30) day period notifying the Company that the City Council requires additional time to make a rate decision. If the City Council requires additional time to make its rate decision, it may have up to ninety (90) additional days to review a rate request based upon FCC benchmark regulation and up to one hundred and fifty (150) additional days to review a Cost -of- Service showing. 3.60.060 Future Rate Increases. Future requests for rate increases shall be considered in a timely fashion in accordance with FCC regulation. 3.60.070 Rate Decisions. If the City Council determines that any proposed rate is unreasonable, it may: A. Order a reduction in such rate or rates; B. Prescribe a reasonable rate; C. Order a rate refund; or D. Impose fines or monetary forfeiture to the extent permitted under state law. WSS64361.1 -4- Such decisions shall be based solely on the record before the City Council. 3.60.080 Notification of Decision. The City Council's decision shall be in writing mailed to the company and interested party who has filed a written objection and shall be posted and otherwise made available to the public through the office of the City Clerk whenever the City Council: A. Disapproves an initial rate for Basic Service or for related equipment or installation of services; B. Disapproves a request for a rate increase; or C. Approves a request for an increase over the objections of an interested party. A written decision shall not be required for approval of an unopposed existing or proposed rate for Basic Service or equipment. 3.60.090 Notification of Filincr. Upon receipt of a request for establishment of initial rate or future rate increases, the City Clerk shall cause to be published in the City's official newspaper notice of the said filing. Copies of the filing shall be maintained in the office of the City Clerk. Any interested party may file a written objection to the proposed increase, provided such written objections shall be filed in the Office of the City Clerk ten (10) calendar days prior to the date set for hearing. 3.60.100 Hearing Procedure: Benchmark Rate. A. Whenever the Company shall propose adoption of a benchmark rate the following shall apply: 1. The City Council shall set a hearing date, providing published notice at least ten (10) calendar days in advance of such hearing by publication in the City's - official newspaper. The Company shall WSS64361.1 -5- also provide a notification of the pending rate or rate increase request on its public access or other channel devoted to public notification. 2. Formal rules of evidence shall not apply to the public hearing and it shall be conducted in accordance with normal Council hearing procedures. Council shall afford the Company and all interested persons a reasonable opportunity to be heard. 3. If the cable company has submitted a rate schedule based on benchmark formulas and calculations, the City Council may not prescribe a rate lower than that permitted in the FCC Benchmark Rate Tables or more than ten percent (10 %) less than the cable company's September 30, 1992 per channel rate, whichever is higher. 4. The cable company shall first make its presentation, followed by the presentation of the City staff entering its analysis and recommendations, if any. Then all interested parties who have filed an objection to the rate increase shall be heard. Finally, members of the public shall be heard. The staff should be given a brief opportunity to respond and the Company may conclude with rebuttal, addressing new information raised by the staff, interested parties or the public. The Mayor shall set reasonable time limits for the presentation of the respective parties, provided that the time established for individual public comments may WSS64361.1 -6- be limited to three (3) minutes per person. 3.60.110 Notice and Hearing Procedures: Cost of Service Showing. The general hearing procedures outlined in S 3.60.100 shall apply to an application by the Company for a Basic Service Rate above the benchmark rate provided that: A. The Company shall submit a Cost -of- Service showing prepared in accordance with FCC regulations sufficient to support a finding that the rates are reasonable. It shall make ten (10) copies available in conjunction with its initial application for public inspection and use at the hearing. B. If the cable company submits a Cost -of- Service showing, that showing supersedes any benchmark /rollback provisions established by the FCC. The City Council may prescribe whatever rate it finds justified by the Cost -of- Service showing, utilizing generally- accepted accounting principles, utility rate regulation principles, and the review of criteria in 47 CFR SS 76.922 to 76.925 as the same exist or are hereafter amended, even if that rate is below the system's benchmark and more than ten percent (10 %) below the system's September 30, 1992 rates. 