City of Cohoes, NY Special Rules Applicable to Cable Systems

The City of Cohoes' Mayor or his/her designee may specify the information that must be provided in connection with an application, and the form in which the information is to be provided.

At a minimum, each application must identify the applicant, show that the applicant is financially, technically and legally qualified to construct, maintain and operate the cable system, contain a pro forma showing capital expenditures and expected income and expenses for the first five years the applicant is to hold the franchise, and show that the applicant is willing to comply unconditionally with its franchise obligations. In addition, any application for an initial or renewal franchise must describe in detail the cable system that the applicant proposes to build, show where it will be located, set out the system construction schedule, and show that the applicant will provide adequate channels, facilities and other support for public, educational and government use (including institutional network use) of the cable system. To be accepted for filing, an original and six copies of a complete application must be submitted. All applications shall include the names and addresses of persons authorized to act on behalf of the applicant with respect to the application.

An applicant (and the transferor and transferee, in the case of a transfer) shall respond to any request for information from the City of Cohoes by the time specified by the City of Cohoes.

Incomplete applications. An application may be rejected if it is incomplete or if the response to requests for information is not timely and complete.

§ 130-22 Application for an initial franchise or renewal franchise.

Scope. This section establishes additional provisions that apply to an application for an initial franchise or a renewal franchise application that is not governed by 47 U.S.C. § 546(a)-(h) and other applicable law.

Process. Any person may apply for an initial or renewal franchise by submitting an application therefor on that person's own initiative or in response to a request for proposals issued by the City of Cohoes. If the City of Cohoes receives an unsolicited application, it may choose to issue a request for additional proposals and require the applicant to amend its proposal to respond thereto. The City of Cohoes shall promptly conduct such investigations as are necessary to act on an application.

Consideration of application. In determining whether to grant a franchise, the City of Cohoes may consider:

The extent to which an applicant for renewal has substantially complied with the applicable law and the material terms of any existing cable franchise;

Whether an applicant for renewal's quality of service under its existing franchise, including signal quality, response to customer complaints, billing practices, and the like, has been reasonable in light of the needs of the community;

Where the applicant has not previously held a cable system franchise in the City of Cohoes, whether the applicant's record in other communities indicates that it can be relied upon to provide high-quality service throughout any franchise term;

(4)

Whether the applicant has the financial, legal, and technical ability to provide the services, facilities, and equipment set forth in an application, and to satisfy any minimum requirements established by the City of Cohoes;

(5)

Whether the applicant's application is reasonable to meet the future cable-related needs and interests of the City of Cohoes, taking into account the cost of meeting such needs and interests;

(6)

Whether issuance of a franchise is warranted in the public interest considering the immediate and future effect on streets, public property, and private property that will be used by the applicants cable system;

(7)

Whether issuance of the franchise would reduce competition in the provision of cable service in the City of Cohoes; and

(8)

Such other matters as the City of Cohoes is authorized or required to consider.

Issuance of franchise. If the City of Cohoes determines that issuance of a franchise would be in the public interest considering the factors described above, it may proffer a franchise agreement to the applicant. No franchise shall become effective until the franchise is unconditionally accepted and signed by the applicant and, as necessary, approved by the State of New York Public Service Commission.

§ 130-23 Application for renewal franchise filed pursuant to 47 U.S.C. § 546.

Scope. This section establishes additional provisions that apply to applications for renewal governed by 47 U.S.C. § 546(a)-(g) and other applicable law.

Process. A franchisee which intends to exercise rights under 47 U.S.C. § 546(a)-(g) shall submit a notice in writing to the City of Cohoes in a timely manner clearly stating that it is activating the procedures set forth in those sections. The City of Cohoes shall thereafter commence any proceedings that may be required under federal law and, upon completion of those proceedings, the City of Cohoes may issue a request for proposals and an application may be submitted for renewal. The City of Cohoes may preliminarily deny the application by resolution and, if the application is preliminarily denied, the City of Cohoes may conduct such proceedings and, by resolution, establish such procedures and appoint such individuals as may be necessary to conduct any proceedings to review the application.

