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 set
forth in IC 23-1-43-1. The term includes a parent company or a
subsidiary.
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 certificate
of franchise authority issued by the commission under section 17 of
this 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 Indiana
utility 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 initial
authorization, 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 service
system 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 all
consideration of any kind or nature, including cash, credits, property,
and in kind contributions:
(1) received by a holder from the operation of a video service
system 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 that
holds a certificate issued by the commission under this chapter after
June 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 the
provider serving the largest number of video service subscribers in
a 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 initial
authorization, 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 service
system 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 all
subscribers 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, a
corporation, a partnership, a limited liability company, an
association, 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 a
multichannel 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 forth
in 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 the
meaning 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 and
other programming service:
(A) through facilities located at least in part in a public
right-of-way; and
(B) without regard to the technology used to deliver the
video programming or other programming service; and
(2) any subscriber interaction required for the selection or use
of the video programming or other programming service.
(b) The term does not include commercial mobile service (as
defined 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" means
a system, consisting of a set of transmission paths and associated
signal generation, reception, and control equipment, that is designed
to 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 video
service 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; confidential
information; filing fee
Sec. 16. (a) Except as provided in section 21 of this chapter, after
June 30, 2006:
(1) the commission is the sole franchising authority (as defined
in 47 U.S.C. 522(10)) for the provision of video service in
Indiana; 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 who
seeks to provide video service in Indiana after June 30, 2006, shall
file with the commission an application for a franchise. The
application shall be made on a form prescribed by the commission
and must include the following:
(1) A sworn affidavit, signed by an officer or another person
authorized 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 by
the Federal Communications Commission before offering
video service in Indiana.
(B) That the applicant agrees to comply with all federal and
state statutes, rules, and regulations applicable to the
operation of the applicant's video service system.
(C) That the applicant agrees to:
(i) comply with any local ordinance or regulation
governing the use of public rights-of-way in the delivery
of video service; and
(ii) recognize the police powers of a unit to enforce the
ordinance or regulation.
(D) If the applicant will terminate an existing local franchise
under section 21 of this chapter, that the applicant agrees to
perform any obligations owed to any private person, as
required by section 22 of this chapter.
(2) The applicant's legal name and any name under which the
applicant does or will do business in Indiana, as authorized by
the secretary of state.
(3) The address and telephone number of the applicant's
principal place of business, along with contact information for
the person responsible for ongoing communications with the
commission.
(4) The names and titles of the applicant's principal officers.
(5) The legal name, address, and telephone number of the
applicant's parent company, if any.
(6) A description of each service area in Indiana to be served by
the applicant. A service area described under this subdivision
may include an unincorporated area in Indiana.
(7) The expected date for the deployment of video service in
each of the areas identified in subdivision (6).
(8) A list of other states in which the applicant provides video
service.
(9) If the applicant will terminate an existing local franchise
under section 21(b) of this chapter, a copy of the written notice
sent to the municipality under section 21(c) of this chapter.
(10) Any other information the commission considers necessary
to:
(A) monitor the provision of video service to Indiana
customers; and
(B) prepare the commission's annual report to the regulatory
flexibility committee under IC 8-1-2.6-4.
This subsection does not empower the commission to require an
applicant to disclose confidential and proprietary business plans and
other confidential information without adequate protection of the
information. The commission shall exercise all necessary caution to
avoid disclosure of confidential information supplied under this
subsection.
(c) The commission may charge a fee for filing an application
under this section. Any fee charged by the commission under this
subsection may not exceed the commission's actual costs to process
and 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 of
rights-of-way
Sec. 17. (a) Not later than fifteen (15) business days after the
commission receives an application under section 16 of this chapter,
the commission shall determine whether the application is complete
and properly verified. If the commission determines that the
application is incomplete or is not properly verified, the commission
shall notify the applicant of the deficiency and allow the applicant to
resubmit the application after correcting the deficiency. If the
commission determines that the application is complete and properly
verified, the commission shall issue the applicant a certificate of
franchise authority. A certificate issued under this section must
contain:
(1) a grant of authority to provide the video service requested in
the application;
(2) a grant of authority to use and occupy public rights-of-way
in the delivery of the video service, subject to:
(A) state and local laws and regulations governing the use
and occupancy of public rights-of-way; and
(B) the police powers of local units to enforce local
ordinances and regulations governing the use and occupancy
of 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 operation
of the video service.
