§ 1220. Cable and open video system provisions.

ROW occupants who provide video service shall abide by the following provisions:

A.

Video Service Fee.

1.

A video service fee shall be paid in an amount equal to five percent (5%) of the video service gross revenues from within the corporate limits of the City of Tulsa, Oklahoma, for each current year. This video service fee shall be in lieu of any applicable occupancy fee or the inspection fee and service charge paid for the provision of video service pursuant to Subsection 1206.A. or 1206.B. of this chapter. The video service fee, together with any accumulated interest, shall be payable monthly on or before the 25th day after the end of each month on video service gross operating revenues received for that month, beginning no later than August 2009. If the payment is not timely made, interest upon any unpaid portion shall accrue at the rate of one and one-half percent (1½%) per month until paid. ROW occupants shall file a complete and accurate verified statement of all video service gross operating revenues within the corporate limits of the City of Tulsa, Oklahoma, during the period for which the monthly payment is made and an annual statement of such video service gross operating revenues, verified by the ROW occupant's external certified public accountant, within sixty (60) days after the end of each calendar year. ROW occupant's first annual statement shall include the months of the calendar year that preceded the first month in which the occupancy permit is effective. If ROW occupant fails or refuses to pay such fee, City may maintain an action against ROW occupant for the amount of such fee and interest and all expenses of collecting same, including reasonable attorney's fees.

2.

Any person leasing video service capacity from a ROW occupant, other than a person whose revenues are included in the payment made under paragraph A.1. of this section, shall pay the City a fee in lieu of the occupancy permit fee of five percent (5%) of the video service gross revenues of such person. Such payment shall be subject to the terms and be made in the same manner as prescribed in paragraph A.1. of this section. Notwithstanding the foregoing, where a ROW occupant charges any person, other than an affiliate, to use its system and that person recovers those use payments through charges to its subscribers that are included in that person's video service gross revenues and that person fully recovers its use payments through charges to its subscribers and pays a fee on those charges pursuant to paragraph A.1. of this section, then the ROW occupant may deduct from its video service gross revenues the use payments it receives from that person.

3.

In addition to the fees payable hereunder, consistent with 47 U.S.C. § 542(g)(2)(C), City may, at any time, by action of a majority of the City Council, establish a capital contribution fee for educational and governmental access channels, video streams and facilities. ROW occupants providing video and audio originations pursuant to paragraphs 1220.G.3.a.—c. shall pay the City a capital contribution fee for educational and governmental programming support. The amount of the capital contribution fee shall be determined by City Council, but in no event shall exceed one-half of one percent (0.5%) of the ROW occupant's video service gross revenues within the City. The City shall determine the amount of the capital contribution fee in its sole discretion, but may use it only as allowed by federal law to support educational and governmental access channel facilities. The City shall provide the ROW occupant written notice at least forty-five (45) days in advance of the date on which the City seeks to start collecting the capital contribution fee, setting forth the percentage it seeks to collect. The capital contribution fee shall not be offset, deducted or chargeable as a credit against the video service fee required by this section. The capital contribution fee shall be administered, collected and paid in the same manner as prescribed in this Subsection 1220.A. and may be added by a ROW occupant as a separate line item on each regular bill of each subscriber.

The payment of the capital contribution fee shall be in lieu of any other monetary payment, or in-kind compensation or grants, to the City for educational and governmental support. Examples of educational and governmental support include providing and maintaining of transmitter encoders and any data transport necessary to transport educational and governmental signals from any video or audio origination point identified in paragraphs 1220.G.3.a.—c. to the ROW occupant's network, as well as providing technical assistance required for the use of channels or video streams for governmental and educational use. At the ROW occupant's option, however, the ROW occupant may provide "in-kind" educational and governmental support to the City in lieu of paying the capital contribution fee or a portion thereof to the City. Any ROW occupant that elects to provide "in-kind" educational and governmental support in lieu of all or a portion of the capital contribution fee shall, upon written request, advise the City of the estimated fair value of such in-kind support. The City shall have the right to challenge such estimate.

4.

The provisions of this chapter contained in Subsection 1206.D., titled "Records Inspection"; Subsection 1206.E., titled "Late Fees and Interest on Late Payments"; and Subsection 1206.F., titled "No Deduction or Credit Against Taxes", which are applicable to ROW occupants paying occupancy fees or inspection fee and services charges shall also be applicable to ROW occupants required to pay video service fees.

B.

Service standards. ROW occupants shall maintain and operate their facilities and render efficient video service in accordance with such rules and regulations as shall be promulgated by the FCC. Wherever it is necessary to interrupt video service for the purpose of making repairs, adjustments or installments, ROW occupants shall do so at such time as will cause the least inconvenience to subscribers, and unless such interruption is unforeseen and immediately necessary, ROW occupants shall give reasonable notice to subscribers.

C.

Regulation by City.

1.

ROW occupants in the installation, maintenance and operation of facilities providing video service shall, at all times, be subject to the terms and provisions of the general ordinances of the City and to the lawful exercise of the police power of the City.

