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ORDINANCE NO. 8992
AN ORDINANCE GRANTING TO COMCAST OF
COLORADO IV, LLC A NONEXCLUSIVE FRANCHISE TO
CONSTRUCT, INSTALL, AND OPERATE A CABLE
SYSTEM AND PROVIDE CABLE TELEVISION SERVICE
WITHIN THE CITY AND IN CONNECTION THEREWITH, TO
MAKE REASONABLE AND LAWFUL USE OF THE
STREETS, PUBLIC EASEMENTS AND OTHER PUBLIC
PLACES WITHIN THE CITY
WHEREAS, pursuant to the provisions of 47 U.S.C. 546(h), Comcast of Colorado
IV, LLC, a Delaware limited liability company (hereinafter "Company") has submitted a
proposal for the renewal of a non-exclusive cable television franchise within the City of
Pueblo which is attached hereto styled "Franchise Agreement Between the City of Pueblo
and Comcast of Colorado IV, LLC" (hereinafter, "Franchise Agreement"); and
WHEREAS, the City Council finds and determines that the Franchise Agreement
is fair and reasonable and in the best interest of the residents of the City; NOW,
THEREFORE,
BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that:
SECTION 1.
The Franchise Agreement between the City of Pueblo and Company, a true copy
of which is attached hereto, having been approved as to form by the City Attorney, is
hereby approved by Council and a non-exclusive cable television franchise ("Franchise")
is hereby granted in accordance with the terms and conditions of the Franchise
Agreement, subject to Company’s unconditional written acceptance thereof.
SECTION 2.
The President of the City Council is hereby authorized and directed to execute the
Franchise Agreement by and on behalf of the City of Pueblo, and the City Clerk is directed
to affix the seal of the City thereto and to attest same.
SECTION 3.
This Ordinance shall take effect immediately upon final passage and approval;
provided, however, that neither the Franchise nor the Franchise Agreement shall become
effective until and unless Company timely files with the City Clerk its written unconditional
acceptance thereof in accordance with Section 1 of this Ordinance.
INTRODUCED: May 23, 2016
BY: Ed Brown
PASSED AND APPROVED: June 13, 2016
COMCAST OF COLORADO IV, LLC AND
CITY OF PUEBLO, COLORADO
CABLE FRANCHISE AGREEMENT
SECTION 1. DEFINITIONS AND EXHIBITS
(A) DEFINITIONS
For the purposes of this Franchise, 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 include the singular, and words in
the singular include the plural. Words not defined shall be given their common and ordinary
meaning. The word "shall" is always mandatory and not merely directory.
1.1 "Access" means the availability for noncommercial use by various agencies, institutions,
organizations, groups and individuals in the community, including the City and its designees, of
the Cable System to acquire,create,receive,and distribute video Cable Services and other services
and signals as permitted under Applicable Law including, but not limited to:
a. "Public Access"means Access where community-based,noncommercial organizations,
groups or individual members of the general public, on a nondiscriminatory basis, are the
primary users.
b. "Educational Access" means Access where schools are the primary users having
editorial control over programming and services. For purposes of this definition, "school"
means any State-accredited educational institution, public or private, including, for
example, primary and secondary schools, colleges and universities.
c. "Government Access"means Access where governmental institutions or their designees
are the primary users having editorial control over programming and services.
1.2 "Access Channel" means any Channel, or portion thereof, designated for Access purposes
or otherwise made available to facilitate or transmit Access programming or services.
1.3 "Activated" means the status of any capacity or part of the Cable System in which any
Cable Service requiring the use of that capacity or part is available without further installation of
system equipment, whether hardware or software.
1.4 "Affiliate," when used in connection with Grantee, means any Person who owns or
controls, is owned or controlled by, or is under common ownership or control with, Grantee.
1.5 "Applicable Law" means any statute, ordinance, judicial decision, executive order or
regulation having the force and effect of law that determines the legal standing of a case or issue.
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1.6 "Bad Debt"means amounts lawfully billed to a Subscriber and owed by the Subscriber for
Cable Service and accrued as revenues on the books of Grantee, but not collected after reasonable
efforts have been made by Grantee to collect the charges.
1.7 "Basic Service" is the level of programming service which includes, at a minimum, all
Broadcast Channels, all PEG Access Channels required in this Franchise, and any additional
Programming added by the Grantee, and is made available to all Cable Services Subscribers in the
Franchise Area.
1.8 "Broadcast Channel" means local commercial television stations, qualified low power
stations and qualified local noncommercial educational television stations, as referenced under 47
USC § 534 and 535.
1.9 "Broadcast Signal" means a television or radio signal transmitted over the air to a wide
geographic audience, and received by a Cable System by antenna, microwave, satellite dishes or
any other means.
1.10 "Cable Act"means the Title VI of the Communications Act of 1934, as amended.
1.11 "Cable Operator" means any Person or groups of Persons, including Grantee, who
provide(s) Cable Service over a Cable System and directly or through one or more affiliates owns
a significant interest in such Cable System or who otherwise control(s) or is(are) responsible for,
through any arrangement, the management and operation of such a Cable System.
1.12 "Cable Service"means the one-way transmission to Subscribers of video programming or
other programming service, and Subscriber interaction, if any, which is required for the selection
or use of such video programming or other programming service.
1.13 "Cable System" means any facility, including Grantee's, consisting of a set of closed
transmissions 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 Subscribers without using any Right-of-Way; (C) a facility of a common carrier which
is subject, in whole or in part, to the provisions of Title II of the federal Communications Act (47
U.S.C. 201 et seq.), except that such facility shall be considered a Cable System (other than for
purposes of Section 621(c)(47 U.S.C. 541(c))to the extent such facility is used in the transmission
of video programming directly to Subscribers, unless the extent of such use is solely to provide
interactive on-demand services; (D) an open video system that complies with federal statutes; or
(E) any facilities of any electric utility used solely for operating its electric utility systems.
1.14 "Channel"means a portion of the electromagnetic frequency spectrum which is used in the
Cable System and which is capable of delivering a television channel (as television channel is
defined by the FCC by regulation).
1.15 "City" is the City of Pueblo, Colorado, a body politic and corporate under the laws of the
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State of Colorado.
1.16 "City Council"means the Pueblo City Council, or its successor,the governing body of the
City of Pueblo, Colorado.
1.17 "Commercial Subscribers"means any Subscribers other than Residential Subscribers.
1.18 "Designated Access Provider" means the entity or entities designated now or in the future
by the City to manage or co-manage Access Channels and facilities. The City may be a Designated
Access Provider.
1.19 "Downstream" means carrying a transmission from the Headend to remote points on the
Cable System or to Interconnection points on the Cable System.
1.20 "Dwelling Unit" means any building, or portion thereof, that has independent living
facilities, including provisions for cooking, sanitation and sleeping, and that is designed for
residential occupancy. Buildings with more than one set of facilities for cooking shall be
considered Multiple Dwelling Units unless the additional facilities are clearly accessory.
1.21 "FCC" means the Federal Communications Commission.
1.22 "Fiber Optic"means a transmission medium of optical fiber cable,along with all associated
electronics and equipment, capable of carrying Cable Service by means of electric lightwave
impulses.
1.23 "Franchise" means the document in which this definition appears, i.e., the contractual
agreement, executed between the City and Grantee, containing the specific provisions of the
authorization granted, including references, specifications, requirements and other related matters.
1.24 "Franchise Area"means the area within the jurisdictional boundaries of the City, including
any areas annexed by the City during the term of this Franchise.
1.25 "Franchise Fee"means that fee payable to the City described in Section 3.1.
1.26 "Grantee" means Comcast of Colorado IV, LLC or its lawful successor, transferee or
assignee.
1.27 "Gross Revenues" means, and shall be construed broadly to include all revenues derived
directly or indirectly by Grantee and/or an Affiliated Entity that is the cable operator of the Cable
System, from the operation of Grantee's Cable System to provide Cable Services within the City.
Gross revenues include, by way of illustration and not limitation:
• monthly fees for Cable Services, regardless of whether such Cable Services are provided
to residential or commercial customers, including revenues derived from the provision of all
Cable Services (including but not limited to pay or premium Cable Services, digital Cable
Services, pay-per-view, pay-per-event and video-on-demand Cable Services);
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• installation, reconnection, downgrade, upgrade or similar charges associated with
changes in subscriber Cable Service levels;
• fees paid to Grantee for channels designated for commercial/leased access use and shall
be allocated on a pro rata basis using total Cable Service subscribers within the City;
• converter, remote control, and other Cable Service equipment rentals, leases, or sales;
• Advertising Revenues as defined herein;
• late fees, convenience fees and administrative fees which shall be allocated on a pro rata
basis using Cable Services revenue as a percentage of total subscriber revenues within the City;
• revenues from program guides;
• Franchise Fees;
• FCC Regulatory Fees; and,
• commissions from home shopping channels and other Cable Service revenue sharing
arrangements which shall be allocated on a pro rata basis using total Cable Service subscribers
within the City.
(A) "Advertising Revenues" shall mean revenues derived from sales of advertising
that are made available to Grantee's Cable System subscribers within the City and shall be
allocated on a pro rata basis using total Cable Service subscribers reached by the advertising.
Additionally, Grantee agrees that Gross Revenues subject to franchise fees shall include all
commissions, rep fees, Affiliated Entity fees, or rebates paid to National Cable Communications
("NCC") and Comcast Spotlight("Spotlight")or their successors associated with sales of
advertising on the Cable System within the City allocated according to this paragraph using total
Cable Service subscribers reached by the advertising.
(B) "Gross Revenues" shall not include:
• actual bad debt write-offs, except any portion which is subsequently collected
which shall be allocated on a pro rata basis using Cable Services revenue as a percentage of total
subscriber revenues within the City;
• any taxes and/or fees on services furnished by Grantee imposed by any
municipality, state or other governmental unit, provided that Franchise Fees and the FCC
regulatory fee shall not be regarded as such a tax or fee;
• fees imposed by any municipality, state or other governmental unit on Grantee
including but not limited to Public, Educational and Governmental (PEG) Fees;
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• launch fees and marketing co-op fees; and,
• unaffiliated third party advertising sales agency fees which are reflected as a
deduction from revenues.
(C) To the extent revenues are received by Grantee for the provision of a discounted
bundle of services which includes Cable Services and non-Cable Services, Grantee shall
calculate revenues to be included in Gross Revenues using a methodology that allocates revenue
on a pro rata basis when comparing the bundled service price and its components to the sum of
the published rate card, except as required by specific federal, state or local law, it is expressly
understood that equipment may be subject to inclusion in the bundled price at full rate card
value. This calculation shall be applied to every bundled service package containing Cable
Service from which Grantee derives revenues in the City. The City reserves its right to review
and to challenge Grantee's calculations.
(D) Grantee reserves the right to change the allocation methodologies set forth in this
Section 1.27 in order to meet the standards required by governing accounting principles as
promulgated and defined by the Financial Accounting Standards Board ("FASB"), Emerging
Issues Task Force ("EITF") and/or the U.S. Securities and Exchange Commission ("SEC").
Grantee will explain and document the required changes to the City within three(3) months of
making such changes, and as part of any audit or review of franchise fee payments, and any such
changes shall be subject to 1.27(E)below.
(E) Resolution of any disputes over the classification of revenue should first be
attempted by agreement of the Parties, but should no resolution be reached, the Parties agree that
reference shall be made to generally accepted accounting principles ("GAAP") as promulgated
and defined by the Financial Accounting Standards Board("FASB"), Emerging Issues Task Force
("EITF") and/or the U.S. Securities and Exchange Commission ("SEC"). Notwithstanding the
forgoing, the City reserves its right to challenge Grantee's calculation of Gross Revenues,
including the interpretation of GAAP as promulgated and defined by the FASB, EITF and/or the
SEC.
1.28 "Headend" means any facility for signal reception and dissemination on a Cable System,
including cables, antennas, wires, satellite dishes, monitors, switchers, modulators, processors for
Broadcast Signals, equipment for the Interconnection of the Cable System with adjacent Cable
Systems and Interconnection of any networks which are part of the Cable System, and all other
related equipment and facilities.
1.29 "Leased Access Channel" means any Channel or portion of a Channel commercially
available for video programming by Persons other than Grantee, for a fee or charge.
1.30 "Manager" means the City Manager of the City or designee.
1.31 "Person" means any individual, sole proprietorship, partnership, association, or
corporation, or any other form of entity or organization.
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1.32 "Premium Service" means programming choices (such as movie Channels, pay-per-view
programs,or video on demand)offered to Subscribers on a per-Channel, per-program or per-event
basis.
1.33 "Residential Subscriber" means any Person who receives Cable Service delivered to
Dwelling Units or Multiple Dwelling Units, excluding such Multiple Dwelling Units billed on a
bulk-billing basis.
1.34 "Right-of-Way" means each of the following which have been dedicated to the public or
are hereafter dedicated to the public and maintained under public authority or by others and located
within the City: streets,roadways, highways,avenues, lanes,alleys,bridges,sidewalks,easements,
rights-of-way and similar public property and areas.
1.35 "State"means the State of Colorado.
1.36 "Subscriber"means any Person who or which elects to subscribe to,for any purpose, Cable
Service provided by Grantee by means of or in connection with the Cable System and whose
premises are physically wired and lawfully Activated to receive Cable Service from Grantee's
Cable System, and who is in compliance with Grantee's regular and nondiscriminatory terms and
conditions for receipt of service.
1.37 "Subscriber Network" means that portion of the Cable System used primarily by Grantee
in the transmission of Cable Services to Residential Subscribers.
1.38 "Telecommunications" means the transmission, between or among points specified by the
user, of information of the user's choosing, without change in the form or content of the
information as sent and received (as provided in 47 U.S.C. Section 153(43)).
1.39 "Telecommunications Service" means the offering of Telecommunications for a fee
directly to the public, or to such classes of users as to be effectively available directly to the public,
regardless of the facilities used (as provided in 47 U.S.C. Section 153(46)).
1.40 "Tier" means a group of Channels for which a single periodic subscription fee is charged.
1.41 "Two-Way" means that the Cable System is capable of providing both Upstream and
Downstream transmissions.
1.42 "Upstream"means carrying a transmission to the Headend from remote points on the Cable
System or from Interconnection points on the Cable System.
(B) EXHIBITS
The following documents, which are occasionally referred to in this Franchise, are formally
incorporated and made a part of this Franchise by this reference:
1) Exhibit A, entitled Customer Service Standards.
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2) Exhibit B, entitled Report Form.
SECTION 2. GRANT OF FRANCHISE
2.1 Grant
(A) The City hereby grants to Grantee a nonexclusive authorization to make reasonable
and lawful use of the Rights-of-Way within the City to construct, operate, maintain, reconstruct
and rebuild a Cable System for the purpose of providing Cable Service subject to the terms and
conditions set forth in this Franchise and in any prior utility or use agreements entered into by
Grantee with regard to any individual property. This Franchise shall constitute both a right and an
obligation to provide the Cable Services required by, and to fulfill the obligations set forth in, the
provisions of this Franchise.
(B) Nothing in this Franchise shall be deemed to waive the lawful requirements of any
generally applicable City ordinance existing as of the Effective Date, as defined in subsection 2.3.
(C) Each and every term, provision or condition herein is subject to the provisions of
State law, federal law,the Charter of the City,and the ordinances and regulations enacted pursuant
thereto. The Charter and Municipal Code of the City, as the same may be amended from time to
time, are hereby expressly incorporated into this Franchise as if fully set out herein by this
reference. Notwithstanding the foregoing, the City may not unilaterally alter the material rights
and obligations of Grantee under this Franchise.
(D) This Franchise shall not be interpreted to prevent the City from imposing
additional lawful conditions, including additional compensation conditions for use of the Rights-
of-Way, should Grantee provide service other than Cable Service.
(E) Grantee promises and guarantees,as a condition of exercising the privileges granted
by this Franchise, that any Affiliate of the Grantee directly involved in the offering of Cable
Service in the Franchise Area, or directly involved in the management or operation of the Cable
System in the Franchise Area, will also comply with the obligations of this Franchise.
(F) No rights shall pass to Grantee by implication. Without limiting the foregoing, by
way of example and not limitation, this Franchise shall not include or be a substitute for:
(1) Any other permit or authorization required for the privilege of transacting
and carrying on a business within the City that may be required by the ordinances and laws
of the City;
(2) Any permit, agreement, or authorization required by the City for Right-of-
Way users in connection with operations on or in Rights-of-Way or public property
including, by way of example and not limitation, street cut permits; or
(3) Any permits or agreements for occupying any other property of the City or
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private entities to which access is not specifically granted by this Franchise including,
without limitation, permits and agreements for placing devices on poles, in conduits or in
or on other structures.
(G) This Franchise is intended to convey limited rights and interests only as to those
Rights-of-Way in which the City has an actual interest. It is not a warranty of title or interest in
any Right-of-Way; it does not provide the Grantee with any interest in any particular location
within the Right-of-Way;and it does not confer rights other than as expressly provided in the grant
hereof.
(H) This Franchise does not authorize Grantee to provide Telecommunications Service,
or to construct, operate or maintain Telecommunications facilities. This Franchise is not a bar to
the provision of non-Cable Services, or to the imposition of any lawful conditions on Grantee with
respect to Telecommunications, whether similar, different or the same as the conditions specified
herein. This Franchise does not relieve Grantee of any obligation it may have to obtain from the
City an authorization to provide Telecommunications Services,or to construct,operate or maintain
Telecommunications facilities, or relieve Grantee of its obligation to comply with any such
authorizations that may be lawfully required.
2.2 Use of Rights-of-Way
(A) Subject to the City's supervision and control, Grantee may erect, install, construct,
repair, replace, reconstruct, and retain in, on, over, under, upon, across, and along the Rights-of-
Way within the City such wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers,
pedestals, attachments and other property and equipment as are necessary and appurtenant to the
operation of a Cable System within the City. Grantee,through this Franchise, is granted extensive
and valuable rights to operate its Cable System for profit using the City's Rights-of-Way in
compliance with all applicable City construction codes and procedures. As trustee for the public,
the City is entitled to fair compensation as provided for in Section 3 of this Franchise to be paid
for these valuable rights throughout the term of the Franchise.
(B) Grantee must follow City established nondiscriminatory requirements for
placement of Cable System facilities in Rights-of-Way, including the specific location of facilities
in the Rights-of-Way, and must in any event install Cable System facilities in a manner that
minimizes interference with the use of the Rights-of-Way by others, including others that may be
installing communications facilities. Within limits reasonably related to the City's role in
protecting public health, safety and welfare, the City may require that Cable System facilities be
installed at a particular time, at a specific place or in a particular manner as a condition of access
to a particular Right-of-Way; may deny access if Grantee is not willing to comply with City's
requirements; and may remove, or require removal of, any facility that is not installed by Grantee
in compliance with the requirements established by the City, or which is installed without prior
City approval of the time, place or manner of installation, and charge Grantee for all the costs
associated with removal; and may require Grantee to cooperate with others to minimize adverse
impacts on the Rights-of-Way through joint trenching and other arrangements.
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2.3 Effective Date and Term of Franchise
This Franchise and the rights, privileges and authority granted hereunder shall take effect
on July 1, 2016 (the "Effective Date"), and shall terminate on June 30, 2021 unless terminated
sooner as hereinafter provided.
2.4 Franchise Nonexclusive
This Franchise shall be nonexclusive, and subject to all prior rights, interests, easements or
licenses granted by the City to any Person to use any property, Right-of-Way, right, interest or
license for any purpose whatsoever, including the right of the City to use same for any purpose it
deems fit, including the same or similar purposes allowed Grantee hereunder. The City may at
any time grant authorization to use the Rights-of-Way for any purpose not incompatible with
Grantee's authority under this Franchise and for such additional franchises for Cable Systems as
the City deems appropriate.
