[HISTORY: Adopted by the Borough Council
of the Borough of Millersville 5-26-2020 by Ord. No. 2020-02.[1] Amendments noted where applicable.]
[1]
Editor's Note: This ordinance superseded former Ch. A390,
Cable Television Franchise, adopted 6-27-2006 by Ord. No. 2006-1.
The following terms used in this franchise shall have the following
meanings:
Any persons(s) or entity(ies) who own or control, are owned
or controlled by or are under common ownership or control with Comcast
of Southeast Pennsylvania, LLC, but does not include affiliated entities
that are not involved with the use, management, operation, construction,
repair and/or maintenance of Comcast Corporation's cable systems.
The service tier that includes at least the retransmission
of local broadcast television signals.
Title VI of the Communications Act of 1934, as amended by
the Cable Communications Policy Act of 1984, the Cable Television
Consumer Protection and Competitive Act of 1992 and the Telecommunications
Act of 1996, as it may, from time to time, be further amended.
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.
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 the Borough,
but such term does not include 1) a facility that serves only to retransmit
the television signals of one or more television broadcast stations;
2) a facility that serves subscribers without using any public right-of-way;
3) a facility of a common carrier which is subject, in whole or in
part, to the provisions of Title II of the Communications Act, except
that such facility shall be considered a cable system (other than
for purposes of Section 621 of the Cable Act) to the extent that facility
is used in the transmission of video programming directly to subscribers
unless the extent of that use is solely to provide interactive on-demand
services; 4) an open video system that complies with Section 653 of
the Cable Act; or 5) any facilities of any electric utility used solely
for operating its electric utility systems.
A portion of the electromagnetic frequency spectrum which
is used in a cable system and which is capable of delivering a television
channel as a television channel is defined by FCC regulation.
The federal Communications Act of 1934, as amended, and as
it may, from time to time, be further amended.
Any written (including electronic) or oral communication
by a subscriber expressing dissatisfaction with Comcast's operation
of its cable system that is within Comcast's control and requires
a corrective measure on the part of Comcast or its contractors or
subcontractors.
The coaxial or fiber optic or other cable that connects a
home or building to the cable system.
An access channel that consists of local, educational and/or
governmental programming.
A condition that either 1) constitutes a clear and immediate
danger to the health, welfare, or safety of the public; or 2) has
caused or is likely to cause the cable system in the public rights-of-way
to be unusable and result in loss of the services provided.
Federal Communications Commission.
Acts of God; acts of public enemies, including terrorist
attacks; orders of any kind of the government of the United States
of America or the Commonwealth of Pennsylvania or any of their departments,
agencies, political subdivisions, or officials, or any civil or military
authority; insurrections; riots; labor strikes; epidemics; landslides;
lightning; earthquakes; fires; hurricanes; volcanic activity; storms;
floods; washouts; droughts; explosions; unavailability of materials
or equipment; extraordinary make-ready costs; partial or entire failure
of utilities; or other event that is reasonably beyond Comcast's
ability to anticipate or control.
The authorization granted by the Borough to construct, operate
and maintain a cable system within the corporate limits of the Borough
as embodied in the terms and conditions of this agreement.
The fee that Comcast remits to the Borough pursuant to Section 622 of the Cable Act, 47 U.S.C. § 542, and § A390-6A of this agreement.
All revenue received by Comcast or its affiliated entities arising
from, attributable to, or in any way derived from the operation of
Comcast's cable system in the Borough to provide cable services,
as calculated in accordance with generally accepted accounting principles
("GAAP"). Gross revenues shall include, but are not limited to, the
following:
Basic service fees;
Fees charged to subscribers for any cable service tier other
than basic service;
Fees charged for premium cable services;
Fees for all digital video tiers;
Fees for video-on-demand;
Fees charged to subscribers for any optional, per-channel or
per-program cable services;
Revenue from the provision of any other cable services;
Charges for installation, additional outlets, relocation, disconnection,
reconnection and change-in-service fees for cable service.
Fees for changing any level of cable service programming;
Fees for service calls pertaining to cable services;
Inside wire maintenance fees for cable services;
Service plan protection fees for cable services;
Convenience fees;
Early termination fees on cable services;
Fees for leased access channels;
Charges based on the sale or lease of any portion of the cable
system for cable service;
Rental or sales of any and all equipment, including converters
and remote control devices;
Any and all locally derived advertising revenues;
Revenues or commissions from locally derived home shopping channels;
Broadcast retransmission fees;
Regional sports fee;
Late payment fees on cable services;
Billing and collection fees on cable services;
NSF check charges; and
Franchise fees.
Gross revenue shall not include refundable deposits, investment
income, programming launch support payments, nor any taxes, or other
fees or assessments imposed or assessed by any governmental authority.
Gross annual revenues shall not include actual bad debt that is written
off, consistent with generally accepted accounting principles; provided,
however, that all or any part of any such actual bad debt that is
written off, but subsequently collected, shall be included in the
gross annual revenues in the period so collected. In the event of
any dispute over the classification of revenue, the Borough and Comcast
agree that reference should be made to generally accepted accounting
principles ("GAAP") as promulgated and defined by the Financial Accounting
Standards Board ("FASB").
High definition format.
Any channel on Comcast's cable system designated for
use by any entity that is unaffiliated with Comcast pursuant to Section
612 of the Cable Act, 47 U.S.C. § 532.
Any building, buildings or area occupied by dwelling units,
appurtenances thereto, grounds and facilities, which dwelling units
are intended or designed to be owned, occupied or leased for occupation,
or actually occupied, as individual homes or residences for three
or more households.
Those hours during which most similar businesses in the community
are open to serve subscribers. In all cases, "normal business hours"
must include some evening hours at least one night per week and/or
some weekend hours.
Business conditions within Comcast's service department
which are within the control of Comcast. Those conditions that are
not within the control of Comcast include, but are not limited to,
natural disasters, civil disturbances, power outages, telephone network
outages and severe or unusual weather conditions or other conditions
of force majeure.
An interior receptacle that connects a television set to
the cable system.
Any video or audio signal carried over the cable system that
is generally considered comparable to programming provided by a television
broadcast station.
The Borough Building, police stations, fire companies, public
works buildings, and water and sewer authorities. Public buildings
shall not include buildings owned by the Borough but leased to third
parties, or buildings, such as storage facilities, at which government
employees are not regularly stationed, or to facilities used by a
private service provider, such as a private ambulance company. Public
schools and libraries may be eligible under the then-current community
investment policy of Comcast.
The surface and the area across, in, over, along, under and
upon the public streets, roads, lanes, avenues, alleys, sidewalks,
bridges, highways and other rights-of-way, as the same now or may
thereafter exist, which are under the jurisdiction or control of the
Borough.
The loss of picture or sound on all cable service channels.
A person or entity who contracts with Comcast for, and lawfully
receives, the video signals and cable services distributed by the
cable system.
A.Â
Grant of authority. Pursuant to the Cable Act, the regulations of
the FCC and Pennsylvania law, the Borough hereby grants a nonexclusive
and revocable franchise to Comcast. Subject to the terms and conditions
contained herein, the Borough hereby grants to Comcast the authority
to construct, extend, install, operate, maintain, upgrade and rebuild
a cable system, including such wires, cables, fiber, conductors, ducts,
conduits, amplifiers, pedestals, attachments and other equipment as
is necessary and appropriate to the operation of the cable system
in the public rights-of-way, including property over which the Borough
has a sufficient easement or right-of-way, for the purpose of reception,
transmission, amplification, origination, distribution or redistribution
of video and audio signals to provide cable services. Nothing herein
shall preclude Comcast from offering any other service over the cable
system as may be lawfully allowed.
