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HomeMy WebLinkAboutArticle 35 - Division of Criminal Justice Services111VlC buildings had been damaed, and since owner could not unreasonably interfere with installation of cable television facili- ties in its buildings in the future, owner was not entitled to costs of removing system. UA -Columbia Cablevision of Westchester, Inc. v. Fraken Builders, Inc., 1985, 114 A.D.2d 448; 494 N.Y.S.2d 718. 8. Posting of bond Television cable company was not re- quired, under letter agreement with § 829. Censorship prohibited manager of apartment building, provid- ing for furnishing of cable television ser- vices, to post a $50,000 bond as just compensation for cost of removing cable facilities; agreement could not form ba- sis of bond commitment as it was a "access agreement" which was void un- der terms of statute regulating cable television. Orwell Management. v. New York State Com'n on Cable Television, 1990, _ A.1).2d _, 553 N.Y.S.2d 362. Library References Constitutional Law 0=90.1(9). Telecommunications cr=449. C..I.ti. Constitutional Law § 213(19). C.J.S. Telegraphs, Telephones, Radio, and Television §§ 316.1, 316.2. § 829-a. Subscriber limitation on television reception 1. To the extent technologically feasible, every cable television company shall offer to each of its subscribers a locking program control device which enables the subscriber to limit the reception in the subscriber's residence, of any channel which displays public access programs or for which a specific, optional premium charge is imposed. 2. Such program control devices need only be installed in cases where they are requested by the subscriber. Any subscriber requesting such a device may be charged by the cable television company, on a one-time or recurring basis, no more than fifteen per cent above the actual cost to the company for the manufacture, purchase and installation of such device. 3. Every cable television company shall notify each of its subscribers, in writing, of the availability of the device described in subdivision one of this section. Such notice shall be printed in prominent type face and shall include information concerning the cost to the subscribers. Such notice may be included with other materials distributed by the company. Notice shall be given to all new subscribers at the time of initial subscription, to each subscriber who requests a change in service, and to all subscribers annually thereafter. (Added L.1983, c. 480, § 1.) Historical and Statutory Notes Effective Date. Section effective Jan. 1. 1984, pursuant to L.1983, c. 480, § 2. Library References Telecommunications x449. C.J.S. Telegraphs, Telephones, Radio, and Television §§ 316.1, 316.2. § 830. Liability for obscenity, defamation and invasion of privacy Library References Obscenity «9. 166 Libel and Slander ' 74. Telecommunications ca449. C.J.S., Libel and Slander §§ 148 to 151. C.J.S. Obscenity § 16. § 831. Invalid provisions Statutes € 64(2). C.J.S. Statutes § 96 et seq.. C.J.S. Telegraphs, Telephones, Radio, and Television §§ 316.1, 316.2. Library References ARTICLE 35 -DIVISION OF CRIMINAL JUSTICE SERVICES Section 837-d. 837-e. 837-f. 837-g. 837-h. 838. 846-h. Soft body ballistic armor vests for police officers. Statewide central register for missing children. Missing and exploited children clearinghouse. Witness protection program establishment. Witness protection program; standards; eligibility; reports. Identification of unknown dead and missing persons. Law enforcement agency accreditation council; membership; organization and procedure. Law Review Commentaries Privacy interests in criminal records: accuracy and dissemination. N.Y.U. An. Sur. Am. L. 545 (1986). § 835. Definitions [See main volume for text of 1 to 8] 9. "Qualified agencies" means courts in the unified court system, the administrative board of the judicial conference, probation departments, sheriffs' offices, district attorneys' offices, the state department of correc- tional services, the state division of probation, the department of correction of any municipality, the temporary state commission of investigation and police forces and departments having responsibility for enforcement of the general criminal laws of the state. [See main volume for text of 10] 11. [Eff. until Nov. 1, 1991.] "Program services" means those services necessary for the prevention of intimidation and the protection of an eligible witness. To the extent feasible, and consistent with the needs of the particular service area, these services should emphasize but not be limited to: temporary relocation, changes in employment, transportation to and from court, moving assistance, personal protection services, temporary lodging and support services. Where ram servicestheshalltent mppn a appropriateseryto to achieve or maintain their security, program provided to the family of an eligible witness. 12. [Eff. until Nov. 1, 1991.] "Eligible witness" means a victim of or a witness to a crime who has the need for witness protection program services. 13. [Eff. until Nov. 1, 1991.] "Provider agency" means a partnership, corporation, association, municipality, governmental agency, public or pri- vate organization of any character that provides one or more of the program services in accordance with a plan approved by the commissioner, in consultation with the crime victims board, and includes, but is not limited 167 Note 1 /17 U.3 --C-;= , Grr1V1VL6, Neither Cable Communications Policy Act nor FCC decisions preempted town from enforcing time-limited, mutually agreed upon rate freeze provision in cable television license. Town of Norwood s Adams–Russell Co., Inc., 1988, 519 N.E.2d 253. 401 Mass. 677. 2. Purpose of subchapter Two predominant objectives of Cable Commu- nications Policy Act are: to make local franchis- § 522. Definitions For purposes of this subchapter— (1) the term "affiliate", when used in relation to any person, means another person who owns or controls, is owned or controlled by, or is under common ownership or control with, such person; (2) the term "basic cable service" means any service tier which includes the retransmission of local television broadcast signals; (3) the term "cable channel" or "channel" means a portion of the electromag- netic frequency spectrum which is used in a cable system and which is capable of delivering a television channel (as television channel is defined by the Commission by regulation); (4) the tern) "cable operator" means any person or group of persons (A) who provides cable service over a cable system and directly or through one or more affiliates owns a significant interest in such cable system, or (B) who otherwise controls or is responsible for, through any arrangement, the management and operation of such a cable system; (5) the term "cable service" means— (A) the one-way transmission to subscribers of (i) video programming, or (ii) other programming service, and (I3) subscriber interaction, if any, which is required for the selection of such video programming or other programming service; (6) the tern) "cable 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 pro- gramming 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 1 or more television broadcast stations; (B) a facility that serves only subscribers in 1 or more multiple unit dwellings under common ownership, control, or management, unless such facility or facilities uses any public right-of-way; (C) a facility of a common carrier which is subject, in whole or in part, to the provisions of subchapter II of this chapter, except that such facility shall be considered a cable system (other than for purposes of section 541(c) of this title) 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; (7) the term "Federal agency" means any agency of the United States, including the Commission; (8) the term "franchise" means an initial authorization, or renewal thereof (including a renewal of an authorization which has been granted subject to section 546 of this title), issued by a franchising authority, whether such authorization is designated as