[HISTORY: Adopted by the Council of the City
of Schenectady 9-11-1985 by Ord.
No. 85-58. Amendments noted where applicable.]
This ordinance shall be known and cited as the
"Cable Television System and Audio Communications Services Ordinance."
A.
In consideration of the faithful performance and observance
of the conditions and reservations hereinafter set forth, there is
hereby granted to Schenectady Cablevision, Inc., its successors, assigns
of designees the right to erect, install, construct, reconstruct,
replace, remove, repair, maintain and operate in or upon, under, above,
across and from the streets, avenues, highways, sidewalks, bridges
and other public ways, easements, rights-of-way and lands, as now
existing, and all extensions thereof and additions thereto, in the
City of Schenectady, all equipment, facilities, appurtenances and
apparatus of any nature for the purpose of receiving, amplifying,
transmitting and distributing by studios, cameras, projectors, recorders,
antennas, transmitters, microwaves, wires, cables, coaxial cables,
wave guides and cables of television, radio, electrical and electronic
energy, pictures, sounds, signals, impulses and communications, unidirectional
and multidirectional of every nature and description, audio and video,
embracing any and all of the frequencies of the electromagnetic spectrum,
and to otherwise engage in the business, services and activities generally
known as and practiced now and in the future by the "cable television
system and audio communications services," in accordance with the
laws of the United States of America, the State of New York and the
City of Schenectady.
B.
The City of Schenectady expressly reserves the right
to adopt, in addition to the provisions contained in this franchise
and existing applicable ordinances, such additional regulations as
it shall find necessary in the exercise of its police power; provided,
however, that such regulations are reasonable and not materially in
conflict with the privileges granted in this franchise.
C.
The Mayor or a duly appointed designee shall be responsible
for the continuing administration of the franchise.
D.
The terms of this franchise are subject to the approval
of the New York State Commission on Cable Television.
This franchise shall be effective on the effective
date of this ordinance and shall continue in full force and effect
for 10 years, the last five of which are conditional upon commencing
an electronic upgrade to 35 channels within three years and completing
said upgrade within the first five years. The right to use and occupy
said streets, alleys, public ways and places for the purposes herein
set forth shall not be exclusive, and the City reserves the right
to grant a similar use of said streets, alleys, public ways and places
to any person at any time during the period of this franchise.
A.
In consideration of the terms of the franchise, Schenectady
Cablevision, Inc., shall pay to the City of Schenectady an annual
sum of money computed upon the gross monthly service charges received
by Schenectady Cablevision, Inc., from subscribers for all services
of every nature whatsoever, either for Community Antenna Television
or for so-called extra services within the limits of the City of Schenectady,
the franchise fee shall be the maximum designated in guidelines established
as part of the requirements for certification by the Federal Communications
Commission and in no event shall exceed 5%.
B.
Such payment shall be deemed compensation for services
rendered, supervision and inspection of equipment and facilities and
for other expenses relating to the installation and operation of the
system on the part of the City as provided in the ordinance, Schenectady
Cablevision, Inc., having given assurances to the City that this rate
will not interfere in the effectuation of federal regulatory goals
in the field of cable television.
C.
Such annual sum shall be payable, 1/2 thereof,
at the end of each semiannual period. The semiannual anniversary shall
be the 30th day of June and the 31st day of December of each year,
and each semiannual payment shall be paid within 60 days thereafter.
The franchise shall keep complete records of accounts showing dates
and payments received. The duly authorized agent of this municipality
shall have the right, power and authority to inspect the gross monthly
service charge records of the franchisee, upon reasonable notice during
normal business hours.
D.
In addition thereto, the franchisee shall file with
the City Clerk and shall keep in its local office, to be available
for inspection by the City, a copy of the rules, regulations, terms
and conditions adopted by the franchisee, and in effect with its subscribers.
The franchisee shall also keep available at its local office, to be
available for inspection by the City, and shall file with the City
Clerk a semiannual summary report showing the gross monthly service
charge revenues received by the franchisee from its operations within
the City during the preceding semiannual periods as above described.
E.
The franchisee shall submit to the City the form of
its subscriber agreement and shall submit to the City any subsequent
changes in that agreement.
A.
The franchising authority may not regulate the rates
for the provision of cable service and other service, including but
not limited to ancillary charges relating thereto, except to the extent
expressly provided herein. The franchising authority may not regulate
any other charges, fees or compensation of whatever nature received
or charged by the franchisee. The franchising authority shall have
such regulatory authority to set rates as allowed by federal law.
B.
