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HomeMy WebLinkAbout1989 Cable Franchise Agreement Information 1%./ 1%./ R�TEO CITY OF ITHACA 100 EAST GREEN STREET ITHACA, NEW YORK 14850 OFFICE of TELEPHONE: 272-1713 CITY ATTORNEY CODE 607 M E M O R A N D U M TO: John C. Gutenberger, Mayor Ben Nichols, Alderman Cia e Commission Members FROM: Ra Nash, City Attorney DATE: January 5, 1989 RE: Enforcement of City Cable Franchise In response to the question raised at last night' s Common Council meeting regarding this issue I have reviewed the Franchise Agreement. Section 24. 9 of this Agreement provides as follows: 24.9 The Mayor or the Cable Commission shall be responsible for the continuing administration of this Franchise. Such designation cannot be changed without prior written notification to ACC. I would note that an Access Advisory Board is provided for under Section 14. 9 of the Franchise Agreement. It should be noted, however, that this Advisory Board "shall review and monitor all access policies and procedures but will remain advisory in nature. " Also, the Cable Commission can act in this Board' s place at any time. The Common Council appears to only become involved in Franchise Agreement administration under the "Breach" sections 22 .1. Here, Common Council makes a determination as to whether a violation of the Franchise occurs after a public hearing and a fact-finding report by an impartial person. RWN:blh cc: Thys Van Cort, Planning Director \/ Resolution of the Common Council Establishing an Advisory Committee on Cable Television The Mayor shall appoint an advisory committee on,cable television. The c6mnittee shall consist of five local residents, three of Whom shall be required to live in the City of Ithaca, and shall include at least one trained accountant and one electronics . engineer. The Mayor shall appoint the five members so that one term shall expire each year, so that one appointment will be made each year after the initial group of five shall be selected. The duties of the committee will be to herir and review citizens' complaints and suggestions regarding cable television service; to advise the Ceracche Television Corporation regarding access to the cable television system by local individuals, groups, and public bodies; and to supervise the preparation of the annual report of the television corporation to the Co=on Council. They shall also make recommenda- tions to the Common Council concerning changes to be incorporated in the future renegotiation of the cable television franchise. Carried -7- February 24, 1975 i Alderman Saccucci commented I only meant to stress only when it deals with a city ;} wide issue. Before I begin to speak, I want to• stress that this is not my feeling, h it is merely the feeling of the people which I represdnt. Aside from the several telephone calls that I,have-received from several local 'f citizens, I also have a petition from some local residents, objecting to the cable rate increase of $5.50 per month, requested by the•Ceiacche Television Corporation. These residents claim, that the present cable .ratd' of 44.50 per month, isnot j even justified to be paid today, since the television corporation has neverproduced 1, the 3 channels previously promised, namely: Buffalo _Scranton and Toronto station but merely supply the .viewers with only repeats iiia Ration duplications. These residents feel, that they have been paying for.services that they have never received, therefore, Mr. Mayor, they are asking the Corporation to provide the public with the above mentioned channels before they can even begin to'..consider any rate increase. May I also add, that the cable rate increase requested by the Ceracche Television Corp. is being asked, when several senior citizens:6f' this ,community, were contem- plating on asking the Corporation, for a special cable 'rate.. Therefore, on their. CC behalf, I am asking the corporation to consider their request, aIn view of this petition, I don't see how Mr. Mayor; I can support the proposed- _ Q resolution (local law) amendment.. Alderman Dennis felt that this should be tabled until the regular March Common Council meeting. He felt everyone should be here to vote on it. By Alderman Dennis: seconded by Alderman Saccucci RESOLVED, That Local Law No. 7 be tabled.until the 'ext regular March Common Council meeting. - - AYES: 8 - Boothroyd, Boronkay, Dennis, Jones, Meyer, Nichols, Saccucci, Spano' NAYS: 1 - Gutenberger ABSENT: 3 - Barber, Hamlin, Slattery Carried By Alderman Nichols: seconded by Alderman Spano Resolution of the Common Council Establishing an Advisory Committee on Cable Television The Mayor shall appoint an advisory committee oni cable television. Tlie committee shall consist of five local residents, three of whom shall be required to live in the City of Ithaca, and shall include at least one trained accountant and one electronics engineer. The Mayor shall appoint the five members so that one term shall expire each year, so that one appointment will be made each year after the initial group of five shall be selected. The duties of the committee will be to hear and review citizens' complaints and suggestions regarding cable television service; to advise the Ceracche Television Corporation regarding access to the cable television system by local individuals, groups, and public bodies; and to supervise the preparation of the annual report of the television corporation to the Common Council. They shall also make recommenda- tions to the Common Council concerning changes to be incorporated in the future renegotiation of the cable television franchise. Carried Alderman Jones asked why the number of people on the committee was five as opposed to seven. Alderman Nichols said_ if a committee is large it is very difficult to have any effective general meetings. This committee would be able to call upon any number of other people for advice and suggestions, a committee of more that 5 would be so unwieldy. On a motion the meeting was adjourned at 5:55 p.m. oseph A. Rundle, City Clerk Edward J. nley, 2+4 or r D R A F T THE CABLE COMMISSION WHEREAS, the City of Ithaca has adopted a Cable Ordinance regulating Cable Communications whichASta @9 the +y� s" grate ate, WHEREAS, the Franchise Agreement between the City of Ithaca and American Community Cablevision states in Section 24.9 "The Mayor or the Cable Commission shall be responsible in the continuing administration of this Franchise", now therefore' be it RESOLVED, That the present "Advisory Committee on Cable Television" established by resolution of Common Council on February 24, 1975 be renamed "The Cable Commission ", and be It further RESOLVED, That the Commission shall consist of five�,members appointed by the Mayor with the approval of Common Council each of whom shall serve a term of five years, the term of one member 944tH expirlkt) each year.!' At the first meeting of each year they Commission shall a Chair and a Secretary ,shall adopt a schedule a' li of monthly meetings. Copies of the minutes of each meeting shall be transmitted to the Mayor and Common Council, and be it further u RESOLVED, That the present members of the Advisory Committee on Cable Television shall be the first members of the Cable Commission *, �r RESOLVED, That the regulatory powers under the Cable Ordinance shall be vested in the Cable Commission except those specificaly delegated to Common Council under the "Breach" Section 22.1 of the Franchise Agreement and the "Determination of Breach" Section 5.8 of the Cable G.-,j CR-B E �- 1 -j V i� * The present .members of the Committee: Term Expires Christopher Heegard 1989 William Demo 1990 Ip Thomas Terrizzi 1991 Janice Fev4wwe+t S t'� b 1992 Richard Herskowitz 1993 �v ����� .� ' :C ✓ � � -0t �z hen., j w�inn .1 5 S rV •� 1 t fi(k ( � 1�I nq 1I t,,, 41^ ,new✓� � e �� c�Rpa/tATEO CITY OF ITHACA 1OEI EAST GREEN STREET ITHACA, NEW YORK 14850 OFFICE OF TELEPHONE: 272-1713 CITY ATTORNEY CODE 607 M E M O R A N D U M TO: Richrash, th, Chairman of Charter and Ordinance FROM: Ral City Attorney DATE: January 19, 1989 RE: Cable Commission Resolution I am herewith enclosing a proposed Resolution on this matter in accordance with Alderman Nicholls suggestions. RWN:blh enclosure "An Equal Oppo,tumtq Em;,'<r�er v than Affirrnative Action Program" RESOLUTION REGARDING CABLE COMMISSION AND ADMINISTRATION OF CABLE FRANCHISE ORDINANCE Whereas, the City of Ithaca did establish by resolution of the Common Council an "Advisory Committee on Cable Television" consisting of five persons on February 24, 1975, which Committee continues to meet and operate under the name of "The Cable Commission," and Whereas, the City of Ithaca has recently entered into a new cable television franchise agreement with American Community Cablevision, which provides in Section 24 . 9 thereof that "the Mayor or the Cable Commission shall be responsible for the con- tinuing administration of this Franchise, " and Whereas, the City of Ithaca has also recently adopted a "Cable Communications Ordinance, " which provides in Section 64. 51 thereof that the authority under said Ordinance "shall be vested in the Common Council or its designee to provide day-to-day administration and enforcement of the provisions of this Ordi- nance and any Franchise granted hereunder, and to carryout the City' s responsibility with regard to cable communication, " and Whereas, Common Council desires to officially rename the "Advisory Committee on Cable Television" and designate it under said Ordinance, now, therefore, it is hereby RESOLVED, that the "Advisory Committee on Cable Television" established by resolution of Common Council on February 24, 1975 is officially renamed "The Cable Commission. " - The Cable Com- mission shall continue to have five voting members, who shall serve five year terms. Present members of the "Advisory Com- mittee on Cable Television" shall continue as members of "The Cable Commission" through the balance of their terms. New members shall be appointed by the Mayor with the approval of Common Council. One member of Common Council, appointed in the same manner, shall also serve as a non-voting member of The Cable Commission. At the first meeting of each year The Cable Com- mission shall elect a Chair and a Secretary and shall adopt a schedule of monthly meetings. Copies of the minutes of each meeting shall be transmitted to the Mayor and Aldermen; and it is further RESOLVED, that the The Cable Commission is hereby designated to provide day-to-day administration and enforcement of the pro- visions of the "Cable Communications Ordinance" and any Franchise granted thereunder, and to carryout the City' s responsibility with regard to cable communications pursuant to Cable Com- munications Ordinance Section 64. 51. OF ITFlq� � C4 ` R •• •°•� FEB 0 2 1989 OAtbO CITY OF ITHACA 1O EAS-T GREEN STREET ITHACA, NEW YORK 14850 OFFICE OF TELEPHONE: 272-1713 MAYOR CODE 607 M E M O R A N D U M TO: Common Council Cable Commission / Ralph Nash, City Attorney 1 FROM: Mayor John C. Gutenberger , DATE: February 1, 1989 RE: City of Oswego - Cable Resolution Enclosed for your information is a resolution passed by the Common Council of the City of Oswego concerning cable television. Enc. . . . Celebrating . . . . * 1888 - 1988 s "An Equal Opportunity Er,t vrth nn A!!nratrv�Ar;tinn Program" CHU of Osfue'so 0' eivego, �Nrfn 1jork 13126 JOHN T. SULLIVAN, JR. (315) 342.5600 MAYOR Ext. 48 January 18 , 1989 U. S. Representative Frank Horton Room 2229, Rayburn Building Washington, D.C. 20515 Dear Congressman Horton: Enclosed please find a copy of the City of Oswego Common Council Resolution passed on January 9, 1989, wherein the Council agreed to support the cable television subscribers' Bill of Rights. The Resolution also calls for the re-regulation of the cable industry and for the amendment of the cable Deregulation Act of 1984. The City of Oswego is currently commencing renegotiation of an expiring ten-year franchise agreement with Paragon Cable. I have appointed a citizens' advisory committee to review the franchise agreement and to obtain citizen input in regard to renewal thereof. It is clear to me that the citizens of Oswego are largely dissatisfied with the quality of their cable television system, and it is extremely difficult, under the cable deregulation statute, to negotiate on such matters as content of the system, number of channels, local access, quality of local origination, and other matters since the federal law allows a virtual monopoly by the cable company, with no authority locally to control either rates, or the number and variety of cable offerings. By this Resolution, the Oswego Common Council joins a growing number of communities who are voicing their displeasure with the current state of affairs, and it is our hope that Congress will take this matter up at the earliest possible moment. Thank you for your understanding. Very rely ypurs i� John T. Sullivan, . Jr•:�. Mayor JTS:jb � Enclosures One hundred fortieth anniversary 1848.1988 Resolution No. 198-i CITY OF OSWEGO,NE6.�ORA Motions, Resolutions and Notices By AldermarL t �. WHEREAS, the Cable Deregulation Act of 1984 removed the rights of P states and municipalities to regulate the rates charged by cable companies, and the channels carried within a franchised area; and WHEREAS, the service provided by the cable company is a public f convenience and necessity like any other utility; and WHEREAS. since deregulation with the merging of cable companies and the vertical and horizontal integration between cable companies and program suppliers a virtual monopoly has been created whereby competing technologies i. are rendered incapable of providing effective competition; and P WHEREAS, citizens and municipalities have historically held the right to y , j regulate and oversee the rates and services of public utility monopolies; j NOW, THEREFORE BE IT RESOLVED, the City of Oswego, New York, supports the proposal for the reregulation of the cable industry and allowing j alternative technologies to .effectively compete to insure the free flow of information we support the Cable Subscriber's Bill of Rights. (see t attachment) The City of Oswego respectfully requests Congressional enactment of legislation which will enable local municipalities to regulate cable companies and allow alternative technologies.to compete effectively. AYES AND NAYS CALLED: AYES NAYS Alderman Mercier 3013 3013 Planning r Recommended by 8 b Develnnmenr j Alderman Bradshaw 1244 1244 Committee Alderman Tesoriero t. 3202 3202 ACvell1878 1878 Halpin Chaimlall Alderman Halpin 2448 1 2448 Alderman Ri io 2512 2512 1 certify that the foregoing resolution was duly passed Alderman Gardner 2248 2248 the Common Council on the 9th ... Alderman Johnson 3248 3248 day of_ TOTAL 191 < < . h Adopted Lost le Approved January 10, 198-2— Ma) JOHN LLIVAN,JIL ` Resolution prepared by Office for the Common Council PAGENO Rev.12157 AJ • �.J N. Y. E3 C. Oswego County Chapter 62 Eisenhower Ave. New York State Cable Awareness Assoc. Oswego, N.Y. 13126 CABLE SUBSCRIBER BILL OF RIGHTS This petition is a CALL OF ACTION to the 101st Congress to re-visit the Cable Dere_ulation Act of 1984 and amend it so as to bring effective competition in and out of cable areas. We believe the cable systems are operating without effective competition and are therefore afforded monopoly status by the Deregulation Act of 1984. We believe that alternative technologies should be. given enhanced status to effectively compete in cable areas. We believe that where a single cable system exists without 25% penetration by alternative technologies (dishes, wireless, pc, smaty telco, etc.) cities should be allowed oversight of the rates, channels, and service in a "public utility status". We believe that where a cable system has public utility status the operator should not have a financial interest either direct or indirect in more than S of the channels selected for the system. We believe that the subscribers 1st Amendment rights are of greater concern than the cable companies therefore all editorials are issues of controversy initiated over the cable by the cable owner or cable industry and are answerable on an equal access basis. We believe that all local broadcast, and C-span 1 and 2 should receive first priority placement on cable channels. We believe that multiple hook-ups to cable by a subscriber in their home should not cause an additional fee (like telephone jacks). We believe that cable programming should be made available on a nondiscriminatory basis to alternative technologies through third party distributors for competitive delivery. We believe that undisclosed gifts of cable programming and services to appointed or elected officials constitutes a bribe and should be illegal. We believe that cable systems operating as "public utility" status must spend a designated percentage of profits to expand their area of services into unserved areas rather than to buy other systems or invest in ownership of channels. We support the Association of States Attorney Generals investigation into antitrust activities by cable and believe this should be investigated by the U.S. Attorney General and the Federal Trade Commission. . r s r — _ ti•C' ApORp7E0� CITY OF ITHACA 106 EAST GREEN STREET ITHACA, NEW YORK 14850 OFFICE OF TELEPHONE: 272-1713 CITY ATTORNEY CODE 607 February 3 , 1989 Kathleen Poole Adamik, Claims Examiner Miscellaneous Professional Liability National Union Fire Insurance Company of Pittsburg, Pa. 70 Pine Street New York, New York 10270 Re: Insured: City of Ithaca Claimant: American Television and Communications Corp. File No. : 027-022366-POL 1991316 Dear Ms. Adamik: I am in receipt of your letter of January 26, 1989, request- ing payment in the amount of $987. 35 for legal fees incurred in this matter. Kindly provide us with a copy of the itemized bill or bills for services rendered and cost incurred so that our Budget and Administration Committee can fully review this request. Thank you for your attention to this matter. Yopph . ryuly, 46t' Ra Nash Ciorney RWN:blh cc: Joseph Spano, Controller Raymond Schlather, Chairman of Budget and Administration Committee "An Equat Opportunity Emplowith an Affirmative Action Program" National Union Fire Insurance Company of Pittsburgh, Pa. EXECUTIVE OFFICES REPLY TO 70 Pine Street P.O. Box 2324 New York, N.Y. 10270 Peck Slip Station 212/770-7000 New York, N.Y. 10272 Direct Dial: 212/770- 3071 January 26, 1989 City of Ithaca 108 East Green Street Ithaca, NY 14850 Attention: Ralph W. Nash, Esq. Re: Insured: City of Ithaca Claimant: American Television and Communications Corp. File No. 027-022366-POL 1991316 Dear Mr. Nash: A Stipulation of Dismissal has been entered in the above-captioned matter. Under the terms of the policy, the insured has a $10,000 deductible which is applicable to indemnity and expense. In accordance with the deductible obligation contained under the policy, we hereby request that you issue a check in the amount of $987.35 payable to National Union Fire Insurance Company for the legal fees incurred in this matter. The mailing address is: Miscellaneous Professional Liability Claims P. 0. Box 2324 Peck Slip Station New York, New York 10272 Attention: Melvin Bittle This letter should be attached to your payment. We appreciate your cooperation and expect to be receiving your payment shortly. Sincerely, Kathleen Poole Adamik Claims Examiner Miscellaneous Professional Liability KPA:gbn-3 0263a A Member Company of American International Group,Inc. 24827 (9/88) HINES & DENTES FEB ATTORNEYS AT LAW 417 NORTH CAYUGA STREET ITHACA,NEW YORK 14850 ROBERT J.HINES AREA CODE 607 GEORGE M.DENTES T73-6111 February 6, 1989 New York State Commission on Cable Television r Attn . : Edward P. Kearse Corning Tower Building Empire State Plaza Albany, New York 12223 Re : American Television & Communications Corporation Approval of Cable Franchise Agreement Dear Mr. Kearse: I am enclosing herewith the original Affdiavit of Publication in the above matter which gives notice that the Franchise Agreement is on file with the Office of the Clerk of the City of Ithaca, as well as the Commission on Cable Television. Would you please advise me if you have all necessary documents for review of the application of American Television & Communications Corp.? Very t3Zj4y yours , ROBERT J 'HINES RJH/v Enc . cc : Ralph Nash , Esq. , City of Ithaca Michael Withiam, Manager of ACC AFFSPAVir cw M*6CATION Tim'' ITuAcA JoTiRNAL �< 1 .;t 1n..... ............................. berg dj% rA-ors, deposes azd Y\1, t..Lt be .resides is Ithaca,, cfunt?' &Dd rate Ibfc-rez.`id and PLEASE TAKE NOTICE, that American Community Cable- thathe it ...Q.tga_ �..�.�...__.._. ..................._......__.�.... Television and Communica- tions Corporation has filed with the New York State Com- Clf'.T= ITiACA *ovzsAL ! b4oi :a .. Dtad.Lad Jlsbed_ mission on Cable Television irc .__._ ] c _eM Tpp- -- application for approval of a cable franchise agreement _ in It�i'a ;Z t1 Of�Ch the a=eXed$a fteL - between Omerican Comm Y . �'Jii nit Cablevision and the Cit - of Ithaca. Copies of the materials constituting the ap COPY wu pablshed ice,said`pap-= ..._.........._.. plication are available for «~ public inspection at the offices of the New York State Com- C_.� aL mission on Cable Television, Corning Tower Building, Em- pire State Plaza,Albany,New; York 12223, and those of thea ,.._._ .................................!_....._.._..._._.._... City Clerk of the City of Ithaca, 108 East Green Street, Ithaca,! New York during normal busi- LLd thm Lie F--st or sa:d notice w&s CD tie ..�...�.__.... ness hours. Comments with respect to the application may be filed with the New York &) of _�C_�c rJ.y �_ .-+ .......... 2CJLi Z.' State Commission on Cable Television. AMERICAN COMMUNITY .. �­_ :.........._...._.�. t State ISION 519 West State Street Ithaca, New York 14850 _ Suba ib� LZL�1V4'c�L to 1=4=r &�lDC,_t�115 ...� ._..._._..----.... December 19,26, 1988 _ JEAN FORD ....�... osa-y Fwl>;c. 7 Notary Public, State Of-New York No. 4654410 Qualified in Tompkins C.:,.,,,t Co' remission expires Maar yr -' o�t�o CITY OF ITHACA 100 EAST GREEN STREET ITHACA, NEW YORK 14850 OFFICE OF TELEPHONE: 272-1713 CITY ATTORNEY CODE 607 CONFIDENTIAL MEMORANDUM TO: Wiriaemo, Chairman of Ithaca Cable Commission FROM: Rah, City Attorney DATE: February 7, 1989 RE: Transformers and Cable Rates Alderman Lytel advises that you are interested in a legal memo regarding ACC' s recent announcement to place television translators on its property and the rate structure adopted in the Franchise agreement. Under Federal law, municipalities can regulate rates for basic cable service only if it is determined that the subject area is one of "non-competition. " Non-competition is initially determined by hypothetical signal coverage. Upon a special proceeding before the FCC "non-competition" can also be established by engineering data establishing lack of received over the air signals consistent with evolving FCC standards. The City of Ithaca is deemed competitive by reference to the hypothetical signal coverage criteria. However, upon production of engineering testing data, ACC did acknowledge before the FCC in a special proceeding that it believed the City to have the right under FCC rules consistent with Federal legislation to regulate rates. Additionally, ACC did agree in the Fran- chise Agreement not to challenge the rate structure provided in the Fran- chise Agreement for a period of three years. The use of translators may change the situation in Ithaca to the extent that three over-the-air signals may become available. Is ACC bound under the Franchise Agreement to the rates therein provided for three years, even if translators are providing three over-the-air signals? It seems clear that under federal statutory and regulatory law, ACC would be free to deviate from the rate structure at anytime that three over-the-air signals are available in Ithaca. It is unclear whether the Franchise Agree- ment would be violated by doing so, since the engineering situation holding at the time of execution of the agreement would have changed. Also it is not clear when a franchise provision can be enforced in contravention of the Federal Cable Act. I do not believe that this precise issue was addressed in contract negotiations. RWN:blh "An Equal Opportunity Emcl aOii;in Affirmative Action Program" FEB c�RpoltATEO`�0 CITY OF ITHACA 108 EAST GREEN STREET ITHACA, NEW YORK 14850 TELEPHONE: 272-1713 COMMON COUNCIL CODE 607 February 22, 1989 Ms. Janet Streb Chair, Ithaca Cable Commission C/O Ciaschi, Dieters-Hagen, Schaufler, E Mickelson Certifed Public Accountants Terrace Hill Ithaca, New York 14850 Dear Janet: At your February meeting, I raised the matter of eligibility requirements for senior citizens for the ACC monthly discount. As it now stands, ACC works with the list of those seniors who have received a city property tax partial exemption. This formula is helpful to those who are property owners but does little for those elderly who are not property owners and of more limited means. Motivated by the fact that the senior citizen discount as agreed upon in our franchise should be more meaningful than it presently is, I have explored other senior discount formulas which I offer for the deliberation of your commission. Margaret Harding, Administrator, Tompkins County Office for the Aging, has provided me with the following information: A) Telephone Company provides a senior citizen discount to those who qualify for HEAP (Home Energy Assistance Program) . Approximately 750 county residents of whom 250 are city dwellers. B) Social Security Administration provides supplemental income assistance (SSI) to needy elderly. Approximately 300 county residents of whom 100 are in the city. C) Medicaid recipients are already beneficiaries of SSI. _ I believe that ACC should be called upon to accept a cable subscriber's participation in HEAP and/or SSI as sufficient qualification for meeting the senior cont'd. . . . . . . . . .. . . . . . . . . . . "An Equal Opportunity Employer with an Affirmative Action Program" -2- citizen discount for monthly cable fees. It is only fair that ACC, as they raise their base rates across the board in March 1989, give a meaningful discount, as agreed in the franchise, to those who are most frail. Thank you for your consideration. Sincerell`y, Sean Kil een Alderman cc: Ithaca Cable Commission Mayor Gutenberger Common Council ACC General Manager Margaret Harding, T.C. Office for the Aging SK:bfp Cable Commission Minutes--February 14, 1989 Present: William Demo, Richard Herskowitz, Tom Terrizi, Chris Heila, Janice Streb, David Lytel representing City Council Call to Order: 7:40p. m. Minutes of 1/10/89 meeting approved. Addition to agenda accepted--public comments to precede and follow ACC report. Acting Chairman's Report Bill Demo discussed letter from Alan Cohen complaining about a noisy transformer box outside his home. Mike Withiam stated that ACC had responded to the complaint, found no problem, and no more complaints had followed. Oswego has passed the "Cable Bill of Rights, " and discussion about a similar resolution to City Council in Ithaca was added to the agenda. Public Comments Bill McCormack asked whether the Commission would meet with Access Advisory Board applicants before selecting members, and the Commissioners replied that they would decide on the basis of the application letters. Bill requested that ACC be cited for breach of the franchise. He also asked the Commission to press ACC to publicize the existence of nine access and nine unaffiliated commercial channels, and its terms for making these available for use. Janice asked that Mike report on the company's procedures. David Lytel asked when government cablecasts would commence. He also asked what the Commission could to to promote knowledge of local origination channels. ACC Report New rates are going into effect March 1. Mike asked the Commission to oppose the proposed application of sales tax on cable service. It will add a 7% fee to consumers, and the Commission should be looking out for their interests. Stage Two of the System Rebuild went into effect the night before. The public access equipment was purchased at lower rates than anticipated, so $3600 remains unused. ACC will hold on to this money and wait to see what is needed after the equipment arrives. The new access facility is on schedule. The temporary studio opened on February 1. Physical construction will continue through March. On the local origination channels: Ithaca College and the Tompkins County Library have been invited to move to these channels, but are not yet interested. On government coverage: the portable switcher has not yet arrived to permit acceptable coverage. Mike claimed that ACC had till June 1 to comply, but David Lytel questioned whether an extension had been granted by Council past March 1. The Commissioners and Mike Withiam discussed the itemization of the franchise fee on the bill, which Chris felt created bad will towards the city, but could not be prevented. Janice asked for the ACC report agenda in advance, and Mike agreed, asking also for suggestions as to what he should address. Mike said that there was no rate structure for purchasing use of the commercial LO channels, but that ACC will negotiate this. The company generally offers time on Channel 7 to interested parties. The Commission discussed the resolution opposing sales tax on cable. Bill McCormack thought that premium channels only should be taxed. Public Comments Ben Nichols asked that ACC speed up its access studio construction. Bill McCormack stated that the mention of the franchise fee in the bill was a spiteful and gratuitous act, and Council should have been warned. Consumers should be made aware of the market value of the land the city has given to ACC for stretching cables. Sean Killeen asked about the new rate schedule and the senior citizen discount. Mike explained that the 279 people listed by the city as senior citizens would receive notification of this discount. In discussion, the Commission felt that many senior citizens, particularly renters, are falling through the cracks. This problem will be added to the March agenda, and a new method of determining senior citizen status, to be administered by the city, should produce a new list, which Mike agreed that ACC would abide by. John Efroymson raised the issue of why there is no discount for those who own their own cable box. In the franchise, ACC agreed people could own a box, but now give them no discount. Chris Heila said there was not much the Commission could do. In response to Bill McCormack's question about the absence of a dated equipment order list, Mike said that the orders were placed two weeks earlier, preceded by a bidding process. Mike will provide copies of the invoices to the Commission. Selection of Committee Chairperson and Vice-Chairperson Janice Streb was unanimously elected chair, and Bill Demo Vice- Chair of the Cable Commission. The secretarial position will rotate among the members of the Commission. Selection of Access Advisory Board Members INSTITITUTIONAL REPRESENTATIVE: Marilyn Rivchin, Cornell University. Louis Mezgar, Tompkins County Public Library. The Commission unanimously approved these two nominees for institutional representative. Mike Withiam objected that Marilyn Rivchin does not represent Cornell University. Richard Herskowitz pointed out that she is a video production lecturer at Cornell, and that the position did not require an officially-appointed representative. NON-CITY REPRESENTATIVE: Anne Sevocco, Newfield. Anne was unanimously selected. The other candidate was Robin Palmer of Cayuga Heights. CITY REPRESENTATIVES: Mary Jo Dudley and John Efroymson. Mary Jo Dudley received 5 votes, John Efroymson received 4 votes, and Bill McCormack received 1 vote. The other candidate was Floyd Johnson. CITY GOVERNMENT REPRESENTATIVE: Richard Herskowitz, Cable Commission. A non-voting member, Richard was also unanimously voted as chairman of the Access Board. Mike Withiam objected that it was inappropriate for an "ex officio" member to be a chairman, but Ben Nichols stated that it was Council 's intention to have the Commission representative serve as Chair, in order for it to have more clout. Richard promised that the board would meet in three weeks. It was suggested that the meeting be in the access facility and cablecast. Cable Bill of Rights Deferred to next meeting. Status of Public Access Studios The issue discussed was whether ACC was in violation of the franchise with its new temporary studio. Tom Terrizi called the space "inadequate. " John Efroymson said it was not a studio, but just a room. There is no space to move cameras and for sufficient lighting. Richard Herskowitz said that having the director and switcher in the same small room created an impossibly sloppy situation for cablecasting. Mary Jo Dudley, Jim Ferwerda, and Bill McCormack all shared this view. Bill stated that since December 5 there had not been a studio under the terms of the franchise, which represented a serious breach. Mike restated his expectation that the new studio would be completed by late April. The hiring of a third access employee was discussed, and Mike stated his opinion that the deadline was shifted to June 1, with which David disagreed. Chris reminded the Commission that it had cited ACC for being in violation of the franchise in early January, but had decided not to take action in order to observe developments with the access studio in later months. Now that the temporary studio was in operation, the issue was: is this a studio, and, if not, should action now be taken? The Commission unanimously voted the following resolution : The Cable Commission finds ACC to be in violation of the franchise agreement for failure to proide adequate public access facilities under Section 22. 2 of the franchise. ACC will receive a notice of the violation from the City Attorney and will have 30 days to correct it. Commissioners also stated that if a new access person was not hired by March 1, a franchise violation will be cited for this as well. Mike said that the deadline was extended to June 1, and so Ralph Nash will be consulted. Sales Tax Issue Chris suggested that we pass this issue to the Council without a recommendation. Richard Herskowitz thought that if we wished to support a notion of cable as a public service, we should keep it tax-exempt. Bill McCormack agreed, but believed that premium services could still be taxed. The Commission voted not to make a recommendation to Council--3 in favor, 1 opposed, and 1 abstaining. WAER Reception Bill Demo asked why WAER was no longer available, and Mike explained that it was difficult to receive. The meeting was adjourned. Com. y.PA0 all Apol�A?ED CITY OF ITHACA 10B EAST GREEN STREET ITHACA, NEW YORK 14850 OFFICE OF TELEPHONE: 272-1713 CITY ATTORNEY CODE 607 February 24, 1989 Michael Withiam, General Manager American Community Cablevision 519 West State Street Ithaca, New York 14850 Re: Public Access Facilities Dear Mike: Pursuant to the resolution of the Ithaca Cable Commission adopted at its February 14, 1989 meeting, I am hereby formally notifying you that the Cable Commission finds American Community Cablevision to be in violation of the franchise agreement for failure to provide adequate public access facilities pursuant to S 22. 2 of the franchise agreement. The basis for this finding is the determination that the current temporary access "studio" is not a satisfactory studio for public access. I am further advising you that you have thirty ( 30) days from the receipt of this notice to correct this violation. If this violation is not corrected in thirty days, the City will proceed to collect liquidated damages as provided for under § 22 . 2 of the franchise agreement. Thank you for your attention to this matter. Yours very truly Ra ph Nash City A torney RWN:blh cc: Bill Demo, Cable Commission Chairman An Equal Opportunity Ern p! Affirmative Action Proaram" CABLE COMMISSION MEETING MAR U 8 1989 Tuesday, March 14, 1989, 7;30 p.m. , Common Council Chambers _ s Mar _il 14� 1'74 '71 __ _ �_ Ji�7uli !1i i .7;'1"r,. 9 n .1_ v.._ L .� 1 ._ _ .J ._ �r it w .'. •_1 1 L iTl C'= L i 1 1 IJ L �. Ap-r :. i minutes �p_i :=gnu - -f: - i==N-f-;� AC:'.= r ep cIr t 6. F'ub i i 1_ c comment s 7. AI_cess Advisory Board Report S. Senior- citizens disccaants Converter box and remote control ownership 10. Other business 1 1 . I;d.jc iur nrrent 0-c By Alderperson Nichols: Seconded by Alderperson Killeen WHEREAS, the Cable Deregulation Act of 1984 removed (with limited exceptions) the rights of municipalities to regulate the rates and services of cable companies, and WHEREAS, cable companies are attempting to subvert even the limited exceptions provided under the Act, and WHEREAS, the services provided by the cable company is a public convenience and necessity like other utilities, and WHEREAS, once franchised most cable companies are effectively monopolies, operating without effective competition, and WHEREAS, municipalities have historically held the right to regulate and oversee the rates and services of public utility monopolies; now, therefore, be it RESOLVED, That Common Council of the City of Ithaca, New York urges Congressional action to restore the right of a municipality to regulate the rates and services of a cable system where such a system exists without 25% penetration by another cable company or alternative technologies, and be it further RESOLVED, That copies of this resolution be transmitted to Representative McHugh and Senators D'Amato and Moynihan. Ayes (9) - Schlather, Killeen, Johnson, Booth, Lytel, Cummings, Peterson, Hoffman, Nichols Abstention (1) - Romanowski (conflict of interest) Carried CORRECTION in 5th WHEREAS: Municipalities changed to "Public Service Commission" ~+ � Access Advisory Board Members 2 . D Marilyn Rivchin Institutional Access User Center for Performing Arts 430 College Ave Ithaca, New York 254-2700 2' ) Lajos Mezgar institutional Access User 102 Park Lane ithaca, New York 272-6066 (H) 272-4555 (W) 3' ) Anne Sevccco aka Annie Ball Non Cit/ Membsr #52 Meaddowbrook Park Newfield, New York 14867 273-8851 . 4' ) John Efroymson City Residont Member � 420 N. Cayuga Street � Ithaca, New York 14850 | � 272-1034 � � 5. ) Mary jo Dudley . City Resident Member � / 312 First Street Ithaca, New York 14850 8 273-5255 - G. ) Richa-i Herskowitz Cable Commission Member ACC C � � ' f � . ' � � : ' ?, cc: Cable Commis-:-ln � Thys Van Com Director of Planning AC ' Ralph Nash, City AttornWCEIVED MAR 20 1989 AMERICAN COMMUNITY CABLEVISION March 17 , 1989 Mr. John Gutenberger, Mayor City of Ithaca 108 E. Green Street Ithaca, NY 14850 Dear. John: You may have read the news last week that Time Inc. plans to merge with Warner Communications Inc. Time Inc. is the majority stockholder of American Television and Communications Corp. (ATC) , and, as .you know American Community Cablevision is an ATC system. Warner will become a wholly-owned subsidiary of Time, which will then be known as Time Warner Inc. I am pleased to share this news with you because it is an exciting development for us for a number of reasons . First of all , the new company will have great financial strengths , since, unlike many recent business combinations , the Time/Warner alliance is a friendly merger in which no new debt will be created. In addition, Warner is the country' s pre-eminent producer of films and television programming, which will add a considerable creative resource to our parent company. This will result in a stronger ACC which will continue to provide the highest quality entertainment and information services to our community. I can assure you that Time Inc. ' s interest in ATC as well as ATC' s interest in ACC will not be affected by the merger. No change will occur in the ownership of the cable franchise, which will continue to be held by ATC. Neither will there be any change in ACC management because of the merger. Though no formal action under our franchise is required as a result of the merger, I wanted to be sure you were aware of it. I'm certain you will share our enthusiasm over this news , which we believe is exciting both for ACC and the people we serve. I would be happy to answer any questions you may have. Sincerely, Michael M. Withiam General Manager 519 West State Street Ithaca,New York 14850 607-272-3456 CITY OF ITHACA 10B EAST GREEN STREET ITHACA, NEW YORK 14850 OFFICE OF TELEPHONE: 272-1713 CITY ATTORNEY CODE 607 CONFIDENTIAL MEMORANDUM TO: Janice Fornwalt, Chairman of City Cable Commission FROM: Ral sh, City Attorney DATE: March 24, 1989 RE: Public Access Facilities I have reviewed the response made by Mike Withiam to my letter of February 24, 1989. I think it makes sense to particularize the deficiencies in the current access facilities. Do you have such a particularized list? RWN:blh f "An Equal Opportunity Employer with an Affirmative Action Program" ACC u JM AR a 2 1989 AMERICAN COMMUNITY CABLEVISION March 20 , 1989 Mr. Ralph Nash, City Attorney City of Ithaca 108 E. Green St. Ithaca, NY 14850 RE: Public Access Facilities Dear Ralph: This letter is in response to your February 24 , 1989 communication notifying American Community Cablevision that the City of Ithaca Cable Commission finds ACC in violation of section 22. 