[HISTORY: Adopted by the Mayor and Council
of the Town of Elsmere 12-10-2015 by Ord. No. 609.[1] Amendments noted where applicable.]
GENERAL REFERENCES
Cable television rates — See Ch. 9.
[1]
Editor's Note: This ordinance superseded former Ch. A230,
Cable Television Franchise, adopted 12-14-1989 by Ord. No. 246.
A.
Grant generally. Comcast is hereby granted for itself and its duly
approved (as provided herein) successors and assigns, subject to the
terms and conditions of this franchise agreement and the ordinance
granting this franchise, the nonexclusive right, privilege and authority
to construct, operate, maintain and reconstruct a cable system for
the provision of cable service within the streets, alleys and public
rights-of-way of the Town. This grant is for cable service. The terms
"cable service" and "cable system" are defined as those terms are
defined in 47 U.S.C. § 522(6) and 47 U.S.C. § 522(7)
as of the effective date of this agreement.
B.
Condition of grant. The grant of this nonexclusive franchise is expressly
conditioned on the operation and maintenance of the current cable
system for the limited purpose of providing cable services within
the Town of Elsmere.
C.
Acceptance of grant. Comcast accepts the grant of the franchise and
acknowledges and accepts the Town's right to grant the franchise,
to enter into this agreement, and agrees that the franchise was granted
pursuant to processes and procedures consistent with applicable law
and that it will not raise any claim to the contrary or claim that
at the time of acceptance any term herein was void.
D.
Rights-of-way. For the purpose of operating and maintaining a cable
system in the Town, Comcast may erect, install, construct, repair,
replace, reconstruct and retain in, on, over, under or upon, across
and along the public rights-of-way within the Town such wires, cables,
conductors, ducts, conduits, walls, manholes, amplifiers, appliances,
pedestals, attachments, and other property and equipment as are necessary
and pertinent to the operation of a cable system in conformance with
this agreement. None of the foregoing shall be erected or installed
in any manner which conflicts with existing law. Prior to any construction,
relocation or alteration — including the construction of a hub
or studio on Town-owned property or rights-of-way — and in accordance
with the generally applicable provisions of the Town Code, Comcast
shall file plans with all appropriate Town or other governmental agencies
and shall receive written approval before proceeding. Notwithstanding
the requirements herein, Comcast 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 that does not
disturb the surface of the grade or impede or impact vehicular traffic.
E.
Effective date of franchise. The effective date of the franchise
granted herein shall be the date on which the Town Council adopts
and the Mayor signs an ordinance granting a franchise based on this
agreement, as executed by the parties. Immediately upon the taking
effect of this franchise agreement, the prior franchise, Ordinance
No. 246 of 1989, shall be superseded and have no further force and
effect; provided, however, that any vested Comcast rights relating
to billings and the Town's rights to receive accrued and unpaid
franchise fees for any period prior to the effective date shall not
be affected thereby.
F.
Term. The term of the franchise shall extend 10 years or until 11:59
p.m. on December 15, 2025, unless sooner terminated as hereinafter
provided, at which time it shall expire and be of no further force
or effect.
G.
Franchise nonexclusive. This franchise shall not be construed as
any limitation upon the right of the Town to grant to other persons
rights, privileges or authorities similar to the rights, privileges
and authorities herein set forth, in the same streets, alleys or other
public ways or public places. The Town specifically reserves the right
to grant at any time during the term of this agreement or renewal
thereof, if any, such additional franchises for a cable system as
it deems appropriate. If the Town grants a franchise or similar authorization
to another service provider, Comcast may make a written request that
the Town modify the material terms of this franchise to provide substantially
the same terms and conditions as are applicable to the new service
provider within 60 days after Comcast's written request. Material
terms shall include: governmental channel, governmental channel support
and return feed line, franchise fees, customer service obligations,
build-out and service obligations. Differences in financial terms
may be evaluated on a per-subscriber basis in determining whether
there is a material difference in obligations.
A.
Town-wide service. Comcast agrees to maintain its current system
in good operating condition and to offer cable service to all residential
dwellings in the Town that meet the line extension formula defined
in Subsection 2B, hereinbelow.
B.
Line extension formula. Comcast shall offer cable service to any
new residential subscribers within the initial franchise area and
any additional area annexed to the Town where there are at least 35
residences per proposed linear mile of active signal cable plant as
measured from the nearest active trunk or feeder line. Any dwelling
unit within 125 feet aerial distance from the main distribution line
shall be entitled to a standard installation rate. Further, in other
areas with less than 35 residences per proposed linear mile of cable
plant, or in excess of 125 feet aerial distance, or requires an underground
installation, Comcast shall extend cable service at a rate not to
exceed Comcast's actual cost of line extension or installation
from its main distribution system.
C.
In cases of new construction or property development where utilities
are to be placed underground, the developer or property owner shall
give Comcast 60 days' written notice of the particular date on
which open trenching will be available for Comcast installation of
cable, conduit, pedestals and/or vaults, and laterals. Costs of trenching
and easements required to bring service to the residential development
shall be borne by the developer or property owner, except that, if
Comcast fails to install its conduit, pedestals and/or vaults and
laterals within 10 days of the date the trenches are available, as
designated in prior written notice given by the developer or property
owner, then should the trenches be closed after the ten-day period,
the cost of new trenching is to be borne by Comcast.
D.
Service to institutions. Comcast will continue to provide one free
cable drop to all Town-occupied buildings and facilities and public,
private and parochial (K-12) schools listed in Exhibit A[1] that currently have drops, and shall extend service on the same terms and conditions to additional such locations that are within 125 feet from the existing, active signal cable plant, including facilities constructed in the future that meet the criteria of schools or "Town buildings." Town buildings are those buildings owned or leased by the Town for municipal government administrative purposes, and shall not include buildings owned by the Town but leased to third parties or buildings such as storage facilities at which government employees are not regularly stationed. Upon written request, Comcast will provide free of charge: the basic service at each drop, including the government access channel, plus no more than three converter boxes to the Town and no more than three converter boxes to each school. The Town will allocate the converter boxes amongst the Town's Comcast accounts. Unless covered by Subsection D(1) below, all cable drops to the schools and public buildings shall be at Comcast's expense, but distribution of the system within these buildings shall be at the expense of the schools or responsible public agency.