The initial rates and charges for the first outlet
of basic service shall be those listed on Schedule I which is attached
hereto and incorporated herein by this reference.[1] For a period of time up to and including December 29,
1986, the franchisee shall not increase such rates for basic service
(first outlet) without the prior approval of the franchising authority,
except as noted below, such approval to not be unreasonably withheld.
Any request for an increase shall be acted upon by the franchising
authority within 180 days after receipt thereof, or such increase
shall be deemed automatically granted. For the purpose of this section,
the parties agree that the rates and charges for the provision of
basic service are not considered to be fixed. Notwithstanding anything
to the contrary set forth herein, rates and charges for second outlets
for basic service shall be deregulated as presently authorized by
the Federal Communications Commission.
[1]
Editor's Note: Schedule I is included as an attachment to this chapter.
C.
In addition to any basic service rate increase which
may be subject to approval of the franchising authority, the franchisee
may, at its discretion and without consent of the franchising authority,
increase rates relating to the provision of basic service by an amount
not to exceed 5% per year, plus cost related increases as defined
in the Cable Communication Policy Act and by the Federal Communications
Commission.
D.
Notice of rate changes shall be given at least 30
days in advance in newspapers of general circulation and by electronic
message on a company television channel and at least 10 days in advance
in writing to each individual subscriber.
E.
Notwithstanding any provisions to the contrary herein,
the parties agree that the franchisor shall have the right to regulate
such fees, charges and any other payments during the term of this
franchise which may be granted to municipalities and the franchisor
by federal law.
A.
There is hereby granted the further right, privilege
and authority to the franchisee to lease, rent or in any other manner
obtain the use of towers, poles, lines, cables and other equipment
and facilities from any and all holders of public licenses and franchises
within the corporate limits of the City of Schenectady, including
the New York Telephone Company, and to use such towers, poles, lines,
cables and other equipment and facilities, subject to all existing
and future ordinances and regulations of the City of Schenectady.
The poles used for the franchisee's distribution system shall be those
erected and maintained by the New York Telephone Company and/or Niagara
Mohawk Power Corporation, when and where practicable, provided that
mutually satisfactory rental agreements can be entered into with said
companies. The franchisee shall have the right to erect, install and
maintain its own towers, poles, guys, anchors and ducts as may be
necessary for the proper construction and maintenance of the antenna
site, head-end and distribution system, provided that poles placed
on municipal properties shall first have their location approved by
the City Engineer. Such permission shall not be unreasonably withheld.
B.
All transmission and distribution structures, lines
and equipment erected by the franchisee within the City shall be so
located as to cause minimum interference with the proper use of streets,
alleys and other public ways and places and to cause minimum interference
with the rights or reasonable convenience of property owners who adjoin
any of said streets, alleys or other public ways and places.
C.
In case of any disturbance of pavement, sidewalks,
driveways or other surfacing, the franchisee shall promptly, at its
own cost and expense and in a manner approved by the City Engineer,
replace and restore all paving, sidewalks, driveways or surfaces of
any street or alley disturbed, in as good condition as before said
work was commenced. In the event that at any time during the period
of this franchise the City shall lawfully elect to alter or change
the grade of any street, alley or public way, the franchisee, upon
reasonable notice by the City, shall remove, relay and relocate its
poles, wires, cables, underground conduits, manholes and other fixtures
at its own expense.
D.
The franchisee shall not place poles or other fixtures
when the same will interfere with any gas, electric or telephone fixture,
water hydrant or main, and all such poles or other fixtures placed
in any street shall be placed at the outer edge of the sidewalk and
inside the curbline, and those placed in alleys shall be placed close
to the line of the lot abutting on said alley and then in such a manner
as not to interfere with the usual travel on said street, alleys and
public ways.
E.
The franchisee shall, on the request of any person
holding a building moving permit issued by the City, temporarily raise
or lower its wires to permit the moving of buildings. The expense
of such temporary removal, raising or lowering of wires shall be paid
by the person requesting the same, and the franchisee shall have the
authority to require such payment in advance. The franchisee shall
be given not less than five days advance notice to arrange for such
temporary wire changes.
F.
The franchisee shall have the authority to trim trees
upon and overhanging streets, alleys, sidewalks and public places
of the City so as to prevent the branches of such trees from coming
in contact with the wires and cables of the franchisee, all trimming
to be done under the supervision and direction of the City and at
the expense of the franchisee.
A.
The franchisee shall, during the existence of this
franchise, furnish reasonable, adequate and efficient community antenna
reception service to the residents of the City, wherever practicable,
and the franchisee agrees to maintain its system in reasonable repair
and working order and to provide adequate facilities for such maintenance.
