[HISTORY: Adopted by the Council of the City
of Rye 9-8-1993 as L.L. No. 9-1993. Amendments noted where applicable.]
[Amended 5-29-1996 by L.L. No. 4-1996]
This chapter shall be construed in accordance
with the applicable federal and state laws governing multichannel
service practices, which specifically includes the operation and provision
of a cable television system. Moreover, with respect to the operation
and provision of a cable television system, this chapter shall be
construed in accordance with any applicable rules and regulations
of the PSC.
This chapter shall apply within the geographical
limits of the City, including any areas subsequently annexed by the
City, unless state law prescribes otherwise or in some fashion restricts
or alters the effect of this chapter to a subsequently annexed area
of the City.
[Amended 5-29-1996 by L.L. No. 4-1996]
If any word, phrase, sentence, part, section,
subsection or other portion of this chapter or any application thereof
to any person or circumstance is declared void, unconstitutional or
invalid for any reason, then such word, phrase, sentence, part, section,
subsection, or other portion, or the proscribed application thereof,
shall be severable, and the remaining provisions of this chapter,
and all applications thereof, not having been declared void, unconstitutional
or invalid shall remain in full force and effect.
As used in this chapter, the following terms
shall have the meanings indicated:
[Repealed 5-29-1996 by L.L. No. 4-1996]
[Repealed 5-29-1996 by L.L. No. 4-1996]
A government, education or public channel which is carried
on a multichannel system but which is not part of any institutional
network.
A channel engineered at the head end of the multichannel
system for the provision of services generally available to residential
subscribers of the multichannel system, regardless of whether such
services actually are provided, including any channel designated for
governmental, educational or public use.
Used in relation to any person, another person who owns or
controls, is owned or controlled by or is under common ownership or
control with such person.
A charge used in place of a traditional franchise fee that
the Council requires as payment for the privilege of using the streets,
easements, public ways, or rights-of-way of the City in order to construct,
maintain and/or operate a multichannel system. An alternative user
fee is not based on an MCS provider's gross annual revenues (as is
the case in a franchise fee), but rather is based, to the extent permitted
by applicable law on the value of the City property that an MCS provider
uses to construct, maintain, and operate its multichannel system.
[Amended 5-29-1996 by L.L. No. 4-1996]
A person submitting an application or proposal to the City
for a license or franchise (where required) to operate a multichannel
system under the terms and conditions set forth in this chapter, and
any state regulations (including, where applicable, those of the PSC).
The process by which the applicant submits a request and
indicates a desire to be granted a license or franchise (where required)
for all or a part of the City. An "application" or "proposal" includes
all written documentation and verbal statements and representations,
in whatever form or forum, made by an applicant to the Council/franchising
authority concerning the construction, rendering of services, maintenance
or any other matter pertaining to the proposed multichannel system.
Any transfer of a franchise to a party other than a majority
owned affiliate, whether by sale, assignment, lease or other form
of alienation other than a hypothecation made to secure indebtedness.
[Amended 5-29-1996 by L.L. No. 4-1996]
Equipment supplied by the MCS provider (such as a converter,
remote control unit or device, digital tuner or input selector switch)
to enhance or assist in the reception or provision of multichannel
service.
Any service tier which includes the retransmission of local
television broadcast signals and any public, educational and government
access channels. In the event that the definition of "basic cable
television service" is amended by either Congress or the FCC, then
this chapter's definition of "basic cable television service" shall
be likewise amended to conform thereto and be consistent therewith.
The Cable Communications Policy Act of 1984, as amended by
the Cable Television Consumer Protection and Competition Act of 1992,
and as amended by the Telecommunications Act of 1996, which in large
part is codified at 47 USC § 521 et seq.
[Amended 5-29-1996 by L.L. No. 4-1996]
A portion of the electromagnetic or light frequency spectrum
used in a cable system which is capable of delivering a television
channel (as "television channel" is defined by the FCC regulation).
Any person or group of persons who or which:
[Amended 5-29-1996 by L.L. No. 4-1996]
[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:
A facility that serves only to retransmit the
television signals of one or more broadcast stations;
A facility that serves subscribers without using
any public rights-of-way;
A facility of a common carrier which is subject,
in whole or in part, to the provisions of Title II of the Communications
Act of 1934, except that such facility shall be considered a cable
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 programming or service directly
to subscribers, unless the extent of such use is solely to provide
interactive on-demand services;
An open video system that complies with Section
653 of the Cable Act, to be codified at § 47 USC; or
Any facilities of any electric utility used
solely for operating its electric utility systems.
