[HISTORY: Adopted by the Town Board of the
Town of Mamaroneck 10-20-1993 by L.L. No. 10-1993. Amendments noted
where applicable.]
The Cable Television Consumer Protection and
Competition Act of 1992 authorizes franchising authorities to regulate
certain rates for cable television service and equipment. The Town
of Mamaroneck desires to regulate cable rates except to the extent
that it is prohibited from doing so by applicable law. Federal Communications
Commission (FCC) regulations implementing the Cable Television Consumer
Protection and Competition Act of 1992 require franchising authorities
to adopt regulations before rate regulation of basic service and equipment
can begin.
A.
This chapter governs the regulation of rates for basic
service and equipment within the Town of Mamaroneck for any franchisee
which as been notified that the Town has been certified to regulate
its basic service and equipment rates; and the Town has adopted regulations
governing regulation of basic service and equipment rates. In addition,
the Town of Mamaroneck may regulate the rates for cable services and
equipment to the extent not prohibited by law, pursuant to such resolutions,
ordinances or regulations as it may hereafter adopt. The provisions
set forth below are intended to be consistent with all FCC regulations
governing the regulation of basic service rates and equipment and
the Town and all those acting on its behalf will regulate and interpret
its rules so that they are consistent with FCC regulations, as if
those regulations were set forth in full herein; the franchisee is
prohibited fray engaging in any activity it is prohibited in engaging
in under FCC rules, as if those rules were set forth in full herein.
For purposes of these provisions, the term "basic service" or "basic
cable service" has the same meaning as the term "basic service" at
the Code of Federal Regulations, Title 47, Part 76, Section 901, and
the term "equipment" refers to all equipment and services subject
to regulation under the Code of Federal Regulations, Title 47, Part
76, Section 923.
B.
To the extent the New York State Cable Commission
establishes final rules for rate regulation that must be followed
by franchising authorities, those rules will govern as if fully set
forth herein. However, to the extent the rules of the New York State
Cable Commission allow franchising authorities to follow different
or additional rules, the provisions set forth herein that may be enforced
consistent with the rules of the New York State Cable Commission shall
continue to apply.
[Added 12-1-1993 by L.L. No. 11-1993]
A.
A franchisee that is notified that its basic service
and equipment rates are subject to regulation must file a submission
("the rate filing") within 30 days of the notification (but no earlier
than November 15, 1993), justifying its basic service and equipment
rates. All basic service and equipment rates for all customer classifications
must be justified. Once a franchisee has been so notified by the Town
that its rates are subject to regulation, it may not thereafter increase
its rates for basic service or equipment without the prior approval
of the Town. This requirement applies in all cases, including with
respect to increases in rates announced prior to the date the operator
was notified its rates were subject to regulation where the increases
were not implemented prior to the date of notice. A franchisee must
submit a rate filing to justify any increase in basic service or equipment
rates or any new basic service or equipment rate (collectively referred
to herein as rate increases). An "increase" occurs, without limitation,
when there is an increase in rates or a decrease in programming or
customer services. Rate filings proposing and supporting rate increases
must be filed for review at least 30 days in advance of the proposed
effective date of the increase. This requirement does not alter or
eliminate any other notice requirement.
B.
Every rate filing must be submitted to the Larchmont-Mamaroneck
Cable TV Board of Control (the "Board"). A rate filing shall be considered
filed for review on the date the required rate filing and all required
copies are received by the Board. Five copies of each rate filing
(including all supporting materials) must be submitted. If the operator
claims any part of the filing is proprietary, it shall additionally
file five copies, which omit the proprietary information. For the
purposes of this section, the term "proprietary" shall mean as pertaining
to information primarily and exclusively owned by the operator.
[Amended 7-17-1996 by L.L. No. 14-1996]
Subject to FCC regulations governing the burden
of proof, a rate filing submitted by a franchisee must show that the
rates the franchisee proposes to charge for basic service and equipment
are reasonable. Except as inconsistent with FCC rules:
A.
Every rate filing must clearly state in a covering
letter whether it justifies existing rates, or proposes an increase
in rates. The covering letter must also identify any rate that is
derived in whole or in part based upon cost of service, and identify
any pages of the rate filing that contain information that the franchisee
claims is proprietary. It must state whether any part of the proposed
increase is based on an inflation adjustment or an alleged increase
in external costs. The cover letter should also contain a brief, narrative
description of any proposed changes in rates or in service.
