[HISTORY: Adopted by the Village Board of Trustees of the Village
of Pleasantville: Art. I, 5-23-1994 by L.L. No.
14-1994; Art. II, 3-10-1995 by L.L. No.
3-1995. Amendments noted where applicable.]
[Adopted 5-23-1994 by L.L. No. 14-1994]
The Village of Pleasantville shall follow the Federal Communications
Commission (FCC) rate regulations in its regulation of the basic service rates
and charges of Continental Cablevision and/or any other franchise hereafter
operating in the Village of Pleasantville, notwithstanding any different or
inconsistent provisions in any cable franchise.
A.Â
A franchisee that is notified that its basic service
and equipment rates are subject to rate regulation shall file, within 30 days
of notification (but not earlier than November 15, 1993), a submission (hereinafter
the "rate filing") as required by FCC rate regulations. The franchisee's
rates affected by such notice shall not be subject to increase except with
the prior approval of the village or as provided by FCC rate regulations.
B.Â
Every rate filing shall be submitted to the Village Clerk,
Village Hall, 48 Wheeler Avenue, Pleasantville, New York 10570. Four copies
of the filing are required to be submitted. If the operator claims any part
of the filing is proprietary, it shall file four additional copies, which
shall omit the proprietary information.
C.Â
If external costs are included in the rate filing and/or
if different rates for classes of customers are proposed, the rate filing
is required to show how the rates are consistent with FCC rate regulations.
A franchise shall respond to requests for information from the village by
deadlines established by the village.
D.Â
If the village finds that the initial rates and/or any
subsequent rate increases are within the FCC rate regulation standards, the
rates shall be effective 30 days after submission of the rate filing.
E.Â
If the village is unable to determine whether the rate
at issue is within the FCC's benchmark standards, based on the material
submitted by the franchisee, or if the franchisee submitted a cost-of-service
showing, the village may take an additional period of time to make a final
determination and toll the effective date of the proposed rates for a commensurate
period. The village may take an additional 90 days if it needs more time to
ensure that a rate is within the FCC's benchmark rate standards. The
village may take an additional 150 days to evaluate a cost-of-service showing.
The village shall issue a written decision regarding its invocation of the
additional time period and shall so notify the franchisee. If no action is
taken within the above-referenced time periods, the proposed rates shall go
into effect, subject to subsequent refund orders, if the village later issues
a decision disapproving any portion of the proposed rates.
F.Â
The Village Board of Trustees shall issue a written decision
on its findings in compliance with the FCC rate regulations. If rates are
in excess of the FCC rate regulations, the rates may be reduced by the village
pursuant to applicable FCC rate regulations.
G.Â
After the initial rate regulation procedures are followed,
any franchisee shall, in conjunction with each change in basic service rates
and charges, conform to FCC rate regulations.
H.Â
Every rate approved or prescribed shall be subject to
further reduction and refund, as allowed by FCC rate regulations.
I.Â
A franchisee shall be subject to all applicable penalties
and forfeitures under the village's franchise and FCC rate regulations.
J.Â
A franchisee is required to serve the village with all
filings made by the franchisee to the FCC related to the regulation of basic
service rates and charges in the village.
In connection with such regulation and except where nondisclosure of
information is authorized and necessary, the village shall provide for public
inspection of the rate filing and ensure a reasonable opportunity for consideration
of the views of interested parties, including but not limited to the following:
A.Â
After receiving a rate filing, the Village Clerk or his
or her designee shall promptly publish a public notice that a filing has been
received and that, except for those parts which may be withheld as proprietary
pursuant to federal and/or state law, it is available for public inspection.
The notice shall state that interested parties may comment on the filing and
shall provide for any and all interested parties to submit written comments
on the filing to the Village Clerk or his or her designee during the comment
period. The comment period shall be 10 days and shall commence on the date
the notice is provided. The franchisee may submit responses to comments by
interested parties during the comment period and for five days thereafter.
B.Â
If the village extends the period for its review by 90
days for a benchmark showing or 150 days for a cost-of-service showing or
for a longer period as allowed by FCC rate regulations, the period for comment
by interested parties shall be extended for a twenty-day period commencing
on the day the written decision extending the time period is issued. The franchisee
may respond to comments by interested parties during such comment period and
for five days thereafter.
C.Â
If the village prepares a public document analyzing the
rate filing, such document shall be made available to the franchisee. The
franchisee shall have three days or such longer period as specified by the
village to file a response with the village. Prior to prescribing a rate or
a refund, the village shall provide the franchisee with an opportunity to
comment on the proposed rate or refund.
D.Â
Notice of the public comment period for interested parties
shall be provided in accordance with local law.
The Mayor or his or her designee is authorized on behalf of the village
to execute and file with the FCC such submissions as are now or may hereafter
be required by FCC rate regulations in order to regulate basic service rates
and charges and to establish any additional procedures for the village and
the franchisee in conformity with FCC rate regulations. The village may utilize
a rate consultant to advise it on proposed rate changes and to assist it in
the procedures and the standards for review adopted by the FCC. A rate consultant
may be any person who has sufficient background and experience, in the sole
opinion of the village, to properly evaluate and analyze rates and charges.
A.Â
If these provisions or any request for information requires
the production of proprietary information, the franchisee is required to produce
the information. However, a franchisee may request that specific, identified
portions of its response be treated as confidential and withheld from public
disclosure. The franchisee must state the reasons why the information should
be treated as proprietary and the facts that support those reasons. The request
for confidentiality will be granted if the village determines that nondisclosure
is consistent with the provisions of the Freedom of Information Act, 5 U.S.C.
§ 552, FCC rate regulations and the New York State law, where applicable.
If the franchisee requests confidentiality and the request is denied, where
the franchisee is proposing a rate increase, it may withdraw the proposal,
in which case the allegedly proprietary information will be returned to it;
or the franchisee may seek review within five working days of the denial in
any appropriate forum. Release of the information will be stayed until such
time as disclosure is required by law.
B.Â
A request by any interested person or party for public
disclosure and inspection of material withheld by the village as proprietary
shall be governed by the aforementioned federal and state law, where applicable.
The village will notify the franchisee of the disposition of any request for
public disclosure of information claimed by the franchisee and withheld by
the village as proprietary information. The requesting party or the franchisee
may seek review of any decision by the village regarding proprietary information
by filing an appeal with the appropriate form, as required by law. Disclosure
of the information in question will be stayed pending resolution of any appeal.
[Adopted 3-10-1995 by L.L. No. 3-1995]
A.Â
The Village of Pleasantville finds that the development
of cable television and communications systems has the potential of having
great benefit and impact upon the people of Pleasantville. Because of the
complex and rapidly changing technology associated with cable television,
the village further finds that the public convenience, safety and general
welfare can best be served by establishing regulatory powers which should
be vested in the village or such persons as the village shall designate. It
is the intent of this article and subsequent amendments to provide for and
specify the means to attain the best possible public interest and public purpose
in these matters, and any franchise issued pursuant to this article shall
be deemed to include this finding as an integral part thereof.
B.Â
Further, it is recognized that cable communications systems
have the capacity to provide not only entertainment and information services
to the village's residents, but can provide a variety of broadband, interactive
communications services to institutions and individuals. Many of these services
involve village agencies and other public institutions by providing governmental,
educational or health care communications.
C.Â
For these purposes, the following goals underlie the
regulations contained herein:
(1)Â
Communications services should be provided to the maximum
number of village residents.
(2)Â
The system should be capable of accommodating both the
present and reasonably foreseeable future communications needs of the village.
(3)Â
The system should be improved and upgraded during the
franchise term so that the new facilities necessary for the operation of this
system shall be integrated to the maximum extent possible with existing facilities
as specified in the franchise.
(4)Â
The communications system authorized by this article
shall be responsive to the needs and interests of the local community and
shall provide the widest possible diversity of information sources and services
to the public.
This article shall be known and may be cited as the "Pleasantville Cable
Communication Regulatory Local Law," and it shall become a part of the local
laws of the village.
A.Â
When not inconsistent with the context, words used in
the present tense include the future, and words in the plural number include
the singular number. The word "shall" is mandatory, and "may" is permissive.
B.Â
BASIC SUBSCRIBER TELEVISION SERVICES
CABLE COMMUNICATIONS SYSTEM (ALSO REFERRED TO AS "SYSTEM")
(1)Â
(2)Â
(3)Â
(4)Â
CABLE SERVICE
CHANNEL
CLOSED CIRCUIT OR INSTITUTIONAL SERVICE
COMMERCIAL SUBSCRIBER
COMMUNICATIONS POLICY ACT OR CABLE ACT
CONVERTER
DEDICATED INSTITUTIONAL ACCESS CHANNELS
DISCRETE CHANNEL
DROP
EDUCATIONAL ACCESS CHANNEL
FAIR MARKET VALUE
FCC
FRANCHISE
FRANCHISE AREA
FRANCHISEE OR GRANTEE
FRANCHISE FEE
(1)Â
(2)Â
(3)Â
(4)Â
GOVERNMENT ACCESS
GRANTOR
GROSS ANNUAL REVENUES
INSTALLATION
LEASED ACCESS CHANNEL OR COMMERCIAL ACCESS CHANNEL
MONITORING
NARROWCASTING
NEW YORK STATE COMMISSION
PERSON
PLANT MILE
PUBLIC ACCESS CHANNEL
PUBLIC WAY OR PUBLIC RIGHTS-OF-WAY
REASONABLE NOTICE
RESIDENT
RESIDENTIAL SUBSCRIBER
SALE
SCHOOL
SERVICE AREA
STANDARD SERVICE PACKAGE
STATE
SYSTEM FACILITIES OR FACILITIES
TRANSFER
TRUNK LINE
UPSTREAM SIGNAL
USER
VILLAGE BOARD OF TRUSTEES
For the purpose of this article, the following terms,
phrases, words and their derivations shall have the meanings given herein.
Words not defined shall be given their common and ordinary meanings.
A separately available basic service tier to which subscription is
required for access to any other tier of service. Such basic service tier
shall, at a minimum, consist of the following: all signals carried in fulfillment
of Cable Act §§ 614 and 615; any public, educational and governmental
access programming required in this article or the franchise; any signal of
any television broadcast station that is provided by the cable operator to
any subscriber, except a signal which is secondarily transmitted by a satellite
carrier beyond the local service area of such station. Additional signals
may be added to the basic tier by the grantee.