The Multichannel Service Providers Regulatory Local Law for
the City of Rye, New York.
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.
The City of Rye, New York.
The City Manager of the City of Rye, New York, or his or
her duly authorized designee.
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.
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.
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.
The City Council of the City of Rye, New York.
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]
A device which enables a subscriber to convert a scrambled
signal into a viewable or otherwise usable signal.
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.
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.
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.
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]
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]
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.
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.
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.
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]
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]
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.
The City Council of the City of Rye, New York.
With respect to a specifically named piece of multichannel
system equipment, another piece of multichannel system equipment that
either:
Has the same or substantially similar characteristics,
qualities, operational capabilities and design functions as the original
specifically named piece of multichannel system equipment;
Operates in substantially the same form and
fashion as the original specifically named piece of multichannel equipment;
or
Operates in a technologically superior manner
to the original specifically named piece of multichannel equipment.
[Amended 5-29-1996 by L.L. No. 4-1996]
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.
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.
The days of the year that fall on New Year's Day, Martin
Luther King Jr. Day, Presidents' Day, Memorial Day, Juneteenth,
Independence Day, Labor Day, Columbus Day, Election Day, Veterans'
Day, Thanksgiving Day, and Christmas Day.
[Amended 6-14-2023 by L.L. No. 9-2023]
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]
Intended to perform the same function as an a/b switch.
A charge which is added to a customer's account or bill for
nonpayment of a previously due and delinquent account.
The Mayor for the City of Rye, New York, or the Mayor's authorized
designee.
Multichannel service.
[Amended 5-29-1996 by L.L. No. 4-1996]
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
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."
Multipoint distribution system.
Any person or group of persons authorized by the FCC to transmit
specialized multichannel programming to subscriber-selected locations.
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.
The same as "MCS provider."
[Amended 5-29-1996 by L.L. No. 4-1996]
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 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
Any facilities of any electric utility used
solely for operating its electric utility.
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]
[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]
Information that an MCS provider (specifically including
a cable operator) makes available to all subscribers generally.
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.
Public, educational and governmental.
Any individual, corporation, estate, trust, partnership,
association of two or more persons having a joint common interest,
joint-stock company or governmental entity.
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]
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]
The periodic price paid by a subscriber for the receipt of
any multichannel service provided for by an MCS provider.
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.
The grouping, aligning or packaging of one 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.
For purposes of credit, the loss of picture or sound on all
basic subscriber channels or one 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.
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.
Satellite Master Antenna Television.
Any person or group of persons who or which:
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]
The State of New York.
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.
A person lawfully receiving multichannel service delivered
by an MCS provider.
United States Code.
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.
Programming provided by, or generally considered comparable
to programming provided by, a television broadcast station.
A.Â
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.
B.Â
As expressed by Congress and adopted by the Council,
its intent is as follows:
(1)Â
To establish a local policy concerning communications
and technologies.
(2)Â
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.
(3)Â
To establish guidelines for the exercise of local
authority with respect to the regulation of cable systems.
(4)Â
To assure that cable communications provide, and are
encouraged to provide, the widest diversity of information and services
to the public.
(5)Â
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]
(6)Â
To promote competition in cable communications and
minimize unnecessary regulation that would impose an undue economic
burden on cable systems.
C.Â
In addition to the principles and ideals listed in Subsection B, the Council also expresses that its intent covers the following:
(1)Â
To create a set of regulations, standards and procedures
for MCS providers.
(2)Â
To create a comprehensive customer service and consumer
protection policy for MCS providers.
(3)Â
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).
(4)Â
To create a thorough construction and installation
policy for an MCS provider's system.
(5)Â
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.
(6)Â
To provide for the periodic inspection of an MCS provider's
facilities and equipment by the City or its designated agents.
(7)Â
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.
(8)Â
To provide for the introduction and installation of
safety alert technology in order to notify both subscribers and nonsubscribers
of imminent disaster emergencies.
(9)Â
To create a thorough procedure for collecting and
monitoring franchise fees and alternative user charges.
(10)Â
To create a viable alternative to franchise fees in
case such fees, or their collection, are ruled invalid, unenforceable
or unconstitutional.
(11)Â
To create a thorough default and revocation procedure
for licensed and franchised MCS providers.
(12)Â
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)Â
To create a performance review procedure in order
to assist the City in its periodic evaluation of a franchised MCS
provider's performance.
