§ 12-03. Definitions.

For the purpose of this chapter, the following terms, phrases, words and their derivations shall have the meanings given herein. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number, and words in the singular number include the plural number. The words "shall" and "will" are mandatory, and the word "may" is permissive. Words not otherwise defined herein or in any franchise agreement that might be granted hereunder shall be given the meaning set forth in the Communications Act of 1934, 47 U.S.C. §§ 521 et seq., as amended by the Telecommunications Act of 1996, and as those Acts may hereinafter be amended (collectively the "Communications Act"), and, if not defined therein, they shall be given their common and ordinary meaning:

(A)

"Access channel" shall mean any channel on a cable system set aside without charge by the franchisee for educational or local governmental use which has been recognized and approved as such by the Board.

(B)

"Activated channels" shall mean those channels engineered at the headend of a cable system for the provision of services generally available to residential subscribers of the cable system, regardless of whether such services actually are provided, including any channel designated for educational or governmental use. A channel on which signals flow in the direction from the headend to the subscriber shall be referred to as a "downstream channel." A channel on which signals flow to the headend for redistribution shall be referred to as an "upstream channel."

(C)

"Affiliate" shall mean any person who or which directly or indirectly owns or controls a grantee or franchisee, any person who or which a grantee or franchisee directly or indirectly owns or controls, or any person under common ownership or control with a grantee or franchisee.

(D)

"Applicant" shall mean any person submitting an application under and within the meaning of this chapter.

(E)

"Application" shall mean any proposal, submission or request to (1) construct, maintain and operate a cable television system within the County; (2) transfer a franchise or control of a franchise; (3) renew a franchise; (4) modify a franchise; or (5) seek any other relief from the County pursuant to this chapter, a franchise agreement, the Communications Act, or other applicable law. An application includes an applicant's initial proposal, submission or request, as well as any and all subsequent amendments or supplements to the proposal and relevant correspondence.

(F)

"Basic cable service" or "Basic service" shall mean any service tier which includes the retransmission of local television broadcast signals and educational, governmental or public access channels.

(G)

"Board" shall mean the Board of County Commissioners of Orange County, Florida.

(H)

"Cable service" shall mean

(1)

The one-way transmission to subscribers of video programming, or other programming service; and

(2)

Subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service.

(I)

"Cable system," "Cable television system," or "System" shall mean a facility, consisting of a set of closed transmission paths and associated signal generation, reception and control equipment that is designed to provide cable service which includes video programming and which is provided to multiple subscribers within Orange County, but such term does not include:

(1)

A facility that serves only to retransmit the television signals of one or more television broadcast stations;

(2)

A facility that serves subscribers without using any public right of way;

(3)

A facility of a common carrier, which is subject, in whole or in part, to the provisions of Title 11 of the Communications Act of 1934, 47 U.S.C. §§201 et seq., except that such facility shall be considered a cable system (other than for purposes of 47 U.S.C. §541[c]) to the extent such facility is used in the transmission of video programming directly to subscribers, unless the extent of such use is solely to provide interactive on-demand services;

(4)

An open video system (OVS) that complies with 47 U.S.C. §573; or

(5)

Any facilities of any electric utility used solely for operating its electric utility systems.

(J)

"Communications Act" shall mean the Communications Act of 1934, 47 U.S.C. §151 et seq., as that Act has been and may hereinafter be amended or renumbered.

(K)

"Control of a franchisee, grantee or applicant" shall mean possession of the ability to direct or cause the direction of the management or policies of a franchisee, grantee or applicant, or the operation of a franchisee's system, either directly or indirectly, whether through ownership of voting securities, by contract or understanding, or in any other manner.

(L)

"County" shall mean Orange County, Florida in the political sense; a body corporate and politic having all powers and rights of local self-government which are provided by the United States Constitution, the Constitution of the State of Florida, the laws of the State of Florida and the Orange County Charter.

(M)

"County administrator" shall mean that person who is appointed by the County Chairman and confirmed by the Board to serve at the pleasure of the County Chairman pursuant to Section 303 of the Orange County Charter. For purposes of this chapter, the "county administrator" shall include his or her designee.

(N)

"County Engineer" shall mean the Director of the County Division of Public Works, or his or her designee.

(O)

"County road system" shall mean the streets, highways, rights-of-way and roads lawfully under the jurisdiction of the County.

(P)

"Easement dedicated for compatible use" shall mean an easement open for the use of a franchisee pursuant to 47 U.S.C. §541(a)(2).

(Q)

"Easement holder or beneficiary" shall mean the person to whom an easement was or is dedicated, deeded or granted, and the person entitled to the lawful and permitted use of the easement.

(R)

"Exclusive easement" shall mean an easement which by its terms and which by the law is for the exclusive use of the easement holder.

