[Ord. 20-2013, passed 7-17-2013]
The following terms used in this franchise shall have the following
meanings:
(a)
AFFILIATED ENTITY — Any corporation, partnership or other business
entity that owns or controls, is owned or controlled by, or is under
common ownership or control with Time Warner Cable.
(b)
BASIC SERVICE — That service tier which shall include at least
the retransmission of local broadcast television signals and any educational
and/or governmental access channels.
(c)
BROADCAST — Over-the-air transmission by a television or radio
station.
(d)
CABLE SERVICE — The one-way transmission to Subscribers of
video programming or other programming service and Subscriber interaction,
if any, which is required for the selection or use of such video programming
or other programming service.
(e)
CABLE SYSTEM — A facility, consisting of a set of closed transmission
paths and associated signal generation, reception, and control equipment
that is designed to provide Cable Service which includes video programming
and which is provided to multiple Subscribers within the City, but
such term does not include:
(1)
A facility that serves only to retransmit the television signals
of one or more television broadcast stations;
(2)
A facility that serves Subscribers without using any public
right-of-way;
(3)
A facility of a common carrier which is subject, in whole or
in part, to the provisions of Title II of the Communications Act,
except that such facility shall be considered a Cable System (other
than for purposes of Section 621 of the Cable Act) to the extent that
the facility is used in the transmission of video programming directly
to Subscribers unless the extent of that use is solely to provide
interactive on-demand services;
(4)
An open video system that complies with Section 653 of the Cable
Act; or
(5)
Any facilities of any electric utility used solely for operating
its electric utility systems.
(f)
COMPLAINT — Any written (including electronic) or oral communication
by a Subscriber, or by the City on behalf of group(s) of subscribers,
expressing dissatisfaction with any aspect of Time Warner Cable's
business or the operation of its Cable System.
(g)
DROP — The coaxial or fiber optic or other cable that connects
a home or building to the rest of the Cable System.
(h)
FCC — Federal Communications Commission.
(i)
FRANCHISE — The right granted by the City to construct, operate
and maintain a Cable System within the corporate limits of the City
as embodied in the terms and conditions of this Agreement.
(j)
GROSS REVENUES — All revenue received directly or indirectly
by Time Warner Cable or its Affiliated Entities attributable to, or
in any way derived from the operation of Time Warner Cable's
Cable System in the City to provide Cable Services calculated in accordance
with Generally Accepted Accounting Principles ("GAAP"). Gross Revenues
shall include, but are not limited to, the following:
(1)
Basic Service fees;
(2)
Fees charged to Subscribers for any service tier other than
Basic Service;
(3)
Fees charged for premium services;
(4)
Fees charged to Subscribers for any optional, per-channel or
per-program cable services;
(5)
Revenue from the provision of any other Cable Services;
(6)
Charges for installation, additional outlets, relocation, disconnection,
reconnection and change-in-service fees for video or audio programming;
(7)
Fees for downgrading any level of Cable Service programming;
(8)
Fees for service calls for cable service;
(9)
Fees for leased access channels;
(10)
Charges based on the sale or lease of any portion of the Cable
System for Cable Service;
(11)
Rental or sales of any and all cable service subscriber equipment,
including converters and remote control devices and digital video
recorders ("DVRs");
(12)
Any and all locally-derived cable service advertising revenues;
(13)
Revenues or commissions from locally-derived home shopping channels;
(14)
Revenue from interactive cable television services;
(15)
Fees for any and all music services;
(16)
Fees for video-on-demand;
(17)
On-screen program guides;
(18)
Late payment fees (to the extent they are booked by Time Warner
Cable as revenue); and
(19)
Pass-through of franchise fees.
Gross Revenues shall not include bad debts, investment income,
refunded deposits, or any taxes on services furnished by Time Warner
Cable and imposed directly upon any Subscriber or user by the City,
state, federal or other governmental unit.
(k)
NORMAL BUSINESS HOURS — Those hours during which most similar
businesses in the community are open to serve customers. In all cases,
"Normal Business Hours" must include some evening hours at least one
night per week and/or some weekend hours.
(l)
NORMAL OPERATING CONDITIONS — Business conditions within Time
Warner Cable's Service Department which are within the control
of Time Warner Cable. Those conditions that are not within the control
of Time Warner Cable include, but are not limited to, natural disasters,
civil disturbances, power outages, telephone network outages and severe
or unusual weather conditions.
(m)
OUTLET — An interior receptacle that connects a television
set to the Cable System.
(n)
PROGRAMMING — Programming provided by, or generally considered
comparable to, programming provided by a television broadcast station.
(o)
PUBLIC RIGHTS-OF-WAY — 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, including property over which the
City has a sufficient easement or right-of-way, which are under the
jurisdiction of the City.
(p)
SERVICE INTERRUPTION — The loss of picture or sound on one
or more channels.
(q)
SUBSCRIBER — A person or entity who contracts with Time Warner
Cable for, and lawfully receives, the video signals and Cable Services
distributed by the Cable System.
[Ord. 20-2013, passed 7-17-2013]
(a)
Grant of authority. Pursuant to the Cable Act, the regulations of
the FCC and Pennsylvania law, the City hereby grants a non-exclusive
and revocable franchise to Time Warner Cable, authorizing and permitting
Time Warner Cable to construct, operate, and maintain a Cable System
in the City's public rights-of-way.
Subject to the terms and conditions contained herein, the City
hereby grants to Time Warner Cable the right to construct, extend,
install, operate, maintain, upgrade and rebuild a Cable System, including
such wires, cables, fiber, conductors, ducts, conduits, amplifiers,
pedestals, attachments and other property and equipment as are necessary
and appropriate to the operation of the Cable System in, under, over,
along, across and upon the streets, lanes, avenues, alleys, sidewalks,
bridges, highways and other public places and rights-of-way under
the jurisdiction of the City, including property over which the City
has a sufficient easement or right-of-way, for the purpose of reception,
transmission, amplification, origination, distribution or redistribution
of video and audio signals to provide Cable Services as permitted
by applicable law.
(b)
Term of franchise. The term of this Agreement shall be for a period
of 10 years commencing on the Effective Date and expiring on July
17, 2013, unless this Franchise is terminated prior to the expiration
date in accordance with the terms and conditions of this Agreement.
