[HISTORY: Adopted by the Town Board of the
Town of Canandaigua 6-27-1997 by L.L. No. 5-1997 (Ch. 41 of the 1977
Code). Amendments noted where applicable.]
This chapter may be known and cited as the "Multichannel
Service Provider Regulatory Ordinance for the Town of Canandaigua,
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.
The cessation of use by an 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.
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).
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.
A channel engineered at the head end of the multichannel
system for the provision of services generally available to residential
subscribers of the multichannel system, regardless of whether such
services actually are provided, including any channel designated for
governmental, educational, or public use.
When used in relation to any person, means another person
who owns or controls, is owned or controlled by, or is under common
ownership or control with such person.
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 individual designated by the Town who will
act as the technical and administrative liaison or representative
of the Town and the subscribers and the public in the Town in matters
dealing with customer or subscriber service, 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 Town's designee and under the
Town's direction.
The means and 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 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
or renewals thereof, including proposals for renewals. All of these
terms means 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 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 based on an MCS provider's gross annual revenues (as is
the case in a franchise fee, or other agreement, license or permit
fee), but shall be based on the value of the Town property that an
MCS provider uses to construct, maintain, and operate its multichannel
system.
A person submitting an application or proposal to the Town
for a license or 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.
Are 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 license or 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,
made by an applicant to the Town Board concerning the construction,
rendering of services, maintenance, or any other matter pertaining
to the proposed multichannel system.
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 change in operational or managerial control.
Equipment supplied by the MCS provider (such as a converter,
remote control unit or device, digital tuner, or input selector switch),
which is used to enhance or assist in the reception or provision of
multichannel service.
Any service tier which includes the retransmission of local
television broadcast signals and any public, educational and government
access channels. The term "basic cable television service" necessarily
includes any service tier or programming service required under the
provisions of the Cable Television Consumer Protection Act of 1992.
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 the FCC by 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
or data programming, and which is provided to multiple subscribers
within the Town. However, such terms do not include the following:
A facility that serves only to retransmit the
television signals of one or more broadcast stations; or
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;
or
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; 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. Where appropriate
and feasible, the MCS provider may employ signal enhancing technologies,
such as ghost-canceling or audio-leveling. 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 head end 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
communications services, 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 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 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 communications services or operations over the multichannel
system, or to any portion of the system, or any necessary investigation
subsequent to a service call, 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 lashed to said
strand; or
In areas serviced underground, that all cable
has been placed correctly in trenches, the trenches have been refilled,
all road disturbed surfaces have been restored and all landscaping
restoration has been completed as required.
"Complete" or "Completion" further means that
all amplifier housings and modules have been installed (including
modules for return path signals if bidirectional activation has been
proposed or committed to);
That primary and backup/standby power supplies
have been installed and operate properly;
That all bonding and grounding has been completed;
that construction or reconstruction of the head ends or hubs has been
completed and all necessary processing equipment has been installed
therein; and
That 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 a rebuild or upgrade of the system, the replacement of drops
to each and every subscriber unit passed if such is 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, 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.
Multichannel services provided to segments of less than the entire
multichannel system will be activated 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 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 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,
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."
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 visible degradation, of multichannel
service or other communications services (under normal operating conditions),
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 or any other objectionable and visually 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 unusable, inconsistent,
erratic, or unreliable provision of services. 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
discernible without magnification, other than eyeglasses.
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 of any kind,
dam failure, flood, tornado, hazardous waste infiltration, fire, petroleum,
explosion, or aircraft crash.
A change in the level of a subscriber's multichannel service
from a more comprehensive level of multichannel service (in terms
of services or channels provided), to a less comprehensive level of
multichannel service (in terms of services or channels provided).
And shall include any public easement or other compatible
use created by dedication, or by other means, to the Town for public
utility purposes or any other purpose whatsoever, 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 MCS providers.
The rules and regulations adopted from time to time by the
FCC, pursuant to the Communications Act of 1934, as amended, or other
applicable federal law. "FCC technical standards" means 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, 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 local regulatory 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 for the maintenance of 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 coextensive occupants or providers of utility or
utility-like services that occupy the public property and rights-of-way.
A person that 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 the term "cable operator," but is
not limited to such.
Town Board for the Town of Canandaigua, New York.
With respect to a specifically-named piece of
multichannel system equipment, means another piece of multichannel
system equipment that has either:
The same or substantially similar characteristics,
qualities, operational capabilities, design functions as the original,
specifically named or referenced piece of multichannel system equipment;
or
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. There shall be permitted to be
deducted from gross revenues:
Gross revenues shall not include:
Any revenue specifically exempted by the federal
Cable Act, state law, or by federal or state judicial ruling, or by
specific FCC ruling. For any revenue the MCS provider seeks to exempt,
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, 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 passed through to the taxing entity (including, but not
limited to, user taxes, service taxes and communications taxes), provided
such taxes are identified as a separate line item on subscriber 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
communications services 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 communications
services, delivery services and video production services for programming
or other communications services which are not transmitted over or
used in conjunction with the system; and
Any revenue which franchisee or other MCS provider
chooses not to receive in exchange for its provision of free or reduced
cost multichannel services or other 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 of a franchisee or other MCS provider, and
that is attributable to the grant of a franchise, other agreement,
license or permit, 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 franchise,
other agreement, license or permit fees. For purposes of example only,
the following are types and sources of nonsubscriber revenue intended
to be included in gross revenue:
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, shall have 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, 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 a 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 or segments in question, or the entire system, is capable
of actually delivering multichannel services to each and every subscriber
in every 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 relocation of equipment
necessary to obtain or use multichannel services or other communication
services.