a franchise, permit, license, resolution, contract, certificate. agreement, or otherwise, which authorizes the construction or opera- tion of a cable system; (9) the term "franchising authority" means any governmental entity empow- ered by Federal, State, or local law to grant a franchise; (10) the term "grade B contour" means the field strength of a television broadcast station computed in accordance with regulations promulgated by the Commission; (11) the term "other programming service" means information that a cable operator makes available to all subscribers generally; 330 upPle&e..t 1990 Ing process primary means of cable television regulation, and to insure that public receives wid- est possible diversity of information services and sources, in a manner which is responsive to means and interests of local communities. Rollins Ca- blevue, Inc. v. Saienni Enterprises, D.De1.1986, 633 F.Supp. 1315. (12) the term "person" means an individual, partnership, association, joint stock company, trust, corporation, or governmental entity; (13) the term "public, educational, or governmental access facilities" means— (A) channel capacity designated for public, educational, or governmental use; and (B) facilities and equipment for the use of such channel capacity; (14) the term "service tier" means a category of cable service or other services provided by a cable operator and for which a separate rate is charged by the cable operator; (15) the terns "State" means any State, or political subdivision, or agency thereof; and (16) the term "video programming" means programming provided by, or generally considered comparable to programming provided by, a television broadcast station. (June 19, 1934, c. 652, Title VI, § 1)02, as added Oct. 30, 1989, Pub.).. 98-549, § 2, 98 Stat. 2780.) Historical and Statutory Notes Effective Date. Section to take effect 60 days after Oct. 30, 1984, except where otherwise ex- pressly provided, see section 9(a) of Pub.L. 98-549, set out as a note under section 521 of this title. Legislative History. For legislative history and purpose of I'ub.L. 98-549, see 1984 U.S. Code Cong. and Adm. News, p. 4655. Library References Telecommunications x449. C.J.S. Telegraphs, Telephones, Radio and Tele- vision §§ 316.1, 316.2. Notes of Decisions I. Cable operator Cable company and its two subsidiaries were a single operator and a single system, so that city could properly collect franchise fee for service provided by one subsidiary to university residence halls even though city's franchise was granted to the other subsidiary, where the parent had negoti- ated for the physical facilities to carry the fran- chisee's cable service and was cosignatory for rental of city's transmission line poles and the service was delivered through joint efforts of the related companies, the signals being received at the same location. City of Ames, Iowa v. Heri- tage Communications, Inc., C.A.8 (Iowa) 1988, 861 F.2d 185. • Cable Communications Policy Act's disclosure and record-keeping provisions applied to cable operator that did not provide two-way cable ser- vice. Warner v. American Cablevision of Kansas City, Inc., D.Kan.1988, 699 F.Supp. 851. 2. Franchising authority City was "franchising authority" within mean- ing of Cable Communications Policy Act of 1934, and thus could regulate only to limit of authority granted in Act. City of Burlington v. Mountain Cable Co., Vt.1988, 559 A.2d 153. PART II—USE OF CABLE CHANNELS AND CABLE OWNERSHIP RESTRICTIONS § 531. Cable channels for public, educational, or governmental use (a) Authority to establish requirements with respect to designation or use of channel capacity A franchising authority may establish requirements in a franchise with respect to the designation or use of channel capacity for public, educational, or governmental use only to the extent provided in this section. (b) Authority to require designation for public, educational, or governmental use A franchising authority may in its request for proposals require as part of a franchise, and may require as part of a cable operator's proposal for a franchise renewal, subject to section 546 of this title, that channel capacity be designated for public, educational, or governmental use, and channel capacity on institutional networks be designated for educational or governmental use, and may require rules and procedures for the use of the channel capacity designated pursuant to this section. (c) Enforcement authority A franchising authority may enforce any requirement in any franchise regarding /he providing or use of such channel capacity. Such enforcement authority includes the authority to enforce any provisions of the franchise for services, facilities, or equipment proposed by the cable operator which relate to public, educational, or 331 ;r,,vernnn-aml n,e of channel capacity, whether or not required by the franchising authority pursuant to subsection (b) of this section. td) Promulgation of rules and procedures In the case of any franchise under which channel capacity is designated under subsection (b) of this section, the franchising authority shall prescribe— (1) rules and procedures under which the cable operator is permitted to use such channel capacity for the provision of other services if such channel capacity is not being used for the purposes designated, and (2) rules and procedures under which such permitted use shall cease. e) Editorial control by cable operator Subject to section 544(d) of this title, 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) "institutional network" defined For purposes of this section, the term "institutional network" means a communica- tion network which is constructed or operated by the cable operator and which is generally available only to subscribers who are not residential subscribers. (.lune 19. 1934, c. 052, Title VI, § 611, as added Oct. 30, 198.1, Pub.L. 98-549, § 2, 98 Stat. 2782.) Ilistorical and Statutory Notes Effective Date. Section to take effect 60 days after Oct. 30. 1984. except where otherwise ex- pressly provided, see section 9(a) of Pub.L. 9S-549, set out as a note under section 521 of this title. Legislative history. For legislative history and purpose of Pub.L. 98-549, see 1984 U.S. Code Cone. and Adm. News. p. 4655. Law Review Commentaries Access to cable. natural monopoly, and the First Amendment. 86 Columbia L.Rev. 1663 (1986). Expanding that scarcity rationale: The consti- tutionality of public access requirements in cable franchise agreements. 20 U.Mich.J.L.Ref. 503 (1986). Quincy Cable and its effect on the access provi- sions of the 1984 Cable Act. Note, 61 Notre Dame L.Rev. 426 (1986). Regulating cable television in the 1990s. Nor- man M. Sinel and Paul S. Ryerson, 17 Stetson L.Rev. (Fla.) 607 (1988). The signal cable sends, Part II—Interference from the indecency cases? Laurence 11. Winer, 1.V Fordh:tin L.Rev. 459 (March 1987). Library References Telecommunications «449. C.J.S. Telegraphs, Telephones, Radio and Tele- vision §§ 316.1, 316.2. 