2.5 Police Powers
Grantee's rights hereunder are subject to the police powers of the City to adopt and enforce
ordinances necessary to the safety,health, and welfare of the public,and Grantee agrees to comply
with all laws and ordinances of general applicability enacted, or hereafter enacted, by the City or
any other legally constituted governmental unit having lawful jurisdiction over the subject matter
hereof. The City shall have the right to adopt, from time to time, such ordinances as may be
deemed necessary in the exercise of its police power; provided that such hereinafter enacted
ordinances shall be reasonable,and not materially modify the terms of this Franchise. Any conflict
between the provisions of this Franchise and any other present or future lawful exercise of the
City's police powers shall be resolved in favor of the latter.
2.6 Competitive Equity
(A) The Grantee acknowledges and agrees that the City reserves the right to grant one
(1) or more additional franchises or other similar lawful authorization to provide Cable Services
within the City. If the City grants such an additional franchise or other similar lawful
authorization containing material terms and conditions that differ from Grantee's material
obligations under this Franchise,then the City agrees that the obligations in this Franchise will,
pursuant to the process set forth in this Section, be amended to include any material terms or
conditions that it imposes upon the new entrant, or provide relief from existing material terms or
conditions, so as to insure that the regulatory and financial burdens on each entity are materially
equivalent. "Material terms and conditions" include, but are not limited to: Franchise Fees and
Gross Revenues; insurance; System build-out requirements; security instruments; Public,
Education and Government Access Channels and support; customer service standards; required
reports and related record keeping; competitive equity(or its equivalent); audits; dispute
resolution; remedies; and notice and opportunity to cure breaches. The parties agree that this
provision shall not require a word for word identical franchise or authorization for a competitive
entity so long as the regulatory and financial burdens on each entity are materially equivalent.
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Video programming services (as defined in the Cable Act) delivered over wireless broadband
networks are specifically exempted from the requirements of this Section.
(B) The modification process of this Franchise as provided for in Section 2.6 (A) shall
only be initiated by written notice by the Grantee to the City regarding specified franchise
obligations. Grantee's notice shall address the following: (1) identifying the specific terms or
conditions in the competitive cable services franchise which are materially different from
Grantee's obligations under this Franchise; (2) identifying the Franchise terms and conditions for
which Grantee is seeking amendments; (3) providing text for any proposed Franchise
amendments to the City, with a written explanation of why the proposed amendments are
necessary and consistent.
(C) Upon receipt of Grantee's written notice as provided in Section 2.6 (B), the City
and Grantee agree that they will use best efforts in good faith to negotiate Grantee's proposed
Franchise modifications, and that such negotiation will proceed and conclude within a ninety
(90) day time period, unless that time period is reduced or extended by mutual agreement of the
parties. If the City and Grantee reach agreement on the Franchise modifications pursuant to such
negotiations,then the City shall amend this Franchise to include the modifications.
(D) In the alternative to Franchise modification negotiations as provided for in
Section 2.6 (C), or if the City and Grantee fail to reach agreement in such negotiations, Grantee
may, at its option, elect to replace this Franchise by opting into the franchise or other similar
lawful authorization that the City grants to another provider of Cable Services, so as to insure
that the regulatory and financial burdens on each entity are equivalent. If Grantee so elects, the
City shall immediately commence proceedings to replace this Franchise with the franchise issued
to the other Cable Services provider.
(E) Notwithstanding anything contained in this Section 2.6(A)through (D)to the
contrary, the City shall not be obligated to amend or replace this Franchise unless the new
entrant makes Cable Services available for purchase by Subscribers or customers under its
franchise agreement with the City.
(F) Notwithstanding any provision to the contrary, at any time that non-wireless
facilities based entity, legally authorized by state or federal law, makes available for purchase by
Subscribers or customers, Cable Services or multiple Channels of video programming within the
Franchise Area without a franchise or other similar lawful authorization granted by the City,
then:
(1) Grantee may negotiate with the City to seek Franchise modifications as
per Section 2.6(C) above; or
(a) the term of Grantee's Franchise shall, upon ninety(90) days written notice
from Grantee, be shortened so that the Franchise shall be deemed to expire on
a date eighteen (18) months from the first day of the month following the date
of Grantee's notice; or,
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(b) Grantee may assert, at Grantee's option, that this Franchise is rendered
"commercially impracticable," and invoke the modification procedures set
forth in Section 625 of the Cable Act.
2.7 Familiarity with Franchise
The Grantee acknowledges and warrants by acceptance of the rights, privileges and
agreements granted herein, that it has carefully read and fully comprehends the terms and
conditions of this Franchise and is willing to and does accept all lawful and reasonable risks of the
meaning of the provisions, terms and conditions herein. The Grantee further acknowledges and
states that it has fully studied and considered the requirements and provisions of this Franchise,
and finds that the same are commercially practicable at this time, and consistent with all local,
State and federal laws and regulations currently in effect, including the Cable Act.
2.8 Effect of Acceptance
By accepting the Franchise, the Grantee: (1) acknowledges and accepts the City's legal
right to issue and enforce the Franchise; (2) accepts and agrees to comply with each and every
provision of this Franchise subject to Applicable Law; and (3) agrees that the Franchise was
granted pursuant to processes and procedures consistent with Applicable Law, and that it will not
raise any claim to the contrary.
SECTION 3. FRANCHISE FEE PAYMENT AND FINANCIAL CONTROLS
3.1 Franchise Fee
As compensation for the benefits and privileges granted under this Franchise and in
consideration of permission to use the City's Rights-of-Way, Grantee shall continue to pay as a
Franchise Fee to the City,throughout the duration of and consistent with this Franchise, an amount
equal to five percent(5%) of Grantee's Gross Revenues.
3.2 Payments
Grantee's Franchise Fee payments to the City shall be computed quarterly for the preceding
calendar quarter ending March 31, June 30, September 30, and December 31. Each quarterly
payment shall be due and payable no later than thirty(30) days after said dates.
3.3 Acceptance of Payment and Recomputation
No acceptance of any payment shall be construed as an accord by the City that the amount
paid is, in fact,the correct amount,nor shall any acceptance of payments be construed as a release
of any claim the City may have for further or additional sums payable or for the performance of
any other obligation of Grantee.
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3.4 Quarterly Franchise Fee Reports
Each payment shall be accompanied by a written report to the City, or concurrently sent
under separate cover, verified by an authorized representative of Grantee, containing an accurate
statement in summarized form, as well as in detail, of Grantee's Gross Revenues and the
computation of the payment amount. Such reports shall detail all Gross Revenues of the Cable
System.
3.5 Annual Franchise Fee Reports
Grantee shall, within sixty (60) days after the end of each year, furnish to the City a
statement stating the total amount of Gross Revenues for the year and all payments, deductions
and computations for the period.
3.6 Audits
On an annual basis, upon thirty(30)days prior written notice,the City, including the City's
Auditor or his/her authorized representative, shall have the right to conduct an independent
audit/review of Grantee's records reasonably related to the administration or enforcement of this
Franchise. Pursuant to subsection 1.27, as part of the Franchise Fee audit/review the City shall
specifically have the right to review relevant data related to the allocation of revenue to Cable
Services in the event Grantee offers Cable Services bundled with non-Cable Services. For
purposes of this section, "relevant data" shall include, at a minimum, Grantee's records, produced
and maintained in the ordinary course of business, showing the subscriber counts per package and
the revenue allocation per package for each package that was available for City subscribers during
the audit period. To the extent that the City does not believe that the relevant data supplied is
sufficient for the City to complete its audit/review, the City may require other relevant data. For
purposes of this Section 3.6, the"other relevant data" shall generally mean all: (1) billing reports,
(2) financial reports (such as General Ledgers) and (3) sample customer bills used by Grantee to
determine Gross Revenues for the Franchise Area that would allow the City to recompute the
Gross Revenue determination. If the audit/review shows that Franchise Fee payments have been
underpaid by five percent(5%)or more(or such other contract underpayment threshold as set forth
in a generally applicable and enforceable regulation or policy of the City related to audits), Grantee
shall pay the total cost of the audit/review, such cost not to exceed three thousand dollars($3,000)
for each year of the audit period. The City's right to audit/review and the Grantee's obligation to
retain records related to this subsection shall expire three (3) years after each Franchise Fee
payment has been made to the City.
3.7 Late Payments
In the event any payment due quarterly is not received within thirty(30)days from the end
of the calendar quarter, Grantee shall pay interest on the amount due (at the prime rate as listed in
the Wall Street Journal on the date the payment was due), compounded daily, calculated from the
date the payment was originally due until the date the City receives the payment.
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3.8 Underpayments
If a net Franchise Fee underpayment is discovered as the result of an audit, Grantee shall
pay interest at the rate of the eight percent (8%) per annum, compounded quarterly, calculated
from the date each portion of the underpayment was originally due until the date Grantee remits
the underpayment to the City.
3.9 Alternative Compensation
In the event the obligation of Grantee to compensate the City through Franchise Fee
payments is lawfully suspended or eliminated, in whole or part, then Grantee shall pay to the City
compensation equivalent to the compensation paid to the City by other similarly situated users of
the City's Rights-of-Way for Grantee's use of the City's Rights-of-Way, provided that in no event
shall such payments exceed the equivalent of five percent (5%) of Grantee's Gross Revenues
(subject to the other provisions contained in this Franchise), to the extent consistent with
Applicable Law.
3.10 Maximum Legal Compensation
The parties acknowledge that,at present,applicable federal law limits the City to collection
of a maximum permissible Franchise Fee of five percent (5%) of Gross Revenues. In the event
that at any time during the duration of this Franchise, the City is authorized to collect an amount
in excess of five percent(5%)of Gross Revenues,then this Franchise may be amended unilaterally
by the City to provide that such excess amount shall be added to the Franchise Fee payments to be
paid by Grantee to the City hereunder, provided that Grantee has received at least ninety(90)days
prior written notice from the City of such amendment, so long as all cable operators in the City are
paying the same Franchise Fee amount.
3.11 Additional Commitments Not Franchise Fee Payments
No term or condition in this Franchise, including the funding required by Section 9, shall
in any way modify or affect Grantee's obligation to pay Franchise Fees. Although the total sum
of Franchise Fee payments and additional commitments set forth elsewhere in this Franchise may
total more than five percent (5%) of Grantee's Gross Revenues in any twelve (12) month period,
Grantee agrees that the additional commitments herein are not Franchise Fees as defined under
any federal law, nor are they to be offset or credited against any Franchise Fee payments due to
the City, nor do they represent an increase in Franchise Fees.
3.12 Tax Liability
The Franchise Fees shall be in addition to any and all taxes or other levies or assessments
which are now or hereafter required to be paid by businesses in general by any law of the City, the
State or the United States including,without limitation, sales, use and other taxes,business license
fees or other payments. Payment of the Franchise Fees under this Franchise shall not exempt
Grantee from the payment of any other license fee, permit fee, tax or charge on the business,
occupation, property or income of Grantee that may be lawfully imposed by the City. Any other
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license fees, taxes or charges shall be of general applicability in nature and shall not be levied
against Grantee solely because of its status as a Cable Operator, or against Subscribers, solely
because of their status as such.
3.13 Financial Records
Grantee agrees to meet with a representative of the City upon request to review Grantee's
methodology of record-keeping, financial reporting, the computing of Franchise Fee obligations
and other procedures, the understanding of which the City deems necessary for reviewing reports
and records.
3.14 Payment on Termination
If this Franchise terminates for any reason,the Grantee shall file with the City within ninety
(90)calendar days of the date of the termination, a financial statement,certified by an independent
certified public accountant, showing the Gross Revenues received by the Grantee since the end of
the previous fiscal year. The City reserves the right to satisfy any remaining financial obligations
of the Grantee to the City by utilizing the funds available in the letter of credit or other security
provided by the Grantee.
SECTION 4. ADMINISTRATION AND REGULATION
4.1 Authority
(A) The City shall be vested with the power and right to reasonably regulate the exercise
of the privileges permitted by this Franchise in the public interest or to delegate that power and
right, or any part thereof, to the extent permitted under Federal, State and local law, to any agent
including, but not limited to, the CCUA, in its sole discretion.
(B) Nothing in this Franchise shall limit nor expand the City's right of eminent domain
under State law.
4.2 Rates and Charges
All of Grantee's rates and charges related to or regarding Cable Services shall be subject
to regulation by the City to the full extent authorized by applicable federal, State and local laws.
4.3 Rate Discrimination
All of Grantee's rates and charges shall be published (in the form of a publicly-available
rate card) and be non-discriminatory as to all Persons and organizations of similar classes, under
similar circumstances and conditions. Grantee shall apply its rates in accordance with Applicable
Law, with identical rates and charges for all Subscribers receiving identical Cable Services,
without regard to race, color, ethnic or national origin, religion, age, sex, sexual orientation,
marital, military or economic status,or physical or mental disability or geographic location within
the City. Grantee shall offer the same Cable Services to all Residential Subscribers at identical
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rates to the extent required by Applicable Law and to Multiple Dwelling Unit Subscribers to the
extent authorized by FCC rules or applicable Federal law. Grantee shall permit Subscribers to
make any lawful in-residence connections the Subscriber chooses without additional charge nor
penalizing the Subscriber therefor. However, if any in-home connection requires service from
Grantee due to signal quality, signal leakage or other factors, caused by improper installation of
such in-home wiring or faulty materials of such in-home wiring, the Subscriber may be charged
reasonable service charges by Grantee. Nothing herein shall be construed to prohibit:
(A) The temporary reduction or waiving of rates or charges in conjunction with valid
promotional campaigns; or,
(B) The offering of reasonable discounts to senior citizens or economically
disadvantaged citizens; or,
(C) The offering of rate discounts for Cable Service; or,
(D) The Grantee from establishing different and nondiscriminatory rates and charges
and classes of service for Commercial Subscribers, as allowable by federal law and regulations.
4.4 Filing of Rates and Charges
(A) Throughout the term of this Franchise, Grantee shall maintain on file with the City
a complete schedule of applicable rates and charges for Cable Services provided under this
Franchise.Nothing in this subsection shall be construed to require Grantee to file rates and charges
under temporary reductions or waivers of rates and charges in conjunction with promotional
campaigns.
(B) Upon request of the City,Grantee shall provide a complete schedule of current rates
and charges for any and all Leased Access Channels, or portions of such Channels, provided by
Grantee. The schedule shall include a description of the price, terms, and conditions established
by Grantee for Leased Access Channels.
4.5 Cross Subsidization
Grantee shall comply with all Applicable Laws regarding rates for Cable Services and all
Applicable Laws covering issues of cross subsidization.
4.6 Reserved Authority
Both Grantee and the City reserve all rights they may have under the Cable Act and any
other relevant provisions of federal, State, or local law.
4.7 Time Limits Strictly Construed
Whenever this Franchise sets forth a time for any act to be performed by Grantee, such
time shall be deemed to be of the essence, and any failure of Grantee to perform within the allotted
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time may be considered a breach of this Franchise, and sufficient grounds for the City to invoke
any relevant remedy in accordance with Section 13.1 of this Franchise.
4.8 Franchise Amendment Procedure
Either party may at any time seek an amendment of this Franchise by so notifying the other
party in writing. Within thirty (30) days of receipt of notice, the City and Grantee shall meet to
discuss the proposed amendment(s). If the parties reach a mutual agreement upon the suggested
amendment(s), such amendment(s) shall be submitted to the City Council for its approval. If so
approved by the City Council and the Grantee, then such amendment(s) shall be deemed part of
this Franchise. If mutual agreement is not reached, there shall be no amendment.
4.9 Performance Evaluations
(A) The City may hold performance evaluation sessions upon ninety (90)days written
notice, provided that such evaluation sessions shall be held no more frequently than once every
two (2) years. All such evaluation sessions shall be conducted by the City.
(B) Special evaluation sessions may be held at any time by the City during the term of
this Franchise, upon ninety(90)days written notice to Grantee.
(C) All regular evaluation sessions shall be open to the public and announced at least
two (2) weeks in advance in any manner within the discretion of the City. Grantee shall also
include with or on the Subscriber billing statements for the billing period immediately preceding
the commencement of the session, written notification of the date, time, and place of the regular
performance evaluation session, and any special evaluation session as required by the City,
provided Grantee receives appropriate advance notice.
(D) Topics which may be discussed at any evaluation session may include, but are not
limited to, Cable Service rate structures; Franchise Fee payments; liquidated damages; free or
discounted Cable Services; application of new technologies; Cable System performance; Cable
Services provided; programming offered; Subscriber complaints; privacy; amendments to this
Franchise; judicial and FCC rulings; line extension policies; and the City or Grantee's rules;
provided that nothing in this subsection shall be construed as requiring the renegotiation of this
Franchise.
(E) During evaluations under this subsection, Grantee shall fully cooperate with the
City and shall provide such information and documents as the City may reasonably require to
perform the evaluation.
4.10 Late Fees
(A) For purposes of this subsection, any assessment, charge, cost, fee or sum, however
characterized,that the Grantee imposes upon a Subscriber solely for late payment of a bill is a late
fee and shall be applied in accordance with the City's Customer Service Standards, as the same
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may be amended from time to time by the City Council acting by ordinance or resolution, or as
the same may be superseded by legislation or final court order.
(B) Nothing in this subsection shall be deemed to create, limit or otherwise affect the
ability of the Grantee, if any, to impose other assessments, charges, fees or sums other than those
permitted by this subsection,for the Grantee's other services or activities it performs in compliance
with Applicable Law, including FCC law, rule or regulation.
(C) The Grantee's late fee and disconnection policies and practices shall be
nondiscriminatory and such policies and practices, and any fees imposed pursuant to this
subsection, shall apply equally in all parts of the City without regard to the neighborhood or income
level of the Subscriber.
4.11 Force Majeure
In the event Grantee is prevented or delayed in the performance of any of its obligations
under this Franchise by reason beyond the control of Grantee, Grantee shall have a reasonable
time,under the circumstances,to perform the affected obligation under this Franchise or to procure
a substitute for such obligation which is satisfactory to the City. Those conditions which are not
within the control of Grantee include, but are not limited to, natural disasters, civil disturbances,
work stoppages or labor disputes, power outages, telephone network outages, and severe or
unusual weather conditions which have a direct and substantial impact on the Grantee's ability to
provide Cable Services in the City and which was not caused and could not have been avoided by
the Grantee which used its best efforts in its operations to avoid such results.
If Grantee believes that a reason beyond its control has prevented or delayed its compliance
with the terms of this Franchise, Grantee shall provide documentation as reasonably required by
the City to substantiate the Grantee's claim. If Grantee has not yet cured the deficiency, Grantee
shall also provide the City with its proposed plan for remediation, including the timing for such
cure.
SECTION 5. FINANCIAL AND INSURANCE REQUIREMENTS
5.1 Indemnification
(A) General Indemnification. Grantee shall indemnify, defend and hold the City, its
officers, officials, boards, commissions, agents and employees, harmless from any action or claim
for injury, damage, loss, liability, cost or expense, including court and appeal costs and reasonable
attorneys'fees or reasonable expenses, arising from any casualty or accident to Person or property,
including, without limitation, copyright infringement, defamation, and all other damages in any
way arising out of, or by reason of, any construction, excavation, operation, maintenance,
reconstruction, or any other act done under this Franchise, by or for Grantee, its agents, or its
employees, or by reason of any neglect or omission of Grantee. Grantee shall consult and
cooperate with the City while conducting its defense of the City.
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(B) Indemnification for Relocation. Grantee shall indemnify the City for any damages,
claims, additional costs or reasonable expenses assessed against, or payable by, the City arising
out of, or resulting from, directly or indirectly, Grantee's failure to remove, adjust or relocate any
of its facilities in the Rights-of-Way in a timely manner in accordance with any relocation required
by the City.
(C) Additional Circumstances. Grantee shall also indemnify, defend and hold the City
harmless for any claim for injury, damage, loss, liability, cost or expense, including court and
appeal costs and reasonable attorneys' fees or reasonable expenses in any way arising out of:
(1) The lawful actions of the City in granting this Franchise to the extent such
actions are consistent with this Franchise and Applicable Law.
(2) Damages arising out of any failure by Grantee to secure consents from the
owners, authorized distributors, or licensees/licensors of programs to be delivered by the
Cable System, whether or not any act or omission complained of is authorized, allowed or
prohibited by this Franchise.
