[HISTORY: Adopted by the Rochester City Council 3-21-2023 by Ord. No. 2023-92.[1] Amendments noted where applicable.]
[1]
Editor's Note: This ordinance also repealed former Ch. 4A,
Cable Television, adopted 12-17-1991 by Ord. No. 91-532, as amended.
The purpose of this chapter is to promote and protect the public
welfare, regulate the use of the public streets and encourage the
development and growth of cable service by providing standards and
procedures for the construction, maintenance and operation of any
cable system in the City of Rochester.
Whenever the following words and phrases are used in this chapter,
they shall have the following meanings:
Any corporation, partnership or other business entity that
owns or controls, is owned or controlled by, or is under common ownership
or control with the franchisee.
The cable service tier provided by a franchisee that includes
at least the retransmission of local broadcast television signals
and the public, educational and governmental ("PEG") access channels,
to the extent required by applicable law.
Any person or group of persons who provide cable service
over a cable system and directly or through one or more affiliates
owns a significant interest in such cable system or who otherwise
controls or is responsible for, through any arrangement, the management
and operation of a cable system.
The one-way transmission to subscribers of video programming,
or other programming service, and subscriber interaction, if any,
which is required for the selection or use of such video programming
or other programming service.
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 programming
and which is provided to multiple subscribers within the City, but
such term does not include 1) a facility that serves only to retransmit
the television signals of one or more television broadcast stations;
2) a facility that serves subscribers without using any public right-of-way;
3) a facility of a common carrier which is subject, in whole or in
part, to the provisions of Title II of the Communications Act, except
that such facility shall be considered a cable system (other than
for purposes of Section 621 of the Cable Act[1]) to the extent that facility is used in the transmission
of video programming directly to subscribers unless the extent of
that use is solely to provide interactive on-demand services; 4) an
open video system that complies with Section 653 of the Cable Act;[2] or 5) any facilities of any electric utility used solely
for operating its electric utility systems.
A portion of the electromagnetic frequency spectrum which
is used in a cable system and is capable of delivering a television
channel.
The Cable Television Ordinance of the City of Rochester.
The City of Rochester, New York.
The Common Council of the City of Rochester, New York.
Any activity that physically invades and encumbers any public
street, land or place within the City or the space over or under such
street, land or place, including the reconstruction, rebuild or upgrade
of a cable system.
Federal Communications Commission.
Any right and privilege or the renewal thereof awarded or granted by the City Council pursuant to §§ 5-23 and 5-24 of the City Charter and this chapter to a cable operator for the purpose of constructing, operating and maintaining a cable system within the City.
An agreement containing terms and conditions relating to
a franchise, executed by the Mayor and an authorized representative
of the cable operator.
Any person that is awarded a franchise to construct, operate
and maintain a cable system within the City.
All revenue, as determined in accordance with generally accepted
accounting principles ("GAAP"), received directly or indirectly by
the franchisee or its affiliated entities derived from the operation
of the franchisee's cable system in the City to provide cable services.
Gross revenues shall include, but are not limited to, the following:
Basic service fees;
Fees charged to subscribers for any service tier other than
basic service;
Fees charged for premium services;
Fees for all digital video tiers;
Fees for video-on-demand;
Fees charged to subscribers for any optional, per-channel or
per-program services;
Revenue from the provision of any other cable services;
Charges for installation, additional outlets, relocation, disconnection,
and reconnection for video or audio programming;
Fees for changing any level of cable service;
Inside wire maintenance fees;
Convenience fees;
Fees for a franchisee's leased access channels, channels designated
for use by any entity that is unaffiliated with the franchisee pursuant
to Section 612 of the Cable Act, 47 U.S.C. § 532;
Rental of any and all cable service equipment, including converters
and remote control devices;
Fees for service calls related to cable service;
Any and all locally derived cable service advertising revenues;
Locally derived revenues or commissions from home shopping channels;
Revenue from interactive cable services;
Broadcast retransmission fees;
Regional sports fees;
Late payment fees;
Billing fees;
Any fees for services to City facilities; and
Pass-through of franchise fees.
Gross revenues shall not include bad debts, investment income,
refunded deposits, the FCC user fee, or any taxes on services furnished
by the franchisee and imposed directly upon any subscriber or user
by the City, state, federal or other governmental unit.
The Mayor of the City of Rochester or the Mayor's designee.
New York Public Service Commission.
Any individual, association, firm, partnership, corporation
or other legal entity, but not the City government.
Any public right-of-way or other public lands or places within
the City over which the City has sufficient control to grant a franchise.
A person or entity who contracts with the franchisee for,
and lawfully receives, the video signals and cable services distributed
by the cable system.
A.Â
No person shall own, construct or operate a cable system in the City
unless the City has granted a franchise to that person pursuant to
the provisions of the City Charter and this chapter.
B.Â
Any franchise granted hereunder shall be nonexclusive, and the City
reserves the right to grant a similar franchise to any other persons,
at any time, pursuant to the provisions of the City Charter and this
chapter, as they may be amended from time to time.
The term of any franchise shall be no less than 10 nor more
than 15 years from the date established in the ordinance awarding
the franchise.
A.Â
A franchisee shall pay the City an annual franchise fee expressed
as a percentage of gross revenues, not to exceed the maximum percentage
permitted by applicable federal and state law, as contained in the
franchise agreement.
