For the purposes of this chapter, the following terms, phrases, words,
and abbreviations shall have the meanings given herein. When not inconsistent
with the context, words used in the present tense include the future tense;
words in the plural number include the singular number and words in the singular
number include the plural number; and the masculine gender includes the feminine
gender. The words "shall" and "will" are mandatory, and "may" is permissive.
Words not defined in this chapter shall have the same meaning as in Title
VI of the Communications Act of 1934, as amended, 47 USC § 521 et
seq., and, if not defined therein, their common and ordinary meaning. References
to governmental entities (whether persons or entities) refer to those entities
or their successors in authority. If specific provisions of law referred to
herein are renumbered, then the reference shall be read to refer to the renumbered
provision. References to laws, ordinances or regulations shall be interpreted
broadly to cover government actions, however nominated, and include laws,
ordinances and regulations now in force or hereinafter enacted or amended.
Refers to the availability of a cable system or open video system
for public, education or government use (including institutional network use)
by various agencies, institutions, organizations, groups, and individuals,
including the City of Cohoes and its designated access providers, to acquire,
create, and distribute programming not under a franchisee's editorial
control, including but not limited to:
PUBLIC ACCESS or PUBLIC USEAccess where organizations, groups, or individual members of the general public, on a nondiscriminatory basis, are the primary or designated programmers or users having editorial control over their communications;
EDUCATION ACCESS or EDUCATION USEAccess where accredited educational institutions are the primary or designated programmers or users having editorial control over their communications;
GOVERNMENT ACCESS or GOVERNMENT USEAccess where government institutions or their designees are the primary or designated programmers or users having editorial control over their communications.
A person that (directly or indirectly) owns or controls, is owned
or controlled by, or is under common ownership or control with, another person.
Any application, proposal, submission, or request filed pursuant
to the requirements of this chapter to a) obtain a new franchise; b) transfer
a franchise; c) extend a franchise; or otherwise modify a franchise. A proposal
includes an applicant's initial proposal, submission or request, as well
as any and all amendments or supplements to the proposal and relevant correspondence.
A charge to recover the City of Cohoes' actual costs of processing
applications hereunder.
Any service tier regularly provided to all subscribers which includes
the retransmission of local television broadcast signals.
The Cable Communications Policy Act of 1984, 47 U.S.C. §§ 521
et seq., as amended by the Cable Television Consumer Protection and Competition
Act of 1992, as further amended by the Telecommunications Act of 1996, as
further amended from time to time.
Refers to open video systems (OVS) and cable systems.
A facility, consisting of a set of closed transmission paths and
associated signal generation, reception, and control equipment that is designed
to provide cable service which includes video programming and which is provided
to multiple subscribers within a community, but such term does not include:
a) a facility that serves only to retransmit the television signals of one
or more television broadcast stations; b) a facility that serves subscribers
without using, or connecting to a facility that uses, any public right-of-way
within the City of Cohoes; c) a facility of a common carrier which is subject,
in whole or in part, to the provisions of Title II (Common Carriers) of the
Communications Act of 1934, as amended, except that such facility shall be
considered a cable system to the extent such facility is used in the transmission
of video programming directly to subscribers, unless the extent of such use
is solely to provide interactive on-demand services; d) any facilities of
any electric utility used solely for operating its electric utility systems;
or e) an OVS that is certified by the FCC. Any reference to a cable system
includes the cable system as a whole, or any part thereof, including all pedestals,
equipment cabinets, electronic equipment and devices appurtenant to the system.
A portion of the electromagnetic frequency spectrum which is used
in a cable system or OVS and which is capable of delivering a television signal
whether in an analog or digital format. The definition does not restrict the
use of any channel to the transmission of analog television signals.
The City of Cohoes and all departments, divisions, and agencies thereof.
The named actions interpreted broadly, encompassing, among other
things, installation, extension, maintenance, replacement of components, relocation,
undergrounding, grading, site preparation, adjusting, testing, make-ready,
and excavation.
A channel designed and activated to carry a transmission from the
head end to other points on a cable communications system, including interconnections.
Includes any physical element used in connection with, or designed
to be used in connection with, the provision of services, whether or not located
in the public rights-of-way, including, without limitation, pedestals, cabinets,
ducts and conduits (whether empty or occupied), transformers, equipment, drains,
handholds, lines, line extensions, service drops, manholes, poles, power supplies
and generators, splice boxes, surface location markers, vaults, tunnels, amplifiers,
power guards, nodes, cables, and fiber optics (whether active or dark).
The Federal Communications Commission.
Refers to an authorization granted by the City of Cohoes to the operator
of a cable communications system giving the operator the nonexclusive right
to occupy the space or use facilities upon, across, beneath, or over public
rights-of-way in the City of Cohoes to provide specified services within a
franchise area.
The area of the City of Cohoes that a franchisee is authorized to
serve by the terms of its franchise or by operation of law.
Refers to a person holding a cable communications system franchise
granted by the City of Cohoes.
In consideration of the grant and exercise of a franchise to construct,
install, operate, or provide services using facilities in the public rights-of-way,
a grantee shall pay to the City of Cohoes a franchise fee expressed as a percentage
of gross revenues or some other measure. The franchise shall specify the fee
to be paid, and the gross revenues to be included in the fee calculation.
If a franchise granted pursuant to this chapter specifies a franchise fee
established as the result of limiting applicable law, the City of Cohoes shall
have the option to renegotiate the amount of the franchise fee upon a change
in applicable law. Nothing herein requires a person to pay amounts in excess
of any limits that may be established by state or federal law.
