HomeMy WebLinkAboutMN-CABLECOMM-1994-10-25 ► t
City of Ithaca Cable Commission
Minutes, October 25, 1994
Present Chair Jean Finley, Commissioners Harvey Gitlin, Richard Entlich, Helen Grimm,
Richard Cogger
Common Council Liaison Alderman Rick Gray
Access Producer Bill McCormick
Call to Order 7:40 pm
Minutes Minutes not ready, approval deferred until Nov. meeting
Public Comment Cablecasting time on Channel 13 is virtually full. Mr. McCormick charges TWC
is slow to get new channel going in a meaningful way. He wants standard definition of
prime time to be used instead of expanding definition of prime time to accommodate
additional producers who want prime time. He reports an especial crunch in available
production time, with TWC making no accommodations to open studio at other times.
Mr. McCormick asks that ways be found to free up staff for production help, maybe by
recruiting volunteers, interns. He also complains of cut backs in the level of service—i.e.
telephone line cut-back to one phone for administration, reducing services to the
building, also janitorial work. Mr. McCormick asks ICCC to please push TWC to open
up the studio more and to make more time available, especially for live shows. He asks
why, when the studio is empty during school hours, access supplied an additional studio
to the high school to be used on a very limited basis. He furthermore asks that the
studio be open to the public during those hours. The Cable Commission charged
Commissioner Gitlin with drafting a sample resolution for consideration--calling on
TWC to open up studio more, in part by actively using and recruiting volunteers and
interns to eliminate the need for double staffing, cut down number of employees out on
shoots by supplement them with volunteers.
Acknowledgement of Receipt of Correspondence from TWC
A. This year's financial statement
B. Correspondence from TWC directly to Common Councilpersons, with sample
resolution, asking them to sign for transfer to Time Warner/Newhouse/Advance.
Adjournment to Executive Session to discuss Chair Finley and Councilman Gray's meeting with
City Attorney: 7:55
Return to Open Meeting: 8:30
Old Business:
A. Distribution of Access funds. The attached background sheet, prepared by Chair
Finley, was discussed. Chair Finley reported that former ICCC chair and attorney
Tom Terrizzi had checked it over and agreed it was "consistent with the position
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the Cable Commission has taken in the past". The discussion was directed to
whether retaining this strict interpretation is desirable or if other uses of access
funds were more appropriate, especially with respect to allowing the permanent
placement of access equipment in places not available to all city residents. Liaison
Rick Gray reported that, with respect to the equipment in the schools, the
Educational Access Committee feels that it is the school district's business to
provide permanent equipment for classroom use and that only short-term loan of
access equipment to schools would be appropriate. Commission Cogger proposed
the following resolution, seconded by Chair Finley, and passed unanimously.
Be it resolved that:
1) Under no circumstance shall the pool of capital funds for P.E.G. access
equipment be less than 2% of gross city revenues; and
2) All equipment shall be available equitably to all residents of the City of Ithaca.
3) In general no equipment is to be installed in any location where the de facto
effect is to exclude equitable access to all residents of the City of Ithaca.
New Business:
A. The following three resolutions were passed unanimously.
1. Whereas many City of Ithaca subscribers of the Time Warner Cable System
elected before Sept. 12, 1994, to subscribe to the new Cable Plus Service
(including CNN, the Learning Channel, ESPN, and Comedy Central), and
Whereas, these subscribers were changed for Cable Plus at $1.74 per month from
the date on which they ordered the service; and
Whereas all other Time Warner customers received this same Cable Plus Service
(including CNN, the Learning Channel, ESPN, and Comedy Central) free until
the date of scrambling on Sept. 12, 1994; and
Whereas legal proceedings in the State of New York have found unacceptable the
practice of a cable operator's charging subscribers who ordered a similar service
(events from Madison Square Garden)for that service while that service remained
unscrambled so that other subscribers of the same system continued to receive the
service without charge; and
Whereas legal proceedings in the State of New York required the cable operator
to refund to all customers who had paid for the abovementioned programming
from Madison Square Garden all monies collected for the service during the
entire period before the date when the channel was finally scrambled;
Now therefore, the Ithaca City Cable Commission calls on Time Warner Cable
immediately to refund $1.74 per month, prorated for partial months, to all
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customers who were charged for this service prior to Sept. 12, 1994, the date of
scrambling.
