[HISTORY: Adopted by the Town Board of the
Town of Cortlandt 4-13-1999 by L.L. No. 3-1999. Amendments noted where
applicable.]
This chapter may be known and cited as the "Multichannel
Service Provider Regulatory Local Law (MSCP Local Law) for the Town
of Cortlandt, New York."
This chapter shall be construed in accordance
with applicable federal and state laws and rules governing multichannel
service practices which specifically include 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 New York State Public Service Commission or any successor agency
or authority.
This chapter shall apply within the geographical
limits of the town, including any areas subsequently annexed by the
town, unless state law prescribes otherwise, or unless state law in
some fashion restricts or alters the effect of this chapter to a subsequently
annexed area of the town.
For purposes of this chapter, and where not
otherwise inconsistent with the context of a particular section, the
defined terms, phrases, words, abbreviations and their derivations
shall have the meaning given in this section. When not inconsistent
with the context, words in the present tense include the future tense,
words used in the plural number include words in the singular number,
and words in the singular number include the plural number. The words
"shall" and "will" are always mandatory and not merely directive.
Those telephone calls that are connected to an MCS provider's
general information number, without being attended by a representative
of the MCS provider, or by a device capable of problem and/or inquiry
resolution (e.g., placing a service request, placing a work order,
directing calls to the appropriate personnel or the like).
The cessation of use by a multichannel service (MCS) provider
of any portion, component, facility or equipment of its multichannel
system in the town for a period of greater than 60 consecutive days.
A government, education or public channel which is carried
on a multichannel system, but which is not part of any institutional
network. "Access channel" also means a channel dedicated in whole
or in part for programming that is not originated, produced or controlled
by an MCS provider, unless the MCS provider is delegated as the channel
administrator or operator, including but not limited to public, educational
or governmental access programming (i.e., "PEG" access) or leased
access programming.
The nonprofit corporation or other entity which may be designated
by the town and operated for the purpose of coordinating the provision
of public, educational and governmental access programming and providing
other services within a franchise area.
The delivery of service using the multichannel system or
otherwise using the system to transmit service.
A channel engineered at the headend 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.
The individual designated by the Board who will
act as the technical and administrative liaison or representative
of the town, the subscribers and the public in the town in matters
dealing with customer or subscriber service, consumer protection issues,
repair and maintenance of the system, adequacy of signal quality,
system reliability, service areas, reception problems, compliance
and performance reviews, rate increase requests if applicable and
all other matters affecting or concerning the administration of a
franchise agreement or other agreement, license or permit granted
pursuant to this chapter.
Pursuant to this chapter, the MCS Administrator
may be designated as the point of contact for all matters relating
to a franchise or other agreement, license or permit, or a franchisee
or other MCS provider, or the signatory to such other agreement or
the holder of such permit.
If designated, unless specifically directed
otherwise by the Town Board, it shall at all times be presumed that
the MCS Administrator is acting as the Board's designee and under
the Board's direction.
When 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.
The document of authorization granted by the town to construct,
operate, maintain, repair, replace, upgrade and provide service over
a multichannel system as is permissible under law, together with the
written proposals and oral representations for a franchise, other
agreement, license or permit or other agreement, permit or license,
and any appendixes thereto, to the extent expressly incorporated therein,
and all amendments, renewals or replacements thereof, including proposals
for renewals or replacements. All of these terms mean the authority
by which the multichannel service provider is authorized and permitted
to construct, operate, maintain, repair, replace, upgrade and provide
service over a multichannel system. The particular type and scope
of franchise, other agreement, license or permit, and any distinction
between an agreement or permit or license, may be dependent upon the
scope of authority the town has over a given type of operator or provider
of multichannel service as permitted by law.
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, or any functional
equivalent thereof, 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.
A charge used in place of a franchise fee or its functional
equivalent that is paid by an MCS provider. An alternative user charge
shall not be based on an MCS provider's gross annual revenues (as
is the case in a franchise fee or as may be the case with the fee
associated with another form of agreement, license or permit) but
shall be based on the value of the town property or right-of-way that
an MCS provider uses to construct, maintain and operate its multichannel
system.
A person submitting an initial application or proposal to
the town for a franchise, other agreement, license or permit, where
required, to operate a multichannel system under the terms and conditions
set forth in this chapter and any state regulations.
Synonymous for the purposes of this chapter. An "application"
or "proposal" means the process by which the applicant submits a request
and indicates a desire to be granted a franchise, other agreement,
license or permit, where required, for all or a part of the town.
An "application" or "proposal" includes all written documentation
and verbal statements and representations, in whatever form or forum,
that is made by an applicant to the town concerning the construction,
rendering of services, maintenance or any other matter pertaining
to the proposed multichannel system and its operation.
Any transfer of a franchise, other agreement, license or
permit, in whole or in part, whether by sale, assignment, lease or
other form of alienation or any change in operational, managerial
or financial control of more than 10%.
Equipment supplied by the MCS provider (such as a converter,
remote control unit or device, digital tuner, input selector switch
or passive devices) which is used to enhance or assist in the reception
or provision of multichannel service.
Any service tier or combination of services which includes
the retransmission of local television broadcast signals and any public,
educational and government access channels. The term "basic cable
television service" or "basic service" necessarily includes any service
tier or programming service required under the provisions of the Cable
Television Consumer Protection Act of 1992 and the Telecommunications
Act of 1996 at 47 U.S.C.
The Town Board for the Town of Cortlandt, New York, which
is the legislative body for the Town of Cortlandt, New York. For purposes
of clarification, the "Town Board" or "Town" is the franchising authority
for the Town of Cortlandt, New York.
The Cable Communications Policy Act of 1984, as amended by
the Cable Television Consumer Protection Act of 1992 and the Telecommunications
Act of 1996, all of which are amendments to the Communications Act
of 1934.
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 FCC regulation).
Any person or group of persons who:
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-activated
ordering capability or other nontelephonic or non-person-to-person
voice uses or services, or uses of data related to the ordering or
provision of services, and which is provided to multiple subscribers
within the town, including the provision or use of data used to maintain
and operate the cable system. 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 only subscribers in one
or more multiple-unit dwellings under common ownership, control or
management unless such facility or facilities uses any public rights-of-way
for the provision of multichannel service or to otherwise generate
revenue by the provision of multichannel or cable service;
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 U.S.C. § 541] to the extent such facility
is used in the transmission of video, voice or data programming or
service directly to subscribers, including other programming services,
or for purposes of ordering service or changes of service, or for
purposes of maintaining the system, unless otherwise precluded or
exempted from this definition by federal or state law or regulation;
An open video system that complies with Section
653 of the Communications Act; or
Any facilities of any electric utility used
solely for operating its electric utility.
A band or group of frequencies in the electromagnetic
spectrum, or any other means of transmission (including, without limitation,
optical fibers or any other means now available or that may become
available), which has the technical ability to carry a video signal
in the National Television Systems Committee (NTSC) or similar format,
or in any format devised or approved in the future by the Federal
Communications Commission (FCC) or an audio, voice or data signal.
All video channels shall include their vertical blanking intervals,
all other video components, all aural components, including subcarriers,
and all closed-captioning intended for reception by the hearing impaired
and others. Such shall be transmitted and provided to subscribers
on the multichannel system, unless the operator deletes them in accordance
with FCC, copyright and other applicable rules.
As a matter of consumer protection, where appropriate
and feasible, the MCS provider may be required to employ signal-enhancing
technologies where a problem with signal quality exists that can be
remedied or mitigated, such as ghosting or audio-instability. However,
the choice of the technology employed to alleviate or remove the problem
shall be the prerogative of the operator. The franchisee or other
MCS provider may delete signal-enhancing technologies from the broadcast
signal, if instead the franchisee or other MCS provider employs such
enhancements at its system headend or hub. "Channel" shall also mean
discrete segments of bandwidth reserved for the provision of multichannel
service, including but not limited to data transmissions and other
programming or programming or communications, even if a different
bandwidth is used than that used to provide video programming.
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 or cable service.
A charge or fee assessed on a customer or subscriber by an
MCS provider for efforts at collecting, or attempting to collect,
a past due and/or delinquent account.
The same meaning in this chapter and any franchise agreement
or other agreement, license or permit as is defined and applied under
the United States' Uniform Commercial Code (UCC).
Any verbal or written claim of dissatisfaction with the multichannel
service, other programming or communications services or operations
of the franchisee or other MCS provider that are permitted to be regulated
under this chapter, including but not limited to matters of signal
quality and billing, that are made by a person to either the franchisee
or other MCS provider or the MCS administrator and which requests
or requires corrective action by the franchisee or other MCS provider
to its multichannel services, other programming or programming or
communications services or operations over the multichannel system,
or to any portion of the system. This shall also include any necessary
investigation subsequent to a service or trouble call, and any research
and/or additional service call or work activity, such as the delivery
or replacement of a remote control device, converter or other equipment,
as may be undertaken by a franchisee or other MCS provider, its employees
or agents.
With respect to any construction, reconstruction,
rebuilding or upgrading of the system, means that in each instance:
Attachment strand has been put in place for
aerially serviced areas and all needed cable has been securely and
properly lashed to such strand; or,
In areas serviced underground, that all cable
has been placed correctly in trenches as required by applicable code
and this chapter, the trenches have been refilled, all disturbed road
surfaces have been restored as required and all landscaping restoration
has been completed as required.
"Complete" or "Completion" further means that:
All amplifier housings and modules, and all
line extenders and all other active and passive devices necessary
for the operation of the system and the provision of service, have
been installed (including modules for return path signals if bidirectional
activation has been proposed or committed to);
Primary and backup/standby power supplies have
been installed and operate properly, as required;
All bonding and grounding has been completed;
Construction or reconstruction of all headends
or hubs has been completed, and all necessary processing equipment
has been installed therein and is functioning as required; and
Any and all other construction or reconstruction
necessary for the multichannel system to deliver multichannel service
to subscribers has been completed, including the initial installation,
or, in the case of a rebuild or upgrade of the system, the replacement
of drops to each and every subscriber unit passed if such is either
needed or proposed, pursuant to the plans, specifications, representations
and commitments submitted to and approved or accepted by the town.
Before connecting new or technologically upgraded
service to any subscriber, the franchisee or other MCS provider shall
conduct and complete proof-of-performance tests on each new or technologically
upgraded portion of the multichannel system and shall demonstrate
to the town's satisfaction compliance with the FCC's technical standards,
unless the town is explicitly prohibited by FCC regulation from requiring
such demonstration. Multichannel services provided to segments of
less than the entire multichannel system in the town will be activated
only when the proof of performance is completed and never before.
Any significant construction, reconstruction,
upgrade or rebuild of any portion of the multichannel system will
not be considered complete until proof-of-performance tests have been
conducted on such portion or segment (or in the case of the entire
multichannel system, on all segments of the multichannel system),
in compliance with the signal quality requirements of the FCC's technical
standards. Any performance characteristics of any segment which are
found not to comply with said technical standards must have been corrected
before construction is deemed complete.
The term "completion," in relation to the construction
or reconstruction, upgrade or rebuild, does not include the marketing
and installation of subscriber service.
Furthermore, construction, reconstruction, upgrade
or rebuild shall not be deemed complete unless and until all customers
or subscribers in any portion or area being constructed, reconstructed,
upgraded or rebuilt are able to receive all multichannel services
offered, whether or not individual services or levels of service are
subscribed to. Further, if applicable, construction, reconstruction,
upgrade or rebuild shall not be deemed complete until the wreck-out
or removal of the old segments of the multichannel system has been
completed to the reasonable satisfaction of the town.
See "subscriber."
A charge or fee imposed on a customer or subscriber by an
MCS provider for such provider's efforts at collecting, or attempting
to collect, a past due and/or delinquent account.
A customer or subscriber service representative.
A subscriber or user of the services and/or facilities of
the multichannel system provided by an MCS provider.
Any partial loss, or visibly or audibly noticeable and objectionable
degradation of multichannel service or other programming or communications
services (except for force majeure situations as defined in this chapter),
including the partial loss or degradation or disruption of picture,
sound, voice or data on one or more channels, regardless of the duration
of such degradation or disruption. With respect to multichannel services,
diminution of signal may be detected by the presence of snow, lines,
bars, ghosting, static, noise, audio external to the system or any
other objectionable and visually or audibly discernible disruption
or interference, or other manifestation not contained within the signal
received by the MCS provider, or prior to its introduction or entry
into the system, which leads to or causes the quality of signal received
to be unusable, inconsistent, erratic, objectionable or unreliable.
As diminution of signals can occur even when the system is in compliance
with FCC technical standards, the subscriber shall be the determiner
of whether a diminution of signals is being experienced, so long as
the manifestation is visually or audibly discernible without magnification
or amplification other than eye glasses.
An imminent, impending or actual natural or humanly induced
situation wherein the health, safety or welfare of the residents of
the town is threatened. A disaster emergency (by illustration) may
include a severe climatic or meteorological storm, dam failure, flood,
tornado, hazardous waste infiltration, fire, petroleum or chemical
spill, explosion, vehicle accident of significant effect, or aircraft
crash.
A change in the level of a subscriber's multichannel service
from a more comprehensive and expensive level of multichannel service
(in terms of services or channels provided) to a less comprehensive
and less expensive level of multichannel service.
Includes any public or compatible use easement created by
dedication to the town, or by other means, for public utility purposes
or any other purpose, including cable television or any multichannel
service. "Easement" shall also include a private easement used for
the provision of cable service or any other multichannel service.
The Federal Communications Commission and/or such other federal
regulatory agency as now or in the future may have jurisdiction to
oversee the operation of MCS providers and their systems.
The rules and regulations adopted from time to time by the
FCC, pursuant to the Communications Act of 1934 and the Telecommunications
Act of 1996, as amended, or other applicable federal law.
The technical standards of the Federal Communications Commission
[e.g., as set forth in Part 76, Subpart K (Technical Standards) of
the FCC's Rules, 76 CFR 76.601 et seq., as amended from time to time].
Very thin and pliable cylinders or strands of glass or plastic,
or any future functional equivalent, that is used to carry wide bands
of multiple frequencies.
The initial authorization, or subsequent renewal, granted
by the town in order for a person to construct, operate, and/or maintain
a franchised MCS system in all or part of the town.
The separate contract by which the town grants an MCS provider
the right to operate a franchised multichannel system within all or
a part of the town, in accordance with the town's franchising authority.
A franchise, other agreement, license or permit may be, and can be
expected to be, different in scope and content from other permissible
grants of authority, according to applicable law.
The date of expiration or the end of the term of a franchised
MCS provider's franchise, other agreement, license or permit.
Any multichannel service provider that has been granted a
valid franchise agreement, or other agreement, license or permit by
the town, and that is subject to the town's regulator authority as
set forth in this chapter, in whole or in part, as represented by
any section or combination of sections of this chapter.
The amount charged a multichannel system provider by the
town for the cost of administering and enforcing the franchise, other
agreement, license or permit and may but need not necessarily include
recompense for the cost of maintaining the public property and rights-of-way
occupied by the multichannel system, on a reasonably pro-rata basis
with respect to the percentage of space used by all other coexistent
occupants or providers of utility or utility-like services that occupy
the public property and rights-of-way.
A person who is awarded a franchise, other agreement, license
or permit by the town to construct or operate a franchised multichannel
system within all or part of the town. The term "franchised MCS provider"
specifically includes a "cable operator," but is not limited to such.
The Town Board for the Town of Cortlandt, New York.
With respect to a specifically named piece of
multichannel system equipment, another piece of equipment that either:
Has the same or substantially similar characteristics,
qualities, operational capabilities and design functions as the original,
specifically named or referenced piece of multichannel system equipment;
Operates in substantially the same form and
fashion as the original, specifically named or referenced piece of
multichannel equipment; or
Operates in a technologically superior manner
to the original, specifically named or referenced piece of multichannel
equipment.
With respect to matters not involving equipment,
the term also means something that equates to or is intended to effect
the same or a substantially similar outcome or function in effectively
the same manner or for the same purpose.
For any period of time, any and all revenues or other valuable
consideration of any kind whatsoever which are derived directly or
indirectly from the operation of the multichannel system within the
town and that are attributable to, or are occasioned by, the grant
of the franchise, other agreement, license or permit, regardless of
the familial or organizational relationship with the franchisee, licensee
or permittee of the recipient of said revenue.
There shall be permitted to be deducted from
gross revenues:
Bad debts actually written off by a franchisee
or other MCS provider in the normal course of its business; provided,
however, that subsequent recovery of bad debts previously deducted
shall be included in gross revenue in the next reporting/payment period;
and
Refunds actually paid to subscribers or other
third parties.
Gross revenues shall not include the following:
any revenue specifically exempted by the federal Cable Act, state
law or by any ultimate federal or state judicial ruling or by specific
FCC ruling. For any revenue an MCS provider seeks to exempt from the
definition of "gross revenue," the MCS provider shall have the burden
of proving to the town that any such excluded revenue is specifically
exempted by the Cable Act, state law, an ultimate federal or state
judicial ruling or by specific FCC ruling. Including, but not limited
to the above, gross revenues shall not include the following:
Any tax of general applicability imposed upon
a franchisee or other MCS provider or upon the franchisee's or other
MCS provider's subscribers by state, federal or any other governmental
entity and required to be collected by the franchisee or other MCS
provider and remitted to the taxing entity (including but not limited
to user taxes, service taxes and communications taxes), provided that
such taxes are identified as a separate line item on subscriber bills
or statements;
Any revenue received by the franchisee or other
MCS provider from any person for services not attributable, in whole
or in part, to the operation of its multichannel system or to other
programming or communications serving the town, including but not
limited to revenue derived from electronics retailing, mail marketing
or telephone answering services which do not rely upon the use of
the franchisee's or other MCS provider's multichannel system or other
programming or communications service, delivery services and video
production services for programming or other programming or communications
services which are not transmitted over or used in conjunction with
the system; and
Any revenue which the franchisee or other MCS
provider chooses not to receive in exchange for its provision of free
or reduced cost multichannel services or other programming or communications
services to any person. However, such revenue which is not included
due to franchisee's or other MCS provider's decision not to receive
in exchange for trades, barters, services or other items of value
shall be included in Gross Revenues.
In computing Gross Revenues from sources other
than subscriber revenue where it is not possible to isolate the amount
derived from within the town, and that is attributable to the grant
of a franchise, other agreement, license or permit, or the operation
of franchisee's or other MCS provider's multichannel system both inside
the town and outside the town, the total or aggregate revenue received
by a franchisee or other MCS provider from such sources shall be computed
as follows: Said revenues shall be multiplied by a fraction, the numerator
of which shall be the number of franchisee's or other MCS provider's
subscribers in the town as of the last day of the required payment
period, and the denominator of which shall be the number of subscribers
within all areas served by a franchisee's or other MCS provider's
system as of the last day of the required payment period. The result
shall then be multiplied by the percentage used to compute the franchise
fee or other fee assessed as a percentage of revenue. For purposes
of example only, the following are types and sources of nonsubscriber
revenue intended to be included in Gross Revenue, whether received
directly or indirectly and regardless of the familial or organizational
relationship with the franchisee, licensee or permittee of the recipient
of said revenue:
The sale or rental of subscriber lists;
The sale of advertising;
Payments from home shopping services;
Commissions or bonuses of any kind from vendors
or programmers;
Rebates from programmers and vendors of any
kind;
Viewing guide sales, including electronic guides;
The lease of channel capacity; and
Payments or commissions from "900" phone numbers
advertised on the system.
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.
When used in a noneconomic or nonfinancial or noncommercial
context, has the meaning ascribed in the most current edition of Webster's
Encyclopedic Unabridged Dictionary of the English Language.
With respect to a particular portion, part or segment of
the multichannel system or group of segments or the entire multichannel
system means that all proposed multichannel services and multichannel
system capabilities, as stated in a franchise agreement or other agreement,
license or permit, or in any proposal that is by reference included
in any franchise agreement or other agreement, license or permit,
are available and that the construction, reconstruction or upgrade
has been completed (see definition of "complete") and the completed
segment(s) in question, or the entire system, is capable of actually
delivering multichannel services to each and every subscriber and
residence or business in each segment, pursuant to the plans and specifications
as may have been approved by the town.
That charge or fee imposed on a subscriber for the initial
installation or reconnection of service or the relocation of equipment
necessary to obtain or use multichannel services or other communication
services.
That interconnected combination of networks
that evolved from the original ARPANET experiment and the National
Science Foundation subsidized Internet.
An interconnection of networks that provides
user-to-user or address-to-address communications services, or multichannel
or other programming services, or data transmission services.
The availability of access to a subscriber of the Internet.
