CHAPTER 34. VIDEO SERVICE FRANCHISES
IC 8-1-34
Chapter 34. Video Service Franchises
IC 8-1-34-1
"Affiliate"
Sec. 1. As used in this chapter, "affiliate" has the meaning setforth in IC 23-1-43-1. The term includes a parent company or asubsidiary.
As added by P.L.27-2006, SEC.58.
IC 8-1-34-2
"Certificate"
Sec. 2. As used in this chapter, "certificate" refers to a certificateof franchise authority issued by the commission under section 17 ofthis chapter.
As added by P.L.27-2006, SEC.58.
IC 8-1-34-3
"Commission"
Sec. 3. As used in this chapter, "commission" refers to the Indianautility regulatory commission created by IC 8-1-1-2.
As added by P.L.27-2006, SEC.58.
IC 8-1-34-4
"Franchise"
Sec. 4. As used in this chapter, "franchise" means an initialauthorization, or a renewal of an authorization, that:
(1) is issued by the commission under this chapter after June 30,2006; and
(2) authorizes the construction or operation of a video servicesystem in a designated service area in Indiana.
As added by P.L.27-2006, SEC.58.
IC 8-1-34-5
"Gross revenue"
Sec. 5. As used in this chapter, "gross revenue" means allconsideration of any kind or nature, including cash, credits, property,and in kind contributions:
(1) received by a holder from the operation of a video servicesystem in a particular unit in Indiana; and
(2) calculated by the holder under section 23 of this chapter.
As added by P.L.27-2006, SEC.58.
IC 8-1-34-6
"Holder"
Sec. 6. As used in this chapter, "holder" refers to a person thatholds a certificate issued by the commission under this chapter afterJune 30, 2006.
As added by P.L.27-2006, SEC.58.
IC 8-1-34-7
"Incumbent provider"
Sec. 7. As used in this chapter, "incumbent provider" means theprovider serving the largest number of video service subscribers ina particular local franchise service area on July 1, 2006.
As added by P.L.27-2006, SEC.58.
IC 8-1-34-8
"Local franchise"
Sec. 8. As used in this chapter, "local franchise" means an initialauthorization, or a renewal of an authorization, that:
(1) is issued by a unit before July 1, 2006; and
(2) authorizes the construction or operation of a video servicesystem in a designated service area in the unit.
As added by P.L.27-2006, SEC.58.
IC 8-1-34-9
"Other programming service"
Sec. 9. As used in this chapter, "other programming service"refers to information that a provider makes available to allsubscribers generally.
As added by P.L.27-2006, SEC.58.
IC 8-1-34-10
"Person"
Sec. 10. As used in this chapter, "person" means an individual, acorporation, a partnership, a limited liability company, anassociation, or another entity organized under the laws of any state.
As added by P.L.27-2006, SEC.58.
IC 8-1-34-11
"Provider"
Sec. 11. As used in this chapter, "provider" refers to amultichannel video programming distributor (as defined in 47 U.S.C.522(13)).
As added by P.L.27-2006, SEC.58.
IC 8-1-34-12
"Unit"
Sec. 12. As used in this chapter, "unit" has the meaning set forthin IC 36-1-2-23.
As added by P.L.27-2006, SEC.58.
IC 8-1-34-13
"Video programming"
Sec. 13. As used in this chapter, "video programming" has themeaning set forth in 47 U.S.C. 522(20).
As added by P.L.27-2006, SEC.58.
IC 8-1-34-14 "Video service"
Sec. 14. (a) As used in this chapter, "video service" means:
(1) the transmission to subscribers of video programming andother programming service:
(A) through facilities located at least in part in a publicright-of-way; and
(B) without regard to the technology used to deliver thevideo programming or other programming service; and
(2) any subscriber interaction required for the selection or useof the video programming or other programming service.
(b) The term does not include commercial mobile service (asdefined in 47 U.S.C. 332).
As added by P.L.27-2006, SEC.58.
IC 8-1-34-15
"Video service system"
Sec. 15. (a) As used in this chapter, "video service system" meansa system, consisting of a set of transmission paths and associatedsignal generation, reception, and control equipment, that is designedto provide video service directly to subscribers within a community.The term includes the:
(1) optical spectrum wavelengths;
(2) bandwidth; or
(3) other current or future technological capacity;
used to provide the video service.
(b) The term does not include a system that transmits videoservice to subscribers without using any public right-of-way.
As added by P.L.27-2006, SEC.58.