2. Whereas Franchise Fees in excess of 5% are in violation of the federal Cable Act
of 1984 (622 (b)--unrevised in 1992); and
Whereas, the City of Ithaca charges Time Warner Cable a 5 percent franchise fee
on gross city revenues as allowed under the law; and
Whereas the term 'franchise fee' in the case of any franchise in effect on the date
of the enactment of this title [Cable Act of 1992], does not include payments
which are required by the franchise to be incurred by the cable operator for
public, educational, or governmental access facilitiesn1
Whereas Time Warner Cable has been charging City of Ithaca customers $1.26
per month for a"P.E.G.Access Franchise Fee" since the week of July 11, 1994,and
Whereas the so-called "P.E.G. Access Franchise Fee" is cannot legally be charged
as a franchise fee; and
Whereas Time Warner Cable's General Manager Raymond McCabe was publicly
informed that this charge is not a "Franchise Fee" by Assistant Deputy Director
of the New York State Commission of Cable Television Steven Shaye at the Ithaca
public hearing on cable television held in Common Council Chambers on July 13,
1994, and televised on Channel 53; and
Whereas Time Warner Cable has taken no voluntary action to correct this
situation;
Therefore the Ithaca City Cable Commission calls on Time Warner Cable to
refund this so-called "franchise fee" in full to each City of Ithaca subscriber that
has been charged this "franchise fee" in excess of the amount of franchise fee
allowed by federal law; and
Be it further resolved that Time Warner Cable will desist from listing P.E.G.
Access Franchise Fee on its bills to city subscribers.
3. Whereas the Ithaca City Franchise calls for Time Warner Cable to maintain or
replace Access and local origination equipment in a manner consistent with Good
Operating Practice; and
Whereas Good Operating Practice has a specific definition in the context of
1Pike&Fisher's Cable Act: Law and Legislative History,p484
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governmental and non-governmental contracts and is an accepted trade phrase,
and
Whereas Good Operating Practice for all equipment includes, at minimum:
1) For each piece of equipment, in accordance with the recommendations of the
manufacturer if available, determining acceptable tolerances for replaceable
parts and setting up a regular maintenance and inspection schedule;
2) Adhering to the regular maintenance and inspection schedule, including
preventative maintenance procedures and regular replacement of replaceable
parts that fall outside acceptable tolerances;
3) Setting up a system to check adherence to the regular maintenance schedule,
such as posting this schedule and requiring the inspector or maintenance
worker to initial and date it on completion of each scheduled maintenance
procedure or inspection; and
4) Review of the initialed maintenance/inspection schedule or equivalent
procedure by management on a regular basis to assure adherence to the
schedule.
5) Replacing equipment that can no longer be brought into acceptable tolerances
because of the unavailability of standard replacement parts or because
advances in equipment design dictate replacement.
Whereas the two items marked"refurbishment"that TWC has charged to the 1994
access capital equipment budget (2% funds) represent equipment maintenance
procedures involving the replacement of replaceable parts that have been analyzed
and found to be beyond acceptable tolerances, and
Whereas standard replacement parts were available and used for these
replacements; and
Whereas the replacement of worn parts with standard replacement parts on a
predetermined schedule or when they are analyzed and found to deviate from
original manufacturer's specifications beyond acceptable tolerances falls within
the normal definition of Good Operating Practice;
Therefore the Ithaca City Cable Commission calls on Time Warner Cable to abide
by its repair responsibilities under the Franchise agreement and to refund the
amounts charged for the two items of"refurbishment"to the 2%capital equipment
fund; and
Furthermore, the Ithaca City Cable Commission calls on Time Warner Cable to
refrain from charging equipment "refurbishments" or this sort to the 2% funds in
the future.