(c)
Non-exclusivity.
(1)
Time Warner Cable acknowledges and agrees that the City reserves
the right to grant one or more additional franchises to construct,
operate, and maintain a Cable System within the City.
(2)
The Franchise granted to Time Warner Cable is non-exclusive;
however, if the City grants a subsequent Franchise that, when taken
as a whole upon consideration of all of its material obligations,
is more favorable or less burdensome to the subsequent franchisee
than this Agreement is to Time Warner Cable, then Time Warner Cable
may request an amendment to this Agreement to provide Time Warner
Cable with competitive equity. If, when taken as a whole upon consideration
of all of its material obligations, the subsequent Franchise is more
favorable or less burdensome, then the parties agree to amend this
Agreement to provide Time Warner Cable with such competitive equity.
(3)
In the event an application for a new Franchise for Cable Service
is submitted to the City proposing to serve Subscribers within the
City, then the City shall notify Time Warner Cable in writing of the
submission of the application.
(d)
Change of law. Notwithstanding any other provision in this Franchise,
in the event any change to state or federal law occurring during the
term of this Franchise eliminates the requirement for any entity desiring
to construct, operate or maintain a cable system in the City to obtain
a franchise from the City for the construction, operation or maintenance
of a Cable System and another entity actually provides Cable Service
in the City under the terms of the changed law, then Time Warner Cable
shall have the right to terminate this Franchise and operate the Cable
System under the terms and conditions established in applicable law.
(e)
Police powers. Time Warner Cable's rights under this Agreement
are subject to the police powers of the City to adopt and enforce
generally applicable laws and regulations necessary for the safety
and welfare of the public provided such regulations are reasonable,
not materially in conflict with the privileges granted in the franchise
and consistent with all federal and state laws, rules, regulations
and orders. Such laws and regulations are separate and distinct from
the terms and conditions contained in this Agreement.
(f)
No waiver of rights. No course of dealing between the City and Time
Warner Cable, nor any delay on the part of either party in exercising
any rights hereunder, shall operate as a waiver of any such rights
or acquiescence in the actions of the other party in contravention
of such rights, except to the extent expressly waived.
(g)
Franchise subject to federal, state and local law. This Franchise
is subject to and shall be governed by all lawful and applicable provisions
of federal, state and local laws and regulations. This franchise is
further subject to all applicable ordinances and resolutions of the
City. Without waiving any of its powers, the City agrees that, to
the extent any terms of this Agreement are inconsistent with the terms
of any such cable ordinances, this Agreement shall control.
[Ord. 20-2013, passed 7-17-2013]
(a)
Franchise fees. Time Warner Cable shall pay to the City an amount
equal to 5% of the Gross Revenues derived from the operation of its
Cable System to provide Cable Service in the City. Time Warner Cable
shall not deduct or otherwise credit against the franchise fee any
tax, fee or assessment of general applicability. The City may amend
the franchise fee upon 120 days' written notice to Time Warner
Cable provided that the franchise fee may not exceed the maximum percentage
permitted by law provided that the law establishes a maximum percentage.
Any change in Time Warner Cable's franchise fee obligation contained
herein shall commence within 120 days' from such written notice.
(b)
Quarterly payments. Franchise fee payments to the City under this
provision shall be computed at the end of each calendar quarter. Such
payments shall be made no later than 45 days following the end of
each calendar quarter. Specifically, payments shall be due and payable
on or before May 15 (for the first quarter), August 15 (for the second
quarter), November 15 (for the third quarter), and February 15 (for
the fourth quarter) of the previous year. Upon request and if mutually
agreeable, Time Warner Cable shall deposit the franchise fee payments
electronically into an account as designated by the City. In the event
that any franchise fee payment is not made on or before the date by
which it is due, then interest shall be added at the annual rate of
prime plus 2% of the amount of franchise fee revenue due to the City.
The interest rate shall be applied as described from the date such
franchise fee payment was originally due. No acceptance of any payment
shall be construed as an accord that the amount paid is in fact the
correct amount, nor shall acceptance of any payment be construed as
a release of any claim the City may have for additional sums payable
under this Agreement.
(c)
Quarterly reports. Each franchise fee payment shall be accompanied
by a written report containing an accurate statement of Time Warner
Cable's Gross Revenues received for Cable Services for each calendar
quarter in connection with the operation of Time Warner Cable's
Cable System and a description of the basis for computation of fees.
The report shall include line items for sources of revenue and shall
be in a form similar to that attached as Exhibit A. The report shall
be signed by a financial representative of Time Warner Cable. Furthermore,
upon written request, Time Warner Cable shall provide the then current
Time Warner Cable basic subscriber counts to the City.
(d)
Audits. No more than once every three years during the term of the Agreement, upon 30 days' prior written notice, the City shall have the right to conduct an independent audit or franchise fee review of Time Warner Cable's records reasonably related to the sources, amounts and computation of Gross Revenues in accordance with generally accepted accounting principles. Such audit or review period shall be for up to the maximum number of years permitted in accordance with Pennsylvania law. Upon request, Time Warner Cable shall provide to the City the financial records related to the franchise fee audit or review. Such records shall also be kept or made available to the City at the notice location for Time Warner Cable specified in Section 343.14(c). If franchise fees have been underpaid, then Time Warner Cable shall pay such franchise fees with interest at the then current prime rate plus 2%. If franchise fees have been underpaid by 5% or more, then Time Warner Cable also shall pay the total cost of the audit or franchise fee review and no franchise fee audit or review frequency limitation shall apply.
(e)
Bundled services. If Cable Services subject to the franchise fee
required under this section are provided to Subscribers in conjunction
with non-Cable Services for a single aggregate price, the franchise
fee shall be applied to the portion of the aggregate price attributed
to Cable Services as booked by Time Warner Cable. It shall be the
obligation of Time Warner Cable to maintain its books and attribute
its revenues to Cable Services consistent with GAAP and Time Warner
Cable shall not make such attribution in order to avoid franchise
fees.