(b) Except as provided in subsection (c) and sections 16(c) and 28
of 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 to
a 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 enforce
any obligation described in subsection (b) that a provider is subject
to under the terms of a settlement agreement approved by the
commission before July 29, 2004.
(d) The general assembly, a state agency, or a unit may not adopt
a law, rule, ordinance, or regulation governing the use and occupancy
of public rights-of-way that:
(1) discriminates against any provider, or is unduly burdensome
with 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 unit
to use or occupy public rights-of-way on terms or conditions
more favorable or less burdensome than those that apply to
other providers.
A law, a rule, an ordinance, or a regulation that violates this
subsection 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 of
this chapter, a certificate issued under this chapter may be transferred
to any successor in interest of the holder to which the certificate is
originally 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 terminated
by the holder by submitting notice to the commission under section
20 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; customer
notification requirements
Sec. 20. (a) In connection with, or as a condition of receiving, a
certificate under this chapter, the commission shall require a holder
to notify the commission, after the issuance of a certificate, of any of
the 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, or
change to, an assumed business name. The holder shall submit
to 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 the
name of the person authorized to receive notice on behalf of the
holder.
(4) Any transfer of the certificate to a successor in interest of
the holder allowed by section 18 of this chapter. The holder
shall identify the successor in interest to which the transfer is
made.
(5) The termination of any certificate issued under this chapter,
as allowed by section 19 of this chapter. The holder shall
identify:
(A) any other certificate issued under this chapter that will
be retained by the holder;
(B) the number of Indiana customers in the service area
covered by the certificate being terminated; and
(C) the method by which the holder's customers were
notified of the termination, if required by the commission
under subsection (c).
(6) A change in the video programming or other programming
service provided in one (1) or more of the services areas
identified under section 16(b)(6) of this chapter in the holder's
most recent application for a certificate under this chapter.
(7) A change in one (1) or more of the service areas identified
under section 16(b)(6) of this chapter that would increase or
decrease the territory within the service area. The holder shall
describe the new boundaries of the affected service areas after
the proposed change is made.
The commission shall prescribe the time in which a holder must
report changes under this section. The commission may prescribe a
form for the reporting of changes under this section.
(b) In connection with, or as a condition of, receiving a certificate
under this chapter, the commission shall require a holder to notify a
unit:
(1) in which the holder does not already provide video service
under:
(A) a local franchise issued by the unit before July 1, 2006;
or
(B) another certificate issued under this chapter after June
30, 2006; and
(2) that is included in the holder's service area under the
certificate being issued;
that the holder intends to provide video service in the unit's
jurisdiction. The holder shall give the notice required under this
subdivision not later than ten (10) days before the holder begins
providing video service in the unit's jurisdiction.
(c) In connection with the issuance of a certificate under this
chapter, the commission may require a holder to provide advance
notice to the holder's Indiana customers if the holder will do any of
the following:
(1) Change the rates and charges for video service that the
holder offers in any of its service areas in Indiana.
(2) Cease to offer video service, or any specific video
programming or other programming service, that the holder
offers in any of the holder's service areas in Indiana.
The commission shall prescribe any customer notification
requirements under this subsection in a rule of general application
adopted 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 considered
to 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 local
franchise on June 30, 2006, regardless of whether the provider is the
incumbent provider in the local franchise service area, may elect to:
(1) continue providing video service under the local franchise
until the local franchise expires; or
(2) subject to section 22 of this chapter, terminate the local
franchise and apply to the commission for a certificate under
this chapter.
(c) A provider that elects to terminate a local franchise under
subsection (b) must provide written notice of the provider's election
to:
(1) the commission; and
(2) the affected unit;
not later than November 1, 2006. The local franchise is terminated
on the date the commission issues a certificate to the provider under
this chapter.
(d) Not later than ninety (90) days after a local franchise is
terminated under subsection (c), the provider that terminated the
local franchise shall remit to the affected unit any accrued but unpaid
franchise fees due under the local franchise. If the provider has credit
remaining from any prepaid franchise fees, the provider may deduct
the amount of the credit from any future fees or taxes owed to the
affected unit.