IC 8-1-34-16
Commission as sole franchising authority; application; confidentialinformation; filing fee
Sec. 16. (a) Except as provided in section 21 of this chapter, afterJune 30, 2006:
(1) the commission is the sole franchising authority (as definedin 47 U.S.C. 522(10)) for the provision of video service inIndiana; and
(2) a unit may not:
(A) require a provider to obtain a separate franchise; or
(B) impose any fee, gross receipt tax, licensing requirement,rate regulation, or build-out requirement on a provider;
except as authorized by this chapter.
(b) Except as provided in section 21 of this chapter, a person whoseeks to provide video service in Indiana after June 30, 2006, shallfile with the commission an application for a franchise. Theapplication shall be made on a form prescribed by the commissionand must include the following:
(1) A sworn affidavit, signed by an officer or another personauthorized to bind the applicant, that affirms the following:
(A) That the applicant has filed or will timely file with the
Federal Communications Commission all forms required bythe Federal Communications Commission before offeringvideo service in Indiana.
(B) That the applicant agrees to comply with all federal andstate statutes, rules, and regulations applicable to theoperation of the applicant's video service system.
(C) That the applicant agrees to:
(i) comply with any local ordinance or regulationgoverning the use of public rights-of-way in the deliveryof video service; and
(ii) recognize the police powers of a unit to enforce theordinance or regulation.
(D) If the applicant will terminate an existing local franchiseunder section 21 of this chapter, that the applicant agrees toperform any obligations owed to any private person, asrequired by section 22 of this chapter.
(2) The applicant's legal name and any name under which theapplicant does or will do business in Indiana, as authorized bythe secretary of state.
(3) The address and telephone number of the applicant'sprincipal place of business, along with contact information forthe person responsible for ongoing communications with thecommission.
(4) The names and titles of the applicant's principal officers.
(5) The legal name, address, and telephone number of theapplicant's parent company, if any.
(6) A description of each service area in Indiana to be served bythe applicant. A service area described under this subdivisionmay include an unincorporated area in Indiana.
(7) The expected date for the deployment of video service ineach of the areas identified in subdivision (6).
(8) A list of other states in which the applicant provides videoservice.
(9) If the applicant will terminate an existing local franchiseunder section 21(b) of this chapter, a copy of the written noticesent to the municipality under section 21(c) of this chapter.
(10) Any other information the commission considers necessaryto:
(A) monitor the provision of video service to Indianacustomers; and
(B) prepare the commission's annual report to the regulatoryflexibility committee under IC 8-1-2.6-4.
This subsection does not empower the commission to require anapplicant to disclose confidential and proprietary business plans andother confidential information without adequate protection of theinformation. The commission shall exercise all necessary caution toavoid disclosure of confidential information supplied under thissubsection.
(c) The commission may charge a fee for filing an applicationunder this section. Any fee charged by the commission under this
subsection may not exceed the commission's actual costs to processand review the application under section 17 of this chapter.
As added by P.L.27-2006, SEC.58. Amended by P.L.183-2006,SEC.1.
IC 8-1-34-17
Issuance of certificate; build-out requirements prohibited;settlement agreements approved before July 29, 2004; use ofrights-of-way
Sec. 17. (a) Not later than fifteen (15) business days after thecommission receives an application under section 16 of this chapter,the commission shall determine whether the application is completeand properly verified. If the commission determines that theapplication is incomplete or is not properly verified, the commissionshall notify the applicant of the deficiency and allow the applicant toresubmit the application after correcting the deficiency. If thecommission determines that the application is complete and properlyverified, the commission shall issue the applicant a certificate offranchise authority. A certificate issued under this section mustcontain:
(1) a grant of authority to provide the video service requested inthe application;
(2) a grant of authority to use and occupy public rights-of-wayin the delivery of the video service, subject to:
(A) state and local laws and regulations governing the useand occupancy of public rights-of-way; and
(B) the police powers of local units to enforce localordinances and regulations governing the use and occupancyof public rights-of-way; and
(3) a statement that the authority granted under subdivisions (1)and (2) is subject to the holder's lawful provision and operationof the video service.
(b) Except as provided in subsection (c) and sections 16(c) and 28of this chapter, the commission may not require a provider to:
(1) satisfy any build-out requirements;
(2) deploy, or make investments in, any infrastructure, facilities,or equipment; or
(3) pay an application fee, a document fee, a state franchise fee,a service charge, or any fee other than the franchise fee paid toa local unit under section 24 of this chapter;
as a condition of receiving or holding a certificate under this chapter.
(c) This section does not limit the commission's right to enforceany obligation described in subsection (b) that a provider is subjectto under the terms of a settlement agreement approved by thecommission before July 29, 2004.
(d) The general assembly, a state agency, or a unit may not adopta law, rule, ordinance, or regulation governing the use and occupancyof public rights-of-way that:
(1) discriminates against any provider, or is unduly burdensomewith respect to any provider, based on the particular facilities or
technology used by the provider to deliver video service; or
(2) allows a video service system owned or operated by a unitto use or occupy public rights-of-way on terms or conditionsmore favorable or less burdensome than those that apply toother providers.