[Ord. 20-2013, passed 7-17-2013]
(a)
Technical requirement. Time Warner Cable shall operate, maintain,
construct and extend the Cable System so as to offer reliable delivery
of one-way and two-way Cable Services for all programming services
throughout the City. The video signals provided by the Cable System
shall be delivered in accordance with FCC standards. The Cable System
shall meet or exceed any and all generally applicable technical performance
standards of the FCC. Time Warner Cable shall comply with the National
Electrical Safety Code, the National Electric Code and any related
applicable federal laws and the laws, ordinances and construction
standards of the Commonwealth of Pennsylvania and the City.
(b)
Area to be served.
(1)
Cable Service shall be made available to every residence or
business requesting Cable Service provided that Time Warner Cable
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.
Time Warner Cable shall extend the Cable System into all areas within
the Borough where there is a minimum of 20 residences per cable mile
of aerial cable or 60 residences per cable mile of underground cable.
Density per cable mile shall be computed by dividing the number
of residences in the area by the length, in miles or fractions thereof,
of the total amount of aerial or underground cable necessary to make
service available to the residences and businesses in such area in
accordance with Time Warner Cable's system design parameters.
The cable length shall be measured from the nearest point of access
to the then-existing system, provided that extension is technically
feasible from that point of access, and located within the Public
Rights-of-Way. The total cable length shall exclude the drop cable
necessary to serve individual Subscriber premises. Time Warner Cable
shall complete said extensions within three months of written notification
to Time Warner Cable by the Borough that an area has met the minimum
density standard set forth herein (weather permitting). Time Warner
Cable's obligation hereunder shall be subject to the timely performance
of walk-out, make ready and location of all underground utilities
and ability to obtain easements on reasonable terms and conditions.
(2)
Any business or residence within 125 feet aerial distance of
the cable plant shall be entitled to a standard residence installation
rate or standard business installation rate, as appropriate. For any
business or residence in excess of 125 feet aerial distance or that
requires an underground installation, Time Warner Cable shall extend
Cable Service at a rate not to exceed Time Warner Cable's actual
cost of installation from its main distribution system.
(3)
The Borough has the right to require that Time Warner Cable
places wires and/or equipment underground in any new developments,
provided that the Borough imposes such requirement on all similarly
situated entities.
(c)
Service to multiple dwelling units. Time Warner Cable and the City
hereto acknowledge and agree that installation and provision of Cable
Service to multiple dwelling units (MDU's) are subject to a separate
negotiation between the landlord, owner or governing body of any such
MDU and Time Warner Cable, which negotiations shall, when applicable,
be conducted in accordance with the procedures set forth in the Communications
Act of 1934, as amended, applicable FCC regulations, the Landlord
Tenant Act of 1951, as amended and the applicable provisions of the
Tenant's Right to Cable Act, 68 P.S. §§ 250.501-B
et seq.
(d)
Permits. Time Warner Cable shall apply to the City for all generally
required permits and shall not undertake any activities in the public
rights-of-way subject to a permit without receipt of such permit which
permits shall not be unreasonably delayed or denied. Time Warner Cable
shall be required to pay any fees required for such permits.
(e)
Repairs and restoration.
(1)
Whenever Time Warner Cable or any agent, including any subcontractor,
takes up or disturbs any pavement, sidewalk or other improvement of
any public or private way or place, the same shall be replaced and
the surface restored in as good condition as before the disturbance
within 20 business days of the completion of the disturbance, weather
permitting. Upon failure of Time Warner Cable to comply within the
time specified and the City having notified Time Warner Cable in writing
of the restoration and repairs required, the City may cause proper
restoration and repairs to be made and the expense of such work shall
be paid by Time Warner Cable upon demand by the City.
(2)
Whenever Time Warner Cable or any agent, including any subcontractor,
shall install, operate or maintain equipment, cable, or wires, it
shall avoid damage and injury to property, including structures, improvements
and trees in and along the routes authorized by the City, except as
may be approved by the City if required for the proper installation,
operation and maintenance of such equipment, cable, or wires. Time
Warner Cable shall promptly repair and restore any private property
that is damaged as a result of construction, installation, repair
or maintenance of the Cable System within 10 business days, weather
permitting.
(3)
Time Warner Cable's operating, construction, repair and
maintenance personnel, including all agents and subcontractors, shall
be thoroughly trained in the use of all equipment and the safe operation
of vehicles. Time Warner Cable's operating, construction, repair
and maintenance personnel shall follow all safety procedures required
by all applicable federal, state and local laws and regulations. All
areas of the Cable System shall be routinely inspected and maintained
so that conditions that could develop into safety hazards for the
public and/or operating and maintenance personnel may be corrected
before they become a hazard. Time Warner Cable shall install and maintain
its wires, cables, fixtures, and other equipment in such a manner
as shall not interfere with any installations of the City.
(4)
Should a public safety emergency occur as a result of, incident
to, or connected with operation, construction, repair, or maintenance
activities by Time Warner Cable personnel, including all agents and
subcontractors, then such personnel shall immediately contact the
applicable public safety emergency dispatcher (e.g. 9-1-1).
(5)
Whenever Time Warner Cable or any agent, including any subcontractor,
shall disturb any pavement, sidewalk or other public property in order
to perform any underground activity, it shall utilize the Pennsylvania
One Call System prior to any such disturbance. Time Warner Cable also
shall adhere to any additional requirements which the Commonwealth
may establish in the future. Time Warner Cable shall also adhere to
all requirements of the Pennsylvania Underground Utility Line Protection
Act.
(6)
All structures and all lines, equipment and connections in,
over, under, and upon streets, sidewalks, alleys, and public and private
ways and places of the City, wherever situated or located, shall at
all times be kept and maintained in a safe, non-hazardous and suitable
condition and in good order and repair in accordance with customary
industry standards and practices.
(f)
System monitoring. Time Warner Cable shall conduct testing or periodic
signal monitoring in accordance with the requirements of the FCC.
Such capability shall enable Time Warner Cable to monitor the signal
quality of all channels delivered on the Cable System, including any
Public, Educational and/or Governmental Channels to the extent required
by the FCC.
