[HISTORY: Adopted by the Board of Supervisors
of the Township of Halfmoon 12-12-2019 by Ord. No. 2019-08.[1] Amendments noted where applicable.]
GENERAL REFERENCES
Cable television — See Ch. 92.
[1]
Editor's Note: This ordinance superseded former Ch. A260,
Cable Television Franchise, adopted 2-11-1974 (Ch. A150 of the 1994
Code).
A.
This cable franchise agreement (hereinafter referred to as the "agreement")
is by and between Halfmoon Township, a municipality located in Centre
County, Pennsylvania (hereinafter referred to as the "Township"),
and Comcast of Colorado/Pennsylvania/West Virginia, LLC (hereinafter
referred to as "Comcast").
B.
WHEREAS, pursuant to Title VI of the Communications Act, the regulations
of the Federal Communications Commission (hereinafter referred to
as the "FCC") and Pennsylvania law, the Township is authorized to
grant and renew franchises to construct, operate and maintain a cable
system utilizing public rights-of-way and properties within the Township's
jurisdiction; and
C.
WHEREAS, Comcast currently holds a cable franchise from the Township
by virtue of a cable franchise agreement dated September 1, 2008;
and
D.
WHEREAS, Comcast has requested that the Township renew Comcast's
franchise to maintain, construct, operate, and maintain its cable
system over, under and along the aforesaid rights-of-way for use by
the Township's residents; and
E.
WHEREAS, the aforesaid public rights-of-way used by Comcast are public
properties acquired and maintained by the Township on behalf of the
citizens of the Township, and the right to use said rights-of-way
is a valuable property right; and
F.
WHEREAS, the Township desires to protect and manage the aforesaid
rights-of-way, establish standards of subscriber service, maintain
a technologically advanced cable system, receive franchise fees for
Comcast's use of the Township's public rights-of-way as
provided by federal law, obtain the use of an educational and governmental
channel, establish certain reporting requirements, obtain certain
complimentary services, provide legal protections for the Township,
and meet the current and future cable-related needs of its residents;
and
G.
WHEREAS, the Township held a public hearing on the subject of cable
franchise renewal, including reviewing the cable operator's past
performance and identifying the Township's future cable-related
community needs; and
H.
WHEREAS, the Township has determined that this agreement and the
process for consideration of this agreement complies with all applicable
federal, state and local laws and regulations; and
I.
WHEREAS, the Township, after affording the public notice and opportunity
for comment, has determined that the public interest would be served
by renewing Comcast's franchise according to the terms and conditions
contained herein;
J.
NOW THEREFORE, in consideration of the mutual promises contained
herein and intending to be legally bound hereby, the Township and
Comcast agree as follows.
K.
WHEREAS, the Township has determined that Comcast has the financial,
legal and technical ability to provide cable services to subscribers
located in the Township.
The following terms used in this franchise shall have the following
meanings:
Any persons(s) or entity(ies) who own or control, are owned
or controlled by or are under common ownership or control with Comcast
of Colorado/Pennsylvania/West Virginia, LLC, but does not include
affiliated entities that are not involved with the use, management,
operation, construction, repair and/or maintenance of Comcast Corporation's
cable systems.
The service tier that includes at least the retransmission
of local broadcast television signals.
Title VI of the Communications Act of 1934, as amended by
the Cable Communications Policy Act of 1984, the Cable Television
Consumer Protection and Competitive Act of 1992 and the Telecommunications
Act of 1996, as it may, from time to time, be further amended.
The one-way transmission to subscribers of video programming
or other programming service and subscriber interaction, if any, which
is required for the selection or use of such video programming or
other programming service.
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 Township,
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 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.
A portion of the electromagnetic frequency spectrum which
is used in a cable system and which is capable of delivering a television
channel as a television channel is defined by FCC regulation.
The federal Communications Act of 1934, as amended, and as
it may, from time to time, be further amended.
Any written (including electronic) or oral communication
by a subscriber expressing dissatisfaction with Comcast's operation
of its cable system that is within Comcast's control and requires
a corrective measure on the part of Comcast or its contractors or
subcontractors.
The coaxial or fiber optic or other cable that connects a
home or building to the cable system.
An access channel that consists of local, educational and/or
governmental programming.
A condition that either 1) constitutes a clear and immediate
danger to the health, welfare, or safety of the public; or 2) has
caused or is likely to cause the cable system in the public rights-of-way
to be unusable and result in loss of the services provided.
Federal Communications Commission.
Acts of God; acts of public enemies, including terrorist
attacks; orders of any kind of the government of the United States
of America or 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; extraordinary make-ready costs; partial or entire failure
of utilities or other event that is reasonably beyond Comcast's
ability to anticipate or control.
The authorization granted by the Township to construct, operate
and maintain a cable system within the corporate limits of the Township
as embodied in the terms and conditions of this agreement.
The fee that Comcast remits to the Township pursuant to Section 622 of the Cable Act, 47 U.S.C. § 542, and § A260-7A of this agreement.
All revenue received by Comcast or its affiliated entities arising
from, attributable to, or in any way derived from the operation of
Comcast's cable system in the Township to provide cable services,
as calculated in accordance with generally accepted accounting principles
("GAAP"). Gross revenues shall include, but are not limited to, the
following:
Basic service fees;
Fees charged to subscribers for any cable service tier other
than basic service;
Fees charged for premium cable services;
Fees for all digital video tiers;
Fees for video-on-demand;
Fees charged to subscribers for any optional, per-channel or
per-program cable services;
Revenue from the provision of any other cable services;
Charges for installation, additional outlets, relocation, disconnection,
reconnection and change-in-service fees for cable service;
Fees for changing any level of cable service programming;
Fees for service calls pertaining to cable services;
Inside wire maintenance fees for cable services;
Service plan protection fees for cable services;
Convenience fees;
Early termination fees on cable services;
Fees for leased access channels;
Charges based on the sale or lease of any portion of the cable
system for cable service;
Rental or sales of any and all equipment, including converters
and remote control devices;
Any and all locally derived advertising revenues;
Revenues or commissions from locally derived home shopping channels;
Broadcast retransmission fees;
Regional sports fee;
Late payment fees on cable services;
Billing and collection fees on cable services;
NSF check charges; and
Franchise fees.
Gross revenues shall not include refundable deposits, investment
income, programming launch support payments, nor any taxes, or other
fees or assessments imposed or assessed by any governmental authority.
Gross annual revenues shall not include actual bad debt that is written
off, consistent with generally accepted accounting principles; provided,
however, that all or any part of any such actual bad debt that is
written off, but subsequently collected, shall be included in the
gross annual revenues in the period so collected. In the event of
any dispute over the classification of revenue, the Township and Comcast
agree that reference should be made to generally accepted accounting
principles ("GAAP") as promulgated and defined by the Financial Accounting
Standards Board ("FASB").
High-definition format.
Any channel on Comcast's cable system designated for
use by any entity that is unaffiliated with Comcast pursuant to Section
612 of the Cable Act, 47 U.S.C. § 532.
