The purpose of this chapter is to:
A.
Establish
a local policy concerning cable systems, open video systems, and private
communication systems that use the public rights-of-way in the City;
B.
Promote
the availability of diverse, multimedia information resources to the
community; enhance educational opportunities throughout the community
and build a stronger community;
C.
Encourage
the provision of advanced and competitive cable or open video system
services on the widest possible basis to the businesses, institutions
and residents of the City;
D.
Encourage
economic development while preserving aesthetic and other community
values and prevent proliferation of aboveground facilities; and
E.
Encourage
universal access to video programming services for all residents and
businesses.
As used in this chapter:
A.
The
masculine includes the feminine, the singular includes the plural
and the present tense includes the future tense.
B.
The
word "person" includes an individual, firm or corporation.
C.
The
word "shall" is always mandatory.
D.
Words
not defined in this chapter shall have the same meaning as in Title
VI of Title 47 of the United States Code and, if not defined therein,
their common and ordinary meaning.
E.
References
to governmental entities (whether persons or entities) refer to those
entities or their successors in authority. If specific provisions
of law referred to herein are renumbered, then the reference shall
be read to refer to the renumbered provision.
F.
References
to laws, ordinances or regulations shall be interpreted broadly to
cover government actions, however nominated, and include laws, ordinances
and regulations now in force or hereinafter enacted or amended.
Unless the context of the chapter otherwise requires, the following
definitions of words and phrases shall be used in the interpretation
and construction of this chapter.
The availability of a cable system or open video system for
public, educational or governmental use (including institutional network
use) by various agencies, institutions, organizations, groups, and
individuals, including the City and its designated access providers,
to acquire, create, and distribute programming not under a franchisee's
editorial control, including, but not limited to:
PUBLIC ACCESS or PUBLIC USEAccess where organizations, groups, or individual members of the general public, on a nondiscriminatory basis, are the primary or designated programmers or users;
EDUCATIONAL ACCESS or EDUCATIONAL USEAccess where school districts and not-for-profit educational institutions chartered by the New York State Education Department of Regents are the primary or designated programmers or users; and
GOVERNMENTAL ACCESS or GOVERNMENTAL USEAccess where municipal, county or state government, or agencies thereof, are the primary or designated programmers or users having editorial control over their programming.
A person who (directly or indirectly) owns or controls, is
owned or controlled by, or is under common ownership or control with
another person.
Any service tier regularly provided to all subscribers which
includes the retransmission of local television broadcast signals
and PEG access channels.
The Cable Communications Policy Act of 1984, 47 U.S.C. § 521
et seq., as amended by the Cable Television Consumer Protection and
Competition Act of 1992, as further amended by the Telecommunications
Act of 1996, as further amended from time to time.
An open video system (OVS) or cable system, except for:
The one-way transmission to subscribers of video programming
or other programming service, and subscriber interaction, if any,
which is required for the selection or use of such video programming
or other programming service.
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 video programming
and which is provided to multiple subscribers within a community,
including programming delivered in Internet protocol format, 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 subscribers without using, or connecting
to a facility that uses, any public rights-of-way within the City;
A facility of a common carrier which is subject, in whole or
in part, to the provisions of Title II (Common Carriers) of the Communications
Act of 1934, as amended, except that such facility shall be considered
a cable system to the extent such facility is used in the transmission
of video programming directly to subscribers, unless the extent of
such use is solely to provide interactive on-demand services;
Any facilities of any electric utility used solely for operating
its electric utility systems;
An OVS that is certified by the FCC; or
A video service provided over the public Internet using Internet
protocol, or any successor protocol that is not offered by, or not
offered as part of a package of video services offered by, a video
service provider or its affiliate.
A portion of the electromagnetic frequency spectrum which
is used in a cable system or OVS and which is capable of delivering
a television signal whether in an analog or digital format. The definition
does not restrict the use of any channel to the transmission of analog
television signals or one-way transmission.
City of Saratoga Springs and all departments, divisions,
and agencies thereof.
The named actions interpreted broadly, encompassing, among
other things, installation, extension, maintenance, replacement of
components, relocation, undergrounding, grading, site preparation,
adjusting, testing, make-ready, and excavation.
A channel designed and activated to carry a transmission
from the headend to other points on a cable communications system,
including interconnections.
The Federal Communications Commission.