The Internet is that interconnected combination
of networks that evolved from the original ARPANET experiment and
the National Science Foundation subsidized Internet.
The Internet is an interconnection of networks
that provides user-to-user or address-to-address communications or
data transmissions.
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 extension of the multichannel system beyond the original
primary service area of the 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.
Programming produced locally by or for a franchisee or other
MCS provider.
The complete loss of picture and sound on either the lowest
tier of service, or on all tiers or levels of service, that is attributable
to or occasioned by problems with the operation of the system or any
components of the system. Further, 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
use 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.
The Town Supervisor of the Town of Canandaigua, New York.
Multichannel service.
Any person or group of persons who:
Provides multichannel service or other communications
over a multichannel system, regardless of the technology employed
and, subject to federal and state preemption or limitation, directly
or indirectly owns a significant interest in such multichannel system;
or
Who otherwise controls or is responsible for,
through any arrangement, the management and operation of such a multichannel
system.
The term "MCS provider" or "Multichannel service
provider" specifically includes the terms "cable operator" and "SMATV
operator," and any other provider of a similar multichannel service
that under federal law is subject to this chapter in whole or in part.
The one-way transmission to subscribers of video
programming, or other programming service, irrespective of the technology
employed and subject to federal and state preemption or limitation;
and
Subscriber interaction, if any, used in or for
the selection of such video programming or other programming service.
A facility consisting of closed, bidirectionally
capable transmission paths and associated signal reception, generation,
distribution, and control equipment, that is designed and intended
to provide multichannel services and other communications services
to subscribers within the Town; or
A facility consisting of infrared transmission
or point-to-point transmission (as permitted by law); or
Any functional equivalent system, along with
all equipment, facilities and components used in the reception, generation
or distribution of service, that is designed to provide multichannel
service which includes video, voice, or data programming to multiple
subscribers within the Town.
However, such term does not include the following:
A facility that serves only to retransmit the
television signals of one or more broadcast stations; or
A facility that serves only subscribers in one
or more multiunit dwellings under common ownership, control, or management
unless such facility or facilities uses any public-rights-of-way;
or
A facility of a common carrier which is subject,
in whole, or in part, to the provision of Title II of the Communication
Act of 1934, except that such facility shall be considered a multichannel
system [other than for purposes of Section 621(c) of the Cable Act,
codified at 47 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; or
Any facilities of any electric utility used
solely for operating its electric utility.
The transmission of video programming and other programming
or data transmission services, 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 transmission of information. However, "multichannel services" shall
not include "other communications services" as defined in this section.
Any person who provides multichannel services or other communication
services using a multichannel system.
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, strikes, 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 widespread 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.
The Multichannel Service Provider Regulatory Ordinance for
the Town of Canandaigua, New York.
Those services provided by the franchisee or other MCS provider,
but that do not involve the transmission to subscribers of video programming
or other multichannel services. Other communications services include,
but are not be limited to, telephone and voice services.
Information that an MCS provider (specifically including
a cable operator) makes available to all subscribers generally.
The delivery over the multichannel system of audio and/or
video signals for a rate or amount (over and above the rate for basic
service) on a per-event, or per-program, or per-channel basis.
Public, educational, and governmental.
Any individual, corporation, estate, trust, partnership,
association of two or more persons having a joint common interest,
joint stock company, or governmental entity.
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 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 for by an MCS provider.
An official act by the Town Board that removes, repeals,
or rescinds previously approved authorization for a licensed, permitted
or franchised MCS provider to operate a multichannel system within
the Town.
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 service 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 do not exceed four hours duration
for any given address.
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
service that is 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 loss of multichannel service or other communications service.
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 service
does not comply with FCC's technical standards. A scheduled outage
is not a service interruption, provided that it does not exceed four
hours' duration. 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
there is forty-eight-hour advance notification to the Town and subscribers,
is not a service interruption. "Service outage" means, for purposes
of required responses under this chapter, the loss of audio and video
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 picture or sound or
other service provided by an MCS on provider for which there is an
individual or separate rate or charge, so as to make that 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.
Satellite master antenna television.
Any person or group of persons who:
A private multichannel system not crossing any public rights-of-way
and which is located on private property, and serving 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 Town of Canandaigua, New York.
The Town Board for the Town of Canandaigua, New York, which
is the legislative body for the Town of Canandaigua, New York. For
purposes of clarification, the "Town Board" or "Town" is the franchising
authority for the Town of Canandaigua, New York
The Supervisor of the Town of Canandaigua, New York.
United States Code.
A person or organization utilizing a multichannel system
and/or its equipment or capabilities for purposes of production and/or
transmission of material, as contrasted with receipt thereof in the
capacity of a subscriber. For purposes of an example, one type of
user would be an advertiser or marketer.
Programming provided by, or generally considered comparable
to programming provided by, a television broadcast station.
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 Town Board is hereby designated the entity of
the Town that is responsible for the continuing administration of
this chapter, and matters related to multichannel service including
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
with respect to administering this chapter or an applicable franchise,
other agreement, license or permit authorizing the construction, operation
and maintenance of a multichannel system, as is permissible under
applicable state and federal law.
C.
Moreover, unless prohibited by federal, state, or
local law, the Town Board may create an appointed or elected advisory
council, 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 of such, to another person or representative (including
any advisory council, 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 power to another
person or representative (including an advisory council, 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 (ordinance) 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 by federal or
state law, rule or regulation. In the event of any conflict or ambiguity
between 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, this chapter and any
amendments thereto shall control, unless preempted by federal or state
law, rule or regulation.
