City of Saratoga Springs, NY Special Rules Applicable to Cable Systems

An application must be filed for an initial and renewal cable system franchise or for approval of a transfer. A request for renewal filed under 47 U.S.C. § 546(h) need not contain the information required by § 94-19B(2).

To be accepted for filing, an original and six copies of a complete application must be submitted. All applications shall include the names and addresses of persons authorized to act on behalf of the applicant with respect to the application.

Application contents.

The City may specify the information that must be provided in connection with an application and the form in which the information is to be provided.

At a minimum, each application must identify the applicant; show that the applicant is financially, technically and legally qualified to construct, maintain and operate the cable system; contain a pro forma showing of capital expenditures and expected income and expenses for the first five years the applicant is to hold the franchise; and show that the applicant is willing to comply unconditionally with its franchise obligations and such other information required by 16 NYCRR 894.5. Any application for an initial or renewal franchise must describe in detail the cable system that the applicant proposes to build, show where it will be located, set out the system construction schedule, and show that the applicant will provide adequate channels, facilities and other support for PEG use (including institutional network use) of the cable system.

An applicant (and the transferor and transferee, in the case of a transfer) shall respond to any request for information from the City, by the time specified by the City.

Incomplete applications. An application may be rejected if it is incomplete or if the response to requests for information is not timely and complete.

The application will be referred to a Cable Television Advisory Committee designated by the City pursuant to 16 NYCRR 894.1.

§ 94-20 Application for initial franchise or renewal franchise.

Scope. This section establishes additional provisions that apply to an application for an initial franchise or a renewal franchise application that is not governed by 47 U.S.C. § 546(a) through (g).

Process. Any person may apply for an initial or renewal franchise by submitting an application therefor on that person's own initiative or in response to a request for proposals issued by the City. If the City receives an unsolicited application, it may choose to issue a request for additional proposals and require the applicant to amend its proposal to respond thereto. The City shall promptly conduct such investigations as are necessary to act on an application.

Consideration of application. In determining whether to grant a franchise, the City will consider the final report submitted of the Cable Television Advisory Committee pursuant to 16 NYCRR 894.2 and may consider:

The extent to which an applicant for renewal has substantially complied with the applicable law and the material terms of any existing cable franchise;

Whether an applicant for renewal's quality of service under its existing franchise, including signal quality, response to customer complaints, billing practices, and the like, has been reasonable in light of the needs of the community;

Where the applicant has not previously held a cable system franchise in the City, whether the applicant's record in other communities indicates that it can be relied upon to provide high-quality service throughout any franchise term;

(4)

Whether the applicant has the financial, legal, and technical ability to provide the services, facilities, and equipment set forth in an application and to satisfy any minimum requirements established by the City;

(5)

Whether the applicant's application is reasonable to meet the future cable-related needs and interests of the City, taking into account the cost of meeting such needs and interests;

(6)

Whether issuance of a franchise is warranted in the public interest considering the immediate and future effect on streets, public property, and private property that will be used by the applicant's cable system;

(7)

Whether issuance of the franchise would reduce competition in the provision of cable service in the City; and

(8)

Such other matters as the City is authorized or required to consider.

Issuance of franchise. If the City determines that issuance of a franchise would be in the public interest considering the factors above, it may proffer a franchise agreement to the applicant. No franchise shall become effective until the franchise is unconditionally accepted by the applicant and the franchise agreement is signed.

§ 94-21 Application for renewal franchise filed pursuant to 47 U.S.C. § 546.

Scope. This section establishes additional provisions that apply to applications for renewal governed by 47 U.S.C. § 546(a) through (g).

Process. A franchisee which intends to exercise rights under 47 U.S.C. § 546(a) through (g) shall submit a notice in writing to the City in a timely manner clearly stating that it is activating the procedures set forth in those sections. The City shall thereafter commence any proceedings that may be required under federal law, and upon completion of those proceedings, the City may issue a request for proposals and an application may be submitted for renewal. The City may preliminarily deny the application by resolution, and if the application is preliminarily denied, the City may conduct such proceedings and by resolution establish such procedures and appoint such individuals as may be necessary to conduct any proceedings to review the application.

§ 94-22 Application for transfer.

Scope. This section establishes additional provisions that apply to applications for transfer approval.

Information. An application for transfer must contain all the information required by the City by § 94-19 and all information required by any FCC transfer form.

Consideration of application. In determining whether a transfer application should be granted, denied, or granted subject to conditions, the City may consider the legal, financial, and technical qualifications of the transferee to operate the cable system; any potential impact of the transfer on subscriber rates or services; whether the incumbent cable operator is in compliance with its franchise; whether the transferee owns or controls any other cable system in the City, whether operation by the transferee may eliminate or reduce competition in the delivery of cable service in the City; and whether operation by the transferee or approval of the transfer would otherwise adversely affect subscribers, the public, or the City's interest under this chapter, the franchise, or other applicable law. The proposed transferee shall pay all reasonable costs incurred by the City in reviewing and evaluating the applications.

