[HISTORY: Adopted by the Town Board of the Town of Clifton Park 3-1-1976
by L.L. No. 2-1976. Amendments noted where applicable.]
[Amended 5-5-1986 by L.L.
No. 3-1986; 4-6-1998 by L.L.
No. 2-1998; 12-8-2003 by L.L. No. 12-2003]
This local law shall be known as "Local Law No. 12 of 2003" or as "Time
Warner Cable CATV Franchise and Permit." As used herein, Local Law No. 2 of
the year 1976 shall be called "franchise." As used herein, Local Law No. 12
of 2003 shall be called "franchise renewal."
[Amended 5-5-1986 by L.L. No. 3-1986; 4-6-1998
by L.L. No. 2-1998; 12-8-2003 by L.L.
No. 12-2003]
A.
BASIC SERVICE
CABLE TELEVISION SERVICE
CABLE TELEVISION SYSTEM or CABLE COMMUNICATION(S) SYSTEM
COMPANY
EFFECTIVE DATE OF THIS AGREEMENT
FRANCHISE
FCC
GROSS REVENUES
MUNICIPALITY
PSC
PERSON
SERVICE TIER
STREETS
SUBSCRIBER
TOWN BOARD
VIDEO PROGRAMMING
Unless the context clearly indicates that a different
meaning is intended, the following terms shall have the meanings indicated:
The tier of cable service that includes the retransmission of local
television and public, educational and governmental channels required by the
franchise or commission rules and any additional video signals as determined
by the company.
A facility, consisting of a set of closed transmission paths, and
associated signal generation, reception and control equipment that is designed
to provide broadband telecommunications service which includes, but is not
limited to, cable television service or cable service and which is provided
to multiple subscribers within a community. Such term does not include a facility
that serves only to retransmit the television signals of one or more television
broadcast stations; a facility that serves only subscribers in one or more
multiple-unit dwellings, not including single-family dwellings unless such
facility or facilities use any public right-of-way; a facility of a common
carrier which is subject, in whole or in part, to the provisions of Title
II of the Communications Policy Act of 1934, except that such facility shall
be considered a cable system to the extent such facility is used in the transmission
of video programming directly to subscribers; or any facilities of any electric
utility used solely for operating its electric utility systems.
Time Warner Cable, is successors, assigns and transferees.
The date upon which both parties to this agreement shall have affixed
their signatures hereto.
The grant or authority given hereunder renewing the franchise previously
granted to the company with the due consent of the municipality, which consent
or authority is evidenced by regulation, ordinance, permit, this agreement
or any other authorization, to conduct and operate a cable television system
in the municipality in accordance with the terms hereof.
The Federal Communications Commission, its designee and any successor
thereto.
All revenues derived, directly or indirectly, by the company from
the operation of the cable television system pursuant to this agreement by
subscribers residing within the municipality and pursuant to the rights granted
by this franchise. Additionally, revenue from local advertising, leased access
programming and home shopping shall be included and shall be calculated on
a pro-rate basis using the number of subscribers served in the community.
The term “gross revenues” shall not include excise taxes, or sales
tax, or bad debt, or any other taxes or fees which are imposed on the grantee
or any subscriber by any governmental unit and collected by the grantee for
such governmental unit, or any payment to the municipality which is a franchise
fee under applicable law. The company shall have the right to apply franchise
fees paid as a credit against special franchise assessments pursuant to § 626
of the New York State Real Property Tax Law.
The Town of Clifton Park. Wherever the context shall permit, Town
Board and municipality shall be used interchangeably and shall have the same
meaning under this franchise.
New York State Public Service Commission.
An individual, partnership, association, corporation, joint-stock
company, trust, corporation, or organization of any kind, the successors or
assigns of the same.
A category of cable television service provided by the company over
the cable television system for which a separate rate is charged for such
category by the company.
The surface of, as well as the space above and below, any and all
streets, avenues, highways, boulevards, concourses, driveways, bridges, tunnels,
parks, parkways, waterways, docks and public grounds and waters within or
belonging to the municipality.
Any person lawfully receiving any cable television service in the
municipality provided over the cable television system.
The Town Board of the Town of Clifton Park.
Any or all programming services provided by or generally considered
comparable to programming provided by a television broadcast station.
B.
Word usage. “May” is permissive; “shall”
or “will” are mandatory.
[Amended 12-8-2003 by L.L. No. 12-2003]
In accordance with 8 NYCRR 594, a public hearing concerning the application
of the company for the franchise herein granted was held on October 14, 2003,
at 7:10 p.m. at the Town Office Building, Clifton Park, N.Y. Public notice
of said hearing was given in the Schenectady Gazette on October 2, 2003, which
notice invited all interested parties to participate in said hearing and comment
upon the character, financial condition, technical ability and other qualifications
of the company to construct and operate a cable television system in the Town
of Clifton Park and the adequacy and feasibility of the company's arrangements
for the construction of such a cable television system in the Town. Said hearing
having been held on the date and at the place stated hereinabove, and said
hearing having been a full public proceeding affording due process, and the
Town Board having received at said hearing all comments regarding the qualifications
of the company to receive this franchise, the Town Board hereby finds that
the company possesses the necessary character, technical ability, financial
condition and other qualifications and that the company's financing for construction
and operating the cable television system are adequate and feasible, and that,
therefore, the franchise complies with the standards of the Federal Communications
Commission (FCC) and the Commission on Cable Television of the State of New
York.
[Added 12-8-2003 by L.L. No. 12-2003]
The municipality hereby acknowledges and agrees that this franchise
has been approved and entered into by it in accordance with and pursuant to
the Communications Act of 1934, as amended, 47 U.S.C. § 521 et seq.
(hereinafter the Communications Act) and all other applicable laws, rules
and regulations including, but not limited to, the rules and regulation of
applicable laws, rules and regulations including, but not limited to, the
rules and regulation of FCC and the PSC, and hereby represents and warrants
that this franchise has been duly approved and entered into in accordance
with all applicable local laws. The municipality hereby acknowledges that
it, by duly authorized members thereof, has met with the company for the purposes
of evaluating the company and negotiating and consummating this franchise.
The municipality has determined, after affording the public all adequate and
due notice and opportunity for comment in public proceedings affording due
process, that the company is likely to satisfy cable-related community needs
and has found the company’s technical ability, financial condition,
and character to be satisfactory and has also found to be adequate and feasible
the company’s plans for constructing and operating the cable television
system. In making said determination, the municipality considered the past
performance of the company and its affiliated entities and the company’s
likelihood of satisfactory performance of its obligations hereunder and other
factors the municipality deemed necessary for approval of the company as the
cable television franchisee, which approval will not be unreasonably withheld.
[Amended 12-8-2003 by L.L. No. 12-2003]
A.
The municipality hereby grants to the company the nonexclusive
right to construct, erect, operate and maintain a cable television system
and to provide cable television service within the municipality as it now
exists and may hereafter be changed, and in so doing to use the streets of
the municipality by erecting, installing, constructing, repairing, replacing,
reconstructing, maintaining and retaining in, on, over, under, upon, and across
any and all said streets such poles, wires, cables, conductors, ducts, conduits,
vaults, pedestals, manholes, amplifiers, appliances, attachments and other
property as is deemed necessary or useful by the company, subject to the company’s
obligation to provide efficient cable television service. Additionally, the
municipality insofar as it may have the authority to so grant, hereby authorizes
the company to use any and all easements dedicated to compatible uses, such
as electric, gas, telephone or other utility transmissions, for the purposes
of erecting, installing, constructing, repairing, replacing, reconstructing,
maintaining and retaining in, on, over, under, upon and across such easements
such items of the cable television system as it deemed necessary or useful
by the company in order to provide cable television service. Upon request
by the company and at the company’s sole expense, the municipality hereby
agrees to assist the company in gaining access to and using any such easements.
