City of Rye, NY Telecommunications

The one-way transmission to subscribers of video programming, or other programming service.

Subscriber interaction, if any, or other programming which is required for the selection or use of such video programming service.

CABLE SYSTEM or CABLE TELEVISION SYSTEM [Amended 5-29-1996 by L.L. No. 4-1996]: 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, voice or data programming, and which is provided to multiple subscribers within the city. However, such terms do not include the following:

CHAPTER: The Multichannel Service Providers Regulatory Local Law for the City of Rye, New York.

CHARGE: A one-time or non-regularly occurring cost paid by the subscriber and which is associated with the installation, maintenance, service or repair of the multichannel service. Specifically, a "charge" includes, but is not limited to, address change charges for subscribers; disconnection fees; downgrade charges; costs for closed-captioned devices and equipment, remote control devices and equipment for hearing-impaired customers; installation charges for video camera recorders and players; installation charges for digital radio; and trip or service call charges.

CITY: The City of Rye, New York.

CITY MANAGER: The City Manager of the City of Rye, New York, or his or her duly authorized designee.

COLLECTION CHARGE: A charge or fee imposed on a customer by an MCS provider for such provider's efforts at collecting or attempting to collect a past-due account.

COMMERCIALLY IMPRACTICABLE: With respect to any requirement applicable to an MCS provider, means that it is commercially impracticable for such an MCS provider to comply with such requirement as a result of a change in conditions which is beyond the control of such an MCS provider and the nonoccurrence of which was the basic assumption on which the requirement was based.

CONVERTER: Any electric, electronic or other device, separate and apart from the subscriber's receiver, that is capable of converting or changing signals to a frequency not intended to be susceptible to interference within the television, video or data receiver of a subscriber and by an appropriate channel or other type of selector may also permit a subscriber to view or otherwise use signals delivered at designated dial locations or such other reception and use allocations as may be applicable and required for the practical use of the signal.

COUNCIL or COUNCIL/FRANCHISING AUTHORITY: The City Council of the City of Rye, New York.

CUSTOMER: A lawful subscriber or user of the services and/or facilities of the multichannel system provided by an MCS provider.
[Amended 5-29-1996 by L.L. No. 4-1996]

DECODER or DESCRAMBLER: A device which enables a subscriber to convert a scrambled signal into a viewable or otherwise usable signal.

DISASTER EMERGENCY: An imminent, impending or actual natural or humanly induced situation wherein the health, safety or welfare of the residents of the city is threatened. A "disaster emergency" (by illustration) may include a sudden or expected insect infestation (such as with locusts, grasshoppers or bees); snowstorm; flood; hailstorm; tornado; severe thunderstorm; hazardous waste infiltration; fire; petroleum, munitions or nuclear explosion; or aircraft crash.

DOWNGRADE: A change in the level of a subscriber's multichannel service from a more comprehensive level of multichannel service (in terms of services or channels provided) to a less comprehensive level of multichannel service (in terms of services or channels provided). Though not mandatory, a "downgrade" in the level of service normally results in the decrease in the periodic rate for the provision of such multichannel services to the subscriber.

DROP: A small branch of cable or other transmitting medium which connects the terminals on the back of the subscriber's receiver to the trunk or feeder cable or future technical equivalent.

EASEMENT: Shall include any public or private easement or other compatible use created by dedication, or by other means, to the city for public utility purposes or any other purpose whatsoever, including cable television, or any multichannel service. "Easement" shall include a private easement used for the provision of cable service or any other multichannel service.
[Amended 5-29-1996 by L.L. No. 4-1996]

FCC: The Federal Communications Commission and/or such other federal regulatory agency as now or in the future may have jurisdiction to oversee multichannel service providers.
[Amended 5-29-1996 by L.L. No. 4-1996]

FIBER CABLE or FIBER OPTIC CABLE: Very thin and pliable cylinders or strands of glass or plastic or any future developed technical equivalent used to carry wide bands of multiple frequencies.

FRANCHISE: The initial authorization or subsequent renewal granted by the Council/franchising authority in order for a person to construct, operate and/or maintain a franchised MCS system in all or part of the city.

FRANCHISE AGREEMENT: The separate contract by which the Council/franchising authority grants an MCS provider the right to operate a franchised multichannel system within all or a part of the city.

FRANCHISED MCS PROVIDER or FRANCHISEE: A person that is awarded a franchise by the Council/franchising authority to construct or operate a franchised multichannel system within all or part of the city.
[Amended 5-29-1996 by L.L. No. 4-1996]

FRANCHISE EXPIRATION or FRANCHISE AGREEMENT EXPIRATION: The date of expiration, or the end of the term of a franchised MCS provider, as noted under a franchise agreement, or any lawful extension thereof.
[Amended 5-29-1996 by L.L. No. 4-1996]

FRANCHISE FEE: A fee or charge that the city requires as payment for the privilege of using the streets, rights-of-way, public ways and easements of the city in order to construct, maintain and operate a franchised multichannel system.

FRANCHISING AUTHORITY or COUNCIL/FRANCHISING AUTHORITY: The City Council of the City of Rye, New York.

FUNCTIONAL EQUIVALENT or FUNCTIONALLY EQUIVALENT: With respect to a specifically named piece of multichannel system equipment, another piece of multichannel system equipment that either:

GROSS REVENUE

MCS PROVIDER or MULTICHANNEL SERVICE PROVIDER

For any period, any and all revenues received by the franchisee or other MCS provider for that period which are derived from the operation of the MCS system to provide MCS services, or in the case of a cable operator, to provide cable service under the authority of the franchise granted to it by the city.

For purposes of the calculation of franchise fees pursuant to § 185-106 of this chapter, the "gross revenues" of the franchisee shall include any and all compensation actually derived from such franchisee's operation of its cable system to provide cable services under the authority of its franchise whether received directly or indirectly by such franchisee in the form of direct payment to such franchisee or to a controlling owner or affiliate of such franchisee, and shall include the value of goods or services and other non-subscriber revenues (including transmission or advertising services) provided by such franchisee under the authority of such franchise to a controlling owner or affiliate of such franchisee to the extent not otherwise compensated to such franchisee by such owner or affiliate in a manner consistent with established practice or available to non-affiliated parties.

However, "gross revenue" does not include any revenues billed but not collected or credited when actually written off as bad debt, or revenues refunded back to customers, or any taxes imposed and/or assessed by law on subscribers which an MCS provider collects and pays in full to the applicable authorities, nor any revenues received by any person other than such franchisee or MCS provider with respect to cable service or other service provided by such person over the franchisee's or MCS provider's cable system for which charges are assessed to subscribers but not received by such franchisee or MCS provider.

HEAD END: The electronic control center, where incoming signals, including those of television broadcast stations, are amplified, modulated, filtered, converted or in any way processed or converted for redistribution to subscribers.

HOLIDAY: A day in which a substantial portion of the area's workers are exempt from work even though paid, including but not limited to all holidays recognized by either the state or federal government.

HYPOTHECATION: Providing security for a loan or indebtedness of an MCS provider in a manner and method that does not specifically include the assignment or transfer of possession or sale of the multichannel system or franchise.
[Amended 5-29-1996 by L.L. No. 4-1996]

INPUT SELECTOR SWITCH: Intended to perform the same function as an a/b switch.

LATE CHARGE: A charge which is added to a customer's account or bill for nonpayment of a previously due and delinquent account.

MAYOR: The Mayor for the City of Rye, New York, or the Mayor's authorized designee.

MCS: Multichannel service.

Any person or group of persons who:

Provides multichannel communications service over a multichannel system, irrespective of the technology employed and subject to federal and state preemption or limitation, and directly or indirectly owns a significant interest in such multichannel system; or

MULTICHANNEL PROGRAMMING SERVICE or MULTICHANNEL SERVICE

Who otherwise controls or is responsible through any arrangement, the management and operation of such a multichannel system.

The term "MCS provider" or "multichannel service provider" specifically includes the terms "cable operator," "MDS provider" or "multi-point distribution system provider," "MMDS provider," personal communications network system provider (where applicable and permitted under state rule or regulation, including that of the PSC), and "SMATV operator"; provided, however, that when used in reference to a "franchised MCS provider" such use shall mean only the "franchisee."

MDS: Multipoint distribution system.

MDS PROVIDER or MULTIPOINT DISTRIBUTION SYSTEM PROVIDER: Any person or group of persons authorized by the FCC to transmit specialized multichannel programming to subscriber-selected locations.

MENU-DRIVEN or MENU-DRIVEN CABLE or MENU-DRIVEN PROGRAM/SERVICE: The process whereby the MCS provider offers multichannel services via the multichannel system in a format that allows the subscriber to select and be charged for multichannel services on either a per channel, per program or per event basis. Menu-driven cable allows the subscriber to create his or her own service tier(s) or cluster(s) and the opportunity to change the composition of his or her tier(s) or cluster(s) on a periodic basis.

The one-way transmission to subscribers of video programming or other programming service, irrespective of the technology employed and subject to federal and state preemption or limitation.

Subscriber interaction, if any, which is required for the selection of such video programming or other programming service.

MULTICHANNEL SERVICE PROVIDER: The same as "MCS provider."

MULTICHANNEL SYSTEM

A facility consisting of a closed transmission paths and associated signal generation reception, and control equipment;

A facility consisting of infrared transmission or point-to-point transmission (as permitted by law); or

Any functional equivalent that is designed to provide multichannel service which includes video, voice, or data programming to multiple subscribers within the city.

However, such term does not include the following:

A facility that serves only to retransmit the television signals of one (1) or more broadcast stations;

A facility that serves subscribers without using any public right-of-way;

A facility of a common carrier which is subject, in whole, or in part, to the provision of Title II of the Communication Act of 1934, except that such facility shall be considered a multichannel system [other than for purposes of Section 621 (c) of the Cable Act, codified at 47 USC § 541] to the extent such facility is used in the transmission of video, voice or data programming or service directly to subscriber; or

PROPOSED ABANDONMENT OF MULTICHANNEL SERVICE or PROPOSED WITHDRAWAL OF MULTICHANNEL SERVICE or PROPOSED CESSATION OF MULTICHANNEL SERVICE

Any facilities of any electric utility used solely for operating its electric utility.

NORMAL OPERATING CONDITIONS: Those service conditions which are within the control of the franchisee. Those conditions which are not within the control of the franchisee include, but are not limited to, natural disasters, civil disturbances, power outages, telephone network outages and severe or unusual weather conditions. Those conditions which are ordinarily within the control of the franchisee include, but are not limited to, special promotions, pay-per-view events, rate increases, regular peak or seasonal demand periods and maintenance or upgrade of the cable system.
[Added 5-29-1996 by L.L. No. 4-1996]

NYSCCT [Repealed 5-29-1996 by L.L. No. 4-1996] NYSPSC or PSC: The New York State Public Service Commission or any successor agency.
[Added 5-29-1996 by L.L. No. 4-1996]

OTHER PROGRAMMING SERVICE: Information that an MCS provider (specifically including a cable operator) makes available to all subscribers generally.

PAY-PER-VIEW or PREMIUM CHANNEL: The delivery over the multichannel system of audio and/or video signals for a rate or amount (over and above the rate for basic service) on a per event or per program or per channel basis.

PEG: Public, educational and governmental.

PERSON: Any individual, corporation, estate, trust, partnership, association of two (2) or more persons having a joint common interest, joint-stock company or governmental entity.

PRIVATE COMMUNICATIONS NETWORK or PCN or PRIVATE COMMUNICATIONS SYSTEM: Any ancillary or aligned component of an MCS provider's system consisting of communications lines, cables, equipment or facilities which are used to provide telecommunications service that in any manner uses or occupies the streets, easements, public ways or rights-of-way within the city (as annexed). However, "private communications network" does not include any part of a state- or FCC-licensed local government, local exchange telephone company or any part of a federal, state, county or local government-owned telecommunications system.

[Repealed 5-29-1996 by L.L. No. 4-1996]

PUBLIC, EDUCATIONAL OR GOVERNMENTAL ACCESS FACILITIES

Channel capacity designated for public, educational or governmental use.

Facilities and equipment for the use of such channel capacity.

PUBLIC WAY: Any public street, public way, public place, easement or rights-of-way now laid out or dedicated, and the space on, above or below it, and all extensions thereof and additions thereto in the area served by the MCS provider.
[Amended 5-29-1996 by L.L. No. 4-1996]

RATE: The periodic price paid by a subscriber for the receipt of any multichannel service provided for by an MCS provider.

REVOCATION, TERMINATION or NONRENEWAL: An official act by the city whereby the Council/franchising authority removes, repeals or rescinds previously approved authorization for a licensed or franchised MCS provider to conduct the running of a multichannel system within the city.

SERVICE CLUSTER: The grouping, aligning or packaging of one (1) or more multichannel programming services by category (such as sports and/or news) or by rate or by some other identifiable method and charging a separate price or rate for each service cluster.

SERVICE OUTAGE: For purposes of credit, the loss of picture or sound on all basic subscriber channels or one (1) or more auxiliary programming channels (including tiers and clusters). For purposes of response to a service call, a "service outage" means a loss of picture or sound or other service provided by an MCS provider which is not caused by the failure or malfunction of a subscriber's television receiver or monitor or by the misfeasance or malfeasance of the subscriber.

SERVICE TIER: A category of multichannel service or other programming service provided by an MCS provider and for which a separate rate is charged by an MCS provider.

SMATV: Satellite Master Antenna Television.

SMATV OPERATOR or SATELLITE MASTER ANTENNA TELEVISION OPERATOR: Any person or group of persons who or which:

SMATV SYSTEM: A private multichannel system not crossing any public rights-of-way and which is located on private property, and serving private dwellings, provided that such a system is exempt from municipal franchise requirements by applicable provisions of federal or state law.
[Amended 5-29-1996 by L.L. No. 4-1996]

STATE: The State of New York.

STREET: The surface of and the space above and below a public street, road, highway, freeway, land, path, public way or place, alley, court, boulevard, parkway, drive or other easement now or hereafter held by the city (including any street, as defined, which is acquired by eminent domain) for the purpose of public travel and shall include other easements or rights-of-way now or hereafter held by the city (including any easements or rights-of-way acquired by eminent domain) which shall, with their proper use and meaning, entitle the city and MCS provider to use thereof for the purpose of installing or transmitting multichannel system transmissions over poles, wires, cable, conductors, ducts, conduits, viaducts, manholes, amplifiers, appliances, attachments and other property as may ordinarily be necessary and pertinent to a multichannel system.

SUBSCRIBER: A person lawfully receiving multichannel service delivered by an MCS provider.

U.S.C.: United States Code.

USER: A person or organization utilizing a multichannel system and/or its equipment for purposes of production and/or transmission of material, as contrasted with receipt thereof in a subscriber capacity.

VIDEO PROGRAMMING: Programming provided by, or generally considered comparable to programming provided by, a television broadcast station.

§ 185-6 Statement of intent; threshold requirements.

The Council recognizes the United States Congress' intent in approving the Cable Act (expressed in Section 601, codified at 47 U.S.C. § 521). As such, the Council reaffirms and adopts those principles and ideals as part of the city's intent with respect to cable television and expands its intent (where applicable) to cover all MCS providers.

As expressed by Congress and adopted by the Council, its intent is as follows:

To establish a local policy concerning communications and technologies.

To establish franchise procedures and standards which encourage the growth and development of cable systems and which assure that cable systems are responsive to the needs and interests of the city.

To establish guidelines for the exercise of local authority with respect to the regulation of cable systems.

To assure that cable communications provide, and are encouraged to provide, the widest diversity of information and services to the public.

To establish an orderly process for franchise renewal which protects franchisees against unfair denials of renewal where a franchisee's past performance and proposal for future performance meet the standards set by the Cable Act and this chapter.

[Amended 5-29-1996 by L.L. No. 4-1996]

To promote competition in cable communications and minimize unnecessary regulation that would impose an undue economic burden on cable systems.

In addition to the principles and ideals listed in Subsection B, the Council also expresses that its intent covers the following:

To create a set of regulations, standards and procedures for MCS providers.

To create a comprehensive customer service and consumer protection policy for MCS providers.

To provide for access and inspection of an MCS provider's books and records in order to monitor compliance with local, state and federal laws and any franchise agreement (if one has been granted).

To create a thorough construction and installation policy for an MCS provider's system.

To provide for the health, safety and welfare of the citizens of the city in light of the MCS provider's construction, operation and maintenance of the system.

To provide for the periodic inspection of an MCS provider's facilities and equipment by the city or its designated agents.

