Chapter 1332: FAIR COMPETITION IN CABLE OPERATIONS

1332.01 Fair competition in cable operations definitions.

As used in sections 1332.01 to 1332.10 of the Revised Code:

(A) "Applicable generally accepted accounting principles" means accounting principles and standards set forth in all applicable pronouncements of the governmental accounting standards board.

(B) "Cable service," "cable system," "franchise," and "franchising authority" have the same meanings as in the "Telecommunications Act of 1996," Pub. L. No. 104-104 , Title III, Sections 301(a) and 302 (b)(2), 110 Stat. 114, 124, 47 U.S.C.A. 522 .

(C) "Cable service provider" means any person or group of persons that is engaged in the provision of cable service over a cable system and directly or indirectly owns a significant interest in the cable system, or that through any arrangement otherwise controls or is responsible for the management and operation of the cable system.

(D) "Color of office," "public office," and "public official" have the same meanings as in section 117.01 of the Revised Code.

(E) "Direct costs" means all costs, whether capital costs, operating costs, or otherwise, that would be eliminated if the service or function to which they relate were discontinued.

(F) "Full cost accounting" means, in accordance with applicable generally accepted accounting principles, accounting for all direct and indirect costs, including capital costs, that are incurred in the ownership, management, or operation of a cable system or provision of cable service over a cable system.

(G) "Indirect costs" means all costs, whether capital costs, operating costs, or otherwise, that are not direct costs. Indirect costs that support multiple services or functions shall be allocated among those services and functions in proportion to the relative burden each service or function places on the cost category and by any reasonable method consistent with applicable generally accepted accounting principles.

(H) "Person" includes any individual, corporation, partnership, limited liability company, association, trust, or political subdivision.

(I) "Private cable service provider" means any cable service provider other than a public cable service provider.

(J) "Private cable service regulation" means any regulation, rule, requirement, or restriction of or by a political subdivision of this state that applies, by resolution, ordinance, rule, regulation, franchising agreement, or otherwise, to the terms and conditions of service, conditions of access to public property, permits for pole attachments, or any other matter concerning or affecting the provision of cable service over a cable system by a private cable service provider.

(K) "Public cable service provider" means any cable service provider that is a political subdivision of this state.

(L) "Public cable service recipient" means any household or business that receives cable service or benefits from video programming service, transmission service, distribution service, repair service, billing service, or customer service that is provided by, originates from, or is controlled by a public cable service provider of a political subdivision.

(M) "Public money" means any of the following:

(1) Any money received, collected by, or due a public official under color of office;

(2) Any money collected by any person on behalf of a public office or as a purported representative or agent of the public office;

(3) Any money received by any person, whether directly or indirectly, from the United States, this state, a county, municipal corporation, township, or any other public office for the purpose of performing or assisting with a governmental function or program authorized by or the responsibility of the United States, this state, a county, municipal corporation, township, or any other public office.

Effective Date: 10-05-2000

1332.02 Fair competition in cable service operations.

It is the public policy of this state under sections 1332.01 to 1332.10 of the Revised Code to:

(A) Ensure fair competition in the provision in this state of cable service over a cable system, consistent with the procompetitive policies of the "Telecommunications Act of 1996," Pub. L. No. 104-104 , 110 Stat. 56, 47 U.S.C.A. 151 , for the purposes of providing the widest possible diversity of entertainment, information, and news sources to the general public; advancing the unfettered exercise of rights under the first amendment to the United States Constitution to free speech and the free flow of information; enhancing the development and widespread use of technological advances in the provision of cable service over a cable system; and encouraging improved customer service at competitive rates;

(B) Ensure that all cable service over a cable system is provided in this state within a comprehensive and nondiscriminatory federal, state, and local scheme.

Effective Date: 10-05-2000

1332.03 No determination as to public utility status of cable service operation.

(A) Nothing in sections 1332.01 to 1332.10 of the Revised Code is a determination by the general assembly that the provision of cable service over a cable system by a municipal corporation does or does not constitute a public utility pursuant to Section 4 of Article XVIII, Ohio Constitution.

(B) Nothing in sections 1332.01 to 1332.10 of the Revised Code confers authority on a political subdivision of this state to own, lease, or operate a cable system or to provide cable service over a cable system; rather, that authority, if any, is as otherwise may be conferred by law.

(C) Except as expressly provided in sections 1332.01 to 1332.10 of the Revised Code, nothing in those sections restricts the authority of a political subdivision of this state, otherwise conferred by law, to grant a franchise to provide cable service.

Effective Date: 10-05-2000

1332.04 Prohibitions.

(A) No political subdivision of this state shall provide cable service over a cable system, whether bundled with other services or unbundled, except in accordance with sections 1332.01 to 1332.10 of the Revised Code.

(B)

(1) No political subdivision of this state that is a public cable service provider or contracts with a public cable service provider for cable service over a cable system shall, by any means, do any of the following:

(a) Prefer or advantage any public cable service provider or discriminate against any private cable service provider in any material matter affecting the provision, within the jurisdiction of the political subdivision, of cable service over a cable system;

(b) Fail to apply any private cable service regulation without discrimination to a public cable service provider within the jurisdiction of the political subdivision;

(c) Fail to pay all applicable fees, including, but not limited to, franchise fees, permit fees, pole attachment fees, or the equivalent of any such fees;

(d) Require from a person providing video service within the jurisdiction of the political subdivision any direct or in-kind charge or a payment of any kind in exchange for PEG channel programming or other content produced by the political subdivision or by an entity created by or partially supported by the political subdivision. As used in division (B)(1)(d) of this section, "PEG channel" and "video service" have the same meanings as in section 1332.21 of the Revised Code.

(2) Nothing in division (B)(1) of this section requires the application of a private cable service regulation to a public cable service provider if that application would be without legal or practical consequence, such as the application of a private cable service regulation requiring provision of an insurance bond, which application to a public cable service provider would require it to insure its performance to itself.

(C) No political subdivision of this state that is a public cable service provider shall have extraterritorial public cable service recipients in excess of fifty per cent of the number of public cable service recipients that reside within the geographical limits of the political subdivision. Nothing in this division prohibits public cable service providers from jointly owning and operating head-end equipment. Each such public cable service provider shall pay that proportion of the full costs of owning and operating such head-end equipment, including, but not limited to, the costs of construction, acquisition, installation, improvement, enhancement, modification, financing, maintenance, repair, and operation, equal to the total population of the political subdivision that is such public cable service provider divided by the total population of all political subdivisions that are public cable service providers jointly owning and operating such head-end equipment, determined annually or with such frequency as such public cable service providers otherwise agree.

(D) No political subdivision of this state that is a franchising authority shall unreasonably withhold a request by a cable service provider to transfer, modify, or renew, in accordance with the terms of the franchise and in accordance with the provisions of the "Telecommunications Act of 1996," Pub. L. No. 104-104 , Title III, Section 301(i), 110 Stat. 117, 47 U.S.C.A. 537 , the "Cable Communications Policy Act of 1984," Pub. L. No. 98-549 , Section 2, 98 Stat. 2790, 47 U.S.C.A. 545 , or the "Cable Television Consumer Protection and Competition Act of 1992," Pub. L. No. 102-385 , Section 18, 106 Stat. 1493, 47 U.S.C.A. 546 , its existing franchise to provide cable service over a cable system.

