TITLE 26

Public Utilities

CHAPTER 1. PUBLIC SERVICE COMMISSION

Subchapter VI. Regulation of Cable Television Systems


(a) No person or entity shall hereafter commence the construction of, or operate a cable television system, in whole or in part within this State outside the boundaries of incorporated municipalities which on June 28, 1974, have the power either express or implied under their charters to grant franchises for a system, without first obtaining a franchise under this subchapter for such construction and operation.

(b) The Commission is hereby authorized to grant franchises for cable television systems to be constructed or operated in whole or in part within the State outside the boundaries of incorporated municipalities which on June 28, 1974, have the power either express or implied under their charters to grant franchises for a system. The procedure prescribed by this subchapter for granting franchises shall be followed by the Commission and all franchises shall comply with the requirements hereof.

(c) The Commission may not grant a franchise to a system without first giving at least 90 days' public notice of its intention to receive and consider applications for a franchise, and written notice to any person constructing or operating a system in any county in which the franchise is to be granted. The public and written notice shall specify the date and procedures for filing applications, and in general terms the geographic area and conditions of the proposed franchise.

(d) The Commission may not grant a franchise except upon written application therefor filed on or before the date specified in the public notice. All applications shall be accompanied by a certified check in the amount of the filing fee, if any, specified in the public notice. All applications shall be made available by the Commission for public inspection promptly following the filing thereof and no application once filed may be amended to make substantive changes in the proposals or qualifications of the applicant if more than 1 application has been filed for the same franchise territory.

59 Del. Laws, c. 397, § 1.;

All franchise applications shall consist only of the following:

(1) A description of the territory proposed to be served by the applicant;

(2) A description of station signals as required to be carried by the Federal Communications Commission;

(3) A description of locally originated program service required by the Federal Communications Commission and of the applicant's plans, time schedules and facilities for providing such service;

(4) A schedule of presently proposed maximum rates and charges for each subscriber classification, and each classification of service;

(5) A description of facilities and service not described in paragraphs (2) and (3) of this section which at the time of the application the applicant desires to offer to the community, its governmental, educational or service agencies, including complete information concerning any applicable charges for such facilities and services;

(6) A copy of the proposed standard subscriber contract, if any;

(7) A statement demonstrating the applicant's financial qualifications including:

a. Balance sheet and profit and loss statements of the applicant current within 90 days of the filing of the application;

b. Estimated total cost of construction of the proposed cable system when completed to serve the entire proposed franchised area;

c. A complete financial plan for construction and operation of the proposed cable system demonstrating the applicant's financial ability to construct the system within the time specified by the applicant and in accordance with any Federal Communications Commission schedule of construction and to operate at the rates and charges proposed in the application during the first 5 franchise years commencing on the date service is first furnished to any subscriber.

If the applicant relies on others for loans, credit, advances or other means of financial assistance, the applicant must demonstrate the actual availability of such sources of financial assistance;

(8) A plat or plats showing proposed location or existing location of the receiving antennas, head-end equipment, studio, office, maintenance and construction facilities and proposed trunk routes for cable;

(9) A statement by the applicant that the cable system described in its application is and will be in full compliance with all technical rules, regulations, standards and operating policies for facilities and service of the Federal Communications Commission for community antenna television systems or cable television systems in effect at the time the proposed system is placed in operation;

(10) Full ownership identification of the applicant including:

a. Name and business address and, if other than a natural person, a description of the legal nature of the applicant stating the jurisdiction and laws under which it was formed;

b. The name, address and position held in the applicant of all officers, directors, trustees, general or limited partners, or persons having an ownership or beneficial interest of 5% or more in the applicant or in the application;

c. Identification of all other cable television interests including franchises, and the extent thereof, held by the applicant or any officer, director, trustee, or general partner of the applicant, and by any person having a 5% or greater ownership or beneficial interest in the applicant or in the application; and

d. Copies of the most recent Report of Cable Television Systems and Cable Television Annual Financial Statement filed with the Federal Communications Commission by the applicant and/or any parent, subsidiary, officer, director, trustee or other person having an ownership or beneficial interest of 5% or greater in the applicant.

(11) If the system is not fully constructed, a schedule, in phases, for construction of the system in the franchise area and for extending service throughout the franchise area.

(12) A statement by the applicant that he has read and is familiar with this chapter.

(13) At the option of the applicant, a precise statement of each term of the franchise as specified in § 604 of this title as proposed by the applicant.