A law, a rule, an ordinance, or a regulation that violates thissubsection is void.
As added by P.L.27-2006, SEC.58. Amended by P.L.1-2007, SEC.77.
IC 8-1-34-18
Transfer of certificate
Sec. 18. Subject to the notice requirements under section 20 ofthis chapter, a certificate issued under this chapter may be transferredto any successor in interest of the holder to which the certificate isoriginally granted.
As added by P.L.27-2006, SEC.58.
IC 8-1-34-19
Termination of certificate by holder
Sec. 19. A certificate issued under this chapter may be terminatedby the holder by submitting notice to the commission under section20 of this chapter.
As added by P.L.27-2006, SEC.58.
IC 8-1-34-20
Notice of change; notice of intent to provide service; customernotification requirements
Sec. 20. (a) In connection with, or as a condition of receiving, acertificate under this chapter, the commission shall require a holderto notify the commission, after the issuance of a certificate, of any ofthe following changes involving the holder or the certificate issued:
(1) Any transaction involving a change in the ownership,operation, control, or corporate organization of the holder,including a merger, an acquisition, or a reorganization.
(2) A change in the holder's legal name or the adoption of, orchange to, an assumed business name. The holder shall submitto the commission a certified copy of the:
(A) amended certificate of authority; or
(B) certificate of assumed business name;
issued by the secretary of state to reflect the change.
(3) A change in the holder's principal business address or in thename of the person authorized to receive notice on behalf of theholder.
(4) Any transfer of the certificate to a successor in interest ofthe holder allowed by section 18 of this chapter. The holdershall identify the successor in interest to which the transfer ismade.
(5) The termination of any certificate issued under this chapter,as allowed by section 19 of this chapter. The holder shallidentify: (A) any other certificate issued under this chapter that willbe retained by the holder;
(B) the number of Indiana customers in the service areacovered by the certificate being terminated; and
(C) the method by which the holder's customers werenotified of the termination, if required by the commissionunder subsection (c).
(6) A change in the video programming or other programmingservice provided in one (1) or more of the services areasidentified under section 16(b)(6) of this chapter in the holder'smost recent application for a certificate under this chapter.
(7) A change in one (1) or more of the service areas identifiedunder section 16(b)(6) of this chapter that would increase ordecrease the territory within the service area. The holder shalldescribe the new boundaries of the affected service areas afterthe proposed change is made.
The commission shall prescribe the time in which a holder mustreport changes under this section. The commission may prescribe aform for the reporting of changes under this section.
(b) In connection with, or as a condition of, receiving a certificateunder this chapter, the commission shall require a holder to notify aunit:
(1) in which the holder does not already provide video serviceunder:
(A) a local franchise issued by the unit before July 1, 2006;or
(B) another certificate issued under this chapter after June30, 2006; and
(2) that is included in the holder's service area under thecertificate being issued;
that the holder intends to provide video service in the unit'sjurisdiction. The holder shall give the notice required under thissubdivision not later than ten (10) days before the holder beginsproviding video service in the unit's jurisdiction.
(c) In connection with the issuance of a certificate under thischapter, the commission may require a holder to provide advancenotice to the holder's Indiana customers if the holder will do any ofthe following:
(1) Change the rates and charges for video service that theholder offers in any of its service areas in Indiana.
(2) Cease to offer video service, or any specific videoprogramming or other programming service, that the holderoffers in any of the holder's service areas in Indiana.
The commission shall prescribe any customer notificationrequirements under this subsection in a rule of general applicationadopted under IC 4-22-2.
As added by P.L.27-2006, SEC.58.
IC 8-1-34-21
Election to operate under local franchise; termination of local
franchise; notice; outstanding and prepaid franchise fees
Sec. 21. (a) For purposes of this section, a provider is consideredto be a holder of a local franchise on June 30, 2006, if:
(1) the provider; or
(2) any affiliate or successor entity of the provider;
holds a local franchise to provide video service in a unit on June 30,2006.
(b) After June 30, 2006, a provider that is the holder of a localfranchise on June 30, 2006, regardless of whether the provider is theincumbent provider in the local franchise service area, may elect to:
(1) continue providing video service under the local franchiseuntil the local franchise expires; or
(2) subject to section 22 of this chapter, terminate the localfranchise and apply to the commission for a certificate underthis chapter.
(c) A provider that elects to terminate a local franchise undersubsection (b) must provide written notice of the provider's electionto:
(1) the commission; and
(2) the affected unit;
not later than November 1, 2006. The local franchise is terminatedon the date the commission issues a certificate to the provider underthis chapter.