Effective Date: 10-05-2000; 2008 HB562 09-22-2008

1332.05 Legislation expending public moneys for cable service.

(A)

(1) In addition to satisfying any other applicable notice and hearing requirements, the legislative authority of a political subdivision of this state shall provide notice in accordance with division (B) of this section of its consideration of an ordinance or resolution that would authorize the expenditure of public money for a cable system or the provision of cable service over a cable system, including, but not limited to, an ordinance or resolution that would authorize any of the following:

(a) A feasibility study, marketing study, or any cost-benefit analysis concerning the establishment, acquisition, construction, improvement, financing, leasing, management, or operation of a cable system or the provision of cable service over a cable system;

(b) The acquisition, construction, installation, improvement, financing, lease, or agreement for management or operation of facilities capable of providing cable service over a cable system;

(c) An agreement or arrangement for the use of a cable system or for the provision of cable service over a cable system;

(d) Approval of the terms of a franchise agreement for the political subdivision as a public cable service provider, if any such agreement exists, or with any other public cable service provider to provide cable service over a cable system.

(2) Any ordinance or resolution enacted by the legislative authority of a political subdivision of this state authorizing the formation of a public cable service provider by the political subdivision shall include a comprehensible statement of the general plan for financing the acquisition, construction, installation, improvement, or lease of the cable system. No such ordinance or resolution shall be deemed an emergency ordinance or resolution or a measure necessary for the immediate preservation of the public peace, health, or safety in the political subdivision, and no such ordinance or resolution shall take effect sooner than thirty days after its date of enactment. If, within thirty days after such date of enactment, a petition signed by ten per cent of the electors of the political subdivision, based upon the total number of votes cast at the last preceding general election of the political subdivision, shall be filed with the appropriate office demanding a referendum on the ordinance or resolution, the ordinance or resolution shall not take effect until submitted to the electors and approved by a majority of those voting on it.

(3) Divisions (A)(1) and (2) of this section apply only with respect to the first time an ordinance or resolution described, respectively, in division (A)(1) or (2) of this section is considered or enacted, respectively, by a legislative authority, and a legislative authority need not comply with division (A)(1) or (2) of this section regarding any ordinance or resolution that pertains to the same cable system and that is considered or enacted, respectively, subsequent to an ordinance or resolution that was enacted and that complied with division (A)(1) or (2) of this section, respectively.

(B) Notice under division (A)(1) of this section shall be given at least forty-five days prior to the enactment of the ordinance or resolution and shall be given to all persons that have filed a pending application with the political subdivision to provide within its jurisdiction cable service over a cable system or are providing cable service over a cable system pursuant to a franchise granted by the political subdivision. The notice shall be in writing, delivered to the address designated by the person as the address for receipt of notices or, if no such designation has been made, to the operating address of that person as registered with the political subdivision. The notice shall be delivered by certified mail, registered mail, overnight delivery, or a similar method of receipted delivery.

(C) No political subdivision shall fail to comply with division (A) of this section.

Effective Date: 10-05-2000

1332.06 Special fund for cable system - annual report.

(A) A political subdivision of this state that is a public cable service provider shall maintain a special fund for its cable system and the provision of cable service over that cable system and shall be subject, with respect to that special fund, to sections 5705.09 , 5705.10 , 5705.14 , 5705.15 , 5705.16 , 5705.39 , 5705.40 , 5705.41 , 5705.44 , and 5705.45 and any other applicable provision of Chapter 5705. of the Revised Code concerning the establishment or maintenance of the special fund.

(B) A political subdivision of this state that is a public cable service provider shall prepare and publish, on or before the first day of June of each year for the prior calendar year, an annual report on its cable system and the provision of cable service over that cable system. The report shall be substantially in accordance with full cost accounting and shall include disclosure of the amount, source, and cost of working capital utilized for its cable system and the provision of cable service over that cable system and estimates of the amount of any franchise fee, regulatory fee, occupation tax, pole attachment fee, property tax, or other fee or tax that would be applicable to its cable system and the provision of cable service over that cable system but for any exemption by reason of its status as a political subdivision, which exemption is authorized by law. Nothing in sections 1332.01 to 1332.10 of the Revised Code requires any elected official of the political subdivision to maintain a log or other record of the time the official spends on the business of the public cable service provider in the course of official duties.

(C) No political subdivision shall fail to comply with division (A) or (B) of this section.

Effective Date: 10-05-2000

1332.07 Effect of violation by political subdivision.

A violation of any provision of division (B) of section 1332.04 of the Revised Code by a political subdivision, whether as a franchising authority, public cable service provider, or otherwise, relieves any other cable service provider in the jurisdiction of the political subdivision from any obligation to comply with or perform any regulation, rule, requirement, or restriction that is the subject of the violation, and entitles any such other cable service provider to equivalent treatment, right, or benefit.

Effective Date: 10-05-2000

1332.08 Arbitration of disputes - procedure.

(A) A dispute for which a civil action is authorized under section 1332.09 of the Revised Code may first be submitted to arbitration in accordance with the procedures and subject to the conditions set forth in divisions (B) to (D) of this section.

(B) Prior to initiating a civil action under section 1332.09 of the Revised Code, a person authorized to bring such an action may provide written notice of proposed arbitration under this section to all persons that would be party to the civil action. The notice shall describe with reasonable specificity the issues that would be the subject of the civil action. The issues shall be submitted to arbitration only if each person receiving such a notice of proposed arbitration gives its written consent not later than seven days after the date of receipt of the notice.

(C) Arbitration under this section shall be conducted and decided by a panel of three arbitrators in accordance with procedures established by the American arbitration association. The persons that would be the complainants in a civil action under section 1332.09 of the Revised Code regarding the issues submitted to arbitration shall select one of the arbitrators, the persons that would be the respondents in the civil action shall select another one of the arbitrators, and the two arbitrators so selected shall jointly select the third arbitrator. If the two arbitrators selected are unable to agree on a third arbitrator within seven days after the latest date either of the two arbitrators was selected, they are removed, and the parties to the proposed arbitration shall each select one substitute arbitrator in the same manner as previously provided in this division, and the two substitute arbitrators so selected shall jointly select the third arbitrator. If the substitute arbitrators are unable to agree on a third arbitrator within seven days after the latest date either such substitute arbitrator was selected, they are removed, and the issues shall not be submitted to arbitration.

(D) Not more than one hundred twenty days after the date a panel of arbitrators is selected under division (C) of this section, the panel shall issue a written opinion setting forth findings and decisions respecting the issues submitted to arbitration. The findings and decisions of the majority of the arbitrators on the panel shall be deemed the findings and decisions of the panel. The findings and decisions shall not be binding but shall be admissible into evidence in any civil action brought under section 1332.09 of the Revised Code respecting the issues submitted to arbitration. The arbitrators shall not have continuing jurisdiction after the written opinion required by this division is issued.

(E) Issues submitted to arbitration under this section may be resolved at any time by binding settlement agreement among the parties to the arbitration.