Any building, buildings or area occupied by dwelling units,
appurtenances thereto, grounds and facilities, which dwelling units
are intended or designed to be owned, occupied or leased for occupation,
or actually occupied, as individual homes or residences for three
or more households.
Those hours during which most similar businesses in the community
are open to serve subscribers. In all cases, "normal business hours"
must include some evening hours at least one night per week and/or
some weekend hours.
Business conditions within Comcast's service department
which are within the control of Comcast. Those conditions that are
not within the control of Comcast include, but are not limited to,
natural disasters, civil disturbances, power outages, telephone network
outages and severe or unusual weather conditions or other conditions
of force majeure.
An interior receptacle that connects a television set to
the cable system.
Any video or audio signal carried over the cable system that
is generally considered comparable to programming provided by a television
broadcast station.
The Township Building, police stations, fire companies, public
works buildings, and water and sewer authorities. Public buildings
shall not include buildings owned by the Township but leased to third
parties, or buildings, such as storage facilities, at which government
employees are not regularly stationed, or to facilities used by a
private service provider, such as a private ambulance company. Public
schools and libraries may be eligible under the then-current community
investment policy of Comcast.
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, which are under the jurisdiction or control of the
Township.
The loss of picture or sound on all cable service channels.
A person or entity who contracts with Comcast for, and lawfully
receives, the video signals and cable services distributed by the
cable system.
A.
Grant of authority. Pursuant to the Cable Act, the regulations of
the FCC and Pennsylvania law, the Township hereby grants a nonexclusive
and revocable franchise to Comcast. Subject to the terms and conditions
contained herein, the Township hereby grants to Comcast the authority
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 equipment as
is necessary and appropriate to the operation of the cable system
in the public rights-of-way, including property over which the Township
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. Nothing herein
shall preclude Comcast from offering any other service over the cable
system as may be lawfully allowed.
B.
Term of franchise. The term of this agreement shall be for a period
of 10 years commencing on the date when fully executed by both parties,
unless the franchise is terminated prior to the expiration date in
accordance with the terms and conditions of this agreement.
C.
Representations and warranties.
(1)
Comcast represents, warrants and acknowledges that, as of the effective
date:
(a)
Comcast is duly organized, validly existing and in good standing
under the laws of the Commonwealth of Pennsylvania;
(b)
Comcast has the requisite approval from the applicable federal
and state agencies;
(c)
There is no action or proceeding pending or threatened against
Comcast which would interfere with its performance or its ability
to perform the requirements of this agreement;
(d)
Pursuant to Section 625(f) of the Cable Act, as of the effective
date, the performance of all terms and conditions in this agreement
is commercially practicable.
D.
Nonexclusivity. This franchise granted to Comcast shall be nonexclusive.
Nothing in this agreement shall affect the right of the Township to
grant other franchises to construct, operate or maintain a cable system.
E.
Franchise subject to federal, state and local laws. This franchise
is subject to and shall be governed by all lawful and applicable provisions
of federal, state and generally applicable local laws and regulations.
This franchise is further subject to all generally applicable ordinances
and resolutions of the Township. Without waiving any of its rights,
the Township agrees that, to the extent any term of this agreement
is inconsistent with the terms of any Township cable franchise ordinance
existing as of the effective date, this agreement shall control.
F.
Competitive equity.
(1)
Comcast acknowledges and agrees that the Township reserves the right
to grant one or more additional franchises to construct, operate,
and maintain a cable system within the Township.
(2)
The franchise granted to Comcast is nonexclusive; however, if the
Township grants a subsequent franchise or other authorization to provide
similar wired video services, that, when taken as a whole upon consideration
of all of its material obligations, is more favorable or less burdensome
to the subsequent provider than this agreement is to Comcast, then
Comcast may request an amendment to this agreement to provide Comcast
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 Township and Comcast shall
enter into good-faith negotiations in order to modify this agreement
to the mutual satisfaction of both parties to provide Comcast with
such competitive equity.
(3)
In the event an application for a new franchise for cable service
is submitted to the Township proposing to serve subscribers within
the Township, then the Township shall notify Comcast in writing of
the submission of the application.
A.
Technical requirement.
(1)
Comcast shall operate, maintain, construct and extend the cable system so as to offer cable services throughout all parts of the Township where the density requirements of § A260-4B are met. The cable service provided by the cable system shall be delivered in accordance with applicable FCC standards and the Cable Act. The cable system shall meet or exceed any and all applicable technical performance standards of the FCC, the National Electrical Safety Code, the National Electrical Code and any other applicable federal laws and regulations and the laws, ordinances and construction standards of the Commonwealth of Pennsylvania and the generally applicable laws, ordinances and construction standards of the Township.
(2)
Standby power at the headend(s) shall be provided in the event of
a service interruption. Standby power must activate automatically
upon the failure of commercial utility power.
B.
Area to be served.
(1)
Comcast shall make cable service available to every dwelling occupied
by a person requesting cable service, provided that Comcast is able
to obtain from the property owners any necessary easements and/or
permits in accordance with Section 621(a)(2) of the Cable Act. Comcast
shall extend the cable system beyond that which exists on the effective
date into all areas within the Township, unserved by another wireline
video provider, where there is a minimum of 25 dwelling units per
linear plant mile of aerial cable and 50 dwelling units per underground
mile of cable, calculated from the end of the main distribution line
from which a usable cable service signal can be obtained. For purposes
of this section, a home shall only be counted as a "dwelling unit"
if such home is within 275 feet of the nearest distribution pole line
within the public right-of-way. Upon written request from the Township,
Comcast shall conduct a survey to determine the number of dwelling
units in the requested area and shall inform the Township of the survey
results and applicable costs to extend service to the area. In those
areas meeting the minimum density standard, Comcast shall commence
construction within 90 days after all necessary permits and pole attachment
licenses are obtained. Subject to force majeure, Comcast will make
best efforts to complete the construction of said extension within
six months from the issuance of all necessary permits and pole attachment
licenses. Comcast's obligation hereunder shall be subject to
the timely performance of walk-out, make-ready and location of all
underground utilities, weather permitting.
(2)
Any dwelling unit within 125 feet aerial distance from the main distribution
line shall be entitled to a standard installation rate. For any dwelling
unit in excess of 125 feet or that requires an underground installation,
Comcast shall extend the cable service if the subscriber pays Comcast
the actual cost of installation from its main distribution system,
with such cost being only the incremental portion beyond 125 feet
for aerial installations.
(3)
The Township has the authority to require Comcast to place wires
and/or equipment underground, provided that the Township imposes such
requirement on all similarly situated entities. All installations
of wires and/or equipment by Comcast shall be underground in those
areas of the Township where the wires and/or equipment of similarly
situated entities (i.e., telephone and electric utilities) are underground;
provided, however, that such underground locations are capable of
accommodating Comcast's facilities without technical degradation
of the cable system's signal quality. Comcast shall not be required
to construct, operate, or maintain underground any ground-mounted
appurtenances such as subscriber taps, line extenders, system passive
devices, amplifiers, power supplies, or pedestals.
(4)
In the event that public or private funds are made available to pay
for such underground projects, Comcast may apply or request that the
Township apply for such funds. In the event that Comcast is required
to place existing aerial plant underground, Comcast reserves its right
to pass any remaining costs in excess of any such available public
or private funds through to subscribers if and to the extent allowed
by applicable law.
