[HISTORY: Adopted by the Board of Commissioners of Upper Moreland Township 4-7-2008 by Ord. No. 1557. Amendments noted where applicable.]
In the event that any of the words or terms used herein shall be defined in the Cable Communications Policy Act of 1984, Pub. L. 98-549, 98 Stat. 2780, as amended, 47 U.S.C. § 521 et seq. (hereinafter "Cable Act"), such words or terms shall have the meaning therein given.
The following words or terms shall have the following meanings:
- GROSS REVENUES
- Any and all compensation or other consideration in any form whatsoever actually received directly or indirectly by Comcast as payment by subscribers for its provision of cable service to such subscribers or for the installation or repair of any facility or equipment to such subscriber by Comcast.
"Gross revenues" shall include, but are not limited to, the following:
Basic service fees;
Fees charged to subscribers for any cable service tier other than basic service;
Fees charged for premium services;
Fees charged to subscribers for any optional, per-channel or per-program services;
Revenues from the provision of any other service deemed to be a cable service. (In the event that a change in applicable federal law modifies the definition of cable service to include a service previously not classified as cable service, grantee agrees that it will apply the new definition to the collection of franchise fees within a reasonable period of time, but no later than 60 days after receiving written notice from the Township);
Charges for installation, additional outlets, relocation, disconnection, reconnection and change-in-service fees for video or audio programming;
Fees for service calls;
Fees for leased channel capacity;
Rental or sales of any and all subscriber equipment, including converters and remote control devices;
Any and all advertising revenues, including national, regional and local advertising revenues received by the local area system;
Revenues or commissions from home shopping channels received by the local area system (excluding local agency commissions);
Fees for any and all music services;
Fees for video-on-demand; and
"Gross revenues" shall not include revenues derived from bad debts, investment income, refundable deposits, or any taxes on services furnished by Comcast and imposed directly upon any subscriber or user by the Township, state, federal or other governmental entity. Gross revenues from advertising and home shopping received by Comcast shall be prorated based upon the proportion of the number of Township subscribers as compared to the total number of subscribers to which such advertising or home shopping revenue is attributed by Comcast.
- The Township of Upper Moreland, Montgomery County, a political subdivision of the Commonwealth of Pennsylvania.
Comcast of Willow Grove, Inc. ("Comcast" or "grantee") is authorized and granted the right to use poles, wires and cables over, under and upon the streets, sidewalks, alleys, bridges and highways and other public ways in the Township of Upper Moreland for the construction, maintenance, and operation of a cable system.
The franchise granted by this ordinance is a nonexclusive franchise and nothing contained herein shall prevent the Township from granting additional franchises to construct or operate cable systems to any other person or corporation upon any terms and conditions.
The term of this franchise shall be for a period of 15 years from the adoption of this ordinance and acceptance by Comcast, which term shall be automatically extended for an additional term of five years without further action by the Township, provided that Comcast shall have met the franchise obligations contained immediately herein below.
Comcast shall make available to subscribers in the Township the full range of programming that is available to other subscribers in the Willow Grove system; and
Comcast shall continue to make available for use by the Township of Upper Moreland or its designee one channel education access and, within 180 days of the effective date of this franchise agreement, one additional channel for government access purposes.
Failure by Comcast to meet these obligations during the first 15 years of the term shall cause the franchise not to be automatically renewed at the end of the term as provided in § A360-2B hereinabove.
Cable service shall be offered to every household dwelling occupied by a person requesting cable service, provided that Comcast is able to obtain from the property owners any necessary easements and/or permits in accordance with Section 621(a)(2) of the Cable Act. Comcast shall extend the cable system into all areas within the Township where there is a minimum of 30 dwelling units per linear plant mile of aerial cable and is within one mile of the existing cable system. Comcast shall place the transmission and distribution facilities of its cable system underground, only if all of the transmission and distribution facilities of all of the public utilities in any such area of the Township are underground, and provided that such underground locations are capable of accommodating Comcast's facilities without technical degradation of the signal quality of the cable system.