2.

ROW occupants shall be subject to the lawful exercise by City of all other powers, functions, rights, privileges and immunities of regulation of video service, or any other service granted or delegated to City by the Charter, by the Constitution and laws of Oklahoma or the laws and regulations of the United States of America.

D.

Provision of video service. City council reserves the right to require ROW occupants to provide for video service, or services substantially similar thereto, to all residences and properties in developed areas within the corporate limits of the City, subject to limitations related to distance from current facilities or other technical limitations. In the event that the City Council exercises this right, ROW occupants may charge for extension of video service facilities based upon the cost of labor, materials, acquisition of property rights, as well as for the services provided.

E.

Operational standards.

1.

ROW occupants shall maintain and operate facilities so as to provide video, audio and other signals to be delivered with signal strength and quality levels which meet the parameters specified by the FCC and any other normally accepted industry standards. ROW occupants shall construct facilities providing video service and operate and maintain them in a manner consistent with all ordinary care and all applicable laws, ordinances, construction standards and FCC technical standards. Upon request, ROW occupants shall provide City a report of the results of any FCC required proof of performance test conducted by ROW occupants.

2.

City shall notify ROW occupants in writing of any complaint from subscribers or of any failure of ROW occupants to comply with the terms and conditions of this permit. ROW occupants, upon receipt of such notice, shall promptly investigate the complaint and take such action as is necessary to provide video service to subscribers and to operate as required.

F.

Services to subscribers. ROW occupants shall provide to subscribers as a part of its video service local television broadcast signals as required by federal law and FCC regulations subject to obtaining the consent of the local broadcast stations as required by law, and educational and public affairs programming including local educational and governmental programs.

G.

Governmental and educational uses.

1.

Governmental and educational channels or video streams. Within one hundred twenty (120) days of a request from the City, ROW occupants offering video service shall provide for governmental and educational use only, at no cost to such users, the following:

a.

One (1) channel or video stream on any facility providing video service, for the exclusive use of Independent School District Number One of Tulsa County, Oklahoma (Tulsa Public Schools), provided Tulsa Public Schools develops, staffs and operates facilities and other equipment to provide educational and similar public service programming on such channel or video stream on a continuing basis and cooperates with other public elementary and secondary schools intending to provide such programming within the ROW occupant's video service area, within the City;

b.

One (1) channel or video stream on any facility providing video service, for the exclusive use of Tulsa Community College, in cooperation with other institutions of higher learning within the service area and service areas of other video service facilities owned by a ROW occupant and interconnected with a video service facility within the City, which develop, staff and operate facilities and equipment to provide educational programming on a continuing basis; and

c.

One (1) channel or video stream on any facility providing video service, for the exclusive use of the City.

d.

Each channel or video stream referenced in subparagraphs G.1(a), (b) and (c), above, may be made available via a single channel, video stream or tier which serves as a gateway to multiple governmental and educational channels or video streams.

If potential users are unable to agree on the allocation of channels or video streams provided in these subparagraphs G.1.a., b. and c. of this section, the Council may promulgate rules, regulations and procedures governing the use of governmental and educational channels or video streams. The Council shall resolve any disputes between any user of the channels or video streams and shall approve all allocations of educational and governmental channels provided in these subparagraphs G.1.a., b. and c.

Any content to be carried on such channel or video stream must be delivered to the ROW occupant at a point of presence agreed to by the ROW occupant and the user, in a format compatible with that ROW occupant's technology. The user will be solely and individually responsible for its own programming content.

2.

Service Outlets. Upon request:

a.

Subject to the provisions of paragraph G.2.b.:

(i)

ROW occupants which provide video services within two hundred fifty (250) feet of a state accredited elementary and secondary school, including but not limited to all buildings and other facilities designated by the named public schools, or an institution of higher learning, in coordination with the City and all other video service providers, shall be obligated to provide one (1) free installation and monthly video service package, not including services offered on a premium or pay per view basis, to each state accredited school site and to each campus of each institution of higher learning.

(ii)

ROW occupants which provide video services within two hundred fifty (250) feet of City Hall, the Jack Purdie Police/Municipal Courts Building, the Tulsa Regional Convention and Event Center, the Fire Department Training Center, fire stations, the Performing Arts Center, the City-County Health Department, International Airport, Police Detention Center, Police Training Center, Police Stations, recreation centers and maintenance facilities, in coordination with the City and all other video service providers, shall be obligated to provide one (1) free installation and monthly video service package, not including services offered on a premium or pay per view basis, to each location listed above.

b.

After any such request, unless the entity requesting service specifies the ROW occupant that is to provide service, the City will confer with all ROW occupants obligated to provide service pursuant to subparagraph G.2.a., to determine assignments in a reasonable manner. No more than one (1) ROW occupant shall be required to provide the service required by this paragraph G.2. to any given location. If another ROW occupant is providing such service as of May 31, 2009, an entity covered by this paragraph G.2. may request service at no cost, as provided in subparagraph G.2.a., but shall be required to bear all installation costs. Additional installations as at any particular location set forth in subparagraph G.2.a. shall be at the cost of labor and installation to the entity receiving the service.

c.

