[HISTORY: Adopted by the Mayor and Council of the Town of Snow Hill 3-8-2016 by Ord. No. 2016-04. Amendments noted where applicable.]
Satellite dish antennas — See Ch. 140.
Editor's Note: This ordinance also repealed former Ch. A205, Cable Television Franchise adopted 7-11-1995 by Ord. No. 1995-8.
For the purpose of this Franchise Agreement, capitalized terms, phrases, words, and abbreviations shall have the meanings ascribed to them in the Cable Communications Policy Act of 1984, as amended from time to time, 47 U.S.C. §§ 521 through 631 (the "Cable Act"), unless otherwise defined herein. When not inconsistent with the context, words used in the present tense include the future, words used to refer to the masculine include the feminine, and words in the plural number include the singular number. The word "shall" is mandatory and "may" is permissive. Words not defined in the Cable Act or herein shall be given their common and ordinary meaning.
- CABLE SERVICE or SERVICE
- 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.
- CABLE SYSTEM
- 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 franchise area, and as further defined under § 602(7) of the Cable Act.
- CUSTOMER or SUBSCRIBER
- A person or user of the cable system who lawfully receives cable service therefrom with the franchisee's express permission.
- EFFECTIVE DATE
- April 30, 2016.
- The Federal Communications Commission or successor governmental entity thereto.
- The initial authorization, or renewal thereof, issued by the franchising authority, whether such authorization is designated as a franchise, agreement, permit, license, resolution, contract, certificate, ordinance or otherwise, which authorizes the construction and operation of the cable system.
- FRANCHISE AGREEMENT or AGREEMENT
- This agreement and any amendments or modifications hereto.
- FRANCHISE AREA
- The present legal boundaries of the Town of Snow Hill, as of the effective date, and shall also include any additions thereto, by annexation or other legal means during the term of the franchise, as per the requirements set forth in § A205-13L. of this agreement.
- Comcast of Delmarva, LLC.
- FRANCHISING AUTHORITY
- The Town or the lawful successor, transferee, designee, or assignee thereof.
- GROSS REVENUE
- Revenue derived by the franchisee from the operation of the cable system in the franchise area to provide cable service, calculated in accordance with generally accepted accounting principles ("GAAP"). Gross revenue includes monthly basic cable, premium and pay-per-view video fees, installation fees and subscriber equipment rental fees. Gross revenue shall not include program launch support payments, revenue from advertising and home shopping, refundable deposits, late fees, investment income, nor any taxes, franchise fees 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.
- Any natural person or any association, firm, partnership, joint venture, corporation, or other legally recognized entity, whether for-profit or not-for profit, but shall not mean the franchising authority.
- PUBLIC BUILDINGS
- Those buildings owned or leased by the franchising authority for municipal government administrative purposes, and shall not include buildings owned by franchising authority but leased to third parties or buildings such as storage facilities at which government employees are not regularly stationed.
- PUBLIC WAY
- The surface of, and the space above and below, any public street, highway, freeway, bridge, land path, alley, court, boulevard, sidewalk, way, lane, public way, drive, circle, park or other public right-of-way, including, but not limited to, public utility easements, dedicated utility strips, or easements dedicated for compatible uses and any temporary or permanent fixtures or improvements located thereon now or hereafter held by the franchising authority in the franchise area, which shall entitle the franchisee to the use thereof for the purpose of installing, operating, repairing, and maintaining the cable system. Public way shall also mean any easement now or hereafter held by the franchising authority within the franchise area for the purpose of public travel, or for utility or public service use dedicated for compatible uses, and shall include other easements or rights-of-way as shall within their proper use and meaning entitle the franchisee to the use thereof for the purposes of installing, operating, and maintaining the franchisee's cable system over poles, wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, attachments, and other property as may be ordinarily necessary and pertinent to the cable system.
- STANDARD INSTALLATION
- The standard 125 foot aerial drop connection to the existing distribution system.
- The Town of Snow Hill, Maryland.
- VIDEO PROGRAMMING or PROGRAMMING
- The programming provided by, or generally considered comparable to programming provided by, a television broadcast station.
