[HISTORY: Adopted by the Town Council of the Town of Milton 3-21-2016 by Ord. No. 2016-001.[1] Amendments noted where applicable.]
[1]
Editor's Note: This ordinance also repealed former Ch.
A223, Cable Television Franchise, adopted 1-30-1984 (Ch. 20 of the
prior Code), as amended.
A.
This Franchise Agreement (hereinafter, the "Agreement" or "Franchise
Agreement") is made between the Town of Milton, Delaware (hereinafter,
the "Town" or "Franchising Authority") and Comcast of Delmarva, LLC.
(hereinafter, the "Grantee").
B.
The Town, having determined that the financial, legal, and technical
ability of the Grantee is reasonably sufficient to provide services,
facilities, and equipment necessary to meet the future cable-related
needs of the community, desires to enter into this Franchise Agreement
with the Grantee for the construction, operation, and maintenance
of a Cable System on the terms and conditions set forth herein.
For the purpose of this Franchise Agreement, capitalized terms,
phrases, words and abbreviations shall have the meanings ascribed
to them in the Cable Communications Act of 1934, as amended from time
to time, 47 U.S.C. § 521 et seq. (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.
The lowest price tier of service that includes the retransmission
of local broadcast television signals.
Title VI of the Cable Communications Act of 1934, as amended
from time to time, 47 U.S.C. § 521 et seq.
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 Franchise
Area, and as further defined under Section 602(7) of the Cable Act.[1] Such term does not include:
A facility that serves only to retransmit the television signals
of one or more television broadcast stations;
A facility that serves Customers without using any public right-of-way;
A facility of a common carrier which is subject, in whole or
in part, to the provisions of Subchapter II of the Cable Act, except
that such facility shall be considered a Cable System [other than
for purposes of Section 621(c)[2] 621(c)] to the extent such facility is used in the transmission
of Video Programming directly to Customers, unless the extent of such
use is solely to provide interactive on-demand service; or
Any facilities of any electric utility used solely for operating
its electric utility systems.
A Person or user of the Cable System who lawfully receives
Cable Service therefrom with the Grantee's express permission.
December 31, 2015.
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.
This Agreement and any amendments or modifications hereto.
The present legal boundaries of the Town of Milton, as of
the Effective Date, and shall also include any additions thereto,
by annexation or other legal means.
The Town of Milton, Delaware, or the lawful successor, transferee,
designee, or assignee thereof.
Comcast of Delmarva, LLC, or its lawful assignee, as provided in § A223-9 of this Agreement.
Revenue derived by the Grantee 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, revenue from advertising and home shopping, installation
fees and subscriber equipment rental fees. Gross Revenue shall not
include program launch support payments, refundable deposits, late
fees, or 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.
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 Grantee 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 Grantee to
the use thereof for the purposes of installing, operating, and maintaining
the Grantee'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.
The standard one-hundred-fifty-foot aerial drop connection
to the existing distribution system.
The Town of Milton, Delaware, or the lawful successor, transferee,
designee, or assignee thereof.
The programming provided by, or generally considered comparable
to, programming provided by a television broadcast station.
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.
A.
Franchise grant. The Franchising Authority hereby grants to the Grantee
a nonexclusive Franchise authorizing the Grantee 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. The Grantee's exercise of the privileges herein granted
shall not interfere with the uses undertaken by the Town or other
entities who may own poles located within the Franchise Area.
B.
Police powers. Except as may be otherwise provided in this Agreement,
the Grantee acknowledges that its rights hereunder are subject to
the police power of the Town to adopt and enforce generally applicable
and lawful ordinances necessary for the safety and welfare of the
public, and the Grantee agrees to comply with all generally applicable
laws and ordinances enacted by the Town pursuant to such powers.
C.
