§ 138-54. Alternative user charge.

A. 

This section is applicable to any lawfully operating, but unfranchised, MCS provider that does not remit a franchise fee payment to the Town. It is also applicable to any MCS provider whose franchise has been ruled unconstitutional, unenforceable, or otherwise invalid by a court of competent jurisdiction. Further, this section also is applicable to a franchised MCS provider who has had its franchise fees ruled unconstitutional, unenforceable, or invalid by a court of competent jurisdiction.

B. 

Where not specifically prohibited by federal or state law, and as an alternative to and in lieu of the imposition of a franchise fee as set forth in this chapter, the Town may impose an alternative user charge and require remittance of such by an affected MCS provider to help in recouping the cost of administering, monitoring and enforcing compliance with a franchise agreement, other agreement, license or permit, and applicable law and regulation, and for the cost of the maintenance of the public property and rights-of-way occupied by the multichannel system.

C. 

The alternative user charge shall be based on the estimated cost of the time of Town staff required to administer, monitor and enforce compliance by the MCS provider, and the cost of maintaining the public property and rights-of-way occupied by the multichannel system. However, in no event shall the alternative user charge exceed the maximum amount that would have been permitted to be imposed as a franchise fee for the payment and reporting period.

D. 

An alternative user charge is adopted in order to recover the cost incurred by the Town in administering, monitoring and enforcing the MCS provider's compliance with the franchise or other agreement or permit, and applicable law, rule, regulation and code, and the cost of maintaining the public property and rights-of-way occupied by the multichannel system. However, an affected MCS provider and the Town may agree to an alternative charge that is based on either a flat percentage of gross revenue, or a given dollar amount, so long as that charge does not exceed the maximum amount that would have been permitted to be imposed as a franchise fee for the payment and reporting period at the time of the exercise of this option.

E. 

It is expressly understood that a franchise fee and an alternative user charge will not be imposed on the same MCS provider at the same time, for the same period, unless otherwise mutually agreed to.

F. 

Should the alternative user charge ever exceed the maximum amount that would have been permitted to be imposed as a franchise fee, then the alternative user charge shall be reduced to an amount not greater than the maximum amount that would have been permitted to be imposed as a franchise fee and any overpayment shall promptly be returned to the MCS provider upon request.

G. 

The alternative user charge assessed shall be payable to the Town quarterly on a calendar-year basis.

H. 

In the event that the alternative user charge is based on a percentage of revenue, to assist the Town in determining the accuracy and completeness of the alternative user charge payments, the MCS provider shall file with the Town a complete, detailed, accurate statement, of all realized revenues attributable to and occasioned by the operation of the system and the grant of the franchise, or other agreement, license or permit within the Town, for the period for which the payment is required, whether received by the franchisee or other MCS provider directly, or any parent, affiliate or subsidiary. The statement shall be certified by a certified public accountant or a qualified officer of the MCS provider or its parent with respect to the statement's accuracy and completeness.

I. 

The alternative user charge payment shall be made to the Town not later than 60 days after the end of each calendar year quarter.

J. 

The MCS provider shall also provide annually, within 90 days after the end of the MCS provider's fiscal year, a report certified by a certified public accountant or an officer of the MCS provider or its parent, verifying all earned gross revenues.