A facility consisting of a set of closed transmission paths and associated
signal generation, reception and control equipment that is designed to provide
cable service, which includes but is not limited to video programming and
which is provided to multiple subscribers within a community, but 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 under common ownership, control or management, unless such facility
or facilities use any public rights-of-way;
A facility of a common carrier which is subject, in whole or in part,
to the provision of Title II of the Cable Act, except that such facility shall
be considered a cable system to the extent that 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.
The one-way transmission to subscribers of video programming or other
programming service and subscriber interaction, if any, which is required
for the selection of such video programming or other programming service and
the installation and rental of equipment necessary for the receipt thereof.
A six-megahertz (MHz) frequency band which is capable of carrying
either one standard video signal, a number of audio, digital or other nonvideo
signals, or some combination of such signals. One channel of high definition
television will utilize more than six MHz.
Such video, audio, data and other services provided to institutional
users on an individual application basis. These may include but are not limited
to one-way video, two-way video, audio or digital signals among institutions
to residential subscribers.
A subscriber who receives a service in a place of business where
the service may be utilized in connection with a business, trade or profession.
The Cable Communications Policy Act of 1984 and the Cable Television
Consumer Protection and Competition Act of 1992 as it may be amended or succeeded.
An electronic device that will shift any television channel(s) from
one to another within the UHF or VHF spectrum.
Broadband communications channels dedicated to serving city, county,
state or federal governmental agencies, educational institutions, health care
institutions or other nonprofit organizations that may be qualified by the
Cable TV Advisory Committee.
A channel which can only be received by the person and/or institution
intended to receive signals on such channel.
A coaxial connection from a feeder cable to the subscriber/user television
set, radio or other terminal.
Any channel designated for educational access use.
The price that a willing buyer would pay to a willing seller for
a going concern based on the system valuation prevailing in the industry at
the time.
The Federal Communications Commission and any legally appointed successor.
The nonexclusive rights granted pursuant to this article to construct,
operate and maintain a cable communications system along the public ways within
all or a specified area in the village. Any such authorization, in whatever
form granted, shall not mean or include any license or permit required for
the privilege of transacting and carrying on a business within the village
as required by other local laws and laws of the village.
The entire village or portions thereof for which a franchise is granted
under the authority of this article. If not otherwise stated in the franchise,
the franchise area shall be the corporate limits of the village, including
all territory thereafter annexed to the village.
The natural person(s), partnership(s), domestic and foreign corporation(s),
association(s), joint venture(s) or organization(s) of any kind which has
been legally granted a franchise by the village, and its lawful successor,
transferee or assignee.
The portion, as specified by the village, of the franchisee's
gross revenues from all sources payable in exchange for the rights granted
pursuant to this article and the franchise agreement; the term "franchise
fee" includes any tax, fee or assessment of any kind imposed by a franchising
authority or other governmental entity on a cable operator or cable subscriber,
or both, solely because of their status as such. Franchise fee does not include:
Any tax, fee or assessment of general applicability (including any such
tax, fee or assessment imposed on both utilities and cable operators or their
services, but not including a tax, fee or assessment which is unduly discriminatory
against cable operators or cable subscribers);
Capital costs which are required by the franchise to be incurred by
the cable operator for public, educational or governmental access facilities;
Requirements or charges incidental to the awarding or enforcing of the
franchise, including payments for bonds, security funds, letters of credit,
insurance, indemnification, penalties or liquidated damages; or
Any fee imposed under Title 17 of the United States Code.
Any channel specifically designated or dedicated for government access
use.
The Village of Pleasantville as represented by the Village Board
of Trustees acting within the scope of its jurisdiction.
The total of all cash, credits, property of any kind or nature or
other consideration received, directly or indirectly, by the grantee, its
affiliates, subsidiaries or any person, firm or corporation in which the grantee
has a financial interest derived from the operation of the cable system within
the village. If another entity is responsible for selling advertising on the
cable system, advertising revenues shall be deemed to be limited to the prorate
portion of advertising revenue, less expenses, paid to the grantee by such
entity. Furthermore, gross receipts shall not include sums paid for services
other than cable service if the grantee is subjected to competition for such
services within the village by an entity not affiliated with the grantee or
its parent, and such entity is not required to pay a franchise fee or similar
levy to the village on such services.
The connection of the system from the feeder cable to subscribers'
terminals.
Any channel designated or dedicated for use by persons unaffiliated
with the grantee.
Observing a communications signal or the absence of a signal where
the observer is not a party to the communication, whether the signal is observed
by visual or electronic means, for any purpose whatsoever.
The ability to distribute cable programming to a particular segment
or segments of the cable subscribers.
The New York State Commission on Cable Television, the Commission
created pursuant to Article 28 of New York State Executive Law entitled "Commission
on Cable Television" or its successor.[1]
An individual, partnership, association, organization, corporation
or any lawful successor transferee of said individual, partnership, association,
organization or corporation.
A linear mile of cable as measured on the street or easement from
pole to pole or pedestal to pedestal.
Any channel designated or dedicated for use by the general public
or noncommercial organizations which is made available for use without charge
on a nondiscriminatory basis in accordance with the rules and regulations
specified in the franchise.
The surface, the air space above the surface and the area below the
surface of any public street, highway, lane, path, alley, sidewalk, boulevard,
drive, bridge, tunnel, park, parkways, waterways, utility easements or other
public right-of-way or hereafter held by the village which shall entitle the
village and the company to the use thereof for the purpose of installing and
maintaining the company cable television system. No reference herein or in
any franchise to the public way shall be deemed to be a representation or
guaranty by the village that its title to any property is sufficient to permit
its use for such purpose, and the grantee shall, by its use of such terms,
be deemed to gain only such rights to use property in the village as the village
may have the undisputed right and power to give.
Written notice addressed to the grantee at its principal office within
the village or such other office as the grantee has designated to the village
as the address to which notice shall be transmitted to it, which notice shall
be certified and postmarked not less than seven days prior to that day in
which the party giving such notice shall commence any action which requires
the giving of notice. In computing said seven days, holidays recognized by
the village shall be excluded.
Any person residing in the village as otherwise defined by applicable
law.
A subscriber who receives a service in an individual dwelling unit
where the service is not to be utilized in connection with a business, trade
or profession.
Includes any sale, exchange, barter or offer for sale.
Any public or nonprofit educational institution, including primary
and secondary schools, colleges and universities, both public and private.
The entire geographic area within the franchise territory.
A combination of service tiers consisting of the basic broadcast
service and any other regulated cable satellite tier, but excluding any service
sold on a per-channel basis and any package of services normally sold on a
per-channel basis.
The State of New York.
The cable communications system constructed for use within the village,
including,without limitation, the headend, antenna, cables, wires, lines,
towers, amplifiers, converters, health and property security systems, equipment
or facilities located within the corporate limits of the village designed,
constructed or wired for the purpose of producing, receiving, amplifying and
distributing, by coaxial cable, fiber optics, microwave or other means, audio
and visual radio, television and electronic signals to and from subscribers
in the village and any other equipment or facilities located within the corporate
limits of the village intended for the use of the system; provided, however,
that such system facility excludes buildings, contracts, facilities and equipment
where the primary use is for providing service to other system facilities
located outside the village limits.
The disposal by the grantee, directly or indirectly, by gift, assignment,
voluntary sale, merger, consolidation or otherwise, of 51% ownership and/or
voting control or actual working control, as defined by the Federal Communications
Commission, of the franchise to a person who is not controlling, controlled
by or under common control with the grantee.
The major distribution cable used in cable communications, which
divides into feeder lines which are tapped for service to subscribers.
A signal originating from a terminal to another point in the cable
television system, including video, audio or digital signals for either programs
or other uses such as security alert services, etc.
A person or organization utilizing channel or equipment and facilities
for the purpose of producing and/or transmission of material, as contrasted
with receipt thereof in a subscriber capacity.
The Village Board of Trustees of the Village of Pleasantville.
[1]
Editor's Note: Article 28 of the Executive Law was repealed by
L. 1995, c. 83, § 121, effective January 1, 1996.
A.Â
In the event that the village shall grant to the grantee
a nonexclusive, revocable franchise to construct, operate and maintain a cable
communications system within the village, said franchise shall constitute
both a right and an obligation to provide the services of a cable communications
system as regulated by the provisions of this article and the franchise. The
franchise shall include by reference those provisions of the grantee's
application for franchise that are finally negotiated and accepted by the
village and the grantee.
B.Â
The franchise shall be granted under the terms and conditions
contained herein, consistent with the village's Code and/or other applicable
statutory requirements. In the event of a conflict between the terms and conditions
of this article, the franchise or the terms and conditions on which the village
can grant a franchise, the Code and/or statutory requirements shall control.
C.Â
Any franchise granted by the village is hereby made subject
to the generally applicable local law provisions now in effect and hereafter
made effective; provided, however, that any amendment to this article that
is binding on any franchisee shall be confined to changes which do not materially
alter the rights of the franchisee under a franchise. Nothing in the franchise
shall be deemed to waive the requirements of the various codes and local laws
of the village regarding permits, fees to be paid or manner of construction.
The franchise area shall be the entire village or portions thereof for
which a franchise is granted.
For the purpose of operating and maintaining a cable communications
system in the village, the grantee may erect, install, construct, repair,
replace, reconstruct and retain in, on, over, under, upon, across and along
the public streets and ways within the village such wires, cables, conductors,
ducts, conduits, vaults, manholes, amplifiers, appliances, pedestals, attachments
and other property and equipment as are necessary to the operation of the
cable communications systems; provided, however, that the grantee complies
with all design, construction, safety and performance provisions contained
in this article, the franchise agreement and other applicable local laws.
At the village's option, the village may require a grantee to utilize
a village-owned conduit or other facilities for any portion of its cable communications
system during the initial construction of the system, provided that the cost
of construction is not materially increased due to the use of village-owned
facilities. The consideration for the use of a village conduit or other facilities
shall be as stated in the franchise. A reasonable fee for the use of village
facilities shall be established in the franchise and may be adjusted at the
periodic performance evaluations.
No poles shall be erected by the grantee without prior approval of the
village with regard to location, height, type and any other pertinent aspect.
However, no location of any pole of the grantee shall be a vested right, and
such poles shall be removed or modified by the grantee at its own expense
whenever the village determines that the public convenience would be enhanced
thereby. The grantee shall utilize existing poles and conduits where possible.
