Washington Parish Council

ORDINANCE _09-494________

Introduced on July13, 2009_______________________

Introduced by Dr. Charles A. Nassauer___

Public hearing held on ________________

ORDINANCE TO ESTABLISH FRANCHISE FEE ON HOLDERS OF A

STATE ISSUED CERTIFICATE OF FRANCHISE AUTHORITY TO

PROVIDE CALBE SERVICE OR VIDEO SERVICE IN

UNINCORPORATED WASHINGTON PARISH, TO PROVIDE FOR

PUBLIC, EDUCATIONAL, AND GOVERNMENTAL ACCESS

PROGRAMMING AND ACCESS SUPORT, AND TO OTHERWISE

PROVIDE WITH RESPECT TO THOSE MATTERS AUTHORIZED IN

CHAPTER 10-A OF TITLE 45 OF THE LOUISIANA REVISED

STATUES OF 1950, THE CONSUMER CHOICE FOR TELEVISION ACT.

WHEREAS, pursuant to Act No. 433 of the Thirty-Fourth Regular Session of the Louisiana Legislature, adopted June 21, 2008, the Legislature enacted Chapter 10-A of Title 45 of the Louisiana Revised Statutes of 1950, to be comprised of R.S. 45:1361 through 1378, relative to cable services and video services; to create the ‘Consumer Choice for Television Act’; to provide guidelines for cable services and video services; to provide for certificate of franchise authority to be distributed by the secretary of

state; to provide for franchise fees associated with cable services or video services; to provide for franchise fee audits and dispute resolutions; to provide for the distribution of these fees; to provide for a prohibition

against build-out requirements; to authorize a local governmental subdivision to regulate a certificate holder; to prohibit discrimination with regard to cable services or video services; to provide for public, educational, and governmental access programming streams and support; to provide for effect on local franchise agreements; to provide for prohibition of in-kind contributions of grants; to provide for

customer service standard; to provide for emergency alert services; to provide for indemnity; and to

provide for related matters; and

WHEREAS, pursuant to Act No. 433, R.S. 45:1362D provides that “....... the Legislature of

Louisiana intends that the Chapter occupy the entire field of cable and video service franchising regulation

In the state of Louisiana and, except as provided herein, shall preempt any ordinance, resolution, or

similar matter adopted by a local governmental subdivision that purports to address cable or video service franchising or regulation. This Chapter is enacted pursuant to the police powers ultimately reserved to the state by Article VI, Section 9 of the Constitution of Louisiana; and

WHEREAS, said Act provides for the issuance of a certificate of franchise authority by the

secretary of state, which shall be effective thirty days after issuance Said certificate grants the certificate holder with authority to provide cable service or video service in the specified local governmental

subdivision, to construct facilities along and over the public roads or public works or public rights of way

and along and parallel to any of the railroads and waters in the state whether owned, maintained, or

provided by a local governmental subdivision or the state in the delivery of that service, subject to the laws

of this state, including the lawful exercise of police powers of the local governmental subdivisions in

which the service is delivered; and

WHEREAS, R.S. 45:1363(9) defines an “Incumbent service provider” to mean any cable service

provider and video service provider providing cable service or video service in a particular municipality or

unincorporated area of a parish on the effective date of this Chapter. And, while R.S. 45:1365A provides

that any incumbent service provider is not subject to nor may it avail itself of the state-issued certificate

of franchise authority until the franchise expires, subsequent provisions allow for the issuance of a state

franchise certificate under the following circumstances: The filling of a statement of termination in the form of an affidavit with the secretary of state setting forth a mutually agreed upon date to terminate the existing

ORDINANCE 09______

franchise set by both the local governmental subdivision issuing the existing franchise and the incumbent

service provider subject to the existing franchise; The expiration, prior to renewal or extension, of i

existing franchise; Termination of its existing franchise, as provided in Subsection B of this Section; and