(S)

"Facilities and equipment" shall include, but not be limited to, headends, hubs, antennae, wires, cable, conductors, ducts, conduits, vaults, manholes, trenches, amplifiers, converters, appliance, attachments, poles and other property and equipment which are designed, constructed or wired for the purpose of producing, receiving, amplifying and distributing by coaxial cable, fiber optics, microwave, laser or other means, audio and video television, radio and electronic signals to and from subscribers, and any other equipment or facilities used in connection with a cable system to provide cable service within Orange County. In the context of educational, governmental or public access, this term shall include, but not be limited to, all of the above and studios, cameras, antennae, dishes, buildings, chairs, desks, vehicles and all other capital equipment associated with the provision of educational, governmental or public programming and access.

(T)

"Fair market value" shall mean the price that a willing buyer would pay a willing seller for a going concern but with no value allocated to the franchise itself.

(U)

"FCC" shall mean the Federal Communications Commission, or any successor governmental entity thereto.

(V)

"Fiscal year" shall mean a calendar year beginning January 1st of each year.

(W)

"Franchise" shall mean an initial authorization, or renewal thereof (including a renewal of an authorization which has been granted subject to 47 U.S.C. §546), issued by the County as the franchising authority. Such authorization shall be designated as a franchise and issued under a franchise agreement, which authorizes the construction and/or operation of a cable system. The term "franchise" does not include any license, permit or certificate that may be required by this chapter or other applicable law for the privilege of transacting and carrying on a business within Orange County or for disturbing or carrying out any work within any public right-of-way.

(X)

"Franchise agreement" shall mean a contract entered into in accordance with the provisions of this chapter between the County and a franchisee which sets forth the terms and conditions under which the franchise shall be exercised.

(Y)

"Franchisee" shall mean any person granted a franchise by the Board pursuant to this chapter who has entered into a franchise agreement.

(Z)

"Grantee" shall mean any person granted a franchise by the Board pursuant to this chapter who has not entered into a franchise agreement.

(AA)

"Gross revenues" shall mean all the franchisee's revenues, from any source whatsoever arising from, attributable to, or in any way derived from the operation of the cable system to provide cable service in Orange County.

"Gross revenues", unless prohibited by applicable law, includes, but is not limited to, the following: (1) fees charged subscribers for basic service; (2) fees charged subscribers for any optional, premium, per-channel or per-program service; (3) fees charged subscribers for any tier of service other than basic service; (4) installation, disconnection, reconnection and change-in-service fees; (5) late fees; (6) leased access fees; (7) payments or other consideration from programmers for carriage of programming on the system; (8) revenues from converter, remote, modem or any other equipment rentals or sales; (9) revenues from the sale, exchange or cablecast of any programming developed on or for access channels or institutional users; (10) advertising revenues allocable to the County based on the subscriber base in the unincorporated area of Orange County divided by the subscriber base of the system (such quotient to be multiplied by the system's total advertising revenue to determine the allocable revenue stemming from advertising); (11) revenues from home shopping channels or other sources allocable to the County based on the subscriber base in the unincorporated area of Orange County divided by the subscriber base of the system; (12) revenues from local studio and local studio equipment rental; (13) revenues from leases of cable or fiber optic lines and other transmission devices and equipment; (14) revenues from transmission of data; and (15) revenues from consumer products and services including but not limited to cable guides. In the event that a count of competent jurisdiction issues a final decision or applicable law provides that Internet access service provided via the cable system is not, as a matter of law, a cable service, revenues generated from said service shall be excluded from the definition of Gross Revenues herein.

"Gross revenues", unless prohibited by applicable law, shall be the basis for computing the franchise fee imposed pursuant to Section 12-19.

Irrespective of whether payments received by the franchisee's affiliates or parent would constitute revenues to the parent or affiliate, "gross revenues" shall not include payments made by a franchisee to an affiliate or parent company for the purpose of purchasing transmission capacity on wireline facilities, payments made by the franchisee to any affiliate for programming, or any other payment to the franchisee's affiliate or parent wherein such payments are treated as an expense of the franchisee.

"Gross revenues" shall not include any taxes on services furnished by the franchisee which are imposed upon any subscriber or user by the state or other governmental unit and collected by the franchisee on behalf of said governmental unit and which the franchisee passes on in full to the applicable taxing authority or authorities. However, the franchise fee shall not be considered such a tax.

(BB)

"Institutional Network" or "I-NET" shall mean a voice, data and/or video communications system which is constructed or operated by the franchisee for the County, the transmissions on which are generally available only to, and intended to be sent and received by, persons other than cable subscribers generally.

(CC)

"Interconnection" shall mean the electronic connection of two or more cable systems for the purpose of sharing programming or other cable services.

(DD)

"Law" shall mean any duly enacted or executed applicable federal, state, or county law, statute, ordinance, code, rule, regulation or order.

(EE)

"Leased access channel" shall mean a channel designated in accordance with 47 U.S.C. § 532 for commercial use by persons unaffiliated with the franchisee.

(FF)

"Open video system (OVS)" shall mean a system certified by the FCC to provide video programming to subscribers in a manner that complies with 47 U.S.C. §573.