D.Â
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.
E.Â
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]
F.Â
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]
A.Â
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]
B.Â
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]
C.Â
However, the Council/franchising authority may never
delegate its franchising or revocation power to another person or
representative.
A.Â
Unless exempted entirely from this chapter or exempted
under one 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 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 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]
B.Â
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.
C.Â
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:
(1)Â
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
(2)Â
Both parties agree to a specific date for expiration
of said existing franchise, which in fact is prior to the present
expiration date.
A.Â
MCS providers which are exempted from complying with
the provisions of this chapter are as follows:
B.Â
It is expressly understood that an exempted MCS provider
remains exempted only as long as it meets one or more of the specifications
of this particular section.
C.Â
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]
A.Â
Any MCS provider affected by this chapter may file
a written petition at any time with the Council/franchising authority
seeking relief from one 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 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.
B.Â
In order to receive any relief from one or more of
the provisions of this chapter, an MCS provider must satisfactorily
demonstrate to the Council/franchising authority that at least one
of the following facts exists:
(1)Â
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]
(2)Â
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)].
(3)Â
That compliance with a particular provision and/or
requirement will be commercially impracticable for an MCS provider.
(4)Â
That one 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.
(5)Â
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.
(6)Â
That the health, safety and welfare interests of the
City otherwise warrant the granting of such relief.
C.Â
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.
D.Â
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 or more provisions or sections of this
chapter have on the petitioning MCS provider.
E.Â
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]
F.Â
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]
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 or more occasions to seek or insist upon compliance
with such requirements or provisions.
A.Â
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]
B.Â
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]
C.Â
Any MCS provider, its assignee or transferee shall
be subject to all lawful exercise of the City's police power.
D.Â
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.
A.Â
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.
A.Â
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]
B.Â
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.
[Amended 5-29-1996 by L.L. No. 4-1996]
A.Â
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.
B.Â
In the case where a franchised MCS provider receives
an exemption, relief, clarification from one or more provisions or
section of this chapter or has one 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.
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.
[Amended 5-29-1996 by L.L. No. 4-1996]
A.Â
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 $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.
B.Â
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.
C.Â
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.
[Amended 5-29-1996 by L.L. No. 4-1996]
A.Â
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:
(1)Â
The regulation and control of any multichannel system
within the geographical limits of City.
(2)Â
The award and grant of an MCS franchise (where required)
subsequent to review of an application or proposal by the Council/franchising
authority.
(3)Â
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.
(4)Â
If mutually agreed to with a franchised MCS provider,
the periodic review and/or amendment of any existing franchise agreement.
B.Â
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."
C.Â
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.
D.Â
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.
A.Â
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]
B.Â
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.
A.Â
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]
B.Â
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]
[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.
C.Â
Neither the City, the City Manager nor the Council/franchising
authority shall unreasonably withhold its approval of counsel.
D.Â
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.
E.Â
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.
[Amended 5-29-1996 by L.L. No. 4-1996]
A.Â
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:
B.Â
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.
C.Â
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.
D.Â
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 30 days'
written notice in advance of the cancellation of the insurance.
E.Â
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.
F.Â
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.
G.Â
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.
A.Â
An MCS provider shall furnish to the Council/franchising
authority, in an amount totaling at least $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.
B.Â
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 $100,000 in value.
The amount of the bond shall equal $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]
C.Â
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]
D.Â
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 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]
E.Â
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 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]
F.Â
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]
A.Â
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.
B.Â
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.
C.Â
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.
A.Â
Within 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]
B.Â
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:
(1)Â
A periodic gross revenue statement in the manner set
forth in this chapter.
(2)Â
A periodic certification that answering of phones
is meeting the specifications listed in this chapter.
(3)Â
The satisfactory resolution of problems and complaints
in the manner set forth in this chapter.
(4)Â
Preventive maintenance reports in the manner set forth
in this chapter.
(5)Â
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.
(6)Â
If required, an annual registration and compliance
statement.
A.Â
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]
B.Â
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
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]
C.Â
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 $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]
D.Â
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.
E.Â
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 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 or more
classes of MCS providers.
[Amended 5-29-1996 by L.L. No. 4-1996]
A.Â
Within 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]
B.Â
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]
C.Â
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]
D.Â
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]
E.Â
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.
[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).
A.Â
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.
B.Â
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.
C.Â
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]
D.Â
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 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 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 30 days prior to effective
date.
