[HISTORY: Adopted by the Borough Council of the Borough of
Collingdale 3-7-2016 by Ord. No. 712.[1] Amendments noted where applicable.]
[1]
Editor’s Note: This ordinance also superseded former
Ch. A620, Cable Television Franchise, adopted 1-16-1978 by Ord. No.
494 (Ch. 13, Part 1, of the 1987 Code of Ordinances), as amended.
A.
For the purpose of this franchise agreement, capitalized terms, phrases,
words, and abbreviations shall have the meanings ascribed to them
in the Cable Communications Policy Act of 1984, as amended from time
to time, 47 U.S.C. §§ 521 - 631 (the "Cable Act"),
unless otherwise defined herein. When not inconsistent with the context,
words used in the present tense include the future, words used to
refer to the masculine include the feminine, and words in the plural
number include the singular number. The word "shall" is mandatory
and "may" is permissive. Words not defined in the Cable Act or herein
shall be given their common and ordinary meaning.
B.
CABLE SERVICE or SERVICE
CABLE SYSTEM
CUSTOMER or SUBSCRIBER
EFFECTIVE DATE
FCC
FRANCHISE
FRANCHISE AGREEMENT or AGREEMENT
FRANCHISE AREA
FRANCHISING AUTHORITY or BOROUGH
GRANTEE or COMCAST
GROSS REVENUE
PERSON
PUBLIC BUILDINGS
PUBLIC WAY
STANDARD INSTALLATION
VIDEO PROGRAMMING or PROGRAMMING
As used in this chapter, the following terms shall have the meanings
indicated:
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, as defined under Section 602(6) of the
Cable Act.[1]
A facility, consisting of a set of closed transmission paths
and associated signal generation, reception, and control equipment,
that is designed to provide cable service which includes video programming
and which is provided to multiple subscribers within the franchise
area, and as further defined under Section 602(7) of the Cable Act.
A person or user of the cable system who lawfully receives
cable service therefrom with the grantee's express permission.
The date on which the Borough signs this agreement, subject
to all necessary parties executing this agreement as indicated on
the signature page(s), unless a specific date is otherwise provided
in the "term" section herein.
The Federal Communications Commission, or successor governmental
entity thereto.
The initial authorization, or renewal thereof, issued by
the franchising authority, whether such authorization is designated
as a franchise, agreement, permit, license, resolution, contract,
certificate, ordinance or otherwise, which authorizes the construction
and operation of the cable system.
This agreement and any mutually agreed to amendments or modifications
hereto.
The present legal boundaries of Collingdale Borough, Delaware
County, Pennsylvania, as of the effective date, and shall also include
any additions thereto, by annexation or other legal means.
Collingdale Borough or the lawful successor, transferee,
designee, or assignee thereof.
Comcast of Southeast Pennsylvania, LLC.
Revenue derived by the grantee from the operation of the
cable system in the franchise area to provide cable service, calculated
in accordance with generally accepted accounting principles ("GAAP")
as promulgated and defined by the Financial Accounting Standards Board
("FASB"). Gross revenue includes monthly basic cable, premium and
pay-per-view video fees, installation fees and subscriber equipment
rental fees. Gross revenue shall not include refundable deposits,
advertising revenue, home shopping revenue, late fees, investment
income, refundable deposits, nor any taxes, franchise fees, or other
fees or assessments imposed or assessed by any governmental authority.
Gross revenue shall not include actual bad debt that is written off,
consistent with generally accepted accounting principles; provided,
however, that all or any part of any such actual bad debt that is
written off, but subsequently collected, shall be included in the
gross revenue in the period so collected.
Any natural person or any association, firm, partnership,
joint venture, corporation, or other legally recognized entity, whether
for-profit or not-for-profit, but shall not mean the franchising authority.
Those buildings owned or leased by the franchising authority
for municipal government administrative purposes, and shall not include
buildings owned by franchising authority but leased to third parties,
or buildings such as storage facilities at which government employees
are not regularly stationed.
The surface of, and the space above and below, any public
street, highway, freeway, bridge, land path, alley, court, boulevard,
sidewalk, way, lane, public way, drive, circle or other public right-of-way,
including, but not limited to, public utility easements, dedicated
utility strips, or easements dedicated for compatible uses and any
temporary or permanent fixtures or improvements located thereon now
or hereafter held by the franchising authority in the franchise area,
which shall entitle the grantee to the use thereof for the purpose
of installing, operating, repairing, and maintaining the cable system.
"Public way" shall also mean any easement now or hereafter held by
the franchising authority within the franchise area for the purpose
of public travel, or for utility or public service use dedicated for
compatible uses, and shall include other easements or rights-of-way
as shall within their proper use and meaning entitle the grantee to
the use thereof for the purposes of installing, operating, and maintaining
the grantee's cable system over poles, wires, cables, conductors,
ducts, conduits, vaults, manholes, amplifiers, appliances, attachments,
and other property as may be ordinarily necessary and pertinent to
the cable system.