Effective Date: 10-05-2000

1332.09 Actions for declaratory or injunctive relief - findings of arbitration opinion.

(A) A political subdivision subject to division (A), (B), or (C) of section 1332.04 or division (C) of section 1332.05 of the Revised Code may bring a civil action for declaratory relief in the court of common pleas in the county in which the political subdivision is located or in any county of this state in which the political subdivision is a public cable service provider.

(B) A person that is or is likely to be adversely affected by a violation of division (A), (B), or (C) of section 1332.04 or division (C) of section 1332.05 of the Revised Code may bring a civil action for declaratory or injunctive relief in such a court of common pleas. Such person that is or is likely to be adversely affected includes a person that provides, or has filed a pending application to provide, within the jurisdiction of the political subdivision, cable service over a cable system, and includes any other political subdivision in which such allegedly noncomplying political subdivision is, or has filed a pending application to become, a public cable service provider.

(C)

(1) If an arbitration opinion under section 1332.08 of the Revised Code contains a finding of a violation by a political subdivision of division (A), (B), or (C) of section 1332.04 or division (C) of section 1332.05 of the Revised Code and the political subdivision fails to rectify the violation promptly, and any person adversely affected by the violation substantially prevails in a subsequent civil action against the political subdivision under division (B) of this section regarding the violation not promptly rectified, the political subdivision is liable to the person for the person's costs and reasonable attorney's fees incurred in connection with the civil action.

(2) If an arbitration opinion under section 1332.08 of the Revised Code does not contain a finding of a violation by a political subdivision of division (A), (B), or (C) of section 1332.04 or division (C) of section 1332.05 of the Revised Code and the political subdivision substantially prevails in a subsequent civil action brought against it under division (B) of this section respecting an alleged violation, the complainants in the civil action are liable to the political subdivision for its costs and reasonable attorney's fees incurred in connection with the civil action.

(3) The court shall exercise its equitable discretion in determining the appropriate amount of attorney's fees to be awarded under division (C)(1) or (2) of this section. In exercising that discretion, the court shall consider at least all of the following: the degree to which the party partially prevailed, the reasonableness of the party's action, the reasonableness of the arbitrator's decision, the effort or lack of effort of the parties to reach a settlement, and the good faith or lack of good faith of the parties.

Effective Date: 10-05-2000

1332.10 Right of action, remedy or penalty is in addition to others.

Any right of action, remedy, or penalty under section 1332.08 or 1332.09 of the Revised Code is in addition to any right of action, remedy, or penalty otherwise available under law.

Effective Date: 10-05-2000

1332.21 Video service definitions.

As used in sections 1332.21 to 1332.34 of the Revised Code:

(A) "Access to video service" means the capability of a video service provider to provide video service at a household address irrespective of whether a subscriber has ordered the service or whether the service is actually provided at that address.

(B) "Basic local exchange service" has the same meaning as in section 4927.01 of the Revised Code.

(C) "Cable operator," "cable service," "cable system," "franchise," and "franchising authority" have the same meanings as in the "Cable Communications Policy Act of 1984," Pub. L. No. 98-549 , 98 Stat. 2780, 2781, 47 U.S.C. 522 , as amended by the "Telecommunications Act of 1996," Pub. L. No. 104-104 , 110 Stat. 56.

(D) "Competitive video service agreement" means any agreement, memorandum of understanding, or other document that provides or has the effect of providing, whether or not as a franchise, authorization by a municipal corporation or township for the provision of video service within its boundaries by a person using telecommunications facilities to provide that service.

(E) "Household" means, consistent with the regulations of the bureau of the census of the United States department of commerce, a house, an apartment, a mobile home, a group of rooms, or a single room that is intended for occupancy as separate living quarters. "Separate living quarters" are those in which the occupants live and eat separately from any other persons in the building and that have direct access from the outside of the building or through a common hall.

(F) "Low-income households" means those residential households that are located within the video service provider's video service area and have an average annual household income of less than thirty-five thousand dollars based on United States census bureau estimates on January 1, 2007.

(G) "PEG channel" means a channel, for public, educational, and governmental programming, made available by a video service provider or cable operator for noncommercial use.

(H) "Telecommunications service" has the same meaning as in the "Telecommunications Act of 1996," Pub. L. No. 104-104 , Title I, Section 3, 110 Stat. 60, 47 U.S.C. 153 .

(I) "Video programming" has the same meaning as in the "Cable Communications Policy Act of 1984," Pub. L. No. 98-549 , 98 Stat. 2781, 47 U.S.C. 522 .

(J) "Video service" means the provision of video programming over wires or cables located at least in part in public rights-of-way, regardless of the technology used to deliver that programming, including internet protocol technology or any other technology. The term includes cable service, but excludes video programming provided to persons in their capacity as subscribers to commercial mobile service as defined in the "Telecommunications Act of 1996," Pub. L. No. 104-104 , Title VII, Sections 704(a) and 705, 110 Stat. 61, 151, 153, 47 U.S.C. 332 ; video programming provided solely as part of and via a service that enables users to access content, information, electronic mail, or other services offered over the public internet; and signals distributed by a cable television system to paying subscribers in the unincorporated area of a township prior to October 1, 1979, as authorized under section 505.91 of the Revised Code as that section existed prior to its repeal by S.B. 117 of the 127th general assembly, unless a franchise was subsequently issued to the same company as authorized under that section.

(K) "Video service area" means the service area specified pursuant to divisions (A) and (B) of section 1332.25 of the Revised Code.

(L) "Video service network" means wires or cables and associated facilities or components used to deliver video service and includes a cable system.

(M) "Video service provider" means a person granted a video service authorization under sections 1332.21 to 1332.34 of the Revised Code.

Effective Date: 2007 SB117 09-24-2007

1332.22 Legislative findings regarding video service.

The general assembly finds and declares all of the following for the purposes of sections 1332.21 to 1332.34 of the Revised Code:

(A) Video service brings significant daily benefits to this state by providing news, education, and entertainment.

(B) This state's economy will be enhanced by investment in new communications and video programming infrastructure, including fiber optic and internet protocol technologies.

(C) Enhancing the existing broadband infrastructure and increasing consumer access to robust and reliable broadband products and services are important, statewide concerns.

(D) To date, there has been only minimal competitive entry by telephone companies into the facilities-based video programming market in this state, in part, because local franchise requirements may present barriers to entry.

(E) Increased competition in the provision of video service will provide new and more video programming choices for consumers in this state, and new providers have stated their desire to supply that service.

(F) The time-to-market interval is critical for new entrants seeking to compete with incumbents.

(G) Local franchise and other requirements may present inordinate delays for new entrants.

(H) This state can and should provide a uniform regulatory framework by which persons can rapidly and expeditiously provide video service to residents of this state regardless of their jurisdictional locations, which framework will promote rapid competitive entry into the video service market and encourage additional, significant infrastructure investment.

(I) Maintaining an existing franchise in cases where new entrants obtain video service authorizations is not appropriate unless the incumbent chooses to maintain that franchise.

(J) The continued development of Ohio's video service market and promotion of infrastructure investment are matters of statewide concern and are properly subject to exercises of this state's police power.