An authorization granted by the City to the operator of a
cable communications system giving the operator the nonexclusive right
to occupy the space, or use facilities upon, across, beneath, or over
public rights-of-way in the City, to provide specified services within
a franchise area.
The area of the City that a franchisee is authorized to serve
by the terms of its franchise or by operation of law.
A person holding a cable communications system franchise
granted by the City.
All cash, credits, property, or other consideration of any
kind or nature received directly or indirectly by a franchisee or
its affiliates from any source whatsoever arising from, attributable
to, or in any way derived from a franchisee's operation of a
cable system to provide cable service within the franchise area. "Gross
revenues" includes, but is not limited to, fees charged to subscribers
for basic service; fees charged to subscribers for any optional premium
per-channel, per-program, or video-on-demand service; monthly fees
charged to subscribers for any tier of service other than basic service;
installation, disconnection, reconnection, and change-in-service fees;
leased channel fees; fees, payments, or other payment received as
consideration from programmers for carriage of programming on the
cable system; converter rentals or sales; advertising revenues, including
a per capita share of advertising revenues for advertising carried
on more than one cable system; revenues from home shopping channels;
sales of programming guides; and such other revenue sources as may
now exist or hereafter develop. The definition shall be interpreted
in a manner which permits the City to collect the maximum franchise
fee permitted by law, irrespective of the source of revenue. "Gross
revenues," however, shall not include any bad debt (defined as unpaid
subscriber or advertiser accounts) or any taxes on services imposed
directly upon any subscriber (but not on a franchisee) or user by
the state, City, or other governmental unit and collected by a franchisee
on behalf of said governmental unit. The amount paid as a franchise
fee shall not be deducted from gross revenues unless required to be
deducted under federal law.
The Mayor of the City or the Mayor's designee.
A person:
Who directly or through one or more affiliates provides service
over a cable communications system and directly or through one or
more affiliates owns a significant interest in such facility; or
Who otherwise controls or is responsible for, through any arrangement,
the management and operation of such a facility.
An open video system. A reference to an OVS includes pedestals,
equipment enclosures (such as equipment cabinets), amplifiers, power
guards, nodes, cables, fiber optics and other equipment necessary
to operate the OVS or installed in conjunction with the OVS.
Any individual, corporation, partnership, association, joint-stock
company, trust, or any other legal entity, but not the City.
Any property that is owned or under the control of the City
that is not a public right-of-way, including, for purposes of this
chapter, but not limited to, buildings, parks, poles, structures in
the public rights-of-way such as utility poles and light poles, or
similar facilities or property owned by or leased to the City.
The surface of and the space above and below any street,
road, highway, freeway, bridge, lane, path, alley, court, sidewalk,
parkway, drive, or right-of-way or easement primarily dedicated to
travel, now or hereafter existing within the City, which may be properly
used for the purpose of installing, maintaining, and operating a cable
communications system, and any other property that a franchisee is
entitled by state or federal law to use by virtue of the grant of
a franchise.
The City or any person who is lawfully receiving, for any
purpose or reason, any cable service via a cable communications system,
whether or not a fee is paid for such service.
A channel designed and activated to carry transmissions from
a point on the cable system, other than the headend, to the headend
or another point on the cable system.
No person may construct or operate a cable communications system
in the City without first obtaining a City franchise therefor.
Any franchise shall be issued in the form of a contract and
must be executed by both the City and the franchisee to become effective.
A.
Scope.
A franchise granted pursuant to this Code shall authorize and permit
a franchisee to construct, operate and repair a cable system or an
OVS (as applicable) to provide cable service in the City and for that
purpose to erect, install, construct, repair, replace, reconstruct,
maintain facilities appurtenant to such cable system in, on, over,
under, upon, across, and along those public rights-of-way that the
City may authorize a franchisee to use.
B.
Nothing
passes by implication. A franchise shall not convey rights other than
as specified in this chapter or in a franchise agreement; no rights
shall pass by implication.
C.
Franchise
not in lieu of other authorizations. A franchise shall not include,
or be a substitute for:
(1)
Complying with requirements for the privilege of transacting and
carrying on a business within the City, including but not limited
to complying with the conditions the City may establish before constructing
facilities for, or providing, noncable services;
(2)
Any permit, agreement or authorization required in connection with
operations on or in public rights-of-way or public property, including,
by way of example and not limitation, street cut permits; or
(3)
Any permits or agreements for occupying any other property of the
City or private entities to which access is not specifically granted
by the franchise.