C.
Cable system specifications.
(1)
Comcast has designed, constructed, and shall maintain a cable system
that has been built for digital television standards.
(2)
Comcast reserves the right to alter, adjust, modify, rebuild, upgrade, redesign, or otherwise reconfigure the cable system at any time during the term of the agreement, provided that no alteration, adjustment, modification, rebuild, upgrade, redesign or other reconfiguration of the cable system shall have the effect of reducing the technical capabilities of the cable system as set forth in § A260-4A.
D.
System tests.
(1)
Comcast shall be responsible for ensuring that its cable system is designed, installed and operated in a manner that fully complies with applicable FCC technical standards. Upon a showing of a pattern of subscriber complaints regarding signal quality or a determination of noncompliance related to signal quality through a compliance review under § A260-6B herein, Comcast, upon written request by the Township, shall perform applicable tests to determine compliance with FCC technical standards. Comcast shall provide a report to the Township within 30 days of completion of a Township-requested test that describes the results of the test. If any test under this section indicates that the cable system fails to meet applicable FCC requirements, Comcast shall take such corrective measures as are necessary to correct any failure and to prevent their recurrence as far as is possible.
(2)
Upon 60 days' written request to Comcast, the Township may inspect
the cable system at any time to ensure compliance with this agreement
and applicable law, including to ensure that the cable system is constructed
and maintained in a safe condition. The Township reserves the right,
upon at least 60 days' notice to Comcast, to conduct a technical
audit of the cable system.
E.
Emergency Alert System. Comcast shall comply with the Emergency Alert
System requirements of the FCC.
F.
Services for subscribers with disabilities. Comcast shall comply
with all applicable federal regulations, including the Communications
Act of 1934, as amended, that ensure the provision of cable services
and related equipment are accessible to and usable by persons with
disabilities.
G.
Service to multiple dwelling units ("MDUs"). Comcast and the Township
hereto acknowledge and agree that installation and provision of cable
service to MDUs are subject to a separate negotiation between the
landlord, owner or governing body of any such MDU and Comcast, which
negotiations shall be conducted in accordance with the procedures
set forth in the Cable Act, as amended, applicable FCC regulations
and applicable Pennsylvania law.
H.
Repairs and restoration.
(1)
Whenever Comcast or any of its agents, including any contractor or
subcontractor, takes up or disturbs any pavement, sidewalk or other
improvement of any public or private property, the same shall be replaced
and the surface restored in as reasonably good condition as before
the disturbance within 20 business days of the completion of the disturbance,
weather permitting. Upon failure of Comcast to comply within the time
specified and the Township having notified Comcast in writing of the
restoration and repairs required, the Township may cause proper restoration
and repairs to be made, and the expense of such work shall be paid
by Comcast upon demand by the Township.
(2)
Whenever Comcast or any agent, including any contractor or 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 Township if required
for the proper installation, operation and maintenance of such equipment,
cable, or wires. Comcast shall promptly repair and restore any public
property that is damaged as a result of construction, installation,
repair or maintenance of the cable system within 20 business days,
weather permitting.
(3)
Comcast's operation, construction, repair and maintenance personnel,
including all contractors and subcontractors, shall be trained in
the use of all equipment and the safe operation of vehicles. Such
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 inspected in accordance with such applicable federal,
state and local laws and regulations so as to prevent hazardous conditions
or risks to safety for the public and/or operating and maintenance
personnel. Comcast shall install and maintain its wires, cables, fixtures,
and other equipment in such a manner as shall not interfere with any
installations of the Township or any public utility serving the Township.
(4)
Should a public safety emergency occur as a result of, incident to,
or connected with operation, construction, repair, or maintenance
activities by Comcast personnel, including all contractors and subcontractors,
then such personnel shall immediately contact the applicable public
safety emergency dispatcher (e.g., 9-1-1).
(5)
Whenever Comcast or any agent, including any contractor or 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. Comcast shall adhere
to any additional undergrounding requirements which the Commonwealth
may establish in the future. Comcast shall 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 Township, wherever situated or located, shall
at all times be kept and maintained in a safe and suitable condition
and in good order and repair in accordance with customary industry
standards and practices.
I.
Service area maps. Upon 30 days' written request, Comcast shall permit the Township to view a complete set of Comcast service area strand maps of the Township on which shall be shown those areas in which facilities exist and the location of streets. The strand maps shall also designate where the cable wires and other equipment are aerial and where they are underground. Such viewing by Township officials shall be at a mutually agreed time and location. Should the Township wish to obtain such strand maps of the Township for its exclusive use, Comcast shall provide such maps within 30 days of a written request, but no more than once annually and only after the Township and Comcast have executed a nondisclosure agreement, as such maps are confidential and proprietary pursuant to § A260-6A of this agreement.
J.
Disconnection and relocation.
(1)
Comcast shall, at no cost to the Township, 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 Township or its designee by reason
of traffic conditions, street construction, change or establishment
of street grade, site distance visibility, the construction of any
public improvement or structure, or any other reason related to public
health, safety and welfare.
(2)
In requiring Comcast to protect, support, temporarily disconnect,
relocate or remove any portion of its property, the Township shall
treat Comcast the same as, and require no more of Comcast than, any
other similarly situated entity utilizing the public rights-of-way.
K.
Emergency removal of equipment.
(1)
If, at any time, in case of fire or other disaster in the Township,
it shall be necessary, in the reasonable judgment of the Township
or its agent, to cut or move any of the wires, cable or equipment
of the cable system, the Township shall have the right to do so without
cost or liability, provided that, wherever possible, the Township
shall give Comcast notice and the ability to relocate wires, cable
or other equipment.
(2)
In cutting or moving any of the wires, cable or equipment of the
cable system in the event of fire or other disaster, the Township
shall treat Comcast the same as, and require no more of Comcast than,
any other similarly situated entity.
L.
Tree trimming.
(1)
Comcast, or its agents, including contractors and subcontractors,
shall have the authority to trim trees upon and overhanging 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 Comcast.
Any such tree trimming shall only be performed in accordance with
applicable laws and regulations.
(2)
If Comcast or its agents, including contractors and subcontractors, wish to cut down and remove any tree or trees as may be necessary for the installation and/or maintenance of its equipment, it shall apply to the Township for permission, with the exception of emergency situations as defined in § A260-2, and if permission is granted, shall perform such cutting and removal in accordance with the regulations of the Township.
M.
Channel capacity. Comcast shall meet or exceed programming and channel
capacity requirements set forth in this agreement and required by
applicable federal and state law and regulations.
N.
Broadcast channels. To the extent required by federal law, Comcast
shall provide all subscribers with basic service, including, but not
limited to: a) all broadcast television signals carried in fulfillment
of the requirements of Section 614 of the Cable Act; b) the signals
of qualified noncommercial educational television signals carried
in fulfillment of the requirements of Section 615 of the Cable Act;
and c) any educational and governmental channel pursuant to Section
611 of the Cable Act. All such signals shall be delivered to subscribers
in accordance with FCC technical specifications.