(D) Procedures and Defense. If a claim or action arises, the City or any other
indemnified party shall promptly tender the defense of the claim to Grantee, which defense shall
be at Grantee's expense. The City may participate in the defense of a claim,but if Grantee provides
a defense at Grantee's expense then Grantee shall not be liable for any attorneys' fees, expenses
or other costs that City may incur if it chooses to participate in the defense of a claim, unless and
until separate representation as described below in Paragraph 5.1(F) is required. In that event the
provisions of Paragraph 5.1(F) shall govern Grantee's responsibility for City's attorney's fees,
expenses or other costs. In any event,Grantee may not agree to any settlement of claims affecting
the City without the City's approval.
(E) Non-waiver. The fact that Grantee carries out any activities under this Franchise
through independent contractors shall not constitute an avoidance of or defense to Grantee's duty
of defense and indemnification under this subsection.
(F) Expenses. If separate representation to fully protect the interests of both parties is
or becomes necessary, such as a conflict of interest between the City and the counsel selected by
Grantee to represent the City, Grantee shall pay, from the date such separate representation is
required forward, all reasonable expenses incurred by the City in defending itself with regard to
any action, suit or proceeding indemnified by Grantee. Provided, however, that in the event that
such separate representation is or becomes necessary, and City desires to hire counsel or any other
outside experts or consultants and desires Grantee to pay those expenses, then City shall be
required to obtain Grantee's consent to the engagement of such counsel, experts or consultants,
such consent not to be unreasonably withheld. The City's expenses shall include all reasonable
out-of-pocket expenses, such as consultants' fees, and shall also include the reasonable value of
any services rendered by the City Attorney or his/her assistants or any employees of the City or its
agents but shall not include outside attorneys' fees for services that are unnecessarily duplicative
of services provided the City by Grantee.
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5.2 Insurance
(A) Grantee shall maintain in full force and effect at its own cost and expense each of
the following policies of insurance:
(1) Commercial General Liability insurance with limits of no less than one
million dollars ($1,000,000.00) per occurrence and one million dollars ($1,000,000.00)
general aggregate. Coverage shall be at least as broad as that provided by ISO CG 00 01
1/96 or its equivalent and include severability of interests. Such insurance shall name the
City, its officers, officials and employees as additional insureds per ISO CG 2026 or its
equivalent. There shall be a waiver of subrogation and rights of recovery against the City,
its officers, officials and employees. Coverage shall apply as to claims between insureds
on the policy, if applicable.
(2) Commercial Automobile Liability insurance with minimum combined
single limits of one million dollars ($1,000,000.00) each occurrence with respect to each
of Grantee's owned, hired and non-owned vehicles assigned to or used in the operation of
the Cable System in the City. The policy shall contain a severability of interests provision.
(B) The insurance shall not be canceled or materially changed so as to be out of
compliance with these requirements without thirty (30) days' written notice first provided to the
City, via certified mail, and ten (10) days' notice for nonpayment of premium. If the insurance is
canceled or materially altered so as to be out of compliance with the requirements of this subsection
within the term of this Franchise, Grantee shall provide a replacement policy. Grantee agrees to
maintain continuous uninterrupted insurance coverage, in at least the amounts required, for the
duration of this Franchise and, in the case of the Commercial General Liability, for at least one(1)
year after expiration of this Franchise.
5.3 Deductibles/Certificate of Insurance
Any deductible of the policies shall not in any way limit Grantee's liability to the City.
(A) Endorsements.
(1) All policies shall contain, or shall be endorsed so that:
(a) The City, its officers,officials,boards,commissions,employees and
agents are to be covered as, and have the rights of, additional insureds with respect
to liability arising out of activities performed by,or on behalf of, Grantee under this
Franchise or Applicable Law, or in the construction, operation or repair, or
ownership of the Cable System;
(b) Grantee's insurance coverage shall be primary insurance with
respect to the City, its officers, officials, boards, commissions, employees and
agents. Any insurance or self-insurance maintained by the City, its officers,
officials, boards, commissions, employees and agents shall be in excess of the
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Grantee's insurance and shall not contribute to it; and
(c) Grantee's insurance shall apply separately to each insured against
whom a claim is made or lawsuit is brought, except with respect to the limits of the
insurer's liability.
(B) Acceptability of Insurers. The insurance obtained by Grantee shall be placed with
insurers with a Best's rating of no less than "A VII."
(C) Verification of Coverage. The Grantee shall furnish the City with certificates of
insurance and endorsements or a copy of the page of the policy reflecting blanket additional
insured status. The certificates and endorsements for each insurance policy are to be signed by a
Person authorized by that insurer to bind coverage on its behalf. The certificates and endorsements
for each insurance policy are to be on standard forms or such forms as are consistent with standard
industry practices.
(D) Self-Insurance In the alternative to providing a certificate of insurance to the City
certifying insurance coverage as required above, Grantee may provide self-insurance in the same
amount and level of protection for Grantee and City, its officers, agents and employees as
otherwise required under this Section. The adequacy of self-insurance shall be subject to the
periodic review and approval of the City.
5.4 Letter of Credit
(A) If there is a claim by the City of an uncured breach by Grantee of a material
provision of this Franchise or pattern of repeated violations of any provision(s) of this Franchise,
then the City may require and Grantee shall establish and provide within thirty (30) days from
receiving notice from the City, to the City as security for the faithful performance by Grantee of
all of the provisions of this Franchise, a letter of credit from a financial institution satisfactory to
the City in the amount of fifteen thousand dollars ($15,000.00).
(B) In the event that Grantee establishes a letter of credit pursuant to the procedures of
this Section, then the letter of credit shall be maintained at fifteen thousand dollars ($15,000.00)
until the allegations of the uncured breach have been resolved.
As an alternative to the provision of a Letter of Credit to the City as set forth in
Subsections 5.4 (A) and (B) above, if the City is a member of CCUA, and if Grantee provides a
Letter of Credit to CCUA in an amount agreed to between Grantee and CCUA for the benefit of
its members, in order to collectively address claims referenced in Subsection 5.4(A),Grantee shall
not be required to provide a separate Letter of Credit to the City.
(C) After completion of the procedures set forth in Section 13.1 or other applicable
provisions of this Franchise, the letter of credit may be drawn upon by the City for purposes
including, but not limited to, the following:
(1) Failure of Grantee to pay the City sums due under the terms of this
Franchise;
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(2) Reimbursement of costs borne by the City to correct Franchise violations
not corrected by Grantee;
(3) Monetary remedies or damages assessed against Grantee due to default or
breach of Franchise requirements; and,
(4) Failure to comply with the Customer Service Standards of the City, as the
same may be amended from time to time by the City Council acting by ordinance or
resolution.
(D) The City shall give Grantee written notice of any withdrawal under this subsection
upon such withdrawal. Within seven (7) days following receipt of such notice, Grantee shall
restore the letter of credit to the amount required under this Franchise.
(E) Grantee shall have the right to appeal to the City Council for reimbursement in the
event Grantee believes that the letter of credit was drawn upon improperly. Grantee shall also have
the right of judicial appeal if Grantee believes the letter of credit has not been properly drawn upon
in accordance with this Franchise. Any funds the City erroneously or wrongfully withdraws from
the letter of credit shall be returned to Grantee with interest, from the date of withdrawal at a rate
equal to the prime rate of interest as quoted in the Wall Street Journal.
SECTION 6. CUSTOMER SERVICE
6.1 Customer Service Standards
Grantee shall comply with Customer Service Standards of the City, as the same may be
amended from time to time by the City Council,acting by ordinance.Any requirement in Customer
Service Standards for a "local" telephone number may be met by the provision of a toll-free
number. The Customer Service Standards in effect as of the Effective Date of this Franchise are
attached as Exhibit A. Grantee reserves the right to challenge any customer service ordinance
which it believes is inconsistent with its contractual rights under this Franchise.
6.2 Subscriber Privacy
Grantee shall fully comply with any provisions regarding the privacy rights of Subscribers
contained in federal, State, or local law.
6.3 Subscriber Contracts
Grantee shall not enter into a contract with any Subscriber which is in any way inconsistent
with the terms of this Franchise, or any Exhibit hereto, or the requirements of any applicable
Customer Service Standard. Upon request, Grantee will provide to the City a sample of the
Subscriber contract or service agreement then in use.
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6.4 Advance Notice to City
The Grantee shall use reasonable efforts to furnish information provided to Subscribers or
the media in the normal course of business to the City in advance.
6.5 Identification of Local Franchise Authority on Subscriber Bills
Within sixty (60) days after written request from the City, Grantee shall place the City's
phone number on its Subscriber bills, to identify where a Subscriber may call to address escalated
complaints.
SECTION 7. REPORTS AND RECORDS
7.1 Open Records
Grantee shall manage all of its operations in accordance with a policy of keeping its
documents and records open and accessible to the City. The City, including the City's Auditor or
his/her authorized representative, shall have access to, and the right to inspect, any books and
records of Grantee, its parent corporations and Affiliates which are reasonably related to the
administration or enforcement of the terms of this Franchise. Grantee shall not deny the City
access to any of Grantee's records on the basis that Grantee's records are under the control of any
parent corporation, Affiliate or a third party. The City may, in writing, request copies of any such
records or books and Grantee shall provide such copies within thirty (30) days of the transmittal
of such request. One(1)copy of all reports and records required under this or any other subsection
shall be furnished to the City, at the sole expense of Grantee. If the requested books and records
are too voluminous, or for security reasons cannot be copied or removed, then Grantee may
request, in writing within ten(10) days,that the City inspect them at Grantee's local offices. If any
books or records of Grantee are not kept in a local office and not made available in copies to the
City upon written request as set forth above, and if the City determines that an examination of such
records is necessary or appropriate for the performance of any of the City's duties, administration
or enforcement of this Franchise, then all reasonable travel and related expenses incurred in
making such examination shall be paid by Grantee.
7.2 Confidentiality
The City agrees to treat as confidential any books or records that constitute proprietary or
confidential information under federal or State law, to the extent Grantee makes the City aware of
such confidentiality. Grantee shall be responsible for clearly and conspicuously stamping the word
"Confidential" on each page that contains confidential or proprietary information, and shall
provide a brief written explanation as to why such information is confidential under State or federal
law. If the City believes it must release any such confidential books and records in the course of
enforcing this Franchise,or for any other reason, it shall advise Grantee in advance so that Grantee
may take appropriate steps to protect its interests. If the City receives a demand from any Person
for disclosure of any information designated by Grantee as confidential, the City shall, so far as
consistent with Applicable Law, advise Grantee and provide Grantee with a copy of any written
request by the party demanding access to such information within a reasonable time. Until
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otherwise ordered by a court or agency of competent jurisdiction,the City agrees that,to the extent
permitted by State and federal law, it shall deny access to any of Grantee's books and records
marked confidential as set forth above to any Person. Grantee shall reimburse the City for all
reasonable costs and attorneys' fees incurred in any legal proceedings pursued under this Section.
7.3 Records Required
(A) Grantee shall at all times maintain, and shall furnish to the City upon 30 days
written request and subject to Applicable Law:
(1) A complete set of maps showing the exact location of all Cable System
equipment and facilities in the Right-of-Way, but excluding detail on proprietary
electronics contained therein and Subscriber drops. As-built maps including proprietary
electronics shall be available at Grantee's offices for inspection by the City's authorized
representative(s) or agent(s) and made available to such during the course of technical
inspections as reasonably conducted by the City. These maps shall be certified as accurate
by an appropriate representative of the Grantee;
(2) A copy of all FCC filings on behalf of Grantee, its parent corporations or
Affiliates which relate to the operation of the Cable System in the City;
(3) Current Subscriber Records and information;
(4) A log of Cable Services added or dropped, Channel changes, number of
Subscribers added or terminated, all construction activity, and total homes passed for the
previous twelve (12)months; and
(5) A list of Cable Services, rates and Channel line-ups.
(B) Subject to subsection 7.2, all information furnished to the City is public
information, and shall be treated as such, except for information involving the privacy rights of
individual Subscribers.
7.4 Annual Reports
Within sixty (60) days of the City's written request, Grantee shall submit to the City a
written report, in a form acceptable to the City, which shall include, but not necessarily be limited
to, the following information for the City:
(A) A Gross Revenue statement, as required by subsection 3.5 of this Franchise;
(B) A summary of the previous year's activities in the development of the Cable
System, including, but not limited to, Cable Services begun or discontinued during the reporting
year, and the number of Subscribers for each class of Cable Service (i.e., Basic, Digital Starter,
and Premium);
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(C) The number of homes passed,beginning and ending plant miles,any services added
or dropped, and any technological changes occurring in the Cable System;
(D) A statement of planned construction, if any, for the next year; and,
(E) A copy of the most recent annual report Grantee filed with the SEC or other
governing body.
The parties agree that the City's request for these annual reports shall remain effective, and need
only be made once. Such a request shall require the Grantee to continue to provide the reports
annually, until further written notice from the City to the contrary.
7.5 Copies of Federal and State Reports
Within thirty (30) days of a written request, Grantee shall submit to the City copies of all
pleadings, applications, notifications, communications and documents of any kind, submitted by
Grantee or its parent corporation(s), to any federal, State or local courts, regulatory agencies and
other government bodies if such documents directly relate to the operations of Grantee's Cable
System within the City. Grantee shall not claim confidential, privileged or proprietary rights to
such documents unless under federal, State, or local law such documents have been determined to
be confidential by a court of competent jurisdiction, or a federal or State agency.
7.6 Complaint File and Reports
(A) Grantee shall keep an accurate and comprehensive file of any complaints regarding
the Cable System, in a manner consistent with the privacy rights of Subscribers, and Grantee's
actions in response to those complaints. These files shall remain available for viewing to the City
during normal business hours at Grantee's local business office.
(B) Within thirty (30) days of a written request, Grantee shall provide the City a
quarterly executive summary in the form attached hereto as Exhibit B, which shall include the
following information from the preceding quarter:
(1) A summary of service calls, identifying the number and nature of the
requests and their disposition;
(2) A log of all service interruptions;
(3) A summary of customer complaints referred by the City to Grantee; and,
(4) Such other information as reasonably requested by the City.
The parties agree that the City's request for these summary reports shall remain effective,and need
only be made once. Such a request shall require the Grantee to continue to provide the reports
quarterly, until further written notice from the City to the contrary.
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7.7 Failure to Report
The failure or neglect of Grantee to file any of the reports or filings required under this
Franchise or such other reports as the City may reasonably request(not including clerical errors or
errors made in good faith), may, at the City 's option, be deemed a breach of this Franchise.
7.8 False Statements
Any false or misleading statement or representation in any report required by this Franchise
(not including clerical errors or errors made in good faith) may be deemed a material breach of
this Franchise and may subject Grantee to all remedies, legal or equitable, which are available to
the City under this Franchise or otherwise.
SECTION 8. PROGRAMMING
8.1 Broad Programming Categories
Grantee shall provide or enable the provision of at least the following initial broad
categories of programming to the extent such categories'are reasonably available:
(A) Educational programming;
(B) Colorado news, weather& information;
(C) Sports;
(D) General entertainment(including movies);
(E) Children/family-oriented;
(F) Arts, culture and performing arts;
(G) Foreign language;
(H) Science/documentary;
(I) National news,weather and information; and,
(J) Public, Educational and Government Access, to the extent required by this
Franchise.
8.2 Deletion or Reduction of Broad Programming Categories
(A) Grantee shall not delete or so limit as to effectively delete any broad category of
programming within its control without the prior written consent of the City.
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(B) In the event of a modification proceeding under federal law, the mix and quality of
Cable Services provided by Grantee on the Effective Date of this Franchise shall be deemed the
mix and quality of Cable Services required under this Franchise throughout its term.
8.3 Obscenity
Grantee shall not transmit, or permit to be transmitted over any Channel subject to its
editorial control, any programming which is obscene under, or violates any provision of,
Applicable Law relating to obscenity, and is not protected by the Constitution of the United States.
Grantee shall be deemed to have transmitted or permitted a transmission of obscene programming
only if a court of competent jurisdiction has found that any of Grantee's officers or employees or
agents have permitted programming which is obscene under, or violative of, any provision of
Applicable Law relating to obscenity, and is otherwise not protected by the Constitution of the
United States, to be transmitted over any Channel subject to Grantee's editorial control. Grantee
shall comply with all relevant provisions of federal law relating to obscenity.
8.4 Parental Control Device
Upon request by any Subscriber, Grantee shall make available a parental control or lockout
device,traps or filters to enable a Subscriber to control access to both the audio and video portions
of any or all Channels. Grantee shall inform its Subscribers of the availability of the lockout device
at the time of their initial subscription and periodically thereafter. Any device offered shall be at
a rate, if any, in compliance with Applicable Law.
8.5 Continuity of Service Mandatory
(A) It shall be the right of all Subscribers to continue to receive Cable Service from
Grantee insofar as their financial and other obligations to Grantee are honored. The Grantee shall
act so as to ensure that all Subscribers receive continuous, uninterrupted Cable Service regardless
of the circumstances. For the purposes of this subsection, "uninterrupted" does not include short-
term outages of the Cable System for maintenance or testing.
(B) In the event of a change of grantee, or in the event a new Cable Operator acquires
the Cable System in accordance with this Franchise, Grantee shall cooperate with the City, new
franchisee or Cable Operator in maintaining continuity of Cable Service to all Subscribers. During
any transition period, Grantee shall be entitled to the revenues for any period during which it
operates the Cable System, and shall be entitled to reasonable costs for its services when it no
longer operates the Cable System.
(C) In the event Grantee fails to operate the Cable System for four(4)consecutive days
without prior approval of the Manager, or without just cause, the City may, at its option, operate
the Cable System itself or designate another Cable Operator until such time as Grantee restores
service under conditions acceptable to the City or a permanent Cable Operator is selected. If the
City is required to fulfill this obligation for Grantee, Grantee shall reimburse the City for all
reasonable costs or damages that are the result of Grantee's failure to perform.
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8.6 Services for the Disabled
Grantee shall comply with the Americans with Disabilities Act and any amendments
thereto.
SECTION 9. ACCESS
9.1 Designated Access Providers
(A) The City shall have the sole and exclusive responsibility for identifying the
Designated Access Providers, including itself for Access purposes, to control and manage the use
of any or all Access Facilities provided by Grantee under this Franchise. As used in this Section,
such "Access Facilities" includes the Channels, services, facilities, equipment, technical
components and/or financial support provided under this Franchise, which is used or useable by
and for Public Access, Educational Access, and Government Access ("PEG" or"PEG Access").
(B) Grantee shall cooperate with City in City's efforts to provide Access programming,
but will not be responsible or liable for any damages resulting from a claim in connection with the
programming placed on the Access Channels by the Designated Access Provider.
9.2 Channel Capacity and Use
(A) Grantee shall make available to City three (3) Downstream Channels for PEG use
as provided for in this Section.
(B) All PEG Access Channels provided for in this Agreement shall be carried
system-wide in the Franchise Area, and shall be provided on the Basic Service tier unless
otherwise agreed to by the parties.
(C) The technical quality of the PEG Access Channels shall not be lower than the
quality of other Channels on the same tier of service, at the same technical quality that
programming is provided to Grantee by the City or its Designated Access Provider
(D) Grantee shall have the right to temporarily use any Channel, or portion thereof,
which is allocated under this Section for Public, Educational, or Governmental Access use,within
sixty (60) days after a written request for such use is submitted to City, if such Channel is not
"fully utilized" as defined herein. A Channel shall be considered fully utilized if substantially
unduplicated programming is delivered over it more than an average of 38 hours per week over a
six(6)month period. Programming that is repeated on an Access Channel up to two times per day
shall be considered "unduplicated programming." Character-generated programming shall be
included for purposes of this subsection, but may be counted towards the total average hours only
with respect to one (1) Channel provided to City. If a Channel allocated for Public, Educational,
or Governmental Access use will be used by Grantee in accordance with the terms of this
subsection, the institution to which the Channel has been allocated shall have the right to require
the return of the Channel or portion thereof. City shall request return of such Channel space by
delivering written notice to Grantee stating that the institution is prepared to fully utilize the
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Channel, or portion thereof, in accordance with this subsection. In such event, the Channel or
portion thereof shall be returned to such institution within sixty (60) days after receipt by Grantee
of such written notice.
