§ 15-11. Definitions.

For the purpose of this cable television franchise agreement, the following terms, phrases, words, and their derivatives shall have the meanings set forth in this section, unless the context clearly indicates that another meaning is intended. Words used in the present tense include the future tense, words in the single number include the plural number, and words in the plural number include the singular. The words "shall" and "will" are mandatory, and "may" is permissive. Words not defined shall be given their common and ordinary meaning.

(1)

Access facilities means the facilities and equipment designated for educational or governmental access use.

(2)

Agreement or franchise agreement means this agreement.

(3)

Basic cable service means any cable service tier that includes the lawful retransmission of local television broadcast signals and any public, educational, and governmental access programming required by this article to be carried on the basic tier. Basic cable service as defined herein shall be consistent with 47 U.S.C. § 543(b)(7) (1997).

(4)

Cable Act means the Cable Communications Policy Act of 1984, Pub. L. No. 98-549, (codified at 47 U.S.C. §§ 521-611 (1982 & Supp. V. 1987)) as amended by the Cable Television Consumer Protection and Competition Act of 1992, Pub. L. No. 102-385, and the Telecommunications Act of 1996, Pub. L. No. 104-104 (1996) as it may, from time to time, be amended.

(5)

Cable service or service means:

a.

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

b.

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

(6)

Cable system means 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 the franchise area, but such term does not include:

a.

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

b.

A facility that serves subscribers without using any public rights-of-way; or

c.

A facility of a common carrier which is subject, in whole or in part, to the provisions of 47 U.S.C. §§ 201-226, except that such facility shall be considered a cable system 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;

d.

An open video system that complies with Section 653 of the Cable Act; or

e.

Any facility of any electric utility used solely for operating its electric utility system.

(7)

Capital costs means costs associated with the purchase of assets, products or other resources that will provide service for more than one year, but shall not have any meaning inconsistent with generally accepted accounting principles ("GAAP").

(8)

Channel means a portion of the electromagnetic frequency spectrum, which is used in a cable system that is capable of carrying one industry standard video signal, in either analog or digital form. At the time of the passage of this article, analog standard channel is defined as 6 MHz.

(9)

City means the City of Manhattan, Kansas.

(10)

Complaint means any written inquiry, allegation or assertion delivered via the mail, in person, or electronically, and made by a person regarding service or system operations.

(11)

Converter means an electronic device that converts signals to a frequency less susceptible to interference within the television receiver of a subscriber and, through the use of an appropriate channel selector, permits a subscriber to view all authorized subscriber signals delivered at designated converter dial locations. Converters include all devices furnished to the subscriber and owned by the grantee.

(12)

Direct incremental costs means the costs actually incurred by grantee in meeting an obligation under its franchise which grantee would not otherwise have incurred in order to either operate and conduct the business of its cable system or to meet another obligation of the franchise.

(13)

Drop means the cable or cables that connect the ground block on the subscriber's property to the nearest feasible point on the cable system in order to receive service.

(14)

Effective date means the date set forth in section 15-12(3) of this article.

(15)

Facilities means any portion of a cable system located in, along, over, upon, under or through the rights-of-way.

(16)

FCC means the Federal Communications Commission or a designated representative.

(17)

Franchise means the rights and obligations extended by the city to a person to own, lease, construct, maintain or operate a cable system in the rights-of-way within the franchise area for the purpose of providing cable services. Any such authorization, in whatever form granted, shall not mean or include: (i) any other permit or authorization required for the privilege of transacting and carrying on a business within the city required by the ordinances and laws of the city, including the provision of communications services; (ii) any permit, agreement or authorization required in connection with operations in the rights-of-way including, without limitation, permits and agreements for placing devices on or in poles, conduits or other structures, whether owned by the city or a private entity or for excavating or performing other work in or along the rights-of-way.

(18)

Franchise ordinance means the ordinance adopted by the city, which incorporates this agreement, by reference.

(19)

Franchise area means the entire geographic area within the city as it is now constituted or may in the future be constituted, for which this franchise is granted.

(20)

Franchise fee means any tax, fee or assessment of any kind imposed by the city or other governmental entity on grantee or its subscribers or both, solely because of their status and activities as such. The term "franchise fee" does not include: (i) any tax, fee or assessment of general applicability (including any such tax, fee or assessment imposed on both utilities and cable operators or their services but not including a tax, fee or assessment that is unduly discriminatory against cable operators or cable subscribers); (ii) capital costs that are required by a franchise to be incurred by grantee for public, educational or governmental ("EG") access facilities; (iii) requirements or charges incidental to the award or enforcement of this franchise, including payments for bonds, letters of credit, insurance, indemnification, compliance audits, penalties, or liquidated damages; (iv) any permit fee or other fee imposed under any valid right-of-way ordinance; or (v) any fee imposed under Title 17 of the United States Code.