(g)
Service area maps. Upon request, Time Warner Cable shall provide
to the City for its exclusive use and shall maintain at its local
offices a complete set of Time Warner Cable service area strand maps
of the City, on which will be shown those areas in which its facilities
exist and the location of all streets. The maps shall be provided
to the City in hardcopy and also, if requested and available in an
electronic GIS format which is compatible with the City's GIS
format, provided Time Warner Cable maintains the strand maps in such
format. The maps shall also designate where the cable wires and other
equipment are aerial and where they are underground. Time Warner Cable
shall provide the City with updated maps within 30 days after any
request by the City.
(h)
Building moves. In accordance with applicable laws, Time Warner Cable
shall, upon the request of any person holding a building moving permit
issued by the City, temporarily raise or lower its wires to permit
the moving of the building. Time Warner Cable shall be given at least
30 days' advance notice to arrange for such temporary wire changes,
and Time Warner Cable shall be reimbursed by the entity requesting
relocation.
(i)
Disconnection and relocation.
(1)
Time Warner Cable shall, at no cost to the City, protect, support,
temporarily disconnect, relocate in the same street, or other public
way and place, or remove from any street or any other public way or
place, any of its property as required by the City or its designee
by reason of traffic conditions, public safety, street construction,
change or establishment of street grade, site distance visibility,
or the construction of any public improvement or structure.
(2)
In requiring Time Warner Cable to protect, support, temporarily
disconnect, relocate or remove any portion of its property, the City
shall treat Time Warner Cable the same as, and require no more of
Time Warner Cable than, any similarly situated entity, including but
not limited to, telephone, power and water.
(j)
Emergency removal of equipment. If, at any time, in case of fire
or other disaster in the City, it shall be necessary, in the reasonable
judgment of the City or its agent, to cut or move any of the wires,
cable or equipment of the Cable System, the City shall have the right
to do so without cost or liability, provided that, wherever possible,
the City shall give Time Warner Cable notice and the ability to relocate
wires, cable or other equipment.
(k)
Tree trimming. Time Warner Cable, or its agents, including subcontractors,
shall have the authority to trim trees upon and overhanging public
streets, alleys, sidewalks and the public rights-of-way so as to prevent
the branches of such trees from coming in contact with the wires,
cables or other equipment of Time Warner Cable in accordance with
applicable laws and regulations. Any such tree trimming shall be performed
in accordance with arboreal standards and the regulations of the City.
If Time Warner Cable or its agents, including subcontractors, wish
to cut down and remove any tree or trees as may be necessary for the
installation and maintenance of its equipment, it shall apply to the
City for permission and, if permission is granted, shall perform such
cutting and removal in accordance with accepted arboreal standards
and with the regulations of the City.
[Ord. 20-2013, passed 7-17-2013]
(a)
Cable system. Time Warner Cable shall maintain a Cable System with
a bandwidth no less than 750 MHz which shall meet or exceed the technical
performance standards of the FCC.
(b)
State-of-the-art. Time Warner Cable and the City acknowledge that
the technology of Cable Systems is an evolving field. Time Warner
Cable's Cable System in the City shall be capable of offering
Cable Services that are comparable to the Cable Services offered on
other Cable Systems in Northeastern Ohio and Northwestern Pennsylvania
owned and managed by Time Warner Cable or its Affiliated Entities
("Comparable Systems") pursuant to the terms of this section. The
City may send a written notice to Time Warner Cable, not to exceed
one request every two years, requesting information on Cable Services
offered by such Comparable Systems. Specifically, Time Warner Cable
shall provide the City with information on any Cable Services that
are offered in the Comparable Systems, but not being offered in the
City, the percentage of total Subscribers in the Comparable Systems
to whom such Cable Services are available and when Time Warner Cable
anticipates making such Cable Services available in the City.
[Ord. 20-2013, passed 7-17-2013]
(a)
Time Warner Cable shall comply with the following customer service
standards.
(1)
Time Warner Cable shall maintain a business office that is conveniently
located and shall be open during Normal Business Hours. Time Warner
Cable shall provide and maintain a local or toll free telephone access
line that will be available to Subscribers 24 hours a day, seven days
a week. Trained representatives shall respond to customer telephone
inquiries during Normal Business Hours. After Normal Business Hours,
the access line may be answered by a service or an automated response
system. Inquiries received after Normal Business Hours must be responded
to by a trained company representative by the next business day.
(2)
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.
(3)
Under Normal Operating Conditions, the customer shall receive
a busy signal less than 3% of the time.
(4)
The standards in Subsections (a)(1) and (2) hereof shall be
met no less than 90% of the time under normal operating conditions
measured on a quarterly basis.
(5)
Time Warner Cable shall not be required to acquire equipment or perform surveys to measure compliance with the telephone answering requirements above unless a historical record of Complaints indicates a clear failure to comply. If the City determines, after receiving Complaints itself and/or receiving a record of Complaints made to Time Warner Cable in accordance with Section 343.09, that there is a clear failure to comply with the telephone answering requirements above, the City shall notify Time Warner Cable in writing that it must measure its compliance with these requirements for the next 90 days and report to the City with its results.
(b)
Installations and service calls.
(1)
Time Warner Cable shall maintain a competent staff of well-trained
employees sufficient to provide adequate and prompt service to its
Subscribers. Time Warner Cable shall require that any employee or
agent, including any subcontractor, who personally visits any residential
dwelling shall display a photo identification badge. Any vehicle used
for installation, operation or maintenance activities by any Time
Warner Cable employee or agent, including any subcontractor, shall
prominently display the Time Warner Cable logo.
(2)
Standard installations will be performed within seven business
days after an order has been placed. "Standard" installations are
those aerial installations that are located up to 125 feet from the
existing distribution system.
(3)
Excluding conditions beyond its control, Time Warner Cable shall
begin working on a Service Interruption promptly and in no event later
than 24 hours after the interruption becomes known. Time Warner Cable
shall begin actions to correct other service problems the next business
day after notification of the service problem.
(4)
Upon scheduling of appointments with the customer for installations,
service calls and other activities, Time Warner Cable shall provide
the customer with either a specific time or an "appointment window"
of a maximum of four hours during Normal Business Hours. Time Warner
Cable may make available service calls and installation activities
outside of Normal Business Hours at a time that is mutually convenient
for the customer and for Time Warner.
