A.
Franchise not exclusive. Upon issuance of a nonexclusive, revocable
franchise to construct, operate and maintain a cable/video system
within the Town to a grantee, the franchise shall constitute both
a right and an obligation to provide the service of a cable/video
system as regulated by the provisions of this chapter and the franchise.
B.
Additional franchise grants. The grant of an additional franchise
may include an area for cable/video programming services similar to
that in an existing franchise or another area that the Town determines
is necessary or desirable to meet the current and future needs of
Town residents.
C.
Statutory requirements control. The franchise shall be granted under
the terms and conditions contained in this chapter, consistent with
and subject to federal or state statutory requirements. In the event
of conflict between the terms and conditions of this chapter, the
franchise, or the terms and conditions on which the Town can grant
a franchise, the statutory requirements of this chapter shall control,
unless otherwise specified by state or federal law.
D.
No fee waiver. Any franchise granted by the Town is hereby made subject
to the general ordinance provisions of general applicability now in
effect and hereafter made effective. Nothing in the franchise shall
be deemed to waive the requirements of the various codes and ordinances
of the Town regarding permits, fees to be paid or manner of construction.
E.
Franchise area. The franchise area hereby granted by the Town shall
be a geographic area located within the Town limits.
No franchise issued pursuant to the provisions of this chapter
shall be deemed to expressly or impliedly authorize the grantee to
utilize its cable/video system to provide any service in such manner
as to unlawfully damage any business competitor or other third party
or violate any statutes or regulations of the United States or the
State of New York; nor shall any grantee, by act or omission, engage
in any anti-competitive practice in violation of any statutes or regulations
of the United States or the State of New York. The provisions of this
section shall be enforceable in courts of competent jurisdiction against
a grantee by any party who alleges injury as a result of an alleged
violation thereof.
For the purpose of operating and maintaining a cable or video
system in the Town, the grantee may erect, install, construct, repair,
replace, reconstruct and retain in, on, over, under, upon, across
and along the public streets and ways within the Town such wires,
cables, fiber, conductors, ducts, conduits, vaults, manholes, amplifiers,
appliances, pedestals, attachments and other property and equipment
as are necessary to the operation of a cable or video system; provided,
however, that the grantee complies with all design, construction,
safety and performance provisions contained in this chapter, the franchise
and other applicable state, federal and local regulations.
No cable or video system shall be permitted to operate without
a franchise or encroachment agreement. At the minimum, the franchise
shall contain representations by the grantee that:
A.
It accepts and agrees to all of the provisions of this chapter, and
any supplementary specifications, including and not limited to construction,
operation or maintenance of the cable/video system, which the Town
may include in the franchise.
B.
It has examined all of the provisions of this chapter and waives
any claims that any provision of this chapter is unreasonable, arbitrary
or void (except where voided by federal or state law).
C.
It recognizes and agrees that the Town shall in no way be bound to
renew the franchise at the end of any franchise term.
D.
It acknowledges that its rights under this chapter are subject to
the police power of the Town to adopt and enforce general ordinances
necessary to assure the safety and welfare of the public; and it agrees
to comply with all applicable general laws enacted by the Town pursuant
to such power.
The term of any franchise granted pursuant to this chapter shall
be stated in the franchise agreement and shall not exceed 10 years
or other term limit provided by state and is limited to a single six-month
extension, whereupon it shall expire.
Whenever this chapter or the franchise shall set forth any time
for an act to be performed by or on behalf of the grantee, such time
shall be deemed of the essence.
In any controversy or dispute under this chapter, the law of
the state shall apply (Title 9 of the Official Compiled Codes, Rules
and Regulations of the State of New York, Parts 589, 590 through 599
and 894) and is hereby incorporated by reference.
A.
Transfer of franchise. No franchise granted under this chapter shall
be sold, transferred, leased, assigned or disposed of, including,
but not limited to, transfer by force or voluntary sale, merger, consolidation,
receivership or other means, nor shall the control of the grantee
be changed, without the prior consent of the Town and then only under
such public interest conditions as the Town may establish.
B.
Applicability. The provisions of this section shall only be applied
to the sale or transfer of all or a majority of the grantee's
assets, merger (including any parent and its subsidiary corporation),
consolidation or sale or transfer of stock in grantee so as to create
a new controlling interest. The term "controlling interest" as used
herein is not limited to majority stock ownership, but includes actual
working control in whatever manner exercised. The parties to the sale
shall make a written request to the Town for its approval of a sale
or transfer.
C.