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(*) following 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 the ordinance, or
any applicable provision thereof; or
(2)
The MCS provider requests and is granted relief from
any applicable provision of the ordinance so designated; or
(3)
The applicability of the provision is preempted by
the force of a superseding state or federal law, rule or regulation.
B.
Moreover, such 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 this chapter (or
any applicable provision); or
(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 federal or state law, rule or regulation
in place at the time.
E.
As a result of Subsection C of this section, the provisions of this chapter shall have no effect on an existing franchise, other agreement, license or permit with respect to requiring additional substantial capital investment, until the expiration of such existing franchise, other agreement, license or permit, or until 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, other agreement,
license or permit; or
(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 present franchise, other agreement, license
or permit expiration date; or
(3)
A court of competent jurisdiction orders that an existing
MCS provider become subject to 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 with
the safety and safety-related requirements of this chapter, at all
times, regardless of the status of any current franchise, agreement,
license or permit. This shall specifically include:
A.
MCS providers who are exempted from complying with
the provisions of this chapter are as follows:
(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.
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 particular section.
C.
If exempted in accordance with any of the preceding,
a qualified MCS provider is exempt only from this chapter and not
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 or subscriber 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 the ordinance 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 basis thereof with such supporting information
and material as may be applicable and deemed necessary by the Town
Board.
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; or
(2)
Where applicable, that the provision in question materially
affects, and 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 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);
or
(3)
That compliance with a particular provision and/or
requirement will be commercially impracticable for an MCS provider;
or
(4)
That one or more time frames listed in this chapter
are either impossible to meet, or are impracticable to meet; or
(5)
That the MCS provider has its own policy which the
Town Board deems comparable to, or on excess of, any provision and/or
requirement from which the MCS provider seeks relief; or
(6)
That the health, safety, and welfare interests of
the Town and the public otherwise warrant the granting of such relief.
D.
The Town Board shall be the sole determiner of whether
an MCS policy, is comparable to, or exceeds, a similar provision in
this chapter.
E.
As an alternative to seeking an exemption, or requesting
relief, an MCS provider may petition 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 a franchised MCS provider, or deems a franchised
MCS provider's operational policy to be comparable to an ordinance
provision, then the franchise, other agreement, license or permit
(initial, existing, or renewal) shall be amended within 60 days to
reflect the exact extent of such exemption and/or relief.
G.
It should be specifically noted that the benefit of
such exemption, relief, clarification, or comparable policy extends
only to the MCS provider granted such exemption, relief, clarification,
or comparable policy. Consequently, in the case of a transfer, assignment
or sale of the system, the proposed transferee, assignee, 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.
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 ordinances
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 ordinance(s) and/or
resolution(s).
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 ordinance would have the effect
of either unilaterally requiring the investment of substantial new
capital for equipment 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.
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, other than as may be limited by applicable
state or federal law.
D.
With respect to future ordinances 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 ordinances 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 ordinance, but 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 ordinance, but 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, this chapter shall control, and prevail, unless judicially determined 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 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 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 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 penalties schedule 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 liquidated damages are applicable for a breach or violation of this chapter or a franchise, other agreement, license or permit, as set forth in § 138-72, Liquidated damages, then such assessed charges or liquidated damages 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 provisions in instances
of force majeure (as outlined elsewhere in this chapter), and/or for
a technical violation of this chapter, or where applicable, a technical
breach of a franchise, other agreement, license or permit (as outlined
in this chapter).
D.
Notwithstanding the other provisions in this section,
a franchised MCS provider shall be subject to possible default and/or
revocation for cause as set forth in this chapter.
Notwithstanding the provisions contained in
Section 15 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 so-called "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 de minimus negative impact on the residents or subscribers
within the Town or on the Town, itself; or
B.
Instances or circumstances that existed and were reasonably
beyond the control of an MCS provider, including force majeure situations,
and prevented 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, integral or material
breach, default or noncompliance of this chapter or a franchise, other
agreement, license or permit, nor suffer any enforcement or 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.
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 those permitted under the provisions of this chapter.
A.
Both the Town Board and each MCS provider shall provide
the other party with the name and address of the contact designated
to receive notices, filings, reports, records, documents, and other
correspondence. All notices shall be delivered to each party's contact
by certified mail, return receipt requested, personal service with
a signed receipt of delivery, or overnight with receipt verification.
All other filings, reports, records, documents, and other correspondence
may be delivered by any permissible means including, but not limited
to facsimile transmission ("faxing"); personal service; overnight
mail or package delivery, 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 maintain a franchise,
other agreement, license or permit, then the designation of such contact
person for notice and notification purposes, may 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 a negligent act or omission of an MCS provider,
its agents or employees, contractors, subcontractors, independent
contractors, or implied or authorized representatives. With respect
to the penalties, damages or charges referenced herein, reasonable
attorneys' fees, consultants' fees, and expert witness fees are included
as those costs which may be recovered by the 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 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, the Town
Board, or Supervisor's approval, counsel of the MCS provider's choice,
at such MCS provider's 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.
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 has the reasonable financial
ability to pay up to the maximum amount per category.
A.
An MCS provider shall furnish to the Town Board a
performance bond or security bond executed by a surety licensed to
do business in this state in an amount totaling at least $25,000.
The purpose of the performance bond is to ensure performance of any
requirements required by and under this chapter on 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, to the extent of the policy, any
monetary losses or damages incurred by the Town. 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.
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 value. The amount of the bond shall equal at least 75% of the projected capital construction cost or outlay.
C.
The construction/completion bond or security bond
shall specifically guarantee that an MCS provider will timely abide
by its construction, upgrade, rebuild, or repair/maintenance schedule
for the multichannel system and/or any timetable for technical and
service improvements or additions to the multichannel system as may
be committed to, or agreed upon, from time to time, by the Town Board
and MCS provider.