(5)
Time Warner Cable may not cancel an appointment with a customer
after the close of business on the business day prior to the scheduled
appointment. If, at any time, an installer or technician is running
late, an attempt to contact the customer must be made prior to the
time of the appointment. If the appointment must be rescheduled, it
must be done so at a time that is convenient for the customer.
(c)
Notices.
(1)
Time Warner Cable shall provide written notice to Subscribers
as required by FCC regulations. These regulations as in effect on
the date of execution of this Franchise Agreement include the following:
A.
Products and services offered;
B.
Prices and options for programming services and conditions of
subscription to programming and other services;
C.
Channel positions of programming carried on the Cable System;
D.
Installation and service maintenance policies;
E.
Instructions on how to use the Cable Service, any converters
and any remote control devices;
F.
Billing and customer Complaint procedures;
G.
Time Warner Cable's address, telephone number and office
hours; and
H.
A notice of Subscriber privacy rights as required by federal
law.
(2)
Time Warner Cable shall notify Subscribers and the City in writing
of any changes in rates, programming services or channel positions
a minimum of 30 days in advance of such changes, provided that such
change is within the control of Time Warner Cable.
(3)
Written information of each of the following areas at the time
of installation of service, at least annually to all subscribers and
at any time upon request.
(d)
Billing. Time Warner Cable shall comply with FCC regulations regarding
billing. These regulations as in effect on the date of execution of
this Franchise Agreement include the following:
Bills shall be clear, concise and understandable. Bills must
be fully itemized, with itemizations including but not limited to
basic and premium service charges and equipment charges. Bills will
also clearly delineate all activity during the billing period including
optimal charges, rebate and credits.
(e)
Customer complaint procedures. Time Warner Cable shall establish
procedures for resolving all customer Complaints, which shall include
at least the following:
(1)
Time Warner Cable shall provide the customer with a response
to a written Complaint within 30 days of its receipt at the local
business office. Such response shall include the results of its inquiry
into the subject matter of the Complaint, its conclusions based on
the inquiry, and its decision in response to the Complaint.
(2)
If the City is contacted directly about a customer complaint,
it shall notify Time Warner Cable promptly and in writing. When Time
Warner Cable receives such notification, the time period for Time
Warner Cable to respond as required by Subsection (e)(1) hereof shall
commence. If the City notifies Time Warner Cable in writing, then
Time Warner Cable shall respond in writing within the time period
specified in Subsection (e)(1) hereof.
(3)
Time Warner Cable customer Complaint records shall be available
for inspection by the affected Subscribers.
(f)
Disconnection. Time Warner Cable may disconnect or terminate a Subscriber's
service for good cause.
(g)
Service cancellations. If a Subscriber requests the cancellation
of his or her Cable Service from Time Warner Cable, Time Warner Cable
must cancel such Cable Service and cease billing the Subscriber for
such Cable Service within seven days of the request unless the Subscriber
specifically requests a later date and provided the Subscriber returns
any converter box in his or her possession to Time Warner Cable's
business office.
(h)
Credit for service interruptions. In the event that there is a Service
Interruption to any Subscriber for six or more consecutive hours,
upon receipt of written or oral request, Time Warner Cable shall grant
such Subscriber a pro rata credit or rebate upon request, 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.
(i)
Privacy. Time Warner Cable shall at all times comply with the privacy
provisions of Section 631 of the Cable Act and all other applicable
federal and state privacy laws and regulations.
[Ord. 20-2013, passed 7-17-2013]
(a)
Services to community facilities. Time Warner Cable shall continue
to provide, at no charge to the City, complimentary basic and standard
cable services to all municipal facilities to which Time Warner is
providing such complimentary services as of the Effective Date. In
addition, upon request, Time Warner Cable shall, at no charge to the
City, provide complimentary basic and standard cable services to all
present and future municipally-owned buildings used for municipal
purposes, police stations, fire companies, all public K-12 school
buildings and public libraries, and the Erie Area Council of Governments
office which can be served by a standard installation ("Permitted
Free Locations"). No charge shall be made for installation or service,
except that Time Warner Cable may charge for installation or service
for more than one drop in Permitted Free Location.
(1)
Within three months of the Effective Date, Time Warner Cable
shall provide or maintain one cable Drop, outlet, converter box (and
any other required end user equipment) and Standard cable level Services
(or equivalent) package to each Permitted Free Location. No charge
shall be made for installation, equipment or service.
(2)
For the purposes of this section, the term "school" means an
educational institution that receives funding pursuant to Title I
of the Elementary and Secondary Education Act of 1965, 20 U.S.C. § 6301
et seq., as amended, and does not include "home schools" or "cyber
schools," or any other educational situation that does not meet specific
criterion set forth herein. During the term of this Agreement, new
public facilities shall be eligible to receive such complimentary
service to the extent that they meet the qualifications as set forth
herein above as Permitted Free Locations.
(b)
Educational and governmental (EG) channel.
(1)
Time Warner Cable shall make available on its system in the
City, four public, educational and governmental ("PEG") access channels
in accordance with Section 611 of the Cable Act. Such PEG channels
shall be used for non-commercial community produced programming related
to educational and/or governmental activities. The purpose of these
channels is to contribute to an informed citizenry by, among other
things, showing local government at work, responding to local needs,
telecasting community programs, and bringing local education into
the home. The City shall have complete control over the content, scheduling,
administration and all other programming aspects of the PEG channel
and may delegate such functions to an appropriate designee. Time Warner
Cable shall not exercise any editorial control over PEG channel programming.
Whether operating on an analog or digital format, Time Warner Cable
shall cablecast any activated PEG channel so that it may be received
by all Subscribers in the City with appropriate equipment.
(2)
Time Warner Cable shall provide and maintain in good working
order the facilities to enable the transmission of programming for
carriage on the PEG channels from the following sites: City Hall;
CATV studio; Mercyhurst College; and Erie School District).
(3)
To enable the City to utilize the PEG channel, the City may
select one location within the municipal boundaries of the City and
Time Warner Cable shall provide and install, within 180 days of a
written notice from the City, the cables, wires, lines, and other
signal distribution equipment such that live programming can originate
from the selected location and be distributed via the Cable System
to Subscribers in the City. These cables, wires, lines and other signal
distribution equipment shall be collectively known as the "Return
Line".