Rebuttable presumption. A rebuttable presumption that a transfer
of control has been activated shall arise upon the disposal by the
grantee, directly or indirectly, by gift, assignment, voluntary sale,
merger, consolidation or otherwise, of 10% or more at one time of
the ownership or controlling interest in the system, or 15% cumulatively
over the term of the franchise of such interests to a corporation,
partnership, limited partnership, trust or association, or person
or group of persons acting in concert, none of which already own or
control 10% interest in the system.
D.
Notice required. If the grantee decides to sell, transfer, lease,
assign or dispose of the franchise by any means or method or change
the control of the grantee, it shall first give written notice to
the Town of the proposed change, transfer or acquisition, including
the name and address of the prospective transferee or controlling
party, and shall furnish such additional information as the Town may
chose to request regarding, but not limited to, the legal, financial,
character, technical and other public interest qualifications of such
party. Failure to provide all information requested by the Town as
a part of the inquiry shall be grounds for denial of the proposed
change, transfer or acquisition of control.
E.
Cancellation-termination. Every change, transfer or acquisition of
control of the grantee shall make the franchise subject to cancellation
unless and until the Town shall have consented thereto, which consent
shall not be unreasonably withheld.
F.
Assumption of control. The Town agrees that any financial institution
having a pledge of the franchise or its assets for the advancement
of money for the construction and/or operation of the franchise shall
have the right to notify the Town that it, or a designee satisfactory
to the Town, will take control and operate the cable/video system.
Further, the financial institution shall also submit a plan for such
operation that will ensure continued service and compliance with all
franchise obligations during the term the financial institution exercises
control over the cable/video system. The financial institution shall
not exercise control over the cable/video system for a period exceeding
one year, unless extended by the Town at its discretion, and during
that period of time it shall have the right to petition for transfer
of the franchise to another grantee. If the Town finds that such transfer
satisfies the Town's public interest requirements, the Town will
transfer and assign the rights and obligations of the franchise.
G.
The consent or approval of the Town to any transfer of the grantee
shall not constitute a waiver or release of rights of the Town in
and to the public way, and any transferee shall, by its terms, be
expressly subject to the terms and conditions of this chapter and
the franchise.
H.
Approval. Any approval by the Town of transfer of ownership or control
shall be contingent upon the prospective controlling party becoming
a signatory to the franchise.
Upon completion of the term of any franchise granted under this
chapter, and following good faith franchise renewal negotiations with
the grantee, the Town may, at its sole discretion, grant or deny renewal
of the franchise of the grantee in accordance with applicable federal
provisions of the Cable Act and state law. The grantee shall own the
cable/video system, but shall have no property right in the public
rights-of-way upon the completion of the franchise term.
A.
Required. Because the administration of this chapter and the franchise
imposes upon the Town additional regulatory responsibility and expense,
the grantee of any franchise under this chapter shall pay to the Town
a franchise fee in an amount as designated in the franchise, but in
no event less than 5% of the gross annual revenues or, upon written
notification of the Town, the maximum amount permitted under applicable
federal, state or local law, if such maximum is greater than 5%. The
annual franchise payment shall be in addition to any other fee lawfully
imposed and shall commence as of the effective date of the franchise.
The Town shall be furnished a statement of the payment, certified
by the grantee's chief financial officer, reflecting the total
amounts of annual gross revenues pursuant to this chapter, the law
of the state shall apply (Title 9 of the Official Compiled Codes,
Rules and Regulations of the State of New York, Part 599.4000) and
computations for the period.
B.
Franchise fee in lieu of public rights-of-way use fee. The franchise
fee levied on the gross revenues derived by the grantee from the provision
of cable/video programming services are in lieu of an annual rights-of-way
use rental fee as set forth in the fee schedule annually adopted by
the Town Board for placement of the grantee's facilities, regardless
of service category, in the right-of-way. In the absence of a franchise
fee, the annual right-of-way use fee shall be remitted to the Town
each January 1 for the new calendar year.
[Amended 12-16-2015 by L.L. No. 3-2015]
C.
Franchise fee additional to other tax or payment. This payment of
the franchise fee shall be in addition to any other payment owed to
the Town or other taxing jurisdiction by the grantee. The payment
of the franchise fee made by the grantee to the Town shall not be
considered in the nature of a tax, but shall be in addition to any
and all taxes which are now or may be required hereafter to be paid
by any federal, state or local law.
D.
Acceptance by Town. No acceptance of any payment by the Town shall
be construed as a release or as an accord and satisfaction of any
claim the Town may have for further or additional sums payable as
a franchise fee under this chapter or for the performance of any other
obligation of the grantee.
E.
Failure to make required payment. If any franchise payment or recomputed
amount is not made on or before the dates specified in this section,
the grantee shall pay, as additional compensation, an interest charge
computed from the due date, at the annual rate equal to the commercial
prime interest rate of the Town's primary depository bank during the
period during which such unpaid amount is owed.
