Cable Franchising - Elements of a Renewal Franchise Document



In the aftermath of Federal legislation, cable system consolidations and the emergence of a some degree of consensus on issues like system design and architecture and customer service, the process of negotiating a franchise renewal document had become more focused. Much of the document had been more or less standardized leaving municipal franchising authorities a half dozen or so issues requiring local attention. In New York, the elements of a renewal franchise document can be delineated among those which state regulations require to be included, those which are negotiable between the parties and those which are not pertinent to a cable television franchise. (In the information set out below, references are given to the appropriate corresponding state regulation and Federal statute. Copies of these are available from the Department’s Office of Telecommunications Municipal Assistance Section.)

ELEMENTS REQUIRED BY STATE REGULATION

cf. PSC regulations Sec. 895.1(a) through (t) and Sec. 895.4(b)

a. “Recitations” attesting to the fact that:
    1. “Franchisee’s technical ability, financial condition and character were considered and approved in a full public proceeding affording due process”,
    2. “Franchisee’s plans for constructing and operating…were considered and found adequate and feasible in a full public proceeding affording due process”;
    3. “franchisee complies with the commission’s franchise standards; and
    4. The franchise is nonexclusive.

b. For an initial franchise, a full description of the system propose for construction.
c. Franchisee will construct and maintain it cable system using materials of good and durable quality and that all work involved will be performed in a safe and reliable manner. (See Sec. 896)
d. A provision stating that access to cable service will not be denied to any group of potential residential subscribers because of the income of the residents to the local area in which such group resides.
e. Rates and charges imposed by the franchisee for cable television service shall be subject to regulation in accordance with federal law.
f. A provision describing the channel capacity and facilities, equipment and support for public, educational and governmental (PEG) access which requirement may be fulfilled by Section 895.4.
g. Term (not more than 15 years).
h. Abandonment “or any service or portion thereof” not permitted without written consent.
I. Full indemnity and insurance specification.
j. Prompt repair or replacement of any damaged or destroyed municipal property with restoration to serviceable condition.
k. EEO standards.
l. Permission for municipality to adopt “additional regulations that it shall find necessary in the exercise of its “police power” provided such regulations not materially conflict with the franchise.
m. “Right to inspect”, with reasonable notice and during normal business hours”…pertinent books, records, maps, plans, financial statements and other like materials of the franchisee.”
n. Designation of municipal official responsible for “continuing administration of the franchise”.
o. Franchise fee.
p. Severability clause specifying material provisions.
q. Franchise is subject to approval of the PSC.
r. Application for PSC certification must be filed by franchisee within 60 days of award.
s. Transfer of franchise subject to municipal approval.
t. Reporting requirements may be satisfied with systemwide statistics.



ELEMENTS WHICH ARE NEGOTIABLE

cf. PSC Regulations 895.2(a), 895.5 and Federal Cable Act, Parts III and IV.

1. “Equipment and facilities” (including institutional networks and system extensions, but not mandated technology.)

2. Franchise fee. (May be specified by the franchising authority without negotiations and made a condition of renewal. See also the Department’s publication entitled “Issues in Cable Franchising: The Franchise Fee.”)

3. Public, educational and government (PEG) access facilities, support and management. (Municipality may designate a management entity other than the franchisee at any time).

4. Service to schools and public buildings.

5. Right-of-way management and safety.

6. Consumer protection. (May also be regulated by local law no inconsistent with rights granted in the franchise).

7. Accountability standards and procedures.

MATTERS NOT PERTINENT TO A CABLE FRANCHISE

These subject areas have been preempted from local franchising authority consideration by Federal law, and, therefore, cannot be addressed in nor enforced by a franchise document.

1. Requirement for “video programming” (other than for “broad categories”) and “other information services.”

2. Rates (Separate methodology mandates; see Section 623 of the Federal Cable Act.)

3. Specifics of technologies employed.

4. Matters not pertaining to “cable service” (such as telephone service).