Subject to the density requirement herein above, and notwithstanding the customer service standards attached hereto, grantee shall offer cable service to all new homes or previously unserved homes located within 150 feet of the grantee's distribution cable. Comcast may, in its sole discretion, elect to provide cable service to areas not meeting the above density and distance standards. Comcast may impose an additional charge in excess of its standard installation charge for any service installation requiring a drop-in or line extension in excess of the above standards. Any such additional charge shall be computed on a time-plus-materials basis to be calculated on that portion of the installation that exceeds the standards set forth above.
This franchise may be renewed for an additional term or terms in accordance with applicable law.
In accordance with applicable law, there shall be paid by Comcast to the Township a franchise fee based on the following:
Comcast shall pay to the Township an amount equal to 5% of the annual gross revenue received by Comcast from subscribers within the Township of Upper Moreland.
Gross revenue shall not include any amounts paid to Comcast by a subscriber for late payment of any charges, any amount paid to Comcast to reimburse it for its costs to repair any damage to its cable system, or as a subscriber deposit.
In the event that the Congress of the United States shall modify or amend the provisions of the Cable Communications Policy Act of 1984, Pub. L. 98-549, 98 Stat. 2780, as amended, 47 U.S.C. § 521 et seq., to permit the unilateral imposition of a franchise fee in excess of 5% of gross revenue, the Township may increase the franchise fee imposed under this ordinance to such different amount as of the effective date of such law. Going forward, Comcast shall pay the adjusted franchise fee assessment upon 60 days' written notice from the Township. A copy of the resolution or ordinance authorizing the franchise fee rate adjustment shall accompany such written notice.
Comcast shall make payments of the franchise fee imposed by this ordinance to the Township within 60 days after the last day of each calendar year quarter.
Each quarterly franchise fee payment shall be accompanied by a written report containing an accurate statement of gross revenues received by Comcast for cable services for the period in connection with the operation of cable system and a brief report showing the basis for computation of fees. The report shall contain a line item for every source of revenue received and the amount of revenue received from each source. The report shall be verified by a financial representative of Comcast.
Upon 30 days' written notice, the Township shall have the right, by its duly authorized representatives, to examine the books and records of Comcast that are directly related to the franchise fee calculation to verify the accuracy of verified statements of Comcast as to its gross revenues derived from the operation of the cable system within the Township. Any such franchise fee review shall occur within 24 months from the date the Township receives such payment, after which period any such payment shall be considered final. In the event that any franchise fee payment is not made on or before the applicable due date pursuant to Subsection C hereinabove, then Comcast shall pay the amount due, plus interest added at a rate of 6% of the amount of the franchise fee, to the Township. The interest rate shall be applied as described from the date such franchise fee payment was originally due.
Upon request, Comcast shall furnish the Township with a statement within 60 days of the close of the calendar year, audited by a certified public accountant or certified by a financial representative of Comcast, reflecting the total amounts of gross revenues and all payments and computations for the previous calendar year.
Upon request, Comcast shall submit within 30 days the most recent financial statement, including a statement of income, balance sheet and a statement of sources and applications of funds, which shall be certified by Comcast's Chief Financial Officer in accordance with generally accepted accounting principles. Submission of the most recent U.S. Securities and Exchange Commission Annual Report Form 10-K prepared by Comcast shall be deemed as a satisfactory compliance of this section.
Indemnification. Comcast shall indemnify, defend and hold harmless the Township, its elected and appointed officers, agents and employees acting in their official capacities, from all and any claims for personal injuries or property damages, or death to persons, including payments made under any workmen's compensation law, and any other claims and costs, including reasonable attorneys' fees and litigation of claims and suits thereon which may arise out of or be caused by the erection, maintenance, presence, operation (including copyright infringement), use of or removal of any wires, fixtures, or equipment of any kind or nature of Comcast in its cable system within the Township or by any act of Comcast's employees or its agent acting within the scope of its engagement. Comcast's indemnification obligations shall commence upon timely receipt of notice in writing from the Township of the Township's receipt of a claim or action pursuant to this section.
Insurance. Comcast shall maintain insurance throughout the term of this franchise indemnifying the Township from and against any and all claims for injury or damage to persons or property, both real and personal, caused by the construction, installation, reconstruction, operation, maintenance or removal of the cable system by Comcast or any of its contractors, subcontractors, agents or employees in the following amounts:
The amount of such insurance against liability for damage to property shall be no less than $1,000,000 as to any one occurrence.