The standard 125-foot aerial drop connection to the existing
distribution system.
The programming provided by, or generally considered comparable
to programming provided by, a television broadcast station, as defined
under Section 602(20) of the Cable Act.[2]
A.
Grant of franchise. The franchising authority hereby grants to the
grantee a nonexclusive franchise authorizing the grantee to construct
and operate a cable system in the public ways within the franchise
area, and for that purpose to erect, install, construct, repair, replace,
reconstruct, maintain, or retain in any public way such poles, wires,
cables, conductors, ducts, conduits, vaults, manholes, pedestals,
amplifiers, appliances, attachments, and other related property or
equipment as may be necessary or appurtenant to the cable system,
and to provide such services over the cable system as may be lawfully
allowed.
B.
Term of franchise. The term of the franchise granted hereunder shall
be 15 years, commencing upon the effective date of the franchise,
unless the franchise is renewed or is lawfully terminated in accordance
with the terms of this franchise agreement and the Cable Act.
C.
Renewal. Any renewal of this franchise shall be governed by and comply
with the provisions of Section 626 of the Cable Act [47 U.S.C. § 546],
as amended.
A.
Permits and general obligations. The grantee shall be responsible
for obtaining all generally applicable permits, licenses, or other
forms of approval or authorization prior to the commencement of any
activity that disturbs the surface of any street, curb, sidewalk or
other public improvement in the public way, or impedes vehicular traffic.
The issuance of such permits shall not be unreasonably withheld or
delayed. Construction, installation, and maintenance of the cable
system shall be performed in a safe, thorough and reliable manner
using materials of good and durable quality. Notwithstanding the requirements
herein, grantee shall not be required to obtain a permit for individual
drop connections to subscribers, servicing or installing pedestals
or other similar facilities, or other instances of routine maintenance
or repair to its cable system. All transmission and distribution structures,
poles, other lines, and equipment installed by the grantee for use
in the cable system in accordance with the terms and conditions of
this franchise agreement shall be located so as to minimize the interference
with the proper use of the public ways and the rights and reasonable
convenience of property owners who own property that adjoins any such
public way.
B.
Conditions of street occupancy.
(1)
New grades or lines. If the grades or lines of any public way within
the franchise area are lawfully changed at any time during the term
of this franchise agreement, then the grantee shall, upon reasonable
advance written notice from the franchising authority (which shall
not be less than 30 business days) and at its own cost and expense,
protect or promptly alter or relocate the cable system, or any part
thereof, so as to conform with any such new grades or lines. If public
funds are available to any other user of the public way for the purpose
of defraying the cost of any of the foregoing, the franchising authority
shall notify grantee of such funding and make available such funds
to the grantee.
(2)
Relocation at request of third party. The grantee shall, upon reasonable
prior written request of any person holding a permit issued by the
franchising authority to move any structure, temporarily move its
wires to permit the moving of such structure; provided that:
(a)
The grantee may impose a reasonable charge on any person for
the movement of its wires, and such charge may be required to be paid
in advance of the movement of its wires; and
(b)
The grantee is given not less than 30 business days' advance
written notice to arrange for such temporary relocation.
(3)
Restoration of public ways. If, in connection with the construction,
operation, maintenance, or repair of the cable system, the grantee
disturbs, alters, or damages any public way, the grantee agrees that
it shall at its own cost and expense replace and restore any such
public way to a condition reasonably comparable to the condition of
the public way existing immediately prior to the disturbance.
(4)
Safety requirements. The grantee shall undertake all necessary and
appropriate efforts to maintain its work sites in a safe manner in
order to prevent failures and accidents that may cause damage, injuries
or nuisances. All work undertaken on the cable system shall be performed
in substantial accordance with applicable FCC or other federal and
state regulations. The cable system shall not unreasonably endanger
or interfere with the safety of persons or property in the franchise
area.
(5)
Trimming of trees and shrubbery. The grantee shall have the authority
to trim trees or other natural vegetative growth encroaching or overhanging
any of its cable system in the franchise area so as to prevent contact
with the grantee's wires, cables, or other equipment. All such
trimming shall be done at the grantee's sole cost and expense.
The grantee shall be responsible for any collateral, real property
damage caused by such trimming.
(6)
Aerial and underground construction. At the time of cable system
construction, if all of the transmission and distribution facilities
of all of the respective public or municipal utilities in any area
of the franchise area are underground, the grantee shall place its
cable system transmission and distribution facilities underground,
provided that such underground locations are actually capable of accommodating
the grantee's cable and other equipment without technical degradation
of the cable system's signal quality. In any region(s) of the
franchise area where the transmission or distribution facilities of
the respective public or municipal utilities are both aerial and underground,
the grantee shall have the discretion to construct, operate, and maintain
all of its transmission and distribution facilities, or any part thereof,
aerially or underground. Nothing in this agreement shall be construed
to require the grantee to construct, operate, or maintain below grade
any ground-mounted appurtenances such as customer taps, line extenders,
system passive devices, amplifiers, power supplies, pedestals, or
other related equipment.