(1)
For any institution located in excess of 125 feet aerial distance,
or which requires an underground installation, Comcast shall extend
cable service to that institution upon the payment of an amount not
to exceed Comcast's actual cost of line extension or installation
from the nearest active signal cable feeder line.
[1]
Editor's Note: Exhibit A is included as an attachment to this chapter.
A.
Generally. Subject to the Town's regulations and applicable
law, Comcast may perform all construction necessary for the operations
of its cable system, provided that it obtains the necessary generally
applicable permits and permissions from the Town. Comcast shall not
be required to obtain permits for cable service drops for individual
subscribers or for servicing or installation of pedestals or routine
maintenance that does not disturb surface grade or impact vehicular
traffic. Comcast shall pay any and all required permit fees.
B.
Use of streets. Without limiting obligations under the Town code:
(1)
The franchise grants no rights to Comcast to place or to maintain
its system at particular locations within the rights-of-way; its uses
are subordinate to use by the Town and by the public for transit,
and may not interfere with the same.
(2)
Comcast's work in the right-of-way shall not be at the Town's
expense, except where a statute specifically requires reimbursement.
(3)
Whenever an action by Comcast creates a hazard to persons or to property,
the Town may cause the hazard to be corrected, or take other action
to mitigate the hazard and charge Comcast without the notice and opportunity
to cure that may otherwise be required. The Town must make reasonable
efforts to notify Comcast of the hazard or to limit Comcast's
obligations under this section.
(4)
Nothing in this agreement shall hinder the Town's right to perform
or carry on any public works or public improvements. Should Comcast's
system in any way interfere with such public works or public improvements,
Comcast shall at its own expense protect or relocate its system, or
part thereof, as reasonably directed by the Town. In the event all
other public service providers in the public way (telephone, gas,
electric utilities, etc.) are required to relocate aerial facilities
underground as part of an undergrounding or neighborhood beautification
project, Comcast shall relocate its aerial facilities underground
contemporaneously with such utilities; provided, however, that such
underground locations are capable of accommodating Comcast's
facilities without technical degradation of the cable system's
signal quality. Comcast's relocation costs shall be included
in any computation of necessary project funding by the Town or private
parties to the extent the Town or private parties elect to pursue
such funding. Comcast shall be entitled to reimbursement of an equitable
portion of its relocation costs from Town or private funds raised
for the project if such funds are made available to other users of
the public way. In the event that project funding and/or reimbursement
of costs are not made available to the parties as part of an undergrounding
project and Comcast is required to place existing aerial plant underground,
Comcast reserves its right to pass those costs through to subscribers
if and to the extent allowed by applicable law. Comcast shall not
be required to construct, operate, or maintain underground any ground-mounted
appurtenances such as subscriber taps, line extenders, system passive
devices, amplifiers, power supplies, or pedestals.
A.
Cable system. The parties understand and agree that Comcast shall
provide and maintain a cable system with two-way capability and minimum
bandwidth capacity of 750 MHz. The cable system shall meet or exceed
any and all applicable technical performance standards of the Federal
Communications Commission ("FCC"), the National Electrical Safety
Code, the National Electric Code, and any applicable federal and state
and local safety laws and regulations of general applicability. Comcast
shall regularly inspect the system and test its electronic integrity
and accuracy in accordance with applicable FCC standards. The Town
may observe all such tests and Comcast will share all test reports
with the Town, upon written request Comcast reserves the right to
alter, adjust, modify, rebuild, upgrade, redesign, or otherwise reconfigure
the cable system for the purpose of providing cable service at any
time during the term of the franchise agreement, provided that no
alteration, adjustment, modification, rebuild, upgrade, redesign or
other reconfiguration of the cable system shall have the effect of
reducing the technical capabilities of the cable system.
B.
Emergency alert. Comcast shall comply with all state and federal
EAS guidelines, in accordance with Emergency Alert System requirements
of the FCC, 47 CFR Part 11, FCC Rules and Regulations.
C.
Standby power. Standby power at the headend(s) shall be provided
in the event of a service interruption. Standby power must activate
automatically upon the failure of commercial utility power.
D.
Converters. Comcast shall make available subscriber equipment necessary
to receive cable services in a manner and at rates in compliance with
applicable federal law.
E.
Parental control devices. Pursuant to § 624 of the Cable
Act (47 U.S.C. § 544), Comcast shall offer to any subscriber
who so requests a parental control device or other means enabling
the subscriber to lock out the video portion of any channel transmitted
by Comcast and received by the subscriber.
F.
Minimum interference. Comcast shall use every reasonable effort to
install and locate all transmission lines, equipment and structures
so as to cause minimum interference with the rights and reasonable
convenience of property owners and at all times to keep and maintain
such equipment in a safe and adequate condition. Comcast's operation,
construction, repair and maintenance personnel shall follow all safety
procedures required by all applicable federal, state and generally
applicable local laws and regulations.
G.
Technical standards. The cable system shall be installed, maintained,
and operated in conformance with all applicable FCC rules and regulations.
A.
Service. Comcast will offer cable services over the cable system
to all subscribers on a continuous, uninterrupted basis throughout
the term of this agreement.
B.
Programming. Comcast will provide a wide range and assortment of
programming services serving a variety of community needs and interests
in accordance with the Cable Act.
A.
Comcast shall continue to reserve one channel for governmental access.
B.
Within 60 days of the effective date of this franchise, Comcast will
provide the Town with a one-time payment of $8,500 in government access
capital funding purposes to be spent in the sole discretion of the
Town.