§ 130-24 Application for transfer.

Scope. This section establishes additional provisions that apply to applications for transfer approval.

Information. An application for transfer must contain all the information required by the City of Cohoes' Mayor or his/her designee by § 130-21B and all information required by any FCC transfer form.

Consideration of application. In determining whether a transfer application should be granted, denied, or granted subject to conditions, the City of Cohoes may consider the legal, financial, and technical qualifications of the transferee to operate the cable system; any potential impact of the transfer on subscriber rates or services; whether the incumbent cable operator is in compliance with its franchise; whether the transferee owns or controls any other cable system in the City of Cohoes; whether operation by the transferee may eliminate or reduce competition in the delivery of cable service in the City of Cohoes; and whether operation by the transferee or approval of the transfer would otherwise adversely affect subscribers, the public, or the City of Cohoes' interest under this chapter, the franchise, or other applicable law. The proposed transferee shall pay all reasonable costs incurred by the City of Cohoes in reviewing and evaluating the applications.

Minimum conditions. In order to obtain approval of a transfer, an applicant must show at a minimum that: the transferee is qualified; the transfer will not adversely affect the interests of subscribers, the public, or the City of Cohoes; and that noncompliance issues have been resolved. No application shall be granted unless the transferee agrees in writing that it will abide by and accept all terms of this chapter and the franchise, and that it will assume the obligations, liabilities, and responsibility for all acts and omissions, known and unknown, of the previous franchisee for all purposes.

§ 130-25 Legal qualifications.

Standards.

The applicant must be willing to comply with the provisions of this chapter and applicable laws, and to comply with such requirements of a franchise as the City of Cohoes may lawfully require.

The applicant must not have had any cable system or OVS franchise validly revoked (including any appeals) by the City of Cohoes within three years preceding the submission of the application.

The applicant may not have had an application to the City of Cohoes for an initial or renewal cable system franchise denied on the ground that the applicant failed to propose a cable system meeting the cable-related needs and interests of the community or as to which any challenges to such franchising decision were finally resolved (including any appeals) adversely to the applicant within three years preceding the submission of the application, and may not have had an application for an initial or renewal OVS franchise denied on any grounds within three years of the application.

(4)

The applicant shall not be issued a franchise if, at any time during the 10 years preceding the submission of the application, the applicant was convicted of fraud, racketeering, anticompetitive actions, unfair trade practices or other conduct of such character that the applicant cannot be relied upon to deal truthfully with the City of Cohoes and the subscribers or to substantially comply with its obligations.

(5)

The applicant must have the necessary authority under New York and federal law to operate a cable system, or show that it is in a position to obtain that authority.

(6)

The applicant shall not be issued a franchise if it files materially misleading information in its application or intentionally withholds information that the applicant lawfully is required to provide.

(7)

For purposes of § 130-25(A)(2) through A(4), the term "applicant" includes any affiliate of applicant.

Exception. Notwithstanding § 130-25A, an applicant shall be provided a reasonable opportunity to show that a franchise should issue even if the requirements of § 130-25A(3) through A(4) are not satisfied, by virtue of the circumstances surrounding the matter and the steps taken by the applicant to cure all harms flowing therefrom and prevent their recurrence, the lack of involvement of the applicant's principals, or the remoteness of the matter from the operation of a cable system.

§ 130-26 Franchise fee.

A cable operator shall pay to the City of Cohoes a franchise fee in an amount equal to 5% of gross revenues, or such other amount as may be specified in the franchise; provided, however, that if the franchise specifies an amount that amount shall be subject to increase should federal limits on fee payments be eliminated or changed and other cable operators are subject to a higher fee.