The channel capacity a franchisee or other MCS provider is
required by federal law to designate for use by commercial endeavors
or purposes and that are not affiliated with the franchisee or other
MCS provider, pursuant to Section 612 of the Communications Act of
1934, as amended.
A charge which is added to a customer or subscriber's account
or bill for nonpayment of a previously due and currently delinquent
account. An administrative charge imposed because of a late payment
is deemed the same as a late charge.
An extension of the multichannel system requiring additional
trunk or feeder cable, or both, or additional fiber optic distribution
cable or additional active electronic devices to amplify the signal
or an additional fiber node, but does not include individual service
drops beyond 200 feet that may require additional feeder cable.
The Multichannel Service Provider Regulatory Law for the
Town of Cortlandt, New York.
Programming produced locally by or for a franchisee or other
MCS provider for carriage on the multichannel system.
The complete loss of picture and sound on either the lowest
tier of service, or on all tiers or levels of service that is caused
by, attributable to or occasioned by problems with the operation of
the system or any components of the system or the failure of such.
More than one instance of a loss of service from the same portion
of the system or affecting the same address or addresses, within the
town that occurs within a twenty-four-consecutive-hour period shall
be deemed a single, continuous loss of service. The time used to measure
the duration of the loss of service shall be from the time of the
first reported loss of service to the restoration of the last reported
loss of service.
Multichannel service.
A facility either employing or consisting of
a set of closed transmission paths and associated signal generation,
reception and control equipment that is designed to provide multichannel
service which includes video subscription service of any kind other
than as defined in Title II of the Communications Act of 1934, as
amended by the Telecommunications Act of 1996, voice-activated ordering
capability, or other nontelephonic or non-person-to-person voice uses
or services, or uses of data related to the ordering or provision
of services, and which is provided to multiple subscribers within
the town, including the provision or use of data used to maintain
and operate the multichannel system. 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 only subscribers in one
or more multiple-unit dwellings under common ownership, control or
management, unless such facility or facilities use any public rights-of-way
for the provision of multichannel service or to otherwise generate
revenue by the provision of multichannel service;
Those facilities of a common carrier that are
subject to the provisions of Title II of the 1934 Communications Act,
as amended by the Telecommunications Act of 1996, except that such
facility shall be considered a "multichannel system" [other than for
purposes of Section 621(c) of the Act, codified at 47 U.S.C. § 541]
to the extent such facility is used in or for the transmission of
video, voice, or data programming or service to subscribers, including
other programming services, or for purposes of ordering service or
changes of service, or for purposes of maintaining the system, unless
otherwise precluded or exempted from this definition by federal or
state law or regulation; or
Any facilities of any electric utility used
solely for operating its electric utility.
This definition shall always be subject to federal
preemption or limitation.
The transmission of video programming and other programming
or data transmission services, subscription service of any kind, except
as expressly exempted by Title II of the 1934 Communications Act,
as amended by the Telecommunications Act of 1996, interactive services
and other broadband information services to and/or from subscribers
and that is generally made available to subscribers, together with
subscriber interaction functions which may be necessary for the selection
of programming or subscription service other than as expressly exempted
by Title II of the 1934 Communications Act, as amended by the Telecommunications
Act of 1996. Multichannel service shall not include other programming
or communications services if prohibited by federal law or rule.
Any person who provides multichannel services or other programming
or communication services using a multichannel system.
Not granting a new franchise agreement or other agreement,
permit or license which grants authority to operate a multichannel
system within the town.
Those conditions which are reasonably within
the control of the MCS provider with respect to the operation and
maintenance of the system and the provision of service using the system.
Those conditions which are not within the control of the MCS provider
include, but are not limited to, labor strikes, sabotage, riots or
civil disturbances of a disastrous nature and effect, explosions,
acts of public enemies, unusually severe or catastrophic weather conditions,
natural disasters as declared by appropriate government officials,
fires and wide-spread commercial power failures that exceed the capabilities
of the backup power supplies of the system or communication facilities
failures used in the receipt of programming.
Those conditions which are deemed within the
control of the MCS provider include, but are not limited to, financial
situations other than the declaration of bankruptcy or insolvency,
marketing promotions, loss of standby power up to the period of time
for which the manufacturer has rated the standby power unit to operate,
rate increases, regular or periodic periods of high demand with respect
to labor intensive functions, the regular inspection and maintenance
of the system, required testing of the system, the timely remedy of
safety and other code violations and the timeliness and technological
design with respect to any upgrade of the system.
Those communications that do not involve the transmission
to subscribers of programming or other multichannel services. Other
programming or communications services include but are not limited
to telephony and voice services.
Information that an MCS provider (specifically including
but not limited to a cable operator and/or SMATV operator) makes available
to all subscribers generally.
The delivery over the multichannel system of audio and/or
video signals for a rate or amount on a per-event or per-program or
per channel basis over and above the rate for basic service.
Public, educational and governmental.
Any programming or legitimate, permissible activity related
to the functioning of a program or channel designed and intended to
provide programming on a not-for-profit basis by government, the educational
community or the public at large using the channel(s) dedicated to
or used for the provision of PEG programming.
Any individual, corporation, estate, trust, partnership,
association of two or more persons having a joint common interest,
joint stock company or governmental entity.
That portion of the town required or committed to be built
and operated under a franchise agreement or other agreement, permit
or license.
All the tangible or intangible property owned, installed,
rented, leased or used by a franchisee or other MCS provider in the
conduct of providing multichannel service and that is utilized in
the operation of the system in the town.
A written proposal or request by an MCS provider to provide
multichannel services to residents, businesses, industries and institutions
within the town. Notwithstanding the foregoing, nonwritten or verbal
representations or commitments made to the Town Board or its designee
in relation to or in support of a written proposal shall be deemed
a part of the proposal and may be relied upon as though they were
written.
The Public Service Commission of the State of New York.
The periodic price paid by a subscriber for the receipt of
any multichannel service provided by an MCS provider.
The compensation paid by a multichannel service provider
to the town for the occupation and use of the public property and
rights-of-way used to provide multichannel service within the town.
An official act by the Town Board that removes, repeals or
rescinds any previously approved authorization for a licensed, permitted
or franchised MCS provider to operate a multichannel system within
the town.
Any planned service interruption or diminution of signals,
regardless of the number of channels affected or the duration of the
outage, for which both the town and subscribers have been notified
at least 48 hours in advance and that does not exceed four hours'
duration for any given address.
Multichannel service, as defined in this section.
The loss of any tier or incremental billing level of multichannel
service or separately priced service such as those offered on a per-channel
basis or any other multichannel or other communications services that
are delivered, or provided by or attributable to or occasioned by
the operation of the multichannel system or any components of the
system. Further, more than one service interruption that occurs within
a twenty-four-consecutive-hour period shall be deemed a single, continuous
interruption of multichannel service or other communications services.
Failure to meet FCC technical standards at any location within the
town shall be deemed a service interruption during the period of time
when the multichannel service or any other communications services
does not comply with FCC's technical standards. Notwithstanding the
preceding, a scheduled outage is not a service interruption, provided
that it does not exceed four hours' duration for any address within
the town. Two or more occurrences of a diminution of signals within
any twenty-four-consecutive-hour period shall constitute a single,
continuous service interruption. A scheduled diminution, provided
that there is forty-eight-hour advance notification to the town and
subscribers, is not a service interruption.
For purposes of required responses under this chapter, the
loss of audio and/or video (picture and/or sound) on the basic or
lowest level, tier or increment of service on the multichannel system.
For purposes of credits or refunds as may be required under this chapter
or any franchise, other agreement, license or permit, a "service outage"
means the loss of audio and/or video or other service provided by
an MCS provider on any tier or level of service for which there is
an individual or separate rate or charge, so as to make that channel,
level, tier or cluster of service effectively unusable in the normal
and usual sense of being able to enjoy or otherwise use the service
or services, and 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.
Any person or entity that directly or indirectly holds or
owns a five-percent interest or ownership position in the multichannel
system or the holder of a franchise, other agreement, license or permit
authorizing the construction and operation of a multichannel system
in the town.
Satellite Master Antenna Television.
Any person or group of persons who:
A private multichannel system that does not cross or in any
manner use any public rights-of-way and which is located on private
property and serves private dwellings.
The State of New York.
The surface of and the space above and below a public street
(or any path or thoroughfare designated for vehicular and/or pedestrian
traffic) or other easement now or hereafter held by the town (including
any street, as defined by eminent domain) for the purpose of public
travel.
A person lawfully receiving multichannel service or other
communications service delivered by an MCS provider on a multichannel
service system.
The Supervisor of the Town of Cortlandt, New York.
The multichannel system within the town.
A violation of this chapter or any franchise agreement, other
agreement, license or permit that is of no or diminimus negative effect
on the town or the public and that is not repeated after notice by
the town.
The Town of Cortlandt, New York.
The United States Code.
A person or organization utilizing a multichannel system
and/or its equipment or capabilities for purposes of advertising,
production and/or transmission of material, as contrasted with receipt
thereof in the capacity of a subscriber.
Programming provided by or generally considered comparable
to programming historically provided by a television broadcast station.
Specifically, "video programming" means a service whose use and value
is largely determined by being able to be viewed.
Those days when the office is normally open for business,
pursuant to the requirements of this chapter.
In the context of and with respect to any construction, rebuild,
upgrade, modification or maintenance activity of a multichannel system,
the removal of the old cable, wires, parts and components of any portion
of the system not currently and actively used in the provision of
service.
A.
The Supervisor is hereby designated the individual
who is responsible for the continuing administration of this chapter
and matters related to multichannel service, including but not limited
to cable service, cable systems and cable operators.
B.
Unless prohibited by federal, state (including any
applicable provision of the PSC) or local law, the Town Board may
further delegate its powers and authority to a duly authorized representative
for the purpose of administering this chapter or an applicable franchise,
other agreement, license or permit that authorizes the construction,
operation and maintenance of a multichannel system, to the extent
permitted by applicable state law.
C.
Moreover, unless prohibited by federal, state or local
law, the Town Board may create an appointed or elected advisory board,
commission or committee which is designed to handle issues concerning
multichannel service and multichannel service providers. If such a
board, commission, or committee is created, then a separate resolution,
ordinance or document shall be adopted wherein the precise powers
and authorities of the board, commission or committee shall be outlined.
D.
However, the Town Board may never delegate its initial
or renewal franchising, licensing or permitting power, or power of
revocation or termination of such, to another person or representative
(including any advisory board, commission or committee). Moreover,
while the Town Board may use an outside consultant to review any rates
that are subject to the town's review under the cable Act, the Town
Board nonetheless may not delegate its ultimate rate-making or regulating
power to another person or representative (including an advisory Board,
commission, or committee).
Multichannel service (MCS) provider franchise agreements or other MCS agreements, licenses or permits are subject to and shall be governed by the terms, conditions and provisions of this chapter and any amendments thereto. Also subject to all terms, conditions and provisions of this chapter and any amendments thereto are providers of multichannel service not otherwise subject to local franchising authority but who are not exempted from compliance with applicable local regulatory ordinances or laws, in whole or in part, by federal or state law, rule or regulation. In the event of any conflict or ambiguity between the requirements of this chapter and any amendments thereto and any franchise agreement or other agreement, license or permit subject to this chapter, in whole or in part, or any amendments thereto, the chapter and any amendments thereto shall control, unless preempted by federal or state law, rule or regulation, or unless specifically addressed in the franchise agreement or other agreement, license or permit in the context of relief from the chapter. However, any and all relief or variance from the terms, conditions and provisions of this chapter shall be granted only in accordance with § 195-8 of this chapter and such relief or variance shall be individually set forth in any franchise agreement or other agreement, license or permit.
A.
With respect to provisions classified as "consumer
protection" and "customer service," and specifically those sections
that are contained within this chapter and that follow this section,
that are denoted by an asterisk(*) in front of the section heading,
such sections and provisions shall specifically be applicable to any
and all MCS providers operating in the town, unless:
(1)
The MCS provider is exempted from this chapter in
its entirety or is exempted from any consumer protection or customer
service provision thereof;
(2)
The MCS provider requests and is granted relief from
any applicable provision of this chapter; or
(3)
The applicability of the provision is preempted by
the force of a superseding state or federal law, rule or regulation.
B.
Moreover, unless the existing franchise, other agreement,
license or permit contains either more stringent requirements or specific
language precluding, preempting or excluding the town's right to enforce
the consumer protection and customer service provisions of this chapter,
any MCS provider that is providing service as of the effective date
of this chapter shall be expected to comply with and abide by applicable
consumer protection and customer or subscriber service provisions
no later than 300 days after the effective date of this chapter, or
upon the grant of a new or renewed franchise, other agreement, license
or permit, whichever occurs sooner.
C.
All other provisions contained within this chapter
shall be applicable to and of full force and effect 30 days after
the date of adoption of this chapter with respect to any MCS provider
that is providing service as of the effective date of this chapter,
unless:
(1)
The MCS provider is exempted from the ordinance or
any applicable provision;
(2)
The MCS provider requests and is granted relief from
any applicable provision of the ordinance; or
(3)
The applicability of a particular provision is preempted
by the force of a superseding federal or state law, rule or regulation
in place at the time, in which case the exemption extends only to
the extent of the exemption.
E.
As a result of Subsection C of this section, the provisions of this chapter shall not be deemed to change those terms that are specifically enumerated in an existing franchise, other agreement, license or permit. Notwithstanding the preceding, this chapter in its entirety shall be of effect upon the expiration of such existing franchise, other agreement, license or permit, or when one of the following occurs:
(1)
Prior to the expiration date of a franchise, other
agreement, license or permit, the Town Board and the affected franchised
MCS provider either execute an amended franchise at the request of
the franchisee, licensee, permittee or holder of another agreement;
(2)
Both parties agree to a specific date for the expiration
of said existing franchise, other agreement, license or permit, which
in fact is prior to the expiration of the present franchise, other
agreement, license or permit expiration date;
(3)
The PSC or other superior authority, other than a
court of competent jurisdiction, permits an extension of the operating
authority to permit adequate time for the negotiation of a new or
renewed franchise, other agreement, license or permit; or
(4)
A court of competent jurisdiction orders that an existing
MCS provider become subject to all, or any part or provision, of this
chapter or finds that an MCS provider is not exempt from all, or any
part or provision, of this chapter.
F.
Notwithstanding anything to the contrary in this section,
to assure the protection of the health and safety of the public, any
and all MCS providers shall be subject to, and shall be required to
comply with, all safety and safety-related codes of the town and this
chapter at all times, regardless of the status of any current franchise,
agreement, license or permit. This shall specifically include that
latest editions of:
A.
The following MCS providers are exempted from complying
with the provisions of this chapter:
(1)
An MCS provider who is exempted from this chapter
as a result of federal or state law, including a specific rule or
regulation of the FCC or the PSC;
(2)
An MCS provider who is exempted from this chapter
as a result of an applicable FCC ruling; or
(3)
An MCS provider who is exempted from this chapter
as a result of an applicable judicial ruling, from which all subsequent
permissible appeals have been exhausted or concluded or if there is
no appeal of the ruling.
B.
It is expressly understood that an exempted MCS provider
remains exempted only as long as it meets one or more of the criteria
of this section.
C.
If exempted in accordance with any of the preceding,
a qualified MCS provider is exempt only from this chapter and is not
exempted from any other locally enforceable ordinance, law, code or
regulation. Consequently, such an exempted MCS provider shall abide
by and comply with any other applicable town, state or federal laws,
rules and regulations, including any applicable federal or state consumer
protection or customer service laws, rules and regulations.
A.
Any MCS provider affected by this chapter may file
a written petition, at any time, with the Town Board seeking relief
from one or more provisions of this chapter. An MCS provider may specifically
request exemption or relief from or delay in implementation (but as
to the petitioning MCS provider only) of one or more provisions of
this chapter. Also, the MCS provider may request that a specific provision
of this chapter apply to such MCS provider for a specified or limited
length of time or duration. The petition shall set forth the relief
requested and the reason and basis thereof with such supporting information
and material as may be applicable and deemed necessary by the Town
Board to enable an informed decision.
B.
Any request submitted in accordance with this section
that does not contain a clearly articulated explanation or rationale
for each item or matter being requested, individually, shall be deemed
incomplete and returned to the petitioner without action.
C.
In order to receive relief from one or more of the
provisions of this chapter, an MCS provider must satisfactorily demonstrate
to the Town Board that at least one of the following facts exist:
(1)
The provision and/or requirement is expressly prohibited
by federal law, the FCC or state law, rule or regulation, including
any specific rule or regulation of the PSC;
(2)
Where applicable, that the provision in question negatively
and materially affects the petitioner or creates an insurmountable
competitive disadvantage not permitted or contemplated under federal
or state law, or is in substantial conflict with an expressed right
that is specifically noted in an existing franchise, other agreement,
license or permit (but only for the term of the existing franchise,
other agreement, license or permit). This provision specifically covers
situations where an MCS provider classified as a cable operator seeks
and is granted modification of an existing franchise, other agreement,
license or permit under Section 625 of the Cable Act (codified at
47 U.S.C. § 545);
(3)
That compliance with a particular provision and/or
requirement will be commercially impracticable for an MCS provider;
(4)
That one or more time frames listed in this chapter
are either impossible to meet or are impracticable;
(5)
That the MCS provider has its own policy which the
Town Board deems comparable to, or in excess of, any provision and/or
requirement from which the MCS provider seeks relief; or
(6)
That the health, safety and welfare and the interests
of the town and the public otherwise warrant the granting of such
relief or will not be adversely affected.
D.
The Town Board shall be the sole determiner of whether
an MCS policy is comparable to or exceeds a provision in this chapter.
E.
As an alternative to seeking an exemption or requesting
relief an MCS provider may petition the Town Board for clarification
concerning the precise intent and effect that one or more provisions
or sections of this chapter have on the petitioning MCS provider.
F.
In those instances where the Town Board grants an
exemption or relief to an MCS provider, or deems an MCS provider's
operational policy to be comparable to a local law provision, then
the franchise, other agreement, license or permit (whether initial,
existing or renewal) shall be amended within 60 days to reflect the
exact extent of such exemption and/or relief. Further, it shall be
the responsibility of the MCS provider to include with its request
a proposed resolution of amendment.
G.
It should be specifically noted that the benefit of
such exemption, relief, clarification or comparable policy extends
only to the instant MCS provider granted such exemption, relief, clarification
or comparable policy. Consequently, in the case of a transfer, assignment,
change of control or sale of the system to an entity without a record
of performance in the town, the proposed transferee, assignee, controlling
entity or buyer may, if required by the Town Board, be required to
petition separately for such relief, clarification, exemption or comparable
policy substitution. For purposes of clarification, this shall mean
that unlike certain other amendments to the franchise, other agreement,
license or permit as may be required by law, there shall be no automatic
transfer of any exemption, relief, clarification or comparable policy
to a transferee of a franchise, other agreement, license or permit
or a new owner of a multichannel system.
H.
Any MCS provider who requests relief or exemption
from any portion of this chapter may be required to reimburse the
town for the actual, verifiable cost of processing and analyzing such
request, including but not limited to a request for a comparable policy
substitution.
I.
The requirement to reimburse the town, pursuant to Subsection H of this section, shall not apply to any request for amendment of a franchise, other agreement, license or permit whereby the petitioner will not realize a financial benefit or where the granting of the request will eliminate an impermissible competitive disadvantage.
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 Town Board
on any one or more occasions to seek, or insist upon, prompt compliance
with such requirements or provisions.
A.
Any MCS provider, its assignee or transferee shall be subject to, and expected to comply with all applicable local law and/or resolutions now or hereafter adopted and in effect within the town, including this chapter, to the extent that said MCS provider has not received an exemption or relief from said Local Law(s) and/or resolution(s) pursuant to § 195-8 of this chapter.
B.
Any MCS provider and 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 the PSC) now or
hereafter in existence. However, if the town amends this chapter,
and the amendment of the local law would have the effect of either
unilaterally requiring the investment of substantial additional capital
by the MCS provider or unilaterally changing the process for default
and/or revocation of an MCS provider's franchise, other agreement,
license or permit, then such amendment of this chapter shall have
no effect on the affected MCS provider until the expiration of the
franchise agreement, other agreement, license or permit or the grant
of a new or renewed franchise, other agreement, license or permit.
C.
Any MCS provider, its assignee or transferee shall
be subject to all lawful exercise of the town's police power, without
limitation of any kind, except than as may be limited by applicable
state or federal law.
D.
With respect to future local laws and/or resolutions
noted in this section, nothing contained herein shall prevent 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 and/or resolutions.
A.
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, then the federal or
state rule, regulation or law (including any specific and applicable
rule or regulation of the PSC) shall not only supersede the effect
of the applicable provision of this chapter but shall also control
in any local application, unless such federal or state rule, regulation
or law (including any specific and applicable rule or regulation of
the PSC) does not preempt, supersede or make invalid the inconsistency.