Term of Franchise. The term of the Franchise granted hereunder shall
be 10 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. This
Franchise shall be automatically extended for two additional terms
of five years each unless either party notifies the other in writing
of its desire to enter renewal negotiations under the Cable Act at
least one year before the expiration date of the then-current Franchise
Agreement, whether it be the initial term or a subsequent extended
term.
D.
Renewal. Any renewal of this Franchise shall be governed by and comply
with the provisions of Section 626 of the Cable Act (47 U.S.C. § 546),
as amended, and nothing herein shall limit the Grantee's rights
thereunder.
A.
Permits and general obligations. The Grantee 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, thorough and reliable manner
using materials of good and durable quality. Notwithstanding the requirements
herein, the Grantee 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 Grantee 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.
B.
Conditions of street occupancy.
(1)
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 Grantee 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 the
Franchising Authority makes available any options to any other user
of the Public Way for the purpose of defraying the cost of any of
the foregoing, the Franchising Authority shall make the same options
available to the Grantee.
(2)
Relocation at request of third party. The Grantee 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:
(a)
The Grantee 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
(b)
The Grantee is given not less than 30 business days' advance
written notice to arrange for such temporary relocation.
(3)
Restoration of Public Ways. If in connection with the construction,
operation, maintenance, or repair of the Cable System, the Grantee
disturbs, alters, or damages any Public Way, the Grantee 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.
(4)
Safety requirements. The Grantee 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 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.
(5)
Trimming of trees and shrubbery. The Grantee 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 Grantee's wires, cables, or other equipment. All such
trimming shall be done at the Grantee's sole cost and expense.
The Grantee shall be responsible for any collateral real property
damage caused by such trimming. The Grantee shall provide 10 days'
advance notice to the Franchising Authority prior to commencing routine
trimming, except that notice shall not be required in cases of emergency.
(6)
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 Grantee shall place its
Cable System transmission and distribution facilities underground,
provided that such underground locations are actually capable of accommodating
the Grantee'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 Grantee 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 Grantee 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.
(7)
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 Grantee
shall participate in the planning for relocation of its aerial facilities
contemporaneously with other utilities. The Grantee's relocation
costs shall be included in any computation of necessary project funding
by the municipality or private parties. The Grantee 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 Grantee reserves the right to pass its costs through to its Subscribers
in accordance with applicable law.
C.
Antennas. Any antenna structure used in the Cable System shall comply
with construction, marking, and lighting of antenna structure standards
as required by the United States Department of Transportation.
D.
Use of existing facilities. The Grantee shall make every reasonable
effort to utilize existing poles, conduits, and other facilities whenever
possible in deploying and maintaining its Cable System.
E.
Noninterference. The Grantee shall make its best efforts to not allow
its cable or other operations to interfere with communication reception
of persons not served by the Grantee; nor shall the Cable System interfere
with, obstruct, or hinder, in any manner, the operation of the various
utilities serving the residents within the Franchise Area.
A.
General service obligation. The Grantee 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 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 300 feet of the public right-of-way. Subject to the
density requirement, the Grantee shall offer Cable Service to all
new homes or previously unserved homes located within 150 feet of
the Grantee's distribution cable at the standard installation
rate. Should, through new construction, an area within the Franchise
Area meet the density requirements, the Grantee 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.
(1)
The Grantee shall make Cable Service available to areas in the Franchise Area that do not meet the requirements of Subsection A above upon the written request of the occupied residential dwelling unit owners in such areas and based upon the following cost calculation: The cost of extending the Grantees plant to such areas shall be calculated by taking the capital cost of extending such service divided by the number of occupied residential dwelling units requesting Cable Service in such area, minus the costs of extending Cable Service to occupied residential dwelling units in an area that meets the density requirement specified in Subsection A, above. The resulting costs shall equal the per-occupied-residential-dwelling-unit contribution relating to line extension of the Cable Service in that particular area of the Town, or:
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C equals the cost of construction of new plant from the nearest
technically feasible point on the Cable System trunk or feeder line;
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LE equals the number of occupied residential dwelling units
requesting Cable Service in the line extension area, who subsequently
pay a contribution in aid of construction;
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CA equals the average cost of construction per mile in the primary
service area;
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P equals the 30 residential dwelling units per mile density specified in Subsection A; and
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SC equals the per-occupied-residential-dwelling-unit contribution
in aid of construction in the line extension area.