D.
If the Town Board draws on a performance or completion
bond or cash deposit as a result of an MCS provider's failure to timely
discharge its obligations, or failure to construct and activate the
multichannel system, or failure to complete a multichannel system
upgrade or rebuild or repair or maintain the system 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.
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 an 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 a written guarantee of an MCS provider
pledging the full faith and credit of the affected MCS provider 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;
(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.
Moreover, 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 cable
services, and charges for installation, remotes, converters, and the
like, plus any administrative or 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; 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 obligations imposed on it by this chapter, and to determine
the MCS provider's legal, technical, financial, and character qualifications.
B.
On or before January 1 of each year after the effective
date of this chapter, an MCS provider shall submit to the Town Board
a list of files, reports, records, data or other information that
the MCS provider periodically, customarily, and/or regularly files
with the FCC, or another federal or state agency. 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.
C.
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).
D.
As part of any performance or compliance evaluation,
or for any legitimate matter related to the administration and enforcement
of an MCS provider franchise, agreement, license or permit, the Town
Board may specifically request and require that it be provided with
any or all listed reports, records, data, or other information that
were 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).
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 or the franchising authority 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 the operation of the franchisee's or other MCS provider's system within the Town. Said information shall be provided in a timely and expeditious manner, as may be required by this chapter or a franchise agreement or other agreement, license or permit, or 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 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
on the filing or receipt of such, but in no case later than 30 days
after the filing or receipt.
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 that the MCS
provider is answering of 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 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, true and complete copies of any records needed
for the diligent administration and enforcement of this chapter and/or
the franchise, other agreement, license or permit on three 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.
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.
If, after a financial audit, it is determined that the MCS provider
has underpaid amounts owed to the Town by any amount, then the Town
may require the MCS provider to reimburse the Town for the actual
cost of the audit. Absent fraud, any such 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 made by an MCS provider or any employee or contractor
of the MCS provider, of a material fact or amount, 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, 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 at the local office complete
and accurate books and records of the key aspects of the multichannel
system's operation 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.
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 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.
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; and
(10)
Current schedule and explanation for any billed
charges or other nonregularly occurring fees invoiced to subscribers
(including service call charges or trip charges).
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 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, of at least ten-point type and
clearly indicates that it is a notice of importance that affects rates.
A.
An MCS provider, specifically including, but not necessarily
limited to, any 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 available monthly bill or periodic invoice for service, a pro
rata credit (or where applicable, a refund) for any service outage
exceeding 24 hours in duration.
B.
Unless preempted by 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.
C.
In the case of a charge for unsolicited service to
the extent permitted by PSC rules, an MCS provider shall provide a
subscriber with an adjustment or billing credit on the next available
monthly bill or periodic 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.
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 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 contest of a rate or charge is unresolved. However, if the
matters is resolved in favor of the MCS provider, the MCS provider
may immediately 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.
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 pendency 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 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 an adequate staff
that is trained and knowledgeable 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 customer or subscribers.
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 permissible, 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 at least one toll-free and/or local telephone
number to accommodate both normal business inquiries, including requests
for installation of service and changes in levels or categories or
types of service, to facilitate calls concerning the repair of equipment,
service outages, and the extended 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 address a customer 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 the call, in order to at least determine the extent
of the outage, interruption 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 lines (except during
special marketing promotion periods, peak billing cycles, and service
outages) 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 age, 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 residential cable subscribers
based on the income of the residents of the local area in which such
group resides.
C.
Subsection A of this section does not prohibit an MCS provider from denying service based on the location of residence, if that residence is outside the parameters for line extension 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 hotel, motel, and mobile park owners) 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 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 a subscriber or
private 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 such MCS provider's normal business or service hours, and 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 and submit all documentation of progress towards restoration, as required by the provisions of this chapter, and any applicable rules of the PSC.
C.
Moreover, 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 noon), afternoon
(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 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 providers
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 workday.
D.
In the case of a report or complaint of a loss of
service, such being defined as a "blank" or "no-picture" 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 workday and four hours prior to the end
of the workday. 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 from two or more subscribers
from the within the same portion of the system within the Town, the
MCS provider shall respond to and make its best 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 shall an MCS provider's staff that responds to a report or complaint
of a loss of service leave the problem until service is restored,
where it is found that a loss of service has occurred.
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
(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.
F.
In the case of a signal or service interruption or a diminution of service as defined in § 138-4 of this chapter, an MCS provider shall make its best efforts to respond 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 efforts to
respond 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, 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, or 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 following
must occur:
(1)
The subscriber must in fact be delinquent in payment
for multichannel service as defined by this chapter; and
(2)
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; or
(3)
At least 72 hours have elapsed after the mailing a
separate written notice of impending disconnection to the subscriber
as determined by the postmark; or
(4)
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 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 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 12% 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 12% 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.
J.
Any refund due a subscriber after a disconnection
pursuant to this ection shall be made within 60 days of the disconnection
for nonpayment.
A.
At any time, a subscriber may request 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 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, so long as such are not inconsistent with
applicable federal law. In the event there are no PSC rules governing
such, 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 72 hours from 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 which is voluntarily disconnected,
a subscriber shall 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. In other words,
the subscriber shall not be required to pay for, nor shall be or she
be billed for service, that was delivered more than 72 hours after
the date of 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 entire actual cost of 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 will this section be viewed as abridging
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 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)
Consistent 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 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 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 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:
(4)
Keeping a log or record, for two 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/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/inquiry resolution policy
shall be reduced to writing, and such policy shall be available upon
request, to any person. In any event, a subscriber shall receive notice
of such policy, 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
subscribers or service area within the Town, other than as permitted
under this chapter, 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 will result in foreseeable damages in an amount set forth in § 138-72, Liquidated damages.
