                                 CODE OF VIRGINIA

REGULATION OF FEES, RATES AND SERVICES; PENALTIES (§ 15.2-2108.22)

Upon receiving a notice requesting an ordinance cable franchise pursuant to §
15.2-2108.21, a locality shall adopt or maintain one or more ordinances that
govern a cable operator who provides cable service under an ordinance cable
franchise. The requirements of any specific provision in any such ordinance
shall not exceed the requirements imposed in the same provision, if any, in any
existing cable franchise within the locality. Such ordinance or ordinances,
which shall be adopted after a public hearing, shall:

1. Require a cable operator to provide the locality with access to a number of
public, educational, and governmental access channels, equal to the lowest
number of such channels provided by any other cable operator in the same
franchise area of the locality. If the existing cable operator provides less
than three such public, educational, and governmental access channels pursuant
to a franchise agreement, the locality may require each cable operator to
provide up to three such channels. Any additional channels provided subject to
this provision shall be subject to the reclamation formula set forth below. In
addition, a locality may, by ordinance adopted after a public hearing, require a
cable operator to interconnect with any other cable operator to ensure the
carriage of required public, educational, and governmental access channels; if
the new cable operator and all existing cable operators cannot agree to an
interconnection agreement within 180 days of a request to interconnect by the
new cable operator, then the locality is authorized to determine an
interconnection point. The locality or its designee shall assume responsibility
for management, operation, and programming of such channels. A locality that
substantially utilizes its existing public, educational, and governmental access
channels may require a reasonable number of additional public, educational, and
governmental access channels by the enactment of an ordinance, after a public
hearing, so long as (i) the ordinance applies equally to all providers of cable
service within a franchise area, (ii) the total number of additional public,
educational, and governmental access channels does not exceed three channels in
the basic service tier, and (iii) the total number of public, educational, and
governmental access channels shall not exceed seven channels in the aggregate.
Notwithstanding the foregoing, but consistent with federal law, the locality and
a cable operator may enter into written agreements for the carriage of
additional public, educational, and governmental access channels, including
other arrangements for the carriage of such programming. Any additional public,
educational, and governmental access channel provided pursuant to this article
that is not utilized by the locality for at least eight hours a day shall no
longer be made available to the locality, but may be programmed at the cable
operator&#8217;s discretion. At such time as the locality can certify to the
cable operator a schedule for at least eight hours of daily programming for a
period of three months, the cable operator shall restore the previously
re-allocated channel. For purposes of this subdivision, a public, educational,
and governmental access channel shall be considered to be substantially utilized
when 12 hours are programmed on that channel each calendar day; in addition, at
least 33% of the 12 hours of programming for each business day on average over
each calendar quarter must be nonrepeat programming. For purposes of this
subdivision, nonrepeat programming shall include the first three videocastings
of a program and shall include programming on other public, educational, and
governmental access channels in that locality. Programming for purposes of
determining substantial utilization shall not include an alphanumeric scroll,
except that for purposes of requiring one or more additional public,
educational, and governmental access channels, an alphanumeric scroll shall be
included as programming on not more than one channel;

2. Require a cable operator to pay a franchise fee, remitted on the same
schedule as the least frequent schedule of an existing cable operator, but no
more frequently than quarterly, calculated by multiplying a franchise fee
percentage rate by the cable operator&#8217;s gross revenues in such franchise
area for the remittance period; however, the franchise fee rate shall (i) not
exceed 5% of such gross revenues and (ii) not exceed the lowest franchise fee
rate paid or provided by an existing cable operator in the locality. The
locality may further require that the cable operator make the franchise fee
payments to the locality no later than 45 days following the end of the
remittance period and require that the franchise fee payment be submitted with a
brief report prepared by a duly authorized representative of the cable operator
showing the basis for the computation. The locality shall have the right to
reasonably require further supporting information that does not exceed the
information required to be provided by existing cable operators in the locality;