[Amended 5-29-1996 by L.L. No. 4-1996]
E.Â
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]
A.Â
At the time an MCS provider is required to furnish
an initial or annual notice, such notice shall contain, at a minimum,
the following:
(1)Â
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]
(2)Â
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]
[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.
(3)Â
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]
(4)Â
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.
(5)Â
A comprehensive listing and explanation of all billing
options available (such as monthly, quarterly or yearly and/or discounts
for prepayments).
(6)Â
The customer service office hours and telephone number(s)
in a manner consistent with the specific policy set forth in this
chapter.
(7)Â
The billing practices of an MCS provider in a manner
consistent with the specific policy set forth in this chapter.
(8)Â
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.
(9)Â
The method of securing a voluntary disconnection in
a manner consistent with the specific policy set forth in this chapter.
(10)Â
Rules relating to both connections and involuntary
disconnections.
(11)Â
The extent of the credit/refund policy in a
manner consistent with the specific policy set forth in this chapter.
(12)Â
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)Â
The additional rights of blind, hearing-impaired
or ambulatory-impaired customers in a manner consistent with the specific
policy set forth in this chapter.
B.Â
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]
C.Â
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.
D.Â
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, 24 hours
a day, for 30 consecutive days.
[Amended 5-29-1996 by L.L. No. 4-1996]
A.Â
Within the notice that is required by this chapter,
subscribers shall be informed of at least the following billing practices
of an MCS provider:
(1)Â
Billing procedures (including payments necessary to
avoid discontinuance of service).
(2)Â
Payment due and delinquent dates.
(3)Â
Amount or percentage of late charges, if any.
(4)Â
Advance billing options.
(5)Â
Resolution procedures for billing disputes, complaints
and inquiries.
(6)Â
Refund/credit policy for service interruptions or
uncontracted service.
(7)Â
Current service rates in a detailed and understandable
format.
(8)Â
Procedure and amount of charges for installation or
relocation of an MCS provider's facilities and/or equipment.
(9)Â
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.
(10)Â
Any lower-income or fixed-income rates, together
with any qualifications to obtain such rates.
B.Â
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]]
[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.
C.Â
Existing subscribers shall be informed of the items listed in Subsection A of this section at least once every 12 months.
[Amended 5-29-1996 by L.L. No. 4-1996]
D.Â
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 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 30 days prior to the effective
date of such change.
[Amended 5-29-1996 by L.L. No. 4-1996]
E.Â
Pursuant to PSC regulations, in any case where a subscriber
requests a cancellation or reduction of service within 30 days after
the notification of a scheduled rate or charge adjustment, then the
subscriber's liability for such service received during the 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]
[Amended 5-29-1996 by L.L. No. 4-1996]
A.Â
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.
B.Â
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 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 1/4 of the scheduled or projected length of the pay-per-view event, or four 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 full day of such pay-per-view event programming for an outage that does not exceed 24 hours.
C.Â
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.
D.Â
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.
A.Â
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.
B.Â
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]
C.Â
For purposes of this section, a subscriber shall be
deemed to have affirmatively requested a multichannel service if:
(1)Â
The subscriber voluntarily makes payment for the multichannel
service after an initial free trial period.
(2)Â
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.
D.Â
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]
E.Â
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.
F.Â
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.
G.Â
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]
A.Â
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.
B.Â
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]
(1)Â
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.
(2)Â
Notification of what constitutes or what is required
for selection or subscription to a particular program/service.
(3)Â
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.
(4)Â
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.
C.Â
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]
[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.
D.Â
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.
A.Â
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]
B.Â
The customer service office shall be open at least
40 hours per week (exclusive of holidays).
C.Â
Within the 40 hours per week that a customer service
office must be open, an MCS provider must provide office hours either
on at least two 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]
D.Â
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.
E.Â
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.
F.Â
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.
G.Â
Where not prohibited by the state (including PSC rules
and regulations), an MCS provider may install an interactive customer
assistance service over one or more multichannels which can handle
various types of customer inquiries.
[Amended 5-29-1996 by L.L. No. 4-1996]
H.Â
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]
I.Â
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]
J.Â
An MCS provider shall maintain at least one toll-free
and/or local telephone number to accommodate normal business inquiries.
K.Â
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 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 60 calls per hour.
