HomeMy WebLinkAbout1989 Cable Franchise Agreement Information 1%./ 1%./
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CITY OF ITHACA
100 EAST GREEN STREET
ITHACA, NEW YORK 14850
OFFICE of TELEPHONE: 272-1713
CITY ATTORNEY
CODE 607
M E M O R A N D U M
TO: John C. Gutenberger, Mayor
Ben Nichols, Alderman
Cia e Commission Members
FROM: Ra Nash, City Attorney
DATE: January 5, 1989
RE: Enforcement of City Cable Franchise
In response to the question raised at last night' s Common Council
meeting regarding this issue I have reviewed the Franchise Agreement.
Section 24. 9 of this Agreement provides as follows:
24.9 The Mayor or the Cable Commission shall be
responsible for the continuing administration of this
Franchise. Such designation cannot be changed without
prior written notification to ACC.
I would note that an Access Advisory Board is provided for under
Section 14. 9 of the Franchise Agreement. It should be noted, however,
that this Advisory Board "shall review and monitor all access policies
and procedures but will remain advisory in nature. " Also, the Cable
Commission can act in this Board' s place at any time.
The Common Council appears to only become involved in Franchise
Agreement administration under the "Breach" sections 22 .1. Here,
Common Council makes a determination as to whether a violation of the
Franchise occurs after a public hearing and a fact-finding report by
an impartial person.
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cc: Thys Van Cort, Planning Director
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Resolution of the Common Council Establishing an Advisory Committee on Cable Television
The Mayor shall appoint an advisory committee on,cable television. The c6mnittee
shall consist of five local residents, three of Whom shall be required to live in the
City of Ithaca, and shall include at least one trained accountant and one electronics .
engineer.
The Mayor shall appoint the five members so that one term shall expire each year,
so that one appointment will be made each year after the initial group of five shall
be selected.
The duties of the committee will be to herir and review citizens' complaints and
suggestions regarding cable television service; to advise the Ceracche Television
Corporation regarding access to the cable television system by local individuals,
groups, and public bodies; and to supervise the preparation of the annual report
of the television corporation to the Co=on Council. They shall also make recommenda-
tions to the Common Council concerning changes to be incorporated in the future
renegotiation of the cable television franchise.
Carried
-7- February 24, 1975
i
Alderman Saccucci commented I only meant to stress only when it deals with a city
;} wide issue. Before I begin to speak, I want to• stress that this is not my feeling,
h it is merely the feeling of the people which I represdnt.
Aside from the several telephone calls that I,have-received from several local
'f citizens, I also have a petition from some local residents, objecting to the cable
rate increase of $5.50 per month, requested by the•Ceiacche Television Corporation.
These residents claim, that the present cable .ratd' of 44.50 per month, isnot
j even justified to be paid today, since the television corporation has neverproduced
1, the 3 channels previously promised, namely: Buffalo _Scranton and Toronto station
but merely supply the .viewers with only repeats iiia Ration duplications. These
residents feel, that they have been paying for.services that they have never received,
therefore, Mr. Mayor, they are asking the Corporation to provide the public with the
above mentioned channels before they can even begin to'..consider any rate increase.
May I also add, that the cable rate increase requested by the Ceracche Television
Corp. is being asked, when several senior citizens:6f' this ,community, were contem-
plating on asking the Corporation, for a special cable 'rate.. Therefore, on their.
CC behalf, I am asking the corporation to consider their request,
aIn view of this petition, I don't see how Mr. Mayor; I can support the proposed-
_ Q resolution (local law) amendment..
Alderman Dennis felt that this should be tabled until the regular March Common
Council meeting. He felt everyone should be here to vote on it.
By Alderman Dennis: seconded by Alderman Saccucci
RESOLVED, That Local Law No. 7 be tabled.until the 'ext regular March Common Council
meeting. - -
AYES: 8 - Boothroyd, Boronkay, Dennis, Jones, Meyer, Nichols, Saccucci, Spano'
NAYS: 1 - Gutenberger
ABSENT: 3 - Barber, Hamlin, Slattery
Carried
By Alderman Nichols: seconded by Alderman Spano
Resolution of the Common Council Establishing an Advisory Committee on Cable Television
The Mayor shall appoint an advisory committee oni cable television. Tlie committee
shall consist of five local residents, three of whom shall be required to live in the
City of Ithaca, and shall include at least one trained accountant and one electronics
engineer.
The Mayor shall appoint the five members so that one term shall expire each year,
so that one appointment will be made each year after the initial group of five shall
be selected.
The duties of the committee will be to hear and review citizens' complaints and
suggestions regarding cable television service; to advise the Ceracche Television
Corporation regarding access to the cable television system by local individuals,
groups, and public bodies; and to supervise the preparation of the annual report
of the television corporation to the Common Council. They shall also make recommenda-
tions to the Common Council concerning changes to be incorporated in the future
renegotiation of the cable television franchise.
Carried
Alderman Jones asked why the number of people on the committee was five as opposed
to seven.
Alderman Nichols said_ if a committee is large it is very difficult to have any
effective general meetings. This committee would be able to call upon any number
of other people for advice and suggestions, a committee of more that 5 would be so
unwieldy.
On a motion the meeting was adjourned at 5:55 p.m.
oseph A. Rundle, City Clerk Edward J. nley, 2+4 or
r D R A F T
THE CABLE COMMISSION
WHEREAS, the City of Ithaca has adopted a Cable Ordinance regulating
Cable Communications whichASta @9 the +y� s"
grate
ate,
WHEREAS, the Franchise Agreement between the City of Ithaca and
American Community Cablevision states in Section 24.9 "The Mayor
or the Cable Commission shall be responsible in the continuing
administration of this Franchise", now therefore' be it
RESOLVED, That the present "Advisory Committee on Cable Television"
established by resolution of Common Council on February 24, 1975
be renamed "The Cable Commission ", and be It further
RESOLVED, That the Commission shall consist of five�,members appointed
by the Mayor with the approval of Common Council each of whom
shall serve a term of five years, the term of one member 944tH expirlkt)
each year.!' At the first meeting of each year they Commission shall
a Chair and a Secretary ,shall adopt a schedule
a' li of monthly meetings. Copies of the minutes of each meeting shall
be transmitted to the Mayor and Common Council, and be it further
u
RESOLVED, That the present members of the Advisory Committee
on Cable Television shall be the first members of the Cable Commission *,
�r
RESOLVED, That the regulatory powers under the Cable Ordinance
shall be vested in the Cable Commission
except those specificaly delegated to Common Council under the "Breach"
Section 22.1 of the Franchise Agreement and the "Determination of
Breach" Section 5.8 of the Cable G.-,j
CR-B E �-
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* The present .members of the Committee:
Term Expires
Christopher Heegard 1989
William Demo 1990
Ip Thomas Terrizzi 1991
Janice Fev4wwe+t S t'� b 1992
Richard Herskowitz 1993
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CITY OF ITHACA
1OEI EAST GREEN STREET
ITHACA, NEW YORK 14850
OFFICE OF TELEPHONE: 272-1713
CITY ATTORNEY CODE 607
M E M O R A N D U M
TO: Richrash,
th, Chairman of Charter and Ordinance
FROM: Ral City Attorney
DATE: January 19, 1989
RE: Cable Commission Resolution
I am herewith enclosing a proposed Resolution on this matter
in accordance with Alderman Nicholls suggestions.
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enclosure
"An Equal Oppo,tumtq Em;,'<r�er v than Affirrnative Action Program"
RESOLUTION REGARDING CABLE COMMISSION AND
ADMINISTRATION OF CABLE FRANCHISE ORDINANCE
Whereas, the City of Ithaca did establish by resolution of
the Common Council an "Advisory Committee on Cable Television"
consisting of five persons on February 24, 1975, which Committee
continues to meet and operate under the name of "The Cable
Commission," and
Whereas, the City of Ithaca has recently entered into a new
cable television franchise agreement with American Community
Cablevision, which provides in Section 24 . 9 thereof that "the
Mayor or the Cable Commission shall be responsible for the con-
tinuing administration of this Franchise, " and
Whereas, the City of Ithaca has also recently adopted a
"Cable Communications Ordinance, " which provides in Section 64. 51
thereof that the authority under said Ordinance "shall be vested
in the Common Council or its designee to provide day-to-day
administration and enforcement of the provisions of this Ordi-
nance and any Franchise granted hereunder, and to carryout the
City' s responsibility with regard to cable communication, " and
Whereas, Common Council desires to officially rename the
"Advisory Committee on Cable Television" and designate it under
said Ordinance, now, therefore, it is hereby
RESOLVED, that the "Advisory Committee on Cable Television"
established by resolution of Common Council on February 24, 1975
is officially renamed "The Cable Commission. " - The Cable Com-
mission shall continue to have five voting members, who shall
serve five year terms. Present members of the "Advisory Com-
mittee on Cable Television" shall continue as members of "The
Cable Commission" through the balance of their terms. New
members shall be appointed by the Mayor with the approval of
Common Council. One member of Common Council, appointed in the
same manner, shall also serve as a non-voting member of The Cable
Commission. At the first meeting of each year The Cable Com-
mission shall elect a Chair and a Secretary and shall adopt a
schedule of monthly meetings. Copies of the minutes of each
meeting shall be transmitted to the Mayor and Aldermen; and it is
further
RESOLVED, that the The Cable Commission is hereby designated
to provide day-to-day administration and enforcement of the pro-
visions of the "Cable Communications Ordinance" and any Franchise
granted thereunder, and to carryout the City' s responsibility
with regard to cable communications pursuant to Cable Com-
munications Ordinance Section 64. 51.
OF ITFlq� � C4 `
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•• •°•� FEB 0 2 1989
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CITY OF ITHACA
1O EAS-T GREEN STREET
ITHACA, NEW YORK 14850
OFFICE OF TELEPHONE: 272-1713
MAYOR CODE 607
M E M O R A N D U M
TO: Common Council
Cable Commission /
Ralph Nash, City Attorney 1
FROM: Mayor John C. Gutenberger ,
DATE: February 1, 1989
RE: City of Oswego - Cable Resolution
Enclosed for your information is a resolution passed by the
Common Council of the City of Oswego concerning cable television.
Enc.
. . . Celebrating . . . . * 1888 - 1988
s
"An Equal Opportunity Er,t vrth nn A!!nratrv�Ar;tinn Program"
CHU of Osfue'so
0' eivego, �Nrfn 1jork 13126
JOHN T. SULLIVAN, JR. (315) 342.5600
MAYOR Ext. 48
January 18 , 1989
U. S. Representative Frank Horton
Room 2229, Rayburn Building
Washington, D.C. 20515
Dear Congressman Horton:
Enclosed please find a copy of the City of Oswego Common Council Resolution
passed on January 9, 1989, wherein the Council agreed to support the
cable television subscribers' Bill of Rights. The Resolution also calls
for the re-regulation of the cable industry and for the amendment of the
cable Deregulation Act of 1984.
The City of Oswego is currently commencing renegotiation of an expiring
ten-year franchise agreement with Paragon Cable. I have appointed a
citizens' advisory committee to review the franchise agreement and to
obtain citizen input in regard to renewal thereof. It is clear to me
that the citizens of Oswego are largely dissatisfied with the quality
of their cable television system, and it is extremely difficult, under
the cable deregulation statute, to negotiate on such matters as content
of the system, number of channels, local access, quality of local origination,
and other matters since the federal law allows a virtual monopoly by
the cable company, with no authority locally to control either rates,
or the number and variety of cable offerings.
By this Resolution, the Oswego Common Council joins a growing number
of communities who are voicing their displeasure with the current state
of affairs, and it is our hope that Congress will take this matter up
at the earliest possible moment.
Thank you for your understanding.
Very rely ypurs i�
John T. Sullivan, . Jr•:�.
Mayor
JTS:jb �
Enclosures
One hundred fortieth anniversary
1848.1988
Resolution No. 198-i
CITY OF OSWEGO,NE6.�ORA
Motions, Resolutions and Notices
By AldermarL
t
�. WHEREAS, the Cable Deregulation Act of 1984 removed the rights of P
states and municipalities to regulate the rates charged by cable companies,
and the channels carried within a franchised area; and
WHEREAS, the service provided by the cable company is a public f
convenience and necessity like any other utility; and
WHEREAS. since deregulation with the merging of cable companies and the
vertical and horizontal integration between cable companies and program
suppliers a virtual monopoly has been created whereby competing technologies
i.
are rendered incapable of providing effective competition; and P
WHEREAS, citizens and municipalities have historically held the right to
y ,
j
regulate and oversee the rates and services of public utility monopolies;
j NOW, THEREFORE BE IT RESOLVED, the City of Oswego, New York,
supports the proposal for the reregulation of the cable industry and allowing
j
alternative technologies to .effectively compete to insure the free flow of
information we support the Cable Subscriber's Bill of Rights. (see
t
attachment)
The City of Oswego respectfully requests Congressional enactment of
legislation which will enable local municipalities to regulate cable companies
and allow alternative technologies.to compete effectively.
AYES AND NAYS CALLED:
AYES NAYS
Alderman Mercier 3013 3013 Planning r
Recommended by 8 b Develnnmenr
j Alderman Bradshaw 1244 1244 Committee
Alderman Tesoriero t. 3202 3202
ACvell1878 1878 Halpin Chaimlall
Alderman Halpin 2448 1 2448
Alderman Ri io 2512 2512 1 certify that the foregoing resolution was duly passed
Alderman Gardner 2248 2248 the Common Council on the 9th
... Alderman Johnson 3248 3248 day of_
TOTAL 191 < < . h
Adopted Lost le
Approved January 10, 198-2— Ma)
JOHN LLIVAN,JIL `
Resolution prepared by Office for the Common Council PAGENO
Rev.12157 AJ
• �.J N. Y. E3 C.
Oswego County Chapter 62 Eisenhower Ave.
New York State Cable Awareness Assoc. Oswego, N.Y. 13126
CABLE SUBSCRIBER BILL OF RIGHTS
This petition is a CALL OF ACTION to the 101st Congress to re-visit the Cable Dere_ulation
Act of 1984 and amend it so as to bring effective competition in and out of cable areas.
We believe the cable systems are operating without effective competition and are therefore
afforded monopoly status by the Deregulation Act of 1984.
We believe that alternative technologies should be. given enhanced status to effectively
compete in cable areas.
We believe that where a single cable system exists without 25% penetration by alternative
technologies (dishes, wireless, pc, smaty telco, etc.) cities should be allowed oversight of the
rates, channels, and service in a "public utility status".
We believe that where a cable system has public utility status the operator should not have a
financial interest either direct or indirect in more than S of the channels selected for the
system.
We believe that the subscribers 1st Amendment rights are of greater concern than the cable
companies therefore all editorials are issues of controversy initiated over the cable by the
cable owner or cable industry and are answerable on an equal access basis.
We believe that all local broadcast, and C-span 1 and 2 should receive first priority placement
on cable channels.
We believe that multiple hook-ups to cable by a subscriber in their home should not cause an
additional fee (like telephone jacks).
We believe that cable programming should be made available on a nondiscriminatory basis to
alternative technologies through third party distributors for competitive delivery.
We believe that undisclosed gifts of cable programming and services to appointed or elected
officials constitutes a bribe and should be illegal.
We believe that cable systems operating as "public utility" status must spend a designated
percentage of profits to expand their area of services into unserved areas rather than to buy
other systems or invest in ownership of channels.
We support the Association of States Attorney Generals investigation into antitrust activities
by cable and believe this should be investigated by the U.S. Attorney General and the Federal
Trade Commission.
. r
s
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ApORp7E0�
CITY OF ITHACA
106 EAST GREEN STREET
ITHACA, NEW YORK 14850
OFFICE OF TELEPHONE: 272-1713
CITY ATTORNEY
CODE 607
February 3 , 1989
Kathleen Poole Adamik, Claims Examiner
Miscellaneous Professional Liability
National Union Fire Insurance Company
of Pittsburg, Pa.
70 Pine Street
New York, New York 10270
Re: Insured: City of Ithaca
Claimant: American Television and
Communications Corp.
File No. : 027-022366-POL 1991316
Dear Ms. Adamik:
I am in receipt of your letter of January 26, 1989, request-
ing payment in the amount of $987. 35 for legal fees incurred in
this matter. Kindly provide us with a copy of the itemized bill
or bills for services rendered and cost incurred so that our
Budget and Administration Committee can fully review this
request.
Thank you for your attention to this matter.
Yopph .
ryuly,
46t'
Ra Nash
Ciorney
RWN:blh
cc: Joseph Spano, Controller
Raymond Schlather, Chairman of
Budget and Administration Committee
"An Equat Opportunity Emplowith an Affirmative Action Program"
National Union Fire Insurance Company
of Pittsburgh, Pa.
EXECUTIVE OFFICES REPLY TO
70 Pine Street P.O. Box 2324
New York, N.Y. 10270 Peck Slip Station
212/770-7000 New York, N.Y. 10272
Direct Dial: 212/770- 3071
January 26, 1989
City of Ithaca
108 East Green Street
Ithaca, NY 14850
Attention: Ralph W. Nash, Esq.
Re: Insured: City of Ithaca
Claimant: American Television and Communications Corp.
File No. 027-022366-POL 1991316
Dear Mr. Nash:
A Stipulation of Dismissal has been entered in the above-captioned matter.
Under the terms of the policy, the insured has a $10,000 deductible which
is applicable to indemnity and expense.
In accordance with the deductible obligation contained under the policy, we
hereby request that you issue a check in the amount of $987.35 payable to
National Union Fire Insurance Company for the legal fees incurred in this
matter. The mailing address is:
Miscellaneous Professional Liability Claims
P. 0. Box 2324
Peck Slip Station
New York, New York 10272
Attention: Melvin Bittle
This letter should be attached to your payment. We appreciate your
cooperation and expect to be receiving your payment shortly.
Sincerely,
Kathleen Poole Adamik
Claims Examiner
Miscellaneous Professional Liability
KPA:gbn-3
0263a
A Member Company of
American International Group,Inc.
24827 (9/88)
HINES & DENTES FEB
ATTORNEYS AT LAW
417 NORTH CAYUGA STREET
ITHACA,NEW YORK 14850
ROBERT J.HINES
AREA CODE 607
GEORGE M.DENTES
T73-6111
February 6, 1989
New York State Commission
on Cable Television
r
Attn . : Edward P. Kearse
Corning Tower Building
Empire State Plaza
Albany, New York 12223
Re : American Television & Communications Corporation
Approval of Cable Franchise Agreement
Dear Mr. Kearse:
I am enclosing herewith the original Affdiavit of Publication in
the above matter which gives notice that the Franchise Agreement
is on file with the Office of the Clerk of the City of Ithaca, as
well as the Commission on Cable Television.
Would you please advise me if you have all necessary documents for
review of the application of American Television & Communications
Corp.?
Very t3Zj4y yours ,
ROBERT J 'HINES
RJH/v
Enc .
cc : Ralph Nash , Esq. , City of Ithaca
Michael Withiam, Manager of ACC
AFFSPAVir cw M*6CATION
Tim'' ITuAcA JoTiRNAL
�< 1 .;t 1n..... ............................. berg dj% rA-ors, deposes
azd Y\1, t..Lt be .resides is Ithaca,, cfunt?' &Dd rate Ibfc-rez.`id and PLEASE TAKE NOTICE, that
American Community Cable-
thathe it ...Q.tga_ �..�.�...__.._. ..................._......__.�.... Television and Communica-
tions Corporation has filed
with the New York State Com-
Clf'.T= ITiACA *ovzsAL ! b4oi :a
.. Dtad.Lad Jlsbed_ mission on Cable Television irc
.__._ ] c _eM Tpp- -- application for approval of a
cable franchise agreement
_ in It�i'a ;Z t1 Of�Ch the a=eXed$a fteL - between Omerican Comm Y
. �'Jii nit Cablevision and the Cit
- of Ithaca. Copies of the
materials constituting the ap
COPY wu pablshed ice,said`pap-= ..._.........._.. plication are available for
«~ public inspection at the offices
of the New York State Com-
C_.� aL mission on Cable Television,
Corning Tower Building, Em-
pire State Plaza,Albany,New;
York 12223, and those of thea
,.._._
.................................!_....._.._..._._.._... City Clerk of the City of Ithaca,
108 East Green Street, Ithaca,!
New York during normal busi-
LLd thm Lie F--st or sa:d notice w&s CD tie ..�...�.__.... ness hours. Comments with
respect to the application may
be filed with the New York
&) of _�C_�c rJ.y �_ .-+ .......... 2CJLi Z.' State Commission on Cable
Television.
AMERICAN COMMUNITY
.. �_ :.........._...._.�. t State ISION
519 West State Street
Ithaca, New York 14850
_ Suba ib� LZL�1V4'c�L to 1=4=r &�lDC,_t�115 ...� ._..._._..----.... December 19,26, 1988
_ JEAN FORD ....�... osa-y Fwl>;c.
7 Notary Public, State Of-New York
No. 4654410
Qualified in Tompkins C.:,.,,,t
Co' remission expires Maar
yr -'
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CITY OF ITHACA
100 EAST GREEN STREET
ITHACA, NEW YORK 14850
OFFICE OF TELEPHONE: 272-1713
CITY ATTORNEY
CODE 607
CONFIDENTIAL MEMORANDUM
TO: Wiriaemo, Chairman of Ithaca Cable Commission
FROM: Rah, City Attorney
DATE: February 7, 1989
RE: Transformers and Cable Rates
Alderman Lytel advises that you are interested in a legal memo regarding
ACC' s recent announcement to place television translators on its property
and the rate structure adopted in the Franchise agreement.
Under Federal law, municipalities can regulate rates for basic cable service
only if it is determined that the subject area is one of "non-competition. "
Non-competition is initially determined by hypothetical signal coverage.
Upon a special proceeding before the FCC "non-competition" can also be
established by engineering data establishing lack of received over the air
signals consistent with evolving FCC standards.
The City of Ithaca is deemed competitive by reference to the hypothetical
signal coverage criteria. However, upon production of engineering testing
data, ACC did acknowledge before the FCC in a special proceeding that it
believed the City to have the right under FCC rules consistent with Federal
legislation to regulate rates. Additionally, ACC did agree in the Fran-
chise Agreement not to challenge the rate structure provided in the Fran-
chise Agreement for a period of three years.
The use of translators may change the situation in Ithaca to the extent that
three over-the-air signals may become available. Is ACC bound under the
Franchise Agreement to the rates therein provided for three years, even if
translators are providing three over-the-air signals?
It seems clear that under federal statutory and regulatory law, ACC would be
free to deviate from the rate structure at anytime that three over-the-air
signals are available in Ithaca. It is unclear whether the Franchise Agree-
ment would be violated by doing so, since the engineering situation holding
at the time of execution of the agreement would have changed. Also it is
not clear when a franchise provision can be enforced in contravention of the
Federal Cable Act. I do not believe that this precise issue was addressed
in contract negotiations.
RWN:blh
"An Equal Opportunity Emcl aOii;in Affirmative Action Program"
FEB
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CITY OF ITHACA
108 EAST GREEN STREET
ITHACA, NEW YORK 14850
TELEPHONE: 272-1713
COMMON COUNCIL CODE 607
February 22, 1989
Ms. Janet Streb
Chair, Ithaca Cable Commission
C/O Ciaschi, Dieters-Hagen, Schaufler, E Mickelson
Certifed Public Accountants
Terrace Hill
Ithaca, New York 14850
Dear Janet:
At your February meeting, I raised the matter of eligibility requirements
for senior citizens for the ACC monthly discount. As it now stands, ACC works
with the list of those seniors who have received a city property tax partial
exemption.
This formula is helpful to those who are property owners but does little
for those elderly who are not property owners and of more limited means.
Motivated by the fact that the senior citizen discount as agreed upon in our
franchise should be more meaningful than it presently is, I have explored other
senior discount formulas which I offer for the deliberation of your commission.
Margaret Harding, Administrator, Tompkins County Office for the Aging, has
provided me with the following information:
A) Telephone Company provides a senior citizen discount to those
who qualify for HEAP (Home Energy Assistance Program) .
Approximately 750 county residents of whom 250 are city dwellers.
B) Social Security Administration provides supplemental income
assistance (SSI) to needy elderly. Approximately 300 county
residents of whom 100 are in the city.
C) Medicaid recipients are already beneficiaries of SSI.
_ I believe that ACC should be called upon to accept a cable subscriber's
participation in HEAP and/or SSI as sufficient qualification for meeting the senior
cont'd. . . . . . . . . .. . . . . . . . . . .
"An Equal Opportunity Employer with an Affirmative Action Program"
-2-
citizen discount for monthly cable fees. It is only fair that ACC, as they raise
their base rates across the board in March 1989, give a meaningful discount, as
agreed in the franchise, to those who are most frail.
Thank you for your consideration.
Sincerell`y,
Sean Kil een
Alderman
cc: Ithaca Cable Commission
Mayor Gutenberger
Common Council
ACC General Manager
Margaret Harding, T.C. Office for the Aging
SK:bfp
Cable Commission Minutes--February 14, 1989
Present: William Demo, Richard Herskowitz, Tom Terrizi, Chris
Heila, Janice Streb, David Lytel representing City Council
Call to Order: 7:40p. m.
Minutes of 1/10/89 meeting approved.
Addition to agenda accepted--public comments to precede and
follow ACC report.
Acting Chairman's Report
Bill Demo discussed letter from Alan Cohen complaining about
a noisy transformer box outside his home. Mike Withiam stated
that ACC had responded to the complaint, found no problem, and no
more complaints had followed.
Oswego has passed the "Cable Bill of Rights, " and discussion
about a similar resolution to City Council in Ithaca was added to
the agenda.
Public Comments
Bill McCormack asked whether the Commission would meet with
Access Advisory Board applicants before selecting members, and
the Commissioners replied that they would decide on the basis of
the application letters. Bill requested that ACC be cited for
breach of the franchise. He also asked the Commission to press
ACC to publicize the existence of nine access and nine
unaffiliated commercial channels, and its terms for making these
available for use. Janice asked that Mike report on the company's
procedures.
David Lytel asked when government cablecasts would commence.
He also asked what the Commission could to to promote knowledge
of local origination channels.
ACC Report
New rates are going into effect March 1.
Mike asked the Commission to oppose the proposed application
of sales tax on cable service. It will add a 7% fee to consumers,
and the Commission should be looking out for their interests.
Stage Two of the System Rebuild went into effect the night
before.
The public access equipment was purchased at lower rates
than anticipated, so $3600 remains unused. ACC will hold on to
this money and wait to see what is needed after the equipment
arrives.
The new access facility is on schedule. The temporary studio
opened on February 1. Physical construction will continue through
March.
On the local origination channels: Ithaca College and the
Tompkins County Library have been invited to move to these
channels, but are not yet interested.
On government coverage: the portable switcher has not yet
arrived to permit acceptable coverage. Mike claimed that ACC had
till June 1 to comply, but David Lytel questioned whether an
extension had been granted by Council past March 1.
The Commissioners and Mike Withiam discussed the itemization
of the franchise fee on the bill, which Chris felt created bad
will towards the city, but could not be prevented.
Janice asked for the ACC report agenda in advance, and Mike
agreed, asking also for suggestions as to what he should address.
Mike said that there was no rate structure for purchasing
use of the commercial LO channels, but that ACC will negotiate
this. The company generally offers time on Channel 7 to
interested parties.
The Commission discussed the resolution opposing sales tax
on cable. Bill McCormack thought that premium channels only
should be taxed.
Public Comments
Ben Nichols asked that ACC speed up its access studio
construction.
Bill McCormack stated that the mention of the franchise fee
in the bill was a spiteful and gratuitous act, and Council should
have been warned. Consumers should be made aware of the market
value of the land the city has given to ACC for stretching
cables.
Sean Killeen asked about the new rate schedule and the
senior citizen discount. Mike explained that the 279 people
listed by the city as senior citizens would receive notification
of this discount. In discussion, the Commission felt that many
senior citizens, particularly renters, are falling through the
cracks. This problem will be added to the March agenda, and a new
method of determining senior citizen status, to be administered
by the city, should produce a new list, which Mike agreed that
ACC would abide by.
John Efroymson raised the issue of why there is no discount
for those who own their own cable box. In the franchise, ACC
agreed people could own a box, but now give them no discount.
Chris Heila said there was not much the Commission could do.
In response to Bill McCormack's question about the absence
of a dated equipment order list, Mike said that the orders were
placed two weeks earlier, preceded by a bidding process. Mike
will provide copies of the invoices to the Commission.
Selection of Committee Chairperson and Vice-Chairperson
Janice Streb was unanimously elected chair, and Bill Demo Vice-
Chair of the Cable Commission. The secretarial position will
rotate among the members of the Commission.
Selection of Access Advisory Board Members
INSTITITUTIONAL REPRESENTATIVE:
Marilyn Rivchin, Cornell University.
Louis Mezgar, Tompkins County Public Library.
The Commission unanimously approved these two nominees for
institutional representative. Mike Withiam objected that Marilyn
Rivchin does not represent Cornell University. Richard Herskowitz
pointed out that she is a video production lecturer at Cornell,
and that the position did not require an officially-appointed
representative.
NON-CITY REPRESENTATIVE:
Anne Sevocco, Newfield.
Anne was unanimously selected. The other candidate was Robin
Palmer of Cayuga Heights.
CITY REPRESENTATIVES:
Mary Jo Dudley and John Efroymson.
Mary Jo Dudley received 5 votes, John Efroymson received 4 votes,
and Bill McCormack received 1 vote. The other candidate was Floyd
Johnson.
CITY GOVERNMENT REPRESENTATIVE:
Richard Herskowitz, Cable Commission.
A non-voting member, Richard was also unanimously voted as
chairman of the Access Board. Mike Withiam objected that it was
inappropriate for an "ex officio" member to be a chairman, but
Ben Nichols stated that it was Council 's intention to have the
Commission representative serve as Chair, in order for it to have
more clout.
Richard promised that the board would meet in three weeks. It was
suggested that the meeting be in the access facility and
cablecast.
Cable Bill of Rights
Deferred to next meeting.
Status of Public Access Studios
The issue discussed was whether ACC was in violation of the
franchise with its new temporary studio.
Tom Terrizi called the space "inadequate. " John Efroymson said
it was not a studio, but just a room. There is no space to move
cameras and for sufficient lighting. Richard Herskowitz said that
having the director and switcher in the same small room created
an impossibly sloppy situation for cablecasting. Mary Jo Dudley,
Jim Ferwerda, and Bill McCormack all shared this view. Bill
stated that since December 5 there had not been a studio under
the terms of the franchise, which represented a serious breach.
Mike restated his expectation that the new studio would be
completed by late April.
The hiring of a third access employee was discussed, and Mike
stated his opinion that the deadline was shifted to June 1, with
which David disagreed.
Chris reminded the Commission that it had cited ACC for being in
violation of the franchise in early January, but had decided not
to take action in order to observe developments with the access
studio in later months. Now that the temporary studio was in
operation, the issue was: is this a studio, and, if not, should
action now be taken?
The Commission unanimously voted the following resolution :
The Cable Commission finds ACC to be in violation of the
franchise agreement for failure to proide adequate public access
facilities under Section 22. 2 of the franchise.
ACC will receive a notice of the violation from the City Attorney
and will have 30 days to correct it.
Commissioners also stated that if a new access person was not
hired by March 1, a franchise violation will be cited for this as
well. Mike said that the deadline was extended to June 1, and so
Ralph Nash will be consulted.
Sales Tax Issue
Chris suggested that we pass this issue to the Council without a
recommendation. Richard Herskowitz thought that if we wished to
support a notion of cable as a public service, we should keep it
tax-exempt. Bill McCormack agreed, but believed that premium
services could still be taxed. The Commission voted not to make a
recommendation to Council--3 in favor, 1 opposed, and 1
abstaining.
WAER Reception
Bill Demo asked why WAER was no longer available, and Mike
explained that it was difficult to receive.
The meeting was adjourned.
Com.
y.PA0 all
Apol�A?ED
CITY OF ITHACA
10B EAST GREEN STREET
ITHACA, NEW YORK 14850
OFFICE OF TELEPHONE: 272-1713
CITY ATTORNEY CODE 607
February 24, 1989
Michael Withiam, General Manager
American Community Cablevision
519 West State Street
Ithaca, New York 14850
Re: Public Access Facilities
Dear Mike:
Pursuant to the resolution of the Ithaca Cable Commission
adopted at its February 14, 1989 meeting, I am hereby formally
notifying you that the Cable Commission finds American Community
Cablevision to be in violation of the franchise agreement for
failure to provide adequate public access facilities pursuant to
S 22. 2 of the franchise agreement. The basis for this finding is
the determination that the current temporary access "studio" is not
a satisfactory studio for public access.
I am further advising you that you have thirty ( 30) days from
the receipt of this notice to correct this violation. If this
violation is not corrected in thirty days, the City will proceed
to collect liquidated damages as provided for under § 22 . 2 of the
franchise agreement.
Thank you for your attention to this matter.
Yours very truly
Ra ph Nash
City A torney
RWN:blh
cc: Bill Demo, Cable Commission Chairman
An Equal Opportunity Ern p! Affirmative Action Proaram"
CABLE COMMISSION MEETING MAR U 8 1989
Tuesday, March 14, 1989, 7;30 p.m. ,
Common Council Chambers
_ s Mar _il 14� 1'74 '71 __ _ �_ Ji�7uli !1i i .7;'1"r,. 9
n .1_ v.._ L .� 1 ._ _ .J ._
�r it w .'. •_1 1 L iTl C'= L i 1 1 IJ L
�. Ap-r :. i minutes
�p_i :=gnu - -f: -
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AC:'.= r ep cIr t
6. F'ub i i 1_ c comment s
7. AI_cess Advisory Board Report
S. Senior- citizens disccaants
Converter box and remote control ownership
10. Other business
1 1 . I;d.jc iur nrrent
0-c
By Alderperson Nichols: Seconded by Alderperson Killeen
WHEREAS, the Cable Deregulation Act of 1984 removed (with limited
exceptions) the rights of municipalities to regulate the rates
and services of cable companies, and
WHEREAS, cable companies are attempting to subvert even the
limited exceptions provided under the Act, and
WHEREAS, the services provided by the cable company is a public
convenience and necessity like other utilities, and
WHEREAS, once franchised most cable companies are effectively
monopolies, operating without effective competition, and
WHEREAS, municipalities have historically held the right to
regulate and oversee the rates and services of public utility
monopolies; now, therefore, be it
RESOLVED, That Common Council of the City of Ithaca, New York
urges Congressional action to restore the right of a municipality
to regulate the rates and services of a cable system where such a
system exists without 25% penetration by another cable company or
alternative technologies, and be it further
RESOLVED, That copies of this resolution be transmitted to
Representative McHugh and Senators D'Amato and Moynihan.
Ayes (9) - Schlather, Killeen, Johnson, Booth, Lytel,
Cummings, Peterson, Hoffman, Nichols
Abstention (1) - Romanowski (conflict of interest)
Carried
CORRECTION in 5th WHEREAS:
Municipalities changed to "Public Service Commission"
~+
�
Access Advisory Board Members
2 . D Marilyn Rivchin Institutional Access User
Center for Performing Arts
430 College Ave
Ithaca, New York
254-2700
2' ) Lajos Mezgar institutional Access User
102 Park Lane
ithaca, New York
272-6066 (H) 272-4555 (W)
3' ) Anne Sevccco aka Annie Ball Non Cit/ Membsr
#52 Meaddowbrook Park
Newfield, New York 14867
273-8851
. 4' ) John Efroymson City Residont Member
� 420 N. Cayuga Street
� Ithaca, New York 14850
|
� 272-1034
�
� 5. ) Mary jo Dudley . City Resident Member
�
/ 312 First Street
Ithaca, New York 14850
8 273-5255
-
G. ) Richa-i Herskowitz Cable Commission Member
ACC
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?, cc: Cable Commis-:-ln �
Thys Van Com Director of Planning
AC ' Ralph Nash, City AttornWCEIVED MAR 20 1989
AMERICAN COMMUNITY CABLEVISION
March 17 , 1989
Mr. John Gutenberger, Mayor
City of Ithaca
108 E. Green Street
Ithaca, NY 14850
Dear. John:
You may have read the news last week that Time Inc. plans to
merge with Warner Communications Inc. Time Inc. is the majority
stockholder of American Television and Communications Corp.