The village shall have the right, during the life of the franchise, to install
and maintain, free of charge upon the poles owned by the grantee, any wire
and pole fixtures that do not unreasonably interfere with the cable system
operations of the grantee.
No cable communications system shall be allowed to occupy or use the
streets of the village or be allowed to operate without a franchise.
The term of any franchise granted pursuant to this article shall be
stated in the franchise.
Any franchise granted pursuant to this article shall be nonexclusive.
The village specifically reserves the right to grant at any time such additional
franchises for a cable communication system as it deems appropriate and/or
to build, operate and own such cable communication system or systems as it
deems appropriate.
Time is of the essence to this article. Whenever the agreement shall
establish a separate schedule, specific acts by or on behalf of the grantee,
these shall be deemed of the essence, and any failure of the grantee to perform
within the time allotted shall always be sufficient ground for the village
to invoke an appropriate penalty, including possible revocation of the franchise.
In any controversy or dispute under this article, the law of the State
of New York shall apply.
A.Â
Transfer of franchise. Any franchise granted hereunder
shall not be transferred without the prior consent of the village, which consent
shall not be unreasonably withheld.
B.Â
The grantee shall promptly notify the village of any
actual or proposed transfer.
C.Â
Every transfer shall make the franchise subject to cancellation,
unless the village shall have consented thereto. For the purpose of determining
whether it shall consent to such transfer, the village may inquire into the
legal, technical and financial qualifications of the proposed controlling
party, consistent with FCC rules, and the grantee shall assist the village
in any such inquiry.
D.Â
Assumption of control. The village agrees that any financial
institution having a pledge of the franchise or its assets for the advancement
of money for the construction and/or operation of the franchise shall have
the right to notify the village that it or its designees satisfactory to the
village will take control and operate the cable television system. Further,
said financial institution shall also submit a plan for such operation that
will ensure continued service and compliance with all franchise obligations
during the term the financial institution exercises control over the system.
The financial institution shall not exercise control over the system for a
period exceeding one year, unless extended by the village at its discretion,
and during said period of time it shall have the right to petition for transfer
of the franchise to another grantee. If the village finds that such transfer,
after considering the legal, financial, character, technical and other public
interest qualifications of the applicant, is satisfactory, the village will
transfer and assign the rights and obligations of such franchise as in the
public interest. The consent of the village to such transfer shall not be
unreasonably withheld.
E.Â
The consent or approval of the village to any transfer
of the grantee shall not constitute a waiver or release of the rights of the
village in and to the streets, and any transfer shall, by its terms, be expressly
subject to the terms and conditions of this article and the franchise.
F.Â
In the absence of extraordinary circumstances, the village
will not approve any transfer or assignment of the franchise prior to completion
of construction of the proposed system.
G.Â
Time frame for village review. The village shall have
120 days, from the time specified under federal law, to act upon any request
for approval of such sale or transfer that contains or is accompanied by such
information as is required in accordance with FCC regulations and by the village.
If the village fails to render a final decision on the request within 120
days, such request shall be deemed granted unless the requesting party and
the village agree to an extension of time. In the event that the village refuses
to grant the aforementioned request, it shall set forth specific reasons for
its decision, in writing, by municipal resolution.
H.Â
In determining whether to approve said request, the village
may consider the following:
(1)Â
The experience of the proposed assignee or transferee
(including conducting an investigation of the proposed assignee or transferee's
service record in other communities).
(2)Â
The qualifications of the proposed assignee or transferee.
(3)Â
The legal integrity of the proposed assignee or transferee.
(4)Â
The financial ability and stability of the proposed assignee
or transferee.
(5)Â
The ability and express commitment of the proposed assignee
or transferee to fully comply with the provisions of this agreement.
I.Â
A copy of the completed sales agreement or a functionally
equivalent instrument between the grantee and proposed transferee or assignee
shall be available to the village for inspection at the grantee's local
office, upon request of the letter.
J.Â
The village may approve said petition contingent on compliance
with additional standards, terms or conditions within its legal authority
and consistent with findings resulting from its review of the aforementioned
petition.
Renewal discretionary. Upon completion of the term of any franchise
granted under this article, the village may in its sole discretion grant or
deny renewal of the franchise of the grantee in accordance with the provisions
of the Cable Act. The grantee shall own the cable communication system, but
shall have no property right in the public rights-of-way upon the completion
of the franchise term.
A.Â
In accepting the franchise, the grantee acknowledges
that its rights hereunder are subject to the police power of the village to
adopt and enforce general local laws necessary to the safety and welfare of
the public; and it agrees to comply with all applicable general laws and local
laws enacted by the village pursuant to such power.
B.Â
Any conflict between the provisions of this article or
the franchise and any other present or future lawful exercise of the village's
police powers shall be resolved in favor of the latter, except that any such
exercise that is not of general application in the jurisdiction or applies
exclusively to the grantee or cable communications systems which contains
provisions inconsistent with this article shall prevail only if, upon such
exercise, the village finds an emergency exists constituting a danger to health,
safety, property or general welfare and such exercise is mandated by law.
A.Â
The village finds that:
(1)Â
The streets of the county, state and village to be used
by the grantee in the operation of its system within the boundaries of the
franchise area are valuable public properties acquired and maintained by the
county, state and village at great expense to its taxpayers.
(2)Â
The grant to the grantee to said streets is a valuable
property right without which the grantee would be required to invest substantial
capital in right-of-way costs and acquisitions.
(3)Â
The administration of this article and the franchise
imposes upon the village additional regulatory responsibility and expense.
(4)Â
A grantee of any franchise hereunder shall pay to the
village a franchise fee in an amount as designated in the franchise, but in
no event less than 5% of the gross annual revenues, or the maximum amount
permitted under applicable federal, state or local law, if such maximum is
greater than 5% less the annual assessment paid by the grantee to the New
York State Commission on Cable Television. The annual franchise payment shall
be in addition to any other fee and shall commence as of the effective date
of the franchise. The village shall be furnished a statement of said payment,
by a certified public accountant, reflecting the total amounts of annual gross
revenues and the above charges and computations for the period covered by
the payment.
B.Â
Franchise fee in addition to other tax or payment. This
payment shall be in addition to any other tax or payment owed to the governments
or other taxing jurisdiction by the grantee.
C.Â
Acceptance by the village. No acceptance of any payment
by the village shall be construed as a release or as an accord and satisfaction
of any claim the village may have for further or additional sums payable as
a franchise fee under this article or for the performance of any other obligation
of the grantee.
D.Â
Failure to make required payment. In the event that any
franchise payment or recomputed amount is not made on or before the dates
specified herein, the grantee shall pay as additional compensation an interest
charge, computed from such due date, at the annual rate equal to the commercial
prime interest rate of the village primary depository bank during the period
that such unpaid amount is owed.
E.Â
Payments to be made quarterly. The franchise fee and
any other cost or damage assessed against the grantee shall be payable quarterly
to the Village of Pleasantville. The grantee shall file a complete and accurate
verified statement of all gross revenues within the franchise area during
the period for which said quarterly payment is made, and said payment shall
be made to the village no later than 45 days following the end of each calendar
quarter. Quarterly computation dates are the last day in the months of March,
June, September and December.
F.Â
The village's right of inspection. The village shall
have the right to inspect the grantee's income records and the right
to audit at its own expense determined to be payable under this article. However,
in the event that the audit concludes that the grantee's payments hereunder
were underpaid by an amount greater than 5% of the proper payment, then the
grantee shall reimburse the village for the costs of said audit, in addition
to making any additional payments required to bring the grantee into compliance
with this section. At the sole discretion of the village, the latter may collect
interest from the grantee on the underpayment or any other late payment at
a rate equal to the prime rate plus 3%.
A.Â
Grounds for revocation. The village reserves the right
to revoke any franchise granted hereunder and rescind all rights and privileges
associated with the franchise in the following circumstances, each of which
shall represent a default and breach under the local law and the franchise
grant:
(1)Â
If the grantee shall default in the performance of any
of the material obligations under this article or under such documents, contracts
and other terms and provisions entered into by and between the village and
the grantee.
(2)Â
If the grantee shall fail to provide or maintain in full
force and effect the liability and indemnification coverage or the performance
bond as required herein.
(3)Â
If the grantee shall violate any lawful orders or rulings
of any regulatory body having jurisdiction over the grantee relative to this
article or the franchise.
(4)Â
If the grantee evades, as defined in state law, any of
the provisions of this article or the franchise or practices any fraud or
deceit upon the village or cable subscribers.
(5)Â
If the grantee fails to meet the construction schedule
contained in the franchise or beyond any extended date set by the village.
(6)Â
Upon failure to restore service after 96 consecutive
hours of interrupted service, except when approval of such interruption is
obtained from the village.
(7)Â
Upon material misrepresentation of fact in the application
for or negotiation of the franchise or any extension or renewal thereof.
(8)Â
If the grantee ceases to provide all services for any
reason within the control of the grantee over the cable communications system.
B.Â
Effect of circumstances beyond control of the grantee.
The grantee shall not be declared at fault or be subject to any sanction under
any provision of this article in any case in which performance of any such
provision is prevented for reasons beyond the grantee's control. A fault
shall not be deemed to be beyond the grantee's control if committed by
a corporation or other business entity in which the grantee holds a controlling
interest, whether held directly or indirectly.
C.Â
Pending litigation or any appeal to any regulatory body
or court having jurisdiction over the grantee shall not excuse the grantee
from the performance of its obligations under this article or the franchise.
Failure of the grantee to perform such obligations because of pending litigation
or petition may result in forfeiture or revocation pursuant to the provisions
of this section.
D.Â
Procedure prior to revocation.
(1)Â
The village shall make written demand that the grantee
do so comply with any such requirement, limitation, term, condition, rule
or regulation or correct any action deemed cause for revocation. If the failure,
refusal or neglect of the grantee continues for a period of 30 days following
such written demand, the village shall place its request for termination of
the franchise upon a regular Village Board of Trustees meeting agenda. The
village shall cause to be served upon such grantee, at least seven days prior
to the date of such Village Board of Trustees meeting, a written notice of
this intent to request such termination and the time and place of the meeting,
notice of which shall be published by the Village Clerk at least once seven
days before such meeting in a newspaper of general circulation within the
village.
(2)Â
The Village Board of Trustees shall hear any persons
interested therein and determine in its discretion whether or not any failure,
refusal or neglect by the grantee was with just cause.
(3)Â
If such failure, refusal or neglect by the grantee was
with just cause, as defined by the village, the Village Board of Trustees
shall direct the grantee to comply within such time and manner and upon such
terms and conditions as are reasonable.