(K) By analogy to Am. Financial Servs. Assn. et al. v. Cleveland, 112 Ohio St. 3d 170, 2006-Ohio-6043, citing Canton v. State, 95 Ohio St.3d 149, 2002-Ohio-2005, syllabus, sections 1332.21 to 1332.34 of the Revised Code are intended as a comprehensive legislative enactment operating uniformly throughout this state, setting forth police regulations, and prescribing a rule of conduct upon citizens generally.

Effective Date: 2007 SB117 09-24-2007

1332.23 Video service authorization - video service as cable service.

(A) Except as otherwise provided in divisions (B)(1) and (2) of this section, no person shall provide video service in this state on or after the effective date of this section except pursuant to a video service authorization issued under section 1332.24 of the Revised Code. Nothing in sections 1332.21 to 1332.34 of the Revised Code equates authority to construct and operate telecommunications facilities in a public right-of-way to authority to provide access to video service.

(B)

(1)

(a) Subject to division (B)(2) of this section, a person that offers service under a franchise or competitive video service agreement in effect on the effective date of this section may continue on and after that date to provide service within the franchise area or the respective municipal corporation or unincorporated area of a township pursuant to the terms and conditions of the franchise or agreement. However, no such franchise or agreement shall be renewed or extended beyond the existing term of the franchise or agreement or its earlier termination pursuant to the terms and conditions of the franchise or agreement. With respect to such a franchise or competitive video service agreement but only for the time the franchise or agreement is in effect as provided under divisions (B)(1)(a) and (2) of this section, the authority of a township under sections 505.90 to 505.92 of the Revised Code, as those sections existed on the day before their repeal by Am. Sub. S.B. 117 of the 127th General Assembly, shall continue, notwithstanding their repeal by that act.

(b) Any person that is providing video service in this state on the effective date of this section pursuant to the terms and conditions of an expired franchise or competitive video service agreement, or is otherwise providing video service on that date other than as described in division (B)(1)(a) of this section, has ninety days beginning on the effective date of this section to file an application for a video service authorization under section 1332.25 of the Revised Code.

(2) A person that offers service under a franchise or competitive video service agreement pursuant to division (B)(1)(a) of this section may apply, under any of the following circumstances, under section 1332.25 of the Revised Code for a video service authorization to provide video service within an area served by its video service network on the effective date of this section under that franchise or agreement:

(a) Not sooner than one hundred twenty days before the expiration or termination of the person's franchise or competitive video service agreement for that area in accordance with its terms and conditions;

(b) After any other person provides or sells video service in that area;

(c) After receiving notice pursuant to division (A) of section 1332.27 of the Revised Code;

(d) After a determination by the federal communications commission under 47 C.F.R. 76.907 that the person is subject in that area to effective competition as defined in 47 C.F.R. 76.905(b) .

Upon the effective date of a video service authorization obtained by the person under division (B)(2) of this section, the franchise or competitive video service agreement terminates, and no provision of that franchise or agreement is enforceable.

(C) Video service constitutes cable service over a cable system for the purposes of sections 1332.01 to 1332.10 of the Revised Code. For purposes of division (B)(4) of section 4939.05 and divisions (A)(3) and (D)(2) of section 4939.08 of the Revised Code, a municipal corporation that receives a video service provider fee described in section 1332.32 of the Revised Code constitutes a municipal corporation that charges a franchise fee, and a video service authorization described in section 1332.24 of the Revised Code constitutes a franchise between a cable operator and a municipal corporation.

Effective Date: 2007 SB117 09-24-2007

1332.24 Issuance of video service authorization - violations - civil penalties.

(A)

(1) In accordance with section 1332.25 of the Revised Code, the director of commerce may issue to any person, or renew, a video service authorization, which authorization confers on the person the authority, subject to sections 1332.21 to 1332.34 of the Revised Code, to provide video service in its video service area; construct and operate a video service network in, along, across, or on public rights-of-way for the provision of video service; and, when necessary to provide that service, exercise the power of a telephone company under section 4931.04 of the Revised Code. The term of a video service authorization or authorization renewal shall be ten years.

(2) For the purposes of the "Cable Communications Policy Act of 1984," Pub. L. No. 98-549, 98 Stat. 2779, 47 U.S.C. 521 et seq., a video service authorization shall constitute a franchise under that law, and the director shall be the sole franchising authority under that law for video service authorizations in this state.

(3) The director may impose upon and collect an annual assessment on video service providers. All money collected under division (A)(3) of this section shall be deposited in the state treasury to the credit of the video service authorization fund created under section 1332.25 of the Revised Code. The total amount assessed in a fiscal year shall not exceed the lesser of four hundred fifty thousand dollars or, as shall be determined annually by the director, the department's actual, current fiscal year administrative costs in carrying out its duties under sections 1332.21 to 1332.34 of the Revised Code. The director shall allocate that total amount proportionately among the video service providers to be assessed, using a formula based on subscriber counts as of the thirty-first day of December of the preceding calendar year, which counts shall be submitted to the director not later than the thirty-first day of January of each year, via a notarized statement signed by an authorized officer. Any information submitted by a video service provider to the director for the purpose of determining subscriber counts shall be considered trade secret information, shall not be disclosed except by court order, and shall not constitute a public record under section 149.43 of the Revised Code. On or about the first day of June of each year, the director shall send to each video service provider to be assessed written notice of its proportional amount of the total assessment. The provider shall pay that amount on a quarterly basis not later than forty-five days after the end of each calendar quarter. After the initial assessment, the director annually shall reconcile the amount collected with the total, current amount assessed pursuant to this section, and either shall charge each assessed video service provider its respective proportion of any insufficiency or proportionately credit the provider's next assessment for any excess collected.

(B)

(1) The director may investigate alleged violations of or failures to comply with division (A) of section 1332.23 , division (A) of this section, division (C) of section 1332.25 , division (C) or (D) of section 1332.26 , division (A), (B), or (C) of section 1332.27 , division (A) of section 1332.28 , division (A) or (B) of section 1332.29 , or section 1332.30 or 1332.31 of the Revised Code, or complaints concerning any such violation or failure. Except as provided in this section, the director has no authority to regulate video service in this state, including, but not limited to, the rates, terms, or conditions of that service.

(2) In conducting an investigation under division (B)(1) of this section, the director, by subpoena, may compel witnesses to testify in relation to any matter over which the director has jurisdiction and may require the production of any book, record, or other document pertaining to that matter. If a person fails to file any statement or report, obey any subpoena, give testimony, produce any book, record, or other document as required by a subpoena, or permit photocopying of any book, record, or other document subpoenaed, the court of common pleas of any county in this state, upon application made to it by the director, shall compel obedience by attachment proceedings for contempt, as in the case of disobedience of the requirements of a subpoena issued from the court or a refusal to testify.

