Public Access Requirements

Public Access Requirements

 

A. PEG Channel assignments

B. Capacity set-asides

C. Facilities/Equipment

D. Uplink/Origination sites

E. Technical assistance

F. Channel positions

G. Audio channels

H. Independent management

I. Additional channels

J. Promotion

In passing the Cable Communications Policy Act of 1984, Congress described public access channels as "the equivalent of the speaker's soapbox or the electronic parallel to the printed leaflet. They provide groups and individuals who generally have not had access to the electronic media with the opportunity to become sources of information in the electronic marketplace of ideas." Across the country, public-, education-, and government-access (PEG) channels have succeeded admirably in that regard, turning out thousands of hours of new programs each week, according to Public Access of Indianapolis (where, ironically, residents lost their public access channel in that city's cable franchise negotiations in 1996).

The basic PEG provision, James Horwood of Spiegel & McDiarmid explains in "Cable Franchise Renewal and Local Right of Way Management," is set forth in Section 611 of the Cable Act, 47 U.S.C. § 531, which permits cities to establish requirements for the designation of channel capacity for PEG use. A city may require as part of a franchise, or as part of a cable operator's proposal for renewal, that channel capacity be designated for PEG use, and may require rules and procedures for the use of such channel capacity. A city may enforce "any requirement in any franchise regarding the providing or use" of PEG channel capacity, including the authority to enforce franchise provisions for "services, facilities or equipment."

In its invaluable "PEG Access Basics" (PDF) document, the Buske Group describes the three divisions of PEG programming:

Public access consists of video programming and other electronic information produced, directed, and engineered by community volunteers. (For convenience, all types of information carried on PEG channels will be referred to as “programming,” although PEG channels are used to carry video information, data, video text, and voice communications.) In the case of public access, the programming is developed or acquired by nonprofit community groups, neighborhood organizations, social service agencies, and individual citizens. It focuses on many aspects of community life, ranging from the services and activities of community organizations to the opinions and beliefs of individuals in the community.

Educational access is developed or acquired by school or college employees, students, and school volunteers. It typically focuses on distance learning, school activities, and information that the school/college wants to get out to the community or share among schools.

Government access is created or acquired by local government employees, elected officials, and volunteers. It typically focuses on information about services provided by local, State, and regional governments, issues faced by local governments, and such as providing training to City employees or exchanging information between City agencies and other institutions.

Model PEG operations include the Chicago Access Network; Iowa's Public Access TV 18; New York's Manhattan Neighborhood Network; the Grand Rapids Community Media Center; the Community Media Center of Santa Rosa; SFGTV, the San Francisco government-access channel; Butte College TV; and San Jose's Civic Center TV.

A. PEG Channel Assignments: At their simplest and most straightforward, cable franchises specify the number of channels that will be devoted to PEG access. St. Paul, for example, requires seven PEG channels:

St. Paul's access channel provisions:

300.(h). Access channels.

300.(h).(1). The company shall make available for access programming purposes seven (7) channels on the subscriber network for PEG access use, as follows: four (4) channels for public access; one (1) channel for government access; one (1) for educational access; and one (1) channel for regional PEG access. One (1) additional channel shall be provided upon the city's request whenever (A) all public; or (B) all educational; or (C) the government channels; or (D) the regional channel is in use during eighty (80) percent of the weekdays, Monday to Friday, for eighty (80) percent of the time during any consecutive three-hour period for six (6) weeks running. The company shall have six (6) months from the date of the request in which to provide the new channel, but the company need not provide the channel until after the date scheduled for completion of the upgrade required by Article III (or, if earlier, the date the upgrade is actually completed).

A.2. Portland's PEG requirement is even more ambitious, specifying eight access channels before the impending system upgrade, along with more localized government- and education-channel service areas ("narrowcasting") following the upgrade.

Portland's access channel assignments:

7.3 Access Channel Assignments.

(A) The Jurisdictions may designate up to six (6) points of origination for Access Channels located within the Cable Services Area, and Grantee shall provide the technical capability to transmit Signals for Access Channels from the designated origination points.

(B) Until the Cable System Upgrade is completed, Grantee shall provide Channel assignments for PEG Access and cablecast such Access Channels to the Franchise Area, as follows:

(1) Channel 11 - public access

(2) Channel 21 - public access

(3) Channel 22 - public access

(4) Channel 30 - government access

(5) Channel 31 - educational access

(6) Channel 33 - public access

(7) Channel 53 - educational access

(8) Channel 58 - public access

(C) Upon completion of Cable System Upgrade, Grantee shall provide Channel assignments for PEG Access and Narrowcast such Access Channels to the service areas as follows:

(1) Channel 11 - public access (Franchise Area)

(2) Channel 21 - public access (Franchise Area)

(3) Channel 22 - public access (Franchise Area)

(4) Channel 30 - government access (City of Gresham boundary discretely from Multnomah County, Fairview, Troutdale and Wood Village combined)

(5) Channel 31 - educational access (Portland Community College service area and Mt. Hood Community College service area discretely)

(6) Channel 33 - public access (Franchise Area)

(7) Channel 53 - educational access (Each public school's service area within the Franchise Area discretely)

(8) Channel 58 - public access (Franchise Area)

(D) PEG Access Channel assignments, as provided under this Section, may be adjusted or altered only with the specific written approval, in advance, by the Jurisdictions. Access Channel types, (i.e. Public, Educational, Government), as provided under this Section, may be adjusted by Designated Access Providers upon approval by the Jurisdictions. If technology changes render Channel assignments obsolete, Grantee shall negotiate with the Jurisdictions to determine equitable placement of Access Channels.

B. Capacity set-asides: Instead of discrete channels for PEG use, a number of cities now require a set-aside (up to 10 percent) of network capacity. Montgomery County, Md., for example, provides for a flexible use of PEG channel assignments: "Any reference to an upstream or downstream analog channel for PEG use refers to a 6 MHz Channel. Any entity that manages an Access Channel may use that capacity to provide one or more channels of service." (Section 7 [5])

The definition of PEG spectrum used by Monterey, Calif., similarly, covers both analog and digital systems, with the latter expected to transmit 24 PEG access channels, along with "… an additional twelve (12) MHz of spectrum available for access purposes to implement technological advances, including but not limited to HDTV [high-definition television]…." (7.11.A.1)

Portland's franchise calls for a 10 percent digital set-aside:

Sec 7.2

(C) Digital Capacity. Grantee shall reserve, for PEG Access use, either ten percent (10%) of the total Activated Residential Network Downstream Digital Capacity or thirty-six (36) Digital Channels, whichever is less. These Channels shall have the Capacity to carry entertainment quality and full motion equivalent Channels. Grantee shall technically configure the Digital Access Channel Capacity as mutually agreed upon by the Grantee and the Jurisdictions. Grantee shall Activate Digital Capacity under this Subsection upon request by the Jurisdictions for PEG Access use in order to meet a community need identified by a Designated Access Provider.

(D): Digital Capacity. At the same time as digital transition under Section 7.2(C) begins, Grantee shall reserve, for PEG Access use, either 10% of the total Activated Cable System Downstream Channel Capacity on the Residential Network or 36 Channels (including Channels provided under Sections 7.2(A) and (B) and Section 7.4), whichever is less. These Channels shall have the capacity to carry entertainment quality and motion equivalent Channels , but may be reconfigured, at the City's direction, to carry Channels which require less capacity. Grantee shall Activate digital Capacity under this Subsection upon request by the City for PEG Access use in order to meet a community need identified by a Designated Access Provider.

B.2. Montgomery County's franchise includes 13 analog video PEG channels and "up to 10% of the System's total downstream digital capacity for PEG use (the 'Digital Set-aside')."

Montgomery County's PEG channel requirement:

7. CHANNELS AND FACILITIES FOR PUBLIC, EDUCATIONAL AND

GOVERNMENTAL USE.

(a) Access Channels:

(1) The Franchisee shall provide at least thirteen (13) analog video Channels for non-commercial public, educational and governmental use, which Channels shall be in addition to any capacity provided on the Institutional Network pursuant to Section 7(h). Seven of the thirteen (13) PEG channels shall be allocated as follows:

(A) One full-time analog video channel for County Government use;

(B) One full-time analog video channel for Educational Access use by the Montgomery County Public Schools;

(C) One full-time analog video channel for Educational Access for use by Montgomery College;

(D) One full-time analog video channel for Public Access use by Montgomery Community Television or other County designee;

(E) One full-time video analog channel for Governmental use by the City of Rockville;

(F) One full-time video analog channel for Governmental use by the City of Takoma Park;

(G) One full-time video analog channel for Governmental use by the Montgomery County Chapter of the Maryland Municipal League.

(2) The remaining PEG channels shall be allocated by the County in its sole discretion.

(3) Additionally, the Franchisee shall make available up to 10% of the System's total downstream digital capacity for PEG use (the "Digital Set-aside"), subject to a limit of 25 Channel Equivalents. Capacity made available under this section shall be used for PEG purposes only. The County and Franchisee shall work together to implement technical solutions that make the most efficient use of the Digital Set-aside. The requirements of Section 7(d) (Management of Channels), 7(e) (Editorial Control), and 7(f) (Indemnification) shall apply to programming provided over the Digital Set-Aside.

C. Facilities/Equipment: In addition to system capacity, franchise agreements also normally specify the provision of facilities and equipment for PEG use.

St. Paul's PEG facilities requirement:

304.(c). Public access facilities.