3. Require a cable operator to pay a recurring fee, hereafter referred to as the
PEG Capital Fee, to support the capital costs of public, educational, and
governmental channel facilities, including institutional networks, provided that
the PEG Capital Fee is equal to the lowest recurring fee imposed on a per
subscriber or a percentage of gross revenue basis and paid by any existing cable
operator in the locality to support the capital costs of such facilities. The
PEG Capital Fee shall only be imposed on a per subscriber or a percentage of
gross revenue basis. If the existing cable operator has paid a lump sum capital
grant at award or renewal of its current franchise, or is providing in-kind
equipment in lieu of such a capital grant, to support public, educational, and
governmental channel facilities, including institutional networks, the locality,
by ordinance adopted after a public hearing, shall also impose an additional
monthly recurring fee to be known as the PEG Capital Grant Surcharge Fee on the
new cable operator equal to the lower of (i) 1.5% of the new cable
operator&#8217;s gross revenues derived from the operation of its cable system
in that locality or (ii) the lowest amount of capital contribution paid or
provided in-kind, as shown on the books of the cable operator, by an existing
cable operator in the locality (a) when such capital contribution is amortized
over the term of the existing cable operator&#8217;s franchise and (b) divided
by the number of subscribers or annual gross revenue of the existing cable
operator as shown on its most recent report to the locality, depending on
recovery methodology chosen by the locality. Both the PEG Capital Fee and the
PEG Capital Grant Surcharge Fee may only be collected by the locality for the
remainder of the shortest remaining franchise term of any existing cable
operator in the locality; however, at the end of such term the locality may
negotiate with all cable operators to set a new, recurring fee to support the
reasonable and necessary capital costs of public, educational, and governmental
channel facilities, including institutional networks, that shall be imposed on
all cable operators such that the fee applies equally to all of the customers of
all cable operators in the locality. At the end of such term, no cable operator
shall be required to provide any further in-kind public, educational, and
governmental access channels, including institutional network, support. If the
cable operators and the locality cannot agree on such a recurring capital cost
fee, the locality, by ordinance adopted after a public hearing, may impose a
recurring fee, calculated on a per subscriber or percentage of gross revenue
basis, to support the reasonable and necessary capital costs of public,
educational, and governmental channel facilities, including institutional
networks; however, such fee may not exceed the PEG Capital Fee previously
imposed on cable operators by the locality. Any and all fees permitted under
this subdivision shall be paid by the cable operator to the locality on the same
schedule as franchise fees are paid. Nothing in this subdivision shall be
construed to permit a locality to require cable operators to pay capital grants
at the time of the grant or renewal of a franchise or otherwise except for the
PEG Capital Grant Surcharge Fee specifically provided in this subdivision;

4. Require a cable operator to comply with the customer service requirements
imposed by the locality pursuant to 47 U.S.C. &#xA7; 552(a) (1) and this article
through the adoption of an ordinance after a public hearing. Any customer
service requirements imposed by the locality that exceed the requirements
established by the Federal Communications Commission under 47 U.S.C. &#xA7;
552(b) shall (i) not be designed so that the cable operator cannot also comply
with any other customer service requirements under state or federal law or
regulation applicable to the cable operator in its provision of other services
over the same network used to provide cable service, (ii) be no more stringent
than the customer service requirements applied to other cable operators in the
franchise area, and (iii) be reasonably tailored to achieve appropriate customer
service goals based on the technology used by the cable operator to provide
cable service;