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.
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 any and all
applicable zoning and/or land use regulations. Consequently, no person
shall be required to receive multichannel service, or to physically
connect to a multichannel system.
B.
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.
In order to establish minimum uniform standards,
any MCS provider shall adhere to the following minimum construction
schedule and construction-related requirements:
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 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, 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.
Adopt the 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,
or the state, or the United States, and as set forth in this chapter
as relate to the system and its operation; and
F.
Maintain all permits and licenses, as required by
this chapter.
During any phase of construction, and with respect
to any installation, maintenance, and repair of the multichannel system,
the MCS provider shall use materials of good and durable quality and
all such work shall be performed in a safe, thorough, and reliable
manner, 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 an MCS provider's system creates a hazardous
or unsafe condition, such being defined as situations not in compliance
with any safety or safety-related code, or an unreasonable interference
with public or private property, the MCS provider shall voluntarily,
or upon the request of the Town Board, in a prompt and timely manner
remove or modify that part of the system so as to eliminate such condition
from the subject property in a prompt and expeditious manner and time
frame.
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 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-way
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, 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,
acting alone or in conjunction with another person, to 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) before employees, agents, or independent contractors of
any entity perform work in the intended area.
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
of the building. The expense of temporary removal shall be paid by
the person requesting it, 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.
This section is applicable to any MCS provider
whose system occupies public property or rights-of-way.
A.
Unless the Town, or another MCS provider, indicates
its lawful intent to use the multichannel system (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, or any abandoned 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.
B.
The MCS provider shall remove its property, facilities, equipment, cable and wires located in the Town's streets and rights-of-way in the manner and time frame prescribed in Subsections C through F of this section.
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 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.
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 the local law
or ordinance to control, in which case the local law and this chapter
shall control.
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 depth of burial. 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
such that a ten-inch long spade traditionally used in normal landscaping
and yard maintenance would not damage the drop.
E.
For existing multichannel systems, the provisions of Subsection C of this section shall apply only at the time a scheduled upgrade or rebuild of the MCS provider's multichannel system is actually commenced and in progress. 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.
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 and cable or other equipment
and facilities and those of a utility.
For MCS providers subject to this section, the
franchise, other agreement, license or permit between the Town and/or
Town Board and the franchised MCS provider 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 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, of any or all records and documents
related to such tests and inspections for purposes of review, as may
deemed necessary to administer and enforce compliance with this chapter
and any franchise, other agreement, license or permit.
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 failure to construct, install, maintain, repair, rebuild, or
upgrade 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 pay for such costs incurred by the
Town that are caused by the MCS provider's refusal or failure to supply
necessary information, or the failure to abide by the rules subsequent
to Town notices or directives.
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 activation in the manner
set forth in this chapter;
(2)
Minimum standby power as noted in this chapter;
(3)
The diligent conduct of a 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, as specified in 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,
all MCS providers shall ensure that the multichannel system providing
multichannel service to all, or any part, of the Town is designed,
constructed and installed with the 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 to power all active line electronics (e.g.,
amplifiers) for at least two hours on all trunk and feeder cable,
and additionally install and diligently maintain an automatically
activated standby generator at all head ends, hubs, and receive sites
associated with the distribution of cable service to, and throughout,
the Town that are owned or under the control of the MCS provider or
any affiliate or parent organization.
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 or performance of the multichannel system that would
affect the citizens' health, safety, and welfare, or negatively affect
the quality or reliability of multichannel services provided throughout
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.
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 subsequent report:
(1)
Daily inspection, and adjustment if necessary, of
the signal quality of each channel;
(2)
Daily scan, and adjustment if necessary, of carrier
levels with a spectrum analyzer or functional equivalent;
(3)
Daily logging of any and all adjustments made to the
head end electronic or signal processing equipment, any antennas or
other reception equipment, or the distribution system;
(4)
Daily monitoring, and logging, and repair if necessary,
of signal leakage, 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 relocation or replacement, if necessary;
(6)
Inspection and recordation of appropriate signal levels
during each service call;
(7)
Weekly monitoring, and adjustment if necessary, of
head end audio and video carrier levels;
(8)
Weekly monitoring, and adjustment if necessary, of
head end videocipher AGC levels;
(9)
Weekly monitoring, and adjustment if necessary, of
satellite receiver input carrier-to-noise;
(10)
Monthly monitoring, and adjustment if necessary,
of head end audio and video modulation levels;
(12)
Monthly monitoring, and adjustment if necessary,
of head end scrambler levels;
(13)
Monthly testing, and repair if necessary, of
the emergency alert override system;
(14)
Monthly testing and inspection, and repair if
necessary, of 1/3 of all standby power supplies;
(15)
Semiannual monitoring, and adjustment if necessary,
of head end radio frequency (RF) input levels to off-air processors;
(17)
Semiannual inspections, and repair and/or recalibration
if necessary, of all in-house, and field test or measuring equipment;
(19)
Annual testing for determining compliance with
the FCC's cumulative leakage index (CLI) rules;
(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,
the MCS provider shall ensure 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 of the preventive maintenance
information available for that calendar quarter, and that such information
is available for inspection, examination, and review by the Town.
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, 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 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 100% 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.
D.
It shall be the responsibility and obligation of any
franchisee or other MCS provider to, immediately by phone, and the
next day in writing for purposes of the Town's records, report to
the Town any violations of safety codes that are identified and are
not able to be remedied, or are not remedied, within 24 hours of their
identification, so as enable the Town to take any needed precautions
to alert or otherwise protect persons and property in the Town.
