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HomeMy WebLinkAbout1991-1992-1993 Cable CorrespondenceP11011E001Malifor / 4 / . of [] Returned youcall 0 Came in 0 See me Phonn• Date Time /6 12Z CITY OF ITHACA 108 EAST GREEN STREET ITHACA, NEW YORK 14850 DEPARTMENT OF PLANNING & DEVELOPMENT H. MATTHYS VAN CORT, DIRECTOR IfLv SEP 1 41993 To: James A. Ferwerda, Chair, Cable Commission From: Subject: FCC Cable Programming Service Rate Complaint Form Date: September 13, 1993 CODE: 607 TELEPHONE: 274-6550 FAX NO.: 272-7348 H. Matthys Van Cort, Director, Planning & Development Please find attached a copy of a letter (8/25/93) to me from Jean Rice, our former cable consultant, and a FCC 329 Cable Programming Service Rate Complaint Form. I forward this to you in case it may be of use to you or other members of the Commission. In addition, enclosed is a letter from Ms. Rice dated August 10, 1993 and a Summary of FCC CAble Television Rate Regulation Rulemaking for your information and use. Jean Rice, of Rice Williams Associates, was our cable consultant during the franchise negotiations. I found her to be extremely knowledgeable and helpful. If you have further questions regarding the new law or the FCC regulations, I am sure Rice Williams would be a good firm to consult. If there are any questions regarding this form, or our experience with Rice Williams, please let me know. /mc Attachment cc: `Charles Guttman, Esq_ VC#12/memos/Cable.Com is Printed on Recycled Paper "An Equal Opportunity Employer with an Affirmative Action Program" z:, RICE , WILLIAMS ASSOCIATES August 25, 1993 Mr. H. Matthys Van Cort Director, Planning & Development City of Ithaca 108 East Green Street Ithaca, NY 14850 Dear Thys: EEMIH1I ini 1 AUG 3 0 1998 10 DEPARTMENT OF PLANNING & DEVELOPMENT Enclosed is the FCC form 329, Cable Programming Service Rate Complaint Form. This is the form to file to request that the FCC review the reasonableness of cable rates for non -basic tier services (excluding pay -per -channel services such as HBO and pay-per-view services) and/or related equipment and installation. The FCC will not regulate programming service tier rates in your community unless a complaint is filed by the municipality or a cable subscriber. The FCC encourages municipalities to assist subscribers complete this form and subscribers may attached theviews of the franchising authority to their complaint. As with the Basic Rate Certification Form, the FCC will accept form 329 beginning on September 1, 1993. If you have any questions, don't hesitate to call. Sincere Rice Partner JR/j and Enclosure ./ 601 Pennsylvania Avenue, NW, Suite 900 6861 Elm Street, 4th Floor Washington, DC 20004 McLean, Virginia 22101 Phone: (202) 737-2400 Phone: (703) 506-0913 PUBLIC NOTICE FEDERAL COMMUNICATIONS COMMISSION 1019 M STREET N.W. WASHINGTON, D.C. 20554 34320 *we media (ntorms4$on 202/632-6060. Recorded Siting of WOWS Ind $exts 202/632.0002. • August 6, 1993 LOCAL FRANCHISING. AUTHORITY CERTIFICATION FORMS (FCC FORM 328) TO BE AVAILABLE AS OF AUGUST 9TH On April 1, i993, the Commission adopted its cable rate regulation Report and Order in MM Docket No. 92-266, Implementation of Sections of the Cable Television Consumer Protection and Competition Act of 1992, Rate Regulation.. In this Report and Order, the Commission stated that it would develop FCC Form 328, Local Francbiging Authority Certification, which must be filed with the Commission in order for a franchise authority to regulate basic cable rates. This new form W40 approved by the Office of Management and Budget on May 28, 1993. This form hay been printed and may be.obtained as of Monday, Augupt 9, 1993. The CommiUsion will begin accepting local franchising authority certifications on, and not before, Wednesday, September 1,•1993. FCC Form 328 may be obtained by writing to the Federal Communications Commission, .Cable Form Request: 328, P.O. Box 18238, Washington, D. C. 20036. This form will alpo be available at FCC Field Offices. Please note that other forms will .not be available from FCC Field Offices- - FCC - Federal Communications Commission Washington, D. C. 20554 FCC.329 CABLE PROGRAMMING SERVICE RATE COMPLAINT FORM (Carefully read instructions on reverse before filling out form). 1. Complainant's Name Mailing Address City State ZIP Code Daytime Telephone No. (include area code): 2. Local Franchising Authority's Name Mailing Address City State ZIP Code 3. Cable Company's Name Mailing Address City State ZIP Code Cable Company's FCC Community Unit Identifier Cf known): 4. Indicate whether this is the first time you have filed this complaint with the FCC or whether you are filing a corrected complaint to cure a defect in a prior complaint. CHECK ONE. First time complaint Corrected complaint 5. If you are filing a corrected complaint to cure a defect in a prior complaint, indicate the date the prior complaint was filed with the FCC and the date you received notification from the FCC that the prior complaint was defective. Date prior complaint filed: Date you received FCC notification that the prior complaint was defective: Month • Date Year Month Date Year 6. Indicate whether you are challenging the reasonableness of: (1) a rate concerning cable programming service or associated equipment in effect on September 1, 1993; or (2) a rate increase. (See the Instructions for different filing deadlines depending on which type of complaint you are filing.) CHECK ONE. Rate in effect on September 1, 1993 Rate increase 7. If you are a subscriber challenging the reasonableness of a rate increase, indicate the date you first received a bill from the cable operator reflecting the rate increase about which you are complaining. Month Date Year S. Indicate the current monthly rate for the cable programming service or associated equipment and, if you are challenging the reasonableness of a rate increase, the most recent rate in effect immediately prior to the rate increase. Current Monthly Rate: $ Previous Monthly Rate: Month Year Month Year Approvedby OMB -, 3060-0549 Expires 05/31/96 For FCC Use Only 9. In the tables below, describe the cable programming service to which the complaint is addressed and, if applicable, how it has changed. If this space is insufficient, include any additional comments on a separate page attached to this form. List channels by name included in the service: List channels by name deleted from the service (if any): List channels by name added to the service (if an): i 10. If you are a subscriber, you must attach a copy of your current bill reflecting the rate or rate increase about which you are complaining. NOTE: Failure to attach a copy ofyour current bill reflecting the rate or rate increase may result in dismissal of your complaint. have attached a copy of my current bill. El Yes Elko 11. Optional: If you area subscriber challenging. the reasonableness of a rate increase, attach a copy of a previous bill (if available) reflecting the rate immediately prior the rate increase. 1 have attached a copy my previous bill. _ _ _ . ❑ Yes ❑No 12. 1 certify that 1 am sending a copy of this complaint, including all attachments, to the cable company and the local franchising authority at the addresses listed above via first class mail, postage prepaid; at the same time I am sending a copy of this complaint to the FCC. NOTE: Failure to satisfy this requirement may result in dismissal of your complaint. The cable company will not be required to respond unless you send a copy of the complaint to the cable company by mail. El Yes act Date sent: Month Date Year 13. 1 believe that the cable company s rate for the cable programming service or associated equipment descr'bed'above is unreasonable because it violates the FCC's rate regulations. (CHECK BOX) 14. I certify that, to the best of my knowledge, the informationsupplied on this form is true and correct. Signature Date WILLFUL FALSE STATEMENTS MADE ON THIS FORM ARE PUNISHABLE BY FINE AND/OR IMPRISONMENT (U.S. CODE TITLE 1B, SECTION 1001) (Note to complainant: This complaint form will be maintained in the FCC's records under the cable company's community unit number. It will not be filed under your name.) FCC 329 August 1993 Federal Communications Commission Washington, D. C. 20554 FCC 329 INSTRUCTIONS 1. This FCC form is to be used by subscribers, franchising authorities, and other relevant state or local government entities seeking to file a complaint with the FCC challenging the reasonableness of a cable company's rates for cable programming service or for installation or rental of equipment used to receive cable programming service. . 2. The term "cable programming service" includes all video programming provided by a cable company except: (1) programming provided on the basic service tier; or (2) programming provided on a pay -per -channel or pay -per -program basis. See Question 9. 3. The "basic service tier" is the tier that includes over -the -air television broadcast signals and public, educational and govemmental access channels. Under federal law, in most instances, your local franchising authority rather than the FCC regulates rates for the basic service tier or associated equipment. Therefore, if you believe that your rate for the basic service tier or associated equipment is unreasonable, you should contact your local franchising authority to determine if it is authorized to regulate basic service tier rates. 4. Under federal law, video programming provided on a pay -per -channel or pay -per -program basis (for example, a premium movie channel such as HBO or a pay-per-view sports event) is not subject to rate regulation by either the FCC or your local franchising authority. 5. If you are concemed about your rates for cable programming service or associated equipment, then you may fill out this form and submit it to the FCC. The FCC will examine the reasonableness of your cable programming service rate according to a specific formula. If the rate the cable company currently is charging you for the cable programming service is greater than the rate produced by the FCC's formula, the cable company's rate will be presumed unreasonable. In these circumstances, unless the cable company can provide cost information to justify the reasonableness of its rate, the FCC may order a refund and/or a prospective rate reduction for the cable programming service at issue. 6. Please note the following time limitations for filing a complaint: • If you are challenging the reasonableness of a rate increase for cable programming service or associated equipment, your complaint must be actually received by the FCC within 45 days from the date you receive a bill from your cable company reflecting the rate increase. (Note: a reduction in number of channels may constitute an effective rate increase even though the existing rate for the cable programming service remains unchanged.) • The only exception to the 45 day time limitation concems cable programming service and associated equipment rates in effect when the FCC's rules become effective — that is, September 1, 1993. You may challenge the reasonableness of such rates, but you must file your complaint within 180 days from September 1, 1993 — that is, by February 28 , 1994. • After February 28, 1994, you may only file complaints about rate increases and you must follow the general 45 -day filing requirement described above. • Late -filed complaints will be dismissed with no opportunity to refile. 7. In addition to the cable company's name and mailing address, you should provide the cable company's "FCC Community Unit Identifier." (The FCC Community Unit Identifier is a number assigned to each cable system by the FCC for administrative purposes.) Also, you must provide the name and mailing address of the local franchising authority. (The local franchising authority is the local municipal, county or other government organization that regulates cable television in your community.) FCC rules require the cable company to fumish all this information to you on your monthly bill. If this information does not appear either on the front or back of your monthly bill, contact your cable company, your local franchising authority, or your local govemment to obtain the necessary information before filling out this form. 8. You must indicate whether you are challenging the reasonableness of: (1) a rate concerning cable programming service or associated equipment in effect on September 1, 1993; or (2) a rate increase. Except for a limited opportunity to challenge existing rates in effect on September 1, 1993, complaints may be filed only in the event of a rate increase. byU'8 Evimes0531A6 9. If you are a subscriber, you must attach a copy of your monthly cable bill reflecting the rate or rate increase about which you are complaining. If you are challenging the reasonableness of a rate concerning cable programming service or associated equipment in effect on September 1, 1993, the bill should reflect that rate. If you are challenging the reasonableness of a rate increase, the bill should reflect the increased rate. (If you are challenging the reasonableness of a rate increase and have a previous bill which reflects the rate immediately prior to the increase, please attach a copy of the previous bill — note, however, that this is optional.) 10. You must check the box stating your belief that the cable programming service rate is unreasonable. The FCC staff will apply the formula mentioned in paragraph 5 to determine whether the cable company's rate is presumed reasonable or not — you do not need to make this calculation. 11. You must fill in all information required by this form. 12. You may contact your local franchising authority for assistance in filling out this forn. In addition, you may attach a statement from your local franchising authority describing its views on the reasonableness of the cable programming service rate in question. This is not a requirement. If you do attach such a statement, you should also mail a copy of it to the cable company. 13. You must sign and date this form. 14. Copies must be mailed, including all attachments, to the following: Original: Federal Communications Commission Attn: Cable Programming Service Rate Complaint, P.O. Box 18958 Washington, D.C. 20036; the cable company (at the address listed on your complaint); and the local franchising authority (at the address listed on your complaint). Please be sure to send all copies to the correct address. If you do not, we may not be able to process your complaint. 15. NOTE: If you do not mail a copy of this form, including all attachments, to the cable company at the same time you mail your complaint to the FCC, the cable company will not be required to respond and your complaint may be dismissed. 16. If your complaint meets the requirements listed above, the FCC will require the cable company to respond to your complaint within thirty days and provide a justification for the reasonableness of your rate. The cable company must provide you with a copy of its response to the FCC. 17. The FCC staff will examine your complaint and the cable company's response and then rule on the reasonableness of the cable programming service rate. This ruling will be in writing, and you will receive a copy by mail. If the FCC staff determines that the rate in question is unreasonable, it may order refunds and/or prospective rate reductions. If it determines that the rate in question is reasonable, the FCC staff will deny the complaint. FCC NOTICE TO INDIVIDUALS REQUIRED BY THE PRIVACY ACT AND THE PAPERWORK REDUCTION ACT The solicitation of personal information in this form is authorized by the Communications Act 0(1934, as amended. The Commission will use the information -provided in this form to determine the reasonableness of a cable company's rates. In reaching that determination, or for law enforcement purposes, it may become necessary to refer personal information contained in this form to another govemment agency. All information provided in this form will be available for public inspection. Your response is required to obtain the requested relief. Public reporting burden for this collection of information is estimated to average 1 hour, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing the burden, to the Federal Communications Commission, Records Management Division, AMD-PIRS, Washington, D. C. 20554, and to the Office of Management and Budget, Paperwork Reduction Project (3060-0549), Washington, D. C. 20503. THE FOREGOING NOTICE 15 REQUIRED BY THE PRIVACY ACT OF 1974, P.L 93-579, DECEMBER 31, 1975, 5 U.S.C. 522aKeKD AND THE PAPERWORK REDUCTION ACT OF 1980, P.L 96-511, DECEMBER 11, 1980, 44 U S.C. 3507. RICE , WILLIAMS ASSOCIATES August 10, 1993 Mr. H. Matthys Van Cort Director, Planning & Development City of Ithaca 108 East Green Street Ithaca, NY 14850 Dear Thys: [ UNOdt AUG ! 33 DEPARTMENT OF PLANNING & DEVELOPMENT As you know, the FCC has announced September 1, 1993 as the initiation date for its rate regulation rules. The current rate freeze for non -premium cable services and equipment was extended until November 15, 1993. We were delighted that our clients' comments comprised 30 percent of the total responses to the FCC rate rulemaking proceeding and that these comments were cited many times throughout the rulemaking. To assist you in preparation for rate regulation, enclosed is the FCC basic rate regulation certification form (FCC 328) and a summary of the FCC's rate regulation rulemaking. The FCC certification form can be sent to the FCC on September 1, 1993 or later. We recommend sending in the basic rate regulation certification form at the earliest date. The Cable Programming Service Rate Complaint Form (FCC 329) will be forwarded to you as soon as it has been released. The complaint form requests the FCC to regulate cable programming service and should be sent in as early as possible. Fortunately, the FCC took cities advice and followed a simple check -off format for rate certification. Submitting the forms in early September is advisable for communities with rates below or above the FCC's benchmark rate as the formula is applied to the local cable system. For cities whose cable companies' rates are below that allowed by the benchmark formula, it is important to file in early September to maintain rates at current levels. If the City does not act in a timely manner, the cable company will be allowed to raise rates to the maximum benchmark level. In areas where the rates are above benchmark levels, prompt action is needed so that the City is regulating rates before the November 15 rate freeze expires, thus ensuring that rates are not increased at the end of the freeze and that refunds accrue from the earliest possible date. 601 Pennsylvania Avenue, NW, Suite 900 Washington, DC 20004 Phone: (202) 737-2400 6861 Elm Street, 4th Floor McLean, Virginia 22101 Phone: (703) 506-0913 Our firm will be reviewing benchmark and cost -of -service showings on behalf of municipalities. If you have not already confirmed that you would like us to assist in rate regulation, please let Don Williams or I know if our firm can be of assistance. Sincerely, can Rice Partner JR/jmd Enclosures 4 rPORP AMERICAN COMMUNITY CABLEVISION A DIVISION OF TIME WARNER ENTERTAINMENT COMPANY, L.P. STATEMENT OF ASSETS, LIABILITIES AND NET ASSETS June 30, 1993 (Unaudited) ASSETS Cash Accounts receivable, less allowance for doubtful accounts of $101,909 Prepaid expenses Property, plant and equipment, at cost --Note 2: Land, building and improvements Distribution system Vehicles and other equipment Construction in progress Less accumulated depreciation Net property, plant and equipment Franchise costs, less accumulated amortization of $941,842 --Note 2 $ 1,918,049 17,971,969 2,534,613 28.821 22,453,452 (9.474.582) LIABILITIES AND NET ASSETS Accounts Payable Accrued liabilities Subscribers' advance payments Net assets --Note 1 See notes to financial statements $ 131,969 406,222 30.696 12,978,870 1.170.711 ).14,71.8,46$ $ 91,317 769,703 464.654 1,325,674 13.392.794 $14.718.468 • AMERICAN COMMUNITY CABLEVISION A DIVISION OF TIME WARNER ENTERTAINMENT COMPANY, L.P. STATEMENT OF REVENUES AND EXPENSES AND CHANGES IN NET ASSETS Year Ended June 30, 1993 (Unaudited) Revenues: Service Connection and other Expenses --Note 3: Operating and origination Selling, general and administrative Depreciation and amortization Interest, net $ 7,675,917 1.651.124 3,637,741 1,624,638 1,791,717 397.023 Income before charge equivalent to income taxes Charge equivalent to income taxes --Note 4 Net income Net assets at beginning of year Net payments to Time Warner Entertainment Company, L.P. Net assets at end of year See notes to financial statements $ 9.327,04 1 7.451.119 1,875,922 760.000 1,115,922 14,123,012 (1.846.140) /13.392,794 42 AMERICAN COMMUNITY CABLEVISION A DIVISION OF TIME WARNER ENTERTAINMENT COMPANY, L.P. STATEMENT OF CASH FLOWS Year Ended June 30, 1993 (Unaudited) Cash Flows From Operating Activities: Net income Adjustments to reconcile net income to net cash provided by operating activities: Depreciation and amortization Changes in non-cash working capital: Accounts receivable and prepaid expenses Accounts payable, accrued liabilities and subscribers' advance payments $ 1,115,922 1,791,717 (153,244) 207.981 Net Cash Provided By Operating Activities $ 2,962,376 Cash Flows Used In Investing Activities: Purchases of property, plant and equipment Refranchising costs (1,026,352) (2.767) Net Cash Used In Investing Activities (1,029,119) Cash Flows Used In Financing Activities: Net payments to Time Warner Entertainment Company, L.P. (1.846.140) Net increase in cash 87,117 Cash at beginning of year 44.852 Cash at end of year , _ 131,99, Supplemental Disclosures of Cash Flow Information: Cash paid during the year for: Interest $ 401,632 Charge equivalent to income taxes 760,000 See notes to financial statements AMERICAN COMMUNITY CABLEVISION A DIVISION OF TIME WARNER ENTERTAINMENT COMPANY. L.P. NOTES TO FINANCIAL STATEMENTS June 30. 1993 (Unaudited) 1. Description of business American Community Cablevision (the Division). a division of Time Warner Entertainment Company, L.P. (TWE), is principally engaged in the cable television business. Such operations consist primarily of selling video programming which is distributed to subscribers for a monthly fee through a network of coaxial and fiber optic cables. The Division operates in the City of Ithaca. New York and contiguous areas under nonexclusive franchise agreements which are in effect until 1999. The Division has no separate legal status or existence. The Division's resources and existence are at the disposal of TWE management, subject to contractual commitments by TWE to perform certain long-term contracts within the present divisional structure. The Division's assets are legally available for the satisfaction of debts of TWE, not solely those appearing in the accompanying statements, and its debts may result in claims against assets not appearing therein. The Division is one of several divisions and affiliates of TWE, and transactions and the terms thereof may be arranged by and among members of the affiliated group. 2. Significant accounting policies Property. plant and equipment: Depreciation is provided on the straight-line basis over the estimated useful lives of the assets as follows: Building and improvements 10-20 years Distribution system 8-15 years Vehicles and other equipment 4-10 years Franchise costs: The Division has deferred costs incurred to acquire the franchises. Additional costs incurred to renew the franchises have also been deferred. Amortization of franchise costs is provided on the straight-line basis over the lives of the franchises. Statement of cash flows: For purposes of this statement, cash includes all highly liquid investments purchased with original maturities of three months or less. AMERICAN COMMUNITY CABLEVISION A DIVISION OF TIME WARNER ENTERTAINMENT COMPANY, L.P. NOTES TO FINANCIAL STATEMENTS June 30, 1993 (Unaudited) 3. Related party transactions Interest charged to the Division by TWE was computed by multiplying 52.13% of the Division's average net assets by the average interest rate on TWE's outstanding borrowings. During the year ended June 30, 1993, interest was charged at an average rate of 5.6% and aggregated $401,632. The Division records charges for a portion of TWE's selling, general and administrative expenses ($612,7.11 for the year ended June 30, 1993) which are allocated by TWE to its divisions and affiliates based upon subscriber levels. The statement of revenues and expenses and changes in net assets includes charges for programming and promotional services provided by Home Box Office and other affiliates of TWE. These charges are based upon customary rates. 4. Charge equivalent to income taxes The Division is included in the TWE Federal Partnership Return of Income. In accordance with the TWE partnership agreement, cash distributions by TWE generally are required to be made to the partners to permit them to pay taxes at statutory rates on their allocable taxable income from TWE. As a U.S. partnership, TWE is not subject to U.S. federal and state income taxation. However, as a matter of policy, TWE has elected to allocate to the Division a charge equivalent to income taxes based upon the Division's income before charge equivalent to income taxes and statutory federal and state income tax rates. 5. Leases Rental expenses for all operating leases, principally pole attachment fees for the year ended June 30, 1993 amounted to $133,553. The Division has no significant noncancelable rental commitments. AMERICAN COMMUNITY CABLEVISION A DIVISION OF TIME WARNER ENTERTAINMENT COMPANY, L.P. NOTES TO FINANCIAL STATEMENTS June 30, 1993 (Unaudited) 6. Benefit Plans The Division participates in a noncontributory defined benefit pension plan (the Pension Plan) which is maintained by TWE and covers substantially all employees. Benefits under the Pension Plan are determined based on formulas which reflect the employees' years of service and average compensation for the highest five consecutive years of the last ten years of service. Total pension cost forthe year ended June 30, 1993 was $41,309. The Division also participates in a defined contribution plan maintained by TWE (the Time Warner Cable Employees' Savings Plan --Savings Plan) which covers substantially all employees. The Division's contributions to the Savings Plan can amount to up to 6.67% of the employee's eligible compensation during the plan year. The plan sponsor has the right in any year to set the maximum amount of the Division's contribution. Defined contribution plan expense totaled $28.297 for the year ended June 30, 1993. REPORT OF OWNERSHIP AND OFFICERS June 30, 1993 American Community Cablevision is a 100% owned division of Time Warner Entertainment Company, L.P. (TWE). TWE is an 87.5% indirect subsidiary of Time Warner Inc. The following list includes individuals who are currently officers of Time Warner Entertainment Company, L.P. OFFICERS OF THE COMPANY: Office Chairman, President and Chief Executive Officer Chairman of the Executive Committee Executive Vice President, General Counsel and Secretary Executive Vice President and Chief Financial Officer Senior Vice President Senior Vice President and Controller Senior Vice President Senior Vice President Senior Vice President Senior Vice President Vice President Vice President Vice President Vice President Vice President Vice President Vice President Vice President Vice President Vice President Vice President Vice President Vice President Vice President Vice President and Treasurer Vice President Vice President Vice President Officer Gerald M. Levin J. Richard Munro Peter R. Haje Bert W. Wasserman Timothy A. Boggs David R. Haas Edwin W. Hamowy Geoffrey W. Holmes Tod R. Hullin Philip R. Lochner Jr. Fred S. Anton Richard J. Bressler Robert W. Brodbeck Warren A. Christie Toni G. Fay Donald R. Guerette Spencer B. Hays Robert M. Hayes III John A. LaBarca Jeanette P. Lerman Carolyn K. McCandless Thomas W. McEnerney Carol Melton Jerald W. Olson R. Mackereth Ruckman Arthur Sackler Joan Nicolais Sumner John Thomas REPORT OF OWNERSHIP AND OFFICERS June 30, 1993 OFFICERS OF THE COMPANY: (continued) Office Assistant Vice President Assistant Vice President Assistant Treasurer Assistant Treasurer Assistant Secretary AssistantSecretary Assistant Secretary Assistant Secretary Assistant Secretary Assistant Secretary Assistant Secretary Assistant Secretary Officer Matthew Calvin Joseph Mallia Stephen Kapner James Solomon Eli T. Bruno Jodi L. Kass Joan T. Pincus Sheldon W. Presser Andra D. Sanders John A. Schulman Alison A. Stolzman Paul Williams AC '(ECEIVED NOV 33 1993 AMERICAN COMMUNITY CABLEVISION November 22, 1993 Ms. Callista Paolangeli, Clerk City of Ithaca City Hall 108 E. Green Street Ithaca, NY 14850 6)2, - Dear Ms. Paolangeli: Enclosed is a check in payment of American Community Cablevision's franchise fee for the third quarter of 1993. The revenues used in the computation include advertising revenue and franchise fees collected during the third quarter as agreed in the settlement between the City of Ithaca and American Community Cablevision. Should you have any questions, please feel free to call. American Community Cablevision takes great pride in serving the residents of the City of Ithaca. erely, Raymond H. McCabe Area Manager cc: The Honorable Benjamin Nichols Mr. James Ferwerda, Chair of the Cable Commission enc. RHM/mkk 519 West State Street Ithaca, New York 14850 607-272-3456 Nacional Division TIMEWARNER CABLE November 19, 1993 City of Ithaca Ithaca, New York Dear Sir: ZZNY 0040 Enclosed please find a check for $ 37,491.01 which is payment of franchise fees for the third quarter of 1993 for American Community Cablevision. At this point, we have not deducted the overpayments for the prior periods. However, in the future, we reserve the right to reduce franchise fee payments by the amount overpaid. Computation is as follows: Taxable Gross Revenues $784,166.73 Franchise Fee Rate Less NYCC 4.781% Franchise Fee Due - $37,491.01 I, Ivy W. Parish, Controller of Time Warner Cable, National Division, certify that the above schedule summarizes the Gross Revenues, as defined in the franchising agreement, for the period indicated for the CATV operations in the City of Ithaca, New York. Signed: CAJ • (CIA. Iv W. Parish, Controller IWP/lmf Enclosure National Division 160 Inverness Drive West t Suicr' 300 Englewood GO 80112 Tel 303.799.9399 Fax 303.6•19.80901303. 799. / 7 Mailing Address: RO. Box 6929 Enelrneood GO 80155-692 .1 Division o/•Tiwr P",vnrr fioh•rrri:n;.r•:rr (',n•r;rrrnr. J..!' National Division TIMEWARNER CABLE November 19, 1993 City of Ithaca Ithaca, New York Dir Sir or Madam: Enclosed please find a check for $21,377.99 which is payment of franchise fees on advertising and franchise fee revenue, made in accordance with the Memoradum of Understanding, dated October, 1993 between the City of Ithaca and American Community Cablevision. This This payment is for the period January, 1992 through June, 1993. Computation is as follows: Period January- March 1992 April -December 1992 January- March 1993 April -June 1993 Franchise Fee Due Advertising Revenue 32,128.34 136,801.04 38,591.63 49,770.85 on Advertising Itemized Period Franchise Fees January- March 1992 April -December 1992 January- March 1993 April -June 1993 31,652.73 94,416.52 32,298.36 31,943.24 Rate less NYCC Total 4.723% 1,517.42 4.786% 6,547.29 4.786% 1,847.00 4.781% 2,379.54 Rate less NYCC Franchise Fee Due on Franchise Fees 4.723% 4.786% 4.786% 4.781% Total 1,494.96 4,518.77 1,545.80 1,527.21 12,291.25 9,086.74 Total Franchise Fee Due on Advertising & Fees on Fees $21,377.99 I, Ivy W. Parish, Controller of Time Warner Cable, National Division, certify that the above schedule summarizes the Gross Revenue, as defined in the memorandum of understanding dated October, 1993, for the period indicated for the CATV operations in the City of Ithaca, New York. Signed: Enclosure Ivy W. Parish, Controller National Division 160 Inverness Drive West Suite 300 Englewood CO 80112 Tel 303.799.9599 Fax 303.649.8090/303.799.1744 Mailing Address: P.O. Box 6929 Englewood CO 80155-6929 A Division of Time {Varner Entertainment Company, L.P. --// 7 3 ‘3, OFFICE OF CITY ATTORNEY CITY OF ITHACA 108 EAST GREEN STREET ITHACA. NEW YORK 14850 MEMORANDUM TO: Dominick Cafferillo, Controller FROM: Chuck Guttman, City Attorney DATE: October 14, 1993 RE: Negotiations with ACC/Time Warner Cable q0Le Cor -i TELEPHONE: (607) 274-6504 FAX: (607) 272-7348 L-tqfo We have concluded the negotiations with Time Warner Cable and are in the process of having a Memorandum of Understanding executed between the City and Time Warner Cable. This Memorandum of Understanding provides that, simultaneously with the execution of the agreement, certain payments shall be made to the City of Ithaca. While I do not have exact figures at this time as to what will be owing to the City (what will be paid to the City will depend on ACC's gross revenues and advertising revenues for 1992 and 1993) I would estimate that Time Warner would owe the City for 1992 and 1993 $29,000.00 more than would otherwise have been paid to the City. I would further estimate that the payments which the City would normally have expected to receive from Time Warner for 1994 should be increased by approximately $15,000.00 as the result of this Memorandum of Understanding. If you need more specific information regarding this, please let me know. I have asked Time Warner to forward to me as soon as possible the exact numbers from which we calculate these figures more accurately. I will of course, forward them to you as soon as I receive them. "An Equal Opportunity Employer with an Affirmative Action Program" tO Recycled Paper OFFICE OF CITY ATTORNEY CITY OF ITHACA 106 EAST GREEN STREET ITHACA. NEW YORK 14850 October 29, 1993 John E. Fogarty, Esq. Associate General Counsel Time Warner Cable 300 First Stanford Place Stanford, CT 06902-6732 Dear John: TELEPHONE: (607) 274-6504 FAX: (607) 272-7348 I wrote to you on October 14, 1993 sending you three signed copies of the Memorandum of Understanding requesting that you get these signed and return a signed copy to me with the appropriate payments. I also asked you to give me an explanation as to how the amounts were calculated. I also pointed out that ACC now has the obligation *of designating and activating an additional .public access channel. Two and a half weeks have gone by and I have not heard anything back from you regarding this matter. I am enclosing a copy of letter of October 14 for your reference. I would appreciate your immediate attention to this matter so that we can get this closed. If there any problems, please get back to me as soon as possible. CG/cw Encl. Very trul Guttman ity ttorney "An Equal Opportunity Employer with an Affirmative Action Program" +iii Recycled Paper ACC ;DECEIVED NOVO a. X993 AMERICAN COMMUNITY CABLEVISION October 25, 1993 Ms. Callista Paolangeli City Clerk of Ithaca City Hall 108 E. Green Street Ithaca, NY 14850 Dear Ms. Paolangeli: Enclosed please find the financial statement for American Community Cablevision for the fiscal year beginning July 1, 1992 and ending June 30, 1993 and a list of officers of Time Warner Entertainment Co., L.P. If you have any questions, please do not hesitate to call. cerely, Ra and H. McCabe ��k�l Area Manager cc: The Honorable Ben Nichols Mr. James Ferwerda, Chair of the Cable Commission Please ❑ READ HAN ❑ APPR and Date FOR RETURN KEEP OR DISCARD REVIEW WITH ME Post-It'"routing request pad 7664 ROUTING — REQUEST 519 West State Street Ithaca, New York 14850 From 607-272-3456 OFFICE OF CITY ATTORNEY CITY OF ITHACA 108 EAST GREEN STREET ITHACA. NEW YORK 14850 MEMORANDUM TO: Dominick Cafferillo, Controller FROM: Chuck Guttman, City Attorney DATE: October 14, 1993 RE: Negotiations with ACC/Time Warner Cable TELEPHONE: (607) 274-6504 FAX: (607) 272-7348 We have concluded the negotiations with Time Warner Cable and are in the process of having a Memorandum of Understanding executed between the City and Time Warner Cable. This Memorandum of Understanding provides that, simultaneously with the execution of the agreement, certain payments shall be made to the City of Ithaca. While I do not have exact figures at this time as to what will be owing to the City (what will be paid to the City will depend on ACC's gross revenues and advertising revenues for 1992 and 1993) I would estimate that Time Warner would owe the City for 1992 and 1993 $29,000.00 more than would otherwise have been paid to the City. I would further estimate that the payments which the City would normally have expected to receive from Time Warner for 1994 should be increased by approximately $15,000.00 as the result of this Memorandum of Understanding. If you need more specific information regarding this, please let me know. I have asked Time Warner to forward to me as soon as possible the exact numbers from which we calculate these figures more accurately. I will of course, forward them to you as soon as I receive them. 'An Equal Opportunity Employer with an Affirmative Action Program" to Recycled Paper CITY OF.ITHACA• CITY HALL • 108 EAST GREEN STREET • ITHACA, NEW YORK 14850 • (607) 274-6571 MESSAGE REPLY F Ir DATE TO L 1L DATE /6 -- /v - / a_ , ,......,1,,_ ,,_, /1/ d_e,-6., , '.--/ ,---)-7. I "Ai `fit-iix- --1_i/!"JL BY Item x NN73 The Drawing Board, Dallas, Texas 75266-0429 C/ Wheeler Group, Inc., 1982 • INSTRUCTIONS TO SENDER: t KEEP YELLOW COPY. 2. SEND WHITE AND PINK COPIES INTACT. SIGNED INSTRUCTIONS TO RECEIVER: 1. WRITE REPLY. 2. DETACH STUB. KEEP PINK COPY. RETURN WHITE COPY TO SENDER. CITY OF ITHACA CITY HALL e 1 ©B EAST GREEN STREET , 6THACA, NEW YORK 14850 s (607) 274-6571 MESSAGE REPLY BY -"-97 SIGNED Item n NN73 The Drawing Board, Dallas, Taxa 75266-0429 ® Wheeler Group, Inc., 1982 RECIPIENT KEEP THIS COPY, RETURN WHITE COPY TO SENDER u�' DATE TO /L DATE) 6 - AQ -- 9'3\3 u:-/. h-A-� v( /' u , - /, - -L . f / m� �:Z� -rte / �-n F L (z_e _____,--,,—k ,e_.%/1 a-)--1 4ci-7._____ BY -"-97 SIGNED Item n NN73 The Drawing Board, Dallas, Taxa 75266-0429 ® Wheeler Group, Inc., 1982 RECIPIENT KEEP THIS COPY, RETURN WHITE COPY TO SENDER Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D. C. 20554 In re Petition of ) WENY, INC. ) CSR- WENY-TV, Elmira, New York ) For Special Relief For Redefinition of WENY-TV's ) Market to Include the following ) counties: Schuyler and Tompkins, ) New York; and Bradford, Pennsylvania ) 0 _CITY CLERK'S OFFICE TO: Chief, Mass Media Bureau PETITION FOR SPECIAL RELIEF WENY, Inc., licensee of Television Broadcast Station WENY-TV, Channel 36, Elmira, New York (WENY), by its attorney, and pursuant to 47 U.S.C. §614(h)(1)(c) and 47 CFR §76.7, hereby respectfully submits this Petition for Special Relief for the redefinition of WENY-TV's television market to include the New York counties of Schuyler and Tompkins and the Pennsylvania county of Bradford. This is the petition described in paragraphs 42-47 of the Commission's Report and Order in MM Docket No. 92-259, Broadcast Signal Carriage Issues, 8 FCC Rcd 2695 (1993). An FCC Form 155 and filing fee -check in the amount of $790.00 are affixed to the original of this submission. In support whereof, the following is shown: I. FACTUAL STATEMENT A. WENY-TV's Coverage 1. WENY-TV is an ABC affiliate operating on Channel 36. 2 WENY-TV has been in continuous operation since its sign -on on November 19, 1969. Two of the station's founders, Donald Simmons and Howard Green, have been stockholders of the licensee corporation continuously since sign -on, and today each of them owns 50 percent of the stock of WENY, Inc. 2. The Arbitron Ratings organization has assigned WENY- TV to the Elmira, New York ADI. That ADI consists of the New York counties of Chemung (the home county) and Steuben, and the Pennsylvania county of Tioga. 3. However, as can be seen from Exhibit A, a WENY-TV coverage map, WENY-TV places a Grade A or better signal into six counties: the three ADI counties described above; the New York counties of Schuyler and Tompkins; and the Pennsylvania county of Bradford. These three counties contain communities which WENY-TV serves with news and informational programming, and which are important from the point of view of advertising: Schuyler County, Watkins Glen; Tompkins County, Ithaca; and Bradford County, Sayre and Towanda. 4. In the case of Bradford County, WENY-TV was found to be a "significantly viewed" signal in Appendix B to the Report and Order on Reconsideration of the Cable Television Report and Order, 36 FCC 2d 326, 25 RR 2d 1501 (1972) (see Exhibit B). B. Viewership Patterns; Existing Cable Carriage 5. Schuyler County. The county seat, Watkins Glen, is roughly 21 miles from Elmira; it is only 18 miles from the 3 WENY-TV transmitter to the headend of the Watkins Glen cable television system. By contrast, despite the fact that Arbitron has assigned this county to the Syracuse ADI, the distance between the Watkins Glen cable headend to the closest Syracuse market television station transmitter site is 56.5 miles. Indeed, the Nielsen Station Index has assigned this county to the Elmira DMA (Dominant Market Area) . 6. WENY-TV has been carried on the cable systems in this county, which include the following communities: Watkins Glen; Odessa; Montour Falls; Alpine; Beaver Dams; Mecklinberg; Hector; Burdett; Bennettsburg; Tyrone; and Reading Center. 7. Tompkins County. Despite the fact that this county is contiguous to Chemung County, the Elmira market's home county, and that the farthest corner of the county is no more than 40 miles from Elmira, Arbitron has assigned this county to the Syracuse ADI. The distance from downtown Syracuse to downtown Ithaca (the county seat) is over 70 miles; the distance from downtown Syracuse to the closest point in Tompkins County is over -50 miles. Also, the distance from the closest Syracuse television transmitter to the Ithaca cable headend is 41 miles. By contrast, Elmira to Ithaca, downtown to downtown, is just 29.25 miles; from the WENY-TV transmitter to the Ithaca CATV headend, the distance is a mere 23 miles. 4 8. WENY-TV operates a television translator on Channel 7 in Tompkins County, serving the Ithaca area. Additionally, WENY-TV is carried on the following cable systems in the county: Ithaca; Dryden; Newfield; Trumansburg; Cayuga Heights; West Dryden; Newfield Station; and Lansing. 9. Bradford County. As noted above, WENY-TV is a significantly -viewed signal in this county. However, Arbitron has seen fit to assign this county to the •Binghamton, New York ADI. Downtown to downtown, Elmira to Sayre is just 17.5 miles; Sayre to Binghamton is 43.5 miles. Downtown to downtown, Elmira is 23.6 miles from Towanda; Towanda is 39 miles from Binghamton. WENY-TV's transmitter is 20 miles from the CATV headend serving Sayre and Athens; the closest Binghamton television transmitter is 30 miles from that headend. Likewise, WENY-TV's transmitter is 34 miles from the Towanda CATV headend; the closest Binghamton television transmitter to that headend is 34 miles. 