The costs of the construction and maintenance of the Return
Line shall be at the expense of the City. Time Warner Cable shall
be responsible for maintaining the Return Line to the video origination
point, provided that the City provides Time Warner Cable with access
to this location and access to the PEG equipment within the location.
(4)
Time Warner Cable shall deliver the PEG channel signals at a
level of technical quality that is comparable to the level of technical
quality provided by Time Warner Cable for signals of commercial channels;
provided, however, that Time Warner Cable shall have no responsibility
to improve upon or modify the signal quality of any PEG channel content
provided to Time Warner Cable by any PEG channel programmer.
(5)
The City or its designee shall be responsible for providing
any necessary production or playback equipment and shall be responsible
for securing and supervising any trained/qualified personnel who conduct
the operation of the PEG channel(s). The City and Time Warner Cable
agree to work cooperatively in implementing the PEG channel(s) through
such means and in such manner as shall be mutually satisfactory.
(6)
The City and Time Warner Cable agree that any and all costs
incurred by Time Warner Cable for supporting such PEG channel(s),
including any and all equipment, maintenance and repair, may be designated
as "costs of franchise requirements" or "external costs" as defined
by the FCC.
[Ord. 20-2013, passed 7-17-2013]
(a)
Right to inspect.
(1)
The City shall have the option, upon 20 business days' written notice and during Normal Business Hours, to inspect at the notice location for Time Warner Cable specified in Section 343.14(c) all documents, records and other pertinent information maintained by Time Warner Cable which relate to Time Warner Cable's compliance with the terms of this Agreement.
(2)
In addition, Time Warner Cable shall maintain for inspection
by the public and the City all records required by the FCC and as
specified in 47 C.F.R. § 76.305 in the manner specified
therein.
(b)
Right to conduct compliance review. The City or its representatives
may conduct a compliance review, including a possible public hearing,
with respect to whether Time Warner Cable has complied with the terms
and conditions of this Agreement so long as it provides Time Warner
Cable with 30 days' written notice in advance of the commencement
of any such reviews or public hearings. Such notice shall reference
the sections of the Agreement that are under review, so that Time
Warner Cable may organize the necessary books and records for appropriate
review by the City.
(c)
Confidentiality. To the extent permitted under Pennsylvania law,
the City shall maintain as confidential any information provided to
it by Time Warner Cable under the terms of this Franchise which Time
Warner Cable has designated as confidential. In the event that the
City believes at any time that it is required by law to disclose such
information to a third party, the City will so notify Time Warner
Cable at a time prior to any such disclosure that affords Time Warner
Cable a reasonable opportunity to take such action as it deems necessary
to prevent such disclosure, including seeking relief in court.
(d)
Reserved authority. Each party reserves any and all rights arising from the Cable Act, any amendments thereto, and any other federal or state laws or regulations. Nothing in this Agreement shall remove, restrict or reduce the City's authority, rights and privileges it now holds, or which hereafter may be conferred upon it, including any right to exercise its police powers in the regulation and control of the use of the Public Rights-of-way subject to Section 343.02(e).
[Ord. 20-2013, passed 7-17-2013]
(a)
Quarterly franchise fee report. In accordance with Section 343.03(c), of this Agreement, Time Warner Cable shall accompany each quarterly franchise fee payment to the City with a quarterly report.
(b)
Customer complaint report. Upon written request, Time Warner Cable
shall submit to the City, no later than 30 days after such written
request, a summary of the Complaints that required a work order and/or
service call, originating from the City received during the previous
twelve-month period. The summary shall include the number of complaints,
the dates they were received, and a summary description of the resolutions
of the complaints.
(c)
Government reports. Upon written request, Time Warner Cable shall
provide to the City, no later than 30 days after such written request,
copies of any and all non-confidential communications, reports, documents,
pleadings and notifications of any kind which Time Warner Cable has
submitted to any federal, state or local regulatory agencies if such
documents relate to Time Warner Cable's Cable System within the
City.
[Ord. 20-2013, passed 7-17-2013]
(a)
Violations and opportunity to cure.
(1)
If the City has reason to believe that Time Warner Cable violated
any material provision of this Agreement, it shall notify Time Warner
Cable in writing of the nature of such violation and the section of
this Agreement that it believes has been violated. If the City does
not notify Time Warner Cable of any violation of this Agreement, it
shall not operate as a waiver of any rights of the City hereunder
or pursuant to applicable law.
(2)
Time Warner Cable shall have 30 days to cure such violation
after written notice is received by taking appropriate steps to comply
with the terms of this Agreement. If the nature of the violation is
such that it cannot be fully cured within 30 days, the period of time
in which Time Warner Cable must cure the violation shall be extended
for such additional time necessary to complete the cure, provided
that Time Warner Cable shall have promptly commenced to cure and is
diligently pursuing its efforts to cure.
(3)
Time Warner Cable shall be liable to the City for all actual
damages due to the City resulting from any such violations.
(4)
In certain circumstances where actual damages are difficult
to ascertain, the City may impose liquidated damages as follows:
A.
Failure to provide PEG equipment, facilities or services as
required . . . . $100 per day from time due.
B.
Failure to provide the emergency override system to perform,
or of the Grantee to remove any hazardous conditions caused by its
cable system in the event of a public emergency or other situation
requiring dissemination of vital information to the public . . . .
$250 per occurrence.
C.
Failure to have in place required insurance.... $100 per day
from time due until restored.
(5)
The first day for which liquidated damages may be assessed,
if there has been no cure after the end of the applicable cure period,
shall be the day after the end of the applicable cure period, including
any extension of the cure period granted by the City. Liquidated damages
may not be assessed for a time period exceeding 120 days per violation,
after which the City may commence revocation proceedings and/or initiate
an action in law or equity in a court of competent jurisdiction.
(6)
Nothing in this section shall preclude the City from exercising
any other right or remedy with respect to a violation that continues
past the time the City ceases to assess liquidated damages for such
breach.
(b)
Performance bond.
