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HomeMy WebLinkAbout2015-10-20 Board of Selectmen HandoutDRAFT MOTIONS BOARD OF SELECTMEN MEETING OCTOBER 20, 2015 Ensmin¢er, Halsey, Sexton, Arena, Berman LeLacheur 5b) Move to close the hearing for the early opening for Tread LLC at 6 Linden Street. Move that the Board of Selectmen approve a license to operate a retail business between the hours of midnight and 6:00 am pursuant to Section 7.1 of the Reading General Bylaw and further pursuant to section 3.9 of the Board of Selectmen policies to Tread, LLC, 6 Linden Street, subject to the following conditions: 1. This license is for approval, pursuant to the Board of Selectmen regulation 3.9, to open for business not earlier that 5:00 am on Monday through Friday, and not earlier than 6:00 am on Saturday, Sunday, and holidays. 2. This approval expires at midnight, December 31, 2015; 3. All signs shall conform to the Zoning Bylaws of the Town of Reading; In granting this license the Board finds that in accordance with Section 5.10.4 of the General Bylaws: • It is in the interest of the public health, safety and welfare, or that public necessity or convenience will be served by permitting such operation; and • There is no detrimental effect of such operation on the Town or the immediately abutting neighbors. Move that the Board of Selectmen adjourn the meeting at p.m. October 19, 2015 Town of Reading 16 Lowell Street Reading, MA 01867 -2683 Mr. Daniel Ensminger, Chairman Board of Selectman Reading Town Hall 16 Lowell Street Reading MA 01867 Dear Mr. Chairman, Kevin Bohmiller VETERANS' SERVICES OFFICER Phone: (781) 942 -6652 Fax: (781) 942 -9071 It seems like yesterday that I arrived in Reading and began planning our Memorial Day services. Since then I have met and interacted with so many wonderful people m town. I have thoroughly enjoyed my first 5 months as the Veterans Services Officer. I would like to invite you and the entire Board of Selectmen to the Town of Reading's Veterans Day ceremonies. This year's ceremonies will be on Wednesday, November 11 beginning with breakfast for Veterans, families and friends from 9:00 -10:30 AM at the Pleasant Street Senior Center. We will then proceed to the Town Common for our services at 11:00. I would like to invite a member of the Board of Selectmen to speak during the ceremony on the Common. I hope you will all be able to join us and help make this Veterans Day a special day., Thank you, as always, for your support of all Veterans and their families. Please do not hesitate to contact me if you have any questions or if I can be of any assistance. Sincerely, Kevin Bohmiller Veterans' Services Officer "To Care For Him Who Shall Have Borne The BalNe... "Abraham Lincoln a LEGAL NOTICE TOWN OF READING To the Inhabitants of the Town of Reading: Please take notice that the Board of Selectmen of the Town of Reading will hold a public hearing on October 20, 2015 at 8:00 p.m. in the Selectmen's Meeting Room, 16 Lowell Street, Reading, Massachusetts on: Request .for early opening at 5:00 am. for Tread LLC, 6 Linden Street A copy of the proposed document regarding this topic is available in the Town Manager's office, 16 Lowell Street, Reading, MA, M -W- Thurs from 7:30 a.m.- 5:30 p.m., Tdes from 7130 a.m. - 7:00 p.m. and is attached to the hearing notice on the website at www.madingma.gov All interested parties are invited to attend the hearing, or may submit their com- ments in writing or by email prior to 6:00 p.m. on October 20, 2015 to- URI By order of Robert W. LeLA"ur TWn MI 5b1 October 15th, 2015 Dear Board of Selectman, Thank you for your time and consideration. We wanted to give you an overview of what has been happening at Tread, LLC since our meeting on September 15th. Business Need for Early Ooenine Early morning classes are the peak time for gyms, particularly small studios. To date we have had more than 300 requests for early morning classes. Since the Board gave a temporary approval for 5:00am opening we have sold out most of the 5:15am classes. Situation It is important to have strong relationships with our neighbors and community. We made significant upfront investment in our sound proofing and continue to work very closely with our abutting neighbors to adjust the system and minimize any external sounds. General Sound Controls Sound proofing of cycle room: • Drop ceiling with double sound proofing comprised of a sound gap between dry wall layers and specialized mineral insulation • Customized window coverings with mineral insulation as well as covered with wood • 6 -inch cinder block walls. • Cushioned Floor mats wall to wall • Adjusted subwoofer by sound engineer to lowest setting • Subwoofer is surrounded by extra cushion and mat • Adjusted speaker system to speech settings to minimize lower frequency • Remixed microphones to fix instructors sound • Purchased two new mixers and microphones to enhance sound quality • Work closely with closest neighbor at 10 Linden street for the songs /times she can hear so we can identify and remove from playlists • Raised subwoofer to reduce sound travel through the ground • Had multiple sound engineers remix and change settings to reduce the feedback, mitigate bass, change mic settings and other modifications. Morning specific rules that have been implemented: • Limited class options to quieter classes (e.g. no kick boxing) • Only have lower volume instructors in the 5:15am