(7)
Undergrounding and beautification projects. In the event all users
of the public way relocate aerial facilities underground as part of
an undergrounding or neighborhood beautification project, grantee
shall participate in the planning for relocation of its aerial facilities
contemporaneously with other utilities. Grantee's relocation
costs shall be included in any computation of necessary project funding
by the municipality or private parties. Grantee shall be entitled
to reimbursement of its relocation costs from public or private funds
raised for the project and made available to other users of the public
way. In the event that public and/or private funds are not available,
grantee reserves the right to pass its costs through to its subscribers
in accordance with applicable law.
A.
General service obligation. The grantee shall make cable service
available to every residential dwelling unit within the franchise
area where the minimum density is at least 30 dwelling units per aerial
mile or 50 homes per underground mile and is within one mile of the
existing cable system as measured in strand footage from the nearest
active signal trunk or feeder line. Subject to the density requirement,
grantee shall offer cable service to all new dwellings or previously
unserved dwellings located within 125 feet of the grantee's nearest
segment of cable system from which a usable signal is technically
available ("standard installation"). The grantee may elect to provide
cable service to areas not meeting the above density and distance
standards. The grantee may impose an additional charge in excess of
its regular installation charge for any service installation requiring
an underground installation, or a drop or line extension in excess
of the above standards. Any such additional charge shall include a
reasonable rate of return and shall be computed on a time plus materials
basis to be calculated on that portion of the installation that exceeds
the standards set forth above.
B.
Programming. The grantee shall offer to all customers a diversity
of video programming services in accordance with federal law.
C.
No unfair discrimination. Neither the grantee nor any of its employees,
agents, representatives, contractors, subcontractors, or consultants,
nor any other person, shall discriminate or permit discrimination
between or among any persons in the availability of cable services
provided in connection with the cable system in the franchise area;
provided, however, that grantee reserves the right to deny service
for good cause, including but not limited to nonpayment or theft of
service, vandalism of equipment, or documented or founded harassment
or abuse of grantee's employees or agents. It shall be the right
of all persons to receive all available services provided on the cable
system so long as such person's financial or other obligations
to the grantee are satisfied. Nothing contained herein shall prohibit
the grantee from offering bulk discounts, promotional discounts, package
discounts, or other such pricing strategies as part of its business
practice.
D.
New developments. The franchising authority shall provide the grantee
with written notice of the issuance of building or development permits
for planned developments within the franchise area requiring undergrounding
of cable facilities. The franchising authority agrees to require the
developer, as a condition of issuing the permit, to give the grantee
access to open trenches for deployment of cable facilities and at
least 10 business days' written notice of the date of availability
of open trenches.
E.
Prohibition against reselling service. No person shall resell, without
the express prior written consent of the grantee, any cable service,
program or signal transmitted over the cable system by the grantee.
All rates, fees, charges, deposits and associated terms and
conditions to be imposed by the grantee or any affiliated person for
any cable service as of the effective date shall be in accordance
with applicable FCC rate regulations. Before any new or modified rate,
fee, or charge is imposed, the grantee shall follow the applicable
FCC notice requirements and rules and notify affected customers, which
notice may be made by any means permitted under applicable law.
A.
Customer service standards. The franchising authority hereby adopts
the customer service standards set forth in Part 76, § 76.309,
of the FCC's rules and regulations, as amended. The grantee shall
comply in all respects with the customer service requirements established
by the FCC.
B.
Customer bills. Customer bills shall be designed in such a way as to present the information contained therein clearly and comprehensibly to customers, and in a way that 1) is not misleading, and 2) does not omit material information. Notwithstanding anything to the contrary in Subsection A above, the grantee may, in its sole discretion, consolidate costs on customer bills as may otherwise be permitted by Section 622(c) of the Cable Act [47 U.S.C. § 542(c)].
C.
Privacy protection. The grantee shall comply with all applicable
federal and state privacy laws, including Section 631 of the Cable
Act and regulations adopted pursuant thereto [47 U.S.C. § 551].
A.
Franchise fees.
(1)
The grantee shall pay to the franchising authority a franchise fee
in an amount equal to 5% of annual gross revenues received from the
operation of the cable system to provide cable service in the franchise
area; provided, however, that grantee shall not be compelled to pay
any higher percentage of franchise fees than any other cable operator
providing service in the franchise area. The payment of franchise
fees shall be made on a quarterly basis and shall be due 45 days after
the close of each first, second, and third calendar quarter (i.e.,
May 15, August 15, November 15), and 60 days after the close of the
calendar year (last day of February). Grantee shall provide a report
prepared by a representative of the grantee showing the basis for
the computation of the franchise fees paid during that period.