(4)Â
If the Village Board of Trustees shall determine such
failure, refusal or neglect by the grantee was without just cause, then the
Village Board of Trustees shall, by resolution, declare that the franchise
of the grantee shall be terminated and the performance bond forfeited unless
there is compliance by the grantee within a specified period of time not to
exceed 90 days or such longer period as reasonably necessary to comply as
approved by the Village Board of Trustees, whose approval shall not be unreasonably
withheld.
E.Â
Disposition of facilities. In the event that a franchise
is not renewed and/or revoked, the village may, in its sole discretion, do
any of the following:
(2)Â
Effect a transfer of ownership of the system to another
party.
(3)Â
Order the removal of the system facilities required by
public necessity from the village within a reasonable period of time as determined
by the village or require the original grantee to maintain and operate its
system for a period of six months or until such further time as is mutually
agreed upon. The grantee may convey its ownership or interest in the facilities
constituting the cable system to a successor grantee approved by the village.
Any such facilities that are not so conveyed shall be considered to be abandoned
to the ownership and use of the village, subject to the right of the grantee
to remove any such facilities or any portion of such facilities that may be
salvageable.
F.Â
Restoration of property. In removing its plant, structures
and equipment, the grantee shall refill, at its own expense, any excavation
that shall be made by it and shall leave all public ways and places in as
good a condition or better as that prevailing prior to the grantee's
removal of its equipment and appliances without affecting the electrical or
telephone cable wires or attachments. The village shall inspect and approve
the condition of the public ways and public places and cables, wires, attachments
and poles after removal. The liability, indemnity, insurance and performance
bond as provided herein shall continue in full force and effect during the
period of removal and until full compliance by the grantee with the terms
and conditions of this subsection, this article and the franchise.
G.Â
Restoration by village; reimbursement of costs. In the event of a failure by the grantee to complete any work required by §§ 79-10 and 79-12 and/or Subsection F above or any other work required by village law or local law within the time as may be established and to the satisfaction of the village, the village may cause such work to be done and the grantee shall reimburse the village the cost thereof within 30 days after receipt of an itemized list of such costs or the village may recover such costs through the performance bond provided by the grantee. The village shall be permitted to seek legal and equitable relief to enforce the provisions of this section.
H.Â
Extended operation. Upon either the expiration or revocation
of a franchise, the village may require the grantee to continue to operate
the system for a period of six months from the date of such expiration or
revocation or until such time as is mutually agreed upon. The grantee shall,
as trustee for its successor in interest, continue to operate the cable communications
system under the terms and conditions of this article and the franchise and
to provide the regular subscriber service and any and all of the services
that may be provided at the time. The village shall be permitted to seek legal
and equitable relief to enforce the provisions of this section.
I.Â
Recourse. The grantee may seek recourse as available
by law or regulation.
A.Â
Termination by insolvency. To the extent permitted under
federal bankruptcy law, the franchise granted hereunder shall, at the option
of the village, cease and terminate 120 days after the appointment of a receiver
or receivers or trustee or trustees to take over and conduct the business
of the grantee, whether in a receivership, reorganization, bankruptcy or other
action or proceeding, unless such receivership or trusteeship shall have been
vacated prior to the expiration of said 120 days or unless:
(1)Â
Such receivers or trustees shall have, within 120 days
after their election or appointment, fully complied with all the terms and
provisions of this article and the franchise granted pursuant hereto, and
the receivers or trustees within said 120 days shall have remedied all defaults
under the franchise; and
(2)Â
Such receivers or trustees shall, within said 120 days,
execute an agreement duly approved by the court having jurisdiction in the
premises, whereby such receivers or trustees assume and agree to be bound
by each and every term, provision and limitation of the franchise herein granted.
B.Â
Termination by judicial action. In the case of a foreclosure
or other judicial sale of the plant, property and equipment of the grantee
or any part thereof, including or excluding the franchise, the village may
serve notice of termination upon the grantee and the successful bidder at
such sale, in which event the franchise and all rights and privileges of the
grantee granted hereunder shall cease and terminate 30 days after service
of such notice, unless:
A.Â
Equal opportunity employment shall be afforded by all
operators of cable television systems to all qualified persons, and no person
shall be discriminated against in employment because of race, color, religion,
age, national origin, sex or physical handicap. The grantee shall comply with
all equal opportunity provisions enacted by federal, state and local authorities,
as well as all such provisions contained in this article and the franchise.
It is agreed that Continental's compliance with FCC rules constitutes
compliance with this section.
B.Â
Local employment and procurement practices. Whenever
reasonably possible, all services, personnel, hardware and supplies for the
construction, maintenance and operation of the system shall be procured locally.
The grantee shall describe in detail plans and policies for each year of the
term of the agreement for utilizing and contracting with local construction
contractors, subcontractors, suppliers, vendors and other business enterprises
and persons for services, supplies, equipment, consultation, banking, financial
accounting and legal services, insurance and other necessary facilities and
services that will be used in establishing, operating, marketing, programming
and maintaining the cable communications system.
All notices from the grantee to the village pursuant to this article
shall be to the Village Mayor or his or her designee. The grantee shall maintain
with the village, throughout the term of the franchise, an address for service
of notices by mail. The grantee shall also maintain within the village a local
office and telephone number for the conduct of matters related to the franchise
during normal business hours. The grantee shall be required to advise the
village of such address(es) and telephone numbers and any changes thereof.
The grantee shall not be excused from complying with any of the terms
and conditions of this article or the franchise by any failure of the village
upon any one or more occasions to insist upon or to seek compliance with any
such terms or conditions.
A.Â
Renewal. If a renewal of a franchise held by a cable
operator is denied and the franchising authority acquires ownership of the
cable system or effects a transfer of ownership of the system to another person,
any such acquisition or transfer shall be:
(1)Â
At fair market value, determined on the basis of the
cable system valued as a going concern but with no value allocated to the
franchise itself; or
(2)Â
In the case of any franchise existing on the effective
date of this article, at a price determined in accordance with the franchise
if such franchise contains provisions applicable to such an acquisition or
transfer.
B.Â
Revocation. If a franchise held by a cable operator is
revoked for cause and the franchising authority acquires ownership of the
cable system or effects a transfer of ownership of the system to another person,
any such acquisition or transfer shall be:
C.Â
Right of inspection of records.
(1)Â
The village shall have the right to inspect all books,
records, reports, maps, plans, financial statements and other like materials
of the grantee, at any time upon reasonable notice, during normal business
hours necessary to the enforcement of this article and the franchise. The
grantee shall provide such information in such form as may be required by
the village for said records. To the extent allowed by law, the village agrees
to treat as proprietary any information identified as such by the grantee
and shall not intentionally divulge any such information publicly or to actual
or potential competitors of the grantee, except as may be required in a legal
proceeding or ordered by a court of competent jurisdiction.
(2)Â
If any such maps or records are not kept in the village
or upon notice that the grantee is unable to provide the records in the village
and if the village shall determine that an examination of such maps or records
is necessary or appropriate to the performance of the village's responsibilities
under this franchise, then all travel and maintenance expenses necessarily
incurred in making such examination shall be paid by the grantee.
D.Â
Right of inspection of construction. The village shall
have the right to inspect all construction or installation work performed
subject to the provisions of the franchise and to make such tests as it shall
find necessary to ensure compliance with the terms of this article and other
pertinent provisions of the law.
E.Â
Right of inspection of property. At all reasonable times,
the grantee shall permit examination, by any duly authorized representative
of the village, of system facilities, together with any appurtenant property
of the grantee situated within or without the village.
F.Â
Right of intervention. The village shall have the right
of intervention in any suit or proceeding to which the grantee is a party.
G.Â
Right to require tests. The village shall have the right
and authority to test the performance of the cable communications system.
The village may require that any tests performed at the village's request
be supervised or conducted by a village designee, not an employee or agent
of the grantee. The grantee shall reimburse the village for the costs of such
designee if the tests performed show that the quality of service is below
the standards set forth in the franchise. The grantee shall cooperate fully
with the village in performing such testing.
A.Â
The village shall exercise appropriate regulatory authority
under the provisions of this article and applicable law. This authority shall
be vested in the Village Board of Trustees and administered through the Village
Mayor or his or her designee in order to provide day-to-day administration
and enforcement of the provisions of this article and any franchise granted
hereunder and to carry out the village's responsibilities with regard
to cable communications.
B.Â
If a material provision is held to be invalid by a court
of competent jurisdiction or rendered a nullity by federal or state legislature
or regulatory action, the grantee and the village shall promptly and in good
faith renegotiate provisions of this agreement affected by the loss of the
aforementioned material provision to ensure that the village is restored,
insofar as is reasonably possible, to its approximate status relative to the
other as existed prior to said judicial, legislative or regulatory action.
C.Â
The village reserves the right to exercise the maximum
plenary authority, as may at any time be lawfully permissible, to regulate
the cable communications system, the franchise and the grantee. Should applicable
legislative, judicial or regulatory authorities at any time permit regulation
not presently permitted to the village, the village may without the approval
of the grantee engage in any such additional regulation as may then be permissible,
whether or not contemplated by this article or the franchise, including, without
limitation, regulation regarding franchise fees, taxes, programming, rates
charged to subscribers and users, consumer protection or any other similar
or dissimilar matter.
A.Â
The village shall have the following regulatory responsibility:
(1)Â
Administration and enforcement of the provisions of this
article and any franchise granted hereunder.
(2)Â
Award, renewal, extension or termination of a franchise
pursuant to the provisions of this article, the franchise and other applicable
law.
(3)Â
Consent prior to the sale or transfer of any franchise
granted hereunder.
(4)Â
Performance evaluation.
(5)Â
Rate regulation, if applicable.
B.Â
The village also reserves the right to perform the following
functions:
(1)Â
Develop objectives and coordinate activities related
to the operation of government channels.
(2)Â
Approve procedures and standards for public, government
and educational access and operations and services, including the use of dedicated
channels and sharing of public facilities.
(3)Â
Coordinate plans for the expansion, interconnection and
growth of cable services.
(4)Â
Analyze the possibility of integrating cable communications
with other village, state or regional telecommunications networks.
(5)Â
Formulate and recommend long-range telecommunications
policy for the village and determine the future cable-related needs and interests
of the community.
(6)Â
Provide the administrative effort necessary for the conduct
of performance evaluations and any other activities required for the administration
of the franchise.