B.
Without waiver or restriction of the rights available
to the parties hereto under applicable law, this franchise and the attachments
hereto constitute the entire agreement between the parties and supersede any
and all prior cable television agreements and other agreements or instruments
by or between the parties hereto or their predecessors in interest as well
as all rights, obligations and liabilities arising thereunder concerning or
in any way relating to cable television service.
C.
Nonexclusiveness.
(1)
This franchise shall not be construed as any limitation
upon the right of the municipality to grant to other persons rights, privileges,
and authorities herein set forth, in the same or other streets, alleys, or
other public ways or public places. The municipality specifically reserves
the right to grant at any time during the term of this agreement such additional
franchises for a cable communications system as it deems appropriate. In the
event the municipality grants to any other person (being referred to as “grantee”
in the below quoted paragraph) a franchise, consent or other right to occupy
or use the streets, or any part thereof, for the construction, operation,
or maintenance of all or part of a cable television system or any similar
system or technology, the municipality shall insert the following language
into any such franchise, consent or other document, and/or promptly enact
legislation, conditioning the use of the streets or any part thereof by any
such person, as follows:
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“Grantee agrees that it shall not move, damage, penetrate, replace
or interrupt any portion of the Cable Television system of the Company without
the prior written consent of the Company. Grantee shall indemnify the Company
against any damages or expenses incurred by the Company as a result of any
such removal, damage, penetration, replacement or interruption of the services
of the Company caused by the Grantee.”
|
(2)
As used immediately above in the above-quoted paragraph,
the term “Company” shall mean the Company, as defined in this
Franchise, and its successors, assigns and transferees.
D.
In addition to the foregoing, in the event any such grants
of franchises, consents or other rights to occupy the streets, or the provision
of any service pursuant thereto, are on terms more favorable or less burdensome
than those contained herein, the provisions of this franchise shall be deemed
modified without any further action so as to match any such more favorable
or less burdensome provisions.
E.
As used in this section, the phrase “occupancy
or use of the streets” or any similar phrase shall not be limited to
the physical occupancy or use thereof but shall include any use above or below
the streets by any technology, including but not limited to infrared transmissions.
The applicant shall specify in its proposal the type and capacity of
the equipment to be installed, and the company shall advise the Town of any
changes in this section of its proposal. No changes in the type and capacity
of equipment to be installed shall be allowed unless such change is at least
equal to or better than that proposed by the company in its application.
A.
The CATV system shall be installed and maintained in
accordance with the highest accepted standards of the industry to the end
that the subscriber may receive the highest and most desirable form of service.
B.
In determining satisfactory compliance with the provisions
of this local law, the following shall be considered:
(1)
That the CATV system is designed and capable of twenty-four-hour-a-day
continuous operation.
(2)
Upon commencement of service in any part or all of the
system, an engineering report, certifying that system performance fully complies
with performance standards described in the company's application proposal,
shall be prepared and kept on file in the offices of the company. Such engineering
report shall cover, but not be limited to, the following technical performance
characteristics and shall be prepared by a qualified professional engineer:
C.
At any subsequent time, the Town may request such additional
performance testing as it deems necessary on the basis of complaints received
or other evidence indicating possible noncompliance, including, if it deems
necessary, additional engineering reports by an independent, registered professional
engineer.
D.
Mutually acceptable procedures for such tests shall be
arranged without undue hardship or inconvenience to the subscribers or the
company.
E.
The system shall be maintained at all times in compliance
with FCC technical standards as set forth in Part 76, Subpart K, of the FCC
Rules (and Part 596.3 of the New York State Commission on Cable Television
Rules), or any amendments thereto which may be subsequently adopted. These
shall be considered minimum technical standards, and overall technical performance
of the system shall be assessed in relation to these minimum standards and
the company's application setting forth the technical standards it proposes
to provide.
[Added 5-5-1986 by L.L. No.
3-1986]
A.
The company shall provide that the system will include
a studio at the company's local office (presently in Troy, New York) with
at least one color camera, one video tape recorder, a switcher with special
effects capability and a time base corrector, plus necessary audio and lighting
equipment and at least two portable color camera and video tape recorder combinations,
together with any and all incidental equipment to provide satisfactory broadcasts
of local events on local access channels. Appropriate access channels shall
be provided at reasonable times.
[Amended 2-12-1987 by L.L.
No. 1-1987]
B.
The company shall provide an appropriate staff to tape
and broadcast Town meetings and Planning Board meetings. Specifically, the
following events shall be taped by the company by company personnel and shall
be broadcast on an appropriate access channel to the subscribers located in
the Town of Clifton Park, on a delayed basis:
C.
The company shall also broadcast meetings of the School
Board, local Shenendehowa High School sporting events and other events designated
by the Town Board by local law or resolution as further set forth below. However,
the company is not required to provide an appropriate staff to tape these
additional events, but rather will provide technical assistance to the audiovisual
department. If the Shenendehowa Central School administration consents and
the necessary staff to tape the following events is available through the
Shenendehowa High School and the quality of the taping is deemed satisfactory
by the company, the company agrees to broadcast the following events on a
time-delayed basis on an appropriate local access channel:
(1)
All meetings of the Shenendehowa School Board, provided
that the Shenendehowa School Board so consents.
(2)
All Shenendehowa varsity football games, varsity boys'
basketball games and varsity hockey games, with the consent of and under the
supervision and guidance of the Director of Athletics of Shenendehowa Central
Schools.
(3)
Additional high school sporting events designated by
the Town Board by local law or resolution, with the consent of and under the
supervision and guidance of the Director of Athletics of the Shenendehowa
Central Schools.
(4)
Such additional locally originated programming as the
Town may designate or that the company may find advantageous to broadcast.
Copies of all petitions, applications and communications submitted by
the company to the Federal Communications Commission, Securities and Exchange
Commission or any other federal or state regulatory commission or agency having
jurisdiction in respect to any matter affecting CATV construction or operation
shall also be submitted simultaneously to the Town.
The company shall, at all times during the life of this permit and franchise,
be subject to all lawful exercise of the police power by the Town and to such
reasonable regulation as the Town shall hereafter by resolution or ordinance
provide. The company shall further comply with and be subject to all applicable
regulations and laws affecting CATV promulgated by Saratoga County, New York
State or United States regulatory agencies.
[Amended 12-8-2003 by L.L. No. 12-2003]
A.
The company hereby agrees to indemnify the municipality
for, and hold it harmless from, all liability, damage, cost or expense (including
reasonable attorney’s fees) arising from claims of injury to persons
or damage to property caused by reason of any negligent conduct undertaken
by the company, its employees or agents in the construction, installation,
operation and maintenance of the cable television system.
B.
The company shall, as of the effective date of this franchise,
furnish to the municipality evidence of a liability insurance policy or policies,
in the form of a certificate of insurance naming the municipality as an additional
named insured, which policy or policies or replacements thereof shall remain
in effect throughout the term of this franchise at the cost and expense of
the company; said policy and replacements shall be in the combined amount
of $3,000,000 for bodily injury and property damage issued by a company authorized
to do business in New York State. In addition, the company shall carry workers’
compensation insurance for its employees in such amounts as is required by
the laws of the State of New York. The insurance coverage herein above referred
to may be included in one or more policies covering other risks of the company
or any of its affiliates, subsidiaries or assigns. The company shall deliver
a certificate of insurance evidencing compliance with this section within
10 days of the effective date or any change in such coverage. In addition,
all policies evidencing such insurance and the certificates issued with respect
thereto shall provide for at least 30 days’ written notice to the municipality
prior to cancellation, reduction in policy limits or material change in coverage
thereof.