classes • No mic being used for specific classes 11 Feedback from abutting neighbors • We will add appendix this week with signed letters from closest neighbors • Positive feedback from all neighbors directly surround our business and support early morning opening • Difficult to reach tenants in 12 Linden Street Communication with 12 Linden Street • Reached out multiple times to get feedback from the tenants in 12 Linden Street o Upon leaving last meeting on September 15th we gave our mobile numbers and asked for direct feedback whenever there was bothersome sound o Rang bell / stopped by 3 times the week of October 4th o Dropped letter in mailbox on October 10th with business card o Rang bell / stopped by morning of October 12th o Rang bell / stopped by evening of October 12th • Rang bell / stopped by morning of October 130i- left another copy of the note with request to call Tiffany's cell • Rang bell / stopped by evening of October 13th • Evening of October 13th was able to connect when Tenant was leaving and spoke for 5 minutes • Tenant prefers to communicate via email to Board of Selectmen • This poses some challenges since the issue is not audible to the ear from outside the house • Open feedback allows us to modify settings if the sound is travelling different in their building • The feedback from the 5 minute conversation on October 13th o "The noise is much better but not perfect. However, Tread is no longer the loudest in the neighborhood." o "I do not hear a peep in the morning from the music." o "I have some ideas on ways to fix the sound during the day that I write in the letter to the Selectmen." • As of October 15th we have not been copied on any written communication to the Board of Selectman We are enjoying partnering with our community and feel we have taken the right steps and worked very hard to make sure we are conscientious of our neighbors. It seems from all parties that we have taken the right steps and are not disturbing ANY of the abutters in the morning. We kindly ask that you continue to extend our morning hours to start at Sam through next year. We will continue to follow the morning rules we set out that seem to work for all the neighbors. Sincerely, Tiffany Freitas & Lori Haverty I am the closest neighbor of Tread, LLC with my window about 5 feet from Tread's studio. I wanted to express my interest in the noise complaint as well as the early morning class offerings. When Tread first opened I could hear the music as well as the instructors voices from the microphones in my home. Since working with Tiffany & Lori the volume of the music has been significantly lowered as well as the volume of the mic so we rarely hear the sound Inside. It has been a pleasure working with both Tiffany & Lori. Upon the initial issue, they came over Immediately to the house and brought overtwo separate sound engineers. They have respected our concerns and done everything that they could to fix any noise problems. We have come up with a system that on the rare occasions that I hear a song during the day and 1 text them Immediately and they remove the song from their piaylists. Since they have started 5:15am classes I have not heard any noise in the mornings at all. Continuing to have an early opening will not disturb my family. Thank you, Amanda Mori (" `-M1 lei 1,5- 9) Dear the Board of Selectman, We are writing on behalf of Tread, LLC. We have had no problem with sound of any kind. They have been nothing but enjoyable. The owners Lori Haverty & Tiffany Freitas are very respectful of their noise control. Even though it is not an issue, they continue to ask my staff if they are disturbing us regularly. They have been great neighbors to have and we hope to see them succeed In their new endeavor. Please feel free to contact us at anytime regarding Tread, I.I.C. We are one of many that support them and what they are doing in Reading. Sincerely, Dohe i e amity Funeral Home 11 Linde Street, Reading MA 781 -944 -1589 Dear the Board of Selectman, We as a business wanted to write a letter regarding Tread, LLC continuing their early morning classes. We wanted to start with the energy and excitement that Tread has brought to our comer, we enjoy their smiling faces and community based atmosphere. The outstanding rehab of the old Betty s building, while keeping the old and sentimental feel We think that Lori Haverty & Tiffany Freitas have gone above and beyond what any other business owner would of done in that space. We watched the building go from drab to a stunning home for so many. Watching these girls and their team make so many happy and healthy has been a pure joy. We at no time have ever been disturbed by noise, music or car doors. We drive by Tread, LLC multiple times a day and never feel as though they are bothersome to us or our business. As you are aware Hodson Oil is directly next door, we have no abutters or greenery to block sound. We absolutely hear no sound coming from their space. We hope that you continue to allow these hard working business owners to do good in this town and be apart of this community as they have planned. Thank you for your time and consideration. S.M. Hodson Oil, Reading MA 26 Brande Court Reading, MA 01867 C�t Pr� 10/15/15 To whom It may concern, I have lived in Reading for the past 25+ years. I am a current resident at the 30 Haven St apartment complex, located next to Tread Fitness Center. My apartment faces the back parking