(GG)

"Orange County" shall mean, depending upon the context, Orange County, Florida in the geographical sense, or the portions of Orange County, Florida in the geographical sense, including the unincorporated area, which are subject to this chapter.

(HH)

"Overbuild" shall mean a cable system constructed to serve subscribers in an area of Orange County served by another cable system.

(II)

"Pay television" shall mean the delivery over the cable system of video signals in intelligible form to residential subscribers for a fee or charge (over and above the charge for basic service), except for a service tier.

(JJ)

"Person" shall mean any individual, corporation, partnership, association, joint stock company, trust, joint venture, organization or legal entity of any kind, and any lawful trustee, successor, assignee, transferee or personal representative thereof.

(KK)

"Pro forma transfer" shall mean an:

(1)

Assignment from an individual or individuals (including partnerships) to a corporation owned and controlled by such individuals or partnerships without any substantial change in their relative interests;

(2)

Assignment from a corporation to its individual stockholders without effecting any substantial change in the disposition of their interests;

(3)

Assignment or transfer by which certain stockholders retire and the interest transferred is not a controlling one;

(4)

Corporate reorganization which involves no substantial change in the beneficial ownership of the corporation;

(5)

Assignment or transfer from a corporation to a wholly owned subsidiary thereof or vice versa, or where there is an assignment from a corporation to a corporation owned or controlled by the assignor stockholders without substantial change in their interests;

(6)

Assignment of less than a controlling interest in a partnership; or

(7)

Transfer between affiliated entities, regardless of whether such affiliation is by virtue of common stock ownership, other equity or debt ownership, or management control.

(LL)

"Public right-of-way" shall mean the surface, the air space above the surface, and the area below the surface of any street, highway, road, boulevard, concourse, driveway, freeway, thoroughfare, parkway, sidewalk, bridge, tunnel, park, waterway, dock, bulkhead, wharf, pier, court, lane, path, alley, way, drive, circle, easement, or other right-of-way, place or property, including public utility easements dedicated for compatible uses, in which the County holds any kind of property interest or over which the County exercises any type of lawful control.

(MM)

"Service tier" shall mean a category of cable service or other services provided by a franchisee and for which a separate rate is charged by the franchisee.

(NN)

"Small cable operator" shall mean a franchisee who offers service to fewer than one thousand (1,000) subscribers within the franchise area, and who directly, or through an affiliate, services in the aggregate fewer than one percent (1%) of cable subscribers in the United States, and whose annual revenues, when combined with the total annual revenues of all of its affiliates, do not exceed $250 million in the aggregate, or as such term may be otherwise defined by applicable law.

(OO)

"Subscriber" shall mean any person who lawfully receives cable service delivered over a cable system.

(PP)

"Subscriber base" shall mean the total number of a franchisee's residential and non-residential subscribers within Orange County. For purposes of calculating the number of subscribers under bulk or multi-user contracts, the franchisee shall count each unit included within a contract for service as one subscriber. The franchisee shall not use any equivalency measures including calculations based on market rate unless authorized by FCC rules.

(QQ)

"Sunshine State One-Call of Florida, Inc." shall mean the not-for-profit corporation created by Section 556.103, Florida Statutes, to administer the provisions of the Underground Facility Damage Prevention and Safety Act set forth at Chapter 556, Florida Statutes.

(RR)

"System malfunction" shall mean any cable system equipment, facility or signal failure or malfunction that results in the loss of satisfactory service on one or more channels to one or more subscribers which results from the franchisee's action or inaction. A malfunction is deemed major if it affects ten (10) or more subscribers.

(SS)

"Technician" shall mean an employee, contractor or agent of a franchisee with the skills to perform and who is available to perform, construct, repair and maintain the cable system, including the facilities and equipment installed by or for the franchisee which are necessary to provide services or signals to the subscriber or user of the system.

(TT)

"Transfer of a franchise" shall mean any transaction in which (1) an ownership or other interest in a franchisee or its cable system is transferred from one person or group of persons to another person or group of persons so that control of a franchise is transferred; or (2) the rights and/or obligations held by a franchisee under a franchise agreement are transferred or assigned to another person, group of persons or business entity.

(UU)

"Two-way capacity" shall mean the incorporation into a cable system of all appropriate design and engineering characteristics and features so that two-way transmission over the cable system can be implemented and activated.

(VV)

"Video channel or Channel" shall mean a portion of the electromagnetic frequency spectrum which is used in a cable system and which is capable of delivering a television channel, including the associated audio signal, as "television channel" is defined by FCC regulation or otherwise.

(WW)

"Video programming" shall mean programming provided by, or generally considered comparable to programming provided by, a television broadcast station or cable system.

(XX)

"Violation" shall mean a violation of any term or provision of this chapter, or a failure to satisfy any term or condition contained in any franchise agreement, or a breach of the contractual relationship established pursuant to a franchise agreement.

(Ord. No. 98-20, § 1, 9-15-98; Ord. No. 2001-25, § 2, 12-18-01)