(ATC) , and, as .you know American Community Cablevision is an ATC
system. Warner will become a wholly-owned subsidiary of Time,
which will then be known as Time Warner Inc.
I am pleased to share this news with you because it is an
exciting development for us for a number of reasons . First of
all , the new company will have great financial strengths , since,
unlike many recent business combinations , the Time/Warner
alliance is a friendly merger in which no new debt will be
created. In addition, Warner is the country' s pre-eminent
producer of films and television programming, which will add a
considerable creative resource to our parent company. This will
result in a stronger ACC which will continue to provide the
highest quality entertainment and information services to our
community.
I can assure you that Time Inc. ' s interest in ATC as well as
ATC' s interest in ACC will not be affected by the merger. No
change will occur in the ownership of the cable franchise, which
will continue to be held by ATC. Neither will there be any
change in ACC management because of the merger.
Though no formal action under our franchise is required as a
result of the merger, I wanted to be sure you were aware of it.
I'm certain you will share our enthusiasm over this news , which
we believe is exciting both for ACC and the people we serve. I
would be happy to answer any questions you may have.
Sincerely,
Michael M. Withiam
General Manager
519 West State Street Ithaca,New York 14850 607-272-3456
CITY OF ITHACA
10B EAST GREEN STREET
ITHACA, NEW YORK 14850
OFFICE OF TELEPHONE: 272-1713
CITY ATTORNEY CODE 607
CONFIDENTIAL MEMORANDUM
TO: Janice Fornwalt, Chairman of City Cable Commission
FROM: Ral sh, City Attorney
DATE: March 24, 1989
RE: Public Access Facilities
I have reviewed the response made by Mike Withiam to my letter
of February 24, 1989. I think it makes sense to particularize the
deficiencies in the current access facilities. Do you have such
a particularized list?
RWN:blh
f
"An Equal Opportunity Employer with an Affirmative Action Program"
ACC
u JM AR a 2 1989
AMERICAN COMMUNITY CABLEVISION
March 20 , 1989
Mr. Ralph Nash, City Attorney
City of Ithaca
108 E. Green St.
Ithaca, NY 14850
RE: Public Access Facilities
Dear Ralph:
This letter is in response to your February 24 , 1989
communication notifying American Community Cablevision that the
City of Ithaca Cable Commission finds ACC in violation of section
22. 2 of the franchise agreement.
According to your letter the City finds that we are in violation
because the current temporary access studio is not a satisfactory
studio for public access . We do not believe that our temporary
access studio is inadequate , and therefore we do not believe we
are in violation of our franchise. Further, we cannot possibly
respond to such a broad finding and hereby request that the City
provide ACC with a list of specific areas of concern. We will
address these issues once that list is received.
ACC continues to be on schedule for an April 30th completion of
our studio renovations and the installation of the equipment
called for in our franchise agreement. We have made every
possible effort to minimize the impact of construction on daily
operations of the access facility. This date was communicated to
the Cable Commission at the December meeting, as were our plans
for using a temporary access facility.
It is important to note also that studio productions have
continued throughout the period of renovation of our access
facility. While we readily acknowledge that the current facility
is not as elaborate or as easy to use as the old facility was or
519 West State Street Ithaca, New York 14850 607-272-3456
the new facility will be, production of programs has nonetheless
continued on a regular basis , through no small effort on the part
of our staff and the generally cooperative attitude of the
facility users.
Should you have any other questions or concerns , please let me
know.
nce ,
is ae M. ithiam
General Manager
MMW/fw
cc: Janice Fornwalt, Chair
Ithaca Cable Commission
MAR 1 6 198y
ACC
AMERICAN COMMUNITY CABLEVISION
March 13 , 1989
Mr. Ralph Nash, City Attorney
City of Ithaca
108 E. Green St .
Ithaca, NY 14850
Dear Ralph:
I wanted to give you a quick update on the status of the
implementation of the senior citizen' s discount . The
implementation of a computer billed senior citizen' s discount was
scheduled for March 1 , 1989. Unfortunatley, a programming error
resulted in the discount not being credited to senior citizens
for March. We have corrected that error and the billing will
start with the April bills .
Senior citizens who qualify for a real property tax exemption in
Ithaca will be afforded this discount and ACC is in the process
of contacting those affected and explaining the changes to their
billing notice as well as issuing a refund check retroactive to
January 215 1988. Those eligible should receive this
notification and their checks during the next two weeks .
Should you have any questions , please feel free to call me .
Sincerely,
ichael M. Withiam
General Manager
MMW/fw
cc: John Gutenberger, Mayor
Common Council
519 West State Street Ithaca, New York 14850 607-272-3456
f
���� s MAR 2 9 1989
.�
��q�D1tA7E0��
CITY OF ITHACA
10B EAST GREEN STREET
ITHACA, NEW YORK 14850
DEPARTMENT OF TELEPHONE:272-1713
PLANNING&DEVELOPMENT CODE 607
H.MATTHYS VAN CORT,DIRECTOR
MEMORANDUM
T0: Ralph Nash 6V-1FROM: H. M. Van Cort /4�z�
RE : Cable Franchise
DATE: March 24, 1989
Attached please find a copy of a privacy notice I received
from American Community Cablevision. Would you please advise me
as to whether this notice is in compliance with the provisions of
the franchise .
My recollection is that in one of the earlier drafts the
company was required to receive affirmative notice from a
subscriber if they wished to use the subscribers name. This may
have changed in later drafts .
Thanks for your help in this matter.
HMV/pt
O—a—RNCABLE .HMV
"An Equal Opportunity Employer with an Affirmative Action Program"
Subscriber Rights AMERICAN COMMUNITY
As previously described, federal law limits the CABLEVISION
type of personally identifiable information a PRIVACY NOTICE
cable system may collect and the circumstances
under which it may be disclosed. A subscriber
has the right to contest government agency Pursuant to Section 631 of the Cable Commu-
claims to such information; to prevent the dis- nications Policy Act of 1984(the"Cable Act"),
closure of his or her name and address for any American Community Cablevision is required to
mailing list or other non-cable related purpose; inform new subscribers and current subscribers
and to review all such information at the cable on an annual basis of the existence of"personal-
offices during regular business hours, given ly identifiable" information collected by the
reasonable notice to the cable system by either cable system, how it is used, under what condi-
phone or letter, and to correct any errors in the tions it may be disclosed, and the rights of sub-
information. Should a subscriber believe the scribers concerning such disclosure. The law
limits set forth in the Cable Act have been vio- relates only to information which specifically
lated by the cable system, he or she may bring identifies individual subscribers.
a civil suit for damages, including attorney fees
and costs, in a U.S. district court against the Collection
cable operator. Generally, the law allows personally identifi-
Should you have any questions concerning the able information to be collected and disclosed
rights and obligations of the cable system oper- only insofar as it relates to the business of provid-
ator or your rights under the subscriber privacy ing cable service to subscribers. Thus, cable
provisions of the Cable Act,or if you would like systems may collect only that information about
to see or correct, if necessary, your records, a subscriber which is necessary either to provide
please contact the cable system business office: service to the subscriber or to monitor unautho-
rized reception of cable signals. This includes
name and address, spouse's name, telephone
AMERICAN COMMUNITY CABLEVISION number(s), billing and collection information,
service and installation records, personal Iden-
519 W. State St.
• tification card numbers,such as a driver's license
Ithaca, NY 14850 and/or social security card, subscriber com- f
(607) 272-3456 plaints and correspondence,premium or level of
8:30 a.m. - 6:00 p.m. Monday-Friday service subscription data, maintenance, service
9:00 a.m. - Noon Saturday and installation information (how many cable
outlets you have and where they are located in for six calendar years (or a longer period if
your house), and marketing data (information required by state law)after a subscriber no longer
collected from your application and other con- is an active customer. Should our policy change
sumer questionnaires). Cable systems may not or should we find it necessary to disclose such
monitor or collect any information on the trans- information to entities other than the ones listed
actions made by a subscriber using a service such previously, we first will notify you. This would
as home shopping or home banking, except to include disclosure to a debt collection agency if
the extent it is necessary to render the service. the subscriber were in arrears to the cable system.
Any information a cable system wishes to col-
lect that is not related to either the rendering of The law permits cable systems to provide the
a service or monitoring theft of service may be names and addresses of subscribers for non-cable
done only with the prior written consent of the related mailing lists and other purposes unless
subscriber. the subscriber specifically and in writing pro-
Disclosure hibits or limits such disclosure. The services to
A cable system's disclosure of personally iden- which you subscribe or the nature of any sub-
tifiable information,like its collection,is limited scriber transactions conducted via the cable
by the Cable Act to the disclosure of informa-
tion necessary in order to provide a cable serv- If you do not want this system to provide your
ice or to conduct a legitimate business activity name and address for mailing list purposes,
of the cable system. please let us know in writing at the address of
Collected information is made available only our business office listed in this document and
to employees and sales representatives of the we will exclude your name and address from any
cable system,to its accountants and billing and list that might be provided to others.
collection agencies, and to other maintenance Disclosure Pursuant to Judicial Process
and installation subcontractors, programmers, Disclosure of personally identifiable informa-
auditors and program guide service providers tion also may be required by court order, but
which provide service to or act on behalf of the only if a government agency or authority pro-
cable system. Information will be retained only vides to the court clear and convincing evidence
as long as it serves a business purpose, includ- that the information would be material evidence
ing maintenance of records for financial and tax against a subscriber believed to be engaging in
accounting purposes, after which it will be criminal activity, and only if the subscriber is
destroyed. given the opportunity to appear in court and con-
Our current policy is to keep such information test the agency's claim.
000189
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REPLY MESSAGE
American International Companies
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SIGNATURE
DO NOT SNAP AWAY CARBON WHEN REPLYING DETACH CARBON-RETURN WHITE COPY
DETACH CANARY-FORWARD WHITE AND PINK RETAIN PINK COPY FOR RECORD
Form 9064(10/75)
CITY OF ITHACA
108 EAST GREEN STREET
ITHACA, NEW YORK 14850
OFFICE OF TELEPHONE: 272-1713
CITY ATTORNEY CODE 607
M E M O R A N D U M
TO: Theh3l,
rt, Planning Director
FROM: Rash, City Attorney
DATE: Ma989
RE: Cable Franchise - Privacy Notification
This is in response to your memo of March 24, 1989, on this
matter. The only current Franchise provisions applicable are:
1 . 16. 1 which provides that ACC will furnish each subscriber
"a complete statement of the subscriber's right to privacy in con-
formance with 47USC Section 631;"
2. 16. 13 which provides that "ACC shall at all times protect
the privacy of subscribers as provided in this Franchise and other
applicable Federal, State and Local laws. "
3 . 16. 14 which provides that "No people meter shall be used
without the express written consent of the subscriber. "
RWN:blh
"An Equal Opportunity Employer with an Affirmative Action Program"
i
r
CITY OF ITHACA CABLE COMMISSION
Minutes -- March 14, 1989
Present : William Demo, Richard Herskowitz, Janice Streb, Tom
Terrizzi . David Lytel as Common Council liaison.
Absent : Chris Heegard
1 . The meeting was called to order at 7 :35 pm.
2 . The Minutes of the February 14 meeting were approved.
3 . Chair 's Report:
Chairperson Janice Streb related a complaint received from
George Alexander, 104 Ridgedale Avenue, who reported experiencing
recurring interference on Channel 19 . Mike Withiam, ACC General
Manager, . responded that this was an ongoing problem involving
police radio frequencies . He stated that ACC would check to see
if there is leakage in any of the lines in the area of Mr .
Alexander 's residence and report back to the Commission.
Chairperson Streb outlined the contents of a letter received
from Sean Killeen of Common Council regarding additional means of
qualifying senior citizens for the needs-based discount . These
included eligibility for HEAP assistance, Social Security SSI,
and Medicaid . Mike Withiam indicated that ACC would need only a
list or other documentation to qualify subscribers for the
discount . Chairperson Streb agreed to gather more information ori
other qualifying means and report back to the Commission.
Chairperson Streb provided a brief update on the complaint
lodged by Alan Cohen of 310 Utica St . and then turned the floor
over to Mr . Cohen who addressed the Commission about the status
of his complaint . He has been seeking some form of relief from
the noise emanating from a pole-mounted ACC power supply box
located 27 ft. from his bedroom window. He summarized his
previous exchanges with Mr . Withiam and City Attorney Nash. Mr .
Cohen was concerned about whether the noise from the box violates
the City noise ordinance which sets a ceiling of 55 decibels.
Whether or not the noise ordinance would apply, he would like to
have the box relocated, possibly to a corner location.
In responding to Mr . Cohen's complaint, Mike Withiam cited
the difficulty of moving the box given the overall design and
power supply needs of the system rebuild in that area . While he
feels that re-situating the box on an adjacent pole would still
place it too close to other houses, he would look into the
feasibility of corner pole placement. Chairperson Streb
volunteered to contact the City Engineer for assistance, and Mr.
Withiam said he would report back on efforts to solve the problem
at the next Commission meeting and would send Chairperson Streb
.the specifications of the box in the meantime .
1
4 . Public Comment : None during the Public Comment Session.
5 . Report from American Community Cablevision:
Mike Withiam reported on the progress of the system rebuild.
He expects completion by mid to late May and said that the I-NET
was in the design phase . He related ACC's intent to provide
subscribers with' information on ownership of converters, remote
controllers, and internal wiring by mid-May.
Mr . Withiam reported a problem that had been discovered with
the billing system affecting senior citizen discounts . He will
be sending a letter to qualified subscribers explaining the
problem and providing retroactive crediting of discounts to
February, 1988 .
Regarding the Access Advisory Board, ACC's appointees are
Rick Lawrence and Carl Frederick as announced by Mr . Withiam.
6 . Access Advisory Board:
Commissioner Herskowitz reported on the first meeting of the
Access Advisory Board held on March 9 and also distributed
minutes of the meeting. In the only formal action taken at that
meeting, the Board voted unanimously to support the Commission
in moving forward with the finding of the violation of the
franchise agreement .
Another issue arising at the Access Advisory Board meeting
concerned the hiring of the third access staffer which was to
have been carried-out by March 1 . ACC' s position, as outlined by
Mr . Withiam, is that the hiring of the third access staffer is--
along with other Franchise Provisions said to be related to
system rebuild--deferred until June 1, as provided for in the
October 5, 1988 Common Council Resolution. Rather than pursue a
possible violation against ACC, the Access Advisory Board would
like to work out a process which would involve it in the filling
of the third access position . Mr . Withiam outlined ACC's
considerations in filling the position and expressed a
willingness in providing an advisory role for the Board or a
possible subcommittee . Commissioner Herskowitz responded that a
_ subcommittee of the Board would be formed for the purpose of
meeting with Mr . Withiam to discuss its interests and help to
review the applicants . Mr . Withiam agreed to bring ACC's list of
considerations to the April 3 Access Advisory Board meeting and
to participate in a subsequent meeting of the subcommittee .
John Efroymson asked about Access Advisory Board input on
the performance of ACC' s access employees . Mr . Withiam responded
that personnel performance information is not for public
discussion and that the focus of such concerns should be on
how well a function is being carried-out rather than on how well
an individual is performing his/her job.
Mr . Efroymson questioned whether current access staff are
full-time as required by the franchise agreement . Mr .
2
Withiam reported that one is full-time, a second works 35
hours, and a third works 10 hours, netting a full-time
equivalency of two staffers . Mr . Efroymson expressed concern
about potential conflicts arising from this arrangement and
suggested that the Access Advisory Board monitor the staffing
situation.
Commissioner Terrizzi inquired about the 2% of Gross City
Revenue to be used for PEG access equipment replacements and
additions . Mr . Withiam responded that a decision on equipment
purchases would need to be delayed until September-October in
order to ascertain how much of the 2% is needed during the year
for maintenance . He stated that the Access Advisory Board input
would be sought in this process.
7 . Public Access Studio:
Mr . Withiam reported that the access studio problem had been
partially addressed by moving some equipment into a make-shift
control room. There was general agreement that the studio
condition was somewhat improved, but producers were still finding
it difficult to put programs together . Mr . Withiam cited the
non-specific nature of the Commission's resolution which found
ACC in violation of the franchise provisions on the access
studio . He emphasized that the new access studio would be
operational by the end of April . In light of the fact that ACC's
deadline for responding formally to the resolution was 10 days
away, the Commission delayed further consideration until
Commissioners Herskowitz and Terrizzi had the opportunity to
consult with City Attorney Ralph Nash. After reviewing the
Commission's options, they would report back at the next
Commission meeting.
8 . Converter Box and Remote Control Ownership:
In response to a question from Commissioner Demo, Mr.
Withiam reported that ACC would fully meet the franchise
provisions 16 . 15, 16 . 16, and 16 . 17 related to converter box, home
wiring, and remote control ownership options by June 1, 1989 .
9 . Common Council Resolution:
Common Council member David Lytel asked that the Commission
consider adopting a resolution drafted by Ben Nichols that
proposes Congressional action on re-regulation of cable rates and
services by municipalities . Commission approved the resolution
by a vote of 3 For, 0 Opposed, 1 Abstention.
The next meeting was set for Tuesday, April 11 .
The meeting was adjourned at 9 : 50 pm.
(Minutes recorded by Bill Demo)
3
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�A'°�RATEO�0
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CITY OF ITHACA
108 EAST GREEN STREET
OFFICE OF ITHACA, NEW YORK 1485o
CITY CLERK TELEPHONE: 272-1713
CODE 607
AGENDA
THE CABLE COMMISSION
TUESDAY, APRIL 11, 1989 - COMMON COUNCIL CHAMBERS
7:30 P.M.
4 . Public Comment: None during the Public Comment Session.
5. Report from American Community Cablevision:
Mike Withiam reported on the progress of the system rebuild.
He expects completion by mid to late May and said that the I-NET
was in the design phase . He related ACC's intent to provide
subscribers with' information on ownership of converters, remote
controllers, and internal wiring by mid-May.
Mr . Withiam reported a problem that had been discovered with
the billing system affecting senior citizen discounts . He will
be sending a letter to qualified subscribers explaining the
problem and providing retroactive crediting of discounts to
February, 1988 .
Regarding the Access Advisory Board, ACC' s appointees are
Rick Lawrence and Carl Frederick as announced by Mr . Withiam.
6 . Access Advisory Board:
Commissioner Herskowitz reported on the first meeting of the
Access Advisory Board held on March 9 and also distributed
minutes of the meeting. In the only formal action taken at that
meeting, the Board voted unanimously to support the Commission
in moving forward with the finding of the violation of the
franchise agreement .
Another issue arising at the Access Advisory Board meeting
concerned the hiring of the third access staffer which was to
have been carried-out by March 1 . ACC' s position, as outlined by
Mr . Withiam, is that the hiring of the third access staffer is--
along with other Franchise Provisions said to be related to
system rebuild--deferred until June 1, as provided for in the
October 5, 1988 Common Council Resolution. Rather than pursue a
possible violation against ACC, the Access Advisory Board would
like to work out a process which would involve it in the filling
of the third access position . Mr . Withiam outlined ACC's - ---
considerations
CC's- ---considerations in filling the position and expressed a
willingness in providing an advisory role for the Board or a
possible subcommittee . Commissioner Herskowitz responded that a
subcommittee of the Board would be formed for the purpose of
meeting with Mr . Withiam to discuss its interests and help to
review the applicants . Mr . Withiam agreed to bring ACC's list of
considerations to the April 3 Access Advisory Board meeting and
to participate in a subsequent meeting of the subcommittee .
John Efroymson asked about Access Advisory Board input on
the performance of ACC's access employees . Mr . Withiam responded
that personnel performance information is not for public
discussion and that the focus of such concerns should be on
how well a function is being carried-out rather than on how well
an individual is performing his/her job.
Mr . Efroymson questioned whether current access staff are
full-time as required by the franchise agreement . Mr .
2
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CITY OF ITHACA
1 OFA FAST GRFFN SMFE F
ITHACA, NEW YORK 14850
OFFICE OF TELEPHONE. 272-1713
CITY ATTORNEY
CODE 607
M E M O R A N D U M
TO: RaRe6,
lather, Alderman
FROM: Ra Nash, City Attorney
DATE: Ju 1989
RE: Cable TV - Senior Citizen Discount
This is in response to your letter of June 5 , 1989 , regarding
this matter.
The franchise provides in Section 19 . 1 that "ACC will give a
need-based senior citizen discount of 10 percent to those who
qualify for real property tax exemption. " This language does not
specifically state that the discount applies only to basic service
rates. However, Section 19 . 1, which deals generally with the
City' s right to regulate rates , and the schedule of rates to be
applied, is addressed only to basic service rates. As you may
remember these are the only rates that a municipality may impact
upon under federal law, and only to the extent that non-
competitiveness is established.
Since Section 19. 1 addresses generally only basic cable rates,
the implication would be that the senior citizen discount applies
only to those rates, absent some specific language to the contrary.
Also, I doubt our legal authority to impose by contract or other-
wise rate schedules for non-basic services .
RWN:blh
cc: John C. Gutenberger, Mayor
All Common Council Members
S./
JUN 0
1989
CITY OF ITHACA
108 EAST GREEN STREET
ITHACA, NEW YORK 14850
TELEPHONE: 272-1713
COMMON COUNCIL June 5, 1989 CODE 607
Ralph W. Nash, Esq.
City Attorney
108 East Green Street
Ithaca, New York 14850
Dear Ralph:
I am advised by employees of the American Community
Cablevision that its policy with respect to the senior citizen
discount is that the same is limited to 10% of the basic rate
only. In other words, the 10% discount does not apply to
expanded service, premium service or any other charges imposed
by ACC. Is this permissible under the terms of the Franchise.
Agreement?
Ironically, this same ACC employee conceded that her under-
standing of the policy was that the discount applied all services
purchased by an eligible senior citizen. This concession is
consistent with the information given to a first ward constituent
by ACC personnel when he recently purchased expanded service (he
was advised that he would receive a 10% discount on the expanded
service as well) .
If ACC is narrowly applying the 10% discount in violation of
the franchise, then I am requesting that it be advised
accordingly and demand made for refund of excess monies paid by
the senior citizens. Thank you.
Res$ f l y yours,
RPOND ,. SCHLATHER
RMS/seh
cc: Hon. John C. Gutenberger, Mayor
All Common Council Members
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CITY OF ITHACA
1()1 3 F-AS I (,FI(-FN `;111I F (
ITHACA, NEW YORK 14850
OFFICE OF TELEPHONE: 272-1713
CITY ATTORNEY
CODE 6r)7
June 15 , 1989
Matt Nothnagle, Esq.
Nixon, Hargrave
Lincoln First Tower
P. O. Box 1051
Rochester, NY 14603
Dear Mr. Nothnagle:
Pursuant to your freedom of information request, we are
herewith enclosing one copy each of our Cable TV Franchise and
Ordinance. Please remit $25. 00 payable to "City of Ithaca" for
copies.
Thank you for your attention to this matter.
Yours v6y ,trjly,
Ra h W Nash
Ci At rney
RWN:blh
An Equ tl OC'c"'!m0y E ir,y n. th an Af}Vr i1jj,ve Actino Prr,rpn n
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CITY OF ITHACA
108 EAST GREEN STREET
ITHACA, NEW YORK 14650
OFFICE OF TELEPHONE: 272-1713
CITY ATTORNEY CODE 607
M E M O R A N D U M
TO: John C. Gutenberger, Mayor
Ray Schlather, Chairman of Budget & Administration
Richard Booth, Chairman of Charter & Ordinance
David Lytel, Alderman
Ben Nichols, Alderman
Cookie Paolangeli, City Clerk
Thys Van Cort, Planning Director
Cable Commission Members
Dom' c/. Nash,
fferillo, Controller
FROM: Ralp City Attorney
DATE: June 0, 1989
RE: Cable Franchise
Please find enclosed communication received regarding possible
assignment of our Cable Franchise agreement. I have the supplement
documents in my office.
RWN:blh
enc.
cc: Matthew J. Nothnagle
'An Equal Opportunity Employer with an Affirmative Action Program"
�
RATED
CITY OF ITHACA
108 EAST GREEN STREET
ITHACA, NEW YORK 14650
OFFICE OF TELEPHONE: 272-1713
CITY ATTORNEY CODE 607
M E M O R A N D U M
TO: Ray Schl ther, Chairman of B & A Committee
FROM: Ra144 Nash, City Attorney
DATE: June 29, 1989
RE: Cable Advertising Channel #6
I reviewed the franchise agreement regarding basic service
channels. Section 13. 1 states only that " (t)he basic cable service
shall have a minimum of 12 ( 6Mhz) channels. " There is no mention
that such channels must be for programming.
I agree that it does seem unfortunate to have one of the basic
channels show only cable advertisements. If I had a television I
would probably not wish to view this station or pay for it on basic
cable charge. It seemed appropriate to refer this matter to the
Cable Commission which has authority for ongoing supervision of the
franchise. I discussed the matter today with Janice Streb, Chair-
man of the Commission. She advised that the commission will review
the matter.
RWN:blh
cc: Dominick Cafferillo, Controller
"An Equal Opportunity Employer with an Affirmative Action Program"
• R
Nixon, Hargrave, Devans & Doyle JUN 3 ® 739
Attorneys and Counselors at Law
30 ROCKEFELLER PLAZA A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS SUITE 800
NEW YORK, NEW YORK 10112 ONE THOMAS CIRCLE
(212) 586-4100 LINCOLN FIRST TOWER WASHINGTON, D.C. 20005
(202) 223-7200
POST OFFICE BOX 1051
ONE KEYCORP PLAZA
ALBANY, NEW YORK 12207 ROCHESTER, NEW YORK 14603 REYNOLDS PLAZA
(518) 434-6000 (716) 546-8000 1061 EAST INDIANTOWN ROAD
JUPITER, FLORIDA 33477
TELEX: 978450 (WUT) (407) 746-1002
990 STEWART AVENUE
GARDEN CITY, NEW YORK 11530 TELECOPIER: (716) 546-3843
(516) 222-1236
June 29, 1989
Ralph G. Nash, Esq.
Ithaca City Attorney
108 E. Green Street
Ithaca, New York 14850
Re: Paramount Communications Inc.
Acquisition of Time Incorporated
Dear Mr. Nash:
As we discussed, Paramount Communications Inc.
( "Paramount" ) has made a tender offer to acquire Time
Incorporated ("Time" ) . Time, in turn, is the majority
stockholder of American Television and Communications
Corporation ("ATC" ) , another public corporation. ATC is ` ,�
the sole stockholder of American Community Cablevision
("ACC") . We understand that under the terms of the cable
television franchise granted by the City of Ithaca, the
acquisition of Time may require the City' s approval . We
are counsel for Paramount and on its behalf would like to
hereby apply for any required approval .
Paramount is a diversified entertainment and
publishing company. Its well-known companies include
Paramount Pictures; Simon & Schuster, Prentice-Hall and
Silver, Burdett & Ginn, trade and educational publishers;
and Madison Square Garden Corporation. Paramount does not
currently operate cable systems, but it does own MSG
Network, a regional basic cable television sports network,
and it is a 50% owner of USA Network, a national.
advertiser-supported basic cable television service.
Paramount is a leader in the production of quality motion
pictures and a variety of popular programs for
Nixon, Hargrave, Devans & Doyle
Ralph G. Nash, Esq.
June 29, 1989
Page 2
television. As a result, Paramount will bring immense
entertainment and education experience to the ATC cable
systems .
Paramount views ATC as a successful operator of
cable television systems, and appreciates that sufficient
authority must be delegated to local management of ACC and
the other franchisees to ensure that the local community' s
interests are appropriately served. After the acquisition
of Time, ATC will continue to be a subsidiary of Time and
will remain owner or co-owner of all of its current cable
television subsidiaries . ACC will continue to operate
under the current management structure. Paramount would
expect that the operation of your cable television system
will be substantially unchanged, except to the extent that
it can be improved and become more responsive to your
needs . Similarly, Paramount would hope there would be no
change in local management or programming .
I recognize your concern that this transaction
may cause Paramount to make significant cuts in ACC' s
operation. However, should not be too much of a problem.
First, as you no doubt know, cable in Ithaca is regulated
both by the franchise and by the New York State Commission
on Cable; ACC and its corporate parents are and will
remain legally bound by the franchise. Second, Time is
currently attempting to purchase Warner Communications for
$14 billion, in part to fend off Paramount . It is thus
unlikely that ACC' s ultimate parent will emerge from this
situation without some debt .
Please consider this letter and enclosed
documents as a formal application for approval by the City
of Ithaca of Paramount ' s acquisition of Time. Attached
hereto is a short summary of the proposed acquisition. In
addition, I am enclosing the following documents :
(1) Offer to Purchase, dated June 7, 1989,
and Supplement to the Offer to Purchase,
dated June 23 , 1989 .
(2) Paramount ' s (formerly Gulf + Western)
Annual Report on Form 10-K for the
fiscal year ended October 31, 1988 .
(3) Paramount ' s 1988 Annual Report to
Stockholders .
t �
Nixon, Hargrave. Devans & Doyle
Ralph G. Nash, Esq.
June 29 , 1989
Page 3
We believe this letter and the enclosed documents
will provide complete information regarding Paramount and
its proposed acquisition of Time and constitute the formal
institution of the process for any authorization required
under local law. Please call me or my colleague Deborah
McLean Quinn if we can provide you with any additional
information on any specific aspect of the proposed
transaction. One of us will call you again shortly to
discuss the timing of the approval process . As I
mentioned, it is important to move quickly on this .
Permit me to say on behalf of Paramount that we
look forward not only to working with you, but also
becoming a strong supporter of local cable television
service in your community in the years to come.
Sincerely,
Matthew J. Nothnagle
MJN: jcw
Enclosures
PARAMOUNT COMMUNICATIONS INC. ' S PROPOSED
ACQUISITION OF TIME INCORPORATED
Paramount Communications Inc . , a Delaware
corporation formerly named Gulf + Western Inc .
("Paramount" ) , through a wholly-owned subsidiary has
commenced a tender offer to purchase all of the
outstanding stock of Time Incorporated ( "Time" ) for a
total purchase price of over $12 billion. The tender
offer is being made to Time' s shareholders in all fifty
states, as required by the federal securities laws . After
successful completion of the tender offer , Time will be
merged into a subsidiary of Paramount and thereafter will
continue to exist as a subsidiary of Paramount .
After the acquisition, Time is expected to
continue to own and operate its present business ,
including the cable operations . American Television and
Communications Corporation ("ATC" ) will continue to be a
direct subsidiary of Time and ATC' s cable television
subsidiaries will continue to be indirect subsidiaries of
Time. ATC is expected to continue to own the cable
television franchise subsidiaries presently owned by it
and to remain a joint venture partner in all of its cable
television joint venture arrangements . Each cable
franchise subsidiary owned by ATC will survive intact and
unchanged as the continuing owner or operator of its
respective cable television system and franchise. No
direct ownership interest in any cable television system
will be affected by Paramount ' s purchase of the common
stock of Time or by the merger of Time into a Paramount
subsidiary.
A Time-Paramount combination will create a
diversified media company operating in the areas of
entertainment , cable television and publishing . Together
Paramount and Time will be a communications company rich
in resources with unparalleled range and depth, strongly
positioned for global growth through the next decade and
into the next century. No other company will be as
significant a force in entertainment and publishing with
operations in quality magazine and book publishing , as
well as in motion picture and television production and
distribution, cable systems and cable programming . The
following is a description of the core business groups of
a combined Time-Paramount entity.
3 7 8 7 D
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Entertainment . Paramount, through Paramount
Pictures Corporation ( "Paramount Pictures" ) , Famous
Players Inc . , its Canadian theatre chain, Cinamerica
Theatres, its 50% owned domestic theater chain, and
Madison Square Garden Corporation, produces, finances and
distributes motion pictures, television programming and
prerecorded videocassettes, operates motion picture
theatres in the United States and Canada and owns and
operates Madison Square Garden Center in New York and the
MSG Network, the nation' s oldest regional cable television
sports network. Paramount also owns 50% of USA Network, a
provider of programs for the cable industry. Paramount
Pictures distributes its films through its own
organization in the United States and Canada .
Distribution in other countries is through United
International Pictures, a company owned jointly with MCA
Inc. and MGM/UA Communications Company. Cinema
International Corporation, which is jointly owned with
MCA, distributes videocassettes to the international home
video market . In television, Paramount Pictures creates
original programming for the commercial networks ,
first-run syndication, cable, home video and international
distribution.
Time ' s pay television programming operations
consist primarily of Home Box Office, Inc . , a wholly-owned
subsidiary of Time, plus a 14% interest in Turner
Broadcasting System, Inc . The principal businesses of Home
Box Office, Inc . are the programming and marketing of two
satellite-transmitted pay television services, the HBO
Service and the CINEMAX service, and the distribution of
video cassettes through its wholly-owned subsidiary, HBO
Video, Inc . Home Box Office ' s programming also includes
concerts , comedy shows and other programs which are
produced specifically for HBO and/or CINEMAX.
Cable Television. Cable television operations
are conducted through Time ' s 82% interest in ATC, which is
currently the second largest cable television system
operator in the United States in terms of basic cable
subscribers and has approximately 767 franchises in 32
states with approximately 4 . 1 million basic cable
subscribers . ATC' s cable television operations consist
primarily of selling, for a monthly fee, video programming
which is distributed to subscribers ' television sets
through a network of coaxial cables . Such video
programming is comprised of local broadcast television
signals, locally produced or originated video
3 7 8 7 D
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3 -
programming, distant broadcast television,
advertiser-supported video programming , premium
programming services and in some systems, audio and other
entertainment and information services .
Publishing . Paramount, through Simon & Schuster,
Prentice Hall , Pocket Books and Silver Burdett & Ginn,
publishes hardcover and paperback books for the general
public, publishes textbooks and other learning materials
for elementary schools, high schools and colleges, and
provides professional information in the form of looseleaf
services , business books, professional newsletters,
document search and filing services , and seminars and
databases for businesses and professions . Simon &
Schuster currently holds leadership positions in virtually
every major segment of the book publishing industry and
has a worldwide publishing and distribution capacity.
Time, through The Time Inc . Magazine Company,
publishes TIME, FORTUNE, SPORTS ILLUSTRATED, PEOPLE, MONEY
and LIFE magazines, and through Southern Progress
Corporation, publishes SOUTHERN LIVING, PROGRESSIVE
FARMER, SOUTHERN ACCENTS, COOKING LIGHT and TRAVEL SOUTH
magazines . Time ' s book publishing operations include
Time-Life Books and Book-of-the-Month Club, as well as
Scott, Foresman and Company, a large domestic textbook
publisher, and Little, Brown, which publishes general and
children' s trade books and legal and medical reference
books and textbooks .
3 7 8 7 D
r
IM
CITY OF ITHACA
106 EAST GREEN STREET
ITHACA, NEW YORK '14650
OFFICE OF TELEPHONE: 272-1713
CITY ATTORNEY CODE 607
MFMPANDUM
TO: CooPash,
langeli, City Clerk
FROM: Ra City Attorney
DATE: October 25, 1988
RE: Cable TV Ordinance
Enclosed please find final clean copy of this Ordinance with
all changes as adopted by Common Council at its October meeting.
rM:blh
enc.
ITHACA, NEW YORK
ORDINANCE
SECTION 1 PURPOSE
The City of Ithaca finds that the development of Cable
Communications has the potential of having great benefit and
impact upon the people of Ithaca. Because of the complex
and rapidly changing technology associated with cable
communications, the City further finds that the public
convenience, safety and general welfare can best be served
by establishing regulatory powers which should be vested in
the City or such persons as the City shall designate. It is
the intent of this Ordinance and subsequent amendments to
provide for and specify the means to attain the best
possible public interest and public purpose in these matters
and any Franchise issued pursuant to this Ordinance shall be
deemed to include this finding as an integral part thereof.
Further, it is recognized that Cable Communications
Systems have the capacity to provide not only entertainment
and information services to the City' s residents, but can
provide a variety of interactive communications services to
institutions and individuals. Many of these services
involve City agencies and other public institutions, by
providing governmental, educational or health care
communications.
For these purposes, the following goals underlie the
regulations contained herein:
(a) Communications services should be available to the
maximum number of City residents.