B.Â
In the event that the franchise fee is not paid by the due date specified
in the franchise agreement, the unpaid portion shall be subject to
interest payments at the then-current prime rate as published in the
Wall Street Journal, simple interest, until paid.
A franchise may be renewed by the City pursuant to the procedures
established in this section and applicable federal and state law and
regulations.
A.Â
During the six-month period which begins with the 36th month before
the expiration of the franchise, the City may, on its own initiative,
and shall, at the request of a franchisee, commence proceedings which
afford the public in the franchise area appropriate notice and participation
for the purposes of:
B.Â
Proposals for renewal.
(1)Â
Upon completion of such proceedings, the franchisee may submit a
proposal for renewal. Upon the request of the City, a franchisee shall
submit a proposal for renewal.
(2)Â
Any such proposal shall contain such material as the City may require,
including proposals for an upgrade of the cable system.
(3)Â
The City may establish a date by which any such proposal shall be
submitted.
C.Â
Renewal; administrative proceedings.
(1)Â
Upon submittal of a proposal for the renewal of a franchise, the City shall provide prompt public notice of such proposal and, during the four-month period which begins on the completion of any proceedings under Subsection A, shall either renew the franchise or issue a preliminary assessment that the franchise should not be renewed and commence at the request of the franchisee or on its own initiative an administrative proceeding to consider whether:
(a)Â
The franchisee has substantially complied with the material
provisions of this chapter and the existing franchise agreement and
with other applicable law;
(b)Â
The quality of the franchisee's entire cable service, except
for the mix, quality and level of specific programming or other services
provided over the system, has been reasonable in light of community
needs;
(c)Â
The franchisee has the financial, legal and technical ability
to provide the cable services, facilities and equipment as set forth
in the proposal; and
(d)Â
The proposal is reasonable to meet future cable-related community
needs and interests, taking into account the cost of meeting such
needs and interests.
(2)Â
In any administrative proceeding, the franchisee and the public shall be afforded notice, and the franchisee and the City shall be afforded fair opportunity for full participation, including the right to introduce evidence, to require the production of evidence and to question witnesses, related to the factors set forth in Subsection C(1). A transcript shall be made of any such proceeding.
(3)Â
At the completion of an administrative proceeding, the City shall
issue a written decision granting or denying the proposal for renewal
based upon the record of such proceeding and shall transmit a certified
copy of such decision to the franchisee. Such decision shall state
the reasons therefor.
D.Â
Any refusal to renew a franchise or denial of a proposal for renewal shall be based only on one or more adverse findings made with respect to the factors set forth in Subsection C(1), based upon the record of such proceeding. The City may not base a refusal to renew or a denial of renewal upon factors in Subsection C(1)(a) and (b) unless the City has given a franchisee notice of and an opportunity to cure violations or problems or has waived, in writing, its right to object to, or it is adequately documented that the City has effectively acquiesced in, such violations and problems.
E.Â
If a franchisee's proposal for renewal has been denied by a final
decision of the City made pursuant to this section or if a franchisee
has been adversely affected by a failure of the City to act in accordance
with the procedural requirements of this section, the franchisee may
seek review of such final decision within 120 days of the date of
the issuance of the decision either in Federal District Court for
the Western District of New York or in Supreme Court in Monroe County.
The Court shall grant appropriate relief if it finds that any action
of the City is not in substantial compliance with the procedural requirements
of this section or that the denial of the renewal proposal by the
City is not supported by a preponderance of the evidence based on
the record of the proceeding conducted under this section.
F.Â
Any decision of the City on a proposal for renewal shall not be considered
final unless all administrative review by the State of New York has
occurred or the opportunity therefor has lapsed.
G.Â
Notwithstanding the provisions of this section, a franchisee may submit a proposal for the renewal of a franchise at any time, and the City may, after affording the public adequate notice and opportunity for comment, grant or deny such proposal at any time, including after proceedings pursuant to this section have commenced. The provisions of this § 4A-6A through F shall not apply to a decision to grant or deny a proposal under this subsection. The denial of a proposal for renewal pursuant to this subsection shall not affect action on a renewal proposal that is submitted in accordance with Subsections A through F of this section.
In addition to all other rights and remedies retained by the
City under this chapter or otherwise, the City shall have the right
to revoke a franchise and all rights and privileges of a franchisee
if the franchisee has made a material misrepresentation of fact during
the franchise application or renewal process or fails to comply substantially
with any material provision of this chapter or the franchise agreement
after notification and opportunity to cure. The City shall not have
the right to revoke a franchise if a material misrepresentation or
breach occurs without any fault of a franchisee or occurs as a result
of circumstances beyond a franchisee's control; provided, however,
that no material misrepresentation or breach shall be excused by economic
hardship or by the misfeasance or malfeasance of a franchisee's directors,
officers, employees or agents. Revocation shall be by ordinance of
the City Council, duly adopted by 3/4 of all the members of the Council,
in accordance with the following procedures:
A.Â
In the event that the City finds that grounds exist for revocation
of a franchise, the Mayor shall send written notice of the violation
of a material term or condition of the franchise agreement or this
chapter to the franchisee, describing the misrepresentation or breach
or failure and why the misrepresentation, breach or failure is material
and substantial. The franchisee shall have 30 days subsequent to receipt
of the notice to address the misrepresentation or correct the failure
or to rebut the violation in writing and request a hearing, unless
the time is extended by the Mayor for good cause shown by the franchisee.