B.
The pages of each rate filing must be numbered sequentially.
C.
The rate filing must contain all applicable FCC forms
and these forms must be correctly completed.
D.
If different rates are proposed for basic service
for different classes of customers, the filing must show that the
classifications and the differences in the rate charged are reasonable
and consistent with federal law.
A.
If the franchisee seeks to support a rate based upon
a cost of service, the Town will establish a rate that provides the
franchisee an opportunity to recover the reasonable costs associated
with providing basic cable service, including a reasonable profit.
An expense or investment is not presumed reasonable merely because
the franchisee has incurred or made it. A franchisee is not entitled
to recover monopoly profits in any form.
B.
In addition to information the Town or Board requires
the franchisee to provide, and unless the Town grants a waiver of
this provision, a franchisee who seeks to justify all or any part
of its rates based upon its cost of service must submit a complete
cost-of-service analysis that shows all expenses it incurs and all
revenues derived from the system, directly or indirectly, by the franchisee
or any person that constitutes a cable operator of the system within
the meaning of 47 U.S.C. § 522(5). The cost of service must
identify the accounting level (as that term is used in the FCC's regulations)
at which each expense or revenue identified was aggregated and show
clearly how the expense or revenue was allocated. The franchisee may
not include costs at an accounting level unless it also includes all
revenues from that same level attributable to the system or to a group
of systems of which the system servicing the Town is a part. The replacement
cost of a comparable system must be identified and supported. The
franchisee must identify the name and address of any entity with which
it has a contract, other than a programmer, which derives revenues
from the system, and must state whether and how the revenues of that
entity were included in the cost of service. In addition, the cost
of service shall clearly show the derivation of a proposed charge
per channel and the application of that charge to yield a basic service
rate. It must also show and support the derivation and allocation
of any amounts included in the derivation of the rate for:
(1)
Operation and maintenance expenses.
(2)
Administrative and general expenses.
(3)
Programming expenses (identifying retransmission consent
costs and copyright fees separately).
(4)
Costs for PEG access and any institutional network.
(5)
Franchise fee expenses.
(6)
Investment in the system and associated depreciation.
(7)
Other expenses, including federal, state and local
taxes, itemized.
(8)
The proposed return on equity and actual interest
expense paid by the franchisee.
C.
Notwithstanding the foregoing, a franchisee is not required to submit the cost of service specified in § 74-5A for equipment rates, and instead initially shall complete, submit and support the costs of equipment using applicable FCC forms. Any cost of service submitted to justify basic service rates must show that the cost of service does not include equipment costs.
A.
After receiving a rate filing, the Board promptly
shall publish a notice that a filing has been received and that, except
for those parts which may be withheld as proprietary, it is available
for public review. The notice shall state that interested parties
may comment on the filing and shall provide interested parties seven
days to submit written comments on the filing to the Board. The Board
shall submit the comments received and its recommendations for action
to the Town and shall make those recommendations and comments available
for public inspection. The franchisee may submit a response to public
comments or Board recommendations, but must do so no later than three
business days after the Board recommendations are submitted to the
Town. The response shall be filed with the Board, and if submitted
in a timely fashion, the Board shall forward a copy to the Town.
B.
Within 30 days of the date of the filing, the Town shall issue a written order, which may be in any lawful form, approving the proposed rate in whole or in part; denying the proposed rate in whole or in part; or tolling the proposed rate in whole or part. If the Town tolls the rate in whole or in part, its written order at a minimum shall explain that it requires additional time to review the rate filing and state that the franchisee may cure any deficiency in its filing by submitting a supplementary filing as provided in Subsection D. For the purposes of this section, the term "tolling" shall mean to hold in abeyance or to suspend.
[Amended 7-17-1996 by L.L. No. 14-1996]
C.
With respect to existing rates, tolling means the
rates may remain in effect, subject to refund; with respect to rate
changes, tolling means the portion of the rate change that is tolled
may not go into effect.
D.
Supplementary filings.
(1)
If a proposed rate is tolled in whole or in part, the franchisee shall submit a supplementary filing 20 days from the effective date of the tolling order, containing corrections, if any, to its filing (including any supplement to its cost-of-service filing) and any response to information filed by interested parties or to the recommendations of the Board, or any additional information necessary to support the proposed rate. Supplementary filings must be filed in accordance with § 74-3B.