D.
Franchisee
must comply with other laws. A franchise does not relieve a franchisee
of its duty to comply with all City ordinances and regulations, and
every franchisee must comply with the same. Likewise, the rights granted
under a franchise are subject to the exercise of police and other
powers the City now has or may later obtain, including but not limited
to the power of eminent domain. Every franchise shall be deemed to
incorporate all the requirements of the City Code.
E.
Franchise
not a grant of property rights. A franchise does not convey title,
equitable or legal, in the public rights-of-way. Rights granted may
not be subdivided or subleased.
F.
Franchise
nonexclusive. No franchise shall be exclusive, prevent the City from
issuing other franchises or authorizations, or prevent the City from
itself constructing, operating, or repairing its own cable communications
system, with or without a franchise.
G.
Franchise
term. Every franchise shall be for a term of years, which term shall
be eight years, unless a franchise specifies otherwise.
H.
Costs
borne by franchisee. Unless otherwise specifically stated in a franchise
or required by law, all acts which a franchisee is required to perform
under the franchise or applicable law must be performed at the franchisee's
expense.
I.
Failures
to perform. If a cable communications system operator fails to perform
work that it is required to perform within the time provided for performance,
the City may perform the work and bill the operator therefor. The
operator shall pay the amounts billed within 30 days.
A.
Adoption
of regulations. The City may, from time-to-time, adopt regulations
to implement the provisions of this chapter. This chapter, and any
regulations adopted pursuant to this chapter, are not contracts with
any franchisee and may be amended at any time.
B.
Delegation.
The Mayor or his/her designee (hereafter referred to as the "Cable
Administrator") is hereby authorized to administer the provisions
of this chapter and any franchise issued pursuant thereto and to provide
any notices (including noncompliance notices) and to take any action
on the City's behalf that may be required hereunder or under
applicable law.
C.
No
waiver. The failure of the City, upon one or more occasions, to exercise
a right or to require compliance or performance under a franchise
or any other applicable law shall not be deemed to constitute a waiver
of such right or a waiver of compliance or performance, unless such
right has been specifically waived in writing.
D.
Administration
of public, educational and government access. The City may designate
one or more entities, including itself, to control and manage the
use of public, educational and governmental access channels, facilities
and equipment.
A.
Prior
approval required. Every franchise shall be deemed to be held in trust
and to be personal to the franchisee. Any transfer that is made without
the prior approval of the City shall be deemed to impair that trust.
A transfer is any transaction pursuant to which:
(1)
A cable communications system or the rights and/or obligations held
by the franchisee under the franchise are transferred, sold, assigned,
or leased, in whole or in part, directly or indirectly, to another
person (except the term does not include sale of portions of the cable
system that are removed); or
(2)
There is any change, acquisition, or transfer of control of the franchisee
or its direct or indirect parents, whether by merger, consolidation,
sale of assets or ownership interests, or any other means. A transfer
occurs whenever there is a change in actual working control, in whatever
manner exercised, over the affairs of a franchisee or its direct or
indirect parents. Without limiting the above, any change in the general
partners of a franchisee will be presumed a change in control.
B.
Exception
for mortgages. Notwithstanding any other provision of this chapter,
pledges in trust or mortgages of the assets of a cable communications
system to secure the construction, operation, or repair of the cable
system may be made without application and without the City's
prior consent. However, no such arrangement may be made if it would
in any respect under any condition 1) prevent the cable communications
system operator or any successor from complying with the franchise
or applicable law or 2) permit a third party to succeed to the interest
of the franchisee, or to own or control the system, without the prior
consent of the City. Any mortgage, pledge or lease shall be subject
to and subordinate to the rights of the City under any franchise,
this chapter, or other applicable law.
A.
Franchisee
must follow local rules. The construction, operation, and repair of
cable communications systems shall be performed in compliance with
all laws, ordinances, departmental rules, regulations, and practices
affecting such cable communications system. By way of example, and
not limitation, this includes zoning and safety codes, construction
standards, regulations for providing notice to persons that may be
affected by system construction, and directives governing the time,
place and manner in which facilities may be installed in the rights-of-way.