5. Adopt procedures by which it will enforce the provisions of this article and
the applicable mandatory requirements of 47 U.S.C. &#xA7;&#xA7; 521-573 and the
regulations promulgated thereunder. Such procedures shall require the locality
to: (i) informally discuss the matter with the cable operator in the event that
the locality believes that a cable operator has not complied with this article
or the applicable mandatory requirements of 47 U.S.C. &#xA7;&#xA7; 521-573 and
(ii) notify the cable operator in writing of the exact nature of the alleged
noncompliance if the discussions described in the foregoing clause (i) do not
lead to resolution of the alleged noncompliance. The cable operator shall have
15 days from receipt of this written notice to: (a) respond to the locality, if
the cable operator contests, in whole or in part, the assertion of
noncompliance; (b) cure such default; or (c) in the event that, by the nature of
default, such default cannot be cured within the 15-day period, initiate
reasonable steps to remedy such default and notify the locality of the steps
being taken and the projected date that they will be completed. The locality
shall schedule a public hearing in the event that the cable operator fails to
respond to the written notice pursuant to these procedures or in the event that
the alleged default is not remedied within 30 days of the date projected above
if the locality intends to continue its investigation into the default. The
locality shall provide the cable operator at least 30 business days prior
written notice of such hearing, which will specify the time, place, and purpose
of such hearing, and provide the cable operator the opportunity to be heard;

6. Adopt a schedule of uniform penalties or liquidated damages that it may
impose upon any cable operator with an ordinance cable franchise when the
locality determines that the cable operator has failed to materially comply with
(i) customer service standards; (ii) carriage of public, educational, and
governmental channels; (iii) reporting requirements; or (iv) timely and full
payment of the franchise fee or the fee assessed for the provision of public,
educational, or governmental access channels, including institutional networks.
Any penalty or liquidated damage for any of the foregoing violations shall be
the same penalty or liquidated damage already established for a cable operator
in the same franchise area, if any. In addition, a locality shall not impose any
penalty or liquidated damage adopted pursuant to this subdivision until the
cable operator has been afforded a reasonable cure period between the time the
cable operator is notified of the violation and the penalty or liquidated damage
is imposed. A separate violation for purposes of this article and the ordinances
passed to implement this article as it pertains to customer service standards
shall be deemed to occur whenever the locality reasonably determines that a
separate customer service standard violation has occurred on one day; however,
the cable operator shall not be charged with multiple violations for a single
act or event affecting one or more subscribers on the same day. The locality may
charge interest at the legal rate as set forth in &#xA7; 6.2-301 for any amounts
due the locality by the cable operator in clause (iv) of this subdivision that
remain unpaid and undisputed;

7. Adopt procedures under which the locality may inspect and audit, upon 30 days
prior written notice, the books and records of the cable operator and recompute
any amounts determined to be payable under the ordinances adopted pursuant to
this article. The procedures adopted by the locality shall not exceed the
following requirements: (i) the locality may require the cable operator to make
available to the locality all records reasonably necessary to confirm the
accurate payment of fees; (ii) the locality may require the cable operator to
bear the locality&#8217;s reasonable out-of-pocket audit expenses if the audit
discloses an underpayment of more than 3% of any quarterly payment, but not less
than $5,000; (iii) the locality may require the cable operator to pay any
additional undisputed amounts due to the locality as a result of the audit
within 30 days following written notice by the locality to the cable operator;
(iv) in the event the cable operator disputes any underpayment discovered as the
result of an audit conducted by the locality, the locality shall work together
with the cable operator in good faith to promptly resolve such dispute; (v) the
locality shall provide that the cable operator and the locality maintain all
rights and remedies available at law regarding any disputed amounts; (vi) the
locality shall have no more than three years from the time the cable operator
delivers a payment to provide a written, detailed objection to or dispute of
that payment, and if the locality fails to object to or dispute the payment
within that time period, the locality shall be barred from objecting to or
disputing it after that time period; and (vii) the locality shall not audit a
cable operator more frequently than every 24 months;

8. Adopt reasonable reporting requirements for annual financial information and
quarterly customer service information that must be provided by a cable operator
to the locality so long as such information does not exceed the reporting
requirements for any existing cable operator in that locality;

9. Require cable operators to provide, without charge, within the area actually
served by the cable operator, one cable service outlet activated for basic cable
service to each fire station, public school, police station, public library, and
any other local government building. The ordinance shall apply equally to all
providers of cable services in the locality, but shall not apply in cases where
it is not technically feasible for a cable operator to comply;