(1)
Time Warner Cable shall obtain and maintain in the event of
a system-wide rebuild during the Franchise term, at its sole cost
and expense, a performance bond running to the City with a surety
company licensed to do business in the Commonwealth of Pennsylvania.
The performance bond shall provide that the City may recover from
the principal and surety any and all compensatory and/or liquidated
damages and incurred by the City as a result of Time Warner Cable's
work on the course of the rebuild.
(2)
The performance bond shall be in the amount of $100,000. Time
Warner Cable shall not reduce, cancel or materially change said bond
from the requirement contained herein without the express prior written
permission of the City.
(c)
Revocation.
(1)
In addition to the other rights, powers and remedies retained
by the City under this Agreement, the City reserves the separate and
distinct right to revoke this franchise if:
A.
Time Warner Cable practiced any fraud or deceit upon the City
in its operation of its Cable System or any other activities pursuant
to this Agreement;
B.
Time Warner Cable repeatedly fails, after notice and opportunity to cure, to maintain signal quality pursuant to the standards provided for by the FCC or the technical requirements set forth in Section 343.04(a);
C.
Time Warner Cable repeatedly violates, after notice and opportunity
to cure, one or more of the material terms or conditions of this Agreement.
(2)
The foregoing shall not constitute a violation of a material term or condition if the violation occurs without the fault of Time Warner Cable or occurs as a result of circumstances beyond its control or by reason Force Majeure as defined in Section 343.14(a). Time Warner Cable shall not be excused from the performance of any of its obligations under this franchise by mere economic hardship or by the misfeasance or malfeasance of its directors, officers or employees.
(3)
A revocation shall be declared only by a written decision of
the governing body after an appropriate public hearing that shall
afford Time Warner Cable due process and full opportunity to be heard.
This shall include the ability to introduce evidence, to question
witnesses and to respond to any notice of grounds to terminate in
accordance with the standards of a fair hearing applicable to administrative
hearings in the Commonwealth of Pennsylvania. All notice requirements
shall be met by providing Time Warner Cable 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 City, 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 Time Warner Cable of mitigating circumstances or
good cause for the existence of such grounds. The City shall issue
such declaration and finding within 30 days in a written decision
which the City shall send via certified or overnight mail to Time
Warner Cable. Nothing herein shall limit in any way Time Warner Cable's
rights to seek review of such declaration in an appropriate forum.
[Ord. 20-2013, passed 7-17-2013]
(a)
Channel capacity. Time Warner Cable shall meet or exceed programming
and channel capacity requirements set forth in this Agreement and
required by federal and state law and regulations.
(b)
Broadcast channels. To the extent required by Federal law, Time Warner
Cable shall provide all Subscribers a basic tier of service including,
but not limited to:
(1)
All broadcast television signals carried in fulfillment of the
requirements of Section 614 of the Cable Act;
(2)
The signals of qualified non-commercial educational television
signals carried in fulfillment of the requirements of Section 615
of the Cable Act; and
(3)
The Public, Educational and Governmental channel. All such signals
shall comply with FCC standards.
(c)
Signal scrambling. Time Warner Cable shall at all times comply with
FCC regulations regarding scrambling or other encryption of audio
and video signals.
(d)
Continuity of service. It shall be the right of all subscribers to receive service from Time Warner Cable provided their financial and other obligations to Time Warner Cable are honored. Subject to the Force Majeure provisions in Section 343.14(a), Time Warner Cable shall use its best efforts to ensure that all Subscribers receive continuous, uninterrupted service. For the purpose of construction, routine repairing or testing of the Cable System, Time Warner Cable shall use its best efforts to interrupt service only during periods of minimum use. When necessary service interruptions of more than 24 hours can be anticipated, Time Warner Cable shall notify Subscribers in advance of such service interruption.
(e)
Parental control capability. Upon request, Time Warner Cable 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. Such capability may be included as a function
of a converter.
[Ord. 20-2013, passed 7-17-2013]
(a)
Indemnification. Time Warner Cable shall indemnify, defend, save
and hold harmless the City, its elected and appointed officials, officers,
agents and employees acting in their official capacities, from claims
for injury, loss, liability, cost or expense to the extent arising,
caused by or connected with any act or omission of Time Warner Cable,
its officers, agents, contractors, subcontractors or employees, arising
out of the construction, installation, upgrade, reconstruction, operation,
maintenance or removal of the Cable System or any other equipment
or facilities. The obligation to indemnify, defend, save and hold
the City harmless shall include, but not be limited to, the obligation
to pay judgments, injuries, liabilities, damages, penalties, attorneys'
fees, expert fees, court costs and all other costs of such indemnification.
(b)
Insurance.
(1)
Time Warner Cable shall maintain insurance throughout the term
of this Agreement with the City as an additional insured, with an
insurance company which is authorized to conduct business in Pennsylvania
and which has an A.M. Best rating (or equivalent) no less than "A-,"
indemnifying the City 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 Time Warner Cable or any of its
contractors, subcontractors, agents or employees in the following
amounts:
A.
The amount of such insurance against liability for damage to
property shall be no less than $1,000,000 as to any one occurrence.
B.
The amount of such insurance against liability for injury or
death to any person shall be no less than $1,000,000.
C.
The amount of such insurance for excess liability shall be $3,000,000
in umbrella form.
D.
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.
(2)
All insurance coverage shall be maintained throughout the period
of this Agreement. All insurance policies shall contain a provision
that the City will receive 30 days' written notice prior to any
changes or cancellation of the policy. All expenses incurred for said
insurance shall be at no cost to the City.
(3)
A certificate evidencing the insurance coverage required herein
shall be provided by Time Warner Cable to the City within 30 days
of the Effective Date and within 30 days of obtaining new insurance
coverage or renewal of such insurance coverage throughout the term
of this Agreement.
[Ord. 20-2013, passed 7-17-2013]
(a)
Transfer, assignment or change in control.
(1)
Time Warner Cable shall not transfer, assign or otherwise encumber,
through its own action or by operation of law, its right, title or
interest in the Cable System or in this Agreement without the prior
written consent of the City which consent shall not be unreasonably
withheld.
