The Town finds that the development of a cable (television)
or video programming (distribution) system, operated by program suppliers,
and related services have a potential to greatly benefit and impact
the people of the Town. Because of the complex and rapidly changing
technology associated with cable/video programming services, the Town
further finds that the public convenience, safety and general welfare
can best be served by establishing regulatory powers that are vested
in the Town or such persons as the Town shall designate. It is the
intent of this chapter, and subsequent amendments, to provide for
and specify the means to attain the best possible public interest
and public purpose in these matters, and any franchise issued pursuant
to this chapter shall be deemed to include this finding as an integral
part of the franchise. Further, it is recognized that cable/video
systems have the capacity to provide not only entertainment and information
services to the Town's residents, but can provide a variety of
broadband, interactive communications services to institutions and
individuals. Many of these services involve Town agencies and other
public institutions. For these purposes, the following goals underlie
the regulations contained in this chapter:
A.Â
Satisfy present and future needs. The cable/video system should accommodate
both the present and foreseeable future communications needs of Town
residents.
B.Â
State of the art. The cable/video system must be improved and upgraded
during the franchise term to keep pace with technological innovation
and meet the future community needs of the community.
C.Â
Diverse information sources. The cable/video system authorized by
this chapter shall be responsive to the needs and interests of the
local community, and shall provide for the widest possible diversity
of information sources to, between and among the public.
The following words, terms and phrases, when used in this chapter,
shall have the meanings ascribed to them in this section, except where
the context clearly indicates a different meaning or unless otherwise
provided by federal or state law:
Any service tier, which includes the retransmission of local
television broadcast signals; public, educational and government access
cable/video programming services and local programming originating
within the greater metropolitan area. Basic services may be further
defined in the franchise to include specific services or types of
services to be provided by the grantee.
A facility consisting of a set of closed transmission paths
and associated signal generation, reception, and control equipment
that is intended to provide programming to multiple locations.
Any and all activities related to providing video content,
including any ancillary audio or control signals, regardless of content
or protocol or delivery technology.
A portion of the electromagnetic spectrum (bandwidth) used
to deliver a television (video and audio) signal or video programming
service.
The Cable Communications Policy Act of 1984.
A connection from the public way to the subscriber/user receiver
(television or radio) or other terminal device.
Any bandwidth specifically designated or dedicated for education
access video programming services.
A permit to place private facilities in the public way for
a specified period of time.
The Federal Communications Commission.
The nonexclusive rights granted pursuant to this chapter
to construct, operate and maintain a cable/video system along the
public ways within all or a specified area in the Town. Any such authorization,
in whatever form granted, shall not mean or include any license or
permit required for the privilege of transacting and carrying on a
business within the Town as required by other ordinances and regulations.
The percentage, as specified by the Town, of the grantee's
gross annual revenues in exchange for the rights granted pursuant
to this chapter and the subsequent franchise agreement for use of
the public way.
[Amended 12-16-2015 by L.L. No. 3-2015]
Any bandwidth specifically designated or dedicated for government
access video programming services.
The natural person, partnership, domestic and foreign corporation,
association, joint venture or organization of any kind that has been
legally granted a franchise by the Town, and its lawful successor,
transferee or assignee.
The Town as represented by the Town Board acting within the
scope of its jurisdiction.
Any and all revenue, whether realized directly or indirectly,
that is derived from or occasioned by the grant of municipal consent
to use and occupy the public rights-of-way for commercial purposes,
without which consent and use or occupation the revenue would not
have been derived.
A person such as, but not limited to, a cable/video system
operator, an open video system operator, a video provider, or a video
programming services supplier as defined below, a multichannel multipoint
distribution service, a direct broadcast satellite service, or a television
receive-only satellite program distributor, who makes available multiple
video programming services for purchase by subscribers or customers.
Bandwidth specifically designated for use by the general
public or organization for the purpose of providing cable/video programming
services without charge and over which the grantee has no editorial
control.
The surface, the air space above the surface, and the area
below the surface of any public street, highway, lane, path, alley,
sidewalk, boulevard, drive, bridge, tunnel, park, parkways, waterways,
utility easements or other public rights-of-way now or hereafter held
by the Town which shall entitle the Town and the company to the use
thereof for the purpose of installing and maintaining the cable/video
system. No reference in this chapter or in any franchise to the "public
way" shall be deemed to be a representation or guarantee by the Town
that its title to any property is sufficient to permit its use for
such purpose, and the grantee shall, by its use of such terms, be
deemed to gain only such rights to use property in the Town as the
Town may have the undisputed right and power to give.