(1)
Upon reasonable request of the Town, Comcast personnel will be available
to the Town to provide best practices insights for equipment purchases
and government access channel programming formats. All parties acknowledge
that such recommendations are made at the request of the Town and
shall not constitute editorial control as that term is defined in
47 U.S.C. § 531.
C.
In the event the Town decides to relocate the government access origination
point or add additional government access origination points, such
government access origination points shall be paid for in advance
by the Town at Comcast's actual cost of construction.
D.
At Comcast's sole cost and expense, upon written request, the
Company shall provide a "return line" including the modulator or equivalent
device and all necessary equipment to feed audio and video signals
directly over the cable system in the service area from one location:
in the Town Hall. It shall be the responsibility of the Town government
to pay the cost for production equipment or extension of the return
line to more than one location within a given building and for any
move of the connection point to this line after it is initially installed.
The Town and Comcast further agree that all costs incurred by Comcast
for supporting such access channel, including any and all equipment
and capital support grants may be designated as "costs of franchise
requirements" or "external costs" as defined by the FCC and Comcast
reserves its right to pass these costs through to the subscribers
pursuant to federal law.
E.
As referenced in Subsection D hereinabove, Comcast shall provide a video return line from the designated origination source of the noncommercial governmental programming at no cost to the Town. After the original return line is established, in the event the Town decides to relocate the governmental programming access point, such return feeds shall be paid for in advance by the Town at Comcast's actual cost of construction.
F.
Comcast may not change the channel number of the governmental access
channel without providing the Town a minimum of 45 days' advance
notice. Comcast shall provide the affected programmer of each channel
noticed for a number change with a reimbursement of up to $2,500 for
rebranding costs. Comcast shall also provide notice of the change
to all subscribers by way of a message at least once in a monthly
subscriber bill and use its best efforts, subject to cost and technical
feasibility, to further notify customers of the channel change by
appropriate means such as direct subscriber mailing, channel crawl,
or other means. In accordance with applicable law, Comcast shall notify
subscribers and the Town in writing of any changes in commercial channel
positions, rates, or video programming services a minimum of 30 days
in advance of such changes provided that such change is within the
control of Comcast. Comcast shall not be required to provide prior
notice to subscribers of any rate change that is the result of a regulatory
fee, franchise fee or any other fee, tax, assessment or charge of
any kind imposed by any federal agency, the State of Delaware or the
Town on the transaction between Comcast and the subscriber.
G.
Comcast agrees that it will deliver any government access channel
(the "access channel") to customers in a manner that meets or exceeds
FCC standards, without substantial degradation of signal quality.
The signal will have the same or better signal quality and customer
channel selection accessibility consistent with other channels on
Comcast's commercial channel lineup. Comcast shall deliver the
access channel signals to customers in accordance with the same FCC
technical specifications that are comparable to the specifications
used to maintain commercial channels transmitted to subscribers on
the cable system. Comcast shall not be responsible for the level of
technical signal quality of programming produced by any governmental
access channel programmer.
H.
The government access channel shall be available on the basic service
tier, or equivalent lowest offering of cable service if there is no
basic service tier. The government access channels shall be available
to every customer without any charges beyond those that the customer
incurs in subscribing to basic service or equivalent level of service.
I.
Program guide. If Comcast, or its programming guide company, is able
to implement a technical solution that would allow information regarding
the access channel's programming to be carried on the cable system's
programming guide without interfering with other communities'
access channels or programming information, Comcast has no objections
to the Town or its designated operator requesting that Comcast or
the programming guide company make the Town's content descriptions
available to viewers.
A.
Condition of wires. Comcast shall maintain all wires, conduits, cables
and other real and personal property and facilities in good condition,
order and repair in accordance with applicable FCC and industry standards.
B.
Maps. Comcast shall prepare and make available as-built maps of the
entire cable system to the Town showing clearly thereon all areas
served by Comcast where its facilities exist, provided that Comcast
may label any confidential materials accordingly, and the Town will
protect the confidentiality of the materials in accordance with law.
No more than once per year Comcast shall provide the Town with updated
maps within 30 days upon written request.
C.
Code compliance. Comcast shall comply with any and all FCC and state
and generally applicable local rules and regulations governing the
construction and maintenance of its cable system. Technical performance
standards of its cable system shall be in accordance with applicable
FCC standards.
D.
Relocation. In the event of the relocation, construction, reconstruction,
maintenance or repair by the Town of any of its facilities or services
now owned or hereafter acquired (including, but not limited to, any
street, alley, sewer, water main, electric line, fire alarm, police
communication, civil defense system or other communication, or traffic
control facility or any part thereof), or in the event that access
to any street, alley or other public place to or from any property
of the Town is required, and it is necessary to move, alter or relocate,
either permanently or temporarily, any of Comcast's property
or part thereof on public property, public rights-of-way or public
easements (including, but not limited to, posts, poles, wires, manholes,
ducts, cables, conduits, electrical conductors, fixtures, appliances
and appurtenances), in order for the Town to relocate, construct,
reconstruct, maintain or repair any such facility, sewer, street,
alley or other public place or any such sewer, electric line, water
main, fire alarm, police communication, civil defense system, traffic
control or other facility, or any part thereof, or to obtain access
to or from such property, upon 60 days' written notice from the
Town, Comcast will move, relocate, or otherwise alter any such property
or part thereof, at its own cost and expense; and should Comcast fail,
refuse or neglect to comply with such notice, such property or part
thereof may be removed, altered or relocated by the Town at the sole
cost of Comcast, and the Town shall not be liable to Comcast for damages
resulting from such removal, alteration or relocation. Comcast agrees,
as a condition of this agreement, that it will do everything reasonably
necessary, in a timely manner, to prevent any delays in construction
projects of the Town. To the extent other users of the public rights-of-way
are reimbursed for relocation expenses, Comcast shall be entitled
to an equitable portion of such reimbursement.