10. Subject to &#xA7; 15.2-2108.24, adopt requirements and procedures for (i)
the management of the public rights-of-way that do not exceed the standards set
forth in clauses (i) and (ii) of subsection C of &#xA7; 56-462 and (ii) the
construction of a cable system in the public rights-of-way;

11. Adopt the following allocation procedure if cable services subject to a
franchise fee, or any other fee determined by a percentage of the cable
operator&#8217;s gross revenues in a locality, are provided to subscribers in
conjunction with other services: the fee shall be applied only to the value of
these cable services, as reflected on the books and records of the cable
operator in accordance with rules, regulations, standards, or orders of the
Federal Communications Commission or the State Corporation Commission, or
generally accepted accounting principles. Any discounts resulting from
purchasing the services as a bundle shall be reasonably allocated between the
respective services that constitute the bundled transaction; and

12. Require cable operators to make cable service available to (i) up to all of
the occupied residential dwelling units in the initial service area selected by
cable operator within no less than three years of the date of the grant of the
franchise and (ii) no more than 65% of the residential dwelling units in the
area in the locality in which the cable operator has its telephone facilities,
within no less than seven years of the date of the grant of the franchise.
Notwithstanding the foregoing provision, a cable operator shall not be required
to make cable service available: (a) for periods of force majeure; (b) for
periods of delay caused by the locality; (c) for periods of delay resulting from
the cable operator&#8217;s inability to obtain authority to access rights-of-way
in the service area; (d) in areas where developments or buildings are subject to
claimed exclusive arrangements; (e) in developments or buildings that the cable
operator cannot access under industry standard terms and conditions after good
faith negotiation; (f) in developments or buildings that the cable operator is
unable to provide cable service for technical reasons or that require facilities
that are not available or cannot be deployed on a commercially reasonable basis;
(g) in areas where it is not technically feasible to provide cable service due
to the technology used by the cable operator to provide cable service; (h) in
areas where the average occupied residential household density is less than 30
occupied residential dwelling units per mile as measured in strand footage from
the nearest technically feasible point on the cable operator&#8217;s active
cable system (or such higher average density number as may be contained in an
existing cable operator&#8217;s cable franchise); and (i) when the cable
operator&#8217;s prior service, payment, or theft of service history with a
subscriber or potential subscriber has been unfavorable. Should, through new
construction, an area within the cable operator&#8217;s service area meet the
density requirement, a cable operator shall, subject to the exclusions in this
subdivision, provide cable service to such area within six months of receiving
notice from the locality that the density requirements have been met. A locality
may not require a cable operator using its telephone facilities to provide cable
service to provide any cable service outside of the area in the locality in
which the cable operator has its telephone facilities. During the 12-month
period commencing after the seventh-year anniversary date of the grant of the
franchise, a locality may, by ordinance adopted after a public hearing in which
the locality specifically finds that such a requirement is necessary to promote
competition in cable services within the locality, require the cable operator to
make service available to no more than 80% of the residential dwelling units in
the area in the locality in which the cable operator has its telephone
facilities within no less than 10 years of the date of the grant of the
franchise, subject to the exclusions in clauses (a) through (i) of this
subdivision. If the cable operator notifies the locality that it is unwilling to
accept this additional service availability requirement, the locality may, after
notice and public hearing, terminate the cable operator&#8217;s ordinance cable
franchise. The cable operator shall file a certificate at its third and seventh,
and if applicable, tenth, anniversary dates certifying its compliance with the
foregoing service requirements. For purposes of an ordinance cable franchise,
the date of the grant of the franchise shall be the date the notice required by
&#xA7; 15.2-2108.21 is filed with the locality. For purposes of a negotiated
cable franchise, the date of the grant of the franchise shall be the date the
respective locality has granted a negotiated cable franchise pursuant to &#xA7;
15.2-2108.20.

HISTORY: 2006, cc. 73, 76.