(E) Grantee may not exercise any editorial control over the content of programming
on the PEG Access Channels.
9.3 Relocation of Access Channels
Grantee shall provide City a minimum of sixty(60)days' notice, and use its best efforts to
provide one hundred and twenty (120) days' notice, prior to the time Public, Educational, and
Governmental Access Channel designations are changed.
9.4 Support for Access Costs
During the term of this Franchise Agreement, Grantee shall provide fifty cents($0.50) per
month per Residential Subscriber (the "PEG Contribution") to be used solely for capital costs
related to Public, Educational and Governmental Access as may be permitted by Applicable Law.
To address inflationary impacts on capital equipment or to evaluate whether the City's PEG Access
capital costs have reduced with time, the City and Grantee may meet no more than three times
after the Effective Date to discuss whether to increase or to decrease the PEG Contribution. The
primary purpose of such meetings will be for the parties to review prior expenditures and future
capital plans to determine if the current PEG Contribution is reasonably appropriate to meet future
needs. The City and Grantee may suggest to each other, based upon their own assessments of
reasonable past practices and future anticipated needs, whether the current level of PEG
Contribution is appropriate. If either party believes that the PEG Contribution should be modified
in a reasonable amount to address such future needs the parties shall share all relevant information
supporting their positions and negotiate in good faith to determine if the PEG Contribution should
be increased or decreased, and if so, in what amount. Such discussions regarding potential
adjustment to the PEG Contribution will be conducted pursuant to the Franchise amendment
procedures in Section 4.8 of this Franchise. Grantee shall make PEG Contribution payments
quarterly, following the effective date of this Franchise Agreement for the preceding quarter
ending March 31, June 30, September 30, and December 31. Each payment shall be due and
payable no later than thirty (30) days following the end of the quarter. City shall have sole
discretion to allocate the expenditure of such payments for any capital costs related to PEG Access.
The parties agree that this Franchise shall provide City discretion to utilize Access payments for
new internal network connections and enhancements to the City's existing network.
9.5 Access Support Not Franchise Fees
Grantee agrees that capital support for Access Costs arising from or relating to the
obligations set forth in this Section shall in no way modify or otherwise affect Grantee's obligations
to pay Franchise Fees to City. Grantee agrees that although the sum of Franchise Fees plus the
payments set forth in this Section may total more than five percent (5%) of Grantee's Gross
Revenues in any 12-month period, the additional commitments shall not be offset or otherwise
credited in any way against any Franchise Fee payments under this Franchise Agreement so long
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as such support is used for capital Access purposes consistent with this Franchise and federal law.
9.6 Change In Technology
In the event Grantee makes any change in the Cable System and related equipment and
Facilities or in Grantee's signal delivery technology, which directly or indirectly affects the signal
quality or transmission of Access services or programming, Grantee shall at its own expense take
necessary technical steps or provide necessary technical assistance, including the acquisition of all
necessary equipment, and full training of City's Access personnel to ensure that the capabilities of
Access services are not diminished or adversely affected by such change. If the City implements
a new video delivery technology that is currently offered and can be accommodated on the
Grantee's local Cable System then the same provisions above shall apply. If the City implements
a new video delivery technology that is not currently offered on and/or that cannot be
accommodated by the Grantee's local Cable System, then the City shall be responsible for
acquiring all necessary equipment,facilities,technical assistance, and training to deliver the signal
to the Grantee's headend for distribution to subscribers.
9.7 Technical Quality
Grantee shall maintain all upstream and downstream Access services and Channels on its
side of the demarcation point at the same level of technical quality and reliability required by this
Franchise Agreement and all other applicable laws, rules and regulations for Residential
Subscriber Channels. Grantee shall provide routine maintenance for all transmission equipment
on its side of the demarcation point, including modulators, decoders, multiplex equipment, and
associated cable and equipment necessary to carry a quality signal to and from City's facilities for
the Access Channels provided under this Franchise Agreement. Grantee shall also provide, if
requested in advance by the City, advice and technical expertise regarding the proper operation
and maintenance of transmission equipment on the City's side of the demarcation point. The City
shall be responsible for all initial and replacement costs of all modulator and demodulator
equipment. The City shall also be responsible, at its own expense, to replace any of the Grantee's
equipment that is damaged by the gross negligence or intentional acts of City staff. The Grantee
shall be responsible, at its own expense,to replace any of the Grantee's equipment that is damaged
by the gross negligence or intentional acts of Grantee's staff. The City will be responsible for the
cost of repairing and/or replacing any PEG Access transmission equipment that Grantee maintains
that is used exclusively for transmission of the City's and/or its Designated Access Providers'
Access programming.
9.8 Return Lines/Access Origination
(A) Grantee shall continuously maintain the return lines previously constructed to 1
City Hall Place Pueblo, CO 81004 and 900 W Orman Ave. Pueblo, CO 81004, throughout the
Term of the Franchise, in order to enable the distribution of Access programming to Residential
Subscribers on the Access Channels; provided however that Grantee's maintenance obligations
with respect to either of these locations shall cease if a location is no longer used in the future by
the City to originate Access programming.
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(B) Grantee shall construct and maintain new Fiber Optic return lines to the Headend
from production facilities of new or relocated Designated Access Providers delivering Access
programming to Residential Subscribers as requested in writing by the City. All actual
construction costs incurred by Grantee from the nearest interconnection point to the Designated
Access Provider shall be paid by the City or the Designated Access Provider. New return lines
shall be completed within one (1) year from the request of the City or its Designated Access
Provider, or as otherwise agreed to by the parties. If an emergency situation necessitates
movement of production facilities to a new location, the parties shall work together to complete
the new return line as soon as reasonably possible.
SECTION 10. GENERAL RIGHT-OF-WAY USE AND CONSTRUCTION
10.1 Right to Construct
Subject to Applicable Law, regulations, rules, resolutions and ordinances of the City and
the provisions of this Franchise, Grantee may perform all construction in the Rights-of-Way for
any facility needed for the maintenance or extension of Grantee's Cable System.
10.2 Right-of-Way Meetings
Grantee will regularly attend and participate in meetings of the City, of which the Grantee
is made aware, regarding Right-of-Way issues that may impact the Cable System.
10.3 Joint Trenching/Boring Meetings
Grantee will regularly attend and participate in planning meetings of the City, of which the
Grantee is made aware, to anticipate joint trenching and boring. Whenever it is possible and
reasonably practicable to joint trench or share bores or cuts, Grantee shall work with other
providers, licensees, permittees, and franchisees so as to reduce so far as possible the number of
Right-of-Way cuts within the City.
10.4 General Standard
All work authorized and required hereunder shall be done in a safe, thorough and
workmanlike manner. All installations of equipment shall be permanent in nature, durable and
installed in accordance with good engineering practices.
10.5 Permits Required for Construction
Prior to doing any work in the Right-of Way or other public property, Grantee shall apply
for, and obtain, appropriate permits from the City. As part of the permitting process,the City may
impose such conditions and regulations as are necessary for the purpose of protecting any
structures in such Rights-of-Way, proper restoration of such Rights-of-Way and structures, the
protection of the public, and the continuity of pedestrian or vehicular traffic. Such conditions may
also include the provision of a construction schedule and maps showing the location of the facilities
to be installed in the Right-of-Way. Grantee shall pay all applicable fees for the requisite City
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permits received by Grantee.
10.6 Emergency Permits
In the event that emergency repairs are necessary, Grantee shall immediately notify the
City of the need for such repairs. Grantee may initiate such emergency repairs, and shall apply for
appropriate permits within forty-eight (48) hours after discovery of the emergency.
10.7 Compliance with Applicable Codes
(A) City Construction Codes. Grantee shall comply with all applicable City
construction codes, including, without limitation, the Uniform Building Code and other building
codes, the Uniform Fire Code, the Uniform Mechanical Code, the Electronic Industries
Association Standard for Physical Location and Protection of Below-Ground Fiber Optic Cable
Plant, and zoning codes and regulations.
(B) Tower Specifications. Antenna supporting structures(towers)shall be designed for
the proper loading as specified by the Electronics Industries Association (EIA), as those
specifications may be amended from time to time. Antenna supporting structures (towers) shall
be painted, lighted, erected and maintained in accordance with all applicable rules and regulations
of the Federal Aviation Administration and all other applicable federal, State, and local codes or
regulations.
(C) Safety Codes. Grantee shall comply with all federal, State and City safety
requirements, rules, regulations, laws and practices, and employ all necessary devices as required
by Applicable Law during construction, operation and repair of its Cable System. By way of
illustration and not limitation, Grantee shall comply with the National Electric Code, National
Electrical Safety Code and Occupational Safety and Health Administration (OSHA) Standards.
10.8 GIS Mapping
Grantee shall comply with any generally applicable ordinances, rules and regulations of
the City regarding geographic information mapping systems for users of the Rights-of-Way.
10.9 Minimal Interference
Work in the Right-of-Way, on other public property, near public property, or on or near
private property shall be done in a manner that causes the least interference with the rights and
reasonable convenience of property owners and residents. Grantee's Cable System shall be
constructed and maintained in such manner as not to interfere with sewers, water pipes, or any
other property of the City, or with any other pipes, wires, conduits, pedestals, structures, or other
facilities that may have been laid in the Rights-of-Way by, or under, the City's authority. The
Grantee's Cable System shall be located, erected and maintained so as not to endanger or interfere
with the lives of Persons, or to interfere with new improvements the City may deem proper to
make or to unnecessarily hinder or obstruct the free use of the Rights-of-Way or other public
property, and shall not interfere with the travel and use of public places by the public during the
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construction, repair, operation or removal thereof, and shall not obstruct or impede traffic. In the
event of such interference, the City may require the removal or relocation of Grantee's lines,
cables, equipment and other appurtenances from the property in question at Grantee's expense.
10.10 Prevent Injury/Safety
Grantee shall provide and use any equipment and facilities necessary to control and carry
Grantee's signals so as to prevent injury to the City's property or property belonging to any Person.
Grantee, at its own expense, shall repair, renew, change and improve its facilities to keep them in
good repair, and safe and presentable condition. All excavations made by Grantee in the Rights-
of-Way shall be properly safeguarded for the prevention of accidents by the placement of adequate
barriers, fences or boarding, the bounds of which, during periods of dusk and darkness, shall be
clearly designated by warning lights.
10.11 Hazardous Substances
(A) Grantee shall comply with any and all Applicable Laws, statutes, regulations and
orders concerning hazardous substances relating to Grantee's Cable System in the Rights-of-Way.
(B) Upon reasonable notice to Grantee, the City may inspect Grantee's facilities in the
Rights-of-Way to determine if any release of hazardous substances has occurred, or may occur,
from or related to Grantee's Cable System. In removing or modifying Grantee's facilities as
provided in this Franchise, Grantee shall also remove all residue of hazardous substances related
thereto.
(C) Grantee agrees to indemnify the City against any claims, costs, and expenses, of
any kind, whether direct or indirect, incurred by the City arising out of a release of hazardous
substances caused by Grantee's Cable System.
10.12 Locates
Prior to doing any work in the Right-of-Way, Grantee shall give appropriate notices to the
City and to the notification association established in C.R.S. Section 9-1.5-105, as such may be
amended from time to time.
Within forty-eight (48) hours after any City bureau or franchisee, licensee or permittee
notifies Grantee of a proposed Right-of-Way excavation, Grantee shall, at Grantee's expense:
(A) Mark on the surface all of its located underground facilities within the area of the
proposed excavation;
(B) Notify the excavator of any unlocated underground facilities in the area of the
proposed excavation; or
(C) Notify the excavator that Grantee does not have any underground facilities in the
vicinity of the proposed excavation.
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10.13 Notice to Private Property Owners
Grantee shall give notice to private property owners of work on or adjacent to private
property in accordance with the City's Customer Service Standards, as the same may be amended
from time to time by the City Council acting by Ordinance or resolution.
10.14 Underground Construction and Use of Poles
(A) When required by general ordinances, resolutions, regulations or rules of the City
or applicable State or federal law,Grantee's Cable System shall be placed underground at Grantee's
expense unless funding is generally available for such relocation to all users of the Rights-of-Way.
Placing facilities underground does not preclude the use of ground-mounted appurtenances.
(B) Where electric, telephone, and other above-ground utilities are installed
underground at the time of Cable System construction, or when all such wiring is subsequently
placed underground, all Cable System lines shall also be placed underground with other wireline
service at no expense to the City or Subscribers unless funding is generally available for such
relocation to all users of the Rights-of-Way. Related Cable System equipment, such as pedestals,
must be placed in accordance with the City's applicable code requirements and rules. In areas
where either electric or telephone utility wiring is aerial, the Grantee may install aerial cable,
except when a property owner or resident requests underground installation and agrees to bear the
additional cost in excess of aerial installation.
(C) The Grantee shall utilize existing poles and conduit wherever possible.
(D) In the event Grantee cannot obtain the necessary poles and related facilities
pursuant to a pole attachment agreement, and only in such event,then it shall be lawful for Grantee
to make all needed excavations in the Rights-of-Way for the purpose of placing, erecting, laying,
maintaining, repairing, and removing poles, supports for wires and conductors, and any other
facility needed for the maintenance or extension of Grantee's Cable System. All poles of Grantee
shall be located as designated by the proper City authorities.
(E) This Franchise does not grant, give or convey to the Grantee the right or privilege
to install its facilities in any manner on specific utility poles or equipment of the City or any other
Person. Copies of agreements for the use of poles, conduits or other utility facilities must be
provided upon request by the City.
(F) The Grantee and the City recognize that situations may occur in the future where
the City may desire to place its own cable or conduit for Fiber Optic cable in trenches or bores
opened by the Grantee. The Grantee agrees to cooperate with the City in any construction by the
Grantee that involves trenching or boring, provided that the City has first notified the Grantee in
some manner that it is interested in sharing the trenches or bores in the area where the Grantee's
construction is occurring. The Grantee shall allow the City to lay its cable, conduit and Fiber
Optic cable in the Grantee's trenches and bores,provided the City shares in the cost ofthe trenching
and boring on the same terms and conditions as the Grantee at that time shares the total cost of
trenches and bores. The City shall be responsible for maintaining its respective cable, conduit and
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Fiber Optic cable buried in the Grantee's trenches and bores under this paragraph.
10.15 Undergrounding of Multiple Dwelling Unit Drops
In cases of single site Multiple Dwelling Units, Grantee shall minimize the number of
individual aerial drop cables by installing multiple drop cables underground between the pole and
Multiple Dwelling Unit where determined to be technologically feasible in agreement with the
owners and/or owner's association of the Multiple Dwelling Units.
10.16 Burial Standards
(A) Depths. Unless otherwise required by law, Grantee, and its contractors, shall
comply with the following burial depth standards. In no event shall Grantee be required to bury
its cable deeper than electric or gas facilities, or existing telephone facilities in the same portion of
the Right-of-Way, so long as those facilities have been buried in accordance with Applicable Law:
Underground cable drops from the curb shall be buried at a minimum depth of
twelve (12) inches, unless a sprinkler system or other construction concerns
preclude it, in which case, underground cable drops shall be buried at a depth of at
least six(6) inches.
Feeder lines shall be buried at a minimum depth of eighteen (18) inches.
Trunk lines shall be buried at a minimum depth of thirty-six (36) inches.
Fiber Optic cable shall be buried at a minimum depth of thirty-six(36) inches.
In the event of a conflict between this subsection and the provisions of any customer service
standard, this subsection shall control.
(B) Timeliness. Cable drops installed by Grantee to residences shall be buried
according to these standards within one calendar week of initial installation, or at a time mutually-
agreed upon between the Grantee and the Subscriber. When freezing surface conditions prevent
Grantee from achieving such timetable, Grantee shall apprise the Subscriber of the circumstances
and the revised schedule for burial, and shall provide the Subscriber with Grantee's telephone
number and instructions as to how and when to call Grantee to request burial of the line if the
revised schedule is not met.
10.17 Cable Drop Bonding
Grantee shall ensure that all cable drops are properly bonded at the home, consistent with
applicable code requirements.
10.18 Prewiring
Any ordinance or resolution of the City which requires prewiring of subdivisions or other
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developments for electrical and telephone service shall be construed to include wiring for Cable
Systems.
10.19 Repair and Restoration of Property
(A) The Grantee shall protect public and private property from damage. If damage
occurs, the Grantee shall promptly notify the property owner within twenty-four (24) hours in
writing.
(B) Whenever Grantee disturbs or damages any Right-of-Way,other public property or
any private property, Grantee shall promptly restore the Right-of-Way or property to at least its
prior condition, normal wear and tear excepted, at its own expense.
(C) Rights-of-Way and Other Public Property. Grantee shall warrant any restoration
work performed by or for Grantee in the Right-of-Way or on other public property in accordance
with Applicable Law. If restoration is not satisfactorily performed by the Grantee within a
reasonable time, the City may, after prior notice to the Grantee, or without notice where the
disturbance or damage may create a risk to public health or safety, cause the repairs to be made
and recover the cost of those repairs from the Grantee. Within thirty (30) days of receipt of an
itemized list of those costs, including the costs of labor,materials and equipment,the Grantee shall
pay the City.
(D) Private Property. Upon completion of the work which caused any disturbance or
damage,Grantee shall promptly commence restoration of private property,and will use best efforts
to complete the restoration within seventy-two (72) hours, considering the nature of the work that
must be performed. Grantee shall also perform such restoration in accordance with the City's
Customer Service Standards, as the same may be amended from time to time by the City Council
acting by ordinance or resolution.
10.20 Acquisition of Facilities
Upon Grantee's acquisition of Cable System-related facilities in any City Right-of-Way, or
upon the addition to the City of any area in which Grantee owns or operates any such facility,
Grantee shall, at the City's request, submit to the City a statement describing all such facilities
involved, whether authorized by franchise, permit, license or other prior right, and specifying the
location of all such facilities to the extent Grantee has possession of such information. Such Cable
System-related facilities shall immediately be subject to the terms of this Franchise.
10.21 Discontinuing Use/Abandonment of Cable System Facilities
Whenever Grantee intends to discontinue using any facility within the Rights-of-Way,
Grantee shall submit for the City's approval a complete description of the facility and the date on
which Grantee intends to discontinue using the facility. Grantee may remove the facility or request
that the City permit it to remain in place. Notwithstanding Grantee's request that any such facility
remain in place, the City may require Grantee to remove the facility from the Right-of-Way or
modify the facility to protect the public health,welfare,safety,and convenience,or otherwise serve
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the public interest. The City may require Grantee to perform a combination of modification and
removal of the facility. Grantee shall complete such removal or modification in accordance with
a schedule set by the City. Until such time as Grantee removes or modifies the facility as directed
by the City, or until the rights to and responsibility for the facility are accepted by another Person
having authority to construct and maintain such facility, Grantee shall be responsible for all
necessary repairs and relocations of the facility, as well as maintenance of the Right-of-Way, in
the same manner and degree as if the facility were in active use,and Grantee shall retain all liability
for such facility. If Grantee abandons its facilities, the City may choose to use such facilities for
any purpose whatsoever including, but not limited to, Access purposes.
10.22 Movement of Cable System Facilities For City Purposes
The City shall have the right to require Grantee to relocate, remove, replace, modify or
disconnect Grantee's facilities and equipment located in the Rights-of-Way or on any other
property of the City for public purposes, in the event of an emergency, or when the public health,
safety or welfare requires such change (for example, without limitation, by reason of traffic
conditions, public safety, Right-of-Way vacation, Right-of-Way construction, change or
establishment of Right-of-Way grade, installation of sewers, drains, gas or water pipes, or any
other types of structures or improvements by the City for public purposes). Such work shall be
performed at the Grantee's expense. Except during an emergency, the City shall provide
reasonable notice to Grantee, not to be less than sixty(60)business days, and allow Grantee with
the opportunity to perform such action. In the event of any capital improvement project exceeding
$500,000 in expenditures by the City which requires the removal, replacement, modification or
disconnection of Grantee's facilities or equipment, the City shall provide at least one hundred
twenty(120)days' written notice to Grantee. Following notice by the City, Grantee shall relocate,
remove, replace, modify or disconnect any of its facilities or equipment within any Right-of-Way,
or on any other property of the City. If the City requires Grantee to relocate its facilities located
within the Rights-of-Way, the City shall make a reasonable effort to provide Grantee with an
alternate location within the Rights-of-Way. If funds are generally made available to users of the
Rights-of-Way for such relocation, Grantee shall be entitled to its pro rata share of such funds.