lot, adjacent to Tread. I am a member of Tread but I wanted to give my opinion on the noise level as a resident that lives within feet of the studio. l have to say when Tread first started doing classes you could hear, very slightly, the instructor during the classes from outside on my balcony but as of today you can no longer hear the instructoror the music at all. It's very quiet in my opinion. I am a mother of two young children under 3 so noise is a big concern with me especially during bedtime or naptime. For Tread to be able to offer classes at 5:15am is key for me because I start work at 7am and early morning is the only time I can fit Into my schedule. I can tell you the classes are packed so I am sure I am not the only one who feels this way either. I am so happy with all the new local businesses Reading has to offer and plan to stay in the town for many years to come. Thank you for your time, q14 4�wlo. -r Nicole Martin 30 Haven St. Apt 4008 781 -983 -7735 Nmartin1560yahoo.com OF Tennessee Gas Pipeline Company, L.L.C. a Kinder Morgan company COMMUNITY FORUMS Tennessee Gas Pipeline Company, L.L.C. (TGP), is planning three informal community forums. The community forums will be held to provide interested residents an opportunity to learn more about TGP's planned Northeast Energy Direct Project (NED). In order to meet growing market demand for natural gas in Massachusetts and New England, Kinder Morgan is proposing the NED Project to expand and upgrade its existing pipeline system in Pennsylvania, New York, Massachusetts, New Hampshire and Connecticut. The project involves the construction of approximately 64 miles of new pipeline in Massachusetts, generally co- located with existing utility corridors, and modifications to existing and construction of new compressor stations and meter stations. The target in- service date for the project is November 2018. For more information visit www.northeastenergyfuture.com COMMUNITY FORUM DATES& LOCATIONS All open houses are from 6p.m. -8p.m. Light buffet will be served. According to the Department of Telecommunications and Cable's (Department) records, your cable television license (license) with Comcast Cable Communications, hrc. expires on 11/23/2018. Federal law provides for a formal renewal process that begins between 36 and 30 months before a license expires. As the Issuing Authority, you may begin the process of determining your community's cable - related needs and to review Comcast Cable Communications, h1c.'s performance under the current license. This is known as the "ascertainment process." You must notify Comcast Cable Communications, Inc. if you elect to begin the ascertainment process. You may also be required to begin the ascertainment process if you receive a notice from Comcast Cable Communications, Inc. invoking the formal renewal process. In that instance, you must begin the ascertainment within six months of receiving such notice. You may want to form a cable advisory committee (CAC) as part of the formal renewal process and delegate to it certain duties. If you form a CAC, please provide the Department with the name and contact information for at least one CAC member. I have enclosed a fact sheet describing the typical responsibilities of a CAC, and please see M.G.L. c. 268A concerning potential conflicts of interest for both municipal officials and CAC members. For your convenience, the Department has prepared a "Practical Guide to Cable Television License Renewal" that is available at www.mass.gov /dtc. The Department is also available to advise you regarding your duties and rights during the renewal process. While we may not assist you with substantive negotiations, we would be happy to meet with you and/or your CAC to discuss procedural requirements. If you would like to schedule a meeting or if you have any questions regarding the renewal process, please contact the Department at 617- 305 -3580 or dtc.efiling @state.ma.us. S, cerel Sara J. C1aTk 36 monN COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF TELECOMMUNICATIONS AND CABLE 1000 Washington Street, Suite 820 Boston, MA 02118 -6500 Telephone: (617) 305 -3580 CHARLES D. BAKER JAYASH GOVERNOR SECRETARY OF HOUSING AND ECONOMIC DEVELOPMENT KARYN E. POLITO JOHN C. CHAPMAN LIEUTENANTGOVERNOR UNDERSECRETARY OFFICE OF CONSUMER AFFAIRS AND BUSINESS REGULATIONS KAREN CHARLES PETERSON COMMISSIONER October 10, 2015 Chairman Board of Selectmen Town Hall 16 Lowell Street Reading MA 01867 Re: License Expiration Notice Dear Chairman: According to the Department of Telecommunications and Cable's (Department) records, your cable television license (license) with Comcast Cable Communications, hrc. expires on 11/23/2018. Federal law provides for a formal renewal process that begins between 36 and 30 months before a license expires. As the Issuing Authority, you may begin the process of determining your community's cable - related needs and to review Comcast Cable Communications, h1c.'s performance under the current license. This is known as the "ascertainment process." You must notify Comcast Cable Communications, Inc. if you elect to begin the ascertainment process. You may also be required to begin the ascertainment process if you receive a notice from Comcast Cable Communications, Inc. invoking the formal renewal process. In that instance, you must begin the ascertainment within six months of receiving such notice. You may want to form a