To provide for emergency override capability, so that citizens of the city may be warned of a potential, imminent or actual disaster or emergency situation that exists in the area.

To provide for the introduction and installation of safety alert technology in order to notify both subscribers and nonsubscribers of imminent disaster emergencies.

To create a thorough procedure for collecting and monitoring franchise fees and alternative user charges.

To create a viable alternative to franchise fees in case such fees, or their collection, are ruled invalid, unenforceable or unconstitutional.

To create a thorough default and revocation procedure for licensed and franchised MCS providers.

(12)

To provide for continuity of services in the event of city acquisition, abandonment, withdrawal, cessation of service, revocation, termination, nonrenewal or expiration of an MCS provider.

(13)

To create a performance review procedure in order to assist the city in its periodic evaluation of a franchised MCS provider's performance.

Further, the Council recognizes that with respect to MCS providers classified as "cable operators," the Council's power to adopt regulations is, in part, authorized under Sections 632, 634 and 636 of the Cable Act (codified at 47 U.S.C. §§ 552, 554 and 556, respectively) as well as the Council's police powers, due to the potential for physical scarcity and public disruption when cable either occupies or uses the public rights-of-way.

With respect to the rules and regulations of the PSC, it is expressly understood that such rules and regulations establish threshold requirements that are to be met in order to operate a multichannel system classified as a "cable system" within the city. Consequently, such threshold rules and regulations of the PSC may be supplemented and/or exceeded unless specifically preempted by the PSC or unless the extent of the city's authority is determined otherwise by way of formal PSC action.

[Amended 5-29-1996 by L.L. No. 4-1996]

However, unless determined otherwise by the state or a court of competent jurisdiction, the rules and regulations of the PSC are applicable only to MCS providers classified as "cable operators." For all such other MCS providers, the Council/franchising authority may develop and implement its own set of rules and regulations, to the extent permitted by both state and federal law.

[Amended 5-29-1996 by L.L. No. 4-1996]

§ 185-7 Designation of officer; delegation of powers and authority.

Unless otherwise designated by the Council, the Council/franchising authority is hereby designated the officer of the city who is responsible for the continuing administration of this chapter.

[Amended 5-29-1996 by L.L. No. 4-1996]

Unless prohibited by federal or state law (including the PSC), the Council/franchising authority may delegate its powers and authority with respect to administering this chapter with regard to a franchise agreement to a duly authorized official of the city.

[Amended 5-29-1996 by L.L. No. 4-1996]

However, the Council/franchising authority may never delegate its franchising or revocation power to another person or representative.

§ 185-8 Applicability.

Unless exempted entirely from this chapter or exempted under one (1) or more provisions of this chapter or of a franchise agreement or granted relief (by either the PSC or the Council/franchising authority) from one (1) or more provisions and/or requirements of this chapter, then this chapter shall be applicable to an MCS provider, and this chapter shall have full effect and be enforceable in its entirety. Moreover, an MCS provider shall be expected to comply with this chapter no later than twelve (12) months after this chapter becomes effective, except where a different compliance date is given or noted (including a different date noted in an applicable franchise agreement).

[Amended 5-29-1996 by L.L. No. 4-1996]

Subsection A of this section is not intended to repeal, and does not have the effect of repealing, any current franchise agreement that presently exists between the Council/franchising authority and a franchised MCS provider.

As a result of Subsection B of this section, the provisions of this chapter shall have no effect on an existing franchise agreement until the expiration of the existing franchise agreement or until the following occurs:

Prior to the expiration of the franchise agreement, the Council/franchising authority and the affected franchised MCS provider either execute an amended franchise or renewal franchise agreement in which both parties agree to be bound by the terms of this chapter (except as specifically granted relief, exemption, clarification or comparable policy); or

Both parties agree to a specific date for expiration of said existing franchise, which in fact is prior to the present expiration date.

§ 185-9 Exemption.

MCS providers which are exempted from complying with the provisions of this chapter are as follows:

An MCS provider who is exempted from this chapter as a result of an applicable FCC or PSC ruling; or

[Amended 5-29-1996 by L.L. No. 4-1996]

An MCS provider which is exempted from this chapter as a result of an applicable judicial ruling, from which no subsequent appeal can be taken.

It is expressly understood that an exempted MCS provider remains exempted only as long as it meets one (1) or more of the specifications of this particular section.

It also is expressly noted that the extent of the exemption for a qualified MCS provider is only for this chapter. Consequently, such an exempted MCS provider is expected to abide by and comply with any other applicable city, state (including applicable PSC) or federal laws and regulations, including any applicable federal or state consumer protection or customer service laws and regulations.

[Amended 5-29-1996 by L.L. No. 4-1996]

§ 185-10 Relief.

Any MCS provider affected by this chapter may file a written petition at any time with the Council/franchising authority seeking relief from one (1) or more provisions of this chapter. The relief requested may specifically include the exemption from or delay in implementation (as to the petitioning MCS provider only) of one (1) or more provisions of this chapter or that a specific provision be required for only part of any franchise term. The position shall set forth the relief requested and the basis thereof with such supporting information and material as may be applicable.

In order to receive any relief from one (1) or more of the provisions of this chapter, an MCS provider must satisfactorily demonstrate to the Council/franchising authority that at least one (1) of the following facts exists:

The provision and/or requirement is expressly prohibited by federal law, the FCC or state law or (where applicable) PSC rule or regulation.

[Amended 5-29-1996 by L.L. No. 4-1996]

Where applicable, that the provision in question materially affects and is in conflict with an expressed right that is specifically noted in an existing franchise agreement (but only for the term of the existing franchise) [this provision covers situations where an MCS provider classified as a "cable operator" seeks and is granted modification of an existing franchise agreement under Section 625 of the Cable Act (codified at 47 U.S.C. § 545)].

That compliance with a particular provision and/or requirement will be commercially impracticable for an MCS provider.

That one (1) or more time frames listed in this chapter are either impossible to meet or impractical to meet in light of the MCS provider's operational policy.

That the MCS provider has its own construction, maintenance, operation or customer service policy which the Council/franchising authority deems comparable to or exceeding any provision and/or requirement from which the MCS provider seeks relief.

That the health, safety and welfare interests of the city otherwise warrant the granting of such relief.

Unless delegated to another authorized representative of the city, the Council/franchising authority shall have the responsibility of determining whether an MCS provider's construction, maintenance, operation or customer service policy is comparable to or exceeds a similar provision in this chapter.

As an alternative to seeking an exemption or requesting relief, an MCS provider may petition for clarification on the precise intent and effect that one (1) or more provisions or sections of this chapter have on the petitioning MCS provider.

In accordance with this chapter, the Council/franchising authority may charge the petitioning MCS provider with the actual costs for processing such a petition, including any costs incurred by outside consultants who are retained by the city to review an MCS provider's petition, provided that the franchised MCS provider seeks a substantial waiver of material provisions of this chapter previously understood to be applicable to the franchisee and if such petition is deemed likely to cause the city to incur additional and otherwise unnecessary costs not previously anticipated in the determination of its franchise fee.

[Amended 5-29-1996 by L.L. No. 4-1996]

In those instances where the Council/franchising authority grants an exemption or relief to a franchised MCS provider or deems a franchised MCS provider's operational policy to be comparable to a local law provision, the franchise agreement (initial, existing or renewal) shall be deemed amended to reflect the exact extent of such exemption and/or relief. It should be specifically noted that the benefit of such exemption, relief, clarification or comparable policy extends only to the MCS provider granted such exemption, relief, clarification or comparable policy.

[Amended 5-29-1996 by L.L. No. 4-1996]

§ 185-11 Compliance required.

An MCS provider shall not be excused from complying with any of the requirements of this chapter or any subsequently adopted amendments to this chapter by any failure of the Council/franchising authority on any one (1) or more occasions to seek or insist upon compliance with such requirements or provisions.

§ 185-12 Present and future laws to apply.

Any MCS provider, its assignee or transferee or buyer shall be subject to, and expected to comply with, all local laws now or hereafter adopted and in effect within the city, including this chapter, to the extent that said MCS provider or its predecessor in interest has not received an exemption or relief from said local law(s), and to the extent that said local laws do not materially conflict with the rights granted and standards expressed in a franchise or franchise agreement between an MCS provider and the city.

[Amended 5-29-1996 by L.L. No. 4-1996]

Any MCS provider, its assignee or transferee shall be subject to, and expected to comply with, all federal and state laws, and with all rules and regulations issued by all applicable regulatory agencies (including, where applicable, the FCC and PSC) now or hereafter in existence.

[Amended 5-29-1996 by L.L. No. 4-1996]

Any MCS provider, its assignee or transferee shall be subject to all lawful exercise of the city's police power.

With respect to future local laws noted in this section, nothing contained herein prevents an MCS provider from exercising any and all of its administrative and legal rights in order to challenge the constitutionality, applicability and enforceability of said future local laws.

§ 185-13 Inconsistent provisions.

Except as noted in Subsection B of this section, to the extent that there is any prior resolution, ordinance or local law which, in part or in whole, is directly inconsistent with this chapter, such part or such whole of the prior resolution or local law shall be repealed to the extent of the inconsistency.

Subsection A of this section is not intended to repeal and does not have the effect of repealing any current franchising ordinance or franchise agreement that presently exists between the Council/franchising authority and a franchised MCS provider.

§ 185-14 Federal or state regulations.

In any case of an actual inconsistency between any provision or section of this chapter and any provision or section of a federal or state rule, regulation or law preemptive in nature and effect, then the preemptive federal or state rule, regulation or law shall not only supersede the effect of the local law, but also control in any local application.

[Amended 5-29-1996 by L.L. No. 4-1996]

The above subsection specifically includes any situation wherein an applicable federal or state judicial decision creates an actual inconsistency with any provision or section of this chapter. In such a situation, the federal or state judicial decision shall not only supersede the effect of this chapter but also control in any local application.

§ 185-15 Inconsistencies with existing franchise.

[Amended 5-29-1996 by L.L. No. 4-1996]

Where there is a conflict (actual or apparent) between this chapter and an existing and applicable franchise agreement, the local law shall control and prevail unless administratively or judicially determined invalid, unenforceable or unconstitutional or unless the provisions of Subsection B of this section apply to the MCS provider and its franchise agreement.

In the case where a franchised MCS provider receives an exemption, relief, clarification from one (1) or more provisions or section of this chapter or has one (1) or more of its policies deemed comparable to a provision contained in this chapter, said franchisee's franchise agreement shall be deemed to be amended to reflect the same such exemption, relief, clarification or comparable policy, to whatever extent may be necessary, and to the extent that such an exemption, relief, clarification or comparable policy as contained in a franchise agreement is inconsistent with a provision contained in this chapter, then the specifically noted exemption, relief, clarification or comparable policy language contained in the franchise agreement shall control.

§ 185-16 Arbitration.

If the Council/franchising authority and a franchised MCS provider agree to such and the federal or state law does not expressly prohibit such, then arbitration or settlement mediation may be used to resolve any dispute that arises out of this chapter or franchise agreement. The terms and conditions relating to the arbitration or settlement mediation process (including possible cap on costs expended by both parties, composition of the hearing panel and liability, if any, for the costs expended) shall be stated with specificity in the franchise agreement; provided, however, that the parties may agree, in writing, to such terms and conditions of the process prior to the arbitration or settlement mediation.

§ 185-17 Penalties for offenses.

[Amended 5-29-1996 by L.L. No. 4-1996]

Any franchisee or other MCS provider willfully violating or failing to comply with any provisions of this chapter shall be guilty of a civil violation and upon conviction thereof be subject to a fine or other penalty of not more than two hundred fifty dollars ($250.) as provided for by state law. Each day of a continuing violation shall constitute a separate violation and shall be subject to a separate fine or civil penalty. A violation that consists of a single instance and which is promptly corrected upon awareness or notification shall not be considered the equivalent of multiple violations for the period predating discovery and notification.

In addition to any other penalties prescribed in this section, the city's Corporation Counsel may maintain an action in a court of competent jurisdiction to compel compliance with or restrain by injunction any violations of the provisions of this chapter. Each day upon which there exists a violation of this chapter or a failure to abide by or comply with any provision or requirement of this law after due notice and an opportunity to cure the violation has been afforded the MCS provider shall constitute a separate occurrence and may subject the MCS provider to separate penalties.

In instances where a franchise agreement provides for assessed charges or liquidated damages for the breach or violation of that franchise agreement, then such assessed charges or liquidated damages shall be considered controlling and an adequate alternative to the remedies described in this law. Such assessed charges or liquidated damages shall not be used by the city until after it first attempts to resolve the matter in the manner prescribed by this chapter.

§ 185-18 (Reserved)

§ 185-19 Council/franchising authority's retained rights and authority.

[Amended 5-29-1996 by L.L. No. 4-1996]

Subject to preemption by, or other approval authority of, the FCC or any other federal or state governmental entity or agency (including, where applicable, the PSC), and to the extent permitted by any applicable law, the Council/franchising authority retains the authority to provide for:

The regulation and control of any multichannel system within the geographical limits of city.

The award and grant of an MCS franchise (where required) subsequent to review of an application or proposal by the Council/franchising authority.

The periodic review and/or amendment or repeal of all or part of this chapter; except as it may not unilaterally impose substantial capital requirements not anticipated in the franchise agreement.

If mutually agreed to with a franchised MCS provider, the periodic review and/or amendment of any existing franchise agreement.

The Council/franchising authority, to the extent permitted by Section 623 or other provisions of the Cable Act (codified at 47 USC § 543), retains the power to approve the rates or charges associated with the providing of multichannel service classified as "cable service" by an MCS provider classified as a "cable operator."

Subject to pre-emption by, or other approval authority of, the FCC or any other federal or state governmental entity or agency (including in certain instances, the PSC), the Council/franchising authority retains the jurisdiction to enforce all laws and regulations relating to multichannel customer service practices and consumer protection.

If the FCC, Congress, the State, PSC or other governmental agency with authority over cable or any other MCS provider ever abrogates, deletes, removes or otherwise disposes of rules or standards that are referenced in this chapter or relied upon by the Council/franchising authority for purposes of MCS provider compliance with this chapter, then the Council/franchising authority may, to the extent not preempted by or inconsistent with later-adopted law or regulations, reinstate such rules or standards. In such case, the reinstated rules will have the same weight (as allowed under prevailing law) as they had prior to their initial deletion.

§ 185-20 (Reserved)

§ 185-21 Notices.

Both the Council/franchising authority and each MCS provider shall provide the other party with the name and address of the contact designated to receive notices, filings, reports, records, documents and other correspondence. All notices affecting the rights of such parties shall be delivered to each party's contact by certified mail, return receipt requested, personal service with a signed receipt of delivery or overnight with receipt verification, unless otherwise provided in an applicable franchise agreement. All other filings, reports, records, documents and other correspondence may be delivered by any permissible means including, but not limited to: facsimile transmission ("faxing"); personal service; overnight mail or package delivery or delivery via cable. The delivery of all notices, reports, records and other correspondence shall be deemed to have occurred at the time of receipt (unless otherwise designated by state law or PSC rule or regulation).

[Amended 5-29-1996 by L.L. No. 4-1996]

If the MCS provider is required to maintain a franchise, then the designation of such contact person for notice purposes may be contained within a franchise agreement.

§ 185-22 (Reserved)

§ 185-23 (Reserved)

§ 185-24 (Reserved)

§ 185-25 (Reserved)

§ 185-26 Defense and indemnification.

To the extent permitted by law, an MCS provider shall, as a condition of the exercise of its rights to use the city's streets or ways, be required to at all times defend, indemnify, protect, save harmless and exempt the city, the City Manager, the Council/franchising authority, their officers, agents, servants and employees from any and all, penalty, damage or charges arising out of claims, suits, demands, causes of action or award of damages, whether compensatory or punitive, or expenses arising therefrom, either at law or in equity, which might be claimed now or in the future, which may arise out of or be caused by the construction, erection, location, products performance, operation, maintenance, repair, installation, replacement, removal or restoration of the multichannel system within the city by a negligent act or omission of an MCS provider, its agents or employees, contractors, subcontractors, independent contractors or implied or authorized representatives. With respect to the penalties, damages or charges referenced herein, reasonable attorneys' fees, consultants' fees and expert witness fees are included as those costs which may be recovered by the Council/franchising authority.

[Amended 5-29-1996 by L.L. No. 4-1996]

The city, City Manager and the Council/franchising authority specifically reserve the right to retain counsel of their own choice, at their own expense.[1]

Editor's Note: Former Subsection C, which dealt with obtaining and approving counsel, was repealed 5-29-1996 by L.L. No. 4-1996. This local law also renumbered former Subsections D, E and F as C, D and E.