If the Grantee fails to complete this work within the time prescribed and to the City's
satisfaction,the City may cause such work to be done and bill the cost of the work to the Grantee,
including all costs and expenses incurred by the City due to Grantee's delay. In such event, the
City shall not be liable for any damage to any portion of Grantee's Cable System. Within thirty
(30)days of receipt of an itemized list of those costs, the Grantee shall pay the City.
10.23 Movement of Cable System Facilities for Other Franchise Holders
If any removal,replacement,modification or disconnection of the Cable System is required
to accommodate the construction, operation or repair of the facilities or equipment of another City
franchise holder, Grantee shall, after at least thirty (30) days' advance written notice, take action
to effect the necessary changes requested by the responsible entity. Grantee may require that the
costs associated with the removal or relocation be paid by the benefited party.
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10.24 Temporary Changes for Other Permittees
At the request of any Person holding a valid permit and upon reasonable advance notice,
Grantee shall temporarily raise, lower or remove its wires as necessary to permit the moving of a
building,vehicle, equipment or other item. The expense of such temporary changes must be paid
by the permit holder, and Grantee may require a reasonable deposit of the estimated payment in
advance.
10.25 Reservation of City Use of Right-of-Way
Nothing in this Franchise shall prevent the City or public utilities owned, maintained or
operated by public entities other than the City from constructing sewers; grading,paving,repairing
or altering any Right-of-Way; laying down, repairing or removing water mains;or constructing or
establishing any other public work or improvement. All such work shall be done, insofar as
practicable,so as not to obstruct, injure or prevent the use and operation of Grantee's Cable System.
10.26 Tree Trimming
Grantee may prune or cause to be pruned, using proper pruning practices, any tree in the
City's Rights-of-Way which interferes with Grantee's Cable System. Grantee shall comply with
any general ordinance or regulations of the City regarding tree trimming. Except in emergencies,
Grantee may not prune trees at a point below thirty (30) feet above sidewalk grade until one (1)
week written notice has been given to the owner or occupant of the premises abutting the Right-
of-Way in or over which the tree is growing. The owner or occupant of the abutting premises may
prune such tree at his or her own expense during this one(1)week period. If the owner or occupant
fails to do so, Grantee may prune such tree at its own expense. For purposes of this subsection,
emergencies exist when it is necessary to prune to protect the public or Grantee's facilities from
imminent danger only.
10.27 Inspection of Construction and Facilities
The City may inspect any of Grantee's facilities, equipment or construction at any time
upon at least twenty-four(24) hours notice, or, in case of emergency, upon demand without prior
notice. The City shall have the right to charge generally applicable inspection fees therefore. If
an unsafe condition is found to exist, the City, in addition to taking any other action permitted
under Applicable Law,may order Grantee, in writing,to make the necessary repairs and alterations
specified therein forthwith to correct the unsafe condition by a time the City establishes. The City
has the right to correct, inspect, administer and repair the unsafe condition if Grantee fails to do
so, and to charge Grantee therefore.
10.28 Stop Work
(A) On notice from the City that any work is being performed contrary to the provisions
of this Franchise, or in an unsafe or dangerous manner as determined by the City, or in violation
of the terms of any applicable permit, laws, regulations, ordinances, or standards, the work may
immediately be stopped by the City.
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(B) The stop work order shall:
(1) Be in writing;
(2) Be given to the Person doing the work, or posted on the work site;
(3) Be sent to Grantee by overnight delivery at the address given herein;
(4) Indicate the nature of the alleged violation or unsafe condition; and
(5) Establish conditions under which work may be resumed.
10.29 Work of Contractors and Subcontractors
Grantee's contractors and subcontractors shall be licensed and bonded in accordance with
the City's ordinances, regulations and requirements. Work by contractors and subcontractors is
subject to the same restrictions, limitations and conditions as if the work were performed by
Grantee. Grantee shall be responsible for all work performed by its contractors and subcontractors
and others performing work on its behalf as if the work were performed by it,and shall ensure that
all such work is performed in compliance with this Franchise and other Applicable Law, and shall
be jointly and severally liable for all damages and correcting all damage caused by them. It is
Grantee's responsibility to ensure that contractors, subcontractors or other Persons performing
work on Grantee's behalf are familiar with the requirements of this Franchise and other Applicable
Law governing the work performed by them.
SECTION 11. CABLE SYSTEM,TECHNICAL STANDARDS AND TESTING
11.1 Subscriber Network
(A) Grantee's Cable System shall be equivalent to or exceed technical characteristics
of a traditional HFC 750 MHz Cable System and provide Activated Two-Way capability. The
Cable System shall be capable of supporting video and audio. The Cable System shall deliver no
less than one hundred ten (110) Channels of digital video programming services to Subscribers,
provided that the Grantee reserves the right to use the bandwidth in the future for other uses based
on market factors.
(B) Equipment must be installed so that all closed captioning programming received by
the Cable System shall include the closed caption signal so long as the closed caption signal is
provided consistent with FCC standards. Equipment must be installed so that all local signals
received in stereo or with secondary audio tracks (broadcast and Access)are retransmitted in those
same formats.
(C) All construction shall be subject to the City's permitting process.
(D) Grantee and City shall meet, at the City's request, to discuss the progress of the
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design plan and construction.
(E) Grantee will take prompt corrective action if it finds that any facilities or equipment
on the Cable System are not operating as expected, or if it finds that facilities and equipment do
not comply with the requirements of this Franchise or Applicable Law.
(F) Grantee's construction decisions shall be based solely upon legitimate engineering
decisions and shall not take into consideration the income level of any particular community within
the Franchise Area.
11.2 Technology Assessment
(A) The City may notify Grantee on or after five (5)years after the Effective Date, that
the City will conduct a technology assessment of Grantee's Cable System. The technology
assessment may include, but is not be limited to, determining whether Grantee's Cable System
technology and performance are consistent with current technical practices and range and level of
services existing in the fifteen (15) largest U.S. cable systems owned and operated by Grantee's
Parent Corporation and/or Affiliates pursuant to franchises that have been renewed or extended
since the Effective Date.
(B) Grantee shall cooperate with the City to provide necessary non-confidential and
proprietary information upon the City's reasonable request as part of the technology assessment.
(C) At the discretion of the City, findings from the technology assessment may be
included in any proceeding commenced for the purpose of identifying future cable-related
community needs and interests undertaken by the City pursuant to 47 U.S.C. §546.
11.3 Standby Power
Grantee's Cable System Headend shall be capable of providing at least twelve (12) hours
of emergency operation. In addition, throughout the term of this Franchise, Grantee shall have a
plan in place, along with all resources necessary for implementing such plan, for dealing with
outages of more than four (4) hours. This outage plan and evidence of requisite implementation
resources shall be presented to the City no later than thirty(30)days following receipt of a request.
11.4 Technical Performance
The technical performance of the Cable System shall meet or exceed all applicable federal
(including, but not limited to, the FCC), State and local technical standards, as they may be
amended from time to time, regardless of the transmission technology utilized. The City shall
have the full authority permitted by Applicable Law to enforce compliance with these technical
standards.
11.5 Cable System Performance Testing
(A) Grantee shall, at Grantee's expense, perform the following tests on its Cable
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System:
(1) All tests required by the FCC;
(2) All other tests reasonably necessary to determine compliance with technical
standards adopted by the FCC at any time during the term of this Franchise; and
(3) All other tests as otherwise specified in this Franchise.
(B) At a minimum, Grantee's tests shall include:
(1) Cumulative leakage index testing of any new construction;
(2) Semi-annual compliance and proof of performance tests in conformance
with generally accepted industry guidelines;
(3) Tests in response to Subscriber complaints;
(4) Periodic monitoring tests, at intervals not to exceed six (6) months, of
Subscriber (field) test points, the Headend, and the condition of standby power supplies;
and
(5) Cumulative leakage index tests, at least annually, designed to ensure that
one hundred percent (100%) of Grantee's Cable System has been ground or air tested for
signal leakage in accordance with FCC standards.
(C) Grantee shall maintain written records of all results of its Cable System tests,
performed by or for Grantee. Copies of such test results will be provided to the City upon
reasonable request.
(D) If the FCC no longer requires proof of performance tests for Grantee's Cable System
during the term of this Franchise, Grantee agrees that it shall continue to conduct proof of
performance tests on the Cable System in accordance with the standards that were in place on the
Effective Date, or any generally applicable standards later adopted, at least once a year, and
provide written results of such tests to the City upon request.
(E) The FCC semi-annual testing is conducted in January/February and July/August of
each year. If the City contacts Grantee prior to the next test period (i.e., before December 15 and
June 15 respectively of each year), Grantee shall provide City with no less than seven (7) days
prior written notice of the actual date(s) for FCC compliance testing. If City notifies Grantee by
the December 15th and June 15th dates that it wishes to have a representative present during the
next test(s), Grantee shall cooperate in scheduling its testing so that the representative can be
present. Notwithstanding the above, all technical performance tests may be witnessed by
representatives of the City.
(F) Grantee shall be required to promptly take such corrective measures as are
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necessary to correct any performance deficiencies fully and to prevent their recurrence as far as
possible. Grantee's failure to correct deficiencies identified through this testing process shall be a
material violation of this Franchise. Sites shall be re-tested following correction.
11.6 Additional Tests
Where there exists other evidence which in the judgment of the City casts doubt upon 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 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 testing. Such report shall include the following
information:
(A) the nature of the complaint or problem which precipitated the special tests;
(B) the Cable System component tested;
(C) the equipment used and procedures employed in testing;
(D) the method, if any, in which such complaint or problem was resolved; and
(E) any other information pertinent to said tests and analysis which may be required.
SECTION 12. SERVICE AVAILABILITY, INTERCONNECTION AND SERVICE TO
SCHOOLS AND PUBLIC BUILDINGS
12.1 Service Availability
(A) In General. Except as otherwise provided in herein, Grantee shall provide Cable
Service within seven (7) days of a request by any Person within the City. For purposes of this
Section, a request shall be deemed made on the date of signing a service agreement, receipt of
funds by Grantee, receipt of a written request by Grantee or receipt by Grantee of a verified verbal
request. Except as otherwise provided herein, Grantee shall provide such service:
(1) With no line extension charge except as specifically authorized elsewhere
in this Franchise Agreement.
(2) At a non-discriminatory installation charge for a standard installation,
consisting of a 150 foot drop connecting to an inside wall for Residential Subscribers, with
additional charges for non-standard installations computed according to a non-discriminatory
methodology for such installations, adopted by Grantee and provided in writing to the City;
(3) At non-discriminatory monthly rates for Residential Subscribers.
(B) Service to Multiple Dwelling Units. Consistent with this Section 12.1,the Grantee
shall offer the individual units of a Multiple Dwelling Unit all Cable Services offered to other
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Dwelling Units in the City and shall individually wire units upon request of the property owner or
renter who has been given written authorization by the owner; provided, however, that any such
offering is conditioned upon the Grantee having legal access to said unit. The City acknowledges
that the Grantee cannot control the dissemination of particular Cable Services beyond the point of
demarcation at a Multiple Dwelling Unit.
(C) Customer Charges for Extensions of Service. Grantee agrees to extend its Cable
System to all persons living in areas with a residential density of thirty five(35)residences per mile of
Cable System plant. If the residential density is less than thirty five (35) residences per 5,280 cable-
bearing strand feet of trunk or distribution cable,service may be made available on the basis of a capital
contribution in aid of construction, including cost of material, labor and easements. For the purpose of
determining the amount of capital contribution in aid of construction to be borne by the Grantee and
customers in the area in which service may be expanded,the Grantee will contribute an amount equal
to the construction and other costs per mile,multiplied by a fraction whose numerator equals the actual
number of residences per 5,280 cable-bearing strand feet of its trunk or distribution cable and whose
denominator equals thirty five(35). Customers who request service hereunder will bear the remainder
of the construction and other costs on a pro rata basis. The Grantee may require that the payment of
the capital contribution in aid of construction borne by such potential customers be paid in advance.
12.2 Connection of Public Facilities
Grantee shall, at no cost to the City, provide one outlet of Basic Service to all City owned
and occupied buildings,schools and public libraries located in areas where Grantee provides Cable
Service, so long as these facilities are already served or are located within 150 feet of its Cable
System. For purposes of this subsection, "school" means all State-accredited K-12 public and
private schools. Such obligation to provide free Cable Service shall not extend to areas of City
buildings where the Grantee would normally enter into a commercial contract to provide such
Cable Service (e.g., golf courses, airport restaurants and concourses, and recreation center work
out facilities). Such Cable Service shall not be located in public waiting areas or used to entertain
the public nor shall they be used in a way that might violate copyright laws. Outlets of Basic
Service provided in accordance with this subsection may be used to distribute Cable Services
throughout such buildings, provided such distribution can be accomplished without causing Cable
System disruption and general technical standards are maintained. Such outlets may only be used
for lawful purposes. The Cable Service provided shall not be distributed beyond the originally
installed outlets without authorization from Grantee, which shall not be unreasonably withheld.
SECTION 13. FRANCHISE VIOLATIONS
13.1 Procedure for Remedying Franchise Violations
(A) If the City reasonably believes that Grantee has failed to perform any obligation
under this Franchise or has failed to perform in a timely manner, the City shall notify Grantee in
writing, stating with reasonable specificity the nature of the alleged default. Grantee shall have
thirty(30)days from the receipt of such notice to:
(1) respond to the City, contesting the City's assertion that a default has
occurred, and requesting a meeting in accordance with subsection (B), below;
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(2) cure the default; or,
(3) notify the City that Grantee cannot cure the default within the thirty (30)
days, because of the nature of the default. In the event the default cannot be cured within
thirty (30) days, Grantee shall promptly take all reasonable steps to cure the default and
notify the City in writing and in detail as to the exact steps that will be taken and the
projected completion date. In such case, the City may set a meeting in accordance with
subsection (B) below to determine whether additional time beyond the thirty (30) days
specified above is indeed needed, and whether Grantee's proposed completion schedule
and steps are reasonable.
(B) If Grantee does not cure the alleged default within the cure period stated above, or
by the projected completion date under subsection (A)(3), or denies the default and requests a
meeting in accordance with (A)(1), or the City orders a meeting in accordance with subsection
(A)(3),the City shall set a meeting to investigate said issues or the existence of the alleged default.
The City shall notify Grantee of the meeting in writing and such meeting shall take place no less
than thirty(30)days after Grantee's receipt of notice of the meeting. At the meeting,Grantee shall
be provided an opportunity to be heard and to present evidence in its defense.
(C) If, after the meeting, the City determines that a default exists, the City shall order
Grantee to correct or remedy the default or breach within fifteen (15) days or within such other
reasonable time frame as the City shall determine. In the event Grantee does not cure within such
time to the City's reasonable satisfaction, the City may:
(l) Withdraw an amount from the letter of credit as monetary damages;
(2) Recommend the revocation of this Franchise pursuant to the procedures in
subsection 13.2; or,
(3) Recommend any other legal or equitable remedy available under this
Franchise or any Applicable Law.
(D) The determination as to whether a violation of this Franchise has occurred shall be
within the discretion of the City, provided that any such final determination may be subject to
appeal to a court of competent jurisdiction under Applicable Law.
13.2 Revocation
(A) In addition to revocation in accordance with other provisions of this Franchise, the
City may revoke this Franchise and rescind all rights and privileges associated with this Franchise
in the following circumstances, each of which represents a material breach of this Franchise:
(1) If Grantee fails to perform any material obligation under this Franchise or
under any other agreement, ordinance or document regarding the City and Grantee;
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(2) If Grantee willfully fails for more than forty-eight (48) hours to provide
continuous and uninterrupted Cable Service;
(3) If Grantee attempts to evade any material provision of this Franchise or to
practice any fraud or deceit upon the City or Subscribers; or
(4) If Grantee becomes insolvent, or if there is an assignment for the benefit of
Grantee's creditors;
(5) If Grantee makes a material misrepresentation of fact in the application for
or negotiation of this Franchise.
(B) Following the procedures set forth in subsection 13.1 and prior to forfeiture or
termination of the Franchise,the City shall give written notice to the Grantee of its intent to revoke
the Franchise and set a date for a revocation proceeding. The notice shall set forth the exact nature
of the noncompliance.
(C) Any proceeding under the paragraph above shall be conducted by the City Council
and open to the public. Grantee shall be afforded at least forty-five (45) days prior written notice
of such proceeding.
(l) At such proceeding, Grantee shall be provided a fair opportunity for full
participation, including the right to be represented by legal counsel, to introduce evidence,
and to question witnesses. A complete verbatim record and transcript shall be made of
such proceeding and the cost shall be shared equally between the parties. The City Council
shall hear any Persons interested in the revocation, and shall allow Grantee, in particular,
an opportunity to state its position on the matter.
(2) Within ninety(90) days after the hearing, the City Council shall determine
whether to revoke the Franchise and declare that the Franchise is revoked and the letter of
credit forfeited;or if the breach at issue is capable of being cured by Grantee,direct Grantee
to take appropriate remedial action within the time and in the manner and on the terms and
conditions that the City Council determines are reasonable under the circumstances. If the
City determines that the Franchise is to be revoked, the City shall set forth the reasons for
such a decision and shall transmit a copy of the decision to the Grantee. Grantee shall be
bound by the City's decision to revoke the Franchise unless it appeals the decision to a
court of competent jurisdiction within fifteen (15) days of the date of the decision.
(3) Grantee shall be entitled to such relief as the Court may deem appropriate.
(4) The City Council may at its sole discretion take any lawful action which it
deems appropriate to enforce the City's rights under the Franchise in lieu of revocation of
the Franchise.
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13.3 Procedures in the Event of Termination or Revocation
(A) If this Franchise expires without renewal after completion of all processes available
under this Franchise and federal law or is otherwise lawfully terminated or revoked,the City may,
subject to Applicable Law:
(I) Allow Grantee to maintain and operate its Cable System on a month-to-
month basis or short-term extension of this Franchise for not less than six (6) months,
unless a sale of the Cable System can be closed sooner or Grantee demonstrates to the
City's satisfaction that it needs additional time to complete the sale; or
(2) Purchase Grantee's Cable System in accordance with the procedures set
forth in subsection 13.4, below.
(B) In the event that a sale has not been completed in accordance with subsections
(A)(1) and/or (A)(2) above, the City may order the removal of the above-ground Cable System
facilities and such underground facilities from the City at Grantee's sole expense within a
reasonable period of time as determined by the City. In removing its plant, structures and
equipment, Grantee shall refill,at is own expense, any excavation that is made by it and shall leave
all Rights-of-Way, public places and private property in as good condition as that prevailing prior
to Grantee's removal of its equipment without affecting the electrical or telephone cable wires or
attachments. The indemnification and insurance provisions and the letter of credit shall remain in
full force and effect during the period of removal, and Grantee shall not be entitled to, and agrees
not to request, compensation of any sort therefore.
(C) If Grantee fails to complete any removal required by subsection 13.3 (B) to the
City's satisfaction, after written notice to Grantee, the City may cause the work to be done and
Grantee shall reimburse the City for the costs incurred within thirty (30) days after receipt of an
itemized list of the costs, or the City may recover the costs through the letter of credit provided
by Grantee.
(D) The City may seek legal and equitable relief to enforce the provisions of this
Franchise.
13.4 Purchase of Cable System
(A) If at any time this Franchise is revoked,terminated,or not renewed upon expiration
in accordance with the provisions of federal law, the City shall have the option to purchase the
Cable System.
(B) The City may, at any time thereafter, offer in writing to purchase Grantee's Cable
System. Grantee shall have thirty (30) days from receipt of a written offer from the City within
which to accept or reject the offer.