304.(c).(1). Throughout the franchise term, the company shall provide, free of rent and other charges, except those specified below, the approximately six thousand six hundred ninety (6,690) square feet of space at the Union Depot… (hereinafter "designated space" or "space") for use by the designated entity responsible for public access. In addition, the company shall provide the approximately two thousand five hundred (2,500) square feet of space at the Union Depot… (hereinafter the "expansion space"). The designated entity shall pay the company fifty (50) percent of the amount (if any) actually paid by the company annually for rent and property taxes for the expansion space, but no more than twelve thousand five hundred dollars ($12,500.00) per annum, plus the operating charges specified below. The designated space shall include the studio, edit facilities and other equipment and resources, available for PEG use as of December 1, 1997. The company shall maintain the availability of existing utilities and HVAC [heating, venting, and air conditioning] in designated space and expansion space as part of the company's obligation to ensure that this space remains commercially habitable consistent with its existing use and will allow the designated entity to expand HVAC and utilities, and allow the designated entity temporary access to its space for such purposes. In addition, the company shall ensure that restroom facilities are available to the designated space, in addition to the restrooms available to the expansion space.

304.(d). In the event the designated entity is denied use of the designated space or expansion space by the company or any third party, the use of the designated space or expansion space is prohibited by local law or code, or the designated space or expansion space is rendered unfit for use as a video production and playback facility, the company shall provide to the designated entity on comparable terms and conditions six thousand six hundred ninety (6,690) square feet of space comparable to the designated space and two thousand five hundred (2,500) square feet of contiguous space comparable to the expansion space, finished to comparable quality and with comparable utilities and services as existed in the designated space and expansion space at the time of relocation at an alternative location (hereinafter "substitute space" or "space"), mutually selected by the company and city, or, if the parties cannot agree, by binding arbitration pursuant to section 430.035 of the city's Legislative Code. The company shall pay reasonable relocation expenses, including, but not limited to, expenses for reinstalling electrical and technical equipment and for third-party reactivation, reconnection of internal equipment, and balancing. The alternative space must be provided so that there is no interruption in PEG operations.

D. Uplink/origination sites: Often included in the PEG facilities requirement is a stipulation for live origination points around the city, including locations on the institutional network (see section V) as well as other PEG systems in the region (if those systems are interconnected [see section II. B]). Portland's franchise, for example, calls for a full range of "uplink sites":

Portland's requirement for live origination points (uplink sites):

7.6(C) Live Origination Points. Both before and after the Cable System Upgrade required under this Franchise, the Grantee shall provide, at a minimum, the transmission capability for Designated Access Providers to originate discrete, live Programming from:

(1) Designated Access Providers;

(2) any location on the Institutional Network (including any High- or Low-Capacity I-Net locations to the extent technically feasible given the priority functioning of the Residential Network); and,

(3) any available Programming origination points on any cable system with which the PEG Access Channels are Interconnected, provided other cable operators permit.

D.2. St. Paul's franchise features a similar "upstream" requirement, while Montgomery County specifies the local institution from which "return feeds" will be guaranteed:

St. Paul's upstream requirement:

300.(j). The company, at its cost, shall maintain and operate the system so that the city or the designated entities or users of PEG use capacity (through the designated entity) may transmit signals upstream from distant locations on the institutional network whether existing as of the effective date of the franchise, or added thereafter; and so that the city may transmit signals upstream from City Hall playback facilities to the headend, to the designated entities' respective master controls and to subscribers. The company shall also maintain and operate the system so that signals can be routed onto the appropriate PEG use channels and so that designated entities may, from their respective master control sites, receive signals from and transmit signals to the headend and out through the institutional network and the subscriber network on the appropriate channels. Designated entities must be able to control signals from distant locations and preview them before they are transmitted to subscribers or to the institutional network. The company shall at all times provide a dedicated connection to the master playback controls for the PEG access channels with sufficient capacity so that each designated entity can program the channels under its control. In addition, the company shall provide a connection with sufficient activated capacity so that the public access designated entities may program all the subscriber network PEG channels for which they have playback responsibility simultaneously, and so the public access master playback control can preview signals originated elsewhere and route them onto the appropriate channels. The company shall maintain and operate the system so that the city or its designated entities can take advantage of the capabilities of the system.

D.3. Montgomery County's return feed requirement:

7 (c) Return Feed From Facilities:

(1) The Franchisee shall provide dedicated, bi-directional fiber optic links between the headend and each of the following PEG facilities, at the addresses designated in Exhibit E:

(i) Montgomery Community Television, Inc.;

(ii) Montgomery College;

(iii) Montgomery County Public Schools administration building;

(iv) Montgomery County Executive Office Building;

(v) City of Rockville City Hall;

(vi) City of Takoma Park City Hall

(vii) Maryland Municipal League;

(viii) University of Maryland;

(ix) Chevy Chase Village; and

(x) Town of Chevy Chase.

These links shall be completed within twelve months of the effective date of the Franchise.

E. Technical assistance: Another item that can be incorporated in franchise requests is assistance from the cable provider to ensure the smooth operation of the PEG facilities.

Austin's technical assistance requirement:

4.7. Access Resources. The Grantee shall provide technical assistance necessary to transmit access programming on the Access Channels as directed by the City, as applicable, on an as-needed basis. In no event, however, shall this obligation include assistance with the production of programming.

F. Channel positions: Once they are assigned, PEG channels can both be guaranteed a place in the basic service tier and assured of a more-or-less permanent placement in the overall channel alignment.

St. Paul's franchise requires that PEG be included in the basic tier (or its equivalent):

300.(l).(4). The company will provide any PEG access channels on the basic tier throughout the life of the franchise, or if there is no basic tier, shall provide the PEG access channels to any person who subscribes to any level of cable video programming service at no additional charge, and otherwise in accordance with federal and state law. If channels are selected through a menu system, the PEG access channels shall be displayed in the same manner as other channels.

F.2. Montgomery County's franchise includes a provision concerning fixed positions of access channels:

7 (4) Access Channel assignments should not be changed unless there is good cause and the entity responsible for managing the Access Channel consents to the change. Such consent to a channel assignment change shall not be unreasonably withheld. Access channel assignments should be the same throughout the System. If the Franchisee decides to change the channel designations for Access Channels, it must provide six months notice to the County prior to doing so, and shall reimburse the County and/or PEG users for any costs incurred for purchasing or modifying any equipment or for making logo changes necessitated by the channel designation changes. Alternatively, the Franchisee may choose to supply such equipment itself, provided such equipment is satisfactory to the County or PEG users.

G. Audio channels: Although audio programming is often overlooked in franchise agreements, audio channels can provide a valuable local alternative to the lamentable state of commercial radio. Such programming (which will become increasingly viable in the digital cable environment, with its expanded system capacity) is acknowledged in Portland's franchise.

Portland's Audio Channel requirement:

(E) Stereo Audio Channel. Grantee shall designate and provide for PEG Access use of one Upstream and one Downstream FM or digital stereo audio Channel for PEG Access audio Programming or audio simulcast with PEG Access video Programming. PEG Access use of these channels shall have priority over all other uses, so long as Grantee is notified ninety (90) days in advance of each use.

H. Independent management: While a number of PEG operations around the country are managed by cable companies themselves, independent, municipal, and institutional management of PERG is vastly preferable. "The creation of a nonprofit corporation," notes the Buske Group, "is broadly recognized as an advantageous approach to developing and facilitating public access as well as educational and government access in a community." Among the advantages of this model, Buske explains, are the following:

• Demonstrated track record of achievement in many communities.

• Primary purpose of nonprofit is to assure the wide use of access resources.

• Operations and programming efforts are more responsive to the community's needs.

• Provides a community-based approach to decision making.

• Board of Directors of nonprofit is broad-based and representative of the community.

• More accountability to the community.

• Provides a degree of insulation between local government and cable company in area of program content and liability for program content. This insulation has proven to be extremely valuable to both the local government and cable company in many communities.

• Allows government to have accountability function regarding public access rather than control over content of public access programs.

• Because of the nonprofit status and the combined PEG approach there are more potential sources of funding for special activities and projects.

Nonprofit access organizations, Buske adds, can provide a variety of management services, including the following:

1. Operate Public, Educational, and Government Access Channel(s): Operate the access cable channels for PEG access programming with the primary purpose being to administer, coordinate, and assist those requesting access on a non-discriminatory basis.

2. Operate a Community Access Center: Provide a video production facility and equipment that shall be available for public use at such hours and times as are determined by the access corporation. Access to equipment and facilities shall be open to all those who receive training or who receive a certification from the access corporation identifying the user(s) as having satisfied training requirements.

3. Develop Operating Rules and Procedures: Develop rules and procedures for use and operation of the access equipment, facilities and channel(s) and file such rules and procedures with the City.

4. Training: Teach video production techniques to City residents and, when requested, City and school employees. Provide technical advice for the productions.

5. Playback/Cablecast: Provide for the playback/cablecasting of programs on the access channel(s).

6. Maintenance of Equipment: Provide regular maintenance and repair of all video equipment.

7. Promotion/Outreach: Actively promote the use and benefits of the access channel(s) and facilities to subscribers, the public, access users, community groups, local government, educational institutions and the cable operator.

8. Volunteer Management: Develop and manage a pool of volunteers who create community-based programs and assist others wishing assistance.

Palo Alto's franchise includes a stipulation concerning the independent operation of PEG channels:

7.11.3 Requirements Regarding Rules and Procedures for Use of PEG Access Channels.

(1) The City may designate a Community Access Organization to manage the use of PEG access channels provided in the Service Area, which are provided pursuant to the Franchise.

(2) The Community Access Organization shall establish and enforce rules for use of the PEG Access channels to ensure non-discriminatory access to the extent required by applicable Law to one or more channels to similarly situated Users, and promote use and viewership of the channels, consistent with the obligation to provide non-discriminatory access to similarly situated Users. The City shall be responsible for establishing and enforcing rules for use of the PEG Access channels during any period such Community Access Organization does not exist.