Neither the city, the City Manager nor the Council/franchising authority shall unreasonably withhold its approval of counsel.

With respect to an MCS provider's own defense of such actions noted in this section, it is understood that such MCS provider reserves the right to select and retain, without the Council/franchising authority's approval, counsel of the MCS provider's choice, at such MCS provider's expense.

It is specifically intended that the obligation to indemnify the city, the City Manager, the Council/franchising authority and their officers, agents, servants and employees shall not be limited to the MCS provider operating under authority of this chapter but shall include any parent of the MCS provider.

§ 185-27 Liability insurance.

[Amended 5-29-1996 by L.L. No. 4-1996]

An MCS provider shall secure and maintain, for as long as it provides multichannel service to subscribers, liability insurances in at least the following amounts, each inclusive of annual aggregate:

Commercial general liability: one million dollars ($1,000,000.) combined single limit per occurrence for personal injury or death and/or property damage.

Automobile liability: one million dollars ($1,000,000.) combined single limit per accident.

Umbrella liability: five million dollars ($5,000,000.).

An MCS provider's public and personal liability insurance policy shall specifically include the city, the City Manager and the Council/franchising authority as additional insureds.

The public and personal liability and property damage insurance policy shall be issued by an agent or representative of an insurance company licensed to do business in the state.

The public liability and property damage insurance policy shall contain an endorsement obligating the insurance company to furnish the Council/franchising authority with at least thirty (30) days' written notice in advance of the cancellation of the insurance.

Renewal or replacement policies or certificates shall be delivered to the Council/franchising authority before the expiration of the insurance which such policies are to renew or replace.

Before a multichannel system provides multichannel service to subscribers, the MCS provider shall deliver the policies or certificates representing the insurance to the Council/franchising authority.

If the Council, state or PSC permits an MCS provider to self-insure or to provide other evidence of adequate security of its obligations, then the MCS provider may exercise its right to self-insure, so as long as the minimal amounts of insurance coverage outlined in this section or similar levels of security are met and maintained for the entire period that the affected MCS provider is self-insured.

§ 185-28 Bonds.

An MCS provider shall furnish to the Council/franchising authority, in an amount totaling at least one million dollars ($1,000,000.), a performance bond or security bond executed by a surety licensed to do business in this state and acceptable to the Council/franchising authority, such approval not to be unreasonably withheld. The purpose of the performance bond is to ensure performance of any requirements imposed by this chapter on an MCS provider. Further, the purpose is to guarantee that should the MCS provider not fulfill any obligations imposed by this chapter (or, where applicable, a franchise agreement), then the surety will make whole (to the extent of the policy) any monetary losses incurred by the city.

Unless an alternative form of financial guarantee or security is accepted by the Council, an MCS provider shall furnish to the Council/franchising authority, a construction/completion bond prior to the time it commences a construction, upgrade, rebuild or repair/maintenance project required by its franchise or license that has a capital construction cost or outlay exceeding one hundred thousand dollars ($100,000.) in value. The amount of the bond shall equal ten thousand dollars ($10,000.). The construction/completion bond shall remain in force at all times until the subject construction is complete, unless relief is granted or a reduction schedule is detailed in an agreement between the Council/franchising authority and the MCS provider.

[Amended 5-29-1996 by L.L. No. 4-1996]

The construction/completion bond or security bond shall specifically guarantee that an MCS provider will timely abide by its required construction, upgrade, rebuild, or repair/maintenance schedule for the multichannel system and/or any timetable for technical and service improvements or additions to the multichannel system as may be committed to, or agreed upon, from time to time, by the Council/franchising authority and MCS provider.

[Amended 5-29-1996 by L.L. No. 4-1996]

If the city draws on a performance or completion bond or cash deposit or other guarantee as a result of an MCS provider's failure to timely discharge its obligations or failure to construct and activate the multichannel system or failure to complete a multichannel system upgrade or rebuild or repair/maintenance, then the MCS provider shall be required, within thirty (30) days, to replenish the completion and performance bond or security bond, or guarantee, to the minimal level required by the Council/franchising authority.

[Amended 5-29-1996 by L.L. No. 4-1996]

Should the Council/franchising authority make a formal determination that due to the MCS provider's past performance (such as a documented history of repeated or multiple franchise violations) or increased cost [greater than fifty percent (50%) of the original estimated cost], the Council/franchising authority (unless preempted by either the state or PSC) may raise the required amount of either the performance or the construction/completion bond.

[Amended 5-29-1996 by L.L. No. 4-1996]

The performance bond or security bond shall be in force at all times unless relief is granted or a reduction schedule is detailed in a separate agreement, executed between the MCS provider and the Council/franchising authority.

[Amended 5-29-1996 by L.L. No. 4-1996]

§ 185-29 Records and reports.

The Council/franchising authority recognizes that advances in technology and the adoption and application of multichannel laws, rules, regulations and court decisions may have a profound effect and impact on an MCS provider in any given year.

Consequently, it is incumbent that the Council/franchising authority take measures to reduce the risk that multichannel service or the multichannel system will be adversely affected in any given year.

Therefore, the evaluation of legal, technical, financial, character qualifications and practices related to customer service and consumer protection of an MCS provider is viewed as a continuing undertaking on the part of the city. Each MCS provider shall maintain and retain all records and reports necessary for the Council/franchising authority to determine compliance with the obligations imposed on it by this chapter and to determine the MCS provider's (legal, technical, financial and character) qualifications.

§ 185-30 Furnishing of reports.

Within ninety (90) days after this chapter becomes effective or the grant of a franchise or license pursuant hereto, an MCS provider shall submit a list to the Council/franchising authority or designee of the principal files, reports, records, data or other information that the MCS provider periodically files with the FCC or another federal or state agency. As part of a performance evaluation or for any legitimate matter related to the administration of an MCS provider agreement, the Council/franchising authority may specifically request that it be provided with any of the pertinent reports, records, data or other information that were originally filed with the FCC or another federal or state agency (including the PSC). However, unless specifically authorized by the state, an MCS provider shall not be required to provide to the Council/franchising authority any state or federal tax returns or any documents (inclusive of all above-referenced categories) exempted under state or federal privacy laws, including Section 631 of the Cable Act (codified at 47 USC § 551).

[Amended 5-29-1996 by L.L. No. 4-1996]

In addition to the requirements noted in Subsection A of this section, an MCS provider shall timely submit those reports, statements and logs required by this chapter, including but not limited to the following:

A periodic gross revenue statement in the manner set forth in this chapter.

A periodic certification that answering of phones is meeting the specifications listed in this chapter.

The satisfactory resolution of problems and complaints in the manner set forth in this chapter.

Preventive maintenance reports in the manner set forth in this chapter.

Any other reports or information required by another section of this chapter or by the Council/franchising authority which is necessary to protect the health, safety and welfare of the citizens of the city.

If required, an annual registration and compliance statement.

§ 185-31 Accounting; review of records.

An MCS provider shall keep complete and accurate books of its pertinent accounts and records of the business and operations under and in connection with the MCS system, including records of its telephone responses.

[Amended 5-29-1996 by L.L. No. 4-1996]

The Council/franchising authority shall have the right to be provided for review (either by mail or at the MCS provider's local office) all pertinent records (needed for the administration and enforcement of this chapter and/or franchise agreement) on seven (7) days' written notice, unless specifically exempted by the Council/franchising authority. Such review, unless mutually agreed upon or judicially ordered, should occur within the MCS provider's regular office hours.

[Amended 5-29-1996 by L.L. No. 4-1996]

The Council/franchising authority shall have the right to hire, at its own expense, an independent certified public accountant or other business or financial expert to review the books and records of an MCS provider. If after a financial audit it is determined that the MCS provider has underpaid amounts owed to the city by five thousand dollars ($5,000.) or greater amount, then the city may require the MCS provider to reimburse the city for the actual cost of the audit. Absent fraud, any audit that is agreed to by subject parties shall be binding on all parties concerned.

[Amended 5-29-1996 by L.L. No. 4-1996]

A false entry into the books and/or records of an MCS provider, made by an MCS provider, of a material and substantial fact shall constitute a material violation of this chapter. However, an erroneous entry, made in good faith, shall not constitute a material violation of this chapter.

An MCS provider shall keep complete and accurate books and records of the pertinent aspects of the multichannel system's operation for at least the preceding three (3) years in such a manner that all matters pertaining to the city can be easily produced and/or verified at the city's request. Also, the MCS provider shall keep and shall make available and provide upon request any other applicable records and information that may be required by any other federal or state agency (including PSC) having jurisdiction over one (1) or more classes of MCS providers.

[Amended 5-29-1996 by L.L. No. 4-1996]

§ 185-32 (Reserved)

§ 185-33 (Reserved)

§ 185-34 (Reserved)

§ 185-35 (Reserved)

§ 185-36 Annual registration; compliance statement.

Within one hundred eighty (180) days from the date that this chapter becomes effective, the city shall develop a registration and compliance statement for any MCS provider or class of MCS provider that is not a franchisee and is not subject to the periodic performance evaluation detailed elsewhere in this chapter.

[Amended 5-29-1996 by L.L. No. 4-1996]

The Council/franchising authority declares as its purpose that the registration and compliance statement is intended to furnish the Council/franchising authority with periodic operational and compliance information concerning MCS providers operating within all or part of the city who are not otherwise subject to a periodic performance evaluation and are not franchisees.

[Amended 5-29-1996 by L.L. No. 4-1996]

Prior to January 15 of each calendar year, the Council/franchising authority shall furnish each such affected MCS provider a registration and compliance statement.

[Amended 5-29-1996 by L.L. No. 4-1996]

Prior to March 1 of each calendar year, the affected nonfranchised MCS provider shall return to the Council/franchising authority a completed and executed compliance statement.

[Amended 5-29-1996 by L.L. No. 4-1996]

There shall be no charge or fee associated with returning the annual registration and compliance statement. However, if the MCS provider supplies incomplete information which requires independent verification by the city (including a consultant hired by the city), then the MCS provider may be required to reimburse the city for all costs associated with the independent verification. Moreover, failure to submit a statement by the deadline or the submission of false information (of a material nature) within the statement may subject the affected MCS provider to any and all penalties listed in this chapter. However, before subjecting an MCS provider to potential penalties, the Council/franchising authority must first allow the affected MCS provider the opportunity to cure and/or to correct the incorrect nature of the submission or cure the item of alleged noncompliance.

§ 185-37 Compliance with state law required.

[Amended 5-29-1996 by L.L. No. 4-1996]

In addition to any and all requirements of this chapter, each and every MCS provider shall comply with and abide by all applicable provisions of any state law concerning consumer sales practices (and including, where applicable, consumer protection rules and regulations of the PSC).

§ 185-38 Provider responsibilities; notice to customer.

The Council/franchising authority recognizes that it is critical that a customer of an MCS provider fully understand and realize the rights and responsibilities of both the customer and MCS provider with respect to the provision, maintenance and repair of multichannel service.

Further, the Council/franchising authority believes that if sufficient, timely and easily understood information is provided to a customer on certain customer service practices such as rates, billing periods, number and types of services provided and rules concerning equipment use and return, then that customer will have the information necessary to make an informed decision on what, if any, multichannel services to subscribe to and receive.

In order to provide customers with the variety of information needed to make an informed decision and to ensure that customers are notified of their and the MCS provider's rights and responsibilities with respect to the multichannel system, an MCS provider must provide a customer with a written Notice of a Customer's and MCS Provider's Rights and Responsibilities With Respect to the Provision of Multichannel Service or the effective equivalent thereof.

[Amended 5-29-1996 by L.L. No. 4-1996]

The Notice of a Customer's and MCS Provider's Rights and Responsibilities With Respect to the Provision of Multichannel Service shall be provided at the time of initial installation. Thereafter, a subscriber shall be provided with a written notice at least once every twelve (12) months. If, however, an MCS provider amends, repeals, adds, deletes, modifies or makes other changes to any customer service practice that is required in this chapter, then said MCS provider shall provide a subscriber with such written notification with no more than thirty (30) days following the effective date of such amendment, repeal, addition, deletion, modification or other change, unless earlier notice is required by applicable federal or state law or rules. An MCS provider will use its best efforts to provide written notice thirty (30) days prior to effective date.

[Amended 5-29-1996 by L.L. No. 4-1996]

Unless expressly prohibited by the state or PSC, an MCS provider may comply with the notice requirements by providing said notice over the MCS system on a channel clearly designated for the dissemination of such information (such a channel need not be solely designated for dissemination of such information and may, in fact, be used at other times for any lawful purpose).

[Amended 5-29-1996 by L.L. No. 4-1996]

If the notice in Subsection E preceding is provided over the MCS system on a channel clearly designated for the dissemination of such information, such notice shall be cablecast at least once hourly, twenty-four (24) hours a day, for thirty (30) consecutive days.

§ 185-39 Notification.

At the time an MCS provider is required to furnish an initial or annual notice, such notice shall contain, at a minimum, the following:

A timely listing of the specific multichannel services provided, clearly indicating and isolating the basic, premium and informational services offered, as well as the service tiers or service clusters offered.

[Amended 5-29-1996 by L.L. No. 4-1996]

Notification of a subscriber's ability to purchase or lease from the MCS provider a lock box, parental control mechanism or other device which will prohibit the viewing of a particular multichannel service during a period selected by the subscriber.[1]

Editor's Note: Former Subsection A(3), which immediately followed this subsection and dealt with the use of an a/b or input selector switch, was repealed 5-29-1996 by L.L. No. 4-1996. This local law also renumbered former Subsections A(4) through A(14) as A(3) through A(13), respectively.

A comprehensive listing and explanation of all rates and charges (including rates for basic and premium channels/services, particular service tiers or service clusters, generally applicable discount or promotional fees, installation charges and security deposits, if any, but excepting pay-per-view single event prices).

[Amended 5-29-1996 by L.L. No. 4-1996]

If service clustering is available, then a description and explanation of any penalties, credits, restrictions, upcoming service clustering changes or differing alignments or other pertinent information.

A comprehensive listing and explanation of all billing options available (such as monthly, quarterly or yearly and/or discounts for prepayments).

The customer service office hours and telephone number(s) in a manner consistent with the specific policy set forth in this chapter.

The billing practices of an MCS provider in a manner consistent with the specific policy set forth in this chapter.

The specific customer complaint/inquiry resolution policy that is adopted and followed by an MCS provider and which is consistent with the parameters set forth in this chapter.

The method of securing a voluntary disconnection in a manner consistent with the specific policy set forth in this chapter.

Rules relating to both connections and involuntary disconnections.

The extent of the credit/refund policy in a manner consistent with the specific policy set forth in this chapter.

(12)

The equipment use and return policy, together with any required security deposits in a manner consistent with the specific policy set forth in this chapter.

(13)

The additional rights of blind, hearing-impaired or ambulatory-impaired customers in a manner consistent with the specific policy set forth in this chapter.

The notice shall be understandable and legible, and any exclusions, limitations or caveats shall be clearly indicated as such in the notice.

[Amended 5-29-1996 by L.L. No. 4-1996]

The notice may be delivered to the subscriber via an insert in the subscriber's periodic invoice or through a special mailing or over an MCS channel clearly designated for the dissemination of such information or by hand delivery, provided that a receipt is executed by the subscriber.

If the MCS provider chooses to avail itself of the opportunity to provide the notice over the MCS system, on a channel clearly designated for the dissemination of such information, such notice shall be cablecast continuously, at least once hourly, twenty-four (24) hours a day, for thirty (30) consecutive days.

[Amended 5-29-1996 by L.L. No. 4-1996]

§ 185-40 Billing practices.

Within the notice that is required by this chapter, subscribers shall be informed of at least the following billing practices of an MCS provider:

Billing procedures (including payments necessary to avoid discontinuance of service).

Payment due and delinquent dates.

Amount or percentage of late charges, if any.

Advance billing options.

Resolution procedures for billing disputes, complaints and inquiries.

Refund/credit policy for service interruptions or uncontracted service.

Current service rates in a detailed and understandable format.

Procedure and amount of charges for installation or relocation of an MCS provider's facilities and/or equipment.

Current schedule and explanation for any billed charges or other non-regularly occurring fees invoiced to subscribers, including but not limited to installation, reconnection, upgrades or downgrades in service and service or repair calls.

Any lower-income or fixed-income rates, together with any qualifications to obtain such rates.

Any information concerning billing practices which is contained in the notice shall be consistent with and include any matter specified by PSC rules and regulations.