10. WENY-TV's relationship with Bradford County runs even deeper than the foregoing statistics would indicate. WENY's President and 50 percent shareholder, Donald M. Simmons, resides in Sayre where he has been a pillar of that community for many years. Nearly 20 percent of the employees of WENY, Inc. live in Bradford County, including WENY-TV's Station Manager and Local Sales Manager. In 1992, 24 percent of WENY-TV's local advertising sales came from Bradford County businesses. 5 C. Local Programming 11. There is attached hereto as Exhibits B, C and D, respectively, a compilation of representative news programming that has appeared on WENY-TV in recent months relating to Schuyler County, Tompkins County and Bradford County. WENY-TV has historically provided programming to meet the problems, interests and needs of these areas within its primary service area. 12. Schuyler County. WENY-TV and its sister radio stations are the CPCS-1 designated stations for the Elmira Operational Area of the New York State EBS system; the Elmira Operational Area consists of Chemung and Schuyler counties. The offices and studios of WENY-TV are located about 15 miles from downtown Watkins Glen, easily facilita- ting WENY-TV's news coverage of the county, particularly in late breaking news. No other station can be on the scene in Schuyler County faster than can WENY-TV. No station in the Syracuse ADI covers more news than WENY-TV. This is also true for coverage of local county sports and weather information. 13. Several years ago, the Schuyler County Chamber of Commerce joined with the Chemung and Steuben County Chambers to jointly promote tourism in the "Southern Tier" of New York, creating a "tourism triangle" of events in the three counties. Attractions such as racing events at the Watkins Glen International Raceway are heavily promoted within the Elmira ADI and specific promotional tie-ins with the various 6 racing teams are held in Elmira, Corning, Watkins Glen and other area communities. The economic impact to the area is enormous. Similar physical promotional tie-ins do not occur in the Syracuse area because of the distance from Watkins Glen. 14. Tompkins County. WENY-TV's offices and studios are under 25 miles from downtown Ithaca, which facilitates news coverage of the county. WENY-TV covers more news, weather, sports and local events from the Ithaca/Tompkins County area than any other station. WENY-TV has historically maintained close news coverage ties with the Ithaca area. The station has virtually always had at least one news person living in the area, including a past News Director. 15. WENY-TV maintains relationships with Ithaca's institutions of higher learning, Cornell University and Ithaca College. Each year students at both institutions have the opportunity for internships at WENY-TV, and in several instances these students have become employees,of WENY, Inc. upon graduation; many have become employed in the news department, thus further strengthening WENY-TV's news coverage abilities and ties to Tompkins County. 16. Bradford County. As noted heretofore, WENY-TV is listed in the FCC's "Appendix B" as a significantly viewed station in this county. WENY-TV covers news events from communities in Bradford County on a daily basis. The proximity of the station's offices and studios to this county make covering news stories very simple. This is 7 particularly true of late breaking news and weather; the coverage of such is extensive. D. Carriage of WENY-TV by CATV Systems 17. As noted above, WENY-TV is carried on virtually all of the cable television systems serving Schuyler, Tompkins and Bradford Counties. These systems include: (a)Cable- vision Industries, at Watkins Glen, Dix, Montour, Montour Falls, Odessa and Reading; (b)Haefele TV, Inc., at Alpine, Catherine, Cayuta, Burdett, Hector, Mecklenburg and Enfield; (c)American Community Cable, serving Ithaca and all other cable television communities in Tompkins County; (d)Valley Cablevision in the Sayre/Athens, Pennsylvania area; (e)Retel TV Cable Co. in the Canton, Pennsylvania area; (f)Mastervision in the Bentley Creek, Pennsylvania area; (g)Barrett's TV Cable System in the Big Pond, Pennsylvania area; and (h)Blue Ridge Cable TV, Inc. in the Troy, Pennsylvania area. II. LEGAL ARGUMENT 18. In the Report and Order in MM Docket No. 92-295, supra, at 11142-47, the Commission indicated that, in accordance with the Congressional mandate pursuant to 47 U.S.C. 5614(h) (1) (C), it would modify the definition of a local commercial television station's television market upon a showing including the following factors: (a)coverage or other local service to the community sought to be included in the market; (b)coverage of news or programming of local interest; 8 (c)historical carriage on cable systems in the community; and (d)the local viewing patterns in the community. 19. On every factor in Schuyler, Tompkins and Bradford counties, WENY-TV has demonstrated that it is entitled to inclusion of these three counties in its market. First, WENY-TV is the closest ABC affiliated television station providing service to the three counties; it is much closer than ABC affiliates in Syracuse, Binghamton or Scranton - Wilkes -Barre. 20. Second, WENY-TV has consistently provided news, public affairs, weather and sports programming to Schuyler, Tompkins and Bradford counties. Moreover, WENY-TV has provided local merchants in these counties a local outlet for commercial self-expression. 21. Third, WENY-TV has been serving this region since 1969, and is carried on most cable systems in Schuyler, Tompkins and Bradford counties. WENY-TV is the oldest non - satellite television station licensed to Elmira (for many years WETM-TV, Channel 18, NBC, Elmira --formerly WSYE-TV-- was a satellite of WSYR-TV (now WSYT), Channel 3, Syracuse). 22. Fourth, WENY-TV is a popular television station in the area, and provides coverage to Schuyler, Tompkins and Bradford counties; it is even recognized by the Commission as "significantly viewed" in Bradford county. 23. Thus, it is eminently clear that the public interest, convenience and necessity would be well served by 9 the Commission granting this petition in full, and by declaring that henceforth, for purposes of the Commission's cable television rules, WENY-TV's market will include Schuyler and Tompkins counties in New York and Bradford county in Pennsylvania. 24. As required by Section 76 .7 (c) (1) of the Commission's Rules, this pleading is verified by the Declaration of Howard L. Green, Executive Vice -President and 50 percent shareholder of WENY, Inc. (Exhibit E). WHEREFORE, WENY, Inc. urges tht this Petition for Special Relief BE GRANTED IN FULL. Respectfully submitted, WENY, INC. By CORDON AND KELLY Post Office Box 6648 Annapolis, MD 21401 Telephone: 410-280-6290 October 5, 1993 n i s J. e'l l y (D. C. Bar No. 292631) Its Attorney New York—Elmira WENY-N Ch. 36 Network Service: ABC. License: WENY Inc., Box 208, Etmia. NY 14902. Studio: 596 Old Ithaca Rd., Horseheads, NY 14845. Telephone: 607-739.3636. Technical Facilities: Charnel No. 36 (602-608 MHz). Authorized power: 464 -kw mat & 427 -kw horizontal visual, 92.7 -kw mat & 85.4 -kw horizontal acral. Antenna: 105048 above ay. terrain, up -ft. above Around, 2546-11. above sea level. Latitude 42° 06' 20' Longitude 76° 52' 17' Transmitter: Hawley Hili approx. 3 -mi. WNW of Elmira. AM Affiliate: WENY,1-kw,.1230 kHz. FM Affiliate: WLEZ, 750 watts, 927 MHz (No. 224), 560-8. News Service: AP. Ownership: Howard Green Group (Group Owner).. Began operation: November 19, 1969. Represented (sales): Adam Young Inc. Represented (legal): Cordon &.Kery. Represented (engineering): Lohnes & Cover. Personnel: HOWARD L. GREEN, executive vice presiders. PATRICK M. PARISH, general manager. MEADE MURTLAND, station & general sales manager. ELLEN PAINTER production' director. DON RYAN, chief engineer. DAN JOHNSON, news director. Highest 30 Sec. Rate: S260. Cly of License: Elmira. ADI: Emla. Rank:167. 'total ffanaholds. CMMSI Consume. Merkel Dots as or VV90. TV Homes, TV% and Cirutffior 01990 Arbkor. Carel eovrape basad on Arbtor, iird'. NO Weekly Stale Crculatioe Gully Total TY Housebetts N•asebolts H•oseb•Ids % NEW YORK 50% 3 Over , Cheming Steuthen. PENNSYLVANIA Tioga 34,300 33,600 36,600 35,800- 15,100 14,700 98 98 97 91 Edition L!,171LU1 ! t; • rtvilN v • KE ONTARIO C hyo o olont°°- 'e` oteems o ! tt erne Fall upon e N �N[YI c Rem rtla-' Buffalo Ectovb t 0 .anon mata 0 N E wro+rc Dnsvilie o . Salo ence Wellsville 0 e0 eon Brodford KRIaN phone ELK St. Morys 0 Igwoy POTTU daqua LAuror • veep • r ear gBalowmsville0 r se R wort lOs o e tiNt ted 4sol.ay o0 auburnSyrocuse en•vo txne� Cortland 0 C ouderrport to Clearfield ,teuerl§, •iyne CIANTDA uxra L,COrIMG SUll N*N k y� a mot htate •BeIleton Ilegee corms oTyrone SCALE OF 0 ' 50 ( e W MILE 0 Norwich CNINAROD n Het r'.; ' one; n , Sidney • ty .Hort g Binghamton OCLAF wa.NL 7 •0 k a Ctb°t,N 'Scranton "medal` eoDunmpa[ Nonticokee *MAFIA' rolwoe e'�Be'wick fregan Slroudsb r¢, ' / o '0\ „ode o�u■w� ' ^ ^•� oa ro5ri nbYry Sh°mokln ®Tamaqu Ston Pottsvilie LEMON"' II■ ..r. uNuv IO leher 100 Laiown boson au c 00uak T. I Dslni ®Reodi P"o„ Wn Trert n9cs4 _.:_ .:.. © American May Cory.. 1423; ; ceowl) WBtY-TV BMPCT•7077 Granted Cs 20 69 Not Weekly Cheulati•eCovey Date TM& TV Hou•bolis Households Households % NEW YORK Between 25-49% Schuyler PENNSYLVANIA Bradford 6,500 5,300 97 24,400 23,900 98 MEW YORK Between 5-24% Alegary Toa Tompkins PENNSYLVANIA Potter 17,600 17,200 97 18,800 18,500 98 32,000 30,600 96 7,000 6,800 97 Totals Net Weekly Circulation (1990) Average Daly Circulation (1990) 192,300 187,400 97 89,300 42,600 A-781 REPRESENTATIVE SAMPLING OF NEWS COVERAGE BY WENY-TV SCHUYLER COUNTY EXHIBIT E 9/6/93 WATKINS GLEN BOAT SAFETY 8/30/93 HOUSE FIRE- ODESSA - ELECTRICAL OUTLET CAUSE 8/30/93 2 PAINTED POST MEN KILLED 8/26/93 SHERIFF DEPARTMENT ASKED STATE TO INVESTIGATE POSSIBLE WRONG -DOING BY DEPUTY 8/19/93 SPECIAL MEMORIAL TRIBUTE TO 4 SCHUYLER COUNTY EMPLOYEES WHO WERE MURDERED 8/18/93 25 YR, OLD WATKINS GLEN MAN ARRESTED FOR SERIES OF BREAK-INS 8/24/93 WATKINS GLEN SCHOOL ELECTIONS- POSSIBLE ELIMINATION OF SOME SERVICES 8/24/93 SCHUYLER SHERIFF DEPUTY UNDER INVESTIGATION OF WRONG -DOING 8/13/93 WATKINS GLEN DIVERS & SEARCH TEAM LOOKING FOR DROWNED MAN IN LAKE 5/7/93 MONTOUR FALLS- TAX PAYERS ARE HURTING BECAUSE OF RECENT STATE CUTS IN THEIR BUDGET 5/7/93 SCHUYLER COUNTY TASK FORCE DETERMINE THE BENEFITS OF SALES TAX INCREASE 5/4/93 SCHUYLER COUNTY SPRING CLEAN-UP GEARING UP FOR TOURIST SEASON 5/1/93 SCHUYLER YOUTH CENTER- 2nd ANNUAL ANTI DRUG .AND ALCOHOL VIDEO CONTEST 4/8/93 MILLPORT GIRL HIT BY CAR (11 YEARS OLD) BURDETT FIREFIGHTERS GATHER TO HONOR ONE OF THEIR OWN REPRESENTATIVE SAMPLING OF NEWS COVERAGE BY WENY-TV TOMPKINS COUNTY t_\,H.b__ C 9/2/93 ITHACA FIRE OVER WEEKEND LEFT 5 DEAD 9/2/93 FOLLOW-UP TO FIRE- CHILDREN WHO MAY HAVE HAD ABNORMAL FASCINATION WITH FIRE 8/31/93 FIRE UPDATE- A CHILD PLAYING WITH MATCHES STARTED FIRE IN WHICH 5 DIED 8/30/93 FIRE TAKES 5 YOUNG LIVES- DEADLIEST FIRE IN TOMPKINS COUNTY HISTORY STRAND THEATRE 8/16/93 ITHACA HISTORICAL THEATER UNDER DEMOLITION 8/16/93 ITHACA COLLEGE- VIOLENT CRIME WITH OUR YOUTH IS SHOCKING 5/11/93. ITHACA- (2) CONVICTED MURDERERS COULD GO FREE SEQUESTED JURORS READ NEWSPAPER 5/11/93 ITHACA- AN APPARENT DRUG DEAL ENDS IN MURDER (DIED IN BEATING) 5/7/93 2 AREA MEN MAY BE RE -TRIED FOR MURDER 4/8/93 TOMPKINS COUNTY TRUST ANNOUNCES A STRONGER POSITION FOR THE 1st QUARTER 4/8/93 WOMEN MEETING TO DECIDE WHAT TO DO WITH THEIR CAREER YWCA 4/8/93 ITHACA SENTENCING DATE OF 2 ITHACA MEN CONVICTED OF MURDER NOT REACHED TUrrrins CUUNTY 3-10 CORNELL STUDENT BODY WAS FOUND IN CHIMNEY DEAD OF ASPHYXIATION 3-11 ITHACA- PROJECT HOMESTEAD IS SENDING SMALL APPLIANCES LIKE TOASTERS & MIXERS TO FAMILIES IN FLORIDA 3-11 ITHACA SNOW REMOVAL- INCREASE IN SNOW REMOVAL EQUIPMENT 3-27- BUDGET- HUMAN RIGHTS COMMISSION MAKING CUTS 4-1 CORNELL-ITHACA AWARDS- THREE STUDENTS AWARDED FOR THEIR VOLUNTEE WORK IN THE PUBLIC & PRIVATE SECTER 4-1 FIGHT HUNGER- "A DINNER FOR HUNGER", $50.00 A PLATE DINNER 4-1 ITHACA-CORNELL PROTEST- A PROTEST, G.M. USES ANIMALS FOR TESTING 4-2 ITHACA-CORNELL GAY BAN- MILITARY RECRUITERS HAVING PROBLEMS ON CAMPUS 4-3 BEAT -UP- TOMPKINS MAN BEAT UP A SERGEANT 4-5 BEAT -UP UPDATE- SERGEANT WILL BE OFF FOR TWO WEEKS 4-6 DRUG NEWS CONFERENCE- SHERIFFS DEPARTMENT CALL DEC. LIVE PHONER 4-6 THE WHOLE BUST- INVESTIGATIONS INTO A DRUG BUST 4-7 DRUG BUST- 400 POT PLANTS, $2,000,000 IN MARAJUANA 4-9 ITHACA CONGRESSMAN- MATT MCHUGH WILL RELEASE THE LAST OF BAD CHECK WRITERS 4-9 DRUG UP -DATE- FINDING MORE LEADS FOR OTHER OPERATIONS 4-10 ATTEMPTED ARMED ROBBERY- SHERRIFF'S DEPARTMENT LOOKING FOR TWO SUSPECTS 4-14 ITHACA RAPE- A CORNELL FISHERMAN HAS BEEN ARRESTED FOR RAPING A FEMALE STUDENT 4-15 MALE RAPE- MALE RAPE A CRIME NOT ALWAYS NOTICED 5-4 MATT MCHUGH- ITHACA CONGRESSMAN MATT MCHUGH IS STEPPING DOWN 5-4 ITHACA MURDER- TWENTY YEAR OLD MAN IS BEATEN TO DEATH IN ITHACA 5-5 MARTY LUSTER- STATE ASSEMBLYMAN FROM ITHACA SAID THAT PARENTS SHOULD LEAVE THEIR VANS AT HOME 5-5 ITHACA SPEAKER FROM CORNELL- WILL ANSWER QUESTIONS ABOUT THE FORMATION OF AN AGRICULTURAL DISTRICT IN CHEMUNG COUNTY 5-6 MURDER- $&-YEAR OLD MAN HAS BEEN ACCUSED OF KILLING HIS WIFE 5-12 ITHACA JUDGE RULES THAT THERE HAS BEEN POSSIBLE MISCONDUCT BY THE JURY 5-12 TODAY'S HEARINGWILL RESUME ON MAY 22ND 5-14 CORTLAND MAN HAS BEEN ARRESTED IN CONNECTION WITH A MURDER 5-15 CORTLAND MAN HAS BEEN CHARGED WITH SECOND DEGREE MURDER 5-28 ITHACA MAN CHARGED WITHTHE BEATING DEATH OF ANOTHER MAN AT A SHOPPING MALL PLEADED INNOCENT TODAY 6-1 LOST BOYS- 150 SEARCHED FOR TWO BOYS LOST WHILE CAMPING 6-4 NASA VAN- TOMPKINS COUNTY NASA VAN TO TOUR AREA EXHIBIT D REPRESENTATIVE SAMPLING OF NEWS COVERAGE BY WENY-TV 9/6/93 BRADFORD COUNTY PENNSYLVANIA BRADFORD COUNTY - PICK UP IN RIVER SAYRE- NEIGHBORHOOD PARKS BEING REPEATEDLY VANDALIZED ATHENS- SCHOOL TEACHERS WORKED ALL YEAR WITHOUT A CONTRACT SAYRE- LOTTERY 50 MILLION DOLLARS 8/25/93 NEW WAL-MART MAY BE ON THE WAY TO ATHENS 8/25/93 ATHENS SCHOOL BOARD CONTRACT TALKS MEETING BENTLEY CREEK 8/13 GALETON- 13 YEAR OLD BOY PULLS OUT A HAND GUN ON 4 OTHER KIDS 5/11/92 SAYRE, PA.- WATER AEROBICS- NEWEST TREND IN FITNESS- GUTHRIE FITNESS CENTER 5/11/92 SAYRE, PA- GUTHRIE CLINIC SPONSORED ANNUAL TEEN DAY TO TALK TO KIDS ABOUT SEX, DRUGS & AIDS 5/4/93 WELLSBORO MAN DIES WHEN GUN EXPLODED AT TRAP SHOOT 4/4/93 BRADFORD CO. - ACCIDENT LEAVES BRADFORD COUNTY MAN DEAD 4/30/93 SAYRE- GUTHRIE CLINIC IS TAKING STEPS TO HELP PEOPLE WITH MUSCULAR DYSTROPHY BRADFORD COUNTY 3-15-92 BARTON, PA. FAMILY HOMELESS AFTER FIRE BURNS THEIR HOUSE DOWN NO ONE AT HOME WHEN FIRE BEGAN 4-2 AIR AMBULANCE MERGE- AIR AMBULANCE RESCUE & GUTHRIE TALK TO MERGE 4-2 BOVINE- STATE OFFICIALS PLAY OFF THE WORRY 4-4 COLUMBIA CROSSWORDS- 79 YEAR OLD FARMER DEAD AFTER TRACTOR ACCIDENT 4-6 RABIES- WORD OUT TO AVOID WILD ANIMALS 4-7 PENNSYLVANIA ABORTION- PROTESTERS MARCH 4-7 HELICOPTER UP -DATE- TRY TO GET SERVICE BACK UP 4-13 SAYRE CAR ACCIDENT- 5 YEAR OLD BOY IN CRITICAL CONDITION IN ROBERT PACKER HOSPITAL 4-17 PORNO IN SAYRE- EIGHT CLERGYMEN COME FOREWARD AT ZONING HEARING 5-1-92 HARTMAN- ACCUSED STABER IN GILLET GOES TO COURT 5-4 BRADFORD COUNTY MAN IS DEAD FOLLOWING FARMING ACCIDENT IN SPRINGFIELD TOWNSHIP 5-4 BRADFORD COUNTY REP. JOSEPH MC DADE IS INDICTED 5-12 GILLETT, PA. MAN REMANINS IN CRITICAL CONDITION 5-12 ELMIRA POLICE ARE HOLDING TWO PEOPLE CHARGED WITH ARMED ROBERY 5-14 SAYRE RESIDENTS ARE SAYING NO PORNOGRAPHY IN OUR BUROUGH 5-14 'GILLETT, PA.- TWO PEOPLE ARE ACCUSED OF SHOOTING THE GIRL'S FATHER AS WELL AS ROBBING HIM 5-15 SAYRE RESIDENTS ARE TRYING TO KEEP THEIR STATE FREE OF PORNO. 5-29 ROSS PEROT M.O.S.- WE ASK 'WHY YOU SUPPORT ROSS PEROT?" 6-2 BENTLEY REWARD- RELATIVES & FRIENDS PUT UP REWARD 6-5 SINCE FAMILY HAS GONE PUBLIC WITH A REWARD, MANY HAVE BEEN CALL- ING WITH INFORMATION REGARDING THE DOUBLE MURDER pECLARNT10N OF EollAn, L. cser. EXHIBIT E quilliiii (toward L. Crean hereby declares as.fellows:. 1. J. am Executive Vick -President, Director. and 50 p^ «cnt shareholder of YENY, Ina.,'licenace of Television 2roadcact Ration WENY•'Tv, Elmira, New York. 2. The for -eyeing "Petition for Special Relief" was propared under my direction and has been review by me. 3. Thin °a to certify that ell facts and circumatanccs set: forth in said "Petition for special Relief" arc true: and correct to the bent Of my knowledge. 4. The matters ot*tt.ac3 in .this Declaration arc true and correct and are ;toted under penalty of perjury. Hower • L.. Green .. DAM_ __ CERTIFICATE OF SERVICE It is hereby certified that true copies of the foregoing "Petition for Special Relief" were served by class United States mail, postage prepaid, of October, 1993, upon the following: WETM-TV P. O. Box 1207 Elmira, NY 14902 City Clerk/Town Administrator City of Ithaca Ithaca, NY 14850 City Clerk/Town Administrator Dryden, NY 13053 City Clerk/Town Administrator Newfield, NY 14867 City Clerk/Town Administrator Trumansburg, NY 14886 City Clerk/Town Administrator Cayuga Heights, NY 14850 City Clerk/Town Administrator West Dryden, NY 13053 City Clerk/Town Administrator Newfield Station, NY 14867 City Clerk/Town Administrator Lansing, NY 14882 Cablevision Industries 3518 Sutton Road Geneva, NY 14456 Haefele TV, Inc. Box 312, Larue Road Spencer, NY 14883 American Community Cablevision 519 W. State Street Ithaca, NY 14850 City Clerk/Town Administrator City of Catharine Catharine, NY 14805_ first on this 5th day City Clerk/Town Administrator City of Towanda Towanda, Pl. 18848_ City Clerk/Town Administrator City of Ulster Ulster, PA 18850_ City Clerk/Town Administrator City of Warren Center Warren Center, PA 18851_ City Clerk/Town Admini6trator City of wyalusing Wyalusing, PA 18853_ City Clerk/Town Administrator City of Alpine Alpine, PA 14805_ City Clerk/Town Administrator City of Beaver Dams Beaver Dams, NY 14812_ City Clerk/Town Administrator City of Burdette Burdette, NY 14818_ City Clerk/Town Administrator City of Cayuta Carats, NY 14824_ City Clerk/Town Administrato City of Hector Hector, NY 14841_ City Clerk/Town Administrator City of Mecklenburg Mecklenburg, NY 14863_ City Clerk/Town Administrates City of Montour Falls Montour Falls, NY 14865_ City Clerk/Town Administrator City of Odossa Odessa, NY 14869 City Clerk/Town City of Reading Reeding Center, Administrator Center NY 14876 City Clerk/Town Administrator City of Tyrone Tyrone, NY 14887_ City Clerk/Town Administrator City of Valois Valois, NY 14888_ Mastervision Box 518 Tioga, PA 16946 Barrett's TV Cable System Box 197, RD 1 Troy, PA 16947 Retel. TV Cable Co. 62 Troy Street Troy, PA 17724 Blue Ridge Cable TV, Inc. 46 N. Academy Street Mansfield, PA 16933 Valley Cablevision - 142 W.. Lockhart Street Sayre, PA 1884.0 TCI of.Pennsylvania, Inc. Box 368 212 Main Street Towanda,,PA 18848 Community Cable, Corp. c/o North Penn Telephone RD 2 Mansfield, PA 16933_ Finger Lakes Cablevision 3518 Sutton Road Geneva, NY 14456_ Beaver Valley Cable, Inc. Box 60D, RD 2 Rome, PA 18837_ City Clerk/Town Administrator city of Canton Canton, PA 17724_ City Clerk/Town Administrator City of Columbia Cross Roads Columbia Cross Roads, PA 16914, City Clerk/Town Administrator City of East Canton East Canton, PA -17724_ City City East" City City East Clark/Town Administrator Of EaCt Smithfield Smithfield, PA 18817_ Clerk/Town Administrator of East Troy Troy, PA 16947_ City Clerk/Town Administrator City of Gillett Gillett, PA 16925_ City Clerk/Town Administrator City of Granville Summit Granville Summit, PA 16916_ City Clork/Town Administrator City of LeRoy LeRoy, PA 17743_ City Clerk/Town Administrator City of Monroetori laonroetor., PA 18832_ City Clerk/Town Adminidtrator City of New Albany CO. New Albany, PA 18833_ City Clerk/TownAdministrator City of Romp Rome, PA 18837_, City Clerk/Town Administrator City of Alba Alba, PA 16910_ City Clerk/;;own Administrator City of Athens Athens, PA 18810_ City Clerk/Town Administrator City of Burlington Burlington, PA 18814_ City Clerk/Town Administrator City of Camptown Camptown, P. 18815_ City Clerk/Town Administrator City Of Sayre Sayre, PA 18846_ City Clerk/Town Administrator City of Watkins Glen - Watkins Glen, NY 14891_ city Clerk/'Town Administrator City of Wayne Wayne, NY -'14893_ City Clerk/Town Administrator City of 6y]vania Sylvania, PA 16945_' City Clerk/Town Administrator City of StE:vensville Stevensville, PA 18845_ City Clerk/Town Administrator City of Sur Run sugar Run, PA -•18846_ City Clerk/Town Administrator City of Troy Trnv_ PA 1'R047 City Clerk/Town Administrator City of Wayne Wayne,'NY 14893_ City Clerk/Town Administrator CitY Of Nor1h.Towanda North Towanda, PA 18844_ City Clerk./Town Administrator City Of Powell Powell, PA 16947_ City Clerk/Town Administrator City of South'Waverly South Waverly, PA 18840_ Dr. Robert Walker Cornerstone Television, Inc. WYCD-TV 75 Harvard Road Watersliet, NY 12189_ H. Lewis Klein, President Gateway Communications, Inc. WBNG-TV Box 12 12 Gateway Plaza Columbia Drive Johnson City, NY Nora L. Guzewicz. President and General Manager Stainless Broadcasting Co. WICZ-TV Box 40 4600 Vestal Parkway E. Vestal, NY ,13850_ Philip Lombardo President Citadel Communications Co., Ltd. WMGC-TV Box 813 Ingraham Hill Road Binghamton, NY 13902_ Michael J. Ziegler President WSKG Public Telecommunications Council WSKG-TV Box 3000 Willow Point Broadcast Center Binghamton, NY 13902_ Richard W. Russell CEO and President Public Broadcasting Council of Central WCNY-TV .Box 2400 506 Old Liverpool Road Syracuse, NY 13220-2400_ 13970_ 3._ Barry 'Ackerley President WIXT WIXT Television,. Inc. Box 9` East Syracuse, NY 13057_ James Oyster, President WSNR-TV Salt of the Earth Broadcasting Ltd. Route 1, Box 203A Castleton, VA 22716_ Ronald W. Phillips President and General Manager WSTM-TV Federal .Broadcasting.Co. 1030 James Street Syracuse, NY 13203_ Charles A. :McFadden,. President WSYT Encore Communications Inc. of Syracuse 1000 James Street Syracuse, NY 13203 Edward Bradley General Manager WTVH Meredith Corp. Group 980. James Street Syracuse, NY 13203 Ithaca TV Associates WACA Box 1490 Syracuse, NY 13201_ NY Post -it "routing request pad 7664 ROUTING :IG; EQUEST OCT - 81993 AD ANDLE PROVE L and ❑ FORWARD ❑ RETURN ❑ KEEP OR DISCARD I)<I REVIEW WITH ME Date From :`?ECEfVEa OCT .071993 NEW YORK STATE COMMISSION ON CABLE TELEVISION Dear Mayor/Supervisor: October 1, 1993 We are enclosing two documents of importance to you in Tight of the recent changes in federal law concerning cable television regulation. First, you will find a Notice of Proposed Rulemaking in Docket No. 90448 which includes the proposed rules described generally in my letter of August 27 and attachments. These rules are designed to implement the federal cable rate regulations in New York State and to facilitate regulation of cable rates by municipalities and the Commission. The rules include the process whereby a municipality may elect to regulate rates under new federal rules or elect to have the Commission regulate rates under such rules, or elect not to have regulation at this time. Therules also contain procedures for making such elections and for regulating rates. Many sections of the rules include language from federal rules and are designed to fulfill federal requirements. We hope you are able to take the time to review the Notice and to share your -comments with us. You may wish to know the results of the notice of elections that have already been made by municipalities in the State of New York. As of September 29, the elections made are as follows: 1) number of municipalities choosing to regulate rates themselves: 4 2) number of municipalities requesting the Commission to regulate: 135 3) number of municipalities choosing no rate regulation at this time: 23 I should reiterate that the FCC rate rules are not yet effective for small cable systems with fewer than 1,000 subscribers. Among the notices we have received are some from municipalities served by such systems. We will be advising them separately that certification has been deferred at this time. - The second document enclosed is an Order Adopting Federal Customer Service Standards with Modification and Notice of Enforcement, Docket No. 90445, Order No. 93-182. Under the new federal law, the FCC was required to adopt minimum customer service standards applicable to cable systems throughout the nation. The matter of enforcement of the rules, however, was left to state and local franchising authorities. The purpose of the order and notice was to ensure that the federal customer service standards were enforceable throughout the state at an early date, and to relieve the necessity of special action by local governments to achieve essentially the same result. Our commission has also authorized a rulemaking for the inclusion of the new federal standards in state rules. That rulemaking will be released shortly. In the meantime, cable companies are required to comply with the federal standards as modified in the Order as well, of course, as existing state consumer rules not inconsistent with federal rules. Very truly yours, WILLIAM B. FINNERAN Chairman Tower Building • Empire State Plaza • Albany, NY 12223 Dear Mayor/Town Supervisor: For municipalities which have not yet made an election, attached is a Municipal Options "Short Form" 1-2-3 to conveniently convey to us your decision with regard to rate regulation. NYS COMMISSION ON CABLE TELEVISION Municipal Options r -q ❑ City The Town of ❑ Village in County is familiar with the requirements of the Cable Act of 1992 concerning cable television rates, and, on (date) resolved to undertake rate regulation itself in compliance with federal law as implemented by the Federal Communications Commission. (Date) Signed: City, Town, Village Clerk Forward to the NYS Commission on Cable Television, Empire State Plaza, Corning Tower, Albany, NY 12223 ❑ City ❑ Town of ❑ Village in County is familiar with the requirements of the Cable Act of 1992 concerning cable television rates, and, on (date), resolved to have the NY State Commission on Cable Television undertake rate regulation for said municipality in compliance with federal law as implemented by the Federal Communications Commission. Signed: (Date) City, Town, Village Clerk Forward to the NYS Commission on Cable Television, Empire State Plaza, Corning Tower, Albany, NY 12223 ❑ City ❑ Town of ❑ Village in County is familiar with the requirements of the Cable Act of 1992, concerning cable television rates, and, on (date), resolved not to regulate rates at this time for reasons set forth in the attached statement. Signed: (Date) City, Town, Village Clerk Forward to the NYS Commission on Cable Television, Empire State Plaza, Corning Tower, Albany, NY 12223 NEW YORK STATE COMMISSION ON CABLE TELEVISION In the Matter of 93-331 Amendment of the Commission's rules to add Subpart 592-3. relative to rate regulation pursuant to 47 C.F.R. §§ 76.900 et seq. DOCKET NO. 90448 NOTICE OF PROPOSED RULEMAKING (Adopted: August 11, 1993; Released: September 24, 1993) On April 1, 1993, the Federal Communications Commission ("FCC") adopted regulations implementing Section 543 of the Communications Act, as amended by the Cable Television Consumer Protection and Competition Act of 1992 ("Cable Act of 1992") (47 U.S.C. § 543). On May 3, 1993, the FCC released the regulations together with a Report and Order in Docket No. 92-266.1 The regulations, as originally adopted, were scheduled to become effective on June 21, 1993. The effective date was first extended until October 1, 1993 but subsequently accelerated to September 1, 1993. The regulations are now in effect. Key features of the FCC regulations may be summarized as follows: (1) The rates for basic cable service and associated equipment are subject to regulation by state and local franchising authorities that obtain certification from the FCC and adopt regulations that will ensure compliance with substantive FCC rate standards and provide the public with an opportunity to participate in ratemaking proceedings. (2) The rates charged by a cable television company for cable programming services, e.g., programming offered on tiers of service other than basic service are subject to regulation only by the FCC upon complaint. Programming offered on a pay -per -channel or pay -per -program basis is not subject to regulation. (3) The primary means for determining the reasonableness of rates for basic cable service (and cable programming services) is a benchmark/price cap method. The 1 Petitions for reconsideration of various aspects of the rules remain pending at the FCC. In addition, at least three rulemakings relative to important aspects of rate regulation have not been completed. (Notice of Proposed Rulemaking, MM Docket No. 93-215, FCC 93-353, released July 16, 1993 (Cost of service standards); Memorandum Opinion and Order and Further Notice of Proposed Rulemaking, MM docket No. 92-266, FCC 93-389, released August 10, 1993 (Small systems); and First Order on Reconsideration. Second Report and Order and Third Notice of Proposed Rulemaking, MM Docket No. 92-266, FCC 93-428, released August 27, 1993 (Benchmark adjustments and other matters)) 2 benchmark/price cap method is based on permitted per channel rates which apply uniformly to the basic cable service and cable programming services tiers. (4) An alternative means for justifying reasonable rates is a cost of service showing. A cable operator that does not adjust rates to benchmark levels must, if regulated, submit a cost of service showing. A franchising authority cannot elect cost of service regulation. (5) Rates for equipment and additional outlets must be unbundled from the monthly rate for programming and justified on the basis of actual costs plus a reasonable profit. (6) Franchising authorities may, but are not required to, seek certification and regulate rates for basic cable service. If they do certify and initiate regulation, all rate decisions made by them must be based on the FCC's substantive standards and are subject to appeal to the FCC by any participant in a ratemaking proceeding. The FCC may prescribe rates in the context of such an appeal. (7) Franchising authorities must act within specified periods of time from the .commencement of a ratemaking proceeding or else rates in effect, or rates proposed, may be deemed reasonable unless modified by the FCC upon appeal. (8) Whenever rates for basic cable service are found to exceed reasonable levels based on FCC standards, a franchising authority may order a "rollback" of rates to reasonable levels and require a refund of the excess, plus interest, for a period up to one year. The existence of federal regulations applicable to cable television rate regulation by state and local franchising authorities is not new.2 The current rules, however, are different from past rules in several important respects. First, they require franchising authorities to "qualify" to regulate rates. A franchising authority must certify to 2 FCC rules in effect in the 1970's required rate approval by franchising authorities and appropriate public proceedings prior to rate decisions. Rules enacted in 1985 after the Cable Communications Policy Act of 1984 ("Cable Act of 1984") did not require rate approval whenever a cable system was not subject to effective competition but continued to require appropriate public proceedings if a franchising authority could, and did, choose regulation. Also included was a new requirement for summary explanations of rate decisions. In 1991, the FCC added substantive standards to its rules for the first time but because most systems continued to be subject to effective competition, and free from rate regulation, and because the Cable Act of 1992 closely followed, there has not been significant experience with the administration of federal substantive standards applicable to rates. 3 the FCC that it will comply with substantive federal standards, that it will adopt procedural regulations, and that it has the "necessary personnel" to administer federal regulations. Second, all rate decisions made by state and local franchising authorities are subject to direct review and modification by the FCC. (In the past the FCC had declined to review such decisions in favor of judicial review.) Third, the FCC's substantive standards are exclusive. As noted, the FCC has approved two methods -- a benchmark/price cap method and a cost of service showing -- for determining reasonable rates. Fourth, ratemaking proceedings at the FCC for cable programming services will involve review of the same forms and information as basic service regulation by state and local franchising authorities. In light of the foregoing characteristics of the new rules, it may be fairly concluded that rate regulation is inherently more complex, potentially duplicative, and will require greater resources and involve longer proceedings than in the past. The initial phase of regulation will be particularly challenging. While the forms and procedures necessary to determine compliance with benchmark requirements are substantially in place at this time, important issues concerning cost of service showings and price cap adjustments remain pending. In this context, we propose rules that will provide reasonable alternatives for dealing with cable television rates in New York State. Our rules provide that basic rate regulation in accordance with FCC standards can be undertaken either at the municipal level or by the Commission at the election of the municipal government 3 They also will permit municipal governments to choose not to regulate. In the past, under Article 28, rate regulation was mandatory and rates generally required the approval of both the municipality and the Commission. While we might propose a similar approach at this time, we note that the new standards are complex, contain very exacting time frames for the review of rates 3 Some have inquired informally of Commission staff as to the legal authority to regulate rates in New York State under the FCC rules. The legal authority exists for regulation by a municipal government and the Commission. Both are franchising authorities under federal law. Section 602(9) of the Cable Act defines "franchising authority" to mean any governmental entity empowered by Federal, State or local law to grant a franchise." The legislative history of the Cable Act confirms that this Commission is a franchising authority. "In several states, such as New York, the franchising process includes approval of a franchise by a state agency as well as by a local government. The Committee intends that in such cases the term `franchising authority' shall include these state agencies, in addition to any government body with authority to grant a franchise. . . ." (House Committee on Energy and Commerce, H.R. Rep. No. 934, 98th Cong., 2nd Sess. (1984) at 45) The FCC has recognized that the Commission is a franchising authority consistent with the Cable Act. (Report and Order and Second Further Notice of Proposed Rulemaking in MM Docket No. 90-4, MM Docket No. 84-1296, released July 12, 1991 at paragraph 66) That this Commission also has authority to regulate rates under state law is evident from Article 28 of the Executive Law. (See, e.g., §§ 816, 822, 825) 4 and the implementation of proposed rate changes, and that all rate decisions may be appealed directly to the FCC. We believe the potential burdens on all parties, including the Commission, of requiring regulation, including bilevel action, in every case under the new FCC regulations outweighs other considerations. We wish to make clear, however, that we will require notice of all final rate decisions by local governments and that we reserve the right to participate in the appeal process at the FCC. For municipalities that elect to have the Commission regulate, the procedures ensure that the municipality will have full opportunity to submit its views. An additional purpose of the proposed rules is to provide uniform procedural regulations that, in our judgment, will satisfy federal statutory and regulatory requirements for ratemaking by municipalities and the Commission alike. Section 76.910 of the FCC rules provides at paragraph (b), as a condition of certification, that "(1) the franchising authority will adopt and administer regulations with respect to the rates for the basic service tier that are consistent . with the regulations prescribed by the. . .[FCC]. . .for regulation of the basic tier;.. . (3) procedural laws and regulations applicable to rate regulation proceedings by such authority provide for a reasonable opportunity for consideration of the views of interested parties;...." Section 76.910(e) provides, in part, that "...the franchising authority may not regulate the rates of a cable system unless it: (1) [a]dopts regulations: (i) [c]onsistent with the Commission's regulations governing the basic tier; and (ii) [p]roviding a reasonable opportunity for consideration of the views of interested parties, within 120 days of the effective date of certification; and (2) [n]otifies the cable operator that the authority has been certified and has adopted the regulations required by paragraph 9(e)(1) of this section." In addition to the foregoing, Section 76.935, entitled "Participation of interested parties," provides that "[i]n order to regulate basic tier rates or associated equipment costs, a franchising authority must have procedural laws or regulations applicable to rate regulation proceedings that provide a reasonable opportunity for consideration of the views of interested parties. Such rules must take into account the 30, 120, or 180 -day time periods that franchising authorities have to review rates under § 76.933." The rules proposed at Section 592-3.6 are specifically designed to comply with the foregoing federal standards and to apply uniformly to all ratemaking proceedings whether at the municipal or Commission level. Such minimally uniform rules are consistent with the Commission's statutory duty to prescribe minimum standards in a number of areas and should serve to alleviate the expense of independent action by municipal governments that choose to undertake federal regulation. 5 Some municipalities may have already sought certification and may wish to initiate regulation before these rules would ordinarily be final under the State Administrative Procedure Act ("SAPA"). Indeed, the Commission itself may be requested to seek certification and thereby be in a position to initiate regulation before such date. In light of these possibilities, we will consider whether it will be advisable to adopt the procedural requirements on an emergency basis. If we do not take emergency action under SAPA, and if municipalities become certified and wish to initiate regulation, they may simply resolve to adhere to the proposed rules until the rules have the force of law. This should fulfill the federal requirement that rules be in effect prior to the initiation of regulation. Likewise, the Commission will, at the very least, adhere to the procedural requirements pending final adoption. As a general matter, elections made by municipal governments between September 1 and the effective date of the rules will be considered complete if made in accordance with the rules. A brief section -by -section summary of the proposed rules follows. Section 592-3.1 states the purpose and intent of the rules. Section 592-3.2 contains definitions of important terms used in the rules or the FCC rules. The definitions of basic cable service and cable programming service are taken from the FCC rules. The definition of equipment or associated equipment tracks the language in Section 76.923(a) of the FCC rules. We also propose to define the important term "participant" which is used, but not defined, in FCC rules to describe one who may appeal a rate decision. Various provisions of the FCC rules employ the term "relevant franchising authority" without any specific definition of the term. We propose to clarify that for purposes of FCC rules, the term "relevant franchising authority" includes the municipal franchising authority and the Commission. Section 592-3.3 recites the requirement of federal statute and regulations that rate regulation may exist only where a cable system is not subject to effective competition. Additionally, it includes the language of Section 76.906 of FCC rules that creates a presumption in favor of the lack of effective competition. Section 592-3.4 creates the choices available to municipal governments in respect to regulation under the new FCC rules. The proposed rules would require that an initial election be made before December 31, 1993, that it be embodied in a resolution adopted by the local legislative body and that the Commission be given notice of the election. We are mindful that some municipalities may have already determined to regulate themselves and filed for certification. We do not intend to challenge the validity of such decisions but we will expect that, if such action was taken without legislative action, it will be ratified by the full local legislative body at a public meeting in the near future and notice of such ratification will be provided to the Commission. The proposed rules provide that an initial election not to regulate in accordance with FCC requirements be preceded by a public hearing. 6 Section . 592-3.5 expressly recognizes the opportunity of a municipality to modify an initial election. Thus, a municipality that chooses regulation initially, either by itself or the . Commission, can later change the forum for regulation. Of course, a municipality that chooses not to regulate initially may later choose to regulate itself or to have the Commission regulate. Section 592-3.6 contains the procedures designed to fulfill federal requirements for regulation. It provides for an opportunity for comment during the initial 30 days of every ratemaking proceeding and at least one additional opportunity if the proceeding is extended beyond thirty days as permitted by Section 76.933 of the FCC rules. The proposed rules would also require a public hearing at the municipal level prior to a rate determination -- a requirement that is consistent with state requirements for rate regulation by franchise amendment. Section 592-3.7 reiterates the requirement of Section 76.932 of the FCC rules that subscribers receive 30 -day notice of any rate increase. It also will require cable operators to give franchising authorities notice of a rate increase 15 days in advance of the notice to subscribers. Section 592-3.8 duplicates Section 76.931 of the FCC rules which requires cable companies to give notice of the availability of basic service. Section 592-3.9 sets forth certain provisions of federal rules pertaining to cable programming services including the process for complaining to the FCC about the rates for programming services. Section 592-3.9(c) provides that a municipality or the Commission, or both, may present views to the FCC on a complaint. The Commission invites comments from interested parties on the proposed rule. Comments in this proceeding should be submitted no later than November 15, 1993. All written comments should be submitted to William Huff, Administrative Officer, N.Y.S. Commission on Cable Television, Empire State Plaza, Corning Tower, 21st Floor, Albany, New York 12223. THE COMMISSION ORDERS: That the proposed rule, regulatory impact statement and regulatory flexibility analysis be submitted to the Secretary of State for publication and to other appropriate officials in accord with the State Administrative Procedure Act and the Executive Law. Commissioners Participating:. William B. Finneran, Chairman; Gerard D. DiMarco, John A. Passidomo, Barbara T. Rochman, David F. Wilber, III, Commissioners. TEXT OF PROPOSED RULE 592-3 Procedures applicable to rate regulation pursuant to 47 C.F.R. §§ 76.900 et seq. Section 592-3.1 (a) Intent and Purpose. Section 623 of the Cable Communications Policy Act of 1984, as amended by Section 3 of the Cable Television Consumer Protection and Competition Act of 1992, and codified in 47 U.S.C. § 543, provides for the regulation by state and local franchising authorities of the rates charged for basic cable service by cable television companies not subject to effective competition. Section 623 has been implemented by rules and regulations adopted by the federal communications commission and published at 47 C.F.R. §§ 76.900 et seq. The purpose and intent of this subpart is to provide rules applicable to the regulation of rates for basic cable service in the State of New York by municipalities and the commission consistent with the federal rules and regulations in 47 C.F.R. §§ 76.900 et seq. (b) This paragraph shall apply to all references to the Code of Federal Regulations ("C.F.R.") contained herein. The applicable provisions of the C.F.R. are available for public inspection and copying at the offices of the Conunission on Cable Television, Corning Tower Bldg., Empire State Plaza, Albany, New York 12223 and the New York State Department of State located at 41 State Street, Albany, New York 12207. 