(C) In any case where the City elects to purchase the Cable System, the purchase shall
be closed within one hundred twenty (120) days of the date of the City's audit of a current profit
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and loss statement of Grantee. The City shall pay for the Cable System in cash or certified funds,
and Grantee shall deliver appropriate bills of sale and other instruments of conveyance.
(D) For the purposes of this subsection, the price for the Cable System shall be
determined as follows:
(1) In the case of the expiration of the Franchise without renewal,at fair market
value determined on the basis of Grantee's Cable System valued as a going concern, but
with no value allocated to the Franchise itself. In order to obtain the fair market value, this
valuation shall be reduced by the amount of any lien, encumbrance, or other obligation of
Grantee which the City would assume.
(2) In the case of revocation for cause, the equitable price of Grantee's Cable
System.
13.5 Receivership and Foreclosure
(A) At the option of the City, subject to Applicable Law,this Franchise may be revoked
one hundred twenty (120) days after the appointment of a receiver or trustee to take over and
conduct the business of Grantee whether in a receivership, reorganization, bankruptcy or other
action or proceeding, unless:
(1) The receivership or trusteeship is vacated within one hundred twenty(120)
days of appointment; or
(2) The receivers or trustees have, within one hundred twenty (120) days after
their election or appointment, fully complied with all the terms and provisions of this
Franchise,and have remedied all defaults under the Franchise. Additionally,the receivers
or trustees shall have executed an agreement duly approved by the court having
jurisdiction, by which the receivers or trustees assume and agree to be bound by each and
every term, provision and limitation of this Franchise.
(B) If there is a foreclosure or other involuntary sale of the whole or any part of the
plant,property and equipment of Grantee,the City may serve notice of revocation on Grantee and
to the purchaser at the sale, and the rights and privileges of Grantee under this Franchise shall be
revoked thirty(30) days after service of such notice, unless:
(1) The City has approved the transfer of the Franchise, in accordance with the
procedures set forth in this Franchise and as provided by law; and
(2) The purchaser has covenanted and agreed with the City to assume and be
bound by all of the terms and conditions of this Franchise.
13.6 No Monetary Recourse Against the City
Grantee shall not have any monetary recourse against the City or its officers, officials,
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boards, commissions, agents or employees for any loss, costs, expenses or damages arising out of
any provision or requirement of this Franchise or the enforcement thereof, in accordance with the
provisions of applicable federal, State and local law. The rights of the City under this Franchise
are in addition to, and shall not be read to limit, any immunities the City may enjoy under federal,
State or local law.
13.7 Alternative Remedies
No provision of this Franchise shall be deemed to bar the right of the City to seek or obtain
judicial relief from a violation of any provision of the Franchise or any rule, regulation,
requirement or directive promulgated thereunder. Neither the existence of other remedies
identified in this Franchise nor the exercise thereof shall be deemed to bar or otherwise limit the
right of the City to recover monetary damages for such violations by Grantee,or to seek and obtain
judicial enforcement of Grantee's obligations by means of specific performance, injunctive relief
or mandate, or any other remedy at law or in equity.
13.8 Assessment of Monetary Damages
(A) The City may assess against Grantee monetary damages (i) up to five hundred
dollars ($500.00) per day for general construction delays, violations of PEG obligations or
payment obligations, (ii) up to two hundred fifty dollars ($250.00) per day for any other material
breaches, or (iii) up to one hundred dollars ($100.00) per day for defaults, and withdraw the
assessment from the letter of credit or collect the assessment as specified in this Franchise.
Damages pursuant to this Section shall accrue for a period not to exceed one hundred twenty(120)
days per violation proceeding. To assess any amount from the letter of credit, City shall follow
the procedures for withdrawals from the letter of credit set forth in the letter of credit and in this
Franchise. Such damages shall accrue beginning thirty (30) days following Grantee's receipt of
the notice required by subsection 13.1(A), or such later date if approved by the City in its sole
discretion, but may not be assessed until after the procedures in subsection 13.1 have been
completed.
(B) The assessment does not constitute a waiver by City of any other right or remedy it
may have under the Franchise or Applicable Law, including its right to recover from Grantee any
additional damages, losses, costs and expenses that are incurred by City by reason of the breach of
this Franchise.
13.9 Effect of Abandonment
If the Grantee abandons its Cable System during the Franchise term, or fails to operate its
Cable System in accordance with its duty to provide continuous service, the City, at its option,
may operate the Cable System; designate another entity to operate the Cable System temporarily
until the Grantee restores service under conditions acceptable to the City, or until the Franchise is
revoked and a new franchisee is selected by the City; or obtain an injunction requiring the Grantee
to continue operations. If the City is required to operate or designate another entity to operate the
Cable System, the Grantee shall reimburse the City or its designee for all reasonable costs,
expenses and damages incurred.
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13.10 What Constitutes Abandonment
The City shall be entitled to exercise its options in subsection 13.9 if:
(A) The Grantee fails to provide Cable Service in accordance with this Franchise over
a substantial portion of the Franchise Area for four(4)consecutive days, unless the City authorizes
a longer interruption of service; or
(B) The Grantee, for any period, willfully and without cause refuses to provide Cable
Service in accordance with this Franchise.
SECTION 14. FRANCHISE RENEWAL AND TRANSFER
14.1 Renewal
(A) The City and Grantee agree that any proceedings undertaken by the City that relate
to the renewal of the Franchise shall be governed by and comply with the provisions of Section
626 of the Cable Act, unless the procedures and substantive protections set forth therein shall be
deemed to be preempted and superseded by the provisions of any subsequent provision of federal
or State law.
(B) In addition to the procedures set forth in said Section 626(a), the City agrees to
notify Grantee of the completion of its assessments regarding the identification of future cable-
related community needs and interests, as well as the past performance of Grantee under the then
current Franchise term. Notwithstanding anything to the contrary set forth herein, Grantee and
City agree that at any time during the term of the then current Franchise, while affording the public
adequate notice and opportunity for comment, the City and Grantee may agree to undertake and
finalize negotiations regarding renewal of the then current Franchise and the City may grant a
renewal thereof. Grantee and City consider the terms set forth in this subsection to be consistent
with the express provisions of Section 626 of the Cable Act.
14.2 Transfer of Ownership or Control
(A) The Cable System and this Franchise shall not be sold,assigned,transferred, leased
or disposed of, either in whole or in part, either by involuntary sale or by voluntary sale, merger
or consolidation; nor shall title thereto, either legal or equitable, or any right, interest or property
therein pass to or vest in any Person or entity without the prior written consent of the City, which
consent shall be by the City Council, acting by ordinance/resolution.
(B) The Grantee shall promptly notify the City of any actual or proposed change in, or
transfer of,or acquisition by any other party of control of the Grantee. The word "control"as used
herein is not limited to majority stockholders but includes actual working control in whatever
manner exercised. Every change, transfer or acquisition of control of the Grantee shall make this
Franchise subject to cancellation unless and until the City shall have consented in writing thereto.
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(C) The parties to the sale or transfer shall make a written request to the City for its
approval of a sale or transfer and furnish all information required by law and the City.
(D) In seeking the City's consent to any change in ownership or control, the proposed
transferee shall indicate whether it:
(1) Has ever been convicted or held liable for acts involving deceit including
any violation of federal, State or local law or regulations, or is currently under an
indictment, investigation or complaint charging such acts;
(2) Has ever had a judgment in an action for fraud, deceit, or misrepresentation
entered against the proposed transferee by any court of competent jurisdiction;
(3) Has pending any material legal claim, lawsuit, or administrative proceeding
arising out of or involving a cable system or a broadband system;
(4) Is financially solvent, by submitting financial data including financial
statements that are audited by a certified public accountant who may also be an officer of
the transferee, along with any other data that the City may reasonably require; and
(5) Has the financial, legal and technical capability to enable it to maintain and
operate the Cable System for the remaining term of the Franchise.
(E) The City shall act by ordinance on the request within one hundred twenty (120)
days of the request, provided it has received all information required by this Franchise and/or by
Applicable Law. The City and the Grantee may by mutual agreement, at any time, extend the 120
day period. Subject to the foregoing, if the City fails to render a final decision on the request
within one hundred twenty(120)days, such request shall be deemed granted unless the requesting
party and the City agree to an extension of time.
(F) Within thirty (30) days of any transfer or sale, if approved or deemed granted by
the City, Grantee shall file with the City a copy of the deed, agreement, lease or other written
instrument evidencing such sale or transfer of ownership or control, certified and sworn to as
correct by Grantee and the transferee, and the transferee shall file its written acceptance agreeing
to be bound by all of the provisions of this Franchise, subject to Applicable Law. In the event of
a change in control, in which the Grantee is not replaced by another entity, the Grantee will
continue to be bound by all of the provisions of the Franchise, subject to Applicable Law, and will
not be required to file an additional written acceptance.
(G) In reviewing a request for sale or transfer, the City may inquire into the legal,
technical and financial qualifications of the prospective controlling party or transferee,and Grantee
shall assist the City in so inquiring. The City may condition said sale or transfer upon such terms
and conditions as it deems reasonably appropriate, in accordance with Applicable Law.
(H) Notwithstanding anything to the contrary in this subsection, the prior approval of
the City shall not be required for any sale, assignment or transfer of the Franchise or Cable System
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to an entity controlling, controlled by or under the same common control as Grantee,provided that
the proposed assignee or transferee must show financial responsibility as may be determined
necessary by the City and must agree in writing to comply with all of the provisions of the
Franchise. Further,Grantee may pledge the assets of the Cable System for the purpose of financing
without the consent of the City; provided that such pledge of assets shall not impair or mitigate
Grantee's responsibilities and capabilities to meet all of its obligations under the provisions of this
Franchise.
SECTION 15. SEVERABILITY
If any Section, subsection, paragraph, term or provision of this Franchise is determined to
be illegal, invalid or unconstitutional by any court or agency of competent jurisdiction, such
determination shall have no effect on the validity of any other Section, subsection, paragraph,term
or provision of this Franchise, all of which will remain in full force and effect for the term of the
Franchise.
SECTION 16. MISCELLANEOUS PROVISIONS
16.1 Preferential or Discriminatory Practices Prohibited
NO DISCRIMINATION IN EMPLOYMENT. In connection with the performance of
work under this Franchise,the Grantee agrees not to refuse to hire, discharge, promote or demote,
or discriminate in matters of compensation against any Person otherwise qualified, solely because
of race, color, religion, national origin, gender, age, military status, sexual orientation, marital
status, or physical or mental disability; and the Grantee further agrees to insert the foregoing
provision in all subcontracts hereunder. Throughout the term of this Franchise, Grantee shall fully
comply with all equal employment or non-discrimination provisions and requirements of federal,
State and local laws, and in particular, FCC rules and regulations relating thereto.
16.2 Notices
Throughout the term of the Franchise, each party shall maintain and file with the other a
local address for the service of notices by mail.All notices shall be sent overnight delivery postage
prepaid to such respective address and such notices shall be effective upon the date of mailing.
These addresses may be changed by the City or the Grantee by written notice at any time. At the
Effective Date of this Franchise:
Grantee's address shall be:
Comcast of Colorado IV, LLC
8000 E. Iliff Ave.
Denver, CO 80231
Attn: Government Affairs Dept.
The City's address shall be:
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City of Pueblo
1 City Hall Place, 2nd Floor
Pueblo, CO 81004
Attn: City Manager
16.3 Descriptive Headings
The headings and titles of the Sections and subsections of this Franchise are for reference
purposes only, and shall not affect the meaning or interpretation of the text herein.
16.4 Publication Costs to be Borne by Grantee
Grantee shall reimburse the City for all costs incurred in publishing this Franchise, if such
publication is required.
16.5 Binding Effect
This Franchise shall be binding upon the parties hereto, their permitted successors and
assigns.
16.6 No Joint Venture
Nothing herein shall be deemed to create a joint venture or principal-agent relationship
between the parties, and neither party is authorized to, nor shall either party act toward third
Persons or the public in any manner which would indicate any such relationship with the other.
16.7 Waiver
The failure of the City at any time to require performance by the Grantee of any provision
hereof shall in no way affect the right of the City hereafter to enforce the same. Nor shall the
waiver by the City of any breach of any provision hereof be taken or held to be a waiver of any
succeeding breach of such provision, or as a waiver of the provision itself or any other provision.
16.8 Reasonableness of Consent or Approval
Whenever under this Franchise "reasonableness" is the standard for the granting or denial
of the consent or approval of either party hereto, such party shall be entitled to consider public and
governmental policy,moral and ethical standards as well as business and economic considerations.
16.9 Entire Agreement
This Franchise and all Exhibits represent the entire understanding and agreement between
the parties hereto with respect to the subject matter hereof and supersede all prior oral negotiations
between the parties.
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16.10 Jurisdiction
Venue for any judicial dispute between the City and Grantee arising under or out of this
Franchise shall be in Pueblo County District Court,Colorado,or in the United States District Court
in Denver.
IN WITNESS WHEREOF, this Franchise is signed in the name of the City of Pueblo,
Colorado this 13th_day of June, 2016_.
ATTEST: CITY OF PUEBLO COLO t _ i i•
City • rk President of the City Council
APPROVED AS TO FORM:
-00‘;4A,a)/ 1-"‹7611/"-e-4--<'
City Attorney
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Accepted and approved this 17 `day of i , 2016.
51/Si
ACKNOWLEDGED: COMCAST OF COLORADO IV, LLC
•
/ � j
u.lic Notary / Name/Title:
LAURA HUFFMAN Matthew Chambers
VP Finance and Accounting
NOTARY PUBLIC
Accounting
STATE OF COLORADO
NOTARY ID 20144010926
COMMISSION EXPIRES MAR.10,2018
52
EXHIBIT A:
CUSTOMER SERVICE STANDARDS
Colorado Communications and Utility Alliance
Customer Service Standards
(revised June 18, 2013)
Introduction
The Colorado Communications and Utilities Alliance ("CCUA")has created the following
Customer Service Standards (the "Standards") for distribution and adoption by Members. The
purpose of the Standards is to establish uniform requirements for the quality of service cable
operators are expected to offer their customers in the metropolitan area. The Standards are
subject to change from time to time.
The Franchise Authority encourages the Cable Operator to exceed these standards in their day-
to-day operations and as such, understands that the Cable Operator may modify their operations
in exceeding these standards.
The Standards incorporate the Customer Service Obligations published by the Federal
Communications Commission (Section 76.309), April, 1993 and customer service standards of
cable television service providers operating in Colorado. Based upon the CCUA's assessment of
the needs of citizens in its members'jurisdictions, the CCUA adopted, modified and created
standards specially tailored to members of the CCUA communities.
The Standards require the cable operator, in certain circumstances, to post a security fund or
letter of credit ensuring Customer Service. The security fund is to be used when the cable
company fails to respond to a citizen complaint that the franchising authority determines is valid,
and to provide a mechanism by which to impose remedies for noncompliance. It is the sincere
hope and intention of the CCUA that the security fund will never need to be drawn upon;
however, the CCUA believes that some enforcement measures are necessary.
COLORADO COMMUNICATIONS AND UTILITIES ALLIANCE
CUSTOMER SERVICE STANDARDS
I. POLICY
The Cable Operator should resolve citizen complaints without delay and interference from the
Franchising Authority.
Where a given complaint is not addressed by the Cable Operator to the citizen's satisfaction, the
Franchising Authority should intervene. In addition, where a pattern of unremedied complaints
or noncompliance with the Standards is identified, the Franchising Authority should prescribe a
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cure and establish a reasonable deadline for implementation of the cure. If the noncompliance is
not cured within established deadlines, monetary sanctions should be imposed to encourage
compliance and deter future non-compliance.
These Standards are intended to be of general application, and are expected to be met under
normal operating conditions; however, the Cable Operator shall be relieved of any obligations
hereunder if it is unable to perform due to a region-wide natural emergency or in the event of
force majeure affecting a significant portion of the franchise area. The Cable Operator is free to
exceed these Standards to the benefit of its Customers and such shall be considered performance
for the purposes of these Standards.
These Standards supercede any contradictory or inconsistent provision in federal, state or local
law (Source: 47 U.S.C. § 552(a)(1)and (d)), provided, however, that any provision in federal,
state or local law, or in any original franchise agreement or renewal agreement, that imposes a
higher obligation or requirement than is imposed by these Standards, shall not be considered
contradictory or inconsistent with these Standards. In the event of a conflict between these
Standards and a Franchise Agreement, the Franchise Agreement shall control.
These Standards apply to the provision of any Cable Service, provided by a Cable Operator over
a Cable System, within the City of Pueblo.
II. DEFINITIONS
When used in these Customer Service Standards (the "Standards"),the following words,phrases,
and terms shall have the meanings given below.
"Adoption" shall mean the process necessary to formally enact the Standards within the
Franchising Authority's jurisdiction under applicable ordinances and laws.
"Affiliate" shall mean any person or entity that is owned or controlled by, or under common
ownership or control with, a Cable Operator, and provides any Cable Service or Other Service.
"Applicable Law" means, with respect to these standards and any Cable Operator's privacy
policies, any statute, ordinance,judicial decision, executive order or regulation having the force
and effect of law, that determines the legal standing of a case or issue.
"Cable Operator" shall mean any person or group of persons (A)who provides Cable Service
over a Cable System and directly or through one or more affiliates owns a significant interest in
such cable system, or(B) who otherwise controls or is responsible for, through any arrangement,
the management and operation of such a Cable System. Source: 47 U.S.C. § 522(5).
"Cable Service" shall mean (A)the one-way transmission to subscribers of(i) video
programming, or(ii)other programming service, and (B) subscriber interaction, if any, which is
required for the selection or use of such video programming or other programming service.
Source: 47 U.S.C. § 522(6). For purposes of this definition, "video programming" is
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programming provided by, or generally considered comparable to programming provided by a
television broadcast station. Source: 47 U.S.C. § 522(20). "Other programming service" is
information that a Cable Operator makes available to all subscribers generally. Source: 47 U.S.C.
§ 522(14).
"Cable System"shall mean 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
televisions signals of one or more television broadcast stations, or(B) a facility that serves
subscribers without using any public right of way. Source: 47 U.S.C. § 522(7).
"City" shall mean the City of Pueblo, Colorado.
"Colorado Communications and Utilities Alliance" or "CCUA" shall mean an association
comprised primarily of local governmental subdivisions of the State of Colorado, or any
successor entity. The CCUA may, on behalf of its members, be delegated the authority to review,
investigate or otherwise take some related role in the administration and/or enforcement of any
functions under these Standards.
"Contractor" shall mean a person or entity that agrees by contract to furnish materials or perform
services for another at a specified consideration.
"Customer" shall mean any person who receives any Cable Service from a Cable Operator.
"Customer Service Representative" (or "CSR") shall mean any person employed with or under
contract or subcontract to a Cable Operator to assist, or provide service to, customers, whether by
telephone,writing service or installation orders, answering customers' questions in person,
receiving and processing payments, or performing any other customer service-related tasks.
"Escalated complaint" shall mean a complaint that is referred to a Cable Operator by the
Franchising Authority.
"Franchising Authority" shall mean the City(County or Town).
"Necessary" shall mean required or indispensable.
"Non-cable-related purpose" shall mean any purpose that is not necessary to render or conduct a
legitimate business activity related to a Cable Service or Other Service provided by a Cable
Operator to a Customer. Market research, telemarketing, and other marketing of services or
products that are not related to a Cable Service or Other Service provided by a Cable Operator to
a Customer shall be considered Non-cable-related purposes.
"Normal business hours" shall mean those hours during which most similar businesses in the
community are open to serve customers. In all cases, "normal business hours" must include at
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least some evening hours one night per week, and include some weekend hours. Source: 47
C.F.R. § 76.309.
"Normal operating conditions" shall mean those service conditions which are within the control
of a Cable Operator. Conditions which are not within the control of a Cable Operator include,
but are not necessarily limited to, natural disasters, civil disturbances, power outages, telephone
network outages, and severe or unusual weather conditions. Conditions which are ordinarily
within the control of a Cable Operator include, but are not necessarily limited to, special
promotions, pay-per-view events, rate increases, regular peak or seasonal demand periods and
maintenance or upgrade to the Cable System.
"Other Service(s)" shall mean any wire or radio communications service provided using any of
the facilities of a Cable Operator that are used in the provision of Cable Service.