Bundled services. For purposes of calculating the franchise fee, gross revenues shall include a fair proportion of all revenues attributable to franchised cable services which are delivered by the franchisee, regardless of method. If a franchisee bundles, ties or combines the sale of some or all of its services, whether or not authorized by this franchise, and assesses its subscribers only one charge, the combined revenue therefrom shall be allocated to gross revenues to the full extent which would have been charged by the franchisee if the subscriber had received only franchised cable services. In no event shall the amount allocated to franchised cable services under the foregoing calculation exceed the total amount of combined revenue actually received by a franchisee [in which case Subsection B(1) shall apply] or the net revenue derived when mandatory tariff rates (if any) imposed by a governmental authority for components of the bundled, tied or combined services are deducted from the combined revenue. A franchisee may not alter or change any payments or amounts of compensation to the City which may be dictated by another franchise, ordinance, agreement or by applicable law and are related to use of the public rights-of-way in the provision of nonfranchised cable services in the City.

In the event that a franchisee bundles services that are included in the definition of gross revenue with other services not included, the unbundled amount of gross revenue will be based on the published rate for any service provided for in a cable communications system franchise. Exception can be made with a clear showing by the franchisee that services offered pursuant to a franchise were discounted along with an accounting of the amount of said discount.

If a franchisee offers its subscribers any kind of discount for receipt of both franchised cable and non-cable services, which are not included in the definition of gross revenues, the discount may be applied proportionately to franchised cable services and non-cable services upon notification to the City of such discount methodology. Such notification shall include the amount of the discount being applied to each service and documentation demonstrating the promotion and billing of such discount.

The definition of gross revenue is to be as inclusive as possible consistent with existing applicable law. If a change in federal law occurs subsequent to the effective date of this chapter, such change shall not impact the gross revenues definition in such a way to reduce gross revenues, unless the change specifically preempts the affected portion of the definition above.

§ 130-27 No exclusivity.

A franchisee may not require a subscriber or a building owner or manager to enter into an exclusive contract as a condition of providing or continuing service. However, nothing herein prevents a franchisee from entering into an otherwise lawful, mutually desired, exclusive arrangement with a building owner or manager of a multiple dwelling unit or commercial subscriber.

§ 130-28 Minimum franchise conditions.

In addition to satisfying such additional or stricter conditions as the City of Cohoes finds necessary based on its investigations, the following elements shall be required in every franchise:

System design. Each franchisee shall provide a cable system which uses at least 750MHz equipment of high quality and reliability. Each franchisee shall install and activate the return portion of the cable system in the sub-low frequency spectrum of 5 MHz to 30 MHz.

Public, educational and government use of the system.

A franchisee shall provide a minimum of three channels for PEG access to each subscriber.

Each franchisee shall install, maintain, and replace as necessary, a dedicated, bi-directional fiber-optic link between its head-end and a location designated by the City of Cohoes as the primary access center.

Each franchisee shall install, maintain, and replace activated two-way cable plant and all head-end, cable plant, and node equipment required to make it operable so that the City of Cohoes, schools, and all designated PEG access centers and access facilities located within the franchise area will be able to send and receive signals (video, audio, and data) using the activated two-way cable plant.

(4)

Each franchisee shall ensure that technically adequate signal quality, routing systems, and switching and/or processing equipment are initially and continuously provided for all access interconnections both within the franchisee's cable system and with other cable systems throughout the duration of its franchise.

(5)

In the event a franchisee makes any change in the cable system and related equipment and facilities or in the franchisee's signal delivery technology which directly or indirectly substantially affects the signal quality or transmission of access programming, the franchisee shall at its expense take necessary steps or provide necessary technical assistance, including the acquisition of all necessary equipment, to ensure that the capabilities of access programmers are not diminished or adversely affected by such change.

(6)

A franchisee shall maintain all access channels (both upstream channels and downstream channels) and all interconnections of access channels at the same level of technical quality and reliability as the best commercial channels carried on the system.