(b) The Cable Communications System should be capable
of accommodating both the present and reasonably
foreseeable future communications needs of City.
(c) The Cable Communications System should be improved
and upgraded if necessary during the Franchise
term so that the new facilities necessary for the
operation of this system shall be integrated to
the maximum extent possible with existing
facilities.
(d) Any Cable Communications System authorized by this
Ordinance and the Franchise shall be responsible
to the needs and interests of the local community,
and shall provide a wide diversity of information
sources and services to the public.
(e) That the public, educational, and governmental
needs for access to the Cable Communications
System are met.
SECTION 2 TITLE OF ORDINANCE
This Ordinance shall be known and may be cited as
"Ithaca Cable Communications Regulatory Ordinance," and it
shall become a part of the Ordinances of the City.
This Ordinance shall take effect and be in force from
and after its passage and publication of a notice as provided by
section 3 . 11 of the Ithaca City Charter.
That all Ordinances or parts of Ordinances in conflict
with the provisions of this Ordinance are hereby repealed.
SECTION 3 DEFINITIONS
For the purpose of this Ordinance the following terms,
phrases, words and their derivations shall have the meaning
given herein. When not inconsistent with the context, words
used in the present tense include the future, words in the
plural number include the singular number. The word "shall"
is mandatory and "may" is permissive. Words not defined
shall be given their common and ordinary meaning.
3 . 1 ACCESS CHANNELS means channels ( 6MHz each) set aside
for public use, education use or governmental uses with no charge
for usage by ACC. Access channels designed for public use shall
be available on a nondiscriminatory basis.
3 . 2 ADDITIONAL SERVICES means programming or services for
which an additional charge is made beyond the charge for Basic
Subscriber Services, including, but not limited to, movies,
concerts, variety acts, sporting events, pay-per-view
program, interactive services, and any other service utilizing
any facility or equipment of a Cable Communications
System operating pursuant to a Franchise granted under this
Ordinance.
3 . 3 AFFILIATE means each person who falls into one or
more of the following categories: (a) each person having,
directly or indirectly, control or a controlling interest in
the Grantee; (b) each person in which the Grantee has,
directly or indirectly, control or a controlling
interest; (c) each office, director, general partner, joint
venturer or joint venturee partner, of the Grantee; and (d)
each person, directly or indirectly, controlling, controlled
by, or otherwise related to the Grantee by common
ownership, common management, or common control; provided
AFFILIATE shall in no event mean:
2
(a) the City;
(b) any duly authorized PEG Access Organization;
(c) any educational institution acting on its capacity
as such, for public, educational, or charitable
purposes; or
(d) any creditor of the Grantee solely by virtue of
its status as a creditor and which is not
otherwise an Affiliated person by reason of owning
controlling interest in, being owned by, or being
under common control with, the Grantee.
3 . 4 BASIC SUBSCRIBER RADIO SERVICE means such audio
services as the re-transmission of broadcast FM radio signals,
shortwave, weather, news, time and other similar audio services
and the transmission of cablecast (nonbroadcast) radio signals as
permitted by the FCC.
3 . 5 BASIC SUBSCRIBER TELEVISION SERVICES means the
definition promulgated by the Federal Communications
Commission, or if such definition is not forthcoming from
the Federal Communications Commission it shall mean all
subscriber services provided by the Grantee in one or more
service tiers, including the delivery of broadcast signals,
public, educational and governmental access channels, and
local origination channels, covered by the regular monthly
charge paid by all subscribers to a particular service tier
including subscriber terminal charges and related deposits.
3 . 6 CABLE COMMUNICATIONS SYSTEM, also referred to as
"system, " means 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 a community, but
such term does not include (a) a facility that serves only
to retransmit the television signals of one or more
television broadcast stations; (b) a facility that serves
only subscribers in one or more multiple unit dwellings
under common ownership, control, or management, unless such
facility or facilities uses any Public-Rights-of-Way; (c) a
facility of a common carrier which is subject, in whole or
in part, to the provision of Title II of the Cable Act,
except that such facility shall be considered a cable system
to the extent such facility is used in the transmission of
video programming directly to subscribers; or (d) any
facilities of any electric utility used solely for operating
its electric utility systems.
3 .7 CITY means the City of Ithaca, New York.
3
3 . 8 CHANNEL means a six Megahertz (MHz) frequency
band, which is capable of carrying either one standard video
signal, a number of audio, digital or other nonvideo signals
or some combination of such signals.
3 . 9 COMMENCE OPERATION means that time and date when
operation of the Cable Communications System is considered to
have commenced.
3 . 10 COMMERCIAL SUBSCRIBER means a subscriber who
receives a service in a place of business where the service may
be utilized in connection with a business, trade or
profession.
3. 11 COMMON COUNCIL means the mayor and council of the
City of Ithaca.
3 . 12 COMMUNICATIONS POLICY ACT or CABLE ACT means the
Cable Communications Policy Act of 1984 as it may be amended or
succeeded.
3 . 13 COMPLAINT means that a subscriber or user
informs the Grantee or the City, that a problem has been
brought to the attention of the Grantee, but is unresolved
to the satisfaction of the subscriber.
3 . 14 CONVERTER means an electronic device which
converts signals to a frequency not susceptible to
interference within the television receiver of a subscriber,
and any channel selector which permits a subscriber to view
all signals delivered at designated converter dial locations
at the set or by remote control.
3 . 15 DEDICATED INSTITUTIONAL ACCESS CHANNELS means
broadband communications channels dedicated to serving city,
county, state or federal governmental agencies, educational
institutions, health care institutions or other nonprofit
and profit making organizations.
3 . 16 DISCRETE CHANNEL shall mean a channel which can only
be received by the person and/or institution intended to
receive signals on such channel.
3.17 DROP shall mean a connection from feeder cable to
the subscriber/user television set, radio or other terminal.
3 . 18 EDUCATIONAL CHANNEL OR EDUCATIONAL ACCESS CHANNEL
means any channel where educational programs are the only
designated use. The educational access channel(s) shall
only be used for non-commercial purposes.
3 . 19 FAIR MARKET VALUE means the price that a willing
buyer would pay to a willing seller for a going concern
based on the system valuation prevailing in the industry at
the time.
4
3 . 20 FCC means the Federal Communications Commission and
any legally appointed or elected successor.
3. 21 FRANCHISE means a Franchise contract entered into
voluntarily by the Grantee, containing the specific
provisions of the Franchise granted, including referenced
specifications, Franchise proposal, applications and other
related material. Any Franchise granted pursuant to this
Ordinance grants the nonexclusive rights to construct,
operate and maintain a Cable Communications System along the
Streets and Public Grounds within all or a specified area in
the City. Any such authorization, in whatever form granted,
shall not mean or include any license or permit required for
the privilege of transacting and carrying on a business
within the City as required by other ordinances and laws of
the City.
3 . 22 FRANCHISE AREA means the entire City.
3 . 23 FRANCHISE FEE means the percentage, as specified by
the City, of the Grantee's gross revenues from all sources
payable in exchange for the rights granted pursuant to this
Ordinance and the Franchise Agreement.
3 . 24 FRANCHISEE OR GRANTEE means the natural
person(s) , partnership(s) , domestic and foreign
corporations(s) , association(s) , joint venture(s) , or
organization(s) of any kind which has been legally granted a
Franchise by the City, and its lawful successor, Transferee
or Assignee.
3 . 25 GOVERNMENT CHANNEL OR GOVERNMENT ACCESS CHANNEL
means any channel specifically designated or dedicated for
government use. The municipal access channel( s) shall only
be used for non-commercial purposes.
3 . 26 GRANTOR means the City of Ithaca as represented by
the Common Council acting within the scope of its
jurisdiction.
3 . 27 GROSS ANNUAL REVENUES means all revenue derived
directly or indirectly by the Grantee, and revenue derived
directly or indirectly through services provided via the
Cable Communications System by Grantee' s affiliates and
subsidiaries in which the Grantee has a financial interest.
3 . 28 INQUIRY BY SUBSCRIBER means a request for general
information about the Grantee' s operation, services,
programming, and/or rates.
3 . 29 INSTALLATION shall mean the connection of the
system from feeder cable to subscribers ' terminals.
5
3 . 30 INSTITUTIONAL SERVICE means such video, audio,
data and other services provided to institutional users on an
individual application basis. These may include, but are not
limited to, one-way video, two-way video, audio or digital
signals among institutions to residential subscribers.
3 . 31 LEASED ACCESS CHANNEL, or COMMERCIAL ACCESS
CHANNEL means any channel designated or dedicated for use by
persons unaffiliated with the Grantee, at rates in
accordance with the Cable Act.
3 . 32 LOCAL ORIGINATION means programming produced or
purchased by the Grantee (e.g. , advertisements, news,
programming with advertising) which is under the control of
the Grantee. Local origination is specifically not to be
construed as public, governmental, or educational access.
3 . 33 LOCAL ORIGINATION CHANNEL means any channel
designated for local origination. This channel may be used for
commercial purposes.
3 . 34 MONITORING means observing a communications
signal, or the absence of a signal, where the observer is not
a party to the communication, whether the signal is observed
by visual or electronic means, for any purpose whatsoever.
3 . 35 NARROWCASTING shall mean the ability to
distribute cable programming to a particular segment or
segments of the cable subscribers.
3. 36 PERSON means an individual, partnership,
association, organization, corporation or any lawful
successor Transferee of said individual, partnership,
association, organization or corporation.
3 . 37 PLANT MILE means a linear mile of strand-bearing
cable as measured on the street of easement from pole to
pole or pedestal to pedestal.
3. 38 PROGRAMMER means any person or entity who or
which produces or otherwise provides program material or
information for transmission by video, audio, digital or
other signals, either live or from recorded traces or other
storage media, to users or subscribers by means of the Cable
Communications System.
3 . 39 PUBLIC ACCESS CHANNEL, COMMUNITY ACCESS CHANNEL
or COMMUNITY CHANNEL means any channel designated or
dedicated from use by the general public or noncommercial
organizations which is made available for use without charge
on a first-come, first-served, nondiscriminatory basis. The
public access channel(s) shall only be used for non-
commercial purposes.
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3 .40 PUBLIC PROPERTY shall mean any real property
owned by the City other than a highway, sidewalk, easement
or dedication.
3 . 41 PUBLIC-RIGHTS-OF-WAY or STREETS AND PUBLIC
GROUNDS means the surface, the air space above the surface, and
the area below the surface of any public street, highway,
lane, path, alley, sidewalk, boulevard, drive, bridge,
tunnel, park, parkways, waterways, utility easements or other
public-rights-of-way or hereafter held by the City which shall
entitle the City and the Company to the use thereof for the
purpose of installing and maintaining the Cable Company
Communications System. No reference herein, or in any
Franchise, to the "Streets and Public Grounds" shall be
deemed to be a representation or guarantee by the City that
its title to any property is sufficient to permit its use for
such purpose, and the Grantee shall, by its use of such terms,
be deemed to gain only such rights to use property in the
City as the City may have the undisputed right and power to
give.
3 .42 REASONABLE NOTICE shall be written notice
addressed by either party at its principal office within the
City or such other office as the Grantee has designated to
the City as the address to which notice shall be transmitted
to it, which notice shall be certified and postmarked not
less than ten ( 10) business days prior to that day in which
the party giving such notice shall commence any action which
requires the giving of notice.
3 . 43 RESIDENT means any person residing in the City as
otherwise defined by applicable law.
3 . 44 RESIDENTIAL SUBSCRIBER means a subscriber who
receives a service in an individual dwelling unit where the
service is not to be utilized in connection with a business,
trade or profession.
3 .45 SALE shall include any sale, exchange, barter or
offer for sale.
3 . 46 SCHOOL means any public or nonprofit educational
institution including primary and secondary schools,
colleges and universities, both public and private.
3 . 47 SERVICE AREA means the entire geographic area
within the Franchise territory.
3 . 48 SERVICE REQUEST means a request from the
subscriber for a technical service, such as installation,
adjustment for poor picture quality and converter repair.
3 . 49 STATE means the state of New York.
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3 . 50 SUBSCRIBER means any person, firm, corporation or
other entity who or which elects to subscribe to, for any
purpose, a service provided by the Grantee by means of or in
connection with a Cable Communications System.
3 . 51 SYSTEM FACILITIES means the Cable Communications
System constructed for use within the City, without
limitation, the headend, antenna, cables, wires, lines,
towers, amplifiers, converters, health and property security
systems, equipment or facilities located within the
corporate limits of the City designed, constructed or wired
for the purpose of producing, receiving, amplifying and
distributing by coaxial cable, fiber optics, microwave or
other means, audio and visual radio, television and
electronic signals to and from Subscribers, in the City and
any other equipment or facilities located within the
corporate limits of the City intended for the use of the
Cable Communications System; provided, however, such System
Facilities excludes buildings, contracts, facilities, and
equipment where primary use is for providing service to
other System Facilities located outside the City limits.
3 . 52 TRANSFER means the disposal by the Grantee,
directly or indirectly, by gift, assignment, voluntary sale,
merger, consolidation or otherwise, of five percent ( 50) or
more at one time of the ownership or controlling interest in
the Cable Communications System, or twenty percent ( 200)
cumulatively over the term of the Franchise of such
interests to a corporation, partnership, limited
partnership, trust or association, or person or group of
persons acting in concert.
3 . 53 TRUNK LINE means the major distribution cable
used in cable communications, which divides into feeder
lines which are tapped for service to subscribers.
3 . 54 UPSTREAM SIGNAL means a signal originating from a
terminal to another point in the Cable Communications System
including video, audio or digital signals for either
programs or other uses such as security alert services, etc.
3 . 55 USER means a person or organization utilizing
channel or equipment and facilities for purpose of producing
and/or transmission of material, as contrasted with receipt
thereof in a subscriber capacity.
SECTION 4 GRANT OF FRANCHISE
4 . 1 GRANT OF FRANCHISE
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A. GRANT OF AUTHORITY. Pursuant to the authority of
the Charter of the City and subject to the terms and
conditions set forth herein, the Common Council of the City
of Ithaca can grant revocable and non-exclusive Franchises,
acting pursuant to the City' s applicable Charter provisions,
Ordinances, rules and regulations to construct and operate a
Cable Communications System in, under, over, along, across
or upon the Streets and Public Grounds within the City of
Ithaca for the purpose of reception, transmission,
collection, amplification, origination, distribution or
redistribution of a audio, video, data, or other signals and
for the development of broadband telecommunication services
in accordance with the laws of the City of Ithaca, the State
of New York, and United States of America. In the event
that City shall grant to the Grantee a nonexclusive,
revocable Franchise to construct, operate, and maintain a
Cable Communications System within the City, said Franchise
shall constitute both a right and an obligation to provide
the services of a Cable Communications System as regulated
by the provisions of this Ordinance and the Franchise. The
Franchise shall include by reference those provisions of the
Grantee' s proposal that are finally negotiated and accepted
by the City and Grantee.
B. NON-INTERFERENCE. In exercising rights pursuant
hereto, Grantee shall not endanger or interfere with the
lives of persons, interfere with any installations of the
City, any public utility serving the City or any other
person permitted to use the Streets and Public Grounds nor
unnecessarily hinder or obstruct the free use of the Streets
and Public Grounds. The grant of one Franchise does not
establish priority for use over the other present or future
permit or Franchise holders or the City' s own use of the
Streets and Public Grounds. The Common Council of the City
shall at all times control the distribution of space in,
over, under or across all Streets or Public Grounds and
occupied by the Cable Communications System. All rights
granted for the construction and operation of the Cable
Communications System shall be subject to the continuing
right of the Common Council to require such reconstruction,
relocation, change of discontinuance of the appliances used
by the Cable Communications System in the streets, alleys,
avenues, and highways of the City, as shall in the opinion
of the Common Council be necessary in the public interest.
C. NON-EXCLUSIVITY. Any Franchise is non-exclusive
and shall not affect the right of the Common Council to
grant to any other person a grant or right to occupy or use
the streets or portions thereof, for the construction and
operation of a Cable Communications System within the City
or the right of the City to permit the use of the Streets or
Public Grounds or of the City for any purpose whatever. No
privilege or power of eminent domain is bestowed on Grantee
by the grant of a Franchise.
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D. COMPLIANCE WITH CITY ORDINANCES. Any Franchise
granted by the City is hereby made subject to the general ►.�
Ordinance provisions now in effect and hereafter made
effective. Nothing in the Franchise shall be deemed to
waive the requirements of the various codes and Ordinances
of the City regarding permits, fees to be paid, or manner of
construction.
4. 2 USE OF PUBLIC STREETS AND WAYS. For the purpose
of operating and maintaining a Cable Communications System
in the City, the Grantee may erect, install, construct,
repair, replace, reconstruct and retain in, on, over, under,
upon, across and along the public streets and ways within
the City such wires, cables, conductors, ducts, conduits,
vaults, manholes, amplifiers, appliances, pedestals,
attachments and other property and equipment as are
necessary to the operation of the Cable Communications
System, provided, however, that Grantee complies with all
design, construction, safety, and performance provisions
contained in this Ordinance, the Franchise, and other
applicable local Ordinances.
4. 3 USE OF GRANTEE FACILITIES. No poles shall be
erected by the Grantee without prior approval of the City
with regard to location, height, type and any other
pertinent aspect. However no location of any pole of the
Grantee shall be a vested right and such poles shall be
removed or modified by the Grantee at its own expense
whenever the City determines that the public convenience
would be enhanced thereby. Grantee shall utilize existing
poles and conduits, where possible.
4 . 4 FRANCHISE TERRITORY. The Franchise territory
shall be the entire City, or portions thereof, for which a
franchise is granted under authority of a franchise agreement.
The service area shall be the entire territory defined in the
franchise agreement.
4. 5 TERM OF FRANCHISE. The term of the Franchise
shall commence as specified in the Franchise and shall
continue for a period specified in the Franchise, unless
sooner terminated as provided in the Franchise. The value
of the Franchise at the end of the term shall be zero and no
property right shall be conferred by the Franchise itself.
4. 6 FRANCHISE REQUIRED. No Cable Communications
System shall be allowed to occupy or use the streets of the
City or be allowed to operate without a Franchise.
4.7 CITY' S RIGHT TO PERFORM PUBLIC WORKS. Nothing in
this Ordinance or the Franchise shall be in hindrance to the
right of the City or any governmental authority to perform or
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carry on, directly or indirectly, any public works or public
improvements of any description. Should the Cable Communications
System in any way interfere with the construction, maintenance
or repair of such public works or public improvements, the
Grantee shall, at its own cost and expense, protect or relocate
its Cable Communications System, or part thereof, as
reasonably directed by the City officials or any governmental
authority.
4. 8 EMERGENCY REMOVAL OF PLANT. If at any time, in
case of fire or disaster in the City, it shall become
necessary in the reasonable judgment of the City to cut or
move any of the wires, cables, amplifiers, appliances or
appurtenances of the Cable Communications System, the City
shall have the right to do so at the sole cost and expense
of Grantee.
4. 9 REMOVAL AND RELOCATION. The City shall have the
power at any time to order and require Grantee to remove or
relocate any pole, wire, cable, or other structure that is
unnecessarily dangerous to life or property. Restoration
shall be made in as good a condition or better. In the
event that Grantee after notice, fails or refuses to act
within a reasonable time, the City shall have power to
remove or relocate the same at the sole cost and expense of
Grantee.
4. 10 REMOVAL OR ABANDONMENT. Upon termination of the
Franchise by passage of time or otherwise, and unless
Grantee transfers the Cable Communications System to a
subsequent Grantee approved by the Common Council, Grantee
shall remove its supporting structures poles, transmission
and distribution systems, and all other appurtenances from
the Streets and Public Grounds and shall restore the areas
to as good a condition or better. Such removal shall be
made so as not to conflict with public health, safety or
convenience. Removal shall be completed within twelve ( 12)
months after such termination. At that time the City may
deem any property not removed as having been abandoned.
Such property may then by removed at the option of the City
at Grantee' s expense less any recoverable salvage value.
4. 11 NO WAIVER OF RIGHTS. No course of dealing
between the Grantee and the City nor any delay on the part of
the City in exercising any rights hereunder shall operate as a
waiver of any such rights of the City or acquiescence in the
actions of the Grantee in contravention of such rights
except to the extent expressly waived by the City or expressly
provided for in the Franchise.
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4. 12 LIMITATION ON USE OF FINANCIAL COMMITMENTS. Any
financial commitments obtained by the Grantee which have
been confirmed to the City pursuant to the Franchise shall
be used solely in connection with the construction,
operation or maintenance of the Cable Communications System
or the Grantee' s performance of the terms, obligations, and
conditions of this Ordinance and the Franchise.
4. 13 TRANSFER OF OWNERSHIP OR CONTROL.
A. TRANSFER OF FRANCHISE. Any Franchise granted
hereunder cannot in any event be sold, transferred, leased,
assigned or disposed of, including but not limited to by
force or voluntary sale, merger, consolidation, receivership
or other means without the prior consent of the City.
B. TRANSFER OF CONTROL OR OWNERSHIP. The Grantee
shall promptly notify the City of any actual or proposed
change in control of the Grantee. Change in control means
transfer. The word "control" as used herein is not limited
to major stockholders but includes actual working control in
whatever manner exercised.
C. CITY AUTHORIZATION. Prior City authorization is
required for every change, transfer, or acquisition of
control of the Grantee. City consent will not be
unreasonably withheld. For the purpose of determining
whether it shall consent to such change, transfer, or
acquisition of control, the City may inquire into the legal,
financial, character, technical and other public interest
qualifications of the prospective controlling party, and the
Grantee shall assist the City in any such inquiry.
Failure to provide all transfer related information
reasonably requested by the City as part of said inquiry
shall be grounds for denial of the proposed change,
transfer or acquisition of control.
D. ASSUMPTION OF CONTROL. The City agrees that any
financial institution having a pledge of the Franchise or
its assets for the advancement of money for the construction
and/or operation of the Franchise shall have the right to
notify the City that it or its designees satisfactory to the
City will take control and operate the Cable Communications
System. Further, said financial institution shall also
submit a plan for such operation that will insure continued
service and compliance with all Franchise obligations during
the term the financial institution exercises control over
the system. The financial institution shall not exercise control
over the system for a period exceeding one year, unless
extended by the City at its discretion and during said period
of time it shall have the right to petition for transfer of the
Franchise to another Grantee. If the City finds that such
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transfer, after considering the legal, financial character,
technical and other public interest qualifications of the
applicant is satisfactory, the City will transfer and assign
the rights and obligations of such Franchise as in the public
interest. The consent of the City to such transfer shall not be
unreasonably withheld.
E. NO WAIVER OF RIGHTS. The consent or approval of
the City to any transfer of the Grantee shall not constitute
a waiver or release of the rights of the City in and to the
streets, and any transfer shall, by its terms, be expressly
subordinate to the terms and conditions of the Franchise.
F. NO TRANSFER PRIOR TO COMPLETION OF CONSTRUCTION.
In the absence of extraordinary circumstances, the City will
not approve any transfer or assignment of the Franchise
prior to completion of construction of the proposed system.
G. FRANCHISE SIGNATORY. Any approval by the City of
transfer or ownership or control shall be contingent upon
the prospective controlling party becoming a signatory to
the Franchise.
H. TIMEFRAME. The City shall act on a request to
transfer the Franchise within 120 days of the Grantee' s
presentation to the Common Council requesting a transfer or
assignment. The City' s approval of any transfer or assignment
shall not be deemed an approval of the purchase price.
SECTION 5 REGULATION OF FRANCHISE
5. 1 GENERAL. The City shall exercise appropriate
regulatory authority under the provisions of this Ordinance and
applicable law. This authority shall be vested in the Common
Council or its designee to provide day-to-day
administration and enforcement of the provisions of this
Ordinance and any Franchise granted hereunder, and to carry-
out the City' s responsibility with regard to cable
communications. The City may from time to time adopt such
reasonable rules and regulations that it may deem necessary
in the exercise of its municipal powers.
5. 2 REGULATORY AUTHORITY. The City shall have the
responsibility for the administration and enforcement of
this Ordinance and the Franchise, including but not limited
to the following duties, powers and authority which may be
delegated at its discretion:
( 1) To administer and/or enforce all provisions of the
Ordinance, and any Franchise granted hereunder.
13
( 2) To receive and investigate complaints regarding
substandard service and to initiate any action
necessary pursuant to this Ordinance or the
Franchise or any applicable law or regulation to
correct the service deficiencies.
( 3 ) To represent the City' s interest before local,
state or federal government agencies in cable
communications matters.
( 4) To receive, evaluate and file all data and reports
required by this Ordinance and to rule on such
matters as appropriate under the Ordinance and
State and Federal law or regulation. The City is
hereby authorized to require adjustment to any fee,
bond or insurance coverage or amount or charge
contained herein not more frequently than bi-
annually without hearing, to compensate for
inflation or to reflect changing liability limits;
provided, however, that the City shall notify
Grantee prior to and after requiring such adjust-
ment. Inflation shall be calculated in accordance
with the regional Consumer Price Index.
( 5) To inspect at any time all construction,
installation, and ongoing operation of the Cable
Communications System, and to make such tests as
it reasonably deems necessary to ensure compliance
with the terms of this Ordinance, and the Franchise
and other applicable laws and regulations.
( 6) To conduct public hearings and evaluation sessions
as required under this Ordinance or as otherwise
necessary for the proper effective administration
of this Ordinance.
(7) To appoint and furnish staffing for one or more
advisory committees to provide advice,
recommendations and other appropriate public input
to the effective administration of this Ordinance
and the Franchise.
( 8) To receive applications for rate increases, if the
City has the authority to regulate rates, and
provide staff assistance in the analysis and
recommendations thereto.
( 9) To monitor Grantee' s adherence to operational
standards and service requirements.
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5 . 3 PERFORMANCE EVALUATION. The City and Grantee
shall, at the discretion of the City, hold annual
performance evaluation sessions. All such evaluation
sessions shall be open to the public.
Topics which may be discussed at any scheduled or
special evaluation session may include, but not be limited
to system performance, Grantee compliance with this
Ordinance and the Franchise, customer service and complaint
response, subscriber privacy, services provided, programming
offered, service rate structures, Franchise fees, penalties,
free or discounted services, applications of new
technologies, and judicial and FCC filings.
Grantee shall notify its subscribers of all evaluation
sessions by announcement on at least one channel of its
Cable Communications System between the hours of seven (7 )
p.m. and nine ( 9) p.m. , for five ( 5) consecutive days
preceding each session.
During review and evaluation Grantee and the City shall
fully cooperate with each other and shall provide such
information and documents as each may reasonably need to
perform its review.
5. 4 RESPONSE TO CITY INQUIRIES. In accordance with
the terms of this Ordinance and the Franchise, the City may, at
any time, make reasonable inquiries concerned with the
management and affairs of the Cable Communications System.
Grantee shall respond to such inquiries in a timely fashion.
5. 5 QUALITY OF SERVICE. Where the City has questions
about the reliability or technical quality of cable service, the
City shall have the right and authority to require Grantee
to test, analyze, and report on the performance of the Cable
Communications System. Grantee shall fully cooperate with
the City in performing such testing and shall prepare the
results and a report, if requested, within thirty ( 30)
days after notice. Such report shall include the following
information:
( 1) the nature of the complaint or problem which
precipitated the special tests;
( 2) the system component or area tested;
( 3 ) the equipment used and procedures employed in
testing;
( 4) the method, if any, in which such complaint or
problem was resolved; and
( 5) any other information pertinent to said tests and
analysis which may be required.
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The City may require that tests be supervised or
conducted by a City staff member or a professional engineer
who is not an employee or agent of the Grantee. Grantee
shall reimburse the City for the costs of such engineer if
the tests performed shows that the quality of service is
below the standards set forth in this Ordinance or the
Franchise.
5. 6 LIQUIDATED DAMAGES. For the violation of any of
the following provisions of this Ordinance, the City shall
notify the Grantee in writing of the violation, and the
Grantee shall be allowed not less than thirty ( 30) days, or such
greater amount of time as the City may specify, to correct
such violation. In the event the Grantee fails to correct the
violation, the City will be entitled to collect
liquidated damages according to the schedule listed below.
Such liquidated damages if not paid by the Grantee, shall be
chargeable, to the extent available, to the letter of credit
or bond tendered by Grantee within the aforesaid period of
time. These liquidated damages shall be in addition to and
not a limitation upon the other penal provisions of this
Ordinance, including penalties or revocation, or other
statutorily or judicially imposed penalties or remedies.
( 1) For failure to complete construction and
installation in accordance with the Franchise,
$100.00 per day.
( 2) For failure to submit reports or supply data in
accordance with this Ordinance, $10. 00 per day for
each day that such noncompliance continues.
( 3) For failure to test, analyze and report on the
performance of the Cable Communications System in
accordance with this Ordinance above, $25.00 per
day for each day, or part thereof, that such
noncompliance continues.
( 4) For failure to provide the capital equipment, and
facilities, and services for public, educational
and governmental access, as specified in the
Franchise, $75. 00 per day, or part thereof, that
such noncompliance continues.
The City retains the right, at its sole option, to
reduce or waive any of the above-listed penalties where
extenuating circumstances or conditions beyond the control
of the Grantee are deemed to exist. The Common Council or
its designee shall determine the City' s willingness to
reduce or waive any of the above-listed penalties.
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5.7 CONSUMER REMEDIES. In order to promote compliance
with this Ordinance and the Franchise, cable communications
subscribers under the Franchise shall have the following
rights and remedies in addition to any other remedies which
may be available as a matter of law or equity to subscribers
or others affected by the acts or omissions of the cable
company. For example, this section is not meant to limit
remedies available to subscribers under applicable laws
governing consumer fraud or to limit remedies which may be
available if as a consequence of the acts or omissions of
the Grantee a resident loses utility services. Similarly,
the remedies specified are not meant to limit any authority
subscribers may have to enforce other terms of the Franchise
against the Grantee.
This section is in addition to any damages, remedies or
other action which the City may take pursuant to its rights
under the Franchise, or pursuant to its general police
powers, or in the exercise of its rights under cable
consumer Ordinances or regulations which exist now or may be
adopted during the term of this Ordinance.
( 1) If the Grantee fails within ten days to pay a
submitted repair bill on any damage it causes to
property ( including damage which occurs during the
course of stringing or burying cable or repairing
cable) , the owner of the property shall be
entitled to recover treble damages, and in any
event no less than $100, for the period when the
property remains in such unrepaired or unsafe
condition. The Grantee shall be deemed to have
left the property in an unrepaired or unsafe
condition if the Grantee fails to repair damage to
the property or to eliminate the unsafe condition
within 24 hours after causing such property to be
damaged or after creating the unsafe condition.
( 2 ) If the Grantee fails to provide any notice which
may be required by the City, the subscriber shall
be entitled to recover treble damages for such
failure.
( 3 ) If the Grantee violates the privacy rights of any
subscriber the subscriber shall be entitled to
receive treble damages, and in any event no less
than $500, for each such violation.
( 4 ) In any event where the City determines that the
Grantee has improperly discriminated in its rates
and charges for service, the City after giving the
Grantee notice of Hearing and an opportunity to be
heard, shall identify the applicable non-
17
discriminatory rate; the subscribers which have
been adversely affected by the discrimination
shall be entitled to a refund equal to treble any
amounts paid over the nondiscriminatory rate plus
interest at the prime rate.
( 5) The Grantee shall keep a record of the date and
time it receives requests for service which
require it to obtain access to the home of a
subscriber or potential subscriber, and shall also
keep a record of the appointments made with such
subscriber or potential subscribers to provide
service. Any occasion on which the Grantee or its
agent does not cancel the appointment with the
subscriber and fails to arrive at the home of the
subscriber or potential subscriber during the
appointment period shall be considered a missed
appointment. The subscriber or potential
subscriber with whom the appointments were missed
shall be entitled to $50 damages for each
appointment missed.
( 6) If the Grantee fails to substantially follow the
procedures for disconnecting a subscriber, as set
forth in this Ordinance and/or the Franchise, the
subscriber who was improperly terminated shall be
entitled to receive treble damages.
(7) If a cable subscriber does not receive service for
more than a four hour period, the affected
subscriber shall be entitled to recover treble
damages.
In addition to the foregoing, if any subscriber
is required to bring judicial proceedings to enforce his/her
rights and remedies set forth herein, and is ultimately
successful in such judicial proceedings, then that
subscriber is entitled to recover all reasonable attorney' s
fees and expenses incurred in the prosecution of such
judicial proceedings as fixed by the Court. Notwithstanding
anything herein to the contrary, if the Grantee notifies the
subscriber in writing not less than ten days before the
initial appearance in any judicial proceeding that it will
not use an attorney in that proceeding, and thereafter does
not use an attorney, then the subscriber should not be
entitled to recover any attorney fees and expenses.
5. 8 DETERMINATION OF BREACH. In the event that the
City has reason to believe that Grantee has defaulted in the
performance of any provision of this Ordinance or the Franchise
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except as excused by force majeure, the City shall notify
Grantee in writing of the provision or provisions which the
City believes may be in default. Grantee shall have thirty
( 30) days from the receipt of such notice to:
( i) respond to the City in writing, contesting the
Grantor' s assertion of default and providing such
information or documentation as may be necessary
or;
( ii) to cure any such default or, in the event that, by
nature of the default, such default cannot be
cured within such thirty ( 30) day period to take
reasonable steps to cure the default and
diligently continue such efforts until said
default is cured. Grantee shall report to the
City in writing, at thirty ( 30) day intervals as
the Grantee' s efforts, indicating the steps taken
by Grantee to cure the default and reporting
Grantee ' s progress until such default is cured.
In the event Grantee fails to cure the default within
the stated period the City shall convene a public hearing on
reasonable notice at which hearing the Grantee may be heard
and after which the City shall specify the complaint against
the Grantee; thereafter the City shall appoint an impartial
person to act as factfinder who shall fix a date for a
hearing at which evidence shall be received and a record
kept of evidence of the complaint. The factfinder shall
report in writing to both parties with his or her findings
of fact. The Common Council shall make a finding of violation
or no violation based on those findings. In the event that the
City determines that Grantee is in default of any such
provision of this Ordinance or the Franchise, the City may
also determine to pursue any or all of the following remedies:
(a) foreclose on all or any part of the security
provided pursuant to this Ordinance, including
without limitation the performance bond and/or the
letter of credit; provided, however, the
foreclosure shall be in such amount as the City
reasonably determines is necessary to remedy the
default and shall include payment of all City
expenses incurred in connection with the fact-
finding hearing.
(b) commence an action at law for monetary damages,
including the expenses of the fact-finding
hearing.
(c) declare the Franchise to be revoked and order
Grantee to commence the removal of the Cable
Communications System immediately or to cooperate
19
with the City, or any such agency or person
authorized or directed by the City to operate the
Cable Communications System for a one year period,
in maintaining the continuity of service; and
(d) seek specific performance of any provision, which
reasonably lends itself to such remedy, as an
alternative to damages.
The Grantee may seek recourse as available by law or
regulation.
5. 9 NON-EXCLUSIVITY OF REMEDY. No decision by the City
to invoke any remedy under this Ordinance or under any statute,
law or Ordinance shall preclude the availability of any other
such remedy.
5. 10 JURISDICTION. Exclusive jurisdiction and venue
over any dispute, action or suit arising therefrom shall be in
any court of appropriate subject matter jurisdiction located
in the State of New York and the parties by this instrument
subject themselves to the personal jurisdiction of said court
for the entry of any judgment and for the resolution of any
dispute, action, or suit arising in connection with the
entry of such judgment.
5. 11 NOTIFICATION. Grantee shall file with the City
schedules which shall describe all services offered by
Grantee, all rates and charges of any kind and all terms or
conditions relating thereto. Thereafter, Grantee shall file
with the City all changes in services, all rates and charges
of any kind, and all terms and conditions relating thereto
thirty ( 30) days prior to all such changes. No rates or
charges shall be effective except as they appear on a
schedule so filed.
5. 12 FREE CONNECTIONS. Grantee shall provide upon
request and free of charge the drops set forth in the
Franchise. Grantee shall discuss the location of each
connection with the proper officials of each such
institution receiving free connection.