"Personally Identifiable Information" shall mean specific information about an identified
Customer, including, but not be limited to, a Customer's (a) login information for the use of Cable
Service and management of a Customer's Cable Service account, (b) extent of viewing of video
programming or Other Services, (c) shopping choices, (d) interests and opinions, (e) energy uses,
(0 medical information, (g) banking data or information, or (h) any other personal or private
information. "Personally Identifiable Information" shall not mean any aggregate information
about Customers which does not identify particular persons, or information gathered by a Cable
Operator necessary to install, repair or service equipment or Cable System facilities at a
Customer's premises.
"Service interruption" or"interruption" shall mean (i) the loss or substantial impairment of
picture and/or sound on one or more cable television channels.
"Service outage" or"outage" shall mean a loss or substantial impairment in reception on all
channels.
"Subcontractor" shall mean a person or entity that enters into a contract to perform part or all of
the obligations of another's contract.
"Writing" or"written" as the term applies to notification shall include electronic
communications.
Any terms not specifically defined in these Standards shall be given their ordinary meaning, or
where otherwise defined in applicable federal law, such terms shall be interpreted consistent with
those definitions.
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III. CUSTOMER SERVICE
A. Courtesy
Cable Operator employees, contractors and subcontractors shall be courteous, knowledgeable
and helpful and shall provide effective and satisfactory service in all contacts with customers.
B.Accessibility
1. A Cable Operator shall provide customer service centers/business offices ("Service Centers")
which are conveniently located, and which are open during Normal Business Hours. Service
Centers shall be fully staffed with Customer Service Representatives offering the following
services to Customers who come to the Service Center: bill payment, equipment exchange,
processing of change of service requests, and response to Customer inquiries and request.
Unless otherwise requested by the City/County/Town, a Cable Operator shall post a sign at each
Service Center, visible from the outside of the Service Center, advising Customers of its hours of
operation and of the telephone number at which to contact the Cable Operator if the Service
Center is not open at the times posted.
The Cable Operator shall use commercially reasonable efforts to implement and promote "self-
help"tools and technology, in order to respond to the growing demand of Customers who wish
to interact with the Cable Operator on the Customer's own terms and timeline and at their own
convenience, without having to travel to a Service Center. Without limitation, examples of self-
help tools or technology may include self-installation kits to Customers upon request; pre-paid
mailers for the return of equipment upon Customer request; an automated phone option for
Customer bill payments; and equipment exchanges at a Customer's residence in the event of
damaged equipment. A Cable Operator shall provide free exchanges of faulty equipment at the
customer's address if the equipment has not been damaged in any manner due to the fault or
negligence of the customer.
2. A Cable Operator shall maintain local telephone access lines that shall be available twenty-
four(24)hours a day, seven (7) days a week for service/repair requests and billing/service
inquiries.
3. A Cable Operator shall have dispatchers and technicians on call twenty-four (24)hours a day,
seven (7) days a week, including legal holidays.
4. If a customer service telephone call is answered with a recorded message providing the
customer with various menu options to address the customer's concern, the recorded message
must provide the customer the option to connect to and speak with a CSR within sixty (60)
seconds of the commencement of the recording. During Normal Business Hours, a Cable
Operator shall retain sufficient customer service representatives and telephone line capacity to
ensure that telephone calls to technical service/repair and billing/service inquiry lines are
answered by a customer service representative within thirty (30) seconds or less from the time a
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customer chooses a menu option to speak directly with a CSR or chooses a menu option that
pursuant to the automated voice message, leads to a direct connection with a CSR. Under
normal operating conditions, this thirty(30) second telephone answer time requirement standard
shall be met no less than ninety (90) percent of the time measured quarterly.
5. Under normal operating conditions, a customer shall not receive a busy signal more than three
percent(3%) of the time. This standard shall be met ninety(90) percent or more of the time,
measured quarterly.
C.Responsiveness
1. Guaranteed Seven-Day Residential Installation
a. A Cable Operator shall complete all standard residential installations or modifications
to service requested by customers within seven (7)business days after the order is placed, unless
a later date for installation is requested. "Standard" residential installations are those located up
to one hundred twenty five (125) feet from the existing distribution system. If the customer
requests a nonstandard residential installation, or the Cable Operator determines that a
nonstandard residential installation is required,the Cable Operator shall provide the customer in
advance with a total installation cost estimate and an estimated date of completion.
b. All underground cable drops to the home shall be buried at a depth of no less than
twelve inches (12"), or such other depth as may be required by the Franchise Agreement or local
code provisions, or if there are no applicable Franchise or code requirements, at such other
depths as may be agreed to by the parties if other construction concerns preclude the twelve inch
requirement, and within no more than one calendar week from the initial installation, or at a
time mutually agreed upon between the Cable Operator and the customer.
2. Residential Installation and Service Appointments
a. The"appointment window" alternatives for specific installations, service calls, and/or
other installation activities will be either a specific time, or at a maximum, a four(4) hour time
block between the hours of 8:00 a.m. and 6:00 p.m., six (6) days per week. A Cable Operator
may schedule service calls and other installation activities outside of the above days and hours
for the express convenience of customers. For purposes of this subsection "appointment
window" means the period of time in which the representative of the Cable Operator must arrive
at the customer's location.
b. A Cable Operator may not cancel an appointment with a customer after the close of
business on the business day prior to the scheduled appointment, unless the customer's issue has
otherwise been resolved.
c. If a Cable Operator is running late for an appointment with a customer and will not be
able to keep the appointment as scheduled, the Cable Operator shall take reasonable efforts to
contact the customer promptly, but in no event later than the end of the appointment window.
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The appointment will be rescheduled, as necessary at a time that is convenient to the customer,
within Normal Business Hours or as may be otherwise agreed to between the customer and
Cable Operator.
d. A Cable Operator shall be deemed to have responded to a request for service under the
provisions of this section when a technician arrives within the agreed upon time, and, if the
customer is absent when the technician arrives,the technician leaves written notification of
arrival and return time, and a copy of that notification is kept by the Cable Operator. In such
circumstances, the Cable Operator shall contact the customer within forty-eight (48)hours.
3. Residential Service Interruptions
a. In the event of system outages resulting from Cable Operator equipment failure, the
Cable Operator shall correct such failure within 2 hours after the 3rd customer call is received.
b. All other service interruptions resulting from Cable Operator equipment failure shall
be corrected by the Cable Operator by the end of the next calendar day.
c. Records of Complaints.
i. A Cable Operator shall keep an accurate and comprehensive file of any
complaints regarding the cable system or its operation of the cable system, in a manner
consistent with the privacy rights of customers, and the Cable Operator's actions in
response to those complaints. These files shall remain available for viewing by the
Franchising Authority during normal business hours at the Cable Operator's business
office, and shall be retained by the Cable Operator for a period of at least three (3) years.
ii. Upon written request a Cable Operator shall provide the Franchising
Authority an executive summary quarterly, which shall include information concerning
customer complaints referred by the Franchising Authority to the Grantee and any other
requirements of a Franchise Agreement but no personally identifiable information. These
summaries shall be provided within fifteen (15) days after the end of each quarter. Once
a request is made, it need not be repeated and quarterly executive summaries shall be
provided by the Cable Operator until notified in writing by the Franchising Authority that
such summaries are no longer required.
iii. Upon written request a summary of service requests, identifying the
number and nature of the requests and their disposition, shall also be completed by the
Cable Operator for each quarter and submitted to the Franchising Authority by the
fifteenth (15th)day of the month after each calendar quarter. Once a request is made, it
need not be repeated and quarterly summary of service requests shall be provided by the
Cable Operator until notified in writing by the Franchising Authority that such summaries
are no longer required. Complaints shall be broken out by the nature of the complaint
and the type of Cable service subject to the complaint.
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d. Records of Service Interruptions and Outages. A Cable Operator shall maintain
records of all outages and reported service interruptions. Such records shall indicate the type of
cable service interrupted, including the reasons for the interruptions. A log of all service
interruptions shall be maintained and provided to the Franchising Authority quarterly, upon
written request, within fifteen (15) days after the end of each quarter. Such records shall be
submitted to the Franchising Authority with the records identified in Section 3.c.ii above if so
requested in writing, and shall be retained by the Cable Operator for a period of three (3) years.
e. All service outages and interruptions for any cause beyond the control of the Cable
Operator shall be corrected within thirty-six (36) hours, after the conditions beyond its control
have been corrected.
4. TV Reception
a. A Cable Operator shall provide clear television reception that meets or exceeds
technical standards established by the United States Federal Communications Commission (the
"FCC"). A Cable Operator shall render efficient service, make repairs promptly, and interrupt
service only for good cause and for the shortest time possible. Scheduled interruptions shall be
preceded by notice and shall occur during periods of minimum use of the system, preferably
between midnight and six a.m. (6:00 a.m.).
b. If a customer experiences poor video or audio reception attributable to a Cable
Operator's equipment, the Cable Operator shall:
i. Assess the problem within one (1) day of notification;
ii. Communicate with the customer regarding the nature of the problem and
the expected time for repair;
iii. Complete the repair within two (2)days of assessing the problem unless
circumstances exist that reasonably require additional time.
c. If an appointment is necessary to address any video or audio reception problem,
the customer may choose a block of time described in Section III.C.2.a. At the customer's
request, the Cable Operator shall repair the problem at a later time convenient to the customer,
during Normal Business Hours or at such other time as may be agreed to by the customer and
Cable Operator. A Cable Operator shall maintain periodic communications with a customer
during the time period in which problem ascertainment and repair are ongoing, so that the
customer is advised of the status of the Cable Operator's efforts to address the problem.
5. Problem Resolution
A Cable Operator's customer service representatives shall have the authority to provide credit for
interrupted service, to waive fees, to schedule service appointments and to change billing cycles,
where appropriate. Any difficulties that cannot be resolved by the customer service
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representative shall be referred to the appropriate supervisor who shall contact the customer
within four(4)hours and resolve the problem within forty eight(48) hours or within such other
time frame as is acceptable to the customer and the Cable Operator.
6. Billing, Credits, and Refunds
a. In addition to other options for payment of a customer's service bill, a Cable Operator
shall make available a telephone payment option where a customer without account irregularities
can enter payment information through an automated system,without the necessity of speaking
to a CSR.
b. A Cable Operator shall allow at least thirty(30) days from the beginning date of the
applicable service period for payment of a customer's service bill for that period. If a customer's
service bill is not paid within that period of time the Cable Operator may apply an administrative
fee to the customer's account. The administrative fee must reflect the average costs incurred by
the Cable Operator in attempting to collect the past due payment in accordance with applicable
law. If the customer's service bill is not paid within forty-five (45) days of the beginning date of
the applicable service period, the Cable Operator may perform a "soft" disconnect of the
customer's service. If a customer's service bill is not paid within fifty-two(52) days of the
beginning date of the applicable service period, the Cable Operator may disconnect the
customer's service, provided it has provided two (2)weeks notice to the customer that such
disconnection may result.
c. The Cable Operator shall issue a credit or refund to a customer within 30 days after
determining the customer's entitlement to a credit or refund.
d. Whenever the Cable Operator offers any promotional or specially priced service(s) its
promotional materials shall clearly identify and explain the specific terms of the promotion,
including but not limited to manner in which any payment credit will be applied.
7. Treatment of Property
To the extent that a Franchise Agreement does not contain the following procedures for
treatment of property, Operator shall comply with the procedures set forth in this Section.
a. A Cable Operator shall keep tree trimming to a minimum;trees and shrubs or other
landscaping that are damaged by a Cable Operator, any employee or agent of a Cable Operator
during installation or construction shall be restored to their prior condition or replaced within
seven(7)days, unless seasonal conditions require a longer time, in which case such restoration
or replacement shall be made within seven (7) days after conditions permit. Trees and shrubs on
private property shall not be removed without the prior permission of the owner or legal tenant of
the property on which they are located. This provision shall be in addition to, and shall not
supersede, any requirement in any franchise agreement.
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b. A Cable Operator shall, at its own cost and expense, and in a manner approved by the
property owner and the Franchising Authority, restore any private property to as good condition
as before the work causing such disturbance was initiated. A Cable Operator shall repair, replace
or compensate a property owner for any damage resulting from the Cable Operator's installation,
construction, service or repair activities. If compensation is requested by the customer for
damage caused by any Cable Operator activity, the Cable Operator shall reimburse the property
owner one hundred (100) percent of the actual cost of the damage.
c. Except in the case of an emergency involving public safety or service interruption to a
large number of customers, a Cable Operator shall give reasonable notice to property owners or
legal tenants prior to entering upon private premises, and the notice shall specify the work to be
performed; provided that in the case of construction operations such notice shall be delivered or
provided at least twenty-four(24) hours prior to entry, unless such notice is waived by the
customer. For purposes of this subsection, "reasonable notice" shall be considered:
i. For pedestal installation or similar major construction,
seven (7) days.
ii. For routine maintenance, such as adding or dropping
service,tree trimming and the like, reasonable notice given the
circumstances. Unless a Franchise Agreement has a different requirement,
reasonable notice shall require, at a minimum, prior notice to a property
owner or tenant, before entry is made onto that person's property.
iii. For emergency work a Cable Operator shall attempt to
contact the property owner or legal tenant in person, and shall leave a door
hanger notice in the event personal contact is not made. Door hangars
must describe the issue and provide contact information where the
property owner or tenant can receive more information about the
emergency work.
Nothing herein shall be construed as authorizing access or entry to private property, or
any other property, where such right to access or entry is not otherwise provided by law.
d. Cable Operator personnel shall clean all areas surrounding any work site and ensure
that all cable materials have been disposed of properly.
D. Services for Customers with Disabilities
1. For any customer with a disability, a Cable Operator shall deliver and pick up equipment at
customers' homes at no charge unless the malfunction was caused by the actions of the customer.
In the case of malfunctioning equipment, the technician shall provide replacement equipment,
hook it up and ensure that it is working properly, and shall return the defective equipment to the
Cable Operator.
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2. A Cable Operator shall provide either TTY, TDD, TYY, VRS service or other similar service
that are in compliance with the Americans With Disabilities Act and other applicable law, with
trained operators who can provide every type of assistance rendered by the Cable Operator's
customer service representatives for any hearing-impaired customer at no charge.
3. A Cable Operator shall provide free use of a remote control unit to mobility-impaired (if
disabled, in accordance with Section III.D.4) customers.
4. Any customer with a disability may request the special services described above by providing
a Cable Operator with a letter from the customer's physician stating the need, or by making the
request to the Cable Operator's installer or service technician, where the need for the special
services can be visually confirmed.
E. Cable Services Information
1.At any time a customer or prospective customer may request, a Cable Operator shall provide
the following information, in clear, concise written form, easily accessible and located on Cable
Operator's website (and in Spanish,when requested by the customer):
a. Products and services offered by the Cable Operator, including its channel lineup;
b. The Cable Operator's complete range of service options and the prices for these
services;
c. The Cable Operator's billing, collection and disconnection policies;
d. Privacy rights of customers;
e. All applicable complaint procedures, including complaint forms and the telephone
numbers and mailing addresses of the Cable Operator, and the FCC;
f. Use and availability of parental control/lock out device;
g. Special services for customers with disabilities;
h. Days, times of operation, and locations of the service centers;
2. At a Customer's request, a Cable Operator shall make available either a complete copy of
these Standards and any other applicable customer service standards, or a summary of these
Standards, in a format to be approved by CCUA and the Franchising Authority, which shall
include at a minimum,the URL address of a website containing these Standards in their entirety;
provided however, that if the CCUA or Franchising Authority does not maintain a website with a
complete copy of these Standards, a Cable Operator shall be under no obligation to do so;
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If acceptable to a customer, Cable Operator may fulfill customer requests for any of the
information listed in this Section by making the requested information available electronically,
such as on a website or by electronic mail.
3. Upon written request, a Cable Operator shall meet annually with the Franchising Authority to
review the format of the Cable Operator's bills to customers. Whenever the Cable Operator
makes substantial changes to its billing format, it will contact the Franchising Authority at least
thirty(30) days prior to the time such changes are to be effective, in order to inform the
Franchising Authority of such changes.
4. Copies of notices provided to the customer in accordance with subsection 5 below shall be
filed (by fax or email acceptable) concurrently with the Franchising Authority and the CCUA.
5.A Cable Operator shall provide customers with written notification of any change in rates for
nondiscretionary cable services, and for service tier changes that result in a deletion of
programming from a customer's service tier, at least thirty(30) days before the effective date of
change. For purposes of this section, "nondiscretionary" means the subscribed tier and any other
Cable Services that a customer has subscribed to, at the time the change in rates are announced
by the Cable Operator.
6. All officers, agents, and employees of the Cable Operator or its contractors or subcontractors
who are in personal contact with customers and/or when working on public property, shall wear
on their outer clothing identification cards bearing their name and photograph and identifying
them as representatives of the Cable Operator. The Cable Operator shall account for all
identification cards at all times. Every vehicle of the Cable Operator shall be clearly visually
identified to the public as working for the Cable Operator. Whenever a Cable Operator work
crew is in personal contact with customers or public employees, a supervisor must be able to
communicate clearly with the customer or public employee. Every vehicle of a subcontractor or
contractor shall be labeled with the name of the contractor and further identified as contracting or
subcontracting for the Cable Operator.
7. Each CSR, technician or employee of the Cable Operator in each contact with a customer shall
state the estimated cost of the service, repair, or installation orally prior to delivery of the service
or before any work is performed, and shall provide the customer with an oral statement of the
total charges before terminating the telephone call or before leaving the location at which the
work was performed. A written estimate of the charges shall be provided to the customer before
the actual work is performed.
F. Customer Privacy
1. Cable Customer Privacy. In addition to complying with the requirements in this subsection, a
Cable Operator shall fully comply with all obligations under 47 U.S.C. Section 551.
2. Collection and Use of Personally Identifiable Information.
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a. A Cable Operator shall not use the Cable System to collect, monitor or observe
Personally Identifiable Information without the prior affirmative written or electronic consent of
the Customer unless, and only to the extent that such information is: (i) used to detect
unauthorized reception of cable communications, or(ii) necessary to render a Cable Service or
Other Service provided by the Cable Operator to the Customer and as otherwise authorized by
applicable law.
b. A Cable Operator shall take such actions as are necessary using then-current industry
standard practices to prevent any Affiliate from using the facilities of the Cable Operator in any
manner, including, but not limited to, sending data or other signals through such facilities, to the
extent such use will permit an Affiliate unauthorized access to Personally Identifiable
Information on equipment of a Customer(regardless of whether such equipment is owned or
leased by the Customer or provided by a Cable Operator)or on any of the facilities of the Cable
Operator that are used in the provision of Cable Service. This subsection F.2.b shall not be
interpreted to prohibit an Affiliate from obtaining access to Personally Identifiable Information
to the extent otherwise permitted by this subsection F.
c. A Cable Operator shall take such actions as are necessary using then-current industry
standard practices to prevent a person or entity(other than an Affiliate) from using the facilities
of the Cable Operator in any manner, including, but not limited to, sending data or other signals
through such facilities, to the extent such use will permit such person or entity unauthorized
access to Personally Identifiable Information on equipment of a Customer(regardless of whether
such equipment is owned or leased by the Customer or provided by a Cable Operator) or on any
of the facilities of the Cable Operator that are used in the provision of Cable Service.
3. Disclosure of Personally Identifiable Information. A Cable Operator shall not disclose
Personally Identifiable Information without the prior affirmative written or electronic consent of
the Customer, unless otherwise authorized by applicable law.
a. A minimum of thirty(30)days prior to making any disclosure of Personally
Identifiable Information of any Customer for any Non-Cable related purpose as provided in this
subsection F.3.a, where such Customer has not previously been provided the notice and choice
provided for in subsection III.F.9, the Cable Operator shall notify each Customer(that the Cable
Operator intends to disclose information about)of the Customer's right to prohibit the disclosure
of such information for Non-cable related purposes. The notice to Customers may reference the
Customer to his or her options to state a preference for disclosure or non-disclosure of certain
information, as provided in subsection III.F.10.
b. A Cable Operator may disclose Personally Identifiable Information only to the extent
that it is necessary to render, or conduct a legitimate business activity related to, a Cable Service
or Other Service provided by the Cable Operator to the Customer.
c. To the extent authorized by applicable law, a Cable Operator may disclose Personally
Identifiable Information pursuant to a subpoena, court order, warrant or other valid legal process
authorizing such disclosure.