(3) TCI [now Comcast] may not exercise any editorial control over the content of programming on the designated PEG Access channels (except for such programming TCI may produce and cablecast on the same basis as other PEG Access channel Users).

(4) The PEG Access channels shall be available at no charge to Users, the Community Access Organization, and/or the City.

(5) PEG Access channels may not be used for the cablecast of commercial advertising or a program whose purpose is commercial and for-profit without the express written permission of TCI.

I. Additional channels: Even an expansive franchise, such as Portland's (which requires eight PEG channels), leaves room for growth by incorporating triggers for the deployment of additional access channels.

Portland's requirement for additional PEG channels:

7.4 Expansion of Access Channels.

(A) In areas where the Cable System Upgrade under in Section 11 has been completed and for those Subscribers who have been cut-over to the Upgraded Cable System, and prior to completion of the digital transition under Section 7.2(D), the Grantee shall reserve additional Downstream Standard Video Channels, so that there are a total of nine (9) Downstream Channels, for PEG Access use. The Jurisdictions may require Activation of these reserved Access Channels when a Designated Access Provider demonstrates to the Jurisdictions, and the Jurisdictions provide such information to the Grantee, that additional reserved Channels are needed. In determining such need, the Jurisdictions shall use the following criteria, as applicable to the type of Access Channel to be Activated:

(1) Public Access Channels: During eight (8) consecutive weeks, the Public Access Channel is in use for Original programming at least eighty percent (80%) of the time, seven (7) days per week, for any consecutive five (5)-hour block during the hours noon to midnight, and programming is Locally Produced or Locally Sponsored; or,

(2) Educational Access Channels: During eight (8) consecutive weeks, the Educational Access Channel is in use for Original programming at least eighty percent (80%) of the time, five (5) days per week, Monday through Friday, for any consecutive five (5)-hour block during the hours 9:00 am to 9:00 pm, and programming is Locally Produced or Locally Sponsored; or,

(3) Government Access Channels: During eight (8) consecutive weeks, the Government Access Channel is in use for local, Original programming at least eighty percent (80%) of the time, five (5) days per week, Monday through Friday, for any consecutive five (5)-hour block during the hours 9:00 am to 9:00 pm, and programming is Locally Produced or Locally Sponsored.

J. Promotion: Many PEG operations are well-kept secrets, unfortunately, overshadowed by network TV, ESPN, HBO, and similar mainstream fare. Thus a number of forward-looking franchise agreements include requirements for the promotion of PEG programming, covering such items as public service announcements, electronic program guide listings, and fliers inserted in subscribers' bills.

St. Paul's requirement for PEG promotion:

304.(h). The company shall provide the following promotional support for access:

304.(h).(1). Two (2) cross-channel public service announcement spots daily to promote community programs and the availability of community programming facilities and training;

304.(h).(2). All PEG access channels shall be listed on the electronic program guide (EPG) and in printed materials describing or listing channels on the system;

304.(h).(3). Insertion at no charge in at least two (2) bill stuffers annually for promoting the designated entity's service or generally promoting community programming, which bill stuffers shall be produced by the designated entity and shall conform to the company's standards and policies for size and weight. Any bill stuffer denigrating the company, its service or its programming is not permitted.

304.(h).(4). Distribution of the designated entity's newsletter to the company's employees.

J.2. Palo Alto's requirement for PEG promotion:

7.11.7 Promotion. In order to help develop and maintain (a) awareness of the PEG Access resources and services, and (b) viewership of the PEG Access channels by Subscribers, TCI [now Comcast] shall, during the term of this Agreement, provide the following promotional services to the Community Access Organization, free of any charges:

(1) Program schedule information for each PEG Access channel shall be listed in all print and electronic program guides provided by TCI to Subscribers, in the same manner as the program schedule information for other cable channels is listed. TCI shall provide the Community Access Organization access to third party providers to include PEG Access channel listings in their print and electronic program guides provided by TCI to Subscribers. The Community Access Organization shall be responsible for the timely provision and updating of these listings. Any fees associated with special placement or handling beyond the standard manner of presenting program schedule listings shall be the responsibility of the Community Access Organization.

(2) CAO Ad Avails [listing of spots available].

(A) During the first eighteen months after the effective date of this Agreement, TCI shall provide to the CAO, free of charge, five thirty-second ad avails per week, one of which will be in prime time and four of which will be in non-prime time.

(B) After the first eighteen months after the effective date of this Agreement, the CAO may purchase from the Cable System, at its lowest unit rate, up to five thirty-second ad avails per week, one of which will be in prime time (Pacific Time zone) and four of which will be in non-prime time. Nothing in Section 7.11.7(2) shall be construed to limit the CAO’s ability to purchase additional ad avail time from the Cable System at market rates.

(3) On an annual basis, TCI shall allow the Community Access Organization to submit to it written or printed material, created at the Community Access Organization’s expense, to be mailed to all subscribers within the Service Area. All costs of duplicating and mailing the material shall be borne by the Community Access Organization. TCI shall provide access to its vendors so as to afford the Community Access Organization the most affordable printing, delivery and mailing price for the distribution of the CAO’s written or printed material to Subscribers.

J.3. Monterey's requirement for promotion of PEG channels:

7.11. H. Promotion. In order to help develop and maintain (a) awareness of the PEG access resources and services, and (b) viewership of the PEG access channels by Monterey cable subscribers, the Grantee shall, throughout the term of this Agreement, provide the following promotional services to the Access Corporation, free of any charges:

1. Thirty (30) 30-second PEG access promotional announcements per month on the cable programming services in which local advertising is inserted, to be scheduled no less than ninety (90) days prior to cablecasting. In addition:

a. Ten (10) of these monthly PEG access promotional announcements shall be inserted during “prime time” hours (i.e., between 7:00 p.m. and 11:00 p.m.), and

b. Five (5) of the monthly PEG access promotional announcements that are inserted during prime time hours shall be placed on channels selected by the Access Corporation.

2. Program schedule information for each PEG access channel shall be listed in all print and electronic program guides provided by the Grantee to subscribers, in the same manner as the program schedule information for other cable channels is listed. The Grantee shall provide the Access Corporation access to third party providers to include PEG access channel listings in their print and electronic program guides provided by Grantee to its subscribers. The Access Corporation shall be responsible for the timely updating of these listings. Any fees associated with special placement or handling beyond the standard manner of presenting program schedule listings shall be the responsibility of the Access Corporation.

3. On an annual basis, the Grantee shall allow the Access Corporation to submit a billstuffer, created at the Access Corporation’s expense, to be inserted into all customer statements within the Grantee’s cable system in Monterey County. All costs for insertion and postage shall be provided by the Grantee. The Grantee shall provide access to its vendors so as to afford the Access Corporation the most affordable printing price for the billstuffers. In consideration of regulatory notification requirements, the Grantee has final approval on the dates for insertion.

 

 

Technical Standards

Technical Standards

 

A. System design

B. Interconnections

C. Free cable service

D. Free modem connections

E. Emergency override

F. PEG quality-of-service guarantees

G. Technical assessment

H. Fiber requirements

I. Set-top attachments

With the rebuild of most cable systems in the country now complete, technical issues may seem less of a concern in franchise renewal negotiations. As Baller Herbst explain,

New or rebuilt cable systems are typically being designed to include a combination of fiber optic cable and coaxial cable in what is called a Hybrid Fiber Coaxial (HFC) system. Such systems generally include neighborhood nodes that serve 150 to 1,200 homes in order to increase the capability of providing unique programs and services to particular areas and expanding the overall capability of the system. Systems are also being designed to take advantage of digitization and compression that further expands system capacity.

In recent years, HFC systems have most often had design capacities of 550-750 MHz. Now, systems with capacities of 860 MHz to 1 GHz are emerging. This translates to 120 to 200 analog channels. A portion of the capacity of such systems is usually activated with programming in an analog format, with the remaining capacity reserved for digitization.

Thus Monterey's franchise includes a basic statement of "system functionality":

1. As rebuilt or upgraded and maintained, the Cable System must have reliability comparable to the reliability of those cable systems whose initial construction or rebuild was completed after 1998.

2. As designed, rebuilt, or upgraded and as maintained, the Cable System must be capable of being segmented to serve four hundred fifty (450) subscriber homes per node without additional fiber construction. In order to address subscriber demand for interactive services, the Grantee shall provide a minimum of 200 kbps per subscriber of interactive services in the downstream direction and 66 kbps per subscriber of interactive services in the upstream direction. (Section 7.1.B.)

The FCC has released technical standards for cable systems, and Andrew Afflerbach of Columbia Telecommunications Corporation has prepared an overview of modern cable technology, "Technical Background: Cable Architecture," which he presented at a USC Symposium on the Los Angeles Cable System in March 2004.

Even state-of-the-art cable systems need to be monitored, however, to ensure (among other things) that PEG channels enjoy the same technical advantages of their commercial counterparts; that the cable system is interconnected to adjacent systems (for the regional exchange of noncommercial programming, for example); that free cable and modem connections are offered to public and educational institutions; and that technical assessments take place periodically over the life of the franchise.

A. System design

St. Paul's franchise stipulates the technical standards for an upgraded system:

ARTICLE III. CABLE SYSTEM FEATURES

Section 300. Subscriber network.

300.(a). The company will upgrade the portion of the cable system primarily designed to provide cable services to residential subscribers as required by this Article III. The upgrade must be completed no later than thirty-six (36) months after the effective date of this franchise.