(2)
The Borough may amend the franchise fee percentage upon 90 days'
written notice to grantee, provided that the franchise fee shall not
exceed 5%, the maximum rate permitted by the Cable Act. In the event
that federal law is modified to authorize a franchise fee rate higher
than 5%, the Borough may, at its discretion, direct in writing that
grantee pay the higher franchise fee. A copy of the resolution or
ordinance authorizing the adjustment shall accompany such written
notice. In the event that federal law is modified to authorize a maximum
franchise fee rate lower than 5%, the grantee may, after notice to
the franchising authority, pay the lower franchise fee.
B.
Franchise fees subject to audit.
(1)
Upon reasonable prior written notice, during normal business hours
at grantee's principal business office, the franchising authority
shall have the right to inspect the grantee's financial records
directly related to the calculation of the franchising authority's
franchise fees; provided, however, that any such inspection shall
take place within two years from the date the franchising authority
receives such payment, after which period any such payment shall be
considered final.
(2)
Upon the completion of any such audit by the franchising authority,
the franchising authority shall provide to the grantee a final report
setting forth the franchising authority's findings in detail,
including any and all substantiating documentation. In the event of
an alleged underpayment, the grantee shall have 30 days from the receipt
of the report to provide the franchising authority with a written
response agreeing to or refuting the results of the audit, including
any substantiating documentation. Based on these reports and responses,
the parties shall agree upon a final settlement amount. For purposes
of this section, the term "final settlement amount(s)" shall mean
the agreed upon underpayment, if any, to the franchising authority
by the grantee as a result of any such audit. If the parties cannot
agree on a final settlement amount, the parties shall submit the dispute
to a mutually agreed upon mediator within 60 days of reaching an impasse.
In the event an agreement is not reached at mediation, either party
may bring an action to have the disputed amount determined by a court
of law.
(3)
Any final settlement amount(s) due to the franchising authority as
a result of such audit shall be paid to the franchising authority
by the grantee within 30 days from the date the parties agree upon
the final settlement amount. Once the parties agree upon a final settlement
amount and such amount is paid by the grantee, the franchising authority
shall have no further rights to audit or challenge the payment for
that period. The franchising authority shall bear the expense of its
audit of the grantee's books and records.
C.
Oversight of franchise. In accordance with applicable law, the franchising
authority shall have the right to, at its sole cost and expense and
upon reasonable prior written notice and in the presence of grantee's
employee, periodically inspect the construction and maintenance of
the cable system in the franchise area as necessary to monitor grantee's
compliance with the provisions of this franchise agreement.
D.
Technical standards. The grantee shall comply with all applicable
technical standards of the FCC as published in Subpart K, 47 CFR 76.601
et seq. To the extent those standards are altered, modified, or amended
during the term of this franchise agreement, the grantee shall comply
with such altered, modified or amended standards within a reasonable
period after such standards become effective. The franchising authority
shall have, upon written request, the right to obtain a copy of tests
and records required to be performed pursuant to the FCC rules.
E.
Maintenance of books, records, and files.
(1)
Books and records. Throughout the term of this franchise agreement,
the grantee agrees that the franchising authority may review the grantee's
books and records as are reasonably necessary to monitor grantee's
compliance with the franchise fee provisions of this franchise agreement,
upon reasonable prior written notice to the grantee, at the grantee's
business office, during normal business hours, and without unreasonably
interfering with grantee's business operations. All such documents
that may be the subject of an inspection by the franchising authority
shall be retained by the grantee for a minimum period of 24 months.
(2)
File for public inspection. Throughout the term of this franchise
agreement, the grantee shall maintain at its business office, in a
file available for public inspection during normal business hours,
those documents required pursuant to the FCC's rules and regulations.
(3)
Proprietary information. Notwithstanding anything to the contrary
set forth in this section, the grantee shall not be required to disclose
information which it reasonably deems to be proprietary or confidential
in nature. The franchising authority agrees to treat any information
disclosed by the grantee as confidential and only to disclose it to
those employees, representatives, and agents of the franchising authority
that have a need to know in order to enforce this franchise agreement
and who agree, through the execution of a nondisclosure agreement,
to maintain the confidentiality of all such information. The grantee
shall not be required to provide customer information in violation
of Section 631 of the Cable Act[1] or any other applicable federal or state privacy law.
For purposes of this section, the terms "proprietary or confidential"
include, but are not limited to, information relating to the cable
system design, customer lists, marketing plans, financial information
unrelated to the calculation of franchise fees or rates pursuant to
FCC rules, or other information that is reasonably determined by the
grantee to be competitively sensitive. Grantee may make proprietary
or confidential information available for inspection, but not copying
or removal of information by the franchising authority's representative.
In the event that the franchising authority has in its possession
and receives a request under a state "sunshine," public records, or
similar law for the disclosure of information the grantee has designated
as confidential, trade secret or proprietary, the franchising authority
shall notify grantee of such request and cooperate with grantee in
opposing such request.