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4. Access to Information. Any Personally Identifiable Information collected and maintained by a
Cable Operator shall be made available for Customer examination within thirty(30) days of
receiving a request by a Customer to examine such information about himself or herself at the
local offices of the Cable Operator or other convenient place within the City/County/City and
County/Town designated by the Cable Operator, or electronically, such as over a website. Upon
a reasonable showing by the Customer that such Personally Identifiable Information is
inaccurate, a Cable Operator shall correct such information.
5. Privacy Notice to Customers
a. A Cable Operator shall annually mail or provide a separate, written or electronic copy
of the privacy statement to Customers consistent with 47 U.S.C. Section 551(a)(1), and shall
provide a Customer a copy of such statement at the time the Cable Operator enters into an
agreement with the Customer to provide Cable Service. The written notice shall be in a clear and
conspicuous format, which at a minimum, shall be in a comparable font size to other general
information provided to Customers about their account as it appears on either paper or electronic
Customer communications.
b. In or accompanying the statement required by subsection F.5.a, a Cable Operator shall
state substantially the following message regarding the disclosure of Customer information:
"Unless a Customer affirmatively consents electronically or in writing to the disclosure of
personally identifiable information, any disclosure of personally identifiable information for
purposes other than to the extent necessary to render, or conduct a legitimate business activity
related to, a Cable Service or Other Service, is limited to:
i. Disclosure pursuant to valid legal process authorized by applicable law.
ii. Disclosure of the name and address of a Customer subscribing to any general
programming tiers of service and other categories of Cable Services provided by the
Cable Operator that do not directly or indirectly disclose: (A)A Customer's extent of
viewing of a Cable Service or Other Service provided by the Cable Operator; (B) The
extent of any other use by a Customer of a Cable Service; (C) The nature of any
transactions made by a Customer over the Cable System; or(D) The nature of
programming or websites that a Customer subscribes to or views (i.e., a Cable Operator
may only disclose the fact that a person subscribes to a general tier of service, or a
package of channels with the same type of programming), provided that with respect to
the nature of websites subscribed to or viewed, these are limited to websites accessed by
a Customer in connection with programming available from their account for Cable
Services."
The notice shall also inform the Customers of their right to prohibit the disclosure of their names
and addresses in accordance with subsection F.3.a. If a Customer exercises his or her right to
prohibit the disclosure of name and address as provided in subsection F.3.a or this subsection,
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such prohibition against disclosure shall remain in effect, unless and until the Customer
subsequently changes their disclosure preferences as described in subsection F.9 below.
6. Privacy Reporting Requirements. The Cable Operator shall include in its regular periodic
reports to the Franchising Authority required by its Franchise Agreement information
summarizing:
a. The type of Personally Identifiable Information that was actually collected or
disclosed by Cable Operator during the reporting period;
b. For each type of Personally Identifiable Information collected or disclosed, a
statement from an authorized representative of the Cable Operator certifying that the Personally
Identifiable Information collected or disclosed was: (A) collected or disclosed to the extent
Necessary to render, or conduct a legitimate business activity related to, a Cable Service or Other
Service provided by the Cable Operator; (B) used to the extent Necessary to detect unauthorized
reception of cable communications: (C) disclosed pursuant to valid legal process authorized by
applicable law; or (D) a disclosure of Personally Identifiable Information of particular
subscribers, but only to the extent affirmatively consented to by such subscribers in writing or
electronically, or as otherwise authorized by applicable law.
c. The standard industrial classification (SIC) codes or comparable identifiers pertaining
to any entities to whom such Personally Identifiable Information was disclosed, except that a
Cable Operator need not provide the name of any court or governmental entity to which such
disclosure was made pursuant to valid legal process authorized by applicable law;
d. The general measures that have been taken to prevent the unauthorized access to
Personally Identifiable Information by a person other than the Customer or the Cable Operator.
A Cable Operator shall meet with Franchising Authority if requested to discuss technology used
to prohibit unauthorized access to Personally Identifiable Information by any means.
7. Nothing in this subsection III.F shall be construed to prevent the Franchising Authority from
obtaining Personally Identifiable Information to the extent not prohibited by Section 631 of the
Communications Act, 47 U.S.C. Section 551 and applicable laws.
8. Destruction of Personally Identifiable Information. A Cable Operator shall destroy any
Personally Identifiable Information if the information is no longer necessary for the purpose for
which it was collected and there are no pending requests or orders for access to such information
under subsection 4 of this subsection III.F, pursuant to a court order or other valid legal process,
or pursuant to applicable law.
9. Notice and Choice for Customers. The Cable Operator shall at all times make available to
Customers one or more methods for Customers to use to prohibit or limit disclosures, or permit
or release disclosures, as provided for in this subsection 1II.F. These methods may include, for
example, online website"preference center" features, automated toll-free telephone systems, live
toll-free telephone interactions with customer service agents, in-person interactions with
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customer service personnel, regular mail methods such as a postage paid, self-addressed post
card, an insert included with the Customer's monthly bill for Cable Service, the privacy notice
specified in subsection III.F.5, or such other comparable methods as may be provided by the
Cable Operator. Website "preference center" features shall be easily identifiable and navigable
by Customers, and shall be in a comparable size font as other billing information provided to
Customers on a Cable Operator's website. A Customer who provides the Cable Operator with
permission to disclose Personally Identifiable Information through any of the methods offered by
a Cable Operator shall be provided follow-up notice, no less than annually, of the Customer's
right to prohibit these disclosures and the options for the Customer to express his or her
preference regarding disclosures. Such notice shall, at a minimum, be provided by an insert in
the Cable Operator's bill (or other direct mail piece)to the Customer or a notice or message
printed on the Cable Operator's bill to the Customer, and on the Cable Operator's website when
a Customer logs in to view his or her Cable Service account options. The form of such notice
shall also be provided on an annual basis to the Franchising Authority. These methods of
notification to Customers may also include other comparable methods as submitted by the Cable
Operator and approved by the Franchising Authority in its reasonable discretion.
G. Safety
A Cable Operator shall install and locate its facilities, cable system, and equipment in
compliance with all federal, state, local, and company safety standards, and in such manner as
shall not unduly interfere with or endanger persons or property. Whenever a Cable Operator
receives notice that an unsafe condition exists with respect to its equipment, the Cable Operator
shall investigate such condition immediately, and shall take such measures as are necessary to
remove or eliminate any unsafe condition.
H. Cancellation of New Services
In the event that a new customer requests installation of Cable Service and is unsatisfied with
their initial Cable Service, and provided that the customer so notifies the Cable Operator of their
dissatisfaction within 30 days of initial installation, then such customer can request
disconnection of Cable Service within 30 days of initial installation, and the Cable Operator shall
provide a credit to the customer's account consistent with this Section. The customer will be
required to return all equipment in good working order; provided such equipment is returned in
such order, then the Cable Operator shall refund the monthly recurring fee for the new
customer's first 30 days of Cable Service and any charges paid for installation. This provision
does not apply to existing customers who request upgrades to their Cable Service, to
discretionary Cable Service such as PPV or movies purchased and viewed On Demand, or to
customer moves and/or transfers of Cable Service. The service credit shall be provided in the
next billing cycle.
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IV. COMPLAINT PROCEDURE
A. Complaints to a Cable Operator
1. A Cable Operator shall establish written procedures for receiving, acting upon, and resolving
customer complaints, and crediting customer accounts and shall have such procedures printed
and disseminated at the Cable Operator's sole expense, consistent with Section III.E.1.e of these
Standards.
2. Said written procedures shall prescribe a simple manner in which any customer may submit a
complaint by telephone or in writing to a Cable Operator that it has violated any provision of
these Customer Service Standards, any terms or conditions of the customer's contract with the
Cable Operator, or reasonable business practices. If a representative of the Franchising
Authority notifies the Cable Operator of a customer complaint that has not previously been made
by the customer to the Cable Operator,the complaint shall be deemed to have been made by the
customer as of the date of the Franchising Authority's notice to the Cable Operator.
3. At the conclusion of the Cable Operator's investigation of a customer complaint, but in no
more than ten (10) calendar days after receiving the complaint, the Cable Operator shall notify
the customer of the results of its investigation and its proposed action or credit.
4. A Cable Operator shall also notify the customer of the customer's right to file a complaint with
the Franchising Authority in the event the customer is dissatisfied with the Cable Operator's
decision, and shall thoroughly explain the necessary procedures for filing such complaint with
the Franchising Authority.
5. A Cable Operator shall immediately report all customer Escalated complaints that it does not
find valid to the Franchising Authority.
6. A Cable Operator's complaint procedures shall be filed With the Franchising Authority prior to
implementation.
B. Complaints to the Franchising Authority
1. Any customer who is dissatisfied with any proposed decision of the Cable Operator or who
has not received a decision within the time period set forth below shall be entitled to have the
complaint reviewed by the Franchising Authority.
2. The customer may initiate the review either by calling the Franchising Authority or by filing a
written complaint together with the Cable Operator's written decision, if any, with the
Franchising Authority.
3. The customer shall make such filing and notification within twenty(20) days of receipt of the
Cable Operator's decision or, if no decision has been provided, within thirty (30) days after filing
the original complaint with the Cable Operator.
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4. If the Franchising Authority decides that further evidence is warranted,the Franchising
Authority shall require the Cable Operator and the customer to submit, within ten (10) days of
notice thereof, a written statement of the facts and arguments in support of their respective
positions.
5. The Cable Operator and the customer shall produce any additional evidence, including any
reports from the Cable Operator, which the Franchising Authority may deem necessary to an
understanding and determination of the complaint.
6. The Franchising Authority shall issue a determination within fifteen (15) days of receiving the
customer complaint, or after examining the materials submitted, setting forth its basis for the
determination.
7. The Franchising Authority may extend these time limits for reasonable cause and may
intercede and attempt to negotiate an informal resolution.
C. Security Fund or Letter of Credit
A Cable operator shall comply with any Franchise Agreement regarding Letters of Credit. If a
Franchise Agreement is silent on Letter of Credit the following shall apply:
1. Within thirty(30) days of the written notification to a Cable Operator by the Franchising
Authority that an alleged Franchise violation exists, a Cable Operator shall deposit with an
escrow agent approved by the Franchising Authority fifty thousand dollars ($50,000) or, in the
sole discretion of the Franchising Authority, such lesser amount as the Franchising Authority
deems reasonable to protect subscribers within its jurisdiction. Alternatively, at the Cable
Operator's discretion, it may provide to the Franchising Authority an irrevocable letter of credit
in the same amount. A letter of credit or cash deposit, with the approval of the Franchising
Authority, may be posted jointly for more than one member of the CCUA, and may be
administered, and drawn upon,jointly by the CCUA or drawn upon individually by each
member; provided however that if such letter of credit or cash deposit is provided to CCUA on
behalf of more than one of its members,the letter of credit or cash deposit may, in the sole
discretion of CCUA and its effected members, be required in an amount not to exceed one
hundred thousand dollars ($100,000).
The escrowed funds or letter of credit shall constitute the "Security Fund" for ensuring
compliance with these Standards for the benefit of the Franchising Authority. The escrowed
funds or letter of credit shall be maintained by a Cable Operator at the amount initially required,
even if amounts are withdrawn pursuant to any provision of these Standards, until any claims
related to the alleged Franchise violation(s) are paid in full.
2. The Franchising Authority may require the Cable Operator to increase the amount of the
Security Fund, if it finds that new risk factors exist which necessitate such an increase.
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3. The Security Fund shall serve as security for the payment of any penalties, fees, charges or
credits as provided for herein and for the performance by a Cable Operator of all its obligations
under these Customer Service Standards.
4. The rights reserved to the Franchising Authority with respect to the Security Fund are in
addition to all other rights of the Franchising Authority, whether reserved by any applicable
franchise agreement or authorized by law, and no action, proceeding or exercise of a right with
respect to same shall in any way affect, or diminish, any other right the Franchising Authority
may otherwise have.
D. Verification of Compliance
A Cable Operator shall establish its compliance with any or all of the standards required through
annual reports that demonstrate said compliance, or as requested by the Franchising Authority.
E. Procedure for Remedying Violations
1. If the Franchising Authority has reason to believe that a Cable Operator has failed to comply
with any of these Standards, or has failed to perform in a timely manner, the Franchising
Authority may pursue the procedures in its Franchise Agreement to address violations of these
Standards in a like manner as other franchise violations are considered.
2. Following the procedures set forth in any Franchise Agreement governing the manner to
address alleged Franchise violations, if the Franchising Authority determines in its sole
discretion that the noncompliance has been substantiated, in addition to any remedies that may
be provided in the Franchise Agreement, the Franchising Authority may:
a. Impose assessments of up to one thousand dollars ($1,000.00)per day, to be withdrawn
from the Security Fund in addition to any franchise fee until the non-compliance is remedied;
and/or
b. Order such rebates and credits to affected customers as in its sole discretion it deems
reasonable and appropriate for degraded or unsatisfactory services that constituted
noncompliance with these Standards; and/or
c. Reverse any decision of the Cable Operator in the matter and/or
d. Grant a specific solution as determined by the Franchising Authority; and/or
e. Except for in emergency situations, withhold licenses and permits for work by the
Cable Operator or its subcontractors in accordance with applicable law.
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V. MISCELLANEOUS
A. Severability
Should any section, subsection, paragraph, term, or provision of these Standards be
determined to be illegal, invalid, or unconstitutional by any court or agency of competent
jurisdiction with regard thereto, such determination shall have no effect on the validity of any
other section, subsection, paragraph, term, or provision of these Standards, each of the latter of
which shall remain in full force and effect.
B. Non-Waiver
Failure to enforce any provision of these Standards shall not operate as a waiver of the
obligations or responsibilities of a Cable Operator under said provision, or any other provision of
these Standards. Revised 6/18/13.
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EXHIBIT B
Report Form
Comcast of Colorado IV, LLC
Quarterly Executive Summary - Escalated Complaints
Section 7.6(B)of our Franchise Agreement
Quarter Ending ,Year
City of Pueblo
Type of Complaint ' Number of Calls
Accessibility 0
Billing, Credit and Refunds 0 ;,
Courtesy 0
Drop Bury 0 ,te '
Installation , ��,; ;"
Notices/Easement Issues (Non-Rebuild) 4 F �,,0
Pedestal ''''.,0`,"1:=,,,
Problem Resolution 0 "
: ,,:<
Programming 0
Property Damage(Non-Rebuild) 4''0
Rates E rb. .,4.>
, ;;0,,
Rebuild/Upgrade Damage''-''''''4,,,',05',,,,,:,,,,,, 0
Rebuild/Upgrade Notices/Easement Isues 0
Reception/Signal Quality " ,;',,,,,%.,,,,,,,,,_ 0
Safety =3
°`,..
Service and,Install Appointments ?a 0
Service Interruptions IS:,;_ ,, 0
Serviceability 0
qty.,
TOTAL 0
'1102'
sE
Compliments
City Clerk’s Office Item # R-1
Background Paper for Proposed
Ordinance
COUNCIL MEETING DATE: May 23, 2016
TO: President Stephen G. Nawrocki and Members of City Council
CC: Sam Azad, City Manager
VIA: Gina Dutcher, City Clerk
FROM: Daniel C. Kogovsek, City Attorney
SUBJECT: AN ORDINANCE GRANTING TO COMCAST OF COLORADO IV, LLC A
NONEXCLUSIVE FRANCHISE TO CONSTRUCT, INSTALL, AND OPERATE A
CABLE SYSTEM AND PROVIDE CABLE TELEVISION SERVICE WITHIN THE
CITY AND IN CONNECTION THEREWITH, TO MAKE REASONABLE AND
LAWFUL USE OF THE STREETS, PUBLIC EASEMENTS AND OTHER PUBLIC
PLACES WITHIN THE CITY
SUMMARY:
Attached is an Ordinance which approves and authorizes the President of the City Council to
execute a new franchise agreement with Comcast.
PREVIOUS COUNCIL ACTION:
See Background infra.
BACKGROUND:
Comcast of Colorado IV, LLC ("Comcast") is the successor in interest to TCI Cablevision of
Colorado, Inc. ("TCI") which had been granted a cable television franchise (the "Franchise") by
Pueblo voters in 1993. Under that Franchise, the operator was granted a non-exclusive right to
construct and operate a cable television system within the City, and in connection therewith, was
allowed to use the City's streets and rights of way for placement of wires and other Cable-TV
related facilities. TCI was subsequently acquired by Comcast of Colorado IV, LLC (“Comcast”).
On November 23, 2009, by Ordinance No. 8109, City Council approved a five year franchise
agreement with Comcast. Nearing the end of the 2009 Franchise term, Comcast had expressed
its intent to renew. Cable-TV franchise renewals are governed generally by Section 626 of the
Cable Communications Policy Act of 1984, 47 USC 546 (the "Act"). Since 2015, Comcast and
City staff pursued informal negotiations pursuant to the authority of 47 U.S.C. 546 (h). That effort
has resulted in the draft franchise agreement which would be approved by adoption of the
Ordinance now before Council.
Under Section 16-2 of the Pueblo Charter, franchises may only be granted by vote of the
City's electors. However, in Qwest Broadband Services, Inc. v. City of Boulder, 151 F.Supp. 2d
1236 (D. Colo.. 2001), the U.S. District Court for the District of Colorado ruled that a provision of
Boulder's Charter requiring that franchises be approved by voters in an election conflicts with
Section 541 of the Cable Act relating to the granting of such franchises, and was therefore
preempted by federal law. By extension, this holding would apply to franchise renewals under
Section 546 of the Cable Act as well. Based upon this persuasive federal authority, the City’s
Law Department of the opinion that City Council may grant the franchise.
The following is a summary of the provisions of the proposed franchise:
Comcast allowed to place wire/fiber in or above streets and rights of way
subject to all City requirements for excavation permits, relocation at Comcast's
expense for public projects, and all other City requirements.
Comcast to maintain an office/customer service center within the City
Comcast pays to City 5% of its Gross Revenues from cable tv service as
franchise fees. Gross Revenue includes advertising revenues as well as
subscriber fees. City retains audit rights. (Comcast also collects and remits
sales tax on equipment rentals.)
City retains rights to: revoke the franchise for breach, require extension of
$
service, require efficient service, establish standards of service, fully control
use of its streets and rights of way, and to impose regulations under its police
powers.
Term of franchise is 5 years commencing July 1, 2016 and ending on June 30,
2021.
Customer service standards promulgated by the Colorado Communications
and Utility Alliance (“CCUA”) apply. These are the toughest consumer
protection standards in the state. Comcast is required to file with the City, on a
quarterly basis, a summary of customer complaints received and how the
complaints were resolved.
Basic cable requires broad categories of cable programming and includes the
FCC must-carry channels (local broadcast channels) and the Public
Educational and Government ("PEG") channels. This allows Comcast greater
flexibility to match public demand and pricing needs.
Physical system must meet at least 750 MHz throughput through the entire
system, have back-up power supplies and automated outage monitoring
system, meet the FCC technical standards and be consistent with
contemporary Colorado cable industry standards.
Continue 3 PEG channels with 2 upstream links (City Hall and PCC).
Provides for Comcast to collect and remit to City a 50 per month per
4
subscriber PEG access support fee for capital improvements for PEG. These
fees are in addition to franchise fees.
Comcast will comply with all privacy laws concerning Subscriber information
and is required to give customers parental control and lockout devices.
FINANCIAL IMPLICATIONS:
The City will receive franchise fees, sales tax and PEG channel fees.
BOARD/COMMISSION RECOMMENDATION:
Not applicable.
STAKEHOLDER PROCESS:
Not applicable.
ALTERNATIVES:
Failure to approve this Ordinance could result in Comcast seeking to resolve the stalemate in
federal court pursuant to the Act.
RECOMMENDATION:
Approve the Ordinance.
Attachments:
Franchise Agreement