- VIDEO SERVICE PROVIDER or VSP
- Any entity using the public rights-of-way to provide multiple video programming services to subscribers, for purchase or at no cost, regardless of the transmission method, facilities, or technology used. A VSP shall include but is not limited to any entity that provides cable services, multichannel multipoint distribution services, broadcast satellite services, satellite-delivered services, wireless services, and internet-protocol based services.
Franchise grant. The franchising authority hereby grants to the franchisee a nonexclusive franchise authorizing the franchisee to construct and operate a cable system in the public ways within the franchise area, and for that purpose to erect, install, construct, repair, replace, reconstruct, maintain, or retain in any public way such poles, wires, cables, conductors, ducts, conduits, vaults, manholes, pedestals, amplifiers, appliances, attachments, and other related property or equipment as may be necessary or appurtenant to the cable system, and to provide such services over the cable system as may be lawfully allowed.
Term of franchise. The term of the franchise granted hereunder shall be 15 years, commencing upon the Effective Date of the franchise, unless the franchise is renewed or is lawfully terminated in accordance with the terms of this franchise agreement and the Cable Act.
Renewal. Any renewal of this franchise shall be governed by and comply with the provisions of § 626 of the Cable Act (47 U.S.C. § 546), as amended.
Permits and general obligations. The franchisee shall be responsible for obtaining all generally applicable permits, licenses, or other forms of approval or authorization prior to the commencement of any activity that disturbs the surface of any street, curb, sidewalk or other public improvement in the public way, or impedes vehicular traffic. The issuance of such permits shall not be unreasonably withheld or delayed. Construction, installation, and maintenance of the cable system shall be performed in a safe, through and reliable manner using materials of good and durable quality. Notwithstanding the requirements herein, the franchisee shall not be required to obtain a permit for individual drop connections to subscribers, servicing or installing pedestals or other similar facilities, or other instances of routine maintenance or repair to its cable system. All transmission and distribution structures, poles, other lines, and equipment installed by the franchisee for use in the cable system in accordance with the terms and conditions of this franchise agreement shall be located so as to minimize the interference with the proper use of the public ways and the rights and reasonable convenience of property owners who own property that adjoins any such public way.
Conditions of street occupancy.
New grades or lines. If the grades or lines of any public way within the franchise area are lawfully changed at any time during the term of this franchise agreement, then the franchisee shall, upon reasonable advance written notice from the franchising authority (which shall not be less than 30 business days) and at its own cost and expense, protect or promptly alter or relocate the cable system, or any part thereof, so as to conform with any such new grades or lines. If public funds are available to any other user of the public way for the purpose of defraying the cost of any of the foregoing, the franchising authority shall notify franchisee of such funding and make available such funds to the franchisee.
Relocation at request of third party. The franchisee shall, upon reasonable prior written request of any person holding a permit issued by the franchising authority to move any structure, temporarily move its wires to permit the moving of such structure; provided the franchisee may impose a reasonable charge on any person for the movement of its wires, and such charge may be required to be paid in advance of the movement of its wires; and the franchisee is given not less than 30 business days advance written notice to arrange for such temporary relocation.
Restoration of public ways. If in connection with the construction, operation, maintenance, or repair of the cable system, the franchisee disturbs, alters, or damages any public way, the franchisee agrees that it shall at its own cost and expense replace and restore any such public way to a condition reasonably comparable to the condition of the public way existing immediately prior to the disturbance.
Safety requirements. The franchisee shall undertake all necessary and appropriate efforts to maintain its work sites in a safe manner in order to prevent failures and accidents that may cause damage, injuries or nuisances. All work undertaken on the cable system shall be performed in substantial accordance with applicable FCC or other federal and state regulations. The cable system shall not unreasonably endanger or interfere with the safety of persons or property in the franchise area.
Trimming of trees and shrubbery. The franchisee shall have the authority to trim trees or other natural vegetative growth encroaching or overhanging any of its cable system in the franchise area so as to prevent contact with the franchisee's wires, cables, or other equipment. All such trimming shall be done at the franchisee's sole cost and expense. The franchisee shall be responsible for any collateral, real property damage caused by such trimming.