UVPP fees.
All cash, credits, property, or other consideration of any kind or
nature received directly or indirectly by a grantee or its affiliates from
any source whatsoever arising from, attributable to, or in any way derived
from a grantee's operation of a cable system within the franchise area.
Gross revenues include, but are not limited to, fees charged to subscribers
for basic service; fees charged to subscribers for any optional, premium,
per-channel, or per-program service; monthly fees charged to subscribers for
any tier of service other than basic service; installation, disconnection,
reconnection, and change-in-service fees; leased channel fees; fees, payments,
or other payment received as consideration from programmers for carriage of
programming on the cable system; converter rentals or sales; studio rental,
production equipment, and personnel fees; advertising revenues, including
a per-capita share of advertising revenues for advertising carried on more
than one cable system; revenues from home shopping channels; sales of programming
guides; and such other revenue sources as may now exist or hereafter develop.
The definition shall be interpreted in a manner which permits the City of
Cohoes to collect the maximum franchise fee permitted by law, irrespective
of the source of revenue. Gross revenues, however, shall not include any bad
debt (defined as unpaid subscriber or advertiser accounts), any taxes on services
furnished to a grantee and imposed directly upon any subscriber or user by
the state, City, or other governmental unit and collected by a grantee on
behalf of said governmental unit. The amount paid as a franchise fee shall
not be deducted from gross revenues unless required to be deducted under federal
law.
Refers to the legal authorization, terminable at will, to use a particular,
discrete, and limited portion of the public rights-of-way to construct, operate,
or repair a communications facility.
The Mayor of the City of Cohoes or the Mayor's designee.
When used with reference to a system, refers to a person 1) who directly
or through one or more affiliates provides service over a cable communications
system and directly or through one or more affiliates owns a significant interest
in such facility; or 2) who otherwise controls or is responsible for, through
any arrangement, the management and operation of such a facility.
Open video system. A reference to an OVS includes pedestals, equipment
enclosures (such as equipment cabinets), amplifiers, power guards, nodes,
cables, fiber optics and other equipment necessary to operate the OVS or installed
in conjunction with the OVS.
Includes any individual, corporation, partnership, association, joint-stock
company, trust, or any other legal entity, hut not the City of Cohoes.
Any property that is owned or under the control of the City of Cohoes
that is not a public right-of-way, including for purposes of this chapter,
but not limited to, buildings, parks, poles, structures in the public rights-of-way
such as utility poles and light poles, or similar facilities or property owned
by or leased to the City of Cohoes.
The surface of and the space above and below any street, road, highway,
freeway, bridge, lane, path, alley, court, sidewalk, parkway, drive, or right-of-way
or easement primarily dedicated to travel, now or hereafter existing within
the City of Cohoes, which may be properly used for the purpose of installing,
maintaining, and operating a cable communications system, and any other property
that a franchisee is entitled by state or federal law to use by virtue of
the grant of a franchise.
The City of Cohoes' affirmative act of terminating a franchise.
Any accredited primary school, secondary school, college, and university.
The City of Cohoes or any person who is lawfully receiving, for any
purpose or reason, any cable service via a cable communications system, whether
or not a fee is paid for such service.
The conclusion of a franchise by any means, including but not limited
to by expiration of its term, abandonment, or revocation.
Any person who uses capacity on a franchised cable system to deliver
cable service or other communications service [as that term is used in 47
U.S.C. Section 542(h)] to subscribers and who is not an affiliate of the grantee.
A channel designed and activated to carry transmissions from a point
on the cable system, other than the head-end, to the head-end or another point
on the cable system.
A person or the City of Cohoes utilizing a channel, capacity or equipment
and facilities for purposes of producing or transmitting material, as contrasted
with the receipt thereof in the capacity of a subscriber.
No person may construct or operate a cable communications system in
the City of Cohoes without first obtaining a City of Cohoes franchise therefor.
Consistent with the requirements of due process, a person's failure
to obtain a franchise as required by this chapter may, in the City's
discretion, result in:
A.
Forfeiture, by operation of law, of the person's
facilities located in the public rights-of-way that are not authorized by
an existing franchise; and/or
B.
A requirement that the facilities be removed and that
penalties and damages be paid. Failure to remove facilities upon the lawful
demand of the City shall be deemed a violation, punishable pursuant to § C3-14
of the City Charter. In the event of a continuing violation, each day shall
be deemed a separated violation. This shall be in addition to any civil remedies
at law or equity that are available to the City.
Grantees of franchises existing as of the effective date of this chapter
shall, in addition to all the obligations and duties prescribed by the terms
of their existing franchises, be subject to the substantive and procedural
requirements herein, except as prohibited by applicable law. Nothing herein
is intended to invalidate a lawful, existing franchise or to waive any obligations
imposed by such a franchise. Notwithstanding the foregoing, provisions of
this chapter that expressly refer to a "franchise granted pursuant to this
chapter" shall not apply to franchises initially granted prior to the effective
date of this chapter.
Any franchise shall be issued in the form of an ordinance and must be
accepted by the franchisee to become effective.
Any person seeking to obtain a franchise; transfer a franchise; extend
the term of an existing franchise; renew a franchise; or modify an existing
franchise to add new services that are required to be authorized by a franchise
pursuant to this chapter shall submit a signed original of its application
and six copies to the City Clerk. The Clerk shall make a proposal available
for public inspection. The application must conform to all of the requirements
of this chapter. Requests for other types of franchise modifications may be
processed by the City of Cohoes without an application, and submitted for
approval. However, nothing herein shall prevent the City of Cohoes from requiring
an application in the event the City of Cohoes determines, based on the nature
of the requested modification, that the public interest would best be served
by the submission of an application pursuant to this chapter.