5. 13 PUBLICATION. All rates for subscriber services
and leasing of channels shall be published. A written schedule
of all rates shall be available upon request during business
hours at Grantee' s business office and all other
facilities. Nothing in this Ordinance shall be construed to
prohibit the reduction or waiver of charges for attracting
subscribers, or the establishment of charges and rate schedules
that may vary with volume or nature of usage or programs.
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5. 14 CREDIT FOR SERVICE INTERRUPTION. In the event
that Grantee' s service to any subscriber or user of leased
channel space is interrupted for twenty-four ( 24 ) or more
consecutive hours, Grantee shall, in addition to any remedy set
forth in section 5.7, grant expeditiously such
subscriber or user a pro-rata credit.
5. 15 RATE REGULATION. To the extent that Federal or
State law or regulation may now, or as the same may
hereafter be amended to, authorize the City to regulate the
rates for any particular service tiers, service packages,
equipment, or any other services provided by the Grantee,
the City shall have the right to exercise rate regulation to
the full extent authorized by law for the first tier of
service. For other tiers of service that may be included in
the Basic Subscriber Television Service, for which the City
shall have the right to exercise rate regulation, the City
and the Grantee shall negotiate the rate for the service.
When exercising rate regulation, the City shall consider,
along with any other information it deems necessary or
appropriate, the following factors in approving or
disapproving a rate increase request: the ability of the
Grantee to render Cable Communications System service; the
efficiency of the Grantee; the quality of the service
offered by the Grantee; the fair value cost of the Cable
Communications System less depreciation; a fair rate of
return over the life of the Franchise with respect to
Grantee' s investment; the financial commitments required to
meet the terms of this Ordinance and the Franchise; the
extent to which Grantee has adhered to the terms of this
Ordinance; fairness to City residents, subscribers and
users. The approval by the City of any purchase price
herein shall not obligate the City to consider that purchase
price as the fair value cost for rate regulation purposes or
otherwise. The City may retain rate consultants as it deems
appropriate.
5.16 FRANCHISE FEE ENTITLEMENT. The City of Ithaca
shall be entitled to receive from Grantee a Franchise fee of
five percent ( 50) of Grantee' s Gross City Revenue.
5.17 PAYMENT. The Franchise fee established in 5. 19
above shall be tendered as follows:
(i) Five percent ( 50) of Grantee' s Gross City Revenue
for successive three ( 3 ) month periods tendered
within forty-five ( 45 ) days after each such
period. Said periods shall commence upon the
execution of a Franchise granted pursuant to this
Ordinance.
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5.18 FRANCHISE AND RENEWAL EXPENSE REIMBURSEMENT.
Grantee is required to reimburse the City for the expenses of
the franchising and renewal processes such as consultants fees,
which are incidental to enforcement of the Ordinance or
Franchise. These requirements or charges shall not be
considered part of the Franchise fee.
5. 19 AFFILIATES' USE OF SYSTEM. To the extent
necessary to prevent Grantee from diverting revenues from the
operation of the Cable Communications System from Grantee
to Affiliates to the detriment of the City, Affiliates
(excluding any affiliate which provides a national or regional
programming service) shall be permitted to utilize the
Cable Communications System only if a Franchise fee on City
revenues derived therefrom is paid.
5. 20 LATE PAYMENT. In the event that the fees herein
required are not tendered on or before the dates fixed in
this Ordinance, interest due on such fee shall accrue from
the date due at an annual rate of three percent ( 30) above
the prime rate or rates of interest, at the City' s primary
depository bank.
5. 21 RECOMPUTATION. Tender or acceptance of any
payment shall not be construed as an accord that the amount
paid is correct, nor shall such acceptance of payment be
construed as a release of any claim the City of Ithaca may
have for additional sums including interest payable under
this Ordinance or the Franchise. All amounts paid shall be
subject to audit and recomputation, by an independent
auditor chosen by the City, which shall be based on a fiscal
year and shall occur in no event later than one ( 1) year
after the fees are tendered with respect to such fiscal
year. If, after audit and recomputation, an unpaid fee is
owed to the City, such fee shall be paid within thirty ( 30)
days after audit and recomputation and the Grantee shall pay
the costs of the audit. The interest on such unpaid fee
shall be charged from the due date at an annual rate of
three percent ( 30) above the prime rate or rates of interest
at the City' s primary depository bank during the period that
such unpaid amount is owed.
5.22 RIGHT OF INSPECTION OF RECORDS. The City shall
have the right to inspect all books, records, reports, maps,
plans, financial statements, and other like materials of the
Grantee as provided in this Ordinance, at any time during
normal business hours.
5. 23 RIGHT OF INSPECTION OF CONSTRUCTION. The City
shall have the right to inspect all construction or
installation work performed subject to the provisions of the
Franchise and to make such tests as it shall find necessary
to ensure compliance with the terms of this Ordinance and
other pertinent provisions of law.
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5.24 RIGHT OF INSPECTION OF PROPERTY. At all
reasonable times and for the purpose of enforcement of this
Ordinance and the Franchise, Grantee shall permit
examination by any duly authorized representative of the
City, of all cable communication system and facilities
together with any appurtenant property of Grantee situated
within the City and outside of the City if it is utilized in
the operation of the City' s Cable Communications System.
5. 25 FRANCHISE RENEWAL. Upon completion of the term
of any Franchise granted under this Ordinance, the City may
grant or deny renewal of the Franchise of the Grantee in
accordance with the provisions of the Cable Act and any
other applicable federal, state and local laws.
SECTION 6 BONDS, INSURANCE, AND INDEMNIFICATION.
6. 1 PERFORMANCE BOND AND LETTER OF CREDIT.
A. PERFORMANCE BOND. Not later than forty-five ( 45)
days after the effective date of the Franchise, the Grantee
shall obtain and maintain during the entire term of the
Franchise and any extensions and renewals thereof, at its
cost and expense, and file with the City, a corporate surety
bond in an amount specified in the Franchise to guarantee
the faithful performance of the Grantee of all its
obligations provided under this Ordinance and the
Franchise. Failure to timely obtain, file and maintain said
bond shall constitute a violation of this Ordinance.
B. CONDITIONS. The performance bond shall provide the
following conditions:
( 1) There shall be recoverable by the City jointly and
severally from the principal and surety, any and
all fines and penalties due to the City and any
and all damages, losses, costs, and expenses
suffered or incurred by the City resulting from
the failure of the Grantee to: faithfully comply
with the provisions of this Ordinance and the
Franchise; comply with all lawful orders, permits
and directives of any City agency or body having
jurisdiction over its acts or defaults; pay fees
due to the City; pay any claims due the City as
resulting from judicial action; pay any claims,
liens or taxes due the City which arise by reason
of the construction, operation, maintenance or
repair of the Cable Communications System. Such
losses, costs and expenses shall include but not
be limited to attorney' s fees and other associated
expenses.
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( 2) The total amount of the bond shall be forfeited in
favor of the City in the event:
(a) The Grantee abandons the Cable Communications
System at any time during the term of the
Franchise or any extension thereto;
(b) The Grantee assigns the Franchise without the
express written consent of the City.
C. REDUCTION OF BOND. Upon written application by the
Grantee, the City may, at its sole option, permit the amount
of the bond to be reduced or waive the requirements for a
performance bond subject to the conditions set forth below.
Reductions granted or denied upon application by the Grantee
shall be without prejudice to the Grantee' s subsequent
applications or to the City' s right to require the full
bond at any time thereafter. However, no application
shall be made by the Grantee within one ( 1) year of any prior
application.
D. LETTER OF CREDIT. In addition to the performance
bond required pursuant to paragraph A above, the City may,
in its discretion, require the Grantee to obtain, maintain
and file with the City an irrevocable letter of credit from
a financial institution licensed to do business in the State
in an amount specified in the Franchise, naming the City as
beneficiary. The form and contents of such letter of credit
shall be approved by the City and shall be released only
upon expiration of the Franchise or upon the replacement of
the letter of credit by a successor Grantee. Failure to
obtain the letter of credit within the time specified herein
shall constitute a violation of this Ordinance.
E. CONDITIONS. The City may draw upon the letter of
credit if the Grantee fails to: faithfully comply with the
provisions of this Ordinance and the Franchise; comply with
all orders, permits and directives of any City agency or
body having jurisdiction over its acts or defaults; pay fees
due to the City; or pay any claims, liens or taxes due the
City which arise by reason of the construction, operation,
maintenance or repair of the Cable Communications System.
F. USE OF PERFORMANCE BOND AND LETTER OF CREDIT.
Prior to drawing upon the letter of credit or the
performance bond for the purposes described in this Section,
the City shall notify the Grantee in writing that payment is
due and the Grantee shall have thirty ( 30) days from the
receipt of such written notice to make a full and complete
payment. If the Grantee does not make the payment within
thirty ( 30) days, the City may withdraw the amount thereof,
with interest and penalties, from the letter of credit and
the performance bond.
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G. NOTIFICATION. Within three ( 3 ) days of a
withdrawal from the letter of credit or performance bond,
the City shall send to the Grantee, by certified mail,
return receipt requested, written notification of the
amount, date and purpose of such withdrawal.
H. REPLENISHMENT OF LETTER OF CREDIT AND PERFORMANCE
BOND. No later than thirty ( 30) days after mailing to the
Grantee by certified mail notification of a withdrawal
pursuant to paragraph F above, the Grantee shall replenish
the letter of credit and/or performance bond in an amount
equal to the amount so withdrawn. Failure to make timely
replenishment of such amount to the letter of credit and/or
performance bond shall constitute a substantial violation of
this Ordinance.
I . NON-RENEWAL, ALTERATION OR CANCELLATION OF LETTER
OF CREDIT OR PERFORMANCE BOND. The performance bond and
letter of credit required herein shall be in a form
satisfactory to the City and shall require thirty ( 30) days
written notice to the City of any non-renewal, alteration or
cancellation to both the City and the Grantee. The Grantee
shall, in the event of any such cancellation notice, obtain,
pay all premiums for, and file with the City, written
evidence of the issuance of replacement bond or policies
within thirty ( 30) days following receipt by the City or the
Grantee of any notice of cancellation.
J. To offset the effects of inflation the amounts of
the bond and letter of credit provided for herein, are
subject to reasonable increases at the end of every three
( 3 ) year period of the Franchise, applicable to the next
three year period, upon the determination of the City.
Inflation compensation shall be computed in accordance with
the regional Consumer Price Index.
K. The City shall not seek recovery from the
Performance Bond or the Letter of Credit until it has
provided the Grantee with thirty ( 30) days to cure any
default.
6. 2 LIABILITY AND INSURANCE.
A. Prior to commencement of construction, but in no
event later than sixty ( 60) days after the effective date of
the Franchise and thereafter continuously throughout the
duration of the Franchise and any extensions or renewals
thereof, the Grantee shall furnish to the City, certificates
of insurance, approved by the City, for all types of
insurance required under this Section. Failure to furnish
said certificates of insurance in a timely manner shall
constitute a violation of this Ordinance.
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B. To the extent provided in the franchise agreement any
insurance policy obtained by the Grantee in compliance with
this Section shall be filed and maintained with the City
Clerk during the term of the Franchise, and may be changed
from time to time to reflect changing liability limits
and/or to compensate for inflation.
C. Neither the provisions of this Section or any
damages recovered by the City hereunder, shall be construed
to or limit the liability of the Grantee under any Franchise
issued hereunder for damages.
D. The Grantee shall provide the City with written
notice of its intention to cancel or not renew any of the
insurance policies maintained pursuant to this Ordinance or
the Franchise.
E. The Franchise shall include the provision of the
following Hold Harmless clause:
The Company agrees to indemnify, save harmless and
defend the City, its agents, servants, and employees,
and each of them against and hold it and them harmless
from any and all lawsuits, claims, demands,
liabilities, losses and expenses, including court costs
and reasonable attorney' s fees for or on account of any
injury to any person, or any death at any time
resulting from such injury, or any damage to any
property, which may arise or which may be alleged to
have arisen out of or in connection with the work
covered by this Agreement. The foregoing indemnity
shall apply except to the extent such injury, death or
damage is caused by the negligence or other fault of the
City, its agents, servants, or employees or any other
person indemnified hereunder.
F. All insurance policies provided under the
provisions of this Ordinance or the Franchise shall be
written by companies authorized to do business in the State,
and approved by the State.
G. To the extent provided in the franchise agreement at
any time during the term of the Franchise, the City may
request and the Grantee shall comply with such request, to
name the City as an additional named insured for all insurance
policies written under the provisions of this Ordinance or the
Franchise.
H. To offset the effects of inflation and to reflect
changing liability limits, all of the coverages, limits, and
amounts of the insurance provided for herein are subject to
reasonable increases at the end of every three ( 3) year
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period of the Franchise, applicable to the next three year
period, upon the determination of the City. Inflation
compensation shall be computed in accordance with the
regional Consumer Price Index.
6. 3 GENERAL LIABILITY INSURANCE. The Grantee shall
maintain, and by its acceptance of any Franchise granted
hereunder specifically agrees that it will maintain
throughout the term of the Franchise, general liability
insurance insuring the Grantee in the minimum of:
( 1) $500,000 for property damage per occurrence;
( 2) $1, 000,000 for property damage aggregate;
( 3) $1, 000, 000 for personal bodily injury to any one
person; and
( 4) $2,000, 000 bodily injury aggregate per single
accident or occurrence.
Such general liability insurance must include coverage
for all of the following: comprehensive premises-
operations, explosion and collapse hazard, underground
hazard, products/completed operations hazard, contractual
insurance, broad form property damage, and personal injury.
6. 4 AUTOMOBILE LIABILITY INSURANCE. The Grantee shall
maintain, and by its acceptance of any Franchise granted
hereunder specifically agrees that it will maintain
throughout the term of the Franchise, automobile liability
insurance for owned, non-owned, or rented vehicles in the
minimum amount of:
( 1) $1 ,000, 000 for bodily injury and consequent death
per occurrency;
( 2) $1,000,000 for bodily injury and consequent death
to any one person; and
( 3 ) $500, 000 for property damage per occurrence.
6. 5 WORKER'S COMPENSATION AND EMPLOYER'S LIABILITY
INSURANCE. The Grantee shall maintain and by its acceptance
of any Franchise granted hereunder specifically agrees that
it will maintain throughout the term of the Franchise,
Worker' s Compensation and employer ' s liability, valid in the
State, in the minimum amount of:
( 1) Statutory limit for Worker ' s Compensation.
(2) $100,000 for employer's liability.
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6 . 6 INDEMNIFICATION
A. Grantee shall, at its sole cost and expense, fully
indemnify, defend and hold harmless the City, its officers,
boards and commissions, and City employees against any and
all claims, suits, actions, liability and judgments for
damages (including but not limited to expenses for
reasonable legal fees and disbursements and liabilities
assumed by the City in connection therewith) :
( 1) To persons or property, arising out of or through
the acts or omissions of Grantee, its servants,
agents or employees.
( 2) Arising out of any claim for invasion by the
Grantee, its servants, agents, or employees of the
right of privacy, for defamation of any person,
firm or corporation, or the violation or
infringement of any copyright, trademark, trade
name, service mark or patent, or of any other
right of any person, firm or corporation.
( 3) Arising out of Grantee' s failure to comply with
the provisions of any federal, state, or local
statute, Ordinance, or regulation applicable to
Grantee in its business hereunder.
B. The foregoing indemnity is conditioned upon the
following:
The City shall give Grantee prompt notice of the
making of any claim or the commencement of any
action, suit or other proceeding covered by the
provisions of this Section. Nothing herein shall be
deemed to prevent the City from cooperating with
Grantee and participating in the defense of any
litigation by its own counsel at its sole` cost and
expense.
SECTION 7 SUBSCRIBER AND USER RIGHTS
7. 1 SUBSCRIBER SOLICITATION. Each representative or
employee of the Grantee, entering upon private property
shall be required to wear an employee identification card
issued by Grantee and bearing a picture of said
representative.
7 . 2 SALES INFORMATION. Grantee shall provide to all
subscribers annually and all prospective subscribers or
users complete written information concerning all services
and rates available to such subscriber upon solicitation of
service and prior to the consummation of any
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agreement for installation of service. Such sales material
shall clearly and conspicuously disclose the price and other
information concerning Grantee ' s least costly service. Such
information shall be written in plain English and shall
include but shall not be limited to the following: all
services, tiers, and rates; deposits if applicable;
installation costs; additional television set charges;
service upgrade or downgrade charges; lockout devices;
and information concerning the utilization of video
cassette recorders (VCRs) with cable service(s) and the
cost for hooking up such VCRs.
7. 3 BILLING PRACTICES INFORMATION. Grantee shall
inform all subscribers annually and all prospective
subscribers or users of complete information respecting
billing and collection procedures, procedures for ordering
changes in or termination of services, and refund policies,
upon solicitation of service and prior to the consummation
of any agreement for installation of service. Such
information shall be written in plain English.
7. 4 NOTICE OF INSTALLATION. Grantee shall inform all
persons in advance of the date and approximate time its
employee or agents shall enter onto such person' s property
for the purpose of installing cable communications service.
7. 5 BUSINESS OFFICE. Grantee shall maintain and
operate within the City of Ithaca a business office for the
purpose of receiving and resolving all complaints, including
without limitation, those regarding service, equipment
malfunctions or billing and collection disputes. The
business office shall have a publicly listed local telephone
number and shall be open for both telephone and walk-in
business. Grantee shall provide all subscribers or users
with at least thirty ( 30) days prior written notice of a
change in business office hours.
7. 6 NOTICE OF COMPLAINT PROCEDURE. Grantee shall
periodically, and at various times of the day, present its
business office address and publicly listed local telephone
number by means of alpha-numeric display on a local
origination channel.
7.7 RESPONSE TO SERVICE COMPLAINT. The Grantee shall
respond to requests for repair service no later than the
next business day. System outages, whole or partial, shall
be acted upon as soon as practicable. Grantee shall keep a
record of all such complaints in compliance with state law and
provide the record to the City as requested.
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7.8 UNRESOLVED COMPLAINTS. Should a subscriber or
user have a complaint which is unresolved after fourteen (14)
days after notifying grantee thereof, the subscriber or user
shall be entitled to file his complaint with the City, which
shall have primary responsibility for the continuing
administration of this Ordinance and the Franchise and
the implementation of complaint procedures. A representative
of Grantee shall be available thereafter to meet jointly with
the City and the affected subscriber or user, within thirty
( 30) days after said subscriber or user has filed the
complaint, to fully discuss and resolve the matter. If the
matter cannot be resolved, the City may use judicial
proceedings to resolve the matter; all judgments and costs for
attorney' s fees will be paid by the Grantee.
7.9 NOTICE OF PUBLIC MEETING. Whenever notice of any
public meeting relating to the Cable Communications System is
required by law or regulation, the City shall publish or
cause to be published a notice of same sufficient to
identify its time, place and purpose, in an Ithaca newspaper
of general circulation once in each of two ( 2) successive
weeks, the first publication being not less than fourteen
( 14 ) days before the day of any such hearing; and the
Grantee by periodic announcement on the programming guide
channel, and on at least one ( 1 ) channel of the Cable
Communications System between the hours of seven (7) p.m.
and nine ( 9) p.m. , for four ( 4) consecutive days during each
such week.
7. 10 SUBSCRIBER PRIVACY INFORMATION. Grantee shall at
all times protect the privacy of subscribers as provided in
this Ordinance and other applicable Federal, State and Local
laws.
7. 11 PEOPLE METER. No people meter shall be used
without the express written consent of the subscriber.
7.12 CONVERTERS. Grantee shall utilize state-of-the-
art converters.
Grantee shall make converters available to subscribers
for rent or purchase. Grantee shall allow subscribers to
purchase or rent converters from other vendors. Grantee
shall provide detailed information written in "plain
English" to consumers and upon request to any sellers of
converters on the items necessary for converter compatibility
with Grantee' s Cable Communications System. Subscribers
shall not be required to replace damaged converters rented from
the Grantee if the damage resulted from fire, flood, earthquake,
or other natural disaster or act of God.
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7. 13 INTERNAL WIRING. Grantee shall install and/or
maintain internal wiring for subscribers. As of March 1,
1989, Grantee may own the internal wiring or, at the
subscribers discretion, the subscriber may own the wiring.
Grantee shall allow subscribers or other vendors to
install, own, and/or maintain internal wiring. Any subscriber,
who duly notifies Grantee within the time period reasonably
established and advertised by Grantee, may acquire ownership of
the internal wiring at his/her premises without charge. In the
event of signal leakage grantee may terminate service consistent
with Federal law.
7 . 14 REMOTE CONTROLS. Grantee shall make remote
control units available to subscribers to purchase or rent.
Grantee shall allow subscribers to purchase or rent remote
control units from other vendors. Grantee may provide
remote control units to subscribers at no charge as a part
of its package of services. Grantee shall provide detailed
information written in "plain English" to consumers and upon
request to any sellers of remote controls on the items
necessary for compatibility with Grantee' s Cable
Communications System. Subscribers shall not be required to
replace damaged remote control units rented from the Grantee
if the damaged resulted from fire, flood, earthquake, or natural
disaster or act of God.
7. 15 PUBLIC, EDUCATIONAL AND MUNICIPAL ACCESS. The
Grantee shall ensure the development and propagation of
public, governmental and educational access as a vital
community resource. The City shall establish requirements
in the Franchise with respect to the designation of channel
capacity, facilities, equipment, and services for public,
educational and governmental use.
7. 16 LOCAL ORIGINATION. The City shall establish
enforcement mechanisms in the Franchise with regard to local
origination channel capacities, facilities, equipment, and
programming.
SECTION 8 DESIGN AND CONSTRUCTION PROVISIONS
8. 1 LOCATION OF CABLE COMMUNICATIONS SYSTEMS. Grantee
shall construct, install, operate and maintain all elements
of the Cable Communications System within the City in
accordance with the maps and other documents submitted in
connection with this Ordinance or the Franchise. Poles,
towers and other obstructions shall be erected so as not to
interfere with vehicular or pedestrian traffic over public
ways and places. The erection and location of all poles,
towers and other obstructions shall be fixed with the prior
written approval and under the supervision of the City
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pusuant to local regulation, provided, however, Grantee shall
not have a vested interest in such location; and such
construction shall be removed by Grantee at its sole cost and
expense, whenever in the judgment of the City, the same
restricts or obstructs the operation or location or any
future operation or location of public ways and places, or
whenever the City closes or abandons any public way or
place.
8. 2 DISCONNECTION AND RELOCATION. Grantee shall, at
its sole cost and expense, protect, support, temporarily
disconnect, relocate in the same street, or other streets
and public grounds, or remove from any street or any other
public ways and places, and of its property as reason of
traffic conditions, public safety, street construction,
change or establishment of street grade, or the construction
of any public improvement or structure by any City
Department.
8. 3 PRIVATE PROPERTY. Grantee shall be subject to all
laws, ordinances or regulations regarding private property
in the course of constructing, installing, operating or
maintaining the Cable Communications System in the City of
Ithaca. Grantee shall promptly repair or replace all private
property, both real and personal, damaged or destroyed as a
result of the construction, installation, operation or
maintenance of the Cable Communications System at its sole cost
and expense.
8. 4 REPAIRS AND RESTORATIONS. The Grantee shall
restore any street it has disturbed, and shall, at its own
cost and expense, restore and replace any other property
disturbed, damaged or in any way injured by or on account of
its activities to as good as the condition such property was
in immediately prior to the disturbance, damage or injury.
Restoration must be in accordance with the rules and
regulations established by the City.
8. 5 TREE TRIMMING. Grantee may trim trees or other
vegetation owned by the City to prevent branches, leaves or
roots from touching or otherwise interfering with its wires,
cables, or other structures as approved by the City.
8. 6 UNDERGROUND FACILITIES. In all areas of the City
where cables, wires, and other like facilities of the
- telephone and electric utilities are already underground,
the Grantee must also place its facilities underground. At
such time as these facilities are placed underground by the
telephone and electric utility companies or are required as
are telephone and/or electric to be placed underground by
the City, the Grantee shall likewise place its facilities
underground at its sole cost and expense. Underground cable
lines shall be placed beneath the pavement subgrade (minimum
22 inches to top of cable) .
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8.7 CITY PROPERTY. Where any damages or alterations
occur to the City' s water, sewage or drainage lines or to
any other municipal structures in the streets during the
construction due to the presence, negligence, operation or
maintenance of the Cable Communications System, the sole
cost of such repairs including all services and materials
will be billed to the Grantee and these charges shall be
paid within 60 days of receipt of notice or the City may
foreclose on performance bonds, or invoke other appropriate
sanctions provided for in this Ordinance.
8. 8 TEMPORARY RELOCATION. Grantee shall temporarily
raise or lower its wires or other equipment upon the
reasonable request of any person, including without
limitation, a person holding a building moving permit issued
by the City. The expense of such raising or lowering shall
be paid by the person requesting the same and Grantee shall
have the authority to require such payment in advance.
Grantee shall be given reasonable notice necessary to
maintain continuity of service. This provision shall not
apply to requests by the City for City purposes for which
movement there shall not be a charge by the Grantee.
8.9 CITY MAPS. The City does not guarantee the
accuracy of any maps showing the horizontal or vertical
location of existing substructures. In public-rights-of-
ways, where necessary, the location shall be verified by
excavation.
8. 10 CONSTRUCTION NOTICE. Grantee shall give
appropriate notice to the City and residents within a
reasonable period of time of proposed construction,
excavation, laying or stringing of cable under streets or on
poles, but in no event shall such notice be given less than
seven (7 ) days before such commencement.
8.11 SAFETY AND CONSTRUCTION STANDARDS. The
construction, installation, operation, maintenance, and/or
removal of the Cable Communications System shall meet all of
the following safety, construction, and technical
specifications and codes and standards.
Occupational Safety and Health Administration
Regulations (OSHA)
National Electrical Code
National Electrical Safety Code (NESC)
National Cable Television Standard Code
AT&T Manual of Construction Procedures (Blue Book)
Bell Telephone Systems Code of Pole Line
Construction
All Federal, State, and Municipal Construction
Requirements, including FCC Rules and
Regulations
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Utility Construction Requirements
All Building and Zoning Codes, and all Land Use
Restrictions as the Same Exist or may be Amended
Hereafter.
8. 12 CONTRACTORS AND SUBCONTRACTORS All contractors
or subcontractors of Grantee must be properly licensed under
all applicable Federal, State and local laws and
regulations. Grantee shall be responsible for all acts or
omissions of any such contractor or subcontractor in the
construction, installation, maintenance or operation of
Grantees Cable Communications System.
8.13 CONSTRUCTION PLAN APPROVAL. Prior to the
erection or installation by the Grantee of any towers,
poles, underground conduits, or fixtures for use in
connection with initial construction, rebuild, upgrade or line
extension of the Cable Communications System under this
Ordinance, the Grantee shall make available for City
approval a concise description of the facilities proposed to
be erected or installed, including strand maps, if required,
together with a map and plans indicating the proposed
location of all such facilities. Approval by the City shall
not be unreasonably withheld and shall be completed in a
timely manner.
For the rebuild the Grantee shall allow a City selected
engineer to inspect such information, maps and plans for five
business days in the Grantee ' s office. Prior to the five
days, the Grantee shall give the City thirty ( 30) days prior
notice that such information will be available. The Grantee
shall accommodate reasonable scheduling modifications. If
the Grantee makes a material change in any part of the
system design, the City shall be notified prior to construction
and shall have a reasonable period of time to have an engineer
review the changes in the Grantee ' s office.
No erection or installation of any tower, pole,
underground conduit, or fixture for use in the Cable
Communications System shall be commenced by any person until
approval therefore has been received from the City pursuant
to local regulation and provided further, that such approval
shall not be unreasonably withheld.
8. 14 EQUIPMENT CHANGES. Any substitution or changes
in hardware components must be for equal to or better than
the items specified in the Franchise, (e.g. , amplifiers,
cable, antennas) .
8. 15 EXTENSION OF SERVICE. The Grantee shall make
cable service available to all dwelling units and commercial
establishments within thirty ( 30) days of a request for such
service and the receipt of any applicable City, State,
Federal and utility company permits, and of permission from any
landlord or other person controlling access to such premises.
34
8. 16 ERECTION, REMOVAL AND COMMON USE OF POLES.
A. No poles shall be erected by the Grantee without
prior approval of the City with regard to location, height,
types and any other pertinent aspect. However, no location
of any pole or wire-holding structure of the Grantee shall
give rise to a vested interest and such poles or structures
shall be removed or modified by the Grantee at its own
expense whenever the City determines that the public
convenience would be enhanced thereby.
B. Where poles already exist for use in serving the
City are available for use by the Grantee, but it does not
make arrangements for such use, the City may require the
Grantee to use such poles and structures if it determines
that the public convenience would be enhanced thereby and
the terms of the use available to the Grantee are just and
reasonable.
C. Where a public utility serving the City desires to
make use of the poles or other wire-holding structures of
the Grantee, but agreement thereof with the Grantee cannot
be reached, the City may require the Grantee to permit such
use for such consideration and upon payment of the
prevailing public utility rates for make ready and pole
attachment rental, if the City determines that the use would
enhance the public convenience and would not unduly
interfere with the Grantee ' s operation.
8. 17 RIGHT TO INSPECTION OF CONSTRUCTION. The City or
its designee shall have the right to inspect at any time all
construction or installation work performed subject to the
provisions of this Ordinance and the Franchise and to make
such tests as it shall deem necessary to ensure compliance
with the terms of this Ordinance, the Franchise and all
other applicable law. Grantee shall cooperate fully with
the City during all inspections and tests and shall provide
access to all equipment records, and other materials and
information necessary for such inspections and tests.
8. 18 CONSTRUCTION REPORTING REQUIREMENTS.
A. Within thirty ( 30 ) days of the granting of a
Franchise pursuant to this Ordinance, the Grantee shall have
applied for any necessary agreements, licenses, or
certifications and shall provide the City with a written
progress report.
B. Written progress reports shall be submitted to the
City on a monthly basis throughout the entire construction
process.
35
8.19 INSPECTION. The City shall have the right to
inspect, or appraise, as specified in this Ordinance, the
plant equipment, and other cable system related property of
Grantee. Grantee shall fully cooperate and otherwise assist
in these activities.
8. 20 INITIAL PERFORMANCE TEST. Initial proof of
performance testing shall occur within sixty ( 60) days prior
to the commencement of the Cable Communications System
service to each section of the City as set forth in the
Franchise. Should performance prove defective, the defect
shall be appropriately remedied. The costs of such test
_ shall be borne solely by Grantee.
8. 21 ANNUAL PERFORMANCE TEST. Performance
requirements and standards specified in the Franchise, shall
be measured annually to ensure compliance with same. The
costs of such tests shall be borne by Grantee.
SECTION 9 MAINTENANCE AND INSPECTION
9. 1 GENERAL. Grantee shall maintain wires, cables and
all other real and personal property and facilities
constituting the Cable Communications System in good
condition, order and repair at all times during the term of
the Franchise.
9. 2 MAINTENANCE LOG. Grantee shall maintain an annual
log showing the date, approximate time and duration, type
and probable cause of all Cable Communications System
outages, whole or partial, due to causes other than routine
testing or maintenance. The entries in such log shall be
retained by Grantee for one ( 1) additional year and shall be
subject to inspection and copying by the City or its
designee during Grantee' s regular business hours upon
reasonable request.
9. 3 SERVICE INTERRUPTION. Except where there exists
an emergency situation necessitating a more expeditious
procedure, Grantee may interrupt service for the purpose of
repairing, upgrading or testing the Cable Communications
System, only during periods of minimum use, and only after a
minimum of twenty-four ( 24 ) hours notice to affected
subscribers.
9. 4 RADIATION MONITORING. Radiation monitoring shall
be conducted by all maintenance technicians on an ongoing
basis. The results of said monitoring shall be made
available to the City upon request.
36
SECTION 10 EMPLOYMENT, TRAINING AND PROCUREMENT
10. 1 EQUAL EMPLOYMENT OPPORTUNITY AND AFFIRMATIVE
ACTION PROGRAMS. Grantee shall be an Equal
Opportunity/Affirmative Action Employer adhering to all
Federal, State or municipal laws and regulations. Pursuant
to 47 CFR 76. 311 and other applicable regulations of the
FCC, Grantee shall file an Equal Employment Opportunity
Affirmative Action Program with the FCC and otherwise comply
with all FCC regulations with respect to Equal
Employment/Affirmative Action Opportunities.
10. 2 EMPLOYMENT POLICY. Grantee shall act
affirmatively to increase the number of women and members of
various minority groups to their approximate proportion in
the total population of the Franchise area at all levels of
employment and to enhance the opportunities for women and
various minority groups to advance and win promotions in all
categories of employment. As part of its obligation under
Section 10. 1 above, Grantee shall take affirmative action to
employ, during the construction, operation and maintenance
of the Cable Communications System minorities and females as
set forth in the Franchise. Grantee shall submit to the
City annual EEO reports required by the Federal
Communications Commission.
SECTION 11 BOOKS, RECORDS, AND REPORTS
11. 1 BOOKS AND RECORDS AVAILABLE TO THE GRANTOR.
A. BOOKS AND RECORDS. The City reserves the right to
inspect all pertinent books, records, maps, plans, financial
statements and other like material, of the Grantee, upon
reasonable notice and during normal business hours.
B. AVAILABILITY OF RECORDS. If any of such maps or
records are not kept in the City, or upon notice the Grantee
is unable to provide the records in the City, and if the
City shall determine that an examination of such maps or
records is necessary or appropriate to the performance of
any of their duties, then all travel and maintenance
expenses necessarily incurred in making such examination
shall be paid by Grantee.
11. 2 REPORTS REQUIRED. The Grantee shall file with
the City:
A. REGULATORY COMMUNICATIONS. All reports required by
or voluntarily submitted to the New York State Commission on
Cable Television and the Federal Communications Commission
- (FCC) related to the City of Ithaca.
37
B. FACILITIES REPORT. An annual report setting forth
the physical miles of plant construction and plant in
operation during the fiscal year shall be submitted to the
City. Such report shall also contain any revisions to the
system "as built" maps filed with the City, and copies
of all materials required by the franchise to be given to
subscribers.
C. PROOF OF BONDS AND INSURANCE. To the extent provided
in the franchise agreement Grantee shall submit to the City
the required performance bond, or a certified copy thereof,
and written evidence of payment of required premium, and all
policies of insurance required by this Ordinance, or
certified copies thereof, and written notice of payment of
required premium.
D. FINANCIAL AND OWNERSHIP REPORTS. The following
financial reports specified in the Franchise shall be
submitted annually to the City.
( 1) An ownership report, indicating all persons, who
at any time during the preceding year did control
or benefit from an interest in the Franchise of
five percent ( 50) or more.
( 2) A copy of franchisee' s annual report.
( 3 ) A report on the placement of any limited
partnership offering, if any, including the amount
subscribed and the amount paid in.
( 4) In the event that the City is asked to approve any
rate increase, the Grantee shall provide an annual,
system-wide and City-only, certified financial
report from the previous calendar year, including
year-end balance sheet; income statement showing
subscriber revenue from each category of service
and every source of non-subscriber revenue, line
item operating expenses, capital expenditures
statement, depreciation expense, interest expense
and taxes paid; statement of sources and
applications of funds; and depreciation schedule.
The City-only statements shall be on an allocated
basis and the Grantee shall provide the City with
with the assumption utilized in making the
allocations.
( 5) An annual, City-only, certified income statement.
( 6) An annual list of officers and members of the
Board of Grantee' s and of any parent corporation.
38
E. OPERATIONAL REPORTS. The following system and
operational reports shall be submitted annually to the City:
( 1) The Grantee shall provide the City with a copy of
it' s annual performance testing results as sub-
mitted to the FCC.
( 2) An annual summary of the previous year' s
activities including, but not limited to,
subscriber totals for each category of service
offered including number of pay units sold, new
services offered, and the character and extent of
the service rendered to other users of the system,
subject to Grantee' s need to protect proprietary
information.
( 3 ) An annual summary of service requests and
complaints received and handled.
( 4) An annual summary of the number of outages.
( 5) An annual summary of liquidated damages and other
penalties outstanding or paid.
( 6) An annual summary of all reports required by or
voluntarily submitted to the New York State
Commission on Cable Television and the Federal
Communications Commission (FCC) related to the City
of Ithaca.