B.
Subsection A of this section 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 the applicable provision of this chapter but shall also control in any local application, unless such federal or state judicial decision does not preempt, supersede, or make invalid the inconsistency.
A.
Where there is a conflict (actual or apparent) between this chapter and a subsequent franchise, other agreement, license or permit, in whole or in part, the local law shall control and prevail, unless judicially determined to be invalid, unenforceable, or unconstitutional by a court of competent jurisdiction or unless the provisions of Subsection B of this section apply to the MCS provider and its franchise, other agreement, license or permit.
B.
Where a franchised MCS provider receives an exemption,
relief or clarification from one or more provisions or sections of
this chapter, or has one or more of its policies deemed comparable
to a provision contained in this chapter, the franchise, other agreement,
license or permit shall specifically note such exemption, relief,
clarification or comparable policy. As a result, to the extent that
such an exemption, relief, clarification or comparable policy is both
contained in a franchise, other agreement, license or permit and is
inconsistent with a provision contained in this chapter, then the
specifically noted exemption, relief, clarification or comparable
policy language contained in the franchise, other agreement, license
or permit shall control, but only to the extent specifically noted
in the franchise, other agreement, license or permit.
C.
Notwithstanding Subsection B of this section, any grant of exemption, relief, clarification or comparable policy shall be for the sole benefit of the owner and operator of the multichannel system as of the date of the grant of exemption, relief, clarification or comparable policy. Specifically, such grant shall not be deemed to be, nor shall it be, automatically transferred along with any approved transfer or change in ownership or change in control of a franchise, other agreement, license or permit. Any transfer of exemption, relief, clarification or comparable policy shall always require a separate and formal act of approval by Town Board.
A.
To the extent permitted by state and local law, including
applicable provisions of the PSC regulations, the Town Board reserves
the authority to institute a schedule of fines and/or penalties for
violations of this chapter. Where appropriate and/or applicable, violations
of this chapter shall be handled in the manner prescribed by either
local or state law, including any applicable provision of the PSC.
B.
In instances where fines and/or penalties as set forth in § 195-126 of this chapter entitled "Fines and/or Penalties," are applicable for a breach or violation of this chapter or a franchise, other agreement, license or permit, then such fines and/or penalties shall operate as a separate and independent remedy for the town.
C.
Notwithstanding the other provisions in this section,
an MCS provider shall not be subject to such fines and/or penalties
in instances of force majeure (as described elsewhere in this chapter)
or for a technical violation of this chapter or, where applicable,
a breach of a franchise, other agreement, license or permit, where
such violation or breach is of no or of diminimus effect on the town
or the public, as determined solely by the Town Board.
D.
Notwithstanding the other provisions in this section,
an MCS provider holding a franchise agreement, other agreement, license
or permit shall be subject to possible default and/or revocation for
cause as set forth in this chapter.
Notwithstanding the provisions contained in § 195-14 of this chapter, an MCS provider shall not be subject to penalties, fines, forfeitures or (where applicable) revocation of a franchise, other agreement, license or permit for a technical violation of this chapter or (where applicable) a technical breach of a franchise, other agreement, license or permit. For purposes of this chapter, technical violations or breaches include the following:
A.
Instances, or in matters where a violation of this
chapter or, where applicable, a franchise, other agreement, license
or permit by an MCS provider, was a good faith error that resulted
in no or diminimus negative impact on the residents or subscribers
within the town or on the town itself; or
B.
Instances or circumstances that are reasonably beyond
the control of an MCS provider, including force majeure situations,
and prevent an MCS provider from complying with this chapter or, where,
applicable, the franchise, other agreement, license or permit.
A.
Notwithstanding the other provisions of this chapter,
an MCS provider shall not be held in violation, material breach, default
or noncompliance of this chapter or a franchise, other agreement,
license or permit, nor suffer any penalty relating thereto, including,
where applicable, termination, cancellation or revocation of a franchise,
other agreement, license or permit and/or license where such violation,
breach, default or noncompliance occurred and/or was caused by a natural
disaster such as an earthquake, flood, tidal wave, hurricane or similar
devastating act of nature, or any other event that is reasonably beyond
an MCS provider's ability to anticipate and control that is of a devastating
nature or effect. Force majeure also covers strikes, riots, wars,
and armed insurrections, as well as work delays caused by waiting
for utility providers to service or monitor their own utility poles
on which an MCS provider's cable and/or equipment is attached as such
may be necessary for the MCS provider to comply with this chapter.
B.
Notwithstanding Subsection A of this section, and even in the case of a force majeure situation, a customer or subscriber may be entitled to a refund or credit if the customer or subscriber sustains a multichannel service outage for a period of time that is in excess of that permitted under the provisions of this chapter.
A.
Both the town and each MCS provider shall provide
the other party with the name and address of the individual or entity
designated to receive notices, filings, reports, records, documents,
orders and other correspondence. All of the preceding shall be delivered
to each party by certified mail, return receipt requested, or personal
service with a signed receipt of delivery, or overnight delivery with
receipt verification. By mutual agreement filings, reports, records,
documents and other correspondence may be delivered by any permissible
means, including but not limited to facsimile transmission (faxing);
personal service; or overnight mail or package delivery, so long as
proof of delivery is obtained. 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.
B.
If the MCS provider is required to obtain and maintain
a franchise, other agreement, license or permit, then the designation
of such contact person for notice and notification purposes shall
also be contained within a franchise, other agreement, license or
permit.
A.
To the extent permitted by federal and/or state law,
including any applicable provisions of the PSC, an MCS provider shall
at all times defend, indemnify, protect, save harmless and exempt
the town, the Town Board, the Supervisor, 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 town by an 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 town.
B.
The town, the Town Board and the Supervisor specifically
reserve the right to retain counsel of their own choice, at their
own expense.
C.
If an MCS provider obtains counsel for the town, the
Town Board and/or the Supervisor, then any one of them shall have
the right to approve such counsel. However, neither the town, the
Town Board nor the Supervisor shall unreasonably withhold its approval
of counsel.
D.
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 town's, the Town
Board's or Supervisor's approval, counsel of its own choice, at its
own expense.
A.
An MCS provider shall secure and maintain, for as
long as it provides multichannel service to subscribers, public liability,
property damage insurance and umbrella coverage in at least the following
amounts:
B.
An MCS provider's public and personal liability and
property damage insurance policy shall specifically include the town,
the Town Board and the Supervisor as additional named insureds.
C.
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 and which
has one of the three highest or best ratings from the Alfred M. Best
Company, or an equally reputable rating service.
D.
The public liability and property damage insurance
policy shall contain an endorsement obligating the insurance company
to furnish the Town Board with at least 30 days' written notice in
advance of the cancellation of the insurance.
E.
Renewal or replacement policies or certificates shall
be delivered to the Town Board at least 15 days before the expiration
of the insurance which such policies are to renew or replace.
F.
Before an MCS provider provides multichannel service
to subscribers, the MCS provider shall deliver the policies or certificates
representing the insurance to the Town Board, and each policy or certificate
delivered shall be accompanied by evidence of payment of the full
premium thereon.
G.
If the state permits an MCS provider to self-insure,
then the MCS provider may exercise its right to self-insure, so as
long as the minimum amounts of insurance coverage outlined in this
section are met and maintained for the entire period that the affected
MCS provider is self-insured and the MCS provider can demonstrate
to the satisfaction of the Town Board that it can demonstrate the
financial ability to pay up to the maximum amount per category.
A.
An MCS provider shall furnish to the town a performance
bond or security bond executed by a surety licensed to do business
in the state in an amount totaling at least $25,000. The purpose of
the performance bond is to ensure performance of any requirements
of this chapter by an MCS provider, or imposed on an MCS provider
by virtue of its franchise, other agreement, license or permit. Further,
the purpose is to guarantee that should the MCS provider not fulfill
any obligations imposed by this chapter or, where applicable, a franchise,
other agreement, license or permit, then the surety will make whole
any monetary losses or damages incurred by the town, up to the monetary
limits of the bond or other security. If the town draws on a performance
bond or cash deposit as a result of an MCS provider's failure to timely
discharge its obligations, then the MCS provider shall be required
to replenish the performance bond or security to the minimal level
required by the Town Board within 30 days of the draw down.
B.
In addition to the performance bond referenced in Subsection A of this section, an MCS provider shall furnish to the town a construction/completion bond, prior to the time it commences any construction, upgrade, rebuild or repair/maintenance project that has a capital construction cost or outlay exceeding $100,000 in cost. In determining the cost, the cost of the entire project shall be used and an MCS provider may not avoid the requirements of this section by separating or segregating the project into smaller component parts or portions, such as listing geographical sections of the town as separate projects, whether or not they are to be done simultaneously or consecutively. The amount of the bond shall equal at least 75% of the projected capital construction cost or outlay.
C.
The construction/completion bond and/or security bond
shall specifically guarantee that an MCS provider will in a timely
manner abide by its construction, upgrade, rebuild or repair/maintenance
schedule for the multichannel system as approved by the Town Board
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 Town Board and MCS provider.
D.
If the Town Board draws on a performance or completion
bond or cash deposit or other form of security as may be permitted
by the town as a result of an MCS provider's failure to timely and
fully discharge its obligations or a failure to construct and activate
the multichannel system, or the failure to complete a multichannel
system upgrade or rebuild or repair or maintain the system as agreed
upon or as required, then the MCS provider shall be required to replenish
the completion and performance bond or security bond to the minimal
level required by the Town Board within 30 days of the date of the
draw down.
E.
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 Town Board.
F.
In lieu of a performance bond and/or a construction/completion
bond, the Town Board may accept alternative forms of security, including
a written guarantee of an MCS provider pledging the full faith and
credit of the affected MCS provider's ultimate parent, if applicable,
should there be a breach in a material franchise, other agreement,
license or permit term or failure to meet any construction schedule.
A.
Notwithstanding the insurance and bonding requirements
contained elsewhere in this chapter, an MCS provider shall obtain
and maintain any other types of insurance and bonds, including but
not limited to workers' compensation insurance and automobile liability
insurance, that are mandated by either federal or state law, including
any applicable provision of the PSC.
B.
Where applicable and required, such MCS providers
shall maintain such insurance and/or bonds in at least the minimal
amounts, and according to the minimal terms and provisions mandated
by either the federal or state law, including any applicable provision
of the PSC.
A.
To the extent required by federal and/or state law,
including any applicable rule or regulation of the PSC, an MCS provider
must maintain open records and reports that are subject to public
inspection by:
B.
Though not exhaustive, an MCS provider shall maintain
a public inspection file which includes, among other records:
(1)
Ownership records;
(2)
Where applicable, a list of broadcast stations that
are carried on the multichannel system as a result of federally imposed
must-carry requirements;
(3)
Commercial records for children's programming, as
required by federal law and rules;
(4)
Equal employment opportunity (EEO) data;
(5)
Testing data and records, pursuant to the FCC's rules;
and
(6)
Any records or information required by the PSC.
C.
Though not required by federal law, and if not prohibited
by state law, including any applicable rule or regulation of the PSC,
the Town Board nevertheless requires as a matter of public policy
that the MCS provider maintain the following additional records in
its public inspection file:
(1)
A current rate card detailing both rates for multichannel
and other services provided on the system and charges for installation,
remotes, converters and other like equipment, plus any late and administrative
charges or fees;
(2)
A copy of the current complaint resolution policy;
(3)
A copy of the current disconnection policy, including
both voluntary and involuntary disconnections;
(4)
A copy of the current policy regarding the issuance
of credits or rebates for loss of service, missed appointments and
refunds due upon disconnection or downgrade from prepayments; and
(5)
A copy of the current policy regarding the handling
and return of subscriber deposits.
A.
Notwithstanding any requirements contained elsewhere
in this chapter, an MCS provider shall maintain and retain such records
and reports as are necessary for the town to determine compliance
with the provisions of this chapter and to determine the MCS provider's
legal, technical, financial and character qualifications as may be
needed from time to time.
B.
On or before January 1 of each year after the effective
date of this chapter, an MCS provider shall submit to the Supervisor
a list of files, reports, records, data or other information that
the MCS provider periodically, customarily and/or regularly files
with the FCC, or any other federal or state agency because of its
status as a cable operator or a multichannel service provider, For
any other report that an MCS provider files with any other federal
or state agency, and that has a direct impact on the operation of
the MCS provider's multichannel system, then the MCS provider shall
notify the Town Board of such filing within 15 days of said filing.
Said notice shall inform the Town Board of the nature and scope of
the filing, as well as the recipient of the filing (i.e., the name,
address, department, division and phone number of the recipient).
C.
As part of any performance or compliance evaluation,
or for any legitimate matter related to the administration and enforcement
of an MCS provider's franchise, agreement, license or permit or operation
under this chapter, the Town Board may specifically request and require
that it be provided with any or all listed reports, records, data
or other information that was originally filed with the FCC, the Securities
and Exchange Commission (SEC) or any other federal or state agency.
However, unless specifically authorized by the state, an MCS provider
shall not be required to provide the Town Board with any state or
federal tax returns or any documents (inclusive of all above-referenced
categories) that are exempted under state or federal privacy laws,
including any applicable provision of the PSC and Section 631 of the
Cable Act (codified at 47 U.S.C. § 551).
D.
Notwithstanding anything to the contrary in the preceding Subsection B of this section, nothing shall limit the town's right and authority to require the provision of any information related to determining the adequacy of any payments due the town, including but not limited to franchise fee payments, rent, user fees or taxes of any kind.
E.
Notwithstanding anything to the contrary in the preceding Subsection D, the town reserves the right to require, as deemed necessary for the administration and enforcement of this chapter or a franchise, other agreement, license or permit that a franchisee or other MCS provider provide the town with copies of all applications, reports, documents, correspondence, pleadings and petitions of any kind whatsoever that relate to or have an effect on the system, the franchisee's, licensee's or permittee's ownership or operation of the multichannel system or on the franchising or regulatory authority of the town, that are submitted by or on behalf of the franchisee or other MCS provider to the FCC or any other federal or state regulatory agencies or courts having jurisdiction with respect to any matters that affect the construction, operation or regulation of a cable television system or other multichannel service system, or that affect the services provided by such a system, where such addresses issues which affect, or have the intent of affecting, the operation of the franchisee's or other MCS provider's system within the town or the town's regulatory authority. Said information shall be provided in a timely and expeditious manner and as may further be required by this chapter or a franchise agreement or other agreement license or permit, or any other lawful operating authority.
F.
Copies of such responses, decisions or any other communications
from the regulatory agencies or courts to a franchisee or other MCS
provider or its agent, including franchisee's or other MCS provider's
ultimate corporate parent, attorney or consultants, relative to its
multichannel system in the town, or the operation of the system within
the town, shall likewise be filed with the town immediately upon the
filing or receipt of such, but in no case later than 30 days after
the filing or receipt thereof.
G.
In addition to the requirements noted in the preceding
subsections 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)
A periodic gross revenue statement in the manner set
forth in this chapter;
(2)
A periodic certification, and evidence if required,
that the MCS provider is answering phones in accordance with the minimum
requirements listed in this chapter;
(3)
Evidence of the satisfactory resolution of problems
and complaints in the manner set forth in this chapter;
(4)
A copy of the outage log applicable to the system
in the town, showing all service outages of any kind and duration,
in accordance with the requirements in this chapter pertaining to
such logs;
(5)
Preventive maintenance reports in the manner set forth
in this chapter;
(6)
Where applicable, FCC Form 393 or 1200 (or equivalent)
rate worksheets;
(7)
Where applicable, FCC Form 394 (or equivalent) concerning
assignment or transfer of a franchised multichannel system classified
as a franchised cable system; and
(8)
FCC Form 395-A (or equivalent) concerning equal employment
opportunity (EEO) and fair contracting policies.
A.
An MCS provider shall keep complete and accurate books
of accounts and records of the business and operations under, and
in connection with, the operation of the system.
B.
The Town Board, or its designee, shall have the right
to require the provision of and delivery to the town offices, or the
offices of its designee, completed forms as may be required by the
town, and true and complete copies of any records or at the discretion
of the Town Board, attested and certified summaries of information
in the form and format determined by the Town Board, that may be needed
for the diligent administration and enforcement of this chapter and/or
the franchise, other agreement, license or permit, on five days' written
notice and request, unless the retention of such records is specifically
exempted by the Town Board or the time for review of such records
is extended by the town. It shall be the responsibility of the MCS
provider to retain and maintain such records and information so as
to enable their provision in a timely manner as required by this chapter.
C.
The town 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
or, at the discretion of the Town Board, attested and certified summaries
of information in the form and format determined by the Town Board.
If, after a financial audit, it is determined that the MCS provider
has underpaid amounts owed to the town by 1% of the amount owed or
more, then the town may require the MCS provider to reimburse the
town for the actual cost of the audit or review. Absent fraud, any
audit by an independent certified public accountant shall be binding
on all parties concerned.
D.
A false entry into the books and/or records of an
MCS provider of a material fact or amount made by an MCS provider
or any employee or contractor of the MCS provider shall constitute
a material violation of this chapter and, at the discretion of Town
Board, subject the MCS provider to termination and revocation of its
franchise, other agreement, license or permit and any and all damages
and penalties, both civil and criminal, as permitted under law. However,
an erroneous entry, made in good faith and of diminimus negative effect,
shall be deemed a technical violation or breach and shall not constitute
a material violation of this chapter nor subject an MCS provider to
any damages or penalties of any kind.
E.
An MCS provider shall keep complete and accurate books
and records of the key aspects of the multichannel system's operation
at the local office for at least the preceding three years, in such
a manner that all matters pertaining to the town can be easily produced
and/or verified at the request of the town. Also, the MCS provider
shall keep at its local office and shall make available and provide
upon request by the town, any other applicable records and information
that may be required by any other federal or state agency, including
the PSC, that has jurisdiction over one or more classes of MCS providers
as relate to the operation of the system, including financial matters.
Notwithstanding the preceding, no MCS provider shall be required to
provide information that is by law specifically deemed confidential
or proprietary.
F.
An MCS provider shall thereafter keep and maintain
the records in a place and manner so that it can produce and provide
them to the town as required under this chapter.
G.
Failure to comply with the provisions of this section shall subject the MCS provider to fines or penalties as set forth in § 195-126 of this chapter.
H.
To the extent permitted by applicable state and federal
law, the town shall not use any information provided by an MCS provider
in a manner that would reasonably be deemed to provide a competitive
advantage to another MCS provider or that would reasonably be deemed
place the MCS provider at a competitive disadvantage.
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 consumer protection requirements.
A.
At least annually, an MCS provider shall inform all
subscribers of at least the following billing practices, which must
be in accordance with this chapter:
(1)
Billing procedures (including payments necessary to
avoid discontinuance of service);
(2)
Payment due and delinquent dates;
(3)
Amount or percentage of any administrative fees and/or
late charges, if any;
(4)
Disconnection/reconnection policy;
(5)
Advance billing options;
(6)
Resolution procedures for billing disputes, complaints
and inquiries;
(7)
Refund/credit policy for service interruptions or
unsolicited service;
(8)
Current service rates in a detailed and understandable
format;
(9)
Amount of charges for installation or relocation of
an MCS provider's facilities and/or equipment;
(10)
Current schedule and explanation for any billed
charges or other non-regularly occurring fees invoiced to subscribers
(including service call charges or trip charges); and
(11)
Any discounts generally available, such as those
offered to subscribers or purchasers of certain services or groups
or combinations of services.
B.
Whenever there is a change in an MCS provider's billing
practices or payment requirements, all subscribers must be notified,
in writing, at least 30 days prior to such billing practices or payment
requirements becoming effective.
C.
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 change or adjustment, then the subscriber's
liability for service received after the effective date of such changes,
until the cancellation or reduction of service, shall be determined
in accordance with the rates or charges, if any, in effect prior to
such change.
D.
The annual notification required in this section may
be delivered to a subscriber by any means that reasonably assures
that the subscriber actually receives the notification and wherein
the notice is plainly discernible and, if provided in writing, shall
be of at least ten-point type and that clearly indicates that it is
a notice of importance that affects rates or charges.
A.
An MCS provider, specifically including, but not necessarily
limited to, any MCS provider classified as a cable operator, shall,
unless exempted by federal law, adhere to and comply with the requirements
of this chapter and all applicable state laws, rules and regulations,
including those of the PSC, concerning billing credits or refunds
due to service outages. For other MCS providers, a subscriber shall
receive, on the next monthly bill or periodic invoice for service,
a pro-rata credit (or where applicable a refund) for any service outage
exceeding four hours in duration.
B.
Any credit due a subscriber under Subsection A of this section shall be for a minimum of 24 hours of service and shall be provided and shown as a credit on the next bill or invoice.