(d) Not later than ninety (90) days after a local franchise isterminated under subsection (c), the provider that terminated thelocal franchise shall remit to the affected unit any accrued but unpaidfranchise fees due under the local franchise. If the provider has creditremaining from any prepaid franchise fees, the provider may deductthe amount of the credit from any future fees or taxes owed to theaffected unit.
As added by P.L.27-2006, SEC.58.
IC 8-1-34-22
Terminated local franchise; rights, duties, and obligations owed toprivate persons; right of action; "private person"
Sec. 22. (a) A provider that elects to terminate a local franchiseunder section 21 of this chapter remains subject to the contractualrights, duties, and obligations incurred by the provider that are owedto any private person.
(b) All liens, security interests, royalties, and other contracts,rights, and interests owed to a private person, shall:
(1) continue in full force and effect without the need forrenewal, extension, or continuance; and
(2) be paid or performed by the provider after becoming aholder of a certificate under this chapter.
(c) The commission shall condition the issuance or renewal of acertificate under this chapter on a provider's payment andperformance of the rights, duties, and obligations described in thissection. In applying for an initial certificate or a renewal certificateunder this chapter, a provider shall agree to pay or perform the
obligations described in this section, as required by section16(b)(1)(D) of this chapter.
(d) A private person that claims to be:
(1) owed any rights, duties, or obligations by a holder under thissection; and
(2) aggrieved by a holder's alleged violation of this section;
may bring an action in a court with jurisdiction to enforce the rights,duties, or obligations claimed to be owed to the person.
(e) As used in this section, "private person" does not include:
(1) the unit that issued the terminated local franchise;
(2) a political subdivision (as defined in IC 36-1-2-13) notdescribed in subdivision (1); or
(3) any official, agent, or employee of:
(A) the unit that issued the terminated local franchise; or
(B) a political subdivision described in subdivision (2);
in the individual's official capacity.
As added by P.L.27-2006, SEC.58. Amended by P.L.183-2006,SEC.2.
IC 8-1-34-23
Gross revenue; determination under existing local franchise;determination when no local franchise exists; unincorporatedareas; annexed territory
Sec. 23. (a) Except as provided in subsection (b), the holder of acertificate under this chapter shall, at the end of each calendarquarter, determine under subsections (c) and (d) the gross revenuereceived during that quarter from the holder's provision of videoservice in each unit included in the holder's service area under thecertificate.
(b) This subsection applies to a holder or other provider providingvideo service in a unit in which a provider of video service isrequired on June 30, 2006, to pay a franchise fee based on apercentage of gross revenues. The holder's or provider's grossrevenue shall be determined as follows:
(1) If only one (1) local franchise is in effect on June 30, 2006,the holder or provider shall determine gross revenue as the termis defined in the local franchise in effect on June 30, 2006.
(2) If:
(A) more than one (1) local franchise is in effect on June 30,2006; and
(B) the holder or provider is subject to a local franchise inthe unit on June 30, 2006;
the holder or provider shall determine gross revenue as the termis defined in the local franchise to which the holder or provideris subject on June 30, 2006.
(3) If:
(A) more than one (1) local franchise is in effect on June 30,2006; and
(B) the holder is not subject to a local franchise in the uniton June 30, 2006; the holder shall determine gross revenue as the term is definedin the local franchise in effect on June 30, 2006, that is mostfavorable to the unit.
(c) This subsection does not apply to a holder that is required todetermine gross revenue under subsection (b). The holder shallinclude the following in determining the gross revenue receivedduring the quarter with respect to a particular unit:
(1) Fees and charges charged to subscribers for video serviceprovided by the holder. Fees and charges under this subdivisioninclude the following:
(A) Recurring monthly charges for video service.
(B) Event based charges for video service, including pay perview and video on demand charges.
(C) Charges for the rental of set top boxes and otherequipment.
(D) Service charges related to the provision of video service,including activation, installation, repair, and maintenancecharges.
(E) Administrative charges related to the provision of videoservice, including service order and service terminationcharges.
(2) Revenue received by an affiliate of the holder from theaffiliate's provision of video service, to the extent that treatingthe revenue as revenue of the affiliate, instead of revenue of theholder, would have the effect of evading the payment of feesthat would otherwise be paid to the unit. However, revenue ofan affiliate may not be considered revenue of the holder if therevenue is otherwise subject to fees to be paid to the unit.
(d) This subsection does not apply to a holder that is required todetermine gross revenue under subsection (b). The holder shall notinclude the following in determining the gross revenue receivedduring the quarter with respect to a particular unit:
(1) Revenue not actually received, regardless of whether it isbilled. Revenue described in this subdivision includes bad debt.