O.
Signal scrambling. Comcast shall at all times comply with FCC regulations
regarding scrambling or other encryption of audio and video signals.
P.
Continuity of service. Subscribers shall continue to receive cable service from Comcast, provided their financial and other obligations to Comcast are honored. Subject to force majeure provisions in § A260-10A, Comcast shall use its best efforts to ensure that all subscribers receive continuous, uninterrupted service regardless of the circumstances. For the purpose of construction, routine repairing or testing of the cable system, Comcast 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, Comcast shall notify subscribers in advance of such service interruption along with providing subscribers with a pro-rata credit for the time of such service interruption.
A.
Office hours and telephone availability.
(1)
Comcast shall provide and maintain a toll-free telephone access line
that will be available to subscribers 24 hours a day, seven days a
week. Trained representatives shall respond to subscriber 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 on the next business day.
(2)
Under normal operating conditions and during normal business hours,
telephone answering time by a subscriber representative, including
wait time, shall not exceed 30 seconds after the connection is made.
If the call needs to be transferred, transfer time shall not exceed
30 seconds. These standards shall be met no less than 90% of the time,
measured on a quarterly basis. Under normal operating conditions,
the subscriber shall receive a busy signal less than 3% of the time.
(3)
Comcast will not be required to perform surveys to measure compliance with the telephone answering standards above unless an historical record of complaints indicates a clear failure to comply. If the Township determines, after receiving complaints itself and/or receiving a record of complaints made to Comcast in accordance with § A260-5E and/or § A260-6G(1), that there is a clear failure to comply with the telephone answering requirements above, the Township shall notify Comcast in writing that it must measure its compliance with these requirements for the next three months and report to the Township the results of such monthly average measurements.
B.
Installations and service calls.
(1)
Comcast shall maintain a staff of employees sufficient to provide
adequate and prompt service to its subscribers. Comcast 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 Comcast employee or agent, including any subcontractor,
shall prominently display the Comcast or Xfinity 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
main distribution line.
(3)
Upon scheduling of appointments with the subscriber for installations,
service calls and other activities, Comcast shall provide the subscriber
with either a specific time or an "appointment window" of a maximum
of four hours during normal business hours. Comcast may schedule service
calls and installation activities outside of normal business hours
at a time that is convenient for the subscriber.
(4)
Comcast may not cancel an appointment with a subscriber 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 subscriber 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 subscriber.
C.
Notices.
(1)
In accordance with applicable federal law, Comcast shall provide
written information to each subscriber upon initial subscription,
and at least annually to subscribers and at any time upon request,
regarding each of the following areas:
(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 and any converters;
(f)
Billing and subscriber complaint procedures;
(g)
A notice of subscriber privacy rights as required by federal
law.
(2)
In accordance with applicable law, Comcast shall notify subscribers
and the Township 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 Comcast. Comcast
shall not be required to provide prior notice to subscribers of any
rate change that is the result of a regulatory fee, franchise fee
or any other fee, tax, assessment or charge of any kind imposed by
any federal agency, the Commonwealth of Pennsylvania or the Township
on the transaction between Comcast and the subscriber.
D.
Billing.
(1)
Bills shall be clear, concise and understandable. Bills must be fully
itemized, and shall include all applicable service tiers, equipment
charges and any installation or repair charges. Bills shall state
the billing period, including an effective due date, the amount of
current billing and any relevant credits or past-due balances.
(2)
The Township hereby requests that Comcast omit the Township's
name, address, and telephone number from subscriber bills as permitted
by 47 CFR 76.952.
E.
Subscriber complaint procedures. Comcast shall establish clear written
procedures for resolving all subscriber complaints, which shall include
at least the following:
(1)
Comcast shall provide the subscriber with a written 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 Township is contacted directly about a subscriber complaint, it shall notify Comcast promptly and in writing. When Comcast receives such notification, Comcast shall respond in writing within the time period specified in § A260-5E(1).
(3)
Any subscriber who, in good faith, disputes all or part of any bill
sent by Comcast has the option of withholding the disputed amount,
without a late fee or disconnection, until Comcast has investigated
the dispute in good faith and has made a determination that the amount
is owed, provided that:
(a)
The subscriber provides a written complaint to Comcast in a
timely fashion and includes identifying information;
(b)
The subscriber pays all undisputed charges;
(c)
The subscriber cooperates in determining the appropriateness
of the charges in dispute; and
(d)
It shall be within Comcast's sole discretion to determine
when the dispute has been resolved.
(4)
Comcast shall maintain subscriber complaint records for inspection
by the affected subscriber, which shall contain the date each complaint
is received, the name and address of the affected subscriber, a description
of the complaint, the date of resolution of the complaint, and a description
of the resolution.
F.
Disconnection. Comcast may disconnect or terminate a subscriber's
service for cause:
(1)
If at least 30 days have elapsed from the due date of the bill that
subscriber has failed to pay; and
(2)
If Comcast has provided at least 10 days' notice to the affected
subscriber prior to disconnection, specifying the effective date after
which cable services are subject to disconnection; and
(3)
If there is no pending written dispute with Comcast regarding the
bill; or
(4)
If at any time and without notice, Comcast determines in good faith
that subscriber has tampered with or abused Comcast's equipment
or service, is engaged in theft of cable service or has exhibited
violent or threatening behavior toward its employees.
G.
Service interruptions.
(1)
Excluding conditions beyond its control, Comcast shall begin working
on a service interruption promptly and in no event later than 24 hours
after the interruption becomes known and shall pursue to completion.
Notice of a service interruption of a single subscriber shall give
rise to this obligation on behalf of Comcast. All other service calls
not affecting public health, safety or welfare shall occur within
a maximum of 48 hours after notice to Comcast or scheduled at the
convenience of the subscriber.
(2)
In the event that there is a service interruption to any subscriber
for six or more consecutive hours and upon receipt of written or credible
oral request, Comcast shall grant such subscriber a pro-rata credit
or rebate, on a daily basis, of that portion of the service charge
during the next consecutive billing cycle, or, at its option, apply
such credit to any outstanding balance that is currently due.
H.
Privacy. Comcast shall comply with the privacy provisions of Section
631 of the Cable Act and all other applicable federal and state privacy
laws and regulations. Comcast shall at all times maintain adequate
physical, technical and administrative security safeguards to ensure
that personally identifiable subscriber information is handled and
protected strictly in accordance with this policy and all applicable
laws and regulations.
A.
Right to inspect and protection of proprietary information.
(1)
The Township shall have the option, upon 30 business days' written notice and during normal business hours, to inspect at the notice location for Comcast specified in § A260-10C, all documents, records and other pertinent information maintained by Comcast which relate to the terms and conditions of this agreement for the purpose of verifying compliance with the terms and conditions of this agreement and applicable law.
(2)
In addition, Comcast shall maintain for inspection by the public
and the Township all records required by the FCC and as specified
in 47 CFR 76.305 in the manner specified therein.