B.Â
Term of franchise. The term of this agreement shall be for a period
of 10 years commencing on the date when fully executed by both parties,
unless the franchise is terminated prior to the expiration date in
accordance with the terms and conditions of this agreement.
C.Â
Representations and warranties.
(1)Â
Comcast represents, warrants and acknowledges that, as of the effective
date:
(a)Â
Comcast is duly organized, validly existing and in good standing
under the laws of the Commonwealth of Pennsylvania;
(b)Â
Comcast has the requisite approval from the applicable federal
and state agencies;
(c)Â
There is no action or proceeding pending or threatened against
Comcast which would interfere with its performance or its ability
to perform the requirements of this agreement;
(d)Â
Pursuant to Section 625(f) of the Cable Act, as of the effective
date, the performance of all terms and conditions in this agreement
is commercially practicable.
D.Â
Nonexclusivity. This franchise granted to Comcast shall be nonexclusive.
Nothing in this agreement shall affect the right of the Borough to
grant other franchises to construct, operate or maintain a cable system.
E.Â
Franchise subject to federal, state and local laws. This franchise
is subject to and shall be governed by all lawful and applicable provisions
of federal, state and generally applicable local laws and regulations.
This franchise is further subject to all generally applicable ordinances
and resolutions of the Borough. Without waiving any of its rights,
the Borough agrees that, to the extent any term of this agreement
is inconsistent with the terms of any Borough cable franchise ordinance
existing as of the effective date, this agreement shall control.
F.Â
Competitive equity.
(1)Â
Comcast acknowledges and agrees that the Borough reserves the right
to grant one or more additional franchises to construct, operate,
and maintain a cable system within the Borough.
(2)Â
The franchise granted to Comcast is nonexclusive; however, if the
Borough grants a subsequent franchise or other authorization to provide
similar wired video services, that, when taken as a whole upon consideration
of all of its material obligations, is more favorable or less burdensome
to the subsequent provider than this agreement is to Comcast, then
Comcast may request an amendment to this agreement to provide Comcast
with competitive equity. If, when taken as a whole upon consideration
of all of its material obligations, the subsequent franchise is more
favorable or less burdensome, then the Borough and Comcast shall enter
into good-faith negotiations in order to modify this agreement to
the mutual satisfaction of both parties to provide Comcast with such
competitive equity.
(3)Â
In the event an application for a new franchise for cable service
is submitted to the Borough proposing to serve subscribers within
the Borough, then the Borough shall notify Comcast in writing of the
submission of the application.
A.Â
Technical requirement.
(1)Â
Comcast shall operate, maintain, construct and extend the cable system so as to offer cable services throughout all parts of the Borough where the density requirements of Subsection B are met. The cable service provided by the cable system shall be delivered in accordance with applicable FCC standards and the Cable Act. The cable system shall meet or exceed any and all applicable technical performance standards of the FCC, the National Electrical Safety Code, the National Electrical Code and any other applicable federal laws and regulations and the laws, ordinances and construction standards of the Commonwealth of Pennsylvania and the generally applicable laws, ordinances and construction standards of the Borough.
(2)Â
Standby power at the headend(s) shall be provided in the event of
a service interruption. Standby power must activate automatically
upon the failure of commercial utility power.
B.Â
Area to be served.
(1)Â
Comcast shall make cable service available to every dwelling occupied
by a person requesting cable service, provided that Comcast is able
to obtain from the property owners any necessary easements and/or
permits in accordance with Section 621(a)(2) of the Cable Act. Comcast
shall extend the cable system beyond that which exists on the effective
date into all areas within the Borough, unserved by another wireline
video provider, where there is a minimum of 25 dwelling units per
linear plant mile of aerial cable and 50 dwelling units per underground
mile of cable, calculated from the end of the main distribution line
from which a usable cable service signal can be obtained. For purposes
of this section, a home shall only be counted as a "dwelling unit"
if such home is within 275 feet of the nearest distribution pole line
within the public right-of-way. Upon written request from the Borough,
Comcast shall conduct a survey to determine the number of dwelling
units in the requested area and shall inform the Borough of the survey
results and applicable costs to extend service to the area. In those
areas meeting the minimum density standard, Comcast shall commence
construction within 90 days after all necessary permits and pole attachment
licenses are obtained. Subject to force majeure, Comcast will make
best efforts to complete the construction of said extension within
six months from the issuance of all necessary permits and pole attachment
licenses. Comcast's obligation hereunder shall be subject to
the timely performance of walk-out, make-ready and location of all
underground utilities, weather permitting.
(2)Â
Any dwelling unit within 125 feet aerial distance from the main distribution
line shall be entitled to a standard installation rate. For any dwelling
unit in excess of 125 feet or that requires an underground installation,
Comcast shall extend the cable service if the subscriber pays Comcast
the actual cost of installation from its main distribution system,
with such cost being only the incremental portion beyond 125 feet
for aerial installations.
(3)Â
The Borough has the authority to require Comcast to place wires and/or
equipment underground, provided that the Borough imposes such requirement
on all similarly situated entities. All installations of wires and/or
equipment by Comcast shall be underground in those areas of the Borough
where the wires and/or equipment of similarly situated entities (i.e.,
telephone and electric utilities) are underground; provided, however,
that such underground locations are capable of accommodating Comcast's
facilities without technical degradation of the cable system's
signal quality. Comcast shall not be required to construct, operate,
or maintain underground any ground-mounted appurtenances such as subscriber
taps, line extenders, system passive devices, amplifiers, power supplies,
or pedestals.
(4)Â
In the event that public or private funds are made available to pay
for such underground projects, Comcast may apply or request that the
Borough apply for such funds. In the event that Comcast is required
to place existing aerial plant underground, Comcast reserves its right
to pass any remaining costs in excess of any such available public
or private funds through to subscribers if and to the extent allowed
by applicable law.
C.Â
Cable system specifications.
(1)Â
Comcast has designed, constructed, and shall maintain a cable system
that has been built for digital television standards.
(2)Â
Comcast reserves the right to alter, adjust, modify, rebuild, upgrade, redesign, or otherwise reconfigure the cable system at any time during the term of the agreement, provided that no alteration, adjustment, modification, rebuild, upgrade, redesign or other reconfiguration of the cable system shall have the effect of reducing the technical capabilities of the cable system as set forth in Subsection A.
D.Â
System tests.
(1)Â
Comcast shall be responsible for ensuring that its cable system is designed, installed and operated in a manner that fully complies with applicable FCC technical standards. Upon a showing of a pattern of subscriber complaints regarding signal quality or a determination of noncompliance related to signal quality through a compliance review under § A390-5B herein, Comcast, upon written request by the Borough, shall perform applicable tests to determine compliance with FCC technical standards. Comcast shall provide a report to the Borough within 30 days of completion of a Borough-requested test that describes the results of the test. If any test under this section indicates that the cable system fails to meet applicable FCC requirements, Comcast shall take such corrective measures as are necessary to correct any failure and to prevent their recurrence as far as is possible.
(2)Â
Upon 60 days' written request to Comcast, the Borough may inspect
the cable system at any time to ensure compliance with this agreement
and applicable law, including to ensure that the cable system is constructed
and maintained in a safe condition. The Borough reserves the right,
upon at least 60 days' notice to Comcast, to conduct a technical
audit of the cable system.
E.Â
Emergency Alert System. Comcast shall comply with the Emergency Alert
System requirements of the FCC.
F.Â
Services for subscribers with disabilities. Comcast shall comply
with all applicable federal regulations, including the Communications
Act of 1934, as amended, that ensure the provision of cable services
and related equipment are accessible to and usable by persons with
disabilities.