59 Del. Laws, c. 397, § 1.;

(a) Upon the filing of an application or applications as provided in this subchapter, the Commission shall fix the time and place for a public hearing thereon, and give at least 14 days' public notice of such hearing and written notice thereof to each applicant and to any person constructing or operating a system in any county in which a franchise is to be granted. At such hearing, any applicant or any member of the public desiring to be heard shall be heard.

(b) After such hearing the Commission may grant a franchise which shall state in writing its terms as specified in § 604 of this title; provided that, if such terms differ from those set forth in the successful applicant's application for a franchise, then that applicant must consent in writing to such terms before the franchise is effective. In determining whether and to whom to issue a franchise, the Commission may base its decision only on the application filed; the presentations made at public hearings by the applicant, by members of the public or by the staff of the Commission; the public need for the proposed franchise; and the likelihood that the applicant will fulfill the terms of the franchise giving consideration to the financial qualifications of the applicant, and the character of the applicant.

(c) The Commission simultaneously with the grant or denial of a franchise pursuant to this subchapter shall issue a written report setting forth the criteria upon which it based its selection or denial of the applicants for a franchise. The votes on the grant or denial of a franchise of each member of the Commission shall be recorded and made public.

59 Del. Laws, c. 397, § 1.;

The terms of any franchise issued under this subchapter shall be only the following:

(1) A requirement that station signals carried, local origination, services and facilities will comply with all lawful rules, regulations and laws of the federal government then applicable to the franchisee's construction and operation of a system;

(2) Designation of the area franchised;

(3) Except where construction has commenced, dates for the commencement of initial construction, and initial service to subscribers, and, except where construction is complete, fixing the dates for the several reasonable phases whereby construction and service will be extended when and to the extent required by the Federal Communications Commission to the entire franchised area;

(4) The duration of the franchise which shall be 15 years or such other maximum term as the Federal Communications Commission will allow with rights of renewal in the franchisee for the maximum term allowed by the Federal Communications Commission upon application to the Commission not later than 6 months prior to the expiration of the current term of the franchise and upon a public hearing for the sole purpose of reviewing the franchisee's performance and current qualifications;

(5) A requirement for the maintenance by the franchisee of adequate liability insurance in such amount as the Commission deems adequate, insuring the franchisee with regard to all liability for bodily injury, death and property damage. Copies of such insurance policies shall be filed and maintained with the Commission during the term of the franchise, together with written evidence of payment of required premiums;

(6) A requirement that the franchisee interrupt service only for a good cause and make repairs promptly;

(7) A requirement that the franchisee shall maintain an office open during all regular business hours, and which shall have a listed telephone toll free in the franchised area, and operated so that complaints and requests for repairs may be received at any time that television or other communications services are being furnished;

(8) A requirement that the franchisee promptly attempt to resolve service complaints and to maintain records with respect thereto for a period of 1 year. Such records should include the original complaint if in writing or a brief description if made orally, the date filed, the corrective action taken and the date thereof;

(9) A requirement that the franchisee furnish 1 standard cable television reception service outlet to each public school within reasonable proximity of existing cable lines for educational purposes upon request by but without cost to the public school system, to designated public buildings such as police and fire stations, and to a reasonable number of designated locations for the monitoring of performance of the system; provided, however, that nothing in this chapter shall prevent the franchisee from voluntarily providing service without cost to other educational, public or charitable institutions, and for reasonable promotional undertakings;

(10) A requirement that, in the case of any emergency or disaster, the franchisee shall, upon request of the Commission, make available its facilities to the federal, state, county or local governmental units for emergency use;

(11) A requirement that the franchisee install and maintain all cables, wires, fixtures and other equipment or facilities in accordance with the National Electrical Safety Code promulgated by the National Bureau of Standards and the National Electrical Code of the National Board of Fire Underwriters, and that all structures, lines, equipment and connections in, on, under or over the highways, roads, streets, alleys or other public or private rights-of-way at all times be kept and maintained in a safe condition and in good order and repair;

(12) Designation of the site or sites for head-end, studio, office, maintenance, and construction facilities which designation shall supersede any requirements of laws or ordinances pertaining to land use;

(13) A schedule of present maximum rates and charges for all services and facilities provided by the franchisee and a requirement that the franchisee shall not discriminate or give any undue preferences or advantage to similarly situated persons in respect to such rates and charges;

(14) A requirement that the franchisee obtain approval from the Commission, after a public hearing of which public notice shall be given at least 14 days in advance, for any increase, other than one resulting from an increase in taxes or license charges imposed on cable television facilities, operations or income, in the maximum rates and charges in excess of 5% in any one 12-month period;

(15) A requirement that the franchisee file with the Commission maps or plats showing all existing streets or subdivisions served by the system within a reasonable time after construction, and that such be kept current;

(16) At the option of the Commission, any additional terms expressly proposed by the franchisee in its application;

(17) A provision that each term of the franchise is separate and severable and in the event that any term of the franchise is held to be unconstitutional or invalid, the franchise and its remaining terms shall remain in full force and effect.