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Upon the request of any potential subscriber desiring service, the Grantee shall prepare, at its cost, a feasibility study to determine the cost of any plant extension under Subsection A(1). The Grantee shall be entitled to charge a nonrefundable fee of $100 for each Subscriber to cover the costs of preparing the same. The Grantee shall not be required to prepare a feasibility study under this section for a specific area more than once every five years.
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(2)
The Grantee may impose an additional charge in excess of its regular installation charge for any service installation requiring a drop in excess of one-hundred-twenty-five-foot standard in Subsection A. Any such additional charge shall be calculated on that portion of the installation which exceeds the one-hundred-twenty-five-foot standard.
B.
Programming. The Grantee shall offer to all Customers a diversity
of Video Programming services in accordance with federal law.
C.
Unfair discrimination. Neither the Grantee 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 Grantee 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 Grantee'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 Grantee are satisfied. Nothing contained herein
shall prohibit the Grantee from offering bulk discounts, promotional
discounts, package discounts, or other such pricing strategies as
part of its business practice.
D.
New developments. The Franchising Authority shall provide the Grantee
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 Grantee
access to open trenches for deployment of cable facilities and at
least 30 business days' written notice of the date of availability
of open trenches.
E.
Reselling of Service. No Person shall resell, without the express
prior written consent of the Grantee, any Cable Service, program or
signal transmitted over the Cable System by the Grantee.
F.
Disconnection of Service.
(1)
There will be no charge to Subscribers for complete disconnection
from Cable Service. However, the Grantee may require full payment
of any delinquent fees, late fees, and any fees related to unreturned
equipment upon disconnection.
(2)
Disconnection of a Subscriber for delinquency shall not occur until
at least 30 days after the due date of said monthly fee or charge.
The thirty-day period shall include written notice to the delinquent
Subscriber of the intent to disconnect.
A.
All rates, fees, charges, deposits and associated terms and conditions
to be imposed by the Grantee 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 Grantee shall follow the applicable FCC notice requirements
and rules and notify affected Customers, which notice may be by any
means permitted under applicable law. The Grantee shall provide copies
of the rates charged to the Grantee's customers in the Town upon
request.
B.
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.
A.
Customer service standards. The Franchising Authority hereby adopts
the Customer service standards set forth in Part 76, § 76.309,
and the notice standards set forth in Part 76, § 76.1602,
of the FCC's rules and regulations, as amended.[1] The Grantee shall comply in all respects with the customer
service requirements established by the FCC.
[1]
Editor's Note: See, respectively, 47 CFR 76.309 and 47
CFR 76.1602.
B.
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 A) is not misleading and B) does not omit material information. Notwithstanding anything to the contrary in Subsection A, above, the Grantee 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)].
C.
Privacy protection. The Grantee shall comply with all applicable
federal and state privacy laws, including Section 631 of the Cable
Act and regulations adopted pursuant thereto.[2]
(1)
Upon written request from a Subscriber, the Grantee shall make available
for inspection all personal Subscriber information that the Grantee
maintains regarding said Subscriber. The Grantee shall promptly correct
any errors upon discovery and confirmation.
(2)
The Grantee shall provide Subscribers a copy of its Privacy Policy
upon installation of Cable Service and annually thereafter.
[2]
Editor's Note: See 47 U.S.C. § 551.
A.
Franchise fees. The Grantee 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 Grantee 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, and 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 Grantee showing the basis for the computation of the franchise fees paid during that period. Notwithstanding the renewal negotiations provisions under § A223-3C of this Agreement, in the event that the five-percent limitation on franchise fees under Section 622 of the Cable Act[1] is increased, the Franchising Authority may immediately
reopen negotiations, and any resulting amendments to this Agreement
shall be applicable for the remainder of the term and any renewal
term or terms.