47 C.F.R. §§ 76.900 et seq. were published in the Federal Register, Volume 58, No. 97, May 21, 1993 at pp. 29753- 29768, published by the United State Government Printing Office, Superintendent of Documents, Washington, DC 20402. 592-3.2 Definitions. (a) "Basic cable service," or "basic service," or "basic service tier" shall mean the tier of cable service that shall include, as a minimum, all signals of domestic television broadcast stations provided to any subscriber (except a signal secondarily transmitted by satellite carrier beyond the local service area of such station, regardless of how such signal is ultimately received by the cable system), any public, educational and governmental channels required by the franchise or commission rules and may include any additional video programming signals as determined by a cable television company. (b) "Cable programming service" shall mean any video programming provided over a cable system, regardless of service tier, including installation or rental of equipment used for the receipt of such video programming, other than: (1) video programming carried on the basic service tier as defined in this section; (2) video programming offered on a pay -per -channel or pay -per -program basis; or (3) a combination of multiple channels of pay -per -channel or pay -per - program video programming offered on a multiplexed or time -shifted basis so long as the combined service: 2 (i) consists of commonly -identified video programming; and (ii) is not bundled with any regulated tier of service. (c) "Commission" shall mean the New York State Commission on Cable Television. (d) "Equipment" or "associated equipment" shall mean all equipment in a subscriber's home that is used to receive the basic service tier, regardless of whether such equipment is additionally used to receive other tiers of regulated programming service and/or unregulated service, including, but not limited to, converter boxes, remote control units, connections for additional television receivers and other cable home wiring, and the installation or rental thereof. (e) "F.C.C." shall mean the Federal Communications Commission. (f) "Participant" shall include any person who has submitted written comments or sworn testimony in a ratemaking proceeding. In addition, the commission shall be deemed a participant in any ratemaking proceeding conducted by a municipality and a municipality shall be deemed a participant in any ratemaking proceeding conducted by the commission concerning a cable television company franchised to provide cable service in such municipality. Pursuant to 47 C.F.R § 76.944(b) (see: section 593-3.1(b)) a participant may file an appeal of a decision of a municipality or the commission with the FCC within thirty days of release of the written decision described in § 592-3.6(0 and (g) of this subpart. (g) "Ratemaking proceeding" shall mean a proceeding for the review of rates for basic cable service and associated equipment conducted by the commission or a municipality after certification pursuant to 47 C.F.R. § 76.910 and after the written notice described in 47 C.F.R..§ 76.910(e)(2) has been served upon a cable television company. (h) "Relevant franchising authority" shall mean both the municipality in which the cable television company provides cable service and the commission. 592-3.3 Effective Competition. Only the rates for basic cable service of a cable television system that is not subject to effective competition as defined in 47 C.F.R. § 76.905 may be regulated by a municipality or the commission. In the absence of a demonstration to the contrary, cable systems are presumed not to be subject to effective competition. 592-3.4 Municipal election. (a) A municipality shall determine whether the rates charged for basic cable service and associated equipment by one or more cable television companies franchised to provide cable service therein will be regulated in accordance with the provisions of 47 C.F.R. §§ 76.900 et seq. Pursuant to this section, a municipality may (1) elect to undertake such rate regulation itself or (2) elect to have the commission undertake such rate regulation or (3) elect that no such regulation is warranted at the time the initial election is made. A municipality shall make an initial election pursuant to this section on 3 or before December 31, 1993, provided, however, that if no election is made by such date, the commission may undertake such rate regulation or other action as may be necessary consistent with the public interest. (b) A municipality may elect to undertake the regulation of rates for basic cable service and associated equipment charged by any cable television company franchised to provide cable service therein in accordance with 47 C.F.R. §§ 76.900 et seq. subject to conditions as follows: (1) the legislative body shall adopt a resolution at a regular or special meeting thereof which resolution shall include (i) the name of the cable television franchisee to be regulated and (ii) a statement that the municipality possesses the personnel and resources necessary to administer the regulations in 47 C.F.R., §§ 76.900 et seq.;. (2) the municipality shall serve a certified copy of said resolution on the commission within five days of the date of adoption; (3) the municipality shall also serve promptly upon the commission (i) a copy of its request for certification as filed with the F.C.C. and copies of oppositions, if any, to such request; (ii) notice that certification has been obtained or, alternatively, a copy of any response from the F.C.C. to the contrary; and (iii) a copy of the notice served upon the cable television franchisee initiating regulation as required by 47 C.F.R. § 76.910(e)(2). (c) A municipality may elect to have the commission undertake the regulation of rates for basic cable service and associated equipment charged by any cable television company franchised to provide cable service therein in accordance with 47 C.F.R. §§ 76.900 et seq. subject to conditions as follows: (1) the legislative body shall adopt a resolution at a regular or special meeting thereof which resolution shall include (i) the name of the cable television franchisee to be regulated and (ii) a statement that the municipality chooses to have the commission undertake such regulation; (2) such election shall be effective on the date that the certified copy of said resolution is received by the commission. (d) A municipality may elect not to undertake regulation in accordance with 47 C.F.R. §§ 76.900 et seq. subject to conditions as follows: (1) the legislative body shall adopt a resolution at a regular or special meeting thereof which resolution shall include (i) the name of the cable television franchisee and (ii) a statement that the municipality has reviewed 4 the rates in effect in such municipality with reference to standards for determining permitted per -channel charges and equipment charges contained in 47 C.F.R. §§ 76.922 and 76.923 and has determined that said rates are in substantial compliance with such standards or, alternatively, a statement indicating other relevant factors considered by the legislative body in its determination not to regulate; (2) an election not to regulate rates shall be preceded by a public hearing; (3) an election not to regulate rates may be changed at any time; (4) a municipal determination that rates shall not be subject to regulation in accordance with 47 C.F.R. §§ 76.900 et seq. shall be subject to review by the commission pursuant to the standards set forth . in section eight hundred twenty-two of the executive law. Section 592-3.5 Reversal of Election. A municipality may, at any time, alter an initial election in the same manner required for such initial election, provided, that it shall provide prompt notice thereof to the commission and to any cable television company affected thereby and further provided that in any case where the commission regulates rates, any such change shall not take effect during the pendency of a ratemaking proceeding. 592-3.6 Procedures. (a) Every ratemaking proceeding shall be conducted and decided in accordance with the regulations of the F.C.C. and the provisions of this section not inconsistent therewith. (b) A ratemaking proceeding shall be deemed commenced (1) when . a cable television company is served by a municipality or the commission with the written notice described in 47 C.F.R. § 76.910(e)(2); or (2) after such written notice has been served on a cable television company, and provided that certification remains in effect, upon receipt by a municipality or the commission of a notice of any proposed increase in the rates for basic cable service. (c) In accordance with 47 C.F.R. § 76.930, a cable television company shall file its schedule of rates for basic cable service and associated equipment with the municipality and the commission (1) within thirty days of receiving such written notice or by November 15, 1993, whichever is later, or (2) at least thirty days prior to the effective date of any proposed increase. Such rates shall be filed on forms, or in the manner, as may be prescribed by the F.C.C. In either case, the cable television company shall cause to be published in a newspaper of general circulation in the municipality, a notice that said ratemaking proceeding has been commenced; that a copy of the schedule of rates will be available for public inspection during normal business hours at the office of the clerk of the municipality and at the commission; and that interested parties may submit written comments to the municipality or the commission, as the case may be, on or before a specified date which 5 shall not be later than the twentieth day after said schedule of rates is filed by the cable television company. Such notice shall be published at least fifteen days before the due date for comments. (d) Promptly upon receipt of said schedule of rates, a municipality that has chosen to undertake rate regulation in accordance with 47 C.F.R. §§ 76.900 et seq. shall schedule a public hearing thereon which hearing shall be held on or before the thirtieth day following the commencement of the ratemaking proceeding. The authority to schedule said hearing may be delegated to the clerk or other municipal official by the municipal legislative body. Notice of such hearing shall be published at least five days before the date of said hearing. In the event that the municipality determines pursuant to 47 C.F.R. § 76.933 to extend the time for review of rates beyond thirty days, it shall provide at least one additional opportunity for the submission of written comments and schedule an additional public hearing. The costs of publication of all notices shall be borne by the cable television company. (e) When filing or submitting financial information, a cable television company shall certify the accuracy of such information. A cable television company may be required to produce proprietary information provided, however, that procedures analogous to those set forth in 47 C.F.R. § 0.459 regarding requests for confidentiality shall be applied by the municipality or the commission. (f) A determination of rates shall be made at a public meeting and shall be embodied in a written decision whenever such determination (1) disapproves an initial rate; (2) disapproves a request for a rate increase in whole or in part; or (3) approves a request for an increase in whole or in part over the objection of a participant. (g) Every written decision must include at a minimum (1) the date the ratemaking proceeding was commenced; (2) a copy of each public notice described in this section; (iii) a list of the participants in the ratemaking proceeding; (iv) a complete description of each rate approved or disapproved and the effective date thereof; (v) whether a rate reduction or rate refund is being ordered and, if so, the amount of the reduction or refund; (vi) the effective date of the rates approved and the amount of reductions or refunds, if any; and (vii) a statement that the decision was made in accordance with applicable federal standards and the regulations contained in this subpart. (h) Whenever a written decision is issued, copies of the text shall be provided to all participants in the proceeding and shall be made available to the public. Notice of the issuance of a written decision and the availability thereof shall be published in a newspaper of general circulation in the affected municipality. The cable television company shall bear the costs of such notice. (i) In addition to the foregoing, the commission shall not enter an order prescribing any rate unless: 6 (1) it shall have caused a notice of the rates proposed by a cable television company to be served at the commencement of the rate proceeding on each municipality wherein said company provides service and shall have provided each municipality with a reasonable period of time consistent with the applicable federal procedure to filecomments on the proposed rates; and (2) in the event it determines pursuant to 47 C.F.R. § 76.933 to extend the time for review of rates beyond thirty days, it shall provide at least one additional opportunity for the submission of written comments by interested parties and may conduct a public hearing; (3) in respect to so much of any rate or charge as shall be based upon franchise fees payable to a municipality or the cost of compliance with public, educational or governmental access requirements or any other requirements set forth in the municipal franchise agreement, it shall have provided the municipality with a reasonable opportunity consistent with time periods applicable to review and comment upon the amount of such fees and costs. Section 592-3.7 Notice of rate increases. A cable television company shall provide written notice to subscribers of any increase in the rates for cable services at least thirty days before any proposed increase is effective. The notice to subscribers should include the name and address of the commission and the municipality. A cable television company shall provide written notice to the commission and the municipality at least fifteen days before it provides such notice to subscribers. Section 592-3.8 Notification of basic service tier availability. A cable television company shall provide written notification to subscribers of the availability of basic cable service by November 30, 1993, or three billing cycles from September 1, 1993, and to new subscribers at the time of installation. This notification shall include the following information: (a) that a basic service tier is available; (b) the cost per month for the basic service tier; and (c) a list of all services included in the basic service tier. Section 592-3.9 Cable Programming Services. (a) A municipality, the commission, any subscriber or other relevant governmental entity may file with the F.C.C. a complaint challenging the reasonableness of the rates charged by a cable television company for cable programming services or the reasonableness of a charge for installation or rental of equipment used for the receipt of cable programming services. (b) Pursuant to 47 U.S.C. § 76.951(a), any complaint regarding a cable operator's rates for cable programming service or associated equipment must be filed using standard 7 complaint form, FCC 329. The cable television company must provide a copy of the standard complaint from to any subscriber upon request. (c) A copy of any complaint filed by a municipality shall be served upon the cable television company and the commission. A copy of any complaint filed by the commission shall be served upon the cable television company and the municipality in the same system wherein said company is franchised. A copy of any complaint filed by a subscriber or other relevant governmental entity shall be served promptly upon the commission and the municipality wherein the subscriber or entity resides. A municipality or the commission, or both of them may present their views to the F.C.C. on a complaint filed by a subscriber or. other relevant state or local governmental entity. NEW YORK STATE COMMISSION ON CABLE TELEVISION In the Matter of 93-182-A Minimum Federal Customer Service Standards in 47 CFR, Section 76.309 ERRATUM NOTICE DOCKET NO. 90445 (Released: August 10, 1993) On May 27, 1993, the Commission issued an Order Adopting Federal Customer Service Standards with Modification and Notice of Enforcement, Docket No. 90445, Order No. 93-182, to be effective September 1, 1993. The effective date remains unchanged. Clause (iv) of subparagraph (2) of paragraph (c) in Appendix A contains an error. Said clause reads as follows: (iv) If for any reason, the service call is not started within the scheduled "appointment window", the subscriber shall not be charged for such service call, including installation or reconnection thereof, unless the service call was rescheduled with the subscriber's consent after the close of business on the business day prior to the initial scheduled "appointment window". (Modified to conform with 9 NYCRR § 596.8(c)) Said clause should read as follows: (iv) If for any reason, the service call is not started within the scheduled "appointment window", the subscriber shall not be charged for such service call, including installation or reconnection thereof, unless the service call was rescheduled with the subscriber's consent before the close of business on the business day prior to the initial scheduled "appointment window". (Modified to conform with 9 NYCRR § 596.8(c)) NEW YORK STATE COMMISSION ON CABLE TELEVISION In the Matter of 93-182 Minimum Federal Customer Service Standards ) DOCKET NO. 90445 in 47 CFR, Section 76.309 ) ORDER ADOPTING FEDERAL CUSTOMER SERVICE STANDARDS WITH MODIFICATION AND NOTICE OF ENFORCEMENT (Adopted: May 5, 1993; Released: May 27, 1993) Section 632 of the Cable Communications Policy Act of 1984 ("1984 Cable Act") (47 USC § 552) entitled "Consumer Protection" confirmed the authority of franchising authorities to impose and enforce customer service requirements in cable television franchises and the authority of states or franchising authorities to enact or enforce consumer protection laws. Section 8 of the Cable Television Consumer Protection and Competition Act of 1992 ("1992 Cable Act") amended § 632 to provide, among other things, that the Federal Communications Commission ("FCC') establish minimum customer service requirements. Specifically, § 632(b) required the FCC, within 180 days, to establish standards to include, at a minimum, requirements governing -- (1) cable system office hours and telephone availability; (2) installations, outages, and service calls; and (3) communications between the cable operator and the subscriber (including standards governing bills and refunds). On April 7, 1993, the FCC released a Report & Order in MM Docket 92-263 in which it promulgated regulations in fulfillment of § 632(b). The rules are contained in § 76.309(47 CFR Part 76). The new standards are self-executing and will apply to all cable operators throughout the country as of July 1, 1993. The matter of enforcement, however, is reserved for state and local franchising authorities. Specifically, § 76.309(a) provides that: "a cable franchise authority may enforce the customer service standards set forth in Section (c) of this rule against cable operators. The franchise authority must provide affected cable operators ninety (90) days written notice of its intent to enforce the standards:' 2 In its Report & Order, the FCC further indicated that the notice must include a description of the franchising authority's "enforcement plans" and must be "accomplished by certified mail,...." (Report & Order, para. 26) By this order, we are providing notice to cable operators of the FCC standards that this Commission will enforce commencing ninety (90) days from the release date hereof. The specific standards are attached hereto. Since some of the FCC standards overlap, or vary from, New York State statutory requirements or other Commission rules relative to the same subject areas, the new standards are not identical to the standards as contained in §76.309 of the FCC rules. Where a new standard varies from the minimum FCC standard, the variance is noted.' This order will also serve as notice that the Commission will enforce the new standards in accordance with §§ 824, 827 and 827-a of the Executive Law and § 590.5 of the Commission's rules -- the same mechanism for enforcing existing consumer protection standards and other requirements imposed by Article 28 of the Executive Law and the Commission's regulations. We are taking this action at this time in order to identify those FCC minimum standards which are new to New York State as well as those which may reasonably be reconciled with existing standards and to assure that such new standards are applicable and enforceable on a uniform basis at the earliest possible date. Such action is consistent with the established regulatory scheme in New York for the imposition and enforcement of customer service requirements. Since 1979, the Commission has had customer service requirements applicable to cable operators statewide subject to enforcement by the Commission in accordance with Article 28 of the Executive Law. Since 1990, New York State statute has imposed specific customer service requirements on cable companies also 1 The FCC customer service standards which would be enforced by the Commission contained an Appendix A attached hereto. We have duplicated the FCC customer service obligations set forth in § 76.309(c) et seq. and show deletions or additions as necessary to conform the FCC standards to existing New York State statutory and regulatory standards. Provisions of the FCC rules that will not be enforced are enclosed within brackets []. Provisions of FCC rules which have been modified to conform with state requirements that address similar subject matters are shown in bold type and are followed by a reference to the state statutory provision or rule. In respect to those provisions of the FCC rules which pertain to subscriber notifications, we have attempted to reconcile federal requirements with the requirements set forth in the state statute and Commission rules by indicating in each case whether the frequency of notice must be annual or semi-annual. With the exception of the notice for billing practices, where we have indicated a requirement for semi-annual notice, we have determined that the scope and content of the information required in the federal rules are encompassed within the scope and content of the notices, required by § 824-a(4)(a) of the Executive Law and 9 NYCRR 590.74(e)(2). 3 subject to enforcement by this Commission pursuant to Article 28 of the Executive Law. To the extent that the new FCC standards will enhance consumer protection for New York's cable subscribers, they should also apply on a uniform basis subject to uniform enforcement procedures. Specifically, the new non -conflicting FCC standards will have the same status as existing state standards, a result which we believe will serve the interests of cable subscribers, municipalities and cable operators alike. We note here that from time to time individual franchise agreements negotiated by municipalities and cable operators contain customer service standards in addition to the minimum state standards. Such agreements also may contain specific remedies for violation of such standards. The Commission has generally approved these franchise provisions to the extent that they did not lessen any explicit standard of the Commission. We expect .that this policy will continue to. apply to our review of franchises, franchise renewals and franchise amendments. Indeed, we believe at this time that the franchise agreement should continue to be the preferred vehicle for the imposition by municipalities of additional obligations, including customer service requirements, on franchised cable operators. Finally, we are mindful that the FCC did not automatically exempt small cable systems, i.e. those with fewer than 1,000 subscribers, from any of the customer service obligations. As a general rule, under New York law, small cable companies, Le. those with more than 50 and fewer than 1,000 subscribers are not exempt from "the requirements imposed by the Commission concerning...billing practices and consumer complaints." The FCC regulations do contain standards concerning telephone availability which may impose obligations that would be difficult for small systems to comply with. Accordingly, we intend to defer enforcement of the provisions of subsections (c)(1)(i)(A), (B)(ii)-(iv) until we have had the opportunity to solicit the comments of small cable systems on the impact of such requirements. THE COMMISSION ORDERS: 1. That the customer service standards, as set forth in Appendix A as attached to this Order, shall be enforced against every cable television company in the State of New York in accordance with the terms thereof and applicable rules and regulations of the Federal Communications Commission. 2. That the Commission's Administrative Officer shall cause a copy this Order and Appendix . A to be served by certified mail, return receipt requested, upon every cable television company operating in the State of New York. Commissioners Participating: William B. Finneran, Chairman; Gerard D. DiMarco, Barbara T. Rochman, David F. Wilber, III, Commissioners Appendix A FCC Based Customer Service Standards (c) Effective September 1, 1993 a cable operator shall be subject to the following customer service standards: (1) Cable system office hours and telephone availability - (i) The cable operator will maintain a local, toll-free or collect call telephone access line which will be available to its subscribers 24 hours a day, seven days a week. (A) Trained company representatives will be available to respond to customer telephone inquiries during normal business. hours. (B) After normal business hours, the access line may be answered by a service or an automated response system, including an answering machine. Inquiries received after normal business hours must be responded to by a trained company representative on the next business day. (ii) Under normal operating conditions, telephone answer time by a customer representative, including wait time, shall not exceed thirty (30) seconds when the connection is made. If the call needs to be transferred, transfer time shall not exceed thirty (30) seconds. These standards shall be met no less than ninety (90) percent of the time under normal operating conditions, measured on a quarterly basis. (iii) The operator will not be required to acquire equipment or perform surveys to measure compliance with the telephone answering standards above unless an historical record of complaints indicates a clear failure to comply. (iv) Under normal operating conditions, the customer will receive a busy signal less than three (3) percent of the time. (v) Customer service center and bill payment locations will be open at least during normal business hours. [and will be conveniently located.] (2) Installations, outages and service calls- Under normal operating conditions, each of the following four standards will be met no less than ninety five (95) percent of the time measured on a quarterly basis: (i) Standard installations will be performed within seven (7) business days after an order has been placed. "Standard" installations are those that are located up to [125] 150 feetr from the existing distribution system. (ltd1f ed to onfcrm with (ii) Excluding conditions beyond the control of the 1 operator, the cable operatdr wi11..begin.Ladrking on "service interruptions" promptly and in no:everit later than 24 hours after the interruption becomes known. The cable operator must begin actions to correct other service problems the next business day after notification of the service <•`f•::+: +'Cv{'f.::iti •y e$ii•YM1;C•�S}}:!;fir`+.+• ')}.. ;TiTT:•:•i:S;:•.i: i:: rn iT:.T�$^•,.'}.:i j^r::;:::;af}\ti, i{:•n raN M1r r�$i;� it+. .ii�p}.�.:;i.W... :a..:a i;�a:��`�:.•s°-ti;+:•'�: ?,�a:7+..ti�{stk 4iLi+�i:....au•:4i+u:`k'�"':i�+:7+{4 •.�r.�tih kh 4:4:'�i::fa i:�:i:+':!s rtit4f:: [(iii) The "appointment window" alternatives for installations, service calls, and other installation activities will be either a specific time or, at maximum, a four-hour time block during normal business hours. (The operator may schedule service calls and other installation activities outside of normal business hours for the express convenience of the customer.)] (iii) The "appointment window" alternatives for installations, service calls, and other installation activities will be either for the morning or afternoon hours, or evenings or Saturdays during normal business hours in accordance with the }`r ::k . 1Ny 1 ber s request. ��>�N€:fs'��r�ctV�:<�. �.;,..:,....,:...:.. subscra. ��.:..:._.r::;::::>.�:::::.,.::...:::.h [(iv) An operator may not cancel an appointment with a customer after the close of business on the business day prior to the scheduled appointment.] (iv) If for any reason, the service call is not started within the scheduled "appointment window", the subscriber shall not be charged for such service call, including installation or reconnection thereof, unless the service call was rescheduled with the subscribers consent after the close of business on the business dayprior.,:to the `initial scheduled iappointment window". iv�2��� (v) If a cable operator representative is running late for an appointment with a customer and will not be able to keep the appointment as scheduled, the customer will be contacted. The appointment will be rescheduled, as necessary, at a time which is convenient for the customer[.] and the customer shall not be charged for such rescheduled appointment including installation eof. ._ or reconnection they {,;•,.:::: ::................ ::.......... ... (3) Communicdtions between cable operators and cable subscribers. (i) Notifications to subscribers - (A) The cable operator shall provide written information on each of the following areas at the time of installation of service, at least annually or semi-annually as indicated to all subscribers and at any time upon request: (1) Products and services offered (semi-annually); (2) Prices and options for programming services and conditions of subscription to programming and other services (semi-annually); 2 (3) Installation and service maintenance policies (annually); (4) Instructions on how to use the cable service (annually); (5) Channel positions of programming carried on the system (semi-annually); and, (6) Billing practices (semi-annually) and complaint procedures (annually), including the address and telephone number of the State Commission and the in-WATS toll-free subscriber assistance number. [local franchise authority's cable office.] (B) Customers will be notified of any changes in rates, or programming services [or channel positions] as soon as possible through announcements on the cable system and in writing. Notice must be given to subscribers a minimum of thirty (30) days in advance of such changes if the change is within the control of the cable operator. In addition, the cable operator shall notify subscribers thirty (30) days in advance of any significant changes in the other information required by the preceding paragraph. (ii) Billing - (A) Bills will be clear, concise and understandable. Bills must be fully itemized, with itemizations including, but not limited to, basic and premium service charges and equipment charges. Bills will also clearly delineate all activity during the billing period, including optional charges, rebates, [and] credits[.], past due balance, if any, the billing period, amount of current billing, and the State Commission's in-WATS toll free subscriber assistance number. (B) In case of a billing dispute, the cable operator must respond to a written complaint from a subscriber within [thirty (iii) Refunds- Refund checks will be issued promptly, but no later than either - (A) The customer's next billing cycle following resolution of the request or thirty (30) days, whichever is earlier, or (B) The return of the equipment supplied by the cable operator if service is terminated. (iv) Credits- Credits for service will be issued not later than the customer's next billing cycle following the determination that a credit is warranted. 3 (4) Definitions; - (i) Normal Business Hours- The term "normal business hours" means those hours during which most similar businesses in the community are open to serve customers. In all cases, "normal business hours" must include some evening hours at least one night per week and/or some weekend hours. (ii) Normal Operating Conditions- The term "normal operating conditions" means those service conditions which are within the control of the cable operator. Those conditions which are not within the control of the cable operator include, but are not limited, to, natural disasters, civil disturbances, power outages, telephone network outages, and severe or unusual weather conditions. Those conditions which are ordinarily within the control of the cable operator include, but are not limited to, special promotions, pay -pre -view events, rate increases, regular peak or seasonal demand periods, and maintenance or upgrade of the cable system. (iii) Service Interruption- The term "service interruption" means the loss of picture or sound on one or more cable channels. 4 3ie 2/- ', 2 LP C November 20, 1991 Barbara Lukens, General Manager American Community Cablevision 519 W. State St. Ithaca, NY 14850 Dear Barbara, At the request of the Cable Commission, I am writing to review the particulars of the agreement we sketched out at our November 10th meeting in your office. We would also like to include in the agreement some general guidelines about capital spending that will make this document applicable to future situations. This is how we understand the agreement that we reached on 11/10: The allocation of money already spent for the establishment of channels 53 and 54 will be as follows: ACC will pay for modulators and demodulators out of non -access money, while VTRs will be paid for out of 2% access capital funds. The following is a more general formulation of a spending policywhich is consistent with the above. We would like to see this language included as part of the agreement. A. Equipment the function of which is to route or transmit cable programming will be purchased out of non -access funds. This includes modulators, demodulators, routing switchers, tone decoders, etc. B. Equipment the function of which is to produce or playback access programming will be paid for out of 2% access capital funds. This includes production and playback VTRs, production switching equipment, cameras, TBCs, etc. C. Costs of auxiliary items such as racks and monitors will be allocated depending on whether they serve primarily to support production/playback equipment or transmission/routing equipment. I hope you and your management will find this formulation acceptable. Members of the Cable Commission have reviewed it and have expressed agreement in principle, but want the benefit of input from the Cable Access Advisory Board before endorsing it. I plan to present these guidelines to the CAAB at our meeting on December 2nd, and when I do I will express my belief that they offer a good and reasonable resolution to our current impasse. Sincerely, Peter Rule Making Activities NYS Register/January 12, 1994 (a) General requirements. Any mortgage broker seeking to effectuate a change to an inactive status shall file a letter application with the su- perintendent requesting the change in status and explaining the reason for such request. The application shall be accompanied by the existing valid registration certificate, which will be returned stamped inactive, and an undertaking to the superintendent containing the following pro- visions: (1) that the annual fee is to be paid each year as provided in section 594-a.2 of the New York Banking Law; (2) that at the superintendent's discretion the inactive broker contin- ues to be subject to an examination of its books and records, the cost of which will be born by the mortgage broker; (3) that an annual volume of operations report will be filed even though there is no activity for the year; (4) that a written notification of intent to resume business will be filed with the superintendent at least 30 days prior to the resumption of business along with the registration certificate stamped inactive; (5) that the superintendent will be immediately notified of any change in the official address of record of the mortgage broker; (6) that the superintendent will be immediately notified of any change in the telephone number of record of the mortgage broker; and (7) that an annual certification of inactive status shall be filed with the superintendent on a form provided by the Mortgage Banking Divi- sion. (b) Publications. The superintendent shall publish receipt of the ap- plication in the Banking Department's weekly bulletin. Section 105.5 Resumption of active status. Within 30 days of receiving written notification of intent to resume business and the registration certificate stamped inactive, the superin- tendent shall issue a new registration certificate authorizing the resump- tion of the mortgage brokerage business, which action shall be published in the Banking Department's weekly bulletin. Text of proposed rule or revised proposed rule, the regulatory impact statement, if any, and the regulatory flexibility analysis, if any, may be obtained from: Darrie T. Williams, Banking Department, Two Rector St., New York, NY 10006, (212) 618-6595 Data, views or arguments may be submitted to: Barbara Kent, Banking Department, Two Rector St., New York, NY 10006, (212) 618-6591 Public comment will be received until: 45 days after publication of this notice. Regulatory Impact Statement 1. STATUTORY AUTHORITY: Article 12-D of the Banking Law authorizes the Superintendent to register and regulate mortgage brokers. 2. LEGISLATIVE INTENT: The legislative intent is to protect the public from unscrupulous entities by requiring registration and regulation of all mortgage brokers. 3. NEEDS AND BENEFITS: Many mortgage brokers request inactive status as a means of main- taining their registration while working for someone else in the industry or leaving the industry altogether. The proposed supervisory procedure MB 105 sets forth the information which would be required by the su- perintendent in order to review and grant such requests without relin- quishing Banking Department authority to regulate such entities. 4. COSTS: (a) No costs to State government. (b) No costs to local governments. (c) No additional costs. (d) Modest additional costs for application forms and affidavits and additional staff hours to process applications for inactive status. 5. LOCAL GOVERNMENT MANDATE: None. 6. PAPERWORK: New application forms and affidavits will be required. 7. DUPLICATION: No other State or Federal agencies register or regulate mortgage bro- kers. 8. ALTERNATIVES: No other alternatives were considered. 9. FEDERAL STANDARDS: No comparable federal regulation exists. 10. COMPLIANCE SCHEDULE: Immediate. 14 Regulatory Flexibility Analysis 1. EFFECT ON SMALL BUSINESSES: The proposed supervisory procedure MB 105 would affect mortgage brokers which request inactive status. Most of the applicants would be considered in the small business category. 2. COMPLIANCE REQUIREMENTS: The supervisory procedure describes in detail the information required in the application process. 3. PROFESSIONAL SERVICES: No professional services are required. 4. COMPLIANCE COSTS: There is no compliance cost other than submitting an application and an affidavit. 5. MINIMIZING ADVERSE IMPACT: Preliminary drafts of the proposed supervisory procedure will be dis- tributed to all industry members and interested parties for public com- ment before final adoption. 