WHEREAS, Subsection B of R.S. 45:1365 allows any incumbent service provider the option of

terminating an existing franchise previously issued by a local governmental subdivision and to offer cable by the secretary of state. However, the incumbent service provider shall remain, under the terms and conditions of the terminated franchise, subject to and obligated for any indebtedness, liability, or obligation that is accrued, due, and owing to a local governmental subdivision at the time the incumbent service

provider terminates the existing franchise previously issued by said local governmental subdivision, and shall remain subject to the contractual rights, duties, and obligations incurred by the incumbent service provider under the terms and conditions of the terminated local franchise that are owned to any private

person, including a subscriber; and

WHEREAS, R.S. 45:1366A authorizes a local government subdivision to adopt an ordinance

requiring the holder of a state-issued certificate of franchise authority to pay a franchise fee not to exceed

five (5%) per cent of the holder’s gross revenues. Further, R.S. 45:1370B authorizes a local governmental subdivision to adopt an ordinance requiring all holders of a state-issued certificate of franchise authority

to pay public, educational, and governmental (PEG) access support in an amount up to one-half percent

of gross revenues; and

WHEREAS, R.S. 45:1369 provides in pertinent part as follows: A. Not later than one hundred twenty days after a request by a local governmental subdivision, the holder of a certificate shall provide

the local governmental subdivision in which it provides cable service or video service with capacity in its network to allow public, educational, and governmental (PEG) access programming streams or channels

for noncommercial programming consistent with this Section. B. (1) The holder of a certificate shall

designate a sufficient amount of capability on its cable system or wireline facilities used to distribute video programming services to allow for the provision of a comparable number of PEG access programming streams or channels a local governmental subdivision has activated under the franchise agreement of the incumbent service provider with the most subscribers in such local governmental subdivision as of the effective date of this Chapter.

THE PARISH OF WASHINGTON HEREBY ORDAINS that, in accordance with the provisions

of Act No. 433 of the Thirty-Fourth Regular Session of the Louisiana Legislature, adopted June 21, 2008, and Chapter 10-A of Title 45 of the Louisiana Revised Statutes of 1950, particularly R.S. 45:1361 through 1378, the following requirements shall be applicable to an incumbent service provider and the holder of

a state-issued certificate of franchise authority to provide cable service or video service in unincorporated Washington Parish:

(1) The holder of a state-issued Certificate of Franchise Authority to provide cable service or video

service in unincorporated Washington Parish is authorized to construct facilities along and over

the public roads or public works or public rights of way and along and parallel to any of the

railroads and waters in the state whether owned, maintained, or provided by Washington Parish

or the state in the delivery of that service, subject to the laws of this state, including the lawful

exercise of police powers of the governing authority of Washington Parish.

(2) An incumbent service provider and the governing authority of Washington Parish may agree

to terminate the existing franchise upon a mutually agreed upon date to terminate said franchise.

In such event, the mutually agreed upon termination shall not be construed to release the incumbent

service provider from any contractual rights, duties, and obligations incurred by the incumbent

ORDINANCE 09_______

service provider under the terms and conditions of the terminated franchise that are owed to any private person, including a subscriber.

(3) In the event that an incumbent service provider exercises the option of terminating an existing

franchise previously issued to it by Washington Parish, other than by mutual agreement of the

provider and the Parish, and to offer cable service or video service in Washington Parish under

a certificate of state franchise issued by the secretary of state, the incumbent service provider shall

remain, under the terms and conditions of the terminated franchise, subject to and obligated for any

indebtedness, liability, or obligation that is accrued, due, and owing to Washington Parish at the

time the incumbent service provider terminates the existing franchise previously issued by said

Parish, and shall remain subject to the contractual rights, duties, and obligations incurred by the

incumbent service provider under the terms and conditions of the terminated local franchise that

are owed to any private person, including a subscriber.

4) A holder of a state-issued Certificate of Franchise Authority to provide cable service or video

service in unincorporated Washington Parish shall pay Washington Parish a franchise fee of five

(5%) per cent of the holder’s gross revenues as defined by R.S. 45:1363 (8) and authorized by R.S.