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 § 138-72, Liquidated damages, there shall be no liquidated damages 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 not in compliance with this section that the Town receives is that of the franchisee or other service provider whose facilities are not in compliance with the required safety codes and this chapter.
A.
This section is applicable to any lawfully operating,
but unfranchised, MCS provider that does not remit a franchise fee
payment 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 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 remittance of such by an affected MCS provider
to help in recouping the cost of administering, monitoring and enforcing
compliance with a franchise agreement, other agreement, license or
permit, and applicable law and regulation, and for the 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
estimated cost of the time of Town staff required to administer, monitor
and enforce compliance by the MCS provider, and the 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.
D.
An alternative user charge is adopted in order to
recover the cost incurred by the Town in administering, monitoring
and enforcing the MCS provider's compliance with the franchise or
other agreement or permit, and applicable law, rule, regulation and
code, and the cost of maintaining the public property and rights-of-way
occupied by the multichannel system. However, an affected MCS provider
and the Town may 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.
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.
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 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.
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.
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.
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 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 law (including any applicable rule or regulation of the
PSC), or not required to do so under the Cable Act.
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.
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, any 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 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 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 Part 591 of the PSC's
rules, or other rules of the PSC as 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 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 ordinance 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
or 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.
C.
Any MCS provider shall be responsible for obtaining
any required easements for private property (including privately owned
utility or streetlight poles).
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 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, absent the
demonstration of the need for a longer term for financial reasons.
B.
The term of a renewal franchise, other agreement,
license or permit shall be for a period not less than 3 1/2 years,
nor more than as permitted by the PSC, from the date that a franchise,
other agreement, license or permit renewal agreement is both approved
by the Town Board, and executed by both the Supervisor and the affected
MCS provider, and is approved by the PSC. In the event 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.
A.
Any franchisee, or other MCS provider, shall make service available to all residences, dwellings, businesses or establishments on all public streets and roads throughout the Town. There shall not at any time, after completion of the initial construction of the system, be any 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 § 138-4 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 franchisee or other 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.
Any applicant for an initial franchise, other agreement,
license or permit, or the renewal of such, shall submit to the Town
a plan to provide service to all domiciles and businesses in the Town
as a part of the application, request or proposal. Such plan shall
be subject to the approval of the Town.
E.
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 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, as
well as other matters deemed of importance that are not prohibited
by applicable federal law.
C.
Unless prohibited by the state or the PSC, an applicant
shall pay an initial application fee which shall be no greater than
the administrative and consulting costs associated with processing
an initial application for a franchise, other agreement, license or
permit. The total application fee must be paid, unless waived by the
Town Board.
D.
The applicant shall submit to the Town, simultaneously
with the application or request, a check in the amount of $15,000.
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 an other agreement, license or permit, after
the date this chapter becomes effective, shall, if permitted by federal
law or rule, have the choice of paying to the Town itself, or collecting
from others and remitting to the Town, a sum equal to five 5% of the
annual gross revenue of such MCS provider. Such amount is intended
in part to recompense the Town for the cost of administering and enforcing
the franchise other agreement, license or permit, and for the 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 other 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 an other 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 functional equivalent due for
the preceding quarter, together with the basis of the calculations
thereof. Such statement shall be certified by a certified public accountant
or 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 from whatever source,
that is directly or indirectly 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. The revenue shall, at least, be reported by service category,
type, and level, individually, showing appropriate computations and
individual and incremental rates 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, shall be rendered to the Town at
the time the financial and revenue statement is filed.
G.
In the event that remittance is not made by the due
date, then such franchised MCS provider may be declared in default
of the franchise, other agreement, license or permit, and should the
amount owed 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 a franchised
MCS provider's books, if the Town Board deems it necessary. If such
audit discovers an under-remittance of the franchise fee or its functional
equivalent of greater than 2% 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 under-remitted or not 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 under-remitted or not remitted fees, plus interest not to exceed 15% per year, or if greater than 15% the maximum allowable under state law.
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 authorized 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 by 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 provision of such service over the multichannel system, or such higher percentage as may be authorized by the FCC, Congress, or other governmental entity with authority to increase the 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 franchised MCS provider,
as provided in this chapter.
Q.
In light of Subsection P of this section, in the event 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, may be protected, the MCS operator providing service under a franchise, other agreement, license or permit may be required to collect and remit 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.
R.
Subject to federal law, and notwithstanding anything
preceding in this section, 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.
S.
Notwithstanding anything in this section, in the event
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.
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, profit-making
use of the public property and rights-of-way in the Town.
A.
Nondiscriminatory and competitively neutral imposition.
As regards service providers of like or similar kinds or nature, the
Town shall at all times assure that the imposition of rent is on a
nondiscriminatory and competitively neutral manner.
B.
Basis for determining rent. The amount of the rent
shall be based upon and 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.
C.
Comparability. 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.
D.
Noncash payment. 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.
Minimum frequency. When a monetary payment is made
as rent, the schedule of payment may be negotiated between the Town
and the MCS provider, provided that the schedule must include at least
annual payment of the full amount due as rent.
B.
Nondiscriminatory and competitively neutral imposition.
When all or a portion of the rent is paid in kind, the schedule of
payment, or the equivalent of a payment, may be negotiated between
the Town and the MCS provider, so long as the effect is nondiscriminatory
and competitively neutral among like or similar service providers.
A.
There shall be no assignment of an MCS provider's
franchise, other agreement, license or permit in whole, or in part,
without the prior express written approval and consent of the Town
Board.
B.
Any assignment without such prior written consent
shall constitute a default of such franchise, other agreement, license
or permit, which may, at the discretion and in the judgment of Town
Board, subject a franchised MCS provider's franchise, other agreement,
license or permit 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 applicable.