A.
Scope. A franchise granted pursuant to this chapter shall
authorize and permit a franchisee to construct, operate and repair a cable
system or an OVS (as applicable) to provide cable service in the City of Cohoes,
and for that purpose to erect, install, construct, repair, replace, reconstruct
and maintain facilities appurtenant to such system in, on, over, under, upon,
across, and along those public rights-of-way that the City of Cohoes may authorize
a franchisee to use.
B.
Nothing passes by implication. A franchise shall not
convey rights other than as specified in this chapter or in a franchise agreement;
no rights shall pass by implication.
C.
Franchise not in lieu of other authorizations. A franchise
shall not include or be a substitute for:
(1)
Compliance with requirements for the privilege of transacting
and carrying on a business within the City of Cohoes, including but not limited
to complying with the conditions the City of Cohoes may establish before constructing
facilities for, or providing, non-cable services;
(2)
Any permit, agreement or authorization required in connection
with operations on or in public rights-of-way or public property, including
by way of example and not limitation encroachment permits for street construction;
or
(3)
Any permits or agreements for occupying any other property
of the City of Cohoes or private entities to which access is not specifically
granted by the franchise.
D.
Franchisee must comply with other laws. A franchise does
not relieve a franchisee of its duty to comply with all City of Cohoes ordinances
and regulations, and every franchisee must comply with the same. Likewise,
the rights granted under a franchise are subject to the exercise of police
and other powers the City of Cohoes now has or may later obtain, including
but not limited to the power of eminent domain. Every franchise shall be deemed
to incorporate all the requirements of the City of Cohoes Charter.
E.
Franchise not a grant of property rights. A franchise
does not convey title, equitable or legal, in the public rights-of-way. Rights
granted may not be subdivided or subleased.
F.
Franchise nonexclusive. No franchise shall be exclusive,
or prevent the City of Cohoes from issuing other franchises or authorizations,
or prevent the City of Cohoes from itself constructing, operating, or repairing
its own cable communications system, with or without a franchise.
G.
Franchise term. Every franchise shall be for a term of
years, which term shall be eight years, unless a franchise specifies otherwise.
H.
Costs borne by franchisee. Unless otherwise specifically
stated in a franchise or required by law, all acts which a franchisee is required
to perform under the franchise or applicable law must be performed at the
franchisee's expense.
I.
Failures to perform. If a cable communications system
operator fails to perform work that it is required to perform within the time
provided for performance, the City of Cohoes may perform the work and bill
the operator therefor. The operator shall pay the amounts billed within 30
days.
A.
Adoption of regulations. The City of Cohoes, through
its Board of Managers, may from time to time adopt regulations to implement
the provisions of this chapter. This chapter, and any regulations adopted
pursuant to this chapter are not contracts with any franchisee, and may be
amended at any time.
B.
Delegation. The Mayor of the City of Cohoes or his/her
designee (hereafter referred to as the "Cable Administrator") is hereby authorized
to administer the provisions of this chapter and any franchise issued pursuant
thereto, and to provide any notices (including noncompliance notices) and
to take any action on the City of Cohoes' behalf that may be required
hereunder or under applicable law.
C.
No waiver. The failure of the City of Cohoes, upon one
or more occasions, to exercise a right or to require compliance or performance
under a franchise or any other applicable law shall not be deemed to constitute
a waiver of such right or a waiver of compliance or performance, unless such
right has been specifically waived in writing.
D.
Administration of public, educational and government
access. The City of Cohoes may designate one or more entities, including itself,
to control and manage the use of public, educational and government access
channels, facilities and equipment.
A.
Prior approval required. Every franchise shall be deemed
to be held in trust and to be personal to the franchisee. Any transfer that
is made without the prior approval of the City of Cohoes shall be deemed to
impair that trust. A transfer is any transaction pursuant to which:
(1)
A cable communications system is sold or assigned (except
the term does not include sale of portions of the cable system that are removed);
(2)
There is any change, acquisition, or transfer of control
of the franchisee or its direct or indirect parents, whether by merger, consolidation,
sale of assets or ownership interests, or by any other means. A transfer will
be deemed to have occurred whenever there is a change, acquisition or transfer
of control of more than a ten-percent ownership in the franchisee or its direct
or indirect parents by any entity or a group of entities acting in concert.
However, a transfer also occurs whenever there is a change in actual working
control, in whatever manner exercised, over the affairs of a franchisee or
its direct or indirect parents. Without limiting the above, any change in
the general partners of a franchisee will be presumed a change in control;
(3)
The rights and/or obligations held by the franchisee
under the franchise are transferred, sold, assigned, or leased, in whole or
in part, directly or indirectly, to another party.
B.
Exception for mortgages. Notwithstanding any other provision
of this chapter, pledges in trust or mortgages of the assets of a cable communications
system to secure the construction, operation, or repair of the system may
be made without application and without the City of Cohoes prior consent.
However, no such arrangement may be made if it would in any respect under
any condition: 1) prevent the cable communications system operator or any
successor from complying with the franchise or applicable law; or 2) permit
a third party to succeed to the interest of the operator, or to own or control
the system, without the prior consent of the City of Cohoes. Any mortgage,
pledge or lease shall be subject to and subordinate to the rights of the City
of Cohoes under any franchise, this chapter, or other applicable law.
A.