(2) Revenue received by an affiliate or any other person inexchange for supplying goods and services used by the holderto provide video service under the holder's certificate.
(3) Refunds, rebates, or discounts made to subscribers,advertisers, the unit, or other providers leasing access to theholder's facilities.
(4) Revenue from providing service other than video service,including revenue from providing:
(A) telecommunications service (as defined in 47 U.S.C.153(46));
(B) information service (as defined in 47 U.S.C. 153(20)),other than video service; or
(C) any other service not classified as cable service or videoprogramming by the Federal Communications Commission.
(5) Any fee imposed on the holder under this chapter that ispassed through to and paid by subscribers, including the
franchise fee:
(A) imposed under section 24 of this chapter for the quarterimmediately preceding the quarter for which gross revenueis being computed; and
(B) passed through to and paid by subscribers during thequarter for which gross revenue is being computed.
(6) Revenue from the sale of video service for resale in whichthe purchaser collects a franchise fee under:
(A) this chapter; or
(B) a local franchise agreement in effect on July 1, 2006;
from the purchaser's customers. This subdivision does not limitthe authority of a unit, or the commission on behalf of a unit, toimpose a tax, fee, or other assessment upon the purchaser under42 U.S.C. 542(h).
(7) Any tax of general applicability:
(A) imposed on the holder or on subscribers by a federal,state, or local governmental entity; and
(B) required to be collected by the holder and remitted to thetaxing entity;
including the state gross retail and use taxes (IC 6-2.5) and theutility receipts tax (IC 6-2.3).
(8) Any forgone revenue from providing free or reduced costcable video service to any person, including:
(A) employees of the holder;
(B) the unit; or
(C) public institutions, public schools, or other governmentalentities, as required or permitted by this chapter or by federallaw.
However, any revenue that the holder chooses to forgo inexchange for goods or services through a trade or barterarrangement shall be included in gross revenue.
(9) Revenue from the sale of:
(A) capital assets; or
(B) surplus equipment that is not used by the purchaser toreceive video service from the holder.
(10) Reimbursements that:
(A) are made by programmers to the holder for marketingcosts incurred by the holder for the introduction of newprogramming; and
(B) exceed the actual costs incurred by the holder.
(11) Late payment fees collected from customers.
(12) Charges, other than those described in subsection (c)(1),that are aggregated or bundled with charges described insubsection (c)(1) on a customer's bill, if the holder canreasonably identify the charges on the books and records by theholder in the regular course of business.
(e) If, under the terms of the holder's certificate, the holderprovides video service to any unincorporated area in Indiana, theholder shall calculate the holder's gross income received from eachunincorporated area served in accordance with: (1) subsection (b); or
(2) subsections (c) and (d);
whichever is applicable.
(f) If a unit served by the holder under a certificate annexes anyterritory after the certificate is issued or renewed under this chapter,the holder shall:
(1) include in the calculation of gross revenue for the annexingunit any revenue generated by the holder from providing videoservice to the annexed territory; and
(2) subtract from the calculation of gross revenue for any unitor unincorporated area:
(A) of which the annexed territory was formerly a part; and
(B) served by the holder before the effective date of theannexation;
the amount of gross revenue determined under subdivision (1);
beginning with the calculation of gross revenue for the calendarquarter in which the annexation becomes effective. The holder shallnotify the commission of the new boundaries of the affected serviceareas as required under section 20(a)(7) of this chapter.
As added by P.L.27-2006, SEC.58. Amended by P.L.1-2007, SEC.78.
IC 8-1-34-24
Franchise fee; percentage of gross revenue; unincorporated areas;disputes over gross revenue calculation; pass through tosubscribers; billing itemization; fee under local franchise
Sec. 24. (a) Subject to subsection (e), not later than forty-five (45)days after the end of each calendar quarter, the holder shall pay toeach unit included in the holder's service area under a certificateissued under this chapter a franchise fee equal to:
(1) the amount of gross revenue received from providing videoservice in the unit during the most recent calendar quarter, asdetermined under section 23 of this chapter; multiplied by
(2) a percentage equal to one (1) of the following:
(A) If a local franchise has never been in effect in the unitbefore July 1, 2006, five percent (5%).
(B) If no local franchise is in effect in the unit on July 1,2006, but one (1) or more local franchises have been ineffect in the unit before July 1, 2006, the percentage of grossrevenue paid by the holder of the most recent local franchisein effect in the unit, unless the unit elects to impose adifferent percentage, which may not exceed five percent(5%).