59 Del. Laws, c. 397, § 1.;

In addition to its powers to issue franchises, the Commission shall have the power and jurisdiction to:

(1) Conduct such investigations as may be necessary to determine compliance by a franchisee with this subchapter and the terms of any franchise granted;

(2) Prescribe a nonrefundable application fee in sufficient amount, but no more, to meet the costs necessary for processing the franchise applications;

(3) Examine, upon reasonable written notice and during regular business hours, subscriber lists, repair records, service complaints, rates charged, and facilities and interview management personnel of all franchisees or applicants for franchises for the purpose of verifying applications or compliance with the terms of a franchise and of this subchapter;

(4) Intervene as a party in any action, in any court of competent jurisdiction, relating to the grant or performance of any franchise;

(5) Modify the terms of any franchise upon good cause shown by the franchisee;

(6) Adopt such regulations as the Commission may find are necessary or appropriate to implement any federal regulations or legislation governing the provision of cable television service. Regulations adopted pursuant to this authority shall supersede any inconsistent:

a. Franchise provisions, or

b. Sections of this subchapter.

59 Del. Laws, c. 397, § 1; 69 Del. Laws, c. 141, § 1.;

A franchise granted pursuant to the terms of this subchapter may be revoked or terminated in whole or in part but only for failure of the franchisee to comply with the terms of the franchise, and only if the following procedure is observed:

(1) The Commission shall hold a public hearing upon 15 days' public notice and written notice to the franchisee, which notice shall specify precisely the manner or way in which the franchisee is failing to comply with the terms of the franchise.

(2) Following the public hearing, the Commission by a majority vote of its members, by order, a copy of which shall be mailed by certified mail to the franchisee, may direct the franchisee to perform specific acts to bring itself into compliance with the terms of its franchise and may fix a reasonable time in which the franchisee may perform such acts. The franchisee either may comply with the foregoing compliance order or, within 30 days from the date of mailing of the order to it, may institute proceedings to review the compliance order by the filing of a complaint in the Court of Chancery for any county in which the franchise is located. Such proceedings shall be in accordance with the rules of procedure of the Court of Chancery. The Commission shall be the defendant in such proceedings. The filing of the complaint shall not act as a stay of the compliance order, but the Court of Chancery may, on application with notice to the Commission, and on due cause shown, grant such a stay. If, upon a hearing, it shall appear to the Court of Chancery that testimony is necessary for the proper disposition of the proceedings, it may take evidence or appoint a master to take such evidence as it may direct and report the same to the Court of Chancery, together with findings of fact and conclusions of law which shall constitute a part of the proceedings upon which the determination of the Court of Chancery shall be made. The Court of Chancery may reverse or affirm, wholly or in part, or may modify the order brought up for review.

(3) If the franchisee fails to comply with the compliance order as entered by the Commission, or in the event of review proceedings, as affirmed or modified by the Court of Chancery, then the Commission by a majority vote of its members, by order, a copy of which shall be mailed by certified mail to the franchisee, may direct that the franchise is terminated in whole or in part and shall specify a reasonable time by which the franchisee shall remove its facilities from any public property. There shall be no review by any court in any proceedings of such a termination order, except that by the filing of a complaint, within 30 days of the date of the mailing of the termination order, in the Court of Chancery for any county in which the franchise is located, the franchisee may obtain a review of such order limited to the issue of whether or not the franchisee, at the date of the resolution terminating the franchise, had complied with the terms of the compliance order.

59 Del. Laws, c. 397, § 1.;

(a) Notwithstanding any other provisions of this chapter, the Commission shall issue a franchise to any person or entity operating or constructing prior to June 28, 1974, a system within this State outside of the boundaries of incorporated municipalities which on June 28, 1974, have the power either express or implied under their charters to grant franchises for a system. An application for such a franchise shall be filed within 90 days of June 28, 1974. The application shall be in the form prescribed in § 602 of this title.

(b) A franchise granted hereunder may be conditioned upon compliance by the franchisee with such requirements of the Federal Communications Commission as may be applicable to such an existing cable system within the time specified by the Federal Communications Commission for compliance by such an existing system.