G.Â
Service to multiple dwelling units ("MDUs"). Comcast and the Borough
hereto acknowledge and agree that installation and provision of cable
service to MDUs are subject to a separate negotiation between the
landlord, owner or governing body of any such MDU and Comcast, which
negotiations shall be conducted in accordance with the procedures
set forth in the Cable Act, as amended, applicable FCC regulations
and applicable Pennsylvania law.
H.Â
Repairs and restoration.
(1)Â
Whenever Comcast or any of its agents, including any contractor or
subcontractor, takes up or disturbs any pavement, sidewalk or other
improvement of any public or private property, the same shall be replaced
and the surface restored in as reasonably good condition as before
the disturbance within 20 business days of the completion of the disturbance,
weather permitting. Upon failure of Comcast to comply within the time
specified and the Borough having notified Comcast in writing of the
restoration and repairs required, the Borough may cause proper restoration
and repairs to be made, and the expense of such work shall be paid
by Comcast upon demand by the Borough.
(2)Â
Whenever Comcast or any agent, including any contractor or subcontractor,
shall install, operate or maintain equipment, cable, or wires, it
shall avoid damage and injury to property, including structures, improvements
and trees, in and along the routes authorized by the Borough if required
for the proper installation, operation and maintenance of such equipment,
cable, or wires. Comcast shall promptly repair and restore any public
or property that is damaged as a result of construction, installation,
repair or maintenance of the cable system within 20 business days,
weather permitting.
(3)Â
Comcast's operation, construction, repair and maintenance personnel,
including all contractors and subcontractors, shall be trained in
the use of all equipment and the safe operation of vehicles. Such
personnel shall follow all safety procedures required by all applicable
federal, state and local laws and regulations. All areas of the cable
system shall be inspected in accordance with such applicable federal,
state and local laws and regulations so as to prevent hazardous conditions
or risks to safety for the public and/or operating and maintenance
personnel. Comcast shall install and maintain its wires, cables, fixtures,
and other equipment in such a manner as shall not interfere with any
installations of the Borough or any public utility serving the Borough.
(4)Â
Should a public safety emergency occur as a result of, incident to,
or connected with operation, construction, repair, or maintenance
activities by Comcast personnel, including all contractors and subcontractors,
then such personnel shall immediately contact the applicable public
safety emergency dispatcher (e.g., 9-1-1).
(5)Â
Whenever Comcast or any agent, including any contractor or subcontractor,
shall disturb any pavement, sidewalk or other public property in order
to perform any underground activity, it shall utilize the Pennsylvania
One Call System prior to any such disturbance. Comcast shall adhere
to any additional undergrounding requirements which the Commonwealth
may establish in the future. Comcast shall adhere to all requirements
of the Pennsylvania Underground Utility Line Protection Act.
(6)Â
All structures and all lines, equipment and connections in, over,
under, and upon streets, sidewalks, alleys, and public and private
ways and places of the Borough, wherever situated or located, shall
at all times be kept and maintained in a safe and suitable condition
and in good order and repair in accordance with customary industry
standards and practices.
I.Â
Service area maps. Upon 30 days' written request, Comcast shall permit the Borough to view a complete set of Comcast service area strand maps of the Borough on which shall be shown those areas in which facilities exist and the location of streets. The strand maps shall also designate where the cable wires and other equipment are aerial and where they are underground. Such viewing by Borough officials shall be at a mutually agreed time and location. Should the Borough wish to obtain such strand maps of the Borough for its exclusive use, Comcast shall provide such maps within 30 days of a written request, but no more than once annually and only after the Borough and Comcast have executed a nondisclosure agreement as such maps are confidential and proprietary pursuant to § A390-5A of this agreement.
J.Â
Disconnection and relocation.
(1)Â
Comcast shall, at no cost to the Borough, protect, support, temporarily
disconnect, relocate in the same street, or other public way and place,
or remove from any street or any other public way or place, any of
its property as required by the Borough or its designee by reason
of traffic conditions, street construction, change or establishment
of street grade, site distance visibility, the construction of any
public improvement or structure, or any other reason related to public
health, safety and welfare.
(2)Â
In requiring Comcast to protect, support, temporarily disconnect,
relocate or remove any portion of its property, the Borough shall
treat Comcast the same as, and require no more of Comcast than, any
other similarly situated entity utilizing the public rights-of-way.
K.Â
Emergency removal of equipment.
(1)Â
If, at any time, in case of fire or other disaster in the Borough,
it shall be necessary, in the reasonable judgment of the Borough or
its agent, to cut or move any of the wires, cable or equipment of
the cable system, the Borough shall have the right to do so without
cost or liability, provided that, wherever possible, the Borough shall
give Comcast notice and the ability to relocate wires, cable or other
equipment.
(2)Â
In cutting or moving any of the wires, cable or equipment of the
cable system in the event of fire or other disaster, the Borough shall
treat Comcast the same as, and require no more of Comcast than, any
other similarly situated entity.
L.Â
Tree trimming.
(1)Â
Comcast, or its agents, including contractors and subcontractors,
shall have the authority to trim trees upon and overhanging the public
rights-of-way so as to prevent the branches of such trees from coming
in contact with the wires, cables, or other equipment of Comcast.
Any such tree trimming shall only be performed in accordance with
applicable laws and regulations.
(2)Â
If Comcast or its agents, including contractors and subcontractors, wish to cut down and remove any tree or trees as may be necessary for the installation and/or maintenance of its equipment, it shall apply to the Borough for permission, with the exception of emergency situations as defined in § A390-1, and if permission is granted, shall perform such cutting and removal in accordance with the regulations of the Borough.
M.Â
Channel capacity. Comcast shall meet or exceed programming and channel
capacity requirements set forth in this agreement and required by
applicable federal and state law and regulations.
N.Â
Broadcast channels. To the extent required by federal law, Comcast
shall provide all subscribers with basic service, including, but not
limited to: a) all broadcast television signals carried in fulfillment
of the requirements of Section 614 of the Cable Act; b) the signals
of qualified noncommercial educational television signals carried
in fulfillment of the requirements of Section 615 of the Cable Act;
and c) any educational and governmental channel pursuant to Section
611 of the Cable Act. All such signals shall be delivered to subscribers
in accordance with FCC technical specifications.
O.Â
Signal scrambling. Comcast shall at all times comply with FCC regulations
regarding scrambling or other encryption of audio and video signals.
P.Â
Continuity of service. Subscribers shall continue to receive cable service from Comcast, provided their financial and other obligations to Comcast are honored. Subject to force majeure provisions in § A390-9A, Comcast shall use its best efforts to ensure that all subscribers receive continuous, uninterrupted service regardless of the circumstances. For the purpose of construction, routine repairing or testing of the cable system, Comcast shall use its best efforts to interrupt service only during periods of minimum use. When necessary service interruptions of more than 24 hours can be anticipated, Comcast shall notify subscribers in advance of such service interruption along with providing subscribers with a pro-rata credit for the time of such service interruption.
A.Â
Office hours and telephone availability.
(1)Â
Comcast shall provide and maintain a toll-free telephone access line
that will be available to subscribers 24 hours a day, seven days a
week. Trained representatives shall respond to subscriber telephone
inquiries during normal business hours. After normal business hours,
the access line may be answered by a service or an automated response
system. Inquiries received after normal business hours must be responded
to by a trained company representative on the next business day.
(2)Â
Under normal operating conditions and during normal business hours,
telephone answering time by a subscriber representative, including
wait time, shall not exceed 30 seconds after the connection is made.