Aerial and underground construction. At the time of cable system construction, if all of the transmission and distribution facilities of all of the respective public or municipal utilities in any area of the franchise area are underground, the franchisee shall place its cable system transmission and distribution facilities underground, provided that such underground locations are actually capable of accommodating the franchisee's cable and other equipment without technical degradation of the cable system's signal quality. In any region(s) of the franchise area where the transmission or distribution facilities of the respective public or municipal utilities are both aerial and underground, the franchisee shall have the discretion to construct, operate, and maintain all of its transmission and distribution facilities, or any part thereof, aerially or underground. Nothing in this agreement shall be construed to require the franchisee to construct, operate, or maintain underground any ground-mounted appurtenances such as customer taps, line extenders, system passive devices, amplifiers, power supplies, pedestals, or other related equipment.
Undergrounding and beautification projects. In the event all users of the public way relocate aerial facilities underground as part of an undergrounding or neighborhood beautification project, the franchisee shall participate in the planning for relocation of its aerial facilities contemporaneously with other utilities. The franchisee's relocation costs shall be included in any computation of necessary project funding by the municipality or private parties. The franchisee shall be given reasonable notice and access to the public utilities' facilities at the time that such are placed underground and shall be entitled to reimbursement of its relocation costs from public or private funds raised for the project and made available to other users of the public way. In the event that public and/or private funds are not available, the franchisee reserves the right to pass its costs through to its Subscribers in accordance with applicable law.
General service obligation. The franchisee shall make cable service available to every occupied residential dwelling unit within the franchise area where the minimum density is at least 30 occupied dwelling units per mile with aerial cable or 60 residential occupied dwelling units per mile in areas with underground cable and is within one mile as measured in strand footage from the nearest point on the cable system trunk or feeder line from which a usable cable signal can be obtained. For purposes of this section, a home shall be counted as a "dwelling unit" if, and only if, such home is within 275 feet of the public right-of-way. Subject to the density requirement, the franchisee shall offer cable service to all new homes or previously unserved homes located within 125 feet of the franchisee's distribution cable at the standard installation rate. Should, through new construction, an area within the franchise area meet the density requirements, the franchisee shall provide cable service to such area within one year after it confirms that the density requirements have been met following notice from the franchising authority that one or more residents has requested service.
Elective obligation. The franchisee may elect to extend service to areas that do not otherwise qualify to receive service under this section if any resident or group of residents agree in writing to pay to the franchisee the cost of construction, including materials, labor, and the total cost of any easement(s) necessary to accomplish the proposed line extension. One half of the cost of construction shall be paid to the franchisee prior to engineering and the balance shall be paid prior to installation.
Programming. The franchisee shall offer to all customers a diversity of video programming services in accordance with federal law.
No unfair discrimination. Neither the franchisee nor any of its employees, agents, representatives, contractors, subcontractors, or consultants, nor any other person, shall discriminate or permit discrimination between or among any persons in the availability of cable services provided in connection with the cable system in the franchise area; provided, however, that the franchisee reserves the right to deny service for good cause, including but not limited to nonpayment or theft of service, vandalism of equipment, or documented or founded harassment or abuse of the franchisee's employees or agents. It shall be the right of all persons to receive all available services provided on the cable system so long as such person's financial or other obligations to the franchisee are satisfied. Nothing contained herein shall prohibit the franchisee from offering bulk discounts, promotional discounts, package discounts, or other such pricing strategies as part of its business practice.
New developments. The franchising authority shall provide the franchisee with written notice of the issuance of building or development permits for planned developments within the franchise area requiring undergrounding of cable facilities. The franchising authority agrees to require the developer, as a condition of issuing the permit, to give the franchisee access to open trenches for deployment of cable facilities and at least 10 business days written notice of the date of availability of open trenches.
Prohibition against reselling service. No person shall resell, without the express prior written consent of the franchisee, any cable service, program or signal transmitted over the cable system by the franchisee.
All rates, fees, charges, deposits and associated terms and conditions to be imposed by the franchisee or any affiliated person for any cable service as of the effective date shall be in accordance with applicable FCC rate regulations. Before any new or modified rate, fee, or charge is imposed, the franchisee shall follow the applicable FCC notice requirements and rules and notify affected customers, which notice may be by any means permitted under applicable law.