[Amended 5-29-1996 by L.L. No. 4-1996]
L.Â
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 90% of the time as measured
on a quarterly basis under normal operating conditions:
[Amended 5-29-1996 by L.L. No. 4-1996]
(1)Â
Ninety-five percent of all customer calls received
in a year shall be attended within three minutes by a representative
of the MCS provider or by a device that is capable of complaint/inquiry
resolution.
(2)Â
All customer calls shall be answered properly within
30 seconds. The rate of abandoned calls shall be less than 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 45
seconds of making the call.
M.Â
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]
[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:
A.Â
Provide wheelchair accessibility to an MCS provider's
customer service office.
B.Â
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.
C.Â
Where applicable, provide modified or special instructions
for use of equipment by individuals who have physical impairments.
A.Â
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]
B.Â
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.
C.Â
Subsection A of this section, however, does not prohibit an MCS provider from:
(1)Â
Offering a promotional or incentive discount rate
or charge as long as the rate or charge does not exceed 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 12
months of basic service are paid in one payment or within a certain
time frame or similar types of prepayment discounts (as long as such
is not prohibited by the NYSCCT).
(2)Â
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).
(3)Â
Denying service to a subscriber who is more than 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.
(4)Â
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]
(5)Â
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.
A.Â
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]
B.Â
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.
C.Â
An MCS provider is not required to seek a security
deposit from a customer for use or rental of the MCS provider's equipment.
D.Â
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]
E.Â
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]
F.Â
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]
[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.
G.Â
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]
H.Â
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.
I.Â
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.
J.Â
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.
A.Â
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]
B.Â
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.
C.Â
At a minimum, the service inquiry logs should contain
the following:
(1)Â
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]
(2)Â
The nature of the service request, inquiry or complaint.
(3)Â
The precise action taken by an MCS provider in order
to resolve the service inquiry, request or complaint.
(4)Â
Whether the service request, inquiry or complaint
was resolved by allowing a credit or refund of some sort.
(5)Â
The area, location or quadrant of the City where the
service request, inquiry or request was generated.
D.Â
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]
E.Â
This section does not require MCS providers to maintain
service inquiry logs on scheduled installations.
A.Â
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]
B.Â
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]
C.Â
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]
(1)Â
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;
(2)Â
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;
(3)Â
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
(4)Â
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.
D.Â
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.
E.Â
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).
[Amended 5-29-1996 by L.L. No. 4-1996]
A.Â
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 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 24 hours of the original scheduled service call unless otherwise mutually agreed upon.
B.Â
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 24 hours from the time the MCS provider first received
notification of the signal or service interruption.
C.Â
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 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.
D.Â
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 24 hours or one working day from the time
the MCS provider first received notification of the defective, improperly
operating or nonoperating piece of equipment.
E.Â
In no case shall a subscriber's service request or
inquiry relating to an area service outage (three or more related
calls from the same area) go unresponded or unattended to for more
than 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 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 24 hours unless prevented by circumstances
beyond the service provider's control, and appropriate collective
action or adjustment shall be implemented within one week from the
time the MCS provider first received notification.
F.Â
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.
A.Â
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]
B.Â
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.
C.Â
Except in times of natural or man-made emergency or
strike by the employees of the MCS provider (whose duration has been
less than 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]
D.Â
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]
E.Â
Notwithstanding the other requirements and provisions
contained in this section, an MCS provider shall maintain at least
one service technician on call 24 hours per day.
A.Â
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 days (excluding holidays) of a customer
requesting such. This standard shall be met no less than 95% of the
time as measured on the basis of a calendar quarter.
[Amended 5-29-1996 by L.L. No. 4-1996]
B.Â
The provisions of Subsection A of this section shall not apply to pay-per-view or menu-driven connections.
C.Â
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.
D.Â
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.
E.Â
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]
F.Â
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]
G.Â
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]
A.Â
As regards subjecting a subscriber to involuntary
disconnection, a subscriber shall not be considered delinquent in
payment until at least 45 days after the posting of the bill to the
subscriber.
[Amended 5-29-1996 by L.L. No. 4-1996]
B.Â
Before disconnection of a subscriber's multichannel
service (either physically or electronically) takes place, the following
must occur:
(1)Â
The subscriber must in fact be delinquent in payment
of multichannel service; and
(2)Â
At least five days have elapsed after a separate written
notice of impending disconnection has been personally served upon
the subscriber; or
(3)Â
At least eight days have elapsed after mailing a separate
written notice of impending disconnection to the subscriber; or
(4)Â
At least five days have elapsed after the subscriber
has either signed for, or refused to accept, a separate written notice
of impending disconnection.