(7)Â
Monitor the grantee's process for handling citizen
complaints and periodically inspect and analyze the records related to such
complaints.
(8)Â
Receive applications for rate increases if applicable
and provide staff assistance in the analysis and recommendations thereto.
(9)Â
Monitor the grantee's adherence to operational standards,
service requirements and line extension policies.
(10)Â
Assure compliance with applicable laws and local laws.
(11)Â
Arrange tests and analysis of equipment and performance,
as needed to ensure compliance with this article and the franchise.
(12)Â
Assure continuity in service.
(13)Â
Receive for examination all data and reports required
by this article.
C.Â
Cable TV Advisory Committee. There shall be a citizen's
advisory committee entitled the "Cable TV Advisory Committee." The responsibilities
of the Cable TV Advisory Committee shall include but not be limited to the
following:
(1)Â
Monitor and advise the Village Board of Trustees and
village administration on the provisions of this article and related local
laws.
(2)Â
Serve as advisory body for the public, educational and
municipal access channels of cable television and any institutional programming
that may be developed.
(3)Â
Advise the village government of objectives to be obtained
in the village's cable communications system based upon its continued
evaluation of the village's cable television franchise, cable technology
and the future cable-related needs and interests of the community.
(4)Â
Prepare an annual report to the Village Board of Trustees.
(5)Â
Cooperate with the village and the grantee in fulfilling
its responsibilities herein.
A.Â
The grantee shall file with the village schedules which
shall describe all services offered, all rates and charges of any kind and
all terms and conditions relating thereto. No rates or charges shall be effective
except as they appear on a schedule so filed. The grantee shall notify subscribers,
in writing, at least 30 days prior to the implementation of any change in
services offered, rates charged or terms and conditions related thereto.
B.Â
The grantee shall establish rates that are nondiscriminatory
within the same general class of subscribers which must be applied fairly
and uniformly to all subscribers in the franchise area for all services. Nothing
contained herein shall prohibit the grantee from offering discounts to commercial
and multiple-family dwelling subscribers billed on a bulk basis; promotional
discounts; or reduced installation rates for subscribers who have multiple
services. The grantee's charges and rates for all services shall be itemized
on a subscriber's monthly bills.
C.Â
To the extent that federal or state law or regulation
may now or as the same may hereafter be amended to authorize the village to
regulate the rates for any particular service tiers, service packages, equipment
or any other services provided by the grantee, the village shall have the
right to exercise rate regulation to the full extent authorized by law or
to refrain from exercising such regulation for any period of time, at the
sole discretion of the village.
A.Â
The village and the grantee shall, at the written request
of the village, hold scheduled performance evaluation sessions annually. All
such evaluation sessions shall be open to the public.
B.Â
Special evaluation sessions may be held at any time during
the term of the franchise at the request of the village.
C.Â
All evaluation sessions shall be open to the public and announced in a newspaper of general circulation in accordance with public notice, as provided in § 79-51. The grantee shall notify subscribers of all such evaluation sessions by announcement on the designated local government channel on the system between the hours of 11:00 a.m. and 9:00 p.m. for five consecutive days preceding each session.
D.Â
Topics which may be discussed at any scheduled or special
evaluation session may include but not be limited to system performance and
construction, grantee compliance with this article and the franchise, customer
service and complaint response, subscriber privacy, services provided, programming
offered, service rate structures, franchise fees, penalties, free or discounted
services, applications of new technologies, judicial and FCC filings and line
extensions.
E.Â
During the review and evaluation by the village, the
grantee shall fully cooperate with the village and shall provide such information
and documents as the village may need to reasonably perform its review.
A.Â
Upon the effective date of the franchise, the grantee
shall obtain and maintain during the entire term of the franchise and any
extensions and renewals thereof, at its cost and expense, and file with the
village a corporate surety bond in an amount specified in the franchise to
guarantee the faithful performance of the grantee of all its obligations provided
under this article and the franchise. Failure to timely obtain, file and maintain
said bond shall constitute a substantial violation within the meaning of this
section.
B.Â
Conditions. The performance bond shall provide the following
conditions.
(1)Â
There shall be recoverable by the village jointly and
severally from the principal and surety any and all fines and liquidated damages
due to the village and any and all damages, losses, costs and expenses suffered
or incurred by the village resulting from the failure of the grantee to faithfully
comply with the provisions of this article and the franchise; comply with
all orders, permits and directives of any village agency or body having jurisdiction
over its acts or defaults; pay fees due to the village; pay any claims, liens
or taxes due the village which arise by reason of the construction, operation,
maintenance or repair of the cable system. Such losses, costs and expenses
shall include but not be limited to attorney's fees and other associated
expenses.
C.Â
Reduction of bond. Upon written application by the grantee,
the village may, at its sole option, permit the amount of the bond to be reduced
or waive the requirements for a performance bond subject to the conditions
set forth below. Reductions granted or denied upon application by the grantee
shall be without prejudice to the grantee's subsequent applications or
to the village's right to require the full bond at any time thereafter.
However, no application shall be made by the grantee within one year of any
prior application.
D.Â
Conditions. The village may draw upon the performance
bond if the grantee fails to faithfully comply with the provisions of this
article and the franchise; comply with all orders, permits and directives
of any village agency or body having jurisdiction over its acts or defaults;
pay fees due to the village; or pay any claims, liens or taxes due the village
which arise by reason of the construction, operation, maintenance or repair
of the cable system.
E.Â
Use of performance bond. Prior to drawing upon the performance
bond for the purposes described in this section, the village shall notify
the grantee, in writing, that payment is due, and the grantee shall have 30
days from the receipt of such written notice to make a full and complete payment.
If the grantee does not make the payment within 30 days, the village may withdraw
the amount thereof, with interest and penalties, from the performance bond.
F.Â
Notification. Within three days of a withdrawal from
the performance bond, the village shall send to the grantee, by certified
mail, return receipt requested, written notification of the amount, date and
purpose of such withdrawal.
G.Â
Replenishment of performance bond. No later than 30 days
upon the resolution of the dispute which resulted in a withdrawal from the
performance bond, the grantee shall replenish the performance bond in an amount
equal to the amount so withdrawn. Failure to make timely replenishment of
such amount to the performance bond shall constitute a substantial violation
of this article.
H.Â
Nonrenewal, alteration or cancellation of performance
bond. The performance bond required herein shall be in a form satisfactory
to the village and shall require 30 days' written notice of any nonrenewal,
alteration or cancellation to both the village and the grantee. The grantee
shall, in the event of any such cancellation notice, obtain, pay all premiums
for and file with the village written evidence of the issuance of a replacement
bond or policies within 30 days following receipt by the village or the grantee
of any notice of cancellation.
A.Â
Prior to commencement of construction, but in no event
later than 60 days after the effective date of the franchise and thereafter
continuously throughout the duration of the franchise and any extensions or
renewals thereof, the grantee shall furnish to the village certificates of
insurance, approved by the village, for all types of insurance required under
this section. Failure to furnish said certificates of insurance in a timely
manner shall constitute a violation of this article.
B.Â
Certificates of insurance for policies obtained by the
grantee in compliance with this section shall be filed and maintained with
the Village Clerk during the term of the franchise and may be changed from
time to time to reflect changing liability limits and/or to compensate for
inflation.
C.Â
Neither the provisions of this section or any damages
recovered by the village hereunder shall be construed to or limit the liability
of the grantee under any franchise issued hereunder or for damages.
D.Â
All certificates of insurance furnished pursuant to this
article or the franchise shall contain the following or a comparable endorsement:
"It is hereby understood and agreed that this insurance policy may not
be canceled by the insurance company nor the intention not to renew be stated
by the insurance company until 30 days after receipt by the Village Mayor,
by certified mail, of a written notice of such intention to cancel or not
to renew."
|
E.Â
All insurance policies provided under the provisions
of this article or the franchise shall be written by companies authorized
to do business in the state and approved by the State Board of Insurance.
F.Â
The village shall be an additional insured for all insurance
policies written under the provisions of this article or the franchise.
G.Â
To offset the effects of inflation and to reflect changing
liability limits, all of the coverages, limits and amounts of the insurance
provided for herein are subject to reasonable increases at the end of every
three-year period of the franchise, applicable to the next three-year period,
upon the determination of the village.
H.Â
General liability insurance. The grantee shall maintain
and by its acceptance of any franchise granted hereunder specifically agrees
that it will maintain throughout the term of the franchise general liability
insurance insuring the grantee in the minimum of:
I.Â
Such general liability insurance must include coverage
for all of the following: comprehensive form, premises operations, explosion
and collapse hazard, underground hazard, products/completed operations hazard,
contractual insurance, broad form property damage and personal injury.
J.Â
Automobile liability insurance. The grantee shall maintain
and by its acceptance of any franchise granted hereunder specifically agrees
that it will maintain throughout the term of the franchise automobile liability
insurance for owned, nonowned or rented vehicles in the minimum amount of:
K.Â
Workers' compensation and employers' liability
insurance. The grantee shall maintain and by its acceptance of any franchise
granted hereunder specifically agrees that it will maintain throughout the
term of the franchise workers' compensation and employers' liability,
valid in the state, in the minimum amount of:
A.Â
To the fullest extent permitted by law, the grantee shall,
at its sole cost and expense, fully indemnify, defend and hold harmless the
village, its officers, public officials, boards and commissions, agents and
employees from and against any and all lawsuits, claims (including, without
limitation, workers' compensation claims against the village or others),
causes of action, actions, liability and judgments for injury or damages (including
but not limited to expenses for reasonable legal fees and disbursements assumed
by the village in connection therewith):
(1)Â
To persons or property, in any way arising out of or
through the acts or omissions of the grantee, its subcontractors, agents or
employees to which the grantee's negligence shall in any way contribute
and regardless of whether the village's negligence or the negligence
of any other party shall have contributed to such claim, cause of action,
judgment, injury or damage.
(2)Â
Arising out of any claim for invasion of the right of
privacy, for defamation of any person, firm or corporation or the violation
or infringement of any copyright, trademark, trade name, service mark or patent
or any other right of any person, firm or corporation, but excluding claims
arising out of or related to village programming.
(3)Â
Arising out of the grantee's failure to comply with
the provisions of any federal, state or local statute, local laws or regulations
applicable to the grantee in its business hereunder.