C.
Notwithstanding any provision contained within this franchise,
the municipality and company hereby expressly agree that the company shall
not be liable for and shall not indemnify the municipality in any manner and
in any degree whatsoever from and against any action, demand, claims, losses,
liabilities, suits or proceedings arising out of or related to any negligence
or wrongdoing of the municipality or any of its employees, agents or officers.
A.
The company shall maintain and operate its system and render efficient service in accordance with the rules and regulations as are or may be set forth by the Town as provided for in § A213-16 of this local law, or by any regulatory body, state or federal, having jurisdiction over the company's operations.
[Amended 2-8-1988]
B.
Local office. During the term of this franchise, and
any renewal thereof, the company shall maintain a local business office or
agent for the purpose of resolving all complaints regarding the quality of
service, equipment malfunctions and similar matters. The provisions of this
section shall be complied with if the company maintains a local business headquarters
office in the City of Troy, a place easily accessible to the citizens of the
Town, and provides the Town Clerk's office with the name, address and telephone
number of a person who will act as company agent to receive complaints regarding
quality of service, equipment malfunctions, billing disputes and other matters.
The local office shall be open to receive inquiries or complaints from subscribers
during normal business hours, and in no event less than 9:00 a.m. to 5:00
p.m., Monday through Friday. Any complaints from subscribers shall be acted
upon as soon as possible, but in no case later than the following day after
receipt (i.e., within 24 hours). Trouble call processing shall be in accordance
with 8 NYCRR 596.8.
[Amended 12-13-1976 by L.L.
No. 5-1976]
C.
Complaints.
(1)
Any complaints received at the local office regarding
quality of service, equipment malfunction, billing disputes and other matters
which cannot be resolved to the satisfaction of the subscriber within three
business days of their receipt (i.e., within 72 hours) may be forwarded to
the company's main office by the subscriber.
(2)
Within five business days after receipt of such complaints
at the main office, the company shall contact the subscriber, investigate
the complaint and take whatever reasonable steps as may be necessary to resolve
the complaint. The company shall advise the subscriber in writing of any and
all steps taken to resolve the complaint and preclude any recurrence of the
matter complained of.
(3)
The company shall post a notice of the procedure outlined
in this subsection, together with the address and telephone number of the
company's main office, in a conspicuous place in the local office. Notice
of the procedures for reporting and resolving complaints will be given to
each subscriber at the time of initial subscription to the system. The company
shall also provide notice annually to each subscriber of the procedure for
reporting and resolving subscriber complaints.
D.
Notice of interruption for repairs.
(1)
Whenever it is necessary to shut off or interrupt service
for the purpose of making repairs, adjustments or installations, the company
shall do so at such time as will cause the least amount of inconvenience to
its customers, and unless such interruption is unforeseen and immediately
necessary, it shall give 48 hours' notice thereof to its customers.
(2)
All service calls and repairs caused by defective equipment
shall be made free of charge.
(3)
In the event a subscriber is without service, except
through problems beyond the company's control, for a period in excess of 72
hours because of a breakdown, such customer shall receive a pro-rata reduction
in monthly service charge for the period of the breakdown.
The company shall have the authority to promulgate such rules, regulations,
terms and conditions governing the conduct of its business as shall be reasonably
necessary to enable the company to exercise its rights and perform its obligations
under this permit and franchise and to assure an uninterrupted service to
each and all of its customers; provided, however, that such rules, regulations,
terms and conditions shall not be in conflict with the provisions hereof or
the laws of the State of New York and shall, where applicable, be subject
to approval by the regulatory body, state or federal, having jurisdiction
over the company's operations.
A.
Use. All of the company's transmission and distribution
structures, lines, poles, wires and appurtenances and equipment erected by
the company within the Town shall be so located, erected and maintained as
to cause minimum interference with the proper use of streets, alleys and other
public ways and places and to cause minimum interference with the rights or
reasonable convenience of property owners who adjoin any of said streets,
alleys or other public ways and places. It is the intent of the Town that
all other utilities with pole and/or conduit space shall grant the joint use
thereof to the company upon a reasonable basis in order to minimize the number
of new poles and/or conduits.
B.
Contracts. The company may enter into one or more contracts
with the Niagara Mohawk Power Company, New York Telephone Company or the owner
or lessee of any poles located within the Town to whatever extent such contract
or contracts may be expedient and of advantage to the company in furnishing
the service covered by this franchise to its customers. Whenever other utilities
go underground with their facilities, the company will do the same; further,
the company agrees to operate in compliance with any state or federal laws
governing cable construction in new areas.
C.
Restoration. In case of any disturbance of pavement,
sidewalk, driveway or other surfacing, the company shall, at its own cost
and expense and in a manner approved by the Town Board, replace and restore
all paving, sidewalk, driveway or surface of any street or alley disturbed
in as good condition as before said work was commenced.
D.
Relocation. In the event that, at any time during the
period of this permit and franchise, the Town shall lawfully elect to alter
or change the grade of any street, alley or other public way, the company,
upon reasonable notice by the Town, shall remove, reset and relocate its poles,
wires, cables and underground conduits at its own expense.
E.
Placement of fixtures. The company shall not place poles
or other fixtures where the same will interfere with any gas, electric or
telephone fixture or water hydrant or main, and all such poles or other fixtures
placed in any street shall be placed at the outer edge of the sidewalk and
inside the curbline, and those placed in alleys shall be placed close to the
line of the lot abutting on said alley, and then in such a manner as not to
interfere with the usual travel on said streets, alleys and public ways.
F.
Temporary removal of wires for building moving. The company
shall, on the request of any person holding a building moving permit issued
by the Town, temporarily raise or lower its wires to permit the moving of
buildings. The expense of such temporary removal, raising or lowering of wires
shall be paid by the person requesting the same, and the company shall have
the authority to require such payment in advance. The company shall be given
not less than 48 hours' advance notice to arrange for such temporary wire
changes.
G.
Tree trimming. The company shall have the authority to
trim trees, at its own expense, overhanging upon the streets, alleys, sidewalks
and public places of the Town so as to prevent the branches of such trees
from coming in contact with the wires and cables of the company.
The company shall not, as to rates, charges, service facilities, rules,
regulations or in any other respect, make or grant any preference or advantage
to any person, nor subject any person to any prejudice or disadvantage, provided
that nothing in this permit and franchise shall be deemed to prohibit the
establishment of a graduated scale of charges and classified rate schedules
to which any customer coming within such classification would be entitled.
[Added 12-8-2003 by L.L. No. 12-2003]
A.
The company has completed an upgrade of the municipality’s
cable television system as follows: the system has 750 MHZ capability; the
system has cable modem compatibility; the system will continue to provide
throughout the term of this franchise cable television services available
to residential customers generally comparable to those provided to communities
served by the company’s main capital region head-end facility located
in Albany, New York.
B.
The cable communications system shall incorporate equipment capable
of providing standby powering of the head-end and any sub head-end, for a
minimum of six hours upon failure of the power furnished by the utility company.