2 of the franchise agreement. According to your letter the City finds that we are in violation because the current temporary access studio is not a satisfactory studio for public access . We do not believe that our temporary access studio is inadequate , and therefore we do not believe we are in violation of our franchise. Further, we cannot possibly respond to such a broad finding and hereby request that the City provide ACC with a list of specific areas of concern. We will address these issues once that list is received. ACC continues to be on schedule for an April 30th completion of our studio renovations and the installation of the equipment called for in our franchise agreement. We have made every possible effort to minimize the impact of construction on daily operations of the access facility. This date was communicated to the Cable Commission at the December meeting, as were our plans for using a temporary access facility. It is important to note also that studio productions have continued throughout the period of renovation of our access facility. While we readily acknowledge that the current facility is not as elaborate or as easy to use as the old facility was or 519 West State Street Ithaca, New York 14850 607-272-3456 the new facility will be, production of programs has nonetheless continued on a regular basis , through no small effort on the part of our staff and the generally cooperative attitude of the facility users. Should you have any other questions or concerns , please let me know. nce , is ae M. ithiam General Manager MMW/fw cc: Janice Fornwalt, Chair Ithaca Cable Commission MAR 1 6 198y ACC AMERICAN COMMUNITY CABLEVISION March 13 , 1989 Mr. Ralph Nash, City Attorney City of Ithaca 108 E. Green St . Ithaca, NY 14850 Dear Ralph: I wanted to give you a quick update on the status of the implementation of the senior citizen' s discount . The implementation of a computer billed senior citizen' s discount was scheduled for March 1 , 1989. Unfortunatley, a programming error resulted in the discount not being credited to senior citizens for March. We have corrected that error and the billing will start with the April bills . Senior citizens who qualify for a real property tax exemption in Ithaca will be afforded this discount and ACC is in the process of contacting those affected and explaining the changes to their billing notice as well as issuing a refund check retroactive to January 215 1988. Those eligible should receive this notification and their checks during the next two weeks . Should you have any questions , please feel free to call me . Sincerely, ichael M. Withiam General Manager MMW/fw cc: John Gutenberger, Mayor Common Council 519 West State Street Ithaca, New York 14850 607-272-3456 f ���� s MAR 2 9 1989 .� ��q�D1tA7E0�� CITY OF ITHACA 10B EAST GREEN STREET ITHACA, NEW YORK 14850 DEPARTMENT OF TELEPHONE:272-1713 PLANNING&DEVELOPMENT CODE 607 H.MATTHYS VAN CORT,DIRECTOR MEMORANDUM T0: Ralph Nash 6V-1FROM: H. M. Van Cort /4�z� RE : Cable Franchise DATE: March 24, 1989 Attached please find a copy of a privacy notice I received from American Community Cablevision. Would you please advise me as to whether this notice is in compliance with the provisions of the franchise . My recollection is that in one of the earlier drafts the company was required to receive affirmative notice from a subscriber if they wished to use the subscribers name. This may have changed in later drafts . Thanks for your help in this matter. HMV/pt O—a—RNCABLE .HMV "An Equal Opportunity Employer with an Affirmative Action Program" Subscriber Rights AMERICAN COMMUNITY As previously described, federal law limits the CABLEVISION type of personally identifiable information a PRIVACY NOTICE cable system may collect and the circumstances under which it may be disclosed. A subscriber has the right to contest government agency Pursuant to Section 631 of the Cable Commu- claims to such information; to prevent the dis- nications Policy Act of 1984(the"Cable Act"), closure of his or her name and address for any American Community Cablevision is required to mailing list or other non-cable related purpose; inform new subscribers and current subscribers and to review all such information at the cable on an annual basis of the existence of"personal- offices during regular business hours, given ly identifiable" information collected by the reasonable notice to the cable system by either cable system, how it is used, under what condi- phone or letter, and to correct any errors in the tions it may be disclosed, and the rights of sub- information. Should a subscriber believe the scribers concerning such disclosure. The law limits set forth in the Cable Act have been vio- relates only to information which specifically lated by the cable system, he or she may bring identifies individual subscribers. a civil suit for damages, including attorney fees and costs, in a U.S. district court against the Collection cable operator. Generally, the law allows personally identifi- Should you have any questions concerning the able information to be collected and disclosed rights and obligations of the cable system oper- only insofar as it relates to the business of provid- ator or your rights under the subscriber privacy ing cable service to subscribers. Thus, cable provisions of the Cable Act,or if you would like systems may collect only that information about to see or correct, if necessary, your records, a subscriber which is necessary either to provide please contact the cable system business office: service to the subscriber or to monitor unautho- rized reception of cable signals. This includes name and address, spouse's name, telephone AMERICAN COMMUNITY CABLEVISION number(s), billing and collection information, service and installation records, personal Iden- 519 W. State St. • tification card numbers,such as a driver's license Ithaca, NY 14850 and/or social security card, subscriber com- f (607) 272-3456 plaints and correspondence,premium or level of 8:30 a.m. - 6:00 p.m. Monday-Friday service subscription data, maintenance, service 9:00 a.m. - Noon Saturday and installation information (how many cable outlets you have and where they are located in for six calendar years (or a longer period if your house), and marketing data (information required by state law)after a subscriber no longer collected from your application and other con- is an active customer. Should our policy change sumer questionnaires). Cable systems may not or should we find it necessary to disclose such monitor or collect any information on the trans- information to entities other than the ones listed actions made by a subscriber using a service such previously, we first will notify you. This would as home shopping or home banking, except to include disclosure to a debt collection agency if the extent it is necessary to render the service. the subscriber were in arrears to the cable system. Any information a cable system wishes to col- lect that is not related to either the rendering of The law permits cable systems to provide the a service or monitoring theft of service may be names and addresses of subscribers for non-cable done only with the prior written consent of the related mailing lists and other purposes unless subscriber. the subscriber specifically and in writing pro- Disclosure hibits or limits such disclosure. The services to A cable system's disclosure of personally iden- which you subscribe or the nature of any sub- tifiable information,like its collection,is limited scriber transactions conducted via the cable by the Cable Act to the disclosure of informa- tion necessary in order to provide a cable serv- If you do not want this system to provide your ice or to conduct a legitimate business activity name and address for mailing list purposes, of the cable system. please let us know in writing at the address of Collected information is made available only our business office listed in this document and to employees and sales representatives of the we will exclude your name and address from any cable system,to its accountants and billing and list that might be provided to others. collection agencies, and to other maintenance Disclosure Pursuant to Judicial Process and installation subcontractors, programmers, Disclosure of personally identifiable informa- auditors and program guide service providers tion also may be required by court order, but which provide service to or act on behalf of the only if a government agency or authority pro- cable system. Information will be retained only vides to the court clear and convincing evidence as long as it serves a business purpose, includ- that the information would be material evidence ing maintenance of records for financial and tax against a subscriber believed to be engaging in accounting purposes, after which it will be criminal activity, and only if the subscriber is destroyed. given the opportunity to appear in court and con- Our current policy is to keep such information test the agency's claim. 000189 fi s. REPLY MESSAGE American International Companies // ,, DATE -7 A.. TO !�. FROM AT AT spa nt,Bronc or C�pony) (D rtmtn, Branch or Company) SUBJECT SAG 000, AZ*z jl;(_� z4l&� I,,w Alf !U ( •a l 24 b REPLY IN THIS SECTION - DO IT NOW TO DATE SIGNATURE DO NOT SNAP AWAY CARBON WHEN REPLYING DETACH CARBON-RETURN WHITE COPY DETACH CANARY-FORWARD WHITE AND PINK RETAIN PINK COPY FOR RECORD Form 9064(10/75) CITY OF ITHACA 108 EAST GREEN STREET ITHACA, NEW YORK 14850 OFFICE OF TELEPHONE: 272-1713 CITY ATTORNEY CODE 607 M E M O R A N D U M TO: Theh3l, rt, Planning Director FROM: Rash, City Attorney DATE: Ma989 RE: Cable Franchise - Privacy Notification This is in response to your memo of March 24, 1989, on this matter. The only current Franchise provisions applicable are: 1 . 16. 1 which provides that ACC will furnish each subscriber "a complete statement of the subscriber's right to privacy in con- formance with 47USC Section 631;" 2. 16. 13 which provides that "ACC shall at all times protect the privacy of subscribers as provided in this Franchise and other applicable Federal, State and Local laws. " 3 . 16. 14 which provides that "No people meter shall be used without the express written consent of the subscriber. " RWN:blh "An Equal Opportunity Employer with an Affirmative Action Program" i r CITY OF ITHACA CABLE COMMISSION Minutes -- March 14, 1989 Present : William Demo, Richard Herskowitz, Janice Streb, Tom Terrizzi . David Lytel as Common Council liaison. Absent : Chris Heegard 1 . The meeting was called to order at 7 :35 pm. 2 . The Minutes of the February 14 meeting were approved. 3 . Chair 's Report: Chairperson Janice Streb related a complaint received from George Alexander, 104 Ridgedale Avenue, who reported experiencing recurring interference on Channel 19 . Mike Withiam, ACC General Manager, . responded that this was an ongoing problem involving police radio frequencies . He stated that ACC would check to see if there is leakage in any of the lines in the area of Mr . Alexander 's residence and report back to the Commission. Chairperson Streb outlined the contents of a letter received from Sean Killeen of Common Council regarding additional means of qualifying senior citizens for the needs-based discount . These included eligibility for HEAP assistance, Social Security SSI, and Medicaid . Mike Withiam indicated that ACC would need only a list or other documentation to qualify subscribers for the discount . Chairperson Streb agreed to gather more information ori other qualifying means and report back to the Commission. Chairperson Streb provided a brief update on the complaint lodged by Alan Cohen of 310 Utica St . and then turned the floor over to Mr . Cohen who addressed the Commission about the status of his complaint . He has been seeking some form of relief from the noise emanating from a pole-mounted ACC power supply box located 27 ft. from his bedroom window. He summarized his previous exchanges with Mr . Withiam and City Attorney Nash. Mr . Cohen was concerned about whether the noise from the box violates the City noise ordinance which sets a ceiling of 55 decibels. Whether or not the noise ordinance would apply, he would like to have the box relocated, possibly to a corner location. In responding to Mr . Cohen's complaint, Mike Withiam cited the difficulty of moving the box given the overall design and power supply needs of the system rebuild in that area . While he feels that re-situating the box on an adjacent pole would still place it too close to other houses, he would look into the feasibility of corner pole placement. Chairperson Streb volunteered to contact the City Engineer for assistance, and Mr. Withiam said he would report back on efforts to solve the problem at the next Commission meeting and would send Chairperson Streb .the specifications of the box in the meantime . 1 4 . Public Comment : None during the Public Comment Session. 5 . Report from American Community Cablevision: Mike Withiam reported on the progress of the system rebuild. He expects completion by mid to late May and said that the I-NET was in the design phase . He related ACC's intent to provide subscribers with' information on ownership of converters, remote controllers, and internal wiring by mid-May. Mr . Withiam reported a problem that had been discovered with the billing system affecting senior citizen discounts . He will be sending a letter to qualified subscribers explaining the problem and providing retroactive crediting of discounts to February, 1988 . Regarding the Access Advisory Board, ACC's appointees are Rick Lawrence and Carl Frederick as announced by Mr . Withiam. 6 . Access Advisory Board: Commissioner Herskowitz reported on the first meeting of the Access Advisory Board held on March 9 and also distributed minutes of the meeting. In the only formal action taken at that meeting, the Board voted unanimously to support the Commission in moving forward with the finding of the violation of the franchise agreement . Another issue arising at the Access Advisory Board meeting concerned the hiring of the third access staffer which was to have been carried-out by March 1 . ACC' s position, as outlined by Mr . Withiam, is that the hiring of the third access staffer is-- along with other Franchise Provisions said to be related to system rebuild--deferred until June 1, as provided for in the October 5, 1988 Common Council Resolution. Rather than pursue a possible violation against ACC, the Access Advisory Board would like to work out a process which would involve it in the filling of the third access position . Mr . Withiam outlined ACC's considerations in filling the position and expressed a willingness in providing an advisory role for the Board or a possible subcommittee . Commissioner Herskowitz responded that a _ subcommittee of the Board would be formed for the purpose of meeting with Mr . Withiam to discuss its interests and help to review the applicants . Mr . Withiam agreed to bring ACC's list of considerations to the April 3 Access Advisory Board meeting and to participate in a subsequent meeting of the subcommittee . John Efroymson asked about Access Advisory Board input on the performance of ACC' s access employees . Mr . Withiam responded that personnel performance information is not for public discussion and that the focus of such concerns should be on how well a function is being carried-out rather than on how well an individual is performing his/her job. Mr . Efroymson questioned whether current access staff are full-time as required by the franchise agreement . Mr . 2 Withiam reported that one is full-time, a second works 35 hours, and a third works 10 hours, netting a full-time equivalency of two staffers . Mr . Efroymson expressed concern about potential conflicts arising from this arrangement and suggested that the Access Advisory Board monitor the staffing situation. Commissioner Terrizzi inquired about the 2% of Gross City Revenue to be used for PEG access equipment replacements and additions . Mr . Withiam responded that a decision on equipment purchases would need to be delayed until September-October in order to ascertain how much of the 2% is needed during the year for maintenance . He stated that the Access Advisory Board input would be sought in this process. 7 . Public Access Studio: Mr . Withiam reported that the access studio problem had been partially addressed by moving some equipment into a make-shift control room. There was general agreement that the studio condition was somewhat improved, but producers were still finding it difficult to put programs together . Mr . Withiam cited the non-specific nature of the Commission's resolution which found ACC in violation of the franchise provisions on the access studio . He emphasized that the new access studio would be operational by the end of April . In light of the fact that ACC's deadline for responding formally to the resolution was 10 days away, the Commission delayed further consideration until Commissioners Herskowitz and Terrizzi had the opportunity to consult with City Attorney Ralph Nash. After reviewing the Commission's options, they would report back at the next Commission meeting. 8 . Converter Box and Remote Control Ownership: In response to a question from Commissioner Demo, Mr. Withiam reported that ACC would fully meet the franchise provisions 16 . 15, 16 . 16, and 16 . 17 related to converter box, home wiring, and remote control ownership options by June 1, 1989 . 9 . Common Council Resolution: Common Council member David Lytel asked that the Commission consider adopting a resolution drafted by Ben Nichols that proposes Congressional action on re-regulation of cable rates and services by municipalities . Commission approved the resolution by a vote of 3 For, 0 Opposed, 1 Abstention. The next meeting was set for Tuesday, April 11 . The meeting was adjourned at 9 : 50 pm. (Minutes recorded by Bill Demo) 3 f 0 p �A'°�RATEO�0 Q CITY OF ITHACA 108 EAST GREEN STREET OFFICE OF ITHACA, NEW YORK 1485o CITY CLERK TELEPHONE: 272-1713 CODE 607 AGENDA THE CABLE COMMISSION TUESDAY, APRIL 11, 1989 - COMMON COUNCIL CHAMBERS 7:30 P.M. 4 . Public Comment: None during the Public Comment Session. 5. Report from American Community Cablevision: Mike Withiam reported on the progress of the system rebuild. He expects completion by mid to late May and said that the I-NET was in the design phase . He related ACC's intent to provide subscribers with' information on ownership of converters, remote controllers, and internal wiring by mid-May. Mr . Withiam reported a problem that had been discovered with the billing system affecting senior citizen discounts . He will be sending a letter to qualified subscribers explaining the problem and providing retroactive crediting of discounts to February, 1988 . Regarding the Access Advisory Board, ACC' s appointees are Rick Lawrence and Carl Frederick as announced by Mr . Withiam. 6 . Access Advisory Board: Commissioner Herskowitz reported on the first meeting of the Access Advisory Board held on March 9 and also distributed minutes of the meeting. In the only formal action taken at that meeting, the Board voted unanimously to support the Commission in moving forward with the finding of the violation of the franchise agreement . Another issue arising at the Access Advisory Board meeting concerned the hiring of the third access staffer which was to have been carried-out by March 1 . ACC' s position, as outlined by Mr . Withiam, is that the hiring of the third access staffer is-- along with other Franchise Provisions said to be related to system rebuild--deferred until June 1, as provided for in the October 5, 1988 Common Council Resolution. Rather than pursue a possible violation against ACC, the Access Advisory Board would like to work out a process which would involve it in the filling of the third access position . Mr . Withiam outlined ACC's - --- considerations CC's- ---considerations in filling the position and expressed a willingness in providing an advisory role for the Board or a possible subcommittee . Commissioner Herskowitz responded that a subcommittee of the Board would be formed for the purpose of meeting with Mr . Withiam to discuss its interests and help to review the applicants . Mr . Withiam agreed to bring ACC's list of considerations to the April 3 Access Advisory Board meeting and to participate in a subsequent meeting of the subcommittee . John Efroymson asked about Access Advisory Board input on the performance of ACC's access employees . Mr . Withiam responded that personnel performance information is not for public discussion and that the focus of such concerns should be on how well a function is being carried-out rather than on how well an individual is performing his/her job. Mr . Efroymson questioned whether current access staff are full-time as required by the franchise agreement . Mr . 2 .� ._ -. ; , � � .�i�r,,,,._.....�.�- ,---� �R IT ORO* � CITY OF ITHACA 1 OFA FAST GRFFN SMFE F ITHACA, NEW YORK 14850 OFFICE OF TELEPHONE. 272-1713 CITY ATTORNEY CODE 607 M E M O R A N D U M TO: RaRe6, lather, Alderman FROM: Ra Nash, City Attorney DATE: Ju 1989 RE: Cable TV - Senior Citizen Discount This is in response to your letter of June 5 , 1989 , regarding this matter. The franchise provides in Section 19 . 1 that "ACC will give a need-based senior citizen discount of 10 percent to those who qualify for real property tax exemption. " This language does not specifically state that the discount applies only to basic service rates. However, Section 19 . 1, which deals generally with the City' s right to regulate rates , and the schedule of rates to be applied, is addressed only to basic service rates. As you may remember these are the only rates that a municipality may impact upon under federal law, and only to the extent that non- competitiveness is established. Since Section 19. 1 addresses generally only basic cable rates, the implication would be that the senior citizen discount applies only to those rates, absent some specific language to the contrary. Also, I doubt our legal authority to impose by contract or other- wise rate schedules for non-basic services . RWN:blh cc: John C. Gutenberger, Mayor All Common Council Members S./ JUN 0 1989 CITY OF ITHACA 108 EAST GREEN STREET ITHACA, NEW YORK 14850 TELEPHONE: 272-1713 COMMON COUNCIL June 5, 1989 CODE 607 Ralph W. Nash, Esq. City Attorney 108 East Green Street Ithaca, New York 14850 Dear Ralph: I am advised by employees of the American Community Cablevision that its policy with respect to the senior citizen discount is that the same is limited to 10% of the basic rate only. In other words, the 10% discount does not apply to expanded service, premium service or any other charges imposed by ACC. Is this permissible under the terms of the Franchise. Agreement? Ironically, this same ACC employee conceded that her under- standing of the policy was that the discount applied all services purchased by an eligible senior citizen. This concession is consistent with the information given to a first ward constituent by ACC personnel when he recently purchased expanded service (he was advised that he would receive a 10% discount on the expanded service as well) . If ACC is narrowly applying the 10% discount in violation of the franchise, then I am requesting that it be advised accordingly and demand made for refund of excess monies paid by the senior citizens. Thank you. Res$ f l y yours, RPOND ,. SCHLATHER RMS/seh cc: Hon. John C. Gutenberger, Mayor All Common Council Members IT$9C \J ti •0 ��gp0RAI CITY OF ITHACA 1()1 3 F-AS I (,FI(-FN `;111I F ( ITHACA, NEW YORK 14850 OFFICE OF TELEPHONE: 272-1713 CITY ATTORNEY CODE 6r)7 June 15 , 1989 Matt Nothnagle, Esq. Nixon, Hargrave Lincoln First Tower P. O. Box 1051 Rochester, NY 14603 Dear Mr. Nothnagle: Pursuant to your freedom of information request, we are herewith enclosing one copy each of our Cable TV Franchise and Ordinance. Please remit $25. 00 payable to "City of Ithaca" for copies. Thank you for your attention to this matter. Yours v6y ,trjly, Ra h W Nash Ci At rney RWN:blh An Equ tl OC'c"'!m0y E ir,y n. th an Af}Vr i1jj,ve Actino Prr,rpn n t � c0�p�.... ..�0 �RptEO CITY OF ITHACA 108 EAST GREEN STREET ITHACA, NEW YORK 14650 OFFICE OF TELEPHONE: 272-1713 CITY ATTORNEY CODE 607 M E M O R A N D U M TO: John C. Gutenberger, Mayor Ray Schlather, Chairman of Budget & Administration Richard Booth, Chairman of Charter & Ordinance David Lytel, Alderman Ben Nichols, Alderman Cookie Paolangeli, City Clerk Thys Van Cort, Planning Director Cable Commission Members Dom' c/. Nash, fferillo, Controller FROM: Ralp City Attorney DATE: June 0, 1989 RE: Cable Franchise Please find enclosed communication received regarding possible assignment of our Cable Franchise agreement. I have the supplement documents in my office. RWN:blh enc. cc: Matthew J. Nothnagle 'An Equal Opportunity Employer with an Affirmative Action Program" � RATED CITY OF ITHACA 108 EAST GREEN STREET ITHACA, NEW YORK 14650 OFFICE OF TELEPHONE: 272-1713 CITY ATTORNEY CODE 607 M E M O R A N D U M TO: Ray Schl ther, Chairman of B & A Committee FROM: Ra144 Nash, City Attorney DATE: June 29, 1989 RE: Cable Advertising Channel #6 I reviewed the franchise agreement regarding basic service channels. Section 13. 1 states only that " (t)he basic cable service shall have a minimum of 12 ( 6Mhz) channels. " There is no mention that such channels must be for programming. I agree that it does seem unfortunate to have one of the basic channels show only cable advertisements. If I had a television I would probably not wish to view this station or pay for it on basic cable charge. It seemed appropriate to refer this matter to the Cable Commission which has authority for ongoing supervision of the franchise. I discussed the matter today with Janice Streb, Chair- man of the Commission. She advised that the commission will review the matter. RWN:blh cc: Dominick Cafferillo, Controller "An Equal Opportunity Employer with an Affirmative Action Program" • R Nixon, Hargrave, Devans & Doyle JUN 3 ® 739 Attorneys and Counselors at Law 30 ROCKEFELLER PLAZA A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS SUITE 800 NEW YORK, NEW YORK 10112 ONE THOMAS CIRCLE (212) 586-4100 LINCOLN FIRST TOWER WASHINGTON, D.C. 20005 (202) 223-7200 POST OFFICE BOX 1051 ONE KEYCORP PLAZA ALBANY, NEW YORK 12207 ROCHESTER, NEW YORK 14603 REYNOLDS PLAZA (518) 434-6000 (716) 546-8000 1061 EAST INDIANTOWN ROAD JUPITER, FLORIDA 33477 TELEX: 978450 (WUT) (407) 746-1002 990 STEWART AVENUE GARDEN CITY, NEW YORK 11530 TELECOPIER: (716) 546-3843 (516) 222-1236 June 29, 1989 Ralph G. Nash, Esq. Ithaca City Attorney 108 E. Green Street Ithaca, New York 14850 Re: Paramount Communications Inc. Acquisition of Time Incorporated Dear Mr. Nash: As we discussed, Paramount Communications Inc. ( "Paramount" ) has made a tender offer to acquire Time Incorporated ("Time" ) . Time, in turn, is the majority stockholder of American Television and Communications Corporation ("ATC" ) , another public corporation. ATC is ` ,� the sole stockholder of American Community Cablevision ("ACC") . We understand that under the terms of the cable television franchise granted by the City of Ithaca, the acquisition of Time may require the City' s approval . We are counsel for Paramount and on its behalf would like to hereby apply for any required approval . Paramount is a diversified entertainment and publishing company. Its well-known companies include Paramount Pictures; Simon & Schuster, Prentice-Hall and Silver, Burdett & Ginn, trade and educational publishers; and Madison Square Garden Corporation. Paramount does not currently operate cable systems, but it does own MSG Network, a regional basic cable television sports network, and it is a 50% owner of USA Network, a national. advertiser-supported basic cable television service. Paramount is a leader in the production of quality motion pictures and a variety of popular programs for Nixon, Hargrave, Devans & Doyle Ralph G. Nash, Esq. June 29, 1989 Page 2 television. As a result, Paramount will bring immense entertainment and education experience to the ATC cable systems . Paramount views ATC as a successful operator of cable television systems, and appreciates that sufficient authority must be delegated to local management of ACC and the other franchisees to ensure that the local community' s interests are appropriately served. After the acquisition of Time, ATC will continue to be a subsidiary of Time and will remain owner or co-owner of all of its current cable television subsidiaries . ACC will continue to operate under the current management structure. Paramount would expect that the operation of your cable television system will be substantially unchanged, except to the extent that it can be improved and become more responsive to your needs . Similarly, Paramount would hope there would be no change in local management or programming . I recognize your concern that this transaction may cause Paramount to make significant cuts in ACC' s operation. However, should not be too much of a problem. First, as you no doubt know, cable in Ithaca is regulated both by the franchise and by the New York State Commission on Cable; ACC and its corporate parents are and will remain legally bound by the franchise. Second, Time is currently attempting to purchase Warner Communications for $14 billion, in part to fend off Paramount . It is thus unlikely that ACC' s ultimate parent will emerge from this situation without some debt . Please consider this letter and enclosed documents as a formal application for approval by the City of Ithaca of Paramount ' s acquisition of Time. Attached hereto is a short summary of the proposed acquisition. In addition, I am enclosing the following documents : (1) Offer to Purchase, dated June 7, 1989, and Supplement to the Offer to Purchase, dated June 23 , 1989 . (2) Paramount ' s (formerly Gulf + Western) Annual Report on Form 10-K for the fiscal year ended October 31, 1988 . (3) Paramount ' s 1988 Annual Report to Stockholders . t � Nixon, Hargrave. Devans & Doyle Ralph G. Nash, Esq. June 29 , 1989 Page 3 We believe this letter and the enclosed documents will provide complete information regarding Paramount and its proposed acquisition of Time and constitute the formal institution of the process for any authorization required under local law. Please call me or my colleague Deborah McLean Quinn if we can provide you with any additional information on any specific aspect of the proposed transaction. One of us will call you again shortly to discuss the timing of the approval process . As I mentioned, it is important to move quickly on this . Permit me to say on behalf of Paramount that we look forward not only to working with you, but also becoming a strong supporter of local cable television service in your community in the years to come. Sincerely, Matthew J. Nothnagle MJN: jcw Enclosures PARAMOUNT COMMUNICATIONS INC. ' S PROPOSED ACQUISITION OF TIME INCORPORATED Paramount Communications Inc . , a Delaware corporation formerly named Gulf + Western Inc . ("Paramount" ) , through a wholly-owned subsidiary has commenced a tender offer to purchase all of the outstanding stock of Time Incorporated ( "Time" ) for a total purchase price of over $12 billion. The tender offer is being made to Time' s shareholders in all fifty states, as required by the federal securities laws . After successful completion of the tender offer , Time will be merged into a subsidiary of Paramount and thereafter will continue to exist as a subsidiary of Paramount . After the acquisition, Time is expected to continue to own and operate its present business , including the cable operations . American Television and Communications Corporation ("ATC" ) will continue to be a direct subsidiary of Time and ATC' s cable television subsidiaries will continue to be indirect subsidiaries of Time. ATC is expected to continue to own the cable television franchise subsidiaries presently owned by it and to remain a joint venture partner in all of its cable television joint venture arrangements . Each cable franchise subsidiary owned by ATC will survive intact and unchanged as the continuing owner or operator of its respective cable television system and franchise. No direct ownership interest in any cable television system will be affected by Paramount ' s purchase of the common stock of Time or by the merger of Time into a Paramount subsidiary. A Time-Paramount combination will create a diversified media company operating in the areas of entertainment , cable television and publishing . Together Paramount and Time will be a communications company rich in resources with unparalleled range and depth, strongly positioned for global growth through the next decade and into the next century. No other company will be as significant a force in entertainment and publishing with operations in quality magazine and book publishing , as well as in motion picture and television production and distribution, cable systems and cable programming . The following is a description of the core business groups of a combined Time-Paramount entity. 3 7 8 7 D i 2 - Entertainment . Paramount, through Paramount Pictures Corporation ( "Paramount Pictures" ) , Famous Players Inc . , its Canadian theatre chain, Cinamerica Theatres, its 50% owned domestic theater chain, and Madison Square Garden Corporation, produces, finances and distributes motion pictures, television programming and prerecorded videocassettes, operates motion picture theatres in the United States and Canada and owns and operates Madison Square Garden Center in New York and the MSG Network, the nation' s oldest regional cable television sports network. Paramount also owns 50% of USA Network, a provider of programs for the cable industry. Paramount Pictures distributes its films through its own organization in the United States and Canada . Distribution in other countries is through United International Pictures, a company owned jointly with MCA Inc. and MGM/UA Communications Company. Cinema International Corporation, which is jointly owned with MCA, distributes videocassettes to the international home video market . In television, Paramount Pictures creates original programming for the commercial networks , first-run syndication, cable, home video and international distribution. Time ' s pay television programming operations consist primarily of Home Box Office, Inc . , a wholly-owned subsidiary of Time, plus a 14% interest in Turner Broadcasting System, Inc . The principal businesses of Home Box Office, Inc . are the programming and marketing of two satellite-transmitted pay television services, the HBO Service and the CINEMAX service, and the distribution of video cassettes through its wholly-owned subsidiary, HBO Video, Inc . Home Box Office ' s programming also includes concerts , comedy shows and other programs which are produced specifically for HBO and/or CINEMAX. Cable Television. Cable television operations are conducted through Time ' s 82% interest in ATC, which is currently the second largest cable television system operator in the United States in terms of basic cable subscribers and has approximately 767 franchises in 32 states with approximately 4 . 1 million basic cable subscribers . ATC' s cable television operations consist primarily of selling, for a monthly fee, video programming which is distributed to subscribers ' television sets through a network of coaxial cables . Such video programming is comprised of local broadcast television signals, locally produced or originated video 3 7 8 7 D ,• a y • ' r 3 - programming, distant broadcast television, advertiser-supported video programming , premium programming services and in some systems, audio and other entertainment and information services . Publishing . Paramount, through Simon & Schuster, Prentice Hall , Pocket Books and Silver Burdett & Ginn, publishes hardcover and paperback books for the general public, publishes textbooks and other learning materials for elementary schools, high schools and colleges, and provides professional information in the form of looseleaf services , business books, professional newsletters, document search and filing services , and seminars and databases for businesses and professions . Simon & Schuster currently holds leadership positions in virtually every major segment of the book publishing industry and has a worldwide publishing and distribution capacity. Time, through The Time Inc . Magazine Company, publishes TIME, FORTUNE, SPORTS ILLUSTRATED, PEOPLE, MONEY and LIFE magazines, and through Southern Progress Corporation, publishes SOUTHERN LIVING, PROGRESSIVE FARMER, SOUTHERN ACCENTS, COOKING LIGHT and TRAVEL SOUTH magazines . Time ' s book publishing operations include Time-Life Books and Book-of-the-Month Club, as well as Scott, Foresman and Company, a large domestic textbook publisher, and Little, Brown, which publishes general and children' s trade books and legal and medical reference books and textbooks . 3 7 8 7 D r IM CITY OF ITHACA 106 EAST GREEN STREET ITHACA, NEW YORK '14650 OFFICE OF TELEPHONE: 272-1713 CITY ATTORNEY CODE 607 MFMPANDUM TO: CooPash, langeli, City Clerk FROM: Ra City Attorney DATE: October 25, 1988 RE: Cable TV Ordinance Enclosed please find final clean copy of this Ordinance with all changes as adopted by Common Council at its October meeting. rM:blh enc. ITHACA, NEW YORK ORDINANCE SECTION 1 PURPOSE The City of Ithaca finds that the development of Cable Communications has the potential of having great benefit and impact upon the people of Ithaca. Because of the complex and rapidly changing technology associated with cable communications, the City further finds that the public convenience, safety and general welfare can best be served by establishing regulatory powers which should be vested in the City or such persons as the City shall designate. It is the intent of this Ordinance and subsequent amendments to provide for and specify the means to attain the best possible public interest and public purpose in these matters and any Franchise issued pursuant to this Ordinance shall be deemed to include this finding as an integral part thereof. Further, it is recognized that Cable Communications Systems have the capacity to provide not only entertainment and information services to the City' s residents, but can provide a variety of interactive communications services to institutions and individuals. Many of these services involve City agencies and other public institutions, by providing governmental, educational or health care communications. For these purposes, the following goals underlie the regulations contained herein: (a) Communications services should be available to the maximum number of City residents. (b) The Cable Communications System should be capable of accommodating both the present and reasonably foreseeable future communications needs of City. (c) The Cable Communications System should be improved and upgraded if necessary during the Franchise term so that the new facilities necessary for the operation of this system shall be integrated to the maximum extent possible with existing facilities. (d) Any Cable Communications System authorized by this Ordinance and the Franchise shall be responsible to the needs and interests of the local community, and shall provide a wide diversity of information sources and services to the public. (e) That the public, educational, and governmental needs for access to the Cable Communications System are met. SECTION 2 TITLE OF ORDINANCE This Ordinance shall be known and may be cited as "Ithaca Cable Communications Regulatory Ordinance," and it shall become a part of the Ordinances of the City. This Ordinance shall take effect and be in force from and after its passage and publication of a notice as provided by section 3 . 11 of the Ithaca City Charter. That all Ordinances or parts of Ordinances in conflict with the provisions of this Ordinance are hereby repealed. SECTION 3 DEFINITIONS For the purpose of this Ordinance the following terms, phrases, words and their derivations shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number. The word "shall" is mandatory and "may" is permissive. Words not defined shall be given their common and ordinary meaning. 3 . 1 ACCESS CHANNELS means channels ( 6MHz each) set aside for public use, education use or governmental uses with no charge for usage by ACC. Access channels designed for public use shall be available on a nondiscriminatory basis. 3 . 2 ADDITIONAL SERVICES means programming or services for which an additional charge is made beyond the charge for Basic Subscriber Services, including, but not limited to, movies, concerts, variety acts, sporting events, pay-per-view program, interactive services, and any other service utilizing any facility or equipment of a Cable Communications System operating pursuant to a Franchise granted under this Ordinance. 3 . 3 AFFILIATE means each person who falls into one or more of the following categories: (a) each person having, directly or indirectly, control or a controlling interest in the Grantee; (b) each person in which the Grantee has, directly or indirectly, control or a controlling interest; (c) each office, director, general partner, joint venturer or joint venturee partner, of the Grantee; and (d) each person, directly or indirectly, controlling, controlled by, or otherwise related to the Grantee by common ownership, common management, or common control; provided AFFILIATE shall in no event mean: 2 (a) the City; (b) any duly authorized PEG Access Organization; (c) any educational institution acting on its capacity as such, for public, educational, or charitable purposes; or (d) any creditor of the Grantee solely by virtue of its status as a creditor and which is not otherwise an Affiliated person by reason of owning controlling interest in, being owned by, or being under common control with, the Grantee. 