B.Â
The foregoing indemnity is conditioned upon the following:
The village shall give the grantee prompt notice of any claim or the commencement
of any action, suit or other proceeding covered by the provisions of this
section. At all times, the village shall cooperate with the grantee and participate
in the defense of any litigation. No recovery by the village of any sum by
reason of the liquidated damages required by the franchise shall be subject
to litigation by the grantee, except that any sum so received by the village
shall be deducted from any recovery which the village might have against the
grantee under the terms of this section.
A.Â
Authorization to commence construction and application
procedures. Within 30 days after acceptance by the grantee of a franchise,
the grantee shall apply for any needed contracts for pole use. Pole space
and other facilities obtained from the village, utilities and other lawful
users of the public way shall be at the cost and expense of the grantee. Within
30 days after completion of the make-ready survey identifying the routes of
the system facility, the grantee shall apply for all additional licenses from
the state, village or other necessary parties, such as the railroads for crossing
under or over their property. In any event, all necessary applications for
permits, licenses, certificates and authorizations shall be applied for in
a timely fashion so that such filing and processing shall not interfere with
or cause delay with the construction scheduled as outlined in the franchise.
Failure to make such timely application and timely filing shall constitute
a substantial violation of this article.
B.Â
Power to contract. Upon grant of the franchise and in
order to construct, operate and maintain a cable system in the village, the
grantee may enter into contracts with any public utility companies or any
other owner or lessee of any poles or underground areas located within or
without the village; obtain right-of-way permits from appropriate village,
state, county and federal officials necessary to cross or otherwise use highways
or roads under their respective jurisdiction; obtain permission from the Federal
Aviation Administration to erect and maintain antennas; and obtain whatever
other permits a village, county, state or federal agency may require.
A.Â
Compliance with construction and technical standards.
The grantee shall construct, install, operate and maintain its system in a
manner consistent with all laws, local laws, construction standards, governmental
requirements, FCC technical standards and detailed technical standards submitted
by the grantee as part of its application, which standards are incorporated
by reference herein. The system shall be designed, constructed, operated and
maintained for 24 hours a day continuous operation. The system shall produce,
for reception on subscribers, receivers which are in good working order, either
monochrome or color pictures (provided that the receiver is color capable)
which are free from any significant interference or distortion which would
cause any material degradation of video or audio quality.
B.Â
State of the art. The grantee shall construct, install,
operate and maintain its system in accordance with the highest standards of
the art of cable communications, such standards to include but not be limited
to the following:
(1)Â
The system will be spaced to permit a minimum of 750
MHz operation and will be capable of utilizing state-of-the-art converters
and be compatible with cable-ready television sets.
(2)Â
The system will utilize converters which will make the
system adaptable for the development of future services.
(3)Â
The grantee shall maintain its system facilities in a
manner which will continue to enable it to add new services and associated
equipment as they are developed, available and proved marketable to subscribers.
The new services and associated equipment will be added to the system facilities
when they are determined to be technically reliable and adaptable to the system
at a cost to the subscriber that is acceptable in the marketplace.
C.Â
Prior to the erection of any towers, poles or conduits
or the upgrade or rebuild of the cable communications system under this article,
the grantee shall first submit to the village and other designated parties
for approval a concise description of the facilities proposed to be erected
or installed, including engineering drawings, if required, together with a
map and plans indicating the proposed location of all such facilities. No
erection or installation of any tower, pole, underground conduit or fixture
or any rebuilds or upgrading of the cable communications system shall be commenced
by any person until approval therefor has been received from the village;
provided, further, that such approval shall not be unreasonably withheld.
D.Â
Contractor qualifications. Any contractor proposed for
work of construction, installation, operation, maintenance and repair of system
equipment must be properly licensed. In addition, the grantee shall submit
to the village a plan to hire persons locally for the construction, installation,
operation, maintenance and repair of the system equipment consistent with
federal regulations.
E.Â
The grantee's system and associated equipment erected
by the grantee within the village shall be so located 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 and reasonable
convenience of property owners who adjoin any of said streets, alleys or other
public ways and places. No pole or other fixtures placed in any public ways
by the grantee shall be placed in such a manner as to interfere with normal
travel on such public way.
F.Â
The village does not guarantee the accuracy of any maps
showing the horizontal or vertical location of existing substructures. In
public rights-of-way, where necessary, the location shall be verified by excavation.
G.Â
Construction, installation, operation and maintenance
of the cable communications system shall be performed in an orderly and workmanlike
manner, in accordance with then-current technological standards. All cables
and wires shall be installed, where possible, parallel with electric and telephone
lines. Multiple cable configurations shall be arranged parallel and bundled
with due respect for engineering considerations.
H.Â
The grantee shall at all times comply with:
I.Â
In any event, the system shall not endanger or interfere
with the safety of persons or property in the franchise area or other areas
where the grantee may have equipment located.
J.Â
Any antenna structure used in the cable communications
system shall comply with construction, marking and lighting of antenna structure
standards as required by federal and state law or regulation.
K.Â
All worker facilities, conditions and procedures that
are used during construction, installation, operation and maintenance of the
cable system shall comply with the standards of the Occupational Safety and
Health Administration.
L.Â
Any RF leakage shall be checked at the reception location
for emergency radio services to prove measurable interference signal combinations
are possible. Stray radiation shall be measured adjacent to any proposed aeronautical
navigation radio sites to prove no measurable interference to airborne navigational
reception in the normal flight pattern. FCC rules and regulations shall govern.
The system shall cause no measurable interference in television signal reception
to any operating receiver not connected to and serviced by the system.
M.Â
The grantee shall maintain equipment capable of providing
standby power for a minimum of 24 hours for the headend and three hours for
all optical fiber node locations on the distribution system.
The franchise shall specify the construction schedule.
A.Â
All installations shall be underground in those areas
of the village where public utilities providing telephone and electric service
are underground at the time of installation. In areas where telephone or electric
utility facilities are aboveground at the time of installation, the grantee
may install its service above the ground, provided that at such time as those
facilities are required to be placed underground by the village or are placed
underground, the grantee shall otherwise place its services underground without
additional cost to the village or to the individual subscriber so served with
the village. Where not otherwise required to be placed underground by this
article or the franchise, the grantee's system shall be located underground
at the request of the adjacent property owner, provided that the excess cost
over the aerial location shall be borne by the property owner making the request.
All cable passing under the roadway shall be installed in conduit.
B.Â
Prior to construction or alteration, however, the grantee
shall in each case file plans with the appropriate village agencies, complete
use agreements with the utility companies, obtain all construction permits
and receive written approval of the village before proceeding, which approval
shall not be unreasonably withheld.
C.Â
Interference with persons, improvements, public and private
property and utilities. The grantee's system and facilities, including
poles, lines, equipment and all appurtenances, shall be located, erected and
maintained so that such facilities shall:
(1)Â
Not endanger or interfere with the health, safety or
lives of persons;
(2)Â
Not interfere with any improvements the village, county
or state may deem proper to make;
(3)Â
Not interfere with the free and proper use of public
streets, alleys, bridges, easements or other public ways, places or property,
except to the minimum extent possible during actual construction or repair;
(4)Â
Not interfere with the rights and reasonable convenience
of private property owners, except to the minimum extent possible during actual
construction or repair; and
(5)Â
Not obstruct, hinder or interfere with any gas, electric,
water or telephone facilities or other utilities located within the village.
D.Â
Restoration to prior condition. In case of any disturbance
of pavement, sidewalk, driveway or other surfacing, the grantee shall, at
its own cost and expense and in a manner approved by the village, replace
and restore all paving, sidewalk, driveway, landscaping or surface of any
street or alley disturbed, in as reasonably good a condition as or better
than before said work was commenced and in a good workmanlike, timely manner
in accordance with standards for such work set by the village. Such restoration
shall be undertaken within no more than 10 business days after the damage
is incurred and shall be completed as soon as possible thereafter.
E.Â
Relocation of the facilities. In the event that at any
time during the period of the franchise the village, county or state shall
lawfully elect to alter or change the grade of any street, alley or other
public ways, the grantee, upon reasonable notice by the proper authority,
shall remove or relocate as necessary its poles, wires, cables, underground
conduits, manholes and other fixtures at its own expense.
F.Â
Cooperation with building movers. The grantee shall,
on the request of any person holding a building moving permit issued by the
village, temporarily raise or lower its wire 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 grantee shall have the
authority to require such payment in advance. The grantee shall be given not
less than 15 working days' advance notice to arrange for such temporary
wire changes.
G.Â
Tree trimming. The grantee shall have the authority,
except when in conflict with existing village local laws, to trim any trees
upon and overhanging a public right-of-way so as to prevent the branches of
such trees from coming in contact with system facilities, except that at the
option of the village, such trimming may be done by it or under its supervision
and direction, at the expense of the grantee.
H.Â
Easements. All necessary easements over and under private
property shall be arranged for by the grantee.
I.Â
Private property. The grantee shall be subject to all
laws, local laws or regulations regarding private property in the course of
constructing, installing, operating or maintaining the cable communications
system in the Village of Pleasantville. The grantee shall promptly repair
or replace all private property, both real and personal, damaged or destroyed
as a result of the construction, installation, operating or maintenance of
the cable communications system at its sole cost and expense.
A.Â
No poles shall be erected by the grantee without prior
approval of the village with regard to location, height, types and any other
pertinent aspect. However, no location of any pole or wire-holding structure
of the grantee shall give rise to a vested interest, and such poles or structures
shall be removed or modified by the grantee at its own expense whenever the
village determines that the public convenience would be enhanced thereby.
B.Â
Where poles already exist for use in serving the village
and are available for use by the grantee, but it does not make arrangements
for such use, the village may require the grantee to use such poles and structures
if it determines that the public convenience would be enhanced thereby and
the terms of the use available to the grantee are just and reasonable.
A.Â
Within 30 days of the granting of a franchise pursuant
to this article, the grantee shall provide the village with a written progress
report detailing work completed to date. Such report shall include a description
of the progress in applying for any necessary agreements, licenses or certifications
and any other information the Village Mayor may deem necessary. The content
and format of the report will be determined by the Village Mayor and may be
modified at his or her discretion.
B.Â
Such written progress reports shall be submitted to the
village on a monthly basis throughout the entire construction process. The
Village Mayor may require more frequent reporting if he or she determines
it is necessary to better monitor the grantee's progress.
C.Â
Prior to the commencement of any system construction,
the grantee shall produce an informational document to be distributed to all
residents of the area to be under construction, which shall describe the activity
that will be taking place. The informational document shall be reviewed and
approved by the Village Mayor prior to its distribution.