[1]
Editor's Note: See 47 U.S.C. § 542.
B.
Franchise fees subject to audit.
(1)
Upon notice pursuant to § A223-15B herein, during normal business hours at the Grantee's principal business office, the Franchising Authority shall have the right to inspect the Grantee'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.
(2)
Upon the completion of any such audit by the Franchising Authority,
the Franchising Authority shall provide to the Grantee 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 Grantee 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 Grantee 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.
(3)
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 Grantee 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 Grantee, 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 Grantee's books and records.
C.
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 an employee
of the Grantee, periodically inspect the construction and maintenance
of the Cable System in the Franchise Area as necessary to monitor
the Grantee's compliance with the provisions of this Franchise
Agreement.
D.
Technical standards. The Grantee shall comply with all applicable
technical standards of the FCC as published in Subpart K, 47 CFR 76.601
et seq., of the Cable Act. To the extent those standards are altered,
modified, or amended during the term of this Franchise, the Grantee
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.
E.
Maintenance of books, records, and files.
(1)
Books and records. Throughout the term of this Franchise Agreement, the Grantee agrees that the Franchising Authority may review the Grantee's books and records regarding customer service performance levels in the Franchise Area to monitor the Grantee's compliance with the provisions of this Franchise Agreement, upon reasonable prior written notice to the Grantee pursuant to the provisions of § A223-15B herein, at the Grantee's business office, during normal business hours, and without unreasonably interfering with the Grantee's business operations. All such documents that may be the subject of an inspection by the Franchising Authority shall be retained by the Grantee for a minimum period of 24 months.
(2)
File for public inspection. Throughout the term of this Franchise
Agreement, the Grantee 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.
(3)
Proprietary information. Notwithstanding anything to the contrary
set forth in this section, the Grantee 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 Grantee 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 Grantee
shall not be required to provide Customer information in violation
of Section 631 of the Cable Act[2] 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
Grantee to be competitively sensitive. The Grantee may make proprietary
or confidential information available for inspection, but not by 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 the Grantee has designated
as confidential, trade secret or proprietary, the Franchising Authority
shall notify the Grantee of such request and cooperate with the Grantee
in opposing such request.
[2]
Editor's Note: See 47 U.S.C. § 551.
A.
Neither the Grantee nor any other Person may transfer the Cable System
or the Franchise without prior written consent of the Franchising
Authority. No consent shall be required, however, for: i) a transfer
in trust, by mortgage, hypothecation, or by assignment of any rights,
title, or interest of the Grantee in the Franchise or in the Cable
System in order to secure indebtedness, ii) a transfer to an entity
directly or indirectly owned or controlled by Comcast Corporation,
or iii) 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 Grantee in writing of the additional
information, if any, it requires regarding the legal, financial, and
technical qualifications of the transferee or new controlling party.
B.
In the event of a change of cable operator under this Agreement,
the Grantee shall cooperate with the Town, new contractor, or operator
in maintaining continuity of service to all Subscribers to the extent
reasonably practicable for a reasonable time, not to exceed 60 days
from such event. During such event, the Grantee shall be entitled
to the revenues from any period during which it operates the system.
A.
Insurance. Throughout the term of this Franchise Agreement, the Grantee
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 Grantee 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 Grantee shall provide workers'
compensation coverage in accordance with applicable law. The Grantee
shall indemnify and hold harmless the Franchising Authority from any
workers' compensation claims to which the Grantee may become
subject during the term of this Franchise Agreement.
B.
Indemnification. The Grantee 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 Grantee'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 Grantee written notice of its obligation
to indemnify and defend the Franchising Authority within 20 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 Grantee'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.
(1)
The Grantee 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.
C.