3.60.120 Refunds. The City may order the Company to refund to subscribers that portion of previously paid rates determined to be unreasonable. However, the Company's liability for refunds is generally limited to a one -year period and shall not go beyond September 1, 1993, the effective date of the FCC rules. 3.60.130 Use of Administrative Hearing Officer. The City Council may, in its sole discretion, elect to have its hearing con- ducted by its hearing examiner. In the event that a hearing is conducted by the hearing examiner, the hearing examiner shall present his or her proposed findings of fact, conclu- sions and recommendations to the City Council. WSS64361.1 -7- Prior to adoption of such findings, the City Council shall hold a public hearing at which the Company, any interested parties who filed an objection to the rate increase, and any member of the public may be heard. The pur- pose of this public hearing will be for the Company, interested parties and the public to comment on the proposed findings and recommen- dations and shall not itself be an evidentiary hearing. Having heard the comments of the Company, interested parties and the public, the City Council may adopt the recommendations of the hearing examiner, reverse or modify the hearing examiner's determination based upon the record before the hearing examiner, or remand the matter back to the hearing examiner for the taking of further evidence and testimony. 3.60.140 Appeals. An appeal from any order or decision of the City Council regarding any rate increase shall be solely to the FCC pursuant to 47 CFR § 76.944 as the same exists or is hereafter amended. Such appeal shall be filed within thirty (30) days. Appeals from other decisions of the City Council regarding the franchise shall be filed in the Snohomish County Superior Court within ten (10) business days of the date notice of decision is issued. Nothing herein shall be interpreted to limit the right of any citizen or the City to file a complaint with the FCC regarding any company activity in accordance with 47 CFR § 76.953 et seg. Section 2. The City Clerk is hereby authorized and directed to provide notice to any company holding a franchise from the City of Edmonds that the City has been authorized to regulate the rates the system charges for Basic Cable Service and all equip- ment, installation and other services used by Basic Service and that the City has adopted the requisite rules regarding rate regu- lation by the adoption of this ordinance. WSS64361.1 -8- The City Clerk shall further instruct the franchisee that, within thirty (30) days of receipt of a copy of this ordinance the Company shall file a completed FCC Form 393 justifying the current rates for Basic Service and related equip- ment, installation and other services. Section 3. Effective Date. This ordinance, being an exercise of a power specifically delegated to the City legislative body, is not subject to referendum, and shall take effect five (5) days after passage and publication of an approved summary thereof consisting of the title. ATTEST /AUTHENTICATE: C TY CLERK, ONDA J. MARCH APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY: . SCOTT APPROVED: i FILED WITH THE CITY CLERK: 01/04/94 PASSED BY THE CITY COUNCIL: 01 /18/94 PUBLISHED: 01/23/94 EFFECTIVE DATE: 01/28/94 ORDINANCE NO. 2968 WSS64361.1 -9- Affidavit of Publication STATE OF WASHINGTON, ss COUNTY OF SNOHOI LISH, The undersigned, being first duly sworn on oath deposes and says that she is Principal Clerk of THE HERALD, a daily newspaper printed and published in the City of Everett, County of Snohomish, %MARY of ORDINANCE and State of Washington; that said newspaper is a newspaper of of the C�tt�y of general circulation in said County and State; that said newspaper 2dmonds, Was ,to- the 18th day of January, has been approved as a legal newspaper by order of the Superior the City Council of the of Edmonds, passed. nonce No. 2968. A Court of Snohomish County and that the notice ......... ............................... nary of the content of .- Su.mmary ... of ... Ordinance No. 2968 City of Edmon.ds ... ................... a� r EA ME WHF4 a printed coy of which is hereunto attached was p published in said E SHALL BECOME Ei text of this newspaper proper and not in supplement form, in the regular and will be mailed upon' this 19th day of entire edition of said paper on the following days and times, namely: D94. )A J. MARCH erk January 23, 1994. 1 January,.. 2 3- 1__..19.9- 4 .................................... ..................... ............................................................................ and that Isaid wspaper was regularly distributed to its ubscribers durin said Mood. t/ L� L4X Principal Clerk Subscribed and sworn to before me this ......2.4th day o - -- ...... J anu .%1sh r 199A... ..................... ......... . - - - -..- .................................. Notary Public in and foe of Washington, residing at Everett, Snounty. c q�F s- ss -s4V ,�0 G� OF 'NA Sri a % B -2 -1