Refunds. The cable system shall be designed for operation 24 hours per day. The grantee, upon request, shall issue a pro rata credit to affected subscribers of an outage of more than 12 continuous hours in duration, for outages caused by defective equipment supplied by the grantee. No refund shall be required where the outage is a result of the misuse of equipment by the subscriber, defective equipment not provided by the grantee, force majeure, or where the grantee has not been notified within a reasonable time of the outage, or where the grantee is denied or unable to gain access to the subscriber's premises to confirm and repair the outage.
Customer service standards. The franchising authority hereby adopts the customer service standards set forth in Part 76, § 76.309 of the FCC's rules and regulations, as amended. The franchisee shall comply in all respects with the customer service requirements established by the FCC.
Customer bills. Customer bills shall be designed in such a way as to present the information contained therein clearly and comprehensibly to customers, and in a way that is not misleading and does not omit material information. Notwithstanding anything to the contrary in Subsection A above, the franchisee may, in its sole discretion, consolidate costs on customer bills as may otherwise be permitted by Section 622(c) of the Cable Act (47 U.S.C. § 542(c)).
Privacy protection. The franchisee shall comply with all applicable federal and state privacy laws, including Section 631 of the Cable Act and regulations adopted pursuant thereto.
Franchise fees. The franchisee shall pay to the franchising authority a franchise fee in an amount equal to 5% of annual gross revenues received from the operation of the cable system to provide cable service in the franchise area; provided, however, that the franchisee shall not be compelled to pay any higher percentage of franchise fees than any other cable operator providing service in the franchise area. The payment of franchise fees shall be made on a quarterly basis and shall be due 45 days after the close of each first, second and third calendar quarter (i.e., May 15, August 15, November 15), and 60 days after the close of the calendar year (last day of February). Each franchise fee payment shall be accompanied by a report prepared by a representative of the franchisee showing the basis for the computation of the franchise fees paid during that period.
Franchise fees subject to audit.
Upon notice pursuant to § A205-13B herein, during normal business hours at the franchisee's principal business office, the franchising authority shall have the right to inspect the franchisee's financial records used to calculate the franchising authority's franchise fees; provided, however, that any such inspection shall take place within two years from the date the franchising authority receives such payment, after which period any such payment shall be considered final.
Upon the completion of any such audit by the franchising authority, the franchising authority shall provide to the franchisee a final report setting forth the franchising authority's findings in detail, including any and all substantiating documentation. In the event of an alleged underpayment, the franchisee shall have 30 days from the receipt of the report to provide the franchising authority with a written response agreeing to or refuting the results of the audit, including any substantiating documentation. Based on these reports and responses, the parties shall agree upon a "finally settled amount." For purposes of this section, the term "finally settled amount(s)" shall mean the agreed upon underpayment, if any, to the franchising authority by the franchisee as a result of any such audit. If the parties cannot agree on a final settlement amount, the parties shall submit the dispute to a mutually agreed upon mediator within 60 days of reaching an impasse. In the event an agreement is not reached at mediation, either party may bring an action to have the disputed amount determined by a court of law.
Any finally settled amount(s) due to the franchising authority as a result of such audit shall be paid to the franchising authority by the franchisee within 30 days from the date the parties agree upon the finally settled amount. Once the parties agree upon a finally settled amount and such amount is paid by the franchisee, the franchising authority shall have no further rights to audit or challenge the payment for that period. The franchising authority shall bear the expense of its audit of the franchisee's books and records.
Oversight of franchise. In accordance with applicable law, the franchising authority shall have the right to, at its sole cost and expense and upon reasonable prior written notice and in the presence of the franchisee's employee, periodically inspect the construction and maintenance of the cable system in the franchise area as necessary to monitor the franchisee's compliance with the provisions of this franchise agreement.
Technical standards. The franchisee shall comply with all applicable technical standards of the FCC as published in Subpart K of 47 CFR 76.601 et seq. To the extent those standards are altered, modified, or amended during the term of this franchise, the franchisee shall comply with such altered, modified or amended standards within a reasonable period after such standards become effective. The franchising authority shall have, upon written request, the right to obtain a copy of tests and records required to be performed pursuant to the FCC rules.
Maintenance of books, records, and files.