(2)
A supplementary filing also must contain such information
as the Board or the Town directs the franchisee to provide.
A.
In addition to information the Board or the Town requests
the franchisee to provide, and unless the Board or the Town grants
a waiver of this provision, a franchisee who claims that it is entitled
to a rate in whole or in part based upon the adjustments for inflation
and external costs contemplated by the Code of Federal Regulations,
Title 47, Part 76, Section 922(d)(1) and (2) must submit the following:
(1)
A calculation showing how each part of the adjustment
was derived.
(2)
A statement itemizing each external cost (as defined
by FCC regulations), the amount of that external costs for the two
calendar years prior to the date of the filing and the year-to-date
in which the filing is made and the projected amount of the external
cost for the remainder of the year in which the filing is made and
for the following calendar year. The statement must specifically show
any increases in revenues from programming services. "Revenues" include
all revenues, in whatever form received.
(3)
If the increase is attributable to any increase in
programming service costs, the contract for each programming service
whose cost has increased, a sworn statement identifying each programming
service whose costs increased where the programmer is an affiliate
of the franchisee (as defined by FCC regulations); and, for any contract
that has been in effect less than 12 months, the prior contract for
the service.
(4)
A sworn statement by the franchisee's chief financial
officer or an independent, certified accountant stating that he or
she has examined all external costs (including all programming costs)
and has offset against any increase claimed the amount of any decreases
in external costs and the amount by which any increase in external
costs was below the GNP-PI, as required by the Code of Federal Regulations,
Title 47, Part 76, Section 922(d)(2); affirming that the franchisee
has only sought to recover any external cost to the extent that cost
exceeded the GNP-PI; and affirming that the franchisee has not attempted
to recover any increase in the cost of programming purchased by an
affiliate except as provided in the Code of Federal Regulations, Title
47, Part 76, Section 922(d)(2)(vi).
B.
Upon receiving the supplementary filing, the Board
promptly shall publish a notice that a filing has been received and
that it is available for public review (except those parts which may
be withheld as proprietary). The notice shall state that interested
parties may comment on the filing and shall provide interested parties
20 days to submit written comments on the filing to the Board. The
Board shall submit the comments received and its recommendations for
action to the Town.
C.
The Board's recommendations and the public comments
shall be made available for public inspection. The franchisee may
submit a response to public comments or Board recommendations, but
must do so no later than 10 days after the Board recommendations are
submitted to the Town. The response shall be filed with the Board,
and if submitted in a timely fashion, the Board shall forward a copy
to the Town.
D.
The Town shall issue a written order, which may be
in any lawful form, approving the proposed rate in whole or in part;
denying the proposed rate in whole or in part; or allowing the rate
to go into effect in whole or in part, subject to refund. If the Town
issues an order allowing the rates to go into effect subject to refund,
it shall also direct the franchisee to maintain an accounting in accordance
with the Code of Federal Regulations, Title 47, Part 76, Section 933.
A.
Any rate order of the Town shall be issued and effective
upon adoption. Each rate order shall be released to the public and
the franchisee. In any case where the Town approves, denies or tolls
a rate, orders that a rate may go into effect subject to refund or
orders refunds or establishes rates, a public notice shall be published
stating that the order has issued and is available for review. Any
such order shall be in writing.
B.
The Board and the Town may take any steps that they
are not prohibited from taking by federal law to protect the public
interest as part of any rate order or by any other means. By way of
illustration and not limitation, the Town may require refunds, set
rates and impose forfeitures and penalties directly or through its
delegated representatives and enforce refund orders. Any order prescribing
a rate shall explain why the franchisee's proposed rate was unreasonable
and why the prescribed rate is reasonable. However, before prescribing
a rate or ordering a refund to subscribers, the Town shall ensure
that the franchisee has had notice and opportunity to comment on the
proposed rate or refunds. If the recommendations of the Board propose
a refund or a rate, then mailing a copy of the recommendation to the
franchisee at the time it is submitted to the Town shall be deemed
to provide the franchisee this notice, and the franchisee must comment
on the refund or rate in its response to the recommendations.
C.