(C)

(1) If the director finds that a person has violated or failed to comply with division (A) of section 1332.23 , division (A) of this section, division (C) of section 1332.25 , division (C) or (D) of section 1332.26 , division (A), (B), or (C) of section 1332.27 , division (A) of section 1332.28 , division (A) or (B) of section 1332.29 , or section 1332.30 or 1332.31 of the Revised Code, and the person has failed to cure the violation or failure after reasonable, written notice and reasonable time to cure, the director may do any of the following:

(a) Apply to the court of common pleas of any county in this state for an order enjoining the activity or requiring compliance. Such an action shall be commenced not later than three years after the date the alleged violation or failure occurred or was reasonably discovered. Upon a showing by the director that the person has engaged in a violation or failure to comply, the court shall grant an injunction, restraining order, or other appropriate relief.

(b) Enter into a written assurance of voluntary compliance with the person;

(c) Pursuant to an adjudication under Chapter 119. of the Revised Code, assess a civil penalty in an amount determined by the director, including for any failure to comply with an assurance of voluntary compliance under division (C)(1)(b) of this section. The amount shall be not more than one thousand dollars for each day of violation or noncompliance, not to exceed a total of ten thousand dollars, counting all subscriber impacts as a single violation or act of noncompliance. In determining whether a civil penalty is appropriate under division (C)(1)(c) of this section, the director shall consider all of the following factors:

(i) The seriousness of the noncompliance;

(ii) The good faith efforts of the person to comply;

(iii) The person's history of noncompliance;

(iv) The financial resources of the person;

(v) Any other matter that justice requires.

Civil penalties collected pursuant to division (C)(1)(c) of this section shall be deposited to the credit of the video service enforcement fund in the state treasury, which is hereby created, to be used by the department of commerce in carrying out its duties under this section.

(2) Pursuant to an adjudication under Chapter 119. of the Revised Code, the director may revoke, in whole or in part, the video service authorization of any person that has repeatedly and knowingly violated or failed to comply with division (A) of section 1332.23 , division (A) of this section, division (C) of section 1332.25 , division (C) or (D) of section 1332.26 , division (A), (B), or (C) of section 1332.27 , division (A) of section 1332.28 , division (A) or (B) of section 1332.29 , or section 1332.30 or 1332.31 of the Revised Code and that has failed to cure the violations or noncompliances after reasonable written notice and reasonable time to cure. Such person acts knowingly, regardless of the person's purpose, when the person is aware that the person's conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when the person is aware that such circumstances probably exist.

(3) The court shall conduct a de novo review in any appeal from an adjudication under division (C)(1)(c) or (C)(2) of this section.

(D) The public utilities commission has no authority over a video service provider in its offering of video service or a cable operator in its offering of cable or video service, or over any person in its offering of video service pursuant to a competitive video service agreement.

Amended by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 6/30/2011.

Amended by 128th General AssemblyFile No.43, SB 162, §1, eff. 9/13/2010.

Amended by 128th General AssemblyFile No.9, HB 1, §101.01, eff. 10/16/2009.

Effective Date: 2007 SB117 09-24-2007

1332.25 Application for video service authorization.

(A) An application made to the director of commerce for a video service authorization under section 1332.24 of the Revised Code shall require and contain only the following:

(1) Specification of the location of the applicant's principal place of business and the names of the applicant's principal executive officers;

(2) Specification of the geographic and political boundaries of the applicant's proposed video service area;

(3) A general description of the type or types of technologies the applicant will use to deliver the video programming, which may include wireline, wireless, or any other alternative technology, subject, as applicable, to section 1332.29 of the Revised Code;

(4) An attestation that the applicant has filed or will timely file with the federal communications commission all forms required by that agency in advance of offering video service in this state;

(5) An attestation that the applicant will comply with applicable federal, state, and local laws;

(6) An attestation that the applicant is legally, financially, and technically qualified to provide video service;

(7) A description of the applicant's customer complaint handling process, including policies on addressing customer service issues, billing adjustments, and communication with government officials regarding customer complaints, and a local or toll-free telephone number at which a customer may contact the applicant.

(B) For the purpose of division (A)(2) of this section:

(1) The video service areas of video service providers may overlap.

(2) A specified video service area shall be coextensive with municipal, township unincorporated area, or county boundaries, except as authorized under division (B)(3) or (4) of this section, but nothing in sections 1332.21 to 1332.34 of the Revised Code shall require a video service provider to provide access to video service within the entire video service area.

(3) The specified video service area of a person using telecommunications facilities to provide video service on September 24, 2007, or of any other person later so using telecommunications facilities shall be the geographic area in which the person offers basic local exchange service.

(4) Subject to division (C)(2) of section 1332.27 of the Revised Code, the specified video service area of an applicant cable operator that offers service under a franchise in effect on September 24, 2007, initially shall be, at minimum, the franchise area established under that franchise.

(C) A video service provider shall immediately file an application to amend its video service authorization with the director to reflect any change in the information required under division (A)(1), (2), or (3) of this section. An amendment pursuant to division (A)(2) of this section shall include any new delivery technology information required by division (A)(3) of this section.

(D) Within thirty days after its filing or within thirty days after the filing of supplemental information necessary to make it complete, the director shall determine the completeness of an application filed under division (A) or (C) of this section relative to the respective requirements of divisions (A), (B), and (C) of this section and, as applicable, shall notify the applicant of an incompleteness determination, state the bases for that determination, and inform the applicant that it may resubmit a corrected application. The director shall issue a video service authorization, authorization renewal, or amended authorization within fifteen days after the director's determination that the filed application is complete.

If the director does not notify the applicant regarding the completeness of the application within the time period specified in this division or does not issue the authorization requested by a completed application within the applicable time period, the application shall be deemed complete, and the authorization or amended authorization deemed issued on the forty-fifth day after the application's filing date.

(E) An applicant shall pay a two thousand dollar nonrefundable fee for each application filed under division (A) of this section and a one hundred dollar nonrefundable fee for each application to amend filed under division (C) of this section. Fees collected under this division shall be deposited to the credit of the video service authorization fund in the state treasury, which is hereby created, to be used by the department of commerce in carrying out its duties under sections 1332.21 to 1332.34 of the Revised Code.

(F)

(1) No video service provider shall identify or make reference to an application fee under division (E) of this section on any subscriber bill or in conjunction with charging any fee to the subscriber.

(2) A video service provider may identify or make reference on a subscriber bill to an assessment under section 1332.24 of the Revised Code only if the provider opts to pass the cost of the assessment onto subscribers.

(G) An applicant may identify any information in its application as trade secret information, and if, upon its written request to the director, the director reasonably affirms all or part of that information as trade secret information, the information so affirmed does not constitute a public record for the purpose of section 149.43 of the Revised Code.

Amended by 128th General AssemblyFile No.9, HB 1, §101.01, eff. 10/16/2009.

Effective Date: 2007 SB117 09-24-2007

1332.26 Political subdivision authority - complaints - standards.

(A) No political subdivision shall require a video service provider to obtain from it any authority to provide video service within its boundaries.

(B) Except as authorized under division (C) of this section and under sections 1332.30 and 1332.32 of the Revised Code, no political subdivision shall request anything of value from a video service provider for providing video service; impose any fee, license, or gross receipt tax on the provision of video service by such a provider; or impose any franchise or other requirement on the provision of video service by a video service provider, including, but not limited to, any provision regulating rates charged by a video service provider or establishing any build-out requirement or requirement to deploy any facility or equipment.