6. SMALL BUSINESS PARTICIPATION: Most mortgage brokers are small businesses. For this reason drafts of the proposal will be distributed to all interested parties and their asso- ciations including but not limited to the New York State Association of Mortgage Brokers. Commission on Cable Television NOTICE OF EMERGENCY ADOPTION AND REVISED RULE MAKING NO HEARING(S) SCHEDULED Procedures to be Used by Municipalities to Regulate Rates for Cable Service I.D. No. CTV-39-93-00005-ERP Filing No. 2440 Filing date: Dec. 28, 1993 Effective date: Dec. 28, 1993 PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action: Emergency action taken: Addition of Subpart 592-3 to Title 9 NYCRR. Statutory authority: Executive Law, art. 28, sections 815, 816, 821, 822 and 825 Finding of necessity for emergency rule: Preservation of general welfare. Specific reasons underlying the finding of necessity: The FCC has adopted Federal standards applicable to the regulation of rates for basic service and associated equipment. FCC rules became effective Sept. I, 1993. A franchising authority that chooses to regulate rates must obtain certification from the FCC and adopt regulations to assure compliance with Federal standards including public participation in ratemaking pro- ceedings. FCC rules provide that decisions on rates may have retroactive effect for 12 months or to Sept. 1, 1993. The proposed rules clarify the authority to regulate rates in New York and include procedures necessary to initiate regulation. FCC rules anticipate that ratemaking proceedings may extend 120 or 180 days or even longer. It is necessary to adopt the proposed rules on an emergency basis so that rate regulation may begin and proceedings concluded in order that subscribers realize the full ret- roactive benefits of rate determinations. Subject: Procedures to be used by municipalities and the Commission on Cable Television in electing to regulate rates for cable service and in conducting any proceedings in respect to regulated rates. • Purpose: To establish procedures for rate regulation in New York State consistent with new Federal regulation. Text of emergency/revised rule: 592-3 Procedures applicable to rate reg- ulation pursuant to 47 C.F.R. Sections 76.900 et seq. Section 592-3.1 (a) Intent and Purpose. Section 623 of the Cable Com- munications Policy Act of 1984, as amended by Section 3 of the Cable Television Consumer Protection and Competition Act of 1992, and cod- ified , in 47 U.S.C. Section 543, provides for the regulation by state and local franchising authorities of the rates charged for basic cable service 1 NYS Register/January 12, 1994 Rule Making Activities by cable television companies not subject to effective competition. Sec- tion 623 has been implemented by rules and regulations adopted by the Federal Communications Commission and published at 47 C.F.R. Sec- tions 76.900 et seq. The purpose and intent of this Subpart is to provide rules applicable to the regulation of rates for basic cable service in the State of New York by municipalities and the commission consistent with the federal rules and regulations in 47 C.F.R. Sections 76.900 et seq. (b) This paragraph shall apply to all references to the Code of Federal Regulations ("C.F.R.") contained herein. The applicable provisions of the C.F.R. are available for public inspection and copying at the offices of the Commission on Cable Television, Corning Tower Bldg., Empire State Plaza, Albany, New York 12223 and the New York State Depart- ment of State located at 41 State Street, Albany, New York 12207. 47 C.F.R. Sections 76.900 et seq. were published in the Federal Register, Volume 58, No. 97, May 21, 1993 at pp. 29753-29768; together with 47 C.F.R. Section 0.459 were published by the United States Government Printing Office, Superintendent of Documents, Washington, D.C. 20402. 592-3.2 Definitions. (a) "Basic cable service," or "basic service," or "basic service tier" shall mean the tier of cable service that shall include, as a minimum, all signals of domestic television broadcast stations pro- vided to any subscriber (except a signal secondarily transmitted by sat- ellite carrier beyond the local service area of such station, regardless of how such signal is ultimately received by the cable system), any public, educational and governmental channels required by the franchise or com- mission rules and may include any additional video programming signals as determined by a cable television company. (b) "Cable programming service" shall mean any video programming provided over a cable system, regardless of service tier, including instal- lation or rental of equipment used for the receipt of such video program- ming, other than: (I) video programming carried on the basic service tier as defined in this section; (2) video programming offered on a pay -per -channel or pay -per - 0 program basis; or (3) a combination of multiple channels of pay -per channel or pay - per -program video programming offered on a multiplexed or time -shifted basis so long as the combined service: (i) consists of commonly -identified video programming; and (ii) is not bundled with any regulated tier of service. (c) "Commission" shall mean the New York State Commission on Cable Television. (d) "Equipment" or "associated equipment" shall mean all equipment in a subscriber's home that is used to receive the basic service tier, re- gardless of whether such equipment is additionally used to receive other tiers of regulated programming service and/or unregulated service, in- cluding, but not limited to, converter boxes, remote control units, con- nections for additional television receivers and other cable home wiring, and the installation or rental thereof. (e) "F.C.C." shall mean the Federal Communications Commission. (f) "Participant" shall include any person who has submitted written comments or sworn testimony in a ratemaking proceeding. In addition, the commission shall be deemed a participant in any ratemaking pro- ceeding conducted by a municipality and a municipality shall be deemed a participant in any ratemaking proceeding conducted by the commission concerning a cable television company franchised to provide cable service in such municipality. Pursuant to 47 C.F.R Section 76.944(b) (see: section 593-3.1(b)) a participant may file an appeal of a decision of a municipality or the commission with the FCC within thirty days of release of the written decision described in Section 592-3.6(0 and (g) of this Subpart. (g) "Ratemaking proceeding" shall mean a proceeding for the review of rates for basic cable service and associated equipment conducted by the commission or a municipality after certification pursuant to 47 C.F.R. Section 76.910 and after the written notice described in 47 C.F.R. Section 76.910(e)(2) has been served upon a cable television company. (h) "Relevant franchising authority" shall mean both the municipality in which the cable television company provides cable service and the commission. to592-3.3 Effective Competition. Only the rates for basic cable service of a cable television system that is not subject to effective competition as defined in 47 C.F.R. Section 76.905 may be regulated by a municipality or the commission. In the absence of a demonstration to the contrary, cable systems are presumed noto esu sect to a fective competition,, 592-3.4 Municipal election. (a) A municipality shall determine whether the rates charged for basic cable service ai---.1U7nralarequipment 6y one or more cable television companies franchised to provide cable service therein will be regulated in accordance with the provisions of 47 C.F.R. Sections 76.900 et seq. Pursuant to this section, a municipality may (1) elect to undertake such rate regulation itself, or jointly in conjunction with one or more municipalities served by the same cable television system or (2j91ect to have_the commission undertake such rate regulation or (3) elect that no such..jegulation is warranted at the time the initial election is made. A municipality shall make an initial election pursuant to this section ono e February 28, 19941 provided, however, that if no election is made by such date, the commission may undertake such rate regulation or other action as may be necessary consistent with the public interest. (b) A municipality may elect to undertake the regulation of rates for basic ca a service an associate equipment charged by any cable tele- vision company franchised to provide cable service therein in accordance with 47 C.F.R. Sections 76.900 et seq. subject to conditions as follows: (1) the legislative body shall adopt a resolution at a regular or special meeting thereof, which resolution shall include (i) the name of the cable television franchisee to be regulated and (ii) a statement that the munic- ipality possesses the personnel and resources necessary to administer the regulations in 47 C.F.R., Sections 76.900 et seq. or, alternatively, if a municipal official is vested with authority to act on behalf of a municipal legislative body in matters pertaining o cablgtt:vision rates, by action of said official in the manner prescribed for the exercise of such author- ity, provided said action shall identify the cable television franchisee to be regulated and state the existence of the personnel and resources nec- essary to administer said FCC regulations; (2) the municipality shall serve a certified copy of said resolution or a true copy of an action on a ega a au ority on the commission within five days of the date thereof; (3 the a •. • . e .ro .tl ..n the commission_ .£i) a copy of its request for certification as filed with the F.C.C. and copies of oppositions, if any, to such request; (iilnotice that certification has been obtained or, alternatively a copy of any respon a from—the_ F.C.C. to the contrary; and (iii) a copy of the notice served upon the cable television rant isee initiating regu ation as required by 47 C' F u Section 76.910(e)(2). �c A municipality may elect to have the commission undertake the regulation of rates Tor basic cable service and associated equipment c-h—arg—e y any ca le television company franchised to provide cable service therein in accordance with 47 C.F.R. Sections 76.900 et seq. sub- ject to conditions as follows: (1) the 1.gis]ative_bodyshallado.pta olitdon ata regular or special meeting thereof which resolution shall include (i) the name of the cable television franchisee to be regulated and (ii) a statement that the munic- ipality chooses to have the commission undertake such regulation; (2) such election shall be effective on the date that the certified copy of said resolution is received by the commission. d A municipality may elect not to undertake regulation in accordance with C. . . Sections 76.900 et seq: subject to conditions as follows: (1) the legislative body shall adopt a resolution at a regular or special meeting thereof which resolution shall include (i) the name of the cable television franchisee and (ii) a statement that the rates charged by said franchisee for basic service and associated equipment shall not be subject to regulation at such time but that the municipality reserves the right to alter said election at any time; (2) The municipality shall serve a certified copy of said resolution on the commission within five days of the date of adoption; (3) an election not to regulate rates may be changed at any time; (4) a municipal determination that rates shall not be subject to reg- ulation in accordance with 47 C.F.R. Sections 76.900 et seq. shall be subject to review by the commission pursuant to the standards set forth in section eight hundred twenty-two of the executive law. (e) An election made by a municipality before the thirtieth day follow - it e�Ti of ectf rve . a e o is u , part remain in of ect unti alterein actorance with section 592-3.5 herein. Section 592-3.5 Reversal of Election. A municipality may, at any timq, alter an initial election in the same manner required for such initial elec- ti, n..provided, that it shall provide prompt notice thereof to the com- mission and to any cable television company affected there y an ur er � r s all e resu ed valid s• .1 15 Rule Making Activities NYS Register/January 12, 1994 provided that in any case where the commission regulates rates,.any such change shall not take effect during the pendency of a ratemaking pro- ceeding. 592-3.6 Procedt�t es. (a) Every ratemaking proceeding shall be con- ducted and decided i accordance with the regulations of the F.C.C. and the provisions of this section not inconsistent t erewit ; provided, how- ever, that a nicipality which elgcts to regulate rates itself, or jointly with one or more other municipalities, may adopt and administer addi- tional regulations with respect to the rates for the basic service tier that are consistent with the regulations of the F.C.C. and may adopt addi- tional procedures applicable to the submission and consideration of views of interested parties. A municipality which adopts such additional reg- ulations or procedures shall file copy thereof with the commission. (b) A ratemaking proceeding shall be deemed commencedmyW en a cable television company is served by a municipality or the commission with the written notice described in 47 C.F.R. Section 76.910(e)(2); or (2) after such written notice has been served on a cable television com- pany, and provided that certification remains in effect, upon receipt by a municipality or the commission of a notice of any proposed increase or decrease in the rates for basic cable service and associated equipment. (c) In accordance with 47 C.F.R. Section 76.930, a cable television company shall file its schedule of rates for basic cable servtc a o crated equipment with the munici.alit and the commission 1) with' thir • .. • o receiving suc written notice or by November 15, 1993 whichever is later, or (2) at least thirty days prior to the effective date o any proposed increase. Such rates shall be filed on forms, or in th manner, as may be prescribed by the F.C.C. In either case, the cabl television company shall cause to be published in a newspaper of general circulation in the municipality, a notice that said ratemaking proceeding has been commenced; that a copy of the schedule of rates will be available for public inspection during normal business hours at the office of the clerk of the municipality and at the commission; and that interested parties may submit written comments to the municipality or the corn - mission, as the case may be, on or before a specified date which shall not be later than the twentieth day after said schedule of rates is filed by the cable television company. Such notice shall be published at least fifteen days before the due date for comments. (d) Promptly upon receipt of said schedule of rates. a municipality that has chosen to undertake rate regulation in accordance with 47 C.F.R. Sections 76.900 et seq. shall ensure that a public meeting is scheduled to occur within thirty days of the date the cable company files its schedule of rates on applicable FCC forms and may schedule a public hearing for the purpose of receiving public comment on said rates. The authority to schedule said hearing may be delegated to the clerk or other municipal official by the municipal legislative body. Notice of such hearing shall be published at least five days before the date of said hearing. In the event that the municipality determines pursuant to 47 C.F.R. Section 76.933 to extend the time for review of rates beyond thirty days, it shall provide at least one additional opportunity for the submission of written comments. No action which finally determines a ratemaking proceeding shall be taken except after at least one public hearing. The costs of pub- lication of all notices shall be borne by the cable television company. (e) When filing or submitting financial information, a cable television company shall certify the accuracy of such information; provided, how- ever, that certification may be made by an officer of the cable television company. A cable television company may be required to produce pro- prietary information provided, however, that procedures analogous to those set forth in 47 C.F.R. Section 0.459 regarding requests for confi- dentiality shall be applied by the municipality or the commission. (f) A determination of rates shall be made at a public meeting and shall be embodied in a written decision whenever such determination (1) disapproves an initial rate; (2) disapproves a request for a rate increase in whole or in part; or (3) approves a request for an increase in whole or in part over the objection of a participant. (g) Every written decision must include at a minimum (1) the date the ratemaking proceeding was commenced; (2) a copy of each public notice described in this section; (3) a list of the participants in the ratemaking proceeding; (4) a complete description of each rate approved or disap- proved and the effective date thereof; (5) whether a rate reduction or rate refund is being ordered and, if so, the amount of the reduction or refund; (6) the effective date of the rates approved and the amount of reductions or refunds, if any; and (7) a statement that the decision was made in accordance with applicable federal standards and the regulations con- tained in this Subpart. (h) Whenever a written decision is issued, copies of the text shall be provided to all participants in the proceeding and shall be made available to the public. Notice of the issuance of a written decision and the avail- ability thereof shall be published in a newspaper ofgeneral circulation in the affected municipality. The cable television company shall bear the costs of such notice. (i) In addition to the foregoing, the commission shall not enter an order prescribing any rate unless: (1) it shall have caused a notice of the rates proposed by a cable television company to be served at the commencement of the rate pro- ceeding on each municipality wherein said company provides service and shall have provided each municipality with a reasonable period of time consistent with the applicable federal procedure to file comments on the proposed rates; and (2) in the event it determines pursuant to 47 C.F.R. Section 76.933 to extend the time for review of rates beyond thirty days, it shall provide at least one additional opportunity for the submission of written com- ments by interested parties and may conduct a public hearing; (3) in respect to so much of any rate or charge as shall be based upon franchise fees payable to a municipality or the cost of compliance f e e 16 with public, educational or governmental access requirements or any other requirements set forth in the municipal franchise agreement, it shall have provided the municipality with a reasonable opportunity consistent with time periods applicable to review and to comment upon the amount of such fees and costs. Section 592-3.7 Notice of rate increases. A cable television company shall provide written notice to subscribers of any increase in the rates for cable services at least thirty days before any proposed increase is effective. The notice to subscribers should include the name and address of the commission and the municipality. A cable television company shall pro- vide written notice to the commission and the municipality at least fifteen days before it provides such notice to subscribers. Section 592-3.8.Notification of basic service tier availability. A cable television company shall provide written —riTSiffication to subscribers of the availability of basic cable service by November 30, 1993, or three billing cycles from September 1, 1993, and to new subscribers at the time of installation. This notification shall include the following information: (a) that a basic service tier is available; (b) the cost per month for the basic service tier; and (c) a list of all services included in the basic service tier. Section 592-3.9 Cable Programming Services. (a) A municipality, the commission, any subscriber or other relevant governmental entity may file with the F.C.C. a complaint challenging the reasonableness of the rates charged by a cable television company for cable programming serv- ices or the reasonableness of a charge for installation or rental of equip- ment used for the receipt of cable programming services. (b) Pursuant to 47 U.S.C. Section 76.951(a), any complaint regarding a cable television company's rates for cable programming services or associated equipment must be filed using standard complaint form, FCC 329. The cable television company must provide a copy of the standard complaint form to any subscriber upon request. (c) A copy of any complaint filed by a municipality shall be served upon the cable television company and the commission. A copy of any complaint filed by the commission shall be served upon the cable tele- vision company and any municipality wherein the challenged rates or charges are in effect or proposed to be implemented. A copy of any complaint filed by a subscriber or other relevant governmental entity shall be served promptly upon the cable television company and the munici- pality wherein the subscriber or entity resides. Upon receipt of such com- plaint, the cable television company shall serve a copy thereof upon the commission. A cable television company shall serve a copy of its filing with the F.C.C. on the commission and the municipality. A municipality or the commission, or both of them, may present views to the F.C.C. on any complaint regarding rates for cable programming services or asso- ciated equipment. This notice is intended to serve as both a notice of emergency adoption and a notice of revised rule making. The notice of proposed rule making was published in the State Register on September 29, 1993, I.D. No. CTV-39-93-00005-P. The emergency rule will expire 90 days after filing. NYS Register/January 12, 1994 Rule Making Activities Emergency rule compared with proposed rule: Substantial revisions were made in sections 592-3.4(a), (b)(1)(2) and (d)(1), (2) and (e); 592-3.6(a), (d) and (e); and 592-3.9(b) and (c). Text of rule, the regulatory impact statement, if any, the regulatory flex- ibility analysis, if any, and the assessment of public comment, if any, may be obtained from: William F. Huff, Commission on Cable Televi- sion, Empire State Plaza, Corning Tower Bldg., 21st Fl., Albany, NY 12223, (518) 474-4992 Data, views or arguments may be submitted to: Same as above. Public comment will be received until: February 15, 1994. Regulatory Impact Statement 1. Statutory Authority: Sections 825, 821 and 822.of the Executive Law require approval of cable television rates by the franchising municipality and/or the Com- mission to the extent consistent with federal law. In the past, rates were set initially through negotiation between a municipality and the fran- chised cable company or, alternatively, by the Commission. Section 825(5)(e). In every instance, rates were subject to the review and approval by the Commission. The Cable Television Consumer Protection and Competition Act of 1992 permits franchising authorities to regulate rates for basic service and associated equipment (47 U.S.C. Section 543) in accordance with stand- ards promulgated by the Federal Communications Commission ("FCC"). FCC standards are contained in 47 C.F.R. Section 76.900 et seq. These rules provide, inter alia, for substantive criteria for rate reg- ulation and the opportunity for appeal of all local rate decisions to the FCC. In New York State, a franchising municipality and the Commission are both franchising authorities. The proposed rule provides for regula- tion by a franchising municipality or the Commission at the election of the municipality. The rule also sets forth procedures applicable to rate- making. 2. Legislative Objectives: The proposed rule will establish procedures for rate regulation in New York State consistent with new federal legislation. The statutory author- ': ity for a dual franchising and rate setting process is well established in New York. The proposed rule clarifies and applies those objectives to a new federal regulatory scheme. 3. Needs and Benefits: The proposed rule clarifies the respective roles of municipalities and the Commission under new federal rate regulation. The proposed rule also implements requirements of federal law by creating minimum pro- cedures by which the public may participate in the rate setting process. (47 U.S.C. Section 543 and 47 C.F.R. Section 76.900 et seq.) 4. Costs: (a) Costs to regulated entities: The proposed rule imposes requirements for newspaper notice of a proceeding for rate approval and of the written decision issued by the franchising authority. If a municipality elects to regulate itself, a notice• of public hearing will be required. Costs of at least two newspaper publications (and possibly others) will be borne by regulated entities. Otherwise, the proposed rule imposes no additional costs upon the regulated entity over and above those already imposed by federal law and rules. (b) Costs to state and local governments: The proposed rule imposes minimal costs upon local governments, as most of the regulatory costs will be incurred at the direction of the FCC pursuant to federal law and rules. In the past, rates were generally established in the franchise or franchise renewal and by franchise amendment. Each process required a public hearing preceded by notice. The proposed rule requires at least one public hearing for those municipalities electing to regulate rates, however, the hearing need not be held separately from other municipal meetings thus imposing little or no additional costs. There will be regulatory costs imposed upon the Commission to con- duct hearings and to provide stenographic or other transcription or re- cording services for same. Travel expenses will be incurred to attend local hearings, as well as to conduct Commission hearings. Publication will be required to notice hearings, rate filings and any written decisions rendered by the Commission. Costs associated with these activities will depend upon the number of municipalities electing to ask the Commission to set rates. Newspaper publication may average $7.00 for each notice. (c) and (d) Estimate of cost and methodology: The proposed rule will impose additional costs upon state and local governments but exact amounts cannot be determined at this time. Hearing and publication costs imposed by the proposed rule will depend upon the number of munici- palities that choose regulation, the number seeking Commission assist- ance, municipalities electing not to set rates, and those ratemaking proceedings conducted by the Commission wherein the Commission de- termines a hearing is required. This determination, in turn, will depend in part, upon whether the cable operator files rate schedules based upon the benchmark approach set forth in the FCC's rules, or attempts to justify rates in excess of the benchmark by a cost of service showing. The need for hearings may also depend upon the involvement of the public in any given municipality. For all these reasons, the Commission is unable to provide an estimate of actual costs to state and local gov- ernments. 5. Local Government Mandates: The proposed rule requires a municipal government to decide formally whether or not rates shall be regulated and, if so, by whom. 6. Paperwork: The proposed nile requires a municipality to notify the Commission of its decision concerning rate regulation. 7. Duplication: The proposed rule restates certain requirements set forth in 47 C.F.R. Section 76.900 et seq. 8. Alternatives: Federal statute and regulations prescribe the scope of, and standards for, rate regulation. The only flexibility permitted franchising authorities is whether and when to regulate rates and the procedures for public participation in the ratemaking process. There are no significant alter- natives. 9. Federal Standards: Federal regulations requires a franchising authority to adhere to federal substantive standards in regulating rates and to adopt procedures that provide the public with an opportunity to participate in ratemaking pro- ceedings. The proposed rule exceeds federal standards by requiring that a municipality set rates. only after a public hearing upon notice. This public hearing requirement is imposed to comport with the traditional requirement for a public hearing prior to any municipal decision that affected cable television rates in New York. 10. Compliance Schedule: FCC rules were effective September 1, 1993. On or after that date, franchising authorities may begin to seek certification, and once having obtained certification, to adopt rules and initiate regulation. Formal rate determinations made on or before August 31, 1994 may have retroactive effect to September 1, 1993. The requirement that municipalities make an initial election by February 28, 1994, is designed to assure that where regulation is chosen, ample time will exist to commence and conclude ratemaking proceedings before August 31, 1994. 11. Comment Period: The last day the agency will accept comments is February 15, 1994. Regulatory Flexibility Analysis 1. Effect on small business: The proposed rule is intended to implement provisions of the rules of the Federal Communications Commission at 47 C.F.R. Section 76.900 et seq. applicable to cable television rate reg- ulation. The FCC has stayed the effectiveness of the rules for small cable systems until further action. A small system is defined by the FCC as any cable television company serving less than 1,000 subscribers from a single cable television headend facility through mechanically intercon- nected cable to the subscriber. Until further FCC action, all cable com- panies exempt pursuant to Section 813(2) of the Executive Law and some larger cable companies will not be subject to rate regulation and, there- fore, will be exempt from the proposed rule. 2. Compliance requirements: There are no recordkeeping or reporting requirements imposed by the proposed rule. Cable companies that be- come subject to rate regulation will have to bear the costs of publishing notices at various stages of a ratemaking proceeding. 3. Professional services: The proposed rule will not require small busi- nesses to retain professional services. 4. Compliance costs: Except as noted in paragraph 2, supra, there are no initial or ongoing compliance costs imposed upon the regulated in- dustry by the proposed rule. 5. Minimizing adverse impact: The proposed rule will not impose ad- verse economic impact upon small businesses. 17 Rule Making Activities NYS Register/January 12, 1994 6. Small business participation: The proposed rule implements provi- sions of federal law and rules applicable to rate regulation. The Com- mission reviewed comments of New York cable companies in relevant proceedings before the FCC. In addition, the Commission sought com- - ments from, and conducted meetings with, representatives of the Cable Television Association of the State of New York, the New York State Conference of Mayors and Municipal Officials, the Association of Towns , and the Government Oversight Committee of the New York State As- sembly. Assessment of Public Comment The Commission received written comments on the proposed rule from the New York State Conference of Mayors and Municipal Officials, New York State Consumer Protection Board, City of New York Department of Telecommunications & Energy, Larchmont-Mamaroneck Cable TV Board of Control, Municipal Electric Utilities Association of New York State, Cable Television Association of New York and Alexander G. Ga- briels, III. The proposed rule is designed to implement recent changes in federal statutory law and new rules adopted by the Federal Communications Commission ("FCC") which permit franchising authorities to regulate the rates for basic cable service and associated equipment in accordance with substantive criteria contained in the FCC rules. The essential fea- tures of the new federal regulatory scheme were summarized in the notice of proposed rule making in this docket. Section 592-3.4, as proposed, sets forth an elective procedure whereby a municipality may determine that rates for basic cable service and as- sociated equipment will be regulated either by the municipality or the Commission. Alternatively, a municipality may decide that such rates shall not be regulated initially. The proposed rule also sets forth proce- dures for making elections and provides for the modification of elections once made. Certain commentors suggested that municipal governments might choose to join together to exercise rate regulation and asked that the Commission modify the rule to recognize the opportunity for joint reg- ulation. The Commission did not intend by the rules to prohibit or dis- courage municipalities from joining together to regulate rates and the rule has been amended to formally recognize the opportunity for joint regulation by two or more municipalities served by the same cable system. Section 592-3.4(a) contained a specific date — December 31, 1993 — by which municipalities would be expected to make an initial election with respect to rate regulation. Various parties challenged the proposed deadline, both with respect to the Commission's jurisdiction to impose it and the proximity of the date to the effective date of the rule. While it is true that federal rules do not require franchising authorities to regulate rates in every instance, the issue of when and whether rate regulatory authority is exercised is not governed by federal law. As the FCC has stated, "...local franchising authorities receive their power to grant franchises and regulate rates from the state,...." (Report and Or- der, Docket No. 92-266, Para. 69). It is also true that the regulatory scheme was adopted in anticipation of widespread regulation and is de- signed to confer the benefits of regulation retroactively for up to twelve months. The Commission believes that the opportunity to regulate basic cable television rates and associated equipment is of sufficient import for municipalities to address the issue formally and to make an initial election by a date certain. The process of decisionmaking will promote a better understanding of FCC rate regulations by municipal officials and inter- ested constituents alike. Furthermore, municipalities that choose regu- lation will be better served if that decision leaves adequate time within which to conduct and conclude a ratemaking proceeding before August 31, 1994 — twelve months from the effective date of the FCC rules. At the same time, the Commission is persuaded that the deadline for elections may be extended beyond December 31, 1993 without undue adverse effect and, accordingly, the rule has been modified to extend the date until February 28, 1994. In the absence of a municipal decision, Section 592-3.4(2) provides that the Commission may undertake rate regulation or other action consistent with the public interest. The New York State Consumer Protection Board has recommended that the rule be changed to provide that if no municipal election is made, the Commission "shall" undertake rate regulation or other action. While it is the intent of the Commission to ensure the benefits of the new rate standards to the maximum extent consistent with municipal elections, it is not necessary to mandate formal regulation or 18 even formal action in every instance where a municipality does not act timely. For example, based upon notices of municipal elections already received, the Commission will be regulating some part of most cable systems in the state. To the extent that the Commission will be examining the rates of a particular system, it is likely that the benefits of Commis- sion action relative to one municipality may be extended to other mu- nicipalities in the same system without additional formal rate proceedings in every case. Also, the results of rate proceedings may induce munici- palities to act affirmatively. The City of New York and other commentors have asked that the proposed rule be modified to recognize that the decision to regulate rates need not require formal action by a municipal legislative body. The com- mentors note that in certain municipalities, under local law or the fran- chise agreement, the authority to make rate related decisions may be delegated to a municipal official. In recognition of those instances — few in number — in the state where such authority has been delegated, the Commission has amended the rule to ensure that actions taken pur- suant to such authority to regulate rates locally are not suspect under the rules. Section 592-3.4(d) relative to a municipal election not to regulate rates generated a number of comments. One commentor recommended that this section be deleted. Another commentor argued that the Commission does not have the authority to require a public hearing prior to a mu- nicipal determination not to regulate or to require a justification by the municipality of such decision. Still other commentors claimed that the process for choosing not to regulate should be similar to the procedure for choosing one of the other options. The issue of rate regulation under new federal standards is of sufficient public interest that a formal determination by municipalities to defer regulation is desirable. On the other hand, the Commission is persuaded by the commentors that it is not necessary to impose unique procedural requirements on such a decision. Accordingly, the Commission has de- leted the requirement for a public hearing prior to the decision not to regulate and also the requirement for a statement justifying such decision. In respect to the latter, the Commission is particularly mindful that the proposed requirement that the municipal legislative body determine that rates are in substantial compliance with the new federal rate standards is a very difficult standard given the complexity and evolving nature of the regulations. The rule will provide that a determination not to regulate may be changed at any time and that it is subject to review by the Com- mission pursuant to the standards in Section 822 of the Executive Law. A number of commentors have noted the large number of elections that have already been made by municipal governments and asked that such actions be grandfathered. The Commission agrees and has added a new paragraph (e) to Section 592-3.4 to provide that municipal elections made on or before the thirtieth day following the effective date of the rules will be presumed valid and will remain in effect until modified. Section 592-3.6 contains procedures which municipalities may follow in regulating rates themselves as well as procedures applicable to regu- lation by the Commission. Various commentors noted that some munic- ipalities have already adopted procedures and asked that the Commission modify the rule to recognize the validity of such procedures. Other com- mentors contend that uniform procedures are unnecessary and in some instances undesirable. In this regard, it should be emphasized that the proposed procedures were designed to implement the requirements of the FCC as a condition to rate regulation and, with reference to municipal- ities, particularly, to facilitate municipal regulation by alleviating the need for each municipality to devote time and resources to the adoption of separate regulations and procedures. The Commission did not intend to foreclose municipal action entirely and, accordingly, the Commission has amended Section 592-3.6(a) to recognize that a municipality may adopt additional procedures provided they are consistent with FCC reg- ulations and ensure at least the opportunity for public participation con- tained in the Commission's rules. Comments received on the procedures, themselves, challenge the ab- solute requirement for a public hearing within the first thirty days after rates are filed by a cable television company and the requirement that two public hearings be held in every rate proceeding that extends beyond thirty days. Under FCC regulations, a franchising authority must take P: some action within the first 30 days following the receipt of rates or else �1 the rates will be deemed reasonable. That action may include a decision to extend the time for review of rates for an additional period of 90 or [994 tot act lready cable nining mmis- :r mu - !dings unici- t the rates com- fran- y be es — ated, t pur- er the rates l that fission I mu- m the tt the edure icient defer Laded ural s de - •t to ion. t the that ds is f the late om- ,aw. :ions that ed a ions the F. Flow egu- nic- sion om- nme the the pal - the ion end ion nay •eg- on- ab- 'ter hat Ind tke Ise on or NYS Register/January 12, .1994 Rule Making Activities 150 days depending upon the method of regulation chosen by the cable television company. In retrospect, the unconditional requirement for a public hearing in the first 30 days may impose practical difficulties, especially where ad- ditional information is required and interested parties have not had an opportunity to familiarize themselves with all the information necessary to evaluate rates. Upon consideration of the comments, the Commission has determined to delete the absolute requirement for a public hearing within the first 30 days and for two public hearings in every proceeding that extends beyond 30 days in favor of a general requirement that "no action which finally determines a rate making proceeding shall be taken except after at least one public hearing." In other words, if a municipality does not schedule a public hearing in the first 30 days it would be expected to extend the time for review. The fact that rates could become final within thirty days, however, requires that some opportunity be provided for the participation by interested parties during the initial period and the rule will require an opportunity for written comments. Also, because inaction for a thirty day period would result in an approved rate, the rule has been modified to require that a municipality ensure that a public meeting is scheduled during such thirty day period so that it is in a position to formally act to extend the time for review. Section 592-3.6(e) provides that a cable company must certify the ac- curacy of financial information submitted in conjunction with a rate- making proceeding. CTANY has commented that the rule should be clarified to provide that such certification requirement is not interpreted to require the services of an outside auditor. Since it was not the intent of the Commission to require certification by an outside auditor, the rule has been modified to recognize that certification may be made by an officer of the cable television company. Section 592-3.7 applicable to notices of rate increases essentially tracks the FCC rules and also provides that the cable television company should provide written notice to the Commission and any affected municipality at least fifteen days before it provides notice of a rate increase to sub- scribers. CTANY challenges such additional fifteen day notice require- ment as an unlawful imposition of an additional condition on a rate increase. The Commission disagrees. First, there is no apparent reason why FCC regulations require that notice of a rate increase for cable programming services be served upon a municipality, but that notice of an increase in basic rates be served only on subscribers. Second, thirty day notice of a rate increase in basic service does not provide enough time for a franchising authority that has not already sought certification to apply for and obtain certification in time to defer the proposed rate increase until after a ratemaking proceeding. The notice provision in the rule is designed simply to provide municipalities and the Commission with the opportunity to respond to proposed rate increases that could be subject to regulation but for a delay in seeking certification. Finally, Section 592-3.9 concerning cable programming services, pro- vides at subsection (c) that a subscriber filing a complaint with the FCC should also file a copy of that complaint upon the municipality wherein the subscriber resides and the Commission. This proposal was intended to conform the FCC procedure for filing complaints for unreasonable cable programming services rates to the regulatory structure in New York State. Specifically, under FCC rules, a person complaining of cable pro- gramming service rates at the FCC is required to file a copy of such complaints on the "relevant franchising authority." In New York, the relevant franchising authority would include the municipality and the Commission. Nonetheless, the Commission. recognizes that it is difficult to communicate this requirement to all subscribers and other potential complainants in the State of New York and that such requirement, if not met, could possibly taint an otherwise legitimate complaint. Accordingly, the Commission has deleted the requirement that a copy of a complaint be filed with the Commission in favor of a requirement that the cable company, upon receipt of a copy of a complaint, file a copy thereof promptly with the Commission. As a relevant franchising authority, the Commission will review complaints and submit its views when and as deemed appropriate. Department of Civil Service NOTICE OF EXPIRATION PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given that the following notice(s) of proposed rule making cannot be reconsidered unless the Department of Civil Service publishes new notices of proposed rule making in the NYS Register. I.D. No. CVS -51-92-00003-P CVS -51-92-00005-P CVS -51-92-00009-P CVS -51-92-00010-P CVS -51-92-00011-P CVS -51-92-00012-P CVS -51-92-00017-P CVS -51-92-00019-P CVS -51-92-00020-P CVS -51-92-00022-P CVS -51-92-00024-P CVS -51-92-00027-P • Proposed December 23, 1993 December 23, 1993 December 23, 1993 December 23, 1993 December 23, 1993 December 23, 1993 December 23, 1993 December 23, 1993 December 23, 1993 December 23, 1993 December 23, 1993 December 23, 1993 Expiration Date December 23, 1993 December 23, 1993 December 23, 1993 December 23, 1993 December 23, 1993 December 23, 1993 December 23, 1993 December 23, 1993 December 23, 1993 December 23, 1993 December 23, 1993 December 23, 1993 Department of Correctional Services EMERGENCY RULE MAKING Inmate -to -Inmate Correspondence I.D. No. COR -41-93-00021-E Filing No. 2434 Filing date: Dec. 28, 1993 Effective date: Dec. 31, 1993 PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action: Action taken: Addition of section 720.6(d) -(g) to Title 7 NYCRR. Statutory authority: Correction Law, section 112 Finding of necessity for emergency rule: Preservation of public health, public safety and general welfare. Specific reasons underlying the finding of necessity: The provisions of this emergency rule were contained in former section 720.3(c) which was repealed, effective July 19, 1993. This language was inadvertently omitted from the new rule COR -31 -93 -00026 -EP, A, effective July 19, 1993. Therefore, this language must now be added as an emergency rule. Subject: Inmate -to -inmate correspondence. Purpose: To comport section 720.6 with Department of Correctional Services' policy directive 4422. Text of emergency rule: New subdivisions (d) -(g) are hereby added to section 720.6 of Part 720 to read as follows: (d) Denial and withdrawal of authorization. (1) Denial of authori- zation. Denials of authorization for inmate -to inmate correspondence shall include a statement of reasons for the denial, and shall be placed in both inmates' files. A denial of authorization may be appealed to the commissioner or his designee, in writing, within 30 days. (2) Withdrawal of authorization. Authorization to correspond may be withdrawn by a superintendent in a particular case when it is dem- onstrated and documented that one or both inmates have violated facility or department rules and regulations, that the safety, security or good order of a facility is jeopardized, or that the safety or well being of any individual is jeopardized. Documentation shall be placed in both in- mates' files. (e) Inmate -to -inmate correspondence must not be sealed. If it is sealed, it may be opened and returned to the inmate sender. (f) Inmate -to -inmate correspondence may be read by a superintendent (or his/her designee) of either the sending or receiving facility or by both. No inmate -to -inmate correspondence shall be deemed in any way to be privileged correspondence. 