300.(a).(1). The upgraded system will use a fiber to the area node architecture (hybrid fiber-coax).

300.(a).(2). On average, the system will pass no more than one thousand two hundred (1,200) residential units per fiber node, and the plant from any node will not pass more than one thousand five hundred (1,500) residential units. On average, there will be no more than seven (7) active components in a cascade from the headend to the tap from which a subscriber is served, and no more than nine (9) active components in any cascade.

300.(a).(3). All active distribution electronics will be 750 MHz equipment, or equipment of higher bandwidth. All passive electronic components will be rated at 1 GHz or higher.

300.(a).(4). The cable system will be two-way activated upon completion of the system upgrade. This two-way activated capacity must be capable of supporting two-way high-speed Internet access via the cable system.

300.(a).(5). All power supplies will be inspected and replaced as necessary to provide reliable service; backup power supplies will be provided as described in more detail below.

300.(b). System functionality.

300.(b).(1). As designed, upgraded and maintained, the subscriber network must have a reliability comparable to the reliability of the highest quality cable systems whose initial construction or rebuild was completed after 1996. Reliability is measured in terms of number of outages, outage duration and number of subscribers affected by outages.

300.(b).(2). As designed, upgraded and maintained, the cable system must be adequately segmented to meet subscriber demand.

300.(b).(3). As designed, upgraded and maintained, the cable system must be able to deliver high quality signals that meet FCC technical quality standards.

300.(b).(4). The cable system must be designed, and must be maintained so that it has the upgradeability and flexibility to provide new services without the need for substantial new network construction.

300.(b).(5). Upon completion of the upgrade, all facilities and equipment will be installed (except customer premises equipment) so that the two-way active capability required by section 300(a)(4) is fully ready to operate upon subscriber request, with no further adjustments to the system.

300.(b).(6). The requirement that backup power be provided requires twenty-four-hour backup at the headend, three-hour rated backup at each node, three-hour rated backup covering coaxial amplifiers throughout the system, and six-hour rated backup for hub sites and optical transition nodes. Such equipment shall be constructed and maintained so as to cut in automatically upon failure of the commercial utility power; to revert automatically to a standby mode when alternating current power returns; and so that it complies with all utility and other safety regulations to prevent the alternate power supply from powering a "dead" utility line so as to prevent injury to any person. The term "rated" in this section refers to rated at 68 F. Backup power supplies will be monitored remotely to determine condition and when they have begun to operate due to loss of electrical power.

300.(b).(7). The system shall be capable of and shall deliver standard color and monochrome signals on all channels without noticeable picture degradation or visible evidence of color distortion or other forms of interference directly attributable to the performance of the cable system; and without noticeable sound distortion. The company shall use equipment generally used in high-quality reliable modern systems. This requires that equipment be installed at the headend to allow the company to cablecast signals in substantially the form received, without substantial alteration or deterioration (for example, the headend should include equipment that will transmit color video signals received at the headend in color, and stereo signals in stereo). Equipment must be installed so that all closed captioning programming received by the cable system shall include the closed caption signal so long as the closed caption signal is provided consistent with FCC standards.

A. 2. Palo Alto's technical standards:

SECTION 7. SYSTEM FACILITIES, EQUIPMENT, AND SERVICES

7.1. Cable System Design and Functionality

…

(1) The Cable System will use an optical fiber-to-the-node architecture or a technology and architecture providing equivalent functionality, capacity and reliability.

(2) TCI [now Comcast] intends to deploy fiber optic cables to nodes, which serve no more than 760 residential subscribers per node.

(3) Sufficient fiber-to-the-node shall be constructed to allow segmentation of the node with no significant additional construction such that no more than 300 homes are required to share the return (upstream) bandwidth allocated for two-way services.

(4) All active electronics replaced or added after the effective date of this Agreement will be 750 MHz-capable equipment, or equipment of higher bandwidth. All passive components replaced or added after the effective date of this Agreement will be 1 Gigahertz-capable equipment.

(5) The Cable System will be two-way activated upon completion of the Cable System rebuild and/or upgrade, and TCI will maintain two-way activation until or unless market demand for services using such two-way activation is insufficient economically to justify the cost of continued maintenance of two-way activation. TCI shall notify the City in writing in advance of any discontinuance of two-way activation.

(6) The Headend shall be supported with 24-hour backup non-interruptible power supplies. Each node shall have three-hour backup and hub sites and optical transfer nodes shall have six-hour backup power supplies. Such equipment shall be constructed and maintained so as to activate automatically upon a failure of utility service, to revert automatically to a standby mode when utility service is restored, and to comply with all utility and other safety regulations to prevent the alternate power sources from energizing a “dead” utility line in order to prevent injury to any Person. Power to the nodes will be monitored remotely.

B. Interconnections: Although the world of cable is fractured into thousands of local franchises, the actual operation of these systems (dominated by a handful of cable giants) is much more seamless. Comcast uses internal network connections to insert advertising that runs through service areas that span several distinct franchises, for example, but many PEG operations remain isolated from their peers just a few miles away. Recognizing this problem, several forward-looking franchises now insist on a variety of interconnections, linking educational institutional institutions in the area, for example, or fostering programmatic exchange among neighboring PEG channels.

Palo Alto's interconnection requirement:

7.2. Interconnection.

7.2.1 Current Interconnection with Educational Providers. TCI [now Comcast] shall continue to provide at least the level of interconnection that is in place on the effective date of this Agreement between the Cable System serving the Service Area and those communities contiguous to the Cable System on the effective date of this Agreement, including the DeAnza-Foothills Community College and Stanford University. If the City requests that TCI interconnect the Cable System with another Cable Communications System in order to provide locally produced educational access programming from other qualified educational facilities, TCI shall promptly enter into negotiations with that other Operator to determine, among other matters, where the interconnection shall be located, how costs for the interconnection will be shared, and a schedule for promptly completing the interconnections. In the event that the interconnection request is for an area served by TCI or its affiliate, TCI agrees to provide such interconnection so long as TCI (or its affiliate, as applicable) is reimbursed by the requesting party for TCI’s reasonable time and material charges or costs required to provide such interconnection.

7.2.2 Cooperation. The City understands that interconnection will require the cooperation of other Operators. The City shall use reasonable efforts to assist TCI in achieving the cooperation necessary to achieve the interconnection; provided, however, neither Party shall be liable to the other Party or its Affiliates if either Party’s efforts fail to achieve the necessary cooperation.

B.2. St. Paul's requirement for interconnection with neighboring cable systems:

Section 303. Interconnection with neighboring CATV systems.

303.(a). The company shall cooperate with any interconnection corporation, regional interconnection authority or city, county, state or federal regulatory agency which may be hereby established for the purpose of regulating, financing or otherwise providing for the interconnection of cable systems beyond the boundaries of the city.

303.(b). Upon city request, the company shall negotiate in good faith to interconnect the cable system with contiguous cable systems. Within three (3) months of a city request, the company shall report to the city the results of the negotiations. Where the company has negotiated in good faith with the cable operator of a contiguous cable system and where that operator refuses to interconnect, the city shall not penalize the company for such failure to interconnect. The city shall not require the company to interconnect where the company would be required to pay more than its pro-rata share of the interconnection costs based upon the number of basic subscribers served.

303.(c). Notwithstanding the above, except in the case of an unaffiliated cable operator of a contiguous cable system that refuses to interconnect, the company shall interconnect with all contiguous cable systems operated in the Minneapolis-Saint Paul metropolitan area no later than six (6) months after the effective date of this franchise, unless the city determines that a particular interconnection is not in the public interest. The interconnections shall permit:

303.(c).(1). The interconnected systems to exchange PEG programming intended to be carried on the subscriber network, including, by way of example and not limitation, live coverage of public meetings; and

303.(c).(2). Institutional network signals, including by way of example and not limitation, data transmissions so that governments on the interconnected systems can access remote databases, and video transmissions to permit teleconferencing.

B.3. Portland's interconnection requirements:

10.7 Interconnection with Ed-Net [a satellite-based, two-way audio, one-way video network, established as a state agency in 1989].

(A) Grantee will continue to provide the existing interconnection with Ed-net, accomplished indirectly through the Interconnect with the westside cable operator, as is in existence as of the effective date of this Franchise, until Ed-Net ceases operation.

(B) Grantee shall provide all necessary equipment at Grantee's Headend and all necessary Facilities on the Grantee's Cable System between Grantee's Headend and the Interconnection of the westside cable operator to accomplish the routing of Programming:

(1) from the Interconnection of the westside cable operator through the Headend onto any Access Channel on the Cable System and to the headends of other cable systems Interconnected with the Grantee; and

(2) from the Access Corporations, any program origination point on the Cable System, and the headends of other cable systems Interconnected with the Grantee, through the Headend to the Interconnection of the westside cable operator.

(C) Grantee will fully cooperate with Ed-Net personnel in identifying appropriate equipment to be used at the Ed-Net facility to accomplish Upstream and Downstream Channel transmissions.

10.8 Interconnection with other Cable Systems and Competitive Access Providers.

(A) Grantee shall continue without limitation all Interconnections in effect on the effective date of this Franchise.