Persons engaged in the construction, operation, or repair of communications
facilities shall exercise reasonable care in the performance of all
their activities and shall use commonly accepted methods and devices
for preventing failures and accidents that are likely to cause damage,
injury, or nuisance to the public or to property.
B.
No
permit without franchise. A franchise is required before a permit
may be issued for work associated with the construction of a cable
communications system. Any permit issued for such work to a person
that does not hold a franchise shall vest no rights in the permittee;
the permit may be revoked at will, and the permittee shall remove
all facilities installed under the permit upon the City's demand.
C.
Permits
must be obtained. Construction, operation, or repair of a cable communications
system shall not commence until all required permits have been obtained
from the proper City official and all required fees have been paid.
All work performed will be performed in strict accordance with the
conditions of the permit. Upon order of the City, any work and/or
construction undertaken that is not completed in compliance with the
City's requirements, or which is installed without obtaining
necessary permits and approvals, shall be removed.
D.
No
interference. Interference with the use of the public rights-of-way
by others, including others that may be installing cable communications
systems, must be minimized. The City may require a person using the
public rights-of-way to cooperate with others through joint trenching
and other arrangements to minimize adverse impacts on the rights-of-way.
E.
Existing
poles to be used. To the extent possible, operators of cable communications
systems shall use existing poles and conduits. Additional poles may
not be installed in the public rights-of-way, nor may pole capacity
be increased by vertical or horizontal extenders, without the permission
of the City.
F.
Undergrounding.
(1)
Whenever all existing utilities are located underground in an area
in the City, every cable communications system operator in the same
area must locate its cable communications system underground.
(2)
Whenever the owner of a pole locates or relocates underground within
an area of the City, every cable communications system operator in
the same area shall concurrently relocate its facilities underground.
(3)
The City may, for good cause shown, exempt a particular system or
facility or group of facilities from the obligation to locate or relocate
facilities underground, where relocation is impractical or where the
interest in protecting against visual blight can be protected in another
manner. Nothing in this section prevents the City from ordering communications
facilities to be located or relocated underground under other provisions
of the general City law.
G.
Prompt
repairs. Any and all public rights-of-way, other public property,
or private property that is disturbed or damaged during the construction,
operation or repair of a cable communications system shall be promptly
repaired by the operator. Public property and public rights-of-way
must be restored to the satisfaction of the City or to a condition
as good as or better than before the disturbance or damage occurred.
H.
Movement
of facilities for government.
(1)
A cable communications system operator shall, by a time specified
by the City, protect, support, temporarily disconnect, relocate, or
remove any of its property when required by the City by reason of
traffic conditions; public safety; public rights-of-way construction
and repair (including regrading, resurfacing or widening); public
rights-of-way vacation; construction, installation or repair of sewers,
drains, water pipes, power lines, signal lines, tracks, or any other
type of government-owned system or utility, public work, public facility,
or improvement; or for any other purpose where the work involved would
be aided by the removal or relocation of the cable communications
system. Collectively, such matters are referred to below as the "public
work."
(2)
The City shall provide written notice describing where the public
work is to be performed at least one week prior to the deadline by
which a cable communications system operator must protect, support,
temporarily disconnect, relocate or remove its facilities. In an emergency,
or where a cable communications system creates or is contributing
to an imminent danger to health, safety, or property, the City may
protect, support, temporarily disconnect, remove, or relocate any
or all parts of the cable communications system without prior notice
and charge the cable communications system operator for costs incurred.
I.
Movement
for others.
(1)
To accommodate the construction, operation, or repair of the facilities
of another person authorized to use the streets or public property,
a franchisee shall, by a time specified by such person, protect, support,
temporarily disconnect, relocate or remove its facilities. The franchisee
must be given written notice describing where the construction, operation
or repair is to be performed at least 15 days prior to the time by
which its work must be completed. The City may resolve disputes as
to responsibility for costs associated with removal, relaying, or
relocation of facilities among entities authorized to install facilities
in the streets or on public property if such entities are unable to
do so themselves.
(2)
A cable communications system operator shall, on the request of any
person holding a valid permit issued by a governmental authority,
temporarily raise or lower its wires by a time specified to permit
the moving of buildings or other objects. A cable communications system
operator shall be given not less than seven days' advance notice
to arrange for such temporary wire changes. The expense of such temporary
removal or raising or lowering of wires shall be paid by the person
requesting the same.