(C) When requested to do so, a video service provider shall assist a municipal corporation or township in addressing video service subscriber complaints, in a manner consistent with the provider's complaint handling process set forth in its application pursuant to division (A)(7) of section 1332.24 of the Revised Code. Nothing in sections 1332.21 to 1332.34 of the Revised Code affects any authority granted under sections 1345.01 to 1345.13 of the Revised Code.

(D) A video service provider shall meet all of the following customer service standards:

(1) The provider shall restore video service within seventy-two hours after a subscriber reports a service interruption or other problem if the cause was not a natural disaster.

(2) Upon a report by a subscriber of a service interruption and if the interruption is caused by the video service provider and lasts for more than fours hours in a given day, the provider shall give the subscriber a credit in the amount of the cost of each such day's video service as would be billed to the subscriber.

(3) Upon a report by a subscriber of a service interruption and if the interruption is not caused by the video service provider and lasts for more than twenty-four consecutive hours, the provider shall give the subscriber, for each hour of service interruption, a credit in the amount of the cost of per hour video service as would be billed to the subscriber.

(4) The provider shall give a subscriber at least thirty days' advance, written notice before removing a channel from the provider's video service, but no such notice is required if the provider must remove the channel because of circumstances beyond its control.

(5) The provider shall give a subscriber at least ten days' advance, written notice of a disconnection of all or part of the subscriber's video service, except if any of the following apply:

(a) Disconnection has been requested by the subscriber .

(b) Disconnection is necessary to prevent theft of video service .

(c) Disconnection is necessary to prevent the use of video service through fraud.

(d) Disconnection is necessary to reduce or prevent signal leakage as described in 47 C.F.R. 76.611.

(6) The provider shall not establish a due date earlier than fourteen days after a video service bill is issued.

(7) The provider shall not disconnect all or part of a subscriber's video service for failure of the subscriber to pay any amount of its video service bill, until the amount is at least fourteen days past due.

(8) The provider shall give a subscriber at least thirty days' advance, written notice before instituting an increase in video service rates.

Amended by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Effective Date: 2007 SB117 09-24-2007

1332.27 Advance notice of service - transfer - termination.

(A) Before it provides or sells video service to one or more subscribers within its video service area or any additional video service area under division (C) of section 1332.25 of the Revised Code, a video service provider shall provide ten days' advance, written notice of that service or additional service to the respective municipal corporation or township and to every person providing video service in all or part of that video service area.

(B) A video service provider may transfer its video service authorization to a successor. Within ten days after completing the transfer, the provider shall provide written notice to the respective municipal corporation or township. The transfer is not valid until the date that the successor files a complete affidavit with the director of commerce containing the information specified in division (A) of section 1332.25 of the Revised Code. The director has no authority to act upon the notice or the completed affidavit.

(C)

(1) A video service provider may terminate video service to its video service area, but only after providing ninety days' advance, written notice to the director, affected subscribers, and the respective municipal corporations or townships comprising the video service area. The director has no authority to act upon the notice.

(2) Notwithstanding division (C)(1) of this section, a video service provider that provided video service in this state under a franchise on the effective date of this section shall not abandon the video service it provided within the franchise area to subscribers served on that effective date, at least until the franchise would have expired if not terminated under division (B) of section 1332.23 of the Revised Code.

Effective Date: 2007 SB117 09-24-2007

1332.28 Racial or income discrimination prohibited.

(A) Consistent with the "Telecommunications Act of 1996," Pub. L. No. 104-104 , Title III, Sections 303(a), 110 Stat. 61, 124, 47 U.S.C. 541(a)(3) and to prohibit discriminatory practices against a group of potential residential subscribers, no video service provider shall deny access to video service to any group of potential residential subscribers in its video service area because of the race or income of the residents in the local area in which the group resides.

(B) It is an affirmative defense to a violation of division (A) of this section if the video service provider can demonstrate either of the following:

(1) Three years after the date it began providing video service in its video service area, at least twenty-five per cent of households with access to the provider's video service are low-income households.

(2) Five years after the date it began providing video service in its video service area and thereafter, at least thirty per cent of the households with access to the provider's video service are low-income households.

Effective Date: 2007 SB117 09-24-2007

1332.29 Household service percentage requirements - waiver.

(A)

(1) A video service provider that both uses telecommunications facilities to provide video service and has more than one million telephone access lines in this state shall provide access to video service to at least:

(a) Twenty-five per cent of the households in its video service area within two years after the date it began providing video service in that area;

(b) Fifty per cent of the households in its video service area within five years after the date it began providing video service in that area, except that a video service provider need not meet that fifty per cent requirement until two years after at least thirty per cent of the households with access to the provider's video service under its video service authorization subscribe to the service for six consecutive months.

(2) A video service provider may comply with division (A)(1)(a) or (b) of this section through the use of alternative technology, except satellite technology, that offers service, functionality, and content demonstrably similar to the service, functionality, and content the provider otherwise provides through its video service network.

(B) A video service provider shall file an annual report with the director of commerce describing its compliance with division (A) of this section or, as applicable, its progress toward that compliance.

(C) A video service provider may apply to the director for a waiver of or for an extension of time to comply with division (A)(1) of this section. The director may grant the waiver or extension only if the director determines that the video service provider has made substantial and continual effort to comply and determines that one or more of the following caused the provider's inability to comply:

(1) The provider is unable to obtain access to public and private rights-of-way under reasonable terms and conditions.

(2) Developments or buildings are not subject to competition because of existing, exclusive service arrangements.

(3) Developments or buildings are inaccessible using reasonable technical solutions under commercially reasonable terms and conditions.

(4) A natural disaster prevents compliance.

(5) There are other factors beyond the provider's control.

If an extension of time is granted, the director shall establish a new compliance deadline. If a waiver is granted, the director shall specify the requirement or requirements waived.

Effective Date: 2007 SB117 09-24-2007

1332.30 Public, educational, or governmental programming channels.

(A)

(1)

(a) If a municipal corporation or township has three or more PEG channels programmed on January 1, 2007, the person providing those channels pursuant to a franchise, competitive video service agreement, ordinance, or resolution or otherwise shall continue to provide those PEG channels, three of which shall be on the person's basic cable service, with the additional PEG channels on the person's basic cable service or on any service tier viewed by more than fifty per cent of the subscribers in the video service area. Any such additional channel may be reclaimed if it is not substantially utilized. For the purpose of divisions (A)(1)(a) and (B)(2) of this section, a PEG channel is "not substantially utilized" when fewer than forty hours of noncharacter-generated content are programmed on that channel each week and less than sixty per cent of the programming is nonrepeat and locally produced.

(b) If the municipal corporation or township has one or two PEG channels programmed on January 1, 2007, the person providing those channels pursuant to a franchise, competitive video service agreement, ordinance, or resolution or otherwise shall continue to provide the channel or channels, with one PEG channel on the person's basic cable service and, as applicable, the second PEG channel on the person's basic cable service or on any service tier viewed by more than fifty per cent of the subscribers in the video service area.