(B) Grantee shall maintain Interconnections with all other major, contiguous cable systems in Washington, Multnomah and Clackamas Counties, Oregon and Clark County, Washington. The Interconnect Capacity shall provide the bi-directional capability to transmit Programming. The Interconnections shall be capable of receiving and delivering, among other things, Local Origination and PEG Access Programming produced by Grantee and other major, contiguous cable systems in Washington, Clackamas and Multnomah counties, Oregon and Clark County, Washington and Access Programming carried by the Grantee or those cable systems. The Grantee shall cooperate with the Jurisdictions in utilizing available Interconnect capacity to assist with video and data communications applications by local and state public and nonprofit organizations, including two-way applications between and among the Grantee, the Public Communications Network operated under the auspices of the Metropolitan Area Communications Commission, the Westside cable operator and Ed-Net. Upon prior approval by the Jurisdictions, the Grantee may credit Capital Costs of such Interconnection against funds set aside for Institutional Network extension under Section 9.1(C), pursuant to the procedures of that Section.

B.4. Monterey's requirements for interconnection with both affiliated and unaffiliated cable (and Open Video) systems in the area:

7.2 Interconnection.

A. Interconnection with TCI Systems [now Comcast].

The Grantee’s cable system (including the Institutional Network which shall be constructed pursuant to this Agreement) serving the City of Monterey and all TCI systems serving incorporated local governments within Monterey County and serving unincorporated Monterey County are served from a common headend and therefore function as a single cable system. The Franchisee shall take all necessary technical and construction steps to ensure that the communities which are served by that common headend are 100% interconnected for PEG access programming and institutional network (I-Net) services throughout the life of this Agreement. There shall not be a charge other than described in Section 7.3.H and the separate Institutional Network Agreement for the use of such interconnection (with TCI systems) for PEG access programming and I-Net services.

B. Interconnection With Other Systems Serving the City of Monterey and Other Adjacent Systems.

The Grantee shall take all necessary technical and construction steps to ensure that the Monterey cable system (as described above in Section 7) is interconnected with at least the following: all cable systems serving Department of Defense property which is located within the City of Monterey (Presidio of Monterey and the Naval Postgraduate School); all “willing” cable systems directly contiguous to the portion of the TCI cable system which serves the City of Monterey; and any Open Video System established pursuant to Section 653 of the Cable Act unless Federal Law changes and no longer requires such interconnection. This bandwidth shall provide the capability to transmit upstream channels and downstream channels in each direction, together with data, telemetry, audio, and other non-video signals using the INet and, when applicable, the residential network. The interconnection shall be capable of receiving and delivering, including but not limited to, PEG access programming and I-Net services to and from interconnected systems. If the City directs the Grantee to interconnect its cable system with another system, Grantee shall promptly enter into negotiations with such other system to determine where the interconnect shall be located and how costs for the interconnection will be shared, and to develop a schedule for prompt interconnections. The parties shall have one hundred twenty (120) days to reach agreement. For the purposes of this section, “willing cable system” means the franchised system of any cable operator who is otherwise willing to interconnect with Grantee’s cable system on fair and reasonable terms and who pays its own cost of installation and operation of facilities located within its own territory which are required for the interconnection.

C. Free cable connections: Recognizing the value of cable communications to schools, libraries, and other public institutions, many cities now require free cable connections as part of a community-service requirement.

Austin's service-to-the-community requirements:

SECTION 5. SERVICE TO COMMUNITY FACILITIES

5.1. Public Primary and Secondary Schools. If requested to do so by the school authorities, Grantee shall provide during the life of this Franchise each primary and secondary public school located in the Franchise area, and within one cable mile of the Cable System one (1) free cable television service outlet at the most popular service level. Each free outlet shall include a free Converter, if necessary, and maintenance thereof by Grantee. The hardware and the installation thereof for an internal video distribution system requested by primary and secondary public school authorities shall be provided at Grantee's cost. In addition, Grantee will continue to provide the existing free outlets and equipment (as set forth in Exhibit F).

Grantee will, at the school's request, provide an appropriate interface to any internal video distribution system in the school, so long as the school insures that such internal system complies with the FCC's signal leakage and signal quality standards and does not interfere with or adversely affect the system, including the upstream capacity. There will be no charge for cable service on any additional outlets in the school except for a pass through of any charge imposed on Grantee by a program supplier, and Grantee may impose a charge for equipment for additional outlets.

Grantee will provide each connected school with a free connection to a Time Warner on-line service for personal computers to the extent it is available on Grantee's Cable System and Transmission Network. Upon request each connected school will receive one free modem and free access to the Time Warner on-line service for use during the school year. Additional modems will be made available, upon request, at cost. Free access to the Time Warner on-line service will be provided through each such modem for use during the school year. In addition, the Grantee will sponsor a workshop to educate teachers about the Time Warner on-line service and to provide them with an opportunity for hands-on training.

5.2. Public Institutions of Higher Education. If requested to do so by the public institutions of higher education authorities, Grantee shall provide during the life of this Franchise, each campus of a public institution of higher education located within the City of Austin and located within two hundred (200) feet of Grantee's plant one (1) free cable television service outlet at the most popular service level. Each free outlet shall include if necessary a free Converter and maintenance thereof by Grantee. In addition, Grantee will continue to provide the existing free outlets and equipment (as set forth in Exhibit F).

5.3. City Facilities. Upon the request of City authorities Grantee shall provide during the life of this Franchise each municipal facility owned or operated by the City and located within the City of Austin and located within two hundred (200) feet of Grantee's plant one (1) free cable television service outlet at the most popular service level. Each free outlet shall include if necessary a free Converter and maintenance thereof by Grantee. All additional cable television hardware and the installation thereof requested by City shall be provided at Grantee's Direct cost. In addition, Grantee will continue to provide the existing free outlets and equipment (as set forth in Exhibit F)….

5.4. County Facilities. Upon the request of County authorities Grantee shall provide during the life of this Franchise each County facility owned or operated by the County and located within the City and located within two hundred (200) feet of Grantee's plant one (1) free cable television service outlet at the most popular service level. Each free outlet shall include if necessary a free Converter and maintenance thereof by Grantee. In addition, Grantee will continue to provide the existing free outlets and equipment (as set forth in Exhibit F).

C.2. St. Paul's requirement for free cable connections for designated sites:

Section 305. Free drops to subscriber network.

305.(a). In addition to providing the institutional network drops required by this franchise, the company shall:

305.(a).(1). Continue to provide a free drop to the subscriber network and free basic and expanded basic service to each public and private school, public library branch, police and fire station, community center and public building and to such other institutions as have been requested by the city, where the drop and service had been provided prior to December 1, 1997;

305.(a).(2). Provide a free drop to the subscriber network and free basic and expanded basic service to each public and private school, public library branch, police and fire station, community center and public building that requests a drop in writing, and to such other institutions as the city may reasonably request from time to time. Where a drop requested under this section 305(a)(2) would require the company to install a drop longer than four hundred (400) feet in length measured from the closest street, the company may charge the location for the cost of the labor and materials required to extend the drop beyond the four hundred (400) feet.

305.(b). The company is only required to provide a single free drop to the subscriber network, to a single outlet at a point within the location selected by that location. However, the location may extend the drop to multiple outlets and receive free basic and expanded basic service at each outlet so long as such extension does not result in any violations of leakage standards which the company is obligated to meet. A location that wishes to install multiple outlets may do so itself, or may contract with the company to do so.

D. Free modem connections: With the addition of high-speed Internet access to cable's offerings, some communities are now adding free cable modems to the operator's community service obligations.

Palo Alto requires such service for public schools and libraries:

7.11.6 Cable Modem Equipment. In deploying and offering any Internet access service after completion of the System rebuild, TCI [now Comcast] shall provide to all public schools and public libraries meeting the installation standard specified in Section 7.11.5 and without charge and without offset against the franchise fee owed to the City by TCI under this Agreement, one free cable modem and free unlimited access to both the Internet and TCI’s affiliated cable modem service.

D.2. Montgomery County requires free modem service for county agencies under its Supplemental Institutional Network Services provision (Exhibit F of the franchise agreement):

SUPPLEMENTAL INSTITUTIONAL NETWORK SERVICES

If the Franchisee provides commercial cable modem service, the County may request use of such service at no charge subject to the conditions specified below. The County recognizes that if its use of this service exceeds the conditions below, the County will initiate corrective action to preclude substantial negative impact on subscriber services.

The Franchisee shall dedicate 2 Mbps of bandwidth, on a per channel basis, for shared cable modem connectivity in a VLAN environment for County locations. The network, with the interconnection described below, will allow each location access to any other location within the Institutional Network and the FiberNet or within the subscriber network in a secure fashion without using the Internet.

The Franchisee shall provide, at no expense to the County, up to 100 cable modems for use by County agencies in connection with services provided under this Exhibit. These modems shall remain the property of the Franchisee and shall be returned to the Franchisee at the end of the Franchise term, or when no longer required by the County to provide connections to the Institutional Network or the FiberNet. The County shall bear the cost of each additional cable modem provided by the Franchisee for this purpose, and any related installation cost. Only cable modems approved for use by Franchise may be placed on the network.

E. Emergency override: Another acknowledgement of the near-ubiquitious nature of cable communications, a number of cities now require an emergency alert system to be built into the cable platform.

St. Paul's emergency override requirement:

300.(f). Throughout the franchise term, the company shall provide and maintain all equipment necessary and all capacity necessary to allow for an audio and visual override on all channels simultaneously for public emergency announcements by the city. This emergency override system must be designed so that it can be activated remotely by the city, or those authorized by the city to utilize the system. It is the city's responsibility to develop a plan for its use of this capability, and the company's responsibility to cooperate with the city so that the plan may be implemented. The company shall not be responsible for any action overriding channels that may conflict with federal, state or local law. The emergency override system must operate in a manner consistent with any emergency alert system that the company is obligated to provide under federal or state law.