The amount of such insurance against liability for injury or death to any person shall be no less than $1,000,000.
The amount of such insurance for excess liability shall be $3,000,000 in umbrella form.
The amount of such insurance against all claims arising out of the operation of motor vehicles and general tort or contract liability shall be $1,000,000.
Upon written request, a certificate evidencing the insurance coverage required herein shall be provided by Comcast to the Township within 45 days of the effective date of this franchise. Upon the nine-year anniversary of the effective date of the franchise, and upon written request of the Township, the umbrella/excess liability coverage set forth under Subsection B(3) hereinabove shall increase to $5,000,000. Thereafter and no more than once before the expiration of the franchise term, the parties may discuss and consider an additional increase to this coverage to be implemented upon mutual agreement of the Township and Comcast.
Performance bond. Comcast shall obtain and maintain during the franchise term, at its sole cost and expense, a performance bond running to the Township with a surety company licensed to do business in the Commonwealth of Pennsylvania to insure Comcast's faithful performance of its obligations. The performance bond shall provide that the Township may recover from the principal and surety any and all damages and/or compensatory damages incurred by the Township for Comcast's violations of this agreement, after notice and opportunity to cure. The performance bond shall be in the amount of $25,000. Comcast shall not reduce, cancel or materially change said bond from the requirement contained herein without the express prior written permission of the Township.
In the event that Comcast shall fail to correct any material violation of or fail to comply with any of the substantive terms and provisions of this ordinance within 30 days of the receipt of written notice (certified mail, return receipt requested) from the Township of such violation or default, then at the option of the Township revocation proceedings may be initiated.
A revocation shall be declared only by a written decision of the Township Board of Commissioners after an appropriate public hearing that shall afford Comcast due process and full opportunity to be heard. This shall include the ability to introduce evidence, to question witnesses, and to respond to any notice of grounds for revocation in accordance with the standards of a fair hearing applicable to administrative hearings in the Commonwealth of Pennsylvania. All notice requirements shall be met by providing Comcast at least 30 days' prior written notice (via certified mail, return receipt requested) of any public hearing concerning the proposed revocation of this franchise. Such notice shall state the grounds for revocation. The Township Board of Commissioners, after a public hearing and upon finding the existence of grounds for revocation, may either declare this franchise revoked or excuse such grounds upon a showing by Comcast of mitigating circumstances or good cause for the existence of such grounds. The Township shall issue such declaration and finding in a written decision, which the Township shall promptly send via certified or overnight mail to Comcast.
The Township declares that it is not its intention to subject Comcast to penalties, fines, forfeitures or revocation of the franchise for so-called technical breach(es) or violation(s) of the franchise, or for reasons force majeure. The term "technical breach or violation," as used herein, shall constitute instances in which a breach of the franchise by Comcast was good faith error that resulted in no or minimum negative impact to subscribers within the Township. The term "force majeure" as used herein shall have the following meaning: acts of God; acts of public enemies, including terrorist attacks; orders of any kind of the government of the United States of America or of the Commonwealth of Pennsylvania or any of their departments, agencies, political subdivisions or officials, or any civil or military authority; insurrections, riots, labor strikes or unrest, epidemics; landslides; lightning; earthquakes; fires; hurricanes; volcanic activity; storms; floods; washouts; droughts; explosions and partial or entire failure of utilities.
Upon lawful revocation of this franchise, Comcast shall remove its supporting structures, poles, transmissions and distribution systems and other appurtenances ("system") from the streets, ways, lanes, alleys, parkways, bridges, highways, and other public and private places in, over, under or along which they are installed and shall restore the areas to their original condition. If such removal is not completed within three months of such lawful revocation, the Township or property owner may deem any property not removed as having been abandoned, and the Township may place a lien on such property or remove such property at Comcast's cost.
During the term of the franchise, if Comcast decides to abandon or no longer use all or part of its cable system, it shall give the Township written notice of its intent at least 60 days prior to such decision, which notice shall describe the property and its location. The Township shall have the right to either require Comcast to remove the property, remove the property itself and charge Comcast with the costs related thereto, or transfer ownership of the property to the Township's designee, provided fair market value (as mutually determined by Comcast and the Township's designee) is paid to Comcast.