C.
Any subscriber that is owed a credit under Subsection A of this section, and that voluntarily disconnects service prior to the issuance of the next bill or invoice, shall be credited for the appropriate amount on the final bill or invoice.
D.
As subscribers should not be required to pay for service
which is not received, unless preempted by FCC or PSC rules, force
majeure situations do not relieve an MCS provider from providing credits
or refunds for service outages that exceed the standards set forth
in this chapter.
E.
In the case of a charge for unsolicited service that
is reported to the MCS provider, to the extent permitted by FCC and
PSC rules, an MCS provider shall provide a subscriber with an adjustment
or billing credit on the next bill or invoice for service. Moreover,
in such a case, an MCS provider shall not consider a subscriber delinquent
for failure to pay for any unsolicited service.
A.
A franchisee or other MCS provider may require refundable
deposits in circumstances consistent with reasonable business practices
and applicable state law, including where such deposits are necessary
to protect equipment or to ensure payment where there is reasonable
evidence of a risk of nonpayment.
B.
Upon termination of service for any reason, subscribers
shall be entitled to receive a refund of any deposit within 30 days
of the termination or cancellation of service, subject to an offset
or credit for all outstanding obligations of the subscriber to the
franchisee or other MCS provider, including outstanding service charges,
and return of all equipment provided by the franchisee or other MCS
provider in connection with the services received by the subscriber
in suitable condition, normal wear and tear expected.
C.
A franchisee or other MCS provider that collects deposits
shall place all deposits in a separate account and shall record and
account for the collective amounts of such deposits separately. At
no time shall there be a commingling or mixing of deposit money in
accounts with any other monetary receipts.
D.
If the account for deposits is an interest-bearing
account, all interest earned shall be paid to the subscriber either
annually or upon termination of service, whichever occurs earlier.
E.
In no circumstances shall an MCS provider be permitted
to use any deposits for working capital or allow any deposits to be
used for working capital or to be used for any purpose whatsoever
other than for the intended purpose of serving as security against
loss of amounts owed or loss of or unreasonable damage to equipment
belonging to the franchisee or other MCS provider.
F.
All deposits for equipment shall be returned, with
interest if applicable under this chapter, within 30 days of the cancellation
or termination of the service or the return of the equipment for which
the deposit was made, provided that the equipment is returned in good
working order, normal wear and tear excepted, and further provided
there is no outstanding amounts owed to the MCS provider.
G.
Failure to meet the requirements of this section may,
at the discretion of the Town Board, result in fines or penalties
as set forth in Section 126 of this chapter entitled, "Fines and/or
Penalties."
A.
In those instances in which a subscriber contests
the actual amount of a bill for service or other charges, or a periodic
invoice for such, or the imposition of charge for a particular multichannel
service or technical service request, such as the installation or
upgrade of service, or the amount of an administrative fee and/or
late charge, such subscriber shall make the MCS provider aware (either
in writing or by verified verbal communication) of such contested
amount prior to the multichannel service being disconnected.
B.
No subscriber shall have service disconnected, and
no MCS provider shall disconnect such service, during the period in
which the contested rate or charge is unresolved. However, if the
matter is resolved in favor of the MCS provider, the MCS provider
may immediately, within 24 hours, disconnect the service if the subscriber
has not paid the amount owed.
C.
An MCS provider shall not consider a subscriber delinquent
for failure to pay a charge for unsolicited service during the period
the amount or charge is contested.
D.
In light of the provisions contained in this section,
an MCS provider shall make available an escrow account for subscribers
with billing disputes and shall place all contested amounts in said
escrow account pending the resolution of the dispute.
E.
In those instances where a subscriber has notified
an MCS provider of a particular billing dispute, the subscriber may
deposit, or request that MCS provider deposit, or place the full amount
contested, into the escrow account set forth in the preceding subsection
until the matter is either administratively or judicially resolved.
In cases of multiple billing disputes, then the subscriber must deposit
the full amount of each contested charge into an MCS provider escrow
account, or request that the MCS provider do so.
F.
Where, prior to disconnection, a subscriber deposits
the full amount of the contested charge into an MCS provider escrow
account, the MCS provider may not then disconnect the subscriber during
the pendancy of the billing dispute. Moreover, after the subscriber
deposits the full amount of the contested charge into the escrow account,
the subscriber shall not be liable for any further administrative
fees and/or late charges or other penalties that could be connected
with the particular contested charge in question until the matter
is resolved, and then only if the matter is resolved in favor of the
MCS provider.
G.
Where the subscriber preserves his or her right to
continued service by placing the full amount of the contested charge
in an escrow account, the subscriber may thereafter subscribe to additional
multichannel services, such as premium or pay-per-view events, so
long as the subscriber adheres to any and all MCS provider-imposed
rules, so long as such rules are applicable to subscribers in general.
H.
Upon final resolution of the billing dispute, the
money in the escrow account, together with interest, if applicable,
shall promptly be distributed to the individual parties in the amount
noted by any settlement agreement or administrative or judicial order
or finding.
I.
These above-described provisions shall be in addition
and supplemental to any provisions contained in the MCS provider's
complaint/inquiry resolution policy.
A.
In order to facilitate the needs of the local customers
or subscribers, an MCS provider subject to the provisions of this
section shall maintain a customer or subscriber service office which
is:
B.
The local service office shall be open at least 40
hours per week, exclusive of holidays.
C.
Within the 40 hours per week that the local service
office must be open, an MCS provider subject to the provisions of
this section shall be required to provide staffed office hours either
two evenings a week until 7:00 p.m. or four hours on Saturday, if
not prohibited by rule or regulation of the PSC. No MCS provider shall
be required to keep the office open and staffed both on evenings and
on Saturday.
D.
The local service office shall have a staff of adequate
size and that is trained and knowledgeable to handle subscriber inquiries,
orders, requests and complaints, in order to handle the vast majority
of customer or subscriber inquiries, specifically including but not
limited to billing inquiries, refunds, credits, service outages, equipment
service and repair, payment of bills and other charges and inquiries
from disabled or physically impaired customers or subscribers in accordance
with this chapter.
E.
An MCS provider subject to the provisions of this
section may install, at the local service office, an after hours depository
in order to collect invoice payments and receive written requests
for service appointments, including installations, connections, disconnections
and complaints after scheduled office hours.
F.
An MCS provider subject to the provisions of this
section may install an automated (audio or video) customer or subscriber
assistance device which can handle various types of customer or subscriber
inquiries, so long as the caller has the option and ability to speak
with a live representative of the MCS provider at all times during
which the office is, or is required to be, open and staffed.
G.
Where not prohibited by the PSC, an MCS provider subject
to the provisions of this section may install an interactive customer
or subscriber assistance device or contract service which is capable
of handling various types of customer or subscriber inquiries.
H.
If permitted by the PSC, an MCS provider subject to
the provisions of this section may contract with another business
or commercial establishment for the sole or primary purpose of collecting
subscriber payments and distributing MCS provider equipment and, where
applicable, authorized promotional, billing and/or subscriber information
and literature.
I.
An MCS provider subject to the provisions of this
section shall maintain sufficient toll-free and/or local telephone
numbers to accommodate both normal business inquiries, including,
but not limited to billing questions and complaints, requests for
installation or disconnection of service and changes in levels or
categories or types of service, and respond to and facilitate calls
concerning the repair of equipment, service outages and the interruption
of service. During any hours that the customer or subscriber service
office is open, the MCS provider must have, or make available, in-house
personnel to adequately address a customer's or subscriber's inquiries.
During other hours a telephone may be manned by an automatic answering
device, provided that the use of an answering device or answering
service results in an initial phone response by the MCS provider within
90 minutes of the receipt of a call reporting a service interruption
or loss of service, in order to at least determine the extent of the
outage, interruption of service or other customer or subscriber-related
concern.
J.
An MCS provider subject to the provisions of this
section shall have adequate staff and/or extension phone lines (except
during special marketing promotion periods, peak billing cycles and
service outages affecting 25 or more subscribers) in order to handle
all calls and inquiries directed to the general information number,
in accordance with this chapter.
K.
An MCS provider subject to the provisions of this
section shall at all times have sufficient technical and repair staff
to operate and maintain the system in compliance with the provisions
of this chapter, including the provisions regarding the repair and
restoration of service, as well as all applicable state and federal
rules and regulations.
L.
An MCS provider subject to the provisions of this
section shall at all times have sufficient repair equipment and replacement
parts to repair and restore service in accordance with the provisions
of this chapter.
A.
An MCS provider shall not, as to rules, regulations,
rates, charges, provision of service or use of an MCS 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 race, creed, color, sex, national origin, handicap,
religious affiliation or location of residence.
B.
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 cable subscribers based
on the income of the residents of the local area in which such group
resides, nor shall any other MCS provider deny multichannel service
for such reasons.
C.
Subsection A of this section does not prohibit an MCS provider from denying service based on the location of a residence or business, if that residence or business is outside the parameters for line extension, including any cost-sharing formula, as may be detailed in a franchise, other agreement, license or permit (if applicable).
D.
Subsection A of this section also does not prohibit an MCS provider from denying service to a subscriber who is delinquent in the payment of any periodic service or special service bill, so long as the requirements for billing disputes and disconnection have been satisfied in accordance with this chapter.
E.
Subsection A of this section also does not prohibit an MCS provider from making agreements or entering into multichannel service agreements with multiple dwelling unit owners, including but not limited to owners of apartments, hotels, motels and mobile parks, to provide multichannel service under a bulk billing or other type of arrangement, subject to applicable federal and state law and rule.
A.
If at any time an MCS provider, in furtherance of
its right to construct, operate and maintain a multichannel system,
shall disturb the yard, residence or other real or personal property
of a subscriber, such MCS provider shall ensure that the subscriber's
yard, residence or other personal property is returned, replaced and/or
restored to a condition comparable to that which existed prior to
the commencement of the work.
B.
The costs associated with both the disturbance and
the return, replacement and/or restoration shall be borne solely by
the MCS provider. This subsection also requires the MCS provider to
reimburse a subscriber or 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 or damage to a subscriber
or property owner's property.
A.
Except in cases of force majeure, or an appointment scheduled with the mutual consent of a subscriber, an MCS provider classified as a cable operator, and any MCS provider not exempted from compliance with this section by federal law or rule, shall respond to the service inquiries, requests and complaints of subscribers within the time schedules detailed in Subsections D through G of this section. The MCS provider shall be considered in compliance with this section if the standards of service outlined in Subsections D through G are met or exceeded at least 98% of the time as measured over any three consecutive calendar months. Conversely, the MCS provider shall be considered in noncompliance, except for force majeure situations or mutually agreed upon scheduled appointments, if the standards of service outlined in Subsections D through G of this section are not met or exceeded at least 98% of the time over any three consecutive calendar months.
B.
For extenuating circumstances in which an MCS provider cannot meet the response and service restoration requirements noted in Subsections D through G of this section, such MCS provider shall comply with the provisions of this chapter, and any applicable rules of the PSC, and as requested submit all documentation of progress towards restoration.
C.
Except in emergency situations, an MCS provider shall
inform the subscriber that there is a choice as to whether the service
call is scheduled for the morning (8:00 a.m. to 12:00 noon), afternoon
(12:00 noon to 4:00 p.m.) or evening (4:00 p.m. to 8:00 p.m. or later)
hours. If the service call has to be canceled or rescheduled by the
MCS provider, then the MCS provider shall make every reasonable effort
to notify the customer or subscriber as soon as possible prior to
the date and time of the appointment and shall reschedule the service
call for a time convenient to the customer or subscriber within the
MCS provider's normal working hours and, if desired by the subscriber,
within 24 hours of the canceled appointment, so long as the appointment
is for a normal work day.
D.
In the case of a report or complaint of a loss of
service, such being defined as a "blank" or "no picture" or "no service"
situation on either the lowest level of service or all levels of service,
the MCS provider shall treat such report as a top priority and respond
before starting any other job or function, except for a critical job
that would jeopardize the functioning of the remaining portion of
the system. In no case shall the response be later than six hours
after the time the report or complaint is received, so long as it
is received during a normal work day and two hours prior to the end
of the work day. The MCS provider shall make its best effort to restore
service as quickly as is possible, but in no event later than the
soonest possible time, including when such a report or complaint is
received after normal working hours. In the event of an after hours
report or complaint of a loss of service as defined under this subsection
from two or more subscribers within one block of each other, the MCS
provider shall respond to and make reasonable effort to restore service
within two hours of the time the report or complaint was received
or, in extenuating circumstances, as quickly as is possible. At no
time where it is found that a loss of service has occurred shall an
MCS provider's staff that responds to a report or complaint of a loss
of service leave or abandon the problem or work on any other matter
until service is restored.
E.
In the case of a loss of service or a blank or no-picture
situation of any given level of subscription or billing or service
beyond the basic or lowest level of service, but not involving the
basic or lowest level of service (except for pay-per-view events),
an MCS provider shall respond to and make repairs as are necessary
to return and restore the multichannel service within 24 hours from
the time the MCS provider first received notification of the service
interruption blank or no-picture situation. Notwithstanding the preceding,
if reasonably possible an MCS provider shall make its best effort
to restore the affected service the same day.
F.
In the case of a signal or service interruption or a diminution of service as defined in § 195-4 of this chapter, an MCS provider shall make its best effort to respond to and remedy the problem the same day, but in no case later than one working day from the time the MCS provider first received notification of the signal or service interruption or diminution of service.
G.
In the case of a defective, improperly or nonoperating
piece of equipment, an MCS provider shall make its best effort to
respond to and remedy the problem the same day, but in no case will
the response be later than one working day from the time the MCS provider
first received notification. Moreover, absent a subsequent emergency,
the MCS provider shall complete repairs as are necessary to correct
the problem within 36 hours from the time the MCS provider first received
notification of the defective, improperly or nonoperating piece of
equipment.
H.
In the case of a dispute concerning the precise time
that the MCS provider received notification of a situation described
in this section, or of the precise circumstances surrounding the MCS
provider receiving notification, or whether notification was received
at all, the Town Board reserves the right and authority to dispositively
settle such a dispute.
A.
To the extent permitted by state law, including any
applicable rule of the PSC, a subscriber shall not be considered delinquent
in payment until at least the following have occurred:
B.
Before disconnection of a subscriber's multichannel
service takes place, either physically or electronically, the subscriber
must in fact be delinquent in payment for multichannel service as
defined by this chapter and the following must occur:
(1)
At least 24 hours have elapsed after a separate written
notice of impending disconnection has been served upon the subscriber
or deposited at his or her residence;
(2)
At least 72 hours have elapsed after the mailing of
a separate written notice of impending disconnection to the subscriber
as determined by the postmark; or
(3)
At least 24 hours have elapsed after the subscriber
has either signed for or refused to accept a separate written notice
of impending disconnection.
D.
Disconnection of service must occur both on a normal
service day and within normal business hours of an MCS provider, unless
the subscriber is given the opportunity to pay the full amount of
the past due account in accordance with the provisions of this chapter.
E.
An MCS provider who physically retrieves its equipment
from a subscriber, including but not limited to converters, remote
control units, cable modems and digital audio tuners, 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.
Where an MCS provider imposes an administrative fee
for a payment delinquency it shall nevertheless be deemed and treated
as a late charge and may not be any more than the state or PSC allows
for late charges, if the state or PSC has a provision covering the
maximum permitted late charges. If the state or PSC is silent on such
a late charge, then the maximum permitted late charge and/or administrative
fee shall be a simple 1 1/2% of the payment delinquency.
G.
To the extent permitted by state law, including any
applicable PSC rule or regulation, a subscriber shall not be considered
delinquent in such case where he or she has notified the MCS provider
of a billing dispute and/or contested charge prior to disconnection
and the subscriber has allowed the full amount of the contested charge
to be placed in an MCS provider's escrow account by the MCS provider
or made the appropriate deposit into the MCS provider's escrow account.
Moreover, if a late charge and/or administrative charge is assessed
prior to notification of the contested charge, or is in fact the contested
charge, then such late charge and/or administrative fee may not be
greater than the state-permitted maximum, or a simple 1 1/2%
if there is no state-imposed or PSC-imposed maximum.
H.
Receipt of a bad check or other negotiable instrument
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.
I.
An MCS provider may add a reasonable collection charge
to the subscriber's bill if the applicable provisions of this chapter,
and any applicable PSC regulation, are followed, up to any maximum
amount permitted by state law or rule .
J.
Any refund due a subscriber after a disconnection
pursuant to this section shall be made within 60 days of the disconnection
for nonpayment.
A.
A subscriber may request, at any time, that a particular
service, level of service, service tier, menu-driven program or service,
premium channel, informational service or the entire multichannel
service be disconnected, with no penalty of any kind whatsoever.
B.
Unless prohibited by the Cable Act, FCC rule or state
law, including any applicable rule or regulation of the PSC, a subscriber
may request a downgrade from a particular level of service to a lower
or less comprehensive or expensive level of service. To the extent
that a subscriber requests a downgrade from an MCS provider classified
as a cable operator, then such MCS provider shall follow the rules
and regulations of the PSC, if any, so long as such are not inconsistent
with applicable federal law. In the event that there are no PSC rules
governing this matter, or there are no PSC or FCC rules regulating
or governing non-cable multichannel service providers, there shall
be no charge for downgrading disconnecting service, unless the town's
authority to enforce this subsection is preempted or prohibited by
federal law or rule.
C.
A subscriber's obligation to pay for any service for
which he or she has requested disconnection or a downgrade shall cease
within 24 hours from the date of the request. The subscriber shall
not be required to pay for, nor shall he or she be billed for, service
that was delivered more than 24 hours after the date of the request.
D.
For a service, level of service, service tier, a la
carte or menu-driven service, premium channel, informational service
or other communications service outside the scope of Title II of the
1934 Communications Act, as amended by the 1996 Telecommunications
Act, which is voluntarily disconnected, a subscriber shall be required
to pay only a pro-rata share of the monthly rate for such service,
level of service, service tier, a la carte or menu-driven service,
premium channel, informational service or other communications service
for the month in which the request was made, based upon the number
of days of that month prior to the request.
E.
If, however, an MCS provider's equipment is, or has
been, damaged by a subscriber prior to such disconnection, then the
MCS provider may charge the subscriber the actual cost of repairing
such damage, but no more than the actual replacement cost to the MCS
provider, provided that the MCS provider notifies the subscriber of
the damage at the time of the disconnection or downgrade. 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, or if the procedures in this subsection
are not followed.
F.
Once a one-time airing of a program or event starts,
such as a pay-per-view event, which was affirmatively ordered by the
subscriber, but only if it was affirmatively ordered, should the customer
or subscriber then request a cancellation, the MCS provider may collect
the full advertised or quoted rate.
G.
Any refund due a subscriber after a voluntary disconnection
and/or downgrade shall be made within 60 days after such disconnection
or downgrade.
H.
In no event shall this section be viewed as abridging
or otherwise limiting the rights and remedies afforded the subscriber
by the complaint/inquiry resolution process outlined in this chapter.
A.
Except for normal sales and sales retention efforts,
no MCS provider shall engage in any activity or practice which is
designed to prohibit or inhibit, or has the effect of inhibiting or
prohibiting, a subscriber from:
B.
No MCS provider shall engage in any activity or practice
which has the effect of acting as a penalty or negative disincentive
for a subscriber:
C.
With respect to Subsection B of this section, the following practices are prohibited, unless the MCS provider can justify the need, cost and/or rationale to the town to the town's satisfaction:
(1)
To the extent not inconsistent with the Cable Act
and any PSC rules, disconnection and/or downgrade charges that are
in excess of the actual, verifiable costs incurred by the affected
MCS provider in connection with the disconnection and/or downgrade;
(2)
The imposition of a disconnection and/or downgrade
charge or premium that is unrelated to the actual, verifiable costs
incurred by the affected MCS provider in connection with the disconnection
and/or downgrade;
(3)
The imposition on the subscriber by the affected MCS
provider of a discriminatory or punitive return charge for the return
of equipment beyond the actual replacement cost to that MCS provider;
or
(4)
The requirement that a subscriber enter into a service
contract which imposes penalties or cost-prohibitive charges if the
contract is canceled in order to receive service from another MCS
provider.
A.
MCS providers classified as cable operators shall
be expected to comply with, and abide by, any and all applicable state-imposed
rules and regulations, as well as any applicable rules and regulations
of the PSC.
B.