If the call needs to be transferred, transfer time shall not exceed
30 seconds. These standards shall be met no less than 90% of the time,
measured on a quarterly basis. Under normal operating conditions,
the subscriber shall receive a busy signal less than 3% of the time.
(3)Â
Comcast will not be required to perform surveys to measure compliance with the telephone answering standards above unless a historical record of complaints indicates a clear failure to comply. If the Borough determines, after receiving complaints itself and/or receiving a record of complaints made to Comcast in accordance with § A390-4E and/or § A390-5G(1), that there is a clear failure to comply with the telephone answering requirements above, the Borough shall notify Comcast in writing that it must measure its compliance with these requirements for the next three months and report to the Borough the results of such monthly average measurements.
B.Â
Installations and service calls.
(1)Â
Comcast shall maintain a staff of employees sufficient to provide
adequate and prompt service to its subscribers. Comcast shall require
that any employee or agent, including any subcontractor, who personally
visits any residential dwelling, shall display a photo identification
badge. Any vehicle used for installation, operation or maintenance
activities by any Comcast employee or agent, including any subcontractor,
shall prominently display the Comcast or Xfinity logo.
(2)Â
Standard installations will be performed within seven business days
after an order has been placed. "Standard" installations are those
aerial installations that are located up to 125 feet from the existing
main distribution line.
(3)Â
Upon scheduling of appointments with the subscriber for installations,
service calls and other activities, Comcast shall provide the subscriber
with either a specific time or an "appointment window" of a maximum
of four hours during normal business hours. Comcast may schedule service
calls and installation activities outside of normal business hours
at a time that is convenient for the subscriber.
(4)Â
Comcast may not cancel an appointment with a subscriber after the
close of business on the business day prior to the scheduled appointment.
If, at any time, an installer or technician is running late, an attempt
to contact the subscriber must be made prior to the time of the appointment.
If the appointment must be rescheduled, it must be done so at a time
that is convenient for the subscriber.
C.Â
Notices.
(1)Â
In accordance with applicable federal law, Comcast shall provide
written information to each subscriber upon initial subscription,
and at least annually to subscribers and at any time upon request,
regarding each of the following areas:
(a)Â
Products and services offered;
(b)Â
Prices and options for programming services and conditions of
subscription to programming and other services;
(c)Â
Channel positions of programming carried on the cable system;
(d)Â
Installation and service maintenance policies;
(e)Â
Instructions on how to use the cable service and any converters;
(f)Â
Billing and subscriber complaint procedures;
(g)Â
A notice of subscriber privacy rights as required by federal
law.
(2)Â
In accordance with applicable law, Comcast shall notify subscribers
and the Borough in writing of any changes in rates, programming services
or channel positions a minimum of 30 days in advance of such changes,
provided that such change is within the control of Comcast. Comcast
shall not be required to provide prior notice to subscribers of any
rate change that is the result of a regulatory fee, franchise fee
or any other fee, tax, assessment or charge of any kind imposed by
any federal agency, the Commonwealth of Pennsylvania or the Borough
on the transaction between Comcast and the subscriber.
D.Â
Billing.
(1)Â
Bills shall be clear, concise and understandable. Bills must be fully
itemized, and shall include all applicable service tiers, equipment
charges and any installation or repair charges. Bills shall state
the billing period, including an effective due date, the amount of
current billing and any relevant credits or past due balances.
(2)Â
The Borough hereby requests that Comcast omit the Borough's
name, address, and telephone number from subscriber bills as permitted
by 47 CFR 76.952.
E.Â
Subscriber complaint procedures. Comcast shall establish clear written
procedures for resolving all subscriber complaints, which shall include
at least the following:
(1)Â
Comcast shall provide the subscriber with a written response to a
written complaint within 30 days of its receipt at the local business
office. Such response shall include the results of its inquiry into
the subject matter of the complaint, its conclusions based on the
inquiry, and its decision in response to the complaint.
(2)Â
If the Borough is contacted directly about a subscriber complaint, it shall notify Comcast promptly and in writing. When Comcast receives such notification, Comcast shall respond in writing within the time period specified in Subsection E(1).
(3)Â
Any subscriber who, in good faith, disputes all or part of any bill
sent by Comcast has the option of withholding the disputed amount,
without a late fee or disconnection, until Comcast has investigated
the dispute in good faith and has made a determination that the amount
is owed, provided that:
(a)Â
The subscriber provides a written complaint to Comcast in a
timely fashion and includes identifying information;
(b)Â
The subscriber pays all undisputed charges;
(c)Â
The subscriber cooperates in determining the appropriateness
of the charges in dispute; and
(d)Â
It shall be within Comcast's sole discretion to determine
when the dispute has been resolved.
(4)Â
Comcast shall maintain subscriber complaint records for inspection
by the affected subscriber, which shall contain the date each complaint
is received, the name and address of the affected subscriber, a description
of the complaint, the date of resolution of the complaint, and a description
of the resolution.
F.Â
Disconnection. Comcast may disconnect or terminate a subscriber's
service for cause:
(1)Â
If at least 30 days have elapsed from the due date of the bill that
the subscriber has failed to pay; and
(2)Â
If Comcast has provided at least 10 days' notice to the affected
subscriber prior to disconnection, specifying the effective date after
which cable services are subject to disconnection; and
(3)Â
If there is no pending written dispute with Comcast regarding the
bill; or
(4)Â
If at any time and without notice, Comcast determines in good faith
that the subscriber has tampered with or abused Comcast's equipment
or service, is engaged in theft of cable service or has exhibited
violent or threatening behavior toward its employees.
G.Â
Service interruptions.
(1)Â
Excluding conditions beyond its control, Comcast shall begin working
on a service interruption promptly and in no event later than 24 hours
after the interruption becomes known and shall pursue to completion.
Notice of a service interruption of a single subscriber shall give
rise to this obligation on behalf of Comcast. All other service calls
not affecting public health, safety or welfare shall occur within
a maximum of 48 hours after notice to Comcast or scheduled at the
convenience of the subscriber.
(2)Â
In the event that there is a service interruption to any subscriber
for six or more consecutive hours and upon receipt of written or credible
oral request, Comcast shall grant such subscriber a pro-rata credit
or rebate, on a daily basis, of that portion of the service charge
during the next consecutive billing cycle, or, at its option, apply
such credit to any outstanding balance that is currently due.
H.Â
Privacy. Comcast shall comply with the privacy provisions of Section
631 of the Cable Act and all other applicable federal and state privacy
laws and regulations. Comcast shall at all times maintain adequate
physical, technical and administrative security safeguards to ensure
that personally identifiable subscriber information is handled and
protected strictly in accordance with this policy and all applicable
laws and regulations.
A.Â
Right to inspect and protection of proprietary information.
(1)Â
The Borough shall have the option, upon 30 business days' written notice and during normal business hours, to inspect at the notice location for Comcast specified in § A390-9C, all documents, records and other pertinent information maintained by Comcast which relate to the terms and conditions of this agreement for the purpose of verifying compliance with the terms and conditions of this agreement and applicable law.
(2)Â
In addition, Comcast shall maintain for inspection by the public
and the Borough all records required by the FCC and as specified in
47 CFR 76.305 in the manner specified therein.
(3)Â
Notwithstanding anything to the contrary set forth herein, all information
specifically marked by Comcast as proprietary or confidential in nature
and furnished to the Borough or its designated representatives shall
be treated as confidential by the Borough so long as it is permitted
to do so under applicable law. Representatives and/or agents of the
Borough may be requested to execute a nondisclosure agreement prior
to the provision by Comcast of certain confidential information, provided
such representatives and/or agents are permitted to do so under applicable
law. Information and documentation marked by Comcast as proprietary
or confidential shall include a brief written explanation as to its
proprietary nature or confidentiality subject to review by the Borough.