(c) The terms of a franchise under this section shall be only the designation of the area franchised which shall be at least coextensive with any portion of the State in which the system is operating or under construction and the terms specified in paragraphs (3)-(17) of § 604 of this title provided that such terms do not require the franchisee to perform any act which would conflict in any way with any contract it may have on June 28, 1974, or to charge rates for services different than any rates now being charged for services or to diminish or increase any services provided or any areas served on the effective date hereof.

(d) Construction and operation of such systems may lawfully be continued pending the filing of such application, the issuance of a franchise, and the acceptance thereof by the applicant.

(e) If the franchise issued under this section is not accepted by the applicant within 60 days from the date of issuance, all construction and operating authority shall terminate, unless the Commission shall otherwise order.

59 Del. Laws, c. 397, § 1.;

The Commission may review any franchise now or hereafter granted by incorporated municipalities of this State which, on June 28, 1974, have the power either express or implied under their charters to grant franchises for a system for the construction or operation of cable television systems within their boundaries, and whenever the public interest requires, change or modify such franchise or the conduct of the franchisee thereunder so that such franchise or such conduct complies with the provisions of this subchapter governing franchises granted by the Commission. If such a municipality refuses to grant a franchise and the Commission finds that such refusal is not in the public interest, the Commission may award a franchise under this subchapter.

59 Del. Laws, c. 397, § 1.;

(a) No franchise shall be transferred, otherwise than by operation of law, or assigned to a person or entity without prior approval of the Commission.

(b) No transfer of legal control of a franchise to a person or entity not a party to the original franchise application shall be made without prior approval of the Commission.

(c) Applications for approval of transfer or assignments must be made in writing and shall contain such information about the transferee or assignee as would be required about an applicant in an application for a franchise under § 602 of this title.

(d) Approval of applications for transfers and assignments shall be granted, unless after hearing, which shall not otherwise be required, the Commission shall find that service to subscribers of the franchise would be affected adversely. Any denials under this section shall be accompanied by a report of the Commission in writing setting forth in detail the facts upon which the denial is based.

(e) This section shall not apply to or restrict transfers or assignments between parent and subsidiary corporations or between entities of which at least 50% of the beneficial ownership is held by the same persons or entities.

59 Del. Laws, c. 397, § 1.;

(a) The Commission is authorized to bill to and collect the cost of regulation of Cable Television Systems, as a franchise fee from every Commission regulated franchisee. Such billing and collection shall be accomplished in the following manner:

(1) On or before March 31 of each year, each franchisee subject to the provisions of this subchapter shall file with the Commission a report of Total Annual Basic Service Regulated Revenue containing a statement of its total annual basic service regulated revenues for the immediately preceding calendar year, and a check in payment of the annual assessment which shall be an amount equal to the product of 3 mills multiplied by the total annual basic service regulated revenue of such franchisee. A cable television system subject to this section which paid an annual assessment greater than $10,000 in the preceding year shall make an estimated payment of at least 40% of the expected assessment no later than 6 months prior to the March 31 due date for the return and final payment.

(2) Whenever the Commission, in a proceeding upon its own initiative or upon complaint or upon written application to it, shall deem it necessary in order to carry out its statutory duties, to investigate the operations, services, practices, accounting records and/or procedures, rates, charges, rules and regulations of any franchisee and/or to enter into and hold a hearing or hearings in connection therewith, such franchisee shall be charged with and pay such portions of the expenses of the Commission, and the compensation and expenses of its agents, representatives, consultants, and employees, including but not limited to those temporarily employed or retained, as is reasonably attributable to such investigation, hearing or hearings or any appeal from a Commission order. No charge shall be made for the compensation of Commissioners and all such bills shall be due and payable within 30 days of rendition by the Commission. If more than 1 franchisee is involved in such proceedings, each shall pay its pro rata share of such expenses as determined by the Commission.

(3) If the annual assessment or any amount billed by the Commission is not paid within 30 days from the due date the franchisee shall pay in addition a penalty to the Commission of 1% of the amount due for each month or fraction thereof that such amount is unpaid.

(4) The total aggregate amount to be charged by the Commission to any franchisee under authority of this section in any calendar year shall not exceed 2% of such franchisee's total annual basic service regulated revenue in the last preceding calendar year. This limitation shall not include amounts payable as a penalty. For purposes of this section, the term "Total Annual Basic Service Regulated Revenue" shall only include the revenue received by the franchisee from equipment and services which would be subject to Basic Service Rate Regulation by the Commission in the absence of effective competition including the basic monthly service charges for cable television reception service outside the boundaries of incorporated municipalities which on June 28, 1974, have the power either express or implied to grant franchises for a system and shall include moneys received as installation charges, charges for reconnection, inspection, repairs or modifications of any installation. It shall not include local, state or federal taxes or money received from:

a. Sale of advertising time on cable channels;

b. The furnishing of special programming not covered by the basic monthly service charge;

c. The furnishing of other communications services either by private contract or as a carrier, including by way of example but not limited to leasing of channels, burglar alarm, AM or FM radio broadcast, data transmission information storage and retrieval, the facsimile reproduction services; and

d. Any source other than directly from the installation and carriage of television signals and such other basic cable television services as are subject to regulation by the Commission.