C.Â
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.
D.Â
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]
E.Â
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.
F.Â
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.
G.Â
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]
H.Â
Any refund due to a subscriber after such a disconnection
shall be made within 60 days of the disconnection for nonpayment unless
the subscriber has changed addresses without notifying the MCS provider.
A.Â
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.
B.Â
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.
C.Â
From the date that such a subscriber makes such a
request for either a disconnection or downgrade, then the MCS provider
shall have 72 hours or three 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
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.
D.Â
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.
E.Â
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.
F.Â
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]
G.Â
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 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]
H.Â
Any refund due a subscriber after voluntary disconnection
and/or downgrade shall be made within 60 days after such disconnection
unless the subscriber has changed addresses without notifying the
MCS provider.
I.Â
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.
J.Â
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]
[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.
[Amended 5-29-1996 by L.L. No. 4-1996]
A.Â
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).
B.Â
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).
A.Â
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.
B.Â
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]
C.Â
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]
(1)Â
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 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 week.
(2)Â
Every reasonable attempt will be made to resolve the
complaint/inquiry relating to service problems within 24 hours after
receipt of the complaint/inquiry.
(3)Â
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.
(4)Â
Informing subscribers of the credit/refund policy
which is consistent with this chapter and any applicable state regulations
(including those of the PSC).
(5)Â
Informing subscribers of the billing disputes policy
which is consistent with this chapter and any applicable state regulations
(including those of the PSC).
A.Â
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.
B.Â
In addition to the principles and ideals enumerated in Subsection A, the Council/franchising authority also expresses that its policy covers the following:
(1)Â
To provide for continuity of multichannel service
in the event of acquisition by the City.
(2)Â
To provide for continuity of service in the event
of a proposed abandonment, withdrawal or cessation of multichannel
service by an MCS provider.
(3)Â
To provide for continuity of service in the event
of revocation, termination or nonrenewal of a franchised MCS provider's
franchise.
(4)Â
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.
(5)Â
To provide for continuity of service in the event
of an expiration of a franchise.
(6)Â
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.
(7)Â
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.
C.Â
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 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]
D.Â
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 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]
E.Â
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.
F.Â
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.
G.Â
In the event that the threat of loss of continuity
is not resolved within 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).
H.Â
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]
A.Â
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.
B.Â
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.
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:
A.Â
Construct, install, maintain and repair the multichannel
system in accordance with the requirements noted in this chapter.
B.Â
Use streets and public ways as set forth in this chapter.
C.Â
Where applicable, remove franchise property from public
streets, as set forth in this chapter.
D.Â
Adopt the construction standards, as set forth in
this chapter.
E.Â
Adopt the system expansion standards, as set forth
in this chapter.
F.Â
Adopt the construction schedule as referred to in
this chapter.
G.Â
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.
H.Â
Maintain all permits and licenses, as noted in this
chapter.
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.
A.Â
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]
B.Â
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.
C.Â
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.
D.Â
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:
(1)Â
Traffic conditions.
(2)Â
Public safety.
(3)Â
A street closing.
(4)Â
Street construction or resurfacing.
(5)Â
A change or establishment of street grade.
(6)Â
Installation of sewers, drains, water pipes, storm
drains, lift stations, force mains, power or signal lines and any
traffic control system.
(7)Â
Any improvement, construction or repair related to
the City's or its residents' health, safety or welfare.
E.Â
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]
F.Â
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 21 days' notice of a contemplated move
to arrange for temporary wire changes.
G.Â
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]
A.Â
This section is applicable to any MCS provider required
to maintain a franchise to operate within the City.
B.Â
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]
(1)Â
A franchised MCS provider ceases to operate all or
part of the multichannel system for a continuous period of six months;
(2)Â
A franchised MCS provider ceases and fails to construct
the multichannel system outlined in the application or proposal for
renewal or renewal franchise agreement;
(3)Â
The Council/franchising authority elects not to renew
the franchise pursuant to the provisions set forth in this chapter;
or
(4)Â
The franchised MCS provider's franchise is revoked
pursuant to the provisions set forth in this chapter.
C.Â
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 270 days or substantial progress towards removal is not made
within 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]
D.Â
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 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.
E.Â
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]
A.Â
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.
B.Â
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]
C.Â
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]
D.Â
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.
E.Â
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]
F.Â
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]
A.Â
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]
B.Â
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.
C.Â
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]
A.Â
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.