Minimum conditions. In order to obtain approval of a transfer, an applicant must show, at a minimum, that the transferee is qualified; the transfer will not adversely affect the interests of subscribers, the public, or the City; and that noncompliance issues have been resolved. No application shall be granted unless the transferee agrees in writing that it will abide by and accept all terms of this chapter and the franchise and that it will assume the obligations, liabilities, and responsibility for all acts and omissions, known and unknown, of the previous franchisee for all purposes.

§ 94-23 Legal qualifications.

Standards.

The applicant must be willing to comply with the provisions of this chapter and applicable laws; and to comply with such requirements of a franchise as the City may lawfully require.

The applicant must not have had any cable system or OVS franchise validly revoked (including any appeals) by the City within the three years preceding the submission of the application.

The applicant may not have had an application to the City for an initial or renewal cable system franchise denied on the ground that the applicant failed to propose a cable system meeting the cable-related needs and interests of the community, or as to which any challenges to such franchising decision were finally resolved (including any appeals) adversely to the applicant, within three years preceding the submission of the application, and may not have had an application for an initial or renewal OVS franchise denied on any ground within three years of the application.

(4)

The applicant shall not be issued a franchise if, at any time during the 10 years preceding the submission of the application, the applicant was convicted of fraud, racketeering, anticompetitive actions, unfair trade practices or other conduct of such character that the applicant cannot be relied upon to deal truthfully with the City and the subscribers or to substantially comply with its obligations.

(5)

The applicant must have the necessary authority under New York State and federal law to operate a cable system or show that it is in a position to obtain that authority.

(6)

The applicant shall not be issued a franchise if it files materially misleading information in its application or intentionally withholds information that the applicant lawfully is required to provide.

(7)

For purposes of § 94-23A(2) through A(4), the term "applicant" includes any affiliate of the applicant.

Exception. Notwithstanding § 94-23A, an applicant shall be provided a reasonable opportunity to show that a franchise should issue even if the requirements of § 94-23A(3) through A(4) are not satisfied, by virtue of the circumstances surrounding the matter and the steps taken by the applicant to cure all harms flowing therefrom and prevent their recurrence, the lack of involvement of the applicant's principals, or the remoteness of the matter from the operation of a cable system.

§ 94-24 Franchise fee.

Amount of franchise fee. A cable operator shall pay to the City a franchise fee in an amount equal to 5% of gross revenues or such other amount as may be specified in the franchise; provided, however, that if the franchise specifies an amount, that amount shall be subject to increase should federal limits on fee payments be eliminated or changed and other cable operators in the City are subject to a higher fee.

Bundled services. In the event that the franchisee shall, during the term of the franchise, offer bundled, tied, or combined cable services (which are subject to the franchise fee) with noncable services (which may not be subject to the franchise fee) to individual subscribers, the combined revenues from such bundled services shall be allocated consistent with standard rates or prices for each service in the bundle advertised by the franchisee through its marketing materials or on its published rate card. In the event the franchisee does not advertise or publish separate prices for the combined services, the percentage that the price for the combined services is discounted from the regular retail rates of the individual services shall be prorated across all the services; provided, however, that any mandatory tariff rates imposed by the New York Public Service Commission (or other governmental entity having such authority) shall be deducted from the combined revenue to determine the revenue subject to the franchise fee. As an example, the franchisee may offer a "bundle" of video, voice and data services for a flat fee of $75, where the retail rate for services purchased on an individual basis would equal $100. Assuming that there is no service subject to the mandated tariff rate, the franchisee would apply a discount of 25% to each service. Thus, if the retail rate for the cable service in the bundle were $50, the franchisee would recognize cable service revenue in the amount of $37.50 and pay a franchise fee on that revenue.

§ 94-25 No exclusivity.

A franchisee may not require a subscriber or a building owner or manager to enter into an exclusive contract as a condition of providing or continuing service, nor may a franchisee enter into any exclusive arrangement that would effectively preclude other persons from using the OVS to compete in the delivery of cable service with a franchisee or its affiliates. However, nothing herein prevents a franchisee from entering into an otherwise lawful, mutually desired exclusive arrangement with a building owner or manager of a multiple-dwelling unit or a commercial subscriber.

§ 94-26 Minimum franchise conditions.

In addition to satisfying such additional or stricter conditions as the City finds necessary based on its investigations, the following elements shall be required in every franchise.

System design. Each franchisee shall provide a cable system which uses at least 750 MHz equipment of high quality and reliability. Each franchisee shall install and activate the return portion of the cable system in the sub-low frequency spectrum of 5 MHz to 30 MHz.

Public, educational and government use of the system.

A franchisee shall provide to each subscriber the minimum of PEG Access required by New York State law.

Each franchisee shall install, maintain, and replace, as necessary, a dedicated, bidirectional fiber optic link between its headend and a location designated by the City as the primary access center.