As added by P.L.27-2006, SEC.58.
IC 8-1-34-22
Terminated local franchise; rights, duties, and obligations owed to
private persons; right of action; "private person"
Sec. 22. (a) A provider that elects to terminate a local franchise
under section 21 of this chapter remains subject to the contractual
rights, duties, and obligations incurred by the provider that are owed
to 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 for
renewal, extension, or continuance; and
(2) be paid or performed by the provider after becoming a
holder of a certificate under this chapter.
(c) The commission shall condition the issuance or renewal of a
certificate under this chapter on a provider's payment and
performance of the rights, duties, and obligations described in this
section. In applying for an initial certificate or a renewal certificate
under this chapter, a provider shall agree to pay or perform the
obligations described in this section, as required by section
16(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 this
section; 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) not
described 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; unincorporated
areas; annexed territory
Sec. 23. (a) Except as provided in subsection (b), the holder of a
certificate under this chapter shall, at the end of each calendar
quarter, determine under subsections (c) and (d) the gross revenue
received during that quarter from the holder's provision of video
service in each unit included in the holder's service area under the
certificate.
(b) This subsection applies to a holder or other provider providing
video service in a unit in which a provider of video service is
required on June 30, 2006, to pay a franchise fee based on a
percentage of gross revenues. The holder's or provider's gross
revenue 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 term
is 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 in
the unit on June 30, 2006;
the holder or provider shall determine gross revenue as the term
is defined in the local franchise to which the holder or provider
is 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 unit
on June 30, 2006;
the holder shall determine gross revenue as the term is defined
in the local franchise in effect on June 30, 2006, that is most
favorable to the unit.
(c) This subsection does not apply to a holder that is required to
determine gross revenue under subsection (b). The holder shall
include the following in determining the gross revenue received
during the quarter with respect to a particular unit:
(1) Fees and charges charged to subscribers for video service
provided by the holder. Fees and charges under this subdivision
include the following:
(A) Recurring monthly charges for video service.
(B) Event based charges for video service, including pay per
view and video on demand charges.
(C) Charges for the rental of set top boxes and other
equipment.
(D) Service charges related to the provision of video service,
including activation, installation, repair, and maintenance
charges.
(E) Administrative charges related to the provision of video
service, including service order and service termination
charges.
(2) Revenue received by an affiliate of the holder from the
affiliate's provision of video service, to the extent that treating
the revenue as revenue of the affiliate, instead of revenue of the
holder, would have the effect of evading the payment of fees
that would otherwise be paid to the unit. However, revenue of
an affiliate may not be considered revenue of the holder if the
revenue is otherwise subject to fees to be paid to the unit.
(d) This subsection does not apply to a holder that is required to
determine gross revenue under subsection (b). The holder shall not
include the following in determining the gross revenue received
during the quarter with respect to a particular unit:
(1) Revenue not actually received, regardless of whether it is
billed. Revenue described in this subdivision includes bad debt.
(2) Revenue received by an affiliate or any other person in
exchange for supplying goods and services used by the holder
to 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 the
holder'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 video
programming by the Federal Communications Commission.
(5) Any fee imposed on the holder under this chapter that is
passed through to and paid by subscribers, including the
franchise fee:
(A) imposed under section 24 of this chapter for the quarter
immediately preceding the quarter for which gross revenue
is being computed; and
(B) passed through to and paid by subscribers during the
quarter for which gross revenue is being computed.
(6) Revenue from the sale of video service for resale in which
the 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 limit
the authority of a unit, or the commission on behalf of a unit, to
impose a tax, fee, or other assessment upon the purchaser under
42 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 the
taxing entity;
including the state gross retail and use taxes (IC 6-2.5) and the
utility receipts tax (IC 6-2.3).
(8) Any forgone revenue from providing free or reduced cost
cable video service to any person, including:
(A) employees of the holder;
(B) the unit; or
(C) public institutions, public schools, or other governmental
entities, as required or permitted by this chapter or by federal
law.
However, any revenue that the holder chooses to forgo in
exchange for goods or services through a trade or barter
arrangement 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 to
receive video service from the holder.