E.2. Austin's emergency override requirement:

SECTION 24. EMERGENCY OVERRIDE

24.1. Emergency Override. The Grantee shall maintain systems, equipment, and procedures permitting preempting of the regular signal on all channels with emergency warning signals originating from the City of Austin Office of Emergency Management. The following stipulations shall apply, except where and to what extent they may be preempted by FCC regulations:

24.2. The Director of the Office of Emergency Management (OEM) shall determine when the Emergency Cable Override is to be activated in response to actual or impending emergency conditions.

24.3. The Grantee shall provide and maintain all equipment, systems, software, services, security provisions, and procedures required for a fully operational emergency cable override warning system in accordance with FCC rules. Any equipment necessary for activation of the system by the Office of Emergency Management shall be provided by the Cable Operator. Activation points shall be, at minimum, the Austin-Travis County Emergency Operations Center and one other backup point within the Austin area specified by OEM.

24.4. The cable override shall consist of audio and crawler text signals as required by the Federal Communications Commission rules governing the new Emergency Alert System (EAS).

24.5. The system shall be tested as determined by the Office of Emergency Management not more than monthly and not less than annually.

24.6. The Grantee shall cooperate fully with the Office of Emergency Management in all other matters pertaining to a functioning emergency cable override system.

F. PEG quality-of-service guarantees: Recognizing that cable's record of technical performance is far from spotless, some cities have incorporated quality-of-service guarantees in their franchise agreements.

Portland's franchise includes a provision designed to guarantee the quality of PEG signals:

7.9 Change in Technology. In the event Grantee makes any change in the Cable System and related equipment and Facilities or in Grantee's Signal delivery technology, which directly or indirectly substantially affect the Signal quality or transmission of Access Programming, Grantee shall at its own expense take necessary technical steps or provide necessary technical assistance, including the acquisition of all necessary equipment, to ensure that the capabilities of Designated Access Providers or Access Programmers are not diminished or adversely affected by such change.

G. Technical assessment: As a means of ensuring continued quality-of-service guarantees, a number of cities have built periodic technical assessments into their franchise agreements.

Portland's technology assessment requirement:

11.5 Technology Assessment/Early Termination.

(A) The Jurisdictions may notify Grantee on or after January 1, 2002 that the Jurisdictions will conduct a Technology and Compliance Assessment of Grantee's Cable System. Upon completion of the Technology and Compliance Assessment, the Jurisdictions may reduce the term of the Franchise by not more than four (4) years if the Jurisdictions find that Grantee has failed to successfully comply with the conditions set forth in this Section. The Jurisdictions shall notify Grantee of such findings, and the basis therefore, on or before March 31, 2003.

(B) The Jurisdictions may reduce the term of the Franchise pursuant to Section 11.5(A) if the Jurisdictions find:

(1) Grantee is not in substantial compliance with the material terms and conditions of this Franchise, including without limitation, Sections 5 through 14;

(2) (a) Grantee's technology and performance are inconsistent with current overall industry technical practices and range and level of services, existing and planned, in either the one hundred (100) largest U.S. cable systems that have been renewed or entered into since January 1, 1997, or in cable systems of more than 50,000 subscribers in the Portland MSA ("Survey"), taking due consideration of the then current practices and trends in the industry; and Grantee has not agreed to conform with industry or Portland metropolitan area practice in the five (5) year period between 2005 and 2010 by implementing improvements that have been demonstrated in the Survey to be commercially feasible. The Jurisdictions shall designate an expert or experts in the area of cable television to conduct the Survey and to assess, in full consultation with Grantee, and advise the Jurisdictions whether Grantee meets the requirements of Subsection 11.5(B)(2).

G.2. Montgomery County's mid-term technical review and "Upgrade Option" requirements:

6 (v) Mid-Term Technical Review:

(1) In addition to any periodic performance evaluations conducted pursuant to Section 6(r) herein, the County may also conduct a Mid-Term Technical Review of the Franchisee's Cable System once during the eighth and ninth year of the Franchise. The Franchisee shall fully cooperate and assist the County in conducting such review.

(2) Purpose: The purpose of the Mid-Term Technical Review shall be to evaluate the technical performance and capabilities of the Franchisee's System, including the Institutional Network, to determine whether to require a system upgrade to conform with technical improvements then commonly in use in the industry and available on systems in communities similar to the County. Subject to the provisions of this Section 6(s), the County may amend this Franchise Agreement to require the Franchisee to upgrade its System to incorporate technical improvements (the "Upgrade Option").

(3) County's Initial Review: To determine whether to invoke the Upgrade Option, the County shall first commence a review of the Cable System. Such review shall be conducted to enable the County to determine the following: (i) whether the Cable System should be upgraded or rebuilt; (ii) whether the Cable System's technical standards should be revised or improved; (iii) whether additional channels, equipment, facilities or support are required for public, educational and governmental use of the Cable System; and (iv) in general, whether any other changes in Franchise requirements should be made. Each determination under this paragraph shall be based upon the reasonable cable-related needs and interests of the County and the community, considering the costs to the Franchisee of meeting those needs and interests during the remaining term of the Franchise.

(4) Franchisee's Report: To assist in the County's initial review, the Franchisee shall, at the County's request, promptly submit a report to the County describing advances in cable technology nationwide, the potential benefits and disadvantages of those advances for consumers, and any plans or timetables the Franchisee may have for instituting such changes in technology.

(5) Public Hearings: If, after conducting its initial review, the County determines that a system upgrade may be warranted, it shall hold a public hearing to enable the general public and the Franchisee to comment and to present additional information.

(6) Upgrade Order: Following such hearings, the County shall determine whether the exercise of the Upgrade Option is warranted, based upon the reasonable cable-related needs and interests of the community, considering the costs to the Franchisee of meeting those needs and interests. The County shall issue a written order ("Upgrade Order") stating whether an upgrade is required, describing any upgrade to be implemented, and setting forth the basis for its decision. If an upgrade is required, the County shall set forth any relevant conditions.

(7) Franchisee's Response. Within sixty (60) days after the County issues the Upgrade Order, the Franchisee shall notify the County in writing whether it will comply with the Order. If the Franchisee does not so notify the County within sixty (60) days, the Franchisee will be deemed to have agreed to comply with the Upgrade Order.

(8) Amendment of the Franchise Agreement. If the Franchisee agrees to comply with the Upgrade Order, the parties shall amend this Franchise Agreement accordingly.

(9) Rejection of the Upgrade Option. If, however, the Franchisee is unwilling to comply with the Upgrade Order, the Franchisee shall, notify the County in writing, pursuant to Section 626 of the Cable Act, that it wishes to commence proceedings to renew the Franchise. If, at the time of such notice, more than three (3) years remain in the term of the Franchise, such notice shall be deemed, by mutual agreement, to shorten the term of the Franchise and this Agreement so that the Franchise and this Agreement shall terminate thirty-one (31) months from the date of the notice.

H. Fiber requirements: Although, according to Baller Herbst, "… the FCC has ruled that cities cannot require cable operators to utilize specific transmission technologies in upgrading or rebuilding their cable systems," some communities have successfully incorporated fiber-optic requirements in their franchises.

Montgomery County's fiber optic requirement:

6 (d) (2) The System backbone connections shall utilize fiber optic links (headend to hubs, hubs to hubs, and hubs to nodes). The System shall be designed and engineered with redundant paths between the headend and all hubs. Fiber optic nodes, segmented into distinct service areas, shall be constructed to serve coaxial copper cable passing no more than 1,500 dwelling units per node. Individual nodes may serve cable passing a de minimis number of dwelling units in excess of 1,500, provided there is no effect on the performance characteristics of the node.

 

H.2. Montgomery County's provision for additional fiber capacity:

6 (s) Additional Capacity: Franchisee will notify the County in advance of the installation of any fiber optic capacity not contemplated by the initial design of the System, so that additional fiber may be installed, at the County's expense, on an Actual Cost basis for government and institutional use. If the County wishes to request additional capacity, it may notify the Franchisee within 15 days of receipt of Franchisee's notification that the County will request additional capacity.

I. Set-top attachments: While most set-top devices offered by cable companies remain "black boxes" beyond the control or configuration of individual subscribers, some franchises underscore existing FCC's provisions concerning set-top interoperability and retail availability.

Montgomery County's set-top box attachments provision:

6 (9) Consumer Equipment For Lease or Sale. Subject to applicable law or regulation, as part of the System, the Franchisee shall, consistent with 47 C.F.R. ' 76.984 and 47 U.S.C. ' 543(d), offer every Subscriber, at uniform prices and regardless of the level of service taken, the opportunity to lease from the Franchisee or to lease or buy from others Converters (including digital converters), including any associated software, that allow Subscribers to view a program on one channel while taping a program on another channel. To the extent permitted by federal law, Subscribers shall have the right to attach devices to the Franchisee's System to allow them to transmit signals or service to video cassette recorders, receivers and other terminal equipment, and to use their own remote control devices and Converters, and other similar equipment, as long as such devices do not interfere with the operation of the Franchisee's System or the reception of any cable Subscriber, do not serve to circumvent the Franchisee's security procedures, or are not used in any manner to obtain services illegally. The Franchisee, at no additional charge, shall provide information regarding the cable system to Subscribers which will assist them in adjusting such devices so that they may be used with the Franchisee's System.

 

 

Digital Upgrades/Advanced Uses

Digital Upgrades/Advanced Uses

A. Bandwidth set-aside

B. Digital PEG

C. New Technologies (e.g., Video on Demand)

D. Narrowcasting

E. Web hosting and streaming media

F. Advanced, bi-directional links

G. Interactive PEG services

In addition to being long and complex documents, franchise agreements are often "etched in stone," in effect, lasting for up to a decade or more. But while the agreement itself is thus frozen in time, the cable platform continues to evolve in a number of important ways. First, what was once a simple, one-way system for the delivery of video programming is rapidly becoming a much more robust, two-way system, in which on-demand programming, interactive program guides, personal video recorders, and telephone service are all part of cable's varied offerings. And the platform continues to evolve, with the promise of a new cable modem standard (DOCSIS 2.0) that will vastly increase both upstream and downstream capacity (making video conferencing possible, for example), as well as new forms of interactive television, Internet-based video delivery, and wireless implementations (as cable strives to become a digital hub for both residences and businesses).