B.Â
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.
C.Â
A franchised MCS provider shall submit, within six 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 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]
D.Â
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 1/2 mile
from the nearest franchised MCS provider connection.
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.
[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.
[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.
[Amended 5-29-1996 by L.L. No. 4-1996]
A.Â
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.
B.Â
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.
A.Â
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.
B.Â
Consequently, the Council/franchising authority requires
any MCS provider to adopt the following safety requirements:
(1)Â
Emergency alert override activation in the manner
set forth in this chapter.
(3)Â
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).
(4)Â
Complying with and abide by any construction, safety
or fire codes, as noted in this chapter.
A.Â
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.
B.Â
In addition to any other requirements listed in this
section, an MCS provider shall:
(1)Â
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).
(2)Â
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]
(3)Â
Test the emergency override system regularly, and
remedy any problems on operational deficiencies immediately.
[Amended 5-29-1996 by L.L. No. 4-1996]
(4)Â
Cooperate with the City on the use and operation of
the emergency alert override system.
(5)Â
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.
C.Â
As one 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.
[1]
Editor's Note: Former § 185-92,
Safety alert technology, was repealed 5-29-1996 by L.L. No. 4-1996.
A.Â
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.
B.Â
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]
C.Â
Within 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]
(1)Â
Inspection and repair, if needed, of the head end.
(2)Â
Inspection and repair, if needed, of the antenna tower.[1]
[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.
(3)Â
The conducting of signal leakage tests that are in
accord with FCC requirements.
(4)Â
Removal of tree roots, limbs and branches that interfere
with or come in contact with the MCS provider's cable.
(5)Â
The periodic servicing, testing and calibration of
the MCS provider's equipment, including service vehicles and field
test equipment.
(6)Â
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]
(7)Â
Testing of the emergency alert system to ensure that
it will function properly during an emergency situation.
(8)Â
Testing of any safety alert system or technology.
[Amended 5-29-1996 by L.L. No. 4-1996]
(9)Â
Testing and the recording of test data for all signals
(audio and video) at the head end and all system extremity points.
(10)Â
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]
(11)Â
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.
A.Â
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]
B.Â
The codes referred to specifically include, but are
not limited to, construction, fire and safety and zoning codes.
A.Â
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]
B.Â
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.
C.Â
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
5% of the affected MCS provider's gross revenue for the reporting
period.
D.Â
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 5% of an affected
MCS provider's annual gross revenue.
E.Â
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.
F.Â
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.
G.Â
An affected MCS provider shall at no time be charged
or obligated to pay an alternative user charge that exceeds 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 5% of gross revenue, then such alternative user
charge shall be reduced to reflect an amount not greater than the
five-percent cap.
H.Â
An affected MCS provider shall pay 25% of the alternative
user charge at the end of every three months.
A.Â
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]
B.Â
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.
C.Â
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.
D.Â
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
30 days of the Council/franchising authority's formal action.
E.Â
After receipt of notification, the affected person
or MCS provider shall have 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.
A.Â
Consistent with Section 621(a)(1) of the Cable Act
(codified at 47 U.S.C. § 541), the Council/franchising authority
may award one or more nonexclusive multichannel service franchises
within its geographical limits.
B.Â
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]
A.Â
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.
B.Â
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.
C.Â
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]
(1)Â
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.
(2)Â
The term or duration of the franchise.
(3)Â
Indemnity and holds harmless clauses.
(4)Â
Insurance.
(5)Â
Performance and completion bonds or security deposits.
(6)Â
Construction, upgrade or rebuild schedule.
(7)Â
Compensation, including franchise fees.
(8)Â
Continuity of multichannel programming service.
(9)Â
Assignment, transfer or sale of an existing franchise.
(10)Â
Repeal of prior inconsistent franchise agreements.
(11)Â
A severability clause.
(12)Â
The law that governs the franchise agreement.
(13)Â
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.
A.Â
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.
B.Â
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.
C.Â
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]
D.Â
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."
A.Â
The term of an initial MCS franchise may be for a
period not to exceed 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]
B.Â
The term of a renewal franchise may be for a period
not less than five years nor more than 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]
C.Â
If an initial franchise or renewal franchise is for
a period of six years or less, then the City shall detail the reasons
for granting the shorter franchise, in the franchise agreement or
elsewhere.
[Amended 5-29-1996 by L.L. No. 4-1996]
A.Â
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.
B.Â
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.