(3)
Notwithstanding anything to the contrary set forth herein, all information
specifically marked by Comcast as proprietary or confidential in nature
and furnished to the Township or its designated representatives shall
be treated as confidential by the Township so long as it is permitted
to do so under applicable law. Representatives and/or agents of the
Township may be requested to execute a nondisclosure agreement prior
to the provision by Comcast of certain confidential information, provided
such representatives and/or agents are permitted to do so under applicable
law. Information and documentation marked by Comcast as proprietary
or confidential shall include a brief written explanation as to its
proprietary nature or confidentiality, subject to review by the Township.
The Township and its officially designated representatives agree in
advance to treat any such information or records which Comcast reasonably
deems would provide an unfair advantage for Comcast's competitors
(e.g., system design maps, engineering plans, programming contracts,
etc.) as confidential so long as permitted to do so under applicable
law and only to disclose it to Township employees, agents, or representatives
who have a need to know or in order to enforce the provisions of this
agreement. In the event a request is made by an individual or entity
not an employee, agent or representative of the Township acting in
their official capacity for information related to the franchise and
marked by Comcast as confidential and/or proprietary, the Township
shall timely notify Comcast of such request and shall cooperate with
Comcast in protecting its proprietary and confidential information
to the extent permitted by applicable law. Comcast shall not be required
to provide subscriber information in violation of Section 631 of the
Cable Act, or information which is not relevant to regulation of the
franchise (e.g., employee files, tax returns, etc.).
B.
Right to conduct compliance review. Not more than twice during the term of this agreement, the Township or its representatives may conduct a full compliance review with respect to whether Comcast has complied with the material terms and conditions of this agreement, so long as it provides Comcast with 45 days' written notice in advance of the commencement of any such review. Such notice shall specifically reference the section(s) or subsection(s) of the agreement that is (are) under review, so that Comcast may organize the necessary records and documents for appropriate review by the Township. Within 30 days of a written request, Comcast shall provide the Township with copies of records and documents related to the cable compliance review. The period for any such review shall be for not more than the 60 months immediately previous to the notice. The Township shall promptly inform Comcast, in accordance with § A260-9A, of any alleged noncompliance issues that result from the compliance review.
C.
Reserved authority. The Township reserves the regulatory authority
arising from the Cable Act and any other applicable federal or state
laws or regulations. Nothing in this agreement shall remove, restrict
or reduce the Township'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.
D.
Police powers. Comcast's rights under this agreement are subject
to the police powers of the Township to adopt and enforce general
laws and regulations necessary for the safety and welfare of the public.
Such laws and regulations are separate and distinct from the terms
and conditions contained in this agreement. If the Township's
exercise of the police power results in a material alteration of the
terms and conditions of this agreement, then the parties shall negotiate
amendments in good faith to this agreement to the mutual satisfaction
of both parties to ameliorate the negative effects on Comcast of the
material alteration.
E.
No limitation on taxing or fee authority. Nothing in this section
or in this agreement shall be construed to limit the authority of
the Township to impose any tax, fee or assessment of general applicability.
Such taxes, fees or assessments shall be in addition to franchise
fees.
F.
Permits. Comcast shall apply to the Township for all generally applicable
required permits and shall not undertake any activities in the public
rights-of-way subject to a permit without receipt of such permit,
the issuance of which shall not be unreasonably withheld by the Township.
Comcast shall not be required to obtain permits for cable service
drops for individual subscribers or for servicing or installation
of pedestals or routine maintenance that does not disturb surface
grade or impact vehicular traffic. Comcast shall pay any and all required
permit fees.
G.
Reporting. In addition to the other reporting requirements contained
in this agreement, upon written request, Comcast shall provide the
following reports to the Township:
(1)
Subscriber complaint reports.
(a)
Within 30 days of a written request and no more than once per year, Comcast shall submit to the Township a report showing the number of complaints, as defined in § A260-2, that required a service call, originating from the Township and received during the previous twelve-month reporting period, the dates they were received, summary descriptions of the complaints, the dates the complaints were resolved and summary descriptions of the resolutions.
(b)
In addition, and upon written request, Comcast shall provide
a report containing at least the following statistical information
for the previous twelve-month period:
[1]
Number of repair service requests received;
[2]
Breakdown by type of complaint received (i.e., complete outage,
snowy picture, etc.);
[3]
Breakdown by cause of problem (i.e., subscriber equipment, drop/converter,
system, etc.);
[4]
Number of known service interruptions and the approximate length
of time of each such interruption.
(2)
Government reports. Comcast shall provide to the Township, upon written
request, copies of any and all communications, reports, documents,
pleadings and notifications of any kind which Comcast has submitted
to any federal, state or local regulatory agencies if such documents
relate specifically to Comcast's cable system within the Township.
Comcast shall provide copies of such documents no later than 30 days
after their request.
A.
Franchise fees. Comcast shall pay to the Township an amount equal
to 5% of the gross revenues derived from the operation of its cable
system to provide cable service in the Township. Comcast shall not
deduct or otherwise credit against the franchise fee any tax, fee
or assessment of general applicability, unless required by law. The
Township may amend the franchise fee upon written notice to Comcast,
provided that the franchise fee may not exceed the maximum percentage
permitted by law. A copy of the resolution or ordinance authorizing
the franchise fee rate adjustment by the Township shall accompany
such written notice. Any change in Comcast's franchise fee obligation
contained herein shall commence within 90 days from such written notice.
B.
Quarterly payments. Franchise fee payments to the Township under
this provision shall be computed at the end of each calendar quarter.
Such payments shall be made within 45 days following the end of each
of the first three calendar quarters and 60 days after the fourth
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 March 1 (for the
fourth quarter). In the event that any franchise fee payment is not
made on or before the date by which it is due, then interest calculated
at the then-current prime rate, as published by The Wall Street Journal,
shall be added to the amount of franchise fee revenue due to the Township.
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 Township may have for additional sums payable
under this agreement. Upon request and if mutually agreeable, Comcast
shall deposit the franchise fee payments electronically into an account
as designated by the Township.
C.
Quarterly reports. Within 10 days of each franchise fee payment described in § A260-7B above, Comcast shall provide a written report containing an accurate statement of Comcast's gross revenues received for cable services for each calendar quarter in connection with the operation of Comcast's cable system and showing the basis for the computation of fees. Specifically, the report shall contain line items for sources of revenue received and the amount of revenue received from each source. The report shall be verified by a financial representative of Comcast.
D.
Franchise fee review. Not more than twice during the franchise term,
the Township shall have the right to conduct a franchise fee review
or audit of Comcast's records reasonably related to the sources,
amounts and computation of gross revenues. Any such franchise fee
review or audit shall occur within 60 months from the date the Township
receives such payment, after which period any such payment shall be
considered final. Within 30 days of a written request, Comcast shall
provide the Township with copies of financial records related to the
franchise fee review or audit.
(1)
In the event of an alleged underpayment, the Township shall provide
Comcast with a written statement indicating the basis for the alleged
underpayment. If the franchise fee review or audit reveals that there
have been no underpayments, the Township shall provide written notice
to Comcast indicating that no underpayments were found and that the
franchise fee review is closed. Comcast shall have 30 days from the
receipt of the statement regarding an alleged underpayment to provide
the Township with any written objection to the results of the franchise
fee review, including any substantiating documentation. Based on this
exchange of information, the Township shall make a final determination
of the underpayment(s), if any, within 30 days of Comcast's objection
and shall provide Comcast with written notice of the determination.