Franchisee must follow local rules. The construction,
operation, and repair of cable communications systems shall be performed in
compliance with all laws, ordinances, departmental rules, regulations, and
practices affecting such system. By way of example and not limitation, this
includes zoning and safety codes, construction standards, regulations for
providing notice to persons that may be affected by system construction, and
directives governing the time, place and manner in which facilities may be
installed in the rights-of-way. Persons engaged in the construction, operation,
or repair of communications facilities shall exercise reasonable care in the
performance of all their activities and shall use commonly accepted methods
and devices for preventing failures and accidents that are likely to cause
damage, injury, or nuisance to the public or to property.
B.
No permit without franchise. A franchise is required
before a permit may be issued for work associated with the construction of
a cable communications system. Any permit issued for such work to a person
who does not hold a franchise shall vest no rights in the permittee; the permit
may be revoked at will, and the permittee shall remove all facilities installed
under the permit upon the City of Cohoes demand.
C.
Permits must be obtained. Construction, operation, or
repair of a cable communications system shall not commence until all required
permits have been obtained from the proper City of Cohoes officials and all
required fees have been paid. All work performed will be performed in strict
accordance with the conditions of the permit. Upon order of the City of Cohoes,
any work and/or construction undertaken that is not in complete compliance
with the City of Cohoes requirements, or which is installed without obtaining
necessary permits and approvals, shall be removed.
D.
No interference. Interference with the use of the public
rights-of-way by others, including others that may be installing cable communications
systems, must be minimized. The City of Cohoes may require a person using
the rights-of-way to cooperate with others through joint trenching and other
arrangements to minimize adverse impacts on the rights-of-way.
E.
Plans for and publicizing work. Work shall be publicized
as the City of Cohoes may direct from time to time. The publication of work
may be used to notify the public and operators of other communications systems
of the impending work, in order to minimize inconvenience and disruption to
the public.
(1)
Each communications system owner shall provide the City
of Cohoes a plan for any initial system construction, or for any substantial
rebuild, upgrade or extension of its facility, which shall show its timetable
for construction of each phase of the project and the areas of the City that
will be affected.
(2)
The Mayor and/or his designee may from time to time,
when the City receives application for a permit to use a particular route
or upon the Mayor's and/or his designee's own initiative, designate
by published order a route or proposed route for installation of communications
facilities and may a) require all persons who wish to emplace underground
facilities along that route or any part thereof to install them during a specified
period and b) otherwise prohibit emplacement of such facilities along the
route or any part thereof for 24 months or after such other longer period
as is necessary to protect the public.
F.
Existing poles to be used. To the extent possible, operators
of cable communications systems shall use existing poles and conduit.
(1)
Additional poles may not be installed in the right-of-way,
nor may pole capacity be increased by vertical or horizontal extenders, without
the permission of the City of Cohoes' Mayor or his/her designee.
(2)
To minimize disruption of public passage or infrastructure,
to forestall or relieve exhaustion of rights-of-way capacity, or to protect
environmentally sensitive areas, the Mayor and/or his designee may require,
as a condition of issuing any rights-of-way permit for erection of new poles
or construction of underground conduit the installation of which requires
excavation of or along any traveled way, that the franchisee, licensee, or
holder of the rights-of-way permit emplace pole space or empty conduits in
excess of its own present and reasonably foreseeable requirements for the
purpose of accommodating the City and/or other franchisees and licensees.
G.
Undergrounding:
(1)
Whenever all existing utilities are located underground
in an area in the City of Cohoes, every cable communications system operator
in the same area must locate its cable communications system underground.
(2)
Whenever the owner of a pole locates or relocates underground
within an area of the City of Cohoes, every cable communications system operator
in the same area shall concurrently relocate its facilities underground.
(3)
The City of Cohoes' Mayor or his/her designee may,
for good cause shown, exempt a particular system or facility or group of facilities
from the obligation to locate or relocate facilities underground, where relocation
is impractical or where the interest in protecting against visual blight can
be protected in another manner. Nothing in this section prevents the City
of Cohoes from ordering communications facilities to be located or relocated
underground under other provisions of the City of Cohoes Code.
H.
Prompt repairs. Any and all public rights-of-way, other
public property, or private property that is disturbed or damaged during the
construction, operation or repair of a cable communications system, shall
be promptly repaired by the operator. Public property and public rights-of-way
must be restored to the satisfaction of the City of Cohoes or to a condition
as good or better than before the disturbance or damage occurred.
I.
Movement of facilities for government.
(1)
A cable communications system operator shall, by a time
specified by the City of Cohoes, protect, support, temporarily disconnect,
relocate, or remove any of its property when required by the City of Cohoes
by reason of traffic conditions; public safety; public right-of-way construction
and repair (including regrading, resurfacing or widening); public right-of-way
vacation; construction, installation or repair of sewers, drains, water pipes,
power lines, signal lines, tracks, or any other type of government-owned system
or utility, public work, public facility, or improvement; or for any other
purpose where the work involved would be aided by the removal or relocation
of the cable communications system. Collectively, such matters are referred
to below as the "public work."
(2)
The City of Cohoes shall provide written notice describing
where the public work is to be performed at least one week prior to the deadline
by which a cable communications system operator must protect, support, temporarily
disconnect, relocate or remove its facilities; provided that, in an emergency
or where a cable communications system creates or is contributing to an imminent
danger to health, safety, or property, the City of Cohoes may protect, support,
temporarily disconnect, remove, or relocate any or all parts of the cable
communications system without prior notice and charge the cable communications
system operator for costs incurred.
J.
Movement for others.