E.
Fire disaster or other emergency. If, at any time in case of fire,
disaster, or other emergency, it shall appear necessary in the reasonable
judgment of the Town to cut, move or otherwise interfere with any
of the wires, cables, amplifiers, appliances or appurtenances thereto
of Comcast, the Town shall not be liable for any damage to such property
and equipment of Comcast as a result of such cutting, moving or interfering.
Town shall notify Comcast as soon as possible of any such action.
In cutting or moving any of the wires, cable or equipment of the cable
system in the event of fire or other disaster, the Town shall treat
Comcast the same as, and require no more of Comcast than, any other
similarly situated public service entity.
F.
Existing facilities. Comcast shall make every reasonable effort to
utilize existing poles, conduits and other facilities whenever possible,
by negotiating agreements with the public service companies owning
such facilities and shall not construct or install any new, different
or additional poles, conduits or other facilities, whether on public
property or on privately owned property, unless it has explored all
reasonable alternatives and it is unable to obtain permission to use
existing facilities at reasonable costs or unless there are no existing
facilities.
Comcast shall comply with all applicable customer service requirements
in the FCC's rules. In addition, Comcast commits to the following:
A.
Notices. Comcast shall provide written notice to each subscriber
upon initial subscription, and once per calendar year thereafter to
each subscriber, and at any time upon request, regarding each of the
following areas:
(1)
Products and services offered;
(2)
Prices and options for programming services and conditions of subscription
to programming and other services;
(3)
Channel positions of programming carried on the cable system;
(4)
Installation and service maintenance policies;
(5)
Instructions on how to use the cable service and any converters;
(6)
Billing and customer complaint procedures;
(7)
Comcast's address, telephone number and office hours; and
(8)
A notice of subscriber privacy rights as required by federal law.
B.
Customer complaint; response; repair. Comcast shall comply with the
following:
(1)
Telephone procedures. Comcast shall provide a toll-free number and
employ sufficient telephone lines and operators to handle incoming
customer service calls. Under normal operating conditions and during
normal business hours, telephone answering time by a customer representative,
including wait time, shall not exceed 30 seconds after the connection
is made. If the call needs to be transferred, transfer time shall
not exceed 30 seconds. These standards shall be met no less than 90%
of the time, measured on a quarterly basis.
(2)
Telephone response time. Should the response time to incoming calls
by Comcast result in an historical record of complaints which indicate
a clear failure to comply and the Comcast response time falls below
the standard in the FCC's rules as measured on a quarterly basis,
Comcast agrees to take appropriate measures to restore telephone response
time to the above standard (see 47 CFR 76.309).
C.
Repair response. Comcast agrees to respond to all cable service repair
requests in as expeditious a manner as possible. If Comcast's
record of repairs falls below the FCC standard, Comcast agrees to
take appropriate measures to restore its repair service level to the
above standard.
D.
Refunds for outages. The cable system shall be designed for operation
24 hours per day. Under normal operating conditions, Comcast shall
upon written or credible oral request issue credit to its subscribers
for outages of more than six continuous hours and for outages. Refunds
given in accordance with the provisions of this subsection shall be
on a pro rata credit or rebate, on a daily basis, of that portion
of the service charge during the next consecutive billing cycle, or,
at its option, apply such credit to any outstanding balance that is
currently due. No refund shall be required where the outage is a result
of misuse of equipment by the subscriber, defective equipment not
provided by Comcast, or where Comcast is denied access to the subscriber's
premises.
E.
Continuity of service. Subscribers are entitled to receive all available cable services insofar as their financial and other obligations to Comcast are honored subject to the force majeure provisions in § A230-17 of this agreement. Franchisee retains the right to deny service to any customer who violates franchisee's service policies including signal theft, equipment tampering, employee safety or threats to safety, harassment, or other reasonable cause.
Comcast will abide by all the provisions under federal and state
law governing unfair discrimination in employment practices or sales
of its product and services in Town.
A.
Compliance with existing law. Comcast shall construct, install, maintain
and operate its cable system so as to meet all of the requirements
of subscriber privacy outlined in the Cable Communications Policy
Act of 1984 and in all other applicable federal and state rules and
regulations.
B.
Privacy information. Comcast shall provide new subscribers with a
copy of its privacy policy at least once per year and provide all
existing subscribers with a copy of its privacy policy as required
under the Cable Communications Policy Act of 1984.
C.
Request for information. In accordance with applicable law, Comcast
shall within 30 days of a receipt of a written request from a subscriber,
make available to such subscriber the information collected or maintained
by it with respect to such subscriber. Furthermore, Comcast shall
permit its subscribers to correct any inaccurate information collected
about them. Comcast shall produce the information requested by the
subscriber in the manner as it is maintained in the ordinary course
of business. Coded information shall be provided with a key or explanation
converting symbols into a form that is reasonably comprehensible.
This franchise may be renewed upon agreement of the parties
and upon a determination by vote of the Town Council, following public
hearings, in accordance with the renewal standards set forth in § 626
of the Cable Act. In the event of nonrenewal or termination of the
franchise and the Town acquires ownership of or effects a transfer
of ownership of the cable system, any such acquisition or transfer
shall be in accordance with applicable federal law, in particular
§ 627 of the Cable Act and subject to the provisions of § 621(b)
of the same statute.
A.
Annual report. During the term of this agreement, upon written request
by the Town, Comcast shall submit the following information:
(1)
A 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 ("GAAP");
(2)
An annual financial statement for the Town of franchise fees
paid, if not provided in conjunction with the Town's quarterly
franchise fee statement;
(3)
A list of Comcast's officers, members of its Board of Directors,
and corporate governance; and
B.
Technical reports. Upon written request, Comcast shall submit to
the Town a report which shall demonstrate that its cable system is
designed, installed, and operated in a manner that fully complies
with applicable FCC technical standards and reports, Subpart K, 47
CFR § 76.601 et seq., as amended.