F. ADDITIONAL INFORMATION. The Grantee shall furnish to
the City such additional information and records with respect
to its operation, affairs, transactions or property, as
may be reasonably necessary and appropriate to the
performance of any of the rights, functions or duties of the
City in connection with this Ordinance or the Franchise.
11. 3 RECORDS REQUIRED.
A. MANDATORY RECORDS. The Grantee shall at all times
maintain:
( 1) A record of all complaints received and
interruptions or degradation of service
experienced for the preceding period prior to a
performance review, consistent with the state law
and regulation.
( 2) A full and complete set of plans, records and "as
built" maps showing the exact location of all
cable installed or in use in the City, exclusive
of subscriber service drops.
39
SECTION 12 MISCELLANEOUS PROVISIONS
12. 1 CAPTIONS. The captions to sections throughout
the Franchise are intended solely to facilitate reading and
reference to the sections and provisions of the Franchise.
Such captions shall not affect the meaning or interpretation
of this Ordinance.
12. 2 SEVERABILITY. If any section, sentence,
paragraph, term or provision of this Ordinance is determined
to be illegal, invalid or unconstitutional, by any court of
competent jurisdiction upon final adjudication or by any
state or federal regulatory agency having jurisdiction
thereof, such determination shall have no effect on the
validity of any other section, sentence, paragraph, term or
provision hereof, all of which will remain in full force and
effect.
12. 3 GRANDFATHER RIGHTS. Nothing contained in this
Ordinance shall be construed to deprive Grantee or the City
of any "grandfather" rights in any future amendments to any
statute or regulation. Any such Franchise, however, shall be
subject to such regulations the City finds necessary to adopt
in the exercise of its police power, provided that such
regulations are reasonable and do not materially conflict with
the privileges granted in the Franchise.
12. 4 NOTICE. Every notice to be served upon the City
shall be sent by certified mail, postage prepaid, to the
City. Every notice to be served upon Grantee shall be sent
by certified mail, postage prepaid, to Grantee at its Ithaca
office.
12. 5 FORCE MAJEURE. If by reason of force majeure
either party is unable in whole or in part to carry out its
obligations hereunder, said party shall not be deemed in
violation or default during the continuance of such
inability. The term "force majeure" as used herein shall
mean the following: acts of God; acts of public enemies;
orders of any kind of the government of the United States of
, America or of the State of New York or any of their
departments, agencies, political subdivision, or officials,
or any civil or military authority; insurrections; riots;
epidemics; landslides; lightening; earthquakes; fires;
hurricanes; volcanic activity; storms; floods; washouts;
droughts; civil disturbances; and explosions.
12. 6 FAILURE OF CITY TO ENFORCE THE FRANCHISE, NO
WAIVER OF THE TERMS THEREOF. The Grantee shall not be
excused from complying with any of the terms and conditions
of this Ordinance or Franchise by any failure of the City
upon any one or more occasions to insist upon or to seek
compliance with any such terms or conditions.
40
u 4
JUL 0 7 190
TO: Cable Commissioners
FROM: Tom Terrizzi
RE: Proposed Op-Ed piece
DATE: July 6, 1989
Attached is a draft of the op-ed piece we talked about trying to get
run in the Journal. Your comments, additions, corrections are
appreciated.
DRAFT
CABLE COMMISSION INVITES YOUR COMMENTS
If you have a question about your cable service and you can't
seem to get an answer from ACC, who you gonna call? Why the City
of Ithaca Cable Commission, that's who.
Under the Cable Ordinance adopted by the City and the
Franchise Agreement between the City and American Community
Cablevision, the Cable Commission has the authority to monitor and
administer the cable television franchise agreement.
Whether your concerns are about the small screen, (your cable
service has been repeatedly interrupted or you have interference
with the signal coming to your home) or you are worried about the
big picture (the impending fight over ownership of Time, Inc., ACC's
parent company, and how that will affect your cable service) you can
write to us, care of City Hall, and we will take those matters up
with an ACC representative at one of our regular, public, monthly
meetings, (the second Tuesday of each month, 7:00 pm, City Council
Chambers.)
The Cable Commission consists of five appointed city
residents, who serve without pay, as cable commissioners. Our
jurisdiction and authority is limited by federal and state regulations
and the franchise agreement. There are many things we have no
control over such as the basic cable channel lineup. When ACC
changed the basic lineup, as they have the right to do under the
franchise, we heard from many irrate customers. That was good.
Even though the City does not have the power to tell to ACC which
channels to offer, we can, and did, ask ACC publicly why they made
the changes they made.
We didn't take a position in the fight over which channels
should be part of the basic tier but we did find out, for example, that
ACC chose to include the less popular WBNG from Binghamton
because they are in the process of developing a business relationship
with that station. WBNG wants to put a transmitter tower on the top
of ACC's office downtown so that city residents can receive their
channel without cable. Ithaca retains the right to regulate rates for
basic service only because seventy-five percent of city households
cannot receive three stations' signal without the cable. If two other
stations, like WBNG, erect transmitter towers in the city, rates will
become deregulated and ACC can charge what they want.
The answers to the complaints raised about programming will
be helpful to the City when it comes time to renegotiate the
franchise agreement. Public questioning and involvement can make a
difference. It was the pressure from concerned local citizens, for
example, that caused the New York State Cable Commission to reject
the fifteen year term of the franchise agreed to by the City and ACC
and to lower it to 10 years.
Since our appointment in January of this year, we have been
active in monitoring compliance with the franchise agreement. In
addition to responding to dozens of complaints and questions from
Ithaca residents, we have taken up problems raised by cable
customers living outside the city, as the outlying jurisdictions do
not have functioning cable commissions. We have called ACC to task
for its failure to provide an adequate access studio while they
constructed the new Channell3 facility. As provided for under the
franchise, we appointed an Access Advisory Board which has been
active in monitoring completion of the studio, acquisition of new
equipment and the hiring of new access personnel.
We have worked with several city residents and ACC to resolve
a problem caused by ACC's power supply boxes at two locations. We
are continuing work with ACC to develop a procedure for extending a
senior citizens discount to low income seniors.
Along with City Council, we have urged our federal
representatives to take action to reregulate the cable industry to
permit states and municipalities to have greater control over this
public utility monopoly. Citizens concerned about the unrestrained
power of their cable provider should contact their representatives in
Washington and urge them to support the repeal the Cable
Deregulation Act of 1984, which removed, with limited exceptions,
the rights of municipalities to regulate the rates and services of
cable companies.
We would like to here from you. Tell us what you like about
your service and what your complaints are. Help us create a record
of ACC's performance so that we can better evaluate their
compliance under this franchise agreement and provide information
for the city representatives who will negotiate future agreements.
y
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R......
CITY OF ITHACA
106 EAST GREEN STREET
ITHACA, NEW YORK 14850
OFFICE OF TELEPHONE: 272-1713
CITY ATTORNEY CODE 607
M E M O R A N D U M
TO: Raymond Schlather, Chairman of B & A Committee
Richard ooth, Chairman of C & O Committee
FROM: RalV_-Nash, City Attorney
DATE: July 6, 1989
RE: Paramount Cable Assignment Request
Enclosed is a copy of the letter I wrote the attorney for
Paramount. Our cable franchise agreement provides in Section 23 . 3
that " (f)or the purpose of determining whether it shall consent to
such change, transfer or acquisition of control, the City may
inquire into the legal, financial, character, technical and other
public interest qualifications of the prospective controlling
party. "
For your information the State Cable Commission will also have
to approve any proposed transfer. See copy of Executive Law S 822
enclosed. There are, however, no guidelines in the state regula-
tions for criteria for reviewing transfers.
Frankly, it would seem to me that vie would want to be satis-
fied that Paramount had the financial and institutional wherewithal
to carry out the franchise terms. This seems a given. Also, we
would want to be assured that they are properly motivated to
provide first rate service. Maybe we should inquire as to their
staffing plans for this franchise. Are they keeping the same
people and set up? Frankly, given large corporate structure what
can we really expect on this subject?
RWN:blh
enc.
.An Equal Opportunity Employer with an Affirmative Action Program"
c�Ap�RATEa��
CITY OF ITHACA
108 EAST GREEN STREET
ITHACA, NEW YORK 14BSO
OFFICE OF TELEPHONE 272-1713
CITY ATTORNEY CODE 607
July 6, 1989
Matthew J. Nothnagle, Esq.
Nixon, Hargrave, Devans and Doyle
Lincoln First Tower
Post Office Box 1051
Rochester, New York 14603
Re: Paramount Communications Inc.
Acquisition of Time Incorporated
Dear Mr. Nothnagle:
Your correspondence of June 29 , 1989, was discussed at the
regular meeting of Common Council held last evening. Your request
was referred to the Charter and Ordinance and the Budget and
Administration Committees of Common Council for review. I was also
directed to inform you that the City will consider among other
factors in judging the proposed transfer your client' s attention
to the following matters:
1. Payment of the City' s costs incurred in reviewing the
proposal for assignment;
2. Elimination of the all advertising programming on Channel
6, which is one of the basic cable channels;
3 . Withdrawal of the request for reimbursement of alleged
overpaid franchise fees (see copy of correspondence attached) .
Thank you for your attention to this matter.
Yo veryirgly,(�1C
Raip Nash
City At orney
RWN:blh
enc.
cc: Raymond Schlather, Chairman of B & A Committee
Richard Booth, Chairman of C & O Committee
"An Equal Opportundy Employe with an Affirmative Action Program"
1
ITH9�
j:
Do
po�►TEv
CITY OF ITHACA
108 EAST GREEN STREET
ITHACA, NEW YORK 14B50
OFFICE OF TELEPHONE: 272-1713
CITY ATTORNEY CODE 607
M E M O R A N D U M
TO: Ra Schl her, Chairman of B & A Committee
FROM: Ra Nash, City Attorney
DATE: June 29, 1989
RE: ATC Franchise Overpayment
Following the B & A meeting last night I did legal research
on the issue of whether the City is legally obligated to repay this
money. Enclosed is a copy of the formal request for crediting of
overpayments.
Traditionally, voluntary payment made with full knowledge of
facts cannot be recovered because it was made pursuant to mistake
of law. This rule is ameliorated somewhat by CPLR § 3005 which
provides that "when relief against a mistake is sought in an action
. . . relief shall not be denied merely because the mistake is one
of law rather than one of fact. " However, in Mercury Mach
Importing Corp. v. City of New York 3 N.Y.2d 418 , 165 N.Y.S. 2d 517
( 1957) the Court denied recovery of taxes paid as a result of a
mistake of law, despite the statute. Particular emphasis was
placed in that case on the exigencies of public finance. It is
likely that a Court faced with our claim would feel that any
decision would be discretionary and might bring on the diligence
of ATC in reviewing the matter. See Gimbel Brothers, Inc. v. Brook
Shopping Centers, Inc. 118 A.D. 2d 532, 499 N.Y.S. 2d 435 (A.D. 2,
1986) .
Unfortunately, as you can see by ATC' s letter they intend to
put us in the position of suing them on the matter. There is a
possibility that ATC will be out of the picture shortly, though,
as Paramount pictures seems to be going ahead with their tender
offer. More on this later.
RWN:blh
enc.
'An Equal Opportunity Employer with an Affirmative Action Program"
Y
Ivy W. Parish
Controller
(303)649.8021 . . ■
JUN 2 9 1989 American Television&
Cor rnunications Corporation
June 26, 1989 A Time Inc. Company
National Division
160 Inverness Drive West
Suite 300
Dominic Ca s s e r i l l o Englewood, Colorado 80112
City Comptroller (303)799-9599
City Hall
Ithaca, New York 14850
Dear Mr. Casserillo:
American Television and Communications Corporation (ATC) has been paying
franchise fees to the City of Ithaca on behalf of American Community
Cablevision at the rate of 5% of gross revenues since February, 1988. I was
recently advised that, in accordance with New York State Executive Law,
Sections 817 and 818 of Article 28, franchise fees paid to any municipality in
New York at a 5% rate should be reduced by the rate for fees paid to the New
York Cable Commission in order that total franchise fees not exceed the
maximum 5% rate stipulated in the Cable Communications Policy Act of 1984.
Since ATC did not reduce the rate for franchise fees paid to the City of
Ithaca by the rate of fees paid to the New York Cable Commission, it overpaid
franchise fees to the City by $9,279.83 for the period February 1988 - March
1989. The next payment is due to the City by August 14, 1989, for the period
April - June, 1989, and it will reflect a deduction in the amount of the over-
payment.
If the deduction of the full amount of the overpayment presents a problem,
please advise me by July 31, 1989, so that other arrangements can be made.
Sincerely,
AMERICAN TELEVISION AND COMMUNICATIONS CORP.
NATIONAL DIVISION
I'llW- &-
Iv W. Parish
Controller
IWP/djb
cc: Tom Feige
Lee Glowacki
Ralph Nash
89-O31GR
Providing entertainment and information choices.
JUL 1 3 1989
Nixon, Hargrave, Devans & Doyle
Attorneys and Counselors at Law
30 ROCKEFELLER PLAZA A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS SUITE 800
NEW YORK,NEW YORK 10112 ONE THOMAS CIRCLE
(212)586-4100 LINCOLN FIRST TOWER WASH I NGTON,D.C.20005
POST OFFICE BOX 1051 (202)223-7200
ONE KEYCORP PLAZA ROCHESTER, NEW YORK 14603
ALBANY,NEW YORK 12207 (716) 546-8000 SUITE 400,REYNOLDS PLAZA
(518)434-6000 1061 EAST INDIANTOWN ROAD
TELEX: 978450 (WUT) JUPITER,FLORIDA 33477
TELECOPIER: (716) 546-3843 (407)746-1002
990 STEWART AVENUE
GARDEN CITY,NEW YORK 11530
(516)222-1236
July 12, 1989
Ralph W. Nash, Esq.
Ithaca City Attorney
108 East Green Street
Ithaca, New York 14850
Dear Mr . Nash :
As a supplement to Paramount ' s recent application
for City approval of Paramount Communications Inc. ' s
( "Paramount" ) acquisition of Time, Inc. ( "Time" ) , I have
enclosed a memorandum regarding a temporary voting trust
procedure Paramount proposes to implement if the Federal
Communications Commission ( "FCC" ) does not quickly
complete its review of Paramount 's application for
approval of the transfer of certain FCC licenses . This
voting trust procedure should not affect cable television
in Ithaca and, in fact, underscores Paramount ' s commitment
to local control of franchises.
Please call at your earliest convenience to
discuss our application and any additional information you
may need.
Thank you for your attention to this matter.
Sincerely,
Matthew J. Nothnagle
MJN/klm
Enclosure
Re: Paramount Communications Inc. 's
Pending Applications before the
Federal Communications Commission.
This memorandum describes the approval process
before the Federal Communications Commission (the "FCC")
undertaken by Paramount Communications Inc. ("Paramount") in
connection with its pending tender offer for Time
Incorporated ("Time") .
Time and its cable subsidiaries hold numerous radio
licenses issued by the FCC, including licenses in the Cable
Television Relay Service, the Point-to-Point Microwave Radio
Service, the Domestic Fixed-Satellite Service, the Private
Operational-Fixed Microwave Service, the Relay Press Radio
Service, and the Business Radio Service. The Communications
Act of 1934 (the "Communications Act") requires the prior
approval of the FCC before control over such FCC licenses may
be transferred to Paramount as a result of the consummation
of its tender offer for Time. Paramount currently has
pending applications for all FCC approvals required to
consummate its tender offer for Time. The Communications Act
requires that the FCC find, as a prerequisite to granting its
approval , that the proposed transfers would serve the public
interest, convenience and necessity based on the applicant 's
demonstration that it possesses the requisite qualifications
to operate the licensed facilities.
r
Since the tender offer is being contested by Time
management, Paramount's FCC applications have been opposed by
Time and by other interested parties. In light of the
procedural requirements of the Communications Act and FCC
rules and policies, a final decision on the pending FCC
application for transfer of control of Time to Paramount may
take a substantial period of time.
Simultaneously with its filing of the applications
for approval of the transfer of the FCC licenses, Paramount
has also submitted to the FCC a voting trust agreement (the
"Voting Trust") which, if approved by the FCC, would permit
(but not require) Paramount to consummate its tender offer
prior to receiving FCC approval of the license transfers to
Paramount. The Voting Trust provides, among other things,
that all shares of Time stock purchased pursuant to the
tender offer would be deposited in the Voting Trust and held
by an independent trustee (the "Voting Trustee") pending
receipt of final FCC approvals.
The Voting Trust proposal submitted by Paramount to
the FCC is intended to comply with well-established FCC
procedures applicable to unsolicited tender offers. Use of
these procedures originated in 1986 as a Policy Statement of
the FCC and has been approved in several cases over the last
few years, including tender offers for companies holding
cable franchises (similar to those held by Time) or cellular
radio licenses, both of which are subject to concurrent
federal and state and/or local jurisdiction.
` r
Since the tender offer is being contested by Time
management, Paramount's FCC applications have been opposed by
Time and by other interested parties. In light of the
procedural requirements of the Communications Act and FCC
rules and policies, a final decision on the pending FCC
application for transfer of control of Time to Paramount may
take a substantial period of time.
Simultaneously with its filing of the applications
for approval of the transfer of the FCC licenses, Paramount
has also submitted to the FCC a voting trust agreement (the
"Voting Trust") which, if approved by the FCC, would permit
(but not require) Paramount to consummate its tender offer
prior to receiving FCC approval of the license transfers to
Paramount. The Voting Trust provides, among other things,
that all shares of Time stock purchased pursuant to the
tender offer would be deposited in the Voting Trust and held
by an independent trustee (the "Voting Trustee") pending
receipt of final FCC approvals.
The Voting Trust proposal submitted by Paramount to
the FCC is intended to comply with well-established FCC
procedures applicable to unsolicited tender offers. Use of
these procedures originated in 1986 as a Policy Statement of
the FCC and has been approved in several cases over the last
few years, including tender offers for companies holding
cable franchises (similar to those held by Time) or cellular
radio licenses, both of which are subject to concurrent
federal and state and/or local jurisdiction.
11%W 3
FCC approval of the Voting Trust is based on the
general premise that, because the Voting Trustee is basically
a caretaker that holds the stock after a tender offer is
consummated, no true change of control of the FCC licenses
will have been effected. During such period, Paramount would
not be permitted to communicate with the Trustee with respect
to Time's operations.
The primary duty of the Voting Trustee is to
maintain the status quo of all Times 's operations. The only
exceptions to this mandate of maintaining the status quo are
that the Voting Trustee will be obligated to take all
actions necessary to effect the tender offer or any
contractual or court-imposed obligation with respect thereto,
and to oppose any inconsistent proposal or any proposal which
would impair the preservation of the corporate assets of Time
and its subsidiaries, including its cable operations. The
Trustee is only permitted to replace or remove officers,
directors or employees of Time who resign, or who oppose,
impede or impair the preservation of the value of Time's
corporate assets or the effectuation of the tender offer or
any such contractual or court-imposed obligation, the
transfer of control of Time to Paramount after final FCC
approval, or who otherwise act in a manner inconsistent with
their fiduciary responsibilities. In all other respects, the
Voting Trustee must vote the Time shares held to maintain the
current status of the present assets, management and
operations of Time.
�./ `. 4
The obligation of Paramount to consummate the
Offer is conditioned upon, among other things, Paramount
being satisfied in its sole discretion that all material FCC
transfer approvals have been obtained on terms satisfactory
to Paramount. In order to avoid the delays in consummation
of the tender offer which the FCC transfer approvals could
entail and provided the other conditions to the tender offer
are met (including cable franchise authority approvals) ,
Paramount intends to proceed with the purchase of Time shares
and implement the Voting Trust unless, at the time the tender
offer is to be consummated Paramount has any reason to
believe that the FCC transfer approvals will not be obtained
within a reasonable time thereafter. Paramount does not know
of any reason why the FCC transfer approvals will not be
granted in a timely fashion.
The Voting Trust procedure has no impact on the
state and local approval process. In fact, the Paramount
tender offer clearly provides for the purchase of Time stock
and its transfer to the voting trust to occur only after
obtaining all material state and local franchise consents
required for the transfer of control of the affected cable
systems to Paramount. As a result, Paramount is not seeking
approval by state or local authorities to the possible
interim transfer of Time stock to the Voting Trustee. The
prior approval by state and local authorities of the transfer
of Time stock to Paramount will subsume approval of the
extremely limited and interim role the Voting Trustee might
u `„/ 5
play because FCC approvals take longer than franchise
approvals.
On June 9, 1989, the Honorable Donald H. Rumsfeld
agreed to serve as the Voting Trustee. Mr. Rumsfeld, a.
former Congressman from Illinois, was Secretary of Defense
from 1975 to 1977, chief of staff to President Ford from 1974
to 1975 and the U.S. ambassador and permanent representative
to NATO from 1973 to 1974 . During 1983 to 1984 , he served as
President Reagan 's special envoy to the Middle East. He was
the president and chief executive officer of G.D. Searle &
Co. from 1977 through 1985 and has been the senior advisor to
William Blair & Company since 1985. Mr. Rumsfeld serves on
the Board of Directors of the Rand Corp. , Kellogg Co. , Vulcan
Materials Co. , Union Camp Corporation, Westmark Systems, Inc.
and Sears, Roebuck & Co.
July 7, 1989
t
u IT
c���RA7E0
CITY OF ITHACA
10B EAST GREEN STREET
ITHACA, NEW YORK 14850
OFFICE OF TELEPHONE: 212-1113
CITY ATTORNEY CODE 607
M E M O R A N D U M
TO: Richard Booth, Chairman of Charter and Ordinance
Raymond Sch ather, Chairman of Budget and Administration
FROM: Ralph ash, City Attorney
DATE: August 10, 1989
RE: Cable Television Transfer
For your information, the enclosed correspondences came in
while I was on vacation which puts this matter to rest.
RWN:blh
enc.
"An Equal Opportunity Employer with an Affirmative Action Program"
ACC i4UG 0 1 1989
AMERICAN COMMUNITY CABLEVISION
July 28 , 1989
John Gutenberger , Mayor
City of Ithaca
108 E. Green St.
Ithaca , NY 14850
Dear Mayor Gutenberger :
On Monday , July 24 , the Delaware Supreme Court refused
Paramount's request to enjoin Time's acquisition of Warner .
Later in the day , Time acquired majority control of Warner .
Shortly thereafter , Paramount stated that it had terminated its
offer to buy Time . Consequently , Paramount is no longer seeking ,
through the purchase of Time stock , to acquire control over the
cable television operations in your community .
Sincerely ,
Barbara Lukens
General Manager
BL/fw
cc : Ralph Nash , City Attorney
Bob Hines , ACC Attorney
519 West State Street Ithaca, New York 14850 607-272-3456
Nixon, Hargrave, Devans & Doyle JULg
Attorneys and Counselors at Law
30 ROCKEFELLER PLAZA A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS SUITE 800
NEW YORK,NEW YORK 10112 ONE THOMAS CIRCLE
(212)586-4100 LINCOLN FIRST TOWER WASHINGTON,D.C.20005
POST OFFICE BOX 1051 (202)223-7200
ONE KEYCORP PLAZA ROCHESTER, NEW YORK 14603
ALBANY,NEW YORK 12207 (716) 546-8000 SUITE 400,REYNOLDS PLAZA
(518)434-6000 1061 EAST INDIANTOWN ROAD
TELEX: 978450 (WILT) JUPITER,FLORIDA 33477
990 STEWART AVENUE TELECOPIER: (716) 546-3843 (407)746-1002
GARDEN CITY,NEW YORK 11530
(516)222-1236
July 27, 1989
Ralph W. Nash, Esq.
Ithaca City Attorney
108 East Green Street
Ithaca, NY 14850
Re: Withdrawn Offer by Paramount Communications
Inc. to Acquire Time Incorporated
Dear Mr . Nash:
We recently sent you information regarding
Paramount Communications, Inc. ' s ("Paramount") tender
offer to acquire the shares of Time Incorporated and its
effect on cable television in your municipality. This
week, Paramount withdrew its offer . Thus, there is no
further need for municipal consideration of this matter.
Thank you for your consideration.
Sincerely,
VA� � � K`
Matthew J. Nothnagle
4024D
w!
ACC V
AUG 16 19A9
AMERICAN COMMUNITY CABLEVISION
August 14 , 1989
Susan A. Mulhern
Complaint Investigator
New York State Commission of Cable Television
Corning Tower Bldg. , Empire State Plaza
Albany , NY 12223
Dear Ms . Mulhern :
Allow me to introduce myself - I'm Barbara Lukens , the new
General Manager of American Community Cablevision in Ithaca . I'm
writing in response -to your letter regarding a service problem
reported by -Mr . and Mrs . Lawrence Ward .
A service representative called the Wards at 3 : 45 pm on the 24th
of July in response to their letter of complaint dated July 17 .
A message was left requesting that they return his call , however ,
he followed up by calling again the next day . Ile was informed by
the customer that they were no longer a tier customer , but would
call back in a week if they had any problems .
ACC has kept a record of all service calls cin their computer for
about the last two years . These records contain the
complainant's name and address as well as codes indicatijag the
problem which was reported and the resolution of that problem.
In reviewing these files , we found no record of calls from the
Wards or from their address . The only time this information is
not recorded is during an overall system outage or disturbance
when a large number of subscribers would be calling in to report
the same problem.
As the Wards note , WVIA-44 has always had poor reception . This
is because we receive a very poor signal at our tower site .
(This station is broadcasting from Pittston , PA. ) ACC has been
unable to get WVIA to improve the quality of its broadcast
signal . This is one station ACC would like to remove from its
channel lineup , for the very reason the Ward's state , however it
is my understanding that a previous attempt to do this was met by
strong community opposition . It is not a problem we are able to
correct .
519 West State Street Ithaca, New York 14850 607-272-3456
I am unable to comment on the problems regarding WENY or WSTM as
there are no service call records on the Wards and because
apparently this is not currently a problem (as they have not
called back) .
Our technician has been instructed to follow up with another
telephone call to ascertain if problems still exist.
Sincerely,
Barbara Lukens /
General Manager
BL/fw
cc : Lawrence and Susan Ward
John Herrewyn
Ralph Nash, City of Ithaca
a6e
AUG 2 41!19 I�
L03
AMERICAN COMMUNITY CABLEVISION
519 WEST STATE STREET
ITHACA, NEW YORK 14850
607-272-7272
Richard Herskowitz , Chairman
Access Advisory Board
6 Hillcrest Lane
Ithaca , NY 14850
August 22 , 1989
Dear Richard,
As discussed at the August Access Adivsory Board meeting , ACC
will present its revised policy manual to the Board for review at
its September meeting . I would like to emphasize several items in
advance for special consideration by the Board.
I . The first concerns the interpretation of the following
section of the Ithaca Franchise :
Sec. 14. 3. D
"Designated channels shall not be used for the promotion or
sale of commercial products or services , including
advertising by or on behalf of candidates for public
office .
CABLE 13 has had several project proposals from access producers
and complaints from viewers recently which bring into question
the proper interpretation of "non-commercial" access programming.
ACC would appreciate it very much if the Advisory Board could
give us its recommendations on the appropriate boundary between
commercial and non-commercial programming , so that we may develop
clear guidelines for access producers .
In particular , we have three recurring gray areas :
1/ program sponsors , and how they may be acknowledged
within a program (at what point does acknowledging a
sponsor become a commercial? )
2/ limits for mentioning products and for-profit entities
within a program. (at what point does a "documentary" become
a sales or promotional tape? )
3/ limits for political candidates on access . (at what
point does a political issues program become a political
endorsement or "advertisement by or on behalf of a candidate
for public office"? )
"Television for Tompkins County"
One access producer in particular, Gene Katz , has an upcoming
project for which a clear interpretation of the first two areas
would be extremely helpful . The project is a documentary of young
girls' fashion shows . Gene wishes to mention sponsors , products
and stores within the program, and claims that he can not
effectively document a fashion show without doing so. I will
contact him and suggest that he attend the September AAB meeting
and discuss his concerns with the Board directly. Even if he is
not able to attend the meeting personally, we have asked him to
submit a project description, including the manner in which he
would like to mention sponsors and products . I will bring this
material with me to the meeting.
We have also had a local attorney express concern about a recent
access program, Meet Ben Nichols. He said that he thought the
program was a political advertisement and as such not permissable
on CABLE 13 . Although Mr. Nichols has completed his live program
series , he has scheduled the programs to be rerun for the
remainder of August. As in previous years , we are very likely to
have candidates for political office appearing as guests on
various access programs , or producing their own programs ,
throughout the fall. In the past, they have been permitted to do
so, provided that at no point in the program an electoral
endorsement was made. The only exception to this was in the
context of debate programs , where both candidates were given
equal chance to speak.
II. Another area for which ACC would appreciate the
recommendations of the Access Advisory Board concerns the
interpretation of and access policies regarding "obscenity. "
Technically, other than making production and cablecasting
facilities available for non-commercial programming only, ACC is
forbidden by the 1984 Cable Act from "editing" or otherwise
interfering with the content of access programs.
Sec. 611 .e
Subject to section 624. d, a cable operator shall not
exercise any editorial control over any public, educational
or governmental use of channel capacity pursuant to this
section.
There is an option, under the Cable Act, for localities to
include in their cable franchises restrictions on "obscenity. "
Sec. 624.d
Nothing in this title shall be construed as prohibiting a
franchising authority and a cable operator from specifying,
in a franchise or renewal therof , that certain cable
services shall not be provided or shall be provided subject
to conditions , if such cable services are obscene or are
otherwise unprotected by the Constitution of the United
States .
Under the previous Franchise , which contained an obscenity
restriction, we wrote to the City describing programs which we
felt might be considered "obscene. " We asked them to advise us ,
in the absence of any local ordinence defining "community
standards" on obscenity, as to whether individual programs
should be permitted to be shown.
The new Ithaca Franchise, however, contains no reference to
obscenity, let alone any restriction on it.
We get frequent complaints from viewers about the language used
on some access programs. We occasionally get programs submitted
to us with sexually explicit visuals . We also occasionally get
programs submitted with content which would be considered racist
or politically offensive to many viewers. Currently, our policy
is a compromise, allowing any sort of content on CABLE 13, but
restricting programs containing harsh profanity or explicit
visuals to a lOpm time slot, preceded by a content warning.
Although no one has challenged this policy to date, access staff
still have a very difficult time defining the boundary for
"harsh" or explicit language and visuals .
When you review our policy manual in September, I would
appreciate it if you would give special attention to these areas .
Barbara Lukens , ACC's General Manager, will be attending the
September meeting of the Ithaca Cable Commission. Among the
topics she plans to address is the suggestion that the City of
Ithaca consider the possibility of amending the Ithaca Franchise
to place restrictions on obscene material on CABLE 13 , as
outlined in Section 624.d of the 1984 Cable Act. It would be
extremely helpful to both parties if the Access Advisory Board
could make its recommendations on this subject to the Cable
Commission at this meeting.
The minutes of the August Advisory Board meeting stated that the
next AAB meeting will be held on Wednesday, September 6, 7 : 15pm,
at CABLE 13. I have reserved our studio for that date. I will be
announcing this meeting in the next edition of our newsletter,
and encouraging volunteer producers who may have a particular
interest in any of the above areas to attend.
Cordial y,
Laure M. St
Community cces r a or
CABLE
cc : Barbara Lukens
Ralph Nash
Gene Katz
II-10
Finally, the term "franchising authority" is
defined in the Act to include any governmental entity
empowered by federal, state or local law to grant a
franchise. Section 602 (9) .
In general, in drafting or reviewing the provisions
of franchise agreements, it will be important to remain
aware of the definitions in the Act. To the extent
that franchises employ different definitions for the
same or similar terms, care must be taken to identify
the potential consequences of using different definitions.
This will be particularly important in the case of
existing. franchises, but should also be kept in mind
when drafting new franchise provisions.
3 . Section 611 -- Cable Channels for
Public, Educational or Governmental Use
Section 611 confirms the right of a franchising
authority to establish and enforce requirements pertaining
to public, educational and governmental access ( "PEG" ) .
As the Committee Report explained:
"One of the greatest challenges over
the years in establishing communications
policy has been assuring access to the
electronic media by people other than
the licensees or owners of those media.
The development of cable television,
with its abundance of channels, can provide
the public and program providers the
meaningful access that, up until now,
has been difficult to obtain. " Committee
Report at 30. 13
In the case of new franchises, section 611 provides
that the franchising authority may include in its RFP
a requirement that channel capacity on subscriber networks
be designated for PEG use, and may require that channel
capacity on institutional networks" be designated for
18 The Committee Report also suggests that a requirement
of reasonable third party access furthers First Amendment
goals and does not impermissibly regulate program content.
See Section III . Q. , infra.
14 The term "institutional network" as used in
section 611 means a communications network which is
constructed or operated by the cable operator and which
is generally available only to non-residential
subscribers.
[Feb. 1985]
II-11
educational or governmental use. Section 611(b) . In
renewal situations, including renewal proceedings
conducted in accordance with section 626, 15 the
franchising authority may specify similar PEG requirements
regarding the cable operator' s proposal for a franchise
renewal .
Significantly, section 611 does not impose any
numerical limitation upon the number of channels that
a franchising authority may require to be allocated
for PEG use. 16 However, at least with respect to
franchises granted after December 29, 1984, section 611(d)
requires franchising authorities to establish rules
and procedures to allow a cable operator to use PEG
access channels for the provision of other services
during any fallow periods in which PEG channels are
not being used for PEG purposes, and rules and procedures
under which the temporary use of PEG channel capacity
by the operator must cease. 17
Except for limited circumstances in which
section 624(d) of the Act authorizes restrictions on
obscene or similar programming, a cable operator may
not exercise any editorial control over the services
provided on channels designated for PEG use under
is See Section III . J. , infra.
16 For a discussion of some of the practical
considerations a franchising authority should consider
in establishing PEG access requirements, see Section III .
B. , infra.
17 This requirement was included in the Act in order
to address situations in some localities where there
is more channel capacity set aside for PEG use than
there is actual use of those channels. Committee Report
at 47 . Because section 611(d) refers only to the use
of PEG channels set aside in accordance with
section 611(b) (which arguably applies only to new
franchises or franchise renewals) , and not to PEG channel
capacity set aside under the grandfathering provisions
of the Act (section 637) , it could be argued that the
literal terms of the Act do not require the establishment
of those rules and procedures under existing franchises.
However, the Committee Report states that, in the case
of existing franchises, it is expected that the
franchising authority will develop rules covering the
use of unused PEG capacity expeditiously.
[ Feb. 19851
II-12
section 611 . 1e In general, the provisions of section 611
reflect a congressional determination that:
" [p]ublic access channels are often the
video equivalent of the speaker' s soapbox
or the electronic parallel to the printed
leaflet. They provide groups and
individuals who generally have not had
access to the electronic media with the
opportunity to become sources of
information in the electronic marketplace
of ideas. PEG channels also contribute
to an informed citizenry by bringing
local schools into the home, and by showing
the public local government at work. "
Committee Report at 30.
Section 611(c) permits a franchising authority
to enforce PEG access-related franchise provisions,
including provisions which were not required by the
franchising authority in its RFP. This section was
specifically intended to permit offers for the provision
of PEG services, facilities, and equipment by a cable
operator in excess of the minimum requirements in the
RFP, which are then reduced to the terms of a franchise,
to be fully enforceable by the franchising authority.
Committee Report at 46.
4. Section 612 -- Cable Channels for Commercial Use
The purpose of section 612 is to encourage
diversity of video programming by requiring the cable
operator to designate channel capacity for "commercial
use" by persons who are not affiliated with the operator.
Commercial use is defined as the provision of video
programming, l9 whether or not for profit, and does not
include the provision of any other communications service.
18 For a discussion of the First Amendment implications
of various provisions in the Act, see Section III .
infra.
19 As defined in the Act, video programming is
"programming provided by, or generally considered
comparable to programming provided by, a television
broadcast station. " Section 602 ( 16) . This definition
excludes data services, two-way services and nonvideo
interactive services.
[Feb. 1985 ]
III-B-2
e
" (2 ) rules and procedures under
which such permitted use shall cease.
" (e) Subject to section 624(d) ,
a cable operator shall not exercise any
editorial control over any public,
educational, or governmental use of channel
capacity provided pursuant to this section.
