As used in this article, the following terms shall have the
meanings indicated:
A contract entered into in accordance with the provisions
of this chapter between the City and an OVS franchisee setting forth
the terms and conditions under which the franchise will be exercised.
A.
Initial and renewal franchise; application.
(1)
A written application shall be filed with the City for grant of an
initial or renewal franchise.
(2)
To be acceptable for filing, a signed original of the application shall be submitted together with six copies. The application must conform to any applicable request for proposals, and contain all information required under § 94-29B. All applications shall include the names and addresses of persons authorized to act on behalf of the applicant with respect to the application.
B.
Contents of applications. The City may specify the information that
must be provided in connection with a request for proposals or an
application for an initial or renewal franchise. At a minimum, each
application must identify the applicant, where it plans to construct
its system, and the system construction schedule; show that the applicant
will provide adequate channels, facilities and other support for PEG
use (including institutional network use) of the OVS; and show that
the applicant is financially, technically and legally qualified to
construct and operate the OVS.
C.
Procedure for applying for grant of franchise.
(1)
A person may apply for an initial or renewal franchise on its own
initiative or in response to a request for proposals. Upon receipt
of an application, the City shall promptly proffer the applicant a
proposed OVS agreement, which shall be mailed to the person requesting
its issuance and made available to any other interested party. The
City may request such additional information as it deems appropriate.
(2)
An applicant shall respond to requests for information completely,
and within the time directed by the City, and must strictly comply
with procedures, instructions, and requirements the City may establish.
(3)
An application may be rejected if it is incomplete or the applicant
fails to follow procedures or respond fully to information requests.
D.
Evaluation. In evaluating a franchise application, the City may consider
the following:
(1)
The extent to which the applicant has substantially complied with
the applicable law and the material terms of any existing City OVS
franchise;
(2)
Whether the applicant has the financial, technical, and legal qualifications
to hold an OVS franchise;
(3)
Whether the application satisfies any minimum requirements established
by the City for, or will otherwise provide, adequate PEG use capacity,
facilities, or financial support (including with respect to institutional
networks);
(4)
Whether issuance of a franchise would require replacement of property
or involve disruption of property, public services, or use of the
public rights-of-way; and
(5)
Whether the approval of the application may eliminate or reduce competition
in the delivery of cable service in the City.
E.
Issuance. If the City finds that it is in the public interest to
issue a franchise, considering the factors above and such other matters
as it is required or entitled to consider, and subject to the applicant's
entry into an appropriate OVS agreement, it shall issue a franchise.
Prior to deciding whether or not to issue a franchise, the City may
hold one or more public hearings or implement other procedures under
which comments from the public on an application may be received.
No franchise shall become effective until the franchise is unconditionally
accepted by the applicant and the franchise agreement is signed.
F.
Legal qualifications. In order to be legally qualified:
(1)
The applicant must be willing to comply with the provisions of this
chapter and applicable laws and to comply with such requirements of
an OVS agreement as the City may lawfully require.
(2)
The applicant must not hold a cable system franchise or have pending
an application for a cable system franchise.
(3)
The applicant must not have had any cable system or OVS franchise
validly revoked (including any appeals) by the City within three years
preceding the submission of the application.
(4)
The applicant may not have had an application for an initial or renewal
cable system franchise to the City denied on the ground that the applicant
failed to propose a cable system meeting the cable-related needs and
interests of the community, or as to which any challenges to such
franchising decision were finally resolved (including any appeals)
adversely to the applicant, within three years preceding the submission
of the application.
(5)
The applicant may not have had an application for an initial or renewal
OVS franchise denied on any grounds within three years of the application.
(6)
The applicant shall not be issued a franchise if, at any time during
the 10 years preceding the submission of the application, the applicant
was convicted of fraud, racketeering, anticompetitive actions, unfair
trade practices or other conduct of such character that the applicant
cannot be relied upon to deal truthfully with the City and the subscribers
or to substantially comply with its obligations.
(7)
The applicant must have the necessary authority under New York State
and federal law to operate an OVS and must be certified by the FCC
under Section 653 of the Cable Act.
(8)
The applicant shall not be issued a franchise if it files materially
misleading information in its application or intentionally withholds
information that the applicant lawfully is required to provide.
G.
Exception. Notwithstanding § 94-29F, an applicant shall be provided a reasonable opportunity to show that a franchise should issue even if the requirements of § 94-29F(3) through (5) are not satisfied, by virtue of the circumstances surrounding the matter and the steps taken by the applicant to cure all harms flowing therefrom and prevent their recurrence, the lack of involvement of the applicant's principals, or the remoteness of the matter from the operation of a cable system.