The standby powering equipment shall provide for automatic cut-in upon failure
of the AC power and automatic reversion to the AC power upon resumption of
the AC power service. The equipment also shall be so designed as to prevent
the standby power source from powering a dead utility line.
C.
The company shall comply with the emergency alert system requirements
as set forth by FCC rules.
D.
All signals carried by the cable communications system shall
be transmitted with a degree of technical quality not less than that prescribed
by rules of the FCC and PSC.
E.
Operations of the cable communications system shall be such that
interference caused to broadcast and satellite television and radio reception,
telephone communication, amateur radio communication, aircraft and emergency
communications or other similar installations or communications within the
municipality will be as permitted under applicable FCC and PSC rules and regulations.
F.
At such time as the performance monitoring and testing conducted
pursuant to requirements of federal and state regulatory agencies having jurisdiction
provides evidence that any transmission of the cable communications system
fail to meet the prescribed standards, the performance monitoring and testing
shall be repeated upon completion of necessary repairs or adjustments. The
results of all such testing shall be filed with the municipality within 15
days of the municipality’s request.
G.
The company shall adhere to a preventive maintenance policy directed
toward maximizing the reliability (mean-time-between-malfunctions) and maintainability
(mean-time-repair) of the cable communications system with respect to its
delivery of service to subscribers.
H.
The company shall maintain an engineering department comprised
of qualified technicians and the necessary vehicles and equipment to provide
prompt and efficient repair service.
I.
Whenever it is necessary to interrupt service for the purpose
of making repairs, adjustments or installations the company shall do so at
such time and in such manner as will cause the least possible inconvenience
to the subscribers. For scheduled system-wide maintenance and/or upgrades
that may cause anticipated interruptions in service, the company shall give
reasonable notice thereof to its subscribers. Except in emergencies, the company
shall use its best efforts not to interrupt service for the purpose of making
repairs between the hours of 7:00 p.m. and 12:00 midnight each day.
J.
The company shall have a locally listed telephone so operated
that requests for repairs or adjustments can be received at any time, 24 hours
per day, seven days per week.
K.
Insofar as reasonably possible, the company shall begin working
on service problems no later than the next business day after the company’s
receipt of complaints; however, this requirement shall not apply if there
are extenuating circumstances beyond the company’s control.
L.
The requirements for maintenance and repair shall not apply to
subscriber television receivers, video cassette recorders, remote control
devices, and other devices not provided by the company.
M.
Any subscriber may bring any disagreement with the company to
the PSC for disposition as permitted and prescribed in state law and regulation.
N.
Upon the municipality’s request the company shall file,
within 15 days, with the municipality a copy of all technical, operational
and financial reports the company is required to, or voluntarily submits to
the FCC, PSC and/or other governmental entities that concern the company’s
operation of the cable communications system in the municipality. Any information
provided under this section shall be treated as confidential by municipality.
O.
The company’s local system manager shall, upon request
of the municipality, meet in public session with the municipality to respond
to inquires of the municipality and subscribers as to aspects of the company’s
service. Topics which may be discussed at any performance evaluation session
may include, but not limited to, system performance, compliance with this
franchise and applicable law, customer service and complaint response, subscriber
privacy, service rate structures, franchise fees, penalties, free and discounted
services, applications of new technologies and judicial and FCC filings. Each
performance evaluation session shall be deemed to have been closed as of the
date the municipality issues a final report on its findings, and the municipality
shall provide the company with a copy of the final report as soon as it is
available.
P.
Upon the municipality’s request, the franchisee shall file
with the municipality updated maps of the municipality clearly displaying
the configuration of the cable communication system serving the municipality.
All information provided under this section shall be treated as confidential.
[1]
Editor's Note: Former § A231-14, Charges, was repealed 5-5-1986
by L.L. No. 3-1986.
[Added 12-8-2003 by L.L. No. 12-2003]
A.
The company hereby agrees that when and wherever it deems
it economical and reasonably feasible, it shall enter into agreements with
telephone or electric or other utilities (collective utilities) for the use
of said utilities’ poles or conduit space whereby said utilities shall
provide use of and access to said poles or conduit space by the company of
the company’s lines and other equipment. Notwithstanding the above,
where necessary to service subscribers and where attachment to the pole(s)
or conduit space of utilities is not economically reasonable or otherwise
feasible, the company may erect or authorize or permit others to erect any
poles or conduit space or any other facilities within the streets of the municipality
pursuant to the issuance by the municipality of any necessary authorizations
to do so.
B.
Subject to the provisions of Subsection C below, in such areas of the municipality where it or any subdivision thereof shall hereafter duly require that all utility lines be installed underground, the company shall install its lines underground in accordance with such requirement.
C.
Notwithstanding the foregoing, if the company shall in
any instance be unable to install or locate its wires underground, then the
municipality, on being apprised of the facts thereof, shall permit such wires
to be installed above the ground even though other facilities in the area
may be placed, or required to be placed, underground. However, any such permission
shall be on such conditions as the municipality may reasonably require.
[Added 12-8-2003 by L.L. No. 12-2003]
A.
Whenever the municipality or a public utility franchised
or operating within the municipality shall require the relocation or reinstallation
of any property of the company in or on any of the streets of the municipality
as a result of the relocation or other improvements of any such streets, it
shall be the obligation of the company, on written notice of such requirement,
to remove and relocate or reinstall such property as may be reasonably necessary
to meet the requirements of the municipality or the public utility. In the
event a public utility is compensated for such relocation or reinstallation,
then in such case the company shall be similarly compensated.
B.
The company shall, on request of a person holding a building
or moving permit issued by the municipality, temporarily raise or lower its
wires or other property or relocate the same temporarily so as to permit the
moving or erection of buildings. The expenses of any such temporary removal,
raising or lowering of wires or other property shall be paid in advance to
the company by the person requesting the same. The company shall be given
in such cases not fewer than five working days’ prior written notice
in order to arrange for the changes required.
[Added 12-8-2003 by L.L. No. 12-2003]
A.
The company or any person authorized by the company to
erect, construct or maintain any of the property of the company used in the
transmission or reception of cable television service shall at all times employ
due care under the facts and circumstances and shall maintain and install
said property of the company in accordance with commonly accepted methods
and principles in the cable television industry so as to prevent failures
and accidents likely to cause damage or injury to members of the public. All
cable television system equipment shall conform to those standards of the
National Electrical Code and the National Board of Fire Underwriters which
exist at the time said equipment is installed or replaced. The company agrees
to install cable television system equipment in a manner to reasonably minimize
interference to be expected with the usual use of the streets and in no event
shall any such cable television system equipment be located so as to substantially
and regularly interfere with the usual public travel on any street or sidewalk
of the municipality. All work involved in the construction, installation,
maintenance, operation and repair of the cable television system shall be
performed in a safe, thorough and reliable manner, and all materials and equipment
shall be of good and durable quality. In the event that any municipal property
is damaged or destroyed in the course of operations by the company, such property
shall be repaired by company within 30 days and restored to the same condition
as previously found to the extent such conditions can be reasonably duplicated.
B.
Whenever the company shall cause or any person on its
behalf shall cause any injury or damage to public property or street by or
because of the installation, maintenance or operation of the cable television
system equipment, such injury or damage shall be remedied as soon as reasonably
possible after the earlier of notice to the company from the municipality
or after the company becomes aware of the same in such fashion as to restore
the property or street to substantially its former condition. The company
is hereby granted the authority to trim trees upon and overhanging the streets
of, and abutting private property, (i.e., in the public way) in the municipality
to the extent it reasonably deems necessary so as to prevent the branches
or growths from coming in contact with the wires, cables and other equipment
of the company’s cable television system.