B.Â
If franchisee submits a written statement rebutting the violations
and requesting a hearing, the Mayor shall within 30 days of receipt
of franchisee's statement either:
C.Â
The Mayor or the Mayor's designee, including, as appropriate to the
nature of the violation, the Commissioner of Environmental Services
or the Director of Finance, as hearing officer, shall hold a public
hearing upon reasonable notice, which shall not be less than 30 days,
affording due process to consider revocation of the franchise. At
the public hearing, the franchisee shall be permitted to be represented
by counsel, and shall have the ability to submit evidence and summon
witnesses on its behalf, to inspect appropriate documents and to cross-examine
opposing witnesses. Compliance with the technical rules of evidence
shall not be required. There shall be a stenographic record of the
public hearing. The hearing officer shall, within 21 days of the hearing,
make a written recommendation upon stated grounds to revoke the franchise
absolutely or conditionally or decline to revoke the franchise, with
or without conditions.
D.Â
A recommendation by the hearing officer to revoke the franchise shall
be submitted to City Council at its next available meeting. If City
Council acts to revoke a franchise by ordinance duly adopted by 3/4
of all members of the Council, the franchisee shall have the right
to appeal such revocation decision to a court of competent jurisdiction.
The filing of a timely appeal by the franchisee shall operate to stay
the effect of the revocation ordinance pending resolution of the issues
on appeal, and all rights and obligations of the parties under this
chapter and the franchise agreement shall continue.
A.Â
No assignment or transfer by a franchisee of its franchise shall
be made without the prior approval of the City Council by an ordinance
duly adopted by 3/4 of all the members of the Council. Such approval
shall not be unreasonably withheld, and the grounds for approval shall
be that the proposed transferee is technically, financially and legally
qualified as a cable operation and that the transferee shall comply
with all provisions of this chapter and the franchise agreement. The
proposed transferee shall execute a legally binding document evidencing
that it will be bound by the terms and conditions of the franchise
agreement.
B.Â
Assignments or transfers requiring prior written approval by the
City include:
(1)Â
The franchisee's, including any affiliated entity's, assignment or
transfer, through its own action or by operation of law, of its right,
title or interest in the cable system or franchise agreement;
(2)Â
The franchisee's, including any affiliated entity's, assignment or
transfer, through its own action or by operation of law, of its control
of the cable system or the franchise agreement; and
(3)Â
The franchisee's, including any affiliated entity's, sale, conveyance,
transfer, exchange or release of more than 50% of its equitable ownership
in the cable system.
C.Â
Notwithstanding the foregoing, no approval of the City shall be required
for i) a transfer in trust, by mortgage, by other hypothecation, or
by assignment to a financial institution of any rights, title, or
interest of the franchisee in the franchise agreement or in the cable
system to secure indebtedness, provided that the transferee agrees
to be bound by all the terms and conditions of the franchise agreement
and this chapter; or ii) a transfer, assignment, or change of control
of any rights, title, or interest in the franchise agreement, the
cable system or to any affiliated entity.
D.Â
Failure of a franchisee to comply with the provisions of this section
shall be deemed a material violation sufficient to justify revocation
of the franchise.
Upon the commencement of proceedings to foreclose or judicially
sell all or any part of the cable system, a franchisee shall immediately
notify the Mayor, in writing, of such fact, and the approval of 3/4
of all the members of the City Council to transfer control of the
franchise shall be required.
In order to pursue the governmental purposes set forth in § 4A-1 and to ensure adequate and uninterrupted cable television service, in the event that a franchisee or any parent organization of a franchisee seeks protection from creditors in any judicial forum, including filing a petition in bankruptcy, or is involuntarily placed in bankruptcy or receivership, the Corporation Counsel shall immediately seek an order compelling assumption or rejection of the franchise agreement and providing that no assumption shall be effective unless any default is cured and adequate assurance is provided for future performance of the franchise agreement. No assignment of the franchise agreement to any entity shall be permitted unless the City Council shall, in its discretion, as set forth in § 4A-8 above, find such entity to be technically, financially and legally qualified as a cable operation, nor shall any such assignment contain provisions less stringent or less beneficial to the subscribers and the City than those set forth in the franchise agreement. The City shall retain the right to pursue any and all other remedies which may be available under federal or state law at the time of such occurrence.
A.Â
Any franchisee is hereby granted the right and privilege and an easement to construct, erect, place, operate, repair and maintain poles, wires, transmission lines, distribution lines, service lines and cable television and communications equipment in and on, under and over all public streets, lands and places in the City for the purpose of furnishing the City and its inhabitants with cable services, subject to the approval of the City Engineer and the requirements of Chapter 104 of the Municipal Code and the rules and regulations for work in the right-of-way ("rules and regulations") adopted thereunder.
B.Â
A franchisee shall not erect any poles on the streets of the City
without the prior approval of the City Engineer as to specific locations.
Whenever the telephone or other utility companies have erected poles,
a franchisee shall be expected to enter into a joint use agreement
for those poles. A franchisee shall not apply to the City Engineer
to erect its own poles unless a franchisee has been unable in good
faith to enter into such joint use agreement, and any new poles shall
be subject to approval as set forth in the rules and regulations.
C.Â
In those areas of the City where no poles exist and where a franchisee
has not secured the City Engineer's approval to install its own poles,
which approval shall not be withheld unreasonably, all wiring of the
system shall be constructed underground.