J.
Abandonment
in place.
(1)
A cable communications system operator may abandon any property in
place in the public rights-of-way upon written notice to the City.
However, if, within 90 days of the receipt of written notice of abandonment,
the City determines that the safety, appearance, functioning or use
of the public right-of-way and facilities in the public rights-of-way
will be adversely affected, the property must be removed by a date
specified by the City.
(2)
A cable communications system operator that abandons its property
must, upon request from the City Council, transfer ownership of the
properties to the City at no cost and execute necessary quitclaim
deeds and indemnify the City against future costs associated with
mitigating or eliminating any environmental hazard associated with
the abandoned property.
K.
System
subject to inspection. Every cable communications system facility
shall be subject to inspection and testing by the City. Each operator
must respond to requests for information regarding its system and
plans for the system as the City may from time to time issue, including
requests for information regarding its plans for construction, operation
and repair and the purposes for which the plant is being constructed,
operated, or repaired.
L.
Underground
services alert. Each operator of a cable communications system that
places facilities underground shall be a member of the regional notification
center for subsurface installations (Underground Services Alert) and
shall field mark the locations of its underground communications facilities
upon request. The operator shall locate its facilities for the City
at no charge.
M.
Plan
for construction. Each cable communications system operator shall
provide the City a plan for any initial system construction, or for
any substantial rebuild, upgrade or extension of its facility, which
shall show its timetable for construction of each phase of the project
and the areas of the City that will be affected.
N.
Use
of facilities by City. The City shall have the right to install and
maintain, free of charge upon any poles or in any conduit owned by
a franchisee, any wire and pole fixtures that do not unreasonably
interfere with the cable service operations of the franchisee.
A.
Indemnity required. No franchise shall be valid or effective until
and unless the City obtains an adequate indemnity from the franchisee
and such indemnity is maintained in effect. The indemnity must:
(1)
Release the City from and against any and all loss, damage, expense,
cost (including, without limitation, the cost of litigation), liability
and responsibility in or arising out of the construction, operation
or maintenance of the cable communications system or the City's
grant of a franchise to franchisee, or franchisee's enjoyment
of the franchise. Each cable communications system operator must further
agree not to sue or seek any money or damages from the City in connection
with the above-mentioned matters.
(2)
Indemnify and hold harmless the City, its elected and appointed officers,
agents, and employees from and against any and all claims, demands,
or causes of action of any kind or nature and the resulting losses,
costs, expenses, reasonable attorneys' fees, liabilities, damages,
orders, judgments, or decrees sustained by the City or any third party
arising out of, or by reason of, or resulting from or of the acts,
errors, or omissions of the cable communications system operator,
or its agents, independent contractors or employees, related to or
in any way arising out of the construction, operation, maintenance
or repair of the system.
(3)
Provide that the covenants and representations relating to the release,
indemnification, and hold harmless provision shall survive the term
of the franchise or other authorization and continue in full force
and effect as to the franchisee's responsibility to indemnify.
B.
Insurance required. A franchisee (and/or those acting on its behalf)
shall not commence construction or operation of the cable system without
obtaining insurance in amounts and of a type satisfactory to the City.
The required insurance must be obtained and maintained for the entire
period the franchisee has facilities in the public rights-of-way.
If the franchisee, its contractors, or subcontractors do not maintain
the required insurance, the City may order such entities to cease
operations until such time as the insurance is obtained and approved
by the City.
C.
Proof. Certificates of insurance, reflecting evidence of the required
insurance and naming the City as an additional insured, and other
proofs as the City may find necessary, shall be filed with the City.
For persons issued franchises after the effective date of this chapter,
certificates and other required proofs shall be filed 30 days prior
to the issuance of a franchise, once a year thereafter, and whenever
there is any change in coverage. For entities that have facilities
in the public rights-of-way as of the effective date of this chapter,
the certificate shall be filed within 60 days of the effective date
of this chapter, annually thereafter, and whenever there is any change
in coverage, unless a preexisting franchise provides for the filing
of certificates in a different manner.
D.
Certificate contents. Certificates shall contain a provision that
coverages afforded under these policies will not be canceled until
at least 30 days' prior written notice has been given to the
City. Policies shall be issued by companies authorized to do business
under the laws of the State of New York. Financial ratings must be
no less than "A" in the latest edition of "Bests Key Rating Guide,"
published by A.M. Best Guide.