[1]
Editor's Note: See 47 U.S.C. § 551.
A.
Neither the grantee nor any other person may transfer the cable system
or the franchise without prior written notice to the franchising authority.
No prior notice shall be required, however, for:
(1)
A transfer in trust, by mortgage, hypothecation, or by assignment
of any rights, title, or interest of the grantee in the franchise
or in the cable system in order to secure indebtedness;
(2)
A transfer to an entity directly or indirectly owned or controlled
by Comcast Corporation; or
(3)
The sale, conveyance, transfer, exchange or release of 50% or less
of its equitable ownership.
B.
Within 30 days of receiving a notice of transfer, the franchising
authority may, in accordance with FCC rules and regulations, notify
the grantee in writing of the additional information, if any, it requires
regarding the legal, financial, and technical qualifications of the
transferee or new controlling party.
A.
Insurance. Throughout the term of this franchise agreement, the grantee
shall, at its own cost and expense, maintain comprehensive general
liability insurance and provide the franchising authority certificates
of insurance designating the franchising authority and its officers,
boards, commissions, councils, elected officials, agents and employees
as additional insureds and demonstrating that the grantee has obtained
the insurance required in this section. Such policy or policies shall
be in the minimum amount of $1,000,000 for bodily injury or death
to any one person, and $1,000,000 for bodily injury or death of any
two or more persons resulting from one occurrence, and $1,000,000
for property damage resulting from any one accident. Such policy or
policies shall be noncancelable except upon 30 days' prior written
notice to the franchising authority. The grantee shall provide workers'
compensation coverage in accordance with applicable law. The grantee
shall indemnify and hold harmless the franchising authority from any
workers' compensation claims to which the grantee may become
subject during the term of this franchise agreement.
B.
Indemnification. The grantee shall indemnify, defend and hold harmless
the franchising authority, its officers, employees, and agents acting
in their official capacities from and against any liability or claims
resulting from property damage or bodily injury (including accidental
death) that arise out of the grantee's construction, operation,
maintenance, or removal of the cable system, including, but not limited
to, reasonable attorneys' fees and costs, provided that the franchising
authority shall give the grantee written notice of its obligation
to indemnify and defend the franchising authority within 10 business
days of receipt of a claim or action pursuant to this section. The
franchising authority agrees that it will take all necessary action
to avoid a default judgment and not prejudice the grantee's ability
to defend the claim or action. If the franchising authority determines
that it is necessary for it to employ separate counsel, the costs
for such separate counsel shall be the responsibility of the franchising
authority. No indemnity shall be owed by grantee in the event the
cause of any claim or loss is due to the sole negligence or a willful
act or omission of the franchising authority, its officers, employees,
and agents that is in violation of law or this franchise agreement.
A.
System capacity. During the term of this agreement, the grantee's
cable system shall be capable of providing video programming to its
customers in the franchise area in accordance with the Cable Act.
B.
Cable service to school buildings. Upon written request, the grantee
shall provide, at no cost to the Borough, expanded basic cable service
(or equivalent tier package) and standard installation at one outlet
to each public and private grade school (K-12) building located in
the franchise area within 125 feet of the grantee's active signal
distribution cable. No charge shall be made for installation or service,
except that grantee may charge for installation beyond 125 feet aerial
distance of the cable plant and service for more than one drop in
each building. For the purposes of this section, the term "school"
means an educational institution that receives funding pursuant to
Title I of the Elementary and Secondary Education Act of 1965, 20
U.S.C. § 6301 et seq., as amended, and does not include
"home schools."
C.
Cable service to public buildings. Upon written request, the grantee
shall provide, at no cost to the Borough, expanded basic cable service
(or equivalent tier package) and standard installation at one outlet
to each public building located in the franchise area within 125 feet
of the grantee's active signal distribution cable. No charge
shall be made for installation or service, except that grantee may
charge for installation beyond 125 feet aerial distance of the cable
plant and service for more than one drop in each building.
D.
Educational and governmental (EG) channel.
(1)
Comcast shall provide to the Borough, within 180 days of a written
request and as set forth herein, the use of one dedicated educational
and/or governmental ("EG") access channel in accordance with Section
611 of the Cable Act.[1] Such EG channel shall be used for community programming
related to educational or governmental activities. The Borough shall
have complete control over the content, scheduling, administration,
and all other programming aspects of the EG channel, and may delegate
such functions, or a portion of such functions, to an appropriate
designee. Comcast shall not exercise any editorial control over EG
channel programming.
[1]
Editor's Note: See 47 U.S.C. § 531.
(2)
To enable the Borough to utilize the EG channel, the Borough
shall select one location within the Borough boundaries and Comcast
shall provide and install, within 180 days of a written request by
the Borough, the cables, wires, lines, and other signal distribution
equipment such that live programming may originate from this selected
location and be distributed via the cable system to subscribers in
the Borough. These cables, wires, lines, and other signal distribution
equipment shall be collectively known as the "return line."