Though not exhaustive, MCS providers subject to this
section shall comply with, and abide by, the following:
(1)
Provision of the drop and the basic or the lowest
level of service at no cost to all town-owned and/or occupied buildings
or offices as requested by the town, any school or educational institution
within the MCS provider's service area in the town, provided that
service is available within a reasonable distance from the school
or institution requesting service, such being defined as not requiring
the placement of any active electronic or amplification equipment
to provide adequate signal strength to the point-of-entry to the school
or educational institution;
(2)
Submission of a schedule of all terms and conditions
of service in the form and format prescribed by the town;
(3)
Annual submission of the required annual notice that
informs subscribers of:
(a)
Procedures needed to file or make a complaint
and request rebates, credits or refunds;
(b)
Federally required subscriber privacy notification;
and
(c)
The address and phone number of the appropriate
division or department of the PSC and of the town for purposes of
registering a complaint or requesting assistance; and
(4)
Keeping a log or record, for three years, of all complaints
received regarding but not limited to the quality of service, rates,
programming, equipment malfunctions, billing procedures and other
matters of subscriber dissatisfaction, including treatment by subscribers.
An MCS provider shall abide by any and all subscriber
privacy rules or regulations of the federal or state government, including
any applicable rule or regulation of the PSC.
A.
The Town is hereby granted the authority to do all
things necessary and permissible to supervise, inspect and regulate
the construction, operation and maintenance of multichannel systems,
franchised or otherwise, that are subject to this chapter in whole
or in part and to implement procedures for the filing and resolution
of complaints, unless otherwise prohibited by federal or state law.
B.
The responsibility for such supervision, inspection
and regulation is retained by the Town Board which is empowered, among
other things, to adjust, settle or compromise any controversy arising
from the operations of any franchisee or other MCS provider, either
on behalf of the town or any subscriber, in accordance with the best
interests of the public and the town; provided, however, that any
person aggrieved by a decision of the town may appeal the matter for
hearing and a determination, in accordance with this chapter.
C.
The Town Board reserves the right, at all times, on
behalf of the Town or a subscriber, to accept, reject or change any
decision of the Town Board and may adjust, settle or impose a compromise
regarding any controversy arising from the operation of a franchisee
or other MCS provider or from any provision of this chapter.
D.
If an advisory committee is established by the town,
a franchisee or other MCS provider is encouraged to participate in
advisory committee meetings relating to MCS provider operations.
E.
An MCS provider is required to develop a comprehensive
complaint and inquiry resolution policy which adheres to requirements
of this chapter, and any rules or regulations promulgated hereunder,
as well as any applicable rules of the PSC.
F.
Said policy shall be submitted to the town for the
town's approval of the contents at the time of the initial development
or composition of the policy and thereafter 30 days prior to any planned
or proposed change in policy and required notification of such change
to subscribers.
G.
An MCS provider's complaint and inquiry resolution
policy shall be reduced to writing, and such policy shall be available
upon request to any person 18 years of age or older. In any event,
a subscriber shall receive notice of such policy, and any change in
said policy, in the manner that is prescribed by this chapter and
any PSC rules.
A.
To the extent permitted by state law, including any
applicable rule or regulation of the PSC, an MCS provider may not
abandon, withdraw or cease to provide multichannel service to any
group of subscribers or any portion of the service area within the
town, other than as permitted under this chapter or as set forth in
a franchise agreement, other agreement, license or permit, without
the prior written consent of the Town Board.
B.
Moreover, an MCS provider may not use the threat to
abandon, withdraw or cease to provide multichannel service to any
subscribers or service area within the town to avoid compliance with
this chapter or the terms and conditions of a franchise, other agreement,
license or permit.
C.
Failure to meet the requirements of this section may, at the discretion of the Town Board, result in fines or penalties as set forth in § 195-126 of this chapter entitled "Penalties for offenses. "
D.
Further, and in addition to and not limited by the
preceding subsection, violation of this section shall subject the
MCS provider to termination and revocation of its franchise, in accordance
with the provisions of this chapter.
A.
Multichannel service shall at all times be a discretionary
service for all residents of the town.
B.
The Town Board does not intend to prohibit the erection
or continued use of individual television antennas within the town,
so long as the individual television antennas conform to all applicable
zoning and/or land use regulations. Moreover, no person shall be required
to receive multichannel service or to physically connect to a multichannel
system.
C.
No person shall be penalized or fined (either through
a home sales contract, a deed containing restrictive covenants or
any other type or instrument of agreement or restriction) for failing
or refusing to subscribe to or receive multichannel service or for
failing or refusing to physically connect to a multichannel system;
nor shall any person be required to incur penalties, fines or costs
of any kind for failing or refusing to connect to a multichannel system
or for failing or refusing to subscribe to or receive multichannel
service.
In order to establish minimum uniform standards,
any MCS provider shall adhere to the following minimum construction
and construction-related requirements, irrespective of an existing
franchise, other agreement, license or permit:
A.
Construct, install, maintain and repair the multichannel
system in accordance with this chapter and any additional requirements
of the state, county and/or town;
B.
Use streets and public and private rights-of-ways
as set forth in this chapter and any other applicable requirements
of the state, county, and/or town;
C.
Where applicable, and when ordered in accordance with
this chapter or a franchise, other agreement, license or permit, remove
the MCS provider's equipment, facilities and property from public
streets or rights-of-way, in accordance with this chapter and applicable
state law;
D.
Abide by the safety and construction standards as
set forth in this chapter;
E.
Abide by, and act in strict accordance with, all current
technical codes that are standard and customary to the cable television
and multichannel service industry, including construction, fire, safety,
health and zoning codes that are adopted by the town, or the county,
the state or the United States, and as set forth in this chapter as
relate to the system and its operation;
F.
Cooperate with the town in the conduct of any inspection
of the system; and
G.
Maintain all permits and licenses, as required by
this chapter and any other town rules or regulations and as may be
required by any other regulatory authority.
During any phase of construction, and with respect
to any installation, maintenance and repair of the multichannel system,
the MCS provider shall use only materials of good and durable quality,
and all such work shall be performed in a safe, thorough, reliable
and workmanlike manner and at all times in compliance with the provisions
of this chapter and other applicable ordinances, codes, rules and
regulations of the town, the county and the state, including those
of the PSC.
A.
To the extent permitted by law, including any applicable
rule or regulation of the PSC, all wires, conduits, cable (whether
coaxial, fiber or a 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
the usual and customary use, traffic and travel upon the streets,
rights-of-way, easements and public ways of the town or any private
property adjacent to such.
B.
In the event that an MCS provider's system creates a hazardous or unsafe condition, or is part of or a party to a hazardous or unsafe condition, such being defined as situations not in compliance with any safety or safety-related code, including but not limited to those standards and requirements set forth in § 195-80 of this chapter, that are intended to protect the safety of persons and property, or creates an unreasonable interference with public or private property, the MCS provider shall voluntarily, or upon notice by the town, in a prompt and expeditious manner remove or modify that part of the system so as to eliminate such condition.
C.
An MCS provider shall at no time and under no circumstances
place equipment where it will unduly or impermissibly interfere with
the rights of property owners or with gas, electric or telephone fixtures,
water hydrants or mains, wastewater lift or control stations, any
traffic control system, or any other service or facility that benefits
or protects the health, safety or welfare of the town or its residents.
D.
An MCS provider, either at its own expense or that
of a private contractor, shall protect public property, rights-of-ways
and easements and shall support or temporarily disconnect or relocate
any property of such MCS provider when necessitated by reason of:
(1)
Traffic conditions;
(2)
Public safety;
(3)
Temporary or permanent street closing;
(4)
Street construction or resurfacing;
(5)
A change in or establishment of a street grade;
(6)
Installation, repair or modification of sewers, drains,
water pipes, storm drains, lift stations, force mains, power or signal
lines and any traffic control system; or
(7)
Any improvement, construction, repair or public works
project related to the town's or its residents' health safety or welfare.
E.
It shall be the responsibility of an MCS provider
to, upon request, and either acting alone or in conjunction with another
person, locate and mark or otherwise visibly indicate and alert others
to the location of its underground wires or cable (coaxial, fiber
or a functional equivalent) prior to the start date of such work.
It shall be the responsibility of the entity performing underground
work, to notify the MCS provider at least 10 days prior to the intended
start date of the need to locate the MCS provider's underground lines
and equipment and to inform the MCS provider of the intended start
date.
F.
An MCS provider shall, on the request of any person
holding a building moving permit, temporarily remove, raise or lower
the wires and facilities of the multichannel system to allow the moving
or relocation of the building. The expense of temporary removal, raising
or lowering of the wires and facilities shall be paid by the person
requesting such, and the MCS provider may require payment in advance.
The affected MCS provider shall be given not less than 14 days' notice
of a contemplated move to arrange for temporary wire changes.
A.
Unless the town, or another MCS provider, indicates
its lawful intent to use the multichannel system occupying public
property or rights-of-way (such as in the event of the sale and purchase
of the system) under the continuity provisions outlined in this chapter,
the affected MCS provider shall promptly remove its multichannel system,
including any facilities, equipment and property, including any abandoned
equipment, facilities or portion of the system, from the streets,
public ways and private property located within the town, at its sole
expense, within 90 days of the date of expiration, or the date of
revocation and termination, of its operating authority or a lawful
order or directive from the town, whenever any of the following occurs:
(1)
The MCS provider ceases to operate all, or part, of
the multichannel system for a continuous period of 90 days;
(2)
The MCS provider fails to construct the multichannel
system as outlined in an initial application, a proposal for renewal,
a renewal of the franchise, other agreement, license or permit or
an amended franchise, other agreement, license or permit;
(3)
The Town Board elects not to, and affirmatively acts
not to, renew the franchise, other agreement, license or permit, pursuant
to the provisions set forth in this chapter; or
(4)
The MCS provider's franchise, other agreement, license
or permit is revoked pursuant to the provisions set forth in this
chapter.
C.
If not removed voluntarily by the MCS provider, then
the town may notify the MCS provider that if removal of the property
is not accomplished within 90 days, or substantial progress towards
removal is not made within 75 days, then the town may direct its officials
or representatives to remove the MCS provider's property, facilities,
equipment, cable and wires at the MCS provider's expense.
D.
If officials or representatives of the town remove,
or cause to have removed, an MCS provider's property, facilities,
equipment, cable and wires, and such MCS provider does not claim the
property within 90 days of its removal, then the town may take whatever
steps are permissible under state law to declare the property surplus
and sell it, with the proceeds of such sale going to the town, if
permitted by state law.
E.
When such MCS provider removes its multichannel system
and property, facilities, equipment, cable and wires from the streets
and public rights-of way within the town, the MCS provider shall,
at its own expense, and in a manner approved by the town, replace
and restore such public or private property to a condition comparable
to that which existed before the work causing the disturbance was
done.
A.
Methods of construction, installation, maintenance and repair of any multichannel system shall at all times comply with the most current editions of the National Electrical Safety Code (NESC) and the National Electrical Code (NEC) as regards the construction, installation and maintenance of electrical supply and communication lines and attachments and supports, including but not limited to cable television systems and open video systems as defined under federal law. To the extent that these are inconsistent with other provisions of a franchise, other agreement, license or permit or state or local law, state law shall apply unless the state permits local law or this chapter to control, in which case the local law and this chapter shall control. Moreover, subject to § 195-93F of this chapter, to assure the protection of the public safety at all times and to incent a diligent program of inspection and maintenance, the town specifically adopts a policy of zero tolerance of situations or practices not in compliance with the requirements of this section, subject to state and federal law.
B.
Any MCS provider, when engaged in any construction,
installation, maintenance and repair activities, shall treat the aesthetics
of property as a priority, shall not substantially change or affect
the appearance or the integrity of the structure and the property
on which it is situated in a negative manner, which specifically includes
prohibiting the installation of a drop and associated components on
the bias across the side of a residence or other structure without
the property owner's permission. This specifically means that, unless
impracticable, all drop material attached to a dwelling or business
must follow the perimeter lines or roof lines of the dwelling or business
to the extent possible and result in the minimum visual effect reasonably
possible, taking into account the reasonable desires of the subscriber.
C.
To the extent not physically or commercially impracticable,
all underground drops shall follow property lines and shall cross
property only at right angles, unless otherwise permitted by the property
owner or unless required due to the physical characteristics of the
subsurface or surface obstructions.
D.
Underground installations shall be constructed in accordance with the specifications and requirements of the town and the National Electrical Safety Code and the National Electrical Code, including but not limited to required clearances, grounding and bonding and depth of burial requirements. In the event that the National Electrical Code does not at any time address depth of burial for individual service drops, the required minimum depth shall be the applicable depth as set forth in Subsection J(5) of this section.
E.
For existing multichannel systems, the MCS provider shall not be required to come into compliance with the provisions of Subsection C of this section until the sooner of a scheduled upgrade or rebuild of the MCS provider's multichannel system is actually commenced and in progress or the grant of a renewal of the MCS provider's operating authority. For newly served areas, the provisions of Subsection C of this section shall apply at the time of initial construction and/or installation.
F.
For an MCS provider operating a multichannel system in the town at the date of adoption of this chapter, the MCS provider shall be required to bring all service drops into compliance with the requirements of this section within 24 months from the date of adoption of this chapter, except that the MCS provider shall be temporarily exempted from the provisions of Subsection C of this section, pursuant to the provisions of Subsection E of this section.
G.
In instances where either electrical or telephone
utilities install wire or cable aerially, the MCS provider may construct
its multichannel system aerially, unless otherwise required by state
law; provided, however, that all minimum separations between facilities
as required by applicable code, rule or regulation must at all times
be complied with, and there shall at no time be a conflict with or
any contact between the MCS provider's wires, cable or other equipment
and facilities and those of a utility or other service provider.
H.
In order to provide the maximum assurance of the protection of the public and of employees of any occupant of the rights-of-way or utility poles, the town specifically adopts the safety-related construction requirements set forth in Subsection I of this section. The requirements in Subsection I shall serve as minimum standards and requirements and shall be in addition to all other safety-related codes of the town and the state, such as but not limited to the National Electrical Safety Code (NESC) and the National Electrical Code (NEC).
I.
In order to provide the maximum assurance of the protection of the public and of employees of any occupant of the rights-of-way or utility poles, the town specifically adopts the safety-related construction requirements set forth in Subsection J of this section. The requirements in Subsection J shall serve as minimum standards and requirements and shall be in addition to all other safety-related codes of the town and the state, such as but not limited to the National Electrical Safety Code (NESC) and the National Electrical Code (NEC).
J.
In the event of a conflict between the requirements set forth hereafter in this subsection and those contained in the safety-related codes referred to in Subsection H, that providing the greatest assurance of safety shall apply.
(1)
All guy wires associated with the MCS or cable system
shall at all times be maintained with the integrity originally intended,
including but not limited to proper attachment to an anchor and adequate
tension to perform the purpose intended.
(2)
All guy wires associated with the MCS or cable system
that are accessible to pedestrians or vehicles of any kind shall at
all times be marked and protected by the use of suitable brightly
colored, plainly visible guard no less than eight feet in length and
made of a nonconductive material that is resistant to deterioration
caused by the effects of the weather.
(3)
The ends of all guy wires, at the point of attachment
to the anchor, shall be capped or otherwise protected so as to not
allow exposed sharp ends at any time.
(4)
All wires or cables of any kind that are placed on
any pole and that are within eight feet of the surface of the ground
shall at all times be protected from direct contact by means of a
suitable guard made of a nonconductive material that is resistant
to degradation or deterioration caused by the effects of the weather.
(6)
At no time shall any cable, or functional equivalent, intended for underground installation be left or remain unburied at the end of a work day. The only exceptions shall be for extreme weather conditions or in a force majeure situation or if the ground is frozen to a depth of more than six inches. In any case involving the exceptions under this subsection, the unburied cable shall be buried pursuant to the requirements in Subsection J(5) of this subsection on the first work day following the cessation of the condition permitting the exception.
(7)
All pedestals and vaults housing system facilities
or components shall at all times be secured to prevent tampering,
vandalism or contact with components that are contained within the
pedestal or vault by unauthorized individuals. It is required that
every service call at a location at which a pedestal or vault exists
shall require that the structural integrity and security of the vault
or pedestal be inspected, and any repairs necessary to bring the pedestal
or vault into compliance with this subsection shall be done at that
time, or the next day at the latest.
(8)
At no time shall any MCS or cable pedestal be located
closer than six feet from an electric power pedestal, unless individually
bonded to the ground of the electrical power pedestal. In no instance
shall any MCS or cable pedestal be situated so as to block, prevent,
hinder or interfere with the free access to any other utility or service
pedestal.
(9)
In no instance shall any MCS or cable plant, component
or facilities be less than 20 inches from any streetlight, including
any attachment brackets or fixtures of any streetlight, unless individually
bonded to the streetlight ground, in which case the minimum clearance
shall be 12 inches.
(10)
All MCS or cable plant, facilities or components
which are aerially constructed shall maintain a minimum of 40 inches
clearance from any electrical power lines, wires and facilities.
(11)
At all times in all aerially constructed areas
of the town, all MCS or cable, plant, facilities or components shall
maintain a minimum of 12 inches vertical clearance from any communications
or telephone lines, wires and facilities.
(12)
At no time shall any MCS or cable plant, facilities
or components be attached to, or in contact with, any electrical power
mast or any other electrical power-related facility on any residence
or business, except for the sole purpose of establishing a common
ground, otherwise known as a bond, which bond shall not be at the
electrical power mast.
(13)
Above roofs, cable or MCS system facilities
or components, including service drops, shall have a minimum vertical
clearance of eight feet from all points of the roof above which they
pass.
(14)
All MCS provider cables or wires serving residences
or commercial buildings shall be securely attached to the structure,
shall not block or cross in front of any windows, doors, or other
means of emergency access or egress. If found to be blocking a means
of emergency access or egress, an MCS provider shall immediately notify
the subscriber of the situation and the need to eliminate the situation
and shall immediately eliminate the situation. Further, no cable,
wire or equipment shall be installed on the bias or diagonally across
the face or side of any residential or commercial building without
the specific permission of the property owner.
(15)
At all times, except with the express permission
of the town on an individual basis, all cable drops shall be bonded
to the common ground of the electrical service in the residence or
commercial building.
(16)
All work on the MCS or cable plant, facilities
or equipment performed by an MCS or cable provider shall, without
exception, be left in a permanent, finished condition at the end of
each working day, unless individually approved by the town on a specific
location basis.
(17)
All subscriber service drops are to be inspected
by the MCS or cable provider as an integral part of every service
or trouble call, or installation or reconnection, and any work, necessary
to bring the drop into compliance with this section shall be completed
prior to leaving the address, or at the latest, by the end of that
work day.
K.
Any MCS or cable operator who violates the requirements
of this section shall specifically be subject to the imposition of
fines and/or penalties as set forth in Section 126 of this chapter.
For MCS providers subject to this section, the
franchise, other agreement, license or permit shall contain either
a system expansion schedule for any area not provided multichannel
service as of the date of the franchise, other agreement, license
or permit or an explanation acceptable to the town as to why a particular
area will not be served.
An MCS provider shall obtain, at its own expense,
all permits and licenses required by local law or ordinance, or state
rule or regulation, and shall maintain the same, in full force and
effect, for as long as required by the town or other appropriate governmental
entity or agency.
It shall be the responsibility of any MCS provider
to comply with the most current FCC technical standards.
A.
In order to verify that an MCS provider constructs
and maintains the multichannel system in the manner required by this
chapter and applicable state and federal rules and regulations, including
all state and federally required or permitted testing and inspection
of the system, as well as the required preventive maintenance program
and safety-related inspections required by this chapter, including
any tests and inspections required by the PSC, the town reserves the
right to inspect all facets of an MCS provider's construction, placement,
operation and maintenance of the system.
B.
The town also reserves the right to require the delivery
to the town, or its designee, true and accurate copies of any or all
records and documents related to such tests and inspections for purposes
of review, as may be deemed necessary to administer and enforce compliance
with this chapter and any franchise, other agreement, license or permit
issued pursuant to this chapter.
C.
The town shall pay for all of its costs associated
with such inspections or reviews, except for those circumstances occasioned
by an MCS provider's refusal to provide the requested information
necessary for the administration and enforcement of this chapter and
any franchise, other agreement, license or permit, or that is occasioned
by the identified failure to construct, install, maintain, repair,
rebuild or upgrade any portion of the MCS system in the manner specified
and required by this chapter or, where applicable, a franchise, other
agreement, license or permit. In such instances, the MCS provider
shall reimburse the town for all actual costs that are incurred by
the town in obtaining the necessary information or for inspecting
and identifying violations of the construction or safety or safety-related
provisions of this chapter or other applicable construction or safety-related
rules, regulations or requirements. If, upon inspection, no construction-related
or safety-related violations are found there shall be no requirement
to reimburse the town for its costs.
A.
The town requires that any 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.