532. Cable channels for commercial use (01 Purpose The purpose of this section is to assure that the widest possible diversity of information sources are made available to the public from cable systems in a manner consistent with growth and development of cable systems. bt Designation of channel capacity for commercial use (1) A cable operator shall designate channel capacity for commercial use by persons unaffiliated with the operator in accordance with the following require- ments: (A) An operator of any cable system with 36 or more (but not more than 54) activated channels shall designate 10 percent of such channels which are not otherwise required for use (or the use of which is not prohibited) by Federal law or regulation. (B) An operator of any cable system with 55 or more (but not more than 100) activated channels shall designate 15 percent of such channels which are not otherwise required for use (or the use of which is not prohibited) by Federal law or regulation. (C) An operator of any cable system with shall designate 15 percent of all such channe (D) An operator of any cable system with shall not be required to designate channel 332 more than 100 activated channels Is. fewer than 36 activated channels capacity for commercial use by persons unaffiliated with the operator, unless the cable system is required to provide such channel capacity under the terms of a franchise in effect on October 30, 1984. (E) An operator of any cable system in operation on October 30, 1984, shall not be required to remove any service actually being provided on July 1, 1984, in order to comply with this section, but shall make channel capacity available for commercial use as such capacity becomes available until such time as the cable operator is in full compliance with this section. (2) Any Federal agency, State, or franchising authority may not require any cable system to designate channel capacity for commercial use by unaffiliated persons in excess of the capacity specified in paragraph (1), except as otherwise provided in this section. (3) A cable operator may not be required, as part of a request for proposals or as part of a proposal for renewal, subject to section 546 of this title, to designate channel capacity for any use (other than commercial use by unaffiliated persons under this section) except as provided in sections 531 and 557 of this title, but a cable operator may offer in a franchise, or proposal for renewal thereof, to provide, consistent with applicable law, such capacity for other than commercial use by such persons. (4) A cable operator may use any unused channel capacity designated pursuant to this section until the use of such channel capacity is obtained, pursuant to a written agreement, by a person unaffiliated with the operator. (5) For the purposes of this section— (A) the term "activated channels" means those channels engineered at the headend of the cable system for the provision of services generally available to residential subscribers of the cable system, regardless of whether such services actually are provided, including any channel designated for public, educational, or governmental use; and (B) the term "commercial use" means the provision of video programming, whether or not for profit. (6) Any channel capacity which has been designated for public, educational, or governmental use may not be considered as designated under this section for commercial use for purpose of this section. (c) Use of channel capacity by unaffiliated persons; editorial control; restriction on service (1) If a person unaffiliated with the cable operator seeks to use channel capacity designated pursuant to subsection (b) of this section for commercial use, the cable operator shall establish, consistent with the purpose of this section, the price, terms and conditions of such use which are at least sufficient to assure that such use will not adversely affect the operation, financial condition, or market development of the cable system. (2) A cable operator shall not exercise any editorial control over any video programming provided pursuant to this section, or in any other way consider the content of such programming, except that an operator may consider such content to the minimum extent necessary to establish a reasonable price for the commercial use of designated channel capacity by an unaffiliated person. (3) Any cable system channel designated in accordance with this section shall not be used to provide a cable service that is being provided over such system on October 30, 1984, if the provision of such programming is intended to avoid the purpose of this section. ((I) Right of action in district court; relief; factors not to be considered by court Any person aggrieved by the failure or refusal of a cable operator to make channel capacity available for use pursuant to this section may bring an action in the district court of the United States for the judicial district in which the cable system is located to compel that such capacity be made available. If the court finds that the channel capacity sought by such person has not been made available in accordance with this section, or finds that the price, terms, or conditions established by the cable operator are unreasonable, the court may order such system to make available to such person the channel capacity sought, and further determine the appropriate 333 pity- f /IP( Co § 828 EXECUTIVE LAW television facilities upon their prop- erty and limiting payment for such use of their property to amount awarded by the Commission was in- tended to proscribe interference by an owner of rental property with in- stallation of cable television facilities on'property whether used to furnish service to tenant or tenants of prop- erty on which installed or of another Art. 28 property or properties or both, but to permit such owner to demand pay- ment only from cable television com- pany making installation and only for service extended to tenants of his own property. Loretto v. Telepromp- ter Manhattan CATV Corp., 1981, 53 N.Y .2d 124, 440 N.Y.S.2d 843, 423 N. E.2d 320, probable jurisdiction noted 102 S.Ct. 472. § 829. Censorship prohibited 1. The commission may not prohibit or limit any program or any class or type of program or otherwise censor the communi- cations or signals transmitted by any cable television company or over any cable television system, and may not promulgate any regulation or condition which would interfere with the right of free speech by means of cable television. 2. No municipality may prohibit or limit any program or class or type of program or impose discriminatory or preferen- tial franchise fees in any manner that would tend to encourage or discourage programming of any particular nature, directly or indirectly. 3. No cable television company may prohibit or limit any program or class or type of program presented over a leased channel or any channel made available for public access or edu- cational purposes. Added L.1972, c. 466, § 1. Art. 28 CO] Effective Date. Jan. 1, 1973, purs § 831. invl If any provis: vision to any ci soever, the rem provision to otl Added L.1972, c. Effective Date. Jan. 1, 1973, purst Historical Note Effective Date. Section effective 466, § 5, formerly 4, renumbered 5 Jan. 1, 1973, pursuant to L.1972, c. and amended, L.1972, c. 467, § 8. § 830. Liability for obscenity, defamation and invasion of privacy Neither the cable television company whose facilities are used to transmit a program produced by a person other than such ca- ble television company pursuant to the provisions of this article or of federal law or of applicable regulations, nor the officers, directors or employees of any such cable television company shall be liable for damages arising from any obscene or defama- tory statements or actions or invasion of privacy occurring dur- ing any program when such company does not originate or pro- duce such program. Added L.1972, c. 466, § 1. TITLE 9 EXECUTIVE erred to have affirmatively payment for such service in the notice or advertising g the subscriber that he has need not take any action to vernmental (PEG) access. hs a channel designated for served, nondiscriminatory mel designated for use by gartered or licensed by the nel designated for use by 7-) access facilities means overnmental use; and (11) dents of the State of New institutions and munici- reof during which public, r PEG use. ee shall designate chan- el capacity of 21 or more lane! for public access -. . and governmental use; oral/governmental use or such educational and per. day during any 90- • •erage shall not include; gcludes achieving such'; onal and governmental grated the educational -• nental access channel; )urpose if necessary to SUBTITLE R COMMISSION ON CABLE TELEVISION § 595.4 (c) Administration and use. The use of the channel capacity for PEG access shall be administered as follows: - (1) The public access channel shall be operated and administered by the entity designated by the municipality or, until such designation is made, by the cable televi- sion franchisee; provided, however, that the municipality may designate such entity at any time throughout the term of a franchise by a resolution duly adopted by the legislative body thereof.