These requirements may be temporarily suspended by disaster or emergency
conditions or other circumstances beyond the reasonable control of
the franchisee.
B.
The franchisee shall provide to its subscribers all
existing VHF and UHF Federal Communications Commission allocated television
channels having studio facilities within a radius of 25 miles of the
City of Schenectady.
C.
Schenectady Cablevision, Inc., shall carry, in addition
to the local signals, the following:
(1)
Services which have contracts to carry sports events
from the Boston and New York City markets, including but not limited
to the baseball games of the Yankees, Mets and Red Sox, subject to
modification if carriage becomes commercially impracticable, as defined
in the Cable Communications Policy Act of 1984.
(2)
News.
(3)
Financial reports.
(4)
Time.
(5)
Weather.
(6)
Community activities.
(7)
Horse racing results.
D.
In addition, the parties agree that the company will
carry an additional programming service that holds exclusive cable
rights to major national sporting events, so long as the cost of such
carriage does not exceed that for each of the current three independent
signals carried, subject to modification if such carriage becomes
commercially impracticable as defined in the Cable Communications
Policy Act of 1984.
To the extent required by any applicable state
and federal laws and regulations and this franchise, Schenectady Cablevision
will provide reasonable public access to its cable television system.
Pursuant to this requirement, Schenectady Cablevision will:
A.
Continue to provide a separate cable television production
and programming studio at a site which will optimize the use of such
studio by members of the public and which will be administered by
the company or its designee, subject to the approval of the City.
B.
Provide the separate equipment necessary for such
studio and all necessary repair, replacement and upgrade of such equipment.
C.
Establish ongoing training programs for members of
the public to familiarize them with the equipment and procedures.
D.
Make available to the public a minimum of one full-time
equal quality channel for public access purposes and, to the extent
possible, provide additional channel space upon an upgrade to 35 channels
and a showing of need. Upon completion of system upgrade, one channel
shall also be made available for carriage of the New York State Government
Access Channel, when such channel becomes available, provided that
there is available channel space and shall not be required to be set
aside as a full-time channel unless such is required by New York State
Commission on Cable Television Rules and Regulations.
E.
Schenectady Cablevision will provide the financial
resources necessary to support the operations of the cable television
production and programming studio at a level at least commensurate
with its current operations.
F.
Notwithstanding the provisions of this section, the
City and Schenectady Cablevision, in fulfilling their responsibility
to provide public access to the cable television system, specifically
affirm that they will comply with all present and future rules and
requirements of the Cable Commission relating to public, educational
and governmental access and, further, that the provisions of this
franchise are subject to the rules of the Cable Commission, relating
to public access, and that any such rules which are required to be
incorporated by amendment or reference in a franchise are specifically
incorporated herein.
The franchisee shall not, as to rates, charges,
service facilities, rules, regulations or in any other respect, make
or grant any preference or advantage to any person nor subject any
person to any prejudice or disadvantage; provided, however, that this
shall not be deemed to prohibit the establishment of a graduated scale
of charges. The franchisee shall not refuse to hire or employ nor
bar or discharge from employment nor discriminate against any person
in compensation or in terms, conditions or privileges of employment
because of age, race, creed, color, national origin or sex.
No privilege or exemption is granted or to be
inferred from this franchise except those specifically prescribed
herein. Any privilege claimed under this franchise in any street shall
be subordinate to any prior lawful occupancy of the street. Schenectady
Cablevision should hold priority of occupancy subordinate only to
power and telephone.
This franchise shall be held in trust by Schenectady
Cablevision, Inc., or its successor in interest; provided, however,
that it may assign its right, title and interest hereunder to another
corporation or lawful business entity through the sale of stocks or
assets or otherwise, provided that prior approval of such assignment
shall be obtained from the Council of the City of Schenectady, which
said approval shall not be unreasonably withheld, provided that such
other corporation or lawful business entity is duly authorized to
receive such assignment and agrees to undertake and assume all the
obligations of the original corporation hereunder subject to all of
the terms and conditions of this franchise. In the event that such
assignment takes place with such consent, then immediately upon the
delivery to the Council of the City of Schenectady of the aforesaid
assumption agreement duly executed by the assignee, all of the rights,
obligations and privileges herein granted to the franchisee shall
forthwith devolve upon the assignee who shall in all respects stand
in the place and stead of the original corporation hereunder. No such
consent shall be required, however, for a transfer to an affiliate
or a transfer in trust, by mortgage, by other hypothecation nor by
assignment of any rights, title or interest of franchisee in the franchise
or cable system in order to secure indebtedness.