(b) No fees or payments other than those specifically provided in this subchapter may be levied by or collected on behalf of the Commission.

59 Del. Laws, c. 397, § 1; 70 Del. Laws, c. 47, § 1; 75 Del. Laws, c. 142, §§ 3, 4.;

(a) Upon substantial completion of construction and when service is available in a substantial portion of the franchised territory, the franchisee shall certify to the Commission that:

(1) The cable television system has been constructed and is operating in full compliance with technical performance standards as prescribed by the Federal Communications Commission;

(2) That all services required to be furnished under the rules and regulations of that Commission are being furnished, or, if not, the date upon which such services will be available, and that all services comply with all applicable rules and regulations of the Commission; and

(3) That the system and services comply in all respects with the provisions of the franchise and this subchapter.

(b) In the event such certification cannot be made, temporary waiver of the requirements of any provision of the franchise or of this subchapter shall be granted by the Commission to a date specified on a showing of good cause.

59 Del. Laws, c. 397, § 1.;

All cable systems holding a franchise granted under this chapter or by a municipality having the power either express or implied under its charter to grant a franchise to a system shall have the right to occupy the public highways, streets, roads, alleys, turnpikes and waterways within this State, provided that within incorporated municipalities, they shall have received permission to do so from the municipality, and without incorporated municipalities, they shall have complied with such written regulations established by the Department of Transportation for the occupancy and use of such public ways by telephone corporations and such occupancy and use will not unduly interfere with preexisting use of such public ways by any public utility.

59 Del. Laws, c. 397, § 1.;

Any franchisee may acquire an easement across, in or on public or private lands or waterways in this State which already have thereon or therein poles, wires, conduits, pipes, cables or other such facilities owned or maintained by a public utility, for the purpose of erecting, constructing, maintaining or operating any facilities to provide cable television or communications service to the public, including poles, wires, cables, guides, conduits and apparatus, which can be installed in the same manner, above or below ground, as the public utility facilities already on or in the property, by a taking in accordance with Chapter 61 of Title 10 which provides a method of fixing fair compensation if the easement should impose any additional burden on the property interest of the utilities or any other concern or person.

59 Del. Laws, c. 397, § 1.;

(a) Any applicant for a cable television franchise, or any franchisee who knowingly makes any false statement in any application, or in support thereof, or who knowingly falsifies any records required by this subchapter to be kept, shall be deemed to have committed a misdemeanor.

(b) Any person who knowingly attaches or causes to be attached to any cable system television receiving devices without the consent in writing of the cable system shall be deemed to have committed a misdemeanor.

(c) The Superior Court may impose a fine not to exceed $2,000 for each act which constitutes a misdemeanor under this section.

59 Del. Laws, c. 397, § 1.;

(a) Except where judicial review is otherwise expressly provided for herein, in the event that the Commission, by action or inaction, shall fail to comply with this subchapter, the exclusive remedy for any aggrieved person shall be to file, within 30 days of the act or failure to act complained of, a complaint in the Court of Chancery. In such proceedings, the jurisdiction of the Court of Chancery shall be limited to determining whether or not the Commission has complied with this subchapter, and, upon a finding that the Commission has not complied with the subchapter, to entering such order, including one for the payment of damages, as it deems appropriate.

(b) Except where a franchise is to be terminated, where the procedures of § 606 of this title apply, whenever any person shall fail to comply with this subchapter, or with any order or directive of the Commission made in compliance with this subchapter, the Commission may file a complaint in the Court of Chancery seeking such relief as is appropriate to compel compliance.

59 Del. Laws, c. 397, § 1.;

Any provision of this chapter, or of any franchise issued pursuant thereto, or any rule, regulation or practice, adopted or imposed by the Commission, which is inconsistent with the Communications Act of 1934 [P.L. 73-416], as amended, or any final rule or regulation now or hereafter adopted by the Federal Communications Commission shall be null and void. This chapter is intended to preempt any county franchising or regulation of cable television or communication systems.

59 Del. Laws, c. 397, § 1.;