A.Â
Not later than 30 days after any new or substantially
rebuilt portion of the system is made available for service to subscribers
and thereafter on the annual anniversary of the effective date of the franchise,
the grantee shall conduct technical performance tests to demonstrate full
compliance with all technical standards contained in this article and the
franchise and the technical standards and guidelines of the FCC and the Commission.
B.Â
Such tests shall be performed by or under the supervision
of a qualified registered professional engineer or an engineer with proper
training and experience. A copy of the report shall be submitted to the village,
describing the test results, instrumentation, calibration and the test procedures
and the qualification of the engineer responsible for the tests.
C.Â
System monitor test points shall be established at or
near the output of the last amplifier in the longest feeder line, at or near
trunk line extremities. Such periodic tests shall be made at the test points
as shall be required by the FCC and/or the franchise.
D.Â
In addition to the performance test reports required
herein, a copy of any performance test reports required by the FCC shall be
submitted to the village within 60 days of completion.
E.Â
Whenever there have been similar complaints made or when
there exists other evidence which, in the judgment of the village, casts doubt
on the reliability or quality of the grantee's system, the village shall
have the right and authority to compel the grantee to test, analyze and report
on the performance of its system. The village may require additional tests,
full or partial repeat tests, different test procedures or tests involving
a specific subscriber's terminal. Reports on such tests shall be delivered
to the village no later than 14 days after the village formally notifies the
grantee and shall include the following information: the nature of the complaints
which precipitated the special tests; what system component was tested; the
equipment used and procedures employed in said testing; the results of such
tests; and methods by which said complaints were resolved. Said tests and
analyses shall be supervised by a professional engineer not on the permanent
staff of the grantee, who shall sign all records of the special tests and
forward the same to the village with a report interpreting the results of
the tests and recommending what actions should be taken by the village. All
such tests shall be at the expense of the grantee.
A.Â
Concurrently with the activation of the cable communications
system in the village, the grantee shall provide all services to subscribers
as described herein and in the franchise at rates detailed in the rate schedule.
(1)Â
The system shall carry the broad categories of programming
and services listed in the franchise. Should the grantee desire to change
the selection of programs or services offered on any of the tiers, it shall
maintain the mix, quality and level of services provided over the system.
Any such change in programs or services offered shall comply with the conditions
and procedures contained in the franchise and shall be reported to the village
at least 30 days prior to the proposed implementation. The grantee shall notify
all subscribers, in writing, at least 30 days prior to implementing any change
in the selection of programs or services offered on any tiers or prior to
adding or deleting any channels or changing the channel number for any station.
The grantee shall use its best efforts to ensure diversity of programming.
(2)Â
A basic service tier shall be offered to subscribers
throughout the term of this article and the franchise.
(3)Â
The grantee shall provide and maintain, at a minimum,
the following access channels whose purposes are outlined below:
(a)Â
Government access channel, which shall be a specifically
designated channel for local governmental use and shall be managed, scheduled
and programmed exclusively by the village.
(b)Â
Educational channel, which shall be a specifically designated
channel for use by local public and private school authorities and shall be
managed, scheduled and programmed exclusively by them.
(c)Â
A public access channel, which will be a specifically
designated channel available on a nondiscriminatory basis.
(4)Â
Pursuant to § 612 of the Cable Act, the grantee
shall make channel capacity available as required by federal law for commercial
use by any person, group, organization or entity unaffiliated with the franchise
upon reaching an appropriate agreement. Rates for commercial use shall comply
with applicable federal law and regulations.
(5)Â
The grantee shall produce and carry on a designated channel,
on a daily basis, an alphanumeric program guide describing, at a minimum,
the programs offered on the access channels described above.
(6)Â
The grantee shall fully provide, at a minimum, services,
facilities and equipment for public, educational and government access as
indicated in the franchise.
B.Â
Emergency override. The grantee shall, without charge,
provide, service and maintain public emergency transmission facilities to
the village, as described in the franchise.
A.Â
Standard installations. Standard installation shall consist
of a service not exceeding 150 feet from a single point or pedestal attachment
to the customer's residence. The one-hundred-fifty-foot drop length specified
herein shall exclude the width of the street. Service in excess of 150 feet
and concealed wiring shall be charged not to exceed additional installation
costs before installation begins. The desire of the subscriber as to the point
of entry into the residence shall be observed whenever possible. Runs in building
interiors shall be as unobtrusive as possible. The grantee shall use due care
in the process of installation and shall repair any damage to the subscriber's
property caused by said installation. Such restoration shall be undertaken
within no more than 10 days after the damage is incurred and shall be completed
as soon as possible thereafter.
B.Â
Deposits. Any deposit required by the grantee shall bear
interest at a rate of not less than 8% or such lower amount as established
by state law or regulation.
C.Â
Antennas and antenna switches. The grantee shall not,
as a condition to providing cable communications service, require any subscriber
or potential subscriber to remove any existing antenna structures for the
receipt of over-the-air television signals. The grantee shall install, upon
the request of the subscriber, an RF or antenna switch where required for
the provision of services provided by the grantee.
D.Â
Lockout devices. The grantee shall provide to the potential
subscriber, as part of its promotional literature, information concerning
the availability of a lockout device for use by a subscriber. The grantee
reserves the right to require a reasonable deposit for the use of this device,
as set forth in the rate schedule. The lockout device described herein shall
be made available to all subscribers requesting it beginning on the first
day that any cable service is provided.
E.Â
Reconnection. The grantee shall restore service to customers
wishing restoration of service, provided that the customer shall first satisfy
any previous obligations owed. The grantee may require a deposit or refuse
service to any applicant for bona fide credit reasons which relate to the
applicant's overdue or delinquent account with the grantee and may levy
reasonable collection charges on overdue or delinquent accounts.
F.Â
Free disconnection. Subscribers shall have the right
to have cable services disconnected without charge. Such disconnection shall
be made as soon as practicable and in no case later than 15 days following
notice to the grantee of the same. A refund of unused service charges shall
be paid to the customer within 30 days from the date of termination of service.
G.Â
Delinquent accounts. The grantee shall use its best efforts
to collect on delinquent subscriber accounts. Service will not be disconnected
if a delinquent customer agrees at any time to be placed on a regular payment
plan to clear the account. In all cases, the grantee shall provide the customer
with at least 10 working days' written notice prior to disconnection.
A.Â
The company shall establish, operate and maintain a business
office and maintenance and repair facility for the purpose of receiving inquiries,
requests and complaints concerning all aspects of the construction, installation,
operation and maintenance of the system and for the payment of subscribers'
service charges and providing facilities for the production of programming.
B.Â
The grantee shall have a listed, locally staffed telephone
number for subscriber service calls, and such telephone service shall be available
24 hours a day, seven days a week. The grantee shall provide a sufficient
number of telephone lines and telephone staff members to enable subscribers
to reach the grantee without unreasonable delay. The grantee's number
shall be published and made available to subscribers and the general public.
The grantee shall, in addition, provide an unlisted, locally staffed telephone
number to the village and utility companies to enable the village or the utility
companies to reach the grantee in case of emergency on a twenty-four-hour,
seven-days-a-week basis.
C.Â
The grantee shall respond to and resolve subscribers'
complaints or requests for service in connection with repairs and maintenance
and malfunctions of system facilities. The grantee shall respond as quickly
as possible to such complaints and requests, but shall in any case respond
within 24 hours. Complaints or requests which may pose a potential health
and safety hazard will be responded to immediately. In connection with billing
complaints, the grantee shall respond within seven business days.
D.Â
The grantee shall prepare and file with the village copies
of all of its rules and regulations in connection with the handling of inquiries,
requests and complaints. The grantee shall, by appropriate means, such as
a card or brochure, furnish information concerning the procedures for making
inquiries or complaints, including the name, address and local telephone number
of the employee or employees or agent to whom such inquiries or complaints
are to be addressed and furnish information concerning the village office
responsible for the administration of the franchise, including, but not limited
to, the address and telephone number of said office.
E.Â
The grantee shall keep full records in connection with
all inquiries, complaints and requests in connection with the system which
require corrective action or referral to a supervisor and any written complaint.
Such records shall identify the person contacting the grantee and the person
responding on behalf of the grantee, the subject matter of the contact, the
date and time it was received, the resolution of the matter in question or
the action taken by the grantee in connection with the contact and the date
and time thereof and such other information as may be deemed pertinent by
the grantee. These records shall be made available for periodic inspection
by the village.
F.Â
The grantee shall service or replace without charge all
equipment provided by it to the subscriber; provided, however, that the grantee
may charge a subscriber for service to or replacement of any equipment damaged
due to negligence of such subscriber.
G.Â
For recurrent complaints regarding service deficiencies
(other than total or partial loss of service, such as ghosting, weak audio
signal, distortion and the like), the Village Mayor may require the grantee
to investigate and report to him or her the causes and cures thereof, and
the Village Mayor may also conduct his or her own investigation. Thereafter,
the Village Mayor may order specified remedial action to be taken within reasonably
feasible time limits. If such action is not taken or is ineffective or if
within 30 days the grantee files with the Cable TV Advisory Committee a notice
of objection to the order, the Cable TV Advisory Committee may conduct a hearing
and may, if the evidence warrants a finding of fault on the part of the grantee,
take appropriate action pursuant to the terms of this article.
A.Â
It shall be the right of all subscribers to receive continuous,
uninterrupted service insofar as their financial and other obligations to
the grantee are honored.
B.Â
In the event that the grantee elects to rebuild, modify
or sell the system or the village gives notice of intent to terminate or fails
to renew its franchise, the grantee shall cooperate with the village or new
grantee or operator in maintaining continuity of service to all subscribers.
During such period, the grantee shall be entitled to the revenues for any
period during which it operates the system and shall be entitled to reasonable
costs for the services when it no longer operates the system.
C.Â
Failure to provide continuity. In the event that the
grantee fails to operate the system for seven consecutive days without prior
approval of the village or without just cause, the village may, at its option,
operate the system or designate an operator until such time as the grantee
restores service under conditions acceptable to the village or a permanent
operator is selected. If the village is required to fulfill this obligation
for the grantee, the grantee shall reimburse the village for all reasonable
costs or damages in excess of revenues from the system received by the village
that are the result of the grantee's failure to perform.
A.Â
Protection of subscriber privacy mandatory. The grantee
shall at all times protect the privacy of subscribers, as provided in this
article and other applicable federal, state and local laws.