(C) If there is one (1) local franchise in effect in the unit onJuly 1, 2006, the percentage of gross revenue paid by theholder of that local franchise as a franchise fee to the unit,unless the unit elects to impose a different percentage, whichmay not exceed five percent (5%). Upon the expiration of alocal franchise described in this clause, the percentage shallbe determined by the unit but may not exceed five percent(5%). (D) If there is more than one (1) local franchise in effectwith respect to the unit on July 1, 2006, a percentagedetermined by the unit, which may not exceed the greater of:
(i) five percent (5%); or
(ii) the percentage paid by a holder of any local franchisein effect in the unit on July 1, 2006.
(b) If the holder provides video service to an unincorporated areain Indiana, as described in section 23(e) of this chapter, the holdershall:
(1) calculate the franchise fee with respect to theunincorporated area in accordance with subsection (a); and
(2) remit the franchise fee to the county in which theunincorporated area is located.
If an unincorporated area served by the provider is located in one (1)or more contiguous counties, the provider shall remit part of thefranchise fee calculated under subdivision (1) to each county havingterritory in the unincorporated area served. The part of the franchisefee remitted to a county must bear the same proportion to the totalfranchise fee for the area, as calculated under subdivision (1), thatthe number of subscribers in the county bears to the total number ofsubscribers in the unincorporated area served.
(c) With each payment of a franchise fee to a unit under thissection, the holder shall include a statement explaining the basis forthe calculation of the franchise fee. A unit may review the books andrecords of:
(1) the holder; or
(2) an affiliate of the holder, if appropriate;
to the extent necessary to ensure the holder's compliance with section23 of this chapter in calculating the gross revenue upon which theremitted franchise fee is based. Each party shall bear the party's owncosts of an examination under this subsection. If the holder and theunit cannot agree on the amount of gross revenue on which thefranchise fee should be based, either party may petition thecommission to determine the amount of gross revenue on which thefranchise fee should be based. A determination of the commissionunder this subsection is final, subject to the right of direct appeal byeither party.
(d) A franchise fee owed by a holder to a unit under this sectionmay be passed through to, and collected from, the holder'ssubscribers in the unit. To the extent allowed under 43 U.S.C. 542(c),the holder may identify as a separate line item on each regular billissued to a subscriber:
(1) the amount of the total bill assessed as a franchise fee underthis section; and
(2) the identity of the unit to which the franchise fee is paid.
(e) A holder that elects under section 21(b)(1) of this chapter tocontinue providing video service under a local franchise is notrequired to pay the franchise fee prescribed under this section, butshall pay any franchise fee imposed under the terms of the localfranchise.As added by P.L.27-2006, SEC.58.
IC 8-1-34-25
PEG channel capacity, facilities, and financial support; unit withexisting requirements
Sec. 25. (a) This section applies in a unit that:
(1) is included in the service area of a holder of a certificateissued under this chapter; and
(2) requires a provider described in section 21(a) of this chapterto provide PEG channel capacity, facilities, or financial supportunder a local franchise issued to the provider by the unit beforeJuly 1, 2006, regardless of whether the provider elects to:
(A) continue the local franchise under section 21(b)(1) ofthis chapter; or
(B) terminate the local franchise under section 21(b)(2) ofthis chapter and continue providing video service in the unitunder a certificate issued under this chapter.
(b) As used in this section, "PEG channel" refers to a channelmade available by a provider on the provider's video service systemfor public, educational, and governmental programming.
(c) The holder of a certificate under this chapter shall provide inthe unit at least the number of PEG channels that the providerdescribed in section 21(a) of this chapter is required to provide in theunit under the terms of the local franchise described in subsection(a)(2).
(d) If the local franchise described in subsection (a)(2) requiresthe provider described in section 21(a) of this chapter to providefinancial support for public, educational, or governmentalprogramming in the unit, the holder of a certificate under this chaptershall pay the unit the same cash payments on a per subscriber basisthat the provider described in section 21(a) of this chapter is requiredto pay the unit under the terms of the local franchise. The holdershall remit payments under this subsection to the unit on a quarterlybasis, along with the franchise fee paid to the unit under section 24of this chapter. For each calendar quarter, the holder shall remit tothe unit an amount equal to:
(1) the cash payment for the quarter due from the providerdescribed in section 21(a) of this chapter; multiplied by
(2) a fraction, the numerator of which equals the number ofsubscribers served by the holder in the unit, and thedenominator of which equals the total number of subscribersserved by all providers in the unit.
(e) Any payments remitted to a unit under subsection (d):
(1) are made:
(A) for the purposes set forth in 47 U.S.C. 531; and
(B) under the unit's authority under 47 U.S.C. 541(a)(4)(B);and
(2) may not be credited against the franchise fee payable to theunit under section 24 of this chapter.
As added by P.L.27-2006, SEC.58.