D.Â
Prior to the commencement of any construction, including reconstruction,
rebuild or upgrade, of any part of the system, a franchisee shall
submit to the City Engineer a construction plan showing the location
and design of all proposed construction and a schedule therefor.
E.Â
The proposed construction schedule shall be subject to the approval
of the City Engineer; provided, however, that construction shall take
no longer than four years to complete. All construction, including
reconstruction, rebuild and upgrade, required pursuant to a franchise
agreement shall commence no later than six months after the award
or renewal of the franchise or the order of the City, whichever is
applicable, and shall proceed according to the approved schedule.
F.Â
A franchisee shall apply for all required permits and shall not undertake
any construction without receipt of such permits, which shall not
be delayed or withheld unreasonably.
G.Â
The construction, installation and maintenance of a cable system
shall meet or exceed any and all technical performance standards of
the FCC, the National Electrical Code, the National Electrical Safety
Code, and any other applicable federal laws and regulations and the
laws, ordinances and construction standards of the NYPSC and the generally
applicable laws, ordinances and construction standards of the City,
as amended from time to time.
H.Â
The City shall have the right to specify the methods and materials
to be used by a franchisee in any construction affecting the surface
or bed of any public street or any public lands or places, and to
specify the location of any equipment or facilities proposed by a
franchisee to be placed within or upon any public street or any public
lands or places. The City shall have the right reasonably to condition
and limit the construction work of a franchisee to assure a minimum
of inconvenience to the traveling public.
I.Â
All of a franchisee's construction shall be conducted in such a manner
as to cause minimum interference with the rights and reasonable convenience
of the public and any property owners that may be affected by the
construction.
J.Â
A franchisee shall promptly repair and restore to its previous condition
any private or public property which may have been damaged as a result
of the construction or maintenance of the system within 10 business
days of the occurrence of the damage, weather permitting. All repairs
and restorations shall comply with the rules and regulations, so long
as the rules and regulations are applied to franchisee in a nondiscriminatory
manner. Upon failure of a franchisee to timely comply with the requirements
of the rules and regulations and the City having notified franchisee
in writing of the repairs and restoration required, the City may cause
proper repairs and restoration to be made, and the costs of such work
shall be paid by the franchisee upon demand by the City, by direct
payment or, in the City's sole discretion, a claim against the surety
bond. The franchisee shall be treated the same as other similarly
situated entities.
K.Â
Cable service shall be extended at regular installation and monthly
service rates to all residential areas where there is a density of
20 residences per linear strand mile for aerial cable as measured
from a franchisee's closest technologically feasible tie-in point
that is actively delivering cable service as of the date of a request
for service. A franchisee shall extend cable service to areas where
there is a lesser density upon payment by requesting households in
such areas of a higher installation rate not to exceed the franchisee's
actual and direct costs divided equally among the number of requesting
households.
L.Â
For subscribers requesting connection requiring an aerial drop line
within 150 feet aerial distance from a franchisee's point of connection
to its distribution line, a franchisee shall extend cable service
at the regular installation rate. For aerial connections in excess
of 150 linear feet and any underground installations, subscribers
shall pay at a rate not to exceed the franchisee's actual costs of
installation.
M.Â
The system shall be constructed so as to provide an emergency alert
system as required by the FCC.
N.Â
The City Engineer shall have the right to inspect all construction
and all installation work within any public street or on any public
lands or places that is performed by a franchisee or under contracts
with a franchisee.
O.Â
A franchisee shall submit to the City Engineer detailed as-built
drawings reflecting the location of all construction, including reconstruction,
rebuild or upgrade, as required by the City rules and regulations.
P.Â
A franchisee shall have the right to remove, trim, cut and to keep clear of its poles, cables, underground conduits and related equipment the trees in and along the public streets; however, a franchisee shall not cut or damage said trees to any greater extent than is reasonably necessary for the construction, erection, installation, maintenance and use of cable television system equipment. Any such tree trimming and any cutting down and removal of trees shall only be performed in accordance with § 89-9 of the Municipal Code and the rules and regulations.
Q.Â
A franchisee shall promptly upon discovery or notification cover
or remove any graffiti on its equipment and facilities.
R.Â
A franchisee shall be required, at its expense, to protect, support,
temporarily disconnect, relocate in or remove from public streets,
lands or places any property of the franchisee whenever required by
the Mayor upon reasonable notice by reason of traffic conditions,
public safety, street construction or any other public purpose. In
addition, a franchisee may be required, at its expense, to move any
part or all of its equipment and facilities from any public streets,
lands or places upon the termination or revocation of the franchise,
as may be directed by the Mayor upon reasonable notice, provided that
such direction is in accordance with federal and state law, where
applicable.
S.Â
The franchisee, on the request of any person, firm or corporation
holding a building moving permit issued by the City, shall temporarily
raise or lower its wires to permit the moving of buildings. The direct
and actual expense of such temporary removal, raising or lowering
of wires shall be paid to the franchisee by the person, firm or corporation
requesting the same, and the franchisee shall have the authority to
require such payment in advance. The franchisee shall be given not
less than 48 hours' advance notice to arrange for such temporary wire
changes.
In all areas where new residential development or redevelopment
is to be constructed and to be served in whole or in part by underground
power and telephone, and only in areas where both utilities are to
be placed underground, the owner or developer shall provide a franchisee,
upon reasonable advance notice to the franchisee and for not less
than five working days, at no expense to the franchisee, the easement,
trench and backfill and all necessary substructure for laying cable
television cables, exclusive of all electronic cable television facilities.