A.
City approval required. No transfer shall occur without prior written
notice to and approval of the City Council.
B.
Application.
(1)
A franchisee shall promptly notify the City of any proposed transfer
and submit an application for its approval.
(2)
The City may specify information that must be provided in connection
with a transfer application. At a minimum, an application must describe
the entities involved in the transaction and the entity that will
hold the franchise; describe the chain of ownership before and after
the proposed transaction; show that the entity that will hold the
franchise will be legally, financially, and technically qualified
to do so; attach complete information on the proposed transaction,
including the contracts or other documents that relate to the proposed
transaction, and all documents, schedules, exhibits, or the like referred
to therein; and attach any shareholder reports or filings with the
Securities and Exchange Commission that discuss the transaction.
(3)
For the purposes of determining whether it shall consent to a transfer,
the City may inquire into all qualifications of the prospective transferee
and such other matters as the City may deem necessary to determine
whether the transfer is in the public interest and should be approved,
denied, or conditioned. If the transferee or franchisee refuse to
provide information, or provide incomplete information, the request
for transfer may be denied.
C.
Consideration of application. In deciding whether a transfer application
should be granted, denied or granted subject to conditions, the City
may consider the legal, financial, and technical qualifications of
the transferee to operate the OVS; whether the incumbent OVS operator
is in compliance with its OVS agreement and this chapter and, if not,
the proposed transferee's commitment to cure such noncompliance;
whether the transferee owns or controls any other OVS or cable system
in the City and whether operation by the transferee may eliminate
or reduce competition in the delivery of cable service in the City;
and whether operation by the transferee or approval of the transfer
would adversely affect subscribers, the public, or the City's
interest under this chapter, the OVS agreement, or other applicable
law. The proposed transferee shall pay all reasonable costs incurred
by the City in reviewing and evaluating the applications.
D.
Minimum conditions. In order to obtain approval of a transfer, an
applicant must show, at a minimum, that the transferee is qualified;
the transfer will not adversely affect the interests of subscribers,
the public, or the City; and that noncompliance issues have been resolved.
No application shall be granted unless the transferee agrees in writing
that it will abide by and accept all terms of this chapter and the
franchise and that it will assume the obligations, liabilities, and
responsibility for all acts and omissions, known and unknown, of the
previous franchisee for all purposes.
B.
Institutional network. Any OVS operator that constructs an I-Net
must match in all respects the highest I-Net obligations borne by
any cable operator in the City, unless it agrees to alternative I-Net
obligations acceptable to the City.
C.
Construction provisions. Every OVS agreement shall specify the construction
schedule that will apply to any required construction, upgrade, or
rebuild of the OVS. The schedule shall provide for prompt completion
of the project, considering the amount and type of construction required.
D.
Testing. Each OVS operator shall perform, at its expense, such tests
as may be necessary to show whether or not the franchisee is in compliance
with its obligations under this chapter or a franchise.
E.
Consumer protection provisions. Every franchisee must satisfy customer
service consumer protection requirements established from time-to-time
under state or local law and applicable to OVS operators.
If a franchisee's FCC certification is revoked or otherwise
terminates as a result of the passage of time or as a matter of law,
the City may revoke the OVS franchise after a hearing. The OVS franchise
may also be revoked if federal regulations or statutory provisions
governing OVS are declared invalid or unenforceable, or are repealed.
The City may regulate a franchisee's rates and charges
to the extent permitted by law and may do so by amendment to this
chapter, by separate ordinance, by amendment to an OVS Agreement,
or in any other lawful manner.
A.
OVS operators. In lieu of the franchise fee required by Article II, an OVS franchisee shall pay a fee of 5% of the gross revenues of the franchisee, its affiliates or any OVS operator of an OVS in the City.
B.
Persons leasing OVS capacity.
(2)
Notwithstanding the foregoing, where an OVS operator charges a person, other than an affiliate, to use its OVS (the "use payments") and that person recovers those use payments through charges to its subscribers that are included in that person's gross revenues and that person fully recovers the use payments through the charges to its subscribers and pays a fee on those charges pursuant to Subsection B(1), then the franchisee may deduct from its gross revenues the use payments it receives from that person.
A franchisee may not require a subscriber or a building owner
or manager to enter into an exclusive contract as a condition of providing
or continuing service, nor may a franchisee enter into any arrangement
that would effectively prevent other persons from using the OVS to
compete in the delivery of cable services with a franchisee or its
affiliates. However, nothing herein prevents a franchisee from entering
into an otherwise lawful, mutually desired exclusive arrangement with
a building owner or manager of a multiple-dwelling unit or a commercial
subscriber.