Consequently, at a minimum, an MCS provider shall,
at all times and without exception, except for situations involving
matters of force majeure, comply with the following safety and safety-related
requirements:
(1)
Emergency alert override operations in the manner
set forth in this chapter or as required by supersedent federal or
state law, rule or regulation;
(2)
Minimum standby power as noted in this chapter;
(3)
The diligent conduct of a regular preventative maintenance
program, as set forth in this chapter;
(4)
Comply with, and abide by, all FCC rules concerning
signal quality and signal strength, including the FCC's cumulative
leakage index (CLI) rules; and
(5)
Comply with, and abide by, any and all construction,
safety, electrical, health and fire codes and requirements, as specified
in this chapter or other applicable codes or local laws.
C.
In addition to those requirements set forth above in Subsections A and B of this section, any MCS provider shall at all times treat all applicable standards of the National Electrical Safety Code (NESC) and the National Electrical Code (NEC) as minimum, threshold standards and requirements, as more fully set forth in § 195-93 of this chapter.
A.
In order that subscribers may be alerted in the event
of an impending, imminent or actual natural or other disaster or emergency,
unless prohibited by federal law or rule, MCS providers may be required
to ensure that the multichannel system providing multichannel service
to all or any part of the town is designed, constructed and installed
with equipment that will permit an authorized official or designee
of the town to override the audio portion of all channels, by touch-tone
phone (or functional equivalent) from any location.
B.
In addition to any other requirements listed in this
section, an MCS provider shall:
(1)
Designate a channel which will be used for disaster/emergency
broadcasts of both audio and video, though this channel need not be
solely used for emergency broadcasts and may in fact be used for any
lawful purpose;
(2)
Inform subscribers of the designated emergency channel
on a periodic basis, not less than once a day;
(3)
Maintain all-channel video blanking capability to
facilitate the needs of hearing and sight-impaired customer or subscribers;
(4)
Test the disaster emergency override system not less
than once a month and remedy any problems or operational deficiencies
immediately;
(5)
Cooperate with the town on the use and operation of
the emergency alert override system; and
(6)
Develop a plan, with the town's concurrence, to provide
continuity of multichannel service and response to service calls in
the event of an emergency.
C.
As one method of providing continuity of multichannel
services in the event of a failure of commercial electrical power,
for any reason whatsoever, including but not limited to a natural
or other disaster or emergency, an MCS provider shall, unless exempted
by the town, install and diligently maintain automatically activated
standby or backup power so that all active system components remain
functional for at least two hours, and additionally install and diligently
maintain an automatically activated standby generator at all headends,
hubs and receive sites associated with the distribution of multichannel
service to and throughout the town that are owned or under the control
of the MCS provider or any affiliate or parent entity.
A.
It shall be the duty of an MCS provider to devise
and implement a preventative maintenance program for the multichannel
system in order to ensure that there is no material degradation of
the operation, performance or condition of the multichannel system
that would affect the public health, safety and welfare or negatively
affect the quality of multichannel services as required by FCC rules,
or the reliability of multichannel services anywhere in the town.
B.
Before the MCS provider implements such a preventive
maintenance program, it shall provide a copy of such program to the
town for its review and approval. The town shall specifically have
the right and authority to establish the minimum acceptable standards
for the preventive maintenance program, unless such authority is preempted
by the state or the FCC.
C.
Although not exhaustive, the following areas and standards
shall at a minimum be included in a preventive maintenance program,
and the results included in any required or requested reports:
(1)
Inspection, and adjustment if necessary, of the signal
quality of each channel.
(2)
Scan, and adjustment if necessary, of carrier levels
with spectrum analyzer.
(3)
Logging of any and all adjustments made to the headend,
antenna tower, or distribution system.
(4)
Monitoring and logging of signal leakage, and repair
if necessary, to ensure that the multichannel system is within FCC
allowed levels.
(5)
Inspection of drops as an integral part of every service
call and schedule for replacement, if necessary.
(6)
Inspection and recordation of signal levels at the
time of each service call.
(7)
Monitoring, and adjustment if necessary, of headend
audio and video carrier levels.
(8)
Monitoring, and adjustment if necessary, of headend
videocipher AGC levels.
(9)
Monitoring, and adjustment if necessary, of satellite
receiver input carrier-to-noise.
(10)
Monitoring, and adjustment if necessary, of
headend audio and video modulation levels.
(12)
Monitoring, and adjustment if necessary, of
headend scrambler levels.
(13)
Testing, and repair if necessary, of the emergency
alert override system.
(14)
Inspection, and repair if necessary, of 1/3
of all standby power supplies.
(15)
Monitoring, and adjustment if necessary, of
headend radio frequency (RF) input levels to off-air processors.
(17)
Inspections, and repair and/or recalibration
if necessary, of all in-house and field test or measuring equipment.
(19)
Testing for determining cumulative leakage index
(CLI) as required by the FCC.
(21)
Where required by local or state law, annual
inspection and repair (if necessary) of all MCS provider owned or
leased vehicles.
(22)
Notwithstanding anything in the preceding subsections,
an MCS provider shall assure that all test equipment is properly calibrated
prior to any required testing.
D.
Thirty days after each calendar quarter, an MCS provider
subject to this section shall notify the Town Board, or its designee,
of the preventive maintenance information available for that calendar
quarter, and that such information is available to be provided for
inspection, examination, and review.
A.
The franchisee or other MCS provider shall at all
times and without exception conduct all of its construction, installation,
repair and maintenance activities in accordance with the fire and
safety regulations of the town, including this chapter, and all local,
state and federal safety regulations and shall at all times, without
limitation or exception, adhere to regulations governing the security
of facilities as promulgated by the town.
B.
The codes referred to in the preceding subsection
are standard and customary to the multichannel service industry and
include, but are not limited to, electrical, construction, fire, safety,
health, building and zoning codes.
C.
To provide for the maximum protection of the health and safety of persons and property in the town, the intent of this section is to require one-hundred-percent compliance with all safety-related codes, rules and regulations at all times, subject only to force majeure exceptions. For clarification, this is intended to mean that the town adopts a policy of zero tolerance of safety-related violations associated with any multichannel system in the town, excepting those caused by subscribers or the public. Notwithstanding the preceding exception, it shall always be the responsibility of the MCS provider to remedy and eliminate any safety-related violations associated with its system as such may be found, or if caused by the subscriber but not able to be remedied because of its location, comply with Subsection D of this section.
D.
To enable the town to take any needed action or precaution
to alert or otherwise protect persons and property in the town, it
shall be the responsibility and obligation of any MCS provider to,
the same day by phone and the next day in writing for purposes of
the town's records, report to the town any violation of safety codes
that is identified and is not able to be remedied within 24 hours
of its identification or, if caused by a subscriber and because of
the location, is not able to be remedied.
E.
It shall further be the immediate and primary responsibility
of the affected or transgressing MCS provider to place appropriate
and effective warning signs and protective devices or barriers at
the site of any such safety violations that create an imminent danger
or threat as in the reasonable determination of the town, may be needed
and directed by the town.
F.
Notwithstanding anything to the contrary in § 195-126 of this chapter entitled "Penalties for offenses," there shall be no fines and/or penalties, or other penalty, applied or assessed against a franchisee or other MCS provider for safety-related violations that are voluntarily and of its own accord and volition reported to the town in accordance with the previous Subsection D, provided that the first report of a situation that the town receives of a safety-related violation that is not caused by a subscriber is made by the MCS provider whose facilities are not in compliance with the required safety codes and this chapter and if the violation is eliminated within 24 hours or in such time frame as may otherwise be approved by the town.
A.
This section is applicable to any lawfully operating
but unfranchised MCS provider that does not remit a franchise fee
to the town. It is also applicable to any MCS provider whose franchise
has been ruled unconstitutional, unenforceable or otherwise invalid
by a court of competent jurisdiction. Further, this section also is
applicable to a franchised MCS provider who has, for reasons of the
means of assessment and/or calculation, had its franchise fees ruled
unconstitutional, unenforceable, or invalid by a court of competent
jurisdiction.
B.
Where not specifically prohibited by federal or state
law, and as an alternative to and in lieu of the imposition of a franchise
fee as set forth in this chapter, the town may impose an alternative
user charge and require the remittance of such by an affected MCS
provider to help in recouping the cost of administering a franchise
agreement, other agreement, license or permit and for the proportional
or pro-rata cost of the maintenance of the public property and rights-of-way
occupied by the multichannel system.
C.
The alternative user charge shall be based on the
fully allocated cost to the town for administering the authorizing
franchise agreement, other agreement, license or permit and for the
proportional or pro-rata cost of maintaining the public property and
rights-of-way occupied by the multichannel system. However, in no
event shall the alternative user charge exceed the maximum amount
that would have been permitted to be imposed as a franchise fee for
the payment and reporting period, unless permitted by federal and
state law.
D.
While an alternative user charge is adopted in order
to recover costs incurred by the town and the proportional or pro-rata
cost of maintaining the public property and rights-of-way occupied
by the multichannel system, an affected MCS provider and the town
may mutually agree to an alternative charge that is based on either
a flat percentage of gross revenue or a given dollar amount, so long
as that charge does not exceed the maximum amount that would have
been permitted to be imposed as a franchise fee for the payment and
reporting period at the time of the exercise of this option, unless
permitted by federal and state law.
E.
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, unless otherwise mutually agreed
to.
F.
Unless permitted by federal and state law to be greater,
should the alternative user charge ever exceed the maximum amount
that would have been permitted to be imposed as a franchise fee, then
the alternative user charge shall be reduced to an amount not greater
than the maximum amount that would have been permitted to be imposed
as a franchise fee, and any overpayment shall promptly be returned
to the MCS provider upon request.
G.
The alternative user charge assessed shall be payable
to the town quarterly on a calendar year basis.
H.
In the event that the alternative user charge is mutually
agreed to be based on a percentage of revenue, to assist the town
in determining the accuracy and completeness of the alternative user
charge payments the MCS provider shall file with the town a complete,
detailed, accurate statement of all realized revenues attributable
to and occasioned by the operation of the system and the grant of
the franchise or other agreement, license or permit within the town
for the period for which the payment is required, whether received
by the franchisee or other MCS provider directly or any parent, affiliate
or subsidiary. The statement shall be certified by a certified public
accountant or a qualified officer of the MCS provider or its parent
with respect to the statement's accuracy and completeness. The revenues
shall be individually identified by category, type of revenue and
billing levels or rate increments. For purposes of example only, any
report must identify revenues attributable to subscriber revenue and,
if applicable, nonsubscriber revenue and must further identify individual
types and sources of revenue as components of these two broad categories
as deemed necessary by the town.
I.
The alternative user charge payment shall be made
to the town not later than 60 days after the end of each calendar
year quarter, and any portion of said 60 days beyond the calendar
quarter shall include time value for the money based on the average
prevailing local commercial interest rate measured over the payment
period.
J.
The MCS provider shall also provide annually, within
90 days after the end of the MCS provider's fiscal year, a report
certified by a certified public accountant or an officer of the MCS
provider or its parent verifying all earned gross revenues and the
amounts paid during the previous four payment periods.
A.
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 (whether coaxial, fiber or a functional
equivalent) in, along, over or across the streets or rights-of-way
of the town without having first obtained an MCS franchise, other
agreement, license or permit, unless such person or MCS provider is
exempted under state or federal law, including any applicable rule
or regulation of the PSC.
B.
Consistent with the Cable Act, no franchise, other
agreement, license or permit shall be required for either the town
or any local or municipal authority affiliated with the town, to own
a multichannel system or operate as an MCS provider in the town.
C.
An MCS or cable franchise, other agreement, license
or permit issued pursuant to this chapter does not and shall not convey
the right or privilege to use the MCS or cable system, or any components
of the system, for anything other than the provision of multichannel
service as defined in this chapter.
A.
Consistent with Section 621(a)(1) of the Cable Act
(codified at 47 U.S.C. § 541), the Town Board may award
one or more nonexclusive multichannel service franchises or other
agreements, licenses or permits within its geographical limits.
B.
No franchise or other agreement, license or permit
granting authority to construct and operate a multichannel system
shall be exclusive.
C.
An MCS provider's application shall be evaluated and
approved or disapproved as part of a public proceeding and hearing
which affords due process to the town, the applicant, and the public,
and which is in accordance with applicable federal or state laws,
including any applicable rules of the PSC.
D.
Within 90 days after the effective date of a franchise
or other agreement, license or permit, a franchisee or other MCS provider
shall proceed with due diligence and its best efforts to obtain, at
its own costs, all necessary permits, licenses and authorizations
which are required for the conduct of its business in the town, including
but not limited to any private easement agreements, business licenses,
utility joint use or attachment agreements, microwave carrier licenses
and any other permits, licenses and authorizations needed to lawfully
operate a multichannel system within the town.
E.
A franchisee or other MCS provider shall have in its
possession all such permits, easements, agreements and licenses prior
to the commencement of its multichannel system operations.
A.
An MCS provider subject to the town's franchising,
licensing or permitting authority may not lay or use any cable (whether
coaxial, fiber or a functional equivalent) until the franchise or
other agreement, license or permit is fully executed and is in effect,
including approval by the PSC as may be applicable.
B.
A franchise, other agreement, license or permit shall
be sufficiently detailed so as to clearly delineate the rights, duties
and obligations of the parties concerned.
C.
As permitted, and as may be applicable to a particular
class or type of MCS provider, a franchise, other agreement, license
or permit shall, at a minimum, contain and address the following matters,
as well as any requirements in accordance with any applicable rules
of the PSC as such may be applicable at any time:
(1)
A detailed definition of "gross revenue" in order
to determine what revenues are subject to any franchise, other agreement,
license or permit fee or alternative user charge;
(2)
The term or duration of the franchise, other agreement,
license or permit;
(3)
Indemnity and hold harmless;
(4)
Insurance;
(5)
Performance and completion bonds or security deposits;
(6)
Service area;
(7)
Construction, upgrade or rebuild schedule;
(8)
Compensation, including but not necessarily limited
to franchise, other agreement, license or permit fees.
(9)
Continuity of service;
(10)
Assignment of an existing franchise, other agreement,
license or permit;
(11)
Repeal of prior inconsistent franchise, other
agreement, license or permits;
(12)
Severability;
(13)
Force majeure;
(14)
Reference to the law and rules that governs
the franchise, other agreement, license or permit;
(15)
Any exemptions or relief from this chapter as
may be granted or any local law clarifications noted with respect
to the MCS provider's operation of a multichannel system; and
(16)
An effective date.
D.
The town reserves the right to require, without limitation,
additional matters, issues and subjects to be contained in a franchise,
other agreement, license or permit as may be reasonably deemed necessary
in the interest of the town and its residents, subject to applicable
state and federal law and rule.
A.
Upon an award of a franchise, other agreement, license
or permit, in accordance with the terms of such franchise, other agreement,
license or permit, an MCS provider required to obtain a franchise,
other agreement, license or permit may construct, erect, install,
maintain, operate, maintain, repair, replace, remove or restore a
multichannel system within the geographical limits set forth in the
franchise, other agreement, license or permit.
B.
The multichannel system may be located in, upon, along,
across, over and under the streets, rights-of-way, easements and public
ways of the town as more specifically set forth in the franchise,
other agreement, license or permit.
C.
Any MCS provider shall be responsible for obtaining
any required easements for private property, including privately owned
utility or streetlight poles, at its cost.
D.
An MCS provider, through a separate pole or utility
easement agreement with an affected utility, may locate the multichannel
system on or within, the easement or property of such utility company.
This provision specifically includes, but is not limited to, MCS providers
classified as cable operators.
A.
The term of an initial MCS franchise, other agreement,
license or permit shall be no more than 10 years from the date that
a franchise, other agreement, license or permit is approved by the
Town Board and is executed by an authorized individual of the town
and the affected MCS provider and is approved by the PSC if required.
Ten years shall be the maximum term, absent the demonstration of the
need for a longer term for financial reasons, such as, for purposes
of example, the time needed to recoup the initial investment plus
a reasonable return on the investment.
B.
The term of a renewal franchise, other agreement, license or permit shall be for a period not less than 3 1/2 years, or as permitted by the PSC, measured from the date that a franchise, other agreement, license or permit renewal agreement is approved by the Town Board and is approved by the PSC if required. In the event that the PSC does not establish a maximum term for a renewal, such maximum term shall be no more than 10 years, absent the demonstration of the need for a longer term for financial reasons as set forth in Subsection A of this section.
A.
An applicant for a franchise, franchise renewal or other agreement, license or permit, shall include in the application a plan to make service available to all residences, dwellings, businesses and establishments on all public streets and roads throughout the town. Unless otherwise permitted by the town, there shall not at any time, after completion of the initial construction of the system, or of a rebuild or upgrade of the system in the case of an MCS provider currently operating at the time of the effective date of this chapter, be any habitable residence, dwelling, business or establishment situated on or adjacent to any public street or road that is not capable of receiving multichannel service without the need for a line extension, as the term "line extension" is defined in § 195-4 of this chapter. The primary test for exception to the requirements of this section shall be a test of commercial impracticability, as defined under the federal Uniform Commercial Code.
B.
If the town increases the required service area by
adding or incorporating additional land areas, through annexation
or any other lawful means, the MCS provider shall extend multichannel
service to the new locations within 180 days of a written request
from town, at no cost to the Town.
C.
Notwithstanding Subsection A of this section, the cost for any line extensions, if permitted to be passed through to subscribers incrementally, shall not be apportioned only to those subscribers served by the instant line extension, but shall be apportioned among all subscribers in the town.
D.
Further, while such approval may not unreasonably
be withheld, any plan for community-wide or universal service requiring
more than one year from the start of construction, rebuild or upgrade,
or the request for renewal of a franchise, other agreement, license
or permit, must be accompanied by a detailed explanation of the reasons
for the needed additional time, as well as a date specific by which
service is proposed to be available throughout the community.
A.
For MCS providers classified as cable operators, the
Town Board shall follow all applicable rules of the FCC and the PSC
with respect to the submission and processing of initial and renewal
applications for a franchise, other agreement, license or permit.
B.
For other MCS providers, the Town Board may develop
rules with respect to the submission and processing of initial and
renewal applications for a franchise, other agreement, license or
permit. Such rules and regulations shall primarily be aimed at determining
the legal, financial, technical and character qualifications of the
applicant for a franchise, other agreement, license or permit, but
the town may also consider other matters deemed of importance that
are not prohibited by applicable federal law.
C.
With respect to an initial application for a franchise,
other agreement, license or permit, unless prohibited by the FCC or
the PSC, an applicant shall pay an initial application fee as established
by resolution of the Town Board. The application fee shall be nonrefundable.
D.
An applicant for an initial franchise, other agreement,
license or permit shall place a deposit with the Town in the amount
of $15,000 to cover the actual cost of any outside assistance deemed
necessary by the Town to analyze the application or proposal and negotiate
a franchise, other agreement, permit or license, if such is permitted
under applicable law. At any time during the processing of the application
and the negotiation of a franchise, other agreement, license or permit,
the balance of the deposit drops below $2,500, upon notice by the
town the applicant shall be required to restore the deposit to $7,500
before any further processing of the application or proposal is done.
At the conclusion of the process any remaining balance shall be promptly
returned to the applicant.
A.
Any MCS provider, specifically including but not necessarily
limited to any MCS provider classified as a cable operator, that is
granted a franchise, other agreement, license or permit, or a franchise
renewal or renewal of any other agreement, license or permit, after
the date this chapter becomes effective, may be required by the town,
if permitted by federal law or rule, to pay to the town a sum equal
to 5% of the annual gross revenue of such MCS provider, including
cash and any valuable consideration of any kind whatsoever. Such amount
is intended in part to compensate the town for the cost of administering
the franchise agreement, other agreement, license, permit or other
operating authority issued under this chapter and to recompense the
town for the proportional or pro-rata cost of maintaining the public
property and rights-of-way occupied by the multichannel system.
B.
The Town Board recognizes that, with respect to MCS
providers classified as cable operators, those MCS providers may have
to remit an annual fee to the PSC. Therefore, to the extent that the
remittance of the PSC annual fee, when computed together with any
franchise fee paid by the MCS provider or collected from others and
remitted by the MCS provider, or that is owed, is greater than 5%
of the cable operator's annual gross revenues, the payment of the
PSC annual fee shall be deducted from and credited as an offset against
any franchise fee actually paid to the town by the MCS provider, provided
that the MCS provider has not elected merely to collect the fee from
others, including subscribers, and remit the amount collected to the
PSC.
C.
If the FCC, Congress or any other governmental entity
with authority to establish the maximum allowable franchise fee ever
allows franchising authorities to increase the franchise fee beyond
5% of gross revenue, then the town shall have the authority to increase
the franchise fee to the maximum percentage and/or amount allowable.
D.