3 . 4 BASIC SUBSCRIBER RADIO SERVICE means such audio services as the re-transmission of broadcast FM radio signals, shortwave, weather, news, time and other similar audio services and the transmission of cablecast (nonbroadcast) radio signals as permitted by the FCC. 3 . 5 BASIC SUBSCRIBER TELEVISION SERVICES means the definition promulgated by the Federal Communications Commission, or if such definition is not forthcoming from the Federal Communications Commission it shall mean all subscriber services provided by the Grantee in one or more service tiers, including the delivery of broadcast signals, public, educational and governmental access channels, and local origination channels, covered by the regular monthly charge paid by all subscribers to a particular service tier including subscriber terminal charges and related deposits. 3 . 6 CABLE COMMUNICATIONS SYSTEM, also referred to as "system, " means a facility, consisting of a set of closed transmission paths and associated signal generation, reception and control equipment that is designed to provide cable service which includes video programming and which is provided to multiple subscribers within a community, but such term does not include (a) a facility that serves only to retransmit the television signals of one or more television broadcast stations; (b) a facility that serves only subscribers in one or more multiple unit dwellings under common ownership, control, or management, unless such facility or facilities uses any Public-Rights-of-Way; (c) a facility of a common carrier which is subject, in whole or in part, to the provision of Title II of the Cable Act, except that such facility shall be considered a cable system to the extent such facility is used in the transmission of video programming directly to subscribers; or (d) any facilities of any electric utility used solely for operating its electric utility systems. 3 .7 CITY means the City of Ithaca, New York. 3 3 . 8 CHANNEL means a six Megahertz (MHz) frequency band, which is capable of carrying either one standard video signal, a number of audio, digital or other nonvideo signals or some combination of such signals. 3 . 9 COMMENCE OPERATION means that time and date when operation of the Cable Communications System is considered to have commenced. 3 . 10 COMMERCIAL SUBSCRIBER means a subscriber who receives a service in a place of business where the service may be utilized in connection with a business, trade or profession. 3. 11 COMMON COUNCIL means the mayor and council of the City of Ithaca. 3 . 12 COMMUNICATIONS POLICY ACT or CABLE ACT means the Cable Communications Policy Act of 1984 as it may be amended or succeeded. 3 . 13 COMPLAINT means that a subscriber or user informs the Grantee or the City, that a problem has been brought to the attention of the Grantee, but is unresolved to the satisfaction of the subscriber. 3 . 14 CONVERTER means an electronic device which converts signals to a frequency not susceptible to interference within the television receiver of a subscriber, and any channel selector which permits a subscriber to view all signals delivered at designated converter dial locations at the set or by remote control. 3 . 15 DEDICATED INSTITUTIONAL ACCESS CHANNELS means broadband communications channels dedicated to serving city, county, state or federal governmental agencies, educational institutions, health care institutions or other nonprofit and profit making organizations. 3 . 16 DISCRETE CHANNEL shall mean a channel which can only be received by the person and/or institution intended to receive signals on such channel. 3.17 DROP shall mean a connection from feeder cable to the subscriber/user television set, radio or other terminal. 3 . 18 EDUCATIONAL CHANNEL OR EDUCATIONAL ACCESS CHANNEL means any channel where educational programs are the only designated use. The educational access channel(s) shall only be used for non-commercial purposes. 3 . 19 FAIR MARKET VALUE means the price that a willing buyer would pay to a willing seller for a going concern based on the system valuation prevailing in the industry at the time. 4 3 . 20 FCC means the Federal Communications Commission and any legally appointed or elected successor. 3. 21 FRANCHISE means a Franchise contract entered into voluntarily by the Grantee, containing the specific provisions of the Franchise granted, including referenced specifications, Franchise proposal, applications and other related material. Any Franchise granted pursuant to this Ordinance grants the nonexclusive rights to construct, operate and maintain a Cable Communications System along the Streets and Public Grounds within all or a specified area in the City. Any such authorization, in whatever form granted, shall not mean or include any license or permit required for the privilege of transacting and carrying on a business within the City as required by other ordinances and laws of the City. 3 . 22 FRANCHISE AREA means the entire City. 3 . 23 FRANCHISE FEE means the percentage, as specified by the City, of the Grantee's gross revenues from all sources payable in exchange for the rights granted pursuant to this Ordinance and the Franchise Agreement. 3 . 24 FRANCHISEE OR GRANTEE means the natural person(s) , partnership(s) , domestic and foreign corporations(s) , association(s) , joint venture(s) , or organization(s) of any kind which has been legally granted a Franchise by the City, and its lawful successor, Transferee or Assignee. 3 . 25 GOVERNMENT CHANNEL OR GOVERNMENT ACCESS CHANNEL means any channel specifically designated or dedicated for government use. The municipal access channel( s) shall only be used for non-commercial purposes. 3 . 26 GRANTOR means the City of Ithaca as represented by the Common Council acting within the scope of its jurisdiction. 3 . 27 GROSS ANNUAL REVENUES means all revenue derived directly or indirectly by the Grantee, and revenue derived directly or indirectly through services provided via the Cable Communications System by Grantee' s affiliates and subsidiaries in which the Grantee has a financial interest. 3 . 28 INQUIRY BY SUBSCRIBER means a request for general information about the Grantee' s operation, services, programming, and/or rates. 3 . 29 INSTALLATION shall mean the connection of the system from feeder cable to subscribers ' terminals. 5 3 . 30 INSTITUTIONAL SERVICE means such video, audio, data and other services provided to institutional users on an individual application basis. These may include, but are not limited to, one-way video, two-way video, audio or digital signals among institutions to residential subscribers. 3 . 31 LEASED ACCESS CHANNEL, or COMMERCIAL ACCESS CHANNEL means any channel designated or dedicated for use by persons unaffiliated with the Grantee, at rates in accordance with the Cable Act. 3 . 32 LOCAL ORIGINATION means programming produced or purchased by the Grantee (e.g. , advertisements, news, programming with advertising) which is under the control of the Grantee. Local origination is specifically not to be construed as public, governmental, or educational access. 3 . 33 LOCAL ORIGINATION CHANNEL means any channel designated for local origination. This channel may be used for commercial purposes. 3 . 34 MONITORING means observing a communications signal, or the absence of a signal, where the observer is not a party to the communication, whether the signal is observed by visual or electronic means, for any purpose whatsoever. 3 . 35 NARROWCASTING shall mean the ability to distribute cable programming to a particular segment or segments of the cable subscribers. 3. 36 PERSON means an individual, partnership, association, organization, corporation or any lawful successor Transferee of said individual, partnership, association, organization or corporation. 3 . 37 PLANT MILE means a linear mile of strand-bearing cable as measured on the street of easement from pole to pole or pedestal to pedestal. 3. 38 PROGRAMMER means any person or entity who or which produces or otherwise provides program material or information for transmission by video, audio, digital or other signals, either live or from recorded traces or other storage media, to users or subscribers by means of the Cable Communications System. 3 . 39 PUBLIC ACCESS CHANNEL, COMMUNITY ACCESS CHANNEL or COMMUNITY CHANNEL means any channel designated or dedicated from use by the general public or noncommercial organizations which is made available for use without charge on a first-come, first-served, nondiscriminatory basis. The public access channel(s) shall only be used for non- commercial purposes. 6 3 .40 PUBLIC PROPERTY shall mean any real property owned by the City other than a highway, sidewalk, easement or dedication. 3 . 41 PUBLIC-RIGHTS-OF-WAY or STREETS AND PUBLIC GROUNDS means the surface, the air space above the surface, and the area below the surface of any public street, highway, lane, path, alley, sidewalk, boulevard, drive, bridge, tunnel, park, parkways, waterways, utility easements or other public-rights-of-way or hereafter held by the City which shall entitle the City and the Company to the use thereof for the purpose of installing and maintaining the Cable Company Communications System. No reference herein, or in any Franchise, to the "Streets and Public Grounds" shall be deemed to be a representation or guarantee by the City that its title to any property is sufficient to permit its use for such purpose, and the Grantee shall, by its use of such terms, be deemed to gain only such rights to use property in the City as the City may have the undisputed right and power to give. 3 .42 REASONABLE NOTICE shall be written notice addressed by either party at its principal office within the City or such other office as the Grantee has designated to the City as the address to which notice shall be transmitted to it, which notice shall be certified and postmarked not less than ten ( 10) business days prior to that day in which the party giving such notice shall commence any action which requires the giving of notice. 3 . 43 RESIDENT means any person residing in the City as otherwise defined by applicable law. 3 . 44 RESIDENTIAL SUBSCRIBER means a subscriber who receives a service in an individual dwelling unit where the service is not to be utilized in connection with a business, trade or profession. 3 .45 SALE shall include any sale, exchange, barter or offer for sale. 3 . 46 SCHOOL means any public or nonprofit educational institution including primary and secondary schools, colleges and universities, both public and private. 3 . 47 SERVICE AREA means the entire geographic area within the Franchise territory. 3 . 48 SERVICE REQUEST means a request from the subscriber for a technical service, such as installation, adjustment for poor picture quality and converter repair. 3 . 49 STATE means the state of New York. 7 3 . 50 SUBSCRIBER means any person, firm, corporation or other entity who or which elects to subscribe to, for any purpose, a service provided by the Grantee by means of or in connection with a Cable Communications System. 3 . 51 SYSTEM FACILITIES means the Cable Communications System constructed for use within the City, without limitation, the headend, antenna, cables, wires, lines, towers, amplifiers, converters, health and property security systems, equipment or facilities located within the corporate limits of the City designed, constructed or wired for the purpose of producing, receiving, amplifying and distributing by coaxial cable, fiber optics, microwave or other means, audio and visual radio, television and electronic signals to and from Subscribers, in the City and any other equipment or facilities located within the corporate limits of the City intended for the use of the Cable Communications System; provided, however, such System Facilities excludes buildings, contracts, facilities, and equipment where primary use is for providing service to other System Facilities located outside the City limits. 3 . 52 TRANSFER means the disposal by the Grantee, directly or indirectly, by gift, assignment, voluntary sale, merger, consolidation or otherwise, of five percent ( 50) or more at one time of the ownership or controlling interest in the Cable Communications System, or twenty percent ( 200) cumulatively over the term of the Franchise of such interests to a corporation, partnership, limited partnership, trust or association, or person or group of persons acting in concert. 3 . 53 TRUNK LINE means the major distribution cable used in cable communications, which divides into feeder lines which are tapped for service to subscribers. 3 . 54 UPSTREAM SIGNAL means a signal originating from a terminal to another point in the Cable Communications System including video, audio or digital signals for either programs or other uses such as security alert services, etc. 3 . 55 USER means a person or organization utilizing channel or equipment and facilities for purpose of producing and/or transmission of material, as contrasted with receipt thereof in a subscriber capacity. SECTION 4 GRANT OF FRANCHISE 4 . 1 GRANT OF FRANCHISE 8 A. GRANT OF AUTHORITY. Pursuant to the authority of the Charter of the City and subject to the terms and conditions set forth herein, the Common Council of the City of Ithaca can grant revocable and non-exclusive Franchises, acting pursuant to the City' s applicable Charter provisions, Ordinances, rules and regulations to construct and operate a Cable Communications System in, under, over, along, across or upon the Streets and Public Grounds within the City of Ithaca for the purpose of reception, transmission, collection, amplification, origination, distribution or redistribution of a audio, video, data, or other signals and for the development of broadband telecommunication services in accordance with the laws of the City of Ithaca, the State of New York, and United States of America. In the event that City shall grant to the Grantee a nonexclusive, revocable Franchise to construct, operate, and maintain a Cable Communications System within the City, said Franchise shall constitute both a right and an obligation to provide the services of a Cable Communications System as regulated by the provisions of this Ordinance and the Franchise. The Franchise shall include by reference those provisions of the Grantee' s proposal that are finally negotiated and accepted by the City and Grantee. B. NON-INTERFERENCE. In exercising rights pursuant hereto, Grantee shall not endanger or interfere with the lives of persons, interfere with any installations of the City, any public utility serving the City or any other person permitted to use the Streets and Public Grounds nor unnecessarily hinder or obstruct the free use of the Streets and Public Grounds. The grant of one Franchise does not establish priority for use over the other present or future permit or Franchise holders or the City' s own use of the Streets and Public Grounds. The Common Council of the City shall at all times control the distribution of space in, over, under or across all Streets or Public Grounds and occupied by the Cable Communications System. All rights granted for the construction and operation of the Cable Communications System shall be subject to the continuing right of the Common Council to require such reconstruction, relocation, change of discontinuance of the appliances used by the Cable Communications System in the streets, alleys, avenues, and highways of the City, as shall in the opinion of the Common Council be necessary in the public interest. C. NON-EXCLUSIVITY. Any Franchise is non-exclusive and shall not affect the right of the Common Council to grant to any other person a grant or right to occupy or use the streets or portions thereof, for the construction and operation of a Cable Communications System within the City or the right of the City to permit the use of the Streets or Public Grounds or of the City for any purpose whatever. No privilege or power of eminent domain is bestowed on Grantee by the grant of a Franchise. 9 D. COMPLIANCE WITH CITY ORDINANCES. Any Franchise granted by the City is hereby made subject to the general ►.� Ordinance provisions now in effect and hereafter made effective. Nothing in the Franchise shall be deemed to waive the requirements of the various codes and Ordinances of the City regarding permits, fees to be paid, or manner of construction. 4. 2 USE OF PUBLIC STREETS AND WAYS. For the purpose of operating and maintaining a Cable Communications System in the City, the Grantee may erect, install, construct, repair, replace, reconstruct and retain in, on, over, under, upon, across and along the public streets and ways within the City such wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, pedestals, attachments and other property and equipment as are necessary to the operation of the Cable Communications System, provided, however, that Grantee complies with all design, construction, safety, and performance provisions contained in this Ordinance, the Franchise, and other applicable local Ordinances. 4. 3 USE OF GRANTEE FACILITIES. No poles shall be erected by the Grantee without prior approval of the City with regard to location, height, type and any other pertinent aspect. However no location of any pole of the Grantee shall be a vested right and such poles shall be removed or modified by the Grantee at its own expense whenever the City determines that the public convenience would be enhanced thereby. Grantee shall utilize existing poles and conduits, where possible. 4 . 4 FRANCHISE TERRITORY. The Franchise territory shall be the entire City, or portions thereof, for which a franchise is granted under authority of a franchise agreement. The service area shall be the entire territory defined in the franchise agreement. 4. 5 TERM OF FRANCHISE. The term of the Franchise shall commence as specified in the Franchise and shall continue for a period specified in the Franchise, unless sooner terminated as provided in the Franchise. The value of the Franchise at the end of the term shall be zero and no property right shall be conferred by the Franchise itself. 4. 6 FRANCHISE REQUIRED. No Cable Communications System shall be allowed to occupy or use the streets of the City or be allowed to operate without a Franchise. 4.7 CITY' S RIGHT TO PERFORM PUBLIC WORKS. Nothing in this Ordinance or the Franchise shall be in hindrance to the right of the City or any governmental authority to perform or 10 carry on, directly or indirectly, any public works or public improvements of any description. Should the Cable Communications System in any way interfere with the construction, maintenance or repair of such public works or public improvements, the Grantee shall, at its own cost and expense, protect or relocate its Cable Communications System, or part thereof, as reasonably directed by the City officials or any governmental authority. 4. 8 EMERGENCY REMOVAL OF PLANT. If at any time, in case of fire or disaster in the City, it shall become necessary in the reasonable judgment of the City to cut or move any of the wires, cables, amplifiers, appliances or appurtenances of the Cable Communications System, the City shall have the right to do so at the sole cost and expense of Grantee. 4. 9 REMOVAL AND RELOCATION. The City shall have the power at any time to order and require Grantee to remove or relocate any pole, wire, cable, or other structure that is unnecessarily dangerous to life or property. Restoration shall be made in as good a condition or better. In the event that Grantee after notice, fails or refuses to act within a reasonable time, the City shall have power to remove or relocate the same at the sole cost and expense of Grantee. 4. 10 REMOVAL OR ABANDONMENT. Upon termination of the Franchise by passage of time or otherwise, and unless Grantee transfers the Cable Communications System to a subsequent Grantee approved by the Common Council, Grantee shall remove its supporting structures poles, transmission and distribution systems, and all other appurtenances from the Streets and Public Grounds and shall restore the areas to as good a condition or better. Such removal shall be made so as not to conflict with public health, safety or convenience. Removal shall be completed within twelve ( 12) months after such termination. At that time the City may deem any property not removed as having been abandoned. Such property may then by removed at the option of the City at Grantee' s expense less any recoverable salvage value. 4. 11 NO WAIVER OF RIGHTS. No course of dealing between the Grantee and the City nor any delay on the part of the City in exercising any rights hereunder shall operate as a waiver of any such rights of the City or acquiescence in the actions of the Grantee in contravention of such rights except to the extent expressly waived by the City or expressly provided for in the Franchise. 11 4. 12 LIMITATION ON USE OF FINANCIAL COMMITMENTS. Any financial commitments obtained by the Grantee which have been confirmed to the City pursuant to the Franchise shall be used solely in connection with the construction, operation or maintenance of the Cable Communications System or the Grantee' s performance of the terms, obligations, and conditions of this Ordinance and the Franchise. 4. 13 TRANSFER OF OWNERSHIP OR CONTROL. A. TRANSFER OF FRANCHISE. Any Franchise granted hereunder cannot in any event be sold, transferred, leased, assigned or disposed of, including but not limited to by force or voluntary sale, merger, consolidation, receivership or other means without the prior consent of the City. B. TRANSFER OF CONTROL OR OWNERSHIP. The Grantee shall promptly notify the City of any actual or proposed change in control of the Grantee. Change in control means transfer. The word "control" as used herein is not limited to major stockholders but includes actual working control in whatever manner exercised. C. CITY AUTHORIZATION. Prior City authorization is required for every change, transfer, or acquisition of control of the Grantee. City consent will not be unreasonably withheld. For the purpose of determining whether it shall consent to such change, transfer, or acquisition of control, the City may inquire into the legal, financial, character, technical and other public interest qualifications of the prospective controlling party, and the Grantee shall assist the City in any such inquiry. Failure to provide all transfer related information reasonably requested by the City as part of said inquiry shall be grounds for denial of the proposed change, transfer or acquisition of control. D. ASSUMPTION OF CONTROL. The City agrees that any financial institution having a pledge of the Franchise or its assets for the advancement of money for the construction and/or operation of the Franchise shall have the right to notify the City that it or its designees satisfactory to the City will take control and operate the Cable Communications System. Further, said financial institution shall also submit a plan for such operation that will insure continued service and compliance with all Franchise obligations during the term the financial institution exercises control over the system. The financial institution shall not exercise control over the system for a period exceeding one year, unless extended by the City at its discretion and during said period of time it shall have the right to petition for transfer of the Franchise to another Grantee. If the City finds that such 12 transfer, after considering the legal, financial character, technical and other public interest qualifications of the applicant is satisfactory, the City will transfer and assign the rights and obligations of such Franchise as in the public interest. The consent of the City to such transfer shall not be unreasonably withheld. E. NO WAIVER OF RIGHTS. The consent or approval of the City to any transfer of the Grantee shall not constitute a waiver or release of the rights of the City in and to the streets, and any transfer shall, by its terms, be expressly subordinate to the terms and conditions of the Franchise. F. NO TRANSFER PRIOR TO COMPLETION OF CONSTRUCTION. In the absence of extraordinary circumstances, the City will not approve any transfer or assignment of the Franchise prior to completion of construction of the proposed system. G. FRANCHISE SIGNATORY. Any approval by the City of transfer or ownership or control shall be contingent upon the prospective controlling party becoming a signatory to the Franchise. H. TIMEFRAME. The City shall act on a request to transfer the Franchise within 120 days of the Grantee' s presentation to the Common Council requesting a transfer or assignment. The City' s approval of any transfer or assignment shall not be deemed an approval of the purchase price. SECTION 5 REGULATION OF FRANCHISE 5. 1 GENERAL. The City shall exercise appropriate regulatory authority under the provisions of this Ordinance and applicable law. This authority shall be vested in the Common Council or its designee to provide day-to-day administration and enforcement of the provisions of this Ordinance and any Franchise granted hereunder, and to carry- out the City' s responsibility with regard to cable communications. The City may from time to time adopt such reasonable rules and regulations that it may deem necessary in the exercise of its municipal powers. 5. 2 REGULATORY AUTHORITY. The City shall have the responsibility for the administration and enforcement of this Ordinance and the Franchise, including but not limited to the following duties, powers and authority which may be delegated at its discretion: ( 1) To administer and/or enforce all provisions of the Ordinance, and any Franchise granted hereunder. 13 ( 2) To receive and investigate complaints regarding substandard service and to initiate any action necessary pursuant to this Ordinance or the Franchise or any applicable law or regulation to correct the service deficiencies. ( 3 ) To represent the City' s interest before local, state or federal government agencies in cable communications matters. ( 4) To receive, evaluate and file all data and reports required by this Ordinance and to rule on such matters as appropriate under the Ordinance and State and Federal law or regulation. The City is hereby authorized to require adjustment to any fee, bond or insurance coverage or amount or charge contained herein not more frequently than bi- annually without hearing, to compensate for inflation or to reflect changing liability limits; provided, however, that the City shall notify Grantee prior to and after requiring such adjust- ment. Inflation shall be calculated in accordance with the regional Consumer Price Index. ( 5) To inspect at any time all construction, installation, and ongoing operation of the Cable Communications System, and to make such tests as it reasonably deems necessary to ensure compliance with the terms of this Ordinance, and the Franchise and other applicable laws and regulations. ( 6) To conduct public hearings and evaluation sessions as required under this Ordinance or as otherwise necessary for the proper effective administration of this Ordinance. (7) To appoint and furnish staffing for one or more advisory committees to provide advice, recommendations and other appropriate public input to the effective administration of this Ordinance and the Franchise. ( 8) To receive applications for rate increases, if the City has the authority to regulate rates, and provide staff assistance in the analysis and recommendations thereto. ( 9) To monitor Grantee' s adherence to operational standards and service requirements. 14 5 . 3 PERFORMANCE EVALUATION. The City and Grantee shall, at the discretion of the City, hold annual performance evaluation sessions. All such evaluation sessions shall be open to the public. Topics which may be discussed at any scheduled or special evaluation session may include, but not be limited to system performance, Grantee compliance with this Ordinance and the Franchise, customer service and complaint response, subscriber privacy, services provided, programming offered, service rate structures, Franchise fees, penalties, free or discounted services, applications of new technologies, and judicial and FCC filings. Grantee shall notify its subscribers of all evaluation sessions by announcement on at least one channel of its Cable Communications System between the hours of seven (7 ) p.m. and nine ( 9) p.m. , for five ( 5) consecutive days preceding each session. During review and evaluation Grantee and the City shall fully cooperate with each other and shall provide such information and documents as each may reasonably need to perform its review. 5. 4 RESPONSE TO CITY INQUIRIES. In accordance with the terms of this Ordinance and the Franchise, the City may, at any time, make reasonable inquiries concerned with the management and affairs of the Cable Communications System. Grantee shall respond to such inquiries in a timely fashion. 5. 5 QUALITY OF SERVICE. Where the City has questions about the reliability or technical quality of cable service, the City shall have the right and authority to require Grantee to test, analyze, and report on the performance of the Cable Communications System. Grantee shall fully cooperate with the City in performing such testing and shall prepare the results and a report, if requested, within thirty ( 30) days after notice. Such report shall include the following information: ( 1) the nature of the complaint or problem which precipitated the special tests; ( 2) the system component or area tested; ( 3 ) the equipment used and procedures employed in testing; ( 4) the method, if any, in which such complaint or problem was resolved; and ( 5) any other information pertinent to said tests and analysis which may be required. 15 The City may require that tests be supervised or conducted by a City staff member or a professional engineer who is not an employee or agent of the Grantee. Grantee shall reimburse the City for the costs of such engineer if the tests performed shows that the quality of service is below the standards set forth in this Ordinance or the Franchise. 5. 6 LIQUIDATED DAMAGES. For the violation of any of the following provisions of this Ordinance, the City shall notify the Grantee in writing of the violation, and the Grantee shall be allowed not less than thirty ( 30) days, or such greater amount of time as the City may specify, to correct such violation. In the event the Grantee fails to correct the violation, the City will be entitled to collect liquidated damages according to the schedule listed below. Such liquidated damages if not paid by the Grantee, shall be chargeable, to the extent available, to the letter of credit or bond tendered by Grantee within the aforesaid period of time. These liquidated damages shall be in addition to and not a limitation upon the other penal provisions of this Ordinance, including penalties or revocation, or other statutorily or judicially imposed penalties or remedies. ( 1) For failure to complete construction and installation in accordance with the Franchise, $100.00 per day. ( 2) For failure to submit reports or supply data in accordance with this Ordinance, $10. 00 per day for each day that such noncompliance continues. ( 3) For failure to test, analyze and report on the performance of the Cable Communications System in accordance with this Ordinance above, $25.00 per day for each day, or part thereof, that such noncompliance continues. ( 4) For failure to provide the capital equipment, and facilities, and services for public, educational and governmental access, as specified in the Franchise, $75. 00 per day, or part thereof, that such noncompliance continues. The City retains the right, at its sole option, to reduce or waive any of the above-listed penalties where extenuating circumstances or conditions beyond the control of the Grantee are deemed to exist. The Common Council or its designee shall determine the City' s willingness to reduce or waive any of the above-listed penalties. 16 5.7 CONSUMER REMEDIES. In order to promote compliance with this Ordinance and the Franchise, cable communications subscribers under the Franchise shall have the following rights and remedies in addition to any other remedies which may be available as a matter of law or equity to subscribers or others affected by the acts or omissions of the cable company. For example, this section is not meant to limit remedies available to subscribers under applicable laws governing consumer fraud or to limit remedies which may be available if as a consequence of the acts or omissions of the Grantee a resident loses utility services. Similarly, the remedies specified are not meant to limit any authority subscribers may have to enforce other terms of the Franchise against the Grantee. This section is in addition to any damages, remedies or other action which the City may take pursuant to its rights under the Franchise, or pursuant to its general police powers, or in the exercise of its rights under cable consumer Ordinances or regulations which exist now or may be adopted during the term of this Ordinance. ( 1) If the Grantee fails within ten days to pay a submitted repair bill on any damage it causes to property ( including damage which occurs during the course of stringing or burying cable or repairing cable) , the owner of the property shall be entitled to recover treble damages, and in any event no less than $100, for the period when the property remains in such unrepaired or unsafe condition. The Grantee shall be deemed to have left the property in an unrepaired or unsafe condition if the Grantee fails to repair damage to the property or to eliminate the unsafe condition within 24 hours after causing such property to be damaged or after creating the unsafe condition. ( 2 ) If the Grantee fails to provide any notice which may be required by the City, the subscriber shall be entitled to recover treble damages for such failure. ( 3 ) If the Grantee violates the privacy rights of any subscriber the subscriber shall be entitled to receive treble damages, and in any event no less than $500, for each such violation. ( 4 ) In any event where the City determines that the Grantee has improperly discriminated in its rates and charges for service, the City after giving the Grantee notice of Hearing and an opportunity to be heard, shall identify the applicable non- 17 discriminatory rate; the subscribers which have been adversely affected by the discrimination shall be entitled to a refund equal to treble any amounts paid over the nondiscriminatory rate plus interest at the prime rate. ( 5) The Grantee shall keep a record of the date and time it receives requests for service which require it to obtain access to the home of a subscriber or potential subscriber, and shall also keep a record of the appointments made with such subscriber or potential subscribers to provide service. Any occasion on which the Grantee or its agent does not cancel the appointment with the subscriber and fails to arrive at the home of the subscriber or potential subscriber during the appointment period shall be considered a missed appointment. The subscriber or potential subscriber with whom the appointments were missed shall be entitled to $50 damages for each appointment missed. ( 6) If the Grantee fails to substantially follow the procedures for disconnecting a subscriber, as set forth in this Ordinance and/or the Franchise, the subscriber who was improperly terminated shall be entitled to receive treble damages. (7) If a cable subscriber does not receive service for more than a four hour period, the affected subscriber shall be entitled to recover treble damages. In addition to the foregoing, if any subscriber is required to bring judicial proceedings to enforce his/her rights and remedies set forth herein, and is ultimately successful in such judicial proceedings, then that subscriber is entitled to recover all reasonable attorney' s fees and expenses incurred in the prosecution of such judicial proceedings as fixed by the Court. Notwithstanding anything herein to the contrary, if the Grantee notifies the subscriber in writing not less than ten days before the initial appearance in any judicial proceeding that it will not use an attorney in that proceeding, and thereafter does not use an attorney, then the subscriber should not be entitled to recover any attorney fees and expenses. 5. 8 DETERMINATION OF BREACH. In the event that the City has reason to believe that Grantee has defaulted in the performance of any provision of this Ordinance or the Franchise 18 except as excused by force majeure, the City shall notify Grantee in writing of the provision or provisions which the City believes may be in default. Grantee shall have thirty ( 30) days from the receipt of such notice to: ( i) respond to the City in writing, contesting the Grantor' s assertion of default and providing such information or documentation as may be necessary or; ( ii) to cure any such default or, in the event that, by nature of the default, such default cannot be cured within such thirty ( 30) day period to take reasonable steps to cure the default and diligently continue such efforts until said default is cured. Grantee shall report to the City in writing, at thirty ( 30) day intervals as the Grantee' s efforts, indicating the steps taken by Grantee to cure the default and reporting Grantee ' s progress until such default is cured. In the event Grantee fails to cure the default within the stated period the City shall convene a public hearing on reasonable notice at which hearing the Grantee may be heard and after which the City shall specify the complaint against the Grantee; thereafter the City shall appoint an impartial person to act as factfinder who shall fix a date for a hearing at which evidence shall be received and a record kept of evidence of the complaint. The factfinder shall report in writing to both parties with his or her findings of fact. The Common Council shall make a finding of violation or no violation based on those findings. In the event that the City determines that Grantee is in default of any such provision of this Ordinance or the Franchise, the City may also determine to pursue any or all of the following remedies: (a) foreclose on all or any part of the security provided pursuant to this Ordinance, including without limitation the performance bond and/or the letter of credit; provided, however, the foreclosure shall be in such amount as the City reasonably determines is necessary to remedy the default and shall include payment of all City expenses incurred in connection with the fact- finding hearing. (b) commence an action at law for monetary damages, including the expenses of the fact-finding hearing. (c) declare the Franchise to be revoked and order Grantee to commence the removal of the Cable Communications System immediately or to cooperate 19 with the City, or any such agency or person authorized or directed by the City to operate the Cable Communications System for a one year period, in maintaining the continuity of service; and (d) seek specific performance of any provision, which reasonably lends itself to such remedy, as an alternative to damages. The Grantee may seek recourse as available by law or regulation. 5. 9 NON-EXCLUSIVITY OF REMEDY. No decision by the City to invoke any remedy under this Ordinance or under any statute, law or Ordinance shall preclude the availability of any other such remedy. 5. 10 JURISDICTION. Exclusive jurisdiction and venue over any dispute, action or suit arising therefrom shall be in any court of appropriate subject matter jurisdiction located in the State of New York and the parties by this instrument subject themselves to the personal jurisdiction of said court for the entry of any judgment and for the resolution of any dispute, action, or suit arising in connection with the entry of such judgment. 5. 11 NOTIFICATION. Grantee shall file with the City schedules which shall describe all services offered by Grantee, all rates and charges of any kind and all terms or conditions relating thereto. Thereafter, Grantee shall file with the City all changes in services, all rates and charges of any kind, and all terms and conditions relating thereto thirty ( 30) days prior to all such changes. No rates or charges shall be effective except as they appear on a schedule so filed. 5. 12 FREE CONNECTIONS. Grantee shall provide upon request and free of charge the drops set forth in the Franchise. Grantee shall discuss the location of each connection with the proper officials of each such institution receiving free connection. 5. 13 PUBLICATION. All rates for subscriber services and leasing of channels shall be published. A written schedule of all rates shall be available upon request during business hours at Grantee' s business office and all other facilities. Nothing in this Ordinance shall be construed to prohibit the reduction or waiver of charges for attracting subscribers, or the establishment of charges and rate schedules that may vary with volume or nature of usage or programs. 20 5. 14 CREDIT FOR SERVICE INTERRUPTION. In the event that Grantee' s service to any subscriber or user of leased channel space is interrupted for twenty-four ( 24 ) or more consecutive hours, Grantee shall, in addition to any remedy set forth in section 5.7, grant expeditiously such subscriber or user a pro-rata credit. 