The Borough and its officially designated representatives agree in
advance to treat any such information or records which Comcast reasonably
deems would provide an unfair advantage for Comcast's competitors
(e.g., system design maps, engineering plans, programming contracts,
etc.) as confidential so long as permitted to do so under applicable
law and only to disclose it to Borough employees, agents, or representatives
who have a need to know or in order to enforce the provisions of this
agreement. In the event a request is made by an individual or entity
not an employee, agent or representative of the Borough acting in
their official capacity for information related to the franchise and
marked by Comcast as confidential and/or proprietary, the Borough
shall timely notify Comcast of such request and shall cooperate with
Comcast in protecting its proprietary and confidential information
to the extent permitted by applicable law. Comcast shall not be required
to provide subscriber information in violation of Section 631 of the
Cable Act, or information which is not relevant to regulation of the
franchise (e.g., employee files, tax returns, etc.).
B.Â
Right to conduct compliance review. Not more than twice during the term of this agreement, the Borough or its representatives may conduct a full compliance review with respect to whether Comcast has complied with the material terms and conditions of this agreement so long as it provides Comcast with 45 days' written notice in advance of the commencement of any such review. Such notice shall specifically reference the section(s) or subsection(s) of the Agreement that is (are) under review, so that Comcast may organize the necessary records and documents for appropriate review by the Borough. Within 30 days of a written request, Comcast shall provide the Borough with copies of records and documents related to the cable compliance review. The period for any such review shall be for not more than the 60 months immediately previous to the notice. The Borough shall promptly inform Comcast in accordance with § A390-8A of any alleged noncompliance issues that result from the compliance review.
C.Â
Reserved authority. The Borough reserves the regulatory authority
arising from the Cable Act and any other applicable federal or state
laws or regulations. Nothing in this agreement shall remove, restrict
or reduce the Borough's authority, rights and privileges it now
holds, or which hereafter may be conferred upon it, including any
right to exercise its police powers in the regulation and control
of the use of the public rights-of-way.
D.Â
Police powers. Comcast's rights under this agreement are subject
to the police powers of the Borough to adopt and enforce general laws
and regulations necessary for the safety and welfare of the public.
Such laws and regulations are separate and distinct from the terms
and conditions contained in this agreement. If the Borough's
exercise of the police power results in a material alteration of the
terms and conditions of this agreement, then the parties shall negotiate
amendments in good faith to this agreement to the mutual satisfaction
of both parties to ameliorate the negative effects on Comcast of the
material alteration.
E.Â
No limitation on taxing or fee authority. Nothing in this section
or in this agreement shall be construed to limit the authority of
the Borough to impose any tax, fee or assessment of general applicability.
Such taxes, fees or assessments shall be in addition to franchise
fees.
F.Â
Permits. Comcast shall apply to the Borough for all generally applicable
required permits and shall not undertake any activities in the public
rights-of-way subject to a permit without receipt of such permit,
the issuance of which shall not be unreasonably withheld by the Borough.
Comcast shall not be required to obtain permits for cable service
drops for individual subscribers or for servicing or installation
of pedestals or routine maintenance that does not disturb surface
grade or impact vehicular traffic. Comcast shall pay any and all required
permit fees.
G.Â
Reporting. In addition to the other reporting requirements contained
in this agreement, upon written request, Comcast shall provide the
following reports to the Borough:
(1)Â
Subscriber complaint reports.
(a)Â
Within 30 days of a written request and no more than once per year, Comcast shall submit to the Borough a report showing the number of complaints, as defined in § A390-1, that required a service call, originating from the Borough and received during the previous twelve-month reporting period, the dates they were received, summary descriptions of the complaints, the dates the complaints were resolved and summary descriptions of the resolutions.
(b)Â
In addition, and upon written request, Comcast shall provide
a report containing at least the following statistical information
for the previous twelve-month period:
[1]Â
Number of repair service requests received;
[2]Â
Breakdown by type of complaint received (i.e., complete outage,
snowy picture, etc.);
[3]Â
Breakdown by cause of problem (i.e., subscriber equipment, drop/converter,
system, etc.);
[4]Â
Number of known service interruptions and the approximate length
of time of each such interruption
(2)Â
Government reports. Comcast shall provide to the Borough, upon written
request, copies of any and all communications, reports, documents,
pleadings and notifications of any kind which Comcast has submitted
to any federal, state or local regulatory agencies if such documents
relate specifically to Comcast's cable system within the Borough.
Comcast shall provide copies of such documents no later than 30 days
after their request.
A.Â
Franchise fees. Comcast shall pay to the Borough an amount equal
to 5% of the gross revenues derived from the operation of its cable
system to provide cable service in the Borough. Comcast shall not
deduct or otherwise credit against the franchise fee any tax, fee
or assessment of general applicability, unless required by law. The
Borough may amend the franchise fee upon written notice to Comcast,
provided that the franchise fee may not exceed the maximum percentage
permitted by law. A copy of the resolution or ordinance authorizing
the franchise fee rate adjustment by the Borough shall accompany such
written notice. Any change in Comcast's franchise fee obligation
contained herein shall commence within 90 days from such written notice.
B.Â
Quarterly payments. Franchise fee payments to the Borough under this
provision shall be computed at the end of each calendar quarter. Such
payments shall be made within 45 days following the end of each of
the first three calendar quarters and 60 days after the fourth calendar
quarter. Specifically, payments shall be due and payable on or before
May 15 (for the first quarter), August 15 (for the second quarter),
November 15 (for the third quarter), and March 1 (for the fourth quarter).
In the event that any franchise fee payment is not made on or before
the date by which it is due, then interest calculated at the then-current
prime rate, as published by The Wall Street Journal, shall be added
to the amount of franchise fee revenue due to the Borough. The interest
rate shall be applied as described from the date such franchise fee
payment was originally due. No acceptance of any payment shall be
construed as an accord that the amount paid is in fact the correct
amount, nor shall acceptance of any payment be construed as a release
of any claim the Borough may have for additional sums payable under
this agreement. Upon request and if mutually agreeable, Comcast shall
deposit the franchise fee payments electronically into an account
as designated by the Borough.
C.Â
Quarterly reports. Within 10 days of each franchise fee payment described in Subsection B above, Comcast shall provide a written report containing an accurate statement of Comcast's gross revenues received for cable services for each calendar quarter in connection with the operation of Comcast's cable system and showing the basis for the computation of fees. Specifically, the report shall contain line items for sources of revenue received and the amount of revenue received from each source. The report shall be verified by a financial representative of Comcast.
D.Â
Franchise fee review. Not more than twice during the franchise term,
the Borough shall have the right to conduct a franchise fee review
or audit of Comcast's records reasonably related to the sources,
amounts and computation of gross revenues. Any such franchise fee
review or audit shall occur within 60 months from the date the Borough
receives such payment, after which period any such payment shall be
considered final. Within 30 days of a written request, Comcast shall
provide the Borough with copies of financial records related to the
franchise fee review or audit.
(1)Â
In the event of an alleged underpayment, the Borough shall provide
Comcast with a written statement indicating the basis for the alleged
underpayment. If the franchise fee review or audit reveals that there
have been no underpayments, the Borough shall provide written notice
to Comcast indicating that no underpayments were found and that the
franchise fee review is closed. Comcast shall have 30 days from the
receipt of the statement regarding an alleged underpayment to provide
the Borough with any written objection to the results of the franchise
fee review, including any substantiating documentation. Based on this
exchange of information, the Borough shall make a final determination
of the underpayment(s), if any, within 30 days of Comcast's objection
and shall provide Comcast with written notice of the determination.