(3)
Any expenditure made in connection with the construction and
maintenance of the return line shall be at the expense of the Borough.
The Borough and Comcast further agree that all costs incurred by Comcast
for supporting such EG channel, including any and all equipment and
EG 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.
(4)
Comcast shall be responsible for maintaining the return line
to the video origination point of the EG channel so long as the Borough
provides Comcast with access to such location and access to the EG
channel equipment within such location. Comcast shall provide, install
and maintain in good working order the equipment and the cable necessary
for transmitting the signal to the channel aggregation site for further
processing and distribution to subscribers. Comcast shall maintain
the EG channel 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, except that
it shall not be responsible for the technical signal quality of programming
produced by any EG channel programmer.
(5)
The Borough or its designee shall be responsible for providing
any necessary production, editing, or playback equipment and shall
be responsible for securing and supervising any trained/qualified
personnel who conduct the operation of the EG channel. The Borough
and Comcast agree to work cooperatively in implementing the EG channel
through such means and in such manner as shall be mutually satisfactory.
(6)
In the event the Borough or its designee does not program any
EG channel, Comcast may request the use of this channel subject to
written approval by the Borough. If the Borough approves Comcast's
use of an EG channel and, subsequent to such approval, the Borough
requests the utilization of the EG channel being programmed by Comcast,
Comcast shall relinquish such use no later than 60 days after receipt
of written notification from the Borough that it requires such channel
for educational and/or governmental use.
E.
EG capital support grant. Comcast shall provide the Borough with
a one-time monetary capital grant to be used in support of the production
equipment for local EG channel programming or any other cable or technology-related
purpose. The EG grant provided by Comcast shall be in the amount of
$10,000. Such grant is to be paid to the Borough within 120 days of
the effective date of this agreement. Such grant shall not be offset
against any franchise fees remitted or due to the Borough. Comcast
and the Borough agree that the cost of such grant may be designated
as a "cost of franchise requirements" or "external cost" as defined
by the FCC, and Comcast reserves its right to pass these costs through
to the subscribers pursuant to federal law.
A.
Notice of violation or default and opportunity to cure. In the event
the franchising authority believes that the grantee has not complied
with the material terms of the franchise, it shall notify the grantee
in writing with specific details regarding the exact nature of the
alleged noncompliance or default.
(1)
Grantee's right to cure or respond. The grantee shall have
45 days from the receipt of the franchising authority's written
notice:
(a)
To respond to the franchising authority, contesting the assertion
of noncompliance or default; or
(b)
To cure such default; or
(c)
In the event that, by nature of the default, such default cannot
be cured within the forty-five-day period, initiate reasonable steps
to remedy such default and notify the franchising authority of the
steps being taken and the projected date that the cure will be completed.
(2)
Public hearings. In the event the grantee fails to respond to
the franchising authority's notice or in the event that the alleged
default is not remedied within 45 days or the date projected by the
grantee, the franchising authority shall schedule a public hearing
to investigate the default. Such public hearing shall be held at the
next regularly scheduled meeting of the franchising authority that
is scheduled at a time that is no less than 10 business days therefrom.
The franchising authority shall notify the grantee in writing of the
time and place of such meeting and provide the grantee with a reasonable
opportunity to be heard.
(3)
Enforcement. Subject to applicable federal and state law, in
the event the franchising authority, after such public hearing, determines
that the grantee is in default of any material provision of the franchise,
the franchising authority may:
(a)
Seek specific performance of any provision that reasonably lends
itself to such remedy as an alternative to damages, or seek other
equitable relief; or
(b)
In the case of a substantial default of a material provision
of the franchise, initiate revocation proceedings in accordance with
the following:
[1]
The franchising authority shall give written notice to the grantee
of its intent to revoke the franchise on the basis of a pattern of
noncompliance by the grantee, including two or more instances of substantial
noncompliance with a material provision of the franchise. The notice
shall set forth with specificity the exact nature of the noncompliance.
The grantee shall have 90 days from the receipt of such notice to
object in writing and to state its reasons for such objection. In
the event the franchising authority has not received a response from
the grantee or upon receipt of the response does not agree that the
allegations of noncompliance have been or will be resolved, it may
then seek revocation of the franchise at a public hearing. The franchising
authority shall cause to be served upon the grantee, at least 30 days
prior to such public hearing, a written notice specifying the time
and place of such hearing and stating its intent to request revocation
of the franchise.
[2]
At the designated public hearing, the franchising authority
shall give the grantee an opportunity to state its position on the
matter, present evidence and question witnesses, in accordance with
the standards of a fair hearing applicable to administrative hearings
in the Commonwealth of Pennsylvania, after which it shall determine
whether or not the franchise shall be terminated. The public hearing
shall be on the record and a written transcript shall be made available
to the grantee within 10 business days. The decision of the franchising
authority shall be in writing and shall be delivered to the grantee
by certified mall. The grantee may appeal such determination to an
appropriate court, which shall have the power to review the decision
of the franchising authority "de novo" and to modify or reverse such
decision as justice may require.