It is imperative, therefore, that cities take a longer-range view of franchise negotiations, ensuring not only that existing community needs are met, but incorporating provisions in the franchise agreement that will accommodate new and emerging technologies for PEG and public-interest benefit. A portion of the new video-on-demand servers might be reserved for locally produced programming, for example, and video conferencing might be devoted to community forums, or free public wireless hot-spots might be linked to the cable-provided institutional network (I-Net, discussed in Section V). And as Baller Herbst have observed, "The future of the Internet is so promising, that prudent communities would do well to obtain as much high-speed access to the Internet as possible during cable franchise negotiations."

Vermont (one of a handful of states, including Connecticut, Rhode Island, New Jersey, and Alaska, that regulates cable at the state level) has taken a big step toward bringing the PEG concept into the 21st century. Under its rewritten cable statute (Rule 8.000), revised by the Vermont Public Service Board in collaboration with the Department of Public Service, Vermont's cable operators, and the Vermont Access Network, "Vermont's community access cable management organizations (AMO's) can request public access to the commercial features of the cable network in order to meet community needs. In addition to the 32 analog video channels currently provided by Vermont cable providers to more than 100 communities across the state, Vermonters will be able to gain access to new services such as public meetings on demand, audio channels and HDTV quality coverage. Rule 8.000 also outlines a process for connecting Vermont's 25 access management organizations with a statewide public access network (currently under design)." Perhaps most importantly, Vermont has updated its definition of public, educational, and government (PEG) video programming to include voice, data, and video under the "PEG Content" rubric.

For its part, cable operators are wasting no time maximizing system resources and profits alike by converting their networks for full digital transmission. According to a January 2005 Cable Digital News report, "…the cable industry finally seems poised to start making its much-ballyhooed shift to an all-digital format for its core video product." Depending on the compression technologies employed, a single 6-MHz analog channel will yield anywhere from 8 to 12 standard-definition digital TV streams. As Comcast Chief Technology Officer David Fellows explains, "Once we have the digital signals up there, we can begin to take back the analog signals.… [E]very time we take one analog signal back, we can offer 12 channels in its place in standard-definition, three channels in its place in high-definition."

There is a real danger, however, in an all-digital future that effectively bypasses cable's traditional video-delivery platform in favor of a single pipe carrying all manner of content--voice, video, and data--in the form of indistinguishable ones and zeroes. In that "converged world" of Internet protocol (IP) transmission, both franchise fees and regulatory authority alike may become mere vestiges of an earlier era. "As technologies converge and services are delivered over a single platform," warns James N. Horwood in the Spring 2004 Community Media Review, "there will be unrelenting pressure from industry for comparable government treatment of all providers and for it to be for minimal government involvement. This will place cable franchise fees, and resources available for PEG, at great risk."

But while the future of telecommunications regulation is as difficult to predict as the ultimate outcome of the digital revolution itself, communities and their PEG operations would be wise adopt a more flexible stance in anticipation of the changes that lie ahead. In his "Cable Architecture, PEG, and the Public Interest" presentation (PowerPoint) at the 2004 Alliance for Community Media annual conference in Tampa, Andrew Afflerbach of Columbia Telecommunications Corporation offered valuable advice on the kind of flexibility that will be needed as cable enters the digital era:

1. Seek opportunities in digital conversion:

• New channels

--Open

--Closed (training, internal use)

• VOD

--Storage space

--Connection to headend

--Remote management of server

--Ability to upgrade

• Training

--Video--also XML, HTML, Java

• Studio Equipment

--Digital--also storage and streaming

• Hosting of Web content

2. Flexibility in production environment

• Low-cost cameras, PC storage, editing

--Home electronic media environment

• Outreach to schools, community organization, public libraries

--Use of facilities

--New generation of producers and participant organizations/advocates

3. Flexibility in distribution technology

• Traditional video channel

--Especially live

• On-Demand

--Menu-selectable archive

• Web

--Serves viewers without cable

--Quality improving

--TV tuners/DVR/Set-top converters beginning to have Web capability (off cable modem or DSL)

• Interactive technology

--Polling, audience participation, gaming

4. Flexibility in distribution outlets

• Internet video

• Other broadband carriers

--Programming accessed through cable modem, DSL, fiber, wireless, over-the-air

--May be the future for commercial programmers as well

5. Become part of IP video distribution environment

• Use of data network for video transport

• Currently in backbone at headends and hubs

--Full-motion broadcast-quality video

--Reduces equipment costs, maintenance, and staffing needs

--Interoperates well with video-on-demand system

--Storage, management, scalability

• Next step--video over cable modems

--As modems have greater bandwidth and quality guarantees

--Modem with set-top converter & TiVo functionality

• Video technologically indistinguishable from data or voice “information service”

• Full-motion broadcast video will be available over the public Internet

--Content can come from anywhere on the Internet

--Content can be presented on any broadband network connected to the Internet

• Technology makes video distribution platform independent--as long as there is enough bandwidth

--Cable system

--Best-quality DSL

--Fiber-to-the-premises

--Broadband wireless

--Satellite

6. Ensure yourself access through the Internet

• Work to ensure your content is carried freely on the Internet

--Network providers and ISPs can prioritize or block traffic or act as a toll gate

--Work for open access or seek to make sure you have some right to have viewers see you

--Partner with other programmers or networks to promote your content

• Facilitate content development from a wide range of producers and production facilities

• Make your channel network-agnostic

A. Bandwidth set-aside: The most important reason to express the PEG capacity requirement in terms of bandwidth rather than channels is that the former accommodates an array of noncommercial applications and services, including those that the eventual transition to an Internet protocol- (IP) based digital system will facilitate. Thus St. Paul defines "channel" and "programming" in such a way as to permit flexibility for future uses.

St. Paul's definition of "channel" and "programming":

300.(h).(2). The term "channel" refers to capacity sufficient to transmit a standard NTSC television signal (6 MHz), but the channel capacity so designated may be used by the city or its designees to transmit information to subscribers in any format. The term "program" or "programming" as used in relation to the PEG channels or institutional network is not limited to video programming and instead shall mean any signal, message, graphics, data, or communication content service or broadcast-type program. The term "regional access channel" refers to a channel that is utilized to show PEG programming that originates in other communities in the Twin Cities region, or programming of interest to the region (although such programming may also appear on any appropriate access channel, at the discretion of the person responsible for managing the channel). The city may take advantage of compression or other technologies to transmit multiple signals on any channel, should it choose to do so.

B. Digital PEG: While the transition from analog to digital (for both terrestrial broadcasters and for cable systems) remains a work in progress, it is important to ensure that PEG will not be left out of the digital loop. Accordingly, St. Paul's franchise includes a stipulation concerning digital PEG.

St. Paul's digital PEG provision:

300.(l). Miscellaneous PEG requirements.

300.(l).(1). The company is required to deliver the PEG channels to subscribers in an analog format unless and until all other channels on the system are delivered in a digital format, or until the city directs otherwise. Digital PEG access channels shall have the same bandwidth and transmission quality as is used to carry any of the commercial channels that deliver programming to the company in a similar format. At all times, the PEG access channels must be receivable by subscribers without special expense, other than the expense required to receive basic service. Designated entities have no obligation to provide a signal to the company in a digital format. If the city requests that its PEG access channels be converted to digital format before the company has converted all other channels to digital format, the city is responsible for the cost of converting such channels to digital format.

 

B.2. Portland's franchise also includes a digital PEG requirement:

7.2 (C) Digital Transition. In the event that, and at such time as Grantee Activates frequency spectrum on the Cable System for video digital transmissions on the Residential Network, then Grantee:

(1) shall carry both analog and digital format transmission Channels simultaneously of PEG Access Channels under Section 7.2(A) when more than fifty percent (50%) of the analog commercial Programming Channels are converted to digital transmission format; and

(2) may decommission analog format Channels of PEG Access when more than seventy-five percent (75%) of the commercial Programming Channels are converted to digital format transmission.

C. New technologies: Recognizing that the cable platform continues to evolve, Austin's franchise includes a provision for PEG channels' adoption of new technologies: "… In the event it becomes both technologically and economically feasible to provide over the same Channel video, audio, and/or data signals, Grantee will meet and discuss with the City those alternative uses for the PEG Channels." (section 4.5) More generally, Montgomery County's franchise features an advanced technology requirement.

Montgomery County's technology requirement:

6(c) Integration of Advancements in Technology.

(1) In addition to any upgrades required herein, it is the responsibility of the Franchisee to periodically upgrade its Cable System to integrate advancements in technology as may be required to meet the needs and interests of the community in light of the costs during the remaining term of the franchise.

(2) To ensure that the Franchisee is carrying out its responsibilities hereunder, the Franchisee shall be required to submit a report on cable technology to the County every three years during the Franchise term. Each report shall describe developments in cable technology, and whether, how, and by what date the Franchisee plans to incorporate those technological developments into the System. In addition, the report shall describe the effect of those developments on public, educational, and governmental use of the Cable System, and the effect and compatibility of those technological changes on consumer electronic equipment. The report also shall describe how other cable companies have incorporated or are planning to incorporate the technological developments into their Systems and the estimated timetable for doing so.