(1)
To accommodate the construction, operation, or repair
of the facilities of another person authorized to use the streets or public
property, a franchisee shall, by a time specified by such person, protect,
support, temporarily disconnect, relocate or remove its facilities. The franchisee
must be given written notice describing where the construction, operation
or repair is to be performed at least 15 days prior to the time by which its
work must be completed. The City of Cohoes will resolve disputes as to responsibility
for costs associated with removal, relaying, or relocation of facilities among
entities authorized to install facilities in the streets or on public property,
if such entities are unable to do so themselves.
(2)
A cable communications system operator shall, on the
request of any person holding a valid permit issued by a governmental authority,
temporarily raise or lower its wires by a time specified to permit the moving
of buildings or other objects. A cable communications system operator shall
be given not less than seven days' advance notice to arrange for such
temporary wire changes. The expense of such temporary removal or raising or
lowering of wires shall be paid by the person requesting the same.
K.
Abandonment in place.
(1)
A cable communications system operator may abandon any
property in place in the public rights-of-way upon written notice to the City
of Cohoes. However, if, within 90 days of the receipt of written notice of
abandonment, the City of Cohoes determines that the safety, appearance, functioning
or use of the public right-of-way and facilities in the public right-of-way
will be adversely affected, the property must be removed by a date specified
by the City of Cohoes.
(2)
A cable communications system operator that abandons
its property must, upon request, transfer ownership of the properties to the
City of Cohoes at no cost and execute necessary quitclaim deeds and indemnify
the City of Cohoes against future costs associated with mitigating or eliminating
any environmental hazard associated with the abandoned property.
L.
System subject to inspection. Every cable communications
facility shall be subject to inspection and testing by the City of Cohoes.
Each operator must respond to requests for information regarding its system
and plans for the system as the City of Cohoes may from time to time issue,
including requests for information regarding its plans for construction, operation
and repair and the purposes for which the plant is being constructed, operated,
or repaired.
M.
Underground services alert. Each operator of a cable
communications system that places facilities underground shall be a member
of the regional notification center for subsurface installations (Underground
Services Alert) and shall field mark the locations of its underground communications
facilities upon request. The operator shall identify the location of its facilities
for the City of Cohoes at no charge
N.
Plan for construction. Each cable communications system
operator shall provide the City of Cohoes a plan for any initial system construction,
or for any substantial rebuild, upgrade or extension of its facility, which
shall show its timetable for construction of each phase of the project, and
the areas of the City of Cohoes that will be affected. The City of Cohoes
shall have the right to impose penalties on the operator for a failure to
meet the accepted timetable and benchmarks. Failure to comply with this section
shall be deemed a violation, punishable pursuant to § C3-14 of the
City Charter and any other applicable provision of the City Code or general
law. For a continuing violation, each day shall be deemed a separate violation.
O.
Use of facilities by the City of Cohoes. The City of
Cohoes shall have the right to install and maintain, free of charge, upon
any poles or in any conduit owned by a franchisee any wire and pole fixtures
that do not unreasonably interfere with the cable service operations of the
franchisee.
A.
Indemnity required. No franchise shall be valid or effective
until and unless the City of Cohoes obtains an adequate indemnity from the
franchisee. The indemnity must:
(1)
Release the City of Cohoes from and against any and all
liability and responsibility in or arising out of the construction, operation
or maintenance of the cable communications system. Each cable communications
system must further agree not to sue or seek any money or damages from the
City of Cohoes in connection with the above-mentioned matters.
(2)
Indemnify and hold harmless the City of Cohoes, its trustees,
elected and appointed officers, agents, and employees, from and against any
and all claims, demands, or causes of action of any kind or nature and the
resulting losses, costs, expenses, reasonable attorneys' fees, liabilities,
damages, orders, judgments, or decrees sustained by the City of Cohoes or
any third party arising out of, or by reason of, or resulting from or of,
the acts, errors, or omissions of the cable communications system operator,
or its agents, independent contractors or employees, related to or in any
way arising out of the construction, operation or repair of the system.
B.
Insurance required. A franchisee (or those acting on
its behalf) shall not commence construction or operation of the system without
obtaining insurance in amounts and of a type satisfactory to the City of Cohoes.
The required insurance must be obtained and maintained for the entire period
the franchisee has facilities in the rights-of-way. If the franchisee, its
contractors, or subcontractors do not have the required insurance, the City
of Cohoes may order such entities to stop operations until the insurance is
obtained and approved.
C.
Proof. Certificates of insurance, reflecting evidence
of the required insurance and naming the City of Cohoes as an additional insured,
and other proofs as the City of Cohoes may find necessary, shall be filed
with the City of Cohoes. For persons issued franchises after the effective
date of this chapter, certificates and other required proofs shall be filed
within 30 days of the issuance of a franchise, once a year thereafter, and
whenever there is any change in coverage. For entities that have facilities
in the rights-of-way as of the effective date of this chapter, the certificate
shall be filed within 60 days of the effective date of this chapter, annually
thereafter, and whenever there is any change in coverage, unless a preexisting
franchise provides for filing of certificates in a different manner.
D.
Certificate contents. Certificates shall contain a provision
that coverages afforded under these policies will not be canceled until at
least 30 days' prior written notice has been given to the City of Cohoes.
Policies shall be issued by companies authorized to do business under the
laws of the State of New York. Financial ratings must be no less than "A"
in the latest edition of "Best's Key Rating Guide," published by A.M.
Best Guide.
E.
Insurance amounts. A cable communications system operator
(and those acting on its behalf to construct or operate the system) shall
maintain the following minimum insurance. The City of Cohoes shall be named
as an additional insured on the general liability and automotive policies;
those insurance policies shall be primary and contain a cross-liability clause.