C.
Corporate annual reports. A copy of the most recent corporate annual
report of Comcast Corporation shall be submitted to the Town upon
written request within 30 days.
D.
Billings. Comcast shall maintain fiscal and financial data sufficient
to accurately reflect all its customer billings. This material shall
be kept and maintained in accordance with generally accepted accounting
principles. Such records shall be retained for a twelve-month period
and may be inspected by the Town upon reasonable written request during
such period subject to the privacy provisions of § 631 of
the Cable Act.
E.
Upon written request and not more than once a year, unscheduled outage
repair summaries will be prepared and submitted to the Town and the
Town may inspect repair logs not more than once a year upon reasonable
written request.
F.
Upon written request and not more than once a year, Comcast shall
submit to the Town copies of pleadings, applications, reports and
other documents reasonably requested by the Town which have been filed
with any federal, state or regulatory agency or government body if
such documents relate specifically to the operation of Comcast's
cable system within the Town.
G.
Open books and records. Upon 20 business days' prior written
request, the Town shall have the right to inspect at any time during
normal business hours at the local cable system office all books,
maps, financial statements that relate to the franchise fee, service
complaint logs, and applicable performance test results that relate
directly with the terms of this franchise, subject to appropriate
confidentiality and nondisclosure requirements and applicable privacy
restrictions. Notwithstanding anything to the contrary set forth herein,
all confidential information received by the Town or its designated
representatives and designated as proprietary or confidential in nature
by the franchisee shall remain confidential insofar as permitted by
the Delaware Freedom of Information Act, Title 29, Chapter 100, of
the Delaware Code, and other applicable state and federal law. Representatives
and/or agents and/or designees of the Town may be requested to execute
a nondisclosure agreement prior to the provision by Comcast of certain
confidential information provided such representatives and/or agents
are permitted to do so under applicable law. Information and documentation
marked by Comcast as proprietary or confidential shall include a brief
written explanation as to its proprietary nature or confidentiality
subject to review by the Town. The Town and its officially designated
representatives agree in advance to treat any such information or
records which Comcast reasonably deems would provide an unfair advantage
for Comcast's competitors (e.g., system design maps, engineering
plans, programming contracts, etc.) as confidential so long as permitted
to do so under applicable law and only to disclose it to municipal
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 Town acting in their official capacity for
information related to the franchise and marked by Comcast as confidential
and/or proprietary, the Town shall notify Comcast of such request.
Comcast shall not be required to provide subscriber information in
violation of § 631 of the Cable Act, or information which
is not relevant to regulation of the franchise (e.g., employee files,
tax returns, etc.).
A.
Indemnification. Comcast agrees to indemnify and hold harmless the
Town, its elected and appointed officials, officers, agents and employees
acting in their official capacities from any and all liability to
property or to persons (including death) from any and all claims,
demands, actions, judgment, costs, expenses and liabilities of every
kind and nature which may or could arise or result, directly or indirectly,
from the construction, installation, upgrade, reconstruction, operation,
or removal, maintenance and use of any and all wires and equipment,
that are the property of Comcast, the acts of Comcast's officers,
employees or agents, in the operation of this franchise, excluding
claims arising out of or relating to programming produced or provided
by the Town or its designees. The Town shall give Comcast timely written
notice of its obligation to indemnify and defend the Town. Comcast
shall not indemnify the Town, its elected and appointed officials,
officers, agents or employees for any claims resulting solely from
acts of willful misconduct or negligence on the part of the Town,
its elected and appointed officials, officers, agents or employees.
B.
Insurance. Comcast shall maintain insurance, at its cost, against liability due to damage to property in a sum not less than $500,000 as to any one accident and subject to this limit per accident, an aggregate of $1,000,000 during the policy year, and against liability due to injury to or death of persons, $1,000,000 as to any one person and $5,000,000 as to any one accident. Comcast shall also carry such insurance as will protect it from all claims under any workmen's compensation laws in effect that may be applicable to any period. To the extent permitted Comcast under its agreement with any other utility, Comcast may satisfy the requirement of this subsection by making the Town an additional insured thereunder and providing a certificate of insurance to the Town within 30 days of the effective date. Failure to carry such insurance in the required amounts may, at the discretion of the Town, result in termination of the rights granted by this franchise provided that the Town shall provide Comcast with notice of such default and provide Comcast with a reasonable opportunity to cure such default in accordance with § A230-20 of this agreement. Should the Town of Elsmere be sued for damages for injury to persons or property caused by the activities of Comcast, its agents, employees, servants or independent contractors, Comcast shall be notified of such suit by the Town in a timely manner that avoids entry of a default judgment and does not prejudice the Comcast's ability to defend the claim or action, and it shall be the duty of Comcast to defend or settle such suit; and further if such judgment be entered against the Town in any such case, the Town shall recover the amount thereof with costs including its reasonable attorney's fees from Comcast. The record of judgment against the Town in any such cases shall be conclusive evidence entitling the Town to so recover against Comcast.
At all times during the term of the franchise, Comcast shall
maintain and keep in force and effect a performance bond or an irrevocable
letter of credit or some other means of assurance satisfactory to
the Town which shall serve as a performance guarantee or bond, and
as security for the performance and discharge of its obligations under
this franchise agreement. Said guarantee shall be issued by an insurance
company, bank or other entity approved by the Town and shall be conditioned
upon the faithful performance of all terms of this agreement and the
law, and shall specify that in the event Comcast has failed to faithfully
perform or is in default under any of its obligations, then, in such
event, the obligor shall reimburse the Town such funds as are necessary
to pay damages incurred by the Town or otherwise meet the obligations
of this agreement and the law. The performance bond or letter of credit
shall be in the amount of not less than $25,000 for the duration of
the franchise agreement. Failure to establish and maintain at the
full amount the letter of credit or performance bond shall constitute
a material breach of this agreement.
A.
