OVS AGREEMENT — A contract entered into in accordance
with the provisions of this chapter between the City of Cohoes and an OVS
franchisee, setting forth the terms and conditions under which the franchise
will be exercised.
A.
Initial and renewal franchise: application.
(1)
A written application shall be filed with the City of
Cohoes for grant of an initial or renewal franchise.
(2)
To be acceptable for filing, a signed original of the application shall be submitted together with six copies. The application must conform to any applicable request for proposals and contain all information required under § 130-31B. All applications shall include the names and addresses of persons authorized to act on behalf of the applicant with respect to the application.
B.
Contents of applications. The City of Cohoes' Mayor
or his/her designee may specify the information that must be provided in connection
with a request for proposals or an application for an initial or renewal franchise.
At a minimum, each application must identify the applicant, where it plans
to construct its system, and the system construction schedule; show that the
applicant will provide adequate channels, facilities and other support for
public, educational and government use (including institutional network use)
of the OVS; and show that the applicant is financially, technically and legally
qualified to construct and operate the OVS.
C.
Procedure for applying for grant of a franchise:
(1)
A person may apply for an initial or renewal franchise
on his/her own initiative or in response to a request for proposals. Upon
receipt of an application, the City of Cohoes shall promptly proffer the applicant
a proposed OVS agreement, which shall be mailed to the person requesting its
issuance and made available to any other interested party. The City of Cohoes
may request such additional information as it deems appropriate.
(2)
An applicant shall respond to requests for information
completely, and within the time directed by the City of Cohoes, and must strictly
comply with procedures, instructions, and requirements the City of Cohoes
may establish.
(3)
An application may be rejected if it is incomplete or
the applicant fails to follow procedures or respond fully to information requests.
D.
Evaluation. In evaluating a franchise application, the
City of Cohoes may consider the following:
(1)
The extent to which the applicant has substantially complied
with the applicable law and the material terms of any existing City of Cohoes
OVS franchise;
(2)
Whether the applicant has the financial, technical, and
legal qualifications to hold an OVS franchise;
(3)
Whether the application satisfies any minimum requirements
established by the City of Cohoes for, or will otherwise provide, adequate
public, educational, and governmental use capacity, facilities, or financial
support (including with respect to institutional networks);
(4)
Whether issuance of a franchise would require replacement
of property or involve disruption of property, public services, or use of
the public rights-of-way; and
(5)
Whether the approval of the application may eliminate
or reduce competition in the delivery of cable service in the City of Cohoes.
E.
Issuance. If the City of Cohoes finds that it is in the
public interest to issue a franchise considering the factors above and such
other matters as it is required or entitled to consider, and subject to the
applicant's entry into an appropriate OVS agreement, it shall issue a
franchise. Prior to deciding whether or not to issue a franchise, the City
of Cohoes may hold one or more public hearings or implement other procedures
under which comments from the public on an application may be received.
F.
Legal qualifications. In order to be legally qualified:
(1)
The applicant must be willing to comply with the provisions
of this chapter and applicable laws and to comply with such requirements of
an OVS agreement as the City of Cohoes may lawfully require.
(2)
The applicant must not hold a cable system franchise
or have pending an application for a cable system franchise.
(3)
The applicant must not have had any cable system or OVS
franchise validly revoked (including any appeals) by the City of Cohoes within
three years preceding the submission of the application.
(4)
The applicant may not have had an application for an
initial or renewal cable system franchise to the City of Cohoes 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.
(5)
The applicant may not have had an application for an
initial or renewal OVS franchise denied on any grounds within three years
of the applications; and
(6)
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 of Cohoes and the subscribers
or to substantially comply with its obligations.
(7)
The applicant must have the necessary authority under
New York and federal law to operate an OVS and must be certified by the FCC
under Section 653 of the Cable Act.
(8)
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.
(9)
For purposes of § 130-31F(2) through F(5), the term "applicant" includes any affiliate of applicant.
G.
Exception. Notwithstanding § 130-31F, an applicant shall be provided a reasonable opportunity to show that a franchise should issue even if the requirements of § 130-31F(4) through F(5) 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.
A.
City of Cohoes approval required. No transfer shall occur
without prior written notice to and approval of the City of Cohoes Council.
B.
Application.
(1)
A franchisee shall promptly notify the City of Cohoes
of any proposed transfer and submit an application for its approval.