" (f) For purposes of this section,
the term ' institutional network' means
a communication network which is
constructed or operated by the cable
operator and which is generally available
only to subscribers who are not residential
subscribers. " 1
I . INTRODUCTION
An express purpose of the Act is to assure that
"the widest possible diversity of information sources
and services to the public" is provided over cable
systems. Section 601(4) . In accordance with that
objective, the Act includes provisions which authorize
the establishment and enforcement of various requirements
for public, educational, and governmental ( "PEG" ) access.
The Act also grandfathers state laws and franchise
requirements relating to PEG access that were in effect
on or before December 29, 1984 and sets forth specific
procedures for the establishment of PEG access
requirements in franchises granted after December 29,
1984.
II . SCOPE OF A FRANCHISING AUTHORITY' S POWER
A. Powers Generally
A franchising authority has broad power under
the Act to enforce PEG access provisions in franchises
granted on or before December 29, 1984 and to establish
and enforce PEG requirements in new franchises.
PEG access requirements typically fall into four
categories: ( 1) channel capacity (on both institutional
and subscriber systems) ; (2 ) equipment and facilities
1 Cable Communications Policy Act of 1984, Pub. L.
No. 98-549, § 611, 98 Stat. 2779, 2782 ( 1984) ( "the
Act" ) .
[Feb. 1985 ]
III-B-3
to support the use of PEG channels; (3 ) services provided
by the operator to support the use of PEG channels;
and (4) financial support for the development of PEG
access. In general, for franchises granted on or before
December 29, 1984, all four categories of PEG requirements
are grandfathered. For new franchises and renewals,
however, the last three categories of PEG requirements,
if not structured properly, may be unenforceable or
might be treated as franchise fee payments and subject
to the 5 percent limitation of section 622 .
The Act does not include a definition of the
term "public, educational, or governmental access. 112
Consequently, a franchising authority should have broad
discretion to determine an appropriate definition of
PEG access, consistent with the community' s needs and
interests.
Clear examples of permissible uses would include
a "public soapbox" channel, free educational programming,
and telecasts of city council meetings. But substantially
broader types of uses could also be appropriate. For
example, educational programming by a local university
probably should not be excluded solely because it includes
announcements of the availability, for a fee, of related
course materials -- and perhaps ought not be excluded
even if a fee is charged for the programming itself.
In the past, the line has been drawn between uses which
are traditionally commercial and those which are not. '
For franchises granted on or before December 29,
1984, three provisions provide important grandfathering
protections for PEG-related franchise provisions. First,
under section 624(c) , provisions of existing franchises
(i . e. , franchises in effect on or before December 29,
1984) which relate to services, facilities, and equipment,
including PEG access requirements, may be enforced even
2 The Act defines "public, educational, or governmental
access facilities" as "channel capacity designated for
[PEG] use" and related facilities and equipment.
Section 602 (13 ) . This definition is used to determine
the scope of the exemption for PEG access payments from
the 5 percent limitation on franchise fees under
sections 622(g) (2) (B) and (C) .
' The possibility of disputes as to proper uses of
PEG access channels underscores the importance of the
involvement of franchising authorities in establishing
fair rules for allocating their use.
[Feb. 19851
III-B-4
1
if they are not related to the establishment or operation
of a cable system. See Section III .H. , infra. Second,
provisions in these existing franchises which relate
to "the designation, use, or support for the use of
channel capacity for public, educational, or governmental
use" are expressly grandfathered and enforceable under
section 637(a) (1) . (According to the legislative history,
"the provisions of existing franchises covering PEG
channel capacity and its use as well as services,
facilities and equipment (such as studios, cameras,
and vans) related thereto, are fully grandfathered. "
Committee Report at 46. ) Third, for most existing
franchises (i . e. , franchises in effect on the Act' s
date of enactment -- October 30, 1984) , payments required
by the franchise "for, or in support of the use of,
public, educational, or governmental access facilities"
are not to be treated as franchise fee payments and
therefore are not to be offset against franchise fees
for purposes of the 5 percent cap. Section 622 (g) (2 ) (B) .
Additionally, section 637 (a) (2 ) grandfathers
provisions of state law "which relate . . . to [ the]
designation, use or support of . . . channel capacity"
for PEG use and which were in effect on October 30,
1984. This provision is intended to allow for the
enforcement of state laws which authorize state agencies
to establish PEG requirements by regulation. '
For new franchises and franchise renewals,
section 611 of the Act authorizes franchising authorities
to establish and enforce provisions regarding PEG access
channels and their use.
" A state would apparently not have direct authority
under the Act to enact or amend a state law after
October 30, 1984 to establish minimum access requirements
for franchises which have already been granted. A state
could, on the other hand, enact a state law under
section 636(b.) which is consistent with section 611(b)
(e.g. , a state law requiring that franchising authorities
establish minimum requirements for the set aside of
channel capacity for PEG access use in the RFP) .
Moreover, a state which has authority under a state
law in existence on October 30, 1984 to establish
requirements for the set aside of channel capacity for
PEG access could promulgate regulations after that date
setting minimum PEG access requirements, including
requirements applicable to existing franchises, to the
extent consistent with the pertinent state law.
[Feb. 1985 ]
III-B-S
In determining the scope of a franchising
authority' s powers under section 611 of the Act, two
distinct concepts are relevant. First, section 611(b)
sets forth what a franchising authority may establish
in its request for proposals ( "RFP" ) or in proposals
for renewal as minimum requirements for the designation
of channel capacity for PEG use. Second, section 611(c)
makes clear that a franchising authority may lawfully
enforce other PEG-related requirements included in the
franchise, including requirements not specified in the
RFP or request for renewal proposals. Thus, section 611
is specifically intended to permit offers for the
provision of PEG services, facilities and equipment
by a cable operator in excess of the RFP' s or request
for renewal proposal ' s minimum requirements. ' If offers
made by the operator to provide particular services
are then reduced to the terms of a franchise, they are
fully enforceable by the franchising authority. House
Committee on Energy and Commerce, Report on Cable
Franchise Policy and Communications Act of 1984, H.R.
Rep. No. 934, 98th Cong. , 2d Sess. 46 (1984) ( "Committee
- Report" ) .
B. What the Franchising Authority
May Require in a Franchise
1 . Franchises Granted on or Before
December 29, 1984
The extent to which a franchise granted on or
before December 29, 1984 may include enforceable PEG-
related requirements is determined by several provisions
of the Act authorizing the enforcement of PEG-related
requirements in existing franchises. Generally, all
PEG-related requirements of existing franchises are
governed by: (1) section 624(c) , authorizing the
enforcement of requirements for facilities, equipment,
and services included in existing franchises;
(2) section 637(a) ( 1) , authorizing the enforcement of
provisions of existing franchises which relate to the
designation or use of PEG access channels; and
(3) section 622 (g) (2 ) (B) , exempting provisions of most
existing franchises (i . e. , franchises granted on or
before October 30, 1984) that require financial support
5 This is particularly relevant in the service area
because of section 624' s prohibitions on the inclusion
of service requirements in an RFP (see Section III .H. ,
infra) .
[Feb. 1985 ]
Y v
III-Q-9
services provided on the system' s other channels. "
House Committee on Energy and Commerce, Report on Cable
Franchise Policy and Communications Act of 1984, H. R.
Rep. No. 934, 98th Cong. , 2d Sess 33-34 (1984) ( "Committee
Report" ) .
Thus, franchising authorities can -- and should --
act to further the fundamental First Amendment objective
of program diversity both in selecting among competing
franchise applicants under sections 621 or 626 and in
establishing requirements for services in the franchise
under section 624. The key to doing so successfully
will be the avoidance of unnecessary consideration of
the content of particular programming services.
IV. REGULATION OF OBSCENE OR
INDECENT PROGRAMMING
Various provisions in the Act will affect the
efforts of local franchising authorities to regulate
obscene and indecent material on cable television in
a number of ways.
It is well settled that obscene material is not
protected by the First Amendment. Miller v. California,
413 U. S. 15 ( 1973 ) ; Roth v. United States, 354 U. S.
476 ( 1957) . Miller establishes a three-part test to
determine whether material is obscene:
" (a) whether ' the average person, applying
contemporary community standards' would
find that the work, taken as a whole,
appeals to the prurient interest;
(b) whether the work depicts or describes,
in a patently offensive way, sexual conduct
specifically defined by the applicable
state law; and (c) whether the work,
taken as a whole, lacks serious literary,
artistic, political, or scientific value. "
413 U. S. at 24 (citations omitted) .
13 In Preferred Communications, Inc . v. City of Los
Angeles, No. 84-5541 (9th Cir. Mar. 1, 1985) , however,
the court noted that both sections 611 and 612 of the
Act "pose particularly troubling constitutional
questions. " Slip op. at 7 & n.4. But the court expressly
did not decide those questions. Id.
[Feb. 1985 ]
III-Q-10
In FCC v. Pacifica Foundation, 438 U. S. 726 ( 1978) ,
the Supreme Court addressed the question of whether
the regulation of speech which does not have all of
the characteristics of "obscenity" (e.g. , "indecency" )
is permissible. Pacifica arose out of an action by
the FCC concerning a radio broadcast that was indecent
but not obscene.
The Supreme Court in Pacifica recognized that
the First Amendment has a special meaning in the broadcast
context, and upheld the authority of the FCC to take
action against broadcasters for speech which falls short
of obscenity. The distinction that the Supreme Court
drew regarding the more limited First Amendment protection
for the broadcast media may also be applicable to the
medium of cable television. " First, there is a unique
pervasive presence when a medium of communications comes
in':o the privacy of the home. See 438 U. S. at 748-49 .
Second, the medium is uniquely accessible to children,
even those too young to read. Id. at 749-50.
Given this background, it should be noted that
there are three ways in which the Act permits regulation
of the provision of obscene and other materials which
are not protected by the Constitution.
First, the Act makes it a federal criminal offense
to transmit over cable systems "any matter which is
obscene or otherwise unprotected by the Constitution. "
Section 639 . The legislative history of the Act indicates
that Congress intended this restriction to apply, within
constitutionally permissible limits, to programming
which, while not obscene, may be regulated for other
reasons under the Constitution.
Second, the Act permits franchising authorities
to enact and enforce local ordinances prohibiting or
regulating obscene material and material otherwise
unprotected by the Constitution.
Third, while the Act does not explicitly authorize
a franchising authority to regulate material which is
indecent, it does permit the regulation of indecent
material in the franchise agreement in the event that
indecent material, like obscene material, is determined
to be not protected by the Constitution when provided
14 But see Carlin Communications, Inc . v. FCC,
No. 84-4086 (2d Cir. Nov. 2, 1984) , and cases discussed
infra.
[Feb. 1985 ]
III-Q-11
over a cable system. Section 624(d) ( 1) . This provision
would permit franchising authorities to prohibit or
establish conditions in the franchise regarding the
carriage of indecent material if regulation of indecent
material on cable television is found to be
constitutionally permissible in subsequent judicial
decisions.
While the Act itself does not discuss the
appropriate procedural mechanism for local regulation
of obscene and indecent material, a Senate Report
accompanying an earlier version of S. 66 suggested that
"the imposition of sanctions for the determination of
a breach of the franchise in the absence of a judicial
determination that particular speech was obscene or
otherwise unprotected by the Constitution, 115 was not
permitted. Similar language, however, was not included
in the House Report, which establishes the definitive
legislative history for both the House and the Senate.
A. Recent Court Rulings on Indecency
In recent years, local ordinances intended to
prevent obscene or indecent cable programming have not
fared well in the courts. In Community Television of
Utah v. Roy City, 555 F. Supp. 1164 (D. Utah 1982 ) ,
the court struck down as unconstitutional a Roy City
ordinance which, among other things, authorized the
revocation, of cable franchise permits or the imposition
of other sanctions for " [k]nowingly distribut[ing] any
pornographic or indecent material as defined by law
and in violation of the community standards. " Id. at
1174. The Roy City court based its decision primarily
upon the fact that, while cable signals are "invited"
into the home, broadcast signals are not. Broadcast
television, the court stated, "is pervasive because
its medium, the air, is pervasive. Transmission by
is S. Rep. No. 98-67, 98th Cong. , lst Sess. 25 ( 1983 )
( "S. Rep. " ) . The Senate committee report, however,
is generally not persuasive in establishing congressional
intent. See 130 Cong. Rec. 514,285 (daily ed. Oct. 11,
1984) ( "The Senate amendment to the House amendment
to S. 66 adopts the explanation of [ the Act] contained
in House Report 98-934, together with the explanation
and the colloquies contained in the appendices to this
legislative history. " )
[Feb. 1985 ]
III-Q-12
wire is not. " Id. at 1169. 16
Similarly, on August 2, 1983, the United States
District Court for the Southern District of Florida
enjoined the City of Miami from enforcing the provisions
of an ordinance which prohibited the distribution of
indecent material over cable television, and from
implementing the procedures established by the ordinance
for enforcement of the prohibition. Cruz v. Ferre,
571 F. Supp. 125 (S.D. Fla. 1983 ) , appeal docketed,
No. 83-5588 ( 11th Cir. Sept. 8, 1983 ) . In the Miami
case, the court -- relying substantially upon Roy City --
held that those provisions of the ordinance which tried
to regulate indecent material exceeded permissible limits
for the regulation of obscenity as set forth by the
Supreme Court in Miller v. California, 413 U. S. 15 ( 1973 ) ,
and were, therefore, unconstitutional. 571 F. Supp.
at 132 . The court expressly rejected the City' s argument
that indecent speech on cable television may be regulated
under the Supreme Court' s ruling in FCC v. Pacifica
Foundation, 438 U. S. 726 ( 1978) , relying on the perception
of greater consumer control over the receipt of cable
signals.
In addition, the Miami court ruled that the methods
and procedures of enforcement specified in the City
of Miami ' s ordinance -- which involved a proceeding
before the city manager -- violated due process. The
court found "that these procedures, by concentrating
the functions of complainant, jury, judge and
' executioner' in one person, do not comport with the
fundamental notion of fairness implicit in due process. "
571 F. Supp. at 133 . Further, the court noted that
the ordinance combines these functions "in an area of
moral judgment that might well try the neutrality and
impartiality of Solomon. " Id.
B. Relevant Provisions of the Act
Several specific provisions of the Act define
the extent to which a franchising authority may regulate
the distribution of obscene or indecent material on
a cable system. Section 639 makes the transmission
of obscene or other materials which are not protected
16 In another First Amendment cable case -- HBO v.
Wilkinson, 531 F. Supp. 98 (D. Utah 1982) -- the same
judge who decided Roy City did not even expressly consider
the Pacifica decision (although it had been handed down
four years before his decision) .
[ Feb. 19851
III-Q-13
by the Constitution a criminal offense under federal
law. Section 624(d) clarifies that the Act does not
restrict the power of a franchising authority and a
cable operator to specify in a franchise that services
which are obscene or involve other content which is
not protected by the Constitution will not be carried
over the system or will be carried only under specific
conditions. Section 638 states that the Act does not
restrict the power of a state or franchising authority
to enact or enforce laws, such as obscenity or similar
laws, under which cable programmers or operators are
civilly or criminally liable. Finally, section 612 (h)
provides that cable services which, in the judgment
of a franchising authority are obscene or otherwise
unprotected by the Constitution, may be prohibited or
restricted on channels set aside under section 612 for
commercial use by persons unaffiliated with the operator.
Each of these provisions and their legislative history
are discussed in .more detail below.
1. Section 639 - Obscene Services
Section 639 provides that:
"Whoever transmits over any cable
system any matter which is obscene or
otherwise unprotected by the Constitution
of the United States shall be fined not
more than $10, 000 or imprisoned not more
than 2 years, or both. "
This provision establishes "the Federal standard and
penalties to be applicable to cable television with
respect to pornographic programming. " Committee Report
at 95 . Section 639 outlaws all transmissions over cable
systems involving obscenity, including nonvideo
communications such as "dial-a-porn" services.
While section 639 clearly applies to the
transmission of obscene materials over cable systems,
it is not clear how it would affect indecent and similar
material. Theoretically, the term "matter which is . . .
otherwise unprotected by the Constitution" could encompass
indecent material in the event that the courts permit
the regulation of indecent materials provided over cable
systems. However, section 639 does not establish a
mechanism for the identification of these materials.
Consequently, in the event that a federal prosecutor
were to seek imposition of criminal penalties under
this provision, a court might find that the standard
[Feb. 1985 ]
III-Q-14
is not sufficiently specific to allow a criminal
conviction.
In the legislative debates over section 639,
concern was expressed that the language "otherwise
unprotected by the Constitution" could be struck down
by a court as being too vague. See, e._q. , 130 Cong.
Rec. H12, 243 (daily ed. Oct. 11, 1984) ( statement of
Rep. Bliley) . Accordingly, Congress intended the
prohibitions against "obscene" and "otherwise unprotected"
materials to be separate and severable so that "the
prohibition against obscenity should stand in the face
of any adverse decision on the prohibition against
otherwise unprotected language. " Id.
2 . Section 624 - Regulation of Services,
Facilities and Equipment
Section 624(d) provides that:
" (d) (1) Nothing in this title shall
be construed as prohibiting a franchising
authority and a cable operator from
specifying, in a franchise or renewal
thereof, that certain cable services
shall not be provided or shall be provided
subject to conditions, if such cable
services are obscene or are otherwise
unprotected by the Constitution of the
United States.
" (2 ) (A) In order to restrict the
viewing of programming which is obscene
or indecent, upon the request of a
subscriber, a cable operator shall provide
(by sale or lease) a device by which
the subscriber can prohibit viewing of
a particular cable service during periods.
selected by that subscriber.
" (B) Subparagraph (A) shall take
effect 180 days after the effective date
of this title. "
This provision permits a franchising authority
and a cable operator to specify in a franchise that
cable services which are obscene or not protected by
the Constitution will not be provided or will be provided
only under certain conditions. Committee Report at
69. With respect to the regulation of obscenity, it
[ Feb. 1985 ]
III-Q-15
is clear that franchising authorities may strictly
prohibit cable services which would violate the "community
standards" test established in Miller v. California,
413 U. S. 15 (1973) .
This provision, however, provides similar authority
with respect to the regulation of indecent material
only to the extent that the courts allow the regulation
of indecent programming on cable systems. In fact,
the Committee Report expressly notes that various state
and local statutes which include an indecency standard
have been held unconstitutional as applied to cable
television. "
Nevertheless, Congress recognized "the need to
provide for the restriction, within constitutionally
permissible grounds, on the availability of programming,
which might not be obscene, but is nonetheless
indecent . . . . " Commitee Report at 70. Section 624
deals with this issue in two ways.
First, Section 624(d) (2) requires a cable operator
to provide, by June 25, 1985, a device by which the
viewing of indecent programming by children or other
individuals can be restricted.
Second, in addition to addressing obscene speech,
section 624 covers other speech which is "unprotected
by the Constitution, " including speech which presents
a "clear and present danger" to public order. With
respect to the application of this provision to indecent
programming, the Committee Report states:
"This provision would also permit
changing constitutional interpretations
to be incorporated into the standard
set forth in 624(d) ( 1) , should those
judicial interpretations at some point
in the future deem additional standards,
such as indecency, constitutionally valid
as applied to cable. " Committee Report
at 69.
17 Committee Report at 70. See Cruz v. Ferre, 571
F. Supp. 125 (S.D. Fla. 1983 ) ; Community Television
of Utah v. Roy City, 555 F. Supp. 1164 (D. Utah 1982 ) ;
Home Box Office, Inc. v. Wilkenson, 531 F. Supp. 98
(D. Utah 1982 ) .
[ Feb. 19851
�./ 1%./
III-Q-16
Thus, indecent speech would be covered by this provision
if such speech is, in the future, judicially determined
to be constitutionally unprotected on cable television. "
In an earlier version of S. 66, there was a
provision similar to section 624(d) ( 1) . The legislative
history of that earlier provision suggested that sanctions
for the distribution of obscene or otherwise unprotected
speech may be imposed by a franchising authority only
after a judicial determination that the material in
question is unprotected. Specifically, the Senate Report
which accompanied S. 66 when it was originally approved
by the Senate on June 14, 1983, included the following
language:
"This provision of the bill is not intended
to permit municipal officials or cable
operators to substitute their own concepts
of obscene or unprotected speech for
j-udicially determined standards. Nor
does it permit the imposition of sanctions
or the determination of a breach of the
franchise in the absence of a judicial
determination that particular speech
was obscene or otherwise unprotected
by the Constitution. " S. Rep. No. 98-67,
98th Cong. , 1st Sess. 25 ( 1983 ) (emphasis
added) .
However, similar language was not included in the House
Report and the floor managers of the Act specifically
stated on the Senate floor that the Committee Report
was to serve as the Senate' s legislative history. 130
Cong. Rec. 514,285 (daily ed. Oct. 11, 1984) . Hence,
Congress may not necessarily have intended to limit
the scope of section 624(d) ( 1) to programming that has
been judicially determined in a specific case not to
be protected by the Constitution. But the First Amendment
may still prevent regulatory action against particular
programs, in the absence of any judicial determination
as to those programs -- particularly if the conditions
is It is possible that a court could find that the
holding of FCC v. Pacifica Foundation, supra, which
permits the prohibition of indecent radio programming,
is applicable to basic service on cable systems, if
not to all optional services a subscriber may elect
to receive. Basic cable service is defined as "any
service tier which includes the retransmission of local
television broadcast signals. " Section 602(2) .
[ Feb. 1985 ]
� L
III-Q-17
imposed, in effect, prevent the programming from being
viewed at all.
3 . Section 638 - Criminal and
Civil Liability
Section 638 provides, in pertinent part, that:
"Nothing in this title shall be
deemed to affect the criminal or civil
liability of cable programmers or cable
operators pursuant to the Federal, State,
or local law of . . . obscenity . . .
or other similar laws . "
The Committee Report confirms that the Act does
not affect th6 liability of an operator, under a
franchising authority' s criminal or civil ordinances
or a state law, for acts which "result from other speech
which may be held by the courts to be unentitled to
constitutional protection. " Committee Report at 95 .
Thus, section 638 makes it clear that state and
local regulation of obscenity and indecency on cable
television is not preempted by the Act. Moreover, the
legislative history of this provision suggests that
the authority for such regulation does not rest solely
with the FCC, and that if the FCC were to attempt to
regulate obscenity or indecency under provisions of
the Act (e._q. , section 639) or other federal laws,
constitutionally sound state or local regulation of
obscene or indecent material on cable television would
not be preempted. This point was established in an
important colloquy between Senators Trible and Goldwater:
"Mr. TRIBLE. I am particularly concerned
about a recent Supreme Court decision
regarding the question of FCC preemption.
In Capital Cities Cable . . . against
Crisp . . . the Court held that conflicting
State regulations are precluded when
the FCC resolves to preempt an area of
cable television regulation. According
to Capital Cities, ' If the FCC has resolved
to preempt an area of cable television
regulation and if this determination
' represents a reasonable accommodation
of conflicting policies' that are within
the Agency' s domain, United States against
Shimer, supra, at 383, we must conclude
[Feb. 1985 ]
III-Q-18
that all conflicting State regulations
have been precluded. '
"Although the Court did not specifically
address the questions of obscenity and
indecency, that case is already being
cited by plaintiffs attempting to overturn
a Utah statute regulating cable television
content. Is section 638 addressed directly
to the Supreme Court' s decision in Capital
Cities?
"Mr. GOLDWATER. Yes, it is and that
is the understanding of the conferees.
Section 638 makes clear that nothing
in this measure is to be interpreted
as granting exclusive authority for
regulating cable television content to
the FCC. Rather, States and localities
retain any authority which they would
have in this area if the Communications
Act of 1934 had never been enacted. "
130 Cong. Rec . 514, 289 (daily ed. Oct. 11,
1984) (emphasis added) .
The language "or other similar laws" in section 638
encompasses constitutionally permissible restrictions
on indecency. This point is also established in the
colloquy between Senators Trible and Goldwater:
"Mr. TRIBLE. I also wish to ask whether
section 638 applies to Federal, State,
and local laws dealing with indecency
on cable television?
"Mr. GOLDWATER. Yes, it does and that
is the understanding of the conferees.
Indecency laws are related to laws
prohibiting obscenity, and thus would
be covered by the phrase from section 638:
' and other similar laws. ' Under this
section, Federal, State, and local laws
regulating indecency on cable would be
preserved. Restrictions on indecent
programming in a broadcast context have
been upheld by the Supreme Court. For
example, the Supreme Court said in FCC
against Pacifica Foundation that indecent
speech on radio could be restricted to
certain times of day in order to protect
[Feb. 1985]
III-Q-19
children. Such restrictions on indecency -
if otherwise constitutionally permissible -
would not be preempted by this legislation
or other provisions of the Communications
Act. " 130 Cong. Rec. 514,289 (daily
ed. Oct. 11, 1984) . (Emphasis supplied. )
Thus, section 638 preserves the jurisdiction
of states and local governments to regulate, within
constitutionally permissible limits, material which
is indecent, but not necessarily obscene. It clarifies
that state and local laws in this area are not preempted
by the Act or FCC regulations. While Senator Goldwater' s
statement leaves the door open for a court to find that
the Supreme Court' s decision in FCC v. Pacifica
Foundation, supra -- permitting limited regulation of
indecent material on radio -- is applicable to cable
television, there is no indication that Congress sought
to alter the contrary holding in cases such as Cruz v.
Ferre, supra. Indeed, Senator Goldwater' s remarks are
specifically limited to restrictions on indecency which
are "otherwise constitutionally permissible. "
4. Section 612 - Cable Channels for
Commercial Use
Section 612 of the Act requires a cable operator
to set aside a certain percentage of channels for
commercial access use by persons who are not affiliated
with the operator. Section 612(b) ( 1) . The cable operator
may not exercise editorial control over these leased
access channels. Section 612 (c) (2 ) . However, with
respect to these leased access channels, section 612(h)
of the Act provides that:
" (h) Any cable service offered
pursuant to this section shall not be
provided, or shall be provided subject
to conditions, if such cable service
in the judgment of the franchising
authority is obscene, or is in conflict
with community standards in that it is
lewd, lascivious, filthy, or indecent
or is otherwise unprotected by the
Constitution of the United States. "
The language of section 612 (h) is broad and appears
to require that the franchising authority regulate
indecent, lewd, lascivious and filthy material, as well
as obscene material. In fact, the language of this
[Feb. 1985 ]
III-Q-20
provision is similar to the ordinance which was held
to be unconstitutional by the Utah district court in
Roy City.
The obligations of the franchising authority
under section 612 (h) should be construed in light of
its legislative history. Despite the seemingly broad
language of this provision, the Committee Report makes
it clear that Congress intended only to allow a
franchising authority to prohibit or establish conditions
on the provision of programming which is obscene or
determined to be "otherwise unprotected by the
Constitution. " Committee Report at 55 . There is no
indication in the legislative history to suggest that
Congress sought to define indecent material on cable
television as constitutionally unprotected speech in
the face of contrary judicial decisions. Moreover,
Congress does not have the authority to restrict speech
which the courts have determined to be constitutionally
protected. The Committee Report states only that:
" [ S]ubsection [h] empowers franchising
authorities to prohibit or condition
the provision of cable services which
are obscene or otherwise unprotected
by the Constitution. By its express
terms, 612 (h) adopts the Supreme Court' s
formulation [ in Miller v. California,
supra] which permits the issue of obscenity
to be determined by resort to local
community standards. " Committee Report
at 55 .
The Committee Report also refers to section 624(d) for
a more extensive analysis of the issues addressed in
section 612 (h) . As discussed above, section 624(d)
deals with services which are obscene or otherwise
unprotected by the Constitution and does not separately
define indecent material as unprotected speech.
Section 612 (h) is limited to a specific type
of programming -- i . e. , that which is carried on
commercial leased access channels -- the content of
which cannot be controlled by the cable operator.
Moreover, section 612 (h) authorizes the franchising
authority to fulfill its obligations under this provision
by requiring that services be provided "subject to
conditions, " instead of banning the service. By contrast,
the local ordinances involved in Roy City and Ferre
flatly prohibited distribution of indecent material
[ Feb. 1985 ]
III-Q-21
under any circumstances. As the court noted with respect
to the City' s ordinance in Cruz v. Ferre, 571 F. Supp.
at 131 : "The ordinance' s prohibition is wholesale,
without regard to the time of day or other variables
indispensable to the decision in Pacifica. " Thus, the
franchising authority can comply with section 612 (h)
by establishing regulatory requirements (e.g. , time
of day restrictions and prior notice requirements that
would facilitate the use of lock boxes required by the
Act) which operate as restrictive conditions rather
than as a complete prohibition, and which therefore
should be less vulnerable to constitutional challenge.
C. Conclusion
The foregoing discussion reveals that the Act
should affect the regulation by local franchising
authorities of obscene or iniecent material on cable
television in at least four significant ways.
First, the Act clearly sanctions restrictions
on the provision of programming which is obscene or
not protected by the Constitution in other ways.
Section 639 of the Act makes it a violation of federal
law to transmit any material over cable which is obscene
and establishes criminal penalties for violation of
this prohibition.
Second, the Act makes clear that a state or
franchising authority is not preempted from enacting
and enforcing laws to supplement the enforcement
activities of the United States Attorney with respect
to the regulation of obscene and other material which
is not protected by the Constitution. 19 Further, neither
existing nor future FCC regulations will preempt such
a local ordinance or state law. See Sections 624(d)
and 638.
19 Although the terms of the Act and its legislative
history directly address restrictions on obscene or
indecent material, the regulation of other types of
speech, such as false or misleading advertising, may
also be permissible under the Act and the First Amendment.
See, e._q. , Virginia Pharmacy Board v. Virginia Citizens
Consumer Council, 425 U. S. 748, 771-72 ( 1976) . Thus,
local jurisdictions should also have authority to protect
their citizens from such practices. See Section III .M. ,
supra.
[Feb. 1985 ]
III-Q-22
Third, to the extent that a franchising authority
wishes to regulate the distribution of materials which
are indecent, but not obscene, the Act suggests several
possible methods of regulation. However, the scope
of permissible regulation under the relevant provisions
will depend upon future judicial decisions clarifying
the extent to which indecent materials on cable television
may be regulated or restricted.
Fourth, the section-by-section analysis of the
Act contained in the Senate Report suggests that the
Act does not permit a municipality to impose sanctions
"in the absence of a judicial determination that
particular speech was obscene or otherwise unprotected
by the Constitution. " S. Rep. at 25 . However, similar
language does not appear in the Act itself or in the
Committee Report. It is unclear, therefore, whether
the Act contemplates that local regulation must require,
in the first instance, a judicial determination that
the material in question is not protected by the
Constitution. 20
V. GOVERNMENT OWNERSHIP OF CABLE SYSTEMS
It is too early to predict with any certainty
how the courts will analyze the First Amendment
implications of municipal ownership of cable systems
under the Act. 21 As noted above, there are as yet no
Supreme Court decisions which articulate First Amendment
standards directly applicable to cable and there are
still relatively few lower court decisions in this area.
As stated in Berkshire Cablevision of Rhode Island,
Inc. v. Burke, 571 F. Supp. 976, 980 (D. R. I . 1983 ) ,
" [ a] lthough cable television operators are undoubtedly
engaged in some forms of speech protected by the First
20 From a constitutional standpoint, it is well settled
that the combination of investigative and adjudicative
functions in one municipal officer does not, without
more, constitute a due process violation. Cruz v. Ferre,
supra, 571 F. Supp. at 133 , citing Withrow v. Larkin,
421 U. S. 35, 58 ( 1975) . Indeed, a party alleging a
due process violation must prove through "special facts
and circumstances" that the combination of functions
creates a "risk of unfairness [which] is intolerably
high. " Id.
21 Section 613 (e) ( 1) of the Act provides, in general,
that "a State or franchising authority may hold any
ownership interest in any cable system. "
[Feb. 19851
rm!ABLE
AMERICAN COMMUNITY CABLEVISION
519 WEST STATE STREET
ITHACA, NEW YORK 14850
607-272-7272
John Efroymson , Producer
More Than the News
420 N. Cayuga St.
Ithaca , NY 14850
August 28 , 1989
Dear John ,
This letter is in reference to Sec . 14 . 3 . D of Ithaca's Franchise
with American Community Cablevision regarding the permissable use
of public access channels :
"Designated channels shall not be used for the promotion or
sale of commercial products or services , including
advertising by or on behalf of candidates for public
office . "
Despite continued warnings on the subject by access staff , More
Than the News has repeatedly violated the franchise restriction
on political' endorsements on the access channel . During previous
years' election seasons , More Than the News has made
endorsements , or included segments with guests making
endorsements , of a number of politicAl candidates , from Jesse
Jackson and (after the primary) Michael Dukakis , to John
Gutenberger.
This year, a More Than the News program included an endorsement
of your own candidacy for Common Council shortly after you
entered the race . At the end of the live cablecast of that
program, I spoke with you at length about the franchise violation
and abuse of access privileges involved in the endorsement
included in the show. I read the franchise passage to you , and
discussed the matter with both yourself and Mary Euell , the
crewmember making the endorsement on the program. I warned you
about making political endorsements in the future .
On the August 22 edition of More Than the News , you ran another
blatent political endorsement. This one featured Arzeymah Raqib ,
speakfng as a representative of the Rainbow Coalition, making an
explicit endorsement of Ben Nichol's candidacy for mayor in
Ithaca.
Your series production reservation form includes the following
two passages which are relevant in the event of misuse of access
"Television for Tompkins County"
facilities :
1/ "I also understand that this equipment is to be used only
for providing Public Access Programming for ACC's Public
Access channel, and that I will be held legally and
financially responsible for any use of this equipment for
other than its intended purpose . "
2/ "ACC reserves the right to suspend or revoke all
privileges to ACC equipment and facilities. "
According to current policies , and the series production and
cablecasting agreement which you signed to produce your program,
you are liable for the following penalties for misusing community
access facilities and services :
1/ ACC is not obligated to provide free . production
facilities for programs containing political commercials or
other commercial programming not permitted under the
franchise on access channels . You are liable for the
commercial cost of the production time used to produce
programming containing political endorsements .
2/ ACC is not obligated to provide free cablecasting
facilities for programs containing political commercials .
You are liable to be charged a fee for the cablecasting time
used to cablecast a program containing political
endorsements .
3/ In the case of an access producer misusing access
facilities , ACC reserves the right to suspend or revoke
access privileges .
Attached is an invoice for the production and cablecasting time
used for the August 22 edition of More Than the News. Along with
the invoice is a copy of rates for commercial use of access
production facilities . As we do not make commercial cablecasting
time available , the cablecasting rate is taken from current
Channel 7 reduced rates for commercial political programming.
Rather than insist on payment of this bill , ACC would like to
defer consideration of this matter to the Access Advisory Board ,
which will be meeting on Wednesday, September 6 , at the access
studio. ACC is willing to waive these charges on this occasion,
if that is the recommendation of the Advisory Board . I would like
to have their recommendations as to :
I/ Whether, given that your program has contained multiple
incidents of political commercials in the past, and has been
given multiple warnings on the subject ; and in consideraton
of fairness to other candidates running in local races , it
is appropriate to allow this franchise violation to pass
with one more warning ;
2/ At what point in cases of franchise violation by an
access producer, a suspension or revocation of access
privileges should be imposed.
Please be advised that no further warnings will be given with
respect to your liability, as producer , for the production and
cablecasting cost of programs with commercial content. The next
time such a commercial is noted on your program, a bill will be
issued. Until such a bill is either paid in full , or a payment
plan worked out with ACC's billing department, your privileges to
use CABLE 13 production and cablecasting facilities will be
suspended.
Copies of this letter will be forwarded to Richard Herskowitz ,
Access Advisory Board Chair , Janice Streb, Ithaca Cable
Commission Chair, and Ralph Nash, Ithaca City Attorney.
I strongly urge you to present your views on this matter to the
Advisory Board at their next meeting. I have already asked the
Board (in a letter to Richard of August 22 , 1989) to consider the
boundary between commercial and non-commercial programming at
this meeting, outlining problems and questions we have had
regarding this franchise restriction. I hope that as they begin
their review of access policies , they will give particular
attention to advising us in this area .
If you have any questions , please feel free to contact me .