Books and records. Throughout the term of this franchise agreement, the franchisee agrees that the franchising authority may review the franchisee's books and records regarding customer service performance levels in the franchise area to monitor the franchisee's compliance with the provisions of this franchise agreement, upon reasonable prior written notice to the franchisee pursuant to the provisions of § A205-13B herein, at the franchisee's business office, during normal business hours, and without unreasonably interfering with the franchisee's business operations. All such documents that may be the subject of an inspection by the franchising authority shall be retained by the franchisee for a minimum period of 24 months.
File for public inspection. Throughout the term of this franchise agreement, the franchisee shall maintain at its business office, in a file available for public inspection during normal business hours, those documents required pursuant to the FCC's rules and regulations.
Proprietary information. Notwithstanding anything to the contrary set forth in this section, the franchisee shall not be required to disclose information which it reasonably deems to be proprietary or confidential in nature. The franchising authority agrees to treat any information disclosed by the franchisee as confidential and only to disclose it to those employees, representatives, and agents of the franchising authority that have a need to know in order to enforce this franchise agreement and who agree, through the execution of a nondisclosure agreement, to maintain the confidentiality of all such information. The franchisee shall not be required to provide customer information in violation of Section 631 of the Cable Act or any other applicable federal or state privacy law. For purposes of this section, the terms "proprietary or confidential" include, but are not limited to, information relating to the cable system design, customer lists, marketing plans, financial information unrelated to the calculation of franchise fees or rates pursuant to FCC rules, or other information that is reasonably determined by the franchisee to be competitively sensitive. The franchisee may make proprietary or confidential information available for inspection, but not copying or removal of information by the franchising authority's representative. In the event that the franchising authority has in its possession and receives a request under a state sunshine, public records, or similar law for the disclosure of information, that the franchisee has designated as confidential, trade secret or proprietary, the franchising authority shall notify franchisee of such request and cooperate with the franchisee in opposing such request.
Neither the franchisee nor any other person may transfer the cable system or the franchise without prior written consent from the franchising authority, provided that such consent sent shall not be unreasonably withheld, delayed, or conditioned. No prior consent shall be required, however, for:
A transfer in trust, by mortgage, hypothecation, or by assignment of any rights, title, or interest of the franchisee in the franchise or in the cable system in order to secure indebtedness;
A transfer to an entity directly or indirectly owned or controlled by Comcast Corporation; or
The sale, conveyance, transfer, exchange or release of 50% or less of its equitable ownership. Within 30 days of receiving a notice of transfer, the franchising authority may, in accordance with FCC rules and regulations, notify the franchisee in writing of the additional information, if any, it requires regarding the legal, financial, and technical qualifications of the transferee or new controlling party.
Insurance. Throughout the term of this franchise agreement, the franchisee shall, at its own cost and expense, maintain comprehensive general liability insurance and provide the franchising authority certificates of insurance designating the franchising authority and its officers, boards, commissions, councils, elected officials, agents and employees as additional insureds and demonstrating that the franchisee has obtained the insurance required in this section. Such policy or policies shall be in the minimum amount of $1,000,000 for bodily injury or death to any one person, and $1,000,000 for bodily injury or death of any two or more persons resulting from one occurrence, and $1,000,000 for property damage resulting from any one accident. Such policy or policies shall be noncancelable, except upon 30 days' prior written notice to the franchising authority. The franchisee shall provide workers' compensation coverage in accordance with applicable law. The franchisee shall indemnify and hold harmless the franchising authority from any workers compensation claims to which the franchisee may become subject during the term of this franchise agreement.
The franchisee shall indemnify, defend and hold harmless the franchising authority, its officers, employees, and agents acting in their official capacities from and against any liability or claims resulting from property damage or bodily injury (including accidental death) that arise out of the franchisee's construction, operation, maintenance, or removal of the cable system, including, but not limited to, reasonable attorneys' fees and costs, provided that the franchising authority shall give the franchisee written notice of its obligation to indemnify and defend the franchising authority within 10 business days of receipt of a claim or action pursuant to this section. The franchising authority agrees that it will take all necessary action to avoid a default judgment and not prejudice the franchisee's ability to defend the claim or action. If the franchising authority determines that it is necessary for it to employ separate counsel, the costs for such separate counsel shall be the responsibility of the franchising authority.
The franchisee shall not be required to indemnify the franchising authority for negligence or misconduct on the part of the franchising authority or its officials, boards, commissions, agents, or employees, including any loss or claims related to PEG access channels in which the franchising authority or its designee participates, subject to applicable law.