If Comcast disputes the Borough's final determination, it may
submit the dispute to mediation or arbitration within 30 days of receiving
the Borough's written notice of determination. In the event that
Comcast fails to submit the matter to mediation or arbitration within
the required time period, the Borough's final determination shall
be binding on Comcast.
(2)Â
Any franchise fee payment due to the Borough as a result of the franchise
fee review shall be paid to the Borough by Comcast within 45 days
from the date the Borough notifies Comcast of its final determination,
or if the matter is submitted to mediation or litigation, within 45
days from the final disposition of such action. If the franchise fee
review shows that franchise fees have been underpaid, then Comcast
shall pay the underpaid amount plus interest from the due date equal
to the then-current prime rate of interest as published in The Wall
Street Journal on the underpayment amount. If franchise fees have
been underpaid by 5% or more, then Comcast shall also pay up to $3,000
of documented out-of-pocket costs of the franchise fee review. Any
entity employed by the Borough that performs an audit or franchise
fee review shall not be permitted to be compensated on a success-based
formula, e.g., payment based upon underpayment of fees, if any.
E.Â
Bundled services. All revenue earned from bundled services shall
be allocated to cable service and non-cable service in accordance
with generally accepted accounting principles (GAAP). It is understood
that in some cases equipment and other non-service charges may be
allocated at full retail price due to requirements related to sales
taxes or similar tax requirements. To the extent such allocations
are discretionary or otherwise not addressed by GAAP, allocations
of revenue from such bundles shall not be structured for the purpose
of evading franchise fees applicable to cable services.
A.Â
Services to community facilities.
(1)Â
Comcast shall provide a cable service drop and basic service with
any necessary cable box to one outlet at each public building listed
in Exhibit A.[1] In accordance with applicable law, Comcast will charge
the fair market value for each such account, which fair market value
shall match the then-current rate card for the level of service provided.
Comcast shall notify the Borough in writing regarding the amount of
the monthly service fee for each account based on fair market value.
The Borough shall then notify Comcast, within 30 days of receiving
the notice from Comcast, whether it wishes the amount due each month
to be invoiced for payment or deducted from the next franchise fee
payment. The Borough may upgrade the level of cable service received
at then-current rate card prices for the higher level of service.
The Borough may also elect in writing not to receive the service,
in which case it will not be invoiced and no deduction will be taken
from the franchise fee.
[1]
Editor's Note: Said exhibit is included as an attachment to this chapter.
(2)Â
In the event the FCC's 2019 Third Report and Order In the Matter
of Implementation of Section 621 of the Cable Act is reversed on appeal
as to the issue of complimentary cable services as in-kind contributions
in a cable franchise and such result becomes final within 30 days
of the result becoming final, Comcast will discontinue the charge
for basic service for the public building locations listed in Exhibit
A and provide such service on a complimentary basis. Any additional
levels of cable service, outlets, or service locations ordered by
the Borough shall continue to be subject to standard rates.
(3)Â
During the term of the franchise, the Borough may change a public
building location listed in Exhibit A upon 90 days' written notice
to Comcast, provided that the new location is within 125 feet of existing
Comcast cable distribution plant.
B.Â
Educational and governmental (EG) channel.
(1)Â
Comcast shall continue to provide to the Borough the use of one or
more educational and governmental ("EG") access channel(s) in accordance
with Section 611 of the Cable Act. Such EG channel(s) shall be used
for community programming related to educational and/or governmental
activities. The Borough shall have complete control over the content,
scheduling, administration and all other programming aspects of the
EG channel(s), and may delegate such functions, or a portion of such
functions, to a designated access provider. Comcast shall not exercise
any editorial control over EG channel programming. Comcast shall cablecast
the activated EG channel(s) so that it (they) may be received by all
Comcast subscribers in the Borough.
(2)Â
To enable the Borough to utilize the EG channel(s), Comcast shall
continue to maintain direct fiber links, including activation equipment
capable of transmitting high-quality video and audio between the video
origination location and the Comcast headend such that live programming
can originate from this selected location and be distributed via the
cable system to subscribers in the Borough. This fiber link and equipment
shall be collectively known as the "return line." Comcast shall determine
the engineering solution necessary to allow distribution of the EG
channel(s) programming, via the cable system, to subscribers in the
Borough.
(3)Â
Comcast shall be responsible for maintaining the return line(s) to
the origination site(s) of the EG channel(s) so long as the Borough
provides Comcast with access to such location and access to the EG
channel equipment within such locations. Comcast shall provide, install
and maintain in good working order the equipment and the cable necessary
for transmitting the signal to the channel aggregation site for further
processing and distribution to subscribers. Comcast shall maintain
the EG channel in accordance with the same FCC technical specifications
that are comparable to the specifications used to maintain commercial
channels transmitted to subscribers on the cable system, except that
it shall not be responsible for the technical signal quality of programming
produced by any EG channel programmer.
(4)Â
Any expenditure made in connection with the construction of the return
line shall be at the expense of the Borough. The Borough and Comcast
further agree that all costs incurred by Comcast for supporting such
EG channel, including any and all equipment, and EG capital support
grants may be designated as "costs of franchise requirements" or "external
costs" as defined by the FCC, and Comcast reserves its right to pass
these costs through to the subscribers pursuant to federal law.
(5)Â
The Borough or its designee shall be responsible for providing any
necessary production or playback equipment and shall be responsible
for securing and supervising any trained/qualified personnel who conduct
the operation of the EG channel. The Borough and Comcast agree to
work cooperatively in implementing the EG channel through such means
and in such manner as shall be mutually satisfactory.
(6)Â
Within 180 days of a written request by the Borough, Comcast shall,
at the Borough's expense, relocate the EG origination site and
the associated return line as follows: i) Comcast's obligation
shall be subject to the same terms and conditions that apply to the
original EG origination site in this section; and ii) the Borough
shall provide access to such site at least 90 days prior to anticipated
use of the new EG origination site. The timeline for relocation of
the EG origination site shall be subject to the timely granting of
any and all required permits, walk-out, make-ready, and the detection
of all underground utilities.
(7)Â
In the event the Borough or its designee does not program any EG
channel, Comcast may request the use of this channel subject to written
approval by the Borough. If the Borough approves Comcast's use
of an EG channel and, subsequent to such approval, the Borough requests
the utilization of the EG channel being programmed by Comcast, Comcast
shall relinquish such use no later than 60 days after receipt of written
notification from the Borough that it requires such channel for educational
and/or governmental use.
(8)Â
Comcast shall use its best efforts to maintain the channel assignments
for the current EG channel(s) as of the effective date. Notwithstanding
the foregoing, in the event that Comcast deems a change in any EG
channel assignment to be necessary and changes any channel assignment
in accordance with this section, Comcast shall comply with the following
requirements. Comcast shall provide the Borough 30 days' advance
written notice of any change in EG channel assignments.
C.Â
EG capital grant. Comcast shall provide the Borough with a one-time
EG capital grant to be used in support of the production of local
EG channel programming. The Borough shall ensure the use of the EG
capital grant is consistent with federal law. The EG grant provided
by Comcast shall be in the amount of $11,226. Such grant is to be
paid to the Borough within 90 days of the effective date of this agreement.
Comcast and the Borough agree that the cost of such grant may be designated
as a "cost of franchise requirements" or "external cost" as defined
by the FCC, and Comcast reserves its right to pass these costs through
to the subscribers over the entire term of the Agreement pursuant
to federal law.