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 or sold only after
the Town Board determines that the proposed transferee can meet all
obligations imposed by 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 is 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, concerning the default, termination, revocation, alteration, or suspension of a cable franchise, or other agreement, license or permit, in addition to the payment of liquidated damages 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, a license or a permit, shall be subject to the rules and procedures noted in Subsections C through L of this section.
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 customer
or subscribers 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.
(1)
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 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
failure 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, 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 on 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 requires a different procedure, in
which event the state 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 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 breach
of the franchise, other agreement, license or permit. If the situation
has been resolved, or steps are being taken to resolve the situation,
then the franchised MCS provider shall present the information at
the hearing.
I.
If the affected MCS provider fails to attend the hearing,
and has not requested 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 an
ordinance violation exists and remains uncured, or that a violation
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 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, unless
the franchised MCS provider presents sufficient mitigating circumstances.
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 60 days, the affected franchised MCS provider,
or surety, does not take significant action to rectify the breach,
or submit a plan detailing how the affected MCS provider will eliminate
the breach, including the proposed time frame for such cure, then
the Town Board may revoke such MCS provider's franchise, other agreement,
license or permit, and shall notify the affected franchised MCS provider
and surety forthwith, unless there are mitigating circumstances.
A.
The Town Board reserves the right to design a performance
evaluation procedure which periodically monitors compliance of MCS
providers with the terms and conditions of both this chapter and any
applicable franchise, other agreement, license or permit. Moreover,
the Town Board may periodically review and determine whether an MCS
provider's financial, technical, legal, and character qualifications,
and its record of meeting community and subscriber needs, as particularly
relate, but are not limited, to matters of customer service practices,
continue to meet the needs of the community, and 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 performance evaluations may be conducted at least every three
years during the term of any franchise, other agreement, license or
permit, 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.
B.
If, as a result of the evaluation, the Town Board
determines that the franchised MCS provider has not complied with
a provision of this chapter, or its franchise, other agreement, license
or permit, then the Town Board shall give the franchised MCS provider
an opportunity either to correct or remedy the area of noncompliance,
or submit documentation or supporting data that resolves or explains
the area of noncompliance to the satisfaction of the Town.
C.
If the franchised MCS provider fails to correct or
resolve an area of noncompliance in a timely manner, or provide an
acceptable explanation in a timely manner, then such failure may be
treated as a material violation of this chapter or the franchise,
other agreement, license or permit, as is appropriate.
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 basic multichannel service, which
includes basic cable service and those charges (such as converter
rental 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.
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.
Between 210 and 30 days prior to the fourth and eighth
anniversary dates of the effective date of this chapter, the Town
Board shall conduct a review and examination of this entire MCS provider
chapter.
B.
In conducting such a review and examination of the
MCS provider ordinance, the Town Board shall consider, among other
things, 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 customer or subscribers
and/or subscribers; and
(5)
Whether the economic and customer or subscriber forces
associated with competition have lessened the need for one or more
provisions.
C.
If after such a periodic review and examination of
the MCS provider ordinance, the Town Board determines that one or
more provisions of the MCS provider ordinance 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
same. It is noted that where warranted and the best interests of the
Town, the Town Board may repeal the entire MCS provider ordinance.
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 (as the case may be) for the unauthorized reception of multichannel service as referenced in Subsection A of this section.
C.
Without securing permission from an MCS provider,
or making payment to an MCS provider, then no person 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 liquidated damages for and on behalf of both the Town and
subscribers whose interests have been harmed or damaged by the failure
of an MCS provider to comply with any time or performance-related
requirements, or any breach of a term or condition of a franchise,
other agreement, license or permit, or of this chapter, or for the
violation or breach of any federal, state, or local law, rule or regulation,
in the event such failure has not been remedied pursuant to procedures
set forth in this chapter.
B.
Upon acceptance of a franchise agreement or other
agreement, license or permit, or the renewal of any franchise agreement
or other agreement, license or permit, a franchisee or other MCS provider
shall indicate that it clearly understands that a failure to comply
with any time- or any performance-related requirements, or any breach
of a term or condition of such franchise, other agreement, license
or permit or of this chapter, or of any federal, state, or local law,
rule, regulation, or code as set forth any agreement or this chapter,
will result in damage to the Town, and that in certain situations
it will be impractical and impracticable to determine the actual amount
of such damage in the event of the delay or nonperformance of specified
obligations. If the Town elects to assess liquidated damages against
the franchisee or other MCS provider, said liquidated damages shall
constitute the sole financial remedy available to the Town, and the
Town shall not be entitled to any other financial or monetary damages,
excepting claims based in fraud or tort, or defense and indemnity.
C.
By acceptance of a franchise agreement or other agreement,
license or permit, absent good and just cause and the provision of
evidence of good faith efforts to comply, the failure to comply with
any time and performance-related requirement stipulated in the franchise
agreement or other agreement, license or permit, or this chapter,
will result in damage to the Town. Liquidated damages shall continue
to accrue, including during any appeals process, until such time as
the liquidated damages payment is received by the Town, or is otherwise
waived by the Town. Failure to pay liquidated damages within the time
provided shall be a material violation of this chapter, and the franchise
agreement or other agreement, license or permit, and shall be cause
to proceed against either a letter of credit or bond or other surety
as provided by the franchisee or other MCS provider. It shall also
constitute cause to pursue revocation of the franchise or other agreement,
license or permit. The franchisee or other MCS provider shall be charged,
and shall pay to the Town, the following amounts in liquidated damages
for the violations listed:
(1)
For failure to complete any system construction, reconstruction
or upgrade, pursuant to the franchise agreement or other agreement
or permit: $500 for each day, or part thereof, that the violation
or breach continues.