45:1366. The time that the payment is due, the amount of the payment due and the supporting

statement are to be governed by the provisions of *1336.

5) A holder of state-issued Certificate of Franchise Authority shall provide two public,

educational or governmental access (PEG) channels to Washington Parish residents. The

Washington Parish Government Access channel shall be carried in the basic subscription service

package or tier on its existing channel number.

6) A holder of state-issued Certificate of Franchise Authority shall pay PEG access support to

Washington Parish in the amount of one-half (1/2%) per cent of gross revenues as provided in R.S.

45:1370. All payments made under this provision are paid in accordance with 47 U.S.C. 531,

541(a)(4)(B), and 542(g)(2)(C) and shall be used by Washington Parish as allowed by federal law

only to support the capital costs incurred for the construction and operation of PEG access

programming stream or channel content and facilities.

7) In accordance with the provisions of R.S. 45:1364, any person or entity seeking to provide cable

service or video service in unincorporated Washington Parish after the effective date of Act No.

433 shall simultaneously provide Washington Parish with a copy of the application filed with the

secretary of state for a state-issued certificate of franchise authority. An incumbent service provider exercising its termination option shall file a statement of termination with the secretary of state in

the form of an affidavit containing the information required by R.S. 45:1364(B) and submit copies

of such filing to Washington Parish. Any documents that are required by this ordinance and/or

state statute to be provided to Washington Parish shall be delivered to the office of the Parish

President, either by hand delivery or certified mail.

8) Upon the filing of a copy of the application or statement of termination as provided for in

paragraph (7) herein above, a copy of this ordinance shall be provided to the holder of a state-

issued certificate of franchise authority, which shall serve as notice of this ordinance for all

purposes set forth in Act No. 433, including notice of the established franchise fee and of the

Parish’s request that the holder of a certificate provide Washington Parish with capacity in its

network to allow PEG access programming consistent with this ordinance.

ORDINANCE 09________

CONFLICTS: Recognizing that the Legislature of Louisiana intends that Chapter 10-A of Title 45 occupy the entire field of cable and video service franchising regulation in the state of Louisiana

and, except as provided therein, shall preempt any ordinance, resolution, or similar matter, adopted by a local governmental subdivision that purports to address cable or video service franchising or regulation, in the event of a conflict between any provision of this ordinance and the provisions of Act No. 433, R.S. 45:1361 through 1378, the provisions of Act. No. 433 shall be controlling.

REPEAL: All ordinances or parts of Ordinances in conflict herewith are hereby repealed.

SEVERABILITY: If any provision of this Ordinance shall be held to be invalid, such

invalidity shall not affect other provisions herein which can be given effect without the invalid provision and to this end the provisions of this Ordinance are hereby declared to be severable.

EFFECTIVE DATE: This Ordinance shall become effective fifteen (15) days after adoption.

MOVED FOR ADOPTION BY: ____________________, SECONDED BY:__________________

WHEREUPON THIS ORDINANCE WS SUBMITTED TO A VOTE AND RESULTED IN THE FOLLOWING:

YEAS:

NAYS:

ABSTAIN:

ABSENT:

THIS ORDINANCE WAS DECLARED ADOPTED AT A REGULAR MEETING OF THE PARISH COUNCIL ON THE _________ DAY OF ____________, 2009.

______________________________________

DR. CHARLES A. NASSAUER, CHAIRMAN

WASHINGTON PARISH COUNCIL

Delivered to the Parish President on ______________________, 2009 ___________.

Returned to the Clerk of Council on ______________________, 2009____________.

___________________________________________

RICHARD N. THOMAS, JR., PARISH PRESIDENT

WASHINGTON PARISH GOVERNMENT

I hereby certify that the above and foregoing is a true and correct copy of an ordinance adopted at a regular meeting of the Washington Parish Council held on _____________, _______________, 2009 in Franklinton, Louisiana.

________________________________

SHARON LYONS, COUNCIL CLERK

WASHINGTON PARISH

ORDINANCE 09-________