Service to franchise area. It is the policy of the City of Cohoes to ensure that every cable system provides service in its franchise area upon request to any person or any government building. Each franchisee shall extend service upon request within its franchise area, provided that a franchise may permit a franchisee to require a potential subscriber to contribute a fair share of the capital costs of installation or extension as a condition of extension or installation in cases where such extension or installation may be unduly expensive. Service must be provided within time limits specified in Subsection D.

Time for extension. Except as a franchise otherwise provides, service must be extended upon request to any person or to any government building in a franchisee's franchise area within seven days of the request, where service can be provided by activating or installing a drop; within 90 days of the request where an extension of 1/2 mile or less is required; or within six months where an extension of 1/2 mile or more is required.

Technical standards. A cable system within the City of Cohoes shall meet or exceed the technical standards set forth in 47 C.F.R. § 76.601 and any other applicable technical standards.

Testing. Each cable operator shall perform at its expense such tests as may be necessary to show whether or not the franchisee is in compliance with its obligations under applicable FCC standards, this chapter or a franchise.

Interconnection. Upon request of the City of Cohoes, every cable system shall be required to interconnect with every other cable system within the City of Cohoes or adjacent to the City of Cohoes on fair and reasonable terms for purposes of providing PEG and I-Net services.

Continuity of service. Each franchisee shall, during the term of the franchise, ensure that subscribers are able to receive continuous service. In the event the franchise is revoked or terminated, the franchisee shall be required to continue to provide service for a reasonable period to assure an orderly transition of service from the franchisee to another entity. A franchise may establish more particular requirements under which these obligations will be satisfied.

§ 130-29 Rate regulation and consumer protection.

All rates subject to regulation. The City of Cohoes may regulate any of the cable operator's rates and charges, except to the extent it is prohibited from doing so by law. The City of Cohoes will regulate rates in accordance with FCC and State of New York rules and regulations, where applicable. Except to the extent FCC or State of New York rules provide otherwise, all rates and charges that are subject to regulation and changes in those rates or charges must be approved in advance. The City of Cohoes' Mayor or his/her designee may take any required steps to file complaints, toll rates, issue accounting orders or take any other steps required to comply with FCC or State of New York regulations. The Common Council of the City of Cohoes shall be responsible for issuing rate orders that establish rates or order refunds.

No rate discrimination. Except to the extent the City of Cohoes may not enforce such a requirement, a cable operator is prohibited from discriminating in its rates or charges or from granting undue preferences to any subscriber, potential subscriber, or group of subscribers or potential subscribers; provided, however, that a franchisee may offer temporary, bona fide promotional discounts in order to attract or maintain subscribers, so long as such discounts are offered on a nondiscriminatory basis to similar classes of subscribers throughout the franchise area; and a franchisee may offer discounts for the elderly, the disabled, or the economically disadvantaged and such other discounts as it is expressly entitled to provide under federal law, if such discounts are applied in a uniform and consistent manner.

Redlining prohibited. A cable operator shall not deny access or charge different rates to any group of subscribers or potential subscribers because of the income of the residents of the local area in which such group resides.

Customer service.

Each cable operator must satisfy FCC, New York State, and City of Cohoes cable customer service standards or consumer protection standards. City of Cohoes cable customer service standards shall be approved by resolution of the Board of Managers of the City of Cohoes and attached as part of any franchise. In the case of a conflict among standards, the stricter standard shall apply.

For violation of cable customer service standards, penalties will be imposed as follows:

(a)

Two hundred dollars for each day of each material breach, not to exceed $600 for each occurrence of material breach.

(b)

If there is a subsequent material breach of the same provision within 12 months, $400 for each day of each material breach, not to exceed $1,200 for each occurrence of the material breach.

(c)

If there is a third or additional material breach of the same provision within 12 months of the first, $1,000 for each day of each material breach, not to exceed $3,000 for each occurrence of the material breach.