Notwithstanding the above, Comcast shall not be required to remove its system, or to relocate the system, or to sell the system or any portion thereof as a result of revocation, denial of renewal, or any other lawful action to forbid or disallow Comcast from providing cable services, if the system is actively being used to facilitate any other service or services not governed by the Cable Act, as amended, or any portion thereof.
Comcast shall at all times comply with all applicable provisions of the federal, state and local laws and ordinances, including generally applicable ordinances and regulations of the Township affecting electrical installations which may be presently in effect or changed by future ordinances. To the extent any provisions of this ordinance conflict with applicable state or federal law, such provisions shall be deemed to be superseded and of no force and effect, but shall not render any other provision of this ordinance invalid or ineffective.
Comcast shall comply with all emergency or disaster notification requirements of the Federal Communications Commission (FCC) and state emergency and disaster agencies. (Pursuant to the 1992 Cable Act, the FCC adopted EAS rules for cable systems in Part 11, 47 CFR 11.1 et seq.)
In accordance with § A360-3B(2), Comcast shall continue to provide the Township with one educational channel. The Township further reserves the option to obtain from Comcast the usage of one additional channel for governmental access upon 180 days' written notice. The channels shall be provided in accordance with Section 611 of the Cable Act for exclusive use by the Township or its designee. These channels shall be used for noncommercial, community programming related to governmental and/or educational activities. Their purpose is to contribute to an informed citizenry by, among other things, showing local government at work, responding to local needs, and bringing education into the home. The Township shall have complete control over the content, scheduling, administration, and all other programming aspects of the educational and governmental channels and may delegate such functions to an appropriate designee.
To enable the Township and/or its designees to utilize the educational and governmental channels, Comcast shall connect to the cable system up to two remote origination points for educational and governmental use. Comcast shall provide and install, at its sole cost and expense, within 180 days of receiving written notice from the Township, wire, lines and/or other necessary signal-distribution equipment such that live or tape playback of programming can be received from the selected production locations and be distributed via the cable system to subscribers in the Township. These cables, wires, lines and other signal-distribution equipment shall be collectively known as the "return lines."
Upon written request, Comcast shall provide the Township with a capital support grant for the purpose of purchasing and maintaining video equipment or for any other cable-related purpose. This one-time grant shall be payable in the following installments: $30,000, payable no later than 90 days following the effective date; and $35,600, payable no later than 180 days following the effective date. The total amount of grant support, $65,600, is linked to a franchise term of 15 years and the number of subscribers in the Township.
The Township and Comcast agree that any and all costs incurred by Comcast for providing the educational and governmental channels and supporting such channels, including capital grants, may be designated by Comcast as "costs of franchise requirements" or "external costs," as defined by the FCC. Other than the access support specifically provided for in this franchise (§ A360-9D), Comcast shall not be required to provide technical or production staff or obtain equipment or studio facilities for educational and governmental channel programming.
Cable service to school buildings. Comcast shall provide free "basic" and "expanded basic" tier cable service and free installation at one outlet to: (i) each public, K-12, school; and (ii) each nonpublic, K-12, school that receives funding pursuant to Title 1 of the Elementary and Secondary Education Act of 1965, 20 U.S.C. § 6301 et seq., as amended, not including "home schools," located in the franchise area within 150 feet of Comcast's distribution cable.
Cable service to governmental and institutional facilities. Comcast shall provide free "basic" and "expanded basic" tier cable service and free installation at one outlet to each municipal building located in the franchise area within 150 feet of the grantee's distribution cable. "Municipal buildings" are those buildings owned or leased by the Township for government administrative purposes and shall not include buildings owned by the Township but leased to third parties or buildings such as storage facilities at which government employees are not regularly stationed.
Comcast shall at all times employ ordinary care and shall install and maintain in use commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage, injuries or nuisance to the public.
Comcast shall install and maintain its wires, cables, fixtures and other equipment in accordance with the requirements of generally applicable ordinances, and in such manner that they will not interfere with any installations of the Township or of a public utility serving the Township.