cable advisory committee (CAC) as part of the formal renewal process and delegate to it certain duties. If you form a CAC, please provide the Department with the name and contact information for at least one CAC member. I have enclosed a fact sheet describing the typical responsibilities of a CAC, and please see M.G.L. c. 268A concerning potential conflicts of interest for both municipal officials and CAC members. For your convenience, the Department has prepared a "Practical Guide to Cable Television License Renewal" that is available at www.mass.gov /dtc. The Department is also available to advise you regarding your duties and rights during the renewal process. While we may not assist you with substantive negotiations, we would be happy to meet with you and/or your CAC to discuss procedural requirements. If you would like to schedule a meeting or if you have any questions regarding the renewal process, please contact the Department at 617- 305 -3580 or dtc.efiling @state.ma.us. S, cerel Sara J. C1aTk 36 monN COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF TELECOMMUNICATIONS AND CABLE Cable Advisory Committee Under Massachusetts regulations, an Issuing Authority ( "IA "), such as the mayor of a city or the board of selectmen of a town, may appoint a Cable Advisory Committee ( "CAC') to advise the IA throughout the licensing process. 207 C.M.R. § 3.01(3). In many instances, the CAC remains as an active committee throughout the term of the license. Currently, there are over 280 CACs in the Commonwealth. The composition of the CAC is determined by the IA, including the number of members on the CAC. The IA may, at its discretion, define the role and responsibilities of the CAC to the extent permitted under G.L. c. 166A. Thus, there is almost complete local control as to the tasks assigned to an advisory committee, so long as these tasks do not conflict with the statutory requirements of the IA in G.L. c. 166A. While an IA may delegate to a CAC the authority to negotiate a license agreement, an IA may not delegate authority to execute such an agreement. CAC responsibilities vary according to the current status of the license or the objectives of the IA. The following list includes some typical responsibilities assigned to CACs in the Commonwealth: • Inform and educate the public about cable television service; • Assess the cable needs of the community and recommend policy changes; • Conduct regular meetings with cable company representatives to discuss matters of mutual interest; • Report to the IA on company compliance with the license; • Supervise the cable operator's response to complaints; • Respond to citizen's questions regarding the cable television system; and • Keep abreast of community programming issues. CACs are considered "governmental bodies" within the purview of the Massachusetts Conflict of Interest law, G.L. c. 268A. Recognizing that CACs fulfill an important and valuable link between the IA, the licensee, and the citizens of the community, the Department of Telecommunications and Cable ( "Department") seeks to build positive professional relationships with the CACs. The Department's staff works closely with local committees to educate them on the licensing process and improve information- sharing. The Department's program includes an informational presentation available to communities. Please contact the Department to schedule a presentation or to discuss any cable licensing matter. lv Updated January 2015 CABLE TELEVISION LICENSE RENEWAL PROCESS A PRACTICAL GUIDE Updated March 2015 Prepared by the Massachusetts Department of Telecommunications and Cable 1000 Washington Street, Suite 820 Boston, MA 02118 -6500 617 -305 -3580 www.mass.gov /dtc J3 ) INTRODUCTION This Practical Guide is presented by the Massachusetts Department of Telecommunications and Cable C'Department ") in our supervisory role with respect to cable television licensing. Under both federal and Massachusetts law, no cable operator may construct and/or operate a cable television system in a community without first obtaining a license. In Massachusetts, the city manager, mayor or board of selectmen is responsible for issuing a license and, hence, is designated as the Issuing Authority. Since Massachusetts law limits the term of a license, Issuing Authorities must periodically review and renew licenses. The Department oversees the licensing renewal process, which has been established under federal law, and supplemented by our regulations. By establishing a formal renewal process, Congress sought to protect a municipality's right to a cable system that is responsive to the needs and interests of the local community. Congress also sought to protect cable operators, which have invested in infrastructure in a community, from an unfair denial of a renewal license. The Department's goal in developing this Practical Guide is to ensure that both municipalities and cable operators are aware of their rights and responsibilities as they contemplate license renewal and to guide them through the process. In this Practical Guide, the Department first presents an overview of the role of government in cable television licensing. We describe each level of regulatory oversight with a focus on the resources available to Issuing Authorities. Next, the Department outlines the formal renewal process, highlighting the rights and responsibilities of each party under that process. Lastly, we discuss