In compliance with this paragraph G.2.:

(i)

No ROW occupant shall be required to provide inside wiring.

(ii)

No ROW occupant shall seek to offset recurring costs associated with the requirements of this paragraph G.2. against fees payable pursuant to this chapter, nor shall a ROW occupant impose such costs on the City, accredited school or institution of higher learning receiving such free installations and service.

(iii)

No ROW occupant shall offset any nonrecurring installation and nonrecurring repair of service costs provided pursuant to this paragraph G.2. against any fees payable under this chapter.

d.

After a service outlet or connection is provided to any governmental or educational facility pursuant to this paragraph G.2., the services and connection shall not be discontinued or removed by a ROW occupant without the prior, express consent of the City Council.

3.

Video and audio originations. Upon request:

a.

ROW occupants providing video services within two hundred fifty (250) feet of the Tulsa Education Service Center shall work with the proper authorities to provide, at no cost, connections for video and audio originations from the Tulsa Education Service Center;

b.

ROW occupants providing video services within two hundred fifty (250) feet of the Tulsa Community College Metro Campus shall work with the proper authorities to provide, at no cost, connections for video and audio originations from the Tulsa Community College Metro Campus; and

c.

ROW occupants providing video services within two hundred fifty (250) feet of one (1) location designated by the City shall work with the proper authorities to provide, at no cost, connections for governmental video and audio originations from that location.

Upon request from a governmental or educational user, ROW occupants shall provide, at the direct cost to the ROW occupants of labor and materials, additional connections for video and audio originations from other points. ROW occupants providing "in-kind" educational and governmental support pursuant to paragraph 1220.A.3. of this title shall, at no cost, provide technical assistance required for the use of channels or video streams for governmental and educational use.

If potential users are unable to agree upon the use of the channels or video streams for video and audio originations from the locations to serve state accredited elementary and secondary schools and institutions of higher learning provided in subparagraphs G.3.a. and b., the Council may promulgate rules, regulations and procedures governing the use of the channels or video streams for video and audio originations for state accredited elementary and secondary schools and institutions of higher learning. The Council shall resolve any disputes between any user of the educational channels or video streams.

4.

ROW occupants shall not make any separate or premium charge to a subscriber for access to educational or governmental channels or video streams.

5.

All channels or video streams allocated for governmental and educational use shall be of the same quality as any other channel or video stream for video service. All channels or video streams allocated for educational use shall be available to subscribers in the service area and the service areas of other video service facilities interconnected with it.

6.

When a channel or video stream allocated for governmental or educational use has been assigned a channel number or position by the ROW occupants, such channel number or position shall not be changed until at least six (6) months' written notice has been given to the user of such channel.

H.

Emergency alert services to City. If requested by the City, ROW occupants providing video service shall carry all federal, state and local alerts provided over the "Federal Emergency Alert System" in the event of a public safety emergency.

I.

Nondiscrimination.

1.

ROW occupants shall not deny any person or group of potential video service subscribers access to video service because of race, color, religion, national origin, age, gender, physical handicap or the income of residents in the local area in which a person or group resides.

2.

ROW occupants shall not discriminate in the rates or charges for video services or in making available video services or facilities of the system. ROW occupants shall not extend any preference or advantage to any subscriber or potential subscriber to the system or to any user or potential user of the system.

3.

ROW occupants shall not discriminate against any employee or applicant for employment because of race, color, religion, age, gender or national origin. ROW occupants shall comply with all applicable laws and regulations of the United States and of Oklahoma with respect to employment and personnel practices.

J.

Certain rights regarding IP video and cable service not waived. In the enactment of provisions in this section that are applicable to IP video service, the City acknowledges that certain ROW occupants providing IP video service have asserted and may assert that they are not required to obtain a ROW occupant permit from the City in order to provide IP video service. Regardless of this position, in consideration of the forbearance of litigation by the City in relation to the provision of IP video service by such ROW occupants within the City and the City's adherence to permitting practices with respect to the installation of facilities that may be used to provide IP video services, certain ROW occupants are willing to operate within the regulations provided in this section and to pay the IP video service fee specified in this section. The City, by enactment of provisions in this section applicable to IP video service and any ROW occupant providing IP video services pursuant to this chapter agree that neither shall be deemed to have waived any of it rights, which may be contrary to the definitions, regulations and actions established in this chapter.

K.

Change or clarification of law. In the event a court or federal agency or any governmental legislative body with jurisdiction rules or declares that IP video service is a cable service, or that IP video service is subject to the same laws and regulations as a cable service provider or cable television system, and if the ruling or declaration is effective and binding upon either the City or the ROW occupant providing IP Video service within the City of Tulsa, then the ROW occupant shall be subject to the provisions of section.

(Ord. Nos. 19945, 21282, 21393; Ord. No. 22146, § 3, 10-15-2009; Ord. No. 22169, §§ 1, 2, 12-10-2009)