System capacity. During the term of this agreement, the franchisee's cable system shall be capable of providing video programming with reception available to its customers in the franchise area in accordance with the Cable Act.
Cable service to school buildings. Upon request, the franchisee shall provide, at no cost to the franchising authority, basic cable service and standard installation at one outlet to each public and private grade school (K-12) building, not including home schools, located in the franchise area, within 150 feet of the franchisee's distribution cable. No charge shall be made for installation or service, except that the franchisee may charge for installation beyond 150 feet aerial distance of the cable plant and service for more than one drop in each building. For the purposes of this section, the term "school" means an educational institution that receives funding pursuant to Title I of the Elementary and Secondary Education Act of 1965, 20 U.S.C. § 6301 et seq., as amended, and does not include home schools.
Cable service to governmental and institutional facilities. Upon request, the franchisee shall provide, at no cost to the franchising authority, basic cable service and standard installation at one outlet to each public building located in the franchise area within 150 feet of the franchisee's distribution cable. No charge shall be made for installation or service, except that the franchisee may charge for installation beyond 150 feet aerial distance of the cable plant and service for more than one drop in each building. Public buildings include libraries or those buildings owned or leased by the franchising authority for municipal government administrative purposes, and shall not include buildings owned by the franchising authority but leased to third parties or buildings such as storage facilities at which government employees are not regularly stationed.
Cable service to the Worcester County Public Library. Upon request, the franchisee shall provide, at no cost to the franchising authority, basic cable service and standard installation at one outlet to each public building located in the franchise area within 150 feet of the franchisee's distribution cable. No charge shall be made for installation or service, except that the franchisee may charge for installation beyond 150 feet aerial distance of the cable plant and service for more than one drop in each building.
Notice of violation or default and opportunity to cure. In the event the franchising authority believes that the franchisee has not complied with the material terms of the franchise, it shall notify the franchisee in writing with specific details regarding the exact nature of the alleged noncompliance or default.
Franchisee's right to cure or respond. The franchisee shall have 45 days from the receipt of the franchising authority's written notice: to respond to the franchising authority, contesting the assertion of non-compliance or default; or to cure such default; or in the event that, by nature of the default, such default cannot be cured within the forty-five-day period, initiate reasonable steps to remedy such default and notify the franchising authority of the steps being taken and the projected date that the cure will be completed.
Public hearings. In the event the franchisee fails to respond to the franchising authority's notice or in the event that the alleged default is not remedied within 45 days or the date projected by the franchisee, the franchising authority shall schedule a public hearing to investigate the default. Such public hearing shall be held at the next regularly scheduled meeting of the franchising authority that is scheduled at a time that is no less than 10 business days therefrom. The franchising authority shall notify the franchisee in writing of the time and place of such meeting and provide the franchisee with a reasonable opportunity to be heard.
Enforcement. Subject to applicable federal and state law, in the event the franchising authority, after such public hearing, determines that the franchisee is in default of any material provision of the franchise, the franchising authority may: seek specific performance of any provision that reasonably lends itself to such remedy as an alternative to damages, or seek other equitable relief; or in the case of a substantial default of a material provision of the franchise, initiate revocation proceedings in accordance with the following:
The franchising authority shall give written notice to the franchisee of its intent to revoke the franchise on the basis of a pattern of noncompliance by the franchisee, including two or more instances of substantial noncompliance with a material provision of the franchise. The notice shall set forth with specificity the exact nature of the noncompliance. The franchisee shall have 90 days from the receipt of such notice to object in writing and to state its reasons for such objection. In the event the franchising authority has not received a response from the franchisee or upon receipt of the response does not agree that the allegations of noncompliance have been or will be resolved, it may then seek revocation of the franchise at a public hearing. The franchising authority shall cause to be served upon the 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 request revocation of the franchise.
At the designated public hearing, the franchising authority shall give the franchisee an opportunity to state its position on the matter, present evidence and question witnesses, in accordance with the standards of a fair hearing applicable to administrative hearings in the State of Maryland, after which it shall determine whether or not the franchise shall be terminated. The public hearing shall be on the record and a written transcript shall be made available to the franchisee within 10 business days. The decision of the franchising authority shall be in writing and shall be delivered to the franchisee by certified mail. The franchisee may appeal such determination to an appropriate court, which shall have the power to review the decision of the franchising authority de novo and to modify or reverse such decision as justice may require.