A.Â
A franchisee that operates a cable system shall provide one public
access channel, one educational access channel and one government
access channel (collectively the PEG channels).
B.Â
A franchisee and the City shall operate and manage the PEG channels
as set forth in a franchise agreement between the parties.
C.Â
If a franchisee manages its own program guide, provided that the
administrator or operator of an access channel gives the franchisee
the necessary programming information in a timely manner, the franchisee
shall publish the programming information available on each of the
access channels in its own programming guide. For any program guides
managed by a third party, the franchisee shall provide the necessary
information about such third-party vendor to the City and to any access
channel administrator and shall take the necessary steps to facilitate
a request by the City or such access channel administrator to place
PEG programming information on such program guide.
A.Â
Public access is the means for enabling individuals or organizations
within the community to communicate via the cable television medium
noncommercial information, ideas and opinions regarding subjects that
would be of interest to viewers in the community. This communication
may take any of the following forms:
B.Â
In order to achieve the foregoing purposes:
(1)Â
The public access channel shall be administered and operated by a
not-for-profit corporation that the Mayor selects or causes to be
created;
(2)Â
The franchisee shall provide the corporation annually at the beginning
of each year a grant of money to be used by the corporation for capital
purposes, for the maintenance, repair and replacement, including upgrade,
of the equipment and facilities, the initial amount of the grant to
be specified in the franchise agreement or any renewal thereof;
(3)Â
The annual grant may be financed by a monthly surcharge of equal
amount to each subscriber, which may be itemized by the franchisee
on the monthly bill.
(4)Â
The corporation shall enter into a contract of one or more years
with the City regarding the administration and operation of the channel,
which contract shall contain such terms and conditions as the Mayor
shall deem appropriate; provided, however, that the contract shall
contain at least the following terms and conditions:
(a)Â
Procedures for training, use of equipment and facilities and
cablecasting shall be designed to assure swiftness of access, broad
public availability and nondiscrimination or monopolization; provided,
however, that nothing contained herein shall prohibit the charging
of reasonable fees and deposits subject to the Mayor's approval;
(b)Â
A substantial amount of the programming shall be produced in
the Rochester metropolitan statistical area and shall be related to
subjects of concern or interest to residents or subgroups of residents
of the City;
(c)Â
Programming produced by an organization shall be related to
the organization's mission, values, purposes, operations, products
or services;
(d)Â
An annual operating and capital budget shall be adopted by the
corporation, a copy of which shall be provided to the Mayor and the
President of the City Council; and
(e)Â
Financial records shall be kept in accordance with generally
accepted accounting principles, shall be available to inspection by
the Mayor and shall be independently audited by a certified public
accountant once a year, a copy of which shall be provided to the Mayor
and the President of the City Council.
A.Â
A new franchisee shall provide the equipment, facilities and services
offered in its franchise application. A renewing franchisee shall
provide the equipment, facilities and services offered in its franchise
renewal agreement.
B.Â
A franchisee shall offer to subscribers a reduced level of cable
service consisting of substantially fewer channels than the full-channel
capacity of the franchisee's cable system. Such level of service shall
include the local television broadcast signals, provided they are
available and the provisions of 17 U.S.C. § 111(c) and (d),
regarding a compulsory license for secondary transmissions by cable
systems, remain in full force and effect; the government and one public
access channel to be specified by the Mayor if there are more than
one, and such other channels and programming generally available to
the cable television industry and reflecting the varied needs and
interests of the residents of the City as may be selected by the franchisee
in its sole discretion. A franchisee shall charge subscribers for
this level of cable service a monthly rate that is lower than the
monthly rate charged subscribers for the franchisee's full-channel
service, exclusive of premium or pay-per-view programming services,
and that is commensurate with such reduced level of service.
A.Â
A franchisee shall maintain all equipment and segments of the cable
system in good condition throughout the entire franchise period.
B.Â
A franchisee shall make cable system repairs promptly and interrupt
cable service only for a good cause and for the shortest time possible.
Any such interruptions, insofar as possible, except in emergency situations,
shall occur only during periods of minimal cable system use. A franchisee
shall not interrupt service for any purpose within its reasonable
control without advising its subscribers during the previous 24 hours
by means of repeated alphanumeric notices on its channels.
C.Â
A franchisee shall, throughout the entire franchise period, meet the technical, operational and maintenance standards and quality of cable service set forth in § 4A-11G and the franchise agreement. A franchisee shall maintain records of its compliance with these standards, and such records shall be available for inspection by the Mayor upon reasonable notice during normal business hours.
D.Â
A franchisee shall not allow its cable or other operations to interfere
with television reception of persons not serviced by the franchisee,
nor shall the cable system interfere with, obstruct or hinder in any
manner the operation of the various utilities serving the residents
of the City.
A franchisee shall provide notice of its rates and charges in
compliance with New York State laws and NYPSC requirements, including
providing notice upon initial subscription, and at least semiannually
thereafter.
A.Â
A franchisee shall comply with the customer service standards as
set forth in Chapter VIII, Part 890, of the Rules and Regulations
of the NYPSC, as amended, and Title 47, Section 76.309, of the FCC
Regulations, as amended.