19 A 4 ECEIV ED APR 05 1993 _;::... AMERICAN COMMUNITY CABLEVISION . April 1, 1993 Ms. Callista Paolangeli City Clerk of Ithaca City Hall 108 E. Green Street Ithaca, NY 14850 Dear Ms. Paolangeli: Effective April 1, 1993, American Community Cablevision will establish a commercial rate structure which fairly reflects the benefits of our service to the commercial business. These rates will not effect businesses that currently subscribe until January of 1994. I am confident the benefits of quality reception and programming choices will help to attract and satisfy customers in business establishments. The new rate structure will be as follows: Appliance/Television/Retail Sales Outlets $60.00 High Volume Users (Includes taverns, restaurants, sit-in pizza parlors, lounges, fraternities and sororities.): Basic $29.95 Tier $14.95 Additional outlet (Without Tier) $5.00 Additional outlet (With Tier) $10.00 Mid Volume Users (Includes doctor or dentist waiting rooms,. employee lunch rooms, barber shops, beauty shops, Bed & Breakfast.) Basic $24.95 Tier -$14.95 Additional outlet (Without Tier) $5.00 Additional outlet (With Tier) $10.00 Low Volume Users (Includes a private office in a business or a store) : Basic Tier Additional Additional The above rates will continue to calls. 519 West State Street $19.95 $14.95 outlets (Without Tier) $5.00 outlets (With Tier) $10.00 are exclusive of franchise fees. As always, we maintain cable service"`with no charge for service Ithaca, New York 14850 607-272-3456 Even with this adjustment, American Community Cablevision remains a premium entertainment bargain for businesses. If you should have any questions, please feel free to call me. rely, a‘d Ra and H. McCabe Area Manager cc: The Honorable Ben Nichols Mr. James Ferwerda, Chair of the Cable Commission RHM/mkk Resolution Passed Unanimously by the Ithaca City Cable Commission October 25, 1994 Whereas Franchise Fees in excess of 5% are in violation of the federal Cable Act of 1984 (622 (b) --unrevised in 1992); and Whereas, the City of Ithaca charges Time Warner Cable a 5 percent franchise fee on gross city revenues as allowed under the law; and Whereas the term 'franchise fee' in the case of any franchise in effect on the date of the enactment of this title [Cable Act of 1992], does not include payments which are required by the franchise to be incurred by the cable operator for public, educational, or governmental access facilities"1 Whereas Time Warner Cable has been charging City of Ithaca customers $1.26 per month for a "P.E.G. Access Franchise Fee" since the week of July 11, 1994, and Whereas the so-called "P.E.G. Access Franchise Fee" is cannot legally be charged as a franchise fee; and Whereas Time Warner Cable's General Manager Raymond McCabe was publicly informed that this charge is not a "Franchise Fee" by Assistant Deputy Director of the New York State Commission of Cable Television Steven Shaye at the Ithaca public hearing on cable television held in Common Council Chambers on July 13, 1994, and televised on Channel 53; and Whereas Time Warner Cable has taken no voluntary action to correct this situation; Therefore the Ithaca City Cable Commission calls on Time Warner Cable to refund this so-called "franchise fee" in full to each City of Ithaca subscriber that has been charged this "franchise fee" in 1Pike & Fisher's Cable Act: Law and Legislative History, p484 excess of the amount of Be it further resolved listing P.E.G. Access subscribers. franchise fee allowed by federal law; and that Time Warner Cable will desist from Franchise Fee on its bills to city Resolution Passed Unanimously by the Ithaca City Cable Commission October 25, 1994 Whereas the Ithaca City Franchise calls for Time Warner Cable to maintain or replace Access and local origination equipment in a manner consistent with Good Operating Practice; and Whereas Good Operating Practice has a specific definition in the context of governmental and non-governmental contracts and is an accepted trade phrase, and Whereas Good Operating Practice for all equipment includes, at minimum: 1)For each piece of equipment, in accordance with the recommendations of the manufacturer if available, determining acceptable tolerances for replaceable parts and setting up a regular maintenance and inspection schedule; 2)Adhering to the regular maintenance and inspection schedule, including preventative maintenance procedures and regular replacement of replaceable parts that fall outside acceptable tolerances; 3) Setting up a system to check adherence to the regular maintenance schedule, such as posting this schedule and requiring the inspector or maintenance worker to initial and date it on completion of each scheduled maintenance procedure or inspection; and 4)Review of the initialed maintenance/inspection schedule or equivalent procedure by management on a regular basis to assure adherence to the schedule. 5)Replacing equipment that can no longer be brought into acceptable tolerances because of the unavailibility of standard replacement parts or because advances in equipment design dictate replacement. Whereas the two items marked "refurbishment" that TWC has charged to the 1994 access capital equipment budget (2% funds) represent equipment maintenance procedures involving the replacement of replaceable parts that have been analyzed and found to be beyond acceptable tolerances, and Whereas standard replacement parts were available and used for these replacements; and Whereas the replacement of worn parts with standard replacement parts on a predetermined schedule or when they are analyzed and found to deviate from original manufacturer's specifications beyond acceptable tolerances falls within the normal definition of Good Operating Practice; Therefore the Ithaca City Cable Commission calls on Time Warner Cable. to abide by its repair responsibilities under the Franchise agreement and to refund the amounts charged for the two items of "refurbishment" to the 2% capital equipment fund; and Furthermore, the Ithaca City Cable Commission calls on Time Warner Cable to refrain from charging equipment "refurbishments" or this sort to the 2% funds in the future. Resolution Passed Unanimously by the Ithaca City Cable Commission October 25, 1994 Be it resolved that: 1) Under no circumstance shall the pool of capital funds for P.E.G. access equipment be less than 2% of gross city revenues; and 2) All equipment shall be available equitably to all residents of the City of Ithaca. 3) In general no equipment is to be installed in any location where the de facto effect is to exclude equitable access to all residents of the City of Ithaca. OFFICE OF MAYOR CITY OF ITHACA 108 EAST GREEN STREET ITHACA, NEW YORK 14850 February 22, 1993 William B. Finneran, Chairman New York State Commission on Cable Television Tower Building Empire State Plaza Albany, New York 12223 Dear Mr. Finneran: TELEPHONE: 274 -450 - CODE 607 Thank you for forwarding to me the notice of proposed rule making and the order adopting federal customer service standards with modification and notice of enforcement. It is my understanding that under the new rules the City of Ithaca may elect to regulate rates, elect to have the commission regulate rates under such rules, or elect not to have regulation at this time. Our staff has reviewed this matter and have also discussed it with John Grow, staff attorney for your commission. Pursuant to Article 19 of the City of Ithaca Franchise Agreement with American Community Cablevision (ACC) basic rates are regulated. It is my understanding that because the Franchise Agreement was entered into prior to 1990 and that there was not and is not effective by competition, that it is appropriate under Section 623(j) for rates to be regulated in this manner in the Franchise Agreement. Because rates are appropriately regulated in the Franchise Agreement, the City of Ithaca is choosing, at this time, not to further regulate rates as allowed under the new FCC rules and regulations. It is our understanding that the City of Ithaca has the option at any time in the future to alter its position and elect, at such time, to have rates regulated in compliance with federal law either by the City itself or to have the New York State Commission on Cable Television undertake such rate regulation. If and when the City of Ithaca determines that it would be in the best interest of subscribers in the City to have rates regulated in compliance with the FCC rules and regulations we will, at that time, make such an election. William B. Finneran -2- February 22, 1994 I would like to thank you and your staff for your cooperation in this matter. If you need anything further from the City of Ithaca, please let me know. Very truly yours, /, Benjamin Nichols Mayor BN/cw i► January 7, 1993 VIA FAX AND CERTIFIED MAIL General Manager American Community Cablevision 519 West State Street Ithaca, New York 14850 Dear Sir/Madam: American Community Cablevision is the holder of television franchise with the City of Ithaca. understanding that American Community Cablevision is a or division of American Television and Communication C American Television and Communication Corporation is, majority owned subsidiary of Time Warner, Inc. It is our further understanding Time Warner, Inc. intends or intended to create a new limited partnership entity comprised of the business and assets of its filmed entertainment, programming and cable divisions which entity is to be known as Time Warner Entertainment Company, L.P. the cable It is our subsidiary orporation. or was, a The City of Ithaca was asked to authorize a consent to the transfer of the American Television and Communication Corporation minority shares to Time Warner and the transfer of the franchise and the cable television system operating pursuant to the franchise from American Community Cablevision to Time Warner Entertainment Company, L.P., including any necessary transfers through one or more subsidiaries of Time Warner. This consent is required pursuant to Article 23 of the Franchise Agreement with the City of Ithaca. In 1992 pursuant to resolution with the Common Counsel and the City of Ithaca this transfer was authorized and consented to by the City of Ithaca. Pursuant to Section 23.6 of the Franchise Agreement, any approval by the City of Ithaca of transfer of ownership or control is automatically contingent upon the perspective controlling party becominga signatory to the franchise. To date, the new perspective controlling party has not become a signatory to the franchise and therefore, this condition has not been met. .x Letter to American Community Cablevision January 7, 1993 Page Two Furthermore, pursuant to Section 23.8 of the Franchise Agreement, in the absence of extraordinary circumstances, the City of Ithaca is not to approve any transfer or assignment of the franchise prior to completion or construction of the proposed system. To date, construction of the entire system has not been completed. Accordingly, in accordance with the resolution of the Common Counsel of the City of Ithaca duly passed at a regularly scheduled meeting of the Common Counsel held on January 6, 1993, the consent, authorization and approval of the City of Ithaca to any such transfer of the franchise or control of the franchisee is hereby withdrawn. Very truly yours, Benjamin Nichols Mayor BN/cv cc: John Fogarty, Associate General Counsel PLEASE TAKE NOTICE that pursuant to Article XXII of the Franchise Agreement between the City of Ithaca and American Community Cablevision, the City of Ithaca shall hold a public hearing at the Council Chambers, City Hall, 108 East Green Street, in the City of Ithaca, on Thursday, December 10, 1992 at 7:30 o'clock p.m. at which time the public and American Community Cablevision may comment as to whether or not American Community Cablevision has defaulted in the performance of any provision of the franchise agreement. Information regarding allegations of default and the procedure for the public hearing may be obtained from City Attorney Charles Guttman, City Hall, 108 East Green Street, Ithaca, NY 14850 - 607/274-6504. er 20, repto- " with ention as set o pro - as is been e; for milk prod - r raw sub - and Fs set k such ed the :rans- ation M -1 - Dents; 91-6, !pto- +hi1e lave uip- )eci- 'DA airy airy rug lk); to - led ent 35, )e- IY 1 NYS Register/September 29, 1993 Rule Making Activities PROPOSED RULE MAKING NO HEARING(S) SCHEDULED Procedures to be Used by Municipalities to Regulate Rates for Cable Service 1.D. No. CTV-39-93-00005-P PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule: Proposed action: Addition of Subpart 592-3 to Title 9 NYCRR. Statutory authority: Executive Law, Art. 28, section 825(5)(e) Subject: Procedures to be used by municipalities and the Commission on Cable Television in electing to regulate rates for cable service and in conducting any proceedings in respect to changes in regulated rates for cable service. Purpose: To effect provisions of 47 USC 543 and 47 C.F.R. section 76.900, et seq. Text of proposed rule: New Subpart added to read as follows: 592-3 Procedures applicable to rate regulation pursuant to 47 C.F.R. §§ 76.900 et seq. Section 592-3.1 (a) Intent and Purpose. Section 623 of the Cable Communications Policy Act of 1984, as amended by Section 3 of the Cable Television Consumer Protection and Competition Act of 1992, and codified in 47 U.S.C. § 543, provides for the regulation by state and local franchising authorities of the rates charged for basic cable service by cable television companies not subject to effective competition. Section 623 has been implemented by rules and regulations adopted by the federal communications commission and published at 47 C.F.R. §§. 76.900 et seq. The purpose and intent of this subpart is to provide rules applicable to the regulation of rates for basic cable service in the State of New York by municipalities and the commission consistent with the federal rules and regulations in 47 C.F.R. §§ 76.900 et seq. (b) This paragraph shall apply to all references to the Code of Federal Regulations ("C.F.R.') contained herein. The applicable provisions of the C.F.R. are available for public inspection and copying at the offices of the Commission on Cable Television, Corning Tower Bldg., Empire State Plaza, Albany, New York 12223 and the New York State Department of State located at 41 State Street, Albany, New York 12207. 47 C.F.R. §§ 76.900 et seq. were published in the Federal Register, Volume 58, No. 97, May 21, 1993 at pp. 29753-29768, published by the United States Government Printing Office, Superintendent of Documents, Washington, DC 20402. 592-3.2 Definitions. (a) "Basic cable service," or "basic service," or "basic service tier" shall mean the tier of cable service that shall include, as a minimum, all signals of domestic television broadcast stations provided to any subscriber (except a signal secondarily transmitted by satellite carrier beyond the local service area of such station, regardless of how such signal is ultimately received by the cable system), any public, educational and governmental channels required by the franchise or commission rules and may include any additional video programming signals as determined by a cable television company. (b) "Cable programming service" shall mean any video programming provided over a cable system, regardless of service tier, including installation or rental of equipment used for the receipt of such video programming, other than: (1) video programming carried on the basic service tier as defined in this section; (2) video programming offered on a pay -per -channel or pay -per - program basis; or (3) a combination of multiple channels of pay -per -channel or pay - per -program video programming offered on a multiplexed or time - shifted basis so long as the combined service: (i) consists of commonly -identified video programming; and (ii) is not bundled with any regulated tier of service. (c) "Commission" shall mean the New York State Commission on Cable Television. (d) "Equipment" or "associated equipment" shall mean all equipment in a subscriber's home that is used to receive the basic service tier, regardless of whether such equipment is additionally used to receive other tiers of regulated programming service and/or unregulated service, including, but not limited to, converter boxes, remote control units, • connections for additional television receivers and other cable home wiring, and the installation or rental thereof. (e) "F.C.C." shall mean the Federal Communications Commission. (f) "Participant" shall include any person who has submitted written comments or sworn testimony in a ratemaking proceeding. In addition, the commission shall be deemed a participant in any ratemaking proceeding conducted by a municipality and a municipality shall be deemed a participant in any ratemaking proceeding conducted by the commission concerning a cable television company franchised to provide cable service in such municipality. Pursuant to 47 C.F.R § 76.944(b) (see: section 593-3.1(b)) a participant may file an appeal of a decision of a municipality or the commission with the FCC within thirty days of release of the written decision described in § 592-3.6(f) and (g) of this subpart. (g) "Ratemaking proceeding" shall mean a proceeding for the review of rates for basic cable service and associated equipment conducted by the commission or a municipality after certification pursuant to 47 C.F.R. § 76.910 and after the written notice described in 47 C.F.R. § 76.910(e)(2) has been served upon a cable television company. (h) "Relevant franchising authority" shall mean both the municipality in which the cable television company provides .cable service and the commission. 592-3.3 Effective Competition. Only the rates for basic cable service of a cable television system that is not subject to effective competition as defined in 47 C.F.R. § 76.905 may be regulated by a municipality or the commission. In the absence of a demonstration to the contrary, cable systems are presumed not to be subject to effective competition. 592-3.4 Municipal election. (a) A municipality shall determine whether the rates charged for basic cable service and associated equipment by one or more cable television companies franchised to provide cable service therein will be regulated in accordance with the provisions of 47 C.F.R. §§ 76.900 et seq. Pursuant to this section, a municipality may (I) elect to undertake such rate regulation itself or (2) elect to have the commission undertake such rate regulation or (3) elect that no such regulation is warranted at the time the initial election is made. A municipality shall make an initial election pursuant to this section on or before December 31, 1993, provided, however, that if no election is made by such date, the commission may undertake such rate regulation or other action as may be necessary consistent with the public interest. (b) A municipality may elect to undertake the regulation of rates for basic cable service and associated equipment charged by any cable television company franchised to provide cable service therein in accordance with 47 C.F.R. §§ 76.900 et seq. subject to conditions as follows: (1) the legislative body shall adopt a resolution at a regular or special meeting thereof which resolution shall include (i) the name of the cable television franchisee to be regulated and (ii) a statement that the municipality possesses the personnel and resources necessary to administer the regulations in 47 C.F.R., §§ 76.900 et seq.; (2) the municipality shall serve a certified copy of said resolution on the commission within five days of the date of adoption; (3) the municipality shall also serve promptly upon the commission (i) a copy of its request for certification as filed with the F.C.C. and copies of oppositions, if any, to such request; (ii) notice that certification has been obtained or, alternatively, a copy of any response from the F.C.C. to the contrary; and (iii) a copy of the notice served upon the cable television franchisee initiating regulation as required by 47 C.F.R. § 76.910(e)(2). (c) A municipality may elect to have the commission undertake the regulation of rates for basic cable service and associated equipment charged by any cable television company franchised to provide cable service therein in accordance with 47 C.F.R. §§ 76.900 et seq. subject to conditions as follows: (1) the legislative body shall adopt a resolution at a regular or special meeting thereof which resolution shall include (i) the name of the cable television franchisee to be regulated and (ii) a statement that the municipality chooses to have the commission undertake such regulation; (2) such election shall be effective on the date that the certified copy of said resolution is received by the commission. (d) A municipality may elect not to undertake regulation in accordance with 47 C.F.R. §§ 76.900 et seq. subject to conditions as follows: (1) the legislative body shall adopt a resolution at a regular or special meeting thereof which resolution shall include (i) the name of the cable 3 Rule Making Activities NYS Register/September 29, 1993 television franchisee and (ii) a statement that the municipality has reviewed the rates in effect in such municipality with reference to standards for determining permitted per -channel charges and equipment charges contained in 47 C.F.R. §§ 76.922 and 76.923 and has determined that said rates are in substantial compliance with such standards or, alternatively, a statement indicating other relevant factors considered by the legislative body in its determination not to regulate; (2) an election not to regulate rates shall be preceded by a public hearing; (3) an election not to regulate rates may be changed at any time; (4) a municipal determination that rates shall not be subject to regulation in accordance with 47 C.F.R. §§ 76.900 et seq. shall be subject to review by the commission pursuant to the standards set forth in • section eight hundred twenty-two of the executive law. Section 592-3.5 Reversal of Election. A municipality may, at any time, alter an initial election in the same manner required for such initial election, provided, that it shall provide prompt notice thereof to the commission and to any cable television company affected thereby and further provided that in any case where the commission regulates rates, any such change shall not take effect during the pendency of a ratemaking proceeding. 592-3.6 Procedures. (a) Every ratemaking proceeding shall be conducted and decided in accordance with the regulations of the F.C.C. and the provisions of this section not inconsistent therewith. (b) A ratemaking proceeding shall be deemed commenced (1) when a cable television company is served by a municipality or the commission with the written notice described in 47 C.F.R. § 76.910(e)(2); or (2) after such written notice has been served on a cable television company, and provided that certification remains in effect, upon receipt by a municipality or the commission of a notice of any proposed increase in the rates for basic cable service. (c) In accordance with 47 C.F.R. § 76.930, a cable television company shall file its schedule of rates for basic cable service and associated equipment with the municipality and the commission (1) within thirty days of receiving such written notice or by November 15, 1993, whichever is later, or (2) at least thirty days prior to the effective date of any proposed increase. Such rates shall be filed on forms, or in the manner, as may be prescribed by the F.C.C. In either case, the cable television company shall cause to be published in a newspaper of general circulation in the municipality, a notice that said ratemaking proceeding has been commenced; that a copy of the schedule of rates will be available for public inspection during normal business hours at the office of the clerk of the municipality and at the commission; and that interested parties may submit written comments to the municipality or the commission, as the case may be, on or before a specified date which shall not be later than the twentieth day after said schedule of rates is filed by the cable television company. Such notice shall be published at least fifteen days before the due date for comments. (d) Promptly upon receipt of said schedule of rates, a municipality that has chosen to undertake rate regulation in accordance with 47 C.F.R. §§ 76.900 et seq. shall schedule a public hearing thereon which hearing shall be held on or before the thirtieth day following the commencement of the ratemaking proceeding. The authority to schedule said hearing may be delegated to the clerk or other municipal official by the municipal legislative body. Notice of such hearing shall be published at least five days before the date of said hearing. In the event that the municipality determines pursuant to 47 C.F.R. § 76.933 to extend the time for review of rates beyond thirty days, it shall provide at !east one additional opportunity for the submission of written comments and schedule an additional public hearing. The costs of publication of all notices shall be borne by the cable television company. (e) When filing or submitting financial information, a cable television company shall certify the accuracy of such information. A cable television company may be required to produce proprietary information provided, however, that procedures analogous to those set forth in 47 C.F.R. § 0.459 regarding requests for confidentiality shall be applied by the municipality or the commission. (f) A determination of rates shall be made at a public meeting and shall be embodied in a written decision whenever such determination (1) disapproves an initial rate; (2) disapproves a request for a rate increase in whole or in part; or (3) approves a request for an increase in whole or in part over the objection of a participant. (g) Every written decision must include at a minimum (1) the date the ratemaking proceeding was commenced; (2) a copy of each public notice described in this section; (3) a list of the participants in the ratemaking proceeding; (4) a complete description of each rate approved or disapproved and the effective date thereof; (5) whether a rate reduction or rate refund is being ordered and, if so, the amount of the reduction or refund; (6) the effective date of the rates approved and the amount of reductions or refunds, if any; and (7) a statement that the decision was made in accordance with applicable federal standards and the regulations contained in this subpart. • (h) Whenever a written decision is issued, copies of the text shall be provided to all participants in the proceeding and shall be made available to the public. Notice of the issuance of a written decision and the availability thereof shall be published in a newspaper of general circulation in the affected municipality. The cable television company shall bear the costs of such notice. (i) In addition to the foregoing, the commission shall not enter an order prescribing any rate unless: (1) it shall have caused a notice of the rates proposed by a cable television company to be served at the commencement of the rate proceeding on each municipality wherein said company provides service and shall have provided each municipality with a reasonable period of time consistent with the applicable federal procedure to file comments on the proposed rates; and (2) in the event it determines pursuant to 47 C.F.R. § 76.933 to extend the time for review of rates beyond thirty days, it shall provide at least one additional opportunity for the submission of written comments by interested parties and may conduct a public hearing; (3) in respect to so much of any rate or charge as shall be based upon franchise fees payable to a municipality or the cost of compliance with public, educational or governmental access requirements or any other requirements set forth in the municipal franchise agreement, it shall have provided the municipality with a reasonable opportunity consistent with time periods applicable to review and comment upon the amount of such fees and costs. Section 592-3.7 Notice of rate increases. A cable television company shall provide written notice to subscribers of any increase in the rates for cable services at least thirty days before any proposed increase is effective. The notice to subscribers should include the name and address of the commission and the municipality. A cable television company shall provide written notice to the commission and the municipality at least fifteen days before it provides such notice to subscribers. Section 592-3.8 Notification of basic service der availability. A cable television company shall provide written notification to subscribers of the availability of basic cable service by November 30, 1993, or three billing cycles from September I, 1993, and to new subscribers at the time of installation. This notification shall include the following information: (a) that a basic service tier is available; (b) the cost per month for the basic service tier; and (c) a list of all services included in the basic service tier. Section 592-3.9 Cable Programming Services. (a) A municipality, the commission, any subscriber or other relevant governmental entity may file with the F.C.C. a complaint challenging the reasonableness of the rates charged by a cable television company for cable programming services or the reasonableness of a charge for installation or rental of equipment used for the receipt of cable programming services. (b) Pursuant to 47 U.S.C. § 76.951(a), any complaint regarding a cable operator's rates for cable programming service or associated equipment must be filed using standard complaint form, FCC 329. The cable television company must provide a copy of the standard complaint form to any subscriber upon request. (c) A copy of any complaint filed by a municipality shall be`served upon the cable television company and the commission. A copy of any complaint filed by the commission shall be served upon the cable television company and the municipality in the same system wherein said company is franchised. A copy of any complaint filed by a subscriber or other relevant governmental entity shall be served promptly upon the commission and the municipality wherein thesubscriber or entity resides. A municipality or the commission,. or,both,of them .may present their views to the F.C.C. on a complaint fled yby a subscriber or other relevant state or local governmental entity.. -.1 93 the . tice king or tion tion sunt ion the I be able the eral any an able rate ice of ents to vide tten ased znce any t, it nity the 'any for e is 'ress 'any y at able s of Vee ime ion: the nay the ing + of rble ent ble 'rm ved any ble aid • or the 'es. rear nt NYS Register/September 29, 1993 Rule Making Activities Text of proposed rule or revised proposed rule, the regulatory impact statement, if any, and the regulatory flexibility analysis, if any, may be obtained from: William F. Huff, Commission on Cable Television, Empire State Plaza, Corning Tower, 21st Fl., Albany, NY 12223., (518) 474-4992 Data, views or arguments may be submitted to: Same as above. Regulatory Impact Statement 1. Statutory Authority: Section 825 of the Executive Law (Article 28) authorizes rate setting by both state and local franchising authorities. Rates may be set initially through negotiation between the affected municipality and cable operator. In the event that these two parties are unable or unwilling to agree upon rates, they may ask the Commission to set rates for them. Section 825(5)(e). The Cable Communications and Consumer Protection Act of 1992 requires franchising authorities to set rates for basic service and equipment (47 U.S.C. Section 543) in accord with standards promulgated by the Federal Communications Commission ("FCC") (47 C.F.R. Section 76.900 et seq.). The FCC's rules permit franchising authorities to regulate basic service rates and equipment charges in accord with rules and regulations promulgated by the FCC in 47 C.F.R. Section 76.900 et seq. These rules require, inter alia, that franchising authorities wishing to regulate rates must seek certification from the FCC. Certification will be granted by the FCC upon a showing that the franchising authority has: the statutory authority to set rates; the resources, including expertise, to set rates; the rules and regulations and procedures either existing or to be adopted in the near future to afford the public an opportunity to participate in the rate setting process. 2. Legislative Objectives: The proposed rule will establish procedures for the respective franchising authorities in respect to rate setting in the context of Section 825 of the Executive law and 47 U.S.C. Section 543. The statutory authority for a dual franchising and rate setting process is well established in New York. The proposed rule clarifies those objectives. 3. Needs and Benefits: The proposed rule will assist municipalities and the state in complying with the FCC requirements for certification. Specifically, the proposed rule effects requirements of federal law and regulations to afford the public an opportunity to participate in the rate setting process. (47 U.S.C. Section 543 and 47 C.F.R. Section 76.900 et seq.) 4. Costs: (a) Costs toregulated entities: The proposed rule imposes requirements for public notification by newspaper of a proceeding for rate approval. In the case of a municipality setting rates, an additional notice of hearing may be required. Costs of at least one newspaper publication and possibly one other notice for public participation may be borne by regulated entities. otherwise, the proposed rule imposes no additional costs upon the regulated entity over and above those already imposed by federal law and rules. (b) Costs to state and local governments: The proposed rule imposes minimal costs upon local governments, as most of the regulatory costs will be incurred at the direction of the FCC pursuant to federal law and rules. Currently, municipalities may set and change rates as an amendment to franchises. The amendment process set forth in 9 NYCRR 592-2 currently requires a public hearing preceded by notice. The proposed rule requires a hearing for those municipalities electing not to regulate rates, however, the hearing need not be scheduled or noticed separately from other municipal meetings thus, imposing little or no additional costs. There will be regulatory costs imposed upon the Commission to conduct hearings and the stenographic services for same. Travel expenses will be incurred to attend local hearings, as well as to conduct Commission hearings. Publication will be required to notice hearings, rate filings and any written decisions rendered by the Commission. Costs associated with these activities will depend upon the number of municipalities electing to ask the Commission to set rates. Newspaper publication may average $7.00 for each notice. The proposed rule requires municipalities to file a notice only when a hearing is'conducted, that is, only when municipalities elect not to set rates. (c) and (d) Estimate of cost and methodology: The proposed rule will impose additional costs upon state and local governments, but exact amounts cannot be determined at this time. Hearing and publication costs imposed by the proposed rule upon local governments and the Commission will depend upon the number of municipalities seeking Commission assistance, municipalities electing not to set rates and those municipalities wherein the Commission determines a hearing is required. This determination, in turn, depends upon whether the cable operator files rate schedules based upon the benchmark approach set forth in the FCC's rules, or attempts to justify rates in excess of the benchmark by a cost of service showing. The need for hearings may also depend upon the involvement of the public in any given municipality. For all these reasons, the Commission is unable to provide an estimate of actual costs to state and local governments. 5. Local Government Mandates: In the event the franchising municipality opts not to set rates in accord with federal law the proposed rule requires the franchising municipality to conduct a hearing. 6. Paperwork: The proposed rule requires the preparation of notice for publication, should the municipality elect not to set rates. otherwise, the proposed rule does not impose reporting requirements. 7. Duplication: The proposed rule mirrors requirements set forth in 47 C.F.R. Section 76.900 et seq. 8. Alternatives: The 47 U.S.C. Section 543 requires regulation of certain rates for cable service in accord with the FCC's rules. Very little flexibility is permitted state and local 'governments and thus, no significant alternatives exist. 9. Federal Standards: The proposed rule exceeds standards set forth in 47 C.F.R: Section 76.900 et seq. by requiring that a franchising authority may determine not to set rates only after a public hearing upon notice. This additional hearing requirement is imposed to comport with the legislative intent of the 1992 Cable Act. Specifically, Congress determined that consumers would be benefitted by local regulation of basic service rates and equipment charges and required public participation in the rate setting' process. Essentially, the decision not to exercise the rate regulation prerogative is a rate setting decision requiring public participation. 10. Compliance Schedule: The FCC has established September 1, 1993 as the effective date for regulation of cable service rates and charges. on or after that date, franchising authorities may begin to seek certification, including the adoption of the proposed rule or rules similar thereto. Regulated persons are required to comply with 47 C.F.R. Section 76.900 et seq. on or after September 1, 1993. The proposed rule would require compliance upon adoption. 11. Comment Period: The last day the agency will accept comments is November 15, 1993. Regulatory Flexibility Analysis 1. Effect on small business: The proposed rule would implement provisions of the FCC's rules at 47 C.F.R. Section 76.900 et seq. The FCC has ordered that until further inquiry and notice, small cable systems will be exempted from the rate regulation rules. The FCC defines a small system as any cable television company serving less than 1,000 subscribers from a single cable television headend facility through mechanically interconnected cable to the subscriber. until such notice, all cable companies exempt pursuant to Section 812(2) of the Executive Law and some larger cable companies, would be exempt from the proposed rule. 2. Compliance requirements: There are no recordkeeping, reporting or other requirements imposed by the proposed rule. 3. Professional services: The proposed rule will not require small businesses to retain professional services. 4. Compliance costs: There are no initial or ongoing compliance costs imposed upon regulated industry by the proposed rule. 5. Minimizing adverse impact: The proposed rule will not impose adverse economic impact upon small businesses. 