A.Â
Violations and opportunity to cure.
(1)Â
If the Borough has reason to believe that Comcast violated any material
provision of this agreement, it shall notify Comcast in writing of
the nature of such violation and the section(s) of this agreement
that it believes has been violated and the details relating thereto.
The person providing such notice shall do so pursuant to the requisite
authority of the Borough.
(2)Â
Comcast shall have 45 days to cure such violation after written notice
is received by taking reasonable steps to comply with the terms of
this agreement. If the nature of the violation is such that it cannot
be fully cured within 45 days, the period of time in which Comcast
must cure the violation shall be extended by the Borough in writing
for such additional time necessary to complete the cure, provided
that Comcast shall have promptly commenced to cure and is taking reasonable
steps to complete the cure in the reasonable judgment of the Borough.
(3)Â
If the violation has not been cured within the time period allowed under Subsection A(2) and, in the Borough's judgment, Comcast has not taken reasonable steps to cure the violation, then the Borough may deem that Comcast is liable for liquidated damages and/or any other right or remedy in accordance with this § A390-8.
B.Â
Liquidated damages.
(1)Â
Because Comcast's failure to comply with the material terms of this agreement may result in harm to the Borough and because it will be difficult to measure the extent of such injury, the Borough may assess liquidated damages against Comcast in the amount of $250 per day for each day the violation continues, provided Comcast has had an opportunity to cure in accordance with Subsection A(2). Such damages shall not be a substitute for specific performance by Comcast or legal action by the Borough, but shall be in addition to such specific performance or legal action.
(2)Â
The first day for which liquidated damages may be assessed, if there
has been no cure after the end of the applicable cure period, shall
be the day after the end of the applicable cure period, including
any extension of the cure period granted by the Borough. Liquidated
damages may not be assessed for a time period exceeding 120 days per
violation. The Borough may commence revocation proceedings and/or
initiate an action in law or equity in a court of competent jurisdiction
after the assessment of liquidated damages or in lieu of liquidated
damages. With respect to liquidated damages assessed, all similar
violations or failures resulting from the same factual events affecting
multiple subscribers shall be assessed as a single violation.
C.Â
Revocation.
(1)Â
In addition to the other rights, powers and remedies retained by
the Borough under this agreement, the Borough reserves the separate
and distinct right to revoke this franchise if:
(a)Â
It is demonstrated that Comcast practiced any fraud or deceit
upon the Borough in the operation of its cable system or any other
activities pursuant to this agreement;
(b)Â
Comcast repeatedly fails, after notice and opportunity to cure, to maintain signal quality pursuant to the standards provided for by the FCC or the technical requirements set forth in § A390-3A;
(c)Â
Comcast repeatedly violates, after notice and opportunity to
cure, one or more of the material terms or conditions of this agreement.
(2)Â
The foregoing shall not constitute a violation of a material term or condition if the violation occurs without the fault of Comcast or occurs as a result of circumstances beyond its control or by reason of force majeure as defined in § A390-9A. Comcast shall not be excused from the performance of any of its obligations under this franchise by mere economic hardship or by the misfeasance or malfeasance of its directors, officers or employees.
(3)Â
A revocation shall be declared only by a written decision of the
Borough Council after an appropriate public hearing that shall afford
Comcast due process and full opportunity to be heard. This shall include
the ability to introduce evidence, to question witnesses and to respond
to any notice of grounds to terminate in accordance with the standards
of a fair hearing applicable to administrative hearings in the Commonwealth
of Pennsylvania. All notice requirements shall be met by providing
Comcast at least 30 days' prior written notice (via certified
mail, return receipt requested) of any public hearing concerning the
proposed revocation of this franchise. Such notice shall state the
grounds for revocation. The Borough, after a public hearing and upon
finding the existence of grounds for revocation, may either declare
this franchise terminated or excuse such grounds upon a showing by
Comcast of mitigating circumstances or good cause for the existence
of such grounds. The Borough shall issue such declaration and finding
within 30 days in a written decision, which shall be sent via certified
or overnight mail to Comcast. If Comcast appeals such determination
to an appropriate court, the revocation shall be stayed.
D.Â
Performance bond.
(1)Â
Comcast shall obtain and maintain, throughout the term of this agreement, at its sole cost and expense, a performance bond with a surety company licensed to do business in the Commonwealth of Pennsylvania to ensure Comcast's faithful performance of its obligations. The performance bond shall provide that the Borough may recover from the principal and surety any and all liquidated damages and/or compensatory damages incurred by the Borough for Comcast's violations of this agreement, after notice and opportunity to cure, in accordance with Subsections A and B.
(2)Â
The performance bond shall be in the amount of $25,000. Comcast shall
not reduce, cancel or materially change said bond from the requirement
contained herein without the express prior written permission of the
Borough.
E.Â
Insurance.
(1)Â
Comcast shall obtain and maintain, in full force and effect, at its
sole cost and expense, during the franchise term, the following minimum
insurance coverage with an insurance company that is authorized to
conduct business in Pennsylvania and which has an A.M. Best rating
(or equivalent) no less than A-minus VII, indemnifying the Borough
from and against any and all claims for injury or damage to persons
or property, both real and personal, caused by the construction, installation,
reconstruction, operation, maintenance or removal of the cable system
by Comcast or any of its contractors, subcontractors, agents or employees
in the following amounts:
(a)Â
The amount of such insurance against liability for damage to
property shall be no less than $1,000,000 as to any one occurrence.
(b)Â
The amount of such insurance against liability for injury or
death to any person shall be no less than $1,000,000.
(c)Â
The amount of such insurance for excess liability shall be $3,000,000
in umbrella form.
(d)Â
The amount of such insurance against all claims arising out
of the operation of motor vehicles shall be $1,000,000 combined single
limit per occurrence.
(2)Â
The Borough, its officials and employees, shall be designated as additional insureds under each of the insurance policies required in this Subsection E.
(3)Â
Comcast shall not cancel any required insurance policy without obtaining alternative insurance in conformance with this Subsection E and without submitting insurance certificates to the Borough verifying that Comcast has obtained such alternative insurance. Comcast shall provide the Borough with at least 30 days' prior written notice in the event the policies are canceled or not renewed.
(4)Â
Comcast shall deliver to the Borough certificates of insurance showing
evidence of the required coverage within 30 days of a written request
by the Borough.
F.Â
Indemnification. Comcast shall indemnify, defend, save and hold harmless
the Borough, its elected and appointed officials, officers, agents
and employees acting in their official capacities, from claims for
injury, loss, liability, cost or expense arising in whole or in part
from, caused by or connected with any act or omission of Comcast,
its officers, agents, contractors, subcontractors or employees, arising
out of, but not limited to, the construction, installation, upgrade,
reconstruction, operation, maintenance or removal of the cable system.
The Borough shall give Comcast timely written notice of its obligation
to indemnify and defend the Borough. The obligation to indemnify,
defend, save and hold the Borough harmless shall include, but not
be limited to, the obligation to pay judgments, injuries, liabilities,
damages, penalties, and reasonable attorneys' fees. If the Borough
determines that it is necessary for it to employ separate counsel,
in addition to that provided by Comcast, the cost for such separate
counsel shall be the responsibility of the Borough. Comcast shall
not indemnify the Borough for any claims resulting from acts of willful
misconduct or negligence on the part of the Borough.
A.Â
Force majeure. If for any reason of force majeure, Comcast is unable
in whole or in part to carry out its obligations hereunder, Comcast
shall not be deemed in violation of this agreement during the continuance
of such inability. Comcast shall notify Borough within 90 days if
a condition of force majeure causes an inability to complete a project
otherwise meeting the density and other requirements in this agreement.