Franchise fee. Following the issuance and acceptance of the franchise,
Comcast shall pay to the Town a franchise fee in an amount equal to
5% of all gross revenues, derived by Comcast from the operation of
the cable system to provide cable services within the Town of Elsmere
for each twelve-month period thereafter and without credit for taxes
or fees paid to the state.
(1)
Gross revenues shall include:
(a)
Any and all cash, credits, property, or other consideration
of any kind or nature that constitute revenue as determined in accordance
with generally accepted accounting principles [GAAP] and that arise
from or are attributable to, or in any way derived directly or indirectly
by Comcast from, the operation of the cable system to provide cable
service (except as hereinafter specifically excluded). Gross revenues
shall include all items permitted to be included in gross revenues
for the calculation of franchise fees under applicable law, including,
without limitation:
[1]
Any fees collected from subscribers for cable service, including
expanded services and premium services, pay-per-view service and other
per-channel or per-program service;
[2]
Installation, disconnection, reconnection, and change-in-service
fees;
[3]
Fees for rental or sale of converters, remote controls, or other
subscriber equipment;
[4]
Late fees and administrative fees collected by the grantee,
including any fees passed on to and collected from subscribers such
as cable franchise fees and FCC regulatory fees;
[5]
Fees from programmers for leased access programming;
[6]
Local, regional and national advertising revenues attributable
on a pro rata basis to the cable system; and
[7]
Revenues for sales of any products or services on the cable
system, such as "home shopping" or a similar channel.
(b)
Revenues which are not directly attributable to specific customers,
such as advertising revenue and home shopping commissions, shall be
allocated to systems and jurisdictions on a per-subscriber basis measured
in a consistent manner from period to period. To that extent, said
revenue amounts shall be calculated on a pro rata basis by the dividing
of the total number of subscribers within the Town to the total number
of subscribers in the cable system area that includes the Town.
(2)
Gross revenues does not include:
(a)
Any taxes on services furnished by grantee that are imposed
directly on any subscriber by the Town or another governmental unit
and that are collected by the grantee on behalf of said governmental
unit. A franchise fee is not such a tax.
(b)
Any receipts written off as uncollectable (i.e., "bad debt"),
provided, however, that all or any part of any such actual bad debt
that is written off but subsequently collected shall be included in
gross revenues in the period collected, provided the grantee maintains
its books consistently, year to year, in accordance with generally
accepted accounting principles.
(c)
Gross revenues shall not include revenue derived from investment
income, refundable deposits, sales of capital equipment or assets,
program launch fees, or any forgone revenue that Comcast chooses not
to receive in exchange for its provision of free or reduced-cost cable
or other communications services to any person, including without
limitation employees of Comcast and public institutions or other institutions
designated in the franchise.
B.
Payments to Town. No acceptance of any payment shall be construed
as an accord that the amount paid is in fact the correct amount, nor
shall such acceptance of payment be construed as a release of any
claim the Town may have for further or additional sums payable under
the provisions of this agreement. Upon 20 business days' prior
written notice and subject to § 631 of the Cable Act, the
Town shall have the right to inspect the books and records of Comcast
during the normal business hours and the right to audit and recompute
any amounts determined to be payable under this agreement; provided,
however, that such audit shall take place within three years following
the close of Comcast's fiscal year after which period any such
payment shall be considered final. Any additional amount due to the
Town as a result of such audit shall be paid within 30 days following
written notice to Comcast by the Town which notice shall include a
copy of the audit report.
C.
Comcast shall have 30 days from the receipt of the statement regarding
an alleged underpayment to provide the Town with any written objection
to the results of the franchise fee review, including any substantiating
documentation. Based on this exchange of information, the Town shall
make a final determination of the underpayment(s), if any, within
30 days of Comcast's objection and shall provide Comcast with
written notice of the determination. If Comcast disputes the Town's
final determination, it may submit the dispute to mediation or arbitration
within 30 days of receiving the Township's written notice of
determination. In the event that Comcast fails to submit the matter
to mediation or arbitration within the required time period, the Town's
final determination shall be binding on Comcast. If Comcast submits
the matter to mediation and an agreement is not reached, either party
may bring an action to have the dispute determined by a court of competent
jurisdiction.
D.
Other requirements not franchise fees. Except where expressly provided
herein, or required by federal law, Comcast's satisfaction of
its obligations in other sections of this agreement deemed incidental
to the awarding or enforcing of the franchise (e.g., bond payments,
insurance, indemnification, fines or penalties) and/or other minor
expenses shall not be considered payment of a franchise fee or taken
as a credit against the franchise fee obligation.
A.
Notice and opportunity to cure. Either party must provide written
notice of any material breach or other claim under this agreement.
The injured party must allow a thirty-day period to cure. If cure
cannot be completed within 30 days and the noticed party has taken
reasonable steps to cure, an action in law or equity in a court of
competent jurisdiction may not be taken during the period reasonably
required to complete the cure. If the nature of the violation is such
that it cannot be fully cured within 30 days, the period of time in
which Comcast must cure the violation may be extended by the Town
for such additional time necessary to complete the cure, provided
that Comcast shall have promptly commenced to cure and is taking reasonable
steps to cure in the reasonable judgment of the Town.
B.
Waiver. Comcast shall not be excused from complying with any of the
terms and conditions of this franchise by any failure of the Town
upon any one or more occasions to insist upon or to seek compliance
with any such terms or conditions. No waiver by the Town of any breach
of any provision of the franchise agreement shall be construed as
a waiver of any succeeding breach of such provision, or as a waiver
of the provision itself. No delay on the part of Comcast in exercising
any of its rights hereunder shall operate as a waiver of any such
rights of Comcast or acquiescence in the actions of Town in contravention
of such rights, except to the extent expressly waived by Comcast.
C.