[Amended 5-29-1996 by L.L. No. 4-1996[1]]

Editor's Note: Former Subsection C, which immediately followed this subsection and dealt with periodic service bills, was repealed 5-29-1996 by L.L. No. 4-1996. This local law also renumbered former Subsections D, E and F, as C, D and E, respectively.

Existing subscribers shall be informed of the items listed in Subsection A of this section at least once every twelve (12) months.

[Amended 5-29-1996 by L.L. No. 4-1996]

Whenever there is a change in an MCS provider's billing practices or payment requirements, all subscribers must be notified in writing by no later than thirty (30) days after such billing practices or payment requirements become effective, unless earlier notice is required by applicable federal or state law or rules. MCS provider will use its best efforts to provide written notice thirty (30) days prior to the effective date of such change.

[Amended 5-29-1996 by L.L. No. 4-1996]

Pursuant to PSC regulations, in any case where a subscriber requests a cancellation or reduction of service within thirty (30) days after the notification of a scheduled rate or charge adjustment, then the subscriber's liability for such service received during the thirty (30) days following the date of notice until the cancellation or reduction of service shall be determined in accordance with the rates or charges in effect prior to such change.

[Amended 5-29-1996 by L.L. No. 4-1996]

§ 185-41 Billing credit; unsolicited service.

[Amended 5-29-1996 by L.L. No. 4-1996]

An MCS provider shall adhere to and comply with applicable state laws and regulations, including those of the PSC, with respect to service outages or interruptions.

Consistent with Subsection A of this section and to the extent permitted by either state law or PSC rule and regulation, then the Council/franchising authority requires that an MCS provider (not covered by preemptive state law or PSC rules and regulations) automatically (without a separate request from the subscriber) provide a subscriber with credit for a service outage or interruption or loss of any signal or service exceeding four (4) hours in length whenever such MCS provider may reasonably be expected to be able to determine the existence of the outage and the extent of such outage. For a service outage or interruption of a pay-per-view event that exceeds more than one-fourth (1/4) of the scheduled or projected length of the pay-per-view event, or four (4) hours (whichever is shorter), then the MCS provider must provide a subscriber with a credit for the full amount of the pay-per-view event; provided, however, that such credit shall not exceed the cost of one (1) full day of such pay-per-view event programming for an outage that does not exceed twenty-four (24) hours.

To the extent permitted by the rules of the FCC or by the state or PSC, the Council/franchising authority may prescribe rules for giving credit to a subscriber in cases where a substandard signal or substandard picture quality is furnished by the MCS provider. Substandard signal or picture quality being a signal not delivered with the quality or lack of degradation reasonably able to be provided given the performance capabilities of the receiving and distribution equipment of the system.

In the case of a charge for unsolicited service, an MCS provider shall, to the extent required by applicable federal and state law or rules, provide a subscriber with an adjustment or billing credit on the next available billing statement. Moreover, in such a case, an MCS provider shall not consider a subscriber delinquent for failure to pay a charge for unsolicited service. This is not intended to prevent an MCS operator from adding new programming services so long as there is no increased cost to the subscriber.

§ 185-42 Affirmative requests required for services.

The Council/franchising authority both recognizes and determines that as a matter of consumer protection a subscriber should be charged only for those services that such subscriber has affirmatively requested. Therefore, an MCS provider may not bill or invoice any subscriber for any multichannel service that is not affirmatively requested by the subscriber.

For purposes of this section, a subscriber's affirmative request need not be in writing, but an MCS provider relying on an oral request must keep an accurate record of the date when the request was made.

[Amended 5-29-1996 by L.L. No. 4-1996]

For purposes of this section, a subscriber shall be deemed to have affirmatively requested a multichannel service if:

The subscriber voluntarily makes payment for the multichannel service after an initial free trial period.

There was included in the notice or advertising material describing the service as well as on the first periodic invoice after the service was instituted a statement clearly advising the subscriber that such subscriber has incurred no obligation to pay for such service and that such subscriber need not take any action to avoid incurring any such obligation.

Moreover, an MCS provider may not automatically enroll a subscriber into a different class or tier of multichannel service, including any or all equipment needed, without first promptly informing such subscriber of any and all costs associated with such a different class or tier of multichannel service or equipment.

[Amended 5-29-1996 by L.L. No. 4-1996]

Additionally, an MCS provider may not invoice a subscriber for disconnecting or downgrading from a negatively promoted or automatically enrolled class or tier of multichannel service.

Should a subscriber be charged for a multichannel service in violation of this section, then the MCS provider shall provide a subscriber with an adjustment or billing credit on the next available billing statement. Moreover, in such case, an MCS provider shall not consider a subscriber delinquent for failure to pay a charge for a non-affirmatively requested multichannel service.

If the PSC adopts rules and regulations concerning this practice, then those rules and regulations should control and be operative with respect to an MCS provider classified as a "cable operator."

[Amended 5-29-1996 by L.L. No. 4-1996]

§ 185-43 Menu-driven systems, service clusters and packaging of service tiers.

The Council/franchising authority recognizes that the concept of menu-driven program/service selection has both positive and negative aspects. On the one hand, menu-driven program/service selection allows the greatest flexibility for a subscriber in that it permits the subscriber to essentially create a program/service package tailored to the subscriber's budget, viewing habits and informational needs. On the other hand, menu-driven program/service selection is susceptible to unauthorized or unknowing purchases and uninformed program choices if certain procedural and operational safeguards are not maintained.

Should an MCS provider implement and/or offer menu-driven program/service selection for all or the majority of the MCS provider's multichannel services, then the Council/franchising authority reserves the power to adopt (consistent with any applicable PSC rules and regulations) additional rules and regulations (subject to the conditions listed in Subsection C of this section) concerning the following potential problem areas:

[Amended 5-29-1996 by L.L. No. 4-1996]

Notification to the subscriber [on a periodic (at least annual) basis] of the costs for each menu-driven program/service, including any installation or equipment rental charges, but this is not intended to include single-event pay-per-view programming.

Notification of what constitutes or what is required for selection or subscription to a particular program/service.

Limitations on negative option marketing plans when done in connection with a menu-driven system unless the subscriber provides written consent to be included on a list of potential subscribers and is informed initially and periodically thereafter (at least annually) of the right to refuse such consent.

Restricting access to menu-driven program/service selection by subscribers (through the use of individual, nonduplicative access codes or some other means), in order to limit unauthorized purchases or purchases above a certain preset amount.

If at the time an MCS provider implements and/or offers menu-driven program/service selection such MCS provider also adopts an operational policy which protects subscribers from those potential problem areas listed in Subsection B of this section, then the Council/franchising authority shall not exercise its additional regulatory authority on this subject, unless there is documentation that the adopted policy of the MCS provider is not being enforced or is ineffective in safeguarding subscribers from the potential abuses listed above.[1]

Editor's Note: Former Subsection D, which immediately followed this subsection and dealt with service clusters and the packaging of service tiers, was repealed 5-29-1996 by L.L. No. 4-1996. This local law also renumbered former Subsection E as Subsection D.

Nothing contained in this section shall be construed as mandating any particular programming choice being provided to a subscriber. Nor should this section be construed as requiring any particular program, service, cluster or tier. Rather, this section is designed to promote cluster and tier stability, so that a subscriber may choose a program, service, cluster or tier that best suits the subscriber's individual programming and informational needs.

§ 185-44 Customer service.

In order to facilitate the needs of the local customers, an MCS provider shall maintain a customer service office which is both within reasonable proximity to the city and easily accessible to customers.

[Amended 5-29-1996 by L.L. No. 4-1996]

The customer service office shall be open at least forty (40) hours per week (exclusive of holidays).

Within the forty (40) hours per week that a customer service office must be open, an MCS provider must provide office hours either on at least two (2) evenings (after 5:00 p.m.), or on Saturdays and/or Sundays (if not prohibited by state law, including PSC rules and regulations).

[Amended 5-29-1996 by L.L. No. 4-1996]

The customer service office should have an adequate and knowledgeable staff in order to handle the vast majority of customer service inquiries, specifically including, but not limited to, billing inquiries, refunds, credit, service outages, equipment service and repair, payment of bills and other charges and inquiries from disabled or physically impaired customers.

An MCS provider may install (at its customer service office) an after-hours depository in order to collect invoice payments and receive requests for service appointments (including connections and disconnections) after scheduled office hours.

An MCS provider may install an automated (audio or video) customer assistance device or machine which can handle various types of customer inquiries, so long as the caller has the option and ability to speak with a live representative of the MCS provider during the hours that the office is open and service calls are performed, pursuant to the requirements of this chapter.

Where not prohibited by the state (including PSC rules and regulations), an MCS provider may install an interactive customer assistance service over one (1) or more multichannels which can handle various types of customer inquiries.

[Amended 5-29-1996 by L.L. No. 4-1996]

Neither the presence of an after hours depository nor automated customer service device nor interactive customer service channel relieves an MCS provider from maintaining the minimal required number of office hours or adequate staff of customer service representatives to handle the service inquiries [unless the MCS provider can demonstrate to the Council/franchising authority's satisfaction that the efficiency of such devices or service channel(s) reduces the need for customer service hours or customer service staff].

[Amended 5-29-1996 by L.L. No. 4-1996]

Any MCS provider shall be able to certify to the Council/franchising authority that each customer service representative (CSR) has taken and passed an MCS provider-implemented course designed to train customer service representatives to handle their jobs in a courteous, efficient and responsive manner.

[Amended 5-29-1996 by L.L. No. 4-1996]

An MCS provider shall maintain at least one (1) toll-free and/or local telephone number to accommodate normal business inquiries.

An MCS provider shall maintain a twenty-four-hour toll-free and/or local telephone number to facilitate calls concerning repair of equipment and extended interruption of service. During any hours that the customer service office is open, the MCS provider must have, or make available, in-house personnel to address a customer's inquiries. During other hours, the franchisee's service telephone lines may be manned by remotely located staff or by an automatic answering device. Incoming calls are to be monitored at all times to determine the existence of any service outages and to facilitate the franchisee's prompt response to such outages consistent with all applicable standards of this chapter or federal or state rules. Three (3) or more related service outage calls from the same area will receive immediate attention. The MCS provider shall not be required to make in-person telephone contacts to subscribers at a rate which exceeds sixty (60) calls per hour.

[Amended 5-29-1996 by L.L. No. 4-1996]

An MCS provider shall have adequate staff and/or extension lines (except during special marketing promotion periods, peak billing cycles and service outages) in order to handle calls and inquiries directed to the general information number so that the following standards may be met at least ninety percent (90%) of the time as measured on a quarterly basis under normal operating conditions:

[Amended 5-29-1996 by L.L. No. 4-1996]

Ninety-five percent (95%) of all customer calls received in a year shall be attended within three (3) minutes by a representative of the MCS provider or by a device that is capable of complaint/inquiry resolution.

All customer calls shall be answered properly within thirty (30) seconds. The rate of abandoned calls shall be less than five percent (5%) over any thirty-day period of time. "Abandoned calls" shall in no event be deemed to include calls in which the caller hangs up within forty-five (45) seconds of making the call.

With respect to the standards listed in Subsection L of this section, it shall be the MCS provider's responsibility to be able, if required, to quarterly certify to the Council/franchising authority that the affected MCS provider is meeting the minimal standards.

[Amended 5-29-1996 by L.L. No. 4-1996]

§ 185-45 Special service requirements.

[Amended 5-29-1996 by L.L. No. 4-1996]

Notwithstanding any other requirements mandated by this chapter or by federal or state law (including PSC rules and regulations), an MCS provider shall comply with the following special service requirements for blind, hearing-impaired or ambulatory-impaired customers. The MCS provider shall:

Provide wheelchair accessibility to an MCS provider's customer service office.

Provide, for which it may impose a nondiscriminatory charge, and if otherwise made available, a remote control device and/or converter for ambulatory-impaired subscribers or subscribers with a permanent medical or physical ambulatory impairment.

Where applicable, provide modified or special instructions for use of equipment by individuals who have physical impairments.

§ 185-46 Preferential or discriminatory practices prohibited.

An MCS provider shall not, as to rules, regulations, rates, charges, provision of service or use of a provider's facilities and equipment, make, allow or grant any undue preference or advantage to any person nor subject any person to prejudice or disadvantage on the basis of age, race, creed, color, sex, national origin, nonrelevant handicap as defined by the Americans with Disabilities Act or religious affiliation.

[Amended 5-29-1996 by L.L. No. 4-1996]

Consistent with Section 621(a)(3) of the Cable Act [codified at 47 U.S.C. § 541(a)(3)], MCS providers classified as "cable operators" shall not deny cable service or the extension of cable service to any group of potential residential cable subscribers because of the income of the residents of the local area in which such group resides.

Subsection A of this section, however, does not prohibit an MCS provider from:

Offering a promotional or incentive discount rate or charge as long as the rate or charge does not exceed three hundred seventy (370) days in length. This subsection does not prohibit an MCS provider from offering special incentive rates, such as one-month basic service free if twelve (12) months of basic service are paid in one (1) payment or within a certain time frame or similar types of prepayment discounts (as long as such is not prohibited by the NYSCCT).

Denying service based on location of residence if that residence is outside the parameters for line extension as detailed in a franchise agreement (if applicable).

Denying service to a subscriber who is more than thirty (30) days delinquent in the payment of any periodic service or special service bill, so long as the requirements for disconnection (as outlined in this chapter) have been satisfied.

Implementing a service tier or service cluster for lower-income and/or fixed-income individuals.

[Amended 5-29-1996 by L.L. No. 4-1996]

Making agreements or entering into multichannel service agreements with multiple-dwelling-unit owners (including hotel, motel and mobile park owners) to provide multichannel service under a bulk billing or other type of arrangement.

§ 185-47 Equipment; security deposit.

Prior to formally delivering any equipment, including auxiliary equipment, to a customer, an MCS provider shall have tested a representative sample [at least one percent (1%)] of such equipment to make sure that it is in proper working order, unless such equipment has been pretested already or such equipment is tested at the time of installation.

[Amended 5-29-1996 by L.L. No. 4-1996]

If needed for proper operation or requested by a customer, an MCS provider shall deliver to a customer handwritten or typed instructions detailing the proper use of rented, loaned or purchased equipment. Unless required by another section of this chapter, an MCS provider may comply with this section by delivering the manufacturer's instructions to a customer.

An MCS provider is not required to seek a security deposit from a customer for use or rental of the MCS provider's equipment.

An MCS provider shall comply with any and all applicable state rules (including any applicable PSC rules and regulations) concerning the imposition, retention and return of security deposits.

[Amended 5-29-1996 by L.L. No. 4-1996]

If the state and/or PSC is silent on the security deposit for a particular piece of equipment, then the MCS provider shall be prohibited from charging any security deposit for equipment which exceeds the value of the equipment.

[Amended 5-29-1996 by L.L. No. 4-1996]

As a matter of consumer protection, an MCS provider shall be prohibited from charging any security deposit for multichannel service which exceeds twice the basic monthly rate.[1]

Editor's Note: Former Subsection G, which immediately followed this subsection and dealt with changing a security deposit after involuntary disconnection, was repealed 5-29-1996 by L.L. No. 4-1996. This local law also renumbered former Subsections I, J and K as H, I and J, respectively.

An MCS provider shall return a security deposit held to secure equipment return (together with any interest earned) after the equipment is satisfactorily returned, and a deposit held to secure service payment shall be returned when the subscriber maintains a satisfactory payment history (which is determined as no payment delinquencies within the preceding twelve-month period). There shall be separate deposits for equipment and service if deposits are required.

[Amended 5-29-1996 by L.L. No. 4-1996]

A customer shall maintain any equipment rented or leased from an MCS provider in good working order and operate such equipment only in the manner specified by the MCS provider or manufacturer of the equipment.

A customer shall totally and fully reimburse an MCS provider for any damage or loss to an MCS provider's equipment that is due to the customer's failure to properly maintain and operate such equipment.

A customer shall be relieved from any responsibility for reimbursing an MCS provider for equipment which malfunctions or does not operate due to a hidden or latent defect in the equipment or for equipment which fails to operate or improperly operates due to natural occurrences conditioned by the normal wear and tear of such equipment.[2]

[2]

Editor's Note: Former Subsection L, which immediately followed this subsection and dealt with equipment damaged by an act of nature, was repealed 5-29-1996 by L.L. No. 4-1996.

§ 185-48 Service inquiry logs.

An MCS provider shall be required to keep and maintain service inquiry logs subject to any limitations imposed by the PSC or by state or federal law, including (for MCS providers classified as "cable operators") any subscriber privacy limitations imposed by the Cable Act.