Technical Violation. The franchising authority agrees that it is not its intention to subject the franchisee to penalties, fines, forfeitures or revocation of the franchise for so-called technical breach(es) or violation(s) of the franchise, which shall include, but not be limited, to the following:
In instances or for matters where a violation or a breach of the franchise by the franchisee was good faith error that resulted in no or minimal negative impact on the customers within the franchise area; or
Where there existed circumstances reasonably beyond the control of the franchisee and which precipitated a violation by the franchisee of the franchise, or which were deemed to have prevented the franchisee from complying with a term or condition of the franchise.
No removal of system. The franchisee shall not be required to remove its 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 the franchisee from providing cable service, if the cable system is actively being used to facilitate any other services not governed by the Cable Act, or any portion thereof (47 U.S.C. § 621 (b)].
Purposes. The franchisee and the franchising authority acknowledge that there is increasing competition in the video marketplace among cable operators, direct broadcast satellite providers, telephone companies, broadband content providers and others; new technologies are emerging that enable the provision of new and advanced services to residents of the franchise area; and changes in the scope and application of the traditional regulatory framework governing the provision of video services are being considered in a variety of federal, state and local venues. To foster an environment where video service providers using the public rights-of-way can compete on a competitively neutral and nondiscriminatory basis; encourage the provision of new and advanced services to residents of the franchise area; promote local communications infrastructure investments and economic opportunities in the franchise area; and provide flexibility in the event of subsequent changes in the law, the franchisee and the franchising authority have agreed to the provisions in this section, and they should be interpreted and applied with such purposes in mind.
New video service provider.
Notwithstanding any other provision of this agreement or any other provision of law, if any video service provider ("VSP") enters into any agreement with the franchising authority to provide video services to subscribers in the franchise area, or otherwise begins to provide video services to subscribers in the franchise area (with or without entering into an agreement with the franchising authority), the franchising authority, upon written request of the franchisee, shall permit the franchisee to construct and operate its cable system and to provide video services to subscribers in the franchise area under the same agreement and/or under the same terms and conditions as apply to the new VSP. The franchisee and the franchising authority shall enter into an agreement or other appropriate authorization (if necessary) containing the same terms and conditions as are applicable to the VSP within 60 days after the franchisee submits a written request to the franchising authority.
If there is no written agreement or other authorization between the new VSP and the franchising authority, the franchisee and the franchising authority shall use the 60 day period to develop and enter into an agreement or other appropriate authorization (if necessary) that to the maximum extent possible contains provisions that will ensure competitive equity between the franchisee and other VSPs, taking into account the terms and conditions under which other VSPs are allowed to provide video services to subscribers in the franchise area.
Subsequent change in law. If there is a change in federal, state or local law that provides for a new or alternative form of authorization for a VSP to provide video services to subscribers in the franchise area, or that otherwise changes the nature or extent of the obligations that the franchising authority may request from or impose on a VSP providing video services to subscribers in the franchise area, the franchising authority agrees that, notwithstanding any other provision of law, upon the franchisee's written request the franchising authority shall: permit the franchisee to provide video services to subscribers in the franchise area on the same terms and conditions as are applicable to a VSP under the changed law; modify this agreement to comply with the changed law; or modify this agreement to ensure competitive equity between the franchisee and other VSPs, taking into account the conditions under which other VSPs are permitted to provide video services to subscribers in the franchise area. The franchising authority and the franchisee shall implement the provisions of this section within 60 days after the franchisee submits a written request to the franchising authority. Notwithstanding any provision of law that imposes a time or other limitation on the franchisee's ability to take advantage of the changed law's provisions, the franchisee may exercise its rights under this section at any time, but not sooner than 30 days after the changed law goes into effect.
Effect on this agreement. Any agreement, authorization, right or determination to provide video services to subscribers in the franchise area under Subsections A or B shall supersede this agreement, and the franchisee, at its option, may terminate this agreement or portions thereof, upon written notice to the franchising authority, without penalty or damages.