B.Â
The Mayor shall appoint a City Cable Television Compliance Officer
to be responsible for assuring that all reasonable steps have been
taken to satisfactorily resolve complaints. The complaint officer
shall conduct investigations of unresolved complaints as deemed necessary
to effectuate resolution. Such officer shall maintain records of all
complaints and their disposition and shall retain copies for a period
of two years.
C.Â
In the event that any complainant is unsatisfied with a franchisee's
attempts to resolve a complaint, such complainant may register a complaint
orally or in writing directly with the City Cable Television Compliance
Officer, who shall promptly investigate the complaint and attempt
to resolve it.
D.Â
Reliability of service; tests and analyses.
(1)Â
The franchisee shall conduct any tests required by the FCC to ensure
that the cable system complies with applicable FCC standards. The
franchisee shall retain written reports of the test results, and such
reports shall be provided to the City within 30 days of a written
request, provided that franchisee shall not be required to provide
such tests more than once in any calendar year.
(2)Â
Upon 30 days' written notice to the franchisee, the City or its designated representative may inspect the cable system at any time to ensure compliance with the franchise agreement and applicable law, including to ensure that the cable system is constructed and maintained in a safe condition. The franchisee shall cooperate with such inspection. If an unsafe condition is found to exist, the City, in addition to taking any other action permitted under applicable law, may require the franchisee, in writing, to make the necessary repairs and alterations specified therein to correct the unsafe condition within a reasonable time established by the City, which in no case shall be less than 30 days from receipt of written notice, unless otherwise required by the City Engineer in the reasonable exercise of his or her power pursuant to Chapter 104 of the Municipal Code and the rules and regulations.
E.Â
A franchisee shall not discriminate in the provision of cable services,
including access thereto, against any subscriber, channel user or
general citizen on the basis of age, race, color, creed, religion,
national origin, marital status, sex, sexual orientation, disability
or residential income of a local area.
F.Â
A franchisee shall not, in its charges or rates or in the availability
of the services or facilities of its system, make or grant advantages
or preferences to any individual subscriber or potential subscriber
of the system or any individual user or potential user of the system.
Nothing in this subsection shall be construed to prohibit the reduction
or waiving of charges or rates for promotional or competitive purposes.
G.Â
A franchisee shall annually provide subscribers with a complete list
of service offerings, options, prices and credit policies.
H.Â
Within seven days of the receipt of any request for connection from
any person who is located within an area then served by a franchisee,
the franchisee shall furnish cable service to such person, unless
a longer period of time is required to obtain legal right of access.
I.Â
A franchisee shall afford consumers with the right to rescind ordered
cable services, which right shall last until the earlier of either
initiation of physical installation or provision of the services on
the premises.
J.Â
In the operation of its system, a franchisee shall not interfere
in any way with the right of any resident to utilize an individual
antenna for the purpose of receiving television and other signals
off the air.
K.Â
A franchisee shall not disconnect or discontinue service for delinquency
in payment without complying with the applicable rules and regulations
of the NYPSC which require at least five days' prior written notice
to the subscriber and provision to the subscriber of an opportunity
to cure the delinquency at the time of discontinuance or disconnection.
Where a franchisee has improperly disconnected or discontinued service,
it shall provide free reconnection.
L.Â
Personal privacy of subscribers.
(1)Â
A franchisee shall strictly observe and protect the right of personal
privacy of subscribers and users of its cable system at all times.
At the time of first providing any cable service or other service
to a subscriber and at least once a year thereafter, a franchisee
shall provide notice in the form of a separate, written statement
to such subscriber which clearly and conspicuously informs the subscriber
of:
(a)Â
The nature of personally identifiable information collected
or to be collected with respect to the subscriber and the nature of
the use of such information;
(b)Â
The nature, frequency and purpose of any disclosure which may
be made of such information, including an identification of the types
of persons to whom the disclosure may be made;
(c)Â
The period during which such information will be maintained
by a franchisee;
(d)Â
The times and place within the City at which the subscriber
may have access to such information; and
(e)Â
The limitations provided by this section with respect to the
collection and disclosure of such information by a franchisee and
the rights of the subscriber.
(2)Â
For purposes of this section, the term "personally identifiable information"
is defined in accordance with 47 U.S.C. § 551(a)(2).
(3)Â
(4)Â
Disclosure of information.
(a)Â
Except as provided in Subsection L(4)(b), a franchisee shall not disclose personally identifiable information concerning any subscriber without the prior written or electronic consent of the subscriber concerned and shall take such actions as are necessary to prevent unauthorized access to such information by a person other than the subscriber or cable operator.
(b)Â
A franchisee may disclose such information if the disclosure
is:
[1]Â
Necessary to render or conduct a legitimate business activity
related to a cable service or other service provided by the franchisee
to the subscriber;
[2]Â
Made to any governmental entity pursuant to a court order authorizing such disclosure, as provided in Subsection L(8), provided the subscriber is notified of such order by the person to whom the order is directed; or
[3]Â
Made only in order to disclose the names and addresses of subscribers
to any cable service or other service if the franchisee has provided
the subscriber the opportunity to prohibit or limit such disclosure
and the disclosure does not reveal, directly or indirectly, any other
personally identifiable information.
(5)Â
Subscriber consent to collect and access information.
(a)Â
Subscriber consent to the collection or disclosure of personally
identifiable information shall be obtained in accordance with 47 U.S.C.
§ 551(b) and (c) and other applicable federal laws and regulations.