A.Â
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 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]
B.Â
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 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]
C.Â
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]
D.Â
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]
E.Â
A franchised MCS provider shall file with the Council/franchising
authority, within 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]
F.Â
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.
G.Â
In the event that payment is not made by the due date
or within 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]
H.Â
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]
I.Â
If an audit or other research discovers that franchise
fees have been either significantly underpaid or not paid for a period
exceeding six 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]
J.Â
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]
K.Â
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.
L.Â
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]
M.Â
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)].
N.Â
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.
O.Â
For any twelve-month period, the fees paid by any person subject to Subsection N who provides any such multichannel service shall not exceed 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]
P.Â
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]
Q.Â
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]
A.Â
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]
B.Â
Any assignment or transfer without such prior written
consent shall constitute a default of such franchise.
C.Â
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]
D.Â
At least 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.
E.Â
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]
(1)Â
Experience of proposed assignee or transferee or buyer.
(2)Â
Qualifications of proposed assignee or transferee
or buyer.
(3)Â
Legal integrity of proposed assignee or transferee
or buyer.
(4)Â
Financial ability and stability of the proposed assignee
before and after the proposed assignment.
(5)Â
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.
(6)Â
The corporate connection, if any, between the franchised
MCS provider and proposed assignee or transferee or buyer.
(7)Â
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.
(8)Â
Any claimed benefits which may accrue from the assignments.
(9)Â
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.
F.Â
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]
G.Â
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.
H.Â
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.
I.Â
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]
A.Â
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]
[1]
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.
B.Â
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.
A.Â
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]
B.Â
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]
(1)Â
Affects the ability of the customer to receive multichannel
service;
(2)Â
Affects the ability of the Council/franchising authority
to receive compensation for the use of its right-of-ways; or
(3)Â
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.
C.Â
Where a franchised MCS provider satisfactorily corrects
any of the enumerated conditions within 60 days, then in no event
shall the enumerated condition be weighed against such franchised
MCS provider in any subsequent review of franchise performance.
D.Â
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]
E.Â
Within 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]
F.Â
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]
G.Â
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.
H.Â
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.
I.Â
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.
J.Â
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 21 days of the Council/franchising authority's action.
K.Â
If within 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.
L.Â
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.
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 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.
A.Â
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]
B.Â
The specific provisions of the Cable Act include,
but are not limited to, the following:
(1)Â
Cable channels for public, educational or governmental
use (Section 611 of the Cable Act, codified at 47 U.S.C. § 531).
(2)Â
Cable channels for commercial use (Section 612, 47
U.S.C. § 532).
(3)Â
General franchise requirements (Section 621, 47 U.S.C.
§ 541).
(4)Â
Franchise fees (Section 622, 47 U.S.C. § 542).
(5)Â
Regulation of rates (Section 623, 47 U.S.C. § 543).[1]
[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.
(6)Â
Modification of franchise obligations (Section 625,
47 U.S.C. § 545).
(7)Â
Franchise renewal (Section 626, 47 U.S.C. § 546).
(8)Â
Conditions of sale of a franchise (Section 627, 47
U.S.C. § 547).
(9)Â
Subscriber privacy (Section 631, 47 U.S.C. § 551).
(10)Â
Equal employment opportunity (Section 634, 47
U.S.C. § 554).
(11)Â
All applicable safety and electrical codes.
[Added 5-29-1996 by L.L. No. 4-1996]
C.Â
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 77 full-time video programming services.
D.Â
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]
E.Â
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.
A.Â
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."
B.Â
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:
(1)Â
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)Â
An MCS provider classified as a "cable operator"
shall provide, at its own expense, a dedicated public access channel.
(b)Â
An MCS provider classified as a "cable operator"
shall provide, at its own expense, a dedicated educational access
channel.
(c)Â
An MCS provider classified as a "cable operator"
shall provide, at its own expense, a dedicated governmental channel.
(2)Â
Both the Council/franchising authority and the affected
franchisee shall review use after every 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
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]
(3)Â
If a separate channel is not dedicated for either
government or educational use at any time and thereafter 75% of the
total time allocated for any combined required government/educational
channel is consistently used five days a week for a period of three
months, then the franchisee shall provide an additional PEG channel.
[Amended 5-29-1996 by L.L. No. 4-1996]
(4)Â
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]
(5)Â
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 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]
[1]
Editor's Note: Former § 185-118,
Broad categories objectives, was repealed 5-29-1996 by L.L. No. 4-1996.