E.
Insurance amounts. A cable communications system operator and those
acting on its behalf to construct or operate the cable system shall
each maintain the following minimum insurance. The City shall be named
as an additional insured on all such policies by endorsement on the
general liability and excess policies; those insurance policies shall
be primary and contain a cross-liability clause.
(1)
Comprehensive general liability insurance to cover liability, bodily
injury and property damage.
(a)
Exposures to be covered are premises, operations, products/completed
operations, and certain contracts. Coverage must be written on an
occurrence basis, with the following limits of liability:
|
Coverage
|
Limits
| ||
|---|---|---|---|
|
Bodily injury
| |||
|
Each occurrence
|
$1,000,000
| ||
|
Annual aggregate
|
$2,000,000
| ||
|
Property damage
| |||
|
Each occurrence
|
$1,000,000
| ||
|
Annual aggregate
|
$2,000,000
| ||
|
Personal injury
| |||
|
Annual aggregate
|
$3,000,000
| ||
(b)
Completed operations and products liability shall be maintained
after the termination of the franchise or license (in the case of
the cable communications system owner or operator) or completion of
the work for the cable communications system owner or operator (in
the case of a contractor or subcontractor) for the duration of the
applicable statute of limitations.
(c)
Property damage liability insurance shall include coverage for
the following hazards: X - explosion, C - Collapse, U - underground.
(2)
Workers' compensation insurance shall be maintained during the
life of this contract to comply with statutory limits for all employees,
and in the case any work is sublet, each cable communications system
operator shall require the subcontractors similarly to provide workers'
compensation insurance for all the latter's employees unless
such employees are covered by the protection afforded by each cable
communications system operator. Each cable communications system operator
and its contractors and subcontractors shall maintain during the life
of this policy employers' liability insurance. Workers'
compensation insurance shall include a waiver of subrogation clause
in favor of the City. The following minimum limits must be maintained:
(3)
Comprehensive auto liability. Coverage shall include owned, hired,
and nonowned vehicles.
|
Coverage
|
Limits
| ||
|---|---|---|---|
|
Bodily injury
| |||
|
Each occurrence
|
$1,000,000
| ||
|
Annual aggregate
|
$3,000,000
| ||
|
Property damage
| |||
|
Each occurrence
|
$1,000,000
| ||
|
Annual aggregate
|
$3,000,000
| ||
(4)
Excess insurance. Annual aggregate: $5,000,000.
F.
Performance bond. Every operator of a cable communications system
shall obtain and maintain a performance bond to ensure the faithful
performance of its responsibilities under this chapter and any franchise.
The amount of the performance and payment bonds shall be set by the
City Council and may be set in a franchise contract in light of the
nature of the work to be performed but shall not be less than 10%
of the estimated cost of constructing or (in the case of existing
systems) upgrading the cable system. The bond is not in lieu of any
additional bonds that may be required through the permitting process.
The bond shall be in a form acceptable to the City Attorney. Bonds
must be obtained prior to the effective date of any franchise, transfer
or franchise renewal, unless a franchise specifically provides otherwise.
G.
Security fund. Every cable communications system operator shall establish
and maintain a cash security fund or provide the City an irrevocable
letter of credit in the amount of $100,000 to secure the payment of
fees owed, to secure any other performance promised in a franchise,
and to pay any taxes, fees or liens owed to the City. The letter of
credit shall be in a form and with an institution acceptable to the
City Director of Finance and in a form acceptable to the City Attorney.
Should the City draw upon the cash security fund or letter of credit,
the cable communications system operator shall, within 14 days, restore
the fund or the letter of credit to the full required amount. This
security fund/letter of credit may be waived or reduced by the City
for a franchisee where the City determines in its discretion that
a particular franchisee's operations are sufficiently limited
that a security fund/letter of credit is not necessary to secure the
required performance. The City may from time to time require a franchisee
to change the amount of the required security fund/letter of credit
to reflect changed risks to the City and to the public, including
delinquencies in taxes or other payments to the City. The cash security
fund or letter of credit must be obtained prior to the effective date
of any franchise, transfer, or franchise renewal, unless a franchise
specifically provides otherwise.
A.