Cumulative rights. The rights and remedies reserved to the Town or
Comcast by this franchise agreement are cumulative and shall be in
addition to and not in derogation of any other rights or remedies
which the Town or Comcast may have with respect to the subject matter
of this franchise agreement, and a waiver thereof at any time shall
have no effect on the enforcement of such rights or remedies at a
future time.
D.
Time of essence. Whenever this franchise sets forth any time for
any act to be performed by either of the parties, such time shall
be deemed to be of the essence of this agreement.
If Comcast is prevented or delayed in the performance of any
of its obligations under this agreement by reason of Acts of God,
floods, fires, hurricanes, tornados, earthquakes or other unavoidable
casualty, acts of public enemy, terrorism or threats of terrorism,
insurrection, war, riot, sabotage, vandalism, strikes, boycotts, lockouts,
labor disputes, shortage of labor, epidemic, freight embargoes, shortages
or unavailability of materials or supplies, unusually severe weather
conditions, or the failure of a utility to provide the make-ready
for the Comcast's cable system construction work, after timely
request by Comcast, the unlawful denial of any permit application
by the Town, or the failure of the Town to respond to any permit application
or approval request by Comcast within a reasonable time period considering
the scope of the request (any of which is hereinafter called "force
majeure"), then the time within which such obligations must be performed
under the terms of this agreement shall be extended for a reasonable
period.
The franchise granted herein shall be a privilege personal to
Comcast. No interest in the franchise shall be directly or indirectly
transferred or assigned without the prior approval of the Town which
shall not be unreasonably withheld. For the purposes of this section
a merger or consolidation, or the formation of a joint venture or
partnership in which Comcast is a party and/or participant shall be
deemed a transfer or assignment subject to the provisions of this
section and shall not be entered into or consummated without the prior
approval of the Town, which approval shall not be unreasonably withheld.
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 Comcast in the franchise or in the cable system in
order to secure indebtedness; or ii) a transfer to an entity directly
or indirectly owned or controlled by Comcast Corporation.
Comcast acknowledges and accepts the legal right of the Town to issue a franchise and Comcast agrees that it shall not now or at any time hereafter challenge this lawful right. Comcast and the Town understand that this franchise is being granted pursuant to state and federal law as it now exists, and agrees that in the event of any changes in such laws (subject to § A230-21B hereof) which conflict with the terms of this agreement, the Town and Comcast may amend this agreement to comply with such change in statute or regulation of law provided such amendment is mutually approved in writing by the Town and Comcast.
A.
In addition to the other rights, powers and remedies retained by
the Town under this agreement, the Town reserves the separate and
distinct right to revoke this franchise in the event of a substantial
and material breach, which includes:
(1)
It is demonstrated that Comcast practiced any fraud or deceit
upon the Town in the operation of its cable system or any other activities
pursuant to this agreement;
(2)
Comcast repeatedly fails, after notice and opportunity to cure,
to maintain signal quality pursuant to the standards provided for
by the FCC; or
(3)
Comcast repeatedly violates, after notice and opportunity to
cure, one or more of the material terms or conditions of this agreement.
B.
The foregoing shall not constitute a violation of a material term or condition if the violation occurs without the fault of Comcast or occurs as a result of circumstances beyond its control or by reason of force majeure as defined in § A230-17.
C.
This franchise may not be terminated except for a substantial breach
of this agreement. As a condition precedent to termination, the Town
shall provide Comcast with written notice of such substantial and
material breach and intent to terminate. Such notice shall state the
grounds for revocation, the section or sections of this agreement
that the Town believes have been violated, and the details relating
thereto. The Town shall allow Comcast 30 days during which to cure
such breach or to commence reasonable efforts to affect cure. If the
nature of the breach is such that it cannot be reasonably remedied
in 30 days, after notice from the Town, Comcast shall have a reasonable
time within which to cure the breach and if it does not satisfactorily
do so, the Town may terminate this agreement. A termination shall
be declared only by a written decision of the governing body after
an appropriate public hearing that shall afford Comcast due process
and full opportunity to be heard. This shall include the ability to
introduce evidence, to question witnesses and to respond to any notice
of grounds to terminate in accordance with state standards of a fair
hearing applicable to administrative hearings. 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 Town, after a public
hearing and upon finding the existence of grounds for revocation,
may either declare this franchise terminated or excuse such grounds
upon a showing by Comcast of mitigating circumstances or good cause
for the existence of such grounds. The Town shall issue such declaration
and finding within 30 days in a written decision which the Town shall
send via certified or overnight mail to Comcast. Comcast shall retain
the right to challenge such termination through the appropriate legal
process.
A.
Police powers. In accepting this franchise, Comcast acknowledges
that its privileges hereunder are subject to the police power of the
Town to adopt and enforce laws, regulations, resolutions and ordinances
necessary for the general health, safety, and welfare of the public,
and Comcast agrees to comply with all generally applicable laws, regulations,
resolutions, and ordinances presently enforced or subsequently enacted
by the Town pursuant to such power. Nothing in this agreement shall
be construed as an abrogation by the Town of any of its police powers.
Such laws and regulations are separate and distinct from the terms
and conditions contained in this agreement. The Town shall not use
its legislative powers to effectively amend the provisions of this
agreement subsequent to the effective date in such a manner as to
have a material adverse effect on the rights of the Comcast set forth
herein, or to adopt ordinances that are applicable only to Comcast.
B.
Controlling law. The parties' respective rights and obligations
hereunder shall be subject to the laws of the State of Delaware, the
Cable Communications Policy Act of 1984, as now existing or as the
same may be from time to time amended, any applicable rules, regulations
and orders of the FCC, and any applicable rules, regulations, legislation
or orders of any other public body having jurisdiction over the subject
matter hereof. If the Cable Ordinance is amended after the effective
date of this agreement in such a manner that it materially alters
a provision of this agreement, then the expressed terms and provisions
of this agreement shall, to the extent of a conflict, prevail over
the terms of the Cable Ordinance, and to the extent that a term, provision
or condition is not otherwise expressly contained herein or incorporated
by reference, the absence of that term, provision or condition as
otherwise contained in the Cable Ordinance shall be presumed to have
been intentionally deleted and not applicable to Comcast.