(b)Â
A subscriber shall be provided access to all personally identifiable
information regarding that subscriber which is collected and maintained
by a franchisee. Such information shall be made available to the subscriber
at reasonable times and at a place within the City designated by the
franchisee. A subscriber shall be provided reasonable opportunity
to correct any error in such information.
(6)Â
A franchisee shall destroy personally identifiable information if the information is no longer necessary for the purpose for which it was collected and there are no pending requests, requirements or orders for access to such information under Subsection L(4)(b)[2].
(7)Â
A governmental entity may obtain personally identifiable information
concerning a subscriber pursuant to a court order only if, in the
court proceeding relevant to such court order, such entity offers
clear and convincing evidence that the subject of the information
is reasonably suspected of engaging in criminal activity and that
the information sought would be material evidence in the case and
the subject of the information is afforded the opportunity to appear
and contest such entity's claim.
(8)Â
Nothing contained in this section shall prohibit a franchisee from
contracting for billing services, provided that any contractor agrees,
in writing, to be bound by the provisions of this section and the
penalties imposable under this chapter.
(9)Â
Any person aggrieved by any act of a franchisee in violation of this
section may seek damages pursuant to the provisions of the Cable Communications
Policy Act of 1984. This redress shall be in addition to any other
lawful remedy available to such person.
A.Â
The City and a franchisee shall hold regular performance review sessions
at 2Â 1/2 years, five years and 7Â 1/2 years from the award
or renewal of a franchise and also as may be required by federal and
state law.
B.Â
Special performance review sessions may be held at any time during
the term of a franchise at the request of the City or the franchisee.
C.Â
All regular performance review sessions shall be open to the public
and announced at least once by the City in a newspaper of general
circulation. A franchisee shall advise its subscribers of all regular
review sessions by alphanumeric notices on its channels between the
hours of 7:00 p.m. and 11:00 p.m. for five consecutive days preceding
each review.
D.Â
Topics which may be discussed at any regular or special performance
evaluation session may include but need not be limited to cable services,
video programming, free or discounted services, system performance,
customer complaints, service rate structures, application of new technologies,
privacy, line extension policies, the franchise fee, penalties, franchisee
or City rules and regulations, amendments to this chapter and judicial
and administrative rulings.
A.Â
A franchisee shall maintain complete and accurate books of account and records of its business and operations within the boundaries of the City and shall issue an annual financial report, described more fully in Subsection E, compiled in accordance with applicable governmental rules and regulations or, if no such rules and regulations are in effect, in accordance with generally accepted accounting principles, which report shall have been audited and reported upon by an independent certified public accountant. All such books and records shall be maintained at the franchisee's major office in the City.
B.Â
Any intentional or material false entry in the books of account or
records of a franchisee or any material false statement to the reports
concerning the same that a franchisee submits to the City shall constitute
a prima facie substantial breach of this chapter and the franchise
agreement.
C.Â
All books, records, journals, ledgers, bank account records, canceled
checks and other records of a franchisee pertaining to the performance
of its franchise activities and obligations in the City, as required
by the FCC and as specified in 47 CFR 76.1700, shall be open to inspection
by the Mayor from 9:00 a.m. to 5:00 p.m., Monday through Friday, upon
30 business days' notice.
D.Â
Within 60 days after each calendar quarter, upon request of the City,
a franchisee shall file with the Mayor a report stating by each category
of revenue the amount of gross revenues that were received by the
franchisee during the prior quarter.
A.Â
A franchisee shall not refuse to hire, employ or promote, nor bar
nor discharge from employment nor discriminate against any person
in compensation or in terms, conditions or privileges of employment
because of age, race, color, national origin, creed, religion, marital
status, sex, sexual orientation, gender identity or disability.
B.Â
A franchisee shall comply with Section 634 of the Cable Communications
Policy Act of 1984[1] and shall submit simultaneously to the City all the equal
employment opportunity reports it submits to the Federal Communications
Commission and any certifications or evaluations it receives from
the Commission.
[1]
Editor's Note: See 47 U.S.C. § 554.
C.Â
A franchisee shall, to the maximum extent lawful and consistent with
good business practices, contract for work to be performed, services
to be rendered or materials to be purchased in connection with the
franchise with minority and women business enterprises and will work
with the City to support this goal.
A.Â
At all times during the term of any franchise hereunder, a franchisee
shall maintain insurance policies certified by the City's Director
of Finance as being in compliance herewith. Such policies shall be
with an insurance company that is authorized to do business in New
York and which has an A.M. Best rating (or equivalent) no less than
A-minus VII, indemnifying the City from and against any and all claims
for injury or damage to persons or property, both real and personal,
caused by the construction, installation, reconstruction, operation,
maintenance or removal of the cable system by franchisee or any of
its contractors, subcontractors, agents or employees. The franchisee
shall pay all premiums on such policies and file with the Director
of Finance appropriate written evidence of the payment of premiums.
The franchisee shall file with the Director of Finance a certificate
of insurance for each policy. The policies shall be in the following
amounts:
(1)Â
The amount of such insurance against liability for damage to property
shall be no less than $5,000,000 as to any one occurrence.
(2)Â
The amount of such insurance against liability for injury or death
to any person shall be no less than $5,000,000.
(3)Â
The amount of such insurance for excess liability shall be $5,000,000
in umbrella form.
(4)Â
The amount of such insurance against all claims arising out of the
operation of motor vehicles and general tort or contract liability
shall be $3,000,000.