Each franchisee shall install, maintain, and replace activated two-way cable plant and all headend, cable plant, and node equipment required to make it operable so that the City, schools, and all designated PEG access centers and PEG access facilities located within the franchise area will be able to send and receive signals (video, audio, and data) using the activated two-way cable plant.

(4)

Each franchisee shall ensure that technically adequate signal quality, routing systems, and switching and/or processing equipment are initially and continuously provided for all access interconnections both within the franchisee's cable system and with other cable systems throughout the duration of its franchise.

(5)

In the event a franchisee makes any change in the cable system and related equipment and facilities or in the franchisee's signal delivery technology which directly or indirectly substantially affects the signal quality or transmission of access programming, the franchisee shall, at its expense, take necessary steps or provide necessary technical assistance, including the acquisition of all necessary equipment, to ensure that the capabilities of PEG access programmers are not diminished or adversely affected by such change.

(6)

A franchisee shall maintain all PEG access channels (both upstream channels and downstream channels) and all interconnections of PEG access channels at the same level of technical quality and reliability as the best commercial channels carried on the system.

Service to franchise area. It is the policy of the City to ensure that every cable communications system provide service in its franchise area upon request to any person or any government building. Each franchisee shall extend service upon request within its franchise area, provided that a franchise may permit a franchisee to require a potential subscriber to contribute a fair share of the capital costs of installation or extension as a condition of extension or installation in cases where such extension or installation may be unduly expensive. Service must be provided within the time limits specified in Subsection D.

Time for extension.

Except as a franchise otherwise provides, service must be extended upon request to any person or to any government building in a franchisee's franchise area:

(a)

Within seven days of the request, where service can be provided by activating or installing a drop;

(b)

Within 90 days of the request where an extension of 1/2 mile or less is required; or

(c)

Within six months where an extension of 1/2 mile or more is required.

Notwithstanding the foregoing, a franchisee shall not be deemed to be in violation of this section in the event the franchisee uses reasonable efforts to complete the extension in a timely manner but weather or other circumstances beyond the reasonable control of the franchisee prevent such timely completion.

Technical standards. A cable system within the City shall meet or exceed the technical standards set forth in 47 CFR 76.601 and any other applicable federal and/or New York State technical standards.

Testing. Each cable operator shall perform at its expense such tests as may be necessary to show whether or not the franchisee is in compliance with its obligations under applicable FCC standards, this chapter or a franchise.

Interconnection. Upon request of the City, every cable system shall be required to interconnect with every other cable system within the City, or adjacent to the City, on fair and reasonable terms for purposes of providing PEG access and I-Net services.

Continuity of service. Each franchisee shall, during the term of the franchise, ensure that subscribers are able to receive continuous service. In the event the franchise is revoked or terminated, the franchisee shall be required to continue to provide service for a reasonable period to assure an orderly transition of service from the franchisee to another entity. A franchise may establish more particular requirements under which these obligations will be satisfied.

§ 94-27 Rate regulation and consumer protection; penalties for offenses.

All rates subject to regulation. The City may regulate any of the cable communications system operator's rates and charges to the extent permitted by law. The City will regulate rates in accordance with FCC and New York Public Service Commission rules and regulations, where applicable. Except to the extent FCC or New York Public Service Commission rules and regulations provide otherwise, all rates and charges that are subject to regulation, and changes in those rates or charges, must be approved in advance. The City may take any required steps to file complaints, toll rates, issue accounting orders or take any other steps required to comply with FCC or New York Public Service Commission rules and regulations. The City Council shall be responsible for issuing rate orders that establish rates or order refunds.

No rate discrimination. Except to the extent the City is not permitted by New York State or federal law to enforce such a requirement, a cable operator is prohibited from discriminating in its rates or charges or from granting undue preferences to any subscriber, potential subscriber, or group of subscribers or potential subscribers; provided, however, that a franchisee may offer temporary, bona fide promotional discounts in order to attract or maintain subscribers, so long as such discounts are offered on a nondiscriminatory basis to similar classes of subscribers throughout the franchise area, and a franchisee may offer discounts for the elderly, the disabled, or the economically disadvantaged and such other discounts as it is expressly entitled to provide under federal law, if such discounts are applied in a uniform and consistent manner.

Redlining prohibited. A cable operator shall not deny access or charge different rates to any group of subscribers or potential subscribers because of the income of the residents of the local area in which such group resides.

Customer service.

Each cable operator must satisfy FCC, New York State and City cable customer service standards or consumer protection standards. In the case of a conflict among standards, the stricter standard shall apply.

For violation of cable customer service standards, penalties will be imposed as follows:

(a)

For each day of each material breach: $200, not to exceed $600 for each occurrence of material breach.

(b)

If there is a subsequent material breach of the same provision within 12 months: $400 for each day of each material breach, not to exceed $1,200 for each occurrence of the material breach.

(c)

If there is a third or additional material breach of the same provision within 12 months of the first: $1,000 for each day of each material breach, not to exceed $3,000 for each occurrence of the material breach.