If Comcast disputes the Township's final determination, it may
submit the dispute to mediation or arbitration within 30 days of receiving
the Township's written notice of determination. In the event
that Comcast fails to submit the matter to mediation or arbitration
within the required time period, the Township's final determination
shall be binding on Comcast.
(2)
Any franchise fee payment due to the Township as a result of the
franchise fee review shall be paid to the Township by Comcast within
45 days from the date the Township notifies Comcast of its final determination,
or if the matter is submitted to mediation or litigation, within 45
days from the final disposition of such action. If the franchise fee
review shows that franchise fees have been underpaid, then Comcast
shall pay the underpaid amount plus interest from the due date equal
to the then-current prime rate of interest as published in The Wall
Street Journal on the underpayment amount. If franchise fees have
been underpaid by 5% or more, then Comcast shall also pay up to $3,000
of documented out-of-pocket costs of the franchise fee review. Any
entity employed by the Township that performs an audit or franchise
fee review shall not be permitted to be compensated on a success-based
formula, e.g., payment based upon underpayment of fees, if any.
E.
Bundled services. All revenue earned from bundled services shall
be allocated to cable service and non-cable service in accordance
with generally accepted accounting principles (GAAP). It is understood
that in some cases equipment and other nonservice charges may be allocated
at full retail price due to requirements related to sales taxes or
similar tax requirements. To the extent such allocations are discretionary
or otherwise not addressed by GAAP, allocations of revenue from such
bundles shall not be structured for the purpose of evading franchise
fees applicable to cable services.
A.
Services to community facilities.
(1)
Comcast shall provide a cable service drop and basic service with
any necessary cable box to one outlet at each public building listed
in Exhibit A.[1] In accordance with applicable law, Comcast will charge
the fair market value for each such account, which fair market value
shall match the then-current rate card for the level of service provided.
Comcast shall notify the Township in writing regarding the amount
of the monthly service fee for each account based on fair market value.
The Township shall then notify Comcast, within 30 days of receiving
the notice from Comcast, whether it wishes the amount due each month
to be invoiced for payment or deducted from the next franchise fee
payment. The Township may upgrade the level of cable service received
at then-current rate card prices for the higher level of service.
The Township may also elect in writing not to receive the service,
in which case it will not be invoiced and no deduction will be taken
from the franchise fee.
[1]
Editor's Note: Exhibit A is on file in the Township offices.
(2)
In the event the FCC's 2019 Third Report and Order, In the Matter
of Implementation of Section 621(a)(1) of the Cable Communications
Policy Act, is reversed on appeal as to the issue of complimentary
cable services as in-kind contributions in a cable franchise and such
result becomes final within 30 days of the result becoming final,
Comcast will discontinue the charge for basic service for the public
building locations listed in Exhibit A and provide such service on
a complimentary basis. Any additional levels of cable service, outlets,
or service locations ordered by the Township shall continue to be
subject to standard rates.
(3)
During the term of the franchise, the Township may change a public
building location listed in Exhibit A upon 90 days' written notice
to Comcast, provided that the new location is within 125 feet of existing
Comcast cable distribution plant.
B.
Educational and governmental (EG) channel.
(1)
Comcast shall continue to provide to the Township the use of two
educational and governmental ("EG") access channels in accordance
with Section 611 of the Cable Act. Such EG channels shall be shared
among the CACC communities and used for community programming related
to educational and/or governmental activities. The Township shall
have complete control over the content, scheduling, administration
and all other programming aspects of the EG channels, and may delegate
such functions, or a portion of such functions, to a designated access
provider. Comcast shall not exercise any editorial control over EG
channel programming. Comcast shall cablecast the activated EG channels
so that they may be received by all comcast subscribers in the Township.
(2)
To enable the Township to utilize the EG channel, Comcast shall continue
to maintain direct fiber links, including activation equipment capable
of transmitting high-quality video and audio between the video origination
location and the Comcast headend such that live programming can originate
from this selected location and be distributed via the cable system
to subscribers in the Township. This fiber link and equipment shall
be collectively known as the "return line." Comcast shall determine
the engineering solution necessary to allow distribution of the EG
channel programming, via the cable system, to subscribers in the Township.
(3)
Comcast shall be responsible for maintaining the return line(s) to
the origination site(s) of the EG channel(s) so long as the Township
provides Comcast with access to such location and access to the EG
channel equipment within such locations. 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.
(4)
Any expenditure made in connection with the construction of the return
line shall be at the expense of the Township. The Township and Comcast
further agree that all costs incurred by Comcast for supporting such
EG channel, including any and all equipment, and EG capital support
grants may be designated as "costs of franchise requirements" or "external
costs" as defined by the FCC, and Comcast reserves its right to pass
these costs through to the subscribers pursuant to federal law.
(5)
The Township 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 EG channel. The Township and Comcast agree to
work cooperatively in implementing the EG channel through such means
and in such manner as shall be mutually satisfactory.
(6)
To enable the Township or its designee to utilize the EG access channels,
Comcast shall provide no more than 12 total remote origination points
["ROPs"] to the participating municipalities in the Centre Area Cable
Consortium ("CACC"). Comcast shall provide and install, at the cost
of the Township, within 180 days' written notice, cable and other
necessary signal distribution equipment such that live or tape playback
of programming can be originated from the selected locations and distributed
to subscribers through the designated access provider. Existing ROPs
are listed in Exhibit B.[2] The cost for additional ROPs or relocation of existing
ROPs shall be the responsibility of the Township.
[2]
Editor’s Note: Exhibit B is on file in the Township
offices.
(7)
HD access channel.
(a)
The Township may request one access channel in high definition
("HD") format when it demonstrates that at least three hours per day,
five days per week of original, nonrepetitive EG programming is being
produced in HD.
(b)
Following written notice by the Township that the criteria in § A260-8B(7)(a) has been met, Comcast shall have 180 days to make available one HD access channel to be shared among the participating CACC communities and simultaneously carry the two shared SD access channels provided under § A260-8B(1). Comcast shall carry all components of the HD access channel signals provided by the designated access provider, including, but not limited to, closed captioning, stereo audio and other elements associated with the programming. The designated access provider shall be responsible for providing the access channel signal in an HD format to the demarcation point at the designated point of origination for the access channel.
(c)
At the cost of the designated access provider or Township, Comcast
shall provide all necessary equipment, including HD encoders or its
equivalent, outside or inside the demarcation point at the designated
access provider channel origination point, at any ROP(s), and at its
headend and hubs or similar distribution facilities necessary to deliver
the access channel in HD format to subscribers. The Township shall
pay for the cost of any resulting upgrades to the return line(s).
The Township and Comcast agree that the costs for equipment or upgrades
to the return line qualify as a capital cost for PEG facilities within
the meaning of the Cable Act, 47 U.S.C.A. § 542(g)(2)(C),
and therefore is an appropriate use of revenues derived from the EG
capital grants provided for in this franchise.