An MCS provider subject to the collection and remittance
of a franchise fee, or its functional equivalent under another agreement,
a permit or a license, shall, automatically and without further notification,
pass through to subscribers the amount of any decrease in the franchise
fee that is attributable to or calculated on subscriber revenues in
the next monthly bill or periodic invoice, so that the bill or invoice
reflects the decrease in the franchise fee on subscriber revenues.
E.
An MCS provider that is subject to the remittance
of a franchise fee, or its functional equivalent, shall file with
the town, within 45 days after the expiration of each of the MCS provider's
fiscal quarters, a detailed financial and revenue report and statement
clearly showing the franchise fee, or its functional equivalent, that
is due for the preceding quarter, together with the basis of the calculations
thereof. Such statement shall be certified by a certified public accountant
or an officer of the MCS provider attesting to the accuracy, completeness
and veracity of the revenue figures. Such report and statement shall
be in the form and format determined necessary by the Town Board,
or its designee, to reasonably ascertain the accuracy and completeness
of the total remittance, as well as the accuracy and completeness
of all types, categories and sources of revenue, individually. Further,
said report and statement shall show all revenue or other valuable
consideration from whatever source, that is derived from, or caused
to be derived from, or that is attributable to the operation of the
multichannel system or the provision of any service by or using the
multichannel system, including both revenue earned from subscribers
and from those who are not subscribers of multichannel service. The
revenue shall, at least, be reported by service category, type and
level, individually, showing appropriate computations and individual
and incremental rates and charges for all sources, levels, tiers,
clusters and types of service and other revenue sources by kind and
type.
F.
Remittance of the quarterly portion of the franchise
fee, or its functional equivalent, plus time value for the money for
any period of time beyond the end of each calendar quarter, which
shall be the financial return realized by the MCS provider for the
use of the money for the period of time beyond the end of each calendar
quarter if paid less frequently than quarterly, shall be rendered
to the town at the time the financial and revenue report is filed.
G.
In the event that remittance is not made by the due
date, then such MCS provider may also be declared in default of the
franchise, other agreement, license or permit, and should the amount
owed, including time value for the money, remain unremitted for an
additional 60 days after the date of notification of nonremittance
or late remittance, then the franchise, other agreement, license or
permit may be revoked, terminated or canceled as noted elsewhere in
this chapter.
H.
The town reserves the right to audit an MCS provider's
books if the Town Board deems it necessary. If such audit discovers
an underpayment or under-remittance of the franchise fee or its functional
equivalent of greater than 1% of the actual amount owed, then the
MCS provider shall reimburse the town for the cost of such audit,
unless such cost is waived by the Town Board. It is specifically understood
that the right of audit and recomputation of any and all amounts remitted
under a franchise, other agreement, license or permit fee shall always
be accorded to the Town Board.
I.
If an audit or other research discovers that the franchise fee or its functional equivalent has been either underpaid, under-remitted or not paid or remitted for a period exceeding six months from the original due date, notwithstanding Subsection G of this section, then the Town Board may seek full recovery of the underpaid, under-remitted, unpaid or unremitted fees, plus interest, not to exceed 1 1/2% per month if permitted by state law, or the maximum allowable under state law if state law at any point in time establishes a maximum permissible interest rate.
J.
All annual reports due and pertaining to the remittance of the franchise fee, or its functional equivalent, will be certified by an officer of the MCS provider or its parent and will be provided in the form, format and detail applicable to quarterly reports under Subsection E of this section. Such MCS provider shall maintain records used in the preparation of said reports, to be produced in their totality upon request or demand by the Town Board.
K.
No acceptance of any remittance shall be construed
as a release of or an accord or satisfaction of any claim that the
town might have for further or additional sums payable under the terms
of this chapter or a franchise, other agreement, license or permit
or for any other performance or obligation of a franchised MCS provider
hereunder.
L.
Payments of compensation made by a franchised MCS
provider to the town, or remittances of amounts collected, pursuant
to the provisions of this chapter, shall be considered in addition
to, and exclusive of, any and all taxes, business license fees, other
fees, other levies or assessments presently in effect or subsequently
adopted.
M.
A franchise fee or its functional equivalent, shall
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.
Nothing in this section shall be construed to limit
the authority of the town to require the payment or the collection
and remittance of a fee or other assessment of any kind on any person
(other than a franchised MCS provider or an MCS provider operating
under another form of agreement or a license or permit) 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 provider of a particular service directly bills
a subscriber or the MCS provider acts as collection agent for a provider
of a particular service who directly bills a subscriber(s), or where
a person leases a channel for commercial use and sells advertising
or goods on that channel and receives the money directly or through
a third party.
O.
For any twelve-month period, the fees paid or remitted by any person who provides any such multichannel service pursuant to Subsection N of this section shall not exceed 5% of such person's gross revenue derived in such period from the operation of the multichannel system in the town, including the provision of service over the system, or such higher amount or percentage as may be authorized by the FCC, Congress or other governmental entity with authority to increase the allowable percentage or amount of such fees.
P.
If, at any time, the highest court of the nation,
or the highest court of the state, invalidates, voids or rules as
unconstitutional or unenforceable the concept of franchise fees, then
the Town Board may impose an alternative user charge on the MCS provider
in lieu of the franchise fee, as provided in this chapter.
Q.
In light of Subsection P of this section, in the event that the applicable provision of the franchise, other agreement, license or permit were to be ruled unconstitutional or unenforceable, so that the town's source of recompense for the cost of administering this chapter and any franchise agreement, other agreement, license or permit and the cost of maintaining the public property and rights-of-way and the right to require fair and reasonable compensation for the private, profit-making use and occupancy of the public property and rights-of-way may be protected, the MCS provider providing service under a franchise, other agreement, license or permit may be required to pay to the town a fee using a different method and manner for the computation and collection of the fee as provided for in this chapter, including specifically a right-of-way occupancy fee, or the functional equivalent of such, if permitted under state law.
R.
Subject to federal law and notwithstanding anything
preceding in this section, without limitation other than state or
federal law, nothing shall limit the authority of the town to assess
and impose a franchise fee, or its functional equivalent, on any portion,
category or type of revenue or to exempt any portion, category or
type of revenue from inclusion in the computational base used to calculate
the franchise fee or its functional equivalent, so long as such is
done in a nondiscriminatory and competitively neutral manner with
respect to competitive MCS providers in the town and so long as the
fee does not exceed the maximum allowable under law.
S.
Notwithstanding anything in this section, in the event
that an MCS provider does not pay the franchise fee itself, but instead,
if permitted by federal law or rule, chooses to pass the franchise
fee through to subscribers, incrementally and in addition to the amount
owed for service, so that the effect is that the franchise fee is
paid by the subscribers and not the MCS provider, and is merely collected
and remitted by the MCS provider then in such an instance the MCS
provider shall not be permitted to deduct the franchise fee from what
is owed for property taxes, or any other taxes or money, due the town.
A.
Pursuant to Section 253(c) of the 1996 Telecommunications
Act, the town deems it appropriate to reserve the right to assess,
impose and collect rent from an MCS provider occupying and using the
publicly owned and/or maintained rights-of-way and other town-owned
and/or maintained property and to assess, impose and collect rent
from a franchisee or other MCS provider for the private, commercial
use of the public property and rights-of-way in the town.
B.
Unless specifically prohibited by federal or state
law, the town reserves the right to require payment of rent or a right-of-way
occupancy fee, or the functional equivalent of either, by an MCS provider
for the private, commercial use and occupancy of the public property
and rights-of-way, subject to any statutory limitations or requirements
set by state or federal law.
C.
As regards service providers of like or similar kinds
or nature, the town shall at all times attempt to assure that the
imposition of rent or a right-of-way occupancy fee is done on a non-discriminatory
and competitively neutral basis.
D.
The amount of the rent or right-of-way occupancy fee
shall not exceed the fair market value of the town's property and
public rights-of-way or that portion of the town's property and public
rights-of-way used and occupied by the MCS provider, as determined
by the town's assessor, or another qualified individual as may be
designated by the town.
E.
The assessment shall be based upon either the fair
market value of like or similar property adjacent to the town's property
or public rights-of-way that are used and occupied by that portion
of the MCS provider's system serving that portion of the town, or
the average fair market value of commercially zoned property within
the town as determined by ascertaining the average or mean value for
the preceding three years, whichever is less.
F.
Notwithstanding anything to the contrary in this section,
the town may negotiate with an MCS provider for the in-kind provision
of services or other valuable consideration in lieu of all or a portion
of the amount that would otherwise be required to be paid as cash.
However, the town is not obligated to grant this option to any MCS
provider, so long as it applies this authority in a manner among like
or similar service providers that is nondiscriminatory and competitively
neutral with respect to the value received by the town.
A.
There shall be no assignment of an MCS provider's
franchise, other agreement, license or permit in whole, or in part,
nor shall there be any change in the legal or financial control of
the franchisee, licensee, permittee or operator of the system directly
or indirectly nor of any parent entity where such results in any change
in control of the franchisee, licensee, permittee or operator of the
system, whether such change in control is direct or indirect, de juri
or de facto, or change in control or ownership of the assets of the
franchisee, licensee, permittee or operator of the system without
the prior express written approval and consent of the Town Board.
B.
Any assignment or change in control without such prior
written consent shall constitute a violation of this chapter and a
default of the franchise, other agreement, license or permit, which
may, at the sole discretion and in the sole judgment of Town Board,
subject an MCS provider's franchise, other agreement, license or permit,
or any other operating authority applicable to operating the MCS system
within the town, to revocation.
C.
An MCS provider, classified as a cable operator, shall
have its franchise, other agreement, license or permit assigned, transferred
or sold only in accordance with the Cable Act, FCC rules, state law,
and PSC rules and regulations, as such may be applicable at the time.
D.
For all MCS providers subject to this section, including those classified as cable operators, the franchise, other agreement, license or permit shall be assigned, transferred, sold, or control changed, as described in Subsection A of this section, only after the Town Board determines that the proposed transferee or controlling entity can and will, unless granted separate relief, meet all obligations contained in the existing franchise agreement, other agreement, license or permit and that there are no outstanding uncured violations of the franchise, other agreement, license or permit or of this chapter and that all money that may be owed the town has been paid in full.
A.
With respect to franchised MCS providers classified as cable operators, or other MCS providers operating under another form of agreement, a license or a permit, the Town Board shall follow the rules and procedures adopted by the state, including those of the PSC if such are adopted and as may be applicable to any type of MSC provider, concerning the default, termination, revocation, alteration or suspension of a cable franchise or other agreement, license or permit, in addition to the payment of fines and/or penalties and the imposition of penalties, if not impermissible under applicable law. In the absence of such rules and procedures by the state, including the PSC, MCS providers classified as cable operators, or other MCS providers operating under another form of agreement, license or permit, shall be subject to the rules and procedures noted in Subsections C through L of this section.
B.
In the absence of state or PSC rules concerning the default, termination, revocation or suspension of a franchise or other agreement, license or permit, and for other MCS providers, to the extent permitted by state law, the Town Board adopts the rules and procedures (noted in Subsections C through L of this section) concerning the default, revocation, termination or cancellation of an MCS franchise, other agreement, license, permit or other operating authority granted under this chapter.
C.
When any event, act or omission on the part of an
MCS provider occurs which represents a violation of a provision of
this chapter or its franchise, other agreement, license or permit,
or compromises the corporate character or legal, financial or technical
ability, integrity and/or stability of the multichannel system or
the MCS provider to such a degree that the interests of the subscribers,
or the town, are substantively affected in a negative manner, then
such violation, breach, event, act or omission shall be considered
a material breach of this chapter or any franchise, other agreement,
license or permit as may be applicable. Under such circumstances,
the town shall notify the affected MCS provider, in writing, of the
specific breach or violation and direct such MCS provider to remedy
the breach or violation in accordance with the provisions of this
chapter. For illustrative purposes only, the violations, breaches,
events, acts and omissions include, but are not limited to: bankruptcy,
insolvency, failure to pay taxes or pay or remit franchise fees or
the functional equivalent (including rent or an alternative user charge
in lieu of the franchise fee or its functional equivalent, if applicable),
failure to receive written Town Board approval for an assignment or
transfer of the franchise, other agreement, license or permit, or
repeated failure after notice to abide by the terms and conditions
of the franchise, other agreement, license or permit, or the provisions
of this chapter, including those involving matters of customer service,
consumer protection and safety and safety-related requirements.
D.
Where an MCS provider satisfactorily corrects any
of the enumerated conditions to the satisfaction of the town within
60 days, and where the situation does not involve a repeat of a type
of violation for which the MCS provider has previously received notice,
then the procedure intended under this section shall cease, and in
no event shall the enumerated condition be weighed against such MCS
provider in any subsequent performance review under the terms of the
franchise, other agreement, license or permit. However, to protect
the health and safety of the public, at the discretion of Town Board,
violations of safety-related requirements may be required to be corrected,
eliminated or otherwise cured in less than 60 days.
E.
A copy of the notice of material breach shall be mailed
to the surety of the performance bond, unless otherwise directed by
state law.
F.
Within 75 days after such written notice is mailed
to an MCS provider, the Town Board shall conduct a public hearing
on the matter, unless state law at any time requires a different procedure,
in which event the state-mandated procedure shall control.
G.
The Town Board shall provide written notice to the
affected MCS provider and to the surety of the time and place of said
public hearing in a manner consistent with either state law or as
approved by the Town Board.
H.
At the time of the hearing, the affected MCS provider
may present information on the current status of the alleged violation
of this chapter or breach of the franchise, other agreement, license
or permit, or present arguments as to why the situation is not a violation
or breach, including information in support of such an argument, and/or
why it should not be subjected to sanctions as permitted under this
chapter and applicable state law, rule or regulation. If the situation
has been resolved, or steps are being taken to resolve the situation,
then the franchised MCS provider shall present that information at
the hearing.
I.
If the affected MCS provider fails to attend the hearing
and has not requested and been granted a continuance of the hearing,
then such 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, other agreement, license or permit.
J.
After the public hearing, the Town Board may determine
the 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 Town Board may determine that a local
law violation exists and remains uncured, or that a violation or breach
of the franchise, other agreement, license or permit has been committed
and remains uncured. Consequently, upon a finding that the MCS provider
violated a material ordinance provision, or failed to cure an outstanding
violation of this chapter or of the franchise, other agreement, license
or permit, the Town Board may direct the affected franchised MCS provider
to take corrective action to eliminate, remedy or cure the violation
or breach within a specified period of time, or may declare such franchised
MCS provider in default of the franchise, other agreement, license
or permit, and thereafter may revoke, terminate or cancel the franchise,
other agreement, license or permit pursuant to this section, unless
the franchised MCS provider complies with the Town Board's directive
or order or presents sufficient mitigating circumstances that, in
the sole opinion of the Town Board, warrant less extreme measures.
K.
If the Town Board directs corrective action to take
place within a specified period of time or declares such franchised
MCS provider in default of the franchise, other agreement, license
or permit, 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 Town Board's
action.
L.
If, within the time set forth in the order or directive
of the Town Board, the affected franchised MCS provider or surety
has not complied with the order or directive or submitted a plan detailing
how the affected MCS provider will comply with the order or directive,
including an alternative time frame acceptable to the Town Board,
then the Town Board may revoke such MCS provider's franchise, other
agreement, license or permit and, unless there are further mitigating
circumstances, shall notify the affected franchised MCS provider and
surety forthwith of such action.
A.
The town shall periodically monitor compliance of
MCS providers who are subject to the requirements of this chapter
in whole or in part. The town shall determine a compliance and performance
evaluation procedure for such purposes. Included in such compliance
and performance review and analysis shall be an examination to determine
whether an MCS provider still has the financial, technical, legal
and character qualifications necessary to offer service in the town.
At the discretion of the Town Board, such review may also include
a review of the adequacy of the MCS provider's record of meeting community
and subscriber needs, as particularly relate, but are not limited,
to matters of customer service practices. Such review and analysis
shall also include a review to determine if the operational, maintenance
and performance levels needed to ensure the uninterrupted and acceptable
provision of multichannel services are adequate to meet the needs
and reasonable desires of the community. Such compliance and performance
reviews and evaluations may be conducted at least every three years,
or more frequently if deemed necessary and appropriate due to complaints
or repeated or multiple violations of this chapter or the franchise,
other agreement, license or permit, but not more than once a year.
B.
If, as a result of any investigation, evaluation or determination permitted under this section, the Town Board determines that the MCS provider has not complied with one or more provisions of this chapter for which relief has not been granted for the period covered by the review and analysis, irrespective of whether or not the violation can be corrected, eliminated, remedied or cured, then the Town Board may require the MCS provider to reimburse the town for all actual costs necessitated by such violation(s) or noncompliance. Any matter of noncompliance for which relief has not been properly requested and granted pursuant to § 195-8 of this chapter, shall be deemed a violation of this chapter.
C.
Notwithstanding Subsection B of this section, the Town Board shall give the franchised MCS provider an opportunity either to correct, eliminate, remedy or cure the violation or submit documentation or supporting information that resolves the area of noncompliance to the satisfaction of the Town Board, or explain the lack of effect of the area of noncompliance to the satisfaction of the Town Board. The period of time allowed for the elimination of any violation that can be corrected or eliminated shall be set by the Town Board, which period of time may not be unreasonable, and the Town Board in setting such period of time shall take into account the seriousness of the situation, including but not limited to the impact or potential impact on the health, safety and welfare of the town, its residents, or both.
D.
If any violations of this chapter that are identified
pursuant to this section cannot be eliminated due to the nature of
the violation, including but not limited to the passage of time or
the inability to undo an act or omission, the inability to eliminate
or undo the violation shall not remove or eliminate the obligation
of the MCS provider to cure said violation, as such cure may be reasonably
determined by the Town Board, including but not limited to a financial
cure.
E.
If the franchised MCS provider fails to correct or resolve an area of noncompliance in a timely manner, as such is determined by the Town Board, which period of time may not be unreasonable, taking into account the seriousness of the situation, including but not limited to the impact or potential impact on the health, safety and welfare of the town, its residents or both, or fails to provide an explanation that demonstrates the lack of culpability of the MCS provider in a timely manner, then such failure may be treated as a material violation of this chapter and subject the MCS provider to the appropriate action or sanction of the Town Board, as permitted under this chapter and applicable state and federal law, rule and regulation, including the imposition of fines and penalties as set forth in § 195-126 of this chapter and as permitted by state law.
F.
Notwithstanding anything contained in Subsection E of this section, the elimination, remedy or correction of a violation shall not serve to eliminate the imposition of fines and penalties under § 195-126 of this chapter. Rather, such shall serve to protect an MCS provider from the further and continued accrual of fines and penalties under § 195-126 of this chapter for the same violation.
A.
To the extent permitted by federal law, including
applicable FCC rules and regulations, and state law, including applicable
PSC rules and regulations, the Town Board is authorized to, and may
choose to, regulate the rates for multichannel service, which includes
basic cable service and those charges (including but not limited to
converter rental and additional outlet fees) associated with the provision
of multichannel service. In the event that the Town Board chooses
to regulate rates for basic service, the Town Board shall follow any
and all applicable FCC and PSC rules, regulations and procedures concerning
rate regulation.
B.
Consistent with federal law, before the Town Board
exercises its right to impose, approve or deny the rates and charges
for multichannel service, the Town Board must conduct a public hearing
in which to allow an affected MCS provider, or any other interested
party, an opportunity to express its views concerning said proposed
rate regulation.
C.
Consistent with federal law, if the Town Board requires
a refund with respect to a particular subscriber rate or charge, then
if the MCS provider actually paid the franchise fee and did not merely
collect and remit the franchise fee to the town, the MCS provider
is eligible for a corresponding reduction in and/or rebate of a portion
of the franchise fee, or functional equivalent, that was paid by the
MCS provider for the period applicable to the refund.
D.
Rates or charges paid by subscribers may not reflect
any cost incurred in the course of eliminating or curing any violation
of this chapter or any breach or violation of the franchise, other
agreement, license or permit, including any fines or penalties imposed
because of such violation or breach or any settlement arising out
of any violation or breach, by a franchisee, permittee, licensee or
other operator of an MCS system subject to this chapter.
A.
Each and every MCS provider required to provide PEG
access channels in the town shall be required to interconnect its
multichannel system (through any permissible means) to any other MCS
provider's system operating within the town, for the purpose of allowing
public, educational or governmental access programming to be provided
to all subscribers throughout the town, regardless of which MCS provider
provides multichannel service to a particular subscriber.
B.
To the extent that another MCS provider provides public,
educational or governmental access programming to the other MCS provider's
system, then the other MCS provider shall, in whatever way practicable,
promptly notify its subscribers that another MCS provider is providing
the particular educational or governmental access programming.
A.
In the fourth and seventh years following the effective
date of this chapter, the Town Board shall conduct a review and examination
of this entire local law, including any amendments.