(1)
Comprehensive general liability insurance to cover liability,
bodily injury and property damage. Exposures to be covered are: premises,
operations, products/completed operations, and certain contracts.
(a)
Coverage must be written on an occurrence basis, with
the following limits of liability:
|
Coverage
|
Limits
| ||
|---|---|---|---|
|
Bodily injury
| |||
|
Each occurrence
|
$1,000,000
| ||
|
Annual aggregate
|
3,000,000
| ||
|
Property damage
| |||
|
Each occurrence
|
$1,000,000
| ||
|
Annual aggregate
|
3,000,000
| ||
|
Personal injury
| |||
|
Annual aggregate
|
$3,000,000
| ||
(b)
Completed operations and products liability shall be
maintained for two years after the termination of the franchise or license
(in the case of the cable communications system owner or operator) or completion
of the work for the cable communications system owner or operator (in the
case of a contractor or subcontractor).
(c)
Property damage liability insurance shall include coverage
for the following hazards: X - explosion; C - Collapse; U - underground.
(2)
Workers' compensation insurance shall be maintained
during the life of this contract to comply with statutory limits for all employees,
and, in the case any work is sublet, each cable communications system operator
shall require the subcontractors similarly to provide workers' compensation
insurance for all the latter's employees unless such employees are covered
by the protection afforded by each cable communications system operator. Each
cable communications system operator and its contractors and subcontractors
shall maintain during the life of this policy employer's liability insurance.
The following minimum limits must be maintained:
(3)
Comprehensive auto liability: Coverage shall include
owned, hired, and nonowned vehicles.
|
Coverage
|
Limits
| ||
|---|---|---|---|
|
Bodily injury
| |||
|
Each occurrence
|
$1,000,000
| ||
|
Annual aggregate
|
3,000,000
| ||
|
Property damage
| |||
|
Each occurrence
|
$1,000,000
| ||
|
Annual aggregate
|
3,000,000
| ||
F.
Performance bond. Every operator of a cable communications
system shall obtain and maintain a performance bond to ensure the faithful
performance of its responsibilities under this chapter and any franchise.
The amount of the performance bonds shall be set by the City of Cohoes'
Mayor or his/her designee and may be set in a franchise ordinance in light
of the nature of the work to be performed, but shall not be less than 10%
of the estimated cost of constructing or (in the case of existing systems)
upgrading the system and including a sufficient amount to include the removal
of facilities and/or restoration of City facilities within the right-of-way.
The bond is not in lieu of any additional bonds that may be required through
the permitting process. The bond shall be in a form acceptable to the City
of Cohoes' Corporation Counsel. Bonds must be obtained prior to the effective
date of any franchise, transfer or franchise renewal, unless a franchise specifically
provides otherwise.
G.
Security fund. Every cable communications system operator
shall establish and maintain a cash security fund or provide the City of Cohoes
an irrevocable letter of credit in the amount of $50,000 to secure the payment
of fees owed, to secure any other performance promised in a franchise, and
to pay any taxes, fees or liens owed to the City of Cohoes. The letter of
credit shall be in a form and with an institution acceptable to the City of
Cohoes' Comptroller and in a form acceptable to the City of Cohoes'
Corporation Counsel. Should the City of Cohoes draw upon the cash security
fund or letter of credit, the cable communications system operator shall,
within 14 days, restore the fund or the letter of credit to the full required
amount. This security fund/letter of credit may be waived or reduced by the
City of Cohoes for a franchisee where the City of Cohoes determines in its
discretion that a particular franchisee's operations are sufficiently
limited that a security fund/letter of credit is not necessary to secure the
required performance. The City of Cohoes may from time to time require a franchisee
to change the amount of the required security fund/letter of credit to reflect
changed risks to the City of Cohoes and to the public, including delinquencies
in taxes or other payments to the City of Cohoes. The cash security fund or
letter of credit must be obtained prior to the effective date of any franchise,
transfer or franchise renewal, unless a franchise specifically provides otherwise.
A.
Revocation and termination. The City of Cohoes Council may revoke a franchise or reduce the term of a franchise if it finds, after a hearing, that a cable communications system operator has violated this chapter or its franchise, has defrauded or attempted to defraud the City of Cohoes or subscribers, or has attempted to evade the requirements of this chapter or its franchise. Except as to violations that are impossible to cure, and as provided in Subsections B and C, the franchise may only be revoked if the franchisee was given notice of the default; and 30 days to cure the default; and the franchisee failed to cure the default or to propose a schedule for curing the default acceptable to the City of Cohoes where it is impossible to cure the default in 30 days.
B.
Exception for certain acts. No opportunity to cure is
required for repeated violations; and fraud and attempted fraud shall be deemed
incurable. Further, the City of Cohoes may declare a franchise forfeited without
opportunity to cure where a franchisee 1) voluntarily stops providing service
it is required to provide; 2) transfers the franchise without the prior consent
of the City of Cohoes.
C.
Exception for bankruptcy. A franchise will terminate
automatically by force of law 120 calendar days after an assignment for the
benefit of creditors or the appointment of a receiver or trustee to take over
the business of the franchisee, whether in a receivership, reorganization,
bankruptcy assignment for the benefit of creditors, or other action or proceeding.