B.Â
Notice of privacy provisions. At the time of entering
into an agreement to provide any cable service or other service to a subscriber
and at least once a year thereafter, the grantee shall provide notice in the
form of a separate written statement to the subscriber which clearly and conspicuously
informs the subscriber of:
(2)Â
The nature of personally identifiable information collected
or to be collected with respect to the subscriber and the nature of the use
of such information.
(3)Â
The nature, frequency and purpose of any disclosure which
may be made of such information, including an identification of the types
of persons to whom the disclosure may be made.
(4)Â
The period during which such information might be maintained
by the cable operator.
(5)Â
The times and place at which the subscriber may have
access to such information in accordance with this article and other applicable
federal, state and local law.
C.Â
Collection of personally identifiable information prohibited.
The grantee shall not use or permit the use of the cable system to collect
personally identifiable information concerning any subscriber, except as necessary
to render a cable service or other service provided by the cable operator
to the subscriber. The grantee shall not install or permit the installation
of any special terminal equipment in any subscriber's premises for the
two-way transmission of any aural, visual or digital signals without the prior
written consent of the subscriber. The grantee shall not tabulate nor permit
others to tabulate any subscriber use of the cable system which would reveal
the opinions or commercial product preferences of individual subscribers,
whether residential or business, or of any occupant or user of the subscriber's
premises without written authorization from the subscriber for his or her
participation in a shop-at-home or similar service. When providing such service,
the grantee may tabulate only those responses essential to the functioning
of that shopping or other service and may not use any such tabulation of individual
preferences for any other purposes. Tabulations of aggregate opinion or preference
are permitted, provided that the aggregations are sufficiently large to assure
individual privacy.
D.Â
Personally identifiable information will not be disclosed
without conforming to § 631 of the Cable Act.
E.Â
The grantee shall not predicate regular subscriber service
on the subscriber's grant or denial of permission to collect, maintain
or disclose personally identifiable information. A subscriber may at any time
revoke any permission previously given by delivering to the grantee a written
statement of that intent.
F.Â
Each subscriber shall be provided access to all personally
identifiable information regarding such subscriber that the grantee collects
or maintains or allows to be collected or maintained, and such subscriber
shall be provided the opportunity to correct any error in such information.
G.Â
Any information concerning individual subscriber viewing
habits or responses, except for information for billing purposes, shall be
destroyed when no longer required for business purposes or otherwise required
to be kept by law.
H.Â
This section is not intended to prohibit the use or transmission
of signals useful only for the control or measurement of system performance.
A.Â
Nondiscrimination required. The grantee shall not deny
service, deny access or otherwise discriminate against subscribers, channel
users or general citizens on the basis of race, color, religion, national
origin, age, sex or physical or mental handicaps, provided that the subscriber
shall pay all applicable fees for the service desired. The grantee shall comply
at all times with all other applicable federal, state and local laws and regulations
and all executive and administrative orders relating to nondiscrimination
which are hereby incorporated and made part of this article by reference.
B.Â
Fairness of accessibility. The entire system of the grantee
shall be operated in a manner consistent with the principles of fairness and
equal accessibility of its facilities, equipment, channels, studios and other
services to all citizens, businesses, public agencies and other entities having
a legitimate use for the network; and no one shall be arbitrarily excluded
from its use; allocation of use of said facilities shall be made according
to the rules or decisions of the grantee and any regulatory agencies affecting
the same.
C.Â
Information accessibility.
(1)Â
Each individual shall have the right to information concerning
the provisions of this article and the rules and regulations formulated pursuant
to it by the Village Board of Trustees, the grantee, agent or entity created
hereunder or pursuant to this article available at the Village Hall. The location
and hours of operation for the delivery of such information shall be published
in the newspaper of the greatest circulation within the village and in such
other media as the Village Board of Trustees may determine.
(2)Â
Such information as may herein be prescribed will be
made available to the public and individual subscribers in such form required
for understanding, including the deaf and blind, and in such languages as
may be specified by the Village Board of Trustees.
(3)Â
Each individual shall have the right to representation
on such boards, commissions, agencies or other entities created hereunder
or hereafter by the Village Board of Trustees pursuant to the provisions of
this article. Such representation by citizens of the village shall be in the
manner and form as the Village Board of Trustees may determine, ensuring equal
participation of all protected groups. The grantee shall strictly adhere to
the equal employment opportunity requirements of federal, state and local
regulations, as may be applicable, and as amended from time to time.
A.Â
The village shall have the right to inspect all books,
records, reports, maps, plans, financial statements and other like materials
of the grantee at any time upon reasonable notice during normal business hours
necessary to the enforcement of this article and the franchise. The grantee
shall provide such information in such form as may be required by the village
for said records. The village agrees to treat as proprietary any information
identified as such by the grantee and shall not intentionally divulge any
such information publicly or to actual or potential competitors of the grantee,
except as may be required in a legal proceeding or ordered by a court of competent
jurisdiction.
B.Â
The grantee shall permit any duly authorized representative
of the village to examine and copy or transcribe any and all maps and other
records kept or maintained by the grantee or under its control concerning
the operations, affairs, transactions or property of the grantee. If any of
such maps or records are not kept in the village or upon reasonable request
made available in the village and if the village shall determine that an examination
of such maps or records is necessary or appropriate to the performance of
any of its duties, then all travel and maintenance expenses necessarily incurred
in making such examination shall be paid by the grantee.
Upon request of the village, the grantee shall file with the village
a copy of any technical, operational or financial report the grantee submits
to the Commission, the FCC or other governmental entities that concern, directly
or indirectly, the grantee's operation of the cable communications system
in the village.
A.Â
The grantee shall prepare and submit to the village an
annual report setting forth the physical miles of plant construction and plant
in operation within the village during the grantee's previous fiscal
year.
B.Â
The grantee shall file with the village, simultaneously
with its delivery to subscribers in the village, copies of all printed materials
prepared for general distribution to subscribers or a particular classification
of subscribers.
C.Â
Unless the village provides written notice to the contrary,
the following system and operational reports shall be submitted annually,
by March 1, to the village:
(1)Â
An annual summary of the previous year's activities,
including but not limited to subscriber totals for each category of service
offered, including number of pay units sold, new services offered and the
character and extent of the service rendered to other users of the system.
(2)Â
An annual summary of service requests and complaints
received and handled.
(3)Â
An annual summary of the number of area outages, the
reasons therefor and the action and time taken to restore service.
(4)Â
The required performance bond or a certified copy thereof
and written evidence of payment of required premium and all policies of insurance
required by this article or certified copies thereof and written notice of
payment of required premium.
D.Â
The grantee shall make available to the village such
additional information and records with respect to the operation, affairs,
transactions or property of the cable communications system and the service
provided to the village under this franchise, as may be reasonably necessary
and appropriate to the performance of any of the rights, functions or duties
of the village in connection with this franchise as determined by the village.
E.Â
Additional reports. The grantee shall prepare and furnish
to the village at the times and in the form prescribed such additional reports
with respect to its operation, affairs, transactions or property as may be
reasonably necessary and appropriate to the performance of any of the rights,
functions or duties of the village in connection with this article or the
franchise.
A.Â
Mandatory records. The grantee shall at all times maintain:
(1)Â
A record of all complaints received under the provisions of § 79-44E above and interruptions or degradation of service experience for the preceding period prior to a performance review.
(2)Â
A full and complete set of plans, records and as-built
maps showing the exact location of all cable communication system equipment
installed or in use in the village, exclusive of subscriber service drops.
(3)Â
Employment records as required by FCC rules.
B.Â
Other records. The village may impose reasonable requests
for additional information, records and documents from time to time.
Minimum public notice of any public meeting relating to this article
or the franchise shall be by publication at least in a newspaper of general
circulation in the area at least seven days prior to the meeting, posting
at the Village Hall, by announcement on at least one local origination channel
of the grantee's cable communications system between the hours of 11:00
a.m. and 9:00 p.m. for five consecutive days prior to the meeting.[1]
A.Â
Invitation of any applications for a franchise; public
notice of request for proposals. The village may invite applications for a
cable television franchise by means of a public notice advertising the availability
of its request for proposals. The public notice shall contain, but need not
be limited to:
(1)Â
A description of the franchise area which is sought.
(2)Â
A statement that a formal request for proposals is available
to prospective applicants from a village official whose name, address and
telephone number are specified.
(3)Â
A statement that applications for the franchise must
be submitted, in writing, in the form and manner specified in the request
for proposals no later than a day certain.
(4)Â
A statement that all applications will be made available
for public inspection during normal business hours at a specified location.
B.Â
Request for proposals. Prior to inviting any applications
for any television franchise, the village shall prepare a request for proposals
that shall contain, but need not be limited to, the following:
(1)Â
A description of the cable television system and services
desired by the village, including any system specifications established by
the village.
(2)Â
A statement specifying the form that all applications
shall follow.
(3)Â
A statement indicating the amount of the application
fee (if any) to be submitted with the application and the manner in which
such fee is to be submitted.
(4)Â
A statement that all applications must contain the information
required by the request for proposal.
(5)Â
The closing date for the submission of applications.
(6)Â
The name, address and telephone number of the village
official(s) who may be contacted for further information.
C.Â
Requirement for public hearing on reasonable notice.
The village shall conduct a public hearing prior to awarding any cable television
franchise. The hearing shall be preceded by reasonable notice to each of the
franchise applicants and to the public and shall be conducted by the Village
Board of Trustees in accordance with the following procedures:
(1)Â
There shall be an agenda for the hearing which shall
specify the proposal(s) to be considered at the hearing.
(2)Â
Every person who has applied for a cable television franchise
shall appear at the hearing either in person or by authorized representative.
The application of any applicant not so appearing shall not be further considered,
except for good cause shown.
(3)Â
All persons shall be given opportunity to participate
in the hearing, but nothing contained herein shall limit the power of the
presiding officer to establish reasonable time limits and otherwise limit
repetitive statements or questions.
(4)Â
The notice of hearing shall:
D.Â
Village discretion. The village, at its
discretion, may reject any application for a franchise. In awarding a franchise,
the village shall allow the applicant's cable system a reasonable period
of time to become capable of providing cable service to all households in
the franchise area; may require adequate assurance that the cable operator
will provide adequate public, educational and governmental access channel
capacity, facilities or financial support; and may require adequate assurance
that the cable operator has the financial, technical or legal qualifications
to provide cable service.