All structures and all lines, equipment and connections in, over, under and upon the streets, sidewalks, alleys, and public ways or places of the Township, wherever situated or located, shall at all times be kept and maintained in a safety, suitable, substantial condition and in good order and repair.
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.
Comcast is authorized to make one or more contracts with any public utility company lawfully having poles or underground ducts in the streets, alleys or other public ways and places of the Township; and under any such contract Comcast may, by lease, license or otherwise, use such poles or ducts for Comcast's cables and necessary equipment. The Township agrees that any public utility company lawfully having such poles or ducts may, without amending its franchise, allow Comcast to make such use thereof.
In specific locations which cannot be reached by the use of poles or ducts belongings to a public utility company, Comcast may construct its own poles or ducts in the streets, alleys and other public ways and places, provided Comcast obtains legal easements or rights-of-way for such purpose, and provided that no poles may be erected without the consent of the Township. Any poles erected by Comcast shall be available to the Township, free of expense, for any proper municipal purposes insofar as may be done without interfering with the free use and enjoyment of the Comcast's own wires and fixtures and the Township shall hold Comcast harmless from any and all actions, causes of action or damage caused by the placing of the Township's wires or appurtenances upon the poles of the company. Proper regard shall be given to all existing safety rules governing construction and maintenance in effect at the time of construction.
All transmission and distribution structures, lines and equipment erected by Comcast within the Township shall be so located as not to create traffic hazards, nor to cause drainage problems, to cause minimum interference with the proper use of streets, alleys and other public ways and places and to cause minimum interference with the rights and reasonable convenience of property owners who join any of the said streets, alleys or other public ways and places.
In case of disturbance of any street, sidewalk, alley, public way, or paved area, Comcast shall, at its own cost and expense and in a manner approved by the Township or the person specifically designated by the Township for such purpose, replace and restore such street, sidewalk, alley, public way, or paved area in as reasonable good a condition as before the work involving such disturbance was done.
If at any time during the period of this franchise the Township shall lawfully elect to alter or change the grade of any street, sidewalk, alley or other public way, Comcast, upon 30 days' written notice by the Township shall remove, re-lay and relocate its poles, wires, cables, underground conduits, manholes, and other fixtures at its own expense.
Any poles or other fixture placed in any public way by the franchisee shall be placed in such manner as not to interfere with the usual travel on such public way.
Comcast shall, at the request of any person or entity holding a building moving permit issued by the Township, temporarily raise or lower its wires to permit the moving of buildings or other structures. The expense of such temporary removal or raising or lowering of wires shall be paid by the person requesting the same, and Comcast shall have the authority to require such payment in advance. Comcast shall be given not less than 30 days' advance written notice to arrange for such temporary wire changes. If the building or structure to be moved is owned or operated by the Township, Comcast shall raise or lower its wires at no cost to the Township.
Comcast shall have authority to trim trees upon or overhanging streets, alleys or public grounds so as to prevent branches coming in contact with its wires or cables, provided that, should Comcast fail to properly and adequately maintain its wires or cables free from trees or overhanging branches, or properly or adequately remove the trimmings or debris resulting from said maintenance, then the Township may, but shall not be obligated to, give Comcast 15 days' notice in writing of the failure to so properly maintain and, if such failure is not corrected by Comcast within said fifteen-day period, the Township may perform the trimming or other necessary maintenance at the expense of Comcast.
In all sections of the Township where the cables, wires or other like facilities of public utilities are required to be placed underground, Comcast shall place its cables, wires or other like facilities underground to the maximum extent that existing technology reasonably permits Comcast to do so. Comcast shall not be required to construct, operate, or maintain underground any ground-mounted appurtenances such as subscriber taps, line extenders, system passive devices, amplifiers, power supplies, and/or pedestals.
Standby power at the headend(s) and at the node(s) shall be provided in the event of an electrical power interruption. Standby power at the headend(s) shall be provided for a minimum of three hours in the event of an outage. The power supplies serving the nodes and distribution system shall be capable of providing power within the standard limits of commercially available battery-powered units.
Upon request, Comcast shall provide subscribers with the capability to control the reception of any video and/or audio channel on the cable system providing sexually explicit adult programming in accordance with Section 641 of the Cable Act.
