If at any time LFA believes that franchisee
has not complied with the terms of the agreement, LFA shall informally
discuss the matter with franchisee. If these discussions do not lead
to resolution of the problem in a reasonable time, LFA shall notify
franchisee in writing of the nature of the alleged noncompliance (for
purposes of this article, "noncompliance notice"). If LFA does not
notify franchisee of any alleged noncompliance, it shall not operate
as a waiver of any rights of LFA hereunder or pursuant to applicable
law.
In the event that franchisee fails to respond to the noncompliance notice pursuant to the procedures required by this article, or in the event that the alleged noncompliance is not remedied within 30 days or the date projected pursuant to §
A301-83A(3) above, if LFA seeks to continue its investigation into the alleged noncompliance, then franchisee may request a public hearing. If such a hearing is scheduled, LFA shall provide franchisee at least 30 days' prior written notice of such public hearing, which will specify the time, place, and purpose of such public hearing, and provide franchisee the opportunity to be heard.
After the time period set forth in § §
A301-83 and
A301-84 above, in the event that LFA finds that an alleged noncompliance continues to exists and that franchisee has not corrected the same in a satisfactory manner or has not diligently commenced correction of such violation, franchisee agrees that LFA may recover liquidated damages from franchisee in the amounts set forth below following the notice and opportunity to cure provisions set forth in § §
A301-82 and
A301-83 above; provided, however, that if franchisee disputes the assessment of any liquidated damages hereunder, franchisee may request and LFA agrees to schedule a public hearing with regard to such dispute. Following the notice and opportunity to cure periods in § §
A301-82 and
A301-83 above, LFA shall provide franchisee with written notice that it intends to elect the liquidated damage remedies set forth herein. If LFA elects to recover liquidated damages for any item set forth in this §
A301-85 (including customer service violations), LFA agrees that such recovery shall be its exclusive remedy for the time period in which liquidated damages are assessed; provided, however, once LFA has ceased to assess its liquidated damages remedy as set forth in Subsection B, it may pursue other available remedies.
A. Pursuant to §
A301-83, the following monetary damages shall apply:
(1) For failure to provide cable service as set forth in § §
A301-50 through
A301-52: $100 per day for each day the violation continues.
(2) For failure to maintain the FCC technical standards as set forth in Article
X: $100 per day for each day the violation continues.
(3) For failure to provide PEG services to the community specified in §
A301-58 (contingent upon origination discussion): $100 per day for each day the violation continues.
(4) For failure to permit a franchise fee audit within 45 days of a request as set forth in §
A301-62: $100 per day for each day the violation continues.
(5) For failure to provide LFA with any reports or records
required by the agreement within the time period required: $100 per
day for each day the violation continues.
(6) For failure to meet customer service requirements with regard to § §
A301-67,
A301-68 and
A301-69 of the customer service standards set forth in Article
XIII: $300 for each quarter in which such standards were not met.
(7) For failure to carry the insurance specified in §
A301-77: $100 per day for each day the violation continues.
(8) For a transfer specified in Article
XVII without required approval: $100 per day for each day the violation continues.
(9) For failure to obtain or maintain a performance bond specified in §
A301-86: $100 per day for each day the violation continues.
B. The amount of all liquidated damages per annum shall not exceed $12,000 in the aggregate. All similar violations or failures from the same factual events affecting multiple subscribers shall be assessed as a single violation, and a violation or a failure may only be assessed under any one of the above-referenced categories. Violations or failures shall not be deemed to have occurred or commenced until they are not cured as provided in Article
XVIII.
C. Notwithstanding any provision in this agreement to the contrary, LFA is not entitled to assess liquidated damages for any violations of this agreement unless all cable operators in the Township are required to comply with, at a minimum, the material provisions of Article
XVIII.
Should LFA seek to revoke this agreement after following the procedures set forth above in this article, including any public hearing described in §
A301-84, and LFA chooses not to impose liquidated damages or ceases to impose liquidated damages, LFA shall give written notice to franchisee of such intent. The notice shall set forth the specific nature of the noncompliance. Franchisee shall have 60 days from receipt of such notice to object in writing and to state its reasons for such objection. In the event LFA has not received a satisfactory response from franchisee, it may then seek termination of the agreement at a second public hearing. LFA shall cause to be served upon franchisee, at least 30 days prior to such public hearing, a written notice specifying the time and place of such hearing and stating its intent to revoke the agreement.
A. At the designated public hearing, Franchisee shall
be provided a fair opportunity for full participation, including the
rights to be represented by legal counsel, to introduce relevant evidence,
to require the production of evidence, to compel the relevant testimony
of the officials, agents, or employees of LFA, to compel the testimony
of other persons as permitted by law, and to question and/or cross
examine witnesses. A complete verbatim record and transcript shall
be made of such hearing.
B. Following the public hearing(s), franchisee shall
be provided up to 30 days to submit its proposed findings and conclusions
to LFA in writing, and thereafter LFA shall determine whether an event
of default has occurred under this agreement; whether such event of
default is excusable; and whether such event of default has been cured
by franchisee. LFA shall also determine whether it will revoke the
franchise based on the information presented or, where applicable,
grant additional time to franchisee to effect any cure. If LFA determines
that it will revoke the franchise, LFA shall promptly provide franchisee
with a written determination setting forth LFA's reasoning for such
revocation. Franchisee may appeal such written determination of LFA
to an appropriate court of competent jurisdiction, which shall have
the power to review the decision of LFA de novo to the extent permitted
by law. Franchisee shall be entitled to such relief as the court finds
appropriate. Such appeal must be taken within 60 days, to the extent
permitted by law, of franchisee's receipt of the written determination
of LFA.
C. LFA may, at its sole discretion, take any lawful action
that it deems appropriate to enforce LFA's rights under the agreement
in lieu of revocation of the franchise.
Franchisee shall have the right to terminate this franchise and all obligations hereunder within 90 days after the end of three years from the service date of this franchise, if at the end of such three-year period franchisee does not then in good faith believe it has achieved a commercially reasonable level of subscriber penetration on its cable system making it commercially impracticable for franchisee to continue the provision of cable service in the Township. Franchisee may consider subscriber penetration levels outside the franchise area in this determination. Notice to terminate under this §
A301-88 shall be given to LFA in writing, with such termination to take effect no sooner than 120 days after giving such notice. Franchisee shall also be required to give its then current subscribers not less than 90 days prior written notice of its intent to cease cable service operations.