[Amended 5-29-1996 by L.L. No. 4-1996]

The purpose of the service inquiry logs is to assist the city in assessing (in the aggregate) the type, degree and resolution of customer service requests, inquiries and complaints.

At a minimum, the service inquiry logs should contain the following:

The time and date of initial receipt of any service request, inquiry or complaint relating to service outage or transmission problems, together with the time and date of initial response to that service request, inquiry or complaint.

[Amended 5-29-1996 by L.L. No. 4-1996]

The nature of the service request, inquiry or complaint.

The precise action taken by an MCS provider in order to resolve the service inquiry, request or complaint.

Whether the service request, inquiry or complaint was resolved by allowing a credit or refund of some sort.

The area, location or quadrant of the city where the service request, inquiry or request was generated.

In addition to any other right of inspection that the Council/franchising authority may possess, it shall have the right to review and inspect a compilation of such logs. However, the Council/franchising authority shall not have the right of access, review or inspection for any service inquiry logs or any information contained within service inquiry logs that are otherwise protected from access, review or inspection by federal or state law (including any applicable PSC rules and regulations).

[Amended 5-29-1996 by L.L. No. 4-1996]

This section does not require MCS providers to maintain service inquiry logs on scheduled installations.

§ 185-49 (Reserved)

§ 185-50 (Reserved)

§ 185-51 (Reserved)

§ 185-52 (Reserved)

§ 185-53 (Reserved)

§ 185-54 (Reserved)

§ 185-55 (Reserved)

§ 185-56 Restoration of a subscriber's property.

At any time an MCS provider (in furtherance of its right to construct, operate and maintain a multichannel system) disturbs the yard, residence or other real or personal property of a subscriber and/or upon a request by the subscriber for restoration of property, such MCS provider shall ensure that the subscriber's yard, residence or other personal property is returned, replaced and/or restored to a condition that is reasonably comparable to the condition that existed prior to the commencement of the work.

[Amended 5-29-1996 by L.L. No. 4-1996]

The costs associated with both the disturbance and the return, replacement and/or restoration shall be borne by the MCS provider unless the disturbance was made at the request of the subscriber or property owner. This subsection also requires the MCS provider or the subscriber to reimburse the private property owner for any actual physical damage caused by the MCS provider, its subcontractor or its independent contractor in connection with the disturbance of the private property owner's property.

[Amended 5-29-1996 by L.L. No. 4-1996]

The types of acts specifically included in this section are the following, subject to existing easement rights:

[Amended 5-29-1996 by L.L. No. 4-1996]

Removal of a property owner's sod, lawn, plants, shrubbery, flowers, trees, driveway or fence to install, trench, repair, replace, remove or locate cable or other equipment of an MCS provider;

Installation or removal of cable or other equipment of an MCS provider within a residence which requires drilling, excavating, plastering or the like on the part of the MCS provider;

Temporarily relocating or moving a piece of personal property or a fixture of a subscriber (such as a motor vehicle, fence, air-conditioning or heating unit or the like) in order to perform some sort of construction, maintenance or repair on the multichannel system; or

Permanently removing an MCS provider's cable or equipment due to either the revocation, termination or nonrenewal of a franchise (if applicable) or the abandonment, withdrawal or cessation of multichannel service to any portion of the city.

The requirements imposed upon the MCS provider extend to any subcontractor or independent contractor that the MCS provider might employ to perform the tasks outlined in this section.

In light of the foregoing, an MCS provider has the responsibility to diligently take all reasonable steps to protect the system and its component from conflicts (contact) with tree limbs (e.g., employing the accepted practice of installing tree guards).

§ 185-57 Service requirements.

[Amended 5-29-1996 by L.L. No. 4-1996]

Except in times of a natural or man-made emergency or an appointment scheduled with the mutual consent of a subscriber, an MCS provider shall, under normal operating conditions, respond to the service inquiries, requests and complaints of subscribers within such MCS provider's normal business or service hours and within the time schedules detailed in Subsections B through F of this section. The MCS provider shall be considered in compliance by the Council/franchising authority if the standards of service outlined in Subsections B through F are met or exceeded at least ninety-five percent (95%) of the time over any calendar quarter. Moreover, except in emergency situations, an MCS provider shall inform the customer that there is a choice as to whether the service call is scheduled for the morning, afternoon or evening hours. If the service call has to be canceled or rearranged by the MCS provider, then the MCS provider shall make every effort to notify the customer as soon as possible and shall reschedule the service call within twenty-four (24) hours of the original scheduled service call unless otherwise mutually agreed upon.

In the case of a signal or service interruption (such being defined as a visually discernible degradation in picture or sound), an MCS provider shall respond to and begin working on the problem within twenty-four (24) hours from the time the MCS provider first received notification of the signal or service interruption.

In the case of a "blank" or "no-picture" situation of any given level of billing or service (except for pay-per-view events), an MCS provider shall respond to and begin working on the problem within twenty-four (24) hours from the time the MCS provider first received notification of the "blank" or "no-picture" situation and continue working until the problem is resolved.

In the case of a defective, improperly operating or nonoperating piece of equipment affecting the transmission of cable television or MCS service, an MCS provider shall make its best efforts to respond and remedy the problem the same day, but in no case will the response be later than twenty-four (24) hours or one (1) working day from the time the MCS provider first received notification of the defective, improperly operating or nonoperating piece of equipment.

In no case shall a subscriber's service request or inquiry relating to an area service outage [three (3) or more related calls from the same area] go unresponded or unattended to for more than twelve (12) hours from the time the MCS provider first received notification of the service inquiry or request. Moreover, except in emergency situations and with the exception of Sundays and regularly scheduled holidays, all service outage complaints shall receive an immediate response and, if required, a visit from a service technician on the same day if feasible or by no later than twenty-four (24) hours following the complaint. In any event, except for calls or inquiries generated on Sundays or regularly scheduled holidays, all requests and inquiries shall generate a telephone response within twenty-four (24) hours unless prevented by circumstances beyond the service provider's control, and appropriate collective action or adjustment shall be implemented within one (1) week from the time the MCS provider first received notification.

In case of a dispute concerning the precise time that the MCS provider received notification or the precise circumstances surrounding the MCS provider receiving the notification or whether notification was received at all, the Council/franchising authority reserves the right and authority to settle such a dispute with the consent of the parties. However, for MCS providers classified as "cable operators," such MCS providers have the option of choosing the PSC for the resolution of the timing dispute.

§ 185-58 Maintenance and repair.

Except in times of natural or man-made emergency, an MCS provider shall, at all times, have access to and be able to secure sufficient maintenance and repair parts and equipment for the MCS system so that the MCS provider can respond to and begin appropriate steps to correct all subscriber service interruptions within the time periods specified in this chapter.

[Amended 5-29-1996 by L.L. No. 4-1996]

Having access to and being able to secure sufficient maintenance and repair parts and equipment is necessary to promptly restore a subscriber's multichannel service and avoid delays caused by having to obtain needed parts and equipment.

Except in times of natural or man-made emergency or strike by the employees of the MCS provider [whose duration has been less than seventy-two (72) hours], an MCS provider shall have sufficient maintenance and repair personnel so that the MCS provider can respond to and begin appropriate steps to correct subscriber service interruptions within the time periods specified in this chapter.

[Amended 5-29-1996 by L.L. No. 4-1996]

An MCS provider shall be able to certify to the Council/franchising authority that each service technician has taken and passed an MCS provider-implemented course designed to train service technicians to handle their jobs in a courteous, efficient and responsive manner. Also, the course should be designed to provide continuing education to service technicians in changes in technology, repair/maintenance procedures and related matters.

[Amended 5-29-1996 by L.L. No. 4-1996]

Notwithstanding the other requirements and provisions contained in this section, an MCS provider shall maintain at least one (1) service technician on call twenty-four (24) hours per day.

§ 185-59 Installations; connections.

Under normal operating conditions, new installations, promotional, short-term or seasonal connections, reconnections and upgrades of multichannel service by an MCS provider shall be performed and completed within seven (7) days (excluding holidays) of a customer requesting such. This standard shall be met no less than ninety-five percent (95%) of the time as measured on the basis of a calendar quarter.

[Amended 5-29-1996 by L.L. No. 4-1996]

The provisions of Subsection A of this section shall not apply to pay-per-view or menu-driven connections.

While an MCS provider may charge a customer for installing, connecting or reconnecting multichannel service, such charge must be explained to and approved by the customer prior to the installation, connection or reconnection.

In the case of a promotional or seasonal connection, any limitations or restrictions must be explained to the subscriber prior to the promotional or seasonal connection.

An MCS provider may charge an appropriate reconnection charge or require a security deposit. However, the reconnection charge or security deposit related to an involuntary disconnection must not be based on the location or address of the residence or structure.

[Amended 5-29-1996 by L.L. No. 4-1996]

Downgrading a particular service level or service cluster to a lower-priced or less comprehensive service or cluster level shall not subject the subscriber to an installation or service change charge in excess of that authorized and permitted under applicable federal and state law and rules or, in the absence of such law or rules, in an amount greater than the cost of implementing such downgrade.

[Amended 5-29-1996 by L.L. No. 4-1996]

An MCS provider classified as a "cable operator" shall comply with any and all rules and regulations of the PSC concerning downgrading.

[Amended 5-29-1996 by L.L. No. 4-1996]

§ 185-60 Disconnection for nonpayment.

As regards subjecting a subscriber to involuntary disconnection, a subscriber shall not be considered delinquent in payment until at least forty-five (45) days after the posting of the bill to the subscriber.

[Amended 5-29-1996 by L.L. No. 4-1996]

Before disconnection of a subscriber's multichannel service (either physically or electronically) takes place, the following must occur:

The subscriber must in fact be delinquent in payment of multichannel service; and

At least five (5) days have elapsed after a separate written notice of impending disconnection has been personally served upon the subscriber; or

At least eight (8) days have elapsed after mailing a separate written notice of impending disconnection to the subscriber; or

At least five (5) days have elapsed after the subscriber has either signed for, or refused to accept, a separate written notice of impending disconnection.

The written notice of disconnection must expressly and clearly state the amount that is owed by the subscriber to an MCS provider, the minimum amount required to be paid to avoid disconnection and the date and place where such payment must be made.

Disconnection of service must occur both on a normal service day and within normal business hours of an MCS provider unless the subscriber agrees otherwise or is given the opportunity to pay the full amount of the past due account.

[Amended 5-29-1996 by L.L. No. 4-1996]

An MCS provider which physically retrieves its equipment (including converter, remote control unit or digital audio tuner) from a subscriber must do so within both a normal service day and normal service hours of an MCS provider, unless otherwise agreed to by the subscriber.

Receipt of a bad check from a subscriber, in response to a written notice of disconnection, does not constitute payment, and the affected MCS provider need not give the subscriber further notice prior to disconnecting multichannel service.

An MCS provider may add a reasonable collection charge to the subscriber's bill if the applicable provisions of this chapter and any applicable state regulations (including those of the PSC) are followed.

[Amended 5-29-1996 by L.L. No. 4-1996]

Any refund due to a subscriber after such a disconnection shall be made within sixty (60) days of the disconnection for nonpayment unless the subscriber has changed addresses without notifying the MCS provider.

§ 185-61 Voluntary disconnections and downgrades.

At any time, a subscriber may request that a particular service tier, service cluster, menu-driven program/service, premium channel, informational service or the entire multichannel service be disconnected.

Where provided by an MCS provider, a subscriber may request a downgrade from a particular level of service to a less comprehensive level of service or a less expensive level of service.

From the date that such a subscriber makes such a request for either a disconnection or downgrade, then the MCS provider shall have seventy-two (72) hours or three (3) service days, whichever is longer, to disconnect or downgrade the service tier, pay channel, premium channel, informational service or entire multichannel service. In the event that an MCS provider does not disconnect or downgrade service within seventy-two (72) hours, a subscriber's obligation to pay for such service shall cease, or, in the case of a downgrade, a subscriber's obligation to pay for the more comprehensive and/or higher priced service shall cease.

For a service tier, service cluster, menu-driven service, premium channel or informational service which is voluntarily disconnected, a subscriber shall pay a pro rata share of the monthly rate for such service tier, service cluster, menu-driven service, premium channel or informational service.

Once a valid connection to a menu-driven program or a pay-per-view event occurs, then the MCS provider may collect the full advertised or quoted rate, should the customer then attempt to disconnect the menu-driven program or pay-per-view event.

For MCS providers classified as "cable operators," any charge or billing imposed on a subscriber as a result of a downgrade by such MCS providers shall be no more than the maximum permitted by FCC and PSC rules and regulations. For other MCS providers, the Council/franchising authority reserves the right to approve any charge or billing that would be imposed on a subscriber as a result of a downgrade in service.

[Amended 5-29-1996 by L.L. No. 4-1996]

If, however, an MCS provider's equipment is or has been lost, appropriated or damaged by a subscriber prior to such disconnection, then the MCS provider may charge the subscriber with the entire cost for such loss or damage, provided that the MCS provider notify the subscriber within thirty (30) days of the disconnection. A subscriber shall not be required to pay for equipment failure if the circumstances fall within the normal wear and tear or acts of nature guidelines established in this chapter.

[Amended 5-29-1996 by L.L. No. 4-1996]

Any refund due a subscriber after voluntary disconnection and/or downgrade shall be made within sixty (60) days after such disconnection unless the subscriber has changed addresses without notifying the MCS provider.

In no event will this section be viewed as abridging the rights and remedies afforded by the subscriber complaint/inquiry resolution process outlined in this chapter.

The provisions contained in this section concerning downgrades shall be considered supplemental to any applicable rules and regulations of the PSC.

[Amended 5-29-1996 by L.L. No. 4-1996]

§ 185-62 Seamless technology.

[Amended 5-29-1996 by L.L. No. 4-1996]

The Council/franchising authority recognizes the fact that it is in the public's interest to be able to utilize the functions inherent in subscriber receiving equipment without having to incur additional costs to obtain the same functions. Consequently, the Council/franchising authority may require that the MCS provider comply with applicable federal or state law or rules relating to the availability of compatible customer equipment.

§ 185-63 (Reserved)

§ 185-64 (Reserved)

§ 185-65 (Reserved)

§ 185-66 Protection of subscriber privacy.

[Amended 5-29-1996 by L.L. No. 4-1996]

An MCS provider shall abide by any and all subscriber privacy rules or regulations of the federal or state governments (including any applicable rules and regulations of the PSC).

For MCS providers classified as cable operators, such operators shall also abide by and comply with any subscriber privacy protection requirements and procedures listed in Section 631 of the Cable Act (codified at 47 USC § 551).

§ 185-67 Complaints; inquiries.

An MCS provider is required to develop a comprehensive complaint/inquiry resolution policy that is consistent with the rules and regulations outlined in this chapter.

An MCS provider's complaint/inquiry resolution policy shall be reduced to writing, and such policy shall be available upon request to any person. In any event, a subscriber shall receive notice of such policy in the manner that is prescribed by this chapter and any state rules and regulations (including those of the PSC). Further, nothing in this section shall prohibit a customer from seeking relief from the PSC for any matter within its jurisdiction.

[Amended 5-29-1996 by L.L. No. 4-1996]

An MCS provider's complaint/inquiry resolution policy shall contain at least the following minimal standards:

[Amended 5-29-1996 by L.L. No. 4-1996]

Except in the event of circumstances beyond the control of the service provider, e.g., natural disaster, the initial response to any complaint/inquiry relating to a service problem shall occur no later than twenty-four (24) hours after receipt of the complaint/inquiry, with the exception of Sundays and regularly scheduled holidays. Appropriate collective action or adjustment shall be implemented within one (1) week.

Every reasonable attempt will be made to resolve the complaint/inquiry relating to service problems within twenty-four (24) hours after receipt of the complaint/inquiry.

Complaints/inquiries that fall into the category of inquiries for service changes or additions shall be addressed by the procedure set forth in this chapter.

Informing subscribers of the credit/refund policy which is consistent with this chapter and any applicable state regulations (including those of the PSC).

Informing subscribers of the billing disputes policy which is consistent with this chapter and any applicable state regulations (including those of the PSC).

§ 185-68 Multichannel service.

The Council/franchising authority declares that as part of its right to establish multichannel customer service guidelines it is in the public interest to ensure continuity of multichannel service for all subscribers. In that light, the Council/franchising authority also determines that it may take appropriate measures in order to ensure that no portion of the city is threatened or faced with a disruption, interruption or discontinuance of multichannel service due to the actions of any MCS provider.