C.2. Among the new technologies that cable companies are currently introducing, video on demand (VOD) holds the most promise for PEG operations. VOD would allow the most popular (or the most important) PEG programming to be viewed at any time. In its protracted franchise negotiations, San Jose has requested space for PEG programming on Comcast's video-on-demand servers.

San Jose's PEG VOD request:

Advanced functions. The company will provide and maintain capacity for PEG Video on Demand up to 5% of the capacity of each server serving a portion of the franchise area. It will also provide and maintain the means for conveniently programming the servers from the PEG centers. The programming will be as accessible as commercial programming to viewers on all relevant parameters (number of users who can access the same program at the same time, etc.). It will provide menu access equivalent to the menu access provided for commercial programs, and provide bandwidth so that the process of ordering PEG programming and the quality of the programming delivered is equivalent to commercial programming. The company will similarly design its system so that PEG users can take advantage of the capabilities of the cable system.

D. Narrowcasting: Just as advanced cable systems permit the targeting of advertising to specific households (via Comcast's Spotlight, for example), so will they permit the "narrowcasting" of programming to specific geographic areas within a franchise region.

Portland's franchise includes a requirement for targeted broadcasting:

7.6(E) Narrowcast Capability. To the extent feasible given normal Cable System Upgrade design, Grantee shall use good faith efforts to re-configure the Cable System to allow Designated Access Providers to Narrowcast Programming to Subscribers within the specific geographic areas as set forth in Section 7.3(C) as such areas exist at the time of Upgrade construction. In addition, prior to completion of the Cable System Upgrade, all capabilities for Narrowcasting in place on the effective date of this Franchise shall be maintained, including, without limitation, the capability of MCTV to distribute programming from its Program origination site to:

(1) Each cable system with which the PEG Access Channels are Interconnected; and,

(2) The Institutional Network and any Institutional Subscriber location.

7.7 Pre-Upgrade Live Origination Capabilities. Prior to the Cable System Upgrade:

(A) MCTV shall have the use of one (1) Upstream and one (1) Downstream Channel on the Institutional Network and two (2) Upstream Channels on the Residential Network. The purpose of these Channels is to ensure that MCTV has sufficient capacity to transmit live Programming Signals from any point on the Cable System to Residential Subscribers. To the extent that the Grantee can provide MCTV the ability to transmit live Programming by other means, the Jurisdictions may reallocate these Channels upon request of the Grantee; and,

(B) Grantee shall provide the functional ability, through Interconnects or other means, for MCTV to cablecast the Multnomah County Commission meetings live on an Access Channel.

D.2. Additionally, Portland includes a requirement for "closed channel" (narrowcast) capacity on the upgraded cable network:

7.2 (B) Closed Channels. After the Cable System Upgrade required under this Franchise, Grantee shall provide the capability to scramble at least three (3) of the Downstream Channels referred to in Section 7.2 (A) to serve as either open Channels or Closed Channels at the Designated Access Provider's discretion to the extent allowed under Federal law. The coordination of the Closed Channels shall be made by the Jurisdictions participating in the Intergovernmental Agreement referenced in Section 2.2(A) of this Franchise. Upon completion of the Upgrade, Grantee shall provide the capability to scramble one (1) such channel at its own expense and may not credit the costs against Section 9.1 [i.e., 3 percent of gross revenues set aside for PEG access capital funding]. Upon the Jurisdictions' request, Grantee shall provide the capability to scramble the two (2) additional scrambled channels and may credit the Incremental, direct costs against Access Capital Costs provided under Section 9.1(C).

E. Web hosting and streaming media: Although modest by today's standards, Arlington County's Web hosting request reflects the importance of online communications as an adjunct to standard PEG video programming:

In addition, the Certificate Holder [i.e., franchisee] shall provide the CAC [Community Access Corporation, which manages public access channels], at no charge, with Web Hosting Service . . .

For purposes of this Section ___, "Web Hosting Service" means

(i) up to 25MB of capacity on Certificate Holder's server and up to 1 GB/month data transfer capacity for access by Internet users to such World Wide Web content as the CAC may submit to the Certificate Holder for that purpose; and

(ii) the Certificate Holder shall allow the CAC access to the SSL protocol, in the event that the CAC elects to develop the capability to support credit card and e-commerce transactions.

E.2. Portland has also considered including a broadband platform requirement, as follows:

(F) Broadband Platform. Grantee shall provide the Facilities and Capacity necessary to provide access to its Broadband Platform for PEG Access, at no charge. At a minimum, Grantee shall provide to Designated Access Providers an Activated interface, power, grounding and space to co-locate a web server and a video encoder at Grantee's Headend (server and encoder to be provided by the Access Providers). Grantee shall provide initial Capacity to transmit Access Channels and archived Access Programming at a minimum bit rate of 4 megabits per second. Grantee shall periodically review the adequacy of Capacity under Section ___(F) [i.e., this paragraph] upon request of the Jurisdictions, and shall cooperate in increasing the Capacity to meet community needs and technology advances. Grantee may not restrict use of the Capacity, other than restrictions necessary for network management that apply to all.

F. Advanced, bi-directional links: To ensure the maximum flexibility in PEG programming options, Monterey's franchise includes a requirement for advanced bi-directional links between PEG facilities and headend.

Monterey's requirement for bi-directional links:

7.1.E. The Grantee shall install, replace as necessary, and maintain a dedicated bi-directional link that conforms to EIA RS-250 medium haul transmission standards between the access center and the headend. The link shall be completed within twelve (12) months of the effective date of the Franchise, or the date the access center is completed, whichever is later. The dedicated bi-directional link shall be designed so that the access center can: (a) send signals to the headend on multiple channels simultaneously (b) receive signals from other locations on multiple channels simultaneously (c) remotely route signals originated at the access center or at other locations onto any access or institutional use channels on the cable system; and (d) otherwise control the signals to allow for smooth breaks, transitions, and insertion of station IDs and other material. The Grantee shall provide plant, headend, and access center equipment necessary to transport the audio and video signals from the access center to the headend for distribution over the cable system which may include, but not be limited to, laser transmitters, modulators, processors, and switchers.

F. The Grantee shall install, replace as necessary, and maintain a bidirectional link that conforms to EIA RS-250 medium haul transmission standards and all cable plant and headend equipment required to make it operable so that City Hall (specifically City Council Chambers) will be able to send signals to the Access Center or other locations on the cable system using a bi-directional link. The Grantee is obligated to provide a total of one (1) fixed laser transmitter/receiver, and one (1) channel modulator for use at this location. The link between the City Hall and the Access center shall be completed within twelve (12) months of the effective date of the Franchise, or the date the access center is completed, whichever is later.

G. Interactive PEG services: Although the advent of truly interactive television (ITV) has been slow in arriving, Austin's franchise includes a provision for the adoption of interactive PEG services.

Austin's interactive PEG provision:

4.9. If Grantee provides interactive analog or digital services in connection with other video services, including, if practicable, capability which will allow for the selection of programs on a daily basis, or on a program basis or for other periods shorter than a day, Grantee shall, at the City's request, cooperate in a six month trial project to provide comparable interactive services in connection with the programming on one PEG channel (selected by the City)….

 

Financial Support

Financial Support

         A.  Franchise fees

         B.  Capital funding for PEG

         C.  Distinction between PEG support and franchisee fees

         D.  A funding partnership

The funding for PEG access channels, explains the Buske Group, "falls into two broad categories, funding for equipment and facilities and funding for access services. Typically, the funding for equipment and facilities is provided by the cable company. Under the Cable Act local franchising authorities have the ability to require and enforce a requirement of funds for this purpose in the franchise agreement."  Unlike capital costs (which under Section 624(b)(1) of the Cable Act are the responsibility of the cable operator), programming and operating expenses are normally shared between the cable company and the city (using of a portion of cable franchise fees received by the city under Section 622 of the Cable Act).

These lines of demarcation are often blurred in the franchise negotiation process, however.  In its legal challenge of the proposed San Jose cable franchise, for example, Comcast has argued that amounts contributed by an operator to support construction of an institutional network must be treated as part of the franchise fee payment.  Other cable operators have argued, moreover, that the cost of providing access services can be treated as a payment "in-kind" and deducted from the franchise fee payment owed.  But as James Horwood of Spiegel & McDiarmid explains in "Cable Franchise Renewal and Local Right of Way Management," "The Cable Act … does not state that the operator has the right to treat provision of services as in-kind payments.

Based on legislative history, there is a strong argument that access service requirements do not get counted against the franchise fee. The House Report underlying the 1984 Cable Act states, with respect to Section 622, that that section "defines as a franchise fee only monetary payments made by the cable operator, and does not include as a 'fee' any franchise requirements for the provisions of services, facilities or equipment." Id at 65, adding "[i]n addition, any payments which a cable operator makes voluntarily relating to support of public, educational and governmental access and which are not required by the franchise would not be subject to the 5 percent franchise fee cap."

The FCC adopted rules that provide that the costs attributable to satisfying franchise requirements shall include (47 CFR § 76.925): the sum of: (1) all per channel costs for the number of channels used to meet franchise requirements for public, educational, and governmental channels; (2) any direct costs of meeting such franchise requirements; and (3) a reasonable allocation of general and administrative overhead. The FCC's determination of costs associated with meeting franchise requirements, including costs of PEG, is particularly significant because of language added by the 1992 Cable Act to Section 622(c), 47 U.S.C. § 542(c), to provide that a cable operator may itemize, as a separate line item on subscribers bills:

(1) The amount of the total bill assessed as a franchise fee and the identity of the franchising authority to which the fee is paid.

(2) The amount of