Assumption of responsibility. The Grantee agrees to be responsible
and liable for all damages of, or injury to, persons or property caused
by the negligent or intentional acts or omissions of the Grantee or
of its agents or employees while engaged in the construction, installation,
maintenance, or operation of the Cable System.
A.
System capacity. During the term of this Agreement, the Grantee'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.
B.
Cable Service to governmental and institutional facilities. Upon
request, the Grantee shall provide, at no cost to the Franchising
Authority, Basic Cable Service and Standard Installation at one outlet
to each Public Building within the Franchise Area within 150 feet
of its trunk or feeder lines. The Basic Cable Service, without convertors,
will be provided free of charge. All attachments to public buildings
will be at the Grantee's expense, but distribution of the system
within those buildings shall be at the expense of the Town or the
responsible public or nonprofit agency; however, such distribution
shall not in any way interfere with the Cable System's operation.
Public Buildings are 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. In addition to other
buildings that may classified as Public Buildings, the following buildings
shall be Public Buildings:
C.
Parental controls. The Grantee shall provide adequate security provisions
in its Subscriber site equipment to permit parental control over the
use of Cable Services on the System. Such equipment will at a minimum
offer as an option that a Person ordering programming must provide
a personal identification number or other means provided by the Grantee
only to a Subscriber. However, the Grantee shall bear no responsibility
for the exercise of parental controls and shall incur no liability
for a Subscriber's or viewer's exercise or failure to exercise
such controls.
D.
Interruptions. The Grantee shall render efficient service, make repairs
promptly, and interrupt service only for good cause and for the shortest
time possible. Except in emergency situations, such interruptions
shall occur during periods of minimum system use.
E.
Emergency Alert System. The Grantee shall comply with the Emergency
Alert System requirements of the FCC in order that emergency information
may be distributed over the Cable System.
A.
Notice of violation or default and opportunity to cure. In the event
the Franchising Authority believes that the Grantee has not complied
with the material terms of the Franchise, it shall notify the Grantee
in writing with specific details regarding the exact nature of the
alleged noncompliance or default.
(1)
Grantee's right to cure or respond. The Grantee shall have
45 days from the receipt of the Franchising Authority's written
notice:
(a)
To respond to the Franchising Authority, contesting the assertion
of noncompliance or default; or
(b)
To cure such default; or
(c)
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.
(2)
Public hearings. In the event the Grantee fails to respond to
the Franchising Authority's notice or in the event that the alleged
default is not remedied within 45 days of the date projected by the
Grantee, 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 Grantee in writing of the
time and place of such meeting and provide the Grantee with a reasonable
opportunity to be heard.
(3)
Enforcement. Subject to applicable federal and state law, in
the event the Franchising Authority, after such public hearing, determines
that the Grantee is in default of any material provision of the Franchise,
the Franchising Authority may:
(a)
Seek specific performance of any provision that reasonably lends
itself to such remedy as an alternative to damages, or seek other
equitable relief; or
(b)
In the case of a substantial default of a material provision
of the Franchise, initiate revocation proceedings in accordance with
the following:
[1]
The Franchising Authority shall give written notice to the Grantee
of its intent to revoke the Franchise on the basis of a pattern of
noncompliance by the Grantee, 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 Grantee 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 Grantee 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 Grantee, 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.
[2]
At the designated public hearing, the Franchising Authority
shall give the Grantee 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 Delaware, after which the Franchising Authority 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 Grantee within 10 business days. The decision
of the Franchising Authority shall be in writing and shall be delivered
to the Grantee by certified mail. The Grantee 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.
B.
Technical violation. The Franchising Authority agrees that it is
not its intention to subject the Grantee 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:
(1)
In instances or for matters where a violation or a breach of
the Franchise by the Grantee was a good-faith error that resulted
in no or minimal negative impact on the Customers within the Franchise
Area; or
(2)
Where there existed circumstances reasonably beyond the control
of the Grantee and which precipitated a violation by the Grantee of
the Franchise, or which were deemed to have prevented the Grantee
from complying with a term or condition of the Franchise.