In addition to the principles and ideals enumerated in Subsection A, the Council/franchising authority also expresses that its policy covers the following:

To provide for continuity of multichannel service in the event of acquisition by the city.

To provide for continuity of service in the event of a proposed abandonment, withdrawal or cessation of multichannel service by an MCS provider.

To provide for continuity of service in the event of revocation, termination or nonrenewal of a franchised MCS provider's franchise.

To provide for continuity of service in the event that a transaction occurs that affects the ownership or control of the MCS provider, such as an assignment, sale, transfer or merger.

To provide for continuity of service in the event of an expiration of a franchise.

To prevent disruption of multichannel service which would provide a hardship on those subscribers who rely on a multichannel system as their primary or secondary source of information.

To prevent the interruption or cessation of multichannel service which would disrupt or eliminate the diversity of programming choices enjoyed by subscribers of a multichannel system and thereby restrict their ability to receive information.

In any situation (including any of those mentioned above), which threatens the city and subscribers with the loss or interruption in the continuity of multichannel service, then the MCS provider shall, to the extent that it has adequate advance knowledge, provide the Council/franchising authority with at least forty-five (45) days notice (except in extreme circumstances) prior to the effective date of any action which would cause a loss or interruption in the continuity of multichannel service. The purpose of the notice is to apprise the Council/franchising authority of the possibility of such loss or interruption in the continuity of multichannel service so that it might explore its options and take appropriate measures.

[Amended 5-29-1996 by L.L. No. 4-1996]

Whenever any situation occurs (including those mentioned above) which threatens the city and subscribers with the loss or interruption in the continuity of multichannel service, then the Council/franchising authority may permit the MCS provider for a period of up to twenty-four (24) months to do everything in its power to ensure that all subscribers receive continuous, uninterrupted multichannel service of the same quality, mix and level(s) regardless of the circumstances.

[Amended 5-29-1996 by L.L. No. 4-1996]

During the interim period, the Council/franchising authority shall work with the MCS provider in order to secure a new multichannel system owner or rectify the problem so that the threat of loss of continuity is removed at the earliest possible instance.

During any interim period in which the MCS provider continues to provide multichannel service to subscribers, the MCS provider is entitled to all revenues collected, except any sums owed (including franchise fees, alternative user charges and taxes) to the city or to other persons.

In the event that the threat of loss of continuity is not resolved within twenty-four (24) months, then the Council/franchising authority may extend the interim period on a month-to-month basis until the situation is satisfactorily resolved. Also, in such a circumstance, the Council/franchising authority may adopt any emergency rules or procedures which will ensure that the subscribers will receive continuous, uninterrupted multichannel service of the same quality, mix and level(s).

Nothing in this section should be construed as requiring an MCS provider to operate a multichannel system at a continued financial loss (due to bankruptcy or insolvency) for an extended period of time. Consequently, the Council/franchising authority may take appropriate steps to ensure the continuity of service.

[Amended 5-29-1996 by L.L. No. 4-1996]

§ 185-69 Individual antennas protected; multichannel service not required.

The Council/franchising authority does not intend to prohibit the erection or continued use of individual television antennas within the city so long as the individual television antennas conform to any and all applicable zoning and/or land use regulations. Consequently, no person shall be required to receive multichannel service or to physically connect to a multichannel system.

It is also noted that no person shall be penalized or fined (through either a home sales contract, deed of restrictive covenants or other type of agreement) for failing or refusing to receive multichannel service or physically connecting to a multichannel system.

§ 185-70 (Reserved)

§ 185-71 (Reserved)

§ 185-72 (Reserved)

§ 185-73 (Reserved)

§ 185-74 (Reserved)

§ 185-75 (Reserved)

§ 185-76 Construction schedule.

In order to establish minimum uniform standards, the Council/franchise authority requires any MCS provider to adopt the following minimal construction schedule and construction-related requirements:

Construct, install, maintain and repair the multichannel system in accordance with the requirements noted in this chapter.

Use streets and public ways as set forth in this chapter.

Where applicable, remove franchise property from public streets, as set forth in this chapter.

Adopt the construction standards, as set forth in this chapter.

Adopt the system expansion standards, as set forth in this chapter.

Adopt the construction schedule as referred to in this chapter.

Abide by and act in strict accordance with all current technical codes adopted by the city or the state or the United States, as noted in this chapter.

Maintain all permits and licenses, as noted in this chapter.

§ 185-77 Construction quality.

During any phase of construction, installation, maintenance and repair of the multichannel system, the MCS provider shall use materials of good and durable quality, and all such work shall be performed in a safe, thorough and reliable manner.

§ 185-78 Use of streets and public ways.

All wires, conduits, cable (coaxial, fiber or functional equivalent) and other property and facilities of an MCS provider shall be so located, constructed installed and maintained so as not to endanger or unnecessarily interfere with usual and customary use, traffic and travel upon the streets, rights-of-way, easements and public ways of the city. To prevent the unnecessary disruption of the flow of traffic during peak traffic hours, any MCS provider shall make reasonable efforts to minimize unnecessary work associated with construction, installation (other than in subscriber homes) activities that involve working on or within the street system between 7:00 a.m. and 9:00 a.m. or 3:00 p.m. and 6:00 p.m. on regular business weekdays.

[Amended 5-29-1996 by L.L. No. 4-1996]

In the event that an MCS provider's system creates a hazardous or unsafe condition or an unreasonable interference with property, then, at its own expense, such MCS provider shall, voluntarily or upon the request of the Council/franchising authority, remove that part of the system that creates the hazardous condition from the subject property.

An MCS provider shall not place equipment where it will interfere with the rights of property owners or with gas, electric or telephone fixtures or with water hydrants or mains or with wastewater lift stations, any traffic control system or any other service or facility that benefits the city's or its residents' health, safety or welfare.

An MCS provider, at either its own expense or that of a private contractor, shall protect rights-of-way and easements and support or temporarily disconnect or relocate in the same street or other public way any property of such MCS provider when necessitated by reason of:

Traffic conditions.

Public safety.

A street closing.

Street construction or resurfacing.

A change or establishment of street grade.

Installation of sewers, drains, water pipes, storm drains, lift stations, force mains, power or signal lines and any traffic control system.

Any improvement, construction or repair related to the city's or its residents' health, safety or welfare.

It shall be the responsibility of an MCS provider (acting alone or in conjunction with another person), upon request, to locate and mark or otherwise visibly indicate and alert others to the location of its underground cable (coaxial, fiber or functional equivalent) before employees, agents or independent contractors of any entity install cable in the marked-off area.

[Amended 5-29-1996 by L.L. No. 4-1996]

An MCS provider shall, on the request of any person holding a building moving permit, temporarily remove, raise or lower the cable wires to allow the moving of the building. The expense of temporary removal shall be paid by the person requesting it, and such MCS provider may require payment in advance. The affected MCS provider shall be given not less than twenty-one (21) days' notice of a contemplated move to arrange for temporary wire changes.

For any new installations occurring after the effective date of this chapter and at the time that an MCS provider rebuilds or upgrades the multichannel system, all trunk or feeder cable (coaxial, fiber or functional equivalent) shall be placed underground when and if other utilities are required to have their facilities placed underground. Further, where both power and utilities are presently required to be underground, multichannel system cable shall also be placed underground.

[Amended 5-29-1996 by L.L. No. 4-1996]

§ 185-79 Removal of franchised properties.

This section is applicable to any MCS provider required to maintain a franchise to operate within the city.

Unless the city or another MCS provider uses such multichannel system, under the continuity provisions outlined in this chapter or unless other arrangements have been agreed to by the Council/franchising authority or the owners of the property where the subject facilities are located, the affected franchised MCS provider shall promptly remove any portions of its multichannel system property that if not removed could pose a hazard to public health, safety or welfare or a harm to the interests of the city from the streets, public ways and private property located within the city whenever the following occurs:

[Amended 5-29-1996 by L.L. No. 4-1996]

A franchised MCS provider ceases to operate all or part of the multichannel system for a continuous period of six (6) months;

A franchised MCS provider ceases and fails to construct the multichannel system outlined in the application or proposal for renewal or renewal franchise agreement;

The Council/franchising authority elects not to renew the franchise pursuant to the provisions set forth in this chapter; or

The franchised MCS provider's franchise is revoked pursuant to the provisions set forth in this chapter.

If not removed voluntarily by a franchised MCS provider, then the Council/franchising authority may notify such franchised MCS provider that if removal of any property that is found to be likely to constitute a hazard or harm if not removed is not accommodated within two hundred seventy (270) days or substantial progress towards removal is not made within two hundred ten (210) days, then the Council/franchising authority may direct officials or representatives of the city to remove such franchised MCS provider's system property at that franchised MCS provider's expense. The performance and/or construction bond, irrevocable letter of credit, cash deposit or full faith and credit guarantee required as set forth in this chapter shall be available to pay for such work.

[Amended 5-29-1996 by L.L. No. 4-1996]

If officials or representatives of the city remove a franchised MCS provider's system property and such franchised MCS provider does not claim the property within ninety (90) days of its removal, then the Council/franchising authority may take whatever steps are available under state law to declare the property surplus and sell it, with the proceeds of such sale (if permitted by state law) going to the city.

When such franchised MCS provider removes its multichannel system property from the streets, public ways and private property located within the city, the franchised MCS provider shall, at its own expense and in a manner approved by the Council/franchising authority, replace and restore such property in as good a condition as before the work causing the disturbance was done.

[Amended 5-29-1996 by L.L. No. 4-1996]

§ 185-80 Construction standards.

Methods of construction, installation, maintenance and repair of any multichannel system shall comply with the most current editions of the National Electrical Safety Code and the National Electric Code, as they affect the construction, installation and maintenance of electrical supply and communication lines and attachments and supports. To the extent that these are inconsistent with other provisions of a franchise or state or local law, then the state law shall apply unless the state allows the local law to control.

All construction, installation, maintenance and repair shall treat the aesthetics of the property as a priority and shall not unreasonably impair the appearance of the structure.

[Amended 5-29-1996 by L.L. No. 4-1996]

All underground drops shall follow (to the greatest extent possible) all reasonable construction and installation standards required under city, state or federal rules. Underground installations shall be constructed in accordance with the specifications and requirements of the City of Rye and the National Electric Safety Code and must be designed to minimize disruption to the city's underground facilities associated with the computerized traffic control system network.

[Amended 5-29-1996 by L.L. No. 4-1996]

For existing multichannel system construction, installation and repair, the provisions of Subsection C of this section shall apply only at the time a scheduled upgrade or rebuild of the MCS provider's multichannel system is actually commenced. For newly served areas, then the provisions of Subsection C of this section shall apply at the time of initial construction and/or installation.

In instances where either electrical or telephone utilities wire or cable aerially, then the MCS provider may construct its multichannel system aerially unless otherwise required by state law (including any applicable PSC rules and regulations).

[Amended 5-29-1996 by L.L. No. 4-1996]

In instances where both electrical or telephone utilities are required to place wire or cable underground, then the MCS provider shall construct its multichannel system underground unless otherwise permitted by state law (including applicable PSC rules and regulations). However, where existing aerial electrical or telephone utilities convert to underground facilities, an existing aerial MCS provider shall have the option to continue remaining aerial for as long as it does not provide a hazard and is permitted by state law (including any applicable PSC rules and regulations).

[Amended 5-29-1996 by L.L. No. 4-1996]

§ 185-81 Construction schedule for franchised MCS providers.

This section is applicable to any MCS provider required to maintain a franchise to operate within the city which is required to construct or rebuild an MCS system.

[Amended 5-29-1996 by L.L. No. 4-1996]

A franchised MCS provider's construction schedule for the multichannel system shall be detailed in the franchise agreement in a form and format determined by the Council/franchising authority.

A franchised MCS provider who does not abide by the system construction schedule shall be handled in the manner allowed under either this chapter or, where applicable, a franchise agreement or applicable federal or state law or rules.

[Amended 5-29-1996 by L.L. No. 4-1996]

§ 185-82 System expansion.

The Council/franchising authority recognizes that one of its primary purposes in the franchising process is to ensure that the widest diversity of programming sources shall be available to the greatest number of city residents. The Council/franchising authority is also cognizant that an MCS provider may have some constitutionally protected rights with respect to when and what areas of the city are provided service.

In order to balance those interests, the Council/franchising authority sets the minimum guidelines for any system expansion on the part of a franchised MCS provider.

A franchised MCS provider shall submit, within six (6) months of the effective date of this chapter, a detailed plan for multichannel system expansion to any area in which the public streets are not presently served within the city. Such plan should not be construed as a requirement for universal service, but rather as a means for achieving the Council/franchising authority's goals mentioned in Subsection A. However, at a minimum, a franchised MCS provider shall extend multichannel service to any area within the city that has a density of twenty (20) home or building passings per mile, or fractional equivalent thereof, as measured from the extremity of the system nearest the unserved area. Also, in such a case, a newly installed subscriber shall not be assessed or apportioned the cost for installation, except for the usual and normal connection fees paid by subscribers and except for the costs of custom service arrangements or exceptional distance from the public streets or ways, so long as the system expansion is technically feasible.

[Amended 5-29-1996 by L.L. No. 4-1996]

The detailed plan must include criteria for extending the provision of service to isolated subscribers. For purposes of this section, "isolated subscribers" means any potential customer of a franchised MCS provider who dwells in a house more than one-half (1/2) mile from the nearest franchised MCS provider connection.

§ 185-83 Permits and licenses.

An MCS provider shall obtain, at its own expense, all permits and licenses required by local law, rule, regulation or ordinance and maintain the same, in full force and effect, for as long as required by the city or other appropriate entity.

§ 185-84 Technical and performance standards.

[Amended 5-29-1996 by L.L. No. 4-1996]

The MCS provider shall comply with and abide by any and all applicable rules and regulations of the NYSCCT concerning the performance and integrity of the multichannel system.

§ 185-85 Proof-of-performance tests.

[Amended 5-29-1996 by L.L. No. 4-1996]

The MCS provider shall design and conduct any and all tests necessary to verify the performance and technical integrity of the multichannel system. Such tests shall be performed at least annually and shall be in accordance (where applicable) with any and all rules and regulations of the PSC concerning proof-of-performance.

§ 185-86 Inspection to ensure compliance.

[Amended 5-29-1996 by L.L. No. 4-1996]

In order to verify that an MCS provider constructed and maintained the multichannel system in the manner required by this chapter and conducted the various performance, technical integrity (including cumulative leakage), preventive maintenance and safety tests required by federal, state (including PSC) and local laws required by this chapter, the Council/franchising authority reserves the right to inspect all facets of an MCS provider's construction as well as inspect documents related to construction and inspect tests related to performance, technical integrity, preventive maintenance and safety.

The Council/franchising authority shall pay for all its costs associated with such an inspection, except for those circumstances precipitated by an MCS provider's unreasonable refusal to provide necessary information (such as, schematic drawings or as-built maps) or occasioned by the repeated failure to construct, install, maintain, repair, rebuild or upgrade in the manner specified and required by this chapter or, where applicable, a franchise agreement. In such instances, the MCS provider shall pay for such costs incurred by the city caused by the MCS provider's refusal to supply necessary information or repeated failure to abide by the rules.

§ 185-87 (Reserved)

§ 185-88 (Reserved)

§ 185-89 (Reserved)

§ 185-90 Safety requirements.

The Council/franchising authority requires that the MCS provider's construction, operation and maintenance of the multichannel system meet certain threshold safety levels which are designed to protect the public and lessen the likelihood of interruption of multichannel service.

Consequently, the Council/franchising authority requires any MCS provider to adopt the following safety requirements:

Emergency alert override activation in the manner set forth in this chapter.

Minimum standby power as noted in this chapter.[1]

Editor's Note: Former Subsection B(3), which immediately followed this subsection and dealt with signal alert technology, was repealed 5-29-1996 by L.L. No. 4-1996. This local law also renumbered former Subsection B(4) as B(3).

Implementing a periodic preventative maintenance program, as set forth in this chapter.[2]

[2]

Editor's Note: Former Subsection B(5), which immediately followed this subsection and dealt with maximum cumulative leakage, was repealed 5-29-1996 by L.L. No. 4-1996. This local law also renumbered former Subsection B(6) as B(4).

Complying with and abide by any construction, safety or fire codes, as noted in this chapter.

§ 185-91 Emergency provisions.

In order that subscribers may be alerted in the event of an impending, imminent or actual natural or man-made emergency, all MCS providers shall ensure that the multichannel system providing multichannel service to all or part of the city is designed so as to permit an authorized official of the city to override the audio portion of all channels by touch-tone phone (or functional equivalent) from any location.