Adjournment 9:35 PM
Respectfully submitted
M. Jean Finley
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Background and Context:
Principal Issue: TWC's attempt to read franchise language about "commitments that are made by
TWC to municipalities served by the same headend" (p.16, para. C(3), line 10)
as covering any-- even unilateral and non-franchise business decisions -- commitment of funds by
TWC public relations and general management. In this context, we have two immediate specific
issues: 1) Tompkins Co. is asking strongly for production equipment for the facility they have set
up at the courthouse. Right now they have been funded by access capital funds only for equipment
that supports the governmental bulletin board (including City announcements) and playback
equipment. TWC reads the "are made available equitably" language in 14.2 (see below) and the
"municipalities served by the same headend" in 14.1 C 3 to allow TWC to approve such requests
directly for such purposes. This equipment is not available to "city residents, etc" as required in
14.2 below. 2) A portable studio was set up in the high school with access funds this year, (ICC
approved May 10, 1994, with the provision that it come back during the summer of 1995 and its
use be reevaluated. TWC has repeatedly stated that this should be a permanent studio and
reported at the last ICC meeting that it would like to turn over title to the high school. Despite
franchise language requiring TWC to maintain all equipment, the high school is required to
maintain the equipment while it is in the high school. Questions arise over the legality of spending
access funds for such a studio since it is not available to all, or even to all students in the high
school, as it is trapped in a single classroom for a course. There are strong feelings even on the
educational access advisory committee that the school district should pay for its classroom
equipment after the completion of any pilot loan of access equipment. These issues are especially
pointed now that TWC is charging city customers, and city customers only, for the provision of
access equipment and staff.
France Provision Pertaining to Access Equipment Purchase:
txpa4.1 C(3) "Access equipment ownership and availability: All access equipment shall remain the property of ACC but shall be made available for
ccess use by the City of Ithaca,local institutions and residents,and surrounding ACC system residents. On an average annual basis ACC has agreed
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provide 2%of Gross City Revenues for capital PEG access equipment replacement and expansion. Any future access equipment replacement and
nsion commitments that are made by ACC to municipalities served by the same headend as the City of Ithaca,will be deducted to a floor of 1%
of gross City revenues...."
franchise Provision Pertaining to Access Equipment Availability:
14.2 ACC shall establish rules to ensure that the studio(s)and portable equipment are available equitably to the governmental,educational,and public
eectors. Rules for public access should assure the availability of the studio(s)and portable equipment on a first-come,first-served basis.....'
Franchise Provision Defining'Resident':
1.28 Resident means any person residing in the City as otherwise defined by applicable law.
ontract language must be read in terms of the matter of the contract itself:
r-"Commitments" in para. C(3) in the context of this franchise refer specifically to the to
commitments by TWC to provide a percentage (of a specific municipality's) "Gross...Revenues for
capital PEG access equipment replacement and ifeiny other form of commitment by TWC "to municipalities served by the same headend" is a
unilateral business decision unrelated to anything in this franchise provision.
jFor instance, in the extreme case, TWC may not legitimately make a commitment...to
'refund" an amount equivalent to 1% to municipalities that do not have any access-equipment
Provision in their franchise -- and deduct that from the City's 2% capital payment!
In other words, any amount deducted from the City's 2% must represent an addition to the
a
access equipment "pool", and therefore the "commitments" to other municipalities must refer to
additions to the access equipment "pool".
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—Para. C(3), sentence 1: explicitly requires TWC to make "All access equipment...available for
access use by...(city) residents." Therefore, no capital funds under the franchise may be committed
by TWC to the exclusive use of any other municipality or its residents or institutions -- it's share
and share alike.Any other commitment by TWC management is undertaken at their discretion and
at their expense outside any provision of this franchise.
For instance, TWC may commit itself to provide video equipment to a local school program,
but this can not be accounted as "access equipment" from 2% funds. Charitable commitments by
TWC for public relations purposes are outside this provision of a franchise, which represents
payments -- goods and services in lieu of cash -- for the privileged use of the public right-of-way
within the City.
TWC may not transfer ownership of access-funded equipment to any other individual or
institution (Cf. sec.C(3), sentence 1: "All access equipment shall remain the property of TWC").