B.Â
The City, its officials and employees, shall be designated as additional
insureds under each of the insurance policies required herein.
C.Â
The franchisee shall not cancel any required insurance policy without
obtaining alternative insurance in conformance with this section and
without submitting insurance certificates to the City verifying that
franchisee has obtained such alternative insurance. The franchisee
shall provide the City with at least 30 days' prior written notice
in the event there is an adverse material change in coverage or the
policies are canceled or not renewed.
D.Â
The franchisee shall deliver to the City certificates of insurance
showing evidence of the required coverage within 30 days of the effective
date of the agreement.
E.Â
A franchisee shall also carry insurance to protect it from all claims
under any workers' compensation law in effect that may be applicable
to it.
A.Â
Within 90 days after commencement of the franchise term, a franchisee
shall deposit with the City, or in the case of a franchise renewal,
the franchisee shall maintain a security instrument or bond, reasonably
acceptable to the City Director of Finance or the Corporation Counsel,
in the amount of $100,000 (the "security"). Such amount shall act
as security for the faithful performance by franchisee of the requirements
of this chapter. The City may draw upon the security as a result of
and to correct or remedy any braches or violations of this chapter,
including but not limited to failure to pay required fees or compensation,
failure reimburse the City for work performed by the City pursuant
to this chapter, failure to remove the franchisee's property, wires,
cable or equipment as requested, failure to repair and restore the
ROW, failure to maintain required insurances and any other material
obligations to the City, whatsoever, arising out of this chapter or
the permits. It shall be a condition to payment under the security
that, except as otherwise set forth herein, the franchisee shall not
have corrected or cured the breach or violation within 30 days from
written notification to the franchisee of the breach or violation,
except such shorter time as required by the City in the case of failure
to maintain required insurance or to correct emergency conditions,
and in the event that the franchisee fails to pay any fees or costs
due and payable under this chapter or the permits, within 10 days
of service of a demand for payment.
B.Â
Within 30 days after notice to it that any amount has been withdrawn
from the security, a franchisee shall restore the surety instrument
or fund to the original amount of $100,000.
The failure of a franchisee to comply with certain material
requirements of this chapter may result in harm to the City, the financial
cost of which may difficult to measure. The City may assess liquidated
damages in accordance with the specific amounts set forth in the franchise
agreement.
The franchisee shall, at its sole cost and expense, indemnify,
defend, save and hold harmless the City, its elected and appointed
officials, officers, agents and employees acting in their official
capacities, from claims for injury, loss, liability, cost or expense
arising in whole or in part from, caused by or connected with any
act or omission of the franchisee, its officers, agents, contractors
or employees arising out of the construction, installation, upgrade,
reconstruction, operation, maintenance or removal of the cable system
or any other equipment or facilities of the franchisee. The City shall
give the franchisee timely written notice of its obligation to indemnify
and defend the City after receipt of a claim or action pursuant to
this section. For the purposes of this section "timely" notice shall
mean at least 15 days before any response from the franchisee to the
claim or action is due. The obligation to indemnify, defend, save
and hold the City harmless shall include, but not be limited to, the
obligation to pay judgments, injuries, liabilities, damages, penalties,
and reasonable attorneys' fees ordered by a court in an action brought
pursuant to this section. If the City determines that it is necessary
for it to employ separate counsel, in addition to that provided by
the franchisee, the cost for such separate counsel shall be the responsibility
of the City. The franchisee shall not indemnify the City to the extent
that a claim results from willful, intentional, malicious, or otherwise
unlawful acts, or gross negligence on the part of the City.
A franchisee shall have no recourse whatsoever against the City
or its officers, employees, agents, boards or commissions for any
loss, costs, expenses or damages arising out of any provision or requirement
of this chapter or due to the good-faith enforcement of this chapter
or the franchise agreement. This provision shall not prevent a franchise
from asserting any legal right or pursuing any legal remedy it believes
it possesses with regard to this chapter.
A franchise award or renewal and franchise agreement are subject
to approval by the NYPSC. A franchisee shall file all appropriate
and necessary documentation for such approval with the NYPSC within
60 days from the date the franchise is awarded or renewed.
Every direction, notice or order to be served upon the franchisee
shall be sent by certified mail to its office located in the City
and as set forth in a franchise agreement and/or franchise renewal
agreement. Every notice to be served upon the City shall be sent by
certified mail to the Mayor. Such notice, direction or order shall
be deemed to have been given upon its delivery.
All of the provisions of this chapter shall apply to a franchisee,
its successors and assigns, as such may be approved by the City in
accordance with the provisions hereof.
A franchisee shall not be relieved of its obligation to comply
with any of the provisions of this chapter or a franchise agreement
by reason of the failure of the City to enforce prompt compliance.
The Mayor shall have the right to adopt such rules and regulations
as the Mayor may find reasonable or necessary in furtherance of the
provisions of this chapter, provided that such rules and regulations
are not in conflict with the provisions of this chapter.
If any provision of this chapter or the particular application
thereof shall be held void or otherwise invalid by any court or regulatory
agency of competent jurisdiction, or is preempted by federal or state
laws or regulations, the remaining provisions and their application
shall not be affected thereby.
In addition to any other legislative right and power the City
Council may have, the Council expressly reserves the right and power
to amend this chapter to the extent authorized by federal and state
law by virtue of changes therein that may be enacted or otherwise
become effective on or after the effective date of this chapter.