No order approving or setting a rate using the FCC
benchmarks shall be interpreted to establish the just and reasonable
rate to subscribers. Every such rate approved or established shall
be subject to further reduction and refund to the extent permitted
under applicable laws and regulations, as the same may be amended
from time to time. By way of illustration and not limitation, should
the FCC reduce the benchmarks, the Town shall have the right to reduce
a franchisee's rates and to require the franchisee to refund any amounts
collected above the benchmark, except to the extent prohibited by
federal law.
A.
A franchisee must implement remedial requirements,
including prospective rate reductions and refunds, within 60 days
of the date the Town issues an order mandating a remedy.
B.
Within 90 days of the date an order mandating a remedy
is issued, a franchisee must file a certification, signed by an authorized
representative of the cable company:
C.
It is each franchisee's responsibility to keep books
and records of accounts so that it can refund any amounts owed to
subscribers.
D.
It is each franchisee's duty to submit as complete
a filing as possible, and knowingly withholding information or making
a filing that is incomplete under applicable law shall be treated
as an evasion of this resolution.
E.
Information requests.
(1)
A franchisee and any other entity that has records
of revenues or expenses that are allocated to the franchisee's system
must respond to requests for information from the Board or Town by
deadlines established by the Board. A franchisee is responsible for
ensuring that such other entity responds to the requests.
(2)
Because federal law limits the time available for an initial response to a filing by a franchisee before the order contemplated by § 74-6 issues, the franchisee must be prepared to respond to requests for information regarding its filing within five days of the date an information request is mailed to it. The information may include the information the franchisee would be required to provide as part of any supplementary filing.
The Board shall be responsible for administering
the provisions herein. Without limitation and by way of illustration:
A.
The Board shall ensure that notices are given to the
public and each franchisee as required herein and by FCC regulations.
B.
The Board may submit requests for information to the franchisee and establish deadlines for response to them, as provided in § 74-9.
C.
For good cause, the Board may waive any provision
herein or extend any deadline for filing or response except as to
such matters that are mandatory under FCC regulations.
D.
The Board shall rule on any request for confidentiality.
Except as prohibited by federal law, a franchisee
shall be subject to penalties and forfeitures under the Executive
Law, and its request for approval of a rate may be denied if it:
A.
Knowingly submits false or fraudulent information
to the Board or the Town in connection with any rate proceeding.
B.
Fails to comply with any lawful order or request of
the Board or the Town, including but not limited to a request for
information or an order setting rates; or
C.
Evades or attempts to evade federal or local rate
regulation; provided that filing for approval of a rate that is later
determined to be unreasonable is not in and of itself an evasion of
federal or local rate regulation.
A.
If these provisions or any request for information
requires the production of proprietary information, the franchisee
must produce the information. However, at the time the allegedly proprietary
information is submitted, a franchisee may request that specific,
identified portions of its response be treated as confidential and
withheld from public disclosure. The request must state the reason
why the information should be treated as proprietary and the facts
that support those reasons. The request for confidentiality will be
granted if the Board determines that the preponderance of the evidence
shows that nondisclosure is consistent with the provisions of the
Freedom of Information Act, 5 U.S.C. § 552. If the Board
decides that information can be withheld, it will issue a written
decision explaining the basis for withholding the information and
place that decision in a public file for inspection. If the franchisee
requests confidentiality and the request is denied, where the franchisee
is proposing a rate increase, it may withdraw the proposal, in which
case the allegedly proprietary information will be returned to it;
or the franchisee may seek review within five working days of the
denial in any appropriate forum. Release of the information will be
stayed pending review.
B.
Any interested party may file a request to inspect
material withheld as proprietary with the Board. The Board shall weight
the policy considerations favoring nondisclosure against the reasons
cited for permitting inspection in light of the facts of the particular
case. It will then promptly notify the requesting entity and the cable
franchisee that submitted the information as to the disposition of
the request. It may grant, deny or condition a request. The requesting
party or the franchisee may seek review of the decision by filing
an appeal with any appropriate forum. Disclosure will be stayed pending
resolution of any appeal.
Any franchisee may petition for a change in
status in accordance with the Code of Federal Regulations, Title 47,
Part 76, Section 915, and the Town shall consider that petition in
accordance with the Code of Federal Regulations, Title 47, Part 76,
Section 915. The petition and five copies must be filed with the Board.