However, the franchise may be reinstated within that one-hundred-twenty-day
period, if: 1) such assignment, receivership or trusteeship has been vacated;
or 2) such assignee, receiver or trustee has fully complied with the terms
and conditions of this chapter and the franchise and has executed an agreement,
approved by any court having jurisdiction, assuming and agreeing to be bound
by the terms and conditions of this chapter and the franchise. In the event
of foreclosure or other judicial sale of any of the facilities, equipment
or property of a franchisee, the City of Cohoes may revoke the franchise following
a public hearing before the City of Cohoes Common Council, by serving notice
upon the franchisee and the successful bidder at the sale, in which event
the franchise and all rights and privileges thereunder will be revoked and
will terminate 30 calendar days after serving such notice, unless: 1) the
City of Cohoes has approved the transfer of the franchise to the successful
bidder; and 2) the successful bidder has covenanted and agreed with the City
of Cohoes to assume and be bound by the terms and conditions of the franchise
and this chapter.
D.
Effect of termination or forfeiture. Upon termination
or forfeiture of a franchise, whether by action of the City of Cohoes, as
provided above, or by passage of time, the franchisee must stop using the
cable communications system for the purposes authorized by the franchise.
The City of Cohoes may take possession of some or all of the franchisee's
facilities, or require the franchisee or its bonding company to remove some
or all of the franchisee's facilities from the City of Cohoes, and restore
affected property to its same or better condition. This provision does not
permit the City of Cohoes to remove facilities that are used to provide another
service for which the franchisee holds a valid franchise issued by the City
of Cohoes.
E.
Remedies cumulative. Remedies provided for under this
chapter or under a franchise shall be cumulative. Recovery by the City of
Cohoes of any amounts, under insurance, the performance bond, the security
fund or letter of credit, does not limit a franchisee's duty to indemnify
the City of Cohoes or relieve a franchisee of its franchise obligations or
limit the amounts owed to the City of Cohoes.
F.
Penalties. Failure to comply with the provisions of this
article shall be deemed a violation punishable pursuant to § C3-14
of the City Charter. For a continuing violation, each day shall be deemed
a separated violation.
G.
Liquidated damages required in franchise. A franchise
granted pursuant to this chapter may require liquidated damages, in an amount
to be specified in the franchise, for specified breaches of the franchise,
including but not limited to failure to commence construction, failure to
meet construction plan benchmarks, failure to comply with rebuild plan benchmarks,
failure to commence service, and material breach of franchise obligation(s).
The franchise shall also provide that the City of Cohoes may withdraw liquidated
damages owed from the grantee's security deposit, if the grantee has
failed to secure such breach after 10 business days' notice from the
City of Cohoes. Liquidated damages shall commence on that date that performance
was due and/or failed and continue until the grantee demonstrates to the satisfaction
of the City of Cohoes that the grantee has fully performed its obligations
giving rise to the payment of liquidated damages. Grantee acknowledges that
any obligation to pay liquidated damages does not in any way affect its obligation
to pay franchise fees or perform other obligations in the franchise and that
such liquidated damages do not constitute franchise fees and are not subject
to any limitations on franchise fees contained in 47 U.S.C. § 542(b).
Grantee acknowledges that any obligation to pay liquidated damages are not
costs of satisfying franchise requirements as provided in 47 C.F.R. § 76.925.
Grantee agrees it will not pass the cost of any liquidated damages to subscribers
through subscriber rates or itemize or otherwise identify on subscriber bills
any obligation grantee may have to pay liquidated damages.
A.
Generally. Each cable communications system operator
shall provide the City of Cohoes access to books and records related in whole
or in part to the construction, operation, or repair of the cable communications
system, or a group of systems of which the system is a part, so that the City
of Cohoes may inspect and copy those books and records. The records include,
but are not limited to, revenue records and other records related to compliance
with any provision of this chapter or a franchise. A franchisee is responsible
for obtaining or maintaining the necessary possession or control of all such
books and records so that it can produce the documents upon request. Books
and records must be maintained for a period of five years, except that a franchise
may specify a shorter period for certain categories of voluminous books and
records where the information contained therein can be derived simply from
other materials. The phrase "books and records" shall be read expansively
to include information in whatever format stored.
B.
Production. Books and records requested shall be produced
to the City of Cohoes by a time and at a location in the City of Cohoes designated
by the City of Cohoes' Mayor or his/her designee. However, if the requested
books and records are too voluminous, or for security reasons cannot be copied
and moved, then the franchisee may request that the inspection take place
at some other location mutually agreed to by the City of Cohoes and the franchisee,
provided that 1) the franchisee must make necessary arrangements for copying
documents selected by the City of Cohoes after its review; and 2) the franchisee
must pay all travel and additional copying expenses incurred by the City of
Cohoes (above those that would have been incurred had the documents been produced
in the City of Cohoes) in inspecting those documents or having those documents
inspected by its designee.
A.
Obligation to submit. The City of Cohoes' Mayor
or his/her designee may from time to time direct a franchisee to prepare reports
and to submit those reports by a date certain, in a format prescribed by the
Mayor or his/her designee, in addition to those required by this chapter.
B.
Quarterly reports. Unless an exemption is granted by
the City of Cohoes' Mayor or his/her designee, within 45 days of the
end of each calendar quarter, a franchisee shall submit a report to the City
of Cohoes containing the following information:
(1)
The number of service calls (calls requiring a truck
roll) received during the prior quarter and the percentage of service calls
compared to the subscriber base; and
(2)
The total estimated hours of known outages as a percentage
of total hours of operation. An outage is a loss of sound or video on any
signal or a significant deterioration of any signal affecting two or more
subscribers.
C.
