Except as otherwise provided herein, the definitions
and word usages set forth in the Communications Act are incorporated
herein and shall apply in this agreement. In addition, the following
definitions shall apply:
A video channel that franchisee shall make available to LFA
without charge for public, educational, or governmental use for the
transmission of video programming as directed by LFA.
Any such portion of the service area added pursuant to § A301-50B of this agreement.
Any person who, directly or indirectly, owns or controls,
is owned or controlled by, or is under common ownership or control
with, franchisee.
Any service tier that includes the retransmission of local
television broadcast signals as well as the PEG channels required
by this franchise.
Shall be defined herein as it is defined under Section 602
of the Communications Act, 47 U.S.C. § 522(6), which currently
states: "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."
Shall be defined herein as it is defined under Section 602
of the Communications Act, 47 U.S.C. § 522(7), which currently
states: "a facility, consisting of a set of closed transmission paths
and associated signal generation, reception, and control equipment
that is designed to provide Cable Service which includes video programming
and which is provided to multiple Subscribers within a community,
but such term does not include (A) a facility that serves only to
retransmit the television signals of one or more television broadcast
stations; (B) a facility that serves Subscribers without using any
Public Rights-of-Way; (C) a facility of a common carrier which is
subject, in whole or in part, to the provisions of Title II of this
Act, except that such facility shall be considered a Cable System
(other than for purposes of Section 621(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 Section 653
of this title; or (E) any facilities of any electric utility used
solely for operating its electric utility systems." Franchisee's cable
system shall be limited to the optical spectrum wavelength(s), bandwidth,
or future technological capacity that is used for the transmission
of cable services directly to subscribers within the Township and
shall not include the tangible network facilities of a common carrier
subject in whole or in part to Title II of the Communications Act
or of an information services provider.
Shall be defined herein as it is defined under Section 602
of the Communications Act, 47 U.S.C. § 522(4), which currently
states "A portion of the electromagnetic frequency spectrum which
is used in a Cable System and which is capable of delivering a television
channel (as television channel is defined by the FCC by regulation)."
The Communications Act of 1934, as amended.
Any written communication by a subscriber expressing dissatisfaction
about any aspect of franchisee's operation of the cable system or
franchisee's cable operations in the Township.
The ability to exercise de facto or de jure control over
day-to-day policies and operations or the management of franchisee's
affairs.
An access channel available for the use of the local schools
in the franchise area.
The United States Federal Communications Commission, or successor
governmental entity thereto.
An event or events reasonably beyond the ability of franchisee
to anticipate and control. This includes, but is not limited to, severe
or unusual weather conditions, labor strikes, lockouts, war or act
of war (whether an actual declaration of war is made or not), insurrection,
riots, act of public enemy, including terrorist attacks, orders of
the government of the United States or the Commonwealth of Pennsylvania,
actions or inactions of any government instrumentality or public utility
other than franchisee, including condemnation to the extent such actions
are unforeseeable, accidents for which franchisee is not responsible,
fire, flood, or other acts of God, or work delays caused by waiting
for utility providers to service or monitor utility poles to which
franchisee's FTTP network is attached, and the unavailability of materials
and/or qualified labor to perform the work necessary to the extent
that such unavailability of materials and/or qualified labor was reasonably
beyond the ability of franchisee to foresee or control.
Verizon Pennsylvania Inc., and its lawful and permitted successors,
assigns and transferees.
An access channel available for the use of LFA for governmental
purposes.
All revenue, as determined in accordance with
generally accepted accounting principles, which is received by franchisee
and its affiliates from the operation of the cable system to provide
cable service in the Township, including:
Fees charged for basic service;
Fees charged to subscribers for any service
tier other than basic service;
Fees charged for premium services, e.g. HBO,
Cinemax, or Showtime;
Fees charged to subscribers for any optional,
per-channel, or per-program services;
Revenue from the provision of any other cable
services;
Charges for installation, additional outlets,
relocation, disconnection, reconnection and change-in-service fees
for video programming;
Fees for downgrading any level of cable service
programming;
Fees for service calls;
Fees for leasing of channels;
Rental of customer equipment, including converters
and remote control devices;
Fees for digital video recorders;
Advertising revenues as set forth herein;
Revenue from the sale or rental of subscriber
lists;
Revenues or commissions received from the carriage of home shopping channels subject to Subsection C(5) below;
Fees for any and all music services that are
deemed to be a cable service over a cable system;
Revenue from the sales of program guides;
Late payment fees;
NSF check charges;
Franchise fees for the provision of cable service
over the cable system in the Township;
Fees for video on demand; and
Forgone revenue that franchisee chooses not
to receive in exchange for trades, barters, services, or other items
of value.
Advertising commissions paid to independent
third parties shall not be deducted from advertising revenue included
in gross revenue. Advertising revenue is based upon the ratio of the
number of subscribers as of the last day of the period for which gross
revenue is being calculated to the number of franchisee's subscribers
within all areas covered by the particular advertising source as of
the last day of such period, e.g., franchisee sells two ads: Ad A
is broadcast nationwide; Ad B is broadcast only within Pennsylvania.
Franchisee has 100 subscribers in LFA, 500 subscribers in Pennsylvania,
and 1,000 subscribers nationwide. Gross revenue as to LFA from Ad
A is 10% of franchisee's revenue therefrom. Gross revenue as to LFA
from Ad B is 20% of franchisee's revenue.
Gross revenue shall not include:
Revenues received from franchisee by any affiliate
or person other than franchisee in exchange for supplying goods or
services used by franchisee to provide cable service over the cable
system in the Township.