Revocation and termination. The City Council may revoke a franchise
or reduce the term of a franchise if it finds, after public notice
and opportunity for a hearing, that a cable communications system
operator has violated this chapter or its franchise; has defrauded
or attempted to defraud the City or subscribers; or has attempted
to evade the requirements of this chapter or its franchise. The franchise
may be revoked only if the franchisee was given notice of the default
and 60 days to cure the default and failed to cure the default or
to propose a schedule for curing the default acceptable to the City
where it is impossible to cure the default in 60 days.
B.
Effect of termination or forfeiture. Upon termination or forfeiture
of a franchise, whether by action of the City, as provided above,
or by passage of time, the franchisee must stop using the cable communications
system for the purposes authorized by the franchise. The City may
take possession of some or all of franchisee's facilities or
require the franchisee or its bonding company to remove some or all
of the franchisee's facilities from the City and restore affected
property to its same, or better, condition. This provision does not
permit the City to remove facilities that are used to provide another
service for which the franchisee holds a valid franchise issued by
the City or is otherwise authorized to use the public rights-of-way
to provide another service.
C.
Remedies cumulative. Remedies provided for under this chapter or
under a franchise shall be cumulative. Recovery by the City of any
amounts under insurance, the performance bond, the security fund or
the letter of credit does not limit a franchisee's duty to indemnify
the City or relieve a franchisee of its franchise obligations or limit
the amounts owed to the City.
A.
Generally. Each cable communications system operator shall provide
the City access to books and records related in whole or in part to
the construction, operation, or repair of the cable system, or a group
of systems of which the cable system is a part, so that the City may
inspect and copy these books and records. The records include, but
are not limited to, revenue records and other records related to compliance
with any provision of this chapter or a franchise. A franchisee is
responsible for obtaining or maintaining the necessary possession
or control of all such books and records, so that it can produce the
documents upon request. Books and records must be maintained for a
period of six years, except that a franchise may specify a shorter
period for certain categories of voluminous books and records where
the information contained therein can be derived simply from other
materials. The phrase "books and records" shall be read expansively
to include information in whatever format stored.
B.
Production. Books and records requested shall be produced to the
City by a time and at a location in the City designated by the City.
However, if the requested books and records are too voluminous or
for security reasons cannot be copied and moved, then the franchisee
may request that the inspection take place at some other location
mutually agreed to by the City and the franchisee, provided that:
(1)
The franchisee must make necessary arrangements for copying documents
selected by the City after its review; and
(2)
The franchisee must pay all travel and additional copying expenses
incurred by the City (above those that would have been incurred had
the documents been produced in the City) in inspecting those documents
or having those documents inspected by its designee.
A.
Obligation to submit. The City may from time-to-time direct a franchisee
to prepare reports and to submit those reports by a date certain,
in a format prescribed by the City, in addition to those required
by this chapter for the purpose of ensuring compliance with the provisions
of this chapter and the franchise.
B.
Quarterly reports. Within 45 days of the end of each calendar quarter,
a franchisee shall submit a report to the Commissioner of Finance
for presentation to the City Council containing the following information:
(1)
The number of service calls (calls requiring a truck roll) received
during the prior quarter and the percentage of service calls compared
to the subscriber base; and
(2)
The total estimated hours of known outages as a percentage of total
hours of operation. An "outage" is a loss of sound or video on any
signal or a significant deterioration of any signal affecting two
or more subscribers.
C.
Annual reports. No later than 90 days after the end of its fiscal
year, a franchisee shall submit to the Commissioner of Finance for
presentation to the City Council the following information:
(1)
An audited or certified revenue report from the previous calendar
year for the cable communications system and a certified statement
setting forth the computation of gross revenues used to calculate
the franchise fee for the preceding year and a detailed explanation
of the method of computation showing:
(a)
Gross revenues by category (e.g., basic, pay, pay-per-view,
advertising, installation, equipment, late charges, miscellaneous,
other); and
(b)
What, if any, deductions were made from gross revenues in calculating
the franchise fee (e.g., bad debt, credits and refunds), and the amount
of each deduction.
(2)
A report showing, for each applicable customer service standard,
the franchisee's performance with respect to that standard for
each quarter of the preceding year. In each case where the franchisee
concludes it did not comply fully, the franchisee will describe the
corrective actions it is taking to assure future compliance. In addition,
the report should identify the number and nature of the customer service
complaints received and an explanation of their dispositions.