C.
All structures and all lines, equipment and connections,
in, over, under and upon streets, sidewalks, alleys and public ways and places
of the municipality, wherever situate or located, shall at all times be kept
and maintained in a safe condition and in good order and repair.
D.
In exercising rights pursuant hereto, the company shall
not endanger or unreasonably interfere with the lives or persons, interfere
with any installations of the municipality, any public utility serving the
municipality or any other person permitted to use the streets and public grounds,
nor unnecessarily hinder or obstruct the free use of the streets and public
grounds.
E.
The Town shall not be held liable for any disturbances
of the company’s installations resulting from the altering, repairing,
or installation of streets, roads, alleys, sewers, waterlines, fire alarm
systems, burglar systems, sidewalks, driveways, bridges, or any other municipal
installations, unless caused by the negligence of the Town, its officers,
agents or employees. Should any installation of the company be found by the
Town to be hazardous to the public safety, said installation shall be brought
into conformance by the company at its expense.
[Added 12-8-2003 by L.L. No. 12-2003]
If the use of any part of the company’s cable television system
occupying the streets of the municipality is discontinued for any reason (other
than for reasons beyond the company’s reasonable control) for a continuous
and uninterrupted period of 12 months, the company shall, on being given 60
days’ prior written notice thereafter by the municipality, provided
no such notice is sent without prior vote of the Board or Town Board directing
the forwarding of said notification, remove that portion of its cable television
system from the streets of the municipality which has both remained unused
and which the municipality for good cause shown and articulated in said notice
deems necessary to remove to protect the public health and safety. The cost
and expense of said removal shall be borne by the company, and said streets
shall be placed in as nearly as good condition as immediately before the removal
as is reasonable. In the event the company shall fail to timely remove said
unused portion of said system and after an additional 30 days’ written
notice from the municipality to the company, the said portion of the system
shall be deemed abandoned and the municipality may remove or cause to move
said portions of the cable television system from the streets of the municipality
which it deems necessary in order to protect the public health and safety.
It is understood that the cost of any such removal shall be borne by the company.
The company will not abandon the system without the express written consent
of the municipality.
[Amended 12-8-2003 by L.L. No. 12-2003]
A.
Excepting conveyances of real and personal property in
the ordinary course of business, neither the franchise granted herein, nor
any rights or obligations of Time Warner Cable hereunder shall be assigned,
sold or transferred, in any manner, in whole or in part, to any person, by
operations of law or otherwise without the prior written consent of the municipality
which will not be unreasonably withheld or delayed.
B.
The company shall notify the municipality in writing
of any proposed transfer or assignment prior to the anticipated effective
date thereof.
C.
The municipality shall have 90 days from the receipt
of such written notification to consider said proposal.
D.
The municipality’s consent shall be deemed to be
given if the municipality does not act on the request within said ninety-day
period.
E.
The company may assign or transfer this franchise to
a parent corporation, a subsidiary of a parent corporation or subsidiary of
the company or any other entity under common control with the company without
the prior approval of the municipality.
F.
Before an assignment or transfer is approved by the municipality,
the proposed assignee or transferee shall execute an affidavit, acknowledging
that it has read, understood, and intends to abide by the currently applicable
franchise.
G.
An assignment or transfer shall not relieve the former
company of its liabilities under the franchise agreement until the assignment
actually takes place, or unless specifically relieved by applicable federal
law or the PSC, or unless specifically relieved by the franchising authority
at the time an assignment or transfer is approved. In the event that the municipality
refuses to grant the aforementioned petition, it shall set forth specific
reasons for its decision in writing by municipal resolution. Either the buyer
or seller or both may appeal to courts of competent jurisdiction in the event
of the municipality’s denial or an unreasonable delay in deciding.
A.
Town rules. The Town shall have the right to adopt, in
addition to the provisions contained in this franchise and existing applicable
ordinances, such additional regulations as it shall find necessary from time
to time in the exercise of its police power; provided, however, that such
regulations are not in conflict with the privileges granted in this franchise
or any applicable regulations of the FCC or the Commission. However, any substantive
change in any of the rights or obligations of the company shall not be effective
until the company has had an opportunity to be heard thereon and afforded
due process of law with respect to any additional, amended or changed regulation.
[Amended 5-5-1986 by L.L.
No. 3-1987]
B.
Use of system by the Town. The Town shall have the right,
during the life of this permit and franchise, free of charge, where aerial
construction exists, of maintaining upon the poles of the company within the
Town limits wire and pole fixtures necessary for a police and fire alarm system,
such wires and fixtures to be constructed and maintained to the satisfaction
of the company and in accordance with its specifications.
(1)
Compliance with company rules. The Town in its use and
maintenance of such wires and fixtures shall at all times comply with the
rules and regulations of the company so that there may be minimum danger of
contact or conflict between the wires and fixtures of the company and the
wires and fixtures used by the Town.
(2)
Liability. The Town shall be solely responsible for all
damages to persons or property arising out of the construction or maintenance
of said wires and fixtures authorized by this section and shall save the company
harmless from all claims and demands whatsoever arising out of the attachment,
maintenance, change or removal of said wires and fixtures on the poles of
the company. In case of rearrangement of the company plant or removal of poles
or fixtures, the Town shall save the company harmless from any damage to persons
or property arising out of the removal or construction of its wires or other
fixtures.
(3)
Supervision and inspection. The Town shall have the right
to inspect all construction and installations to ensure compliance with governing
ordinances.
(4)
Procedures after termination or revocation. Upon the
revocation of this permit and franchise by the Town Board, or at the end of
the term of this permit and franchise, the Town shall have the right to determine
whether the company shall continue to operate and maintain its distribution
system pending the decision of the Town as to the future maintenance and operation
of such system.
C.
The work done in connection with the construction, reconstruction,
maintenance, service or repair of said CATV system shall be subject to and
governed by all laws, rules and regulations of the Town now in force or that
may be hereafter passed and adopted for the government and regulation thereof
which are not inconsistent herewith.
[Added 5-5-1986 by L.L. No.
3-1986]
D.
Further, the construction, maintenance and operation
of the CATV system and all property of the company subject to this franchise
shall be subject to all lawful police powers and regulations adopted or promulgated
by the Town of Clifton Park. The Town shall have the power at any time to
order and require the company to remove and abate any pole, tower, wire, cable,
electric conductor or other structure or facility which is dangerous to life
or property upon reasonable demonstration thereof and giving of appropriate
written notice, and, in the event that the company, after written notice,
fails or refuses to act, the Town shall have the power to remove or abate
the same at the expense of the company, all without compensation or liability
for damages to the company.
[Added 5-5-1986 by L.L. No.
3-1986]
[Amended 5-5-1986 by L.L. No. 3-1986; 2-12-1987
by L.L. No. 1-1987; 12-8-2003 by L.L.
No. 12-2003]
A.
The company shall pay to the municipality on a quarterly
basis throughout the term of this franchise a sum equal to 4.051% of gross
revenues, as defined herein and adjusted herein below. Franchise fees provided
shall be paid within 30 days after the end of each calendar quarter. All fees
shall be accompanied by a revenue summary statement providing sufficient detail
to independently verify the accuracy of the information set forth therein
to the company's internal and/or audited financial statements in such form
as the municipality shall reasonably approve. This report shall be executed
by the Vice President, Finance, of the company or other authorized person.