As well, the City franchise does not give TWC sole discretion in spending 2% funds: sec.14.9
requires TWC to "consult" with the City's agent (board or commission) "on the purchase of
equipment."
See below the provision for equitable availability of all access equipment, which means nd
individual or institution-- even a governmental one -- may be given exclusive possession or use of
access equipment out of 2% funds.
—Para. C(3), sentence 2: explicitly sets aside money for "access equipment replacement and
expansion". City of Ithaca access facilities and equipment were either pre-existing or provided for
elsewhere in the franchise. Therefore, commitments under this section do not refer to funds that
TWC might commit to establish facilities or stores of equipment in other municipalities. Judging
by the amount spent on the 612 facility, setting up access studio(s) or portable equipment check-out
facilities under other system franchises would require TWC to make initial capital expenditures far
in excess of"1%" and none of those costs may be deducted under the City of Ithaca franchise.
However, if such"other-municipal" facilities or stores of equipment are created under section
14.1 C(3), TWC may deduct its annual"capital ... replacement and expansion" expenditures, up to
the equivalent of 1% gross city revenues.
N.B., the City has a right to a full accounting for any deduction.
N.B., the City has a right to a voice in how this money is allocated, reciprocal to the
participation of non-city residents on the City's access advisory board and cable commission.
Therefore,TWC cannot make any commitment to the"other-municipality" that excludes the City's
interest.
N.B., in any commitment to the "other-municipality", TWC must assure that all facilities and
equipment "served by the headend" are available to City residents on an equal basis -- to do
otherwise is a serious breach of the City franchise (Cf. sec.14.2"TWC shall establish rules to insure
that studio(s) and portable equipment are available equitably to governmental, educational and
public sectors."
i.e.,even in other system[same headend] franchises,the rules must provide for equal availability
to all access users -- residents of that municipality, the City of Ithaca and all others within the
system area. Otherwise, no deduction from the City's 2% is permitted.
6
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CITY OF ITHACA
108 East Green Street
Ithaca,New York 14850
The Cable Commission Telephone: 607-272-3081
Fax: 607-272-7348
Resolution Passed Unanimously by the Ithaca City Cable Commission October 25, 1994
Be it resolved that:
1) Under no circumstance shall the pool of capital funds for P.E.G. access equipment be less
than 2% of gross city revenues; and
2) All equipment shall be available equitably to all residents of the City of Ithaca.
3) In general no equipment is to be installed in any location where the de facto effect is to
exclude equitable access to all residents of the City of Ithaca.
4) Any exceptions to this policy must be specifically authorized by ICCC.
1
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CITY OF ITHACA
108 East Green Street
Ithaca,New York 14850
The Cable Telephone: 607-272-3081
Commission Fax: 607-272-7348
Resolution Passed Unanimously by the Ithaca City Cable Commission October 25, 1994
Whereas many City of Ithaca subscribers of the Time Warner Cable System elected before Sept.
12, 1994,to subscribe to the new Cable Plus Service(including CNN,the Learning Channel,ESPN,
and Comedy Central), and
Whereas,these subscribers were changed for Cable Plus at$1.74 per month from the date on which
they ordered the service; and
Whereas all other Time Warner customers received this same Cable Plus Service (including CNN,
the Learning Channel, ESPN, and Comedy Central) free until the date of scrambling on Sept. 12,
1994; and
Whereas legal proceedings in the State of New York have found unacceptable the practice of a
cable operator's charging subscribers who ordered a similar service (events from Madison Square
Garden) for that service while that service remained unscrambled so that other subscribers of the
same system continued to receive the service without charge; and
Whereas legal proceedings in the State of New York required the cable operator to refund to all
customers who had paid for the abovementioned programming from Madison Square Garden all
monies collected for the service during the entire period before the date when the channel was
finally scrambled;
Now therefore, the Ithaca City Cable Commission calls on Time Warner Cable immediately to
refund $1.74 per month, prorated for partial months, to all customers who were charged for this
service prior to Sept. 12, 1994, the date of scrambling.