an alternative method by which parties may negotiate informally to reach an agreement. Since there we no procedural protections in informal negotiations, we recommend that this method be used only where there are no contested issues between the parties. The guidance we provide herein offers both Issuing Authorities and cable operators direction on the most prudent manner in which to proceed under the rules established by Congress so that each party's rights and interests are protected. The information in this Practical Guide is necessarily general in nature. The Practical Guide is not a substitute for particularized advice from an attorney. In addition, federal and Massachusetts laws and regulations are subject to change. Therefore, persons should refer to the current Massachusetts General Laws, the Code of Massachusetts Regulations, the federal Communications Act of 1934, as amended, or the appropriate federal rules and regulations, or they may consult the Department with case - specific questions. 10 THE ROLE OF GOVERNMENT Licenses to construct and/or operate cable television systems are granted by the "Issuing Authority" of a city or town. Pursuant to section I of chapter 166A of the Massachusetts General Laws, the Issuing Authority is the mayor of a city, the board of selectmen of a town, or the city manager of a city with a plan D or E charter. The Issuing Authority decides initially whether to go forward with the licensing process, recommends services and terms to be included in the license, and decides whether to grant a license. Upon license renewal, the Issuing Authority reviews the performance of the cable operator, determines the services and terms to be included in the renewal license, and decides whether to grant a renewal license. The Issuing Authority takes these actions within the framework provided by federal and state law. Congress has enacted a series of laws that establish many of the substantive and procedural requirements governing cable television licensing. For example, federal law requires that each operator obtain a license to service a particular area, and that the license be non-exclusive. Federal law also specifically addresses local access programming and franchise fees. Further, federal law establishes the process by which licenses are granted and renewed. The Federal Communications Commission C FCC'j is charged with ensuring that cable operators and licensing authorities comply with federal law. In addition to federal oversight regulation, many states have enacted laws regarding cable television regulation. In Massachusetts, the Department oversees cable television licensing and ensures that municipalities and cable operators comply with both federal and state law, particularly where state law is more restrictive than federal law. For example, state law limits the term of a license to 15 years for an initial license and ten years for a renewal license. The Department also acts as an appellate body, as a cable operator may appeal to the Department for review of an Issuing Authority decision. Since it is the Department's enabling legislation and regulations promulgated thereunder that establish the regulatory framework for Issuing Authorities to follow, the Competition Division has created the position of Municipal Liaison to bridge these two bodies. The Municipal Liaison's chief function is to assist municipal officials as they work through the licensing process. The Municipal Liaison will meet with local governments to explain the statutory and regulatory requirements. The Department maintains, as public records available for inspection, a copy of each license granted in Massachusetts. In addition, we maintain, on our website, an electronic library of many of the licenses executed in Massachusetts. By providing this assistance, the Department seeks to ensure that Issuing Authorities act in compliance with federal and state law to obtain a license that best serves the needs of the community. IS THE FORMAL RENEWAL PROCESS Under federal and Massachusetts law, cable operators may not provide cable television service without obtaining a license from the Issuing Authority. Congress anticipated that cable operators would seek renewal licenses in order to continue providing cable television service in areas where money has been invested in infrastructure. Congress also recognized that municipalities should review the performance of a cable operator and ensure that the operator continues to meet the community's needs and interests. Thus, Congress established a formal renewal process that considers each of these interests. By following the formal renewal process, Issuing Authorities protect their right to a cable television system that serves the needs and interests of the community and cable operators protect their investment from a unfair denial of a renewal license. An Issuing Authority or cable operator must explicitly invoke the protections of the formal renewal process. Generally, each party most notify the other that it intends to proceed under the formal process. The framework set forth by federal law provides a 36 -month period in which to conduct license renewal proccedings. This 36 -month period is often referred to as the "Renewal Window." The process consists of two phases: I) reviewing the cable operator's performance under the current license and ascertaining the needs and interests of the community ( "Ascertainment "); and 2) applying the results of the first phase to the review of the cable operator's proposal. The Department recommends that a municipality complete the first phase within 24 months. At most, the ascertainment phase should not extend longer than 30 months. This timeframe affords the municipality sufficient time to review and consider the cable operator's proposal and make a determination whether to grant renewal of the license before the current license expires. PHASE I - ASCERTAINMENT The formal renewal process must begin between 36 and 30 months prior to expiration of the license. The Issuing Authority may commence the formal renewal process on its own initiative and must inform the cable operator that it has done so. While there is no specific action that an Issuing Authority must take in order to demonstrate it has commenced the formal renewal process, the Issuing Authority should perform some tangible act to begin to ascertain the community's cable - related needs and interests. For example, the Issuing Authority could begin to survey the community or hold a public hearing. Most often, the cable operator will request, in writing, that the Issuing Authority commence the renewal process. The cable operator will make this request between 36 and 30 months prior to the expiration of the license. If the cable operator requests that the Issuing Authority commence the renewal process, the Issuing Authority most begin ascertaining the community's cable - related needs and interests within six months of receiving the cable operator's request. In either case, the letter requesting commencement of the formal license renewal process or advising that a community has commenced the formal renewal process is called a "Renewal Letter." The Renewal Letter is often referred to as the "626 letter" (626 refers to the section of the federal Communications Act that sets forth the franchise renewal process). The protections of the formal renewal process must be invoked in a timely manner, that is between 36 and 30 months prior to the expiration of the current license. If neither the Issuing Authority nor the cable operator requests commencement of the formal process within this period, the I %all opportunity to conduct the renewal license under the formal renewal process expires and neither party is able to claim the protections provided by federal law. ASCERTAINMENT Ascertainment is a series of actions taken by the Issuing-Authority by which the Issuing Authority reviews the cable operator's performance under the existing license and identifies the cable- related needs and interests of the community. Many Issuing Authorities find it helpful to appoint a committee to assist in gathering information about a cable operator's performance and the community's needs and interests. The size and make -up of the cable advisory committee (" CAC'j is determined by the Issuing Authority, and its members may include both residents and non - residents of the community. A CAC is considered a governmental body within the purview of the Massachusetts conflict of interest laws, at General Laws chapters 268A and 26813, and is subject to the guidelines contained therein. The Issuing Authority, in appointing a CAC, should define the CAC's role and duties. Under Massachusetts law, only the Issuing Authority may make the final licensing decision. However, this does not preclude the Issuing Authority from relying on the CAC's recommendations. An Issuing Authority and its CAC may choose a wide variety of methods to assess the cable operator's past performance and determine the future needs and interests of the community. An Issuing Authority may: • Hold a public hearing. While a public hearing is required after receipt of the cable operator's proposal as part of the Issuing Authority's deliberative process, some municipalities choose to hold additional hearings during the ascertainment phase to solicit input from the community with respect to the cable operator's performance as well as the future needs and interests of the community; • Conduct a municipality-wide survey; • Meet with community organizations such as schools, senior citizen centers, and police and fire services to determine their proposed needs; • Review the current license held by the cable operator in the municipality to determine, for example, which terms and conditions have been particularly beneficial to the community; • Review the cable operator's financial fors (CTV Forms 200 and 400); • Review consumer complaint records, including CTV For 500 and municipal records; • Obtain and review a map of the service area (often referred to as a street or strand map) to determine, in part, whether there are unserved parts of the community; • Tour the cable operator's technical facilities (i.e., headend) and PEG access studio; and • Review licenses granted by other communities in Massachusetts (many have been filed electronically and are available at the Department's web page). 