IC 8-1-34-26
PEG channel capacity, facilities, and financial support; units orareas without existing requirements; authority of commission torequire
Sec. 26. (a) This section applies in a unit or an unincorporatedarea of Indiana that:
(1) is included in the service area of a holder of a certificateissued under this chapter; and
(2) does not require a provider described in section 21(a) of thischapter to provide PEG channel capacity, facilities, or financialsupport under a local franchise issued before July 1, 2006.
(b) As used in this section, "PEG channel" has the meaning setforth in section 25(b) of this chapter.
(c) As a condition of issuing or renewing a certificate to a holderunder this chapter, and upon:
(1) the petition of a unit or an unincorporated area included inthe holder's service area under the certificate; or
(2) the commission's own motion;
the commission may require the holder to provide PEG channelcapacity, facilities, or financial support to one (1) or more units orunincorporated areas in the holder's service area under the certificate.
(d) As allowed by 47 U.S.C. 531, the commission may do thefollowing in exercising its authority under this section:
(1) Adopt rules and procedures for the designation or use ofPEG channel capacity in each unit or unincorporated area inwhich the requirements apply.
(2) Enforce any requirement concerning the provision or use ofPEG channel capacity. The commission's enforcement authorityunder this subdivision includes the authority to enforce anyprovision that:
(A) is proposed by the holder and incorporated in theholder's certificate; and
(B) concerns services, facilities, or equipment related toPEG channel capacity;
regardless of whether the provision is required in rules orprocedures adopted by the commission under subdivision (1).
(3) If PEG channel capacity is designated under the certificate,prescribe rules and procedures:
(A) under which the holder is permitted to use thedesignated channel capacity to provide other services, if thechannel capacity is not being used in the unit orunincorporated area for the designated purposes; and
(B) that set forth the conditions under which the holder mustcease any use permitted under clause (A).
As added by P.L.27-2006, SEC.58.
IC 8-1-34-26.5
Additional PEG channel capacity
Sec. 26.5. (a) This section applies in a unit:
(1) that is included in the service area of a holder of a certificate
issued under this chapter; and
(2) in which a provider is required to provide PEG channelcapacity:
(A) under a local franchise issued to the provider by the unitbefore July 1, 2006; or
(B) by the commission under section 26 of this chapter.
(b) As used in this section, "PEG channel" has the meaning setforth in section 25(b) of this chapter.
(c) As a condition of issuing or renewing a certificate to a holderunder this chapter, and upon:
(1) the petition of the unit; or
(2) the commission's own motion;
the commission may require the holder to provide the unit with PEGchannel capacity that is in addition to the channel capacity requiredto be provided in the unit under the existing local franchise or underan order of the commission under section 26 of this chapter.
As added by P.L.27-2006, SEC.58.
IC 8-1-34-27
Operation of PEG channel; compatibility with provider's system;interconnection of systems; enforcement authority of courts
Sec. 27. (a) The operation of a PEG channel provided undersection 25, 26, or 26.5 of this chapter is the responsibility of the unitor unincorporated area that receives the benefit of the channel, andthe holder or other provider is responsible only for the transmissionof the channel.
(b) A unit or an unincorporated area that receives the benefit of aPEG channel provided under section 25, 26, or 26.5 of this chaptershall ensure that all transmissions, content, and programming that aretransmitted over a channel or other facility of the provider aresubmitted to the provider in a manner or form that:
(1) is capable of being accepted and transmitted by the providerover the provider's video service system;
(2) does not require additional alteration or change in thecontent by the provider; and
(3) is compatible with the technology or protocol used by theprovider to deliver video service.
(c) If it is technically feasible to do so, the holder of a certificateunder this section and a provider described in section 21(a) of thischapter may cooperate to interconnect their systems to provide PEGchannel capacity required under section 25, 26, or 26.5 of thischapter. Interconnection under this section may be accomplished bydirect cable, microwave link, satellite, or other reasonable method ofconnection. The parties shall negotiate the terms of theinterconnection in good faith, and a provider described in section21(a) of this chapter may not withhold interconnection of PEGchannel capacity.
(d) A court with jurisdiction has exclusive authority to enforceany requirement under:
(1) this section; or (2) section 25, 26, or 26.5 of this chapter.
As added by P.L.27-2006, SEC.58.
IC 8-1-34-28
Discrimination based on income prohibited; use of alternativetechnology; petition for equitable relief; order by commission;right to appeal
Sec. 28. (a) This section applies to the following:
(1) A provider that holds a certificate issued by the commissionunder this chapter.
(2) A provider that provides video service under a localfranchise, as permitted under section 21(b)(1) of this chapter.