(2)
The City of Cohoes' Mayor or his/her designee may
specify information that must be provided in connection with a transfer application.
At a minimum, an application must describe the entities involved in the transaction
and the entity that will hold the franchise; describe the chain of ownership
before and after the proposed transaction; show that the entity that will
hold the franchise will be legally, financially, and technically qualified
to do so; attach complete information on the proposed transaction, including
the contracts or other documents that relate to the proposed transaction and
all documents, schedules, exhibits, or the like referred to therein; and attach
any shareholder reports or filings with the Securities and Exchange Commission
(SEC) that discuss the transaction.
(3)
For the purposes of determining whether it shall consent
to a transfer, the City of Cohoes or its agents may inquire into all qualifications
of the prospective transferee and such other matters as the City of Cohoes
may deem necessary to determine whether the transfer is in the public interest
and should be approved, denied, or conditioned. If the transferee or franchisee
refuse to provide information, or provide incomplete information, the request
for transfer may be denied.
C.
Determination by City of Cohoes.
(1)
In deciding whether a transfer application should be
granted, denied or granted subject to conditions, the City of Cohoes may consider
the legal, financial, and technical qualifications of the transferee to operate
the OVS; whether the incumbent OVS operator is in compliance with its OVS
agreement and this chapter and, if not, the proposed transferee's commitment
to cure such noncompliance; whether the transferee owns or controls any other
OVS or cable system in the City of Cohoes and whether operation by the transferee
may eliminate or reduce competition in the delivery of cable service in the
City of Cohoes; and whether operation by the transferee or approval of the
transfer would adversely affect subscribers, the public, or the City of Cohoes'
interest under this chapter, the OVS agreement, or other applicable law.
(2)
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
of Cohoes; 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. The proposed
transferee shall pay all reasonable costs incurred by the City of Cohoes in
reviewing and evaluating the applications.
A.
PEG access. No OVS operator shall be issued a franchise,
or may commence construction of an OVS system, until 1) it agrees to match
in all respects the highest PEG obligations borne by any cable operator in
the City of Cohoes; or 2) it agrees to PEG obligations acceptable to the City
of Cohoes.
B.
Institutional network. Any OVS operator that constructs
an I-Net must match in all respects the highest I-Net obligations borne by
any cable operator in the City of Cohoes, unless it agrees to alternative
I-Net obligations acceptable to the City of Cohoes.
C.
Construction provisions. Every OVS agreement shall specify
the construction schedule that will apply to any required construction, upgrade,
or rebuild of the OVS. The schedule shall provide for prompt completion of
the project, considering the amount and type of construction required.
D.
Testing. Each OVS 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 this chapter or a franchise.
E.
Consumer protection provisions. Every franchisee must
satisfy customer service consumer protection requirements established from
time to time under state or focal law and applicable to OVS.
If a franchisee's FCC certification is revoked or otherwise terminates
as a result of the passage of time or as a matter of law, the City of Cohoes
may revoke the OVS franchise after a hearing. The OVS franchise may also be
revoked if federal regulations or statutory provisions governing OVS are declared
invalid or unenforceable or are repealed.
The City of Cohoes may regulate a franchisee's rates and charges
except as prohibited by law, and may do so by amendment to this chapter, separate
ordinance, by amendment to an OVS agreement, or in any other lawful manner.
A.
OVS operators. In lieu of the franchise fee required by Article III, an OVS franchisee shall pay a fee of 5% of the gross revenues of the franchisee, its affiliates or any OVS operator of the OVS.
B.
Persons leasing OVS capacity.
(1)
A person leasing capacity from an OVS operator, other than a person whose revenues are included in the payment made pursuant to this chapter, shall pay the City of Cohoes a fee in lieu of the franchise fee required by § 130-26 of 5% of the gross revenues of such person.
(2)
Notwithstanding the foregoing, where the franchisee charges
a person, other than an affiliate, to use its OVS (the "use payments"); and
that person recovers those use payments through charges to its subscribers
that are included in that person's gross revenues; and that person fully
recovers the use payments through the charges to its subscribers and pays
a fee on those charges; then the franchisee may deduct from its gross revenues
the use payments it receives from that person.
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 arrangement that would effectively
prevent other persons from using the OVS to compete in the delivery of cable
services with a franchisee or its affiliates.