The geographic area defined by the franchise agreement.
The elected officials comprising the body politic of the
Town of Penfield, New York.
Any person, company, or service which provides one or more
cable/video programming services, including any communications that
are ancillary, necessary or common to the use and enjoyment of the
video programming, to or from a business, home, condominium, or apartment,
where some fee is paid, whether directly or indirectly in dues or
rental charges for that service, whether or not public rights-of-way
are used in the delivery of the video programming or communications.
A video provider or video programming services supplier includes,
but is not limited to, a multichannel video programming distributor
[as defined in 47 U.S.C. § 522(13)] and a supplier of open
video systems (OVS); cable television; master antenna television;
satellite master antenna television; multichannel multipoint distribution
services (MMDS); cable/video programming services over internet protocol
(including, but not limited to, broadcasting and video-on-demand);
direct broadcast satellite to the extent federal law permits taxation
of its cable/video programming services, now or in the future; and
other suppliers of video programming or communications (including
two-way communications), whatever their technology.
A.Â
Any person
desiring a franchise for a cable/video system shall file an application
with the Town in accordance with the provisions of this section.
B.Â
Required. An application for an initial franchise for a cable/video
system shall contain, where applicable:
(1)Â
A statement as to the proposed franchise and service area.
(2)Â
A resume of the prior history of the applicant, including the legal,
technical and financial expertise of the applicant.
(3)Â
A list of the partners, general and limited, of the applicant, if
a partnership, or the percentage of stock owned or controlled by each
shareholder, if a corporation.
(4)Â
A list of the officers, directors and managing employees of the applicant,
together with a description of the background of each such person.
(5)Â
The names and addresses of any parent or subsidiary of the applicant
or any other business entity owning or controlling the applicant in
whole or in part, or owned or controlled in whole or in part by the
applicant.
(6)Â
A current financial statement of the applicant verified by a CPA
audit or otherwise certified to be complete and correct to the reasonable
satisfaction of the Town.
(7)Â
A proposed construction and service schedule.
(8)Â
Any additional information that the Town deems reasonably necessary
to determine whether the applicant has to construct, operate, and
maintain a cable/video system and provide services in accordance with
the provisions of this chapter.
(9)Â
A nonrefundable application fee as set forth in the fee schedule
annually adopted by the Town Board shall accompany the application.
Such application fee shall not be deemed to be "franchise fees" within
the meaning of Section 622 of the Cable Act (47 U.S.C. § 542),
and such payments shall not be deemed to be "payments in kind" or
any involuntary payments chargeable against the compensation to be
paid to the Town by a grantee pursuant to provisions of a franchise
agreement.
[Amended 12-16-2015 by L.L. No. 3-2015]
A.Â
Examination of qualifications. Upon receipt of an application for a franchise in accordance with the provisions of § 101-3, the Town Board shall determine the applicant's qualifications to construct, operate, and maintain a cable/video system and to provide cable/video programming services in accordance with the provisions of this chapter. If the Town Board determines that the applicant is not so qualified, it may refuse to grant the requested franchise. If the Town Board determines that the applicant is so qualified, it may, by ordinance, grant a franchise to such applicant, to be effective as provided in this section. No provision of this chapter may be deemed or construed to require the granting of a franchise when the Town Board determines that to do so would not be in the public interest.
B.Â
Acceptance. Within 30 days after the Town Board has taken final action
to approve the granting of a franchise, the grantee shall file with
the Town Clerk a written acceptance of the conditions required for
the franchise, acknowledged before a notary public. Such acceptance
shall acknowledge that the grantee agrees to be bound by and to comply
with the provisions of this chapter and the franchise.
C.Â
Letter of credit. Concurrently with the filing of the written acceptance, the grantee shall file with the Town Clerk the letter of credit and insurance policies required by Article IV of this chapter.
D.Â
Effective date. The effective date of any franchise granted shall
be the date on which the grantee files the acceptance, letter of credit
and proofs of insurance as required herein. However, if any of the
material required to be filed with the acceptance or the acceptance
itself is defective or fails to meet with approval, the franchise
shall not be effective until such defect is cured or such approval
is obtained.
E.Â
Failure to provide information. If the grantee fails to accept the franchise and file the information required under this section within the time limit set forth in Subsection B, the Commission may, at any time thereafter before acceptance, summarily revoke the franchise. Written notice of such revocation shall be sent to the grantee forthwith.