00 There is no law or regulation that explicitly establishes a deadline by which an Issuing Authority must complete ascertainment The Department has interpreted federal law as requiring Issuing Authorities to complete ascertainment no later than six months prior to the current license expiration date. The better practice, however, is to ensure that ascertainment is complete 12 months prior to license expiration in order to maximize the amount of time an Issuing Authority has to review a cable operator's proposal. Under federal law, a cable operator may not submit a formal renewal proposal until the Issuing Authority has completed ascertainment. This timeline allows a cable operator to respond to the results of the ascertainment studies in preparing its proposal. Upon receipt of the proposal, an Issuing Authority has only four months, or until the expiration of the current license, whichever occurs first, to make a determination on the proposal. Prolonging completion of the ascertainment thus reduces the amount of time during which an Issuing Authority may review and deliberate on a cable operator's proposal. Under Massachusetts regulations, the Issuing Authority must notify the cable operator in writing upon completion of ascertainment. In its written notification, the Issuing Authority must specifically state the date that ascertainment was complete. The Issuing Authority should provide its ascertainment results as a part of a Request for Proposals ("RFP "). Presenting the ascertainment results to the cable operator is critical in demonstrating the community's needs and without it, a proposal in response to an RFP may not accurately represent the community's needs. As part of the RFP, the Issuing Authority may provide the cable operator with a draft license in its RFP that contains terns and conditions consistent with the ascertainment results. The Issuing Authority should provide a reasonable deadline for the cable operator to respond to the RFP, that is, to submit what is known as the Formal Renewal Proposal. Generally, a period of at least 30 days is considered a reasonable response time. However, in establishing a deadline for responses, the Issuing Authority must be aware of the length of time remaining before the current license expires. PHASE II - REVIEW OF PROPOSAL After the Issuing Authority has completed ascertainment, the cable operator may (on its own initiative) or must (within the time frame established by the Issuing Authority in the RFP) submit its renewal proposal. The cable operator submits its proposal on the Department's Form 100 and often supplements it with additional information. Upon receipt of the proposal, the Issuing Authority must l) provide prompt public notice that the cable operator has submitted a renewal proposal; and 2) during the four -month period that begins upon the receipt of the proposal, renew the franchise or issue a preliminary assessment that the franchise should not be renewed; and 3) at the request of the cable operator or on its own, commence an administrative proceeding to consider whether: A) the cable operator has substantially complied with the material terms of the existing franchise and with applicable law; B) the quality of the cable operator's service, including signal quality, response to consumer complaints, and billing practices, but without regard to the mix or quality of cable services or other services provided over the cable system, has been reasonable in light of community needs; 0 C) the cable operator has the legal, financial, and technical ability to provide the services, facilities, and equipment as set forth in the cable operator's proposal; and D) the cable operator's proposal is reasonable to meet the future cable - related community needs and interests, taking into account the cost of meeting such needs and interests. If the Issuing Authority determines, upon initial review of the proposal, that it will accept the cable operator's proposal and grant the license, there is no need to commence an administrative proceeding. Nonetheless, under the Department's regulations, the Issuing Authority must conduct a public hearing to allow the public an opportunity to comment on the cable operator's proposal. The administrative proceeding is an evidence gathering proceeding that must be conducted so as to afford both the Issuing Authority and cable operator due process, including the right to introduce evidence, question witnesses, and require the production of evidence. If the Issuing Authority bases the preliminary denial of the renewal proposal on criteria (A) or (B), the Issuing Authority must provide the cable operator with notice of non - compliance and an opportunity to cure. At the conclusion of the administrative proceeding, the Issuing Authority must issue a written decision granting or denying the cable operator's proposal for renewal. If the Issuing Authority determines that the cable operator satisfies each of the four criteria, and decides to grant a renewal license to the cable operator, the Issuing Authority must issue a public, written statement detailing the reasons for the grant of the renewal. The Issuing Authority must file a copy of the issuing statement, renewal license, and license application (Form 100) with the Department within seven days of granting the license. In addition, the Department requests that the Issuing Authority also submit the license in electronic format. DENYING A RENEWAL LICENSE If the Issuing Authority determines that the cable operator has failed to satisfy one or more of the criteria, and has not cured any claimed non - compliance, the Issuing Authority must issue a written statement detailing the reasons for its denial within 14 days of the decision to deny. The written decision must include the basis for the denial, that is, identify which of the four criteria the cable operator did not satisfy. The Issuing Authority must file a copy of this statement along with the renewal proposal (Form 100) with the Department. APPEAL OF ISSUING AUTHORITY DECISION A cable operator who is aggrieved by a decision of an Issuing Authority to deny a renewal license may appeal to the Department for review of that decision. Any such appeal must be filed within 30 days of the date of the Issuing Authority decision. 