Force majeure. The franchisee shall not be held in default under, or in noncompliance with, the provisions of the franchise, nor suffer any enforcement or penalty relating to noncompliance or default (including termination, cancellation or revocation of the franchise), where such non-compliance or alleged defaults occurred or were caused by lightning strike, earthquake, flood, tidal wave, unusually severe rain, ice or snow storm, hurricane, tornado, or other catastrophic act of nature; riot, war, labor disputes, environmental restrictions, failure of utility service necessary to operate the cable system, governmental, administrative or judicial order or regulation or other event that is reasonably beyond the franchisee's ability to anticipate or control. This provision also covers work delays caused by waiting for utility providers to service or monitor their own utility poles on which the franchisee's cable or equipment is attached, as well as unavailability of materials or qualified labor to perform the work necessary.
Notice. All notices shall be in writing and shall be sufficiently given and served upon the other party by hand delivery, first class mail, registered or certified, return receipt requested, postage prepaid, or by reputable overnight courier service and addressed as follows:
Entire agreement. This franchise agreement and any exhibits or addendums hereto constitute the entire agreement between the franchising authority and the franchisee and supersedes all prior or contemporaneous agreements, ordinances, representations, or understandings, whether written or oral, of the parties regarding the subject matter hereof. Any agreements, ordinances, representations, or understandings or parts of such measures that are in conflict with or otherwise impose obligations different from the provisions of this franchise agreement are superseded by this franchise agreement.
Severability. If any section, subsection, sentence, clause, phrase, or other portion of this franchise agreement is, for any reason, declared invalid, in whole or in part, by any court, agency, commission, legislative body, or other authority of competent jurisdiction, such portion shall be deemed a separate, distinct, and independent portion. Such declaration shall not affect the validity of the remaining portions hereof, which other portions shall continue in full force and effect.
Governing law. This franchise agreement shall be deemed to be executed in the state where the franchise area is located, and shall be governed in all respects, including validity, interpretation and effect, and construed in accordance with, the laws of such state, as applicable to contracts entered into and performed entirely within the state.
Modification. No provision of this franchise agreement shall be amended or otherwise modified, in whole or in part, except by an instrument, in writing, duly executed by the franchising authority and the franchisee, which amendment shall be authorized on behalf of the franchising authority through the adoption of an appropriate resolution or order by the franchising authority, as required by applicable law.
No third-party beneficiaries. Nothing in this franchise agreement is or was intended to confer third-party beneficiary status on any member of the public to enforce the terms of this franchise agreement.
Captions. Captions to sections throughout this franchise agreement are solely to facilitate the reading and reference to the sections and provisions of this franchise agreement. Such captions shall not affect the meaning or interpretation of this franchise agreement.
No waiver of rights. Nothing in this franchise agreement shall be construed as a waiver of any rights, substantive or procedural, which franchisee may have under federal or state law unless such waiver is expressly stated herein.
Incorporation by reference.
All presently and hereafter applicable conditions and requirements of federal, state and local laws, including but not limited to the rules and regulations of the FCC and the state where the franchise area is located, as they may be amended from time to time, are incorporated herein by reference to the extent not enumerated herein. All such general laws, rules and regulations, as amended, shall control the interpretation and performance of this renewal franchise to the extent that any provision of this renewal franchise conflicts with or is inconsistent with such laws, rules or regulations.
Should the state, the federal government or the FCC require the franchisee to perform or refrain from performing any act the performance or nonperformance of which is inconsistent with any provisions herein, the franchising authority and franchisee will thereupon, if they determine that a material provision herein is affected, modify any of the provisions herein to reflect such government action.
Calculation of time. Where the performance or doing of any act, duty, matter, payment, or operation is required hereunder and the period of time or duration for the performance or during thereof is prescribed and fixed herein, the time shall be computed so as to exclude the first day and include the last day of the prescribed or fixed period or duration of time. When the last day of the period falls on Saturday, Sunday, or a legal holiday, that day shall be omitted from the computation.
Annexation. Upon 90 days' written notice from the franchising authority, any additions of territory to the Town, by annexation or other legal means, contiguous to the franchise area as defined in § A205-1 above, the portion of any cable system of the company that may be located or operated within said territory shall thereafter be subject to all the terms of this agreement as though it were an extension made hereunder.