(10) Reimbursements that:
(A) are made by programmers to the holder for marketing
costs incurred by the holder for the introduction of new
programming; 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 in
subsection (c)(1) on a customer's bill, if the holder can
reasonably identify the charges on the books and records by the
holder in the regular course of business.
(e) If, under the terms of the holder's certificate, the holder
provides video service to any unincorporated area in Indiana, the
holder shall calculate the holder's gross income received from each
unincorporated 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 any
territory after the certificate is issued or renewed under this chapter,
the holder shall:
(1) include in the calculation of gross revenue for the annexing
unit any revenue generated by the holder from providing video
service to the annexed territory; and
(2) subtract from the calculation of gross revenue for any unit
or unincorporated area:
(A) of which the annexed territory was formerly a part; and
(B) served by the holder before the effective date of the
annexation;
the amount of gross revenue determined under subdivision (1);
beginning with the calculation of gross revenue for the calendar
quarter in which the annexation becomes effective. The holder shall
notify the commission of the new boundaries of the affected service
areas 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 to
subscribers; 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 to
each unit included in the holder's service area under a certificate
issued under this chapter a franchise fee equal to:
(1) the amount of gross revenue received from providing video
service in the unit during the most recent calendar quarter, as
determined 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 unit
before 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 in
effect in the unit before July 1, 2006, the percentage of gross
revenue paid by the holder of the most recent local franchise
in effect in the unit, unless the unit elects to impose a
different percentage, which may not exceed five percent
(5%).
(C) If there is one (1) local franchise in effect in the unit on
July 1, 2006, the percentage of gross revenue paid by the
holder of that local franchise as a franchise fee to the unit,
unless the unit elects to impose a different percentage, which
may not exceed five percent (5%). Upon the expiration of a
local franchise described in this clause, the percentage shall
be determined by the unit but may not exceed five percent
(5%).
(D) If there is more than one (1) local franchise in effect
with respect to the unit on July 1, 2006, a percentage
determined 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 franchise
in effect in the unit on July 1, 2006.
(b) If the holder provides video service to an unincorporated area
in Indiana, as described in section 23(e) of this chapter, the holder
shall:
(1) calculate the franchise fee with respect to the
unincorporated area in accordance with subsection (a); and
(2) remit the franchise fee to the county in which the
unincorporated 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 the
franchise fee calculated under subdivision (1) to each county having
territory in the unincorporated area served. The part of the franchise
fee remitted to a county must bear the same proportion to the total
franchise fee for the area, as calculated under subdivision (1), that
the number of subscribers in the county bears to the total number of
subscribers in the unincorporated area served.
(c) With each payment of a franchise fee to a unit under this
section, the holder shall include a statement explaining the basis for
the calculation of the franchise fee. A unit may review the books and
records of:
(1) the holder; or
(2) an affiliate of the holder, if appropriate;
to the extent necessary to ensure the holder's compliance with section
23 of this chapter in calculating the gross revenue upon which the
remitted franchise fee is based. Each party shall bear the party's own
costs of an examination under this subsection. If the holder and the
unit cannot agree on the amount of gross revenue on which the
franchise fee should be based, either party may petition the
commission to determine the amount of gross revenue on which the
franchise fee should be based. A determination of the commission
under this subsection is final, subject to the right of direct appeal by
either party.
(d) A franchise fee owed by a holder to a unit under this section
may be passed through to, and collected from, the holder's
subscribers 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 bill
issued to a subscriber:
(1) the amount of the total bill assessed as a franchise fee under
this 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 to
continue providing video service under a local franchise is not
required to pay the franchise fee prescribed under this section, but
shall pay any franchise fee imposed under the terms of the local
franchise.
As added by P.L.27-2006, SEC.58.
IC 8-1-34-25
PEG channel capacity, facilities, and financial support; unit with
existing requirements
Sec. 25. (a) This section applies in a unit that:
(1) is included in the service area of a holder of a certificate
issued under this chapter; and
(2) requires a provider described in section 21(a) of this chapter
to provide PEG channel capacity, facilities, or financial support
under a local franchise issued to the provider by the unit before
July 1, 2006, regardless of whether the provider elects to:
(A) continue the local franchise under section 21(b)(1) of
this chapter; or
(B) terminate the local franchise under section 21(b)(2) of
this chapter and continue providing video service in the unit
under a certificate issued under this chapter.