Sincere
Lauren Stefan i
Community Access C di ato
CABLE 13
cc : Richard Herskowitz , Chair , Access Advisory Board
Barbara Lukens , ACC General Manager
Ralph Nash, Ithaca City Attorney
Janice Streb, Chair, Ithaca Cable Commission
CABLE
AMERICAN COMMUNITY CABLEVISION 13
519 WEST STATE STREET
ITHACA, NEW YORK 14850
607-272-7272
INVOICE FOR CABLE 13 COMMERCIAL SERVICES
Date : August 23 , 1989
Services Provided To : John Efroymson
420 Cayuga St.
Ithaca , NY 14850
Program Title : More Than the News
Production Date : August 22 , 1989
Fee Explanation : Community access facilities were
reserved for access production , but
used to produce and cablecast a program
containing endorsement of a current
political candidate . This is considered
a commercial use of access facilities .
It is restricted under Ithaca's
franchise . Unlike access facilities ,
commercial production facilities are not
provided without charge by ACC.
Studio time reserved : 3 hours , 4-7pm , 8/ 22/89
Rate : $110/hour $330
Editing time reserved : 2 hours , 3-5pm , 8/22/89
Rate : $100/hour $200
Cablecasting Time : 1 hour
6-6 : 30pm and 10-10 : 30pm, 8/22/89
Rate : $45/half hour $90
[ reduced rate for political commercials ]
Total : $620 . 00
Payment Due : Immediately
Additional Penalty : As this invoice is occasioned by the misuse
of community access facilities , your access privileges are
suspended until this bill is paid . An extended payment plan may
be arranged with ACC's billing department at ACC's discretion.
` Fetevision for Tompkins County"
r
LE13
AMERICAN COMMUNITY CABLEVISION
519 WEST STATE STREET
ITHACA, NEW YORK 14850
607-272-7272
CABLE 13 PRODUCTION FACILITIES COMMERCIAL USE RATES
Effective August 1 , 1989
CABLE 13 studio and editing production facilities are available for
commercial rental Monday through Friday , from 9 am until 12pm .
Reservations must be made at least one week in advance .
Edit Suite
SVHS , VHS or 3/4" U-Matic cuts-only editing to 3/ 4"
Includes TBC and character generator .
$ 100 per hour
Studio
3 3-CCD camera studio
$110 per hour
CABLE 13 portable facilities are available for 24 hour rental . No
advance reservations are possible , as priority is given to access
producers . Same-day reservations only . A deposit is required .
3/4" Portable Kit
Sony 1800 camera and 4800 VCR
$ 125 per day
S-VHS Camcorder
Panasonic AG-450
$50 per day
NOTE :
1 . Prices quoted above do not include operator . Facility may only be
reserved by access producers trained on equipment to be used .
2 . All fees are payable at the completion of each facility use .
"Television for Tompkins County"
ACCI
AMERICAN COMMUNITY CABLEVISION
August 25, 1989
Ralph Nash, City Attorney
City of Ithaca
108 E. Green St.
Ithaca, NY 14850
Dear Mr. Nash:
I 'm sending a copy of the attached letter to keep you apprised of
a situation which could ultimately affect the City of Ithaca and
ACC in a negative manner. As I 'm sure you know, our franchise
agreement prohibits the use of access channels for commercials or
political endorsements.
After repeated warnings to cease this practice of endorsing
political candidates and in spite of having signed a statement
agreeing not to misuse the facility, such agreement indicating
that the the penalty would be financial, we have found it
necessary to charge Mr. Efroymson for studio, editing and air
time as a result of his continued unwillingness to abide by the
stated policies .
We at ACC felt obligated to uphold the policy to protect the City
of Ithaca and ACC from potential lawsuits brought by those
candidates who are using proper procedures and who are buying air
time.
I hope you are in agreement with both the measures we have taken
and the reasons for doing so.
Sincerely,
Barbara Lukens
General Manager
BL/fw
CC: Janice Streb
City Cable Commission
enc .
519 West State Street Ithaca, New York 14850 607-272-3456
c�q��►T�Q`00
CITY OF ITHACA
10B EAST GREEN STREET
ITHACA, NEW YORK 14850
OFFICE OF TELEPHONE: 272-1713
CITY ATTORNEY M E M O R A N D U M CODE 607
TO: Ri and ooth, Chairman of Charter and Ordinance
FROM: Ra� �. Nash, City Attorney
DATE: Se mber 20, 1989
RE: Use of Access Channels for Political Advertising
As you may know there has been a controversy brewing regarding
Article XIV, Section 14. 3 (D) of the Cable Franchise Agreement which
reads as follows:
Designated channels shall not be used for the
promotion or sale of commercial products or services,
including advertising by or on behalf of candidates for
public office.
The City' s Cable Commission and ACC have been sparring over
the proper interpretation of this clause. It seems to me, however,
that it can only be interpreted to bar endorsements of candidates.
ACC appears to have no great desire to retain the provision
regarding candidates for public office. We would need Common
Council authorization to amend this provision, however.
I would like your committee to review and forward to Common
Council with its recommendation the following:
RESOLVED, that the Common Council does hereby approve
amendment of the Cable Franchise Agreement with American Community
Cablevision, Article XIV, Section 14. 3 (D) thereof to remove the
prohibition on advertising and/or endorsement of political
candidates. Said provision shall, after amended, read as follows:
Designated channels shall not be used for the promotion or
sale of commercial products or services.
RWN:blf
cc: David Lytel, Alderman
Barbara Lukens, ACC General Manager
Janice Streb, Chairman of Cable Commission
-An Equal Opportunity Employer with an Affirmative Action Program"
, -ACC
AMERICAN COMMUNITY CABLEVISION _
September 21, 1939
Channel 13 Political Endorsements Policy
The cable television franchise agreement for the City of Ithaca
prohibits political advertising and endorsements on the access
channel, CHANNEL 13. ACC, as party to that agreement must uphold
that provision and will not allow political endorsements and
advertising on CHANNEL 13 until or unless the franchise is
amended to allow it.
Although the city' s Cable Commission recommended adopting a
resolution to allow such endorsements, both the city attorney and
ACC agreed that a change can be made only by changing the
franchise agreement.
There is a possibility that an amendment will be proposed. At
that time, both ACC and the City of Ithaca will have an
opportunity to review the amendment and determine whether or not
to make it a part of the franchise agreement.
Sincerely,
AL�4'l-),-
Barbara
Lukens
General Manager
BL/fw
cc: Ralph Nash
Lauren Stefanelli
Posted at CHANNEL 13
v
519 West State Street Ithaca, New York 14850 607-272-3456
u
ACC
AMERICAN COMMUNITY CABLEVISION
September 21, 1939
Channel 13 Political Endorsements Policy
The cable television franchise agreement for the City of Ithaca
prohibits political advertising and endorsements on the access
channel, CHANNEL 13. ACC, as party to that agreement must uphold
that provision and will not allow political endorsements and
advertising on CHANNEL 13 until or unless the franchise is
amended to allow it.
Although the city' s Cable Commission recommended adopting a
resolution to allow such endorsements, both the city attorney and
ACC agreed that a change can be made only by changing the
franchise agreement.
There is a possibility that an amendment will be proposed. At
that time, both ACC and the City of Ithaca will have an
opportunity to review the amendment and determine whether or not
to make it a part of the franchise agreement.
Sincerely,
Barbara Lukens
General Manager
BL/fw
ccs Ralph Nash
Lauren Stefanelli
Posted at CHANNEL 13
519 West State Street Ithaca, New York 14850 607-272-3456
Oe,C 1e rel
IACC
AMERICAN COMMUNITY CABLEVISION
Ithaca Cable Television Commission
c/o Janice Streb, Chair
121 East Shore Circle
r Ithaca, NY 14850
1 Dear Janice,
1
In accordance with our franchise, this letter is to notify the
Ithaca Cable Television Commission of a change in our rate
structure that will take place on October 1 , 1989.
i
The first of these changes has to do with a fee for the
installation of multiple additional outlets. ACC ' s current
policy is to install at no charge all extra outlets requested by
subscribers. This policy has caused a significant increase in
demand (usually several additional outlets per home ) spreading
our installation workforce too thin and creating difficulty with
performing regular work. Our plan is to make no changes to the
installation fee for the primary outlet ( initial installation )
and to continue to install the first extra outlet free of charge .
Any outlets beyond those first two will be charged at an
installation rate of $35 . 00 each, which is less than the cost of
time and materials to do the work. As is our policy, subscribers
will not pay a monthly fee for any of the extra outlets.
The second change is to our rates for pay (premium) channels.
The current charge for a pay channel is $9. 95, inclusive of the
franchise fees . As of October first we w_71 be charging $9 . 95 '
plus the franchise fees. In addition there will no longer be a
discount for choosing to take more than one pay service . We are,
however, moving Bravo from a pay service to the supertier as well
as adding the new Comedy Channel . I am uncertain as to when the
Comedy Channel will actually launch, although I believe it will
be in October or November of this year.
Sincerely, l
Barbara L. Lukens,
General Manager
cc: John Gutenberger, Mayor
David Lytel, Common Council
Ralph Nash, City Attorney
519 West State Street Ithaca, New York 14850 607-272-3456
Minutes of the Access Advisory Board
meeting of September 6, 1989
The meeting was called to order at 7: 15 in the community access
facility.
Present were; Marilyn Rivchin, John Efroymson, Richard Herskowitz,
Lauren Stefanelli, Mary Jo Dudley, Rick Lawrence, Carl Frederick,
and Annie Ball.
Proposed Agenda :
1 ) Public comment
2) ACC Report- Lauren Stefanelli
3) Public comment regarding ACC concerns
4) Political speech
5) Commercial speech
Public comment:
Damien Furburg expressed concern over the issue of financial
sponsorship for the student productions. He voiced concern over the
financial burden assumed by the students while producing their
show. He requested further clarification regarding the solicitation
of sponsors and their promotion on public access. As a
representative of the student group, he urged the board to examine
options which would lead to increased financial support for their
production.
Eloise Green of ICB-TV requested that current ICB underwriting
policies (see attachment) be approved by the Advisory Board as part
of the discussion regarding commercial speech.
ACC Report: '
Lauren Stefanelli distributed copies of the current access
newsletter, ACC Policies and Procedures (revised October, 1988),
the Access 1989 Equipment Package Invoices, and the current ICB
Underwriting Policies.
LS requested advise from the board regarding the interpretation of
appropriate political and commercial speech for access. She also
requested the board's view regarding penalties for violations. RH
read a letter sent to him from LS regarding the above mentioned
issues. RH suggested that we review the revised ACC Policies and
Procedures for comment at the next meeting and limit this meeting's
discussion to the section of the Policies and Procedures which
refers to content restrictions (see page 17). LS agreed to make
copies of the revised Policies and Procedures available to access
users for recommendation. RH suggested that a subcommittee be set
up before the next meeting to review the Policies and Procedures to
make recommendations to the board. Rick Lawrence and Marilyn
Rivchin volunteered to review them.
LS spoke of two incidents that raised questions regarding the issue
of political speech: the Meet Ben Nichols program and More Than the
News.
ACC's position regarding the Meet Ben Nichols program was that Ben
(who is currently seeking a political office) according to current
guidelines is free to talk about whatever he please as long as he
doesn't endorse himself or have someone else on the program
endorse him, in the past other candidates (Reuben Weiner) have
produced programs on access. The city attorney advised ACC to let
the program run. Debates with both candidates present are also
allowable on the access channel.
The other incident brought to the meeting was an interview with
Arzema Raquib of the Rainbow coalition regarding their endorsement
of Ben Nichols. The board viewed the segment to see if there was an
endorsement. The majority of those present said that they
considered the segment to be an endorsement. Others argued that
the rule restricts freedom of political speech and is not in line with
national and state policies regarding access. LS stated that she
wanted some advise regarding what was acceptable so that everyone
would be following the same rules. RH voiced concern for a quick
resolution since we are currently in the middle of local campaigns.n
CF voiced concern that there be an opportunity for the complaintant
to have a voice on access. LS reminded the board that ACC both
encourages and facilitates rebuttals and editorial replies.
Public comment:
Bill McCormick raised the idea of a channel designated solely for
political issues. Robin Palmer said that he had no objection to a
total endorsement of any candidate but felt that MTN was really a
front for Ben Nichols. Brian Gollands clarified Ben's involvement in
MTN from its beginnings three and one half years ago. He also gave
the context for the program in question and said that he did not
consider it an endorsement. He raised the question whether the
Ithaca Journal could be seen as endorsing Ben Nichols when covering
the same Rainbow Coalition endorsement. RH presented a resolution
for consideration by the Cable Commission of Common Council
regarding political speech. The resolution is as follows:
Resolution * 1
Whereas, restriction on commercial advertising are
a necessary practice of public access stations and
have been upheld by the New York State Supreme
Court; and
Whereas, restrictions on endorsements and
presentations of political candidates can inhibit
political speech and the potential contribution of
public access to informed political debate; and
Whereas, fundraising by political candidates is
recognized by numerous public access stations as a
form of commercial speech; and
Whereas, ACC staff encourage and facilitate
rebuttals and editorial replies;
BE IT RESOLVED that the Public Access Advisory
Board recommends to the City Cable Commission
that Sec. 14.3.D of Ithaca's Franchise be interpreted
to prohibit fundraising by political candidates, but
not endorsements or other biased expressions by
or for candidates in the course of election
campaigns.
This resolution was passed 4 to 2 with one abstention.
Commercial speech
Discussion followed regarding what commercial speech should be
permissible for access. Board members quickly reviewed ICB
underwriting guidelines. It was suggested that board members
review the guidelines for discussion at the next meeting. Bill Mc
Cormick suggested that an additional channel could be opened for
commercial purposes. LS said that additional channels would be
considered as requests were made. Some issues were raised with
regard to how long the promotion of a sponsor could be. CF
suggested a limit of 10 seconds per half hour of sponsor promotion.
Some board members felt the topic required further discussion. It
was a sense of the group that they would accept ICB's policy for the
time being and further review the policies regarding underwriting at
the October meeting. LS said that ACC would make further
information regarding the possibility of establishing another
channel for commercial purposes available to board members before
the next meeting. A second resolution was made ;
Resolution �2
We urge ACC to begin steps towards establishing a
second access station to be commercial in nature.
Until that time, we accept the W1 CB underwriting
guidelines (with the inclusion of a time limit for
advertisements to be determined by the access
board ) as an acceptable limit of commercial
advertising on public access television.
This resolution was passed S to 2.
The meeting was adjourned at 9 p.m.
Minutes respectfully submitted September 1 1 , 1989,
by Mary Jo Dudley.
ORA7�0
CITY OF ITHACA
108 EAST GREEN STREET
ITHACA, NEW YORK 14850
TELEPHONE: 272-1713
COMMON COUNCIL CODE 607
February 22, 1989
Ms. Janet Streb
Chair, Ithaca Cable Commission
C/O Ciaschi, Dieters-Hagen, Schaufler, S Mickelson
Certifed Public Accountants
Terrace Hill
Ithaca, New York 14850
Dear Janet:
At your February meeting, I raised the matter of eligibility requirements
for senior citizens for the ACC monthly discount. As it now stands, ACC works
with the list of those seniors who have received a city property tax partial
exemption.
This formula is helpful to those who are property owners but does little
for those elderly who are not property owners and of more limited means.
Motivated by the fact that the senior citizen discount as agreed upon in our
franchise should be more meaningful than it .presently is, I have explored other
senior discount formulas which 1 offer for the deliberation of your commission.
Margaret Harding, Administrator, Tompkins County Office for the Aging, has
provided me with the following information:
A) Telephone Company provides a senior citizen discount to those
who qualify for HEAP (Home Energy Assistance Program) .
Approximately 750 county residents of whom 250 are city dwellers.
B) Social Security Administration provides supplemental income
assistance (SSI) to needy elderly. Approximately 300 county
residents of whom 100 are in the city.
C) Medicaid recipients are already beneficiaries of SSI.
I believe that ACC should be called upon to accept a cable subscriber's
participation in HEAP and/or SSI as sufficient qualification for meeting the senior
cont'd. .. . . . .. . . . . . . . . . . . . .
"An Equal Opportunity Employer with an Affirmative Action Program"
-2-
citizen discount for monthly cable fees. It is only fair that ACC, as they raise
their base rates across the board in March 1989, give a meaningful discount, as
agreed in the franchise, to those who are most frail.
Thank you for your consideration.
Sincerely,
—...... _
SeAnKileen
Alderman
cc: Ithaca Cable Commission
Mayor Gutenberger
Common Council
ACC General Manager
Margaret Harding, T.C. Office for the Aging
SK:bfp
S
a
CITY OF ITHACA
10B EAST GREEN STREET
ITHACA, NEW YORK 14850
OFFICE OF TELEPHONE: 272-1713
CITY ATTORNEY CODE 607
October 5, 1989
Ms. Janice Streb
Chairman of Cable Commission
121 East Shore Circle
Ithaca, NY 14850
Barbara Lukens
General Manager
519 West State Street
Ithaca, NY 14850
Re: Senior Citizen Discount on Cable Rates
Dear Janice and Barbara:
I have had referred to my office a senior citizen who wishes
to qualify for the discount provided in the franchise agreement.
The citizen does not own real property and thus cannot qualify by
showing qualification for the real property tax exemption for
persons over sixty-five. I would assume that this person could
qualify by showing the same income qualification as required under
the real property tax exemption provided to City residents. I
understand that the income qualification is currently $12,025.00 -
$15,025.00 per year per household. Normally, the taxpayer is asked
to provide some form of identification and a copy of the previous
years income tax return to qualify.
Is the the basis upon which you would like to administer a
senior citizen discount policy for non-property owners? Do you
think it reasonable to have the Commission qualify persons?
Thank you for your attention to this matter.
Your very truly,
Ra ph sh
City ttorney
RWN:blf
"An Equal Opportunity Employer with an Affirmative Action Program"
AF a e Imm
p Amrnl:an Iclevi:inn R
1988 1.111 III I I11111callolls 1.Inpolallllll
Corporate Headquarlers
AFFIRMATIVE ACTION POLICY STATEMENT 160 Inverness Drive West
Englewood. Colorado 80112
303 799.1200
American Television and Communications Corporation (ATC) reaffirms its
commitment to take Affirmative Action in providing equal opportunities for
employment and advancement to qualified individuals without regard to race,
color, sex, national origin, religion, age, ancestry, medical condition,
creed, marital status, sexual orientation, handicap or status as a disabled or
Vietnam-era veteran. This commitment is a result of ATC's acceptance of Equal
Employment Opportunity (EEO) and Affirmative Action as a social obligation and,
an economic and business necessity.
ATC's policy, which has the steadfast support of each person in management,
ensures equal opportunities for all individuals through the development and
administration of equitable personnel practices and actions in areas such as
recruitment, hiring, compensation, benefits, training and development,
educational assistance, transfers, lay offs, returns from layoffs, promotions,
discipline, company-sponsored recreation and social activities.
The commitment espoused by ATC extends beyond a merely "neutral policy" and
requires the ongoing efforts of all employees to achieve successful results. r
Accordingly, managers will share the responsibility of establishing
Affirmative Action goals designed to correct any inequities found to exist in
any area of employment at ATC. Each system and corporate department will
submit reports to the Director of Employee Relations on a semi-annual basis.
This information will be consolidated and analyzed to determine trends and
accomplishments. The Affirmative Action Plan, including goals and timetables,
will be revised on an annual basis. The performance evaluations of ATC
managers will take into account their acceptance and achievement of
Affirmative Action goals. Successful performance on Affirmative Action goals
will provide positive benefits to ATC through full utilization and development
of our human resources.
Through our Affirmative Action Plan (AAP) , we are taking positive steps to
ensure that equal employment opportunities prevail . Elements of our written
plan are available to all employees upon request. Anyone interested in
reviewing this program should contact their respective Human Resources
Director or Manager within the business unit, or any ATC division president or
system manager.
00^-C�
TX�4�
Trygv E. M hren
CEO and Ch irman o Board
F'nwulnul pntrll nv:urnl .lnd udrnn•darl r Ir.a••:
RESOLUTION: ACC CABLE FRANCHISE AGREEMENT
By Alderperson Booth: Seconded by Alderperson Killeen
RESOLVED, Recognizing the state of the franchise negotiations
between the City of Ithaca and American Television Communications
Corporation (ATC) regarding the delivery of future cable
television services in Ithaca and recognizing that the City's
Negotiating Committee has attempted to have the concerns of
various residents and of members of this Common Council, as
expressed at public hearings and meetings, incorporated in that
cable franchise agreement, and recognizing that the agreement in
fact addresses many of those concerns, the Common Council hereby
authorizes the Mayor execute the cable franchise agreement with
ATC, subject to such changes as the City Attorney determines are
necessary to make the agreement complete, workable and
enforceable, in accord with the agreement in principle, including
but not limited to the following: payment of the City
Consultant's fee, up to $75,000; stipulation of no effective
competition before the FCC; and incorporation of amendments as
set forth in Mike Withiam's memo of June 8, 1988.
Ayes (7) - Schlather, Booth, Johnson, Nichols, Cummings,
Killeen, Lytel
Nays (2) - Peterson, Hoffman
Abstention (1) - Romanowski
Carried
STATE OF NEW YORK
COUNTY OF TOMPKINS SS:
CITY OF ITHACA
I, Callista F. Paolangeli, City Clerk of the City of Ithaca, New
York, do hereby certify that the foregoing resolution is a true
and exact copy of a resolution adopted by the Common Council of
said City of Ithaca at a Regular meeting held on the 8th day of
June, 1988, and that the same is a complete copy of the whole of
such resolution.
IN WITNESS WHEREOF, I have hereunto set my hand and the Corporate
Seal of the City of Ithaca, this 17th day of November, 1988.
. . . . . . . . . . . . . . . . . . . . . . . .
City Clerk of the City
of Ithaca
N
i
�j '14. 1
10/4/89
14. CHARTER AND ORDINANCE COMMITTEE - AGENDA ITEM 1
RESOLVED, That pending the City Attorney's review of applicable
federal and state laws and subject to agreement by American
Community Cablevision, the Common Council does hereby approve
amendment of the Cable Franchise Agreement with American
Community Cablevision, Article XIV, Section 14. 3 (D) thereof to
remove the prohibition on advertising and/or endorsement of
political candidates. Said provision shall, after amended, read
as follows:
"Designated channels shall not be used for the promotion or
sale of commercial products or services. "
and be it further
RESOLVED, That this resolution shall take effect on January 1, 1990.
r
ACC -- - ---
AMERICAN COMMUNITY CABLEVISION
December 1, 1989
John Gutenberger
Mayor
City of Ithaca
108 E. Green Street
Ithaca, NY 14850
Dear Mayor Gutenberger:
ACC has reviewed its rates for various services in an attempt to
reduce confusion which we may have inadvertently created for our
customers. As a result of this review, some minor changes were
made. I felt this was a good time to communicate all of our
rates to you.
Please note that when a customer has cable installed, the first
month' s service is prorated - therefore, each customer could pay
a different amount to ACC at the time of installation. Also, ACC
does not require a deposit from its customers.
1 ) Cable installation ( aerial ) . . . . . . . . . . . . . . . . $20.00 plus tax
rate is good for 1st outlet (or 1st
and 2nd outlets if work is performed
at the same time )
2 ) Cable installation (underground ) . . . . . . . . . . . $20.00 plus tax
plus our cost to bury the drop
cable (or customer may bury
the cable which we will provide )
3) Outlet relocation. . . . . . . . . . . . . . . . . . . . . . . . . . $20.00 plus tax
*4 ) Additional Outlet Installation. . . . . . . . . . . . $20. 00 plus tax
5 ) Reconnection ( if we ' ve disconnected
for non-pay) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $20. 00 plus tax
**6 ) Transfer fee ( for customers moving. . . . . . . . $20.00 plus tax
within the franchise )
7 ) Service upgrade . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 5.00 plus tax
*8) Side grade ( drop one service. . . . . . . . . . . . . . . $ 5 . 00 plus tax
to add another)
*9 ) Account name change . . . . . . . . . . . . . . . . . . . . . . . $10.00 plus tax
( free of charge for death or divorce )
519 West State Street Ithaca, New York 14850 607-272-3456
y
10) Install A/B switch. . . . . . . . . . . . . . . . . . . . . . . . $20.00 plus tax
11 ) Purchase A/B switch. . . . . . . . . . . . . . . . . . . . . . . $ 9. 95 plus tax
12 ) Remote Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 3.00/month
13 ) FM outlet. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Free with basic
14 ) Additional outlets. . . . . . . . . . . . . . . . . . . . . . . .Free
(charge for converter for
each A/O of $6 .00)
*15 ) Parental Control. . . . . . . . . . . . . . . . . . . . . . . . . .Free
( set-up charge )
16 ) Budget tier. . . . . . . . . . . . . . . . . .. . . . . . . . . . . . $11 .00/month
$12 . 10 as of 3/1/90
17 ) Super tier. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 6 .00/month
$ 7 .00 as of 3/1/90
18) Premium channel . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 9 . 95/month plus
franchise fee
19 ) VCR Hook-up. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $20.00 plus tax
Should you have any questions regarding these rates, please feel
free to contact me .
Sincerely,
Barbara L. Lukens
General Manager
BLL/fw
* Price was reduced
** Price Increase of $ 5.00 (effective 1/1/90)
-ACC
AMERICAN COMMUNITY CABLEVISION
December 20, 1989
John Gutenberger
Mayor
City of Ithaca
108 E. Green St.
Ithaca, NY 14850
Dear Mayor Gutenberger:
The FCC ' s rules on syndicated exclusivity take effect on January
1, 1990. I wanted to first explain how the rules work and
secondly to let you know how they will affect ACC ' s operation.
Syndex was re-established by the FCC as a means of protecting
local broadcasters ( those who are within a 35 mile radius ) from
more distant and more powerful stations.
If a local broadcaster has the syndicated rights to programs,
he/she can request the cable company to black out or delete those
same programs when they are broadcast by the distant stations.
This is the essence of syndex.
Here at ACC all of the Binghamton, Elmira and Syracuse stations
are within the 35 mile radius and considered local stations.
That means that all of those particular independent and network
stations can ask us to black out programs for which they have
exclusivity contracts. We would only have to black out those
programs when they are carried on WWOR and WPIX ( the only distant
stations carried by ACC ) .
Syndex does not affect cable channels such as ESPN, A&E, The
Family Channel, etc.
WWOR has promised not to carry syndicated programming on its
satellite delivered signals, which is what we receive here in
Ithaca. If this turns out to be true, we should only have to
worry about programming conflicts on WPIX. This means that any
blackouts would occur on WPIX only.
As of this date there are only two programs which need to be
blacked out: "Alvin and the Chipmunks" and "Teenage Mutant Ninja
Warriors" . We expect to receive proof that several other
programs will also need to be blacked out.
519 West State Street Ithaca, New York 14850 607-272-3456
Because all cable television systems need to comply on January 1,
the equipment needed to switch alternative programming into the
blacked out spot is in high demand and as a result, unavailable .
Therefore, initially ACC will be using a character generator to
explain why a program has been blacked out. By the end of
January or some time in February we expect to be able to replace
the blacked out programs with alternative programming.
We are forced to comply with syndex by law and will try to make
it as non-disruptive to our subscribers as possible.
For your information, a newsletter to all subscribers will be
mailed in January explaining syndex as well as numerous other
issues.
If you have any questions, please feel free to contact me.
Si cerely,
A- ,4'__
Barbara L. Lukens L
General Manager
BLL/fw
CC: Ithaca Cable Commission
Mayor-elect Ben Nichols
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NEW YORK STATE COMMISSION ON CABLE TELEVISION
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RESOLUTION BY THE COMMISSION
Statutory Authority: Article 28 of the Executive Law, Sections 811, 815
and 816
Docket No. 90379: In the Matter of Amendment to Consumer Service Rules
and Regulations
At a meeting of the Commission on Cable Television held in the City of
Albany, New York on November 1, 1989, the Commission by unanimous vote of its
members present,
RESOLVED:
That the provisions of Section 202(1) of the State Administrative Procedure
Act and Section 101-a(2) of the Executive Law having been complied with, Title 9, Subtitle
R, Part 590, Sections 590.61 - 590.69 and Part 596, Section 596.8 of the Official Compilation
of Codes, Rules and Regulations of the State of New York are hereby amended, effective
twenty-one (21) days after the date a Notice of Adoption is filed with the Secretary of State.
The Executive Director shall file with the Secretary of State a certificate of rulemaking
pursuant to Section 102(2) of the Executive Law and a Notice of Adoption pursuant to
Section 202(5) of the State Administrative Procedure Act.
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Please read the attached and consider ways that we can improve
upon and/or maintain the highest level of customer service. Our
goal is to have twelve consecutive months of having met these
standards. (Hopefully,to have exceeded them! ) At the end of that
twelve month period we would then receive and post a standards
seal of quallity.
The cable industry is dedicated to providing our customers a
consistently high level of service. We are committed to ensuring that
our customers receive a variety of quality programming; reliable, clear
signals: and prompt, courteous service. To that end, we, as an
industry, have voluntarily adopted the following Standards for
Customer Service.
Each community and each cable system are different and a reasonable
flexibility should be employed in applying these standards: rigidity
will hamper rather than help good customer service. We are
confident, however, that the cable industry as a whole will implement
these voluntary standards by July 1991, and recommend them for
overall operational use by that r1otP,
1. Office and Telephone Availability
A Knowledgeable, qualified company representatives will be
available to respond to customer telephone inquiries
Monday through Friday during normal business hours.
Additionally, based on community needs. cable systems
will staff telephones for supplemental hours on weekdays
and/or weekends.
a Under normal operating conditions. telephone answer
time by a customer service representative, including wait
time, and the time required to transfer the call. shall not
exceed 30 seconds.
Those systems which utilize automated answering and
distributing equipment will limit the number of routine
rings to four or fewer. Systems not utilizing automated
equipment shall make every effort to answer incoming
calls as promptly as the automated systems.
This standard shall be met no less thati ninety percent of
the time measured on an annual basis.-
C- Under normal operating conditions. the customer will
receive a busy signal less than three percent of the total
time that the cable office is open for business.
D. Customer service center and bill payment locations will be
open for transactions Monday through Friday during
normal business hours. Additionally, based on community
needs, cable systems will schedule supplemental hours on
weekdays and/or weekends during which these centers
will be open.
2. Installations, Outages and Service Calls
Under normal operating conditions, each of the following
Dour standards will be met no less than 95% of the time
measured on an annual basis.
A. Standard Installations will be performed within seven
business days after an order has been placed. "Standard"
installations are up to 125 feet from the existing
distribution system.
B. Excluding those situations beyond the control of the cable
operator, the cable operator will respond to service
interruptions promptly and in no event later than 24
hours. Other service problems will be responded to within
36 hours during the normal work week.
G The appointment window alternatives for installations.
service calls. and other installation activities will be (a)
morning, (b) afternoon, or (c) all day during normal
business hours. Additionally, based on community needs,
cable systems will schedule supplemental hours during
which appointments can be set.
D. If. at any time an installer or technician is running late.
an attempt to contact the customer will be made and the
appointment rescheduled as necessary at a time which is
convenient for the customer.
3. Communications, Bills and Refunds
A. The cable company will provide written information in
each of the following areas at the time of installation and at
any future time upon request:
• products and services offered
• prices and service options
• installation and service policies
• how to use the cable service
a Bills will be clear, concise and understandable.
C. Refund checks will be issued promptly, but no later than
the earlier of 45 days or the customer's next billing cycle
following the resolution of the request, and the return of
the equipment supplied by the cable company if service is
terminated.
D. Customers will be notified a minimum of 30 days in
advance of any rate or channel change, provided
the change is within the control of the cable operator.
A CABLE TELEVISION _FRANCHISE RENEWAL PROPOSAL
FOR
THE CITY OF ITHACA, NEW .YORK
by
AMERICAN COMMUNITY CABLEVISION
March 25 , 1987
Copyright c 1987
American Television and Communications Corporation
National Division
COMMUNITY COMMITMENTS
ACC ' s current negotiations with Cornell University are
an example of ACC ' s long-time and long-term commitment to
Ithaca institutions and individuals -- primarily through
community programming.
The past . . . .
ACC ' s approach has been to offer community programming
to meet a variety of needs in the community . . . . providing a
total communications program. Training, equipment and other
support enable almost 400 volunteers to produce more than 50
original hours of local programming each month .
Volunteer-produced access programs cover a wide range
of issues and interests within the Ithaca community. A few
examples currently in production are :
-- Octopus : Perspective & Controversy. Discusses the
various options presented to the community for resolving the
Route 96 question in Ithaca' s West End.
-- More Than the News. An alternative news program
that explores a range of issues in the community, providing
information and commentary.
-- The Bramble and the Rose. An entertainment program
featuring Celtic folk music .
-- The Imani Hour . A religious program.
-- High School Sports. A program that provides
updates and features on the area' s high school sports scene .
In addition to these programs , productions produced by
the Tompkins County Public Library and the Ithaca College
School of Communications are cablecast two nights per week
from September to May.
ACC-trained volunteers not only produce their own
programs , but they may also choose to work with ACC staff on
ACC-produced public affairs programming. Currently among
these programs are :
-- Our Community. Highlights local community service
organizations . Two additional programs , "United Way Today"
and "To Your Health, " were developed after representatives
of the United Way and the Tompkins County Health Association
appeared on "Our community. "
i
9
-- For the People. Features discussion on local
political issues . Last fall every candidate representing
Tompkins County appeared on this program.
-- News Forum 13. A "Meet the Press"-style interview
program where members of the local media query community
leaders .
Another important element in ACC ' s total communications
program are public service announcements . ACC staff and
volunteers produce local PSAs on a regular basis , and they
are shown on Cable 13 , Cable NewsCenter 7 and four
satellite-delivered services , CNN, USA, ESPN and MTV.
In addition, a number of other ACC productions help
meet community needs :
-- Cable NewsCenter 7. Prior to the introduction of
this programs in July 1986 , local television news was
practically non-existent for Ithacans . Now residents can
tune in to the news at either 6 or 11 p .m. to gather
information on community issues . Feature stories also
promote and cover community events . Cable NewsCenter 7 also
serves the educational community by providing internships
for students at Cornell University, Ithaca College and
TC-3 .
-- Production benefits for local business. The
introduction of Cable-Ads in January 1985 provided local
businesses with television advertising opportunities
targeted to the Tompkins County marketplace , making
television advertising affordable to them for the first
time . Since then, ACC has developed a full-scale production
unit that produces commercials and a range of institutional
productions such as training tapes or sales tapes . With
these programs , ACC is fulfilling another communications
need for the community.
The success of ACC ' s total community communications
program is evident in ACC ' s updated and corrected
Institutional Ascertainment of the same 20 organizations
surveyed by Rice Associates in 1986 . ( See pages 53b through
53f of Section VII of ACC ' s response to the city ' s RFP
questions . )
. . . .and the Future
As requested by the city, ACC initially will provide
nine public , governmental and educational access channels
10
( PEG) on the cable system, and, as also requested, all of
these channels will be unscrambled.
With this plan, ACC also will provide :
-- Operational support of access . If the city so
desires , ACC will allocate as much as two percent of its
annual revenues to public access as part of the city ' s
requested five percent franchise fee . ( The other three
percent will be allocated by the city for cable franchise
regulation and other expenses . )
-- Technical support and training. ACC will continue
to maintain and repair access equipment . ACC will also
continue to offer regularly scheduled training programs and
special video seminars .
-- Outreach. ACC ' s vigorous outreach program will
continue . This effort , designed to locate and attract
potential volunteer community ,producers and access
participants , includes activities such as newspaper ads ,
articles and notices in ACC ' s programming guide , notices on
the community bulletin board, press releases , posters ,
flyers and program listings in local newspapers where
possible .
-- Studio facility. ACC will maintain its current
studio facility at 519 West State Street . In addition , ACC
will continue to maintain the return paths which make
cablecasting possible from the Tompkins County Public
Library, Ithaca College and City Hall .
-- Capital support . ACC will provide new high
quality, easy-to-use production equipment , including a
portable video origination module ( PVOM) , an editing system
for one-half inch productions and additional audio and
lighting equipment . ( See ACC ' s response to Section VII ,
page 51 , of the city ' s RFP questions . ) Access producers
will continue to have priority use of the studio facility,
control room and editing equipment at 519 W. State Street .