Annual reports. Unless an exemption is granted by the City of Cohoes' Mayor or his/her designee, no later than 90 days after the end of its fiscal year, a franchisee shall submit the following information, except that the information required by § 130-15C(3) need only he provided where there has been a change from the preceding year:
(1)
A fully audited or certified revenue report from the
previous calendar year for the cable communications system, and a certified
statement setting forth the computation of gross revenues used to calculate
the franchise fee for the preceding year, and a detailed explanation of the
method of computation, showing gross revenues by category (e.g., basic, pay,
pay-per-view, advertising, installation, equipment, late charges, miscellaneous,
other) and what, if any, deductions were made from gross revenues in calculating
the franchise fee (e.g., bad debt, credits and refunds), and the amount of
each deduction.
(2)
A report showing, for each applicable customer service
standard, the franchisee's performance with respect to that standard
for each quarter of the preceding year. In each case where the franchisee
concludes it did not comply fully, the franchisee will describe the corrective
actions it is taking to assure future compliance. In addition, the report
should identify the number and nature of the customer service complaints received
and an explanation of their dispositions.
(3)
An ownership report, indicating all persons who at the
time of filing control or own an interest in the franchisee of 10% or more.
D.
Contemporaneous reports. Within 10 days of their receipt
or (in the case of documents created by the operator or its affiliate) filing,
a franchisee shall provide the City of Cohoes:
(1)
Notices of deficiency or forfeiture related to the operation
of the system; and
(2)
Any request for protection under bankruptcy laws, or
any judgment related to a declaration of bankruptcy by the franchisee or by
any partnership or corporation that owns or controls the franchisee directly
or indirectly.
Each franchisee shall maintain complete accurate maps and improvement
plans which show the location, size, and a general description of all facilities
installed in the public rights-of-way and any power supply sources (including
voltages and connections). Maps shall be based upon postconstruction inspection
to verify location. Each franchisee shall provide such maps to the City of
Cohoes showing the location of its facilities, in such detail and scale as
may be directed by the City of Cohoes' Engineer, and update the maps
at least annually and whenever the facility expands or is relocated. Copies
of maps shall be provided on disk, and in hard copy, in a commercially available
electronic format specified by the City of Cohoes' Engineer.
Unless the City of Cohoes' Mayor or his/her designee waives the
requirement, a franchisee shall at all times maintain:
A.
Complaint records. Records of all complaints received,
their nature and resolution. The term "complaints" refers to complaints about
any aspect of the franchisee's operations.
B.
Outage records. Records of outages known to the franchisee,
their cause and duration.
C.
Complaint response. Records of service calls for repair
and maintenance indicating the date and time service was requested, the date
of acknowledgment and date and time service was scheduled (if it was scheduled),
and the date and time service was provided, and (if different) the date and
time the problem was solved;
D.
Installation records. Records of installation/reconnection
and requests for service extension, indicating date of request, date of acknowledgment,
and the date and time service was extended.
E.
Customer service. Records sufficient to show whether
the franchisee has complied with each customer service standard that applies
to it.
The City of Cohoes' Mayor or his/her designee may temporarily exempt any franchisee from its obligations under §§ 130-14 through 130-17 if the Cable Administrator determines that the requirement would be unduly burdensome or unnecessary and that the City of Cohoes and subscriber interests may be adequately protected in some other manner. Notwithstanding the foregoing, any such exception of the franchisee from obligations under §§ 130-14 through 130-17 shall not exempt the franchisee from complying with all relevant and applicable state requirements and rules.
A franchisee shall take all reasonable steps required so that it is
able to provide reports, books and records to the City of Cohoes, including
by providing appropriate subscriber privacy notices. Each franchisee shall
be responsible for redacting data that applicable law prevents it from providing
to the City of Cohoes. Nothing in this section shall be read to require a
franchisee to violate state or federal subscriber privacy laws.
A.
Fees paid quarterly. The franchise fee or fee in lieu
of franchise fee paid pursuant to this chapter shall be paid quarterly unless
otherwise specified in a franchise. Payment for each quarter shall be made
to the City of Cohoes not later than 45 days after the end of each calendar
quarter.
B.
Quarterly statement. Unless a franchise provides otherwise,
a franchisee or other entity subject to a fee under this chapter shall file
with the City of Cohoes within 45 days of the end of each calendar quarter
a statement showing gross revenues during the preceding quarter and the number
of subscribers served.
C.
Acceptance of payment not a release. No acceptance by
the City of Cohoes of any payment shall be construed as an accord that the
amount paid is in fact the correct amount, nor shall such acceptance of such
payment be construed as a release of any claim the City of Cohoes may have
for additional sums payable.
D.
Fee not in lieu of taxes. Neither the franchise fee under Article III, nor the fee paid in lieu of the franchise fee under Article IV, is a payment in lieu of any tax, fee or other assessment of general applicability (including any such tax, fee or assessment imposed on both utilities and cable operators or their services, but not including a tax, fee, or assessment which is unduly discriminatory against cable operators or cable subscribers).
E.
Failure to pay franchise fee. In the event that a fee
payment is not received by the City of Cohoes on or before the due date set
forth in this section or in a franchise, or the fee owed is not fully paid,
the person subject to the fee will be charged interest from the due date at
an interest rate equal to 3% above the rate for three-month Federal Treasury
Bills at the most recent United States Treasury Department sale of such Treasury
Bills occurring prior to the due date of the franchise fee payment.
F.
Final statement of gross revenues. Within 90 days of the date a franchisee ceases operations under a franchise (whether because of franchise termination, transfer, bankruptcy or for any other reason), the franchisee shall file a final statement of gross revenues covering the period from the beginning of the calendar year in which the operations ceased to the date operations ceased. The statement shall contain the information and be certified as required by § 130-15C.