Bad debts written off by franchisee in the normal
course of its business; provided, however, that bad debt recoveries
shall be included in gross revenue during the period collected;
Refunds, rebates or discounts made to subscribers
or other third parties;
Any revenues classified, in whole or in part,
as noncable services revenue under federal or state law including,
without limitation, revenue received from telecommunications services;
revenue received from information services, including, without limitation,
Internet access service, electronic mail service, electronic bulletin
board service, or similar online computer services; charges made to
the public for commercial or cable television that is used for two-way
communications that are not cable services; and any other revenues
attributed to noncable services in accordance with applicable federal
and state laws or regulations;
Any revenue of franchisee or any other person
that is received directly from the sale of merchandise through any
cable service distributed over the cable system, notwithstanding that
portion of such revenue which represents or can be attributed to a
subscriber fee or a payment for the use of the cable system for the
sale of such merchandise, which portion shall be included in gross
revenue;
The sale of cable services on the cable system
for resale in which the purchaser is required to collect cable franchise
fees from purchaser's customer;
The imputed value of the provision of cable
services to customers on a complimentary basis, including, without
limitation, the provision of cable services to public institutions
as required or permitted herein;
Any tax of general applicability imposed upon
franchisee or upon subscribers by a City, state, federal, or any other
governmental entity and required to be collected by franchisee and
remitted to the taxing entity (including, but not limited to, sales/use
tax, gross receipts tax, excise tax, utility users tax, public service
tax, communication taxes, and noncable services revenue);
Any foregone revenue that franchisee chooses
not to receive in exchange for its provision of free or reduced cost
cable or other communications services to any Person, including without
limitation, employees of franchisee and public institutions or other
institutions designated in the franchise; provided, however, that
such foregone revenue that franchisee chooses not to receive in exchange
for trades, barters, services, or other items of value shall be included
in gross revenue;
Sales of capital assets or sales of surplus
equipment that are not deemed to be a cable service;
Program launch fees; and
Directory or Internet advertising revenue, including,
but not limited to, yellow page, white page, banner advertisement
and electronic publishing.
Shall be defined herein as it is defined under Section 3
of the Communications Act, 47 U.S.C. § 153(20).
The portion of the franchise area as outlined in Exhibit
B.[1]
Dial-up or broadband access service that enables subscribers
to access the Internet.
All prior or subsequent ordinances enacted by Cheltenham
Township related to cable services.
The Township of Cheltenham or the lawful successor, transferee,
or assignee thereof.
Any service that is not a cable service over the cable system
as defined herein, including, but not limited to, information services
and telecommunications services.
Those hours during which most similar businesses in the community
are open to serve customers. In all cases, "normal business hours"
must include some evening hours at least one night per week and/or
some weekend hours. See C.F.R. § 76.309(c)(4)(i).
Those service conditions that are within the control of franchisee.
Those conditions that are not within the control of franchisee include,
but are not limited to, natural disasters, civil disturbances, power
outages, telephone network outages, and severe or unusual weather
conditions. Those conditions that are ordinarily within the control
of franchisee include, but are not limited to, special promotions,
pay-per-view events, rate increases, regular peak or seasonal demand
periods, and maintenance or upgrade of the cable system. See 47 C.F.R.
§ 76.309(c)(4)(ii).
Public, educational, and governmental.
An individual, partnership, association, joint-stock company,
trust, corporation, or governmental entity.
An access channel available for the use by the residents
in the franchise area.
The surface and the area across, in, over, along, upon and
below the surface of the public streets, roads, bridges, sidewalks,
lanes, courts, ways, alleys, and boulevards, including, public utility
easements and public lands and waterways used as public rights-of-way,
as the same now or may thereafter exist, which are under the jurisdiction
or control of LFA. Public rights-of-way do not include the airwaves
above a right-of-way with regard to cellular or other nonwire communications
or broadcast services.
All portions of the Township where cable service is being
offered, including the initial service area and any additional service
areas.
The date that franchisee first provides cable service on
a commercial basis directly to multiple subscribers in the franchise
area. Franchisee shall memorialize the service date by notifying LFA
in writing of the same, which notification shall become a part of
this franchise.
The loss of picture or sound on one or more cable channels.
A person who lawfully receives cable service distributed
by the cable system with franchisee's express permission.
Franchisee's existing telecommunications services and information
services facilities and its FTTP network facilities.
Shall be defined herein as it is defined under Section 3
of the Communications Act, 47 U.S.C. § 153(46).
Title II of the Communications Act, Common Carriers, as amended.
Title VI of the Communications Act, Cable Communications,
as amended, which governs the provision of cable services by franchisee.
The incorporated area (entire existing territorial limits)
LFA and such additional areas as may be included in the corporate
(territorial) limits of LFA during the term of the franchise.
Any transaction in which:
The right, title, control or other interest
in franchisee or the cable system is transferred, directly or indirectly,
from one person or group of persons to another person or group of
persons, so that control of franchisee is transferred; or
At least 35% of the equitable ownership of franchisee
is transferred or assigned to another person or group of persons;
or
The rights held by franchisee pursuant to this
agreement are transferred or assigned to another person or group of
persons.
However, notwithstanding Subsection A(1), a "transfer of the franchise" shall not include transfer of an ownership or other interest in franchisee to the parent of franchisee or to another affiliate of franchisee; transfer of an interest in the franchise or the rights held by franchisee under the franchise to the parent of franchisee or to another affiliate of franchisee; any action that is the result of a merger of the parent of franchisee; or any action that is the result of a merger of another affiliate of franchisee.
Shall be defined herein as it is defined under Section 602
of the Communications Act, 47 U.S.C. § 522(20), which currently
states "Programming provided by, or generally considered comparable
to programming provided by a television broadcast station."
[1]
Editor's Note: Exhibit B is included at the end of this chapter.