C.
Removal of System. The Grantee 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 Grantee 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. § 541(b)].
The Franchising Authority agrees that if the Franchising Authority
should grant any other Video Service Provider a right to operate inside
the Town limits, and any terms or conditions contained in that agreement
are, individually or in the aggregate, more favorable or less burdensome
to such Video Service Provider than those applied to the Grantee in
this Agreement, then the Grantee may request that the terms and/or
conditions of this Agreement be modified to substantially conform
to those terms and/or conditions, and the Franchising Authority shall
not unreasonably deny such modifications to this Agreement. If the
Town shall hereafter authorize or permit any other Video Service Provider
to construct, own, operate or maintain any other system to provide
multiple Video Programming services to Subscribers within any area
of the Town then served by the Grantee's system, then the Town
shall expressly require such Video Service Provider to indemnify and
hold harmless the Grantee from and against any and all inspection,
make-ready, construction, rearrangement, relocating underground facilities,
etc., in connection with such other Video Service Provider's
construction, ownership, operation or maintenance of such other system
in the Town.
Performance bond. Within 30 days of the Effective Date of this
Agreement, the Grantee shall post a performance bond in the amount
of $15,000 as surety for the faithful performance and discharge by
the Grantee of all obligations imposed by this Franchise Agreement.
The performance bond shall remain in force and effect throughout the
term of this Franchise Agreement. If the Grantee fails to timely pay
franchise fees, the Franchising Authority shall give the Grantee 20
business days' notice of its intent to draw the amount owed from
the performance bond. The Franchising Authority may not draw from
the performance bond while any action, appeal or other process has
been instituted by the Grantee to challenge the amount owed.
A.
Force Majeure. The Grantee 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
noncompliance 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 Grantee'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
Grantee's cable or equipment is attached, as well as unavailability
of materials or qualified labor to perform the work necessary.
B.
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:
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To the Franchising Authority:
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Town of Milton
115 Federal Street
Milton, Delaware 19968
Attention: Mayor
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To the Grantee:
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Comcast of Delmarva, LLC
8098 Sandpiper Circle
Nottingham, Maryland 21236
Attention: Government Affairs Department
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with copies to:
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Comcast Cable
7850 Walker Drive, 2nd Floor
Greenbelt, Maryland 21236
Attention: Government Affairs Department
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and to:
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Comcast Cable Northeast Division
676 Island Pond Road
Manchester, New Hampshire 03109
Attention: Government Affairs Department
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C.
Entire Agreement. This Franchise Agreement and any exhibits or addendums
hereto constitute the entire agreement between the Franchising Authority
and the Grantee 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.
D.
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.
E.
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.
F.
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 Grantee,
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.
G.
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.
H.
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.
I.
Waiver of rights. The Grantee shall not be relieved of its obligations
to comply with any of the provisions of this Agreement by reason of
any failure of the Town to enforce prompt compliance, nor does the
Town waive or limit any of its rights under this Agreement by reasons
of such failure or neglect. The Town shall not be relieved of its
obligations to comply with any of the provisions of this Agreement
by reason of any failure of the Grantee to enforce prompt compliance,
nor does the Grantee waive or limit any of its rights under this Agreement
by reasons of such failure or neglect. Nothing in this Franchise Agreement
shall be construed as a waiver of any rights, substantive or procedural,
which the Grantee may have under federal or state law unless such
waiver is expressly stated herein.
J.
Incorporation by reference.
(1)
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.
(2)
Should the state, the federal government or the FCC require
the Grantee to perform or refrain from performing any act the performance
or nonperformance of which is inconsistent with any provisions herein,
the Franchising Authority and the Grantee will thereupon, if they
determine that a material provision herein is affected, modify any
of the provisions herein to reflect such government action.
K.
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.