A.
The franchisee's plant and equipment, including the
antenna site, head-end and distribution system towers, structures,
poles, wires and appurtenances shall be installed in accordance with
good engineering practices and shall be located, erected, constructed,
reconstructed, replaced, removed, repaired, maintained and operated
so as not to endanger or interfere with the lives of persons or to
interfere with improvements that the municipality may deem proper
to make or to unnecessarily hinder or obstruct pedestrian or vehicular
traffic on public ways, places and structures. Erection, installation,
construction, replacement, removal, repair, maintenance and operation
of the system shall be in accordance with the provisions of the National
Electrical Safety Code prepared by the National Bureau of Standards,
the National Electrical Code of the National Board of Fire Underwriters
and such applicable laws of the State of New York and applicable ordinances
of this municipality which may now be in effect or enacted in the
future. All installations shall be of a permanent nature, durable
and maintained in a safe, suitable and substantial condition, in good
order and repair.
B.
Any opening or obstruction in the streets or other
public ways made by the franchisee in the course of the construction,
operation or removal of installations shall be guarded and protected
at all times by the placement of adequate barriers, fences or boardings,
the bounds of which during periods of dusk and darkness shall be clearly
designated by warning lights.
During the term of this franchise, and any renewal
thereof, the franchisee shall maintain within the City its main business
office. This office shall be open to receive inquiries or complaints
from subscribers during the normal business hours of 9:00 a.m. to
4:00 p.m., Monday thru Friday. The company shall experiment with extended
office hours during evenings and weekends within six months of the
effective date of this agreement and shall report the results to the
City. The office hours currently being observed shall be listed in
Addendum B.[1] Any complaints from subscribers shall be acted upon as
soon as practicable but within no more than three business days of
their receipt.
[1]
Editor's Note: Addendum B is included as an attachment to this chapter.
The franchisee shall not engage in the business
of repairing television or radio receivers in connection with its
operations of the cable television system and audio communication
services. Nothing herein shall be construed as prohibiting the franchisee
from offering converters and from repairing these devices.
The cable television system and audio communications
system will be so designed, engineered and maintained by the franchisee
so as not to interfere with the television reception of residents
of the City who are not subscribed to its services.
The franchisee will supply one free drop to
public and parochial, primary and secondary schools, fire stations,
police stations, and the City of Schenectady City Hall located within
the City, which are passed by a cable belonging to the franchisee.
There shall be no monthly service charge for said service; however,
a converter deposit may be charged.
A.
The franchisee shall at all times defend, indemnify,
protect and save harmless the City of Schenectady from and against
any and all liability, losses and physical damage to property and
bodily injury or death to persons, including payments made under workers'
compensation laws, which may arise out of or be caused by the erection,
construction, replacement, removal, maintenance and operations of
the franchisee's cable television system and audio communications
service and resulting from or by any negligence, fault or misconduct
on the part of the franchisee, its agents, officers, servants and
employees. The franchisee shall also carry New York State Workers'
Compensation coverage on its employees who are engaged in any manner
in the erection, construction, replacement, repair, maintenance and
operation of the franchisee's plant and equipment.
B.
The franchisee shall carry a general comprehensive
liability insurance policy holding the City of Schenectady as an additional
insured with the following minimum limits:
C.
The franchising authority acknowledges that the legal,
financial and technical qualifications of franchisee are sufficient
to afford compliance with the term of the franchise and the enforcement
thereof.
A.
The franchisee shall provide notice to each subscriber,
at intervals of not more than one year, of the procedure for reporting
and resolving subscriber complaints. A security fund will be established
in the amount of $2,500, to be replenished to that level each January
1, in an interest-bearing account with interest accruing to the company.
This fund will constitute the total moneys available for penalties
during any given calendar year. Penalty moneys will be withdrawn from
the fund only on a quarterly basis at the end of each quarter in accordance
with the provisions listed below. Withdrawals from the fund will require
the signature of the City's duly authorized agent and the signature
of an authorized member of the company. The City must proceed with
litigation in order to collect any penalty money in excess of the
$2,500 security fund. Likewise, the company must proceed with litigation
to prevent the City from withdrawing any penalty money up to $2,500
per year for cause, as defined by this agreement.
B.
Schedule of penalties. The following monetary penalties
shall apply, and liability therefor shall accrue from five days of
the date of mailing of notice, except as otherwise provided below.
(1)
Administrative.
