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<br />June 14, 1989 CONGRESSIONAL RECORD — SENATE
<br />are reasonably available alternatives, the
<br />State shall consider —
<br />"(A) the number and size of providers of
<br />services;
<br />"(B) the extent to which services are
<br />available from providers in the relevant geo-
<br />graphic area or market;
<br />"(C) the ability of such providers to make
<br />services readily- available at comparable
<br />rates, terms, and conditions; and
<br />"(D) other indicators of the extent of
<br />competition, including affiliation of provid-
<br />ers of services.
<br />"(5) Nothing in paragraphs (2). (3), and
<br />(4) of thig subsection shall be construed as
<br />being applicable to basic telephone service.
<br />"(h) Nothing in this Act shall be con-
<br />strued as prohibiting a franchising authori-
<br />ty and a cable operator from specifying, in a
<br />franchise agreement or renewal thereof,
<br />that certain cable services shall not be pro-
<br />vided or shall be provided subject to condi-
<br />tions, if such cable services are obscene or
<br />are otherwise unprotected by the United
<br />States Constitution.
<br />"(i) The provisions of subsections (b), (c),
<br />and (d) shall not apply to a franchise agree-
<br />ment in existence on the date of enactment
<br />of this Act for a period of 5 years following
<br />the date of enactment of this Act, or for the
<br />remaining term of such franchise agree-
<br />ment, whichever is greater. in any State
<br />which has in effect, and has had in effect
<br />since January 1, 1983, a statutory scheme
<br />deregulating rates which contains a require-
<br />ment regarding minimal channel capacity.
<br />FRANCHISE FEES
<br />"SEc. 608. (a) Cable operators -may be re-
<br />quired in a franchise to pay to a State or po-
<br />litical subdivision or agency thereof, or fran-
<br />chising authority, a franchise fee.
<br />"(bXl) No franchise fee paid by a cable
<br />system operator for the privilege of holding
<br />a franchise, shall exceed an annual aggre-
<br />gate of 5 percent of such cable operator'-
<br />gross revenues derived from the operation
<br />of the cable system which is the subject of
<br />the franchise.
<br />"(2) Nothing in this section shall be con-
<br />strued as limiting fees required by a fran-
<br />chise in effect on the date of enactment of
<br />the Cable Telecommunications Act of 1983
<br />to be paid directly or indirectly to entities
<br />established for the purpose of facilitating
<br />the use of channels set aside for public, edu-
<br />cational. or governmental use.
<br />"(c) Any cable system operator may pass
<br />the cost of any increase in a franchise fee
<br />through to subscribers, and may designate
<br />the total franchise fee as a separate item on
<br />the subscribers' bills.
<br />"(d) For the purpose of this section—
<br />"(1) 'franchise fee' shall include any tax.
<br />fee or assessment of any kind imposed by a
<br />franchising authority or governmental au-
<br />thority on a cable system operator or cable
<br />subscriber because of their status as such;
<br />and
<br />"(2) 'assessment' shall not include bonds,
<br />security funds, letters of credit, insurance.
<br />indemnification. penalties, liquidated dam-
<br />ages or similar requirements which are inci-
<br />dental to the enforcement of the franchis-
<br />ing agreement.
<br />"(e) Nothing in this section shall be
<br />deemed to require a cable operator to re-
<br />negotiate the provisions of an existing fran-
<br />chise.
<br />"RENEWALS AND EXTENSIONS
<br />"SEC. 609. (a) In any case in which a cable
<br />system operator submits an application to
<br />the franchising authority for the renewal or
<br />other extension of such operator's franchise
<br />authorization. the franchising authority
<br />shall grant such renewal or other extension
<br />unless it finds that—
<br />"(1) the cable system operator has not
<br />substantially complied with the material
<br />terms of such franchise and with applicable
<br />law. or has been convicted of a felony;
<br />"(2) there has been a material change in
<br />the legal, technical, or financial qualifica-
<br />tions of the cable system operator that
<br />would substantially impair the continued
<br />provision of service by such operator,
<br />"(3) the facilities to be provided by such
<br />operator, including facilities for governmen-
<br />tal access, are unreasonable in light of the
<br />community need for and cost of such facili-
<br />ties:
<br />"(4) the signal delivered by the cable
<br />system within the control of the cable
<br />system operator, has not generally met
<br />technical standards as established by the
<br />Commission: or
<br />"(5) the proposals contained in the renew-
<br />al application are otherwise unreasonable.
<br />"(b) A cable system operator must file for
<br />renewal at least 24 months, but not more
<br />than 36 months, before expiration of the
<br />franchise. The franchising authority must
<br />consider the renewal within 120 days of sub-
<br />mission of the application and conduct any
<br />proceedings necessary to adequately consid-
<br />er the application.
<br />(ca A cable system operator with a fran-
<br />chise which shall expire within 24 months
<br />after the date of enactment of the Cable
<br />Telecommunications Act of 1983, shall be in
<br />compliance with subsection (b) if he files an
<br />application for renewal within 60 days after
<br />such date of enactment.