0jq INFORMAL NEGOTIATIONS While Congress established the formal renewal process, Congress also determined that where Issuing Authorities and cable operators are able to negotiate an agreement outside of the formal renewal process, they should be allowed to do so in a manner that best fits the parties' needs. That is, where a municipality has a good working relationship with a cable operator and there are no compliance issues, the parties are not required to follow the formal process. Rather, the parties may negotiate an agreement informally. Since there are no procedural safeguards in informal negotiations, this method should be used only where there are no contested issues between the parties. When negotiating informally, a cable operator may submit a proposal for the renewal of a license at any time, and the Issuing Authority may, after affording the public adequate notice and an opportunity to be heard, grant or deny such a proposal. By negotiating informally, parties avoid the time requirements of the formal process. For example, Issuing Authorities are not obligated to review a cable operator's proposal within 120 days, as required under the formal process. However, even with informal negotiations, state law requires that the Issuing Authority hold a public hearing on the cable operator's proposal. There is no regulatory requirement that an Issuing Authority conduct ascertainment if it chooses to negotiate with a cable operator rather than follow the formal process. Nevertheless, the Issuing Authority's negotiating position can only be enhanced if it has ascertamment results to substantiate its requests. It is highly recommended that an Issuing Authority conduct some form of ascertainment prior to entering into negotiations with a cable operator. In practice, cable operators in Massachusetts will often request an Issuing Authority to commence the formal renewal process, but simultaneously request that the parties negotiate informally. Thus, the parties actually enter into informal negotiations while conducting the formal renewal process. While this is acceptable, there are two potential areas where confusion may result: 1) The Nature of the Proposal - Formal Proposal versus Informal Proposal There is a distinction between a proposal submitted for discussion purposes and one that it submitted as a formal renewal proposal, namely, the submission of the formal renewal proposal triggers the 120-day review period. In order to avoid any confusion or violation of process, an Issuing Authority negotiating informally should ensure that the cable operator identify any informal proposal submitted as "Informal" or "For Informational Purposes Only." 2) "Reservation of Rights" As indicated above, often a cable operator will request that the parties negotiate informally, while "reserving its rights" under the formal renewal process. In essence, the cable operator protects itself from an unfair license denial, but is relieved of following the strict time requirements the formal process. The Issuing Authority is similarly relieved of the strict requirements of the formal process, including the requirement to conduct ascertainment. However, it is unlikely that a decision to deny a license will stand without appropriate ascertainment to support it. Thus, it is recommended that an Issuing Authority conduct ascertainment even when negotiating informally. Moreover, if informal negotiations do not result in a renewal license, the cable operator may revert back to the formal process, and submit a formal renewal proposal for the Issuing Authority's consideration. The review is limited to 120 days under federal law. Therefore, in order to ensure that sufficient time exists V FEW for the Issuing Authority to review a forrnal proposal, the Department recommends that an Issuing Authority complete ascertainment 12 months prior to the license expiration date, but absolutely no later than six months prior to the license expiration date. Informal negotiations may be a productive and efficient means for many Issuing Authorities and cable operators to reach mutually agreeable license terms, particularly where the parties have developed a solid professional relationship. However, where a party which has agreed to proceed informally has "reserved its rights" under the formal renewal process, both parties should proceed with the understanding that the requirements of the formal process may become applicable. REFERENCES RELEVANT LAWS AND REGULATIONS Massachusetts General Laws, Chapter 166A Code of Massachusetts Regulations, 207 C.M.R. §§ 3.00 -10.00 United States Code, 47 U.S.C. § 546 ADDITIONAL RESOURCES Information regarding cable television licensing may be found on the Department's website at . .macc on v/ ne ahr/ anvernmemt/ nra- aoeneies/ dte- In /enmmetition- division/cable -tv- division/municioal- info /. The Department's website also provides several licenses in electronic format that are available for download. A comprehensive glossary of cable - related terms is available on the Department's website at