(a)
Failure to make timely application, registration
or any other filing with the Federal and/or State Commission and that
failure affects service to the City: $100 per day per filing from
time due until filed.
(b)
Failure to maintain company insurance: $25 per
day from time due until cured.
(c)
Failure to timely submit any reports or fees
due to the City pursuant to this franchise: $50 per day from time
due until submitted.
(d)
Failure to provide adequate public notice of
rate changes or to conduct a system-wide notice by mail to individual
subscribers pursuant to the franchise: $500 per rate change.
(e)
Willful and knowing submission of falsified
records to the City: $5,000 per occurrence.
(2)
Construction and performance:
(a)
Failure to restore damaged City property within
30 days to as good a condition as preexisted: $50 per day until restored.
(b)
Repeated failure to commence service to a subscriber
within 30 days of request, provided that the subscriber franchises
entry to premises, within cabled area only: $5 per day per subscriber
until service is begun. (NOTE: These penalties may not be assessed
sooner than 90 days following notice from the City of inadequate performance
and shall be assessed only if such inadequate performance has not
been corrected within that ninety-day period.)
(c)
Failure to pay any refund due a subscriber within
30 days of termination of service upon request of subscriber, if less
than $10: $5 per day per subscriber from time due until paid. (NOTE:
These penalties may not be assessed sooner than 90 days following
notice from the City of inadequate performance and shall be assessed
only if such inadequate performance has not been corrected within
that ninety-day period.)
(d)
Repeated failure to respond to a billing or
service complaint within the specified period (by the next business
day) according to NYSCCT requirements, provided that the subscriber
permits entry to the premises. Five dollars per day per subscriber
until response is made. (NOTE: These penalties may not be assessed
sooner than 90 days following notice from the City of inadequate performance
and shall be assessed only if such inadequate performance has not
been corrected within that ninety-day period.)
(e)
Failure to respond to a confirmed appointment
and failure to cancel appointment before 3:00 p.m. If this happens
twice to the same customer, installation is free.
C.
Municipal Rights. The City retains the right, at its
sole option, to reduce or waive any of the above-listed penalties
where extenuating circumstances or conditions beyond the control of
the company are deemed to exist. Such determination shall be within
the sole discretion of the City, except that the City shall grant
such reduction or waiver where the extenuating circumstances result
from force majeure which shall include acts of third parties not within
the company's control.
D.
Further recourse. In addition to the foregoing penalties,
if, after proper notice, the company shall refuse, neglect or intentionally
fail to cause any work or other act required by law or by this franchise
to be properly completed in, on, over or under, any street within
a reasonable time prescribed, the City may, but shall not be required
to, cause such work or other act to be performed or completed in whole
or in part and, upon so doing, shall submit to the company an itemized
statement of the costs thereof. The company shall, within 30 days
after receipt of such statement, pay to the City the entire amount
thereof.
If the franchisee shall fail to comply with
any of the material provisions of this ordinance or default in any
of its material obligations hereunder, except for causes beyond the
reasonable control of the franchisee, and shall fail within 30 days
after written notice from the municipality to commence and, within
a reasonable time, complete the correction of such default or noncompliance,
the Council of the City of Schenectady shall have the right to revoke
this franchise and all rights of the franchisee hereunder. In the
event that the franchisee shall be adjudged bankrupt or placed in
receivership, this municipality may declare the special rights herein
granted forfeited and terminated.
A.
Consistent with the requirements of Rule 1(A)(6) of
the Federal Communications Commission, any modification of Rule 76.31,
resulting from an amendment thereto by the Federal Communications
Commission shall, to the extent applicable, be considered as a part
of this franchise as of the effective date of the amendment made by
the Federal Communications Commission and will be incorporated in
such franchise by specific amendments thereto by the lawful action
of the Council of the City of Schenectady within one year from the
effective date of the Federal Communications Commission's amendment
or the time of renewal of this franchise, whichever occurs first.
B.
The franchisee shall file requests for all necessary
operating authorization with the Commission on Cable Television and
the Federal Communications Commission within 60 days from the date
this franchise is awarded.
Any inquiry, proceeding, investigation or other
action to be taken or proposed to be taken by the Council of the City
of Schenectady in regard to the operations of the franchisee's cable
television shall be taken only after 30 days' public notice of such
action or proposed action is published in a local daily or weekly
newspaper having general circulation in the City; a copy of such action
or proposed action is served directly on the franchisee; the franchisee
has been given an opportunity to respond in writing and/or at hearing
as may be specified by the Council of the City of Schenectady; and
general members of the public have been given an opportunity to respond
or comment in writing on the action or proposed action.