<br />"(d) The franchising authority shall—
<br />"(1) negotiate in good faith with any cable
<br />system operator regarding franchise renew-
<br />al within 30 days after the completion of
<br />proceedings pursuant to subsection (b); and
<br />"(2) make a final decision on granting or
<br />denying renewal within 12 months after re-
<br />ceipt of an application;
<br />"(3) in the case of denial of an applica-
<br />tion—
<br />"(A) not make the final decision for at
<br />least 7 months from the date of receipt of
<br />the application; and
<br />"(B) notify the applicant by written state-
<br />ment, within 7 days after the final decision,
<br />of the reasons for the denial.
<br />"(e) Any renewal applicant adversely af-
<br />fected or aggrieved by a final decision of a
<br />franchising authority made pursuant to sub-
<br />section (d), or by a failure of the franchising
<br />authority .to act in accordance with subsec-
<br />tion (d), may obtain judicial review of such
<br />final decision in any court of competent ju-
<br />risdiction. The existing franchise shall
<br />remain in effect pending the completion of
<br />such judicial review. Such judicial review
<br />shall be de novo, unless the renewal appli-
<br />cant has been afforded a hearing on record
<br />before an independent hearing examiner or
<br />administrative law judge consistent with
<br />State law that requires—
<br />"(1) adequate notice;
<br />"(2) fair opportunity for participation by
<br />the renewal applicant, which includes —
<br />"(A) discovery;
<br />"(B) the filing of pleadings, motions, or
<br />objections;
<br />"(C) the introduction of written or oral
<br />testimony; and
<br />"(D) cross-examination of opposing par-
<br />ties: and
<br />"(3) a written decision by the examiner or
<br />judge based exclusively on the full record of
<br />the hearings and stating the specific find-
<br />ings of fact and conclusions of law on which
<br />the decision is based.
<br />"UNAUTHORIZED INTERCEPTION OR RECEPTION
<br />"SEC. 610. (a) No person or government
<br />authority shall intercept or receive broad-
<br />band telecommunications unless specifically
<br />authorized to do so by a cable system opera-
<br />tor, channel programer, or originator of
<br />broadband telecommunications or as may
<br />S 8327
<br />otherwise be specifically authorized by Fed-
<br />eral law.
<br />"(b) In order to safeguard the right to pri-
<br />vacy and security of broadband telecommu-
<br />nications, such broadband telecommunica-
<br />tions shall be deemed to be a 'wire commu-
<br />nication' within the meaning of section
<br />2510(1) of title 18 of the United States Code.
<br />"(c) In the event that there may be any
<br />difference between the provisions of this
<br />section and chapter 119 of title 18 of the
<br />United States Code, or any regulations pro-
<br />mulated thereunder, it is the intent of the
<br />Congress that such chapter 119 shall be
<br />controlling.
<br />PROTECTION of SUBSCRIBER PRIVACY
<br />"SEC. 611. (aXD Except as provided in
<br />paragraph (2) of this subsection, no cable
<br />operator, channel programer, or originator
<br />of broadband telecommunications may use
<br />the cable system to collect personally identi-
<br />fiable information with respect to a cable
<br />subscriber, except upon the prior written or
<br />electronic consent of that subscriber.
<br />"(2) The provisions of paragraph (1) of
<br />this subsection shall not apply to the collec-
<br />tion of information solely for billing pur-
<br />poses or to monitor whether there is unau-
<br />thorized reception of cable telecommunica-
<br />tions.
<br />"(3) A cable operator, channel programer.
<br />or originator of broadband telecommunica-
<br />tions shall ensure that any such informa-
<br />tion is destroyed when the information is no
<br />longer used or to be used for the purposes
<br />for which it was collected.
<br />"(b) No cable- operator, channel pro-
<br />gramer, or originator of broadband telecom-
<br />munications shall disclose personally identi-
<br />fiable information obtained pursuant to
<br />subsection (a) of this section with respect to
<br />a cable subscriber, or personally identifiable
<br />information with respect to the services pro-
<br />vided to or received by a particular cable
<br />subscriber by way of a cable system, except
<br />upon the prior written or electronic consent
<br />of the subscriber, or pursuant to a lawful
<br />court order authorizing such disclosure.
<br />"(c) If a court shall authorize or order dis-
<br />closure, the cable subscriber shall be noti-
<br />fied of such order by the person to whom
<br />such order may be directed, within a reason-
<br />able period of time before the disclosure is
<br />made, but in no event less than 14 calendar
<br />days.
<br />"(d) Each cable operator shall, at the time
<br />of entering into an agreement to provide
<br />cable telecommunications, and regularly
<br />thereafter, inform every subscriber of the
<br />rights of the subscriber under this section.
<br />Such information shall include a description
<br />of the nature of the information to be main-
<br />tained by the cable operator, channel pro-
<br />gramer, or originator of broadband telecom-
<br />munications, and the location and availabil-
<br />ity of such information.
<br />"(e) A cable subscriber shall have access to
<br />all personally identifiable information re-
<br />garding that subscriber which is collected
<br />and maintained by a cable operator, channel
<br />programer, or originator of broadband tele-
<br />communications. Such information shall be
<br />available to the subscriber at reasonable
<br />times and at a place designated by the cable
<br />operator, channel programer, or originator
<br />of broadband telecommunications.
<br />"(f) Any cable subscriber whose privacy is
<br />violated in contravention of this section,
<br />shall be entitled to recover civil damages as
<br />authorized and in the manner set forth in
<br />section 2520 of title 18 of the United States
<br />Code. This remedy shall be in addition to
<br />any other remedy available to such sub-
<br />scriber.
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