(d)
Thirty-six months after the launch of an HD access channel,
Comcast shall have the right to reclaim one of the SD access channels.
(8)
Within 180 days of a written request by the Township, Comcast shall,
at the Township's expense, relocate the EG origination site and
the associated return line as follows: i) Comcast's obligation
shall be subject to the same terms and conditions that apply to the
original EG origination site in this section; and ii) the Township
shall provide access to such site at least 90 days prior to anticipated
use of the new EG origination site. The timeline for relocation of
the EG origination site shall be subject to the timely granting of
any and all required permits, walk-out, make-ready, and the detection
of all underground utilities.
(9)
In the event the Township or its designee does not program any EG
channel, Comcast may request the use of this channel subject to written
approval by the Township. If the Township approves Comcast's
use of an EG channel and, subsequent to such approval, the Township
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 Township that it requires such channel
for educational and/or governmental use.
(10)
Comcast shall use its best efforts to maintain the channel assignments
for the current EG channel(s) as of the effective date. Notwithstanding
the foregoing, in the event that Comcast deems a change in any EG
channel assignment to be necessary and changes any channel assignment
in accordance with this section, Comcast shall comply with the following
requirements. Comcast shall provide the Township 30 days' advance
written notice of any change in EG channel assignments.
(11)
Interactive guide access. Comcast shall make available to the
Township or its designated access channel operator the third-party
vendor contact information necessary to participate in the interactive
channel guide carried on the cable system. It shall be the sole responsibility
of the access channel operator to provide the necessary program information
and descriptions to the channel guide vendor and to comply with all
requirements of such vendor. Any associated costs shall be borne by
the Township or its designee.
C.
EG capital grant.
(1)
Comcast shall pay an amount equal to 0.17% of the gross revenues
received from the operation of the cable system to provide cable service
in the franchise area to be used for capital expenses related to the
EG channels. The EG capital grant payments shall be made within 45
days following the end of each of the first three calendar quarters
and 60 days after the fourth calendar quarter. Specifically, payments
shall be made on or before May 15, August 15, November 15, and March
1.
(2)
At or after 60 months from the effective date of the franchise agreement,
the Township may request an increase of the EG capital grant up to
a total of 0.25% of the gross revenues received from the operation
of the cable system to provide cable service in the Township. Any
increase in EG capital grant must be approved by Township Board of
Supervisors at a public meeting. A copy of the resolution or ordinance
authorizing the increased EG capital grant by the Township shall accompany
written notice to Comcast of said increase. Comcast shall implement
any requested increase in the EG capital grant obligation within 90
days from such written request.
A.
Violations and opportunity to cure.
(1)
If the Township has reason to believe that Comcast violated any material
provision of this agreement, it shall notify Comcast in writing of
the nature of such violation and the section(s) of this agreement
that it believes has been violated and the details relating thereto.
The person providing such notice shall do so pursuant to the requisite
authority of the Township.
(2)
Comcast shall have 45 days to cure such violation after written notice
is received by taking reasonable steps to comply with the terms of
this agreement. If the nature of the violation is such that it cannot
be fully cured within 45 days, the period of time in which Comcast
must cure the violation shall be extended by the Township in writing
for such additional time necessary to complete the cure, provided
that Comcast shall have promptly commenced to cure and is taking reasonable
steps to complete the cure in the reasonable judgment of the Township.
(3)
If the violation has not been cured within the time period allowed under § A260-9A(2) and, in the Township's judgment, Comcast has not taken reasonable steps to cure the violation, then the Township may deem that Comcast is liable for liquidated damages and/or any other right or remedy in accordance with this § A260-9.
B.
Liquidated damages.
(1)
Because Comcast's failure to comply with the material terms of this agreement may result in harm to the Township and because it will be difficult to measure the extent of such injury, the Township may assess liquidated damages against Comcast in the amount of $250 per day for each day the violation continues, provided Comcast has had an opportunity to cure in accordance with § A260-9A(2). Such damages shall not be a substitute for specific performance by Comcast or legal action by the Township, but shall be in addition to such specific performance or legal action.
(2)
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 Township. Liquidated
damages may not be assessed for a time period exceeding 120 days per
violation. The Township may commence revocation proceedings and/or
initiate an action in law or equity in a court of competent jurisdiction
after the assessment of liquidated damages or in lieu of liquidated
damages. With respect to liquidated damages assessed, all similar
violations or failures resulting from the same factual events affecting
multiple subscribers shall be assessed as a single violation.
C.
Revocation.
(1)
In addition to the other rights, powers and remedies retained by
the Township under this agreement, the Township reserves the separate
and distinct right to revoke this franchise if:
(a)
It is demonstrated that Comcast practiced any fraud or deceit
upon the Township in the operation of its cable system or any other
activities pursuant to this agreement;
(b)
Comcast 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 § A260-4A;
(c)
Comcast 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 Comcast or occurs as a result of circumstances beyond its control or by reason of force majeure as defined in § A260-10A. Comcast 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
Township Board of Supervisors after an appropriate public hearing
that shall afford Comcast due process and full opportunity to be heard.
This shall include the ability to introduce evidence, to question
witnesses and to respond to any notice of grounds to terminate in
accordance with the standards of a fair hearing applicable to administrative
hearings in the Commonwealth of Pennsylvania. All notice requirements
shall be met by providing Comcast at least 30 days' prior written
notice (via certified mail, return receipt requested) of any public
hearing concerning the proposed revocation of this franchise. Such
notice shall state the grounds for revocation. The Township, after
a public hearing and upon finding the existence of grounds for revocation,
may either declare this franchise terminated or excuse such grounds
upon a showing by Comcast of mitigating circumstances or good cause
for the existence of such grounds. The Township shall issue such declaration
and finding within 30 days in a written decision which shall be sent
via certified or overnight mail to Comcast. If Comcast appeals such
determination to an appropriate court, the revocation shall be stayed.
D.
Performance bond.
(1)
Comcast shall obtain and maintain, throughout the term of this agreement, at its sole cost and expense, a performance bond with a surety company licensed to do business in the Commonwealth of Pennsylvania to ensure Comcast's faithful performance of its obligations. The performance bond shall provide that the Township may recover from the principal and surety any and all liquidated damages and/or compensatory damages incurred by the Township for Comcast's violations of this agreement, after notice and opportunity to cure, in accordance with § A260-9A and B.
(2)
The performance bond shall be in the amount of $25,000. Comcast shall
not reduce, cancel or materially change said bond from the requirement
contained herein without the express prior written permission of the
Township.
E.
Insurance.
(1)
Comcast shall obtain and maintain, in full force and effect, at its
sole cost and expense, during the franchise term, the following minimum
insurance coverage with an insurance company that is authorized to
conduct business in Pennsylvania and which has an A.M. Best rating
(or equivalent) no less than A-minus VII, indemnifying the Township
from and against any and all claims for injury or damage to persons
or property, both real and personal, caused by the construction, installation,
reconstruction, operation, maintenance or removal of the cable system
by Comcast or any of its contractors, subcontractors, agents or employees
in the following amounts:
(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 shall be $1,000,000 combined single
limit per occurrence.