In addition to any other requirements listed in this section, an MCS provider shall:

Designate a channel which will be used for emergency broadcasts of both audio and video (this channel need not be solely used for emergency broadcasts and may in fact be used for any lawful purpose).

Inform subscribers of the designated emergency channel on a periodic basis with reasonable regularity (not less than once a week).

[Amended 5-29-1996 by L.L. No. 4-1996]

Test the emergency override system regularly, and remedy any problems on operational deficiencies immediately.

[Amended 5-29-1996 by L.L. No. 4-1996]

Cooperate with the city on the use and operation of the emergency alert override system.

Develop a plan (with the city's concurrence) in order to provide continuity of multichannel service and response to service calls in the event of a natural or man-made emergency.

As one (1) method of providing continuity of multichannel services in the event of a natural or man-made emergency, an MCS provider shall, unless exempted by the Council/franchising authority, have the capacity for three-hour automatically activated standby power on all trunk and feeder cable and all head ends, hubs and receiver sites associated with the distribution of cable service to and throughout the city.

§ 185-92 (Reserved) [1]

Editor's Note: Former § 185-92, Safety alert technology, was repealed 5-29-1996 by L.L. No. 4-1996.

§ 185-93 Preventive maintenance program.

It shall be the duty of an MCS provider to devise and implement a periodic preventative maintenance program for the multichannel system in order to ensure that there is no material degradation of the multichannel system that would affect the citizens' health, safety and welfare or negatively affect the quality of multichannel services being provided.

Such a program may be reviewed and approved by the Council/franchising authority. Such approval by the Council/franchising authority shall not be unreasonably withheld for an MCS provider-designed preventive maintenance plan that meets the objectives of the Council/franchising authority.

[Amended 5-29-1996 by L.L. No. 4-1996]

Within forty-five (45) days after the completion of any preventive maintenance component test, the MCS provider shall be prepared to make available for inspection a written report (except for daily or weekly components and tests which may be submitted once a quarter) to the Council/franchising authority detailing the results of the tests conducted and all items performed or addressed during the periodic preventive maintenance program. Although not exhaustive, the following areas should be included in a preventive maintenance program and subsequent report:

[Amended 5-29-1996 by L.L. No. 4-1996]

Inspection and repair, if needed, of the head end.

Inspection and repair, if needed, of the antenna tower.[1]

Editor's Note: Former Subsection C(3), which immediately followed this subsection and dealt with weatherproofing, was repealed 5-29-1996 by L.L. No. 4-1996. This local law also renumbered former Subsections C(4) through C(12) as C(3) through C(11), respectively.

The conducting of signal leakage tests that are in accord with FCC requirements.

Removal of tree roots, limbs and branches that interfere with or come in contact with the MCS provider's cable.

The periodic servicing, testing and calibration of the MCS provider's equipment, including service vehicles and field test equipment.

Employing a status monitoring system or other adequate practices to identify problems or situations in which the multichannel system electronics are operating outside preprogrammed parameters.

[Amended 5-29-1996 by L.L. No. 4-1996]

Testing of the emergency alert system to ensure that it will function properly during an emergency situation.

Testing of any safety alert system or technology.

[Amended 5-29-1996 by L.L. No. 4-1996]

Testing and the recording of test data for all signals (audio and video) at the head end and all system extremity points.

Testing as required or allowed by federal or state law (including any applicable or required PSC testing).

[Amended 5-29-1996 by L.L. No. 4-1996]

Meeting or exceeding all operating parameters as set or allowed by the FCC and as such may be revised or amended from time to time.

§ 185-94 Construction, fire and safety codes.

An MCS provider shall construct, operate, maintain, repair, remove, replace or restore the multichannel system in strict compliance with all current technical codes adopted by the Council/franchising authority, the state (including any applicable codes of the PSC) or the United States.

[Amended 5-29-1996 by L.L. No. 4-1996]

The codes referred to specifically include, but are not limited to, construction, fire and safety and zoning codes.

§ 185-95 (Reserved)

§ 185-96 (Reserved)

§ 185-97 (Reserved)

§ 185-98 (Reserved)

§ 185-99 (Reserved)

§ 185-100 Alternative user charge.

This section is applicable to any licensed but otherwise authorized nonfranchised MCS provider and to any franchised MCS provider who has had its franchise ruled unconstitutional, unenforceable or invalid. For all franchised MCS providers the provisions concerning franchise fees shall be applicable.

[Amended 5-29-1996 by L.L. No. 4-1996]

Where not specifically prohibited by federal or state law and as an alternative to the imposition of a franchise fee as set forth in this chapter, the Council/franchising authority may impose, extract and collect a charge from an affected MCS provider for the use by such provider of the streets, rights-of-way, easements and public ways of the city.

Such an alternative user charge shall be based on the value of the public rights-of-way being used by the affected MCS provider. However, in no event shall the alternative user charge exceed five percent (5%) of the affected MCS provider's gross revenue for the reporting period.

The Council/franchising authority adopts such an alternative user charge in order to receive fair compensation for the affected MCS provider's use of the public streets and public ways if such compensation cannot be obtained by imposing a flat percentage fee on such MCS provider's annual gross revenue. However, an affected MCS provider may agree to an alternative charge that is based on a flat percentage of gross revenue, as long as that charge does not exceed five percent (5%) of an affected MCS provider's annual gross revenue.

Also, recognizing that an alternative user charge may affect a franchised MCS provider, please note that the franchise agreement may contain express language which details a different method or manner to handle a situation in which franchise fees as historically calculated (as a percentage of gross revenue) are ruled unconstitutional or unenforceable, in order to protect and preserve the city's source of revenue and compensation for the use of the public rights-of-way.

It is expressly understood that a franchise fee and an alternative user charge will not be imposed on the same MCS provider at the same time for the same period.

An affected MCS provider shall at no time be charged or obligated to pay an alternative user charge that exceeds five percent (5%) of such provider's gross revenue (as defined by this chapter) for any particular reporting period. In the event that the alternative user charge does exceed five percent (5%) of gross revenue, then such alternative user charge shall be reduced to reflect an amount not greater than the five-percent cap.

An affected MCS provider shall pay twenty-five percent (25%) of the alternative user charge at the end of every three (3) months.

§ 185-101 Franchise required; exception.

Except as provided in Subsections B, C and D of this section, no person or MCS provider shall be permitted to construct, operate or maintain a multichannel system which requires the laying or positioning or use of cable (coaxial, fiber or functional equivalent) across the rights-of-way of the city without having first obtained from the city an MCS franchise which is then in effect or whose provisions have been renewed or extended temporarily.

[Amended 5-29-1996 by L.L. No. 4-1996]

Pursuant to the Cable Act, a local government may own and operate a multichannel system classified as a "cable system." No franchise shall be required for the city, or any local or municipal authority affiliated with it, operating as an MCS provider in the franchised area.

If, as a result of annexation (either previous to or subsequent to the effective date of this chapter), a previously unfranchised MCS provider comes under the jurisdiction of the city, then such MCS provider shall not be required to obtain a franchise and enter into a franchise agreement unless the Council/franchising authority expressly gives written notification to the MCS provider that it is required to do so.

Where a person or MCS provider is required by the Council/franchising authority to obtain a franchise, then the Council/franchising authority shall notify the person or MCS provider, in writing, within thirty (30) days of the Council/franchising authority's formal action.

After receipt of notification, the affected person or MCS provider shall have ninety (90) days in which to submit an application or proposal in substantially the same form and format as required by the Council/franchising authority. Then the affected person's or MCS provider's application will be handled as set forth by either state or local law.

§ 185-102 Nonexclusive franchises.

Consistent with Section 621(a)(1) of the Cable Act (codified at 47 U.S.C. § 541), the Council/franchising authority may award one (1) or more nonexclusive multichannel service franchises within its geographical limits.

A franchised MCS provider shall be selected as part of a public proceeding and hearing which affords due process to both the city and the applicant and in accordance with the procedure set forth by the federal, state (including any applicable PSC rules and regulations) and local laws and regulations.

[Amended 5-29-1996 by L.L. No. 4-1996]

§ 185-103 Franchise agreement; requirement.

An MCS provider may not lay or use any cable (coaxial, fiber or functional equivalent) until the franchise agreement is executed by both the MCS provider and the Council/franchising authority and is then in effect.

A franchise agreement shall be in sufficient detail in order to clearly delineate the rights and duties of both the franchised MCS provider and the Council/franchising authority.

At a minimum, a franchise agreement shall contain, to the extent appropriate, provisions for the following:

[Amended 5-29-1996 by L.L. No. 4-1996]

A detailed definition of "gross revenue" which specifically includes an explanation of what constitutes the revenue base for determining what revenues are subject to any franchise fee or alternative user charge.

The term or duration of the franchise.

Indemnity and holds harmless clauses.

Insurance.

Performance and completion bonds or security deposits.

Construction, upgrade or rebuild schedule.

Compensation, including franchise fees.

Continuity of multichannel programming service.

Assignment, transfer or sale of an existing franchise.

Repeal of prior inconsistent franchise agreements.

A severability clause.

(12)

The law that governs the franchise agreement.

(13)

Any exemptions or relief from this chapter granted or any local law clarifications noted with respect to the MCS provider's operation of a franchised multichannel system.

§ 185-104 Responsibilities upon award of franchise.

Upon an award of a franchise, in accordance with the terms of such franchise agreement, an MCS provider required to obtain and maintain a franchise may construct, erect, install, maintain, operate, repair, replace, remove or restore a multichannel system within the geographical limits set forth in the franchise agreement.

The franchised multichannel system may be located in, upon, along, across, over and under the streets, rights-of-way, easements and public ways of the city.

If necessary and except to the extent that easement rights are conveyed by the grant of a municipal franchise pursuant to the provisions of federal law, the responsibility of obtaining easements for private property (including privately owned utility or streetlight poles) shall be that of a franchised MCS provider.

[Amended 5-29-1996 by L.L. No. 4-1996]

A franchised MCS provider, through a separate pole or utility easement agreement with an affected utility, may locate the multichannel system on or within the property of such utility company. This provision specifically includes MCS providers classified as "cable operators."

§ 185-105 Term of franchise.

The term of an initial MCS franchise may be for a period not to exceed ten (10) years from the date that a franchise agreement is both approved and executed by the Council/franchising authority (and, where applicable, the PSC).

[Amended 5-29-1996 by L.L. No. 4-1996]

The term of a renewal franchise may be for a period not less than five (5) years nor more than ten (10) years from the date that a franchise renewal agreement is both approved and executed by the Council/franchising authority (and, where applicable, the PSC).

[Amended 5-29-1996 by L.L. No. 4-1996]

If an initial franchise or renewal franchise is for a period of six (6) years or less, then the city shall detail the reasons for granting the shorter franchise, in the franchise agreement or elsewhere.

§ 185-106 Application for franchise.

[Amended 5-29-1996 by L.L. No. 4-1996]

The Council/franchising authority may develop rules and regulations with respect to the submission and processing of applications for a franchise. Such rules shall be consistent with and/or subordinate to any applicable rules and regulations of the state (including, where applicable, those of the PSC). Further, such rules and regulations shall primarily be aimed at determining the legal, financial, technical and character qualifications of the applicant for a franchise.

Unless prohibited by any state agency (including the PSC) and unless inconsistent with applicable federal law, an applicant shall pay an application fee which shall be no greater than the administrative and consulting costs associated with processing an application for a franchise. The total application fee must be paid, unless waived (totally or partially), regardless of whether the applicant receives or does not receive a franchise. The total application fee must be paid (or waived) prior to the Council/franchising authority's formal action on the applicant's request for a franchise.

§ 185-107 Franchise fees.

Any franchised MCS provider (specifically including any MCS provider classified as a "cable operator") awarded a franchise or renewal franchise after the date this chapter becomes effective shall pay to the city for the privilege and use of the streets, rights-of-way, easements and public ways and other facilities of the city in the operation of the multichannel system and for the city's supervision thereof during the term of the franchise a sum equal to five percent (5%) of gross revenue for the required period for payment of such franchised MCS provider, provided that such fee shall be reduced to the extent necessary to comply with applicable federal and state law and rules when added to the fees, charges and taxes paid to the PSC or other state or local entities.

[Amended 5-29-1996 by L.L. No. 4-1996]

If the FCC, Congress or other governmental entity with authority over multichannel service ever allows a governmental entity or Council/franchising authority to increase the franchise fee beyond five percent (5%), then the Council/franchising authority shall have the authority to increase the franchise fee to the maximum percentage allowable, provided that no increase in fee may be imposed upon a franchisee during the term of a franchise agreement without the consent of the franchisee, unless otherwise permitted by applicable law or regulation.

[Amended 5-29-1996 by L.L. No. 4-1996]

For franchised MCS providers classified as "cable operators," such franchised MCS providers (consistent with the Cable Act and the applicable rulings of the FCC or the PSC) may pass through to subscribers the amount of any increase in a franchise fee unless the Council/franchising authority demonstrates that the rate structure specified in the franchise agreement reflects all costs of franchise fees and so notifies the franchised MCS provider classified as a "cable operator" in writing. For franchised MCS providers not classified as "cable operators," such franchised MCS providers must petition and be granted the authority to pass through any increase in a franchise fee.

[Amended 5-29-1996 by L.L. No. 4-1996]

Franchised MCS providers shall, to the degree required by the applicable rulings of the FCC and PSC, pass through to subscribers the amount of any decrease in a franchise fee.

[Amended 5-29-1996 by L.L. No. 4-1996]

A franchised MCS provider shall file with the Council/franchising authority, within forty-five (45) days after the expiration of each of the franchised MCS provider's fiscal quarters a detailed financial and revenue statement clearly showing the franchise fee due for the preceding quarter, together with the bases of the calculations thereof. Such statement shall be certified by a certified public accountant or officer of a franchised MCS provider attesting to the accuracy, completeness and veracity of the revenue figures. Such statement shall be in a form and format adequate to show the subject revenue and fees due (subject to the reasonable review by the Council/franchising authority) and shall include revenue from any pertinent source. Revenue will be reported by service category, type and level showing computations and using incremental billing rates for all sources, levels, tiers, clusters, types of service and other revenue sources by kind and type, subject to appropriate protections of proprietary information and the confidentiality of subscriber information under federal law.

[Amended 5-29-1996 by L.L. No. 4-1996]

Payment of the quarterly portion of the franchise fee shall be rendered to the city at the time the financial and revenue statement is filed.

In the event that payment is not made by the due date or within sixty (60) days thereafter upon proper demand, then such franchised MCS provider may be declared in default of the franchise, and the franchise may be revoked, terminated or canceled in the manner prescribed by this chapter.

[Amended 5-29-1996 by L.L. No. 4-1996]

The Council/franchising authority reserves the right to audit franchised MCS provider's books if the Council/franchising authority deems it necessary, subject to appropriate protections of the confidentiality of subscriber information under federal law. If such audit discovers an underpayment of franchise fees in any amount, then the affected franchised MCS provider shall reimburse the city for the cost of such an audit (unless such cost is waived by the Council/franchising authority) in accordance with the provisions of § 185-31C of this chapter. It is specifically understood that the right of audit and recomputation of any and all amounts paid under a franchise fee shall always be accorded to the Council/franchising authority.

[Amended 5-29-1996 by L.L. No. 4-1996]

If an audit or other research discovers that franchise fees have been either significantly underpaid or not paid for a period exceeding six (6) months from the original due date, then the city may seek full recovery of the underpaid or nonpaid fees, plus reasonable interest.

[Amended 5-29-1996 by L.L. No. 4-1996]

All annual reports due and pertaining to the payment of franchise fees will be certified by an officer of the franchised MCS provider and will be provided in the form, format and detail applicable to quarterly reports under Subsection F above; such provider shall maintain records used in the preparation of said report to be produced in their originality and totality upon request or demand by the Council/franchising authority, subject to protection of the privacy of subscriber information under federal law.

[Amended 5-29-1996 by L.L. No. 4-1996]

No acceptance of any payment shall be construed as a release of or an accord or satisfaction of any claim that the city might have for further or additional sums payable under the terms of this chapter or for any other performance or obligation of a franchised MCS provider hereunder.

Payments of compensation made by a franchised MCS provider to the city pursuant to the provisions of this chapter shall be considered to the extent consistent with applicable federal and state law in addition to and exclusive of, any and all authorized taxes, business license fees, other fees, other levies or assessments presently in effect or subsequently adopted.