Upon request, Comcast shall file with the Township true and accurate facilities location maps of all existing installations along the streets or other public ways. Upon 20 days' written notice, the Township shall have access during normal business hours to inspect Comcast's properties, facilities and plans and engineering records relating to its facilities, located in the Township and reasonably necessary to verify compliance with the franchise; and to all financial records relating to gross revenues derived in the Township. A representative of Comcast shall have the right to be present at any such examinations. Copies of all rules and regulations, terms and conditions adopted by Comcast for the conduct of its business in the Township shall be filed by Comcast with the Township and shall be kept by Comcast in its local office in accordance with FCC regulations (47 CFR § 76.305).
Notwithstanding anything to the contrary set forth herein, all information specifically marked by Comcast as proprietary or confidential in nature and furnished to the Township or its designated representatives shall be treated as confidential so long as permitted to do so under applicable law. Information and documentation marked by Comcast as proprietary or confidential shall include a brief written explanation as to its proprietary nature or confidentiality, subject to Solicitor review.
The Township and its officially designated representatives agree in advance to treat any proprietary information or records which Comcast reasonably deems would provide an unfair advantage for Comcast's competitors (e.g., system design maps, engineering plans, etc.) as confidential so long as permitted to do so under applicable law and only to disclose it to Township employees, agents or representatives who have a need to know or in order to enforce the provisions of this agreement. In the event a request is made by an individual or entity not an employee, agent or representative of the Township acting in their official capacity for information related to the franchise and marked by Comcast as confidential and/or proprietary, the Township shall notify Comcast of such request. Comcast shall not be required to provide subscriber information in violation of Section 631 of the Cable Act or information which is not relevant to regulation of the franchise (e.g., employee files, tax returns, etc.).
The franchise granted by this ordinance shall not be exercised unless, within 30 days from the date of the enactment of this ordinance, Comcast agrees in writing to accept and comply with all of the provisions, terms, and conditions herein contained (see § A360-18).
The franchise granted by this ordinance shall not be assignable by Comcast except with the consent of the Township; provided, however, that the franchise granted by this ordinance may be assigned to any parent, subsidiary or affiliate of Comcast without the consent of the Township.
Comcast shall make written application to the Township of any transfer or assignment as described above and shall provide all information required by FCC Form 394 and any other applicable federal and state statutes and regulations regarding transfer or assignment. Within 30 days of receiving a request for transfer, the Township, in accordance with the Cable Act and FCC rules, shall notify Comcast in writing of the additional information it requires to determine the legal, financial and technical qualifications for the transferee or new controlling party. The Township shall have 120 days from the receipt of all required information to take action on the transfer or assignment. If the Township has not taken action on Comcast's request for consent within 120 days after receiving such request, consent shall be deemed granted.
In accordance with FCC regulations, Comcast shall maintain a business office or customer service facility that is conveniently located and which shall be open during normal business hours. For the purposes of this franchise, "normal business hours" are those hours during which most similar businesses in the community are open to serve customers. As of the effective date of this agreement, Comcast maintains a business office in Willow Grove. If Comcast decides to move this business office, it shall notify the Township.
Excluding conditions beyond the control of Comcast, cable service interruptions shall be addressed promptly and in no event later than 24 hours after the interruption becomes known to Comcast. All other cable-related problems must be addressed within the next business day after notification of the problem.
Comcast shall provide and maintain a toll-free telephone access line available to subscribers 24 hours a day, seven days a week. Trained representatives shall be available to respond to customer inquiries during normal business hours. After normal business hours, the telephone may be answered by a service or an automated response system. Inquiries received after normal business hours must be responded to by a trained company representative on the next business day.
As a supplement to the requirements herein above, Comcast shall comply with the federal customer service obligations set forth in FCC regulations and attached hereto as a part of this franchise (47 CFR § 76.309).
In the event that any section, sentence, clause or phrase of this ordinance is declared to be illegal, invalid or unconstitutional by a court of competent jurisdiction, the illegality, invalidity or unconstitutionality of such part shall not affect the validity of the ordinance as a whole.
This ordinance repeals and replaces Ordinance No. 1276, adopted March 16, 1992, in its entirety.
This ordinance is enacted and ordained this seventh day of April, 2008, A.D. ("effective date").