5. 15 RATE REGULATION. To the extent that Federal or State law or regulation may now, or as the same may hereafter be amended to, authorize the City to regulate the rates for any particular service tiers, service packages, equipment, or any other services provided by the Grantee, the City shall have the right to exercise rate regulation to the full extent authorized by law for the first tier of service. For other tiers of service that may be included in the Basic Subscriber Television Service, for which the City shall have the right to exercise rate regulation, the City and the Grantee shall negotiate the rate for the service. When exercising rate regulation, the City shall consider, along with any other information it deems necessary or appropriate, the following factors in approving or disapproving a rate increase request: the ability of the Grantee to render Cable Communications System service; the efficiency of the Grantee; the quality of the service offered by the Grantee; the fair value cost of the Cable Communications System less depreciation; a fair rate of return over the life of the Franchise with respect to Grantee' s investment; the financial commitments required to meet the terms of this Ordinance and the Franchise; the extent to which Grantee has adhered to the terms of this Ordinance; fairness to City residents, subscribers and users. The approval by the City of any purchase price herein shall not obligate the City to consider that purchase price as the fair value cost for rate regulation purposes or otherwise. The City may retain rate consultants as it deems appropriate. 5.16 FRANCHISE FEE ENTITLEMENT. The City of Ithaca shall be entitled to receive from Grantee a Franchise fee of five percent ( 50) of Grantee' s Gross City Revenue. 5.17 PAYMENT. The Franchise fee established in 5. 19 above shall be tendered as follows: (i) Five percent ( 50) of Grantee' s Gross City Revenue for successive three ( 3 ) month periods tendered within forty-five ( 45 ) days after each such period. Said periods shall commence upon the execution of a Franchise granted pursuant to this Ordinance. 21 5.18 FRANCHISE AND RENEWAL EXPENSE REIMBURSEMENT. Grantee is required to reimburse the City for the expenses of the franchising and renewal processes such as consultants fees, which are incidental to enforcement of the Ordinance or Franchise. These requirements or charges shall not be considered part of the Franchise fee. 5. 19 AFFILIATES' USE OF SYSTEM. To the extent necessary to prevent Grantee from diverting revenues from the operation of the Cable Communications System from Grantee to Affiliates to the detriment of the City, Affiliates (excluding any affiliate which provides a national or regional programming service) shall be permitted to utilize the Cable Communications System only if a Franchise fee on City revenues derived therefrom is paid. 5. 20 LATE PAYMENT. In the event that the fees herein required are not tendered on or before the dates fixed in this Ordinance, interest due on such fee shall accrue from the date due at an annual rate of three percent ( 30) above the prime rate or rates of interest, at the City' s primary depository bank. 5. 21 RECOMPUTATION. Tender or acceptance of any payment shall not be construed as an accord that the amount paid is correct, nor shall such acceptance of payment be construed as a release of any claim the City of Ithaca may have for additional sums including interest payable under this Ordinance or the Franchise. All amounts paid shall be subject to audit and recomputation, by an independent auditor chosen by the City, which shall be based on a fiscal year and shall occur in no event later than one ( 1) year after the fees are tendered with respect to such fiscal year. If, after audit and recomputation, an unpaid fee is owed to the City, such fee shall be paid within thirty ( 30) days after audit and recomputation and the Grantee shall pay the costs of the audit. The interest on such unpaid fee shall be charged from the due date at an annual rate of three percent ( 30) above the prime rate or rates of interest at the City' s primary depository bank during the period that such unpaid amount is owed. 5.22 RIGHT OF INSPECTION OF RECORDS. The City shall have the right to inspect all books, records, reports, maps, plans, financial statements, and other like materials of the Grantee as provided in this Ordinance, at any time during normal business hours. 5. 23 RIGHT OF INSPECTION OF CONSTRUCTION. The City shall have the right to inspect all construction or installation work performed subject to the provisions of the Franchise and to make such tests as it shall find necessary to ensure compliance with the terms of this Ordinance and other pertinent provisions of law. 22 5.24 RIGHT OF INSPECTION OF PROPERTY. At all reasonable times and for the purpose of enforcement of this Ordinance and the Franchise, Grantee shall permit examination by any duly authorized representative of the City, of all cable communication system and facilities together with any appurtenant property of Grantee situated within the City and outside of the City if it is utilized in the operation of the City' s Cable Communications System. 5. 25 FRANCHISE RENEWAL. Upon completion of the term of any Franchise granted under this Ordinance, the City may grant or deny renewal of the Franchise of the Grantee in accordance with the provisions of the Cable Act and any other applicable federal, state and local laws. SECTION 6 BONDS, INSURANCE, AND INDEMNIFICATION. 6. 1 PERFORMANCE BOND AND LETTER OF CREDIT. A. PERFORMANCE BOND. Not later than forty-five ( 45) days after the effective date of the Franchise, the Grantee shall obtain and maintain during the entire term of the Franchise and any extensions and renewals thereof, at its cost and expense, and file with the City, a corporate surety bond in an amount specified in the Franchise to guarantee the faithful performance of the Grantee of all its obligations provided under this Ordinance and the Franchise. Failure to timely obtain, file and maintain said bond shall constitute a violation of this Ordinance. B. CONDITIONS. The performance bond shall provide the following conditions: ( 1) There shall be recoverable by the City jointly and severally from the principal and surety, any and all fines and penalties due to the City and any and all damages, losses, costs, and expenses suffered or incurred by the City resulting from the failure of the Grantee to: faithfully comply with the provisions of this Ordinance and the Franchise; comply with all lawful orders, permits and directives of any City agency or body having jurisdiction over its acts or defaults; pay fees due to the City; pay any claims due the City as resulting from judicial action; pay any claims, liens or taxes due the City which arise by reason of the construction, operation, maintenance or repair of the Cable Communications System. Such losses, costs and expenses shall include but not be limited to attorney' s fees and other associated expenses. 23 ( 2) The total amount of the bond shall be forfeited in favor of the City in the event: (a) The Grantee abandons the Cable Communications System at any time during the term of the Franchise or any extension thereto; (b) The Grantee assigns the Franchise without the express written consent of the City. C. REDUCTION OF BOND. Upon written application by the Grantee, the City may, at its sole option, permit the amount of the bond to be reduced or waive the requirements for a performance bond subject to the conditions set forth below. Reductions granted or denied upon application by the Grantee shall be without prejudice to the Grantee' s subsequent applications or to the City' s right to require the full bond at any time thereafter. However, no application shall be made by the Grantee within one ( 1) year of any prior application. D. LETTER OF CREDIT. In addition to the performance bond required pursuant to paragraph A above, the City may, in its discretion, require the Grantee to obtain, maintain and file with the City an irrevocable letter of credit from a financial institution licensed to do business in the State in an amount specified in the Franchise, naming the City as beneficiary. The form and contents of such letter of credit shall be approved by the City and shall be released only upon expiration of the Franchise or upon the replacement of the letter of credit by a successor Grantee. Failure to obtain the letter of credit within the time specified herein shall constitute a violation of this Ordinance. E. CONDITIONS. The City may draw upon the letter of credit if the Grantee fails to: faithfully comply with the provisions of this Ordinance and the Franchise; comply with all orders, permits and directives of any City agency or body having jurisdiction over its acts or defaults; pay fees due to the City; or pay any claims, liens or taxes due the City which arise by reason of the construction, operation, maintenance or repair of the Cable Communications System. F. USE OF PERFORMANCE BOND AND LETTER OF CREDIT. Prior to drawing upon the letter of credit or the performance bond for the purposes described in this Section, the City shall notify the Grantee in writing that payment is due and the Grantee shall have thirty ( 30) days from the receipt of such written notice to make a full and complete payment. If the Grantee does not make the payment within thirty ( 30) days, the City may withdraw the amount thereof, with interest and penalties, from the letter of credit and the performance bond. 24 G. NOTIFICATION. Within three ( 3 ) days of a withdrawal from the letter of credit or performance bond, the City shall send to the Grantee, by certified mail, return receipt requested, written notification of the amount, date and purpose of such withdrawal. H. REPLENISHMENT OF LETTER OF CREDIT AND PERFORMANCE BOND. No later than thirty ( 30) days after mailing to the Grantee by certified mail notification of a withdrawal pursuant to paragraph F above, the Grantee shall replenish the letter of credit and/or performance bond in an amount equal to the amount so withdrawn. Failure to make timely replenishment of such amount to the letter of credit and/or performance bond shall constitute a substantial violation of this Ordinance. I . NON-RENEWAL, ALTERATION OR CANCELLATION OF LETTER OF CREDIT OR PERFORMANCE BOND. The performance bond and letter of credit required herein shall be in a form satisfactory to the City and shall require thirty ( 30) days written notice to the City of any non-renewal, alteration or cancellation to both the City and the Grantee. The Grantee shall, in the event of any such cancellation notice, obtain, pay all premiums for, and file with the City, written evidence of the issuance of replacement bond or policies within thirty ( 30) days following receipt by the City or the Grantee of any notice of cancellation. J. To offset the effects of inflation the amounts of the bond and letter of credit provided for herein, are subject to reasonable increases at the end of every three ( 3 ) year period of the Franchise, applicable to the next three year period, upon the determination of the City. Inflation compensation shall be computed in accordance with the regional Consumer Price Index. K. The City shall not seek recovery from the Performance Bond or the Letter of Credit until it has provided the Grantee with thirty ( 30) days to cure any default. 6. 2 LIABILITY AND INSURANCE. A. Prior to commencement of construction, but in no event later than sixty ( 60) days after the effective date of the Franchise and thereafter continuously throughout the duration of the Franchise and any extensions or renewals thereof, the Grantee shall furnish to the City, certificates of insurance, approved by the City, for all types of insurance required under this Section. Failure to furnish said certificates of insurance in a timely manner shall constitute a violation of this Ordinance. 25 B. To the extent provided in the franchise agreement any insurance policy obtained by the Grantee in compliance with this Section shall be filed and maintained with the City Clerk during the term of the Franchise, and may be changed from time to time to reflect changing liability limits and/or to compensate for inflation. C. Neither the provisions of this Section or any damages recovered by the City hereunder, shall be construed to or limit the liability of the Grantee under any Franchise issued hereunder for damages. D. The Grantee shall provide the City with written notice of its intention to cancel or not renew any of the insurance policies maintained pursuant to this Ordinance or the Franchise. E. The Franchise shall include the provision of the following Hold Harmless clause: The Company agrees to indemnify, save harmless and defend the City, its agents, servants, and employees, and each of them against and hold it and them harmless from any and all lawsuits, claims, demands, liabilities, losses and expenses, including court costs and reasonable attorney' s fees for or on account of any injury to any person, or any death at any time resulting from such injury, or any damage to any property, which may arise or which may be alleged to have arisen out of or in connection with the work covered by this Agreement. The foregoing indemnity shall apply except to the extent such injury, death or damage is caused by the negligence or other fault of the City, its agents, servants, or employees or any other person indemnified hereunder. F. All insurance policies provided under the provisions of this Ordinance or the Franchise shall be written by companies authorized to do business in the State, and approved by the State. G. To the extent provided in the franchise agreement at any time during the term of the Franchise, the City may request and the Grantee shall comply with such request, to name the City as an additional named insured for all insurance policies written under the provisions of this Ordinance or the Franchise. H. To offset the effects of inflation and to reflect changing liability limits, all of the coverages, limits, and amounts of the insurance provided for herein are subject to reasonable increases at the end of every three ( 3) year 26 period of the Franchise, applicable to the next three year period, upon the determination of the City. Inflation compensation shall be computed in accordance with the regional Consumer Price Index. 6. 3 GENERAL LIABILITY INSURANCE. The Grantee shall maintain, and by its acceptance of any Franchise granted hereunder specifically agrees that it will maintain throughout the term of the Franchise, general liability insurance insuring the Grantee in the minimum of: ( 1) $500,000 for property damage per occurrence; ( 2) $1, 000,000 for property damage aggregate; ( 3) $1, 000, 000 for personal bodily injury to any one person; and ( 4) $2,000, 000 bodily injury aggregate per single accident or occurrence. Such general liability insurance must include coverage for all of the following: comprehensive premises- operations, explosion and collapse hazard, underground hazard, products/completed operations hazard, contractual insurance, broad form property damage, and personal injury. 6. 4 AUTOMOBILE LIABILITY INSURANCE. The Grantee shall maintain, and by its acceptance of any Franchise granted hereunder specifically agrees that it will maintain throughout the term of the Franchise, automobile liability insurance for owned, non-owned, or rented vehicles in the minimum amount of: ( 1) $1 ,000, 000 for bodily injury and consequent death per occurrency; ( 2) $1,000,000 for bodily injury and consequent death to any one person; and ( 3 ) $500, 000 for property damage per occurrence. 6. 5 WORKER'S COMPENSATION AND EMPLOYER'S LIABILITY INSURANCE. The Grantee shall maintain and by its acceptance of any Franchise granted hereunder specifically agrees that it will maintain throughout the term of the Franchise, Worker' s Compensation and employer ' s liability, valid in the State, in the minimum amount of: ( 1) Statutory limit for Worker ' s Compensation. (2) $100,000 for employer's liability. 27 6 . 6 INDEMNIFICATION A. Grantee shall, at its sole cost and expense, fully indemnify, defend and hold harmless the City, its officers, boards and commissions, and City employees against any and all claims, suits, actions, liability and judgments for damages (including but not limited to expenses for reasonable legal fees and disbursements and liabilities assumed by the City in connection therewith) : ( 1) To persons or property, arising out of or through the acts or omissions of Grantee, its servants, agents or employees. ( 2) Arising out of any claim for invasion by the Grantee, its servants, agents, or employees of the right of privacy, for defamation of any person, firm or corporation, or the violation or infringement of any copyright, trademark, trade name, service mark or patent, or of any other right of any person, firm or corporation. ( 3) Arising out of Grantee' s failure to comply with the provisions of any federal, state, or local statute, Ordinance, or regulation applicable to Grantee in its business hereunder. B. The foregoing indemnity is conditioned upon the following: The City shall give Grantee prompt notice of the making of any claim or the commencement of any action, suit or other proceeding covered by the provisions of this Section. Nothing herein shall be deemed to prevent the City from cooperating with Grantee and participating in the defense of any litigation by its own counsel at its sole` cost and expense. SECTION 7 SUBSCRIBER AND USER RIGHTS 7. 1 SUBSCRIBER SOLICITATION. Each representative or employee of the Grantee, entering upon private property shall be required to wear an employee identification card issued by Grantee and bearing a picture of said representative. 7 . 2 SALES INFORMATION. Grantee shall provide to all subscribers annually and all prospective subscribers or users complete written information concerning all services and rates available to such subscriber upon solicitation of service and prior to the consummation of any 28 agreement for installation of service. Such sales material shall clearly and conspicuously disclose the price and other information concerning Grantee ' s least costly service. Such information shall be written in plain English and shall include but shall not be limited to the following: all services, tiers, and rates; deposits if applicable; installation costs; additional television set charges; service upgrade or downgrade charges; lockout devices; and information concerning the utilization of video cassette recorders (VCRs) with cable service(s) and the cost for hooking up such VCRs. 7. 3 BILLING PRACTICES INFORMATION. Grantee shall inform all subscribers annually and all prospective subscribers or users of complete information respecting billing and collection procedures, procedures for ordering changes in or termination of services, and refund policies, upon solicitation of service and prior to the consummation of any agreement for installation of service. Such information shall be written in plain English. 7. 4 NOTICE OF INSTALLATION. Grantee shall inform all persons in advance of the date and approximate time its employee or agents shall enter onto such person' s property for the purpose of installing cable communications service. 7. 5 BUSINESS OFFICE. Grantee shall maintain and operate within the City of Ithaca a business office for the purpose of receiving and resolving all complaints, including without limitation, those regarding service, equipment malfunctions or billing and collection disputes. The business office shall have a publicly listed local telephone number and shall be open for both telephone and walk-in business. Grantee shall provide all subscribers or users with at least thirty ( 30) days prior written notice of a change in business office hours. 7. 6 NOTICE OF COMPLAINT PROCEDURE. Grantee shall periodically, and at various times of the day, present its business office address and publicly listed local telephone number by means of alpha-numeric display on a local origination channel. 7.7 RESPONSE TO SERVICE COMPLAINT. The Grantee shall respond to requests for repair service no later than the next business day. System outages, whole or partial, shall be acted upon as soon as practicable. Grantee shall keep a record of all such complaints in compliance with state law and provide the record to the City as requested. 29 7.8 UNRESOLVED COMPLAINTS. Should a subscriber or user have a complaint which is unresolved after fourteen (14) days after notifying grantee thereof, the subscriber or user shall be entitled to file his complaint with the City, which shall have primary responsibility for the continuing administration of this Ordinance and the Franchise and the implementation of complaint procedures. A representative of Grantee shall be available thereafter to meet jointly with the City and the affected subscriber or user, within thirty ( 30) days after said subscriber or user has filed the complaint, to fully discuss and resolve the matter. If the matter cannot be resolved, the City may use judicial proceedings to resolve the matter; all judgments and costs for attorney' s fees will be paid by the Grantee. 7.9 NOTICE OF PUBLIC MEETING. Whenever notice of any public meeting relating to the Cable Communications System is required by law or regulation, the City shall publish or cause to be published a notice of same sufficient to identify its time, place and purpose, in an Ithaca newspaper of general circulation once in each of two ( 2) successive weeks, the first publication being not less than fourteen ( 14 ) days before the day of any such hearing; and the Grantee by periodic announcement on the programming guide channel, and on at least one ( 1 ) channel of the Cable Communications System between the hours of seven (7) p.m. and nine ( 9) p.m. , for four ( 4) consecutive days during each such week. 7. 10 SUBSCRIBER PRIVACY INFORMATION. Grantee shall at all times protect the privacy of subscribers as provided in this Ordinance and other applicable Federal, State and Local laws. 7. 11 PEOPLE METER. No people meter shall be used without the express written consent of the subscriber. 7.12 CONVERTERS. Grantee shall utilize state-of-the- art converters. Grantee shall make converters available to subscribers for rent or purchase. Grantee shall allow subscribers to purchase or rent converters from other vendors. Grantee shall provide detailed information written in "plain English" to consumers and upon request to any sellers of converters on the items necessary for converter compatibility with Grantee' s Cable Communications System. Subscribers shall not be required to replace damaged converters rented from the Grantee if the damage resulted from fire, flood, earthquake, or other natural disaster or act of God. 30 7. 13 INTERNAL WIRING. Grantee shall install and/or maintain internal wiring for subscribers. As of March 1, 1989, Grantee may own the internal wiring or, at the subscribers discretion, the subscriber may own the wiring. Grantee shall allow subscribers or other vendors to install, own, and/or maintain internal wiring. Any subscriber, who duly notifies Grantee within the time period reasonably established and advertised by Grantee, may acquire ownership of the internal wiring at his/her premises without charge. In the event of signal leakage grantee may terminate service consistent with Federal law. 7 . 14 REMOTE CONTROLS. Grantee shall make remote control units available to subscribers to purchase or rent. Grantee shall allow subscribers to purchase or rent remote control units from other vendors. Grantee may provide remote control units to subscribers at no charge as a part of its package of services. Grantee shall provide detailed information written in "plain English" to consumers and upon request to any sellers of remote controls on the items necessary for compatibility with Grantee' s Cable Communications System. Subscribers shall not be required to replace damaged remote control units rented from the Grantee if the damaged resulted from fire, flood, earthquake, or natural disaster or act of God. 7. 15 PUBLIC, EDUCATIONAL AND MUNICIPAL ACCESS. The Grantee shall ensure the development and propagation of public, governmental and educational access as a vital community resource. The City shall establish requirements in the Franchise with respect to the designation of channel capacity, facilities, equipment, and services for public, educational and governmental use. 7. 16 LOCAL ORIGINATION. The City shall establish enforcement mechanisms in the Franchise with regard to local origination channel capacities, facilities, equipment, and programming. SECTION 8 DESIGN AND CONSTRUCTION PROVISIONS 8. 1 LOCATION OF CABLE COMMUNICATIONS SYSTEMS. Grantee shall construct, install, operate and maintain all elements of the Cable Communications System within the City in accordance with the maps and other documents submitted in connection with this Ordinance or the Franchise. Poles, towers and other obstructions shall be erected so as not to interfere with vehicular or pedestrian traffic over public ways and places. The erection and location of all poles, towers and other obstructions shall be fixed with the prior written approval and under the supervision of the City 31 pusuant to local regulation, provided, however, Grantee shall not have a vested interest in such location; and such construction shall be removed by Grantee at its sole cost and expense, whenever in the judgment of the City, the same restricts or obstructs the operation or location or any future operation or location of public ways and places, or whenever the City closes or abandons any public way or place. 8. 2 DISCONNECTION AND RELOCATION. Grantee shall, at its sole cost and expense, protect, support, temporarily disconnect, relocate in the same street, or other streets and public grounds, or remove from any street or any other public ways and places, and of its property as reason of traffic conditions, public safety, street construction, change or establishment of street grade, or the construction of any public improvement or structure by any City Department. 8. 3 PRIVATE PROPERTY. Grantee shall be subject to all laws, ordinances or regulations regarding private property in the course of constructing, installing, operating or maintaining the Cable Communications System in the City of Ithaca. Grantee shall promptly repair or replace all private property, both real and personal, damaged or destroyed as a result of the construction, installation, operation or maintenance of the Cable Communications System at its sole cost and expense. 8. 4 REPAIRS AND RESTORATIONS. The Grantee shall restore any street it has disturbed, and shall, at its own cost and expense, restore and replace any other property disturbed, damaged or in any way injured by or on account of its activities to as good as the condition such property was in immediately prior to the disturbance, damage or injury. Restoration must be in accordance with the rules and regulations established by the City. 8. 5 TREE TRIMMING. Grantee may trim trees or other vegetation owned by the City to prevent branches, leaves or roots from touching or otherwise interfering with its wires, cables, or other structures as approved by the City. 8. 6 UNDERGROUND FACILITIES. In all areas of the City where cables, wires, and other like facilities of the - telephone and electric utilities are already underground, the Grantee must also place its facilities underground. At such time as these facilities are placed underground by the telephone and electric utility companies or are required as are telephone and/or electric to be placed underground by the City, the Grantee shall likewise place its facilities underground at its sole cost and expense. Underground cable lines shall be placed beneath the pavement subgrade (minimum 22 inches to top of cable) . 32 8.7 CITY PROPERTY. Where any damages or alterations occur to the City' s water, sewage or drainage lines or to any other municipal structures in the streets during the construction due to the presence, negligence, operation or maintenance of the Cable Communications System, the sole cost of such repairs including all services and materials will be billed to the Grantee and these charges shall be paid within 60 days of receipt of notice or the City may foreclose on performance bonds, or invoke other appropriate sanctions provided for in this Ordinance. 8. 8 TEMPORARY RELOCATION. Grantee shall temporarily raise or lower its wires or other equipment upon the reasonable request of any person, including without limitation, a person holding a building moving permit issued by the City. The expense of such raising or lowering shall be paid by the person requesting the same and Grantee shall have the authority to require such payment in advance. Grantee shall be given reasonable notice necessary to maintain continuity of service. This provision shall not apply to requests by the City for City purposes for which movement there shall not be a charge by the Grantee. 8.9 CITY MAPS. The City does not guarantee the accuracy of any maps showing the horizontal or vertical location of existing substructures. In public-rights-of- ways, where necessary, the location shall be verified by excavation. 8. 10 CONSTRUCTION NOTICE. Grantee shall give appropriate notice to the City and residents within a reasonable period of time of proposed construction, excavation, laying or stringing of cable under streets or on poles, but in no event shall such notice be given less than seven (7 ) days before such commencement. 8.11 SAFETY AND CONSTRUCTION STANDARDS. The construction, installation, operation, maintenance, and/or removal of the Cable Communications System shall meet all of the following safety, construction, and technical specifications and codes and standards. Occupational Safety and Health Administration Regulations (OSHA) National Electrical Code National Electrical Safety Code (NESC) National Cable Television Standard Code AT&T Manual of Construction Procedures (Blue Book) Bell Telephone Systems Code of Pole Line Construction All Federal, State, and Municipal Construction Requirements, including FCC Rules and Regulations 33 Utility Construction Requirements All Building and Zoning Codes, and all Land Use Restrictions as the Same Exist or may be Amended Hereafter. 8. 12 CONTRACTORS AND SUBCONTRACTORS All contractors or subcontractors of Grantee must be properly licensed under all applicable Federal, State and local laws and regulations. Grantee shall be responsible for all acts or omissions of any such contractor or subcontractor in the construction, installation, maintenance or operation of Grantees Cable Communications System. 8.13 CONSTRUCTION PLAN APPROVAL. Prior to the erection or installation by the Grantee of any towers, poles, underground conduits, or fixtures for use in connection with initial construction, rebuild, upgrade or line extension of the Cable Communications System under this Ordinance, the Grantee shall make available for City approval a concise description of the facilities proposed to be erected or installed, including strand maps, if required, together with a map and plans indicating the proposed location of all such facilities. Approval by the City shall not be unreasonably withheld and shall be completed in a timely manner. For the rebuild the Grantee shall allow a City selected engineer to inspect such information, maps and plans for five business days in the Grantee ' s office. Prior to the five days, the Grantee shall give the City thirty ( 30) days prior notice that such information will be available. The Grantee shall accommodate reasonable scheduling modifications. If the Grantee makes a material change in any part of the system design, the City shall be notified prior to construction and shall have a reasonable period of time to have an engineer review the changes in the Grantee ' s office. No erection or installation of any tower, pole, underground conduit, or fixture for use in the Cable Communications System shall be commenced by any person until approval therefore has been received from the City pursuant to local regulation and provided further, that such approval shall not be unreasonably withheld. 8. 14 EQUIPMENT CHANGES. Any substitution or changes in hardware components must be for equal to or better than the items specified in the Franchise, (e.g. , amplifiers, cable, antennas) . 8. 15 EXTENSION OF SERVICE. The Grantee shall make cable service available to all dwelling units and commercial establishments within thirty ( 30) days of a request for such service and the receipt of any applicable City, State, Federal and utility company permits, and of permission from any landlord or other person controlling access to such premises. 34 8. 16 ERECTION, REMOVAL AND COMMON USE OF POLES. A. No poles shall be erected by the Grantee without prior approval of the City with regard to location, height, types and any other pertinent aspect. However, no location of any pole or wire-holding structure of the Grantee shall give rise to a vested interest and such poles or structures shall be removed or modified by the Grantee at its own expense whenever the City determines that the public convenience would be enhanced thereby. B. Where poles already exist for use in serving the City are available for use by the Grantee, but it does not make arrangements for such use, the City may require the Grantee to use such poles and structures if it determines that the public convenience would be enhanced thereby and the terms of the use available to the Grantee are just and reasonable. C. Where a public utility serving the City desires to make use of the poles or other wire-holding structures of the Grantee, but agreement thereof with the Grantee cannot be reached, the City may require the Grantee to permit such use for such consideration and upon payment of the prevailing public utility rates for make ready and pole attachment rental, if the City determines that the use would enhance the public convenience and would not unduly interfere with the Grantee ' s operation. 8. 17 RIGHT TO INSPECTION OF CONSTRUCTION. The City or its designee shall have the right to inspect at any time all construction or installation work performed subject to the provisions of this Ordinance and the Franchise and to make such tests as it shall deem necessary to ensure compliance with the terms of this Ordinance, the Franchise and all other applicable law. Grantee shall cooperate fully with the City during all inspections and tests and shall provide access to all equipment records, and other materials and information necessary for such inspections and tests. 8. 18 CONSTRUCTION REPORTING REQUIREMENTS. A. Within thirty ( 30 ) days of the granting of a Franchise pursuant to this Ordinance, the Grantee shall have applied for any necessary agreements, licenses, or certifications and shall provide the City with a written progress report. B. Written progress reports shall be submitted to the City on a monthly basis throughout the entire construction process. 35 8.19 INSPECTION. The City shall have the right to inspect, or appraise, as specified in this Ordinance, the plant equipment, and other cable system related property of Grantee. Grantee shall fully cooperate and otherwise assist in these activities. 8. 20 INITIAL PERFORMANCE TEST. Initial proof of performance testing shall occur within sixty ( 60) days prior to the commencement of the Cable Communications System service to each section of the City as set forth in the Franchise. Should performance prove defective, the defect shall be appropriately remedied. The costs of such test _ shall be borne solely by Grantee. 8. 21 ANNUAL PERFORMANCE TEST. Performance requirements and standards specified in the Franchise, shall be measured annually to ensure compliance with same. The costs of such tests shall be borne by Grantee. SECTION 9 MAINTENANCE AND INSPECTION 9. 1 GENERAL. Grantee shall maintain wires, cables and all other real and personal property and facilities constituting the Cable Communications System in good condition, order and repair at all times during the term of the Franchise. 9. 2 MAINTENANCE LOG. Grantee shall maintain an annual log showing the date, approximate time and duration, type and probable cause of all Cable Communications System outages, whole or partial, due to causes other than routine testing or maintenance. The entries in such log shall be retained by Grantee for one ( 1) additional year and shall be subject to inspection and copying by the City or its designee during Grantee' s regular business hours upon reasonable request. 9. 3 SERVICE INTERRUPTION. Except where there exists an emergency situation necessitating a more expeditious procedure, Grantee may interrupt service for the purpose of repairing, upgrading or testing the Cable Communications System, only during periods of minimum use, and only after a minimum of twenty-four ( 24 ) hours notice to affected subscribers. 9. 4 RADIATION MONITORING. Radiation monitoring shall be conducted by all maintenance technicians on an ongoing basis. The results of said monitoring shall be made available to the City upon request. 36 SECTION 10 EMPLOYMENT, TRAINING AND PROCUREMENT 10. 1 EQUAL EMPLOYMENT OPPORTUNITY AND AFFIRMATIVE ACTION PROGRAMS. Grantee shall be an Equal Opportunity/Affirmative Action Employer adhering to all Federal, State or municipal laws and regulations. Pursuant to 47 CFR 76. 311 and other applicable regulations of the FCC, Grantee shall file an Equal Employment Opportunity Affirmative Action Program with the FCC and otherwise comply with all FCC regulations with respect to Equal Employment/Affirmative Action Opportunities. 10. 2 EMPLOYMENT POLICY. Grantee shall act affirmatively to increase the number of women and members of various minority groups to their approximate proportion in the total population of the Franchise area at all levels of employment and to enhance the opportunities for women and various minority groups to advance and win promotions in all categories of employment. As part of its obligation under Section 10. 1 above, Grantee shall take affirmative action to employ, during the construction, operation and maintenance of the Cable Communications System minorities and females as set forth in the Franchise. Grantee shall submit to the City annual EEO reports required by the Federal Communications Commission. SECTION 11 BOOKS, RECORDS, AND REPORTS 11. 1 BOOKS AND RECORDS AVAILABLE TO THE GRANTOR. A. BOOKS AND RECORDS. The City reserves the right to inspect all pertinent books, records, maps, plans, financial statements and other like material, of the Grantee, upon reasonable notice and during normal business hours. B. AVAILABILITY OF RECORDS. If any of such maps or records are not kept in the City, or upon notice the Grantee is unable to provide the records in the City, and if the City shall determine that an examination of such maps or records is necessary or appropriate to the performance of any of their duties, then all travel and maintenance expenses necessarily incurred in making such examination shall be paid by Grantee. 11. 2 REPORTS REQUIRED. The Grantee shall file with the City: A. REGULATORY COMMUNICATIONS. All reports required by or voluntarily submitted to the New York State Commission on Cable Television and the Federal Communications Commission - (FCC) related to the City of Ithaca. 37 B. FACILITIES REPORT. An annual report setting forth the physical miles of plant construction and plant in operation during the fiscal year shall be submitted to the City. Such report shall also contain any revisions to the system "as built" maps filed with the City, and copies of all materials required by the franchise to be given to subscribers. C. PROOF OF BONDS AND INSURANCE. To the extent provided in the franchise agreement Grantee shall submit to the City the required performance bond, or a certified copy thereof, and written evidence of payment of required premium, and all policies of insurance required by this Ordinance, or certified copies thereof, and written notice of payment of required premium. D. FINANCIAL AND OWNERSHIP REPORTS. The following financial reports specified in the Franchise shall be submitted annually to the City. ( 1) An ownership report, indicating all persons, who at any time during the preceding year did control or benefit from an interest in the Franchise of five percent ( 50) or more. ( 2) A copy of franchisee' s annual report. ( 3 ) A report on the placement of any limited partnership offering, if any, including the amount subscribed and the amount paid in. ( 4) In the event that the City is asked to approve any rate increase, the Grantee shall provide an annual, system-wide and City-only, certified financial report from the previous calendar year, including year-end balance sheet; income statement showing subscriber revenue from each category of service and every source of non-subscriber revenue, line item operating expenses, capital expenditures statement, depreciation expense, interest expense and taxes paid; statement of sources and applications of funds; and depreciation schedule. The City-only statements shall be on an allocated basis and the Grantee shall provide the City with with the assumption utilized in making the allocations. ( 5) An annual, City-only, certified income statement. ( 6) An annual list of officers and members of the Board of Grantee' s and of any parent corporation. 