6. Small business participation: The proposed rule implements mandates of federal law and rules. The Commission reviewed comments of New York cable companies in relevant proceedings before the FCC. In addition, the Commission sought comments of and conducted meetings with representatives of the Cable Television Association of the State of New York, the New York State Conference of Mayors, the Association of Towns and the Government Oversight Committee of the New York State Assembly. DEPARTMENT OF CIVIL SERVICE 5 CITY OF ITHACA 108 EAST GREEN STREET ITHACA, NEW YORK 14850 OFFICE OF CITY ATTORNEY John Fogarty, Esq. Associate General Counsel Time Warner Cable 300 First Stanford Place Stanford, CT 06902-6732 Dear John: August 12, 1993 RE: American Community Cablevision TELEPHONE: (607) 274-6504 FAX: (607) 272-7348 I wrote you on June 26, 1993 regarding the above matter outlining what I thought was the basis of an agreement between the City and Time Warner. In my letter, I attempted to emphasize as strongly as possible that we would need to move very quickly to get this matter in final form so that it could be approved by Council before membership of our Common Council changed. Several weeks have gone by and I have heard nothing back from you. Please contact me as soon as possible to discuss this matter and let me know whether we have an agreement or not. I would like to get this matter resolved in a negotiated manner. However, if Time Warner is not going to agree, the City will have no choice but to pursue litigation. Very tr.y y Guttman Cit % ttorney "An Equal Opportunity Employer with an Affirmative Action Program" ti Recycled Paper Th.-- RECEIVED NOV 12 1992 NEW YORK STATE COMMISSION ON CABLE TELEVISION In the Matter of the Itemization of franchise fees on subscriber's bills 92-468 DOCKET NO. 90389=A NOTICE OF PROPOSED RULEMAKING (Released: November 4, 1992) PLEASE TAKE NOTICE that the Commission proposes to amend Section 590.63 of its rules pertaining to itemized billing statements. The statutory authority for the proposed rule is contained in Sections 811, 815 and 816 of Article 28 of the Executive Law. A copy of the proposed rule is attached hereto. In Docket No. 90389, the Commission issued a Statement of Policy in which it determined that franchise fees cannot be stated as a separate line item on subscriber bills as direct charges on subscribers. (Statement of Policy, In the Matter of Itemization of Franchise Fees on Subscriber Bills, Docket No. 90389, Order No. 92-217, released: April 20, 1992) In reaching its determination, the Commission noted that a franchise fee is merely a component of doing business "similar to other non -sales taxes and business costs" and is fundamentally different from a sales tax. The Commission also observed that while federal law purports to authorize a cable company to inform subscribers of franchise fees and the amount of the fee attributable to an individual bill in statute is not authority for billing the subscriber directly for the amount of the fee attributable to the bill. A complete copy of the Statement of Policy is attached hereto. It appears that some cable companies continue to itemize fees in a manner inconsistent with the Commission's policy statement. Accordingly, the Commission hereby proposes to promulgate a rule which would prohibit such practice. The Commission invites comments from interested parties on the proposed rule. Initial comments in this, proceeding shall be submitted no later than January 4, 1993. Comments in reply to initial comments should be submitted no later than January 18, 1993. All written comments should be submitted. to William Huff, Administrative Officer, NYS Commission on Cable Television, Empire State Plaza, Corning Tower, 21st Floor, Albany, New York 12223. THE COMMISSION ORDERS: That the proposed rule, regulatory impact statement and regulatory flexibility analysis be submitted to the Secretary of State for publication and to other appropriate officials in accord with the State Administrative Procedure Act and the Executive Law. Commissioners Participating: William B. Finneran, Chairman; Theodore E. Mulford, John A. Passidomo, Commissioners. Tower Building • Empire State Plaza • Albany, NY 12223 Appendix A TEXT OF PROPOSED RULE 590.63 Bill format, late charges, collection charges and downgrade charges. (a) Each subscriber bill shall: (1) include the name, address and telephone number of the company and the toll free subscriber assistance telephone number of the commission; (2) shall itemize each category of service and piece of equipment for which a charge is imposed; (3) state the billing period, amount of current billing and appropriate credits or past due balance, if any. (b) Each subscriber bill shall specify a minimum time for payment which shall not be less than 15 days from mailing of the bill. (c) Any late charge permitted by law or by the franchise, if imposed upon the subscriber, shall be itemized on the subscriber's bill, or notice of delinquent payment in cases where coupon books are used. (d) If a late charge is to be imposed, it shall not be imposed sooner than 45 days after the mailing of the bill to the subscriber or the due date, if coupons are used. (e) No cable television company shall impose a collection charge uponany subscriber, except as prescribed in section 590.67(e) of this Part. (f) A cable television company may impose a downgrade charge upon the conditions and in the circumstances as follows: (1) subscribers have been notified of such charge in writing in at least 10 point type; • (2) the charge does not exceed the cost'of the downgrade to the company; (3) the downgrade is from a level of service which the subscriber has not maintained continuously for six (6) months. immediately preceding the date of the downgrade; and (4) the downgrade was not requested by a subscriber affected by a significant programming change or a network change within forty-five (45) days of receipt by the subscriber of the notice. required by section 590.74(b)(4) and (c)(4) of this Part. (g) A subscriber bill shall not include as a separate item added to the charges for cable television services any amount identified as a franchise fee as if such amount constitutes a separate or direct charge imposed upon, and payable by, the subscriber directly. CITY OF ITHACA 1 OB EAST GREEN STREET ITHACA, NEW YORK 14850 OFFICE OF TELEPHONE: 272-1713 CITY ATTORNEY CODE 607 MEMORANDUM TO: FROM: Ra1 . Nash, City Attorney DATE: Jun 23, 1989 RE: Cable Television Franchise Fee Dominick Cafferillo, Controller I have been contacted by a representative of ATC who advised that he believes they are due a credit of certain cable franchise fees paid to the City. As you know, the City agreement provides for a 5% franchise fee. As I was not aware, the company also pays a franchise fee of approximately .4% to the State Cable Commission. I am advised by this representative and Steven Shaye at the State Cable Commission that the state fees must be included in calcu- lating the maximum franchise fee of 5% established by federal law. It appears that ATC has been paying a 5% fee to the City without crediting any payments made to the State. ATC would now like to obtain a credit for amounts paid to the State. It appears that they are entitled to this. RWN:blh cc: Ray Schlather, Chairman of B & A Committee "An Equal Opportunity Employer with an Affirmative Action Program" Ivy W. Parish Controller (303) 649.8021 JUN 2 9 1984 June 26, 1989 Dominic Casserillo City Comptroller City Hall Ithaca, New York 14850 Dear Mr. Casserillo: BENIN/1m ■ ■ r American Television & Communications Corporation A Time Inc. Company National Division 160 Inverness Drive West Suite 300 Englewood, Colorado 80112 (303) 799-9599 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 (,cW . Pa,�,. Ivy W. Parish Controller IWP/djb cc: Tom Fe i ge Lee Glowacki Ralph Nash ,/ Providing entertainment and information choices. 89-031GR CONFIDENTIAL 1aRMOR23LNDUM TO: Cable File FROM: Pat DATE: July 9, 1991 SUBJECT: Meeting with ACC and Attorney On June 12,1991 I.met with John, Fogarty, the attorney for ACC,. Barbara Lukens, the Manager of the. local franchise, Peter Hess of our City Cable Access, Advisory Board,. Loren '. , Access - Coordinator,=.Dave Roberts and Jim Ferwerda; and Tom Terrizzi: of the Cable Commission, to attempt to resolve some:of the •issues which have been creating a problem for administering the cable franchise. The topics we discussed were: designation, the First Amendment,. recordkeeping of the 2% money, auditing, duty to report/rate increases and installation fees,.studio space, not-for-profit administration. of cable franchise, access capital. expense procedure. Designation: :Of the nineaccesschannels promised under the franchise agreement, two are currently on line: Channel 13 (-public access) 'and Channel 53 ('government. access.). A third educational channel_ is beingdiscussed for the fall. There is a lot of impetus from Ithaca College and other educational. facilities to get the channel on line. The costof equipment to "turn: on" any channel runs between $11,000 and $13,000. This figure. covers equipment like. modulators and demodulators neededfor each channel: ACC's position is that the City should be purchasing the "head end" equipment necessary toturn a channelon out of its .2% revenue. The Cable,Commission's position is that New York State Cable Regulations require a franchisee to "designate" new channels and that designation includes the equipment necessary for the. channel to be operative.. After some discussion, ACC proposed that they would pay the entire costofthe equipment necessary to activate a'channel so long as no channel would be activated without demonstrated. need. Need for a channel would be designated when there was sufficient first -run .programming over a one-year .period ..so, that 75% of the available programming time was being occupied. When thatlevel of programming was reached, ACCwouldprovide the equipment to activate -a new channel. ACC also wants a recovery provision. Ukii That is, ACC could recover the channels for other uses if the channel wasused less than 25% and there was a second channel which had a less than 50% use demand. First run programming equals live or recorded programming which is being shown for the first time plus one rerun in any given. year. _ The problems with this proposal are the 75% figure, the limitationscreated by the limited studio space, changing, patterns of demand over a, one-year period and ACC's reluctance to agree that, if the City wanted more channels, it could pay to turn them on itself. The other problem had to do with specificity of equipment to be purchased. Peter Hess provided a list of the equipment necessary to activate.a channel. Barbara Lukens took Peter Hess's copy of the equipment because they could not agree on what.equipment ACC was specifically agreeing to purchase. Barbara Lukens was to get back•to us within a week (by June 19) with a list of specific equipment. At the time of the dictation. of this memo, that has not'occurred. First Amendment: ACC agrees to permit:the Cable Commission to participate"in access regulations having to da with. procedures: for ensuring that protected speech is permitted..We.all agreed that obscenity could be .prohibited. but that profanity. and discrimination .on the basis .of content could not occur.. . ACC is. willing to recognize the City's authority to control programming content and has backed off from its s !'after .ten", policy regarding: profane. speech. Recordkeeping for the 2% money: -It was agreed that the current system,-' that- is,:what is shown in the last quarter's --report for 1990, would be satisfactory. to the -Cable, Commission so.:long as a Cable.Commission member:.could also review invoices.. Auditing: .ACC agreed that there would be..no problem in. requesting the New York State Cable Commission to conduct an audit of the franchise fee reporting. Duty to. report/rate increases and installation charges:- Tom described -the problem of the rate increase.for an installation which occurred in September of 1990. ACC's basic position was that installation rates. are not regulated. by. the agreement or by New York State- regulation,. that installation rates can be.raised and that the raising of installation rates is nota criteria which should negatively.impact:on the renewal of their license. 2 Tom promised to send a letter specifically outlining the problem and ACC agreed to respond when he had outlined the problem. Studio space: The current tenant for the building on West Green Street which could be used for expanded studio space is renting the space for approximately $1,000 per month. That tenant has a lease until 1993 which will be renegotiated in 1992. ACC's position regarding the "promise" of the previous manager to give the space to the Access people is to disagree with exactly what was said or meant. Peter Hess says that there is a tape of the conversation. ACC agreed to consider whether, when the other tenant's lease expires, the Access people could rent the space for additional studios. ACC did not promise to terminate the other tenant's lease. Not-for-profit corporation: ACC indicated that it was willing, in theory, to support a not-for-profit operation as the administrative body for the franchise agreement at the same level of financial commitment currently being extended to the City. Access capital expenditure procedure: I believe that it was agreed that Peter Hess and Tom would prepare a proposal for review of capital expenses and that Barbara Lukens would determine whether she would accept the procedure. Right now the procedure. is that the Cable Commission and Access Advisory Board. can comment on the proposed capital expenses, but that ultimately ACC's management will decide what to buy. Loren agreed to provide Peter Hess and Tom Terrizzi with some statistics on studio space use and the current and past level of first -run programming and reruns for both channels currently being used. Without that information, it is difficult to evaluate the impact of ACC's proposal regarding the purchasing of head end equipment. I think that some serious consideration needs to be given to what. it is that the City would be giving up by agreeing to the "demonstrated need" method of determining when channels should go on line if that means relinquishing the right to purchase the equipment to turn them on. 3 /1 Ir . # , , , a , -�' -- i ---,' , , ,, / .. / , 40 e 0 -- (5/6 ' iff , 5ficir- 1/ if /4 or. k 4 ----frriett-ele;staye_e_ .At C ' Vv.,►--1J- -I _v.o;.Qj. )143- ,,._•• %Ai - -� e, ,(kA� 1+u lit •, , , r , 0 I P II' —P_e_.-Ki_5 Ajw_,_______._.. '-1 eef� g?__a_yd_ daelzc, d CPiiy 7`"rleill , ,v-' . 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NEW YORK 14850 July 9, 1991 John Fogarty, Esq. American Television & Communications Corp. 300 First Stamford Place Stamford, CT 06902-6732 Barbara Lukens General Manager American Community Cablevision 519 W. State Street Ithaca, NY 14850 Re: Followup on Franchise Meeting Dear Barbara and John: TELEPHONE: (607) 274-6504 FAX: (607) 272-7348 I. was just. looking over my notes from our June 12 meeting and they indicate that you were going to get a list to me (within a week of the meeting) outlining which equipment on the list of equipment necessary for head and operation ACC was willing to purchase if we were able to come to an overall agreement on the matters we discussed. I did get a message about two weeks ago from Barbara Lukens' office indicating that a letter was going to be hand delivered on June 24. I haven't received anything yet. Can you tell me where we are on this? Very truly yours, Patricia M. Kennedy Assistant City Attorney cc: Thomas Terrizzi, Chairman, ICC Peter Hess, Chair, CRAB :An Equal Opportunity Emp'oyo, yott, an Allnmativo Action Piogvam' Cir Recycled Paper OFFICE OF CITY ATTORNEY CITY DF ITHL CA 1OB EAST GREEN STREET ITHACA, NEW YORK 14850 ]EMORA141D TM TO: Tom Terrizzi FROM: Pat Kennedy DATE: July 9, 1991 SUBJECT: Cable Commission TELEPHONE: (607) 274-6504 FAX: (607) 272-7348 Attached is a copy of a memo that I got from Chuck after his conversation with Rich Greenburg, Attorney for the Town of Newfield, over the method of collecting ACC's fee. Does any of this sound familiar to you? Give me a call. enc. 'An Equal Opportundy Emp'oyer rnih an Alhrrnadvo AcI on Program for Recycled Paper OFFICE OF CITY ATTORNEY CITY OF ITHACA 108 EAST GREEN STREET ITHACA, NEW YORK 14850 MEMORANDUM IECITMIE MAY 2 21991 MAY 2 2 1991 TO: Patricia M. Kennedy, Assistant City Attorney FROM: Charles Guttman, City Attorney DATE: May 22, 1991 SUBJECT: Cable Commission TELEPHONE: (607) 274-6504 FAX: (607) 272-7348 I spoke with Rich Greenburg, who is the town attorney for the Town of Newfield, he advises me that Newfield like the City of Ithaca has a percentage franchise fee which he believes is five (5) percent in both the Town of Newfield and the City of Ithaca. However, other towns have different franchise fees. For example Danby has a three (3) percent figure. Apparently, ACC is simply adding this on to the bills but they're not doing it across the board. They are adding the five (5) percent back on to the City of Ithaca customers fees and three (3) percent on the fees in the Town of Danby. Greenburg says he has looked into this and it is illegal price discrimination. The situation is actually a little bit worse out in Newfield. The Town of Newfield authorized ACC to pay the franchise fee by giving a rebate to customers. ACC did neither. They didn't bother to add the five (5) percent on nor give the rebate. Greenburg is now arguing and is about to sue ACC for the five (5) percent, saying it has not been paid and has not been rebated. Greenburg tells me he has authority from his Town Board to begin the lawsuit. With regard to the City of Ithaca, if ACC is charging city customers more than they are charging Danby customers, then the City may be able to sue ACC on some type of price discrimination and I believe that a fair amount of money would be involved. It is worth us looking into this and deciding whether we want to sue ACC. "An Equal Opportunity Employer with an Affirmative Action Program" t4 Recycled Paper CITY OF ITHACA 1O8 EAST GREEN STREET ITHACA, NEW YORK 14850 OFFICE OF CITY ATTORNEY June 26, 1.991 Taylor Cushmorc P. O. Box 314 Scarborough, NY 1.0510 Re: Cable Franchise Negotiations Dear Mr. Cushmore: TELEPHONE: (607) 274-6504 FAX: (607) 272-7348 Enclosed with this letter is a copy of the City's Franchise Agreement with American Community Cablevision. You may get some ideas from this document for your negotiations of a cable franchise agreement for Ossining. If you have questions after reading our agreement, I would be happy to answer them. As I said in our phone conversation, Tom Terrizzi of our City Cable Commission, might be even better to discuss practicalities of franchising. You might also obtain a copy of the Cable Commission Regulations. They are in 9 NYCRR Part 589 which is the official compilation of codes, rules and regulations for the State of New York. Best of luck. enc. Very truly yours, Patricia M. Kennedy Assistant City Attorney 4' . "An Equal Opportunity Employer with an Affirmative Action Program" r. :: Recycled Paper CITY OF ITHACA 108 EAST GREEN STREET ITHACA, NEW YORK 14950 OFFICE OF TELEPHONE: (607) 274-6504 CITY ATTORNEY MEMORANDUM TO: Patricia M. Kennedy, Assistant City Attorney FROM: Charles Guttman, City Attorney DATE: May 22, 1991 SUBJECT: Cable Commission FAX: (607) 272-7348 I spoke with Rich Greenburg, who is the town attorney for the Town of Newfield, he advises me that Newfield like the City of Ithaca has a percentage franchise fee which he believes is five (5) percent in both the Town of Newfield and the City of Ithaca. However, other towns have different franchise fees. For example Danby has a three (3) percent figure. Apparently, ACC is simply adding this on to the bills but they're not doing it across the board. They are adding the five (5) percent back on to the City of Ithaca customers fees and three (3) percent on the fees in the Town of Danby. Greenburg says he has looked into this and it is illegal price discrimination. The situation is actually a little bit worse out in Newfield. The Town of Newfield authorized ACC to pay the franchise fee by giving a rebate to customers. ACC did neither. They didn't bother to add the five (5) percent on nor give the rebate. Greenburg is now arguing and is about to sue ACC for the five (5) percent, saying it has not been paid and has not been rebated. Greenburg tells me he has authority from his Town Board to begin the lawsuit. With regard to the City of Ithaca, if ACC is charging city customers more than they are charging Danby customers, then the City may be able to sue ACC on some type of price discrimination and I believe that a fair amount of money would be involved. It is worth us looking into this and deciding whether we want to sue ACC. "An Equal Opportunity Emo oyer :Mt, an Affirmative Action Program" C., Recycled Paper MOSS & BARNETT A PROFESSIONAL ASSOCIATION REGULATION OF SUBSCRIBER SERVICES 1991 NATOA REGIONAL CONFERENCE MAY 16-18, 1991 Presented by: Adrian E. Herbst, Esq. MOSS & BARNETT A Professional Association 4800 Norwest Center 90 So. 7th St. Minneapolis, MN 55402-4119 (612) 347-0448 MOSS & BARNETT A PROFESSIONAL ASSOCIATION Regulation of Subscriber Service CABLE ACT PROVISIONS - The Cable Communications Policy Act U.S.C. 552) provides: of 1984 at Section 632 (47 "Consumer Protection" (a) A Franchising authority may require, as part of a franchise (including a franchise renewal, subject to section 626), provisions for enforcement of - (1) customer servic operator; and (2) construction construction -related operator. e requirements of the cable schedules and requirements of the other cable (b) A franchising authority may enforce any provision, contained in any franchise, relating to requirements described in paragraph (1) or (2) of- subsection (a), to the extent not inconsistent with this title. (c) Nothing in this title shall be construed to prohibit any State or any franchising authority from enacting or enforcing any consumer protection law, to the extent not inconsistent with this title. Thus, a franchising authority can: 1. require customer service requirements of the cable operator in granting or renewing a franchise; 2. enact and enforce consumer protection laws consistent with the Cable Act; and 3. review the operator's customer service performance in judging a renewal application. CABLE INDUSTRY'S CUSTOMER SERVICE STANDARDS On February 19, 1990, in response to heavy criticism from subscribers, newspapers, state and federal legislators and industry executives, the Board of Directors of the National Cable Television Association (NCTA) adopted industry -wide customer service standards. The standards were drafted by a special task force of senior operations executives within the cable television industry. The following is a complete list of those standards. MOSS & BARNETT A PROFESSIONAL ASSOCIATION RECOMMENDED STANDARDS FOR CUSTOMER SERVICE (As adopted by the NCTA Board of Directors on February 14, 1990) 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 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 date. 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, systems will staff telephones for supplemental hours during weekdays and/or weekends. B. 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 process. This standard shall be met no less than 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. (*) In certain smaller cable systems with fewer than 10,000 subscribers, systematic measurement of compliance with some of these standards (e.g., telephone answering time) will not be effective and should not be expected. MOSS & BARNETT A PROFESSIONAL ASSOCIATION 2. Installations. Outages and Service Calls Under normal operating conditions, each of the following four 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. C. 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. 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 B. Bills will be clear, concise and understandable. C. Refund checks will be issued promptly if possible, 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. MOSS & BARNETT A PROFESSIONAL ASSOCIATION HOW DO OPERATORS COMPLY WITH STANDARDS? It is not difficult for cable operators to receive NACTA's "Seal of Good Customer Service". All that is necessary is the completed application as set forth below. APPLICATION FOR THE NACTA SEAL OF GOOD CUSTOMER SERVICE Instructions to General Manager: Please sign and submit this statement to the NCTA Official Representative from your company. If you need to know who this individual is, please call NCTA's Department of Industry Affairs at 202-775-3669. Certificates of Achievement will be issued on a monthly basis. If you would like to order decals and patches, please complete the form at the bottom of the page. NCTA will include an invoice when we ship your order. Instructions to NCTA Official Representative: Please countersign this statement and send it to NCTA, 1724 Massachusetts Avenue NW, Washington D.C. 20036-1969. Attn: Industry Affairs Department STATEMENT (name of cable system) We have achieved and maintained, over the past year, the Recommended Standards for Customer Service. We have also reported our accomplishment to our local franchising authority. With this statement, we are requesting the NCTA Seal of Good Customer Service. We understand that we will need to renew this request on an annual basis.. Signature of General Signature of NCTA Official Manager Representative Date Date System address and phone number: MOSS & BARNETT A PROFESSIONAL ASSOCIATION CABLE INDUSTRY'S TRACK RECORD Cable operators are given an opportunity to apply for "The Seal of Good Customer Service" so long as they: 1. achieve the standards 2. have collected the supporting data to demonstrate that they have been in compliance with the standards for 12 months, and 3. have reported the achievement of the standards to their local government's franchising authority. While this seems like a simple enough process, at the end of February 1991, 121 systems (of nearly 9,600 in the country) representing 31 multiple system operators (MSOs), received certificates. Thus, only one percent (1%) of all cable operators have received NCTA's Seal of Good Service. MONITORING CABLE OPERATORS With respect to regulation of subscriber service issues, one effective way to handle a franchising authority's oversight responsibilities is to include within a Franchise Agreement (usually at time of renewal or transfer) various provisions which will assist in gathering information to ensure quality subscriber services are being provided. Sample franchise provisions include: Monthly Reports. Grantee shall provide to the City copies of its monthly reports provided to the Parent concerning subscriber statistics, when and if such reports are prepared. Quarterly Financial Statements. Grantee shall provide unaudited quarterly financial statements to the City. A. Upon request of the City, Grantee shall meet with the City to review the quarterly financial statements and Grantee's progress towards economic viability. B. Upon request of the City, Grantee shall supplement the quarterly financial statements with a written report summarizing Grantee's activities for the quarter and addressing any specific questions raised by the City. Semi -Annual Repprt5. Grantee shall provide the City with written progress reports every six (6) months concerning compliance with the items referenced in Section , of the Franchise. -5- MOSS & BARNETT A PROFESSIONAL ASSOCIATION Annual Report. Grantee shall submit a report annually, within one hundred and twenty (120) days after the close of Grantee's fiscal year, in a form provided to it by the City. The City shall provide Grantee with this form six (6) months prior to the end of Grantee's fiscal year and it shall contain a description of the information reasonably required to inform the City of Grantee's compliance with the franchise provisions. The information to be provided shall include at a minimum: A. Subscriber statistics for the then prior fiscal year; B. A financial statement; C. Changes in management; D. Changes in ownership; E. Marketing activities; F. Progress in procuring new financing, if applicable; and G. Subscriber and revenue projections for the then next fiscal year. The annual report shall be in addition to all other required reports and is intended to help the City determine Grantee's compliance with the terms and conditions of this Franchise. Business Plan. No later than thirty (30) days prior to the commencement of each of its fiscal years, Grantee shall submit to the City a business plan and any supporting documentation requested by the City for the upcoming fiscal year. The purpose of this business plan shall be to outline the methods by which Grantee intends to comply with all provisions of the franchise. A. The City shall review the plan to assure compliance with requirements of the Franchise. The City shall have thirty (30) days after receipt of the business plan in which to notify Grantee, in writing, of any objection(s) to that plan and the basis of that MOSS & BARNETT A PROFESSIONAL ASSOCIATION objection. B. No reductions shall be made to the letter of credit, franchise fee, line extensions, institutional network, local programming, or the mix, quality or level of services offered by Grantee without advance written approval of the City. C. If the City does not notify Grantee of an objection within the time described in paragraph A above, Grantee may proceed to implement the business plan. D. If the City notifies Grantee of an objection within the time described in paragraph A above, the City and Grantee shall meet in good faith to resolve the objection, and the business plan shall not be implemented by Grantee until the objection(s) is reso].ved to the satisfaction of the parties. Additional Reports. Grantee shall prepare and furnish to the City, at the times and in the form prescribed by the City, such additional reports with respect to its operations, affairs, transactions or property which the City deems necessary. Where possible, the City shall utilize reports that have been already prepared by Grantee. Form of Reports. All reports required of Grantee shall be prepared as follows: A. All financial statements or other financial reports shall be prepared in accordance with generally accepted accounting principles and certified by Grantee's chief financial officer. B. All other reports shall be signed and verified by at least one (1) officer authorized to sign on behalf of Grantee and acknowledged before a Notary Public. Annual Review. Within sixty (60) days after receipt of the annual report, the City shall conduct an annual review of Grantee's performance. A. Grantee shall, as a part of such annual review, establish to the satisfaction of the City that the terms of the Franchise are being complied with. B. Upon a written determination by the City that Grantee has failed to meet the showing required above, the City may require Grantee to enter into good faith negotiations to modify or terminate the Franchise. -7- MOSS & BARNETT A PROFESSIONAL ASSOCIATION ec 54°L6!4_,,,t. u C. In the event Grantee fails to negotiate in good faith, the City may terminate the Franchise. Annual Subscriber Survey. A. No later than June 1 of each year, Grantee shall conduct a survey of its subscribers concerning satisfaction with the programming offered by Grantee and satisfaction with the overall quality of service provided by Grantee. The manner and form of the survey and any questionnaires shall be approved by the City and designed to provide statistically reliable information. B. At least thirty (30) days prior to the survey being conducted, Grantee shall contact the City concerning any specific information which the City would like to ascertain through the survey. Grantee shall make a good faith effort to incorporate any requests from the City into the survey. C. The results of the survey shall be discussed with the City at the next meeting scheduled to discuss quarterly financial statements. The City shall have the right to inspect and review subscriber -returned surveys. EVALUATION OF CABLE OPERATOR'S PERFORMANCE UNDER FRANCHISE PROCESS: (For evaluation of existing franchise to determin possible violations and the need for amendments). 1. Getting Started A. Review requirements of the existing franchise. B. Determine compliance review. - Performance audit - Franchise Fee audit C. Provide preliminary evaluation and examine key subject areas and decide subjects to evaluate and study. D. Develop process and timeline. E. Determine who will do what. F. Decide if engineering service is -needed. G. Possible recovery of costs. -8- MOSS & BARNETT A PROFESSIONAL ASSOCIATION 2. Notice to company. Provide notice to company, which will also include the process and cost reimbursement options. 3. Information Gathering. A. Subscriber surveys. B. Key Community Leader surveys. C. Access User surveys. D. Request for Information to cable operator. 4. EMcucatiQn A. Update Committee on various aspects of cable TV. 1. Legal, Congress bills, FCC rule-making. 2. Technical Fiber optics Channel capacity Interdiction System upgrade capability Institutional and 2 -way Capability Others 3. Program trends 4. Others 5: Public Forum Conduct a forum for information gathering. 6. Preliminary Report A. Complete a Preliminary Report based on information gathering and decide subjects for negotiation with cable operator. B. Determine process for negotiations with cable operator. 7. Negotiation with cable operator 8. Draft documents for City Council approval Based upon completion of negotiations with cable operator, the following ►nay be sul.imi I:t:ecl Lo Lite Ci. Ly Council: -9- MOSS & BARNETT A PROFESSIONAL ASSOCIATION A. A report on the reevaluation process including: 1. the process followed 2. subjects reviewed 3. recommendations B. Franchise Ordinance Amendments. 9. Adoption of report and amendments 10. Acceptance by cable operator MOSS & BARNETT A PROFESSIONAL ASSOCIATION BACKGROUND OF SPEAKER Adrian E. Herbst is a shareholder with the Minneapolis law firm of Moss & Barnett. Adrian has over 25 years of experience in municipal and cable television law, including extensive experience in the development and administration of cable television franchises. Adrian has represented several hundred public entities throughout the 'nation on cable television matters. Moss & Barnett's services to clients has included: * Initial Franchising * Refranchising * Franchise Administration and Enforcement * Transfers of Ownership * Franchise Renewals * Municipal Ownership * Rate Regulation * Litigation * Negotiation * Ordinance Drafting * Non -Profit Access Corporation * Programming Agreements * FCC Compliance * State and Federal Lobbying CABLE COMMUNICATIONS PRACTICE Moss & Barnett, A Professional Association, represents municipalities, joint powers commissions, and nonprofit organizations in the administration and oversight of cable television franchise operations across the country. The firm advises and assists clients on franchise transfers of ownership, franchise renewals, enforcement, and franchise performance evaluations which often lead to beneficial negotiations and/or franchise modifications for the firm's clients. Moss & Barnett is recognized nationally for the ability of its members to creatively negotiate franchise renewals and transfers of ownership based on a thorough investigation and evaluation of cable companies. Moss & Barnett generally advises communities on the impact of the Cable Communications Policy Act of 1984 (the "Cable Act"), on the status of current federal legislation, and on FCC regulations. It recently participated in FCC hearings regarding the impact of the Cable Act. , The firm seeks to continuously update its clients on the ever-changing regulatory climate and its impact on local cable franchise operaLions. 282Z040 -11- ALH SPIEGEL & MCDIARMID 1350 NEW YORK AVENUE. N.W. WASHINGTON. D.C. 20005-4798 TELEPHONE (202) 879-4000 TELECOPIER (202) 879-4001 TELECOPIER (202) 879-4081 CONTROVERSIAL PROGRAMMING AND ACCESS: An Outline of Basic Issues and Approaches Under the First Amendment The National Association of Telecommunications Officers and Advisors Schaumberg, Illinois May 17, 1991 By Joseph Van Eaton and Meg Meiser I. CONTROVERSIAL PROGRAMMING: A SAMPLER A. Lessons from Other Areas -- Controversy and School Textbooks 1. Examples from °Attacks on the Freedom to Learn" published by People For the American Way a. Washington: objections to Life magazine's °History of the Bra° issue; objections to Rollinct Stone magazine because of offensive language, explicit pictures and tobacco and alcohol advertisements. b. Virginia: objections to a proposed sex education program on grounds that it may condone homosexuality and encourage promiscuity by demonstrating the use of birth control devices. c. Georgia: objections to play by Joel Chandler Harris titled "Br'er Rabbit's Big Secret" because references to tar baby would be taken as racial slur. d. Kentucky: objections to use of Faulkner's "As I Lay Dying" for references to abortion and profanity. 2. Examples from history -- Ulysses Examples above illustrate difficulty of attempting to draw a line between what is controversial and what is not, and what is acceptable and what is not. Another good illustration is the debate over James Joyce's Ulysses, originally banned in this country. Often -cited is the 1933 decision by Judge John Woolsey lifting the ban on the book: "[I]n any case where a book is claimed to be obscene it must first be determined, whether the intent with which it was written was what is called...pornographic, -- that is written for the purpose of exploiting obscenity." But in "Ulysses," in spite of its unusual frankness, I do not detect anywhere the leer of the sensualist...reading "Ulysses" in its entirety...did not tend to excite sexual impulses or lustful thoughts..." In 1934, the 2d Circuit Court of Appeals upheld the efforts of the publisher to lift the ban. (United States v. One Book Called "Ulysses," 72 F.2d 705). In dissent, Circuit Judge Manton protested: "Who can doubt the obscenity of this book after a reading of the pages referred to, which are too indecent to add as a footnote to this opinion? "Ulysses is a work of fiction. It may not be compared with books involving medical subjects or description of certain physical or biological facts....[A] work must be condemned if it has a depraving influence....[L]iterature exists for the sake of the people....Art for art's sake is heartless and soon grows artless...art for the people's service is a noble,vital, and permanent element of human life." 3. Examples from other media arts a. Cincinnati decides to prosecute the Contemporary Arts Center for exhibiting "The Perfect Moment," by Robert Mapplethorpe, a show which includes (among other things) sexually graphic photographs. b. In Miami, Broward County sheriffs threaten to prosecute record store owners who sell 2 Live Crew's "As Nasty As They Wanna Be." A federal district judge declares the album obscene. c. The NEA requires artists to sign a pledge that none of the government's money will be used to fund "obscene" art. Joseph Papp, producer of the New York Shakespeare Festival, refuses a $50,000 grant, stating "I can't work under that kind of sword of Damocles." d. The FCC bans indecent programming on broadcast television, twenty-four hours a day. 4. How would your access center respond to the foregoing? o Programming about gay or lesbian lifestyles? What if the discussions included profanity? Graphic discussions about sex? Graphic visual description showing how birth control devices can be used? o A tape which showed the Mapplethorpe exhibit, or which rebroadcast 2 Live Crew's songs? - 3 - o A programmer's refusal to sign a "no obscenity" contract on the ground that it would necessarily stifle speech? B. Controversy and Access Channels 1. Overview. Most public access channels operate in accord with the principle "first come, first served." However, each of the following controversial programming issues have been raised by public officials or access groups -- although the fact that an issue was considered does not mean that programming was censored or that a particular pattern of operation was adopted. 2. Religious programming Can one prevent access channels from becoming the exclusive domain of religious broadcasters? If the community administers a grant program, can grants be given to religious groups in light of the First Amendment prohibition against "establishment" of religion? 3. "Community programming." Can a community restrict programming on access channels to that which is deemed beneficial to the community (e.ct. can access be limited to a "community channel" where content is reviewed by a community board) ? 4. "Hate"Programming. J Can a community prevent hate groups (such as the Klan) from using the access channels? The problem has arisen in several places: a. Pocatello, Idaho: "Race & Reason" tapes submitted for cablecast, including tape in which guest apparently asserted that the AIDS J I am indebted to Robert Purvis of the National Institute Against Prejudice & Violence, Baltimore, Md. for information concerning the communities listed below. The Institute has published a case study of controversial programming on access channels and community responses to that programming. Copies of the study can be obtained from the Institute, 525 W. Redwood St., Baltimore Md. 21201. - 4 - virus is carried by Jews and black people. While programming was not censored, policy was adopted of delaying cablecast until community groups had opportunity to review tapes and prepare a response. b. Cincinnati, Ohio: "Race & Reason" was also shown in Cincinnati, but more controversial was use of the "community bulletin board" by a neo-Nazi group for recruiting purposes. Programming was not censored. A group of community organizations, the Human Rights Commission, the publisher of the local paper and others joined together to develop affirmative methods of responding to the program without censorship. Eventually, group using the bulletin board disbanded, and announcements stopped. c. Austin, Texas: "Race & Reason" set off a wave of controversy in Austin. The community responded by encouraging groups to respond to hate programming with counter -programming. As a result, at least four new programs were developed for the access channel. 5. Obscenity. --often the focus of discussion of controversial programming, but in fact there are very few instances where programmers have sought to use access channels to cablecast programming which is legally obscene, or even arguably obscene. A different issue (illustrated by a recent controversy in Austin) has arisen in some communities where it is claimed that certain programming "corrupts minors" and violates state laws designed to prevent the sale or distribution of material to minors which may be lawfully sold or distributed to adults. C. As discussed below, the only court to consider the issue in depth has concluded a City may not eliminate (or presumably may not censor) access channels in order to silence speakers whom the government finds offensive. Missouri Knights of the Ku Klux Klan v. Kansas City, No. 89 -0067 -CV -W-5 (W.D. Mo. June 15, 1989). The court concluded access channels are fora for speech; that finding suggests speakers may only be subject to content -neutral regulation. In light of this case and other precedent, the best and most practical approach to 5 controversial programming may be to allow the programming to be shown on the same basis any other program is shown. Any attempt to stop controversial programming by shifting all programming to a "community" channel or a "government" channel controlled by the government or a community board faces substantial obstacles. Of course, an action which is illegal under valid state law does not become legal when it is shown on cable; speakers can be prosecuted for breaking the law, but this is not an issue for the access center. What access centers can and should do is to encourage more speech in response to controversial programming. II. SOME BASIC FIRST AMENDMENT PRINCIPLES A. Controversial Speech Is Protected 1. Summary. Controversial speech is protected by the Constitution; attempts to ban speech on the basis of content or because it may offend runs directly afoul of central tenets of First Amendment jurisprudence. 