B.Â
Removal of system.
(1)Â
Upon lawful termination or revocation of this agreement, Comcast
shall remove its supporting structures, poles, transmissions and distribution
systems and other appurtenances from the streets, ways, lanes, alleys,
parkways, bridges, highways, and other public and private places in,
over, under, or along which they are installed and shall reasonably
restore the areas to their original condition. If such removal is
not completed within six months of such lawful termination or revocation,
the Borough or property owner may deem any property not removed as
having been abandoned, and the Borough may remove it at Comcast's
cost.
(2)Â
During the term of the Agreement, if Comcast decides to abandon or
no longer use all or part of its cable system, it shall give the Borough
written notice of its intent at least 90 days prior to the announcement
of such decision, which notice shall describe the property and its
location. Upon Comcast's abandonment of the cable system, the
Borough shall have the right to either require Comcast to remove the
property, or remove the property itself and charge Comcast with the
reasonable costs related thereto.
(3)Â
Notwithstanding the above, Comcast shall not be required to remove
its cable system, or to relocate the cable system, or to sell the
cable system, or any portion thereof, as a result of revocation, denial
of renewal, or any other lawful action to forbid or disallow Comcast
from providing cable services, if the cable system is actively being
used to facilitate any other services not governed by the Cable Act.
C.Â
Notices.
(1)Â
Every notice or payment to be served upon or made to the Borough
shall be either by hand delivery or first-class mail, registered or
certified, return receipt requested, postage prepaid, or by reputable
overnight courier service or electronic mail and addressed to:
|
Millersville Borough
100 Municipal Drive
Millersville, PA 17551
Attention: Borough Manager
|
(2)Â
Every legal notice to be served upon or made to the Borough shall,
in addition to the notice address above, also be delivered or mailed
as described above to:
|
Cohen Law Group
413 S. Main Street
Pittsburgh, PA 15215
|
(3)Â
The Borough may specify any change of address in writing to Comcast.
Every notice to be served upon or made to Comcast shall be either
by hand delivery or first-class mail, registered or certified, return
receipt requested, postage prepaid, or by reputable overnight courier
service or electronic mail and addressed to:
|
Comcast of Southeast Pennsylvania, LLC
15 Summit Park Drive
Pittsburgh, PA 15275
Attention: VP, Government Affairs Department
|
|
With copies to:
One Comcast Center
1701 John F. Kennedy Boulevard
Philadelphia, PA 19103-2838
Attention: Legal Department/Franchise
|
|
AND
|
|
Comcast
Northeast Division
676 Island Pond Road
Manchester, NH 03109
Attention: Government Affairs Department
|
(4)Â
Comcast may specify any changes of address in writing to the Borough.
Each delivery to Comcast or the Borough shall be equivalent to direct
personal notice, direction or order, and shall be deemed to have been
given at the time of receipt.
D.Â
Equal employment opportunity. Comcast is an equal opportunity employer
and shall comply with all applicable federal and state laws and regulations
regarding equal opportunity employment.
E.Â
Captions. The captions for sections throughout this agreement are
intended solely to facilitate reading and reference to the sections
and provisions of this agreement. Such captions shall not affect the
meaning or interpretation of this agreement.
F.Â
Governing law; venue. This agreement shall be governed and construed
by and in accordance with the laws of the Commonwealth of Pennsylvania.
If suit is brought by a party to this agreement, the parties agree
that trial of such action shall be vested exclusively in the state
courts of Pennsylvania, County of Lancaster, or in the United States
District Court for the Eastern District of Pennsylvania.
G.Â
Transfer, assignment or change in control.
(1)Â
Neither Comcast nor its parent nor any affiliated entity shall transfer,
assign or otherwise encumber, through its own action or by operation
of law, its right, title or interest in the cable system or in this
agreement without the prior written consent of the Borough, provided
that such consent shall not be unreasonably withheld.
(2)Â
Neither Comcast nor its parent nor any affiliated entity shall change,
transfer or assign, through its own action or by operation of law,
its control of the cable system or of this agreement without the prior
written consent of the Borough, provided that such consent shall not
be unreasonably withheld.
(3)Â
Neither Comcast nor its parent nor any affiliated entity shall sell,
convey, transfer, exchange or release 51% or more of its direct ownership
in the cable system without the prior written consent of the Borough,
provided that such consent shall not be unreasonably withheld.
(4)Â
No such consent shall be required for i) a transfer in trust, by
mortgage, hypothecation, or by assignment to a financial institution
of any rights, title or interest of Comcast in the franchise or in
the cable system in order to secure indebtedness; or ii) a transfer
to an entity owned and/or controlled by Comcast.
(5)Â
Comcast shall make written application to the Borough of any transfer,
assignment or change in control as described above and shall provide
all information required by FCC Form 394 and any other applicable
federal, state, and local statutes and regulations regarding transfer
or assignment. The Borough shall have 30 days from the receipt of
FCC Form 394 to notify Comcast of any additional information it needs
to make an informed decision on the transfer or assignment. The Borough
shall have 120 days from the receipt of all required information to
take action on the transfer or assignment.
(6)Â
Any consent by the Borough for any transfer or assignment described
above shall not be effective until the proposed transferee or assignee
shall have executed a legally binding document stating that it shall
be bound by all the terms and conditions contained in this agreement.
H.Â
Entire agreement. This written instrument contains the entire agreement
between the parties, supersedes all prior agreements or proposals,
whether written or oral, except as specifically incorporated herein,
and cannot be changed without written amendment approved by both the
Borough and Comcast. This agreement supersedes all prior cable franchise
agreements or cable ordinances, or parts of cable franchise agreements
or cable ordinances, agreements, representations or understandings,
whether written or oral, of the parties regarding the subject matter
hereof that are in conflict with the provisions herein.
I.Â
Severability. If any section, provision or clause of this agreement
is held by a court of competent jurisdiction to be illegal, invalid
or unenforceable, or is pre-empted by federal or state laws or regulations,
such section, provision or clause shall be deemed to be separable
from the remaining portions of this agreement and shall not affect
the legality, validity or enforceability of the remaining portions
of this agreement.
J.Â
No waiver of rights.
(1)Â
No course of dealing between the Borough and Comcast, nor any delay
on the part of the Borough in exercising any rights hereunder, shall
operate as a waiver of any such rights of the Borough or acquiescence
in the actions of Comcast in contravention of such rights, except
to the extent expressly waived by the Borough.
(2)Â
No course of dealing between Comcast and the Borough, nor any delay
on the part of Comcast in exercising any rights hereunder, shall operate
as a waiver of any such rights of Comcast or acquiescence in the actions
of the Borough in contravention of such rights, except to the extent
expressly waived by Comcast.
K.Â
Change of law. In the event there is a change in a federal or state
statute or regulation applicable to the cable system or to this agreement,
the Borough or Comcast may notify the other party of its desire to
amend this agreement in order to comply with the change in statute
or regulation. The Borough and Comcast shall amend this agreement
to comply with such change in statute or regulation, provided such
amendment is approved by the Borough and Comcast.
L.Â
Compliance with laws. Comcast shall comply with all federal, state
and generally applicable local laws and regulations.
M.Â
No third-party beneficiaries. Nothing in this agreement is or was
intended to confer third-party beneficiary status on any person other
than the parties to this agreement to enforce the terms of this agreement.
N.Â
Applicability of agreement. All of the provisions in this agreement
shall bind Comcast, the Borough and their respective successors and
assigns. This agreement is authorized by Ordinance No. 2020-02 dated
May 26, 2020, of the Borough Council.