F.
Payments to be made quarterly. The franchise fee shall be payable
quarterly. The grantee shall file a complete and accurate verified
statement of all gross revenues within the franchise area during the
period for which the quarterly payment is made, and the payment shall
be made to the Town no later than 45 days following the end of each
calendar quarter. Quarterly computation dates are March 31, June 30,
September 30 and December 31.
G.
Town's right of inspection. The Town shall have the right to
inspect the grantee's financial records and the right to audit
and to recalculate any amounts determined to be payable under this
chapter. The Town shall be reimbursed for the audit expense, if the
additional amount due is greater than 5% of the amount paid. Any additional
amount due the Town as a result of the audit shall be paid within
30 days following written notice to the grantee by the Town, which
notice shall include a copy of the audit report. The grantee shall
provide a statement, certified by the chief financial officer of the
grantee, that all subscribers in the Town are included in the franchise
fee, and the number of such subscribers, itemized by service category,
within 30 days of a request for such statement.
A.
Grounds
for revocation. In accordance with the procedures set forth in this
section, the Town reserves the right to revoke any franchise granted
under this chapter and rescind all rights and privileges associated
with the franchise in the following circumstances, each of which shall
represent a default and breach under this chapter and the franchise:
(1)
If the grantee shall default in the performance of any of the obligations
under this chapter or under such documents, contracts and other terms
and provisions entered into by and between the Town and the grantee.
(2)
If the grantee shall fail to provide or maintain in full force and
effect the liability and indemnification coverage as required in this
chapter.
(3)
If the grantee shall violate any orders or rulings of any regulatory
body having jurisdiction over the grantee relative to this chapter
or the franchise, and after notice of the violation shall continue
the violation and not remedy it within 30 days.
(4)
If the grantee attempts to evade any of the provisions of this chapter
or the franchise or practices any fraud or deceit upon the Town or
cable subscribers.
(5)
If the grantee becomes insolvent, unable or unwilling to pay its
debts or is adjudged bankrupt.
(6)
Failure to restore service after 96 consecutive hours of interrupted
service, except when approval of such interruption is obtained from
the Town.
(7)
Misrepresentation of facts in the application for or negotiation
of the franchise or any extension or renewal thereof.
(8)
If the grantee ceases to provide cable/video programming services
for any reason.
(9)
Consistent failure to provide subscribers or users with adequate
services as provided by this chapter and the franchise.
B.
Effect of circumstances beyond control of grantee. The grantee shall
not be declared in default or be subject to any sanctions under any
provision of this chapter or the franchise in any case in which performance
of such provision is prevented by circumstances beyond the control
of the grantee and not caused or contributed to in whole or in substantial
part by the grantee. Such circumstances shall include, but not be
limited to, unique or severe disruption of nature, strikes, fire,
flood, explosion, riot, war, sabotage or action of governmental authorities
having jurisdiction over the grantee; provided, however, that prompt
written notice of such delay or failure (including a statement of
the circumstances causing the delay or failure) shall be given to
the Town, and provided further that the grantee shall be diligent
in attempting to remove the cause of such delay or failure. The grantee
shall continue to be bound by all of the terms and conditions of this
chapter and the franchise, but the performance of any obligation beyond
the control of the grantee, as provided in this subsection, shall
be suspended during the existence of such cause.
C.
Pending litigation or appeal. Pending litigation or any appeal to
any regulatory body or court having jurisdiction over the grantee
shall not excuse the grantee from the performance of its obligations
under this chapter or the franchise unless otherwise provided by court
or regulatory order. Failure of the grantee to perform such obligations
because of pending litigation or petition may result in forfeiture
or revocation pursuant to the provisions of this section.
D.
Procedure prior to revocation.
(1)
The Town shall make written demand that the grantee comply with any
such requirement, limitation, term, condition, rule or regulation
or correct any action deemed cause for revocation. If the failure,
refusal or neglect of the grantee continues for a period of 30 days
following such written demand, the Town shall place its request for
termination of the franchise upon a regular Town Board meeting agenda.
The Town shall cause to be served upon the grantee at least seven
days prior to the date of such meeting a written notice of this intent
to request termination, and the time and place of the meeting, notice
of which shall be published by the Town at least once, seven days
before such meeting, in a newspaper of general circulation within
the Town.
(2)
The Town Board shall hear any persons interested therein, and shall
determine, in its discretion, whether or not any failure, refusal
or neglect by the grantee was with just cause.
(3)
If such failure, refusal or neglect by the grantee was with just
cause, as defined by the Town, the Town Board shall direct the grantee
to comply within such time and manner and upon such terms and conditions
as are reasonable.