2. Terminiello v. Chicago, 337 U.S. 1, 4-5 (1949) contains a good discussion of the principle. Terminiello addressed a large audience in an auditorium, during the course of which he criticized various political and racial groups. There was a large crowd outside protesting the meeting; the crowd became unruly; Terminiello was arrested for breach of the peace, because his behavior had stirred the crowd to anger. The Supreme Court overturned the conviction, stating "The vitality of civil and political institutions in our society depends on free discussion...[I]t is only through free debate and free exchange of ideas that government remains responsive to the will of the people and peaceful change is effected. Accordingly a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects.... That is why freedom of speech, though not absolute...is nevertheless protected against censorship or punishment, unless shown likely to - 6 - produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest...There is no room in the Constitution for a more restrictive view. For the alternative would lead to standardization of ideas either by legislatures, courts, or dominant political or community groups." B. Caveat 1: some categories of speech are treated as unprotected by the Constitution, and government can take action in response to such speech, assuming it follows appropriate procedures in accordance with carefully drawn statutes. Obscene speech is one example. Speech which presents a "clear and present" danger is another category, but note that in Terminiello the Court did not find that the speaker could be stopped even though his speech stirred immediate public unrest. (Shouting "Fire" in a crowded theatre is an example of speech which presents a "clear and present danger.") See also U.S. v. Kelner, 534 F.2d 1020 (2d Cir.) (upholding conviction and subsequent fine levied on Kelner, a member of JDL, for threatening to assassinate Yasser Arafat on television), cert. denied, 429 U.S. 1022 (1976). In Kelner, at time he made the threat, Kelner was dressed in military fatigues, had a gun in front of him and was surrounded by others similarly appareled. The Court rejected First Amendment defense, noting that Kelner was not merely trafficking in ideas; it found Kelner's statements were an expression of an intent to inflict injury such as to reasonably induce fear in those threatened; there was an apparent determination to carry the threat into execution; and the statements were inherently unrelated to debate and exchange of ideas. The Court suggested threats which are punishable consistent with the First Amendment (absent overt acts aimed at carrying out the threat) are those which "according to their language and context conveyed a gravity of purpose and likelihood of execution so as to constitute speech beyond the pale of protected 'vehement caustic...unpleasantly sharp attacks..." Cf. Rankin v. McPherson, 483 U.S. 378 (1987)(holding that First Amendment protected employee in county constable's office from discharge for stating, after an attempt on Reagan's life that "if they go for him again, I hope they get him.") Brandenburg v. Ohio, 395 U.S. 444 (1969) (overturning conviction of KKK leader who vowed "revengeance" if "suppression" of white race continued). Note these cases involve actions taken after the speaker 7 spoke; stopping speech before it occurs is even more difficult and raises "prior restraint" issues. C. The Categories of Unprotected Expression Are Not Broad, and Efforts To Bring Speech Into Unprotected Categories Because of Offensiveness To Groups In the Community May Not Be Successful. 1. Notwithstanding the First Amendment, a speaker can be sued for libeling another individual; a question arises as to whether a speaker can be sued for libeling a group (a handful of states in fact have "group libel" statutes on the books). In 1951, the Supreme Court upheld the conviction of an individual who distributed "anti -Negro leaflets" in violation of an Illinois law which made it a crime to exhibit in any place a publication. which portrays depravity, criminality, etc. of any class of citizens. Beauharnais v. Illinois, 343 U.S. 250 (1952). However, since Beauharnais, the law of libel has changed dramatically. The Supreme Court has afforded far greater protection to speech which previously might have been classified as libelous in order to ensure that public debate is not chilled. Several courts have questioned the continuing validity of Beauharnais, but the Supreme Court has not directly overturned the case. See, e.a. Collin v. Smith, 578 F.2d 1197 (7th Cir.), cert. denied, 439 U.S. 916 (1978); (where Seventh Circuit protected right of Nazi -type organizations to demonstrate in predominantly Jewish Skokie, Illinois); Toilet v. United States, 485 F.2d 1087 (8th Cir. 1973). 2. Indianapolis adopted an ordinance which made it illegal to publish "pornographic" material, defined as material which, inter alia, presented women as sexual objects who enjoy pain or humiliation. It was argued that such material (which included much, but not only material traditionally classified as obscene) was unlawful as a discriminatory practice against women. The U.S. Court of Appeals for the Seventh Circuit accepted the city's argument that pornography perpetuated cultural values damaging to full and equal participation by women in this society. Nonetheless, the Seventh Circuit found that the ordinance violated the First Amendment, and the Supreme Court affirmed the decision. American Booksellers Ass'n Inc. v. Hudnut, 771 F.2d 323 (7th Cir. 1985) aff'd, 475 U.S. 1001 (1986). - 8 - 3. Note also the following, which involves an individual and not a group: Jerry Falwell sued Larry Flynt for intentional infliction of emotional harm based on Hustler magazine's portrayal of Falwell as a drunk and hypocrite in an ad parody. The Supreme Court held that the First Amendment protected Flynt. "[P]ublic figures and public officials may not recover for the tort of intentional infliction of emotional distress by reason of publications such as the one here at issue" unless the material is also libelous. Hustler Magazine v. Falwell, 108 S. Ct. 876 (1988). 4. These cases obviously raise serious questions as to whether any similar rationales could be used to justify attempts to censor controversial programming on public access channels. D. It Is Extremely Difficult To Establish And Maintain A Lawful System For Determining Whether Speech Is Unprotected. 1. In 1990, the NEA began requiring grantees to sign a certification that grant funds would not be used to produce materials which "in the judgment of the NEA" may be considered obscene. The agency issued a non-binding policy statement which indicated that it intended to apply legal standards established by the Supreme Court in the Miller decision to determine whether a work violated the certification. 2. The requirement was challenged by grantees who refused to sign the certification; in Bella Lewitzkv Dance Foundation v. Frohnmayer, 754 F. Supp. 774 (C.D. Cal. 1991) a federal district court ruled that the requirement was unconstitutional, for three reasons. a. The rule was vague, because it left the determination of what was obscene to the judgment of the NEA. It therefore violated the due process clause of the Fifth Amendment. b. Because it was vague, a grantee could not know what conduct would violate the requirement, and the requirement would have a chilling effect on speech. It therefore violated the First Amendment. c. Miller requires that a state may only pursue prosecutions for dissemination of obscene - 9 - materials if it satisfies three key procedural conditions: a) there must be a statute specifically defining the prohibited conduct; b) there must be a full adversarial trial to determine whether the material is obscene; c) there must be a jury of citizens applying community standards for obscenity. Even setting aside issues of vagueness, the NEA requirement failed to provide all three safeguards. 3. In light of this case, how would a court treat an access rule which required producers to certify that "the production does not contain material which the access center deems obscene," or "the access center need not show any material it deems obscene"? 4. Note that the NEA defended its actions in part on the ground that the requirement represented nothing more than government's decision "not to subsidize...particular expression." The court rejected the claim: "once government moves to subsidize, it cannot do so in a manner that carries with it a level of vagueness that violates the First and Fifth Amendments." The "subsidy" argument has been raised in at least one community as a possible justification for restrictions on speech on access channels. E. Caveat 2: The Scope of the Protection for Speech May Depend To Some Degree on the Nature of the Property Used by the Speaker, and May Also Depend on the Nature of the Medium Used, Among Other Things. In Any Event, Discrimination Based On Hostility To A Speaker's Viewpoint Is Almost Always Prohibited. 1. Can speech which is otherwise protected be banned on cable because of the nature of the medium? a. In FCC v. Pacifica Foundation, 438 U.S. 726 (1978), the Supreme Court held that broadcasting of indecent material could be regulated under certain circumstances because (i) broadcasting has received the most limited First Amendment protection; (ii) the broadcast medium has a uniquely pervasive presence; (iii) indecent broadcast programming assaults the viewer in the viewer's home, where the viewer's right to be left alone outweighs the interests of the speaker; and (iv) - 10 - broadcasting is uniquely accessible to children. This is the decision on which the FCC relies in its current attack on indecency; it is often assumed cable can be treated similarly. b. But, every appeals court which has considered the issue has held that speech on cable cannot be restricted in the same manner as speech on broadcast stations. The Supreme Court summarily affirmed a case to this effect, Jones v. Wilkinson, 800 F.2d 989 (10th Cir. 1986), aff'd, 480 U.S. 926 (1987). See also Cruz v. Ferre, 755 F.2d 1415 (11th Cir. 1985). One can disagree with the distinctions drawn by courts between broadcast and cable, but results thus far are unanimous: indecent programming cannot generally be prohibited on cable. Note also that the prevailing party in Cruz was awarded substantial attorneys fees. 2. Can restrictions on speech be justified based on the purposes to which public access is dedicated? a. The Supreme Court has recognized that, restrictions on speech can be tailored to some degree based on the nature of theproperty used, in order to preserve that property for the purposes for which it was intended. Private parties generally have great latitude to decide who may or may not speak on property they own, subject to government negotiations and unless the property has been dedicated to public use. Even on public property which is not dedicated to speech by tradition (the federal workplace, for example), government may be able to impose restrictions which could not otherwise be imposed. Depending on the nature of the property used, greater latitude may be permitted in allowing government to select the classes of speakers who may have access to a place, and in limiting the topics of speech (in any case, however government - imposed or encouraged restrictions cannot be based on government hostility to the views of a restricted speaker) See, e.g. Cornelius v. NAACP Legal Defense and Educ. Fund, 473 U.S. 788 (1985). b. What are access channels? Only one court, the Kansas City court, has directly addressed the issue. The Kansas City, Missouri City Council eliminated the public access channel in that city to silence the Klan. The City argued on brief that the First Amendment was not implicated, because access channels were not dedicated to speech, but were purely private property. The district court rejected the argument. Rather, the court suggested that if, as alleged, the access channels were open to all and created as a vehicle for expression, then the channels were a "'public forum" for speech. There are good reasons to suppose that other courts will also treat access channels as property dedicated to speech. c. In places which are dedicated to speech, government has only the most limited authority to regulate based on content. In fact, content -based regulations are rarely upheld by the courts. However, government has greater (but still limited) authority to adopt regulations which may affect speech, but which are not directed to the suppression of speech. Government can adopt "time, place and manner" regulations -- regulations which amount to "rules of the road," used to balance the interest of one speaker in using public property against the interests of others in that property. A valid time, place and manner restriction: i) must be content -neutral (that is, not aimed at suppression of any particular idea or viewpoint) ii) must be narrowly tailored to address the problem sought to be resolved; and iii) must leave open adequate alternative channels of communication. See Heffron v. International Society for Krishna Consciousness, 452 U.S. 640 (1981). In United States v. O'Brien, 391 U.S. 367 (1968), the Supreme Court set forth another often -cited test. The Supreme Court stated that a government regulation affecting speech is constitutional if it i) is within the constitutional power of government; ii) furthers an important or substantial government interest; iii) is unrelated to the suppression of free expression; and iv) is no greater than essential to the furtherance of the government interest. - 12 - d. The right to adopt reasonable regulations does not mean that authorities may adopt vague rules designed to give them authority to determine who may use a public facility on a case by case basis. In many cases, the Supreme Court has found unconstitutional regulations which give public officials the right to deny use of a forum in advance of actual expression without narrow, objective, and definite standards to guide the licensing authority. See, e.g., Southeastern Promotions Ltd. v. Conrad, 420 U.S. 546 (1975) (standards for use of municipal auditorium). For other cases dealing with regulation of use of in municipal stadiums and auditoriums, see Calash v. City of Bridgeport, 788 F.2d 80 (2d Cir. 1986); Cinevision Corporation v. Burbank, 745 F.2d 560 (9th Cir. 1984), cert. denied, 471 U.S. 1054 (1985); see also Hubbard Broadcasting, Inc. v. Metropolitan Sports Facilities Commission, 797 F.2d 552 (8th Cir.), cert. denied, 479 U.S. 986 (1986). III. WHERE DOES ACCESS FIT IN? -- ONE POSSIBLE APPROACH. A. Access Channels Should Be Treated As Fora Dedicated To Speech, Subject To Only Limited Regulation. 1. This approach is consistent with the decision of the Kansas City court. As noted above, on the facts before it, the Kansas City court concluded access channels are dedicated to speech and hence are °public fora." Based on that determination, the court went on to determine whether a city could eliminate the forum in order to silence controversial speakers. The court concluded it could not: a state "may only eliminate a...public forum" if it does so for reasons unrelated to the suppression of speech. It follows access channels are only subject to limited time, place and manner regulation. A city which fails to pay heed to Kansas City may face a lawsuit from access users and may be forced to pay damages and attorneys fees if the users prevail. See also discussion in Erie Telecommunications v. City of Erie, 659 F. Supp. 580, 601 (W.D. Pa. 1987), aff'd on other grounds, 853 F.2d 1084 (3d Cir. 1988), suggesting composition and scope of authority of city/cable company appointed access board may be subject to attacks by those denied access to the channels, by those regulated in their use of the - 13 - medium, or by the viewing public, to the extent the channels are managed inconsistent with the First Amendment. 2. Such treatment is consistent with the Cable Communications Policy Act of 1984, which envisioned access channels as "the video equivalent of the speaker's soapbox," which would help ensure cable provides the "widest possible diversity of information sources and services to the public." See Cable Act, 47 U.S.C. §521(4); 1984 U.S. Code Cong. & Admin. News 4665, 4667. 3. Further, in the 1970's, FCC access requirements (since struck down by the courts) provided that access channels must be available on a "first-come, first-served nondiscriminatory basis." B. Recent Cases Suggest Alternative Approaches May Lead To Cable Company Challenges To Access Requirements and the Franchise Process. 1. One case which has been heavily relied on by cable companies challenging franchise requirements is Pacific Gas & Electric Co. v. Public Utilities Commission of California, 475 U.S. 1 (1986). In PG&E, the Supreme Court struck down a utilities commission regulation which required PG&E to allow a designated consumer group to use excess space in billing envelopes to communicate with the utility's customers. The Supreme Court found that the regulation violated the First Amendment because, among other things, the regulation was not content neutral. Under the regulation, access was not provided to the public at large; rather, the regulation discriminated in favor of the viewpoints of speakers selected by the state. Cable companies have argued that it follows that cable access schemes which permit government (or people selected by the government) to choose who can and cannot use channels are unconstitutional. If the companies are correct, attempts to limit controversial programming could endanger access requirements altogether; efforts to create "community channels" or to limit all local programming to a "government" access channel may be particularly subject to challenge. 2. To similar effect are concerns expressed by district court in the Santa Cruz case, Group W Cable v. City of Santa Cruz, 669 F. Supp. 954 (N.D. Cal. 1987). TheSanta Cruz court found - 14 - (incorrectly) that access requirements were unconstitutional. The court based its conclusion in part on its belief that government would be able to control the speech on access channels, and would use that control to criticize the cable operator if the operator attempted to criticize the government. This, the court concluded, was prohibited content control. The decision in Pacific West Cable Company v. City of Sacramento, 672 F. Supp. 1322 (E.D. Cal. 1987) also suggests the potential importance of ensuring access channels are free from even the appearance of government control. In that case, Sacramento attempted to justify its policy of issuing a single franchise on a variety of grounds, including the city's interest in assuring adequate access facilities would be provided to the community. While the jury recognized that government had a substantial interest in promoting access, the jury also found that Sacramento had been motivated to secure access channels by a desire to obtain political support and favor political supporters. The judge relied on this finding in part in rejecting Sacramento's reliance on access interests to justify the franchising process it had followed. (The judge also found that the city's interest in access did not justify issuance of only one franchise, because access requirements could be uniformly imposed on all cable television system operators.) C. Attempts To Review Or Control Speech On Access Channels May Expose Access Managers and Cities To Greater Liability for the Content of Speech Transmitted. 1. In many (and probably most) states, an entity which is required to act as a conduit for the speech of others stands in a different position under the law of defamation than an entity which acts as a publisher, making editorial decisions. See, e.g., Restatement of Torts 2d, §581, §592A. Once access managers (or City Council members) begin to review some tapes for "suitability," they may be assuming greater liability for the content of all programs shown. 2. The Cable Communications Policy Act of 1984 further emphasizes this point. The Act explicitly immunizes the cable operator from liability under the law of libel, slander, obscenity, incitement, invasions of privacy, false or misleading - 15 - advertising, or other laws for programs carried on channels over which the operator has no editorial control. 47 U.S.C. §558. However, cable programmers are potentially liable under such laws, and the legislative` history to the Cable Act notes that cable programmers "include all parties that exercise control over the content of programs." 3. In cases where the access managers actually know a tape contains unlawful material, it may be appropriate to take action -- but there will not be many such cases. D. The foregoing suggests that the answer to the question "what should be done about controversial access programming?" is: show it on the same basis any other program is shown. Encourage counter -programming. The solution to controversial programming is more speech, not less speech. There may be other ways to analyze access and the First Amendment; the approach above is not without its own risks (for example, operators have attacked access on the ground that it forces association with viewpoints. which the operator and its audience find offensive). But, any other approach should be carefully considered, in light of some of the general considerations set forth above and the decision in the Kansas City case. It should be emphasized that the foregoing does not mean access managers or government officials lack authority to adopt reasonable rules for access channel operation. Such rules might include rules designed to protect the non-commercial character of the access channel, to ensure a variety of users have opportunities to use the access facilities and to protect the equipment and facilities from abuse. IV. WHAT CAN (AND SHOULD) YOU DO TO PROTECT ACCESS OPERATIONS? A. Controversial Programming Becomes A Less Important Issue Where the Community Understands Access and Believes It Important -- Make Access Principles Known To the Community Now. B. Act Affirmatively To Promote Counter -programming (But Do Not Provide Services To Some Groups You Are Not Willing To Provide To Others). - 16 - C. Review, Review and Review Your Rules To Eliminate Provisions Which Could Be Read To Allow Unlawful Censorship, and To Establish Clear Guidelines for Operations. -- a good rule of thumb (but only a rule of thumb) may be to ask yourself whether the rule solves a real problem, whether you are willing to apply it across the board (including to yourself) and whether the rule is a sensible solution to the problem, and one which does not place certain users at an undue advantage. OFFICE OF CITY ATTORNEY TO: FROM: DATE: SUBJECT: CITY OF ITHACA 108 EAST GREEN STREET ITHACA, NEW YORK 14850 • MEVIORANDUM Tom Terrizzi Pat Kennedy July 9, 1991 Access Meeting Attached is a copy of my recollections from our 12. Please look them over and see whether they So far as I can determine, nothing has happened meeting. Where do we go from here? TELEPHONE: (607) 274-6504 FAX: (607) 272-7348 meeting on June agree with yours. since the I count on you to circulate this to your colleagues. enc. "An Equal Opportunity Emp over vath an Afhrmatwe Actmn Program" tint Recycled Paper AMERICAN COMMUNITY CABLEVISION December 20, 1991 Mr. Peter Hess, Chairman Access Advisory Board City Hall, 108 E. Green Street Ithaca, NY 14850 Dear Peter: I just watched the tape of your meeting with the Charter and Ordinance Committee, and I'm concerned about the impression that was left with them that access negotiations have been held up by ACC. If my memory serves me, we left the June meeting with 2 expectations: one, that we needed to write a letter to the City stating what equipment was required for transmission of a video channel and 2) that the City would make a recommendation on the point at which additional channels should be activated based on the use of and/or actual cablecasting needs of the community. ACC wrote to the City, however the City has not yet made its recommendation to ACC. In the more recent meeting, which took place without our respective attorneys, you and Tom wanted to agree on what equipment ACC should buy in addition to the equipment purchased with the 2% of revenues dedicated to the purchase of access equipment under the terms of the franchise, but did not want to address the issue of when additional PEG access channels would be activated. I believe you know that my reluctance to add access channels is that I do not believe it is in the interest of customers to have channels which have inadequate programming or no programming content. Channel 13 is programmed less than 50% of the time with original programming. It is not the best use of anyone's money to activate more channels which will not be programmed simply to be able to say they have been activated. In response to your most recent letter, ACC will agree to the following if and only if we can reach agreement on 1) at what point it is appropriate to add a channel or channels and 2) at what point I -Net sites become activated. ACC will pay for a modulator for the activation of an access channel along with racks, 1 "v -a pkg"(video and audio amps) and 1 SVHS playback VTR. This will be paid for out of monies other than the 2% fund. Because ACC has a requirement to provide off-site local 519 West State Street Ithaca, New York 14850 607-272-3456 IE330 origination_. from--tha.-_-fallowing list of places, _ and also because these -sites are on the I -Net, ACC will provide a modulator and a demodulator for each site as it is needed. L/O sites as designated in the franchise agreement City Hall Cornell Ithaca College Tompkins County Library GIAC Ithaca Youth Bureau The Alternative School Boynton Junior High School Ithaca High School There is no requirement for ACC to route programming from one source to a choice of several outputs. Therefore, since the CAAB and Ithaca Cable Commission desire this routing option, equipment needed to accommodate the request will be paid for out of the 2% money. ACC provides weekly routine equipment maintenance and replaces minor individual parts as needed out of repair and maintenance monies. Major equipment refurbishment which requires dismantling of equipment and major parts replacements are paid for out of the 2% fund. The reason for this is that such major refurbishment do extend the life of a piece of equipment and are less costly than equipment replacement. In this way we are able to buy more new equipment each year with the 2% funds. ACC stands on its original proposal which was made at the June 12th meeting regarding the addition of PEG access channels. That position is that existing channels must be utilized 75% of the time with original (defined as first play) programming before an additional PEG access channel would be added. I hope this is acceptable to you. Sincerely, Barbara L. Lukens, <41 4,c) General Manager cc: Lauren Stefanelli BLL/mkk i Members of t e Cable C Peter Hess 131 West Haven R. Ithaca, NY 14850 January 30, 1992 mmission: Chun - Gu -14r it You'll find in this packet a copy of letter to me from Barbara Lukens and a resolution that I *drafted, both of which address the issues of designation of access channels and how transmission equipment for them will be paid for. At the January 28th Cable Access Advisory Board meeting, I advocated a compromise along the lines of what Barbara offered, which would have established limits on the activation of additional access channels in return for an agreement that the money to pay for the transmission equipment would no longer be taken out of the access capital budget. Although I hoped that this would end the wrangling and allow us to get on with other business, it proved not to be a popular compromise. After listening to the comments of Board members and reviewing the documents, I now believe that language of the franchise and the intentions of its authors are so clear that there is no need to negotiate away our right to activate any of the nine guaranteed access channels, and that to do so would be a abrogation of our responsibility to uphold the franchise. The enclosed resolution is the response I believe we need to make to ACC's proposals. I hope that its passage will persuade ACC to accept our interpretation of the franchise. If it does not, the only course I see is to make.a complaint to the State Cable Commission and pursue it through legal channels. Regards, Peter Hess cc: Charles Guttman, City Attorney AMERICAN COMMUNITY CABLEVISION Mr. Peter Hess, -Chairman Access Advisory Board City Hall, 108 E. Green Street Ithaca, NY 14850 Dear Peter: R-40DWIE OEC 3 199I December 20, 1991 I just watched the tape of your meeting with the Charter and Ordinance Committee, and I'm concerned about the impression that was left with them that access negotiations have been held up by ACC. If my memory serves me, we left the June meeting with 2 expectations: one, that we needed to write a letter to the City stating what equipment was required for transmission of a video channel and 2) that. the City would make a recommendation on the point at which additional channels should be activated based on the use of and/or actual cablecasting needs of the community. ACC wrote to the City, however the City has not yet made its recommendation to ACC. In the more recent meeting, which took place without our respective attorneys, you and Tom wanted to agree on what equipment ACC should buy in addition to the equipment purchased with the 2% of revenues dedicated to the purchase of access equipment under. the terms of the franchise, but did not want to address the issue of when additional PEG access channels would be activated. I believe you know that my reluctance to add access channels is that I do not believe it is in the interest of customers to have channels which have inadequate programming or no programming content. Channel 13 is programmed less than 50% of the time with original programming. It is not the best use of anyone's money to activate more channels which will not be programmed simply to be able to say they have been activated. In response to your most recent letter, ACC will agree to the following if and only if we can reach agreement on 1) at what point it is appropriate to add a channelorchannels and 2) at what point I -Net sites become activated. ▪ ACC will pay for a modulator for the activation of an access channel along with racks, 1 "v -a pkg"(video and audio amps) and 1 SVHS playback VTR. This will be paid for out of monies other than the 2% fund. ° • Because ACC has a requirement to provide off-site local 519 West State Street Ithaca, New York 14850 607-272-3456 INN e 330 origination from the --following list of places, and also because, these sites are on the I -Net, ACC will provide a modulator and a demodulator for each site as it is needed. L/O sites as designated in the franchise agreement City Hall Cornell Ithaca College Tompkins County Library GIAC' Ithaca Youth Bureau The Alternative School Boynton Junior High School Ithaca High School ▪ There is no requirement for ACC to route programming from one source to a choice of several outputs. Therefore, since the CAAB and Ithaca Cable Commission desire this routing option, equipment needed to accommodate the request will be paid for out of the 2% money. ▪ ACC provides weekly routine equipment maintenance and replaces minor individual parts as needed out of repair and maintenance monies. Major equipment refurbishment which requires dismantling of equipment and major parts replacements are paid for out of the 2% fund. The reason for this is that such major refurbishment do extend the life of a piece of equipment and are less costly than equipment replacement. In this way we are able to buy more new equipment each year with the 2% funds. ACC stands on its original proposal which was made at the June 12th meeting regarding the addition of PEG access channels. That position is that existing channels must be utilized 75% of the time with original (defined as first play) programming before an additional PEG access channel would be added. I hope this is acceptable to you. Sincerely, Barbara L. Lukens, (41,t& General Manager cc: Lauren Stefanelli BLL/mkk Proposed resolution of the Ithaca Cable Commission The cable franchise adopted by the City Council of Ithaca on June 8th 1988, submitted to the NYSCC on December 20th 1988 and approved by NYSCC on September 12, 1989 contains the following language: 14.1 A. (1) Nine downstream channels shall be designated for public,' governmental, and educational access. The access channels shall be available for use by New York State, local governments, educational institutions, or members of the public for education and public service programming, municipal services and local expression. The City and ACC have been arguing over whether the word designate means "to set aside space in the spectrum" (ACC) or "activate a channel for transmission" (the City). The following language is found in the NYSCC rules "setting minimum standards for the designation and use of channel capacity for public access". Notice of these rules was released on February 24, 1988, and they became effective on September 8, 1988: 595.4 (b) (7) The designation of PEG access facilities shall include the provision by the cable franchisee of the technical ability to playback prerecorded programming and to transmit programming information consistent with the designated use of PEG channels. We have every reason to believe that the drafters of our franchise were familiar with the proposed access rules and the way they construed designation of channels. We must assume that it was the understanding of the signers of the franchise, including ACC, that the franchise required ACC to provide nine activated access channels. After a careful review of the documents pertaining to this matter, it is our opinion that there is no ambiguity in the franchise; that it is incumbent upon ACC provide nine activated access channels as part of its franchise obligations. Therefore, we resolve that the money taken from the access capital budget to activate access channels should be rebated forthwith. Further we resolve, consistent with our prerogatives and our understanding of the needs of the community, that the activation of a second public access channel take place at the earliest reasonable time. y AMERICAN COMMUNITY CABLEVISION January 28, 1992 Ms. Callista Paolangeli City Clerk of Ithaca. City Hall 108 E. Green Street Ithaca, NY 14850 Dear Ms. Paolangeli: Enclosed is a report showing the Gross Revenues of American Community Cablevision for the period from January, 1991 through December, 1991. Should you have any questions, please feel free to call. American Community Cablevision takes great pride in serving the residents of the City of Ithaca. cerely, L Barbara L."Lukens General Manager cc: The Honorable Ben Nichols Mr. Tom Terrizzi, Chair of the Cable Commission 519 West State Street Ithaca, New York 14850 607-272-3456 January 24, 1992 City of Ithaca Ithaca, New York Dear Sir: BM millaWIE ® ■ ■!es American Television & Communications Corporation A Time Warner Inc. Company National Division 160 Inverness Drive West, Suite 300 P.O. Box 6929 (80155-6929) Englewood, Colorado 80112 (303) 799.9599 Below is a report showing Gross Revenues for January, 1991 through December, 1991. The report is in compliance with Section 18.5 (B) of the franchise agreement, approved by the City Council June 8, 1988, with American Community Cablevision. Computation is as follows: Month Gross Revenues January, 1991 $191,232.26 February 196,390.33 March 203,625.01 April 215,138.40 May 214,287.89 June 178,145.22 July 176,457.37 August 164,223.38 September 234,572.25 October 216,909.46 November 211,367.61 December 209,867.86 Total $2,412,217.04 I, Ivy W. Parish, Controller of American Television and Communications Corporation, National Division, certify that the above schedule summarizes the Gross Revenues, as defined in the franchising agreement, for the period indicated for the CATV operations in the City of Ithaca. Signed: (it) • /acts" Ivy . Parish, Controller IWP/jdh Enclosure Providing entertainment and information choices. CITY OF ITHACA 108 EAST GREEN STREET ITHACA. NEW YORK 14850 OFFICE OF CITY ATTORNEY January 24, 1992 Philip S. Winn, Esq. 80 North St. PO Box 622 Dryden, NY 13053-0622 Re: ACC Contract Dear Phil: TELEPHONE: (607) 274-6504 FAX: (607) 272-7348 Enclosed please find a copy .of the City's franchise agreement with. ACC. Are you doing the negotiations yourself? If so, best of luck. If you have questions about this or if I can be of any assistance to you, please give me a call. I have read through the franhise agreement. I am far from an expert on it but may be able to give you some help. In addition, Tom Terrizzi and Peter Hess are members of the Cable Commission. Tom is the managing attorney for Prisoners' Legal Services. They Y also are fairly conversant with the franchise agreement and may be helpful to you in your negotiations with ACC. enc. Very truly yours, Charles Guttman City Attorney 'An Equal Opportunity Employer with an Affirmative Action Program' `/i Recycled Paper 80 NORTH STREET P.O. BOX 622 DRYDEN, NEW YORK 13053-0622 TELEPHONE (607) 844-8271 Charles Guttman, Esq. Ithaca City Attorney City Hall 108 E. Green Street Ithaca, New York 14850 Re: ACC Contract Dear Chuck, PHILIP S. WINN ATTORNEY AND COUNSELOR AT LAW January 21, 1992 109 EAST SENECA STREET ITHACA, NEW YORK 14850 TELEPHONE (607) 273-2900 The Village of Dryden is beginning negotiations with ACC for the renewal of its franchise. Please provide me with a copy of the City's agreement. Thank you. PSW/pl Very truly yours, city of Ithaca Cable Commission 108 E. Green St. Ithaca, NY 14850 January 20, 1992 Congressman Matthew McHugh 2335 Rayburn Office Building Washington, DC 20515-3228 Dear Congressman McHugh, u I am writing on behalf of the City of Ithaca Cable Commission with regard to the pending FCC ruling which would allow regional telephone companies to enter the business of distributing television programming. We favor fostering competition in this market, if it is done in a way that maintains the protections guaranteed by existing federal and state legislation, such as the Cable Act of 1984. From what we understand, the pending ruling does not adequately affirm these protections. The existing legislation governing the cable TV industry wisely provides for local involvement in cable systems. This has been beneficial to our community in the following ways: • As local regulators, the City Cable Commission is readily accessible to citizens who want to be heard, and we understand the unique needs of our community. •The City is empowered to franchise cable operators doing business within its borders, allowing it to negotiate for the community interest in return for the franchise grant. • The City has the authority to collect a franchise fee, which provides about $100,000 annually to the municipal treasury. In addition, cable regulations mandate the establishment of public, governmental, and educational access channels, and our franchise guarantees their financial support. Ourfour access channels have become a vital community resource, carrying city and county meetings, programming produced by local educators and students, and over 40 hours a week of public service, special events, religious, artistic, and "soapbox" programming produced by local citizens. Phone company entry into the cable market is a threat to the benefits cited above, if the phone companies are not held to the same requirements as the cable companies. Should this happen, it is likely that our existing prerogatives will be revoked, as deregulation of the entire industry is instituted to "level the playing field". The work of those who wrote our franchise, set up the mechanisms for local control and regulation of cable, and made access programming an effective local communications medium wouldbe lost, and other communities, of course, would experience similar losses. We hope you will energetically oppose FCC actions that would effectively deregulate the cable industry and circumventing existing legislation. We would appreciate any information that you can provide that would help us better understand these deliberations, and more effectively press our concerns with Congress and the FCC. Sincerely, Peter Hess, Chairperson, City of Ithaca Cable Commission cc: Alfred Sikes and Commissioners, Federal Communications Commission Benjamin Nichols, Mayor, City of Ithaca Dan Hoffman, Chairperson, Charter and Ordinance Committee, City of Ithaca Charles Guttman, City Attorney, City of Ithaca . John Efroymson, Common Council, City of Ithaca Members of the City of Ithaca Cable Commission Susan Herman, President, National Association of Telecommunications Officials and Advisors Steven Shaye, New York State Cable Commission OFFICE OF CITY ATTORNEY CITY OF ITHACA 1OB EAST GREEN STREET ITHACA. NEW YORK 14850 January 15, 1992 Tom Terrizzi c/o Prisoners' Legal Services 102 W. State St. Ithaca, NY 14850 Peter Hess 131 Westhaven Road Ithaca, NY 14850 Dear Peter and Tom: TELEPHONE: (607) 274-6504 FAX: (607) 272-7348 Enclosed please find a copy of a letter I sent to Barbara Lukens. I do not expect that the City will take an active role. in opposing the transfer, but at a minimum, especially if the transfer has already taken place,we at least would have :the ability to play the card that the franchise has been violated by their failure to appropriately obtain our consent to the transfer of controlling interest. In addition, it might be interesting to see what their official position is on subjects such as support for local access, etc. If you can think of any further information you would like me to get from ACC, I think this is an opportune time for us to request that they give us official positions as to their legal, financial, character, technical or other public interest qualifications, etc. The Franchise Agreement specifically states that their failure to provide us with such information is grounds for us to deny the proposed change. If they change ownership despite this, that, I think, would be a breach of the franchise which could give the City some leverage in future negotiations. ACC. enc. I'll let you know what, if any, response we receive from City Attorney 'An Equal Opportunity Employer with an Affirmative Action Program" nisi Recycled Paper OFFICE OF CITY ATTORNEY CITY OF ITHACA 1 OB EAST GREEN STREET ITHACA. NEW YORK 14850 January 15, 1992 'Barbara Lukens American Community Cablevision 519 W. State Street Ithaca, NY 14850 Dear Ms. Lukens: TELEPHONE: (607) 274-6504 FAX: (607) 272-7348 Your letter to the City of Ithaca of December 3, 1991 has been referred to me. In your letter you advise us that Time Warner, Inc., the parent corporation of American Television and Communications Corporation and American Community Cablevision, has recently announced an agreement with Toshiba Corporation and C. Itoh and Co., Ltd. to create a partnership which will own or have an interest in Time Warner's cable television system interests and, in particular, it will become the owner of Time Warner's interest in American Community Cablevision. You go on to state that our franchise agreement with ACC may require the City's approval of this transaction. Inasmuch as Section 23.3 of the franchise agreement provides that prior City authorization is required for every change, transfer or acquisition of control of ACC, I agree that the City's approval may be required. Section 23.3 of the Franchise Agreement provides that the City may inquire into the legal financial character, technical and other public interest qualifications of the prospective controlling party and that ACC shall assist the City in such inquiry. Failure to provide all transfer -related information reasonably requested by the City may be grounds for denial of the proposed change, transfer or acquisition of control. In connection with this, we do have a few questions which we would like answered. In the first place, I would like to know whether the transfer of control has already taken place or is intended to take place. If it has taken place, please advise me as to the date when such transfer took place and the reasons why the City's prior authorization was not requested. If this is a proposed transfer for the future, please advise me as to the date on which (Continued on reverse) "An Equal Opportunity Employer with an Affirmative Action Program" to/ Recycled Paper you would expect the transfer to occur. I would also like to know the "public interest qualifications" of the prospective controlling party. In particular, in connection with this I would like to have a clear statement of the controlling party's position with regard to the importance of local access programming and what support should be given to local access programming; role that the local community and/or the appropriate governmental entity should have in determining which stations are broadcast and into which tiers of service they are placed; and the position that they prospective controlling party has taken with regard to the current congressional investigation into control over cable television. Please get me as much information as you can regarding these matters. Awaiting your. reply, I remain Very truly yours, r - 'Guttman City Attorney cc: Peter Hess, Cable Commission Tom Terrizzi, Cable Commission AC RECEIVED DEC 0519 AMERICAN COMMUNITY CABLEVISION December 3, 1991 Ms. Callista Paolangeli City Clerk of Ithaca City Hall 108 E. Green Street Ithaca, NY 14850 Dear Ms. Paolangeli: - I am pleased to inform you that Time Warner Inc., which is the parent corporation of American Television and Communications Corporation ("ATC") and American Community Cablevision, has recently_ announced an agreement with Toshiba Corporation--and--C.