(2)
The Township, its officials and employees, shall be designated as additional insureds under each of the insurance policies required in this § A260-9E.
(3)
Comcast shall not cancel any required insurance policy without obtaining alternative insurance in conformance with this § A260-9E and without submitting insurance certificates to the Township verifying that Comcast has obtained such alternative insurance. Comcast shall provide the Township with at least 30 days' prior written notice in the event the policies are canceled or not renewed.
(4)
Comcast shall deliver to the Township certificates of insurance showing
evidence of the required coverage within 30 days of a written request
by the Township.
F.
Indemnification. Comcast shall indemnify, defend, save and hold harmless
the Township, its elected and appointed officials, officers, agents
and employees acting in their official capacities, from claims for
injury, loss, liability, cost or expense arising in whole or in part
from, caused by or connected with any act or omission of Comcast,
its officers, agents, contractors, subcontractors or employees, arising
out of, but not limited to, the construction, installation, upgrade,
reconstruction, operation, maintenance or removal of the cable system.
The Township shall give Comcast timely written notice of its obligation
to indemnify and defend the Township. The obligation to indemnify,
defend, save and hold the Township harmless shall include, but not
be limited to, the obligation to pay judgments, injuries, liabilities,
damages, penalties, and reasonable attorneys' fees. If the Township
determines that it is necessary for it to employ separate counsel,
in addition to that provided by Comcast, the cost for such separate
counsel shall be the responsibility of the Township. Comcast shall
not indemnify the Township for any claims resulting from acts of willful
misconduct or negligence on the part of the Township.
A.
Force majeure. If, for any reason of force majeure, Comcast is unable
in whole or in part to carry out its obligations hereunder, Comcast
shall not be deemed in violation of this agreement during the continuance
of such inability. Comcast shall notify the Township within 90 days
if a condition of force majeure causes an inability to complete a
project otherwise meeting the density and other requirements in this
agreement.
B.
Removal of system.
(1)
Upon lawful termination or revocation of this agreement, Comcast
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 reasonably
restore the areas to their original condition. If such removal is
not completed within six months of such lawful termination or revocation,
the Township or property owner may deem any property not removed as
having been abandoned and the Township may remove it at Comcast's
cost.
(2)
During the term of the Agreement, if Comcast decides to abandon
or no longer use all or part of its cable system, it shall give the
Township written notice of its intent at least 90 days prior to the
announcement of such decision, which notice shall describe the property
and its location. Upon Comcast's abandonment of the cable system,
the Township shall have the right to either require Comcast to remove
the property or remove the property itself and charge Comcast with
the reasonable costs related thereto.
(3)
Notwithstanding the above, Comcast shall not be required to
remove its cable system, or to relocate the 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
Comcast from providing cable services, if the cable system is actively
being used to facilitate any other services not governed by the Cable
Act.
C.
Notices.
(1)
Every notice or payment to be served upon or made to the Township
shall be either by hand delivery or first-class mail, registered or
certified, return receipt requested, postage prepaid, or by reputable
overnight courier service or electronic mail and addressed to:
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Halfmoon Township
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1948 Halfmoon Valley Road
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Port Matilda, PA 16870
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Attention: Township Manager
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(2)
Every legal notice to be served upon or made to the Township
shall, in addition to the notice address above, also be delivered
or mailed as described above to:
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Cohen Law Group
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413 S. Main Street
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Pittsburgh, PA 15215
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(3)
The Township may specify any change of address in writing to
Comcast. Every notice to be served upon or made to Comcast shall be
either by hand delivery or first-class mail, registered or certified,
return receipt requested, postage prepaid, or by reputable overnight
courier service or electronic mail and addressed to:
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Comcast of Colorado/Pennsylvania/West Virginia, LLC
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15 Summit Park Drive
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Pittsburgh, PA 15275
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Attention: VP, Government Affairs Department
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With copies to:
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One Comcast Center
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1701 John F. Kennedy Boulevard
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Philadelphia, PA 19103-2838
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Attention: Legal Department/Franchise
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and
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Comcast
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Northeast Division
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676 Island Pond Road
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Manchester, NH 03109
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Attention: Government Affairs Department
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(4)
Comcast may specify any changes of address in writing to the
Township. Each delivery to Comcast or the Township shall be equivalent
to direct personal notice, direction or order, and shall be deemed
to have been given at the time of receipt.
D.
Equal employment opportunity. Comcast 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; venue. This agreement shall be governed and construed
by and in accordance with the laws of the Commonwealth of Pennsylvania.
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 Centre, or in the United States
District Court for the Middle District of Pennsylvania.
G.
Transfer, assignment or change in control. No transfer of control
of Comcast of Colorado/Pennsylvania/West Virginia, LLC, defined as
an acquisition of 51% or greater direct ownership interest in Comcast
of Colorado/Pennsylvania/West Virginia, LLC, shall take place without
prior written notice to the Township. No notice shall be required,
however, for i) a transfer in trust, by mortgage, hypothecation, or
by assignment of any rights, title, or interest of Comcast of Colorado/Pennsylvania/West
Virginia, LLC, in the franchise or in the cable system in order to
secure indebtedness, or ii) a transfer to an entity directly or indirectly
owned or controlled by Comcast Corporation.
H.
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
Township and Comcast. This agreement supersedes all prior cable franchise
agreements or cable ordinances, or parts of cable franchise agreements
or cable ordinances, agreements, representations or understandings,
whether written or oral, of the parties regarding the subject matter
hereof that are in conflict with the provisions herein.
I.
Severability. If any section, provision or clause of this agreement
is held by a court of competent jurisdiction to be illegal, invalid
or unenforceable, or is pre-empted by federal or state laws or regulations,
such section, provision or clause shall be deemed to be separable
from the remaining portions of this agreement and shall not affect
the legality, validity or enforceability of the remaining portions
of this agreement.
J.
No waiver of rights.
(1)
No course of dealing between the Township and Comcast, nor any
delay on the part of the Township in exercising any rights hereunder,
shall operate as a waiver of any such rights of the Township or acquiescence
in the actions of Comcast in contravention of such rights, except
to the extent expressly waived by the Township.
(2)
No course of dealing between Comcast and the Township, nor any
delay on the part of Comcast in exercising any rights hereunder, shall
operate as a waiver of any such rights of Comcast or acquiescence
in the actions of the Township in contravention of such rights, except
to the extent expressly waived by Comcast.
K.
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 Township or Comcast may notify the other party of its desire to
amend this agreement in order to comply with the change in statute
or regulation. The Township and Comcast shall amend this agreement
to comply with such change in statute or regulation provided such
amendment is approved by the Township and Comcast.
L.
Compliance with laws. Comcast shall comply with all federal, state
and generally applicable local laws and regulations.
M.
No third-party beneficiaries. Nothing in this agreement is or was
intended to confer third-party beneficiary status on any person other
than the parties to this agreement to enforce the terms of this agreement.
N.
Applicability of agreement. All of the provisions in this agreement
shall bind Comcast, the Township and their respective successors and
assigns. This agreement is authorized by Ordinance No. 2019-08, dated
December 12, 2019, of the Township Board of Supervisors.