* (2) The educational and governmental access channel shall be operated and admin- . istered by a committee or a commission appointed by local government and shall include appropriate representation of local school districts within the service area of the cable television system and may include for purposes of coordination an employee or representative of the cable television franchisee.** (3) The entity responsible for administering and operating the public access chan- nel shall provide notice to the general public of the opportunity to use such channel which notice shall include (i) a character -generated message transmitted at least hourly on such channel between the hours of 6 p.m: and 10 p.m. each day and (ii) written notice to subscribers at least annually. Notices shall include the name, address and telephone number of the entity to be contacted for use of the channel. All access programming shall be identified as such. (4) Channel time shall be scheduled on the public access channel by the entity responsible for the administration thereof on a first-come, first-served, nondiscrimina- tory basis. (5) Local use of educational and governmental access channels shall have pre- ferred status in the event of competing requests for channel time. Priority may be afforded to local governments within the service area of the system. (6) Channel time for PEG access programming shall be without charge to the user. (7) The designation of PEG access facilities shall include the provision by the cable television franchisee of the technical ability to play back prerecorded programming and to transmit programming information consistent with the designated uses of PEG access channels. ,:u C :1 capacity less than 21: • nel for public, educa (8) The cable television franchisee shall not exercise any editorial control over any public, educational or governmental use of channel capacity designated for PEG purposes. (9) municipality shall not exercise any editorial control over any use by the public of a public access channel. (10) The entity responsible for the administration of a public access channel shall maintain a record of the use of such channel which shall include the names and addresses of all persons using or requesting the use of any such channel and which record shall be available for public inspection for a minimum of two years. • If a single public access channel is shared by more than one municipality, a single entity shall be jointly designated by the local legislative bodies of each franchising municipality in the system. If agreement cannot be reached on a single entity, the commission shall arbitrate the issue. •• Where an educational or a governmental channel is shared by more than one school digtrict or local government or combination thereof, administration of such channel(s) on a cooperative basis is encouraged. 230.520b1 EX 8-31-88 Historical and Statutory Notes Effective Date. Section to take effect 60 days after Oct. 30. 1984, except where otherwise ex- pressly prosided, see section 9(a) of Pub.L. § 557. Existing franchises (a) The provisions of - (1) any franchise in effect on the effective date of this subchapter, including any such provisions which relate to the designation, use, or support for the use of channel capacity for public; educational, or governmental use, and (2) any law of any State (as defined in section 153(v) of this title) in effect on October 30. 1984, or any regulation promulgated pursuant to such law, which relates to such designation, use or.support of such channel capacity, shall remain in effect, subject to the express provisions of this subchapter, and for not longer than the then current remaining term of the franchise as such franchise existed on such effective date. (b) For purposes of subsection (a) of this section and other provisions of this subchapter, a franchise shall be considered in effect on the effective date of this subchapter if such franchise was granted on or before such effective date. ti unt 19, 1134, v. 652, 'Title VI, § (137, as added Oct. 30, 1984, Pub.!.. 98-549, § 2, 98 Stat. 2800.) Historical and Statutory Notes officials. Neil J. Lehto, Detroit CoII.L.Rev. 37 References in Text. For "the effective date of this subchapter" referred to in text, see section 9(a) of Pub.L. 98-549, set out as a note under section 521 of this title. 98-549, set out as a note under section 521 of this title. Legislative History. For legislative history and purpose of Pub.L. 98-549, see 1984 U.S.Code Cong. and Adm.News, p. 4655. Effective Date. Section to take effect 60 days after Oct. 30. 1984, except where otherwise ex- pressly pros ided. see section 9(a) of Pub.l.. 98-549, set out as a note under section 521 of this title. Legislative History. For legislative history and purpose of Puh.L. 98-549, see 1984 U.S.Code Cong. and Adm.News, p. 4655. Law Review Commentaries Cable tele iston franchise renewal under federal lass: A pmserful alternative for some municipal § 558. Criminal and civil liability (1988). Notes of Decisions 1. State regulation or control The Cable Communications Policy Act of 1984 did not preempt the Connecticut Department of Public Utility. Control from enforcing. under the Act's grandfather clause, certain line extension regulations and line extension order that were issued and made applicable to cable franchisee before the Act became effective, the regulation and order qualified for grandfathering a, provi- sions of a franchise or as requirements contained within the franchise. Housatonic Cable Vision Co. v. Department of Public Utility Control, D.C. Cono.1985, 622 F.Supp. 798. Nothing in this subchapter 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 libel, . slander, obscenity, incitement, invasions of privacy, false or misleading advertising, or other similar laws, except that cable operators shall not incur any such liability for any program carried on any channel designated for public, edu- cational, governmental use or on any other channel obtained under section 532 of this title or under similar arrangements. tJune 19, 1934, c. 052, Title VI, § 638, as added Oct. 30, 1984, Pub.L. 98-549, § 2, 98 Stat. 2801.) Historical and Statutory Notes Effective Date. Section to take effect 60 days niter Oct. 30, 1984, except where otherwise ex- pressly provided, see section 9(a) of Pub.L. 95-549, set out as a note under section 521 of this title. Legislative History. For legislative history and purpose of Puh.L. 98-549, see 1984 U.S.Code Cong. and Adm.News, p. 4655. Law Review Commentaries The signal cable sends, Part II -Interference from the indecency cases? Laurence H. Winer, LV Fordham L.Rev. 459 (March 1987). Notes of Decisions 1. State regulation or control Cable Communications Policy Act preempted criminal prosecution under Puerto Rico's obsceni- ty statute of cable operator that entered into agreement with cable programmer under Act's 356 mandatory ;eased access provision; programmer not have editorial control over channel. Playboy was not affiliated with operator, sought access to Enterprises, Inc. v. Public Service Com'n of Puer- system for "commercial use," and operatot did to Rico, D.Puerto Rico 1988, 698 F.Supp. 401. § 559. Obscene programming 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. (June 19, 1934, c. 652, Title VI, § 639, as added Oct. 30, 1984, Pub.L. 98-549, § 2, 98 Stat. 2801.) Historical and Statutory Notes Effective Date. Section to take effect 60 days after Oct. 30, 1984, except where otherwise ex- pressly provided, see section 9(a) of Pub.L. 98-549, set out as a note under section 521 of this title. Legislative History. For legislative history and purpose of Pub.L. 98-549, see 1984 U.S.Code Cong. and Adm.News, p. 4655. SUBCHAPTER VI -MISCELLANEOUS PROVISIONS_ § 601. Interstate Commerce Commission and Postmaster General; duties, pow- ers and functions transferred to Commission (a) All duties, powers, and functions of the Interstate Commerce Commission under sections 9-15 of this title, relating to operation of telegraph lines by railroad and telegraph