- Itoh & Co., Ltd. to create a unique strategic partnership at the subsidiary level, to be known as Time Warner Entertainment Company, L.P. ("TWE"). The partnership will own, or have an interest in, all of Time Warner's cable television system interests, and will own Time Warner's interest in the Franchisee, as well as Time Warner's filmed entertainment business (Warner Bros. and Lorimar Telepictures) and certain of its cable television programming businesses (such as Home Box Office). Time Warner, through subsidiaries, will be the managing general partner of TWE with full management, operational and creative control over TWE's cable and other businesses. TWE, which will have a total capitalization of $20 billion, will issue 6-1/4 percent limited partnership interests to each of C. Itoh .and Toshiba fortheir investment of $1.billion in TWE. The remaining 87.5 percent of TWE will be owned by Time Warner which will also have a preferred equity interest in the new company which the parties have valued at approximately $5 billion. Time Warner may admit other suitable limited partners to the venture in the future, but on a basis which preserves Time Warner's right to control and manage these businesses. Our new international partners bring impressive size, international influence, prestige and diversity to Time Warner Entertainment. Toshiba is a worldwide leader in the manufacture of integrated high technology electronic and electrical products, including advanced information and telecommunications systems, electronic devices, heavy electrical equipment, consumer and other products. C. Itoh is the world's largest trading group and deals in a broad range of products and services including electronics and communications services. In conjunction with the formation of Time Warner Entertainment, Time Warner has offered to purchase the 18 percent of ATC's Class A publicly traded common stock which it does not presently own. Any such purchase by Time Warner which now.. owns, 82 percent of ATC and has 93 percent voting control of ATC, will 519 West State Street Ithaca, New York 14850 607-272-3456 not result in any change in control of the Franchisee. These transactions will have no effect on the ongoing local management of the cable system serving your community. In fact, we believe that the formation of Time Warner Entertainment will bring added strengths to Time Warner and will assure a stronger, more technologically and creatively innovative and exciting cable television company which can only benefit our customers. Although the day-to-day operations and management control of American Community Cablevision will not change, our franchise agreement may require City of Ithaca's approval to certain aspects of the TWE transaction. If you conclude that such approval is required, I would appreciate the consideration and adoption of the accompanying form of resolution. I,. of course, would appreciate that prompt adoption of such a resolution if you conclude that it is, in fact, necessary. If you have any questions or wish to discuss this matter, I will be happy to meet with you. 5i erely, ?9 eelL Barbara L. Lukens, General Manager Enclosure: Resolution 2 cc: The Honorable. Benjamin Nichols, Mayor Mr. Robert Romanowski Ms. Barbara Blanchard Ms. Susan Cummings Mr. Joseph Daley Mr. John Johnson Mr. Richard Booth Mr. Neil Golder Mt. John Schroeder Post-it'routing request pad 7664 Ms. Carolyn Petersono Mr. Daniel Hoffman— Mr. Tom Terrizzi ROUTING - REQUEST Please I 111 READ To L kVL 1 6- ❑ BLL/mkk ' HANDLE CI APPROVE (1,4%. 6 and ❑ FORWARD ❑ RETURN ❑ KEEP OR DISCARD T/'REVIEW WITH ME Date From LoPINTO, SCHLATHER, SOLOMON & SALK ATTORNEYS AT LAW 200 EAST BUFFALO STREET I'. O. BOX 353 ITHACA. NEW YORK 14851 (607) 273.2202 RAYMOND M. SCHLATHER MARK J. SOLOMON JAMES A. SALK THOMAS D. CRAMER Ms. Barbara Lukens General Manager American Community Cablevision 519 West State Street Ithaca, New York 14850 Re: WILLIAM McCORMICK • Dear Ms. Lukens: October 22, 1991 MICHAEL LoPINTO (1915-1987) MARTIN A. LUSTER. ESQ. OF COUNSEL Please be advised that Bill McCormick has asked me to represent him in connection with his recent suspension of access privileges at Public Access Channel 13. I have reviewed the suspension letter itself dated October 12, 1991, the report of the Ad Hoc Appeals Committee dated October 15, 1991, and the clarifying memo of Lauren Stefanelli dated October 15, 1991. I am also familiar with the Cable Access Rules and the Franchise Agreement. Without getting into the merits of the underlying acts giving rise to the suspension itself, what is most troubling is the scope of the suspension. Specifically, it appears that this suspension chills First Amendment guarantees. Mr. McCormick does not quarrel with ACC's right, in consultation with the Cable Access Board, to impose reasonable building access requirements, and penalties for violation thereof. Indeed, Rule 7 of the Cable 13 Policies and Procedures is entitled, "Rules Within the Access Building". The control of that type of conduct should be distinguished from the control of an individual's right to cablecast materials which either were produced prior to the suspension period or were produced at a facility other than the Access Studio. In other words, access to Channel 13 for cablecasting alone does not involve any contact with the production facility itself, its staff or other volunteers. To the extent that the suspension at bar goes beyond the simple control of Mr. McCormick in the production facility itself and impinges on his right to cablecast, then to that extent these policies and procedures are in violation of the First Amendment. Ms. Barbara Lukens American Community Cablevision Re: William McCormick October 22, 1991 Page 2 Under the circumstances, I respectfully request that the suspension at bar be limited so as to allow Mr. McCormick the right to cablecast and make cablecasting reservations during the period of the suspension itself. It is extremely important that this request be acted upon immediately. Otherwise, the damage to Mr. McCormick, in this highly charged political season, and all of us as citizens of this country, will be substantial. Please advise as to your position immediately. Respec lly yours, RA 0 RMS/seh cc: Mr. Thomas Terrizi, Chairperson City of Ithaca, Cable Commission Mr. Peter Hess Cable Advisory Board Charles Guttman, Esq. City Attorney Ms. Lauren M. Stefanelli Community Access Coordinator Mr. William McCormick 0 CD 3 (D ❑ 0 0 3 3 (D 0 CITY OF ITHACA 1OB EAST GREEN STREET ITHACA, NEW YORK 14850 OFFICE OF CITY ATTORNEY John Fogarty Esq. American Television and Communications Corp. 300 First Stamford P1. Stamford, CT 06902-6732 May 7, 1991 RE: ACC Franchise Agreement Dear Mr. Fogarty, TELEPHONE: (607) 274-6504 FAX: (607) 272-7348 I am writing to follow up on my letter to you of April 8th regarding procedures for handling free speech issues which arise in Cable Access programming, as well as to raise some new issues. First, on the free speech question, I have not heard anything from you since my April 8th letter, although I have heard from some of our cable commission people that Bill McCormick is still being threatened with scheduling changes because of his speech activities. I would like to get together, either on the phone or in person, to come to some agreement on method or procedure for handling speech questions for cable access. As I indicated in my earlier letter, I am particularly troubled by the possibility of a law suit which involves the City. The other question which needs to be resolved is the question of who should pay for putting new access channels on line. The Cable Commission and ACC local management are in sharp disagreement about that question. Chuck Guttman from our office began a dialogue on this issue with Barbara Lukens, ACC's local manager, and your office back in November and December of 1990 and the matter still needs to be resolved. It is the position of the Cable Commission and the City that ACC should be paying for the costs of any head -end equipment necessary for the opening of new channels because such equipment is essential in order for a channel to be "designated" as that term is used in Section 595.4 of New York's Cable Regulations. "An Equal Opportunity Employer with an Affirmative Action Program" till, Recycled Paper In the franchise agreement, ACC agreed to "designate" the channels. Although the franchise agreement, itself, does not define designation, New York State regulations in effect at the time of the franchising agreement establish that: - The designation of PEG access facilities shall include the provision by the cable television franchisee of the technical ability to play back prerecorded programming andto transmit programming information consistent with the designated uses of PEG access channels. 9 NYCRR Section 595.4 (c) (7). The disagreement over who should pay for head -end costs is something which the City and the Cable Commission wish to resolve promptly because of our interest in getting other access and PEG channels on line. As you may have heard, the Cable Commission also has a problem with the method by which ACC has been reporting expenses. It is virtuallyimpossible to determine from the reporting method currently being used, whether any of the expenses should be drawn from the 2% moneys or should be paid independently by ACC. Finally, problems have risen about the size and use of the new studio. The demand for production space is exceeding its capacity. I think that there are enough individual subjects which are going to require resolution that it might make sense for you to take a trip to Ithaca so that we can all sit down at the table and thrash these matters out. I hope to hear from you soon. Very truly yours, 1 lCl A 4CEKt. L. c`-1 (-- Patricia M. Kennedy Assistant City Attorney cc; Tom Terrizzi John Johnson Barbara Lukens c:\wp50\pat\fogarty.let AMERICAN COMMUNITY CABLEVISION October 22, 1991 Ms. Callista Paolangeli City Clerk of Ithaca City Hall 108 E. Green St. Ithaca, NY 14850 Dear Ms.Paolangeli: The purpose of this letter is to notify the municipality of a trial service being offered to ACC's customers. In response to customers who upgrade their cable service to add HBO or Cinemax for a weekend of viewing and then drop the service on Monday, ACC is adding pay-per-view weekends on HBO and Cinemax on a trial basis. By making this a PPV weekend at $4.95, plus applicable franchise fees, customers will be able to add the service from Friday evening at 6:OOpm through Monday morning at 6:OOam. It will require only one phone call, and the customer will be able to order it through the audio response unit rather than needing to talk to a customer service representative to, upgrade their service level. (ACC charges $5.00 for a service upgrade, and there is no charge for a downgrade.) We're simply making it easier for customers to accomplish what they have indicated they want - HBO or Cinemax just for the weekend. We believe that helping customers get what they want is good customer service. These new PPV weekends will be available to customers in the period from November 22 - December 22, 1991. Please feel free to call your ACC "ambassador" if you have any questions about this new service. If it is successful, ACC may continue to provide the service. Sirs, erely, Barbara L. Lukens General Manager cc: Molly Cummings Christopher Doyle John Herrewyn Paula Tarallo BLL/mkk 519 West State Street Ithaca, New York 14850 607-272-3456 OFFICE OF CITY ATTORNEY CITY OF 1171-1ACA 10B EAST GREEN STREET ITHACA, NEW YORK 14850 August 29, 1991 Allen D. Miskell Corporation Counsel City of Lockport Lockport Municipal Building One Locks Plaza Lockport, NY 14094 Dear Mr. Miskell: TELEPHONE: (607) 274-6504 FAX: (607) 272-7348 Your letter to the Ithaca City Clerk of August 22, 1991 regarding Cable Television Franchise has been referred to me. I am enclosing herewith a copy of our Franchise Agreement with American Community Cablevision, a division of American Television and Communications Corporation. Hopefully this will be of use to you. Most of the issues regarding our franchise with the Cable Company have been handled by Assistant City Attorney Pat Kennedy. If you have further questions regarding this, I suggest you contact her directly at the above address. In addition, there is a City of Ithaca Cable Commission of private individuals who meet regularly and oversee cable television issues. This Commission is chaired by Tom Terrizzi, a local attorney. He can be reached during the day at 607-273-2283 or can be contacted at 102 West State Street, Ithaca, NY, 14850. He also may have useful information for you. enc. Very truly yours, i Charles Guttman City Attorney 'An Equal Opportunity Employer Ninth an Affirmative Action Program' to, Recycled Paper CITY OF ITHACA CITY HALL • 108 EAST GREEN STREET • ITHACA, NEW YORK 14850 • PHONE (607) 272-1713 MESSAGE REPLY TO ` '% ��� DATE L M A's DATE/ 2 ye 11 991 j)4_,,e, a-eA- Al ,_ , e„en i ,, , 4_,,,t_, . . U 41 a-,-,. i ,r - z /6- Nt4iL7.4,oa BY Ite u NR73 The Drawing Board, Dallas, J" as 75266-0429 © Wheeler Group, Inc., 1982 INSTRUCTIONS TO SENDER 1. KEEP YELLOW COPY. 2. SEND WHITE AND PINK COPIES INTACT. SIGNED INSTRUCTIONS TO RECEIVER: 1. WRITE REPLY. 2. DETACH STUB, KEEP PINK COPY, RETURN WHITE COPY TO SENDER. Y OF LOCKPORT, NEW `l{K LOCKPORT MUNICIPAL BUILDING ONE LOCKS PLAZA LOCKPORT, N. Y. 14094 ALLEN D. MISKELL Corporation Counsel City Clerk City Hall Ithaca, New York 14851 Dear Sir or Madam: Department of ,Law August 22, 1991 The City of Lockport will be negotiating a new cable television contract in the near future. I have been asked to survey other municipalities to ascertain how certain issues have been addressed in your own contracts. These include: a) The amount and allocation of taxes b) The use or dedication of any revenues received by the municipality c) Requirements for local and_publi.c servicing programming Could you kindly forward copies of your franchise agreements and/or other documents pertaining to these questions at your very earliest convenience. Thank you for your anticipated courtesy. len D. Mi ell Corporation Counsel City of Lockport cc: Richard Mullaney Mayor Rotondo Edward Tracy (716) 439-6665 A. ANGELO DiMILLO Deputy Counsel DAVID R. WENDT Deputy Counsel ACC e4 AMERICAN COMMUNITY CABLEVISION August 12, 1991 Ms. Callista•Paolangeli City Clerk of Ithaca City Hall 108 E. Green St. Ithaca, -NY 14850 Dear Ms.Paolangeli: #11\tib AUG131991 : CITY CLEWS MICE Ithaca, N.Y. . /4/ cU As we review American Community Cablevision's supertier service, (the upper tier of our standard cable service, channels 21-45), we can't help but notice the excellent programming being made available to our customers. The quality mix of programming on these 25 channels is superb. We're proud of our responsiveness to customer requests for new channel additions, especially .those channels that add to the overall diversity of programming that is available only on cable. We have enclosed some information to highlight what is available including brief programming descriptions for each. We have just added another two new channels to the lineup that really enhance the overall product and which respond directly to the wishes of our customers. The two new channels are Mind Extension University (42) and The Monitor Channel (45). Mind Extension University - A diverse educational channel which provides adult education selections from GED preparation, SAT preparation, literacy classes and bachelor degree programs -to an otherwise wide variety of classroom experiences via television. ACC simply provides the television signal and Mind Extension University does the rest. Customers can register via a toll free 800 number and can go to school_ in their own homes. In new channel surveys conducted last August more than half of the respondents stated that they were "very or somewhat interested" in having ACC add ME/U. In addition, nearly a third rated ME/U as one of their top three choices for a new channel. The Monitor Channel - A news and documentary channel, primarily.. It offers regular in-depth news programs, children's programming, gardening, personal finance, updates on what's happening in Congress and more. Additionally, there are specials such as "The Silk Road", a 60 plus week series on the travels of Marco Polo. 519 West State Street Ithaca, New York 14850 607-272-3456 On October 1st we are changing some rates. ACC will initiate a late payment fee of $5 for customers whose accounts are in arrears by sixty days. The fee we charge for checks returned by the bank will be $25. A very small percentage of our customers drive a disproportionately high administrative cost for collections procedures. We owe it to the large majority of our on-time .customers to reduce, and/or cover that collections expense., On October 1st the rate for Supertier will be $9.13 plus the applicable franchise fee.. As stated earlier, our standard customers will receive 44 services including the country's most popular entertainment, news, information, and education based channels. All of this for about 75 cents a day. We will continue to back this value with quality customer service. Sin erely, oc Barbara L. Lukens (/ eiL General Manager enc. BLL/mkk CITY OF ITHACA 1OB EAST GREEN STREET ITHACA, NEW YORK 14850 OFFICE OF TELEPHONE: 272-1713 CITY ATTORNEY April 8, 1991 John Fogarty, Esq. American Television and Communications Corp. 300 First Stamford P1. Stamford, CT 06902-6732 Re: ACC Franchise Agreement and Free Speech, Issues on Cable Access Dear Mr. Fogarty: Since our conversation a few weeks ago about First Amendment issues and cable access, I had a law student do some research for me on the issue. I've attached a copy of the results of his research to this letter. I am informed by Tom' Terrizzi, the Chair of our Cable Commission, that ACC's manager intends to restrict cable access producer Bill McCormick to an evening hour because of his occasional use of indecent or offensive speech during his program which is now broadcast at 6:00 p.m. on Friday evenings. I am concerned that such an approach, if not handled by insuring some kind of due process for Mr. McCormick, may result in litigation which would involve the City. CODE 607 I write this letter to make it clear that if ACC proceeds to unilaterally restrict Mr. McCormick's programming hours because of his speech that ACC is doing so alone and without the support of the City. I would expect, under such circumstances, that, in the event of a lawsuit, ACC would be solely responsible for both defense costs and any damages. I would like the opportunity to discuss this with you and to see if we can reach some agreement as to how this matter should be handled before Mr. McCormick's program is "bumped" by ACC. Very truly yours, Patricia M. Kennedy Assistant City Attorney att. xc: Tom Terrizzi (with enc.) John Johnson (with enc.) Barbara Lukens (with enc.) "An Equal Opportunity Employer with an Affirmative Action Program" NOTES OF DAVE ROBERTS RE: POWER OF AMERICAN COMMUNITY CABLEVISION TO REGULATE SPEECH ON PUBLIC ACCESS CHANNELS THAT IS CONSTITUTIONALLY UNPROTECTED AS INDECENT OR OFFENSIVE BUT IS NOT OBSCENE March 15, 1991 Issue: Can ACC restrict non -obscene yet constitutionally unprotected "indecent" or "offensive" speech on public access channels? Answer: No. Federal and State law forbid ACC from exercising editorial control over public access, educational, or government (PEG) channels. While Federal law allows the franchising authority to include such restrictions in a franchising agreement, State law forbids a municipality from exercising editorial control over public access channels, and ACC's franchise agreement contains no restrictions on public access channels. (Some commentators have challenged the constitutionality of regulation which forces operators to carry programmingwhich might conflict with its own speech. These commentators rely on an analogy of cable systems to newspapers which could not be regulated in this way. But courts have held that cable systems are unlike newspapers because they are a natural monopoly. Public access channels are thus the analogy to a poor man's leaflets. But ACC cannot challenge a prohibition on its control on this ground. They could only seek to invalidate the City's demand for PEG channels.) While Congress sought to promote diversity in the Cable Act, it also sought to restrict constitutionally unprotected speech. In the case of obscenity, this prohibition is absolute. While Federal law allows the franchising authority to include such restrictions in a franchising agreement, State law forbids a municipality from exercising editorial control over public access channels, and ACC's franchise agreement contains no restrictions on public access channels. Finally, the First Amendment may protect the rights of access producers over the rights of offended listeners to privacy. Two arguments support this conclusion. First, subscribers have the right to demand of ACC a lock box to lock out public access channels, if the channels offend. Secondly, courts have generally held that cable tv is distinct from broadcasting. Viewers subscribe to a service and accept the risk that speech in the forum at issue may offend them. They are like newspapers readers and not like radio listeners who enter the 1 r-. scarce radio medium without subscribing to it as a service as justification for government (FCC) regulation. Time, place and manner restrictions on Public Access channels might therefore be unconstitutional even if promulgated by the City of Ithaca through ACC's franchise. Discussion: A New York cable operator has no power to restrict programming on PEG channels. Such control is forbidden by the Cable Communications Policy Act of 19894 47 U.S.C. Section 531(e) which provides: "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." In addition, New York law forbids a cable operator's editorial control. Executive Law Section 829 provides: "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 educational purposes." Title 9, Section 595.4(8) of the New York Code, Rules and Regulations also limits an operator's editorial control. "The cable television franchisee shall not exercise any editorial control over any public, educational or governmental use of channel capacity designated for PEG purposes." The policy behind such limitations is to promote a diversity of opinion on cable systems which an operator's control might diminish. 47 USC Section 559 forbids obscenity on cable television: "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." 2 Congress also empowered franchising authorities to block a cable service it deems to be indecent. 47 USC Section 532(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." Laurence Winer. has noted that this provision is probably unconstitutional as a prior restraint without judicial review. (The Signal Cable Sends, Part II, LV Fordham L. Rev. 459 March 1987). Congress also empowered franchisees and franchising authorities to include limitations in their franchise agreements. 47 USC Section 544(d)(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 be provided subject to conditions, if such cable services are obscene or are otherwise unprotected by the Constitution of the United States." These provisions adopt the vague standard of "constitutionally unprotected" speech, thereby giving local authorities as much control as possible. New York State, in Executive Law Section 829, adopted the same vague standard from the vantage point of the First Amendment. Section 829(1) prohibits regulations which would "interfere with the right of free speech." The protections in Section 829(1)-(3) may also be broader in that they speak of "program or class of programs" as protected, not simply free speech. Executive Law Section 836 limits cable television programs but not for "indecency." The City of Ithaca chose not to limit speech on public access channels in its franchise agreement with ACC. ACC thus .agreed to support public access channels free of restriction except by the Federal prohibition against obscenity and applicable Federal, state and local laws. Congress and the New York Legislature clearly left open this option to franchising authorities like Ithaca. 3 In conclusion, the lock boxes available to sensitive viewers protect their rights. Any regulation of offensive speech might not be constitutional even were it deemed advisable. Conclusion While the constitutional issues are uncertain, the statutory authority is clear. ACC cannot restrict speech on public access channels. Only the City or ACC, through a franchise agreement, could do so. Because the legally mandated lock box resolves the offended viewer's problem, any regulation might be unconstitutional even if the City desired to adopt it. 5 persons, especially those with disabilities, have this information before an emergency arises. (Chapter 85, Laws of 1990) Solid Fuel Burning Devices Assembly bill 7971 (Tonko) would clarify the intended purpose of prior legislation by directing that standards for inspections of solid fuel burning heating appliances, chimneys and flues are to be included within the Uniform Fire and Building Code. (Passed Assembly; died in Senate Housing and Community Development Committee) CABLE TELEVISION Cable Consumer Bill of Rights, A.9288 (Brodsky) The quasi -monopoly position of the cable industry, created by de -regulation through the federal Cable Communications Act of 1984, produced a consistent and rapid increase in the prices charged by cable companies: Cable customer contracts frequently provided that programming changes directly affecting their subscribers could be made without any notice to those subscribers. Moreover,cable companies often failed to keep their subscribers informed with respect to their current rate and programming options. For instance, one cable company made one of its premium channels available to all of its subscribers for one year for the price of its basic cable subscription. Because existing subscribers were not notified about this change and many new subscribers were misinformed, thousands of subscribers paid substantially more than necessary for the cable service. Another example of this problem was the recent dispute between the .Madison Square Garden Network (MSG) and many local cable franchises. Cable operators wanted to switch the Yankee baseball games to a more expensive tier in their cable package; MSG wanted the program to remain part of the basic service. Many subscribers were justifiably upset. A.9288 (Brodsky) - provides cable subscribers in New York State with a number of protections. Unannounced switches from a basic to a more expensive tier of service, or the unannounced removal of a program, can no longer occur under the new law. Cable operators must provide subscribers with at' least 30 days' notice before a significant programming change. In some circumstances, subscriberscan discontinue service and receive a refund on certain charges if programming is changed. 24 The law provides cable customers with the opportunity, at least on a semi-annual basis, to re-evaluate their subscription contracts in light of other rate and programming options that may have developed. Cable customers are now in a position to make purchasing decisions more carefully tailored to their interests and budgets. If an advertised channel or program is cut or increased in price without warning, the customer can terminate service and receive a refund of the installation and sign-up charges. If the customer keeps the service, he or she can receive credit for up to one-third of the basic monthly service charge for up to six months. If cable companies do not respond to a customer's complaint, the customer can now take legal action. Companies violating the provisions of the measure can be fined up to $3,000 per violation, or for every person affected. (Chapter 9, Laws of 1990) INDIAN AFFAIRS Crisis at Akwesasne The Committee has jurisdiction over the State Indian Law and Indian affairs generally. An issue which received a great deal of attention by the Committee was the strife at Akwesasne, also referred to as the St. Regis Mohawk Reservation, which straddles the United States -Canadian border. Escalating tensions over the presence of illegal gambling establishments at Akwesasne led to increasing lawlessness and, ultimately, to the shooting deaths of two Mohawk residents in May of 1990. These killings were the impetus for the New York State Police and their Canadian counterparts to move onto the reservation to restore order. In response to this crisis, the Committee convened hearings, in conjunction with the Assembly Committee on Environmental Conservation and the NYS Black and .Puerto Rican Legislative Caucus, to examine the deep-seated problems at the reservation more fully. The Committee held two hearings: the first near Akwesasne at the Salmon River Central School on July 24, and a subsequent hearing in Albany on August 2. Among the topics addressed during the hearings' were two 1990 Governor's program bills --one dealing with the establishment of an indigenous police force on the reservation (#322), and the other addressing the establishment of a gaming compact between the State and the St. Regis Mohawk Nation (#325). The Committee heard over 27 hours of testimony and received a large number of written statements from a wide range of 25 CITY OF ITHACA TOMPKINS COUNTY ITHACA, NEW YORK 14B50 Barbara Lukens, General Manager American Community Cablevision '519 W. State St. Ithaca, NY 14850 March 26, 1991 Dear Barbara, 'Pa+ TELEPW0NE: AR 2-1713 CODE 007 At the Cable Commission meeting last Tuesday, I was asked to convey to you the recommendation of the Commission and the Cable Access Advisory Board regarding the establishment of a capital spending procedure. I have enclosed a copy of the resolution that was passed by the Commission for you to examine and respond to. At the same meeting, Jim Ferwerda and I were asked to work with you on providing playback capability for channel 53, which could also be used to alleviate the shortage of cablecasting time slots on channel 13. New York State Cable Commission rules state that "the designation of PEG access facilities shall indude the ability to play back pre-recorded programming..." [595.4 (c)(7)]. When Joe Powers showed ACC's head -end facilities to a group from the City and the CAAB which included Jim and me, he said that you already have the necessary equipment to connect playback equipment to the channel 53 modulator. We hope, therefore, that this improvement can be instituted quickly and with a minimum of bureaucratic effort. As current chair of the CAAB, it will be my pleasure to work with you on these and other access matters. I look forward to hearing from you soon. Thank you in advance for your prompt consideration. Sincerely, Peter Hess cc: Cable Commission Members Pat Kennedy John Johnson CITY O F ITHACA TOMPKINS COUNTY ITHACA, NEW YORK 14650 Barbara Lukens, General Manager American Community Cablevision 519 W. State St. Ithaca, NY 14850 March -26,1991 Dear Barbara, 417 IC 1E EWE LAPR 41991 TELE7b1ONE: AR 2-1713 CODE 607 At the Cable Commission meeting last Tuesday, I was asked to convey to you the recommendation of the Commission and the Cable Access Advisory Board regarding the establishment of a capital spending procedure. I have enclosed a copy of the resolution that was passed by the Commission for you to examine and respond to. At the same meeting, Jim Ferwerda and I were asked to work with you on providing playback capability for channel 53, which could also be used to alleviate the shortage of cablecasting time slots on channel 13. New York State Cable Commission rules state that "the designation of PEG access facilities shall indude the ability to play back pre-recorded programming..."[595.4 (c)(7)]. When Joe Powers showed ACC's head -end facilities to a group from the City and the CAAB which included Jim and me, he said that you already have the necessary equipment to connect playback equipment to the channel 53 modulator. We hope, therefore, that this improvement can be instituted quickly and with a minimum of bureaucratic effort. As current chair of the CAAB, it will be my pleasure to work with you on these and other access matters. I look forward to hearing from you soon. Thank you in advance for your prompt consideration. Sincerely, Peter Hess cc: Cable Commission Members Pat Kennedy John Johnson AMERICAN COMMUNITY CABLEVISION April 1, 1991 Peter Hess, Chair, CAAB c/o City of Ithaca 108 East Green Street Ithaca, NY 14850 Dear Peter, I have reviewed the "Procedure and Time Line for Developing a Yearly Capital Spending Plan for Access" and find only two items. with which I cannot agree. On 6b, I would agree to meet with the. two chairmen to work out the differences, however I cannot agree to a majority vote of the three of us as a resolution because you both represent the city's position, essentially. If we cannot reach a consensus agreement, we'll have to move forward on those items not in question and continue to work on those where there are differences. ACC is also not willing to front money which is targeted for access to an account for the purpose of accruing interest which would be spent on more access equipment. The money will remain with ACC's parent company American Television and Communications Corp. until purchase orders are filled and invoices are paid. When ACC made the decision to add channel 53 the purposewas to provide some relief to channel 13's cablecasting scheduling problems for prime time. We took the initiative to invite those we thought would most logically participate in the use of channel 53 to get the ball rolling and to make something happen as quickly as possible. Our efforts were put on hold by the CAAB and the Commission because the NYSCCT's regulations. say that channel 53 should be administered by a community group and not ACC. As a result, all forward motion on channel 53 and the probable addition of channel 54 has come to a stop. Page 2 Peter Hess, Chair, CAAB April 1, 1991 I would propose that you allow ACC to continue to spearhead this, to get it moving forward again, with community participation, and then to drop out of the administration aspect and leave that to a committee somewhere down the road. Our interest here is simply to facilitate the process. If you would prefer that we wait until you have designated an administering body for governmental and educational access we would be happy to do so, but personally I hate to see us lose more time. ACC currently does not have the proper switching equipment to operate the two channels properly, and the channel 13 playback equipment cannot be used to do double duty - channel 13 and channel 53 insertion simultaneously. Without a solution to equipment issues we cannot insert channel 13 programmingonto channel 53. The use of channel 53 for community access programming as a solution to the fact that there is no one leading the effort to set 53 up properly is not a suggestion which I can support. ncerely, G Barbara L. Lukens General Manager cc: Lauren Stefanelli BLL/mkk AMERICAN COMMUNITY CABLEVISION January 8, 1991 Mr. Thomas Terrizzi, Chairman Ithaca Cable Commission City Hall 108 E. Green Street ithaca, NY 14850 Dear Tom: Per our agreement, this letter is to clarify that American Community Cablevision (ACC) will abide by New York State Commission on Cable Television (NYSCCT) regulations as regards the allowance of political endorsements on Public/Educational/Government access. As you are aware, this is prohibited in the franchise contract signed by ACC and the City of Ithaca. Because future readers of this correspondence may not know the entire story here, the contract complied with NYSCCT's rules (in fact was written verbatim from them) when it was written, and the state Commission subsequently changed their position on this issue. ACC is operating in compliance with New York State Commission on Cable Television's Regulations. Sincerely, lly Barbara L. Lukens General Manager (7k ) cc: Charles Guttman, attorney, City of Ithaca Lauren Stefanelli, ACC Access Coordinator ACC legal files Paula Tarallo, ACC BLL/mkk 519 West State Street Ithaca, New York 14850 607-272-3456 AMERICAN COMMUNITY CABLEVISION January 8, 1991 Mr. Thomas Terrizzi, Chairman Ithaca Cable Commission City Hall 108 E. Green Street ithaca, NY 14850 __pear Tom: Per our agreement, this letter is to clarify that American Community Cablevision (ACC) will abide by New York State Commission on Cable Television (NYSCCT) regulations as regards the allowance of political endorsements on Public/Educational/Government access. As you are aware, this is prohibited in the franchise contract signed by ACC and the City of Ithaca. Because future readers of this correspondence may not know the entire story here, the contract complied with NYSCCT's rules (in fact was written verbatim from them) when it was written, and the state Commission subsequently changed their position on this issue. ACC is operating in compliance with New York State Commission on Cable Television's Regulations. Sincerely, Barbara L. Lukens General Manager cc: Charles Guttman, attorney, City of Ithaca Lauren Stefanelli, ACC Access Coordinator ACC legal files Paula Tarallo, ACC BLL/mkk 519 West State Street 0 Ithaca, New York 14850 607-272-3456 CITY OF ITHACA 1OB EAST GREEN STREET ITHACA, NEW YORK 14850 January 4, 1991 Honorable Benjamin Nichols Mayor City of Ithaca City Hall 108 E. Green St. Ithaca, NY 14850 Re: New York State Cable Regulations Dear Ben: TELEPHONE: 272-1713 CODE 607 The work of the TV Cable Commission requires that we routinely refer to the regulations of the New York State Commission on Cable Television. The City Attorney's office does not have the volume of the New York Code of Rules and Regulations that includes the cable regulations. On behalf of the Cable Commission, I ask that you authorize the purchase of that volume. Access to the State cable regulations is vitally important to the Cable Commission's work. I feel that if those regulations were available in the City Attorney's office, we could have been more effective in the discharge of our duties over the past two years. As it stands now, the long time it takes to research questions on cable issues impacts on our ability to resolve problems in a timely fashion. Thank you for your consideration of this request. Sincerely, Tom Terrizzi "An Equal OPt'i+•huvtr n.th a•• Afl,nnat,v^ Acton P ontarn.. C49 ic+foniK.cc CITY OF ITHACA TV CABLE COMMISSION November 10, 1992 7:30 PM City Hall Agenda 1. Call to Order 2. Approval of minutes of October 13,1992 meeting. 3. Chair's report 4. Announcements 5. ACC Report 6. Public Comment 7. Cable Access Advisory Board Report -Meeting schedule: 11/4 govt;11 / 12 ed; 11/23 CAAB 8. Old Business A. Gov't Access - establishment of access committee/ city participation - questions about signal quality - interruption of service due to content - promotion of education and government channels B. Noise ordinance 9. New Business 10. Adjournment 11. Executive session ($) CITY OF ITHACA TV CABLE COMMISSION August 11, 1992 7:30 PM City Hall Agenda 1. Call to Order 2. Approval of minutes of July 14, 1992 meeting, 3. Chair's report 4. Announcements 5. ACC Report 6. Public Comment 7. Cable Access Advisory Board Report . -Amendments to P & P regarding obscene programs -Gov'tAccess - Budgetproceedings - Handicap parking 8. Old business -Status .of ACC compliance with City demands -New I -Net sites -CAAB appointment 9. New Business -Inquiries from nearby municipalities regarding franchise renewals 10. Adjournment