Cable Franchising - Filing For A Certificate Of Confirmation



Section 221 of the New York State Public Service Law states that "no person shall exercise a franchise, and no such franchise shall be effective, until the commission has confirmed such franchise." Therefore, any company seeking to exercise a franchise for cable television service in this state must file an application for a certificate of confirmation after obtaining a franchise from a municipality.

The certificate of confirmation affirms that the applicant, the cable television system and the proposed franchise conforms to the standards established in Public Service Commission regulations and that operation of the cable television system as described in the franchise will not be in violation of any law, regulation or standard promulgated by the Commission.

Although at one time issued as a formal Commission Order, from May 2000 the certificate is conveyed in the form of a letter from the Secretary of the Commission setting out the conditions (if any) placed by the Commission on its approval of the certificate. A formal order is no longer issued or necessary.

REQUIRED CONTENTS OF AN APPLICATION

Clearly, it is in the best interests of both parties to a franchise to have early and timely approval of a certificate of confirmation. Unfortunately, delays in the process occur when, upon review by Commission staff, one of more parts of an application for a certificate of confirmation are found to be missing. In order for an application to be complete, and therefore eligible for the consideration of the Commission, the following elements must be on file with the Secretary:
    1. A transmittal letter requesting commission approval of a certificate of confirmation pursuant to section 221 of the Public Service Law.
    2. A fully completed and properly signed and dated "Application for Renewal of Franchise or Certificate of Confirmation", commonly referred to as Form R-2.
    3. A full and complete copy of the franchisee’s most recent annual test data compiled pursuant to section 897 of Commission rules for the cable system serving the municipality for which the application is being filed.
    4. A copy of the public hearing notice filed by the clerk of the municipality, along with an affidavit of publication from the official newspaper of the municipality in which the notice was published showing the dates on which the notice appeared in the newspaper.
    5. A duly certified copy (by seal or other legal certification of the clerk of the municipality) of the resolution voted by the municipality’s governing body granting the franchise.
    6. A full, complete and properly signed, dated and executed copy of the entire franchise agreement, including any appendices or other material constituting the Agreement.
    7. A copy of the public notice filed by the applicant for the certificate of confirmation, along with an affidavit of publication from the official newspaper of the municipality in which the notice was published showing the dates on which the notice appeared in the newspaper.

Commission procedures require that an original and four complete copies of the application must be filed with the Secretary.

COMMON PROBLEMS AND CAUTIONS

Apart from an incomplete application, there are a few other factors that, if missing or improperly accomplished, can cause a delay in processing at the Commission. Careful attention to the following matters also will ensure early and timely consideration of an application for certificate of confirmation.
    1. Ensure that the applicant’s name and address used in all elements of the application is the applicant’s proper legal name and address at the time the application is completed. Applications are often filed in stages and, over time, either or both of these items may change. It is the sole responsibility of the applicant to ensure the accuracy of this information. Applicants are advised to file amended elements or applications if necessary.
    2. Ensure that all required signatures in each element of the application have been secured and are properly dated and notarized or attested.
    3. Ensure that the public hearing notice published by the municipal government contains all the information and statements required by section 897 of the Commission’s rules which states that such notices "shall conform to all applicable State and local laws and shall indicate that copies of the renewal application are available for public inspection during normal business hours at the office of the clerk of the municipality, whose address shall be stated in the notice."
    4. The applicant should satisfy itself that the conduct of the public hearing was proper. Section 897 states, "All persons shall be given full opportunity to participate in the hearing and to ask questions of the applicant or any other participant in the hearing".
    5. Ensure that the application for certificate of confirmation is timely filed--that is, within 60 days of the adoption of the municipal resolution approving the franchise.
    6. Ensure that the clerk of the municipality to which the application pertains is served by the applicant with a copy of the application and that proof of such service is filed with the Commission by the applicant.
    7. Ensure that the public notice of application for certificate of confirmation is timely filed (within ten days of the last publication date) and is in proper form. Section 897 requires that the notice be published "at least twice in a newspaper of general circulation in the municipality...to which the application relates." Furthermore, "the notice shall indicate that copies of the materials constituting the application are available for public inspection at the offices of the commission and those of the clerk" of the municipality to which the application pertains "during normal business hours and that comments with respect to the application may be filed with the commission."
All applications for certificate of confirmation should be addressed to:
Office of the Secretary
NYS Department of Public Service
3 Empire State Plaza
Albany, NY 12223

Applicants may obtain assistance in properly completing the application process by telephoning the Cable Municipal Assistance section at (518) 474-2213.