companies granted Government aid in the construction of their lines, are imposed upon and vested in the Commission: Provided, That such transfer of duties, powers, and functions shall not be construed to affect the duties, powers, functions, or jurisdiction of the Interstate Commerce Commission under, or to interfere with or prevent the enforcement of, subtitle IV of Title 49. fSee main volume for text of (b)] (June 19, 1934, c. 652, Title VII, § 701, formerly Title VI, § 601, 48 Stat. 1101, as amended Oct. 17, 1978, Pub. L. 95-473, § 3(b), 92 Stat. 1466, and renumbered Oct. 30, 1984, Pub. L. 98-549, § 6(a), 98 Stat. 2804.) Historical and Statutory Notes Codification. In subsec. (a), "subtitle IV of Title 49" was substituted for "the Interstate Com- merce Act and all Acts amendatory thereof or supplemental thereto" on authority of Pub.L. 95-173, § 3(b), Oct. 17, 1978, 92 Stat. 1466, the first section of which enacted subtitle IV of Title 49, Transportation. Code of Federal Regulations Amateur radio services, see 47 CFR 97.1 et seq. Aviation services, see 47 CFR 87.1 et seq. Disaster communications services, see 47 CFR 99.1 et seq. Stations on land in the maritime services and Alaska -public fixed stations, see 47 CFR 81.1 et seq. Stations on shipboard in the maritime services, see 47 CFR 83.1 et seq. Law Review Commentaries Defining relevant product market of the new video technologies. 4 Cardozo Arts & Entertain- ment L.J. 75 (1985). § 602. Repeals; reports by Commission Historical and Statutory Notes Codification. Section, Acts June 19, 1934, c. 652, Title VII, § 702(a, b), formerly Title VI, § 602(a, b), 48 Stat. 1102; May 20, 1937, c. 229, § 15, 50 Stat. 197; Mar. 18, 1940, c. 66, 54 Stat. 54; renumbered Oct. 30, 1984, Pub.L. 98-549, § 6(a), 98 Stat. 2804, which repealed certain prior provisions relating to communications and direct - The 1984 Cable Act: Prologue and precedents. Daniel L. Brenner and Monroe E. Price, 4 Cardo- zo Arts & Entertainment L.J. 19 (1985). Library References Telecommunications x144, 307, 382. C.J.S. Telegraphs, Telephones, Radio, and Tele- vision §§ 74 et seq., 85, 87, 90, 298, 316. Notes of Decisions 1. Generally Post office department was authorized to use postal employees to remove and mail messages transmitted by telegraph company's customers and received on teleprinters installed in post of- fices. United Telegraph Workers, AFL-CIO v. F.C.C., 1970, 436 F.2d 920, 141 U.S.App.D.C. 190. ed the Commission to study and report, not later than Jan. 1, 1941, on the radio requirements necessary for ships navigating the Great Lakes and inland waters of the United States, was omit- ted as executed. Code of Federal Regulations Access charges, see 47 CFR 69.1 et seq. 357 price, terws, or conditions for such use consistent with subsection (c) of this section, and may award actual damages if it deems such relief appropriate. In any such action, the court shall not consider any price, term, or condition established between an operator and an affiliate for comparable services. el Petition to Commission; relief (1) Any person aggrieved by the failure or refusal of a cable operator to make channel capacity available pursuant to this section may petition the Commission for relief under this subsection upon a showing of prior adjudicated violations of this section. Records of previous adjudications resulting in a court determination that the operator has violated this section shall be considered as sufficient for the showing necessary under this subsection. If the Commission finds that the channel capacity sought by such person has not been made available in accordance with this section, or that the price, terms, or conditions established by such system are unreasonable under subsection (c) of this section, the Commission shall, by rule or order, require such operator to make available such channel capacity under price, terms, and conditions consistent with subsection (c) of this section. (2) In any case in which the Commission finds that the prior adjudicated violations of this section constitute a pattern or practice of violations by an operator, the Commission may also establish any further rule or order necessary to assure that the operator provides the diversity of information sources required by this section. (3) In any case in which the Commission finds that the prior adjudicated violations of this section constitute a pattern or practice of violations by any person who is an operator of more than one cable system, the Commission may also establish any further rule or order necessary to assure that such person provides the diversity of information sources required by this section. tft Presumption of reasonableness and good faith In any action brought under this section in any Federal district court or before the Commission, there shall be a presumption that the price, terms, and conditions for use of channel. capacity designated pursuant to subsection (Id of this section are reasonable and in good faith unless shown by clear and convincing evidence to the contrary. gt Promulgation of rules Notwithstanding sections 541(c) and 543(a) of this title at such time as cable systems with 36 or more activated channels are available to 70 percent of households tvithin the United States and are subscribed to by 70 percent of the households to which such systems are available, the Commission may promulgate any additional rules necessary to provide diversity of information sources. Any rules promulgated by the Commission pursuant to this subsection shall not preempt authority expressly granted to franchising authorities under t t 1 Cable service obscene, lewd, etc., or otherwise unprotected by Constitution 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 franchis- ing 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 th United States. iJune 19, 193.3, c. 052, Title e ( et. 30 Historical and Statutory Notes Effective Date. Section to take effect 60 days after Oct. 30, 1984, except where otherwise ex- pressly provided, see section 9(a) of Pub.L. 98-549, set out as a note under section 521 of this utIe. Legislative history. For legislative history and purpose of Pub.L. 98-549, see 1984 U.S. Code Cong. and Adm. News, p 4655. 1984, Pub.L. 98-549, § 2, 98 Stat. 2782.) Law Review Commentaries Access to cable, natural monopoly, and the First Amendment. 86 Columbia L.Rev. 1663 (1986). Quincy Cable and its effect on the access provi- sions of the 1984 Cable Act. Note, 61 Notre Dame L.Rev. 426 (1986). The signal cable sends, Part iI—interference from the indecency 'cases? Laurence 11. Winer, LV Fordham L.Rev. 459 (March 1987). 334 Library References Telecommunications '449. C.J.S. Telegraphs, Telephones, Radio, and Tele- vision §§ 316.1, 316.2. Notes of Decisions 1. Persons entitled to maintain action Cable television subscribers' association was not "person aggrieved" within meaning of Cable Act § 533. Ownership restrictions (a) Persons owning or controlling television station licensees It shall be unlawful for any person to be a cable operator if such person, directly or through 1 or more affiliates, owns or controls, the licensee of a television broadcast station and the predicted grade B contour of such station covers any portion of the community served by such operator's cable system. (b) Common carriers; provision of direct video programming; exception; waiver (1) It shall be unlawful for any common carrier, subject in whole or in part to subchapter II of this chapter, to provide video programming directly to subscribers in its telephone service area, either directly or indirectly through an affiliate owned by, operated by, controlled by, or under common control with the common carrier. (2) It shall be unlawful for any common carrier, subject in whole or in part to subchapter II of this chapter, to provide channels of communications or pole line conduit space, or other rental arrangements, to any entity which is directly or indirectly owned by, operated by, controlled by, or under common control with such common carrier, if such facilities or arrangements are to be used for, or