There shall be applied as a credit against the franchise fee the aggregate
of any taxes, fees or assessments of general applicability imposed on the
company or any subscribers, or both, which are discriminatory against the
company or any subscribers, any noncapital expenses incurred by the company
in support of the PEG access requirements of this franchise and not passed
through to the subscribers hereunder and any fees or assessments payable to
the PSC which, when combined with all other fees and credits, would exceed
5%.
B.
No acceptance of any payment shall be construed as an
accord that such payment is in fact the correct amount, nor shall such acceptance
of payment be construed as a release of any claim the Town may have for further
or additional sums payable based upon the provisions of this franchise renewal
agreement.
C.
In the event an audit concludes the company’s payment
hereunder was underpaid by an amount greater than 5% of the proper payment
then the company shall reimburse the Town for the cost of the audit, in addition
to any other remedies available to the Town. The Town may collect interest
from the company on the underpayment at a rate equal to the prime rate, plus
5%. If the company disputes such finding, there shall be no imposition of
interest while resolution of such disputes is attempted, or during the time
the company is challenging the Town’s findings in any court of competent
jurisdiction, unless the findings of the Town are upheld.
The Town shall have the right to inspect all pertinent books, records,
maps, plans, financial statements and other like materials of the company
upon reasonable notice and during normal business hours.
[Added 12-8-2003 by L.L. No. 12-2003]
A.
The company shall provide PEG access channels in accordance
with Section 595.4 of the PSC rules.
B.
If, at any point during the term of this agreement, the
Town Board formally approves an expenditure by the municipality of funds for
the purpose of purchasing all necessary cameras, modulators, signal transmission
and other equipment that would allow the municipality to originate and cablecast
programming on the system live from Town Hall, and the municipality does in
fact purchase such equipment for this purpose, the company shall commit to
construct a reverse feed line from the company’s system into the Town
Hall located at One Town Hall Plaza. Such construction shall be completed
within a reasonable amount of time (considering such factors as availability
of materials an seasonal conditions) following the Town’s purchase of
equipment and a request by the Town of the company to commence construction.
[1]
Editor’s Note: Former § A213-19, Rates for service,
was repealed 5-5-1986 by L.L. No. 3-1986.
A.
No rates or charges shall be regulated by or for the
municipality contrary to or inconsistent with applicable federal statutes
or the rules and regulations of the FCC, including, without limitation, rates
or charges concerning cable television service.
B.
The company shall not illegally discriminate against
individuals in the establishment and application of rates and charges for
video programming or other communication services available to generally all
subscribers. This provision is not intended to and shall not prohibit:
(1)
Sales, promotions or other discounts which the company
deems necessary or desirable to market its video programming and other services;
(2)
The company from providing any of its services (and at
such rates) as it shall deem necessary or desirable to any or all subscribers
where cable television service or any similar service is offered or provided
in competition with the company’s services; or
(3)
The company from discounting rates to persons who subscribe
to any services on a reasonable basis or discounting rates to persons who
subscribe to any services that are provided on a bulk billed basis.
[1]
Editor’s Note: Former § A213-20, Rate increases, was
repealed 5-5-1986 by L.L. No. 3-1986.
[Amended 5-5-1986 by L.L. No. 3-1986; 3-12-1991
by L.L. No. 6-1991; 4-6-1998 by L.L.
No. 2-1998; 12-8-2003 by L.L. No. 12-2003]
The franchise herein granted and the rights arising hereunder are for
a term commencing on October 20, 2003, and expiring 10 years there from.
[Amended 9-21-1987 by L.L. No. 9-1987; 2-8-1988; 12-8-2003
by L.L. No. 12-2003]
A.
Where, in any place within the municipality, all of the
electric and telephone utilities shall be located underground, it shall be
the obligation of the company to locate or to cause its property to be located
underground within such places. The company shall have an affirmative obligation
to relocate aerial lines underground at the same time as electric and telephone
utilities are so required. If the company shall in any instance be unable
to locate or relocate any part of its property underground, then the Supervisor
of the municipality, on being apprised of the facts thereof, shall permit
such property to remain aboveground even though other facilities in the area
may be placed underground. However, any such permission shall be on such conditions
as the Supervisor of the municipality may reasonably require to protect the
public health and safety.
B.
In any area having fewer than 20 residential dwelling
units per mile. the company shall have the right to extend service thereto,
and it shall be entitled to and shall receive from each subscriber therein,
as a condition precedent to its obligation to commence construction, a contribution
in aid of construction in such amount as shall be determined by application
of the PSC formula provided for in Part 595.5(b)(2) of the rules and regulations
on cable television. The company shall provide cable service throughout the
territorial and jurisdictional limits of the municipality upon the lawful
request of any and all persons who are owners or tenants of residential real
property within the territorial and jurisdictional limits of the municipality
within a reasonable time thereafter. The company shall not unlawfully discriminate
against any such person as to the availability, maintenance, and pricing of
such cable services.
[Amended 12-8-2003 by L.L. No. 12-2003]
A.
At the written request of the municipality, the company
shall provide a single outlet of basic with standard service(s) without charge
to each school, public library, firehouse, and municipally owned building
which is occupied for governmental purposes, or as may be reasonably requested
by the municipality. The point chosen by the company for connection of such
wire to the institution shall be no further than 200 feet from the closest
feeder line on the cable television system. Additional cable distribution
at these locations shall be at cost and the responsibility of the municipality
or school.
B.
Consistent with Section 596.8 of the PSC rules, the company
shall maintain the following records:
(1)
A record of all service orders received regarding subscriber
complaints including the date and time received, nature of complaint, date
and time resolved, and action taken to resolve.
(2)
A log showing the date, approximate time and duration,
type and probable cause of all cable system outages, whole or partial, due
to causes other than routine testing or maintenance.
C.
The municipality reserves the right to inspect any and
all records the company is required to maintain pursuant to this franchise
upon reasonable notice and during normal business hours. The company shall
promptly make such materials available at its local business office.
[Added 5-5-1986 by L.L. No.
3-1986; amended 2-12-1987 by L.L.
No. 1-1987]
A.
It is the express policy of the Town of Clifton Park that CATV shall be provided to every person of the Town of Clifton Park who desires such service. In furtherance of this general purpose, the company shall extend service to all roads located within the Town which contain 10 homes per mile in accordance with the standard line extension policy of the company and in accordance with Subsection B of this section. Attached hereto as Schedule A is a list of the roads in the Town which are presently not offered CATV service and a projection of the cost to service those roads which have a density of approximately 10 homes per linear mile. Attached to Schedule B is a time schedule of the extension of such CATV service.[1] The extension of CATV service to the areas listed on Schedule
A in accordance with the time schedule provided for in Schedule B is a material
part of this franchise, and failure to extend such CATV service in accordance
with the schedule shall be considered a material breach of the franchise which
would, at the discretion of the Town Board and upon due notice to the company
and the reasonable demonstration of noncompliance on the part of the company
at a public hearing scheduled for such purpose, warrant the immediate termination
of this franchise.
[1]
Editor's Note: This schedule is on file in the Town Clerk's office.
B.
The Town of Clifton Park, in furtherance of its general
purpose of extending CATV service to all residents of the Town, has specifically
provided in this franchise renewal for the extension of such service to all
roads and streets contained within the Town which have a density equal to
10 households per linear mile or greater. The Town of Clifton Park agrees
to pay for the cost of such extension in accordance with the standard line
extension policy of the company. A copy of the line extension policy is annexed
hereto as Schedule C.[2]
[2]
Editor's Note: This schedule is on file in the Town Clerk's office.
C.