•
671
CITY OF ITHACA
108 East Green Street
Ithaca,New York 14850
The Cable Telephone: 607-272-3081
Commission Fax: 607-272-7348
Resolution Passed Unanimously by the Ithaca City Cable Commission October 25, 1994
Whereas Franchise Fees in excess of 5% are in violation of the federal Cable
Act of 1984 (622 (b)--unrevised in 1992); and
Whereas, the City of Ithaca charges Time Warner Cable a 5 percent franchise fee on gross city
revenues as allowed under the law; and
Whereas the term'franchise fee' in the case of any franchise in effect on the date of the enactment
of this title [Cable Act of 1992], does not include payments which are required by the franchise to
be incurred by the cable operator for public, educational, or governmental access facilitiesi1
Whereas Time Warner Cable has been charging City of Ithaca customers $1.26 per month for a
"P.E.G. Access Franchise Fee" since the week of July 11, 1994, and
Whereas the so-called "P.E.G. Access Franchise Fee" is cannot legally be charged as a franchise
fee; and
Whereas Time Warner Cable's General Manager Raymond McCabe was publicly informed that
this charge is not a "Franchise Fee" by Assistant Deputy Director of the New York State
Commission of Cable Television Steven Shaye at the Ithaca public hearing on cable television held
in Common Council Chambers on July 13, 1994, and televised on Channel 53; and
Whereas Time Warner Cable has taken no voluntary action to correct this situation;
Therefore the Ithaca City Cable Commission calls on Time Warner Cable to refund this so-called
"franchise fee" in full to each City of Ithaca subscriber that has been charged this "franchise fee"
in excess of the amount of franchise fee allowed by federal law; and
Be it further resolved that Time Warner Cable will desist from listing P.E.G.Access Franchise Fee
on its bills to city subscribers.
'Pike & Fisher's Cable Act: Law and Legislative History, p484
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CITY OF ITHACA
108 East Green Street
Ithaca,New York 14850
The Cable Telephone: 607-272-3081
Commission Fax: 607-272-7348
Resolution Passed Unanimously by the Ithaca City Cable Commission October 25, 1994
Whereas the Ithaca City Franchise calls for Time Warner Cable to maintain or replace Access and
local origination equipment in a manner consistent with Good Operating Practice; and
Whereas Good Operating Practice has a specific definition in the context of governmental and non-
governmental contracts and is an accepted trade phrase, and
Whereas Good Operating Practice for all equipment includes, at minimum:
1)For each piece of equipment, in accordance with the recommendations of the manufacturer if
available, determining acceptable tolerances for replaceable parts and setting up a regular
maintenance and inspection schedule;
2)Adhering to the regular maintenance and inspection schedule,including preventative maintenance
procedures and regular replacement of replaceable parts that fall outside acceptable tolerances;
3)Setting up a system to check adherence to the regular maintenance schedule, such as posting this
schedule and requiring the inspector or maintenance worker to initial and date it on completion
of each scheduled maintenance procedure or inspection; and
4)Review of the initialed maintenance/inspection schedule or equivalent procedure by management
on a regular basis to assure adherence to the schedule.
5)Replacing equipment that can no longer be brought into acceptable tolerances because of the
unavailibility of standard replacement parts or because advances in equipment design dictate
replacement.
Whereas the two items marked "refurbishment" that TWC has charged to the 1994 access capital
equipment budget (2% funds) represent equipment maintenance procedures involving the
replacement of replaceable parts that have been analyzed and found to be beyond acceptable
tolerances, and
Whereas standard replacement parts were available and used for these replacements; and
Whereas the replacement of worn parts with standard replacement parts on a predetermined
schedule or when they are analyzed and found to deviate from original manufacturer's
specifications beyond acceptable tolerances falls within the normal definition of Good Operating
Practice;
Therefore the Ithaca City Cable Commission calls on Time Warner Cable to abide by its repair
responsibilities under the Franchise agreement and to refund the amounts charged for the two
items of "refurbishment" to the 2% capital equipment fund; and
Furthermore, the Ithaca City Cable Commission calls on Time Warner Cable to refrain from
charging equipment "refurbishments" or this sort to the 2% funds in the future.