in connection with, the provision of video programming directly to subscribers in the telephone service area of the common carrier. (3) This subsection shall not apply to any common carrier to the extent such carrier provides telephone exchange service in any rural area (as defined by the Commission). (4) In those areas where the provision of video programming directly to subscrib- ers through a cable system demonstrably could not exist except through a cable system owned by, operated by, controlled by, or affiliated with the common carrier involved, or upon other showing of good cause, the Commission may, on petition for waiver, waive the applicability of paragraphs (1) and (2) of this subsection. Any such waiver shall be made in accordance with section 63.56 of title 47, Code of Federal Regulations (as in effect September 20, 1984) and shall be granted by the Commission upon a finding that the issuance of such waiver is justified by the particular circumstances demonstrated by the petitioner, taking into account the policy of this subsection. (c) Promulgation of rules The Commission may prescribe rules with respect to the ownership or control of cable systems by persons who own or control other media cf mass communications which serve the same community served by a cable system. (d) Regulation of ownership by States or franchising authorities Any State or franchising authority may not prohibit the ownership or control of a cable system by any person because of such person's ownership or control of any media of mass communications or other media interests. (e) Holding of ownership interests or exercise of editorial control by States or franchising authorities (1) Subject to paragraph (2), a State or franchising authority may hold any ownership interest in any cable system. (2) Any State or franchising authority shall not exercise any editorial control regarding the content of any cable service on a cable system in which such governmental entity holds ownership interest (other than programming on any statute, which authorizes action by any person aggrieved by failure or refusal of cable operator to make channel capacity available for use, but which permits court to order offending operator to make channel capacity available, if channel capacity sought is wrongfully withheld, and, thus, lacked standing for either express or implied right of action. New York Citizens Committee on Cable TV v. Manhattan Cable TV, Inc., S.D.N.Y. 1986, 651 F.Supp. 802. 335 Historical and Statutory Notes References in Text. For "the effective date of this subchapter", referred to in text, see section 'slat of i'ub L. 98-549, set out as a note under section 521 of this title. Effective Date. Section to take effect 60 days after Oct. 3d. 1984, except where otherwise ex- pressly pro:. ided. <ee section 9(a) of Pub.L. 98-549. set out as a note under section 521 of this title. Restoration, Retierment and Repricing of Ser- vice Previously. Eliminated, Retiered or Repriced. Section 9(1)) of Pub.L. 98-549 provided that: "Nothine in section 623 or 624 of the Communi- cations .Act of 1934 (this section or section 544 of this title]. as added by this Act, shall be construed to alloy: a franchising authority, or a State or any political subdivision of a State, to require a cable operator to restore, retier, or reprice any cable service which was lawfully eliminated, retiered, nr repriced as of September 26, 1984." Legislative History. For legislative history and purpose of I'uh.l.. 98-549. see 1984 U.S.Code Cong. and Adni.News, p. 4655.. Law Reviews Commentaries Private monopoly and the public interest: An economic analysis of the cable television franchise. Thomas W. Hazlett, 134 U.Pa.L.Rev. 1335 11986). Regulatir.c cable television in the 1990s. Nor- man \t. Sinel and Paul S. Ryerson, 17 Stetson L Rev. )Fla.) o07 (1988). Library References 'I'elecoti nun teat ons '449. C..15. '1 elegraphs, Telephones, Radio, and Tele - !]IMI 310.), 316.2. Notes of Decisions Basic cable service 3 Contractual limitations 6 Contributions in aid of construction 2 Effective competition 4 Increase approval 1 Jurisdiction Rate regulation 5 Jurisdiction District court had subject matter jurisdiction oxer declaratoryjudement action initiated by pro- uder of town's cable television services inasmuch as provider was asserting rights under Federal Cable Communications Policy Act. Nashoba Communications Ltd. Partnership No. 7 v. Town of Danvers, D.Mass.1988, 703 F.Supp. 161, amended, reconsideration denied 709 F.Supp. 263. 1. Increase approval Under Cable Communications Policy Act provi- sion expressly requiring that franchise set forth fixed rate for specified period of time, city council resolution providing that rate would be set for two years or until an increase was approved by the city council provided for increases at future un- specified times and thus did not deprive franchisee of its discretion to increase its rates under the Act. American Television & Communications Corp. t. City of Montevideo, Minn., D.C.Minn.1985, 603 F.Supp. 1376. 2. Contributions in aid of construction Contributions in aid of construction of a cable television system are not "rates" within meaning of federal Cable Communications Policy Act's provision concerning state authority to regulate rates; hence, Act does not preempt substantive power of a state, as franchisor, to prohibit fran- chisee from charging contributions in aid of con- struction to residents of sparse areas. Housatonic Cable Vision Co. v. Department of Public Utility Control, D.C.Conn.1985, 622 F.Supp. 798. 3. Basic cable service Federal Communications Commission's ea television rate regulation rules were in most spects reasonable, except for aspects of red tion of "basic cable service" differently from t in Cable Act, permission of cable systems to automatically pass through any readily identifiable increase or decrease in cost which was entirely attributable to provision of basic service, and stan dard for measuring what signals would be c sidered "available." American Civil Libertie ion v. F.C.C.. 1987, 823 F.2d 1554. 262 U. D.C. 244, certiorari denied 108 S.Ct. 1 L.Ed.2d 421. (b) Requests for proposals; establishment and enforcement of requirements In the case of any franchise granted after the effective date of this subchapter, the franchising authority, to the extent related to the establishment or operation of a cable system— (1) in its request for proposals for a franchise (including requests for renewal proposals, subject to section 546 of this title), may establish requirements for facilities andequipment, but may not establish requirements for video program- ming or other information services; and (2) subject to section 545 of this title, may enforce any requirements con- tained within the franchise— (A) for facilities and equipment; and (B) for broad categories of video programming or other services. (c) Enforcement authority respecting franchises effective under prior law In the case of any franchise in effect on the effective date of this subchapter, the franchising authority may, subject to section 545 of this title, enforce requirements contained within the franchise for the provision of services, facilities,'and equipment, whether or not related to the establishment or operation of a cable system. (d) Cable service obscene, indecent or otherwise unprotected by Constitution (1) Nothing in this subchapter 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 conditions, if such cable services are obscene or are Constitution of the United States. 4. Effective competition FCC did not violate lawful obligation to re- spond to significant comments by ignoring request by island of Guam for special, uniquely tailored exception to agency definition of "effective compe- tition" within meaning of regulation exemption. American Civil Liberties Union v. F.C.C., 1987, 823 F.2d 1554, 262 U.S.App.D.C. 244, certiorari denied 108 S.Ct. 1220, 99 L.Ed.2d 421. 