38 E. OPERATIONAL REPORTS. The following system and operational reports shall be submitted annually to the City: ( 1) The Grantee shall provide the City with a copy of it' s annual performance testing results as sub- mitted to the FCC. ( 2) An annual summary of the previous year' s activities including, but not limited to, subscriber totals for each category of service offered including number of pay units sold, new services offered, and the character and extent of the service rendered to other users of the system, subject to Grantee' s need to protect proprietary information. ( 3 ) An annual summary of service requests and complaints received and handled. ( 4) An annual summary of the number of outages. ( 5) An annual summary of liquidated damages and other penalties outstanding or paid. ( 6) An annual summary of all reports required by or voluntarily submitted to the New York State Commission on Cable Television and the Federal Communications Commission (FCC) related to the City of Ithaca. F. ADDITIONAL INFORMATION. The Grantee shall furnish to the City such additional information and records with respect to its operation, affairs, transactions or property, as may be reasonably necessary and appropriate to the performance of any of the rights, functions or duties of the City in connection with this Ordinance or the Franchise. 11. 3 RECORDS REQUIRED. A. MANDATORY RECORDS. The Grantee shall at all times maintain: ( 1) A record of all complaints received and interruptions or degradation of service experienced for the preceding period prior to a performance review, consistent with the state law and regulation. ( 2) A full and complete set of plans, records and "as built" maps showing the exact location of all cable installed or in use in the City, exclusive of subscriber service drops. 39 SECTION 12 MISCELLANEOUS PROVISIONS 12. 1 CAPTIONS. The captions to sections throughout the Franchise are intended solely to facilitate reading and reference to the sections and provisions of the Franchise. Such captions shall not affect the meaning or interpretation of this Ordinance. 12. 2 SEVERABILITY. If any section, sentence, paragraph, term or provision of this Ordinance is determined to be illegal, invalid or unconstitutional, by any court of competent jurisdiction upon final adjudication or by any state or federal regulatory agency having jurisdiction thereof, such determination shall have no effect on the validity of any other section, sentence, paragraph, term or provision hereof, all of which will remain in full force and effect. 12. 3 GRANDFATHER RIGHTS. Nothing contained in this Ordinance shall be construed to deprive Grantee or the City of any "grandfather" rights in any future amendments to any statute or regulation. Any such Franchise, however, shall be subject to such regulations the City finds necessary to adopt in the exercise of its police power, provided that such regulations are reasonable and do not materially conflict with the privileges granted in the Franchise. 12. 4 NOTICE. Every notice to be served upon the City shall be sent by certified mail, postage prepaid, to the City. Every notice to be served upon Grantee shall be sent by certified mail, postage prepaid, to Grantee at its Ithaca office. 12. 5 FORCE MAJEURE. If by reason of force majeure either party is unable in whole or in part to carry out its obligations hereunder, said party shall not be deemed in violation or default during the continuance of such inability. The term "force majeure" as used herein shall mean the following: acts of God; acts of public enemies; orders of any kind of the government of the United States of , America or of the State of New York or any of their departments, agencies, political subdivision, or officials, or any civil or military authority; insurrections; riots; epidemics; landslides; lightening; earthquakes; fires; hurricanes; volcanic activity; storms; floods; washouts; droughts; civil disturbances; and explosions. 12. 6 FAILURE OF CITY TO ENFORCE THE FRANCHISE, NO WAIVER OF THE TERMS THEREOF. The Grantee shall not be excused from complying with any of the terms and conditions of this Ordinance or Franchise by any failure of the City upon any one or more occasions to insist upon or to seek compliance with any such terms or conditions. 40 u 4 JUL 0 7 190 TO: Cable Commissioners FROM: Tom Terrizzi RE: Proposed Op-Ed piece DATE: July 6, 1989 Attached is a draft of the op-ed piece we talked about trying to get run in the Journal. Your comments, additions, corrections are appreciated. DRAFT CABLE COMMISSION INVITES YOUR COMMENTS If you have a question about your cable service and you can't seem to get an answer from ACC, who you gonna call? Why the City of Ithaca Cable Commission, that's who. Under the Cable Ordinance adopted by the City and the Franchise Agreement between the City and American Community Cablevision, the Cable Commission has the authority to monitor and administer the cable television franchise agreement. Whether your concerns are about the small screen, (your cable service has been repeatedly interrupted or you have interference with the signal coming to your home) or you are worried about the big picture (the impending fight over ownership of Time, Inc., ACC's parent company, and how that will affect your cable service) you can write to us, care of City Hall, and we will take those matters up with an ACC representative at one of our regular, public, monthly meetings, (the second Tuesday of each month, 7:00 pm, City Council Chambers.) The Cable Commission consists of five appointed city residents, who serve without pay, as cable commissioners. Our jurisdiction and authority is limited by federal and state regulations and the franchise agreement. There are many things we have no control over such as the basic cable channel lineup. When ACC changed the basic lineup, as they have the right to do under the franchise, we heard from many irrate customers. That was good. Even though the City does not have the power to tell to ACC which channels to offer, we can, and did, ask ACC publicly why they made the changes they made. We didn't take a position in the fight over which channels should be part of the basic tier but we did find out, for example, that ACC chose to include the less popular WBNG from Binghamton because they are in the process of developing a business relationship with that station. WBNG wants to put a transmitter tower on the top of ACC's office downtown so that city residents can receive their channel without cable. Ithaca retains the right to regulate rates for basic service only because seventy-five percent of city households cannot receive three stations' signal without the cable. If two other stations, like WBNG, erect transmitter towers in the city, rates will become deregulated and ACC can charge what they want. The answers to the complaints raised about programming will be helpful to the City when it comes time to renegotiate the franchise agreement. Public questioning and involvement can make a difference. It was the pressure from concerned local citizens, for example, that caused the New York State Cable Commission to reject the fifteen year term of the franchise agreed to by the City and ACC and to lower it to 10 years. Since our appointment in January of this year, we have been active in monitoring compliance with the franchise agreement. In addition to responding to dozens of complaints and questions from Ithaca residents, we have taken up problems raised by cable customers living outside the city, as the outlying jurisdictions do not have functioning cable commissions. We have called ACC to task for its failure to provide an adequate access studio while they constructed the new Channell3 facility. As provided for under the franchise, we appointed an Access Advisory Board which has been active in monitoring completion of the studio, acquisition of new equipment and the hiring of new access personnel. We have worked with several city residents and ACC to resolve a problem caused by ACC's power supply boxes at two locations. We are continuing work with ACC to develop a procedure for extending a senior citizens discount to low income seniors. Along with City Council, we have urged our federal representatives to take action to reregulate the cable industry to permit states and municipalities to have greater control over this public utility monopoly. Citizens concerned about the unrestrained power of their cable provider should contact their representatives in Washington and urge them to support the repeal the Cable Deregulation Act of 1984, which removed, with limited exceptions, the rights of municipalities to regulate the rates and services of cable companies. We would like to here from you. Tell us what you like about your service and what your complaints are. Help us create a record of ACC's performance so that we can better evaluate their compliance under this franchise agreement and provide information for the city representatives who will negotiate future agreements. y 0 Ah R...... CITY OF ITHACA 106 EAST GREEN STREET ITHACA, NEW YORK 14850 OFFICE OF TELEPHONE: 272-1713 CITY ATTORNEY CODE 607 M E M O R A N D U M TO: Raymond Schlather, Chairman of B & A Committee Richard ooth, Chairman of C & O Committee FROM: RalV_-Nash, City Attorney DATE: July 6, 1989 RE: Paramount Cable Assignment Request Enclosed is a copy of the letter I wrote the attorney for Paramount. Our cable franchise agreement provides in Section 23 . 3 that " (f)or the purpose of determining whether it shall consent to such change, transfer or acquisition of control, the City may inquire into the legal, financial, character, technical and other public interest qualifications of the prospective controlling party. " For your information the State Cable Commission will also have to approve any proposed transfer. See copy of Executive Law S 822 enclosed. There are, however, no guidelines in the state regula- tions for criteria for reviewing transfers. Frankly, it would seem to me that vie would want to be satis- fied that Paramount had the financial and institutional wherewithal to carry out the franchise terms. This seems a given. Also, we would want to be assured that they are properly motivated to provide first rate service. Maybe we should inquire as to their staffing plans for this franchise. Are they keeping the same people and set up? Frankly, given large corporate structure what can we really expect on this subject? RWN:blh enc. .An Equal Opportunity Employer with an Affirmative Action Program" c�Ap�RATEa�� CITY OF ITHACA 108 EAST GREEN STREET ITHACA, NEW YORK 14BSO OFFICE OF TELEPHONE 272-1713 CITY ATTORNEY CODE 607 July 6, 1989 Matthew J. Nothnagle, Esq. Nixon, Hargrave, Devans and Doyle Lincoln First Tower Post Office Box 1051 Rochester, New York 14603 Re: Paramount Communications Inc. Acquisition of Time Incorporated Dear Mr. Nothnagle: Your correspondence of June 29 , 1989, was discussed at the regular meeting of Common Council held last evening. Your request was referred to the Charter and Ordinance and the Budget and Administration Committees of Common Council for review. I was also directed to inform you that the City will consider among other factors in judging the proposed transfer your client' s attention to the following matters: 1. Payment of the City' s costs incurred in reviewing the proposal for assignment; 2. Elimination of the all advertising programming on Channel 6, which is one of the basic cable channels; 3 . Withdrawal of the request for reimbursement of alleged overpaid franchise fees (see copy of correspondence attached) . Thank you for your attention to this matter. Yo veryirgly,(�1C Raip Nash City At orney RWN:blh enc. cc: Raymond Schlather, Chairman of B & A Committee Richard Booth, Chairman of C & O Committee "An Equal Opportundy Employe with an Affirmative Action Program" 1 ITH9� j: Do po�►TEv CITY OF ITHACA 108 EAST GREEN STREET ITHACA, NEW YORK 14B50 OFFICE OF TELEPHONE: 272-1713 CITY ATTORNEY CODE 607 M E M O R A N D U M TO: Ra Schl her, Chairman of B & A Committee FROM: Ra Nash, City Attorney DATE: June 29, 1989 RE: ATC Franchise Overpayment Following the B & A meeting last night I did legal research on the issue of whether the City is legally obligated to repay this money. Enclosed is a copy of the formal request for crediting of overpayments. Traditionally, voluntary payment made with full knowledge of facts cannot be recovered because it was made pursuant to mistake of law. This rule is ameliorated somewhat by CPLR § 3005 which provides that "when relief against a mistake is sought in an action . . . relief shall not be denied merely because the mistake is one of law rather than one of fact. " However, in Mercury Mach Importing Corp. v. City of New York 3 N.Y.2d 418 , 165 N.Y.S. 2d 517 ( 1957) the Court denied recovery of taxes paid as a result of a mistake of law, despite the statute. Particular emphasis was placed in that case on the exigencies of public finance. It is likely that a Court faced with our claim would feel that any decision would be discretionary and might bring on the diligence of ATC in reviewing the matter. See Gimbel Brothers, Inc. v. Brook Shopping Centers, Inc. 118 A.D. 2d 532, 499 N.Y.S. 2d 435 (A.D. 2, 1986) . Unfortunately, as you can see by ATC' s letter they intend to put us in the position of suing them on the matter. There is a possibility that ATC will be out of the picture shortly, though, as Paramount pictures seems to be going ahead with their tender offer. More on this later. RWN:blh enc. 'An Equal Opportunity Employer with an Affirmative Action Program" Y Ivy W. Parish Controller (303)649.8021 . . ■ JUN 2 9 1989 American Television& Cor rnunications Corporation June 26, 1989 A Time Inc. Company National Division 160 Inverness Drive West Suite 300 Dominic Ca s s e r i l l o Englewood, Colorado 80112 City Comptroller (303)799-9599 City Hall Ithaca, New York 14850 Dear Mr. Casserillo: American Television and Communications Corporation (ATC) has been paying franchise fees to the City of Ithaca on behalf of American Community Cablevision at the rate of 5% of gross revenues since February, 1988. I was recently advised that, in accordance with New York State Executive Law, Sections 817 and 818 of Article 28, franchise fees paid to any municipality in New York at a 5% rate should be reduced by the rate for fees paid to the New York Cable Commission in order that total franchise fees not exceed the maximum 5% rate stipulated in the Cable Communications Policy Act of 1984. Since ATC did not reduce the rate for franchise fees paid to the City of Ithaca by the rate of fees paid to the New York Cable Commission, it overpaid franchise fees to the City by $9,279.83 for the period February 1988 - March 1989. The next payment is due to the City by August 14, 1989, for the period April - June, 1989, and it will reflect a deduction in the amount of the over- payment. If the deduction of the full amount of the overpayment presents a problem, please advise me by July 31, 1989, so that other arrangements can be made. Sincerely, AMERICAN TELEVISION AND COMMUNICATIONS CORP. NATIONAL DIVISION I'llW- &- Iv W. Parish Controller IWP/djb cc: Tom Feige Lee Glowacki Ralph Nash 89-O31GR Providing entertainment and information choices. JUL 1 3 1989 Nixon, Hargrave, Devans & Doyle Attorneys and Counselors at Law 30 ROCKEFELLER PLAZA A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS SUITE 800 NEW YORK,NEW YORK 10112 ONE THOMAS CIRCLE (212)586-4100 LINCOLN FIRST TOWER WASH I NGTON,D.C.20005 POST OFFICE BOX 1051 (202)223-7200 ONE KEYCORP PLAZA ROCHESTER, NEW YORK 14603 ALBANY,NEW YORK 12207 (716) 546-8000 SUITE 400,REYNOLDS PLAZA (518)434-6000 1061 EAST INDIANTOWN ROAD TELEX: 978450 (WUT) JUPITER,FLORIDA 33477 TELECOPIER: (716) 546-3843 (407)746-1002 990 STEWART AVENUE GARDEN CITY,NEW YORK 11530 (516)222-1236 July 12, 1989 Ralph W. Nash, Esq. Ithaca City Attorney 108 East Green Street Ithaca, New York 14850 Dear Mr . Nash : As a supplement to Paramount ' s recent application for City approval of Paramount Communications Inc. ' s ( "Paramount" ) acquisition of Time, Inc. ( "Time" ) , I have enclosed a memorandum regarding a temporary voting trust procedure Paramount proposes to implement if the Federal Communications Commission ( "FCC" ) does not quickly complete its review of Paramount 's application for approval of the transfer of certain FCC licenses . This voting trust procedure should not affect cable television in Ithaca and, in fact, underscores Paramount ' s commitment to local control of franchises. Please call at your earliest convenience to discuss our application and any additional information you may need. Thank you for your attention to this matter. Sincerely, Matthew J. Nothnagle MJN/klm Enclosure Re: Paramount Communications Inc. 's Pending Applications before the Federal Communications Commission. This memorandum describes the approval process before the Federal Communications Commission (the "FCC") undertaken by Paramount Communications Inc. ("Paramount") in connection with its pending tender offer for Time Incorporated ("Time") . Time and its cable subsidiaries hold numerous radio licenses issued by the FCC, including licenses in the Cable Television Relay Service, the Point-to-Point Microwave Radio Service, the Domestic Fixed-Satellite Service, the Private Operational-Fixed Microwave Service, the Relay Press Radio Service, and the Business Radio Service. The Communications Act of 1934 (the "Communications Act") requires the prior approval of the FCC before control over such FCC licenses may be transferred to Paramount as a result of the consummation of its tender offer for Time. Paramount currently has pending applications for all FCC approvals required to consummate its tender offer for Time. The Communications Act requires that the FCC find, as a prerequisite to granting its approval , that the proposed transfers would serve the public interest, convenience and necessity based on the applicant 's demonstration that it possesses the requisite qualifications to operate the licensed facilities. r Since the tender offer is being contested by Time management, Paramount's FCC applications have been opposed by Time and by other interested parties. In light of the procedural requirements of the Communications Act and FCC rules and policies, a final decision on the pending FCC application for transfer of control of Time to Paramount may take a substantial period of time. Simultaneously with its filing of the applications for approval of the transfer of the FCC licenses, Paramount has also submitted to the FCC a voting trust agreement (the "Voting Trust") which, if approved by the FCC, would permit (but not require) Paramount to consummate its tender offer prior to receiving FCC approval of the license transfers to Paramount. The Voting Trust provides, among other things, that all shares of Time stock purchased pursuant to the tender offer would be deposited in the Voting Trust and held by an independent trustee (the "Voting Trustee") pending receipt of final FCC approvals. The Voting Trust proposal submitted by Paramount to the FCC is intended to comply with well-established FCC procedures applicable to unsolicited tender offers. Use of these procedures originated in 1986 as a Policy Statement of the FCC and has been approved in several cases over the last few years, including tender offers for companies holding cable franchises (similar to those held by Time) or cellular radio licenses, both of which are subject to concurrent federal and state and/or local jurisdiction. ` r Since the tender offer is being contested by Time management, Paramount's FCC applications have been opposed by Time and by other interested parties. In light of the procedural requirements of the Communications Act and FCC rules and policies, a final decision on the pending FCC application for transfer of control of Time to Paramount may take a substantial period of time. Simultaneously with its filing of the applications for approval of the transfer of the FCC licenses, Paramount has also submitted to the FCC a voting trust agreement (the "Voting Trust") which, if approved by the FCC, would permit (but not require) Paramount to consummate its tender offer prior to receiving FCC approval of the license transfers to Paramount. The Voting Trust provides, among other things, that all shares of Time stock purchased pursuant to the tender offer would be deposited in the Voting Trust and held by an independent trustee (the "Voting Trustee") pending receipt of final FCC approvals. The Voting Trust proposal submitted by Paramount to the FCC is intended to comply with well-established FCC procedures applicable to unsolicited tender offers. Use of these procedures originated in 1986 as a Policy Statement of the FCC and has been approved in several cases over the last few years, including tender offers for companies holding cable franchises (similar to those held by Time) or cellular radio licenses, both of which are subject to concurrent federal and state and/or local jurisdiction. 11%W 3 FCC approval of the Voting Trust is based on the general premise that, because the Voting Trustee is basically a caretaker that holds the stock after a tender offer is consummated, no true change of control of the FCC licenses will have been effected. During such period, Paramount would not be permitted to communicate with the Trustee with respect to Time's operations. The primary duty of the Voting Trustee is to maintain the status quo of all Times 's operations. The only exceptions to this mandate of maintaining the status quo are that the Voting Trustee will be obligated to take all actions necessary to effect the tender offer or any contractual or court-imposed obligation with respect thereto, and to oppose any inconsistent proposal or any proposal which would impair the preservation of the corporate assets of Time and its subsidiaries, including its cable operations. The Trustee is only permitted to replace or remove officers, directors or employees of Time who resign, or who oppose, impede or impair the preservation of the value of Time's corporate assets or the effectuation of the tender offer or any such contractual or court-imposed obligation, the transfer of control of Time to Paramount after final FCC approval, or who otherwise act in a manner inconsistent with their fiduciary responsibilities. In all other respects, the Voting Trustee must vote the Time shares held to maintain the current status of the present assets, management and operations of Time. �./ `. 4 The obligation of Paramount to consummate the Offer is conditioned upon, among other things, Paramount being satisfied in its sole discretion that all material FCC transfer approvals have been obtained on terms satisfactory to Paramount. In order to avoid the delays in consummation of the tender offer which the FCC transfer approvals could entail and provided the other conditions to the tender offer are met (including cable franchise authority approvals) , Paramount intends to proceed with the purchase of Time shares and implement the Voting Trust unless, at the time the tender offer is to be consummated Paramount has any reason to believe that the FCC transfer approvals will not be obtained within a reasonable time thereafter. Paramount does not know of any reason why the FCC transfer approvals will not be granted in a timely fashion. The Voting Trust procedure has no impact on the state and local approval process. In fact, the Paramount tender offer clearly provides for the purchase of Time stock and its transfer to the voting trust to occur only after obtaining all material state and local franchise consents required for the transfer of control of the affected cable systems to Paramount. As a result, Paramount is not seeking approval by state or local authorities to the possible interim transfer of Time stock to the Voting Trustee. The prior approval by state and local authorities of the transfer of Time stock to Paramount will subsume approval of the extremely limited and interim role the Voting Trustee might u `„/ 5 play because FCC approvals take longer than franchise approvals. On June 9, 1989, the Honorable Donald H. Rumsfeld agreed to serve as the Voting Trustee. Mr. Rumsfeld, a. former Congressman from Illinois, was Secretary of Defense from 1975 to 1977, chief of staff to President Ford from 1974 to 1975 and the U.S. ambassador and permanent representative to NATO from 1973 to 1974 . During 1983 to 1984 , he served as President Reagan 's special envoy to the Middle East. He was the president and chief executive officer of G.D. Searle & Co. from 1977 through 1985 and has been the senior advisor to William Blair & Company since 1985. Mr. Rumsfeld serves on the Board of Directors of the Rand Corp. , Kellogg Co. , Vulcan Materials Co. , Union Camp Corporation, Westmark Systems, Inc. and Sears, Roebuck & Co. July 7, 1989 t u IT c���RA7E0 CITY OF ITHACA 10B EAST GREEN STREET ITHACA, NEW YORK 14850 OFFICE OF TELEPHONE: 212-1113 CITY ATTORNEY CODE 607 M E M O R A N D U M TO: Richard Booth, Chairman of Charter and Ordinance Raymond Sch ather, Chairman of Budget and Administration FROM: Ralph ash, City Attorney DATE: August 10, 1989 RE: Cable Television Transfer For your information, the enclosed correspondences came in while I was on vacation which puts this matter to rest. RWN:blh enc. "An Equal Opportunity Employer with an Affirmative Action Program" ACC i4UG 0 1 1989 AMERICAN COMMUNITY CABLEVISION July 28 , 1989 John Gutenberger , Mayor City of Ithaca 108 E. Green St. Ithaca , NY 14850 Dear Mayor Gutenberger : On Monday , July 24 , the Delaware Supreme Court refused Paramount's request to enjoin Time's acquisition of Warner . Later in the day , Time acquired majority control of Warner . Shortly thereafter , Paramount stated that it had terminated its offer to buy Time . Consequently , Paramount is no longer seeking , through the purchase of Time stock , to acquire control over the cable television operations in your community . Sincerely , Barbara Lukens General Manager BL/fw cc : Ralph Nash , City Attorney Bob Hines , ACC Attorney 519 West State Street Ithaca, New York 14850 607-272-3456 Nixon, Hargrave, Devans & Doyle JULg Attorneys and Counselors at Law 30 ROCKEFELLER PLAZA A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS SUITE 800 NEW YORK,NEW YORK 10112 ONE THOMAS CIRCLE (212)586-4100 LINCOLN FIRST TOWER WASHINGTON,D.C.20005 POST OFFICE BOX 1051 (202)223-7200 ONE KEYCORP PLAZA ROCHESTER, NEW YORK 14603 ALBANY,NEW YORK 12207 (716) 546-8000 SUITE 400,REYNOLDS PLAZA (518)434-6000 1061 EAST INDIANTOWN ROAD TELEX: 978450 (WILT) JUPITER,FLORIDA 33477 990 STEWART AVENUE TELECOPIER: (716) 546-3843 (407)746-1002 GARDEN CITY,NEW YORK 11530 (516)222-1236 July 27, 1989 Ralph W. Nash, Esq. Ithaca City Attorney 108 East Green Street Ithaca, NY 14850 Re: Withdrawn Offer by Paramount Communications Inc. to Acquire Time Incorporated Dear Mr . Nash: We recently sent you information regarding Paramount Communications, Inc. ' s ("Paramount") tender offer to acquire the shares of Time Incorporated and its effect on cable television in your municipality. This week, Paramount withdrew its offer . Thus, there is no further need for municipal consideration of this matter. Thank you for your consideration. Sincerely, VA� � � K` Matthew J. Nothnagle 4024D w! ACC V AUG 16 19A9 AMERICAN COMMUNITY CABLEVISION August 14 , 1989 Susan A. Mulhern Complaint Investigator New York State Commission of Cable Television Corning Tower Bldg. , Empire State Plaza Albany , NY 12223 Dear Ms . Mulhern : Allow me to introduce myself - I'm Barbara Lukens , the new General Manager of American Community Cablevision in Ithaca . I'm writing in response -to your letter regarding a service problem reported by -Mr . and Mrs . Lawrence Ward . A service representative called the Wards at 3 : 45 pm on the 24th of July in response to their letter of complaint dated July 17 . A message was left requesting that they return his call , however , he followed up by calling again the next day . Ile was informed by the customer that they were no longer a tier customer , but would call back in a week if they had any problems . ACC has kept a record of all service calls cin their computer for about the last two years . These records contain the complainant's name and address as well as codes indicatijag the problem which was reported and the resolution of that problem. In reviewing these files , we found no record of calls from the Wards or from their address . The only time this information is not recorded is during an overall system outage or disturbance when a large number of subscribers would be calling in to report the same problem. As the Wards note , WVIA-44 has always had poor reception . This is because we receive a very poor signal at our tower site . (This station is broadcasting from Pittston , PA. ) ACC has been unable to get WVIA to improve the quality of its broadcast signal . This is one station ACC would like to remove from its channel lineup , for the very reason the Ward's state , however it is my understanding that a previous attempt to do this was met by strong community opposition . It is not a problem we are able to correct . 519 West State Street Ithaca, New York 14850 607-272-3456 I am unable to comment on the problems regarding WENY or WSTM as there are no service call records on the Wards and because apparently this is not currently a problem (as they have not called back) . Our technician has been instructed to follow up with another telephone call to ascertain if problems still exist. Sincerely, Barbara Lukens / General Manager BL/fw cc : Lawrence and Susan Ward John Herrewyn Ralph Nash, City of Ithaca a6e AUG 2 41!19 I� L03 AMERICAN COMMUNITY CABLEVISION 519 WEST STATE STREET ITHACA, NEW YORK 14850 607-272-7272 Richard Herskowitz , Chairman Access Advisory Board 6 Hillcrest Lane Ithaca , NY 14850 August 22 , 1989 Dear Richard, As discussed at the August Access Adivsory Board meeting , ACC will present its revised policy manual to the Board for review at its September meeting . I would like to emphasize several items in advance for special consideration by the Board. I . The first concerns the interpretation of the following section of the Ithaca Franchise : Sec. 14. 3. D "Designated channels shall not be used for the promotion or sale of commercial products or services , including advertising by or on behalf of candidates for public office . CABLE 13 has had several project proposals from access producers and complaints from viewers recently which bring into question the proper interpretation of "non-commercial" access programming. ACC would appreciate it very much if the Advisory Board could give us its recommendations on the appropriate boundary between commercial and non-commercial programming , so that we may develop clear guidelines for access producers . In particular , we have three recurring gray areas : 1/ program sponsors , and how they may be acknowledged within a program (at what point does acknowledging a sponsor become a commercial? ) 2/ limits for mentioning products and for-profit entities within a program. (at what point does a "documentary" become a sales or promotional tape? ) 3/ limits for political candidates on access . (at what point does a political issues program become a political endorsement or "advertisement by or on behalf of a candidate for public office"? ) "Television for Tompkins County" One access producer in particular, Gene Katz , has an upcoming project for which a clear interpretation of the first two areas would be extremely helpful . The project is a documentary of young girls' fashion shows . Gene wishes to mention sponsors , products and stores within the program, and claims that he can not effectively document a fashion show without doing so. I will contact him and suggest that he attend the September AAB meeting and discuss his concerns with the Board directly. Even if he is not able to attend the meeting personally, we have asked him to submit a project description, including the manner in which he would like to mention sponsors and products . I will bring this material with me to the meeting. We have also had a local attorney express concern about a recent access program, Meet Ben Nichols. He said that he thought the program was a political advertisement and as such not permissable on CABLE 13 . Although Mr. Nichols has completed his live program series , he has scheduled the programs to be rerun for the remainder of August. As in previous years , we are very likely to have candidates for political office appearing as guests on various access programs , or producing their own programs , throughout the fall. In the past, they have been permitted to do so, provided that at no point in the program an electoral endorsement was made. The only exception to this was in the context of debate programs , where both candidates were given equal chance to speak. II. Another area for which ACC would appreciate the recommendations of the Access Advisory Board concerns the interpretation of and access policies regarding "obscenity. " Technically, other than making production and cablecasting facilities available for non-commercial programming only, ACC is forbidden by the 1984 Cable Act from "editing" or otherwise interfering with the content of access programs. Sec. 611 .e Subject to section 624. d, a cable operator shall not exercise any editorial control over any public, educational or governmental use of channel capacity pursuant to this section. There is an option, under the Cable Act, for localities to include in their cable franchises restrictions on "obscenity. " Sec. 624.d Nothing in this title shall be construed as prohibiting a franchising authority and a cable operator from specifying, in a franchise or renewal therof , that certain cable services shall not be provided or shall be provided subject to conditions , if such cable services are obscene or are otherwise unprotected by the Constitution of the United States . Under the previous Franchise , which contained an obscenity restriction, we wrote to the City describing programs which we felt might be considered "obscene. " We asked them to advise us , in the absence of any local ordinence defining "community standards" on obscenity, as to whether individual programs should be permitted to be shown. The new Ithaca Franchise, however, contains no reference to obscenity, let alone any restriction on it. We get frequent complaints from viewers about the language used on some access programs. We occasionally get programs submitted to us with sexually explicit visuals . We also occasionally get programs submitted with content which would be considered racist or politically offensive to many viewers. Currently, our policy is a compromise, allowing any sort of content on CABLE 13, but restricting programs containing harsh profanity or explicit visuals to a lOpm time slot, preceded by a content warning. Although no one has challenged this policy to date, access staff still have a very difficult time defining the boundary for "harsh" or explicit language and visuals . When you review our policy manual in September, I would appreciate it if you would give special attention to these areas . Barbara Lukens , ACC's General Manager, will be attending the September meeting of the Ithaca Cable Commission. Among the topics she plans to address is the suggestion that the City of Ithaca consider the possibility of amending the Ithaca Franchise to place restrictions on obscene material on CABLE 13 , as outlined in Section 624.d of the 1984 Cable Act. It would be extremely helpful to both parties if the Access Advisory Board could make its recommendations on this subject to the Cable Commission at this meeting. The minutes of the August Advisory Board meeting stated that the next AAB meeting will be held on Wednesday, September 6, 7 : 15pm, at CABLE 13. I have reserved our studio for that date. I will be announcing this meeting in the next edition of our newsletter, and encouraging volunteer producers who may have a particular interest in any of the above areas to attend. Cordial y, Laure M. St Community cces r a or CABLE cc : Barbara Lukens Ralph Nash Gene Katz II-10 Finally, the term "franchising authority" is defined in the Act to include any governmental entity empowered by federal, state or local law to grant a franchise. Section 602 (9) . In general, in drafting or reviewing the provisions of franchise agreements, it will be important to remain aware of the definitions in the Act. To the extent that franchises employ different definitions for the same or similar terms, care must be taken to identify the potential consequences of using different definitions. This will be particularly important in the case of existing. franchises, but should also be kept in mind when drafting new franchise provisions. 3 . Section 611 -- Cable Channels for Public, Educational or Governmental Use Section 611 confirms the right of a franchising authority to establish and enforce requirements pertaining to public, educational and governmental access ( "PEG" ) . As the Committee Report explained: "One of the greatest challenges over the years in establishing communications policy has been assuring access to the electronic media by people other than the licensees or owners of those media. The development of cable television, with its abundance of channels, can provide the public and program providers the meaningful access that, up until now, has been difficult to obtain. " Committee Report at 30. 13 In the case of new franchises, section 611 provides that the franchising authority may include in its RFP a requirement that channel capacity on subscriber networks be designated for PEG use, and may require that channel capacity on institutional networks" be designated for 18 The Committee Report also suggests that a requirement of reasonable third party access furthers First Amendment goals and does not impermissibly regulate program content. See Section III . Q. , infra. 14 The term "institutional network" as used in section 611 means a communications network which is constructed or operated by the cable operator and which is generally available only to non-residential subscribers. [Feb. 1985] II-11 educational or governmental use. Section 611(b) . In renewal situations, including renewal proceedings conducted in accordance with section 626, 15 the franchising authority may specify similar PEG requirements regarding the cable operator' s proposal for a franchise renewal . Significantly, section 611 does not impose any numerical limitation upon the number of channels that a franchising authority may require to be allocated for PEG use. 16 However, at least with respect to franchises granted after December 29, 1984, section 611(d) requires franchising authorities to establish rules and procedures to allow a cable operator to use PEG access channels for the provision of other services during any fallow periods in which PEG channels are not being used for PEG purposes, and rules and procedures under which the temporary use of PEG channel capacity by the operator must cease. 17 Except for limited circumstances in which section 624(d) of the Act authorizes restrictions on obscene or similar programming, a cable operator may not exercise any editorial control over the services provided on channels designated for PEG use under is See Section III . J. , infra. 16 For a discussion of some of the practical considerations a franchising authority should consider in establishing PEG access requirements, see Section III . B. , infra. 17 This requirement was included in the Act in order to address situations in some localities where there is more channel capacity set aside for PEG use than there is actual use of those channels. Committee Report at 47 . Because section 611(d) refers only to the use of PEG channels set aside in accordance with section 611(b) (which arguably applies only to new franchises or franchise renewals) , and not to PEG channel capacity set aside under the grandfathering provisions of the Act (section 637) , it could be argued that the literal terms of the Act do not require the establishment of those rules and procedures under existing franchises. However, the Committee Report states that, in the case of existing franchises, it is expected that the franchising authority will develop rules covering the use of unused PEG capacity expeditiously. [ Feb. 19851 II-12 section 611 . 1e In general, the provisions of section 611 reflect a congressional determination that: " [p]ublic access channels are often the video equivalent of the speaker' s soapbox or the electronic parallel to the printed leaflet. They provide groups and individuals who generally have not had access to the electronic media with the opportunity to become sources of information in the electronic marketplace of ideas. PEG channels also contribute to an informed citizenry by bringing local schools into the home, and by showing the public local government at work. " Committee Report at 30. Section 611(c) permits a franchising authority to enforce PEG access-related franchise provisions, including provisions which were not required by the franchising authority in its RFP. This section was specifically intended to permit offers for the provision of PEG services, facilities, and equipment by a cable operator in excess of the minimum requirements in the RFP, which are then reduced to the terms of a franchise, to be fully enforceable by the franchising authority. Committee Report at 46. 