(b) As used in this section, "PEG channel" refers to a channel
made available by a provider on the provider's video service system
for public, educational, and governmental programming.
(c) The holder of a certificate under this chapter shall provide in
the unit at least the number of PEG channels that the provider
described in section 21(a) of this chapter is required to provide in the
unit under the terms of the local franchise described in subsection
(a)(2).
(d) If the local franchise described in subsection (a)(2) requires
the provider described in section 21(a) of this chapter to provide
financial support for public, educational, or governmental
programming in the unit, the holder of a certificate under this chapter
shall pay the unit the same cash payments on a per subscriber basis
that the provider described in section 21(a) of this chapter is required
to pay the unit under the terms of the local franchise. The holder
shall remit payments under this subsection to the unit on a quarterly
basis, along with the franchise fee paid to the unit under section 24
of this chapter. For each calendar quarter, the holder shall remit to
the unit an amount equal to:
(1) the cash payment for the quarter due from the provider
described in section 21(a) of this chapter; multiplied by
(2) a fraction, the numerator of which equals the number of
subscribers served by the holder in the unit, and the
denominator of which equals the total number of subscribers
served 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 the
unit 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 or
areas without existing requirements; authority of commission to
require
Sec. 26. (a) This section applies in a unit or an unincorporated
area of Indiana that:
(1) is included in the service area of a holder of a certificate
issued under this chapter; and
(2) does not require a provider described in section 21(a) of this
chapter to provide PEG channel capacity, facilities, or financial
support under a local franchise issued before July 1, 2006.
(b) As used in this section, "PEG channel" has the meaning set
forth in section 25(b) of this chapter.
(c) As a condition of issuing or renewing a certificate to a holder
under this chapter, and upon:
(1) the petition of a unit or an unincorporated area included in
the holder's service area under the certificate; or
(2) the commission's own motion;
the commission may require the holder to provide PEG channel
capacity, facilities, or financial support to one (1) or more units or
unincorporated areas in the holder's service area under the certificate.
(d) As allowed by 47 U.S.C. 531, the commission may do the
following in exercising its authority under this section:
(1) Adopt rules and procedures for the designation or use of
PEG channel capacity in each unit or unincorporated area in
which the requirements apply.
(2) Enforce any requirement concerning the provision or use of
PEG channel capacity. The commission's enforcement authority
under this subdivision includes the authority to enforce any
provision that:
(A) is proposed by the holder and incorporated in the
holder's certificate; and
(B) concerns services, facilities, or equipment related to
PEG channel capacity;
regardless of whether the provision is required in rules or
procedures 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 the
designated channel capacity to provide other services, if the
channel capacity is not being used in the unit or
unincorporated area for the designated purposes; and
(B) that set forth the conditions under which the holder must
cease 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 channel
capacity:
(A) under a local franchise issued to the provider by the unit
before 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 set
forth in section 25(b) of this chapter.
(c) As a condition of issuing or renewing a certificate to a holder
under 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 PEG
channel capacity that is in addition to the channel capacity required
to be provided in the unit under the existing local franchise or under
an 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 under
section 25, 26, or 26.5 of this chapter is the responsibility of the unit
or unincorporated area that receives the benefit of the channel, and
the holder or other provider is responsible only for the transmission
of the channel.
(b) A unit or an unincorporated area that receives the benefit of a
PEG channel provided under section 25, 26, or 26.5 of this chapter
shall ensure that all transmissions, content, and programming that are
transmitted over a channel or other facility of the provider are
submitted to the provider in a manner or form that:
(1) is capable of being accepted and transmitted by the provider
over the provider's video service system;
(2) does not require additional alteration or change in the
content by the provider; and
(3) is compatible with the technology or protocol used by the
provider to deliver video service.
(c) If it is technically feasible to do so, the holder of a certificate
under this section and a provider described in section 21(a) of this
chapter may cooperate to interconnect their systems to provide PEG
channel capacity required under section 25, 26, or 26.5 of this
chapter. Interconnection under this section may be accomplished by
direct cable, microwave link, satellite, or other reasonable method of
connection. The parties shall negotiate the terms of the
interconnection in good faith, and a provider described in section
21(a) of this chapter may not withhold interconnection of PEG
channel capacity.