As CATV Service is extended to the roads and streets
which are presently without service, the company shall notify the Town of
Clifton Park with a completion of such line extension of that road or street
and the Town shall be obligated to pay in accordance with the standard line
extension formula, the portion of the cost of said line extension as provided
for by the formula, out of the two-percent additional increase in the franchise
fee provided for in this franchise renewal. The two percent additional increase
in franchise fee shall be passed through to subscribers and appear as a separately
stated charge on subscribers' statements. It is understood that the timing
of the line extension provided for in Schedule B shall be adjusted in an appropriate
fashion so that the Town of Clifton Park is able to pay for such line extension
out of the additional two-percent franchise fee provided for in this franchise
renewal. In this regard, in the event that any line extension provided for
in Schedule B is not performed in accordance with the time schedule as set
forth on Schedule B, due to the request of the Town of Clifton Park, such
failure to extend service shall not be a default by the company of the terms
of this franchise renewal.
D.
The Town may, at its option, provide for additional extensions
of CATV service to other areas of the Town by the company, by resolution,
local law or otherwise, during the term of this franchise, with the same arrangement
for the payment of such extension pursuant to the standard line extension
policy by the Town of Clifton Park.
E.
In the event that the funding program for the extension
of cable television service as provided in this section is for any reason
held invalid or unconstitutional by any court or regulatory agency of competent
jurisdiction, the company shall be relieved of any obligation or requirement
to extend CATV service to those areas where there are 10 homes or less per
linear mile.
F.
The extension of services provided for above shall be
made by the company, with no additional charge to the subscribers located
in such areas for installation, other than as provided for above. In addition
to the monthly charge proposed by the company for such CATV service, the company,
for a period of five years after service is extended to a road or street,
shall have the right to charge each subscriber on the road or street an additional
monthly charge, in accordance with the attached Schedule B, which will be
for providing such service. (The additional monthly charge will be based on
the number of subscribers per linear mile for that road or street as shown
on Schedule D.[3]) Five years after CATV service is provided to a street or road,
the company's right to charge this additional monthly fee shall automatically
terminate. It is further provided that all subscribers who have previously
paid for line extensions in accordance with the line extension formula of
the company will be entitled to the same benefits afforded to the residents
of roads who receive CATV service pursuant to this line extension policy and,
specifically, will be entitled to a reduction in their monthly service charge
to the basic rate five years after the adoption of this local law. The company
shall furnish progress reports to the Town Board every 90 days commencing
July 1, 1986, indicating whether it is complying with the CATV service extension
construction schedule attached to Schedule B.
[3]
Editor's Note: Schedule D is on file in the Town Clerk's office.
The company will conform to all federal and state laws and regulations,
and any modification of federal or state franchise standards shall, to the
extent applicable, be considered as part of the franchise as of the effective
date of the amendment and shall be incorporated in the franchise by specific
amendments thereto by action of the Town Board within one year from the effective
date of the amendment or at the time of renewal of the franchise, whichever
occurs first.
The company shall not allow its cable and other operations to interfere
with television reception or persons not served by the company, nor shall
the system interfere with, obstruct or hinder in any manner the operation
of the various utilities serving the residents of the Town. Neither the company,
its subsidiaries nor its employees shall engage in the business of selling,
renting or leasing television or other receivers which make use of signals
transmitted by its system, nor shall the company or its subsidiaries or employees
engage in the servicing of receivers owned or leased by its subscribers or
the sale of parts for the same.
[Amended 5-5-1986 by L.L.
No. 3-1986]
A.
The company will furnish one free drop to each municipal
building, provided that it is so authorized by the Town, and it will also
furnish one free drop, upon request, to all public schools, public fire houses,
police stations, rescue squads, public works facilities, libraries, hospitals,
nonprofit day-care centers and the Community Center and all other educational,
charitable and governmental facilities now existing or to be built in the
Town during the term of the franchise. There shall be no monthly service charge
for said service and no charge for normal installation. However, installation
requiring extra equipment and personnel will be charged on a cost-plus-fifteen-percent
basis. It shall be necessary, however, for the company to demonstrate to the
satisfaction of the Town Board that extra equipment and personnel were necessary
to effect the installation, in order to charge for the installation of such
service.
B.
The company shall furnish a progress report to the Town
Board on or before July 15, 1986, indicating whether the free drops have been
completed in accordance with this section.
A.
The Town shall not prohibit or limit any program or class
or type of program or impose discriminatory or preferential franchise fees
in any manner that would tend to encourage or discourage programming of any
particular nature, directly or indirectly.
B.
The company shall not prohibit or limit any program or
class or type of program presented over a leased channel or any channel made
available for public access or educational purposes.
Neither the company nor its officers, directors or employees shall be
liable for damages arising from any obscene or defamatory statements or actions
or invasion of privacy occurring during any program transmitted by the company
which is not originated or produced by the company.
[Amended 12-8-2003 by L.L. No. 12-2003]
A.
Severability.
(1)
If any section, subsection, sentence, clause, paragraph or portion
of this franchise (as well as any law or regulation applicable or purported
to be applicable to this franchise) is for any reason held to be invalid,
void, unenforceable, illegal or unconstitutional by any agency or court of
competent jurisdiction, such law, regulation or provision of this franchise
shall be deemed separate and distinct and shall have no affect on the validity
of the remaining portions hereof.
(2)
With the exception of material provisions as defined in this
section, should any other provision of this franchise be held invalid by a
court of competent jurisdiction or rendered a nullity by federal or state
legislative or regulatory action, the remaining provisions of this franchise
shall remain in full force and effect.
(3)
For the purpose of this section, material provisions include
but are not limited to be those establishing the municipality’s right
to:
(a)
Collect from the franchisee the franchise fee as calculated under
this agreement;
(b)
Require that the franchisee maintain or improve the system contemplated
by this agreement;
(c)
Require public educational and government access to the cable
system; and
(d)
Establish reasonable consumer protection services.
B.
Governing law.
(1)
To the extent not inconsistent with or contrary to applicable
federal law, the terms of this franchise shall be governed and construed in
accordance with the laws of the State of New York. The parties hereby acknowledge
and agree that any provisions of this franchise or any existing or future
state or local laws or rules that are inconsistent with or contrary to any
applicable federal law, including the Cable Act, as the same may be amended,
are and shall be prohibited, preempted and/or superseded to the extent of
any inconsistency or conflict with any applicable federal laws.
(2)
All terms and conditions of the franchise are subject to federal
and state law.
C.
All terms and conditions of the franchise are subject to the
approval of the PSC.
D.
The Supervisor, or a designated municipality official, will be
responsible for the continuing administration of the rights and interests
of the municipality in the franchise and such person will be the addressee
for all communications of the company with the municipality unless the company
is otherwise directed. The municipality shall notify the company in a timely
fashion as to who is administering the rights and interests of the municipality
if other than the Supervisor, and that person’s or agency’s address.
It is the municipality’s responsibility to notify the company of any
change in the designated person.
E.
Expressly reserved to the municipality is the right to adopt,
in addition to the provisions of this franchise and existing laws, ordinances,
and regulations, such additional laws and regulations as it may find necessary
in the exercise of its police power; provided, however, that such regulations
are reasonable and not materially in conflict with the privileges granted
in the franchise.
F.
The company shall file requests for all necessary operating authorizations
with the PSC and the FCC within 60 days of the effective date of this franchise.
G.
The company shall not refuse to hire or employ and shall neither
bar nor discharge from employment, and shall not discriminate against any
person in compensation, terms, or conditions of employment because of age,
race, creed, color, national origin or sex.