4. Section 612 -- Cable Channels for Commercial Use The purpose of section 612 is to encourage diversity of video programming by requiring the cable operator to designate channel capacity for "commercial use" by persons who are not affiliated with the operator. Commercial use is defined as the provision of video programming, l9 whether or not for profit, and does not include the provision of any other communications service. 18 For a discussion of the First Amendment implications of various provisions in the Act, see Section III . infra. 19 As defined in the Act, video programming is "programming provided by, or generally considered comparable to programming provided by, a television broadcast station. " Section 602 ( 16) . This definition excludes data services, two-way services and nonvideo interactive services. [Feb. 1985 ] III-B-2 e " (2 ) rules and procedures under which such permitted use shall cease. " (e) Subject to section 624(d) , a cable operator shall not exercise any editorial control over any public, educational, or governmental use of channel capacity provided pursuant to this section. " (f) For purposes of this section, the term ' institutional network' means a communication network which is constructed or operated by the cable operator and which is generally available only to subscribers who are not residential subscribers. " 1 I . INTRODUCTION An express purpose of the Act is to assure that "the widest possible diversity of information sources and services to the public" is provided over cable systems. Section 601(4) . In accordance with that objective, the Act includes provisions which authorize the establishment and enforcement of various requirements for public, educational, and governmental ( "PEG" ) access. The Act also grandfathers state laws and franchise requirements relating to PEG access that were in effect on or before December 29, 1984 and sets forth specific procedures for the establishment of PEG access requirements in franchises granted after December 29, 1984. II . SCOPE OF A FRANCHISING AUTHORITY' S POWER A. Powers Generally A franchising authority has broad power under the Act to enforce PEG access provisions in franchises granted on or before December 29, 1984 and to establish and enforce PEG requirements in new franchises. PEG access requirements typically fall into four categories: ( 1) channel capacity (on both institutional and subscriber systems) ; (2 ) equipment and facilities 1 Cable Communications Policy Act of 1984, Pub. L. No. 98-549, § 611, 98 Stat. 2779, 2782 ( 1984) ( "the Act" ) . [Feb. 1985 ] III-B-3 to support the use of PEG channels; (3 ) services provided by the operator to support the use of PEG channels; and (4) financial support for the development of PEG access. In general, for franchises granted on or before December 29, 1984, all four categories of PEG requirements are grandfathered. For new franchises and renewals, however, the last three categories of PEG requirements, if not structured properly, may be unenforceable or might be treated as franchise fee payments and subject to the 5 percent limitation of section 622 . The Act does not include a definition of the term "public, educational, or governmental access. 112 Consequently, a franchising authority should have broad discretion to determine an appropriate definition of PEG access, consistent with the community' s needs and interests. Clear examples of permissible uses would include a "public soapbox" channel, free educational programming, and telecasts of city council meetings. But substantially broader types of uses could also be appropriate. For example, educational programming by a local university probably should not be excluded solely because it includes announcements of the availability, for a fee, of related course materials -- and perhaps ought not be excluded even if a fee is charged for the programming itself. In the past, the line has been drawn between uses which are traditionally commercial and those which are not. ' For franchises granted on or before December 29, 1984, three provisions provide important grandfathering protections for PEG-related franchise provisions. First, under section 624(c) , provisions of existing franchises (i . e. , franchises in effect on or before December 29, 1984) which relate to services, facilities, and equipment, including PEG access requirements, may be enforced even 2 The Act defines "public, educational, or governmental access facilities" as "channel capacity designated for [PEG] use" and related facilities and equipment. Section 602 (13 ) . This definition is used to determine the scope of the exemption for PEG access payments from the 5 percent limitation on franchise fees under sections 622(g) (2) (B) and (C) . ' The possibility of disputes as to proper uses of PEG access channels underscores the importance of the involvement of franchising authorities in establishing fair rules for allocating their use. [Feb. 19851 III-B-4 1 if they are not related to the establishment or operation of a cable system. See Section III .H. , infra. Second, provisions in these existing franchises which relate to "the designation, use, or support for the use of channel capacity for public, educational, or governmental use" are expressly grandfathered and enforceable under section 637(a) (1) . (According to the legislative history, "the provisions of existing franchises covering PEG channel capacity and its use as well as services, facilities and equipment (such as studios, cameras, and vans) related thereto, are fully grandfathered. " Committee Report at 46. ) Third, for most existing franchises (i . e. , franchises in effect on the Act' s date of enactment -- October 30, 1984) , payments required by the franchise "for, or in support of the use of, public, educational, or governmental access facilities" are not to be treated as franchise fee payments and therefore are not to be offset against franchise fees for purposes of the 5 percent cap. Section 622 (g) (2 ) (B) . Additionally, section 637 (a) (2 ) grandfathers provisions of state law "which relate . . . to [ the] designation, use or support of . . . channel capacity" for PEG use and which were in effect on October 30, 1984. This provision is intended to allow for the enforcement of state laws which authorize state agencies to establish PEG requirements by regulation. ' For new franchises and franchise renewals, section 611 of the Act authorizes franchising authorities to establish and enforce provisions regarding PEG access channels and their use. " A state would apparently not have direct authority under the Act to enact or amend a state law after October 30, 1984 to establish minimum access requirements for franchises which have already been granted. A state could, on the other hand, enact a state law under section 636(b.) which is consistent with section 611(b) (e.g. , a state law requiring that franchising authorities establish minimum requirements for the set aside of channel capacity for PEG access use in the RFP) . Moreover, a state which has authority under a state law in existence on October 30, 1984 to establish requirements for the set aside of channel capacity for PEG access could promulgate regulations after that date setting minimum PEG access requirements, including requirements applicable to existing franchises, to the extent consistent with the pertinent state law. [Feb. 1985 ] III-B-S In determining the scope of a franchising authority' s powers under section 611 of the Act, two distinct concepts are relevant. First, section 611(b) sets forth what a franchising authority may establish in its request for proposals ( "RFP" ) or in proposals for renewal as minimum requirements for the designation of channel capacity for PEG use. Second, section 611(c) makes clear that a franchising authority may lawfully enforce other PEG-related requirements included in the franchise, including requirements not specified in the RFP or request for renewal proposals. Thus, section 611 is specifically intended to permit offers for the provision of PEG services, facilities and equipment by a cable operator in excess of the RFP' s or request for renewal proposal ' s minimum requirements. ' If offers made by the operator to provide particular services are then reduced to the terms of a franchise, they are fully enforceable by the franchising authority. House Committee on Energy and Commerce, Report on Cable Franchise Policy and Communications Act of 1984, H.R. Rep. No. 934, 98th Cong. , 2d Sess. 46 (1984) ( "Committee - Report" ) . B. What the Franchising Authority May Require in a Franchise 1 . Franchises Granted on or Before December 29, 1984 The extent to which a franchise granted on or before December 29, 1984 may include enforceable PEG- related requirements is determined by several provisions of the Act authorizing the enforcement of PEG-related requirements in existing franchises. Generally, all PEG-related requirements of existing franchises are governed by: (1) section 624(c) , authorizing the enforcement of requirements for facilities, equipment, and services included in existing franchises; (2) section 637(a) ( 1) , authorizing the enforcement of provisions of existing franchises which relate to the designation or use of PEG access channels; and (3) section 622 (g) (2 ) (B) , exempting provisions of most existing franchises (i . e. , franchises granted on or before October 30, 1984) that require financial support 5 This is particularly relevant in the service area because of section 624' s prohibitions on the inclusion of service requirements in an RFP (see Section III .H. , infra) . [Feb. 1985 ] Y v III-Q-9 services provided on the system' s other channels. " House Committee on Energy and Commerce, Report on Cable Franchise Policy and Communications Act of 1984, H. R. Rep. No. 934, 98th Cong. , 2d Sess 33-34 (1984) ( "Committee Report" ) . Thus, franchising authorities can -- and should -- act to further the fundamental First Amendment objective of program diversity both in selecting among competing franchise applicants under sections 621 or 626 and in establishing requirements for services in the franchise under section 624. The key to doing so successfully will be the avoidance of unnecessary consideration of the content of particular programming services. IV. REGULATION OF OBSCENE OR INDECENT PROGRAMMING Various provisions in the Act will affect the efforts of local franchising authorities to regulate obscene and indecent material on cable television in a number of ways. It is well settled that obscene material is not protected by the First Amendment. Miller v. California, 413 U. S. 15 ( 1973 ) ; Roth v. United States, 354 U. S. 476 ( 1957) . Miller establishes a three-part test to determine whether material is obscene: " (a) whether ' the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. " 413 U. S. at 24 (citations omitted) . 13 In Preferred Communications, Inc . v. City of Los Angeles, No. 84-5541 (9th Cir. Mar. 1, 1985) , however, the court noted that both sections 611 and 612 of the Act "pose particularly troubling constitutional questions. " Slip op. at 7 & n.4. But the court expressly did not decide those questions. Id. [Feb. 1985 ] III-Q-10 In FCC v. Pacifica Foundation, 438 U. S. 726 ( 1978) , the Supreme Court addressed the question of whether the regulation of speech which does not have all of the characteristics of "obscenity" (e.g. , "indecency" ) is permissible. Pacifica arose out of an action by the FCC concerning a radio broadcast that was indecent but not obscene. The Supreme Court in Pacifica recognized that the First Amendment has a special meaning in the broadcast context, and upheld the authority of the FCC to take action against broadcasters for speech which falls short of obscenity. The distinction that the Supreme Court drew regarding the more limited First Amendment protection for the broadcast media may also be applicable to the medium of cable television. " First, there is a unique pervasive presence when a medium of communications comes in':o the privacy of the home. See 438 U. S. at 748-49 . Second, the medium is uniquely accessible to children, even those too young to read. Id. at 749-50. Given this background, it should be noted that there are three ways in which the Act permits regulation of the provision of obscene and other materials which are not protected by the Constitution. First, the Act makes it a federal criminal offense to transmit over cable systems "any matter which is obscene or otherwise unprotected by the Constitution. " Section 639 . The legislative history of the Act indicates that Congress intended this restriction to apply, within constitutionally permissible limits, to programming which, while not obscene, may be regulated for other reasons under the Constitution. Second, the Act permits franchising authorities to enact and enforce local ordinances prohibiting or regulating obscene material and material otherwise unprotected by the Constitution. Third, while the Act does not explicitly authorize a franchising authority to regulate material which is indecent, it does permit the regulation of indecent material in the franchise agreement in the event that indecent material, like obscene material, is determined to be not protected by the Constitution when provided 14 But see Carlin Communications, Inc . v. FCC, No. 84-4086 (2d Cir. Nov. 2, 1984) , and cases discussed infra. [Feb. 1985 ] III-Q-11 over a cable system. Section 624(d) ( 1) . This provision would permit franchising authorities to prohibit or establish conditions in the franchise regarding the carriage of indecent material if regulation of indecent material on cable television is found to be constitutionally permissible in subsequent judicial decisions. While the Act itself does not discuss the appropriate procedural mechanism for local regulation of obscene and indecent material, a Senate Report accompanying an earlier version of S. 66 suggested that "the imposition of sanctions for the determination of a breach of the franchise in the absence of a judicial determination that particular speech was obscene or otherwise unprotected by the Constitution, 115 was not permitted. Similar language, however, was not included in the House Report, which establishes the definitive legislative history for both the House and the Senate. A. Recent Court Rulings on Indecency In recent years, local ordinances intended to prevent obscene or indecent cable programming have not fared well in the courts. In Community Television of Utah v. Roy City, 555 F. Supp. 1164 (D. Utah 1982 ) , the court struck down as unconstitutional a Roy City ordinance which, among other things, authorized the revocation, of cable franchise permits or the imposition of other sanctions for " [k]nowingly distribut[ing] any pornographic or indecent material as defined by law and in violation of the community standards. " Id. at 1174. The Roy City court based its decision primarily upon the fact that, while cable signals are "invited" into the home, broadcast signals are not. Broadcast television, the court stated, "is pervasive because its medium, the air, is pervasive. Transmission by is S. Rep. No. 98-67, 98th Cong. , lst Sess. 25 ( 1983 ) ( "S. Rep. " ) . The Senate committee report, however, is generally not persuasive in establishing congressional intent. See 130 Cong. Rec. 514,285 (daily ed. Oct. 11, 1984) ( "The Senate amendment to the House amendment to S. 66 adopts the explanation of [ the Act] contained in House Report 98-934, together with the explanation and the colloquies contained in the appendices to this legislative history. " ) [Feb. 1985 ] III-Q-12 wire is not. " Id. at 1169. 16 Similarly, on August 2, 1983, the United States District Court for the Southern District of Florida enjoined the City of Miami from enforcing the provisions of an ordinance which prohibited the distribution of indecent material over cable television, and from implementing the procedures established by the ordinance for enforcement of the prohibition. Cruz v. Ferre, 571 F. Supp. 125 (S.D. Fla. 1983 ) , appeal docketed, No. 83-5588 ( 11th Cir. Sept. 8, 1983 ) . In the Miami case, the court -- relying substantially upon Roy City -- held that those provisions of the ordinance which tried to regulate indecent material exceeded permissible limits for the regulation of obscenity as set forth by the Supreme Court in Miller v. California, 413 U. S. 15 ( 1973 ) , and were, therefore, unconstitutional. 571 F. Supp. at 132 . The court expressly rejected the City' s argument that indecent speech on cable television may be regulated under the Supreme Court' s ruling in FCC v. Pacifica Foundation, 438 U. S. 726 ( 1978) , relying on the perception of greater consumer control over the receipt of cable signals. In addition, the Miami court ruled that the methods and procedures of enforcement specified in the City of Miami ' s ordinance -- which involved a proceeding before the city manager -- violated due process. The court found "that these procedures, by concentrating the functions of complainant, jury, judge and ' executioner' in one person, do not comport with the fundamental notion of fairness implicit in due process. " 571 F. Supp. at 133 . Further, the court noted that the ordinance combines these functions "in an area of moral judgment that might well try the neutrality and impartiality of Solomon. " Id. B. Relevant Provisions of the Act Several specific provisions of the Act define the extent to which a franchising authority may regulate the distribution of obscene or indecent material on a cable system. Section 639 makes the transmission of obscene or other materials which are not protected 16 In another First Amendment cable case -- HBO v. Wilkinson, 531 F. Supp. 98 (D. Utah 1982) -- the same judge who decided Roy City did not even expressly consider the Pacifica decision (although it had been handed down four years before his decision) . [ Feb. 19851 III-Q-13 by the Constitution a criminal offense under federal law. Section 624(d) clarifies that the Act does not restrict the power of a franchising authority and a cable operator to specify in a franchise that services which are obscene or involve other content which is not protected by the Constitution will not be carried over the system or will be carried only under specific conditions. Section 638 states that the Act does not restrict the power of a state or franchising authority to enact or enforce laws, such as obscenity or similar laws, under which cable programmers or operators are civilly or criminally liable. Finally, section 612 (h) provides that cable services which, in the judgment of a franchising authority are obscene or otherwise unprotected by the Constitution, may be prohibited or restricted on channels set aside under section 612 for commercial use by persons unaffiliated with the operator. Each of these provisions and their legislative history are discussed in .more detail below. 1. Section 639 - Obscene Services Section 639 provides that: "Whoever transmits over any cable system any matter which is obscene or otherwise unprotected by the Constitution of the United States shall be fined not more than $10, 000 or imprisoned not more than 2 years, or both. " This provision establishes "the Federal standard and penalties to be applicable to cable television with respect to pornographic programming. " Committee Report at 95 . Section 639 outlaws all transmissions over cable systems involving obscenity, including nonvideo communications such as "dial-a-porn" services. While section 639 clearly applies to the transmission of obscene materials over cable systems, it is not clear how it would affect indecent and similar material. Theoretically, the term "matter which is . . . otherwise unprotected by the Constitution" could encompass indecent material in the event that the courts permit the regulation of indecent materials provided over cable systems. However, section 639 does not establish a mechanism for the identification of these materials. Consequently, in the event that a federal prosecutor were to seek imposition of criminal penalties under this provision, a court might find that the standard [Feb. 1985 ] III-Q-14 is not sufficiently specific to allow a criminal conviction. In the legislative debates over section 639, concern was expressed that the language "otherwise unprotected by the Constitution" could be struck down by a court as being too vague. See, e._q. , 130 Cong. Rec. H12, 243 (daily ed. Oct. 11, 1984) ( statement of Rep. Bliley) . Accordingly, Congress intended the prohibitions against "obscene" and "otherwise unprotected" materials to be separate and severable so that "the prohibition against obscenity should stand in the face of any adverse decision on the prohibition against otherwise unprotected language. " Id. 2 . Section 624 - Regulation of Services, Facilities and Equipment Section 624(d) provides that: " (d) (1) Nothing in this title shall be construed as prohibiting a franchising authority and a cable operator from specifying, in a franchise or renewal thereof, that certain cable services shall not be provided or shall be provided subject to conditions, if such cable services are obscene or are otherwise unprotected by the Constitution of the United States. " (2 ) (A) In order to restrict the viewing of programming which is obscene or indecent, upon the request of a subscriber, a cable operator shall provide (by sale or lease) a device by which the subscriber can prohibit viewing of a particular cable service during periods. selected by that subscriber. " (B) Subparagraph (A) shall take effect 180 days after the effective date of this title. " This provision permits a franchising authority and a cable operator to specify in a franchise that cable services which are obscene or not protected by the Constitution will not be provided or will be provided only under certain conditions. Committee Report at 69. With respect to the regulation of obscenity, it [ Feb. 1985 ] III-Q-15 is clear that franchising authorities may strictly prohibit cable services which would violate the "community standards" test established in Miller v. California, 413 U. S. 15 (1973) . This provision, however, provides similar authority with respect to the regulation of indecent material only to the extent that the courts allow the regulation of indecent programming on cable systems. In fact, the Committee Report expressly notes that various state and local statutes which include an indecency standard have been held unconstitutional as applied to cable television. " Nevertheless, Congress recognized "the need to provide for the restriction, within constitutionally permissible grounds, on the availability of programming, which might not be obscene, but is nonetheless indecent . . . . " Commitee Report at 70. Section 624 deals with this issue in two ways. First, Section 624(d) (2) requires a cable operator to provide, by June 25, 1985, a device by which the viewing of indecent programming by children or other individuals can be restricted. Second, in addition to addressing obscene speech, section 624 covers other speech which is "unprotected by the Constitution, " including speech which presents a "clear and present danger" to public order. With respect to the application of this provision to indecent programming, the Committee Report states: "This provision would also permit changing constitutional interpretations to be incorporated into the standard set forth in 624(d) ( 1) , should those judicial interpretations at some point in the future deem additional standards, such as indecency, constitutionally valid as applied to cable. " Committee Report at 69. 17 Committee Report at 70. See Cruz v. Ferre, 571 F. Supp. 125 (S.D. Fla. 1983 ) ; Community Television of Utah v. Roy City, 555 F. Supp. 1164 (D. Utah 1982 ) ; Home Box Office, Inc. v. Wilkenson, 531 F. Supp. 98 (D. Utah 1982 ) . [ Feb. 19851 �./ 1%./ III-Q-16 Thus, indecent speech would be covered by this provision if such speech is, in the future, judicially determined to be constitutionally unprotected on cable television. " In an earlier version of S. 66, there was a provision similar to section 624(d) ( 1) . The legislative history of that earlier provision suggested that sanctions for the distribution of obscene or otherwise unprotected speech may be imposed by a franchising authority only after a judicial determination that the material in question is unprotected. Specifically, the Senate Report which accompanied S. 66 when it was originally approved by the Senate on June 14, 1983, included the following language: "This provision of the bill is not intended to permit municipal officials or cable operators to substitute their own concepts of obscene or unprotected speech for j-udicially determined standards. Nor does it permit the imposition of sanctions or the determination of a breach of the franchise in the absence of a judicial determination that particular speech was obscene or otherwise unprotected by the Constitution. " S. Rep. No. 98-67, 98th Cong. , 1st Sess. 25 ( 1983 ) (emphasis added) . However, similar language was not included in the House Report and the floor managers of the Act specifically stated on the Senate floor that the Committee Report was to serve as the Senate' s legislative history. 130 Cong. Rec. 514,285 (daily ed. Oct. 11, 1984) . Hence, Congress may not necessarily have intended to limit the scope of section 624(d) ( 1) to programming that has been judicially determined in a specific case not to be protected by the Constitution. But the First Amendment may still prevent regulatory action against particular programs, in the absence of any judicial determination as to those programs -- particularly if the conditions is It is possible that a court could find that the holding of FCC v. Pacifica Foundation, supra, which permits the prohibition of indecent radio programming, is applicable to basic service on cable systems, if not to all optional services a subscriber may elect to receive. Basic cable service is defined as "any service tier which includes the retransmission of local television broadcast signals. " Section 602(2) . [ Feb. 1985 ] � L III-Q-17 imposed, in effect, prevent the programming from being viewed at all. 3 . Section 638 - Criminal and Civil Liability Section 638 provides, in pertinent part, that: "Nothing in this title shall be deemed to affect the criminal or civil liability of cable programmers or cable operators pursuant to the Federal, State, or local law of . . . obscenity . . . or other similar laws . " The Committee Report confirms that the Act does not affect th6 liability of an operator, under a franchising authority' s criminal or civil ordinances or a state law, for acts which "result from other speech which may be held by the courts to be unentitled to constitutional protection. " Committee Report at 95 . Thus, section 638 makes it clear that state and local regulation of obscenity and indecency on cable television is not preempted by the Act. Moreover, the legislative history of this provision suggests that the authority for such regulation does not rest solely with the FCC, and that if the FCC were to attempt to regulate obscenity or indecency under provisions of the Act (e._q. , section 639) or other federal laws, constitutionally sound state or local regulation of obscene or indecent material on cable television would not be preempted. This point was established in an important colloquy between Senators Trible and Goldwater: "Mr. TRIBLE. I am particularly concerned about a recent Supreme Court decision regarding the question of FCC preemption. In Capital Cities Cable . . . against Crisp . . . the Court held that conflicting State regulations are precluded when the FCC resolves to preempt an area of cable television regulation. According to Capital Cities, ' If the FCC has resolved to preempt an area of cable television regulation and if this determination ' represents a reasonable accommodation of conflicting policies' that are within the Agency' s domain, United States against Shimer, supra, at 383, we must conclude [Feb. 1985 ] III-Q-18 that all conflicting State regulations have been precluded. ' "Although the Court did not specifically address the questions of obscenity and indecency, that case is already being cited by plaintiffs attempting to overturn a Utah statute regulating cable television content. Is section 638 addressed directly to the Supreme Court' s decision in Capital Cities? "Mr. GOLDWATER. Yes, it is and that is the understanding of the conferees. Section 638 makes clear that nothing in this measure is to be interpreted as granting exclusive authority for regulating cable television content to the FCC. Rather, States and localities retain any authority which they would have in this area if the Communications Act of 1934 had never been enacted. " 130 Cong. Rec . 514, 289 (daily ed. Oct. 11, 1984) (emphasis added) . The language "or other similar laws" in section 638 encompasses constitutionally permissible restrictions on indecency. This point is also established in the colloquy between Senators Trible and Goldwater: "Mr. TRIBLE. I also wish to ask whether section 638 applies to Federal, State, and local laws dealing with indecency on cable television? "Mr. GOLDWATER. Yes, it does and that is the understanding of the conferees. Indecency laws are related to laws prohibiting obscenity, and thus would be covered by the phrase from section 638: ' and other similar laws. ' Under this section, Federal, State, and local laws regulating indecency on cable would be preserved. Restrictions on indecent programming in a broadcast context have been upheld by the Supreme Court. For example, the Supreme Court said in FCC against Pacifica Foundation that indecent speech on radio could be restricted to certain times of day in order to protect [Feb. 1985] III-Q-19 children. Such restrictions on indecency - if otherwise constitutionally permissible - would not be preempted by this legislation or other provisions of the Communications Act. " 130 Cong. Rec. 514,289 (daily ed. Oct. 11, 1984) . (Emphasis supplied. ) Thus, section 638 preserves the jurisdiction of states and local governments to regulate, within constitutionally permissible limits, material which is indecent, but not necessarily obscene. It clarifies that state and local laws in this area are not preempted by the Act or FCC regulations. While Senator Goldwater' s statement leaves the door open for a court to find that the Supreme Court' s decision in FCC v. Pacifica Foundation, supra -- permitting limited regulation of indecent material on radio -- is applicable to cable television, there is no indication that Congress sought to alter the contrary holding in cases such as Cruz v. Ferre, supra. Indeed, Senator Goldwater' s remarks are specifically limited to restrictions on indecency which are "otherwise constitutionally permissible. " 4. Section 612 - Cable Channels for Commercial Use Section 612 of the Act requires a cable operator to set aside a certain percentage of channels for commercial access use by persons who are not affiliated with the operator. Section 612(b) ( 1) . The cable operator may not exercise editorial control over these leased access channels. Section 612 (c) (2 ) . However, with respect to these leased access channels, section 612(h) of the Act provides that: " (h) Any cable service offered pursuant to this section shall not be provided, or shall be provided subject to conditions, if such cable service in the judgment of the franchising authority is obscene, or is in conflict with community standards in that it is lewd, lascivious, filthy, or indecent or is otherwise unprotected by the Constitution of the United States. " The language of section 612 (h) is broad and appears to require that the franchising authority regulate indecent, lewd, lascivious and filthy material, as well as obscene material. In fact, the language of this [Feb. 1985 ] III-Q-20 provision is similar to the ordinance which was held to be unconstitutional by the Utah district court in Roy City. The obligations of the franchising authority under section 612 (h) should be construed in light of its legislative history. Despite the seemingly broad language of this provision, the Committee Report makes it clear that Congress intended only to allow a franchising authority to prohibit or establish conditions on the provision of programming which is obscene or determined to be "otherwise unprotected by the Constitution. " Committee Report at 55 . There is no indication in the legislative history to suggest that Congress sought to define indecent material on cable television as constitutionally unprotected speech in the face of contrary judicial decisions. Moreover, Congress does not have the authority to restrict speech which the courts have determined to be constitutionally protected. The Committee Report states only that: " [ S]ubsection [h] empowers franchising authorities to prohibit or condition the provision of cable services which are obscene or otherwise unprotected by the Constitution. By its express terms, 612 (h) adopts the Supreme Court' s formulation [ in Miller v. California, supra] which permits the issue of obscenity to be determined by resort to local community standards. " Committee Report at 55 . The Committee Report also refers to section 624(d) for a more extensive analysis of the issues addressed in section 612 (h) . As discussed above, section 624(d) deals with services which are obscene or otherwise unprotected by the Constitution and does not separately define indecent material as unprotected speech. Section 612 (h) is limited to a specific type of programming -- i . e. , that which is carried on commercial leased access channels -- the content of which cannot be controlled by the cable operator. Moreover, section 612 (h) authorizes the franchising authority to fulfill its obligations under this provision by requiring that services be provided "subject to conditions, " instead of banning the service. By contrast, the local ordinances involved in Roy City and Ferre flatly prohibited distribution of indecent material [ Feb. 1985 ] III-Q-21 under any circumstances. As the court noted with respect to the City' s ordinance in Cruz v. Ferre, 571 F. Supp. at 131 : "The ordinance' s prohibition is wholesale, without regard to the time of day or other variables indispensable to the decision in Pacifica. " Thus, the franchising authority can comply with section 612 (h) by establishing regulatory requirements (e.g. , time of day restrictions and prior notice requirements that would facilitate the use of lock boxes required by the Act) which operate as restrictive conditions rather than as a complete prohibition, and which therefore should be less vulnerable to constitutional challenge. C. Conclusion The foregoing discussion reveals that the Act should affect the regulation by local franchising authorities of obscene or iniecent material on cable television in at least four significant ways. First, the Act clearly sanctions restrictions on the provision of programming which is obscene or not protected by the Constitution in other ways. Section 639 of the Act makes it a violation of federal law to transmit any material over cable which is obscene and establishes criminal penalties for violation of this prohibition. Second, the Act makes clear that a state or franchising authority is not preempted from enacting and enforcing laws to supplement the enforcement activities of the United States Attorney with respect to the regulation of obscene and other material which is not protected by the Constitution. 19 Further, neither existing nor future FCC regulations will preempt such a local ordinance or state law. See Sections 624(d) and 638. 19 Although the terms of the Act and its legislative history directly address restrictions on obscene or indecent material, the regulation of other types of speech, such as false or misleading advertising, may also be permissible under the Act and the First Amendment. See, e._q. , Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U. S. 748, 771-72 ( 1976) . Thus, local jurisdictions should also have authority to protect their citizens from such practices. See Section III .M. , supra. [Feb. 1985 ] III-Q-22 Third, to the extent that a franchising authority wishes to regulate the distribution of materials which are indecent, but not obscene, the Act suggests several possible methods of regulation. However, the scope of permissible regulation under the relevant provisions will depend upon future judicial decisions clarifying the extent to which indecent materials on cable television may be regulated or restricted. Fourth, the section-by-section analysis of the Act contained in the Senate Report suggests that the Act does not permit a municipality to impose sanctions "in the absence of a judicial determination that particular speech was obscene or otherwise unprotected by the Constitution. " S. Rep. at 25 . However, similar language does not appear in the Act itself or in the Committee Report. It is unclear, therefore, whether the Act contemplates that local regulation must require, in the first instance, a judicial determination that the material in question is not protected by the Constitution. 20 V. GOVERNMENT OWNERSHIP OF CABLE SYSTEMS It is too early to predict with any certainty how the courts will analyze the First Amendment implications of municipal ownership of cable systems under the Act. 21 As noted above, there are as yet no Supreme Court decisions which articulate First Amendment standards directly applicable to cable and there are still relatively few lower court decisions in this area. As stated in Berkshire Cablevision of Rhode Island, Inc. v. Burke, 571 F. Supp. 976, 980 (D. R. I . 1983 ) , " [ a] lthough cable television operators are undoubtedly engaged in some forms of speech protected by the First 20 From a constitutional standpoint, it is well settled that the combination of investigative and adjudicative functions in one municipal officer does not, without more, constitute a due process violation. Cruz v. Ferre, supra, 571 F. Supp. at 133 , citing Withrow v. Larkin, 421 U. S. 35, 58 ( 1975) . Indeed, a party alleging a due process violation must prove through "special facts and circumstances" that the combination of functions creates a "risk of unfairness [which] is intolerably high. " Id. 21 Section 613 (e) ( 1) of the Act provides, in general, that "a State or franchising authority may hold any ownership interest in any cable system. " [Feb. 19851 rm!ABLE AMERICAN COMMUNITY CABLEVISION 519 WEST STATE STREET ITHACA, NEW YORK 14850 607-272-7272 John Efroymson , Producer More Than the News 420 N. Cayuga St. Ithaca , NY 14850 August 28 , 1989 Dear John , This letter is in reference to Sec . 14 . 3 . D of Ithaca's Franchise with American Community Cablevision regarding the permissable use of public access channels : "Designated channels shall not be used for the promotion or sale of commercial products or services , including advertising by or on behalf of candidates for public office . " Despite continued warnings on the subject by access staff , More Than the News has repeatedly violated the franchise restriction on political' endorsements on the access channel . During previous years' election seasons , More Than the News has made endorsements , or included segments with guests making endorsements , of a number of politicAl candidates , from Jesse Jackson and (after the primary) Michael Dukakis , to John Gutenberger. This year, a More Than the News program included an endorsement of your own candidacy for Common Council shortly after you entered the race . At the end of the live cablecast of that program, I spoke with you at length about the franchise violation and abuse of access privileges involved in the endorsement included in the show. I read the franchise passage to you , and discussed the matter with both yourself and Mary Euell , the crewmember making the endorsement on the program. I warned you about making political endorsements in the future . On the August 22 edition of More Than the News , you ran another blatent political endorsement. This one featured Arzeymah Raqib , speakfng as a representative of the Rainbow Coalition, making an explicit endorsement of Ben Nichol's candidacy for mayor in Ithaca. Your series production reservation form includes the following two passages which are relevant in the event of misuse of access "Television for Tompkins County" facilities : 1/ "I also understand that this equipment is to be used only for providing Public Access Programming for ACC's Public Access channel, and that I will be held legally and financially responsible for any use of this equipment for other than its intended purpose . " 2/ "ACC reserves the right to suspend or revoke all privileges to ACC equipment and facilities. " According to current policies , and the series production and cablecasting agreement which you signed to produce your program, you are liable for the following penalties for misusing community access facilities and services : 1/ ACC is not obligated to provide free . production facilities for programs containing political commercials or other commercial programming not permitted under the franchise on access channels . You are liable for the commercial cost of the production time used to produce programming containing political endorsements . 