(b) Subject to section 17(b) of this chapter, a provider may notdeny access to video service to any group of potential residentialsubscribers based on the income level of the residents in the localarea in which the group resides. However, a provider:
(1) shall have a reasonable time to become capable of providingvideo service to all households within a service area included inthe provider's franchise; and
(2) may satisfy the requirements of this subsection through theuse of an alternative technology that:
(A) offers content, service, and functionality comparable tothat provided through the provider's video service system, asdetermined by the commission; and
(B) may include a technology that does not require the useof any public right-of-way.
(c) For purposes of this subsection, an "affected person" includesthe following:
(1) A potential subscriber of video service from a provider.
(2) A local unit in which a person described in subdivision (1)resides, acting on behalf of the person or other similarlysituated persons.
An affected person that alleges a violation of subsection (b) by aprovider may petition the commission for equitable relief. Not laterthan forty-five (45) days after receiving a petition under thissubsection, the commission shall, after notice and an opportunity forhearing, make a determination as to whether a violation of subsection(b) has occurred.
(d) If, after holding any hearing requested in the matter, thecommission determines that no violation of subsection (b) hasoccurred, the commission's decision is final, subject to thepetitioner's right to appeal the decision in a court having jurisdiction.If the commission determines that a violation of subsection (b) hasoccurred, the commission may issue an order requiring the providerto offer video service to those persons to whom access to theprovider's video service has been denied. An order of the commissionunder this subsection must specify the following:
(1) A date by which the provider must offer video service tothose persons to whom access has been denied as a result of theprovider's violation. In specifying a date under this subdivision,
the commission shall allow the provider a reasonable time tobecome capable of providing the required video service to theaffected households.
(2) Any alternative technology described in subsection (b)(2)that the commission approves for use by the provider in makingvideo service available to the affected households.
Except as provided in subsection (e), an order of the commissionunder this subsection is final.
(e) A provider may appeal:
(1) a determination by the commission under subsection (d) thata violation of subsection (b) has occurred; or
(2) any findings or requirements of the order issued inconnection with the commission's finding of a violation;
in a court having jurisdiction.
As added by P.L.27-2006, SEC.58.
IC 8-1-34-29
Institutional network capacity; video service to public buildings;provision under terms of local franchise; continuation of servicesafter December 31, 2008, or expiration of franchise; apportionmentof costs
Sec. 29. (a) This section applies to a provider that holds a localfranchise to provide video service in a unit at any time before July 1,2009, regardless of whether:
(1) the provider elects:
(A) under section 21(b)(1) of this chapter, to continueproviding video service under the local franchise; or
(B) under section 21(b)(2) of this chapter, to terminate thelocal franchise and provide video service in the unit under acertificate issued under this chapter;
if the local franchise is in effect on June 30, 2009; or
(2) the provider will provide video service in the unit under acertificate issued under this chapter, if the local franchiseexpires before July 1, 2009.
(b) As used in this section, "local franchise" refers to:
(1) the existing local franchise, if subsection (a)(1)(A) applies;
(2) the terminated local franchise, if subsection (a)(1)(B)applies; or
(3) the most recent local franchise held by the provider in theunit, if subsection (a)(2) applies.
(c) A holder to which this section applies shall continue toprovide the following services under the terms of the local franchiseuntil January 1, 2009, or until the local franchise will expire orwould have expired, whichever is later:
(1) Institutional network capacity, however defined orreferenced in the local franchise, but generally including privateline data network capacity for use by the unit fornoncommercial purposes. Institutional network capacityprovided under this subdivision shall continue to be provided atthe same capacity as required under the terms of the local
franchise.
(2) Video service to community public buildings, such asmunicipal buildings and public schools, however defined orreferenced in the local franchise, but generally including cabledrop connections to the buildings and a particular tier of videoservice provided to the buildings. Video service provided underthis subdivision shall continue to be provided to the same extentas required under the terms of the local franchise.
Beginning January 1, 2009, or upon the date on which the localfranchise will expire or would have expired, whichever is later, aprovider that provides services under this subsection shall continueto provide the services under this subsection if the unit requests thatthe services continue after December 31, 2008, or after the date thelocal franchise will expire or would have expired, whichever is later.
(d) This subsection applies to services described in subsection (c)that are provided after December 31, 2008, or after the date the localfranchise will expire or would have expired, whichever is later. Theincremental costs of the services shall be apportioned among allholders of a franchise to provide video service within the unit. Theamount of the incremental costs borne by a particular holder is equalto the total cost of providing the services multiplied by a fractioncalculated as follows:
(1) The numerator of the fraction equals the number ofsubscribers to whom the holder provides video service in theunit.
(2) The denominator of the fraction equals the total number ofsubscribers to whom all holders provide video service in theunit.
As added by P.L.27-2006, SEC.58.