(2)
For failure to provide any data, documents, reports
or information required by the franchise or other agreement, license
or permit needed to monitor compliance and administer said franchise
or other agreement, license or permit, or for failure to cooperate
with the Town during an application process or system review: $100
for each day, or part thereof, the violation occurs or continues.
(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: $200 for each
day, or part thereof, that such noncompliance continues.
(4)
For failure to meet the customer service requirements
of this chapter or a franchise, other agreement, license or permit:
up to $100 for each day, or part thereof, that such noncompliance
continues.
(5)
For failure to comply with any consumer protection
requirements of this chapter or a franchise, other agreement, license
or permit: $100 for each day, or part thereof, that such noncompliance
continues.
(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: $100 per day per
incident for each day or part thereof that such noncompliance continues.
(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: $100 per day per incident for
each day or part thereof that such noncompliance continues.
(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: $100 per day per incident for
each day or part thereof that such noncompliance continues.
(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: $100 per day per incident
for each day or part thereof that such noncompliance continues.
(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: $100 per day per incident for each day or part thereof
that such noncompliance continues.
(11)
For failure to comply with any requirements
regarding the three-day right of rescission as set forth in state
law, or a franchise, other agreement, license or permit: $500 per
day per incident for each day or part thereof that such noncompliance
continues.
(12)
For failure to comply with any requirements
regarding the use and display or identification passes and badges
as set forth in this chapter or a franchise, other agreement, license
or permit: $50 per day per incident for each day or part thereof that
such noncompliance continues.
(13)
For failure to comply with any requirements
regarding cleanup and proper installation as set forth in this chapter
or a franchise, other agreement, license or permit: $100 per day per
incident for each day or part thereof that such noncompliance continues.
(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 or a franchise, other
agreement, license or permit: $50 per day per incident for each day
or part thereof that such noncompliance continues.
(15)
For failure to meet any safety-related requirements
of this chapter or a franchise, other agreement, license or permit,
including fire and electrical codes: up to $500, per failure, for
each day, or part thereof, that such noncompliance continues.
(16)
For failure to pay the full and complete amount
of any money owed the Town: up to $100 per day, for each day, or part
thereof, that such underpayment continues as measured from the date
the original payment was due.
(17)
For failure to comply with any other section,
subsection, or provision of this chapter, or a franchise agreement
or other agreement, license or permit: $50, for each instance of noncompliance
or violation, for each day, or part thereof, that such noncompliance
continues.
D.
Notwithstanding anything in the preceding, or any
other section of this chapter, after the initial 48 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
violation.
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 during the course of such proceeding, the franchisee
or other MCS provider shall not be excused from the prompt and timely
payment of liquidated damages as set forth in this section. Payment
of liquidated damages 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, a franchisee or other MCS provider may not
use the payment of liquidated damages, or other fines or penalties
as may permitted and assessed, to evade or avoid compliance with this
chapter or any section of this chapter. An attempt to do so shall
subject the franchisee or other MCS provider to termination and loss
of the franchise or other agreement, license or permit or other operating
authority.
A.
The Town shall provide notice and opportunity to cure
for the failure to comply with a time or performance-related requirement,
or breach of a term or condition of an MCS franchise or other agreement,
license or permit, or of this chapter, or of any federal, state, or
local law, rule, regulation or code which the Town deems sufficient
to warrant the assessment and imposition of liquidated damages.
B.
Notwithstanding anything to the contrary in the preceding
subsection, or any other subsection of this section, 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 liquidated damages. Rather, liquidated damages may be assessed
and imposed immediately, on a per-occurrence, per-day basis, until
the violation(s) is/are eliminated.
C.
Notice and the opportunity to cure shall be provided to the affected MCS provider in writing, and shall be sent by certified U.S. 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, or breach of a term or condition of a MCS provider franchise or other agreement or permit, violation of this chapter, or violation of any federal, state, or local law, rule or regulation, shall be at the discretion of the Town, but in no event less than 48 hours, unless otherwise agreed to between the Town and the franchisee or other MCS provider, or as set forth in Subsection B of this section. 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 forty-eight-hour cure period may be lessened and, in fact, a cure may be required the same day, depending upon the seriousness of the matter as a factor of the threat created to the public.
D.
The Town may, in its reasonable discretion, grant
extensions of time to a franchisee or other MCS provider to cure or
remedy, where extraordinary circumstances not precipitated by the
franchisee or other MCS provider warrant an extension.
E.
Notwithstanding any notice and opportunity 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 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 liquidated
damages, 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.
F.
A notice of intent to assess liquidated damages may
be issued concurrently with a notice to cure. If a notice of intent
to assess liquidated damages is issued concurrently with a notice
to cure, liquidated damages, 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 liquidated damages
shall state the reason for the assessment and imposition, and shall
inform the franchisee or other MCS provider that liquidated damages
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 liquidated damages, it must file a
written notice of appeal with the Town Clerk, delivered by certified
U.S. mail, within 10 days of the receipt of the notice of intent to
assess liquidated damages. The Town Clerk shall then place the issue
of the assessment of liquidated damages before the Town Board.
H.
The Town shall then have served upon the affected
MCS provider 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 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 liquidated
damages within the time required by this section, the Town's decision
to assess liquidated damages 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
to 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, based
upon the record of the proceeding, stating with particularity the
reasons for such decision. A copy of the Council's 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 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 liquidated damages 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 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 liquidated damages. The Town Board's
decision to affirm the Town's assessment of liquidated damages 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 liquidated damages 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 Subsection 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 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.