(21)

Governing body means the governing body of Manhattan, Kansas.

(22)

Grantee means Cox Communications Kansas, LLC, or its lawful successors, transferees, or assigns.

(23)

Grantor means the City of Manhattan, Kansas, provided that the city may delegate the day-to-day administrative functions of this franchise and any associated ordinances to appropriate city departments.

(24)

Gross revenues means any revenue actually derived by the grantee or grantee's affiliates from the operation of the grantee's cable system to provide cable services in the city. "Gross revenues" includes, but is not limited to, revenue derived from basic cable subscription fees, premium service, and pay-per-view fees, installation and reconnection fees, franchise fees collected from subscribers; commercial leased access fees; converter and other equipment rentals; revenue from home shopping to the extent derived from subscribers in the city; advertising revenues; payments or other consideration received by the grantee for the use of the cable system to provide cable service and accounted for as revenue under GAAP; and any other revenue permitted by law, provided that revenue from cable modem services shall be included from the effective date, but only if a final decision is rendered by the FCC or a court of competent jurisdiction or legislation is passed by Congress, during the term herein, which authorizes the collection of fees from such services. Gross revenues shall include revenue received by any entity other than the grantee where necessary to prevent evasion or avoidance of the obligations under this franchise to pay the applicable franchise fees. Revenues which are not directly attributable to specific subscribers, including, but not limited to, commercial leased access fees, advertising revenues, and home shopping commissions, shall be allocated among the franchising jurisdictions served by the grantee's system on a per subscriber or other equitable basis consistent with GAAP. Gross revenues shall not include (i) to the extent consistent with GAAP, bad debt; provided, however, that all or part of any such bad debt that is written off but subsequently collected shall be included in gross revenues in the period collected; (ii) amounts collected from subscribers for public, educational and governmental access, provided, however, this exclusion does not limit a grantee's ability to pass through franchise related costs to the extent allowed by applicable law; (iii) any taxes on services furnished by grantee which are imposed directly upon any subscriber or user by the state, city or other governmental unit and which are collected by grantee on behalf of said governmental unit.

(25)

Normal business hours means those hours during which most similar businesses in the community are open to serve customers. In all cases, normal business hours must include some evening hours, at least one night per week, and some weekend hours.

(26)

Normal operating conditions means those cable services or conditions that are within the control of a cable system franchise grantee. Those conditions, which are ordinarily within the control of grantee, include, but are not limited to, special promotions; pay-per-view events; rate increases; regular peak or seasonal demand periods; and maintenance or upgrade of the cable system. Those conditions that are not within the control of grantee include, but are not limited to, natural disasters; civil disturbances; power outages; telephone network outages; vandalism; public works projects for which no advanced notice is given; and severe or unusual weather conditions.

(27)

Person means any corporation, partnership, proprietorship, individual, organization, governmental entity or any natural person.

(28)

Public building means any building owned and occupied during normal business hours by the city or other governmental unit.

(29)

Renewal means a new franchise granted to an existing cable operator pursuant to Section 626 of the Cable Act.

(30)

Reports means any and all nontrade secret documents and information required to be completed and/or kept or filed by the grantee pursuant to FCC, state or city regulation. In accordance with applicable law, the city shall maintain such information as confidential to the extent that grantee identifies specific information as such.

(31)

Rights-of-way means the surface and space on, above, and below every municipal street, alley, road, highway, lane or city right-of-way dedicated or commonly used now or hereafter for utility purposes, including but not limited to overhead lighting facilities, and including utility easements wherein the city now or hereafter acquires the right and authority to locate or permit the location of utilities consistent with communications facilities. This term shall not include any county, state or federal rights-of-way or any property owned or controlled by any person or agency other than the city, except as provided by applicable law or pursuant to an agreement between the city and any such person or agency. "Rights-of-way" shall not include property owned or leased by the city that is not typically utilized as right-of-way for the laying of lines, such as city parks, city hall property or public works facilities.

(32)

Service interruption means the loss of picture or sound on one or more channels on the system.

(33)

Standard installation means any service installation that can be completed using a drop of 125 feet or less.

(34)

Subscriber means any person, who or which lawfully elects to subscribe for any purpose to cable service provided by grantee by means of, or in connection with, the cable system, and whose premises or facilities are physically wired and lawfully activated to receive cable service from grantee's cable system, including persons who receive cable service without charge according to the terms of the franchise ordinance.

(Ord. No. 6281, §§ 1, 2, 7-16-02)