5. Rate regulation Provision of license agreement entered into he- mveen town and provider of cable television servic- es pursuant to which provider agreed tb "freeze" its basic service rates for first two years of opera- tion constituted rate "regulation" within meaning of Cable Communications Policy Act, and was preempted by Act. Nashoba Communications Ltd. Partnership No. 7 v. Town of Danvers. D.Mass.1988, 703 F.Supp. 161, amended. recon- sideration denied 709 F.Supp. 263. 6. Contractual limitations Contract between city and provider of cable television services, which limited provider's right to raise rates for basic cable service in city, violat- ed Cable Communications Policy Act of 1984. City of Burlington v. Mountain Cable Co.. Vt. 1988, 559 A.2d 153. 544. Regulation of services, facilities, and equipment uu Regulation by franchising authority Any franchising authority may not regulate the services, facilities, and equipment provided by a cable operator except to the extent consistent with this subchapter. 342 n order mg o progr indecent, upon the request of a subscriber, a cable ope lease) a device by which the subscriber can prohibit service during periods selected by that subscriber. paragraph (A) shall take effect 180 days a subchapter. (e) Technical standards The Commission may establish technical standards equipment of cable systems which a franchising a franchise. (f) Limitation on regulatory powers of Federal agencies, S exceptions (1) Any Federal agency, State, or franchising auth ments regarding the provision or content of cable provided in this subchapter. (2) Paragraph (1) shall not apply to— (A) any rule, regulation, or order issued under regulation, or order (i) was in effect on Septem amended after such date if the rule, regulation, inconsistent with the express provisions of this s (B) any rule, regulation, or order under Title (June 19, 1934, c. 652, Title VI, § 624, as added Oct. 30, 1984, Historical and Statutory Notes References in Text. For "the effective date of this subchapter" referred to in text, see section 9(a) of Pub.L. 98-549, set out as a note under section 521 of this title. Restoration, Retierment and Repricing of Ser- vice Previously Eliminated, Retiered or Repriced. This section not to be construed to allow a fran- chising authority, or a State or political subdivi- sion thereof, to require a cable operator to restore, retier or reprice cable service previously eliminat- ed, retiered, section 9(b) under sectio Effective after Oct. 3 pressly prov 98-549, set o title. Legislative purpose of P Cong. and A 343 Art. 28 ies or both, but to r to demand pay- ble television. com- allation and only d to tenants of his etto v. Telepromp- PV Corp., 1981, 53 Y.S.2d 843, 423 N. jurisdiction noted any program. or T the communi- lision company )romulgate any th the right of ly program or Ty or preferen- d to encourage ure, directly or It or limit any I over a leased access or edu- Art. 28 COMMISSION ON CABLE TELEVISION § 831 Historical Note Effective Date. Section effective 466, § 5, formerly 4, renumbered 5 Jan. 1, 1973, pursuant to L.1972, c. and, amended L.1972, c. 467, § 8. § 831. Invalid provisions If any provision of this article or the application of such pro- vision to any circumstance is held invalid for any reason what- soever, the remainder of this article or the application of the provision to other circumstances shall not be affected thereby. Added L.1972, c. 466, § 1. Historical Note • Effective Date. Section effective 466, § 5, formerly 4, renumbered 5 Jan. 1, 1973, pursuant to L.1972, c. and amended, L.1972, c. 467, § 8. 4, renumbered 5 2, c. 467, § 8. nd invasion of ilities are used r than such ca- of this article )r the officers, ision company ene or defama- occurring dur- iginate or pro - A/y6; § 595.4 TITLE 9 EXECUTIVE (c) For purposes of this section, a subscriber shall be deemed to have affirmatively requested a service if (1) the subscriber voluntarily makes payment for such service after an initial free' trial period, and (2) there was included, in the notice or advertising Material describing the service, a statement clearly advising the subscriber that he has incurred no obligation to pay for such service and that he need not take any action to avoid incurring any such obligation. Historical Note Sec. flied March 23, 1976. 595.4 Minimum standards for public, educational and governmental (PEG) access.. (a) Definitions. (1) The term public access channel means a channel designated for noncommercal use by the public on a first-come, first-served, nondiscriminatory basis. (2) The term educational access channel means a channel designated for use by school districts and not-for-profit educational institutions chartered or licensed by the New York State Education Department or Board of Regents. (3) The term government access channel means a channel designated for use by municipal, county and State government, or agencies thereof. (4) The term public, educational, or governmental (PEG) access facilities means (i) channel capacity designated for public, educational or governmental use; and (ii) facilities and equipment for the use of such channel capacity. (5) The term local use means noncommercial use by residents of the State of New York including school districts and not-for-profit educational institutions and munici- pal, county and State governments, or agencies thereof. (6) The term access cablecast day means a day or part thereof during which public, educational or governmental access facilities are available for PEG use. (b) Designation of channels. Every cable television franchisee shall designate chan- nel capacity for PEG access as follows: (1) The franchisee of a cable television system with a channel capacity of 21 or more channels shall designate (i) at least one full-time activated channel for public access use; (ii) at least one full-time activated channel for educational and governmental use; and (iii) one additional full-time activated channel for educational/governmental use whenever the first channel so designated shall have been used for such educational and governmental programming on the average of at least 12 hours per day during any 90 - day period; provided, however, that the calculation of such average shall not include any day when the unavailability of PEG access facilitiesprecludes achieving such programming level. In the event that two channels for educational and governmental use are required by this subdivision, one channel shall be designated the educational access channel and one channel shall be designated the governmental access channel; provided, however, that either channel may be used for either purpose if necessary to satisfy the demand for channel time. SUBTITLE R CC) • (c) Administrat ;_- administered as fol tx'(1) The public Wit=•Cdesignated by the 'Aion,franchisee;l ►tiy tirne throug eaislative body. t :&The educa istered.by.a cor include appropri ie'cable,televisi or.representativi (3), The entity nel; shall provide ch, notice_ _sl Iioiirlyon. such Written notice to and telephone n rogramming sl (4) `Channel t responsible for t ,tory basis. (5)" Local USE ferred status in afforded to local (6) Channel t (7) The desig television franc and to transmit access channel: (8) The cable public; educate purposes.• - • (9) • A munici of a public acce -(10)T The ent maintain a re( addresses of al record shall be I -11 (2) The franchisee of a cable television system with a channel capacity less than 21 ti channels shall designate at least one full-time activated channel for public, educa- te tional and governmental use. I 21 230.520b EX 8-31-88 ' If a single publi tly designated 1 agreement cannot 1 ••• Where an edui al government o encouraged.