2/ ACC is not obligated to provide free cablecasting facilities for programs containing political commercials . You are liable to be charged a fee for the cablecasting time used to cablecast a program containing political endorsements . 3/ In the case of an access producer misusing access facilities , ACC reserves the right to suspend or revoke access privileges . Attached is an invoice for the production and cablecasting time used for the August 22 edition of More Than the News. Along with the invoice is a copy of rates for commercial use of access production facilities . As we do not make commercial cablecasting time available , the cablecasting rate is taken from current Channel 7 reduced rates for commercial political programming. Rather than insist on payment of this bill , ACC would like to defer consideration of this matter to the Access Advisory Board , which will be meeting on Wednesday, September 6 , at the access studio. ACC is willing to waive these charges on this occasion, if that is the recommendation of the Advisory Board . I would like to have their recommendations as to : I/ Whether, given that your program has contained multiple incidents of political commercials in the past, and has been given multiple warnings on the subject ; and in consideraton of fairness to other candidates running in local races , it is appropriate to allow this franchise violation to pass with one more warning ; 2/ At what point in cases of franchise violation by an access producer, a suspension or revocation of access privileges should be imposed. Please be advised that no further warnings will be given with respect to your liability, as producer , for the production and cablecasting cost of programs with commercial content. The next time such a commercial is noted on your program, a bill will be issued. Until such a bill is either paid in full , or a payment plan worked out with ACC's billing department, your privileges to use CABLE 13 production and cablecasting facilities will be suspended. Copies of this letter will be forwarded to Richard Herskowitz , Access Advisory Board Chair , Janice Streb, Ithaca Cable Commission Chair, and Ralph Nash, Ithaca City Attorney. I strongly urge you to present your views on this matter to the Advisory Board at their next meeting. I have already asked the Board (in a letter to Richard of August 22 , 1989) to consider the boundary between commercial and non-commercial programming at this meeting, outlining problems and questions we have had regarding this franchise restriction. I hope that as they begin their review of access policies , they will give particular attention to advising us in this area . If you have any questions , please feel free to contact me . Sincere Lauren Stefan i Community Access C di ato CABLE 13 cc : Richard Herskowitz , Chair , Access Advisory Board Barbara Lukens , ACC General Manager Ralph Nash, Ithaca City Attorney Janice Streb, Chair, Ithaca Cable Commission CABLE AMERICAN COMMUNITY CABLEVISION 13 519 WEST STATE STREET ITHACA, NEW YORK 14850 607-272-7272 INVOICE FOR CABLE 13 COMMERCIAL SERVICES Date : August 23 , 1989 Services Provided To : John Efroymson 420 Cayuga St. Ithaca , NY 14850 Program Title : More Than the News Production Date : August 22 , 1989 Fee Explanation : Community access facilities were reserved for access production , but used to produce and cablecast a program containing endorsement of a current political candidate . This is considered a commercial use of access facilities . It is restricted under Ithaca's franchise . Unlike access facilities , commercial production facilities are not provided without charge by ACC. Studio time reserved : 3 hours , 4-7pm , 8/ 22/89 Rate : $110/hour $330 Editing time reserved : 2 hours , 3-5pm , 8/22/89 Rate : $100/hour $200 Cablecasting Time : 1 hour 6-6 : 30pm and 10-10 : 30pm, 8/22/89 Rate : $45/half hour $90 [ reduced rate for political commercials ] Total : $620 . 00 Payment Due : Immediately Additional Penalty : As this invoice is occasioned by the misuse of community access facilities , your access privileges are suspended until this bill is paid . An extended payment plan may be arranged with ACC's billing department at ACC's discretion. ` Fetevision for Tompkins County" r LE13 AMERICAN COMMUNITY CABLEVISION 519 WEST STATE STREET ITHACA, NEW YORK 14850 607-272-7272 CABLE 13 PRODUCTION FACILITIES COMMERCIAL USE RATES Effective August 1 , 1989 CABLE 13 studio and editing production facilities are available for commercial rental Monday through Friday , from 9 am until 12pm . Reservations must be made at least one week in advance . Edit Suite SVHS , VHS or 3/4" U-Matic cuts-only editing to 3/ 4" Includes TBC and character generator . $ 100 per hour Studio 3 3-CCD camera studio $110 per hour CABLE 13 portable facilities are available for 24 hour rental . No advance reservations are possible , as priority is given to access producers . Same-day reservations only . A deposit is required . 3/4" Portable Kit Sony 1800 camera and 4800 VCR $ 125 per day S-VHS Camcorder Panasonic AG-450 $50 per day NOTE : 1 . Prices quoted above do not include operator . Facility may only be reserved by access producers trained on equipment to be used . 2 . All fees are payable at the completion of each facility use . "Television for Tompkins County" ACCI AMERICAN COMMUNITY CABLEVISION August 25, 1989 Ralph Nash, City Attorney City of Ithaca 108 E. Green St. Ithaca, NY 14850 Dear Mr. Nash: I 'm sending a copy of the attached letter to keep you apprised of a situation which could ultimately affect the City of Ithaca and ACC in a negative manner. As I 'm sure you know, our franchise agreement prohibits the use of access channels for commercials or political endorsements. After repeated warnings to cease this practice of endorsing political candidates and in spite of having signed a statement agreeing not to misuse the facility, such agreement indicating that the the penalty would be financial, we have found it necessary to charge Mr. Efroymson for studio, editing and air time as a result of his continued unwillingness to abide by the stated policies . We at ACC felt obligated to uphold the policy to protect the City of Ithaca and ACC from potential lawsuits brought by those candidates who are using proper procedures and who are buying air time. I hope you are in agreement with both the measures we have taken and the reasons for doing so. Sincerely, Barbara Lukens General Manager BL/fw CC: Janice Streb City Cable Commission enc . 519 West State Street Ithaca, New York 14850 607-272-3456 c�q��►T�Q`00 CITY OF ITHACA 10B EAST GREEN STREET ITHACA, NEW YORK 14850 OFFICE OF TELEPHONE: 272-1713 CITY ATTORNEY M E M O R A N D U M CODE 607 TO: Ri and ooth, Chairman of Charter and Ordinance FROM: Ra� �. Nash, City Attorney DATE: Se mber 20, 1989 RE: Use of Access Channels for Political Advertising As you may know there has been a controversy brewing regarding Article XIV, Section 14. 3 (D) of the Cable Franchise Agreement which reads as follows: Designated channels shall not be used for the promotion or sale of commercial products or services, including advertising by or on behalf of candidates for public office. The City' s Cable Commission and ACC have been sparring over the proper interpretation of this clause. It seems to me, however, that it can only be interpreted to bar endorsements of candidates. ACC appears to have no great desire to retain the provision regarding candidates for public office. We would need Common Council authorization to amend this provision, however. I would like your committee to review and forward to Common Council with its recommendation the following: RESOLVED, that the Common Council does hereby approve amendment of the Cable Franchise Agreement with American Community Cablevision, Article XIV, Section 14. 3 (D) thereof to remove the prohibition on advertising and/or endorsement of political candidates. Said provision shall, after amended, read as follows: Designated channels shall not be used for the promotion or sale of commercial products or services. RWN:blf cc: David Lytel, Alderman Barbara Lukens, ACC General Manager Janice Streb, Chairman of Cable Commission -An Equal Opportunity Employer with an Affirmative Action Program" , -ACC AMERICAN COMMUNITY CABLEVISION _ September 21, 1939 Channel 13 Political Endorsements Policy The cable television franchise agreement for the City of Ithaca prohibits political advertising and endorsements on the access channel, CHANNEL 13. ACC, as party to that agreement must uphold that provision and will not allow political endorsements and advertising on CHANNEL 13 until or unless the franchise is amended to allow it. Although the city' s Cable Commission recommended adopting a resolution to allow such endorsements, both the city attorney and ACC agreed that a change can be made only by changing the franchise agreement. There is a possibility that an amendment will be proposed. At that time, both ACC and the City of Ithaca will have an opportunity to review the amendment and determine whether or not to make it a part of the franchise agreement. Sincerely, AL�4'l-),- Barbara Lukens General Manager BL/fw cc: Ralph Nash Lauren Stefanelli Posted at CHANNEL 13 v 519 West State Street Ithaca, New York 14850 607-272-3456 u ACC AMERICAN COMMUNITY CABLEVISION September 21, 1939 Channel 13 Political Endorsements Policy The cable television franchise agreement for the City of Ithaca prohibits political advertising and endorsements on the access channel, CHANNEL 13. ACC, as party to that agreement must uphold that provision and will not allow political endorsements and advertising on CHANNEL 13 until or unless the franchise is amended to allow it. Although the city' s Cable Commission recommended adopting a resolution to allow such endorsements, both the city attorney and ACC agreed that a change can be made only by changing the franchise agreement. There is a possibility that an amendment will be proposed. At that time, both ACC and the City of Ithaca will have an opportunity to review the amendment and determine whether or not to make it a part of the franchise agreement. Sincerely, Barbara Lukens General Manager BL/fw ccs Ralph Nash Lauren Stefanelli Posted at CHANNEL 13 519 West State Street Ithaca, New York 14850 607-272-3456 Oe,C 1e rel IACC AMERICAN COMMUNITY CABLEVISION Ithaca Cable Television Commission c/o Janice Streb, Chair 121 East Shore Circle r Ithaca, NY 14850 1 Dear Janice, 1 In accordance with our franchise, this letter is to notify the Ithaca Cable Television Commission of a change in our rate structure that will take place on October 1 , 1989. i The first of these changes has to do with a fee for the installation of multiple additional outlets. ACC ' s current policy is to install at no charge all extra outlets requested by subscribers. This policy has caused a significant increase in demand (usually several additional outlets per home ) spreading our installation workforce too thin and creating difficulty with performing regular work. Our plan is to make no changes to the installation fee for the primary outlet ( initial installation ) and to continue to install the first extra outlet free of charge . Any outlets beyond those first two will be charged at an installation rate of $35 . 00 each, which is less than the cost of time and materials to do the work. As is our policy, subscribers will not pay a monthly fee for any of the extra outlets. The second change is to our rates for pay (premium) channels. The current charge for a pay channel is $9. 95, inclusive of the franchise fees . As of October first we w_71 be charging $9 . 95 ' plus the franchise fees. In addition there will no longer be a discount for choosing to take more than one pay service . We are, however, moving Bravo from a pay service to the supertier as well as adding the new Comedy Channel . I am uncertain as to when the Comedy Channel will actually launch, although I believe it will be in October or November of this year. Sincerely, l Barbara L. Lukens, General Manager cc: John Gutenberger, Mayor David Lytel, Common Council Ralph Nash, City Attorney 519 West State Street Ithaca, New York 14850 607-272-3456 Minutes of the Access Advisory Board meeting of September 6, 1989 The meeting was called to order at 7: 15 in the community access facility. Present were; Marilyn Rivchin, John Efroymson, Richard Herskowitz, Lauren Stefanelli, Mary Jo Dudley, Rick Lawrence, Carl Frederick, and Annie Ball. Proposed Agenda : 1 ) Public comment 2) ACC Report- Lauren Stefanelli 3) Public comment regarding ACC concerns 4) Political speech 5) Commercial speech Public comment: Damien Furburg expressed concern over the issue of financial sponsorship for the student productions. He voiced concern over the financial burden assumed by the students while producing their show. He requested further clarification regarding the solicitation of sponsors and their promotion on public access. As a representative of the student group, he urged the board to examine options which would lead to increased financial support for their production. Eloise Green of ICB-TV requested that current ICB underwriting policies (see attachment) be approved by the Advisory Board as part of the discussion regarding commercial speech. ACC Report: ' Lauren Stefanelli distributed copies of the current access newsletter, ACC Policies and Procedures (revised October, 1988), the Access 1989 Equipment Package Invoices, and the current ICB Underwriting Policies. LS requested advise from the board regarding the interpretation of appropriate political and commercial speech for access. She also requested the board's view regarding penalties for violations. RH read a letter sent to him from LS regarding the above mentioned issues. RH suggested that we review the revised ACC Policies and Procedures for comment at the next meeting and limit this meeting's discussion to the section of the Policies and Procedures which refers to content restrictions (see page 17). LS agreed to make copies of the revised Policies and Procedures available to access users for recommendation. RH suggested that a subcommittee be set up before the next meeting to review the Policies and Procedures to make recommendations to the board. Rick Lawrence and Marilyn Rivchin volunteered to review them. LS spoke of two incidents that raised questions regarding the issue of political speech: the Meet Ben Nichols program and More Than the News. ACC's position regarding the Meet Ben Nichols program was that Ben (who is currently seeking a political office) according to current guidelines is free to talk about whatever he please as long as he doesn't endorse himself or have someone else on the program endorse him, in the past other candidates (Reuben Weiner) have produced programs on access. The city attorney advised ACC to let the program run. Debates with both candidates present are also allowable on the access channel. The other incident brought to the meeting was an interview with Arzema Raquib of the Rainbow coalition regarding their endorsement of Ben Nichols. The board viewed the segment to see if there was an endorsement. The majority of those present said that they considered the segment to be an endorsement. Others argued that the rule restricts freedom of political speech and is not in line with national and state policies regarding access. LS stated that she wanted some advise regarding what was acceptable so that everyone would be following the same rules. RH voiced concern for a quick resolution since we are currently in the middle of local campaigns.n CF voiced concern that there be an opportunity for the complaintant to have a voice on access. LS reminded the board that ACC both encourages and facilitates rebuttals and editorial replies. Public comment: Bill McCormick raised the idea of a channel designated solely for political issues. Robin Palmer said that he had no objection to a total endorsement of any candidate but felt that MTN was really a front for Ben Nichols. Brian Gollands clarified Ben's involvement in MTN from its beginnings three and one half years ago. He also gave the context for the program in question and said that he did not consider it an endorsement. He raised the question whether the Ithaca Journal could be seen as endorsing Ben Nichols when covering the same Rainbow Coalition endorsement. RH presented a resolution for consideration by the Cable Commission of Common Council regarding political speech. The resolution is as follows: Resolution * 1 Whereas, restriction on commercial advertising are a necessary practice of public access stations and have been upheld by the New York State Supreme Court; and Whereas, restrictions on endorsements and presentations of political candidates can inhibit political speech and the potential contribution of public access to informed political debate; and Whereas, fundraising by political candidates is recognized by numerous public access stations as a form of commercial speech; and Whereas, ACC staff encourage and facilitate rebuttals and editorial replies; BE IT RESOLVED that the Public Access Advisory Board recommends to the City Cable Commission that Sec. 14.3.D of Ithaca's Franchise be interpreted to prohibit fundraising by political candidates, but not endorsements or other biased expressions by or for candidates in the course of election campaigns. This resolution was passed 4 to 2 with one abstention. Commercial speech Discussion followed regarding what commercial speech should be permissible for access. Board members quickly reviewed ICB underwriting guidelines. It was suggested that board members review the guidelines for discussion at the next meeting. Bill Mc Cormick suggested that an additional channel could be opened for commercial purposes. LS said that additional channels would be considered as requests were made. Some issues were raised with regard to how long the promotion of a sponsor could be. CF suggested a limit of 10 seconds per half hour of sponsor promotion. Some board members felt the topic required further discussion. It was a sense of the group that they would accept ICB's policy for the time being and further review the policies regarding underwriting at the October meeting. LS said that ACC would make further information regarding the possibility of establishing another channel for commercial purposes available to board members before the next meeting. A second resolution was made ; Resolution �2 We urge ACC to begin steps towards establishing a second access station to be commercial in nature. Until that time, we accept the W1 CB underwriting guidelines (with the inclusion of a time limit for advertisements to be determined by the access board ) as an acceptable limit of commercial advertising on public access television. This resolution was passed S to 2. The meeting was adjourned at 9 p.m. Minutes respectfully submitted September 1 1 , 1989, by Mary Jo Dudley. ORA7�0 CITY OF ITHACA 108 EAST GREEN STREET ITHACA, NEW YORK 14850 TELEPHONE: 272-1713 COMMON COUNCIL CODE 607 February 22, 1989 Ms. Janet Streb Chair, Ithaca Cable Commission C/O Ciaschi, Dieters-Hagen, Schaufler, S Mickelson Certifed Public Accountants Terrace Hill Ithaca, New York 14850 Dear Janet: At your February meeting, I raised the matter of eligibility requirements for senior citizens for the ACC monthly discount. As it now stands, ACC works with the list of those seniors who have received a city property tax partial exemption. This formula is helpful to those who are property owners but does little for those elderly who are not property owners and of more limited means. Motivated by the fact that the senior citizen discount as agreed upon in our franchise should be more meaningful than it .presently is, I have explored other senior discount formulas which 1 offer for the deliberation of your commission. Margaret Harding, Administrator, Tompkins County Office for the Aging, has provided me with the following information: A) Telephone Company provides a senior citizen discount to those who qualify for HEAP (Home Energy Assistance Program) . Approximately 750 county residents of whom 250 are city dwellers. B) Social Security Administration provides supplemental income assistance (SSI) to needy elderly. Approximately 300 county residents of whom 100 are in the city. C) Medicaid recipients are already beneficiaries of SSI. I believe that ACC should be called upon to accept a cable subscriber's participation in HEAP and/or SSI as sufficient qualification for meeting the senior cont'd. .. . . . .. . . . . . . . . . . . . . "An Equal Opportunity Employer with an Affirmative Action Program" -2- citizen discount for monthly cable fees. It is only fair that ACC, as they raise their base rates across the board in March 1989, give a meaningful discount, as agreed in the franchise, to those who are most frail. Thank you for your consideration. Sincerely, —...... _ SeAnKileen Alderman cc: Ithaca Cable Commission Mayor Gutenberger Common Council ACC General Manager Margaret Harding, T.C. Office for the Aging SK:bfp S a CITY OF ITHACA 10B EAST GREEN STREET ITHACA, NEW YORK 14850 OFFICE OF TELEPHONE: 272-1713 CITY ATTORNEY CODE 607 October 5, 1989 Ms. Janice Streb Chairman of Cable Commission 121 East Shore Circle Ithaca, NY 14850 Barbara Lukens General Manager 519 West State Street Ithaca, NY 14850 Re: Senior Citizen Discount on Cable Rates Dear Janice and Barbara: I have had referred to my office a senior citizen who wishes to qualify for the discount provided in the franchise agreement. The citizen does not own real property and thus cannot qualify by showing qualification for the real property tax exemption for persons over sixty-five. I would assume that this person could qualify by showing the same income qualification as required under the real property tax exemption provided to City residents. I understand that the income qualification is currently $12,025.00 - $15,025.00 per year per household. Normally, the taxpayer is asked to provide some form of identification and a copy of the previous years income tax return to qualify. Is the the basis upon which you would like to administer a senior citizen discount policy for non-property owners? Do you think it reasonable to have the Commission qualify persons? Thank you for your attention to this matter. Your very truly, Ra ph sh City ttorney RWN:blf "An Equal Opportunity Employer with an Affirmative Action Program" AF a e Imm p Amrnl:an Iclevi:inn R 1988 1.111 III I I11111callolls 1.Inpolallllll Corporate Headquarlers AFFIRMATIVE ACTION POLICY STATEMENT 160 Inverness Drive West Englewood. Colorado 80112 303 799.1200 American Television and Communications Corporation (ATC) reaffirms its commitment to take Affirmative Action in providing equal opportunities for employment and advancement to qualified individuals without regard to race, color, sex, national origin, religion, age, ancestry, medical condition, creed, marital status, sexual orientation, handicap or status as a disabled or Vietnam-era veteran. This commitment is a result of ATC's acceptance of Equal Employment Opportunity (EEO) and Affirmative Action as a social obligation and, an economic and business necessity. ATC's policy, which has the steadfast support of each person in management, ensures equal opportunities for all individuals through the development and administration of equitable personnel practices and actions in areas such as recruitment, hiring, compensation, benefits, training and development, educational assistance, transfers, lay offs, returns from layoffs, promotions, discipline, company-sponsored recreation and social activities. The commitment espoused by ATC extends beyond a merely "neutral policy" and requires the ongoing efforts of all employees to achieve successful results. r Accordingly, managers will share the responsibility of establishing Affirmative Action goals designed to correct any inequities found to exist in any area of employment at ATC. Each system and corporate department will submit reports to the Director of Employee Relations on a semi-annual basis. This information will be consolidated and analyzed to determine trends and accomplishments. The Affirmative Action Plan, including goals and timetables, will be revised on an annual basis. The performance evaluations of ATC managers will take into account their acceptance and achievement of Affirmative Action goals. Successful performance on Affirmative Action goals will provide positive benefits to ATC through full utilization and development of our human resources. Through our Affirmative Action Plan (AAP) , we are taking positive steps to ensure that equal employment opportunities prevail . Elements of our written plan are available to all employees upon request. Anyone interested in reviewing this program should contact their respective Human Resources Director or Manager within the business unit, or any ATC division president or system manager. 00^-C� TX�4� Trygv E. M hren CEO and Ch irman o Board F'nwulnul pntrll nv:urnl .lnd udrnn•darl r Ir.a••: RESOLUTION: ACC CABLE FRANCHISE AGREEMENT By Alderperson Booth: Seconded by Alderperson Killeen RESOLVED, Recognizing the state of the franchise negotiations between the City of Ithaca and American Television Communications Corporation (ATC) regarding the delivery of future cable television services in Ithaca and recognizing that the City's Negotiating Committee has attempted to have the concerns of various residents and of members of this Common Council, as expressed at public hearings and meetings, incorporated in that cable franchise agreement, and recognizing that the agreement in fact addresses many of those concerns, the Common Council hereby authorizes the Mayor execute the cable franchise agreement with ATC, subject to such changes as the City Attorney determines are necessary to make the agreement complete, workable and enforceable, in accord with the agreement in principle, including but not limited to the following: payment of the City Consultant's fee, up to $75,000; stipulation of no effective competition before the FCC; and incorporation of amendments as set forth in Mike Withiam's memo of June 8, 1988. Ayes (7) - Schlather, Booth, Johnson, Nichols, Cummings, Killeen, Lytel Nays (2) - Peterson, Hoffman Abstention (1) - Romanowski Carried STATE OF NEW YORK COUNTY OF TOMPKINS SS: CITY OF ITHACA I, Callista F. Paolangeli, City Clerk of the City of Ithaca, New York, do hereby certify that the foregoing resolution is a true and exact copy of a resolution adopted by the Common Council of said City of Ithaca at a Regular meeting held on the 8th day of June, 1988, and that the same is a complete copy of the whole of such resolution. IN WITNESS WHEREOF, I have hereunto set my hand and the Corporate Seal of the City of Ithaca, this 17th day of November, 1988. . . . . . . . . . . . . . . . . . . . . . . . . City Clerk of the City of Ithaca N i �j '14. 1 10/4/89 14. CHARTER AND ORDINANCE COMMITTEE - AGENDA ITEM 1 RESOLVED, That pending the City Attorney's review of applicable federal and state laws and subject to agreement by American Community Cablevision, the Common Council does hereby approve amendment of the Cable Franchise Agreement with American Community Cablevision, Article XIV, Section 14. 3 (D) thereof to remove the prohibition on advertising and/or endorsement of political candidates. Said provision shall, after amended, read as follows: "Designated channels shall not be used for the promotion or sale of commercial products or services. " and be it further RESOLVED, That this resolution shall take effect on January 1, 1990. r ACC -- - --- AMERICAN COMMUNITY CABLEVISION December 1, 1989 John Gutenberger Mayor City of Ithaca 108 E. Green Street Ithaca, NY 14850 Dear Mayor Gutenberger: ACC has reviewed its rates for various services in an attempt to reduce confusion which we may have inadvertently created for our customers. As a result of this review, some minor changes were made. I felt this was a good time to communicate all of our rates to you. Please note that when a customer has cable installed, the first month' s service is prorated - therefore, each customer could pay a different amount to ACC at the time of installation. Also, ACC does not require a deposit from its customers. 1 ) Cable installation ( aerial ) . . . . . . . . . . . . . . . . $20.00 plus tax rate is good for 1st outlet (or 1st and 2nd outlets if work is performed at the same time ) 2 ) Cable installation (underground ) . . . . . . . . . . . $20.00 plus tax plus our cost to bury the drop cable (or customer may bury the cable which we will provide ) 3) Outlet relocation. . . . . . . . . . . . . . . . . . . . . . . . . . $20.00 plus tax *4 ) Additional Outlet Installation. . . . . . . . . . . . $20. 00 plus tax 5 ) Reconnection ( if we ' ve disconnected for non-pay) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $20. 00 plus tax **6 ) Transfer fee ( for customers moving. . . . . . . . $20.00 plus tax within the franchise ) 7 ) Service upgrade . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 5.00 plus tax *8) Side grade ( drop one service. . . . . . . . . . . . . . . $ 5 . 00 plus tax to add another) *9 ) Account name change . . . . . . . . . . . . . . . . . . . . . . . $10.00 plus tax ( free of charge for death or divorce ) 519 West State Street Ithaca, New York 14850 607-272-3456 y 10) Install A/B switch. . . . . . . . . . . . . . . . . . . . . . . . $20.00 plus tax 11 ) Purchase A/B switch. . . . . . . . . . . . . . . . . . . . . . . $ 9. 95 plus tax 12 ) Remote Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 3.00/month 13 ) FM outlet. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Free with basic 14 ) Additional outlets. . . . . . . . . . . . . . . . . . . . . . . .Free (charge for converter for each A/O of $6 .00) *15 ) Parental Control. . . . . . . . . . . . . . . . . . . . . . . . . .Free ( set-up charge ) 16 ) Budget tier. . . . . . . . . . . . . . . . . .. . . . . . . . . . . . $11 .00/month $12 . 10 as of 3/1/90 17 ) Super tier. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 6 .00/month $ 7 .00 as of 3/1/90 18) Premium channel . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 9 . 95/month plus franchise fee 19 ) VCR Hook-up. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $20.00 plus tax Should you have any questions regarding these rates, please feel free to contact me . Sincerely, Barbara L. Lukens General Manager BLL/fw * Price was reduced ** Price Increase of $ 5.00 (effective 1/1/90) -ACC AMERICAN COMMUNITY CABLEVISION December 20, 1989 John Gutenberger Mayor City of Ithaca 108 E. Green St. Ithaca, NY 14850 Dear Mayor Gutenberger: The FCC ' s rules on syndicated exclusivity take effect on January 1, 1990. I wanted to first explain how the rules work and secondly to let you know how they will affect ACC ' s operation. Syndex was re-established by the FCC as a means of protecting local broadcasters ( those who are within a 35 mile radius ) from more distant and more powerful stations. If a local broadcaster has the syndicated rights to programs, he/she can request the cable company to black out or delete those same programs when they are broadcast by the distant stations. This is the essence of syndex. Here at ACC all of the Binghamton, Elmira and Syracuse stations are within the 35 mile radius and considered local stations. That means that all of those particular independent and network stations can ask us to black out programs for which they have exclusivity contracts. We would only have to black out those programs when they are carried on WWOR and WPIX ( the only distant stations carried by ACC ) . Syndex does not affect cable channels such as ESPN, A&E, The Family Channel, etc. WWOR has promised not to carry syndicated programming on its satellite delivered signals, which is what we receive here in Ithaca. If this turns out to be true, we should only have to worry about programming conflicts on WPIX. This means that any blackouts would occur on WPIX only. As of this date there are only two programs which need to be blacked out: "Alvin and the Chipmunks" and "Teenage Mutant Ninja Warriors" . We expect to receive proof that several other programs will also need to be blacked out. 519 West State Street Ithaca, New York 14850 607-272-3456 Because all cable television systems need to comply on January 1, the equipment needed to switch alternative programming into the blacked out spot is in high demand and as a result, unavailable . Therefore, initially ACC will be using a character generator to explain why a program has been blacked out. By the end of January or some time in February we expect to be able to replace the blacked out programs with alternative programming. We are forced to comply with syndex by law and will try to make it as non-disruptive to our subscribers as possible. For your information, a newsletter to all subscribers will be mailed in January explaining syndex as well as numerous other issues. If you have any questions, please feel free to contact me. Si cerely, A- ,4'__ Barbara L. Lukens L General Manager BLL/fw CC: Ithaca Cable Commission Mayor-elect Ben Nichols Cf TN( J tib,` rllf NEW YORK STATE COMMISSION ON CABLE TELEVISION `y O ! 1� RESOLUTION BY THE COMMISSION Statutory Authority: Article 28 of the Executive Law, Sections 811, 815 and 816 Docket No. 90379: In the Matter of Amendment to Consumer Service Rules and Regulations At a meeting of the Commission on Cable Television held in the City of Albany, New York on November 1, 1989, the Commission by unanimous vote of its members present, RESOLVED: That the provisions of Section 202(1) of the State Administrative Procedure Act and Section 101-a(2) of the Executive Law having been complied with, Title 9, Subtitle R, Part 590, Sections 590.61 - 590.69 and Part 596, Section 596.8 of the Official Compilation of Codes, Rules and Regulations of the State of New York are hereby amended, effective twenty-one (21) days after the date a Notice of Adoption is filed with the Secretary of State. The Executive Director shall file with the Secretary of State a certificate of rulemaking pursuant to Section 102(2) of the Executive Law and a Notice of Adoption pursuant to Section 202(5) of the State Administrative Procedure Act. I4�lis���al della (:�l�h•'1'��Ic•� i�i���� - A�.�►c�l:U.lc��i Please read the attached and consider ways that we can improve upon and/or maintain the highest level of customer service. Our goal is to have twelve consecutive months of having met these standards. (Hopefully,to have exceeded them! ) At the end of that twelve month period we would then receive and post a standards seal of quallity. The cable industry is dedicated to providing our customers a consistently high level of service. We are committed to ensuring that our customers receive a variety of quality programming; reliable, clear signals: and prompt, courteous service. To that end, we, as an industry, have voluntarily adopted the following Standards for Customer Service. Each community and each cable system are different and a reasonable flexibility should be employed in applying these standards: rigidity will hamper rather than help good customer service. We are confident, however, that the cable industry as a whole will implement these voluntary standards by July 1991, and recommend them for overall operational use by that r1otP, 1. Office and Telephone Availability A Knowledgeable, qualified company representatives will be available to respond to customer telephone inquiries Monday through Friday during normal business hours. Additionally, based on community needs. cable systems will staff telephones for supplemental hours on weekdays and/or weekends. a Under normal operating conditions. telephone answer time by a customer service representative, including wait time, and the time required to transfer the call. shall not exceed 30 seconds. Those systems which utilize automated answering and distributing equipment will limit the number of routine rings to four or fewer. Systems not utilizing automated equipment shall make every effort to answer incoming calls as promptly as the automated systems. This standard shall be met no less thati ninety percent of the time measured on an annual basis.- C- Under normal operating conditions. the customer will receive a busy signal less than three percent of the total time that the cable office is open for business. D. Customer service center and bill payment locations will be open for transactions Monday through Friday during normal business hours. Additionally, based on community needs, cable systems will schedule supplemental hours on weekdays and/or weekends during which these centers will be open. 2. Installations, Outages and Service Calls Under normal operating conditions, each of the following Dour standards will be met no less than 95% of the time measured on an annual basis. A. Standard Installations will be performed within seven business days after an order has been placed. "Standard" installations are up to 125 feet from the existing distribution system. B. Excluding those situations beyond the control of the cable operator, the cable operator will respond to service interruptions promptly and in no event later than 24 hours. Other service problems will be responded to within 36 hours during the normal work week. G The appointment window alternatives for installations. service calls. and other installation activities will be (a) morning, (b) afternoon, or (c) all day during normal business hours. Additionally, based on community needs, cable systems will schedule supplemental hours during which appointments can be set. D. If. at any time an installer or technician is running late. an attempt to contact the customer will be made and the appointment rescheduled as necessary at a time which is convenient for the customer. 