(d) A court with jurisdiction has exclusive authority to enforce
any 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 alternative
technology; 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 commission
under this chapter.
(2) A provider that provides video service under a local
franchise, as permitted under section 21(b)(1) of this chapter.
(b) Subject to section 17(b) of this chapter, a provider may not
deny access to video service to any group of potential residential
subscribers based on the income level of the residents in the local
area in which the group resides. However, a provider:
(1) shall have a reasonable time to become capable of providing
video service to all households within a service area included in
the provider's franchise; and
(2) may satisfy the requirements of this subsection through the
use of an alternative technology that:
(A) offers content, service, and functionality comparable to
that provided through the provider's video service system, as
determined by the commission; and
(B) may include a technology that does not require the use
of any public right-of-way.
(c) For purposes of this subsection, an "affected person" includes
the 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 similarly
situated persons.
An affected person that alleges a violation of subsection (b) by a
provider may petition the commission for equitable relief. Not later
than forty-five (45) days after receiving a petition under this
subsection, the commission shall, after notice and an opportunity for
hearing, make a determination as to whether a violation of subsection
(b) has occurred.
(d) If, after holding any hearing requested in the matter, the
commission determines that no violation of subsection (b) has
occurred, the commission's decision is final, subject to the
petitioner's right to appeal the decision in a court having jurisdiction.
If the commission determines that a violation of subsection (b) has
occurred, the commission may issue an order requiring the provider
to offer video service to those persons to whom access to the
provider's video service has been denied. An order of the commission
under this subsection must specify the following:
(1) A date by which the provider must offer video service to
those persons to whom access has been denied as a result of the
provider's violation. In specifying a date under this subdivision,
the commission shall allow the provider a reasonable time to
become capable of providing the required video service to the
affected households.
(2) Any alternative technology described in subsection (b)(2)
that the commission approves for use by the provider in making
video service available to the affected households.
Except as provided in subsection (e), an order of the commission
under this subsection is final.
(e) A provider may appeal:
(1) a determination by the commission under subsection (d) that
a violation of subsection (b) has occurred; or
(2) any findings or requirements of the order issued in
connection 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 services
after December 31, 2008, or expiration of franchise; apportionment
of costs
Sec. 29. (a) This section applies to a provider that holds a local
franchise 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 continue
providing video service under the local franchise; or
(B) under section 21(b)(2) of this chapter, to terminate the
local franchise and provide video service in the unit under a
certificate 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 a
certificate issued under this chapter, if the local franchise
expires 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 the
unit, if subsection (a)(2) applies.
(c) A holder to which this section applies shall continue to
provide the following services under the terms of the local franchise
until January 1, 2009, or until the local franchise will expire or
would have expired, whichever is later:
(1) Institutional network capacity, however defined or
referenced in the local franchise, but generally including private
line data network capacity for use by the unit for
noncommercial purposes. Institutional network capacity
provided under this subdivision shall continue to be provided at
the same capacity as required under the terms of the local
franchise.
(2) Video service to community public buildings, such as
municipal buildings and public schools, however defined or
referenced in the local franchise, but generally including cable
drop connections to the buildings and a particular tier of video
service provided to the buildings. Video service provided under
this subdivision shall continue to be provided to the same extent
as required under the terms of the local franchise.
Beginning January 1, 2009, or upon the date on which the local
franchise will expire or would have expired, whichever is later, a
provider that provides services under this subsection shall continue
to provide the services under this subsection if the unit requests that
the services continue after December 31, 2008, or after the date the
local 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 local
franchise will expire or would have expired, whichever is later. The
incremental costs of the services shall be apportioned among all
holders of a franchise to provide video service within the unit. The
amount of the incremental costs borne by a particular holder is equal
to the total cost of providing the services multiplied by a fraction
calculated as follows:
(1) The numerator of the fraction equals the number of
subscribers to whom the holder provides video service in the
unit.
(2) The denominator of the fraction equals the total number of
subscribers to whom all holders provide video service in the
unit.
As added by P.L.27-2006, SEC.58.