- § 595.4 TITLE 9 EXECUTIVE (11) Channels designated for PEG use shall be included in the lowest level of service offered by the cable television franchisee; where a system does not include sufficient unused channel capacity to accommodate a second educational/governmental access channel resulting from the operation of subdivision (b) of this section, the cable televi- sion franchisee may elect one time to defer the obligation to provide such additional channel until additional channel capacity becomes available. (12) A cable television franchisee shall' be permitted to use time on one or more PEG access channels whenever there are no blank channels available on the same level of service which includes the PEG channel(s) and whenever such PEG channels) is not scheduled for use at least 72 hours in advance of such time or times desired by the cable television franchisee; provided that any use of such PEG channel(s) by the franchisee shall at all times be subordinate to designated PEG use and shall terminate or be preempted by PEG programming scheduled at least 72 hours in advance. All nonaccess programming on PEG channels shall be identified as such by an appropri- ate announcement made prior to and following each nonaccess use. Notwithstanding the foregoing, at such time as any PEG channel on a cable television system with a channel capacity in excess of 40 channels has been programmed for a daily average of eight hours or 50 percent of the hours of access cablecast days, whichever is less, during any 90 -day period, use of such channel by the cable television franchisee shall be suspended for such time as such minimum PEG use of such channel is maintained. (d) Applicability. (1) Subdivisions (a), (c) and (f) of this section shall apply to the use of channel capacity designated for PEG access as of the effective date of this section [September 9, 1988]. (2) The minimum channel designation requirements in subdivision (b) of this sec- tion shall be required by, and shall be a condition to, the exercise of every franchise and certificate of confirmation granted or renewed after the effective date of this section [September 9, 1988]. (3) Notwithstanding the foregoing, nothing contained herein shall impair the en- forcement of any provision of any franchise in effect on the effective date of this section [September 9, 1988] concerning the designation and use of channel capacity, facilities and equipment for PEG access or otherwise diminish the obligations of a cable television franchisee with resepct to PEG access. (e) General. Any cable television franchise granted, renewed or amended after the effective date of this section [September 9, 1988] may include additional provisions concerning the designation and use of public, educational and governmental access facilities as follows: (1) a provision specifying facilities and equipment to be made available by the franchisee for use in connection with the designated PEG channels; and (2) any other provision concerning the designation and use of channel capacity for public, educational and governmental access consistent with Federal and State law. (f) Waivers and rulings. (1) A cable television franchisee, a municipality or an entity designated to administer a public access channel may seek a waiver of one or more provisions of this section upon application to the commission pursuant to sections 590.3 and 590.22 of this Subtitle. (2) Any interested person may seek a ruling from the commission concerning the applicability or implementation of any provision of this section or any provision of a franchise concerning PEG access upon the filing of a petition in accordance with section 590.18 of this Subtitle. 230.520b2 EX 8-31-88 SUBTITLE R C (3) Notwithsl not grant any w editorial control the effect of re programming d (NY -SCAN). (g) Severabilit: held invalid by a application of the 1 595.5 Require television services (1) Primary area: (i) those ars in -aid -of -const: (ii) those ar its franchise t construction b� (iii) any ar, paragraph and per linear mile (iv) any are paragraph and mile of aerial cable in areas is to be detertr subparagraphs the same areas (2) Line exten primary service (b) Where a cab] 1, 1982, the franch commission only if standards: (1) That, withi cable television s, ers requesting sex (2) That cable in line extension accordance with t C equals the cost tion per mile in t number of dwellfn TITLE 9 EXECUTIVE :he lowest level of service oes not include sufficient ial/governmental access section, the cable televi- p provide such additional Ise time on one or more s available on the same ver such PEG channel(s) oe or times desired by the PEG cnannel(s) by the i use and shall terminate 72 hours in advance. All as such by an appropri- ess use. Notwithstanding television system with a ed for a daily average of Jays, whichever is less, levision franchisee' shall channel is maintained. ion shall apply to the use -;Live date of this section bdivision (b) of this sec- rcise of every franchise r• effective date of this ?in shall impair the en - ,e effective date of this ise of channel capacity, .ish the obligations of a d or amended after the e additional provisions d governmental access made available by the lei:;; and of channel capacity for decal and State law. a municipality or an eek a waiver of one or on pursuant to sections mission concerning the n or any provision of a on in accordance with q E,rec u7i v (-4 -a SUBTITLE R COMMISSION ON CABLE TELEVISION § 595.5 (3) Notwithstanding paragraphs (1) and (2) of this subdivision, the commission shall not grant any waiver or ruling, or enter any order (i) that constitutes the exercise of editorial control over the content of public access programming or (ii) that would have the effect of requiring the carriage by a franchised cable television. company of programming distributed as the New York State and Community Affairs Network (NY -SCAN). (g) Severability. If any provision of this section or the application of such provision is held invalid by a court of competent jurisdiction, the remainder of this section or the application of the provision to other circumstances shall not be affected thereby. Historical Note Sec. filed April 19, 1982; repealed, new. filed Aug. 19, 1988 eff. Sept. 9, 1988. 595.5 Requirements for construction of cable television plant and provision of cable television services. (a) Definitions. (1) Primary service area shall include each of the following within the franchised area: - (i) those areas where cable television plant has been built without a contribution - in -aid -of -construction by subscribers; (ii) those areas where the cable television company is obligated by the terms of its franchise to provide cable television service without a contribution -in -aid -of - construction by subscribers; (iii), any area adjoining an area described in subparagraph (i) or (ii) of this paragraph and which contains dwelling units at a minimum rate of 35 dwelling units per linear mile of aerial cable; 1iv) any area adjoining an area described in subparagraphs (i) and (ii) of this paragraph and which contains at least the same number of dwelling units per linear mile of aerial cable as is the average number of dwelling units per linear mile of. cable in areas described in subparagraphs (i) and (ii) of this paragraph. The average is to be determined by dividing the sum of the dwelling units in areas described in subparagraphs (i) and (ii) of this paragraph by the number of linear miles of cable in the same areas. (2) Line extension area shall be any area within the franchised area which is not the primary service area. (b) Where a cable television franchise is awarded, renewed or amended after October 1, 1982, the franchise will be confirmed or the amendment will be approved by the commission only if the franchise contains the following additional minimum franchise standards: (1) That, within five years after receipt of all necessary operating authorizations, cable television service will be offered throughout the authorized area to all subscrib- ers requesting service in any primary service area. 12) That cable television service will not be denied to potential subscribers located in line extension areas who are willing to contribute to the cost of construction in accordance with the following formula: _C CA _ = SC LE p C equals the cost of construction of new plant; CA equals the average cost of construc- tion per .mile in the primary service area; P equals the, lower of 35 or the average number of dwelling units per linear mile of cable in areas described in subparagraphs 230.520b3 EX 8-31-88