B.
In conducting such a review and examination of the
MCS provider local law, the Town Board shall consider, at a minimum,
the following:
(1)
Whether one or more provisions have been superseded,
clarified or modified by federal or state law (including PSC rule
or regulation);
(2)
Whether one or more provisions have been superseded,
clarified, or modified by a subsequent binding judicial decision;
(3)
Whether one or more provisions are unnecessary or
ineffective in light of emerging and evolving technologies;
(4)
Whether new or different trends relating to MCS providers
warrant or necessitate additional safeguards for customers or subscribers;
and
(5)
Whether the technological, organizational, economic
or customer or subscriber forces associated with competition, with
other changes in the industry or the applicable law have lessened
the need for one or more provisions or have given rise to new or additional
provisions or for certain matters to be addressed in a different manner
or for new matters to be addressed.
C.
If after such a periodic review and examination of
the MCS provider local law, the Town Board determines that one or
more provisions of the MCS provider local law should be amended, repealed,
revised, clarified or deleted, then the Town Board may take whatever
measures necessary (to the extent permitted by law) in order to accomplish
the same. It is noted that where warranted, and if deemed in the best
interests of the town, the Town Board may repeal the entire MCS provider
local law.
A.
Consistent with the Cable Act, no person shall intercept
or receive, or assist in intercepting or receiving, any communications
service offered over a multichannel system, unless specifically authorized
to do so by an MCS provider or as may be specifically authorized by
law.
B.
For the purpose of this section, the term "assist in intercepting or receiving" shall include the manufacture or distribution of equipment intended by the manufacturer or distributor for the unauthorized reception of multichannel service as referenced in Subsection A of this section.
C.
No person, without securing permission from an MCS
provider or making payment to an MCS provider, shall be authorized
to make any connection, whether physically, electrically, acoustically,
inductively or otherwise, with any part of an authorized or franchised
multichannel system for the purpose of receiving or intercepting or
assisting others to receive or intercept any cable service provided
lawfully by the MCS provider.
D.
Any and all MCS providers are encouraged to work with
the Town Board in developing and implementing a plan designed to control
and eliminate the unauthorized reception of certain multichannel services
within the town.
A.
In addition to all other rights and powers vested
in and possessed by the town, the town specifically reserves the right
to assess fines and/or penalties for the failure of an MCS provider
subject to this chapter in whole or in part to comply with any applicable
time or performance-related requirements, or any violation of this
chapter, or for the violation or breach of any federal, state or local
law, rule or regulation that is not specifically preempted from local
enforcement, in the event that such failure has not been remedied
pursuant to procedures set forth in this chapter. Any imposition of
fines shall be preceded by written notice of the violation and shall
set forth the amount of time allowed for elimination of the violation
if such is reasonably possible.
B.
Absent good and just cause, including the provision
of evidence of good faith efforts to comply with the requirements
of this chapter, the failure by an MCS provider to comply with any
time- or performance-related requirement of this chapter will subject
the MCS provider to the assessment and imposition of fines or penalties
as set forth in this section. Once imposed, any fines or penalties
shall continue to accrue, including during any appeals process, until
such time as the payment of the fine and/or penalty is received by
the town or is otherwise specifically waived by the town. Failure
to pay fines and/or penalties within the time provided shall be a
material violation of this chapter and shall be cause to proceed against
either a letter of credit or bond or other surety as may have been
required. Failure to pay any fines under this section shall also constitute
cause to revoke any franchise or other agreement, license or permit
granting permission to provide service in the town.
C.
An MCS provider found to be in violation of this chapter
may be fined and penalized by the town, according to the following
list of violations and schedule of fines and penalties for the violations
listed. Each occurrence shall be deemed a separate violation, and
each day or part thereof following written notification by the town
and the expiration of any period of time allowed for the elimination,
remedy or cure of the violation that the violation continues or is
not eliminated, remedied or cured as prescribed by the Town Board
shall be deemed a separate violation, punishable separately. The imposition
and payment of fines and penalties as set forth shall not serve to
extinguish or eliminate any other rights of prosecution the town may
have under law:
(1)
For failure to complete any system construction, reconstruction
or upgrade in any section of the town or in the town as a whole, as
committed to pursuant to a proposal, franchise agreement or other
agreement, license or permit: an amount not to exceed $500.
(2)
For failure to provide any data, documents, reports
or information required by this chapter or that is needed to monitor
or determine compliance and to administer this chapter: an amount
not to exceed $100.
(3)
For failure to test, analyze and report on the performance
of the system following a written request pursuant to this chapter
or a franchise, other agreement, license or permit: an amount not
to exceed $200.
(4)
For failure to meet the customer service requirements
of this chapter or a franchise, other agreement, license or permit:
an amount not to exceed $100.
(5)
For failure to comply with any consumer protection
requirements of this chapter or a franchise, other agreement, license
or permit: an amount not to exceed $100.
(6)
For failure to comply with any requirements regarding
deposits and the return of deposits as set forth in this chapter,
or a franchise, other agreement, license or permit: an amount not
to exceed $100 per day, per incident or per affected subscriber.
(7)
For failure to comply with any requirements regarding
the improper or impermissible discontinuance or disconnection of a
subscriber's service as set forth in this chapter or a franchise,
other agreement, license or permit: an amount not to exceed $100.
(8)
For failure to comply with any requirements regarding
connections and disconnections as set forth in this chapter or a franchise,
other agreement, license or permit: an amount not to exceed $100.
(9)
For failure to comply with any requirements regarding
disconnection and downgrade fees as set forth in this chapter or a
franchise, other agreement, license or permit: an amount not to exceed
$100.
(10)
For failure to comply with any requirements
regarding charges for repair of equipment or service disconnection
as set forth in this chapter or a franchise, other agreement, license
or permit: an amount not to exceed $100.
(11)
For failure to comply with any requirements
regarding any right of rescission as may be set forth in state law
or a franchise, other agreement, license or permit; an amount not
to exceed $500.
(12)
For failure to comply with any requirements
regarding the use and display of identification passes and badges
as set forth in this chapter: an amount not to exceed $50.
(13)
For failure to comply with any requirements
regarding cleanup and proper installation as set forth in this chapter:
an amount not to exceed $100.
(14)
For failure to comply with any requirements
regarding subscribers being advised in writing of specific services
and procedures as set forth in this chapter: an amount not to exceed
$50.
(15)
For failure to meet any safety-related requirements
of this chapter, including fire and electrical codes: an amount not
to exceed $500 per violation.
(a)
In the event that a substantial number of safety-related
violations are found during an inspection of the system within the
town, such being defined as more than 10 in one consecutive or contiguous
mile of system within the town, the town shall not be required to
notify an MCS provider of each and every individual safety or safety-related
violation. Rather, in such an instance, the town may reasonably assume
the findings to be prima facie evidence that the situation is town-wide
and order the entire system to be audited by the MCS provider for
safety-related violations and that all such violations found shall
be eliminated within 30 days of the date of notification by the town.
(b)
In the event of a situation described in Subsection C(15)(a) of this section, fines shall be calculated using the following formula:
|
Number of Violations Found x Total Miles in Town = Total Violations
|
|
Miles of System Inspected
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(c)
As the issue of safety is of paramount concern to the town, as evidenced by the policy of zero tolerance of safety-related violations contained in § 195-80 of this chapter, if the town is forced to notify an MCS provider of safety-related violations the mere elimination of such violations within the required period of time contained in the notice shall not relieve an offending MCS provider from the payment of fines imposed under this section. Fines for safety-related violation shall accrue starting 48 hours after notification by the town of the existence of such violations and shall continue until the MCS provider certifies to the town, in writing, that all safety-related violations associated with its system in the town have been eliminated. However, no fine shall be imposed on an MCS provider for any safety-related violation where it is proven that the violation was caused by a third party having moved or tampered with the MCS provider's facilities and by doing so caused the violation. Notwithstanding anything to the contrary in the preceding exculpatory situation, in the event that a third party places or installs its facilities in a manner as to cause an MCS provider to be in violation of a safety-related requirement, such as the electric or phone company, in order to be relieved of the payment of a fine in such an instance an MCS provider must prove that it previously notified the third party of its action that caused the MCS to be in violation and that the MCS provider has exerted good faith efforts to have the third party alleviate the situation.
(d)
In order to verify and assure continued compliance
with all applicable safety-related requirements, within a reasonable
amount of time after the period of time set forth in the town's notice
for the elimination of all safety-related violations, the town shall
have the system within the town reinspected by a third party that
has no affiliation with any member of the industry. The town may require
the MCS provider to place in escrow with the town a deposit of an
amount deemed to be reasonably sufficient to cover the cost of reinspecting
20% of the system within the town on a random-sample basis and generating
a detailed written report on the findings of the inspection. The amount
of the deposit shall be no less than $10,000, and any amount not expended
shall be promptly returned to the MCS provider.
(16)
For failure to pay the full and complete amount
of any money owed the town, an amount not to exceed $100.
(17)
For failure to comply with the requirements
of this chapter with respect to continuity of service or for threatening
to discontinue service: an amount not to exceed $1,000 for each day
or part thereof that such noncompliance continues or such threat is
not removed in writing to the town following written notification
by the town of the violation.
(18)
For failure or refusal to comply with any of the provisions of § 195-113 of this chapter: $500.
(19)
For failure to comply with any other section,
subsection or provision of this chapter, or a franchise agreement
or other agreement, license or permit: an amount not to exceed $50,
for each instance of noncompliance or violation.
D.
Notwithstanding anything in the preceding subsections
of this section, or any other section of this chapter, unless otherwise
granted relief or a waiver by the Town Board, or unless a longer period
of time after the initial 24 hours following notification by the town
to the franchisee or other MCS provider that a violation exists, each
day that a violation continues shall constitute and be deemed a separate
violation and may be treated as a separate offense.
E.
In the event of an appeal arising out of the enforcement
of this section, or in the event of litigation arising out of a dispute
regarding the enforceability of any action taken by the town under
this section, the franchisee or other MCS provider shall not be excused
from the prompt and timely payment of fines and/or penalties as set
forth in this section during the course of such proceeding. Payment
of fines and/or penalties in such an instance shall be placed in an
escrow account by the town, pending the resolution and decision of
the adjudicating entity.
F.
Notwithstanding anything in this section, or any other section of this chapter, and given the right of an MCS provider to request relief from any provision of this chapter under § 195-8 of this chapter, an MCS provider may not use the payment of fines and/or penalties to evade or avoid compliance with this chapter or any section of this chapter. An attempt to do so shall subject the MCS provider to a fine not to exceed $10,000 for the first occurrence, and for a second such occurrence termination and loss of any franchise or other agreement, license, permit or other operating authority, and a fine of $100,000.
A.
The town shall provide notice and opportunity to eliminate,
remedy or cure for the failure to comply with a time- or performance-related
requirement of this chapter which the town deems sufficient to warrant
the assessment and imposition of fines and/or penalties and as may
be permitted under state law.
B.
Notwithstanding anything to the contrary in the preceding
subsection, or any other subsection of this section, to incent the
protection of the public health and safety and the safety of public
and private property, for situations involving violations of safety
and safety-related codes and requirements where such are deemed to
create an imminent threat or danger to lives or property within the
town and for which the MCS provider has previously been notified of
a situation(s) involving noncompliance with the same or similar situations
or aspects of safety and safety-related codes and requirements, the
MCS provider shall be notified, but may not be granted an opportunity
to remedy or cure prior to the imposition of fines and/or penalties.
Rather, fines and/or penalties may be assessed and imposed immediately,
on a per occurrence per day basis, until the violation(s) is eliminated.
C.
Notice and the opportunity to cure, as required, shall be provided to the affected MCS provider in writing, and shall be sent by certified United States mail, return receipt requested, to the franchisee's or other MCS provider's local place of business. The amount of time given the franchisee or other MCS provider to cure any time or performance requirement of this chapter, or violation of any federal, state or local law, rule or regulation as may be enforced under this chapter, shall be at the discretion of the town to the extent not otherwise governed by this chapter or state or federal law, but in no event less than 24 hours, unless otherwise dictated by emergency situations posing an imminent threat to the health and safety of individuals or as set forth in Subsection B of this section with respect to safety-related violations. Notwithstanding the preceding, or anything else in this section or this chapter, in the event of a situation in violation of the safety-related requirements of this chapter that endangers or has the reasonable possibility of endangering the health or safety of individuals or property, the twenty-four-hour elimination period may be lessened and, in fact, the elimination of the violation may be required the same day, depending upon the seriousness of the matter as a factor of the degree of danger involved.
D.
The town may, in its reasonable discretion, grant
extensions of time to a franchisee or other MCS provider to eliminate,
cure or remedy, where extraordinary circumstances not precipitated
by the franchisee or other MCS provider warrant an extension.
E.
Notwithstanding any notice and opportunity to cure
requirements of the applicable federal or state law, the issuance
of two or more notices to cure for the same or similar time or performance-related
requirement, or breach of a term or condition of a franchise or other
agreement or permit, or violation of this chapter, or violation of
any federal, state or local law, rule, regulation or code within any
twelve-consecutive month period, shall relieve the town of any obligation
to provide further notice and opportunity to cure for subsequent failures
to meet any time- or performance-related requirements, or breaches
of terms or conditions of such franchise or other agreement, license
or permit, violations of this chapter or violations of any federal,
state, or local law, rule, regulation or code. Evidence of subsequent
failures as set forth in this subsection shall be admissible as evidence
in a hearing before the Town Board on the assessment of fines and/or
penalties, provided that the town has provided such evidence to the
franchisee or other MCS provider at least 10 days prior to the hearing
and the MCS provider has an opportunity to be heard at the hearing
and to present evidence in contravention of the charge(s) or in defense
of its actions.
F.
A notice of intent to assess fines and/or penalties
may be issued concurrently with a notice to cure. If a notice of intent
to assess fines and/or penalties is issued concurrently with a notice
to cure, then fines and/or penalties, if assessed, will accrue commencing
with the expiration of the time allowed for an opportunity to cure
as set forth in the notice. The notice of intent to assess fines and/or
penalties shall state the reason for the assessment and imposition
and shall inform the franchisee or other MCS provider that fines and/or
penalties will be assessed from the date of the notice or the end
of the time allowed for an opportunity to cure, whichever is later.
G.
If the franchisee or other MCS provider desires to
appeal the town's assessment of fines and/or penalties, it must file
a written notice of appeal with the Supervisor, delivered by certified
United States mail, return receipt requested, within 10 days of the
receipt of the notice of intent to assess fines and/or penalties.
The Supervisor shall then place the issue of the assessment of fines
and/or penalties before the Town Board.
H.
The town shall then have served upon the affected
MCS provider, by certified Unites States mail, return receipt requested,
a written notice of the date, time and place of the meeting, at least
30 days prior to the day of the meeting of the Town Board at which
the matter will be heard.
I.
Public notice shall be given of the meeting and of
the issue that is to be considered by the Town Board. If the franchisee
or other MCS provider fails to appeal the town's assessment of fines
and/or penalties within the time required by this section, the town's
decision to assess fines and/or penalties shall be final.
J.
The Town Board shall, at the date, time and place
designated for the hearing, hear and consider issues from the Town
and the MCS provider and make a determination regarding the alleged
violation of this chapter or any franchise, other agreement, license
or permit.
(1)
The Town Board shall hear and consider the matter,
including hearing any person interested in the matter wishing to be
heard, and review and consider any relevant evidence. After affording
the MCS provider required rights of due process to be heard, to present
relevant evidence and witnesses and to question any witnesses, the
Town Board shall determine whether or not there was committed a breach
or violation of a time- or performance-related requirement or a breach
of a term or condition of the MCS provider's franchise or other agreement,
license or permit, or of this chapter, or of any federal, state or
local law, rule, regulation or code.
(2)
The franchisee or other MCS provider may, at its own
expense, make a transcript of any such hearing or share the costs
of obtaining a transcript of such hearing equally with the town if
the town has a transcript made.
(3)
Within 30 days following the completion and close
of the hearing, the Town Board shall issue a written decision as regards
whether any failure to comply with any time- or performance-related
requirement, or breach of a term or condition of the franchise or
other agreement, license or permit or of this chapter or of any federal,
state or local law, rule, regulation or code occurred, and such determination
shall be based upon the record of the proceeding, stating with particularity
the reasons for such decision. A copy of the Board's written decision
shall be provided to the franchisee or other MCS provider.
(4)
Should the Town Board find that no breach, violation or failure to comply or perform occurred or, except for situations addressed in Subsection B of this section, that the franchisee or other MCS provider remedied the failure prior to the end of the period allowed for cure, or that the franchisee or other MCS provider instituted substantial good faith actions to remedy the failure to comply or perform after having been provided written notice, and actively and expeditiously started and undertook substantial efforts to complete such remedy, or that fines and/or penalties are not warranted or applicable in the instant situation, all of which shall be determined at the sole discretion of the Town Board, the proceedings shall be terminated and no penalty shall be imposed.
(5)
The Town Board shall be required to base its decision
on a preponderance of the evidence from the record established during
the Town Board's hearing. If the Town Board determines that any failure
to comply with any time- or performance-related requirement or breach
of a term or condition of the franchise or other agreement, license
or permit or of this chapter or of any federal, state or local law,
rule, regulation or code was the fault of the MCS provider and was
within its control, subsequent to the required notice and opportunity
to cure and due process requirements of this chapter, the Town Board
may affirm the assessment and imposition of fines and/or penalties.
The Town Board's decision to affirm the town's assessment of fines
and/or penalties shall be final, and no other remedies, administrative
or otherwise, nor any procedures for such, are provided under this
chapter.
(6)
Prior to imposing any penalty or sanction against the MCS provider for failure to perform any of its obligations under this chapter or its franchise agreement or other agreement or permit, other than fines and/or penalties or termination, the town shall provide the franchisee or other MCS provider notice and opportunity to cure such failure in accordance with the following procedures in Subsections J(7) and (8) of this section.
(7)
The town shall provide the franchisee or other MCS provider with written notice specifying the nature of the failure, breach or violation. The franchisee or other MCS provider shall have a period of 48 hours following the receipt of such notice to cure or satisfy the alleged failure, breach or violation, with the exception of situations addressed in Subsection B of this section.
(8)
In the event that the town concludes that the franchisee
or other MCS provider has failed to comply with any of its obligations
under this chapter or the franchise agreement or other agreement,
license or permit and further, that the MCS provider has not remedied
such failure, breach or violation within the period allowed after
receiving written notice of such, the town may impose whatever penalties
or other sanctions are provided for under this chapter or the franchisee's
or other MCS provider's franchise agreement or other agreement or
permit.
A.
The town is hereby granted the authority to do all
things necessary and permissible to supervise, inspect and regulate
the construction, operation, repair and maintenance of multichannel
systems operating within the town, whether franchised or otherwise,
that are permitted to and do operate under this chapter, in whole
or in part, and to implement procedures for the filing and resolution
of complaints.
B.
The responsibility for such supervision, inspection
and regulation is retained by the Town Board, which is empowered,
among other things, to adjust, settle or compromise any controversy
arising from the operations of any franchisee or other MCS provider,
either on behalf of the town or any subscriber, in accordance with
the best interests of the public and the town; provided, however,
that any person aggrieved by a decision of the town may appeal the
matter for a hearing and determination in accordance with this chapter.
C.
The Town Board reserves the right, at all times, on
behalf of the town or a subscriber, to accept, reject or change any
decision of the Town Board and may adjust, settle or impose a compromise
regarding any controversy arising from the operation of a franchisee
or other MCS provider that is subject to this chapter in whole or
in part or from any provision of this chapter.
D.
If an advisory committee is established by the town,
a franchisee or other MCS provider is encouraged to participate in
advisory committee meetings relating to MCS provider operations.
A.
Sections 195-1 through 195-17, 195-29, 195-30, 195-31, 195-37, 195-61, 195-66, 195-68, 195-69, 195-76, 195-77, 195-78, 195-79, 195-80, 195-82, 195-83, 195-84, 195-90, 195-93, 195-101, 195-102, 195-111, 195-113, 195-125, 195-126 and 195-127, of this chapter shall become effective on the first day of the month following the date of adoption.
B.
Sections 195-25, 195-26, 195-27, 195-28, 195-32 through 195-36, 195-38, 195-39, 195-40, 195-41, 195-42, 195-43, 195-56, 195-57, 195-58, 195-59, 195-75 through 195-60, 195-67, 195-81, 195-91, 195-92, 195-100, 195-103, 195-104, 195-105, 195-106, 195-107, 195-108, 195-110, 195-112, 195-119, 195-120, 195-124 and 195-128 of this chapter shall become effective on the first day of the month following the 120th day after the date of adoption of this chapter.