(2)
Neither Time Warner Cable nor its parent nor any Affiliated
Entity shall change, transfer or assign, through its own action or
by operation of law, its control of the Cable System or of this Agreement
without the prior written consent of the City which consent shall
not be unreasonably withheld.
(3)
Neither Time Warner Cable nor its parent nor any Affiliated
Entity shall sell, convey, transfer, exchange or release more than
50% of its equitable ownership in the Cable System without the prior
written consent of the City which consent shall not be unnecessarily
withheld.
(4)
Time Warner Cable shall make written application to the City
of any transfer, change in control or assignment as described above
and shall provide all information required by FCC Form 394 and any
other applicable federal, state, and local statutes and regulations
regarding transfer or assignment.
(5)
Any consent by the City for any transfer or assignment described
above shall not be effective until the proposed transferee or assignee
shall have executed a legally binding agreement stating that it shall
be bound by all the terms and conditions contained in this Agreement.
(6)
Notwithstanding anything to the contrary, no City approval shall
be required for a transfer or assignment of the Franchise to an entity
controlled by, controlling or under the same common control as Time
Warner Cable.
(b)
Renewal. The City and Time Warner Cable agree that any proceedings
or activities that relate to the renewal of Time Warner Cable's
franchise shall be governed by applicable federal and state law.
[Ord. 20-2013, passed 7-17-2013]
(a)
Force majeure. If for any reason of force majeure, Time Warner Cable
is unable in whole or in part to carry out its obligations hereunder,
Time Warner Cable shall not be deemed in violation of this Agreement
during the continuance of such inability. The term "force majeure"
as used herein shall mean any cause beyond the control of Time Warner
Cable including, but not limited to: 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; epidemics; landslides; lightning; earthquakes; fires;
hurricanes; volcanic activity; storms; floods; washouts; droughts;
explosions; unavailability of materials or equipment, and partial
or entire failure of utilities.
(b)
Removal of system.
(1)
Upon lawful denial of renewal or revocation of this Agreement,
Time Warner Cable shall remove its supporting structures, poles, transmissions
and distribution systems and other appurtenances from the streets,
ways, lanes, alleys, parkways, bridges, highways, and other public
and private places in, over, under, or along which they are installed
and shall restore the areas to their original condition. If such removal
is not completed within three months of such lawful denial of renewal
or revocation, the City or property owner may deem any property not
removed as having been abandoned and the City may remove it at Time
Warner Cable's cost.
(2)
During the term of the Agreement, if Time Warner Cable decides
to abandon or no longer use all or part of its Cable System, it shall
give the City written notice of its intent at least 90 days prior
to the announcement of such decision, which notice shall describe
the property and its location. If Time Warner Cable does not remove
the property, the City shall have the right to remove the property
itself and charge Time Warner Cable with the costs related thereto,
or transfer ownership of the property to the City's designee
provided fair market value is paid to Time Warner Cable.
(3)
The obligations to remove under Subsections (b)(1) and (2) hereof
do not apply to buried cable, the abandonment of which causes no material
damage.
(c)
Notices. Every notice or payment to be served upon or made to the
City shall be sent to:
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City of Erie
626 State Street
Erie, PA 16501
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Attention: __________
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The City may specify any change of address in writing to Time
Warner Cable.
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Every notice to be served upon Time Warner Cable shall be sent
to:
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Time Warner Cable
530 South Main Street - Suite 1751
Akron, OH 44311
Attention: Government Affairs Department
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With a copy to:
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Time Warner Cable
60 Columbus Circle
New York, NY 10023
Attention: Law/Regulatory Department
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Time Warner Cable may specify any changes of address in writing
to the City. Each delivery to Time Warner Cable or the City shall
be equivalent to direct personal notice, direction or order, and shall
be deemed to have been given at the time of receipt.
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Such addresses may be changed by either party upon notice to
the other party given as provided in this section. In addition, either
party may agree to receive certain notices, reports or demands by
e-mail at an e-mail address which it provides to other party.
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(d)
Equal employment opportunity. Time Warner Cable is an equal opportunity
employer and shall comply with all applicable federal and state laws
and regulations regarding equal opportunity employment.
(e)
Captions. The captions for sections throughout this Agreement are
intended solely to facilitate reading and reference to the sections
and provisions of this Agreement. Such captions shall not affect the
meaning or interpretation of this Agreement.
(f)
Governing law. This Agreement shall be governed and construed by
and in accordance with the laws of the Commonwealth of Pennsylvania
and the United States of America. If suit is brought by a party to
this Agreement, the parties agree that trial of such action shall
be vested exclusively in the state courts of Pennsylvania, County
of Erie, or in the United States District Court for the Western District
of Pennsylvania.
(g)
Entire agreement. This written instrument contains the entire agreement
between the parties, supersedes all prior agreements or proposals
whether written or oral except as specifically incorporated herein,
and cannot be changed without written amendment approved by both the
City and Time Warner Cable. This Franchise Agreement supersedes all
prior agreements or ordinances.
(h)
Severability. If any section, provision or clause of this Agreement
is held by a court of competent jurisdiction to be unlawful, invalid
or unenforceable, or is preempted by federal or state laws or regulations,
such section, provision or clause shall be deemed to be severable
from the remaining portions of this Agreement and shall not affect
the legality, validity or enforceability of the remaining portions
of this Agreement.
(i)
Change of law. In the event there is a change in a federal or state
statute or regulation applicable to the Cable System or to this Agreement,
the City or Time Warner Cable may notify the other party of its desire
to amend this Agreement in order to comply with the change in statute
or regulation. The City and Time Warner Cable may amend this Agreement
to comply with such change in statute or regulation provided such
amendment is approved by the City and Time Warner Cable.
(j)
Applicability of agreement. All of the provisions in this Agreement
shall bind Time Warner Cable, the City and their respective successors
and assigns. This Agreement is authorized by Ordinance No. 20-2013
dated 7-17-2013, of the City.
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WITNESS our hands and official seals to this Cable Franchise
Agreement.
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ATTEST
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CITY OF ERIE
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By:
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Name (Print):
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Title:
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Date:
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ATTEST:
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ERIE TELECOMMUNICATIONS, INC. D/B/A TIME WARNER CABLE
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By:
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Name (Print):
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Title:
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Date:
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