H.
Upon reasonable notice and during normal business hours, the
municipality shall have the right to inspect all pertinent books, records,
maps, plans, financial statements, and other like materials of the company
which relate to the company’s compliance with this franchise or applicable
state or federal law; provided, however, that none of the municipality, its
officers, employees, executives, elected officials, agents nor any other person
shall have any right to inspect or review “personally identifiable information”
of or concerning any subscribers, as that term is now or hereafter defined
pursuant to Section 631 of the Communications Act. In the event of the improper
collection or disclosure of personally identifiable information under either
the Communications Act or other applicable laws by the municipality or any
of its employees or agents, and notwithstanding any other provision to the
contrary in this franchise, the municipality shall be fully liable for any
and all damages, costs, and expenses arising out of such improper collection
or disclosure and shall reimburse, indemnify and hold harmless the company
therefrom.
[Amended 5-5-1986 by L.L.
No. 3-1986]
The Town Board of the Town of Clifton Park shall be responsible for
the continuing administration of the franchise and shall have responsibility
for implementation of a complaint procedure, as the Town Board sees fit to
so provide.
[Amended 12-8-2003 by L.L. No. 12-2003]
A.
Payment for cable television service rendered to subscribers
is due and payable in advance. A late charge, as determined by the company,
shall be applied to delinquent accounts.
B.
Payment for equipment provided by the company to subscribers
and the installation, repairs and removal thereof shall be paid in accordance
with the company’s standard and customary practices and applicable rules
and regulations of the FCC.
C.
The company shall have the right to disconnect delinquent subscribers
and charge such subscribers therefor a disconnection charge as determined
by the company, where:
D.
Notice of the company procedures for reporting and resolving
billing disputes and the company’s policy and the subscribers rights
in regard to “personally identifiable information,” as that term
is defined in Section 631 of the Communications Act, will be given to each
subscriber at the time of such person’s initial subscription to the
cable television system services and thereafter to all subscribers as required
by federal or state law.
E.
The company shall offer to, and shall notify in writing, the
subscribers of the availability of locking program control devices which enable
the subscriber to limit reception of obscene or indecent programming in the
subscriber’s residence. Any subscriber requesting such device shall
pay the company in full upon the receipt of the same the charge imposed by
the company therefore. The notice provided by the company shall be given to
new subscribers at the time of installation and thereafter to all subscribers
as required by the federal or state law.
F.
The company shall give credit for cable television system outages
of four hours or more in accordance with PSC rules.
G.
In accordance with the applicable requirements of federal and
state laws, the company shall provide written notice of any increases in rates
or charges for any cable television service.
H.
It is agreed that all cable television service offered to any
subscribers under this franchise shall be conditioned upon the company having
legal access to any such subscribers’ dwelling units or other units
wherein such service is to be provided.
I.
The company shall comply with service standards set forth in
Sections 590.60 of the PSC.
[Amended 12-8-2003 by L.L. No. 12-2003]
The company shall file petitions for certificates of confirmation with
the New York State Commission on Cable Television and the Federal Communications
Commission within 60 days from the date this franchise is awarded. Copies
of all petitions and applications submitted by the company to the FCC or the
Public Service Commission shall simultaneously be submitted to the Town Clerk.
[Amended 12-8-2003 by L.L. No. 12-2003]
A.
The municipality may revoke this franchise and all rights
of the company hereunder in any of the following events or for any of the
following reasons:
(1)
The company fails after 45 days’ written notice
from the municipality to substantially comply or to take reasonable steps
to comply with a material provision or material provisions of this franchise.
Notwithstanding the above, should the company comply or take said reasonable
steps to comply with said forty-five-day notice, the right to revoke this
franchise shall immediately be extinguished; or
(2)
The company is adjudged as bankrupt; or
(3)
The company attempts or does practice a material fraud
or deceit in its securing of this franchise or in the conduct of its obligations
under this franchise.
B.
Notwithstanding the above, no revocation shall be effective
unless and until the municipality shall have adopted an ordinance or resolution
setting forth the cause and reason for the revocation and the effective date
thereof, which ordinance or local law shall not be adopted until the expiration
of 60 days from the date of delivery of written notice to the company specifying
the reasons for revocation and an opportunity for the company to be fully
and fairly heard on the proposed adoption of such proposed ordinance or local
law. If the revocation as proposed therein depends on a finding of fact, such
finding of fact shall be made by the municipality only after an administrative
hearing providing the company with a full and fair opportunity to be heard,
including, without limitation, the right to introduce evidence, the right
to the production of evidence, and to question witnesses. A transcript shall
be made of such hearing. The company shall have the right to appeal any such
administrative decision to a state court or a federal district court as the
company may choose, and the revocation shall not become effective until any
such appeal has become final or the time for taking such appeal shall have
expired.
C.
In no event, and notwithstanding any contrary provision
of this section or elsewhere in this franchise, shall this franchise be subject
to revocation or termination, or the company be liable for noncompliance with
or delay in the performance of any obligation hereunder, where its failure
to cure or to take reasonable steps to cure is due to acts of God or other
events beyond the control of the company. The company shall be excused from
its obligations herein during the course of any such events or conditions,
provided that such obligations shall be completed as soon as or if practicable
after the cessation of the delaying event. The time specified for performance
of the company's obligations hereunder shall automatically extend for a period
of time equal to the period of the existence of any such events or conditions
and such reasonable time thereafter as shall have been necessitated by any
such events or conditions, provided that such obligations shall be completed
as soon as or if practicable after the cessation of the delaying event.
D.
Nothing contained in this franchise is intended to or shall confer
any rights or remedies on any third parties to enforce the terms of this franchise.
A.
If any section, subsection, clause, sentence, phrase
or portion of this local law is for any reason held invalid or unconstitutional
by any court of competent jurisdiction, such portion shall be deemed a separate,
distinct and independent provision and such holding shall not affect the validity
of the remaining portions hereof.
B.
If any provision of this local law is deemed to be invalid or unenforceable, by final court order, then this franchise renewal shall be interpreted with only such unenforceable or invalid provision deleted, and all other terms and conditions of this franchise renewal shall remain in full force and effect. Notwithstanding the above, the provisions of § A213-33 of the franchise shall continue to remain in full force and effect.
[Added 5-5-1986 by L.L. No.
3-1986]
The company shall not be relieved of its obligations to comply with
any of the provisions of this franchise by reason of any failure of the Town
to enforce prompt compliance.
All regulations, or parts thereof, in conflict with the provisions of
this regulation are hereby repealed.
[Added 12-8-2003 by L.L. No. 12-2003]
A.
This franchise supersedes all prior negotiations between the
parties hereto and shall be binding upon and inure to the benefit of the parties
hereto and each of their respective successors and permitted assigns. This
franchise may be amended (except as otherwise expressly provided for herein)
only by an agreement in writing signed by duly authorized persons on behalf
of both parties. To the extent required by state law, amendments hereto shall
be confirmed or approved by the PSC. Changes in rates charged or cable television
services rendered by the company shall not be deemed an amendment to this
franchise.
B.
This franchise may be executed in one or more counterparts, all
of which taken together shall be deemed one original.
C.
The headings of the various sections of this franchise are for
convenience only, and shall not control or affect the meaning or construction
of any of the provisions of this franchise.
D.
The rights and remedies of the parties pursuant to this franchise
are cumulative and shall be in addition to and not in derogation of any other
rights or remedies which the parties may have with respect to the subject
matter of the franchise.