[Amended 5-29-1996 by L.L. No. 4-1996]

A franchise fee does not include any items excluded by Section 622(g)(2)(D) of the Cable Act [codified at 47 U.S.C. § 542(G)(2)(D)].

Nothing in this section shall be construed to limit the authority of the Council/franchising authority to impose a tax, fee or other assessment of any kind on any person (other than a franchised MCS provider) with respect to multichannel service or other programming or communications service provided by such person over a multichannel system for which charges are assessed to subscribers but not received by a franchised MCS provider. For purposes of illustration only, this subsection shall include the situation(s) where a premium service directly bills a subscriber or the franchised MCS provider acts as collection agent for a premium service billing directly to a subscriber or where a person leaves a channel for commercial use and sells advertising or goods on that channel and receives the money directly or through a third party.

For any twelve-month period, the fees paid by any person subject to Subsection N who provides any such multichannel service shall not exceed five percent (5%) of such person's gross revenue or such higher percentage as may be authorized by the FCC, Congress or other governmental entity derived in such period from the provision of such service over the multichannel system.

[Amended 5-29-1996 by L.L. No. 4-1996]

If at any time the highest court of the nation or the highest court of the state invalidates, voids or rules as unconstitutional the concept of franchise fees, then the Council/franchising authority may impose an alternative user charge on the franchised MCS provider in the manner set forth in this chapter and not inconsistent with the terms of an applicable franchise agreement or the lawful rights of the franchisee.

[Amended 5-29-1996 by L.L. No. 4-1996]

In light of Subsection P of this section and recognizing that an alternative user charge may affect a franchised MCS provider, please note that the franchise agreement may contain express language which details a different method or manner for collection of franchise fees should the way they historically have been calculated (as a percentage of gross revenue) be ruled unconstitutional or unenforceable so that the city's source of revenue and compensation for the use of the public right-of-way may be protected.

[Amended 5-29-1996 by L.L. No. 4-1996]

§ 185-108 Assignment of franchise.

There shall be no assignment of a franchised MCS provider's franchise by the affected MCS provider, without the prior express written approval by the Council/franchising authority.

[Amended 5-29-1996 by L.L. No. 4-1996]

Any assignment or transfer without such prior written consent shall constitute a default of such franchise.

In the event of such a default, the Council/franchising authority shall proceed according to the procedure set forth in this chapter and any applicable state law (including any applicable rules or regulations of the PSC).

[Amended 5-29-1996 by L.L. No. 4-1996]

At least ninety (90) days before such a proposed assignment of an MCS provider's franchise is scheduled to become effective, such franchised MCS provider shall petition, in writing, for the Council/franchising authority's written consent for such a proposed assignment.

The Council/franchising authority will not unreasonably withhold its consent to such an assignment nor disclose confidential information considered in connection with such a petition, provided that such nondisclosure complies with the state's Freedom of Information Law. However, in making such a determination, the Council/franchising authority may consider all relevant facts, including the following:

[Amended 5-29-1996 by L.L. No. 4-1996]

Experience of proposed assignee or transferee or buyer.

Qualifications of proposed assignee or transferee or buyer.

Legal integrity of proposed assignee or transferee or buyer.

Financial ability and stability of the proposed assignee before and after the proposed assignment.

If requested by the Council/franchising authority, submittals from the proposed assignee or transferee or buyer on what, if any, changes it intends to make in the operation and maintenance of the multichannel system.

The corporate connection, if any, between the franchised MCS provider and proposed assignee or transferee or buyer.

The economic viability or nonviability of the multichannel system that may result from the proposed assignment in the future, based upon certain factors, including the impact of the purchase price on the city and/or the proposed assignee or transferee or buyer.

Any claimed benefits which may accrue from the assignments.

Any other legitimate aspect of the proposed assignee's or transferee's or buyer's background which could affect the health, safety and welfare of the citizenry of the city as it relates to the operation of the multichannel system.

A copy of the completed sales agreement or a functionally equivalent instrument between the franchised MCS provider and proposed assignee or transferee or buyer shall be provided to the Council/franchising authority so that the Council/franchising authority may discover the assumption of obligations by the franchised MCS provider and proposed assignee or transferee or buyer with respect to the multichannel system. In lieu of the sales agreement, the Council/franchising authority may, at its election, accept an attested summary of obligations assumed by the above-referenced parties. The city may request additional information other than that which is expressly prohibited by law.

[Amended 5-29-1996 by L.L. No. 4-1996]

Before an assignment is approved by the Council/franchising authority, the proposed assignee shall execute an affidavit acknowledging that it has read, understood and intends to abide by both this chapter and the applicable franchise agreement.

In the event of any approved assignment, the assignee shall assume all obligations and liabilities of the former franchised MCS provider, except as noted in Subsection I. Any consent by the city, if granted, may be absolute or conditional, e.g., with respect to assumption or nonassumption of liability, including but not limited to assumption of all obligations of the franchise and all moneys owed the city.

An assignment shall not relieve the former franchised MCS provider of its financial liabilities and obligations to the city under the franchise agreement unless specifically relieved by federal or state law (including any applicable PSC rules and regulations) or unless specifically relieved by the Council/franchising authority (or, where applicable, the PSC) at the time an assignment is approved.

[Amended 5-29-1996 by L.L. No. 4-1996]

§ 185-109 Hypothecation.

Except as provided herein, an MCS provider may hypothecate its multichannel system without prior formal approval of the Council/franchising authority, provided that such hypothecation not include the conveyance of any right of transfer assignment or acquisition of the franchise without the further prior approval of the Council/franchising authority. [1]

[Amended 5-29-1996 by L.L. No. 4-1996]

Editor's Note: Former Subsection B, which immediately followed this subsection and dealt with where funds were to be expended, was repealed 5-29-1996 by L.L. No. 4-1996. This local law also renumbered former Subsection C as Subsection B.

While the Council/franchising authority will not unreasonably withhold its consent of such hypothecation, it may nonetheless withhold approval and consent in those instances where the technical or financial integrity of the multichannel system would be compromised to such an extent that the subscribers' ability to receive multichannel services would be jeopardized.

§ 185-110 Default of franchise.

When any event, act or omission (on the part of the franchised MCS provider) occurs which represents a violation of a material provision of this chapter or compromises the corporate character or legal, financial or technical integrity and/or stability of the multichannel system or the franchised MCS provider to such a degree that the interests of the customers are negatively affected, then such event, act or omission may be considered a major breach of this chapter. Under such circumstances, the Council/franchising authority shall notify the affected MCS provider in writing of the specific breach and direct such franchised MCS provider to comply with all such provisions of its franchise agreement or this chapter.

[Amended 5-29-1996 by L.L. No. 4-1996]

For illustrative purposes only, the events, acts and omissions include, but are not limited to, bankruptcy, insolvency, failure to pay taxes or franchise fees (including the alternative user charge if applicable), failure to receive written Council/franchising authority approval for an assignment or failure to abide by the material terms and conditions of the franchise agreement or material provisions of this chapter such as cooperating with the city in the conduct of a periodic ascertainment of the adequacy of the MCS provider's record of reasonably meeting identified community needs, including those involving matters of customer service and consumer protection needs as expressed by subscribers. For purposes of this section, "material" means a provision which either:

[Amended 5-29-1996 by L.L. No. 4-1996]

Affects the ability of the customer to receive multichannel service;

Affects the ability of the Council/franchising authority to receive compensation for the use of its right-of-ways; or

Affects the ability of the Council/franchising authority to evaluate an MCS provider's performance in the technical, financial and legal aspects of the multichannel system.

Where a franchised MCS provider satisfactorily corrects any of the enumerated conditions within sixty (60) days, then in no event shall the enumerated condition be weighed against such franchised MCS provider in any subsequent review of franchise performance.

A copy of such notice of material breach shall be mailed to the surety on the performance bond unless otherwise directed by state law (including any applicable rule or regulation of the PSC).

[Amended 5-29-1996 by L.L. No. 4-1996]

Within seventy-five (75) days after such written notice is mailed to a franchised MCS provider, the Council/franchising authority shall conduct a public hearing on the matter unless state law or PSC rule or regulation requires a different procedure in which the state or PSC rule or regulation procedure would control or unless the alleged breach has been corrected to the city's satisfaction.

[Amended 5-29-1996 by L.L. No. 4-1996]

The Council/franchising authority shall provide written notice to a franchised MCS provider and to the surety of the time and place of said public hearing in a manner consistent with either state law or approved by the Council/franchising authority (including, where necessary, the PSC).

[Amended 5-29-1996 by L.L. No. 4-1996]

At the time of the hearing, the affected franchised MCS provider may present information on the current status of the alleged breach of the franchise agreement. If the situation has been resolved or steps are being taken to resolve the situation, then the franchised MCS provider should present the information at the hearing.

If the affected franchised MCS provider fails to attend the hearing and has not requested a continuance of the hearing, then such franchised MCS provider shall be deemed to have waived its right to a further continuation of the matter and may be declared in default of the franchise agreement unless the alleged breach has been corrected to the city's satisfaction.

After the public hearing, the Council/franchising authority may determine the franchised MCS provider to be in compliance and dismiss the matter or may determine that the MCS provider has cured any noncompliance and thereby dismiss the matter. However, the Council/franchising authority may determine that a chapter violation exists and remains uncured. Consequently, upon a finding that the MCS provider violated an integral chapter provision or failed to cure an outstanding chapter violation, the Council/franchising authority may direct the affected franchised MCS provider to take corrective action within a specified period of time or may declare such franchised MCS provider in default of the franchise agreement and thereafter may revoke, terminate or cancel the franchise, unless the franchised MCS provider presents sufficient mitigating circumstances.

If the Council/franchising authority directs corrective action to take place within a specified time or declares such franchised MCS provider in default of the franchise agreement, then that declaration shall be reduced to writing, and the notice of corrective action or default shall be mailed to such franchised MCS provider and surety within twenty-one (21) days of the Council/franchising authority's action.

If within sixty (60) days the affected franchised MCS provider or surety does not take significant action to rectify the breach or submit a plan detailing how the affected MCS provider will eliminate the breach, then the Council/franchising authority shall revoke such MCS provider's franchise and shall notify the affected franchised MCS provider and surety forthwith, unless there are mitigating circumstances.

The Council/franchising authority reserves the right to assess any charges incurred (including costs for consultants, witnesses and hearing preparation) in a default and/or revocation proceeding to the franchised MCS provider.

§ 185-111 Performance evaluations.

The Council/franchising authority is authorized to design a performance evaluation procedure which periodically monitors compliance of the franchised MCS provider with the terms and conditions of both the franchise and this chapter. Moreover, the Council/franchising authority may periodically review and examine whether a franchised MCS provider's financial, technical, legal and character qualifications and its record of meeting community and subscriber needs as particularly relate to matters of customer service practices and consumer protection issues continue to meet required operational, maintenance and performance levels in order to ensure the uninterrupted and acceptable provision of multichannel services. Such performance evaluations may be conducted every three (3) years during the franchise term and may be done as part of any annual independent survey which may be required or conducted by the Council/franchising authority.

§ 185-112 (Reserved)

§ 185-113 (Reserved)

§ 185-114 (Reserved)

§ 185-115 (Reserved)

§ 185-116 Cable operators or SMATV operators.

In addition to any requirements contained within this chapter, all MCS providers that are classified as cable operators shall be expected to abide by and comply with all applicable provisions of the Cable Act, as amended.

[Amended 5-29-1996 by L.L. No. 4-1996]

The specific provisions of the Cable Act include, but are not limited to, the following:

Cable channels for public, educational or governmental use (Section 611 of the Cable Act, codified at 47 U.S.C. § 531).

Cable channels for commercial use (Section 612, 47 U.S.C. § 532).

General franchise requirements (Section 621, 47 U.S.C. § 541).

Franchise fees (Section 622, 47 U.S.C. § 542).

Regulation of rates (Section 623, 47 U.S.C. § 543).[1]

Editor's Note: Former Subsection B(5), which immediately followed this subsection and dealt with Section 624, 47 U.S.C. § 544, was repealed 5-29-1996 by L.L. No. 4-1996. This local law also renumbered former Subsections B(7) through B(11) as B(6) through B(10), respectively.

Modification of franchise obligations (Section 625, 47 U.S.C. § 545).

Franchise renewal (Section 626, 47 U.S.C. § 546).

Conditions of sale of a franchise (Section 627, 47 U.S.C. § 547).

Subscriber privacy (Section 631, 47 U.S.C. § 551).

Equal employment opportunity (Section 634, 47 U.S.C. § 554).

All applicable safety and electrical codes.

[Added 5-29-1996 by L.L. No. 4-1996]

Further, as an additional requirement, before the third anniversary of the effective date of this chapter, any MCS provider classified as a "cable operator" and providing cable service within the city shall design and activate a multichannel system with a minimum capability of providing seventy-seven (77) full-time video programming services.

Further, the Council/franchising authority is committed that the goal of the Cable Act, as set forth in Section 601(4) of the Act [codified at 47 USC § 521 (4)], is met at all times. As a result, the Council/franchising authority expressly requires that upon the advent, implementation and transmission of high definition television (HDTV), its functional equivalent or any subsequently developed technological advancement affecting channel capacity or needed bandwidth for any video programming source or service, the MCS provider classified as a "cable operator" shall not lessen, dilute or decrease the mix, level, quality or quantity of programming services carried on the multichannel system for reasons of lack of adequate channel capacity, except to the extent permitted pursuant to the applicable provisions of federal law.

[Amended 5-29-1996 by L.L. No. 4-1996]

Notwithstanding the above subsections of this section and where specifically included or referenced in the Cable Act or by FCC interpretation of the Cable Act, all MCS providers classified as "SMATV operators" shall be expected to abide by and comply with such included or referenced sections of the Cable Act, as amended.

§ 185-117 Public, educational and governmental use.

The Council/franchising authority recognizes that under Section 611 of the Cable Act (codified at 47 U.S.C. § 531) the Council/franchising authority has certain power with respect to certain aspects for public, educational or governmental (PEG) use that is provided by MCS providers classified as "cable operators."

To the extent permitted by law and in order to fulfill the Council/franchising authority's desired goal of a public, educational and governmental (PEG) access policy that will facilitate the long-range needs of the city, the Council/franchising authority adopts the following:

At the time of an initial or renewal application for an MCS franchise for a cable system, an MCS provider classified as a "cable operator" shall pledge to include the following guaranties:

(a)

An MCS provider classified as a "cable operator" shall provide, at its own expense, a dedicated public access channel.

(b)

An MCS provider classified as a "cable operator" shall provide, at its own expense, a dedicated educational access channel.

(c)

An MCS provider classified as a "cable operator" shall provide, at its own expense, a dedicated governmental channel.

Both the Council/franchising authority and the affected franchisee shall review use after every twenty-four (24) months, including the percentage of use of every PEG channel. At the end of each twenty-four-month period, the Council/franchising authority or its designee shall evaluate the response and actual use of such channels. If, after any twenty-four-month period, the percentage of use for any required PEG channel drops below twenty-five percent (25%) of the total time allocated, then the required number of hours may be reduced to a number that most closely approximates the average hours of use per day.

[Amended 5-29-1996 by L.L. No. 4-1996]

If a separate channel is not dedicated for either government or educational use at any time and thereafter seventy-five percent (75%) of the total time allocated for any combined required government/educational channel is consistently used five (5) days a week for a period of three (3) months, then the franchisee shall provide an additional PEG channel.

[Amended 5-29-1996 by L.L. No. 4-1996]

The franchisee may be required, pursuant to the provisions of the negotiated franchise agreement which is in effect, to provide mobile, portable and stationary equipment dedicated for PEG access, together with the aid of technical and production assistance provided by the franchisee. The provisions of such a franchise agreement, to the extent consistent with applicable federal law, may also provide that a franchisee shall provide equipment that can store programs for delayed cablecasting, that there will be no cost for technical production assistance for city PEG access users and that the cost of maintenance of such PEG access studio and equipment required to run the studio and other PEG access facilities shall be borne by the franchisee.

[Amended 5-29-1996 by L.L. No. 4-1996]

The franchisee shall be permitted to use such PEG access channel capacity required by this chapter for the provision of other services if such channel capacity has not been used for the purposes designated for a period of ninety (90) days and if the Council/franchising authority agrees in advance. Such agreement may not be unreasonably withheld. However, such use by the franchisee shall cease if required to accommodate the designated PEG program uses, subject to reasonable arrangements to avoid untimely disruption of current program services and to allow reasonable notice to subscribers.

[Added 5-29-1996 by L.L. No. 4-1996]

§ 185-118 (Reserved) [1]