C.
Entire agreement. This agreement and all attachments hereto represent
the entire understanding and agreement between the parties hereto
with respect to the subject matter hereof, and supersede all prior
oral negotiations between the parties. This agreement can be amended,
supplemented, modified, or changed only by mutual agreement of the
parties in writing executed with the same formalities as this agreement.
D.
Severability. If any section, subsection, sentence, clause, phrase,
or portion of this agreement is, for any reason, held invalid or unconstitutional
by any court of competent jurisdiction, such portion shall be deemed
a separate, distinct, and independent provision and such holding shall
not affect the validity of the remaining portions of this agreement.
E.
No joint venture. Nothing herein shall be deemed to create a joint
venture or principal/agent relationship between the parties, and neither
party is authorized to, nor shall either party act toward third persons
or the public in any manner which would indicate any such relationship
with the other.
F.
No third-party beneficiaries. Nothing in this franchise agreement
is intended to confer third-party beneficiary status on any member
of the public to enforce the terms of this franchise agreement.
A.
All notices from Comcast to the Town pursuant to this agreement shall
be sent to the Town Manager unless otherwise designated by the Town
in writing. Comcast shall maintain an office within New Castle County
to which all notices by the Town may be addressed. All notices required
to be given under this agreement shall be in writing and shall be
deemed served when delivered by hand or when mailed via U.S. Postal
Service to any party, certified mail, return receipt requested, or
by way of a reputable overnight courier service (e.g., FedEx or UPS).
For purposes of this agreement the notice described above may be sent
to the following addresses:
|
Town of Elsmere
Attn: Town Manager
11 Poplar Avenue
Elsmere, DE 19805
| |
|
With a Copy to:
| |
|
Town Solicitor
| |
|
Every notice to be served upon Comcast shall be sent to:
| |
|
Comcast of New Castle County, LLC
5 Bellecor Drive
New Castle, DE 19720
Attention: Government Affairs Department
| |
|
With copies to:
| |
|
One Comcast Center
1701 John F. Kennedy Boulevard
Philadelphia, PA 19103-2838
Attention: Government Affairs Department
|
B.
Comcast may specify any changes of address in writing to the Town.
Comcast herewith provides an assurance, promise, and guarantee
that it possesses the financial, legal, and technical ability to offer
and make available cable services to subscribers located in the Town
of Elsmere in accordance with the terms and conditions of this agreement
and federal law and that this statement of fact is true and may be
relied upon by the Town as further represented and warranted Appendix
A.[1]
[1]
Editor's Note: Appendix A is included as an attachment to this chapter.
All terms used in this franchise, unless defined below, shall
have the same meaning as that found in the Cable Act and applicable
Federal Communications Commission regulations:
An access channel that consists of local public, educational
or governmental programming pursuant to § 611 of the Cable
Act, 47 U.S.C. § 531.
Any corporation, partnership or other business entity that
owns or controls, is owned or controlled by, or is under common ownership
or control with Comcast, but does not include those affiliated entities
that are not involved with the use, management, operation, construction,
repair and/or maintenance of Comcast Corporation's cable systems.
The service tier that includes at least the retransmission
of local broadcast television signals and any access channels.
Title VI of the Communications Act of 1934, as amended by
the Cable Communications Policy Act of 1984, the Cable Television
Consumer Protection and Competitive Act of 1992 and the Telecommunications
Act of 1996, as it may, from time to time, be further amended.
The one-way transmission to subscribers of video programming
or other programming service and subscriber interaction, if any, which
is required for the selection or use of such video programming or
other programming service, pursuant to § 602(6) of the Cable
Act, 47 U.S.C. § 522(6).
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 Town pursuant
to § 602(7) of the Cable Act, 47 U.S.C. § 522(7).
A portion of the electromagnetic frequency spectrum which
is used in a cable system and which is capable of delivering a television
channel as a television channel is defined by FCC regulation pursuant
to § 602(4) of the Cable Act, 47 U.S.C. § 522(4).
The Federal Communications Act of 1934, as amended, and as
it may, from time to time, be further amended.
The coaxial or fiber optic or other cable that connects a
home or building to the cable system.
A condition that either: 1) constitutes a clear and immediate
danger to the health, welfare, or safety of the public; or 2) has
caused or is likely to cause the cable system in the public rights-of-way
to be unusable and result in system-wide loss of the services provided.
Federal Communications Commission or successor governmental
entity.
The right granted by the Town to construct, operate and maintain
a cable system for the purpose of providing cable service within the
corporate limits of the Town as embodied in the terms and conditions
of this agreement.
The tax, fee or assessment that Comcast remits to the Town for the use of the Town's public rights-of-way pursuant to § 622 of the Cable Act, 47 U.S.C. § 542, and § A230-15 of this agreement.
Those hours during which most similar businesses in the community
are open to serve subscribers. In all cases, normal business hours
must include some evening hours at least one night per week and/or
some weekend hours.
Business conditions within Comcast's service department
which are within the control of Comcast. Those conditions that are
not within the control of Comcast include, but are not limited to,
natural disasters, civil disturbances, power outages, telephone network
outages and severe or unusual weather conditions.
The loss of video programming on one or more channels.
Any video signal carried over the cable system that is generally
considered comparable to video programming provided by a television
broadcast station pursuant to § 602(20) of the Cable Act,
47 U.S.C. § 522(20).
The surface and the area across, in, over, along, under and
upon the public streets, roads, lanes, avenues, alleys, sidewalks,
bridges, highways and other rights-of-way, as the same now or may
thereafter exist, and other properties which are under the jurisdiction
or control of the Town.
A person or entity who contracts with Comcast for, and lawfully
receives, the video programming signals and cable services distributed
by the cable system.