(2) A municipal corporation or township by written notice shall require a person providing video service in the municipal corporation or township on or after the effective date of this section, other than a person described in division (A)(1)(a) or (b) of this section, to provide the same number of PEG channels under the same service tier conditions and subject to the same channel reclamation as those required under division (A)(1)(a) or (b) of this section of the incumbent person but, if there is more than one such incumbent that provided PEG channels on January 1, 2007, the person shall provide the same number required of the incumbent with the most recent obligation. The notice shall state the appropriate number of PEG channels and the service tiers required. Following receipt of that notice, the person shall provide the PEG channels not later than one hundred twenty days after the municipal corporation or township is able to deliver the PEG channel content.

(3) Nothing in division (A) of this section precludes a person and a municipal corporation or township from entering into other arrangements for PEG channels, including agreements increasing or decreasing the number of channels required under division (A)(1)(a) or (b) of this section.

(B)

(1) A municipal corporation or a township that has no PEG channels programmed on January 1, 2007, and lies within a video service provider's video service area may require the video service provider by written notice to provide PEG channels beginning after the provider initially provides video service within the municipal corporation or unincorporated area of the township. The video service provider shall provide the PEG channels one hundred twenty days after the municipal corporation or township is able to deliver the PEG channel content. The provider may use any service tier viewed by more than fifty per cent of the subscribers in the video service area to provide the PEG channels.

(a) Except as provided in division (B)(2) of this section, the number of required PEG channels shall not exceed three if the respective municipal corporation or township has a population of at least fifty thousand, or two if the population is less than fifty thousand. If there is more than one video service provider providing PEG channels in the municipal corporation or township, the number of channels shall be the same for all the video service providers.

(b) If a video service provider distributes video programming to more than one municipal corporation or township through a single headend or video hub office and the aggregate population of the municipal corporations or townships is at least fifty thousand, none of those municipal corporations or townships shall require the provider to provide, in the aggregate, channel capacity for more than three PEG channels. If the aggregate population is less than fifty thousand, none of those municipal corporations or townships shall require the provider to provide, in the aggregate, channel capacity for more than two PEG channels.

(2) A video service provider may reclaim a PEG channel under division (B) of this section that it determines is not substantially utilized. At such time as the municipal corporation or township that caused the establishment of the PEG channel can later certify that the channel will be substantially utilized, the video service provider, within one hundred twenty days after the date the video service provider receives that certification, shall restore the reclaimed channel as a PEG channel. However, the provider need not carry that channel on any specified tier of service.

(C) No municipal corporation or township shall require a video service provider to provide any institutional network on its video service network, except that a person that, pursuant to a franchise, competitive video service agreement, ordinance, or resolution or otherwise, provided any institutional network on January 1, 2007, shall continue to provide the institutional network until the obligation would have expired if not terminated pursuant to division (B) of section 1332.23 of the Revised Code, or, if earlier and as applicable, until January 1, 2012, or such earlier date as may be specified in an ordinance or resolution in effect on the effective date of this section. The provider shall give the municipal corporation or township at least one hundred twenty days' written advance notice of that termination. If the obligation included terms regarding the infrastructure of the institutional network upon the expiration of the obligation, the video service provider shall honor those terms. Nothing in this division precludes such a video service provider and a municipal corporation or township from entering into other arrangements for institutional networks.

(D) A video service provider shall accept PEG channel content and programming under this section that, at the least, meets the transmission standards of the national television standards committee in effect on the effective date of this section.

(E)

(1) The unfulfilled obligation of a person under a franchise, competitive video service agreement, ordinance, or resolution in effect on the effective date of this section to provide monetary or other support to a municipal corporation or township for PEG channel facilities shall continue until the obligation would have expired if not terminated pursuant to division (B) of section 1332.23 of the Revised Code or, if earlier and as applicable, January 1, 2012, or such earlier date as many be specified in an ordinance or resolution in effect on the effective date of this section.

(2)

(a) Each other person providing access to video service within the municipal corporation or the unincorporated area of a township after the effective date of this section shall have a pro rata share of the same unfulfilled obligation to support PEG channel facilities during the same time period as the incumbent under division (E)(1) of this section, but, if there is more than one such incumbent, each other person shall have the same obligation as the incumbent with the most recent obligation.

(i) If the incumbent support is in the form of a percentage of gross revenues or a per subscriber fee, the video service provider shall provide that same level of support in that same form.

(ii) If the incumbent support is in the form of a lump sum payment without an offset to its video service provider fee, the video service provider shall be responsible for a pro rata share of that payment.

(iii) If the incumbent provides in-kind support, the video service provider shall pay the municipal corporation or township a pro rata share of the fair market value of that support.

The video service provider may identify and collect the amount of any fees authorized by divisions (E)(2)(a)(i) or any payment authorized under division (E)(2)(a)(ii) or (iii) of this section and the cost of any content conversion, if applicable, as a separate line item on the bills of its subscribers having service addresses within the municipal corporation or unincorporated area of the township.

(b) A video service provider's pro rata share of the unfulfilled obligation under division (E)(2)(a)(ii) or (iii) of this section shall be based on its proportion of video service subscribers with service addresses in the municipal corporation or unincorporated area of the township. For the purpose of determining the pro rata shares, all persons under divisions (E)(1) and (2) of this section shall report quarterly to the municipal corporation or township the total number of subscribers served within the municipal corporation or the unincorporated area of the township. This information shall be treated as confidential by the municipal corporation or township and shall be used only to derive the pro rata shares.

(c) The person shall remit its pro rata share to the municipal corporation or township quarterly, not sooner than forty-five nor later than sixty days after the end of the preceding calendar quarter. However, the person need not pay its pro rata share unless the municipal corporation or township provided notice to the person of the amount due. The municipal corporation or township shall use the payments only as authorized under federal law.

(F)

(1) If a municipal corporation or township requires a person to provide connectivity for PEG channel programming on January 1, 2007, the person shall fulfill that obligation and provide connectivity sufficient to connect its headend or video hub office to the municipality's or township's PEG access channel origination points existing as of January 1, 2007. The obligation shall expire January 1, 2012, or such earlier date as may be specified in an ordinance or resolution of the municipal corporation or township in effect on the effective date of this section or, if earlier, at the end of the most recent such connectivity obligation of any person to the municipal corporation or township. The person may use the most economically and technologically efficient means of providing that capacity.

The person may identify and collect the amount of its costs to provide connectivity as a separate line item on the bills of its subscribers having service addresses in the municipal corporation or unincorporated area of the township.

(2) During the time described in division (F)(1) of this section, if the municipal corporation or township requests that a PEG channel origination point existing as of January 1, 2007, be relocated, the person may charge the municipal corporation or township for the costs of constructing that part of a transmission line, connecting the person's headend or video hub office to the relocated point, that extends two hundred feet beyond the headend or video hub, but not for the costs associated with the transmission of the PEG programming. Also, during that time, the person may charge for the construction costs associated with additional origination points, but not for the costs associated with the transmission of the PEG programming.