(4)
If the Town Board shall determine such failure, refusal or neglect
by the grantee was without just cause, the Board shall, by resolution,
declare that the franchise of the grantee shall be terminated and
the letter of credit forfeited unless there is compliance by the grantee
within 90 days.
E.
Restoration of property. In removing its plant, structures and equipment,
the grantee shall promptly backfill, at its own expense, any excavation
that shall be made by it and shall leave all public ways and places
in as good condition or better as then prevailing prior to the grantee's
removal of its equipment and appliances (reasonable wear and tear
excepted) without affecting the electrical or telephone wires or attachments.
The Town shall inspect and approve the condition of the public ways
and public places and cable, wires, attachments and poles after removal.
The grantee guarantees that the liability, indemnity, insurance, and
letter of credit as provided in this chapter shall continue in full
force and effect during the period of removal and until full compliance
by the grantee as determined by the Town with the terms and conditions
of this subsection, this chapter and the franchise is achieved.
F.
Restoration by Town. In the event of a failure by the grantee to
complete any other work required by Town ordinance or regulation within
the time as may be established and to the satisfaction of the Town,
the Town may cause such work to be done and the grantee shall reimburse
the Town the costs of the work within 30 days after receipt of an
itemized list of such costs or the Town may recover such costs through
the letter of credit provided by the grantee. In addition, the Town
shall be permitted to seek legal and equitable relief to enforce the
provisions of this section.
A.
Termination by insolvency. The franchise granted under this chapter
shall, at the option of the Town, cease and terminate 120 days after
the appointment of a receiver or trustee to take over and conduct
the business of the grantee, whether in a receivership, reorganization,
bankruptcy or other action or proceeding, unless such receivership
or trusteeship shall have been vacated prior to the expiration of
the 120 days.
B.
Termination by judicial action. In the case of a foreclosure or other
judicial sale of the plant, property and equipment of the grantee
or any part thereof, including or excluding the franchise, the Town
may serve notice of termination upon the grantee and the successful
bidder at such sale, in which event the franchise and all rights and
privileges of the grantee granted under this chapter shall cease and
terminate 30 days after service of such notice, unless:
Equal opportunity employment shall be afforded by all operators
of cable/video systems to all qualified persons, and no person shall
be discriminated against in employment because of race, color, religion,
age, national origin, sex or physical handicap. Grantee shall comply
with all equal opportunity provisions enacted by federal, state and
local authorities, as well as all such provisions contained in this
chapter and the franchise.
All notices from the grantee to the Town pursuant to this chapter
and the franchise shall be to the Town Administrator or his/her designee.
Throughout the term of the franchise, the grantee shall maintain within
the Rochester metropolitan area an address for service of notices
by mail and a local office and telephone number for the conduct of
matters related to the franchise during normal business hours. The
grantee shall advise the Town of such address(es) and telephone numbers
and any changes 30 days prior to such effect.
The grantee shall not be excused from complying with any of
the terms and conditions of this chapter or the franchise by any failure
of the Town upon any one or more occasions to insist upon or to seek
compliance with any such terms or conditions.
A.
Right of inspection of records. The Town shall have the right to
inspect all books, records, reports, map plans, financial statements,
and other like materials of the grantee, at any time during normal
business hours. The grantee shall provide such information in the
format required by the Town.
B.
Right of inspection of construction. The Town shall have the right
to inspect all construction work performed and make such tests as
it shall find necessary to ensure compliance with the terms of this
chapter and other pertinent provisions of federal, state or local
regulation.
C.
Right of inspection. The grantee shall permit examination by any
duly authorized representative of the Town of its cable/video system,
together with any appurtenant property or facilities of the grantee
situated within or without the Town.
D.
Right of intervention. The Town shall have the right of intervention
in any suit or proceeding to which the grantee is party, and the grantee
shall not oppose such intervention by the Town.
E.
Right to require removal of property. Upon denial of renewal of the
franchise, or upon its revocation or expiration, the Town shall have
the right to require the grantee to remove, at its own expense, all
portions of the cable/video system required by public necessity from
all streets and public ways within the Town.
F.
Expense reimbursement to the Town. On a request of the Town, the
grantee shall pay the Town a sum of money which will, when added to
any application fees received, reimburse all reasonable costs and
expenses incurred by the Town in connection with preparation of this
chapter, the franchise and the grant, extension, transfer or renewal
of a franchise; provided, however, the Town shall submit a detailed
schedule of all such costs. Such payment shall be made within 30 days
after the Town furnished the grantee with a written statement of such
expenses.
The grantee shall have no recourse whatsoever against the Town
or its officials, boards, commissions, agents or employees for any
loss, cost, expense or damage arising out of any provision or requirements
of the franchise or because of the legal enforcement of this chapter
or the franchise.