3. Communications, Bills and Refunds A. The cable company will provide written information in each of the following areas at the time of installation and at any future time upon request: • products and services offered • prices and service options • installation and service policies • how to use the cable service a Bills will be clear, concise and understandable. C. Refund checks will be issued promptly, but no later than the earlier of 45 days or the customer's next billing cycle following the resolution of the request, and the return of the equipment supplied by the cable company if service is terminated. D. Customers will be notified a minimum of 30 days in advance of any rate or channel change, provided the change is within the control of the cable operator. A CABLE TELEVISION _FRANCHISE RENEWAL PROPOSAL FOR THE CITY OF ITHACA, NEW .YORK by AMERICAN COMMUNITY CABLEVISION March 25 , 1987 Copyright c 1987 American Television and Communications Corporation National Division COMMUNITY COMMITMENTS ACC ' s current negotiations with Cornell University are an example of ACC ' s long-time and long-term commitment to Ithaca institutions and individuals -- primarily through community programming. The past . . . . ACC ' s approach has been to offer community programming to meet a variety of needs in the community . . . . providing a total communications program. Training, equipment and other support enable almost 400 volunteers to produce more than 50 original hours of local programming each month . Volunteer-produced access programs cover a wide range of issues and interests within the Ithaca community. A few examples currently in production are : -- Octopus : Perspective & Controversy. Discusses the various options presented to the community for resolving the Route 96 question in Ithaca' s West End. -- More Than the News. An alternative news program that explores a range of issues in the community, providing information and commentary. -- The Bramble and the Rose. An entertainment program featuring Celtic folk music . -- The Imani Hour . A religious program. -- High School Sports. A program that provides updates and features on the area' s high school sports scene . In addition to these programs , productions produced by the Tompkins County Public Library and the Ithaca College School of Communications are cablecast two nights per week from September to May. ACC-trained volunteers not only produce their own programs , but they may also choose to work with ACC staff on ACC-produced public affairs programming. Currently among these programs are : -- Our Community. Highlights local community service organizations . Two additional programs , "United Way Today" and "To Your Health, " were developed after representatives of the United Way and the Tompkins County Health Association appeared on "Our community. " i 9 -- For the People. Features discussion on local political issues . Last fall every candidate representing Tompkins County appeared on this program. -- News Forum 13. A "Meet the Press"-style interview program where members of the local media query community leaders . Another important element in ACC ' s total communications program are public service announcements . ACC staff and volunteers produce local PSAs on a regular basis , and they are shown on Cable 13 , Cable NewsCenter 7 and four satellite-delivered services , CNN, USA, ESPN and MTV. In addition, a number of other ACC productions help meet community needs : -- Cable NewsCenter 7. Prior to the introduction of this programs in July 1986 , local television news was practically non-existent for Ithacans . Now residents can tune in to the news at either 6 or 11 p .m. to gather information on community issues . Feature stories also promote and cover community events . Cable NewsCenter 7 also serves the educational community by providing internships for students at Cornell University, Ithaca College and TC-3 . -- Production benefits for local business. The introduction of Cable-Ads in January 1985 provided local businesses with television advertising opportunities targeted to the Tompkins County marketplace , making television advertising affordable to them for the first time . Since then, ACC has developed a full-scale production unit that produces commercials and a range of institutional productions such as training tapes or sales tapes . With these programs , ACC is fulfilling another communications need for the community. The success of ACC ' s total community communications program is evident in ACC ' s updated and corrected Institutional Ascertainment of the same 20 organizations surveyed by Rice Associates in 1986 . ( See pages 53b through 53f of Section VII of ACC ' s response to the city ' s RFP questions . ) . . . .and the Future As requested by the city, ACC initially will provide nine public , governmental and educational access channels 10 ( PEG) on the cable system, and, as also requested, all of these channels will be unscrambled. With this plan, ACC also will provide : -- Operational support of access . If the city so desires , ACC will allocate as much as two percent of its annual revenues to public access as part of the city ' s requested five percent franchise fee . ( The other three percent will be allocated by the city for cable franchise regulation and other expenses . ) -- Technical support and training. ACC will continue to maintain and repair access equipment . ACC will also continue to offer regularly scheduled training programs and special video seminars . -- Outreach. ACC ' s vigorous outreach program will continue . This effort , designed to locate and attract potential volunteer community ,producers and access participants , includes activities such as newspaper ads , articles and notices in ACC ' s programming guide , notices on the community bulletin board, press releases , posters , flyers and program listings in local newspapers where possible . -- Studio facility. ACC will maintain its current studio facility at 519 West State Street . In addition , ACC will continue to maintain the return paths which make cablecasting possible from the Tompkins County Public Library, Ithaca College and City Hall . -- Capital support . ACC will provide new high quality, easy-to-use production equipment , including a portable video origination module ( PVOM) , an editing system for one-half inch productions and additional audio and lighting equipment . ( See ACC ' s response to Section VII , page 51 , of the city ' s RFP questions . ) Access producers will continue to have priority use of the studio facility, control room and editing equipment at 519 W. State Street . As an alternative to this above approach, if the city opts to form a non-profit corporation, the two percent of franchise fees discussed above will be remitted to the corporation for management , including but not limited to technical support , outreach activities and training, of access activities . Should the city select this option , the avove new equipment plus editing and control room equipment comparable to the editing and control room currently provided at the 519 W. State Street facility will be provided by ACC . This equipment would be provided to the city for placement in a location to be determined by and 11 t paid for by the city . If a non-profit corporation is formed, the equipment which is dedicated to access would be given to the non-profit corporation with the understanding that all access users in the greater Ithaca community have equal access to the equipment . These plans were developed in a very short timeframe in response to the City ' s request . ACC is certainly open to discussing alternative plans with the city. Regardless of whether the city decides to form a non- profit corporation , the system will continue interconnection opportunities with neighboring cable systems and provide the community service of a bulletin board. -- Community Bulletin Board. An upgraded character generator with multi-page capacity will be purchased to meet growing community bulletin board announcement requests . This equipment will be operated by an ACC employee who will be trained to optimize the system' s graphics capability . -- Interconnection. In addition to carrying access programming produced by residents of the greater Ithaca area, ACC will continue a "bicycling" program with other area cable operators . Access programming from across the country also will be available through ACC ' s affiliations with national community programming organizations such as the Community Programming Network Deep Dish TV, and Squeeky Wheel . In addition to training and technical support , ACC endeavors to make community programming a viable opportunity for even more community members . To this end, ACC has developed a plan whereby access producers and volunteers , who must ultimately be responsible for the care of expensive production equipment , can purchase "by the day" an "Equipment Damage Waiver . " By purchasing this waiver , volunteers can lower their total liability for damage to equipment in their possession to $250 or $500 , depending on the level of protection desired. This proposed damage waiver strikes a balance between the City ' s desire to protect volunteers from financial hardship and the need of other access users for available and operable equipment . CUSTOMER SERVICE ACC has continually strived to provide the city ' s residents with quality cable television which -- even with its limited channel capacity -- provides a tremendous variety of programming options . 12 y. a ago A�RA7Ep CITY OF ITHACA 108 EAST GREEN STREET ITHACA, NEW YORK 14850 OFFICE OF TELEPHONE: 272-1713 CITY CLERK CODE 607 MEMORANDUM TO: TELEVISION CABLE COMMISSION FR: DAVID LYTEL, ALDERPERSON D DA: DECEMBER 9 , 1988 RE: T.V. CABLE COMMISSION MEETING, TUESDAY, DEC. 13 , 1988 I would like to meet with all of you on Tuesday, Dec . 13 , 1988, at 7: 00 P.M. , ( hour before the meeting) , to discuss the evening' s agenda. Thank You . DL/bfp "An Equal Opportunity Employer with an Affirmative Action Program" � c IACC AMERICAN COMMUNITY CABLEVISION Cable Commission City of Ithaca 108 E. Green St . Ithaca, NY 14850 December 5 , 1988 Dear Commission Members : ` Enclosed is a draft proposal for the capital expenditure allocation of $165 ,000 for PEG access provided for under the 1988 Franchise between American Community Cablevision and the City of Ithaca. ' As required under the new franchise , we are hereby submitting this draft proposal to the Cable Commission for your review. I hope that we will be able to discuss the plans in more detail , and answer any questions you might have, at the upcoming meeting of the Cable Commission on December 13. As outlined in the draft , this plan has been developed over the past few months with several goals in mind. First, we sought to include the volunteers in the planning process by meeting with them and soliciting verbal and written descriptions of their perceived equipment needs and priorities . We tried , and I think in the main succeeded , in developing a broad consensus of our most glaring equipment needs , as well as our -most logical avenues for growth. Second, we sought to put together a comprehensive package , in which the parts would work together to maximize the effectiveness of this increase in our resources . We believe that this proposal will serve as a solid foundation for the future development of community access in Tompkins County. Third , we were very conscious of the interests and needs of the City of Ithaca while developing this plan. The addition of a second editing suite,, the expansion of our portable capabilities and the proposal for a portable production system directly address the interest of City Hall in having meetings videotaped in a high-quality fashion and in linving nccess to production and editing time. Fourth, the development of this equipment package has gone hand in hand with the development of the plans for our building renovation. Enclosed is a floor plan for the new facility for public access , currently under construction at 621 West Green Street . This building plan .has been specifically designed to accomodate an expanded public access facility. 519 West State Street Ithaca, New York 14850 607-272-3456 a � For example , a second edit suite is being built to accomodate a second editing system. A "Conference Room/Lounge" is intended to serve as a pre- and post-production meeting room for volunteer crews , and will house playback and tape logging facilities in 3/4" as well as SVHS. The studio will feature an enlarged control room as well as a separate storage area for props and sets . Cablecasting equipment , videotape stock and portable equipment will be more safely and accessably housed . Office space has been enhanced to support the addition of a third access staffinember in June , and to give volunteers more room to plan their production schedules and consult with staff. A new climate control system is being installed, which will help maximize the useful life of all of our equipment . Other creature comforts have not been forgotten, and include an area for coffee and snacks in the Conference Room/Lounge , rest rooms with makeup lighting, a heat insulating vestibule with coat rack for the entryway, and complete handicapped accessibility throughout the building. Working under an on-going construction project which, when completed , will have rebuilt the entire interiors of both the 519 and 517' West State Street buildings as well as the Green Street building, we have estimated a timetable for this project as follows : December 5 : Studio closes . Cablecasting , Portable Equipment Sign-out and Editing Facilities available as usual . Access has moved to a temporary cablecasting/ editing/ office space in the back of the 519 building. January 2: Green St . building ready to be occupied. January 2-15: Move to Green St . , as construction schedule/readiness permits . We estimate that cablecasting and editing facilities may be suspended for a few days at the most . We will try to minimize this disruption. January 15: Tentative date for access office , cablecasting playback, editing and portable facilities opening at 621 W. Green St . Late February- Mid March: Tentative date for opening of full studio facilities . April/May: Studio closes for 3-6 weeks to accomodate installation of new equipment . June 1 : Deadline for studio reopening, with equipment purchased under the new franchise capital allocation installed. This tentative timetable has been announced to access volunteers at a public meeting held last Thursday, December 1 . We have revised our schedule somewhat since this meeting, and these changes , along with a detailed summary of our temporary hours and facilities , will be distributed to volunteers later this week in our December access newsletter. One particular change has been to find quarters which will allow editing to continue throughout this interim period, intead of closing this function down as originally planned. In this , we were responding to a strongly expressed desire of volunteers at the meeting to be able to keep their ability to produce edited programs going without interruption. Please note that while we hope to adhere to this schedule as closely as possible, and meet the June 1 deadline, while minimizing any interruption in the availability of access facilities , we are subject to several constraints . These include: unforeseen delays in the construction process ; delays in the review and approval process by the City for the equipment package; and equipment "quirks" or malfunctions , which our engineer assures us always occur during large-scale moves like this one. I will be presenting a request at the December 13 meeting to aprove this equipment package . I look forward to discussing all of these issues with you at that time. Sincerely, Michael Withiam General Manager CAPITAL EXPENDITURE PROPOSAL CABLE 13 COMMUNITY ACCESS STUDIO Draft, 12/1/88 The following equipment package proposal has been developed in accordance with the $165,000 capital expenditure allocation agreed to under the 1988 Franchise between the City of Ithaca and ACC. This proposal has been developed by ACC after seeking input from the users of the community access studio, our access volunteers . Our methods of seeking input have included a public meeting in September as well as written and oral "wish lists" submitted by a number of interested volunteers over the past few months . This proposal must be approved by the City of Ithaca before it can be implemented. Once approved, it must then be sent out to bid . Equipment lists will be sent to qualified and authorized vendors for bidding. After the bidding and ordering process , the equipment will probably take 8 - 10 weeks to arrive, and then must be installed. The current deadline for the installation of equipment purchased under this allocation is June 1989. Please note that while specific brand names , model numbers and prices of individual items are not included in this proposal summary, due to the negotiations in the bidding process yet to come , we are committed to maintaining the current levels of quality in equipment. Also note that this proposal contains price estimates only. Actual prices will be affected by the bidding process and be length of time that the approval process delays the finalization of the package. Prices usually rise at the turn of the year, and, as much of the equipment will be Japanese, the continuing fall of the dollar vis-a-vis the yen may be a factor as well . All of these factors may affect our buying power, and hence our ability to purchase all items listed in this proposal . Finally, note that sales tax and freight costs take about a 10% bite out of the total figure - in other words , to bring the plans in for $165,000, we must include about $15,000 ,just for tax and freight, leaving about $150,000 for equipment. CAPITAL EXPENDITURE PROPOSAL CABLE 13 COMMUNITY ACCESS STUDIO Draft, 12/1/88 Pg. 2 FUNCTIONAL AREAS: 1 . STUDIO BASICS 2. STUDIO CAMERAS 3. CONTROL ROOM UPGRADE 4. EXISTING EDIT SUITE UPGRADE 5. SECOND EDIT SUITE 6 . PORTABLE EQUIPMENT 7. VIEWING BOOTH 8 . PLAYBACK UNIT UPGRADE 9 . PORTABLE STUDIO UNIT 1 . STUDIO BASICS Function: Basic amenities for the studio, to replace obsolete equipment or to resize equipment to the new facility, including: a new lighting grid, cycloramas , racks to mount equipment in, assorted test equipment and monitors , and a new audio console for the studio. . . New Lighting Grid , sized to new facility . . Curtain track, sized to new facility . . Black Cyclorama curtain . . Grey Cyclorama curtain (allows Chroma key effects) . . Rack mount units for studio console, 2 edit suite consoles, additional playback rack to incorporate bulletin board and SVHS playback. , Assorted rack inserts. . . Test equipment : new synch/color bar generator to replace 11 year old unit; second waveform monitor. . . New studio "On-Air" monitor . . New Program, Preview & Source monitors for studio New audio board for studio (replaces 10 year old units) . . Add=on mixer for extra studio audio inputs . . Wiring, hardware , connectors TOTAL (EST. ) : $ 33 , 115.41 CAPITAL EXPENDITURE PROPOSAL CABLE 13 COMMUNITY ACCESS STUDIO Draft , 12/1/88 Pg. 3 2 . STUDIO CAMERAS Function: Replace current 1-tube cameras with 3-chip cameras . These do not burn (our largest problem with the current cameras , at about $2000 per tube replacement -including labor) and will yield a much enhanced image , as well as better resolution in lower light. They will enable our current Special Effects Generator to utilize its Chroma Key function (which a cyclorama in the basic studio package will also support) . They are reported to be sturdy, low- maintenence cameras , and should serve as a high-quality yet damage-resistant core to our studio system. (3) 3-chip camera packages includes cameras , Camera Control Units , lens packages , remote cables , CCU rack mounts , studio viewfinders , camera cables. TOTAL (EST. ) : $ 30,435.00 3. CONTROL ROOM UPGRADE Function• We have 2 main functions to consider here (other than the audio board, which has been included in the Basic Studio Package) . The first is adding the capability to mix or wipe between 2 banks of VCR' s . This will require: . . Routing Switcher . . Time Base Corrector The second is to replace our current consumer grade VHS VCR with an industrial .grade SVHS VCR, supporting the addition of SVHS units in other areas of this proposal . . . Industrial Grade SVHS VCR, Rack Mount and Remote Control . . Cables , connectors and hardware One more addition is a delay for the phone line, making it easier to screen out obsene callers on live call=in programs. . . Phone delay system TOTAL (EST. ) : $ 11 ,605.00 CAPITAL EXPENDITURE PROPOSAL CABLE 13 COMMUNITY ACCESS STUDIO Draft , 12/1/88 Pg. 4 4. EXISTING EDIT SUITE UPGRADE Function: Upgrade existing edit suite to include the capability to edit from SVHS or VHS source material as well as 3/4" source material . Add disk drive capability to character generator to eliminate edit time lost replicating repeating program titles . . . Industrial Grade SVHS VCR and rack mount . . Interface between SVHS and U-Matic decks . . Routing Switcher and Rack Mount . . Knox K-100 Expansion Option C Disk Drive includes disk drive , memory, font expansion & random access programming . . Waveform Monitor and Rack Mount . . Cables , hardware and connectors TOTAL (EST. ) : $ 8645.00 5. SECOND EDIT SUITE Function: Increase available editing time. Support SVHS, VHS or 3/4" source material to 3/4" program master. Package intended to match existing edit suite as closely as possible, to aid in volunteer training and maintenence functions (spare parts) . . . Basic 3/4" edit package Source VCR, Record VCR, Edit Controller, 2 Connector Cables , 1 Dub Cable . . Knox K100B Character Generator . . B/W 9"Monitor (CG Status) . . Knox K100B Option C Disk Drive . . Waveform Monitor and Rack Mount . . (2) 9" Color Monitors and Rack Mount . . Routing Switcher . . (2) Audio Monitors . . Time Base Corrector . . Industrial Grade SVHS VCR and Rack Mount . . Interface between SVHS and U-Matic decks . . Parametric EQ and AC Adapter . . Cables , hardware and connectors TOTAL (EST. ) : $ 32,759 .95 CAPITAL EXPENDITURE PROPOSAL CABLE 13 COMMUNITY ACCESS STUDIO Draft, 12/1/88 Pg. 5 6. PORTABLE EQUIPMENT Function: U-Matic Portable Kits : Our current portable cameras , the 2 Sony 1800 series cameras , are nearly ready to be retired. With our studio cameras replaced, we have 3 Sony 1820s with several years life in them to work with here as replacements . We also may have another option in 3 Sony 1820' s in ACC' s news department: these have already been replaced by other cameras in their system, and we might aquire them for access at a lower cost than new cameras . (Actually, one of CNC7 ' s cameras has been in use as an access studio camera for many months) . With this in mind, we have proposed recycling these 6 system=wide 1820' s as follows : 2 to replace our current portable cameras , 2 for a portable studio unit (section 9, below) and 2 to serve as spares for both of these systems . 2 of these cameras have repair costs associated with them to bring them on line (in particular 1 tube replacement) , but this would still lie the most efficient use of system resources , and the best way to maximize our overall purchasing power. Add SVHS chip camcorders . This addresses 2 major demands of users : fear of burning camera tubes , and difficulty of managing the heavier 3/4" portable kits . After researching the market, we _ have selected a unit which has some metal base elements and is relatively sturdy. Nevertheless, these will be more problematic to have repaired than the professional equipment we've been using. We have therfore included several spares in the package. The number of units also reflects the anticipated increased demand for portable equipment with these units. . . (6) Industrial Grade SVHS Camcorders 4 equipped with batteries, AC adapters , tripods and cases . . Portable Light Kit (with 3 individual lights) . . (3) Hand-held mics . . (2) Laveliere mics Cables, hardware and connectors TOTAL (EST. ) : $ 14,280..00 7. VIEWING BOOTH Justification: Provide tape viewing and logging capability in SVHS and 3/4". This will save wear and tear on the edit suites , as well as making more editing hours available for actual editing. The tape logging/viewing booth will be placed in the conference CAPITAL EXPENDITURE PROPOSAL CABLE 13 COMMUNITY ACCESS STUDIO Draft, 12/1/88 Pg. 6 7 . VIEWING BOOTH (CONTINUED) room/lounge, and enable production crews to preview or review program material during production meetings . . . Industrial Grade SVHS VCR TOTAL (EST. ) : $ 1 ,200.00 8. PLAYBACK UNIT UPGRADE Justification• Add SVHS playback capability, supporting the integration of SVHS elsewhere in the system. Changeover to Fortel Time Base Corrector, making all access units completely uniform. Current playback TBC would go into engineering support, to replace units undergoing repair when needed. Upgrade Community Bulletin Board from 16 to 64 pages . . . Industrial Grade SVHS VCR and Rack Mount . . (2) 9" Color Monitors and Rack Mount . . Time Base Corrector . . Knox K40 Expansion TOTAL (EST. ) : $ 10,203.00 9. PORTABLE STUDIO UNIT Function• Provide the capability to set up a 2-camera studio in the field. The system should be capable of being moved by 2 people, and loaded into any mid-size automobile. The system should make possible multi-- camera coverage of City Hall meetings (a specific franchise requirement) , either live or taped. The system should also support the overall equipment package . Under this package, we will be replacing our current studio cameras with new cameras . This proposal moves 2 of these displaced studio cameras into this portable configuration. In addition to saving the cost of new cameras , we would also save the cost of camera control units , 50' camera cables, remote focus and zoom attachments , studio viewfinders and portable cases for each camera. For recording, we have selected an SVHS record unit , on the grounds that this is likely to meet the needs of the most users . CAPITAL EXPENDITURE PROPOSAL CABLE 13 COMMUNITY ACCESS STUDIO Draft, 12/1/88 Pg. 7 9 . PORTABLE STUDIO UNIT (CONTINUED) . . (2) Tripods , with Heads , Handgrips and Dollys . . Triple B/W 9" Monitor and Rack Mount . . (2) Color 9" Monitors and Rack Mount . . Audio Mixer . . Special Effects Generator . . Audio Monitor . . (2) mics . . (2) Lavelieres . . (2) Portable Road Cases . . (3) Headset walkie-talkie/intercoms . . Cables , hardware and connectors . . Industrial Grade Recording SVHS VCR TOTAL (EST. ) : $ 12,550.00 PRELIMINARY ESTIMATE FOR PROJECT TOTAL: $154,793 ESTIMATED TOTAL INCLUDING TAX (7%) AND FREIGHT (3Z) : $170,272 Green Street Retail Space (Four Seasons) STOR. S / V L9/O I)I� 35' (/TILL )PZAMOCIII� MT ' V � TAPE J'TorfE. 1410/hEN -� CoNTi?ot P-P.9K r'vI R� M 570eAOE C /s'6'y "X a io� � i IfN L EDIT 1 ..-" rT OFF/C E L/ ED/T CON, OUNGF --� .2 L L/ L11 Floor Plan for New community Access Studio at 621 West Green Street 8101 East Prentice Avenue Suite 704 Englewood, CO 80711 303.850.7380 SHOWTIME NETWORKS INC. December 20, 1989 William Demo Cable Commission 119 Auburn Street Ithaca, NY 14850 Dear William: I am writing to you today to tell you about Showtime Networks Inc. You may not be familiar with either SHOWTIME or THE MOVIE CHANNEL, since neither of these pay TV channels are offered on your local cable system. As a community leader, I'm sure you are expected to be knowl- edgeable on a wide variety of subjects, and finding up-to-date information on cable television may not be easy. In the coming months, I plan to provide you with information about our company, its services, and our industry. We also have a lot of data and sources of information, not only about our services, but also on other aspects of the cable television business. Enclosed is some basic information on our company and SHOWTIME and THE MOVIE CHANNEL. If you need some specific information on cable, or have questions on the information enclosed, I may be able to help you and would welcome hearing from you. Conversely, you may not be that interested; and if you notify .me V Vlof that, we will immediately take your name off our mailing list. SHOWTIME is the second largest pay television service in the U.S. It offers exclusive movies, special events, championship boxing and comedy that are not shown on HBO or Cinemax. SHOWTIME is available to about 90% of U.S. cable households. SHOWTIME does not carry commercials or X-rated films and is on 24 hours a day. Sensitive to community values, SHOWTIME will not show an R-rated film before 8:00 p.m. ET (7: 00 p.m. CT) . SHOWTIME's commitment to exclusive and original programming sets it apart from all other national pay cable services. THE MOVIE CHANNEL also a 24-hour premium service is devoted exclusively to movies. With an innovative schedule that arranges weekdays by movie type, THE MOVIE CHANNEL weekends are modeled after the popular multiplex theater concept and offer a variety of movies at several convenient times for the viewer. Please take the time to read the enclosed overviews on SHOWTIME and THE MOVIE CHANNEL. I look forward to beginning our cable dialogue. Cordially, Bill Fogarty National Sales Director SHOWTIME NETWORKS INC. FACT SHEET SHONTIME NETWORKS INC. FACT SHEET DECEMBER, 1989 Formed in September 1983, SHOWTIME/THE MOVIE CHANNEL INC. , which recently changed its name to SHOWTIME NETWORKS INC. (SNI), is a wholly owned division of Viacom Inc. , one of the most prominent corporate leaders in the entertainment field. SHOWTIME is the nation's second largest pay-television network. The service's programming is distinguished by an exciting exclusive lineup of blockbuster movies, comedy series and specials, concerts, original movies and mini-series, championship boxing, family entertainment, and classic films. THE MOVIE CHANNEL is the only national 24-hour premium service devoted exclusively to movies. In May 1988, THE MOVIE CHANNEL created an even greater movie orientation when it implemented a number of innovative programming and scheduling changes that further recognized its subscribers' movie orientation. During the week, features like The Breakfast Movie, TMC Classic, DramArama, The Big Movie, Action Attraction, The Laffternoon Movie, and TV Dinner Movie are regularly scheduled. Complementing this daytime schedule is Prime Time Movie and VCR Overnight, a feature that replays prime-time movies back to back for ease in time shifting. The TMC Weekend Multiplex kicks off on Fridays with the TGIF Movie, Friday Night Action, TMC Top Attraction, and VCR Overnight: All-Night Drive-In. Saturday's schedule consists of The Early Show, TMC Top Attraction, Joe Bob's Drive-In Theater, followed by VCR Overnight: Movie Marathon. The weekend concludes on Sunday with TMC Top Attraction, Sunday Star Movie, Critics Choice, and VCR Overnight: TMC Classics. In December 1983, SHOWTIME/THE MOVIE CHANNEL bought the assets of the Spotlight pay-television service, including two transponders on the Hughes and Galaxy I satellite. When the acquisition was complete, SHOWTIME/THE MOVIE CHANNEL had gained more than 700,000 former Spotlight subscribers, increasing its subscriber-base by 10 percent. Also in 1983, SHOWTIME/THE MOVIE CHANNEL launched it' s differentiation strategy with an exclusive deal with Paramount Pictures, giving SHOWTIME and THE MOVIE CHANNEL exclusive national pay-cable rights to all Paramount theatrical product for the next five years. -more- SHOWTIME NETWORKS INC. ..i Eroaawav New r^rr ^,• g : �C0 ,ersa C:ry?aza ersa dud 'G SNI FACT SHEET PAGE 2 In November 1985, SHOWTIME/THE MOVIE CHANNEL INC. launched VIEWER'S CHOICE, the nation's first satellite delivered pay—per—view network. In April 1986, SHOWTIME/THE MOVIE CHANNEL INC. signed exclusive film licensing agreements with The Cannon Group, Atlantic Releasing and Touchstone Films. In May 1986, following the implementation of full—time scrambling, SHOWTIME/THE MOVIE CHANNEL launched a wholly owned subsidiary, later named Viacom Satellite Networks Inc. , to market the two premium services, a package of basic services and pay—per—view channels, to home satellite dish owners nationwide. In August 1986, SHOWTIME/THE MOVIE CHANNEL acquired the exclusive national pay—television rights to five MGM feature films in an agreement with Turner Broadcasting Systems. By the end of September, SHOWTIME/THE MOVIE CHANNEL had also signed five—year exclusivity pacts with Orion Pictures and Imagine Films Entertainment. As a result of SHOWTIME/THE MOVIE CHANNEL' s ambitious campaign towards differentiation, six out of 10 of 1986's top grossing films had their national pay television premieres exclusively on SHOWTIME or THE MOVIE CHANNEL, and 1987 saw the addition of six of the top 10 highest grossing films to the exclusive roster. In February 1987, Viacom Network Enterprises Division was formed with Ron Bernard as President. This new division is responsible for the operation of VIEWER'S CHOICE, Viacom Satellite Networks Inc. , and all hotel/motel and SMATV activities. In March 1987, Viacom Satellite Networks Inc. began marketing its package of 12 popular satellite programming services to the home TVRO marketplace, in addition to making VIEWER'S CHOICE titles available to SHOWTIME/THE MOVIE CHANNEL direct retail subscribers owning a VideoCipher II decoder. In March 1988, SHOWTIME/THE MOVIE CHANNEL entered into a multi—year licensing agreement with the Weintraub Entertainment Group. It was the studio' s first domestic pay arrangement and covered 20 theatrical motion pictures, including films starring Dan Aykroyd, Kim Basinger, Molly Ringwald, and Shelley Long. In May 1988, SHOWTIME/THE MOVIE CHANNEL struck a deal with Carolco Pictures Inc. granting Showtime rights to distribute Carolco's theatrical motion pictures exclusively in the U.S. pay cable and satellite markets over the next five years. In September 1988, SHOWTIME/THE MOVIE CHANNEL changed its name to SHOWTIME NETWORKS INC. In addition to operating Showtime and The Movie Channel , SHOWTIME NETWORKS INC. also operates two pay—per—view services: Viewer's Choice One and Viewer's Choice Two, as well as Viacom Satellite Networks Inc. , the Home TVRO marketing arm of the company. The corporate name change will not have an effect on the operations of any of the company' s ongoing businesses, nor will it affect the names of these businesses. -more- SNI FACT SHEET PAGE 3 In November 1988, Viewer's Choice and Home Premiere Television combined and now operate two channels of pay-per-view programming named Viewer's Choice One and Viewer's Choice Two. The new Viewer's Choice serves over 200 affiliated cable systems with 8 million basic subscribers and nearly 5 million addressable households across the country. Viewer's Choice continues to provide a valuable entertainment service for subscribers and an increasingly profitable revenue service stream for motion picture studios, event suppliers and cable systems alike. Also in November 1988, SHOWTIME NETWORKS INC. formed Showtime Event Television, which is among the most experienced special event units in the business. While under Viewer's Choice aegis, the management team created and distributed a greater variety of new industry-wide pay-per-view event programming than any other source. The formation of Showtime Event Television affirms our belief in the importance of special events for pay-per-view. In March 1989, SHOWTIME NETWORKS INC. and Walt Disney Studios entered into the largest pay television deal ever, where all motion picture product from Touchstone Pictures and Hollywood Pictures will have exclusive pay television exhibition on SHOWTIME NETWORKS INC. 's services for the next seven years. The deal encompasses approximately 150 titles. Also in March, SHOWTIME NETWORKS INC. and Viacom Enterprises entered into an exclusive 18 picture deal with Nelson Entertainment. In May of 1989, SHOWTIME NETWORKS INC. patted with Sylvester Stallone' s White Eagle enterprises and Carolco Pictures Inc. for pay television rights to 10 forthcoming feature films. Also in May, Showtime Networks Inc. acquired the exclusive U.S. pay cable license to 17 motion pictures from Pathe Communications Corp. ' s Cannon Distributors Inc. Additionally, SHOWTIME NETWORKS INC. acquired the exclusive pay television license to 5 feature films produced by filmmaker Taylor Hackford's New Visions Pictures, 2 Cinecom films, the pay television exhibition rights to 'Who Framed Roger Rabbit; ' a Touchstone release and exclusive pay cable rights from Universal Pictures to 6 films produced by New Line Cinema. In August 1989, SHOWTIME NETWORKS INC. announced the launch of the first 24 hour satellite delivered news service, All News Channel , developed jointly for the home satellite TV market and local broadcasters. This fifty-fifty joint venture between Viacom Satellite News Inc. and Conus Communications will consist of continual newscasts and will draw on the established domestic news strength of the Conus Satellite Cooperative, and its growing international resources. The channel is planned to premiere on the Satcom 2R satellite in late November 1989 and will be encrypted and offered for subscription on January 1 , 1990. -more- SNI FACT SHEET Page 4 In October 1989, SHOWTIME NETWORKS INC. entered into a multi-picture arrangement with Columbia Pictures Entertainment, for non-exclusive rights to approximately 60 first run titles from Tri-Star Pictures and Columbia Pictures, which will become available to SHOWTIME starting at t he end of 1989 and extending through 1991 . In November 1989, "All News Channel" the new 24-hour satellite-delivered news service for the home satellite TV market and local broadcasters. All News Channel is a joint venture of Viacom Satellite News Inc. , a subsidiary of Viacom International Inc. , and Conus Communication, and the managing general partner and majority shareholder of Conus Communication is Hubbard Broadcasting, Inc. SHOWTIME NETWORKS INC. 's headquarters are in New York City. Twelve regional offices offer an affiliate network of over 6,500 cable systems continuous sales, marketing and technical assistance. These regional offices are located in: Los Angeles, California New York, New York Chicago, Illinois San Francisco, California Dallas, Texas Cincinnati , Ohio Atlanta, Georgia Ft. Lauderdale, Florida Denver, Colorado Houston, Texas Kansas City, Missouri Portland, Oregon #4288R THE MOVIE CHANNEL PROGRAMMING OVERVIEW December 1989 The only national 24-hour all-movie pay cable network, THE MOVIE CHANNEL (TMC) is a whole channel devoted to movies. From exclusive blockbusters to innovative film festivals, THE MOVIE CHANNEL brings the widest selection of the finest movies to subscribers' televisions and VCRs every day, providing a special blend of movies, unique movie-related programming, and on-air personalities not found on any other pay-cable network. Movies are all that matter on THE MOVIE CHANNEL, which, along with its sister service SHOWTIME, currently holds the exclusive national pay-cable rights to film product from The Cannon Group, Touchstone Films and Hollywood Pictures, the Weintraub Entertainment Group, Orion Pictures, Imagine Film Entertainment, Carolco Pictures Inc. , Castle Rock Entertainment, New Visions Pictures, White Eagle Pictures, Inc. and other independent studios. In 1983, SHOWTIME/THE MOVIE CHANNEL INC. set an industry precedent when it made the first major studio *100e exclusivity agreement with Paramount. Just a few of the exclusive titles currently under license include "Mississippi Burning", "The Untouchables", "Tough Guys Don't Dance", "Maid to Order", "Fresh Horses", "Heartbreak Hotel", "Throw Moneta From the Train." THE MOVIE CHANNEL provides a full scope of movie information and behind-the-scenes insights. And, with VCR overnightTM, TMC is the only channel consistently programmed for taping while you sleep. TMC Adjusts Schedule For Smarter Viewing THE MOVIE CHANNEL carefully schedules movies so that viewers will always know when to find the movies they want to watch. Weekdays are arranged by movie type: classics, dramas, action/adventures, or comedies. Subscribers wake up Mondays through Thursdays to The Breakfast Movie at 6:00 a.m.*, followed by the TMC Classic at 8:00 a.m. , The Big Movie at noon, and Action Attraction at 2:00 p.m. Afternoon viewing continues with Laffternoon Movie at 4:00 p.m. , then the TV Dinner Movie, and Prime Time films. THE MOVIE CHANNEL weekends are scheduled differently to accommodate the weekend lifestyle. 1633 8maduar -more- NewMrk..VY/00/9*All Times listed are ET/PT. 12121 708.1W) 10 Vnhrrsal 01r Plaza I nimrsal 61r.CA 9/608 1818► 505-7700 TMC OVERVIEW PAGE TWO THE MOVIE CHANNEL WEEKEND The cornerstone of the TMC format is the TMC Weekend Multiplex modeled after the now popular multiplex theaters, which play a selection of blockbuster movies, beginning on Fridays at 7:00 p.m. and continuing into the early morning hours on Monday. Weekends are the heaviest viewing periods on pay TV and the weekend multiplex provides more weekend viewing choices by presenting movies from a variety of categories. Anchoring the weekend is the "TMC Top Attraction," a premiere of the network's newest blockbuster. "TMC Top Attraction" is scheduled at three different times during the weekend giving subscribers several chances to see the week' s biggest hit. Now with more choice, the viewer can either watch "Top Attraction" late night Friday at 11 :00 p.m. , primetime Saturday at 9:00 p.m. or early evening Sunday at 7:00 p.m. In addition, the TMC weekend multiplex will be homebase for the following offerings: T.G.I.F. movies on Friday is at 7:00 p.m. ; Friday Night Action at 9:00 p.m. ; "Joe Bob Briggs Drive-In Theater" on Saturdays beginning at 11 :00 p.m. ; the Sunday Star Movie showcasing Hollywood' s finest talents at 9:00 p.m. ; and Critics Choice, a forum for critically acclaimed films Sunday at 11 :00 P.M. VCR OVERNIGHTTMTHE MOVIE CHANNEL'S INNOVATIVE FIRST THE MOVIE CHANNEL has developed the perfect VCR accessory, VCR OvernightTM, which airs seven nights-a-week with movies shown back-to-back with ut promotional material between them. On the weekends, VCR Overnight�M runs for six solid hours for convenient taping while sleeping. As the number of VCR households grows nationwide, this programming feature has become increasingly popular for time-shift taping of their favorite films, without having to constantly reset the VCR times. THE MOVIE CHANNEL IS INHABITED BY PEOPLE WHO LIVE AND BREATHE MOVIES Hollywood Reporter columnist Robert Osborne and Joe Bob Briggs, the drive-in movie maven, as well as stellar and unusual leading Hollywood figures serves as TMC movie festival hosts, enhancing each month with individual insights and commentaries on the movies. THE MOVIE CHANNEL hosts also include Ian Shoales, Jody Horowitz and Peter Jones. Among the leading men and women who have been TMC hosts are Jane Seymour, Charlton Heston, F. Murray Abraham, Judd Nelson, Sally Kellerman, Ron Howard, and Marlee Matlin, who hosted classic movies that THE MOVIE CHANNEL closed captioned especially for her. Robert Osborne, the renowned Hollywood gossip reporter and Academy Awards historian, brings to the screen a variety of on-location interviews with the top Hollywood stars as well as background and anecdotes about TMC' s premiere film selections. -more- TMC OVERVIEW PAGE THREE Joe Bob Briggs conducts his own Saturday festival appropriately titled Joe Bob's Drive-in TheatreTM at 11 :00 p.m. This self-styled reviewer judges films essentially by their lowest common denominator and then applies his own unique and personalized rating system. With his rapid-fire delivery, Ian Shoales presents two humorous commentaries each month offering his sardonic views of today' s movies and the people who make them. Entertainment personalities, Jody Horowitz and Peter Jones extend their own off-beat views and commentaries on the world of movies. THE MOVIE CHANNEL HAS A CORNUCOPIA OF MOVIE INFORMATION AND FEATURES DURING ITS INTERMISSIONS In keeping with TMC's stated objective of being all movies and about all movies, the breaks or intermissions contain news, reviews, and personalities and special features. The material is creative, up-to-the-minute fun, informative and adds real value to the service. This, makes it more convenient, more interesting and more exciting for people who love movies and the world surrounding movies. FAMOUS FILMMAKERS STAR IN "FIRSTWORKS" NEW SERIES FOR THE MOVIE CHANNEL THE MOVIE CHANNEL has teamed up with Transatlantic Enterprises to produce a new series, "FIRSTWORKS", a thirteen-part, half-hour series. Each episode consists of a segment from a famous filmmaker's first work, along with an interview with the artist. In addition, viewers will be introduced to an emerging young filmmaker and one of his or her projects. Some of the prominent filmmakers featured on "FIRSTWORKS" are Oliver Stone, Ron Howard, John Milius, Roger Corman and Taylor Hackford. Upcoming directors are Susan Seidelman, Spike Lee, Martin Scorsese and more! #0852R