B.
Technical violation. The franchising authority agrees that it is
not its intention to subject the grantee to penalties, fines, forfeitures
or revocation of the franchise for so-called "technical" breach(es)
or violation(s) of the franchise, which shall include, but not be
limited to, the following:
(1)
In instances or for matters where a violation or a breach of
the franchise by the grantee was good faith error that resulted in
no or minimal negative impact on the customers within the franchise
area; or
(2)
Where there existed circumstances reasonably beyond the control
of the grantee and which precipitated a violation by the grantee of
the franchise, or which were deemed to have prevented the grantee
from complying with a term or condition of the franchise.
C.
No removal of system. Grantee shall not be required to remove its
cable system or to sell the cable system, or any portion thereof,
as a result of revocation, denial of renewal, or any other lawful
action to forbid or disallow grantee from providing cable service,
if the cable system is actively being used to facilitate any other
services not governed by the Cable Act, or any portion thereof [47
U.S.C. § 621 (b)].
A.
Purposes. The grantee and the franchising authority acknowledge that
there is increasing competition in the video marketplace among cable
operators, direct broadcast satellite providers, telephone companies,
broadband content providers and others; new technologies are emerging
that enable the provision of new and advanced services to Borough
residents; and changes in the scope and application of the traditional
regulatory framework governing the provision of video services are
being considered in a variety of federal, state and local venues.
To foster an environment where video service providers using the public
rights-of-way can compete on a competitively neutral and nondiscriminatory
basis; encourage the provision of new and advanced services to Borough
residents; promote local communications infrastructure investments
and economic opportunities in the Borough; and provide flexibility
in the event of subsequent changes in the law, the grantee and the
franchising authority have agreed to the provisions in this section,
and they should be interpreted and applied with such purposes in mind.
B.
New video service provider.
(1)
Notwithstanding any other provision of this agreement or any
other provision of law, if any video service provider ("VSP") 1) enters
into any agreement with the franchising authority to provide video
services to subscribers in the Borough, or 2) otherwise begins to
provide video services to subscribers in the Borough (with or without
entering into an agreement with the franchising authority), the franchising
authority, upon written request of the grantee, shall permit the grantee
to construct and operate its cable system and to provide video services
to subscribers in the Borough under the same agreement and/or under
the same terms and conditions as apply to the new VSP. The grantee
and the franchising authority shall enter into an agreement or other
appropriate authorization (if necessary) containing the same terms
and conditions as are applicable to the VSP within 60 days after the
grantee submits a written request to the franchising authority.
(2)
If there is no written agreement or other authorization between
the new VSP and the franchising authority, the grantee and the franchising
authority shall use the sixty-day period to develop and enter into
an agreement or other appropriate authorization (if necessary) that
to the maximum extent possible contains provisions that will ensure
competitive equity between the grantee and other VSPs, taking into
account the terms and conditions under which other VSPs are allowed
to provide video services to subscribers in the Borough.
C.
Subsequent change in law.
(1)
If there is a change in federal, state or local law that provides
for a new or alternative form of authorization for a VSP to provide
video services to subscribers in the Borough, or that otherwise changes
the nature or extent of the obligations that the franchising authority
may request from or impose on a VSP providing video services to subscribers
in the Borough, the franchising authority agrees that, notwithstanding
any other provision of law, upon grantee's written request the
franchising authority shall:
(a)
Permit the grantee to provide video services to subscribers
in the Borough on the same terms and conditions as are applicable
to a VSP under the changed law;
(b)
Modify this agreement to comply with the changed law; or
(c)
Modify this agreement to ensure competitive equity between the
grantee and other VSPs, taking into account the conditions under which
other VSPs are permitted to provide video services to subscribers
in the Borough.
(2)
The franchising authority and the grantee shall implement the
provisions of this section within 60 days after the grantee submits
a written request to the franchising authority. Notwithstanding any
provision of law that imposes a time or other limitation on the grantee's
ability to take advantage of the changed law's provisions, the
grantee may exercise its rights under this section at any time, but
not sooner than 30 days after the changed law goes into effect.
D.
Effect on this agreement. Any agreement, authorization, right or determination to provide video services to subscribers in the Borough under Subsections B or C shall supersede this agreement, and the grantee, at its option, may terminate this agreement or portions thereof, upon written notice to the franchising authority, without penalty or damages.
E.
Video service provider. The term "video service provider" or "VSP"
shall mean any entity using the public rights-of-way to provide multiple
video programming services to subscribers, for purchase or at no cost,
regardless of the transmission method, facilities, or technology used.
A VSP shall include any cable service or hardwire video programming
provider.
A.