As an alternative to this above approach, if the city
opts to form a non-profit corporation, the two percent of
franchise fees discussed above will be remitted to the
corporation for management , including but not limited to
technical support , outreach activities and training, of
access activities . Should the city select this option , the
avove new equipment plus editing and control room equipment
comparable to the editing and control room currently
provided at the 519 W. State Street facility will be
provided by ACC . This equipment would be provided to the
city for placement in a location to be determined by and
11
t
paid for by the city . If a non-profit corporation is
formed, the equipment which is dedicated to access would be
given to the non-profit corporation with the understanding
that all access users in the greater Ithaca community have
equal access to the equipment . These plans were developed
in a very short timeframe in response to the City ' s request .
ACC is certainly open to discussing alternative plans with
the city.
Regardless of whether the city decides to form a non-
profit corporation , the system will continue interconnection
opportunities with neighboring cable systems and provide the
community service of a bulletin board.
-- Community Bulletin Board. An upgraded character
generator with multi-page capacity will be purchased to meet
growing community bulletin board announcement requests .
This equipment will be operated by an ACC employee who will
be trained to optimize the system' s graphics capability .
-- Interconnection. In addition to carrying access
programming produced by residents of the greater Ithaca
area, ACC will continue a "bicycling" program with other
area cable operators . Access programming from across the
country also will be available through ACC ' s affiliations
with national community programming organizations such as
the Community Programming Network Deep Dish TV, and Squeeky
Wheel .
In addition to training and technical support , ACC
endeavors to make community programming a viable opportunity
for even more community members . To this end, ACC has
developed a plan whereby access producers and volunteers ,
who must ultimately be responsible for the care of expensive
production equipment , can purchase "by the day" an
"Equipment Damage Waiver . " By purchasing this waiver ,
volunteers can lower their total liability for damage to
equipment in their possession to $250 or $500 , depending on
the level of protection desired. This proposed damage
waiver strikes a balance between the City ' s desire to
protect volunteers from financial hardship and the need of
other access users for available and operable equipment .
CUSTOMER SERVICE
ACC has continually strived to provide the city ' s
residents with quality cable television which -- even with
its limited channel capacity -- provides a tremendous
variety of programming options .
12
y. a ago
A�RA7Ep
CITY OF ITHACA
108 EAST GREEN STREET
ITHACA, NEW YORK 14850
OFFICE OF TELEPHONE: 272-1713
CITY CLERK CODE 607
MEMORANDUM
TO: TELEVISION CABLE COMMISSION
FR: DAVID LYTEL, ALDERPERSON D
DA: DECEMBER 9 , 1988
RE: T.V. CABLE COMMISSION MEETING, TUESDAY, DEC. 13 , 1988
I would like to meet with all of you on Tuesday, Dec . 13 , 1988,
at 7: 00 P.M. , ( hour before the meeting) , to discuss the evening' s
agenda.
Thank You .
DL/bfp
"An Equal Opportunity Employer with an Affirmative Action Program"
� c
IACC
AMERICAN COMMUNITY CABLEVISION
Cable Commission
City of Ithaca
108 E. Green St .
Ithaca, NY 14850
December 5 , 1988
Dear Commission Members :
` Enclosed is a draft proposal for the capital expenditure
allocation of $165 ,000 for PEG access provided for under the 1988
Franchise between American Community Cablevision and the City of
Ithaca. ' As required under the new franchise , we are hereby
submitting this draft proposal to the Cable Commission for your
review. I hope that we will be able to discuss the plans in more
detail , and answer any questions you might have, at the upcoming
meeting of the Cable Commission on December 13.
As outlined in the draft , this plan has been developed over the
past few months with several goals in mind. First, we sought to
include the volunteers in the planning process by meeting with
them and soliciting verbal and written descriptions of their
perceived equipment needs and priorities . We tried , and I think
in the main succeeded , in developing a broad consensus of our
most glaring equipment needs , as well as our -most logical avenues
for growth.
Second, we sought to put together a comprehensive package , in
which the parts would work together to maximize the effectiveness
of this increase in our resources . We believe that this proposal
will serve as a solid foundation for the future development of
community access in Tompkins County.
Third , we were very conscious of the interests and needs of the
City of Ithaca while developing this plan. The addition of a
second editing suite,, the expansion of our portable capabilities
and the proposal for a portable production system directly
address the interest of City Hall in having meetings videotaped
in a high-quality fashion and in linving nccess to production and
editing time.
Fourth, the development of this equipment package has gone hand
in hand with the development of the plans for our building
renovation. Enclosed is a floor plan for the new facility for
public access , currently under construction at 621 West Green
Street . This building plan .has been specifically designed to
accomodate an expanded public access facility.
519 West State Street Ithaca, New York 14850 607-272-3456
a �
For example , a second edit suite is being built to accomodate a
second editing system. A "Conference Room/Lounge" is intended to
serve as a pre- and post-production meeting room for volunteer
crews , and will house playback and tape logging facilities in
3/4" as well as SVHS. The studio will feature an enlarged
control room as well as a separate storage area for props and
sets . Cablecasting equipment , videotape stock and portable
equipment will be more safely and accessably housed . Office
space has been enhanced to support the addition of a third access
staffinember in June , and to give volunteers more room to plan
their production schedules and consult with staff. A new climate
control system is being installed, which will help maximize the
useful life of all of our equipment . Other creature comforts have
not been forgotten, and include an area for coffee and snacks in
the Conference Room/Lounge , rest rooms with makeup lighting, a
heat insulating vestibule with coat rack for the entryway, and
complete handicapped accessibility throughout the building.
Working under an on-going construction project which, when
completed , will have rebuilt the entire interiors of both the 519
and 517' West State Street buildings as well as the Green Street
building, we have estimated a timetable for this project as
follows :
December 5 : Studio closes . Cablecasting ,
Portable Equipment Sign-out and
Editing Facilities available as
usual . Access has moved to a
temporary cablecasting/ editing/
office space in the back of the 519
building.
January 2: Green St . building ready to be
occupied.
January 2-15: Move to Green St . , as construction
schedule/readiness permits . We
estimate that cablecasting and
editing facilities may be suspended
for a few days at the most . We
will try to minimize this
disruption.
January 15: Tentative date for access office ,
cablecasting playback, editing and
portable facilities opening at 621
W. Green St .
Late February-
Mid March: Tentative date for opening of full
studio facilities .
April/May: Studio closes for 3-6 weeks to
accomodate installation of new
equipment .
June 1 : Deadline for studio reopening, with
equipment purchased under the new
franchise capital allocation
installed.
This tentative timetable has been announced to access volunteers
at a public meeting held last Thursday, December 1 . We have
revised our schedule somewhat since this meeting, and these
changes , along with a detailed summary of our temporary hours and
facilities , will be distributed to volunteers later this week in
our December access newsletter.
One particular change has been to find quarters which will allow
editing to continue throughout this interim period, intead of
closing this function down as originally planned. In this , we
were responding to a strongly expressed desire of volunteers at
the meeting to be able to keep their ability to produce edited
programs going without interruption.
Please note that while we hope to adhere to this schedule as
closely as possible, and meet the June 1 deadline, while
minimizing any interruption in the availability of access
facilities , we are subject to several constraints . These
include: unforeseen delays in the construction process ; delays
in the review and approval process by the City for the equipment
package; and equipment "quirks" or malfunctions , which our
engineer assures us always occur during large-scale moves like
this one.
I will be presenting a request at the December 13 meeting to
aprove this equipment package . I look forward to discussing all
of these issues with you at that time.
Sincerely,
Michael Withiam
General Manager
CAPITAL EXPENDITURE PROPOSAL
CABLE 13 COMMUNITY ACCESS STUDIO
Draft, 12/1/88
The following equipment package proposal has been developed in
accordance with the $165,000 capital expenditure allocation
agreed to under the 1988 Franchise between the City of Ithaca and
ACC. This proposal has been developed by ACC after seeking input
from the users of the community access studio, our access
volunteers . Our methods of seeking input have included a public
meeting in September as well as written and oral "wish lists"
submitted by a number of interested volunteers over the past few
months .
This proposal must be approved by the City of Ithaca before it
can be implemented. Once approved, it must then be sent out to
bid . Equipment lists will be sent to qualified and authorized
vendors for bidding. After the bidding and ordering process , the
equipment will probably take 8 - 10 weeks to arrive, and then
must be installed. The current deadline for the installation
of equipment purchased under this allocation is June 1989.
Please note that while specific brand names , model numbers and
prices of individual items are not included in this proposal
summary, due to the negotiations in the bidding process yet to
come , we are committed to maintaining the current levels of
quality in equipment.
Also note that this proposal contains price estimates only.
Actual prices will be affected by the bidding process and be
length of time that the approval process delays the finalization
of the package. Prices usually rise at the turn of the year,
and, as much of the equipment will be Japanese, the continuing
fall of the dollar vis-a-vis the yen may be a factor as well . All
of these factors may affect our buying power, and hence our
ability to purchase all items listed in this proposal . Finally,
note that sales tax and freight costs take about a 10% bite out
of the total figure - in other words , to bring the plans in for
$165,000, we must include about $15,000 ,just for tax and freight,
leaving about $150,000 for equipment.
CAPITAL EXPENDITURE PROPOSAL
CABLE 13 COMMUNITY ACCESS STUDIO
Draft, 12/1/88 Pg. 2
FUNCTIONAL AREAS:
1 . STUDIO BASICS
2. STUDIO CAMERAS
3. CONTROL ROOM UPGRADE
4. EXISTING EDIT SUITE UPGRADE
5. SECOND EDIT SUITE
6 . PORTABLE EQUIPMENT
7. VIEWING BOOTH
8 . PLAYBACK UNIT UPGRADE
9 . PORTABLE STUDIO UNIT
1 . STUDIO BASICS
Function:
Basic amenities for the studio, to replace obsolete equipment or
to resize equipment to the new facility, including: a new
lighting grid, cycloramas , racks to mount equipment in, assorted
test equipment and monitors , and a new audio console for the
studio.
. . New Lighting Grid ,
sized to new facility
. . Curtain track, sized to new facility
. . Black Cyclorama curtain
. . Grey Cyclorama curtain (allows Chroma key effects)
. . Rack mount units for studio console,
2 edit suite consoles, additional playback rack
to incorporate bulletin board and SVHS
playback. , Assorted rack inserts.
. . Test equipment : new synch/color bar
generator to replace 11 year old unit;
second waveform monitor.
. . New studio "On-Air" monitor
. . New Program, Preview & Source monitors for studio
New audio board for studio
(replaces 10 year old units)
. . Add=on mixer for extra studio audio inputs
. . Wiring, hardware , connectors
TOTAL (EST. ) : $ 33 , 115.41
CAPITAL EXPENDITURE PROPOSAL
CABLE 13 COMMUNITY ACCESS STUDIO
Draft , 12/1/88 Pg. 3
2 . STUDIO CAMERAS
Function:
Replace current 1-tube cameras with 3-chip cameras . These do not
burn (our largest problem with the current cameras , at about
$2000 per tube replacement -including labor) and will yield a
much enhanced image , as well as better resolution in lower light.
They will enable our current Special Effects Generator to utilize
its Chroma Key function (which a cyclorama in the basic studio
package will also support) . They are reported to be sturdy, low-
maintenence cameras , and should serve as a high-quality yet
damage-resistant core to our studio system.
(3) 3-chip camera packages
includes cameras , Camera Control Units , lens
packages , remote cables , CCU rack mounts , studio
viewfinders , camera cables.
TOTAL (EST. ) : $ 30,435.00
3. CONTROL ROOM UPGRADE
Function•
We have 2 main functions to consider here (other than the audio
board, which has been included in the Basic Studio Package) . The
first is adding the capability to mix or wipe between 2 banks of
VCR' s . This will require:
. . Routing Switcher
. . Time Base Corrector
The second is to replace our current consumer grade VHS VCR
with an industrial .grade SVHS VCR, supporting the addition of
SVHS units in other areas of this proposal .
. . Industrial Grade SVHS VCR, Rack Mount and Remote Control
. . Cables , connectors and hardware
One more addition is a delay for the phone line, making it easier
to screen out obsene callers on live call=in programs.
. . Phone delay system
TOTAL (EST. ) : $ 11 ,605.00
CAPITAL EXPENDITURE PROPOSAL
CABLE 13 COMMUNITY ACCESS STUDIO
Draft , 12/1/88 Pg. 4
4. EXISTING EDIT SUITE UPGRADE
Function:
Upgrade existing edit suite to include the capability to edit
from SVHS or VHS source material as well as 3/4" source material .
Add disk drive capability to character generator to eliminate
edit time lost replicating repeating program titles .
. . Industrial Grade SVHS VCR and rack mount
. . Interface between SVHS and U-Matic decks
. . Routing Switcher and Rack Mount
. . Knox K-100 Expansion Option C Disk Drive
includes disk drive , memory, font
expansion & random access programming
. . Waveform Monitor and Rack Mount
. . Cables , hardware and connectors
TOTAL (EST. ) : $ 8645.00
5. SECOND EDIT SUITE
Function:
Increase available editing time. Support SVHS, VHS or 3/4"
source material to 3/4" program master.
Package intended to match existing edit suite as closely as
possible, to aid in volunteer training and maintenence functions
(spare parts) .
. . Basic 3/4" edit package
Source VCR, Record VCR, Edit Controller, 2 Connector
Cables , 1 Dub Cable
. . Knox K100B Character Generator
. . B/W 9"Monitor (CG Status)
. . Knox K100B Option C Disk Drive
. . Waveform Monitor and Rack Mount
. . (2) 9" Color Monitors and Rack Mount
. . Routing Switcher
. . (2) Audio Monitors
. . Time Base Corrector
. . Industrial Grade SVHS VCR and Rack Mount
. . Interface between SVHS and U-Matic decks
. . Parametric EQ and AC Adapter
. . Cables , hardware and connectors
TOTAL (EST. ) : $ 32,759 .95
CAPITAL EXPENDITURE PROPOSAL
CABLE 13 COMMUNITY ACCESS STUDIO
Draft, 12/1/88 Pg. 5
6. PORTABLE EQUIPMENT
Function:
U-Matic Portable Kits : Our current portable cameras , the 2 Sony
1800 series cameras , are nearly ready to be retired. With our
studio cameras replaced, we have 3 Sony 1820s with several years
life in them to work with here as replacements . We also may have
another option in 3 Sony 1820' s in ACC' s news department: these
have already been replaced by other cameras in their system, and
we might aquire them for access at a lower cost than new cameras .
(Actually, one of CNC7 ' s cameras has been in use as an access
studio camera for many months) . With this in mind, we have
proposed recycling these 6 system=wide 1820' s as follows : 2 to
replace our current portable cameras , 2 for a portable studio
unit (section 9, below) and 2 to serve as spares for both of
these systems . 2 of these cameras have repair costs associated
with them to bring them on line (in particular 1 tube
replacement) , but this would still lie the most efficient use of
system resources , and the best way to maximize our overall
purchasing power.
Add SVHS chip camcorders . This addresses 2 major demands of
users : fear of burning camera tubes , and difficulty of managing
the heavier 3/4" portable kits . After researching the market, we
_ have selected a unit which has some metal base elements and is
relatively sturdy. Nevertheless, these will be more problematic
to have repaired than the professional equipment we've been
using. We have therfore included several spares in the package.
The number of units also reflects the anticipated increased
demand for portable equipment with these units.
. . (6) Industrial Grade SVHS Camcorders
4 equipped with batteries, AC adapters , tripods and cases
. . Portable Light Kit (with 3 individual lights)
. . (3) Hand-held mics
. . (2) Laveliere mics
Cables, hardware and connectors
TOTAL (EST. ) : $ 14,280..00
7. VIEWING BOOTH
Justification:
Provide tape viewing and logging capability in SVHS and 3/4".
This will save wear and tear on the edit suites , as well as
making more editing hours available for actual editing. The tape
logging/viewing booth will be placed in the conference
CAPITAL EXPENDITURE PROPOSAL
CABLE 13 COMMUNITY ACCESS STUDIO
Draft, 12/1/88 Pg. 6
7 . VIEWING BOOTH (CONTINUED)
room/lounge, and enable production crews to preview or review
program material during production meetings .
. . Industrial Grade SVHS VCR
TOTAL (EST. ) : $ 1 ,200.00
8. PLAYBACK UNIT UPGRADE
Justification•
Add SVHS playback capability, supporting the integration of SVHS
elsewhere in the system. Changeover to Fortel Time Base
Corrector, making all access units completely uniform. Current
playback TBC would go into engineering support, to replace units
undergoing repair when needed.
Upgrade Community Bulletin Board from 16 to 64 pages .
. . Industrial Grade SVHS VCR and Rack Mount
. . (2) 9" Color Monitors and Rack Mount
. . Time Base Corrector
. . Knox K40 Expansion
TOTAL (EST. ) : $ 10,203.00
9. PORTABLE STUDIO UNIT
Function•
Provide the capability to set up a 2-camera studio in the field.
The system should be capable of being moved by 2 people, and
loaded into any mid-size automobile. The system should make
possible multi-- camera coverage of City Hall meetings (a specific
franchise requirement) , either live or taped.
The system should also support the overall equipment package .
Under this package, we will be replacing our current studio
cameras with new cameras . This proposal moves 2 of these
displaced studio cameras into this portable configuration. In
addition to saving the cost of new cameras , we would also save
the cost of camera control units , 50' camera cables, remote focus
and zoom attachments , studio viewfinders and portable cases for
each camera.
For recording, we have selected an SVHS record unit , on the
grounds that this is likely to meet the needs of the most users .
CAPITAL EXPENDITURE PROPOSAL
CABLE 13 COMMUNITY ACCESS STUDIO
Draft, 12/1/88 Pg. 7
9 . PORTABLE STUDIO UNIT (CONTINUED)
. . (2) Tripods , with Heads , Handgrips and Dollys
. . Triple B/W 9" Monitor and Rack Mount
. . (2) Color 9" Monitors and Rack Mount
. . Audio Mixer
. . Special Effects Generator
. . Audio Monitor
. . (2) mics
. . (2) Lavelieres
. . (2) Portable Road Cases
. . (3) Headset walkie-talkie/intercoms
. . Cables , hardware and connectors
. . Industrial Grade Recording SVHS VCR
TOTAL (EST. ) : $ 12,550.00
PRELIMINARY ESTIMATE FOR PROJECT TOTAL: $154,793
ESTIMATED TOTAL INCLUDING TAX (7%) AND FREIGHT (3Z) : $170,272
Green Street
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Floor Plan for New community Access Studio
at 621 West Green Street
8101 East Prentice Avenue
Suite 704
Englewood, CO 80711
303.850.7380
SHOWTIME NETWORKS INC.
December 20, 1989
William Demo
Cable Commission
119 Auburn Street
Ithaca, NY 14850
Dear William:
I am writing to you today to tell you about Showtime Networks
Inc. You may not be familiar with either SHOWTIME or THE
MOVIE CHANNEL, since neither of these pay TV channels are
offered on your local cable system.
As a community leader, I'm sure you are expected to be knowl-
edgeable on a wide variety of subjects, and finding up-to-date
information on cable television may not be easy. In the coming
months, I plan to provide you with information about our company,
its services, and our industry. We also have a lot of data and
sources of information, not only about our services, but also
on other aspects of the cable television business. Enclosed
is some basic information on our company and SHOWTIME and THE
MOVIE CHANNEL. If you need some specific information on cable,
or have questions on the information enclosed, I may be able to
help you and would welcome hearing from you.
Conversely, you may not be that interested; and if you notify .me
V Vlof that, we will immediately take your name off our mailing list.
SHOWTIME is the second largest pay television service in the U.S.
It offers exclusive movies, special events, championship boxing
and comedy that are not shown on HBO or Cinemax. SHOWTIME is
available to about 90% of U.S. cable households. SHOWTIME does
not carry commercials or X-rated films and is on 24 hours a day.
Sensitive to community values, SHOWTIME will not show an R-rated
film before 8:00 p.m. ET (7: 00 p.m. CT) . SHOWTIME's commitment
to exclusive and original programming sets it apart from all
other national pay cable services.
THE MOVIE CHANNEL also a 24-hour premium service is devoted
exclusively to movies. With an innovative schedule that arranges
weekdays by movie type, THE MOVIE CHANNEL weekends are modeled
after the popular multiplex theater concept and offer a variety
of movies at several convenient times for the viewer.
Please take the time to read the enclosed overviews on SHOWTIME
and THE MOVIE CHANNEL. I look forward to beginning our cable
dialogue.
Cordially,
Bill Fogarty
National Sales Director
SHOWTIME NETWORKS INC.
FACT SHEET
SHONTIME NETWORKS INC. FACT SHEET
DECEMBER, 1989
Formed in September 1983, SHOWTIME/THE MOVIE CHANNEL INC. , which recently
changed its name to SHOWTIME NETWORKS INC. (SNI), is a wholly owned division
of Viacom Inc. , one of the most prominent corporate leaders in the
entertainment field.
SHOWTIME is the nation's second largest pay-television network. The service's
programming is distinguished by an exciting exclusive lineup of blockbuster
movies, comedy series and specials, concerts, original movies and mini-series,
championship boxing, family entertainment, and classic films.
THE MOVIE CHANNEL is the only national 24-hour premium service devoted
exclusively to movies. In May 1988, THE MOVIE CHANNEL created an even greater
movie orientation when it implemented a number of innovative programming and
scheduling changes that further recognized its subscribers' movie
orientation. During the week, features like The Breakfast Movie, TMC Classic,
DramArama, The Big Movie, Action Attraction, The Laffternoon Movie, and TV
Dinner Movie are regularly scheduled. Complementing this daytime schedule is
Prime Time Movie and VCR Overnight, a feature that replays prime-time movies
back to back for ease in time shifting.
The TMC Weekend Multiplex kicks off on Fridays with the TGIF Movie, Friday
Night Action, TMC Top Attraction, and VCR Overnight: All-Night Drive-In.
Saturday's schedule consists of The Early Show, TMC Top Attraction, Joe Bob's
Drive-In Theater, followed by VCR Overnight: Movie Marathon. The weekend
concludes on Sunday with TMC Top Attraction, Sunday Star Movie, Critics
Choice, and VCR Overnight: TMC Classics.
In December 1983, SHOWTIME/THE MOVIE CHANNEL bought the assets of the
Spotlight pay-television service, including two transponders on the Hughes and
Galaxy I satellite. When the acquisition was complete, SHOWTIME/THE MOVIE
CHANNEL had gained more than 700,000 former Spotlight subscribers, increasing
its subscriber-base by 10 percent.
Also in 1983, SHOWTIME/THE MOVIE CHANNEL launched it' s differentiation
strategy with an exclusive deal with Paramount Pictures, giving SHOWTIME and
THE MOVIE CHANNEL exclusive national pay-cable rights to all Paramount
theatrical product for the next five years.
-more-
SHOWTIME NETWORKS INC. ..i Eroaawav New r^rr ^,• g : �C0 ,ersa C:ry?aza ersa dud 'G
SNI FACT SHEET
PAGE 2
In November 1985, SHOWTIME/THE MOVIE CHANNEL INC. launched VIEWER'S CHOICE,
the nation's first satellite delivered pay—per—view network.
In April 1986, SHOWTIME/THE MOVIE CHANNEL INC. signed exclusive film licensing
agreements with The Cannon Group, Atlantic Releasing and Touchstone Films.
In May 1986, following the implementation of full—time scrambling,
SHOWTIME/THE MOVIE CHANNEL launched a wholly owned subsidiary, later named
Viacom Satellite Networks Inc. , to market the two premium services, a package
of basic services and pay—per—view channels, to home satellite dish owners
nationwide.
In August 1986, SHOWTIME/THE MOVIE CHANNEL acquired the exclusive national
pay—television rights to five MGM feature films in an agreement with Turner
Broadcasting Systems. By the end of September, SHOWTIME/THE MOVIE CHANNEL had
also signed five—year exclusivity pacts with Orion Pictures and Imagine Films
Entertainment.
As a result of SHOWTIME/THE MOVIE CHANNEL' s ambitious campaign towards
differentiation, six out of 10 of 1986's top grossing films had their national
pay television premieres exclusively on SHOWTIME or THE MOVIE CHANNEL, and
1987 saw the addition of six of the top 10 highest grossing films to the
exclusive roster.
In February 1987, Viacom Network Enterprises Division was formed with Ron
Bernard as President. This new division is responsible for the operation of
VIEWER'S CHOICE, Viacom Satellite Networks Inc. , and all hotel/motel and SMATV
activities.
In March 1987, Viacom Satellite Networks Inc. began marketing its package of
12 popular satellite programming services to the home TVRO marketplace, in
addition to making VIEWER'S CHOICE titles available to SHOWTIME/THE MOVIE
CHANNEL direct retail subscribers owning a VideoCipher II decoder.
In March 1988, SHOWTIME/THE MOVIE CHANNEL entered into a multi—year licensing
agreement with the Weintraub Entertainment Group. It was the studio' s first
domestic pay arrangement and covered 20 theatrical motion pictures, including
films starring Dan Aykroyd, Kim Basinger, Molly Ringwald, and Shelley Long.
In May 1988, SHOWTIME/THE MOVIE CHANNEL struck a deal with Carolco Pictures
Inc. granting Showtime rights to distribute Carolco's theatrical motion
pictures exclusively in the U.S. pay cable and satellite markets over the next
five years.
In September 1988, SHOWTIME/THE MOVIE CHANNEL changed its name to SHOWTIME
NETWORKS INC. In addition to operating Showtime and The Movie Channel ,
SHOWTIME NETWORKS INC. also operates two pay—per—view services: Viewer's
Choice One and Viewer's Choice Two, as well as Viacom Satellite Networks Inc. ,
the Home TVRO marketing arm of the company. The corporate name change will
not have an effect on the operations of any of the company' s ongoing
businesses, nor will it affect the names of these businesses.
-more-
SNI FACT SHEET
PAGE 3
In November 1988, Viewer's Choice and Home Premiere Television combined and
now operate two channels of pay-per-view programming named Viewer's Choice One
and Viewer's Choice Two. The new Viewer's Choice serves over 200 affiliated
cable systems with 8 million basic subscribers and nearly 5 million
addressable households across the country. Viewer's Choice continues to
provide a valuable entertainment service for subscribers and an increasingly
profitable revenue service stream for motion picture studios, event suppliers
and cable systems alike.
Also in November 1988, SHOWTIME NETWORKS INC. formed Showtime Event
Television, which is among the most experienced special event units in the
business. While under Viewer's Choice aegis, the management team created and
distributed a greater variety of new industry-wide pay-per-view event
programming than any other source. The formation of Showtime Event Television
affirms our belief in the importance of special events for pay-per-view.
In March 1989, SHOWTIME NETWORKS INC. and Walt Disney Studios entered into the
largest pay television deal ever, where all motion picture product from
Touchstone Pictures and Hollywood Pictures will have exclusive pay television
exhibition on SHOWTIME NETWORKS INC. 's services for the next seven years. The
deal encompasses approximately 150 titles.
Also in March, SHOWTIME NETWORKS INC. and Viacom Enterprises entered into an
exclusive 18 picture deal with Nelson Entertainment.
In May of 1989, SHOWTIME NETWORKS INC. patted with Sylvester Stallone' s White
Eagle enterprises and Carolco Pictures Inc. for pay television rights to 10
forthcoming feature films. Also in May, Showtime Networks Inc. acquired the
exclusive U.S. pay cable license to 17 motion pictures from Pathe
Communications Corp. ' s Cannon Distributors Inc.
Additionally, SHOWTIME NETWORKS INC. acquired the exclusive pay television
license to 5 feature films produced by filmmaker Taylor Hackford's New Visions
Pictures, 2 Cinecom films, the pay television exhibition rights to 'Who Framed
Roger Rabbit; ' a Touchstone release and exclusive pay cable rights from
Universal Pictures to 6 films produced by New Line Cinema.
In August 1989, SHOWTIME NETWORKS INC. announced the launch of the first 24
hour satellite delivered news service, All News Channel , developed jointly for
the home satellite TV market and local broadcasters. This fifty-fifty joint
venture between Viacom Satellite News Inc. and Conus Communications will
consist of continual newscasts and will draw on the established domestic news
strength of the Conus Satellite Cooperative, and its growing international
resources. The channel is planned to premiere on the Satcom 2R satellite in
late November 1989 and will be encrypted and offered for subscription on
January 1 , 1990.
-more-
SNI FACT SHEET
Page 4
In October 1989, SHOWTIME NETWORKS INC. entered into a multi-picture
arrangement with Columbia Pictures Entertainment, for non-exclusive rights to
approximately 60 first run titles from Tri-Star Pictures and Columbia
Pictures, which will become available to SHOWTIME starting at t he end of 1989
and extending through 1991 .
In November 1989, "All News Channel" the new 24-hour satellite-delivered news
service for the home satellite TV market and local broadcasters. All News
Channel is a joint venture of Viacom Satellite News Inc. , a subsidiary of
Viacom International Inc. , and Conus Communication, and the managing general
partner and majority shareholder of Conus Communication is Hubbard
Broadcasting, Inc.
SHOWTIME NETWORKS INC. 's headquarters are in New York City. Twelve regional
offices offer an affiliate network of over 6,500 cable systems continuous
sales, marketing and technical assistance. These regional offices are located
in:
Los Angeles, California New York, New York
Chicago, Illinois San Francisco, California
Dallas, Texas Cincinnati , Ohio
Atlanta, Georgia Ft. Lauderdale, Florida
Denver, Colorado Houston, Texas
Kansas City, Missouri Portland, Oregon
#4288R
THE MOVIE CHANNEL
PROGRAMMING OVERVIEW
December 1989
The only national 24-hour all-movie pay cable network, THE MOVIE
CHANNEL (TMC) is a whole channel devoted to movies. From
exclusive blockbusters to innovative film festivals, THE MOVIE
CHANNEL brings the widest selection of the finest movies to
subscribers' televisions and VCRs every day, providing a special
blend of movies, unique movie-related programming, and on-air
personalities not found on any other pay-cable network.
Movies are all that matter on THE MOVIE CHANNEL, which, along
with its sister service SHOWTIME, currently holds the exclusive
national pay-cable rights to film product from The Cannon Group,
Touchstone Films and Hollywood Pictures, the Weintraub
Entertainment Group, Orion Pictures, Imagine Film Entertainment,
Carolco Pictures Inc. , Castle Rock Entertainment, New Visions
Pictures, White Eagle Pictures, Inc. and other independent
studios. In 1983, SHOWTIME/THE MOVIE CHANNEL INC. set an
industry precedent when it made the first major studio
*100e exclusivity agreement with Paramount.
Just a few of the exclusive titles currently under license
include "Mississippi Burning", "The Untouchables", "Tough Guys
Don't Dance", "Maid to Order", "Fresh Horses", "Heartbreak
Hotel", "Throw Moneta From the Train."
THE MOVIE CHANNEL provides a full scope of movie information and
behind-the-scenes insights. And, with VCR overnightTM, TMC is
the only channel consistently programmed for taping while you
sleep.
TMC Adjusts Schedule For Smarter Viewing
THE MOVIE CHANNEL carefully schedules movies so that viewers
will always know when to find the movies they want to watch.
Weekdays are arranged by movie type: classics, dramas,
action/adventures, or comedies. Subscribers wake up Mondays
through Thursdays to The Breakfast Movie at 6:00 a.m.*, followed
by the TMC Classic at 8:00 a.m. , The Big Movie at noon, and
Action Attraction at 2:00 p.m. Afternoon viewing continues with
Laffternoon Movie at 4:00 p.m. , then the TV Dinner Movie, and
Prime Time films. THE MOVIE CHANNEL weekends are scheduled
differently to accommodate the weekend lifestyle.
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TMC OVERVIEW
PAGE TWO
THE MOVIE CHANNEL WEEKEND
The cornerstone of the TMC format is the TMC Weekend Multiplex modeled after
the now popular multiplex theaters, which play a selection of blockbuster
movies, beginning on Fridays at 7:00 p.m. and continuing into the early
morning hours on Monday. Weekends are the heaviest viewing periods on pay TV
and the weekend multiplex provides more weekend viewing choices by presenting
movies from a variety of categories. Anchoring the weekend is the "TMC Top
Attraction," a premiere of the network's newest blockbuster. "TMC Top
Attraction" is scheduled at three different times during the weekend giving
subscribers several chances to see the week' s biggest hit. Now with more
choice, the viewer can either watch "Top Attraction" late night Friday at
11 :00 p.m. , primetime Saturday at 9:00 p.m. or early evening Sunday at 7:00
p.m.
In addition, the TMC weekend multiplex will be homebase for the following
offerings: T.G.I.F. movies on Friday is at 7:00 p.m. ; Friday Night Action at
9:00 p.m. ; "Joe Bob Briggs Drive-In Theater" on Saturdays beginning at 11 :00
p.m. ; the Sunday Star Movie showcasing Hollywood' s finest talents at 9:00
p.m. ; and Critics Choice, a forum for critically acclaimed films Sunday at
11 :00 P.M.
VCR OVERNIGHTTMTHE MOVIE CHANNEL'S INNOVATIVE FIRST
THE MOVIE CHANNEL has developed the perfect VCR accessory, VCR OvernightTM,
which airs seven nights-a-week with movies shown back-to-back with ut
promotional material between them. On the weekends, VCR Overnight�M runs
for six solid hours for convenient taping while sleeping. As the number of
VCR households grows nationwide, this programming feature has become
increasingly popular for time-shift taping of their favorite films, without
having to constantly reset the VCR times.
THE MOVIE CHANNEL IS INHABITED BY PEOPLE WHO LIVE AND BREATHE MOVIES
Hollywood Reporter columnist Robert Osborne and Joe Bob Briggs, the drive-in
movie maven, as well as stellar and unusual leading Hollywood figures serves
as TMC movie festival hosts, enhancing each month with individual insights and
commentaries on the movies. THE MOVIE CHANNEL hosts also include Ian Shoales,
Jody Horowitz and Peter Jones.
Among the leading men and women who have been TMC hosts are Jane Seymour,
Charlton Heston, F. Murray Abraham, Judd Nelson, Sally Kellerman, Ron Howard,
and Marlee Matlin, who hosted classic movies that THE MOVIE CHANNEL closed
captioned especially for her.
Robert Osborne, the renowned Hollywood gossip reporter and Academy Awards
historian, brings to the screen a variety of on-location interviews with the
top Hollywood stars as well as background and anecdotes about TMC' s premiere
film selections.
-more-
TMC OVERVIEW
PAGE THREE
Joe Bob Briggs conducts his own Saturday festival appropriately titled Joe
Bob's Drive-in TheatreTM at 11 :00 p.m. This self-styled reviewer judges
films essentially by their lowest common denominator and then applies his own
unique and personalized rating system.
With his rapid-fire delivery, Ian Shoales presents two humorous commentaries
each month offering his sardonic views of today' s movies and the people who
make them. Entertainment personalities, Jody Horowitz and Peter Jones extend
their own off-beat views and commentaries on the world of movies.
THE MOVIE CHANNEL HAS A CORNUCOPIA OF MOVIE INFORMATION
AND FEATURES DURING ITS INTERMISSIONS
In keeping with TMC's stated objective of being all movies and about all
movies, the breaks or intermissions contain news, reviews, and personalities
and special features. The material is creative, up-to-the-minute fun,
informative and adds real value to the service. This, makes it more
convenient, more interesting and more exciting for people who love movies and
the world surrounding movies.
FAMOUS FILMMAKERS STAR IN "FIRSTWORKS"
NEW SERIES FOR THE MOVIE CHANNEL
THE MOVIE CHANNEL has teamed up with Transatlantic Enterprises to produce a
new series, "FIRSTWORKS", a thirteen-part, half-hour series. Each episode
consists of a segment from a famous filmmaker's first work, along with an
interview with the artist. In addition, viewers will be introduced to an
emerging young filmmaker and one of his or her projects. Some of the
prominent filmmakers featured on "FIRSTWORKS" are Oliver Stone, Ron Howard,
John Milius, Roger Corman and Taylor Hackford. Upcoming directors are Susan
Seidelman, Spike Lee, Martin Scorsese and more!
#0852R