(3)
An ownership report, indicating all persons who, at the time of filing,
control or own an interest in the franchisee of 10% or more.
D.
Contemporaneous reports. Within 10 days of their receipt or (in the
case of documents created by the operator or its affiliate) filing,
a franchisee shall provide the Commissioner of Finance for presentation
to the City Council:
(1)
Notices of deficiency or forfeiture related to the operation of the
cable system; and
(2)
Any request for protection under bankruptcy laws or any judgment
related to a declaration of bankruptcy by the franchisee or by any
partnership or corporation that owns or controls the franchisee directly
or indirectly.
Each franchisee shall maintain accurate maps and improvement
plans which show the location, size, and a general description of
all facilities installed in the public rights-of-way and any power
supply sources (including voltages and connections). Maps shall be
based upon postconstruction inspection to verify location. Each franchisee
shall provide a map to the City showing the location of its facilities,
in such detail and scale as may be directed by the City Engineer,
and update the map at least annually and whenever the facility expands
or is relocated. Copies of maps shall be provided on disk, in a commercially
available electronic format specified by the City Commissioner of
Public Works.
Unless the City waives the requirement, a franchisee shall at
all times maintain:
A.
Complaint records. Records of all complaints received, their nature
and resolution. The term "complaints" refers to complaints about any
aspect of the franchisee's operations.
B.
Outage records. Records of outages known to the franchisee and their
cause and duration.
C.
Complaint response. Records of service calls for repair and maintenance
indicating the date and time service was requested, the date of acknowledgment
and the date and time service was scheduled (if it was scheduled),
and the date and time service was provided and (if different) the
date and time the problem was solved.
D.
Installation records. Records of installation/reconnection and requests
for service extension, indicating the date of request, the date of
acknowledgment, and the date and time service was extended.
E.
Customer service. Records sufficient to show whether the franchisee
has complied with each customer service standard that applies to it.
The City may, in its discretion and for an interim period that it deems fit, extend the date for a franchisee to comply with the requirements of §§ 94-12 through 94-15. Notwithstanding the foregoing, any such extension of the obligations under §§ 94-12 through 94-15 shall not exempt that franchisee from complying with all relevant and applicable New York State requirements and rules or extend any New York State required compliance requirement dates.
A franchisee shall take all reasonable steps required so that
it is able to provide reports, books and records to the City, including
by providing appropriate subscriber privacy notices. Each franchisee
shall be responsible for redacting data that applicable law prevents
it from providing to the City. Nothing in this section shall be read
to require a franchisee to violate New York State or federal subscriber
privacy laws.
A.
Fees paid quarterly. The franchise fee paid pursuant to Article II, or the fee in lieu of the franchise fee paid pursuant to Article III, shall be paid quarterly unless otherwise specified in a franchise. Payment for each quarter shall be made to the City not later than 45 days after the end of each calendar quarter.
B.
Quarterly statement. Unless a franchise provides otherwise, a franchisee or other entity subject to a fee under Article II or III shall file with the City within 45 days of the end of each calendar quarter a statement showing gross revenues during the preceding quarter and the number of subscribers served.
C.
Acceptance of payment not a release. No acceptance by the City of
any payment shall be construed as an accord that the amount paid is
in fact the correct amount, nor shall such acceptance of such payment
be construed as a release of any claim the City may have for additional
sums payable.
D.
Fee not in lieu of taxes. Neither the franchise fee under Article II nor the fee paid in lieu of the franchise fee under Article III is a payment in lieu of any tax, fee or other 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).
E.
Failure to pay franchise fee. In the event that a fee payment is
not received by the City on or before the due date set forth in this
section or in a franchise, or the fee owed is not fully paid, the
person subject to the fee will be charged interest from the due date
at an interest rate equal to 3% above the rate for three-month federal
treasury bills at the most recent United States Treasury Department
sale of such treasury bills occurring prior to the due date of the
franchise fee payment.
F.
Final statement of gross revenues. Within 90 days of the date a franchisee ceases operations under a franchise (whether because of franchise termination, transfer, or bankruptcy or for any other reason), the franchisee shall file a final statement of gross revenues covering the period from the beginning of the calendar year in which the operations ceased to the date operations ceased. The statement shall contain the information and be certified as required by § 94-13C(1).