Force majeure. The grantee shall not be held in default under, or
in noncompliance with, the provisions of the franchise, nor suffer
any enforcement or penalty relating to noncompliance or default (including
termination, cancellation or revocation of the franchise), where such
noncompliance or alleged defaults occurred or were caused by lightning
strike, earthquake, flood, tidal wave, unusually severe rain, ice
or snow storm, hurricane, tornado, or other catastrophic act of nature;
riot, war, labor disputes, terrorism or threats of terrorism, environmental
restrictions, failure of utility service necessary to operate the
cable system, governmental, administrative or judicial order or regulation
or other event that is reasonably beyond the grantee's ability
to anticipate or control. This provision also covers work delays caused
by waiting for utility providers to service or monitor their own utility
poles on which the grantee's cable or equipment is attached,
as well as unavailability of materials or qualified labor to perform
the work necessary.
B.
Notice. All notices shall be in writing and shall be sufficiently
given and served upon the other party by hand delivery, first class
mail, registered or certified (return receipt requested), postage
prepaid, or by reputable overnight courier service and addressed as
follows:
|
To the franchising authority:
| |
|
Collingdale Borough
800 MacDade Boulevard
Collingdale, PA 19023
Attention: Borough Manager
| |
|
To the grantee:
| |
|
Comcast of Southeast Pennsylvania, LLC
5 Bellecor Drive
New Castle, DE 19720
Attention: Government Affairs Department
| |
|
with a copy to:
| |
|
Comcast Cable - Northeast Division
676 Island Pond Road
Manchester, NH 03109
Attention: Government Affairs Department
| |
|
Comcast Cable
One Comcast Center
1701 John F, Kennedy Boulevard
Philadelphia, PA 19103-2838
Attention: Government Affairs Department
| |
C.
Entire agreement. This franchise agreement and any exhibits or addendums
hereto constitute the entire agreement between the franchising authority
and the grantee and supersedes all prior or contemporaneous agreements,
ordinances, representations, or understandings, whether written or
oral, of the parties regarding the subject matter hereof. Any agreements,
ordinances, representations, or understandings or parts of such measures
that are in conflict with or otherwise impose obligations different
from the provisions of this franchise agreement are superseded by
this franchise agreement.
D.
Separability. If any section, subsection, sentence, clause, phrase,
or other portion of this franchise agreement or ordinance is, for
any reason, declared invalid, in whole or in part, by any court, agency,
commission, legislative body, or other authority of competent jurisdiction,
such portion shall be deemed a separate, distinct, and independent
portion. Such declaration shall not affect the validity of the remaining
portions hereof, which other portions shall continue in full force
and effect.
E.
Governing law. This franchise agreement shall be deemed to be executed
in the Commonwealth of Pennsylvania, and shall be governed in all
respects, including validity, interpretation and effect, and construed
in accordance with, the laws of the Commonwealth of Pennsylvania,
as applicable to contracts entered into and performed entirely within
the state.
F.
Modification. No provision of this franchise agreement shall be amended
or otherwise modified, in whole or in part, except by an instrument,
in writing, duly executed by the franchising authority and the grantee,
which amendment shall be authorized on behalf of the franchising authority
through the adoption of an appropriate resolution or order by the
franchising authority, as required by applicable law.
G.
No third-party beneficiaries. Nothing in this franchise agreement
is or was intended to confer third-party beneficiary status on any
member of the public to enforce the terms of this franchise agreement.
H.
Captions. Captions to sections throughout this franchise agreement
are solely to facilitate the reading and reference to the sections
and provisions of this franchise agreement. Such captions shall not
affect the meaning or interpretation of this franchise agreement.
I.
No waiver of rights. Nothing in this franchise agreement shall be
construed as a waiver of any rights, substantive or procedural, which
grantee may have under federal or state law unless such waiver is
expressly stated herein.
J.
Incorporation by reference.
(1)
All presently and hereafter applicable conditions and requirements
of federal, state and local laws, including but not limited to the
rules and regulations of the FCC and the Commonwealth of Pennsylvania,
as they may be amended from time to time, including grantee's
rights with regard to its external franchise costs, are incorporated
herein by reference to the extent not enumerated herein. All such
general laws, rules and regulations, as amended, shall control the
interpretation and performance of this renewal franchise to the extent
that any provision of this renewal franchise conflicts with or is
inconsistent with such laws, rules or regulations.
(2)
Should the Commonwealth of Pennsylvania, the federal government
or the FCC require franchisee to perform or refrain from performing
any act the performance or nonperformance of which is inconsistent
with any provisions herein, the franchising authority and franchisee
will thereupon, if they determine that a material provision herein
is affected, modify any of the provisions herein to reflect such government
action.
K.
Calculation of time. Where the performance or doing of any act, duty,
matter, payment, or operation is required hereunder and the period
of time or duration for the performance or during thereof is prescribed
and fixed herein, the time shall be computed so as to exclude the
first day and include the last day of the prescribed or fixed period
or duration of time. When the last day of the period falls on Saturday,
Sunday, or a legal holiday, that day shall be omitted from the computation.