(G) Except as otherwise provided in this section, no municipal corporation or township shall require a video service provider to provide any funds, services, programming, facilities, or equipment related to PEG channels. PEG channel operation and programming shall be the sole responsibility of the municipal corporation or township. Except as otherwise provided in this section, the video service provider shall bear only the responsibility for the transmission to subscribers of the PEG channel programming once the programming is delivered to the video service provider.

Effective Date: 2007 SB117 09-24-2007

1332.31 Emergency interrupt service announcements.

Not later than six months after the effective date of its video service authorization, a video service provider shall carry emergency interrupt service announcements transmitted by local television broadcasters and shall transmit national, state, and local emergency interrupt service announcements as required by 47 C.F.R. 11.11 et seq. or as otherwise required by the federal communications commission.

Effective Date: 2007 SB117 09-24-2007

1332.32 Payment of video service provider fees.

(A) Not sooner than forty-five nor later than sixty days after the end of each calendar quarter, a video service provider shall pay a video service provider fee to each municipal corporation and each township in which it offers video service. The fee shall be calculated quarterly by determining the provider's gross revenue for the preceding calendar quarter as described in division (B) of this section and multiplying the result by the percentage specified in division (C)(1)(a) or (b) of this section.

(B) Gross revenue shall be computed in accordance with generally accepted accounting principles.

(1) Gross revenue shall consist of all of the following revenue for the calendar quarter that is collected by the provider for video service from all its subscribers having service addresses within the municipal corporation or, respectively, the unincorporated area of the township:

(a) Recurring monthly charges for video service;

(b) Event-based charges for video service, including, but not limited to, pay-per-view and video-on-demand charges;

(c) Charges for rental of set top boxes and other video service equipment;

(d) Service charges related to the provision of video service, including, but not limited to, activation, installation, and repair;

(e) Administrative charges related to the provision of video service, including, but not limited to, service order and service termination charges.

(2) Gross revenue shall not include any of the following:

(a) Any taxes, fees, or assessments that are collected by the video service provider from video service subscribers for pass-through to any federal, state, or local government agency, including the video service provider fee authorized under this section, the fee authorized under division (F) of section 1332.30 of the Revised Code, and the federal communication commission user fee;

(b) Uncollectible charges, except that uncollectible charges, all or part of which are written off as bad debt but subsequently collected, less the expenses of their collection shall be included in gross revenue in the quarter collected;

(c) Late payment charges;

(d) Maintenance charges;

(e) Charges for services other than video service, reasonably identifiable on books or records the video service provider keeps in the regular course of business or by other reasonable means, that are aggregated or bundled with amounts billed to video service subscribers, including, but not limited to, any revenue received by a video service provider or its affiliates for telecommunications service, information service, or the provision of directory or internet advertising, including yellow pages, white pages, banner advertising, and electronic publishing;

(f) Reimbursement by programmers of marketing costs actually incurred by the video service provider;

(g) Advertising revenue, unless a municipal corporation enacts an ordinance or a board of township trustees adopts a resolution that uniformly applies to all video service providers. For those purposes, "advertising revenue" means the net revenue received by the video service provider for advertising on its subscription-based video service within a municipal corporation or the unincorporated area of a township. If such revenue is derived under a regional or national compensation contract or arrangement between the video service provider and one or more advertisers or advertising representatives, the amount of revenue derived for a municipal corporation or for the unincorporated area of a township shall be determined by multiplying the total net revenue received by the video service provider under the contract or arrangement by the percentage resulting from dividing the number of subscribers in the municipal corporation or unincorporated area of a township by the total number of regional or national subscribers that potentially receive the advertising under the contract or arrangement. The municipal corporation or township shall promptly notify affected video service providers of the ordinance or resolution, which shall not take effect until the first day of the first calendar quarter that begins more than thirty days after the notice.

(h) Subject to division (B)(2)(g) of this section, any revenue not expressly enumerated in division (B)(1) of this section.

(C)

(1)

(a) If in the calendar quarter a franchise fee is payable by a cable operator under a franchise in effect in a municipal corporation or township as provided under division (B) of section 1332.23 of the Revised Code, the percentage of gross revenue payable in that calendar quarter by a video service provider to the municipal corporation or township shall be the same percentage of gross revenue payable in that calendar quarter pursuant to that franchise, not to exceed five per cent. If there is more than one such franchise of a cable operator in effect in that quarter, the lowest such percentage shall be used.

(b) Otherwise, the percentage shall be zero or such higher percentage, not to exceed five per cent, as is specified in an ordinance or resolution that the municipal corporation or township may enact or adopt for the purpose of this section.

(2) The municipal corporation or township shall provide written notice to the video service provider of the appropriate percentage under division (C)(1)(a) or (b) of this section within ten days after it receives the notice required by division (A) of section 1332.27 of the Revised Code that the video service provider will commence to provide access to video service in the municipal corporation or unincorporated area of the township. A provider need not pay the fee unless the municipal corporation or township provided that notice.

(D) A video service provider that pays a video service provider fee pursuant to this section may identify and collect the amount of that fee as a separate line item on the regular bill of each of its video service subscribers that has a service address within any portion of the municipal corporation or, respectively, within the unincorporated area of the township.

Effective Date: 2007 SB117 09-24-2007

1332.33 Video service provider fee audit.

(A) At its sole expense and not more often than once per calendar year, a municipal corporation or township may conduct an audit for the purpose of verifying the accuracy of a video service provider's calculation of the video service provider fees it paid to the municipal corporation or township in the audit period. For the purpose of the audit, the video service provider shall make available for inspection, at the location where such records are kept in the normal course of business, those records pertaining to its gross revenue as defined in division (B) of section 1332.32 of the Revised Code. The provider need not retain those records for longer than three years after the year for which the fee was payable, unless the municipal corporation or township has commenced an action under division (C) of this section.

(B) A video service provider shall pay any amounts found to have been underpaid in the audit within thirty days after notice and shall include interest on the underpayments as provided in section 1343.03 of the Revised Code. However, payment need not be made in that thirty-day period if the video service provider brings an action under division (D) of this section.

(C)

(1) No municipal corporation or township shall employ, appoint, or retain any person to conduct an audit under division (A) of this section for compensation that is dependent on the dollar amount of the audit findings. Divisions (C)(1) and (2) of this section do not prohibit or limit the hiring of legal counsel on a contingency fee basis to enforce the findings of an audit.

(2) No person shall solicit or accept compensation that is dependent in any manner upon the outcome of an audit under division (A) of this section, including compensation dependent on the audit findings or the recovery of fees or other payment by the municipal corporation, township, or video service provider.

(D) An action by the municipal corporation or township or by the video service provider to dispute the amount of video service provider fee due based on the audit results shall be brought in a court of competent jurisdiction not later than two years following the end of the quarter to which the disputed amount relates.

(E) A municipal corporation or township shall be deemed to accept as full payment any payment of a video service provider fee that it does not challenge as provided under division (D) of this section.

Effective Date: 2007 SB117 09-24-2007

1332.34 Harmony with federal law.

Nothing in sections 1332.21 to 1332.33 of the Revised Code is intended to be inconsistent with the "Cable Communications Policy Act of 1984," 98 Stat. 2779, 47 U.S.C. 521 to 573 .

Effective Date: 2007 SB117 09-24-2007