Township of Cheltenham, PA Article XVIII Enforcement and Termination of Franchise

§ A301-82 Notice of noncompliance.

If at any time LFA believes that franchisee has not complied with the terms of the agreement, LFA shall informally discuss the matter with franchisee. If these discussions do not lead to resolution of the problem in a reasonable time, LFA shall notify franchisee in writing of the nature of the alleged noncompliance (for purposes of this article, "noncompliance notice"). If LFA does not notify franchisee of any alleged noncompliance, it shall not operate as a waiver of any rights of LFA hereunder or pursuant to applicable law.

§ A301-83 Franchisee's right to cure or respond.

A. Franchisee shall have 30 days from receipt of the noncompliance notice to:

(1) Respond to LFA, if franchisee contests (in whole or in part) the assertion of noncompliance;

(2) Cure such noncompliance; or

(3) In the event that, by its nature, such noncompliance cannot be cured within such thirty-day period, initiate reasonable steps to remedy such noncompliance and diligently pursue such remedy to completion and notify LFA of the steps being taken and the date by which they are projected to be completed.

B. Upon cure of any noncompliance, LFA shall provide written confirmation that such cure has been effected.

§ A301-84 Public hearing.

In the event that franchisee fails to respond to the noncompliance notice pursuant to the procedures required by this article, or in the event that the alleged noncompliance is not remedied within 30 days or the date projected pursuant to § A301-83A(3) above, if LFA seeks to continue its investigation into the alleged noncompliance, then franchisee may request a public hearing. If such a hearing is scheduled, LFA shall provide franchisee at least 30 days' prior written notice of such public hearing, which will specify the time, place, and purpose of such public hearing, and provide franchisee the opportunity to be heard.

§ A301-85 Liquidated damages.

After the time period set forth in § § A301-83 and A301-84 above, in the event that LFA finds that an alleged noncompliance continues to exists and that franchisee has not corrected the same in a satisfactory manner or has not diligently commenced correction of such violation, franchisee agrees that LFA may recover liquidated damages from franchisee in the amounts set forth below following the notice and opportunity to cure provisions set forth in § § A301-82 and A301-83 above; provided, however, that if franchisee disputes the assessment of any liquidated damages hereunder, franchisee may request and LFA agrees to schedule a public hearing with regard to such dispute. Following the notice and opportunity to cure periods in § § A301-82 and A301-83 above, LFA shall provide franchisee with written notice that it intends to elect the liquidated damage remedies set forth herein. If LFA elects to recover liquidated damages for any item set forth in this § A301-85 (including customer service violations), LFA agrees that such recovery shall be its exclusive remedy for the time period in which liquidated damages are assessed; provided, however, once LFA has ceased to assess its liquidated damages remedy as set forth in Subsection B, it may pursue other available remedies.

A. Pursuant to § A301-83, the following monetary damages shall apply:

(1) For failure to provide cable service as set forth in § § A301-50 through A301-52: $100 per day for each day the violation continues.

(2) For failure to maintain the FCC technical standards as set forth in Article X: $100 per day for each day the violation continues.

(3) For failure to provide PEG services to the community specified in § A301-58 (contingent upon origination discussion): $100 per day for each day the violation continues.

(4) For failure to permit a franchise fee audit within 45 days of a request as set forth in § A301-62: $100 per day for each day the violation continues.

(5) For failure to provide LFA with any reports or records required by the agreement within the time period required: $100 per day for each day the violation continues.

(6) For failure to meet customer service requirements with regard to § § A301-67, A301-68 and A301-69 of the customer service standards set forth in Article XIII: $300 for each quarter in which such standards were not met.

(7) For failure to carry the insurance specified in § A301-77: $100 per day for each day the violation continues.

(8) For a transfer specified in Article XVII without required approval: $100 per day for each day the violation continues.

(9) For failure to obtain or maintain a performance bond specified in § A301-86: $100 per day for each day the violation continues.

B. The amount of all liquidated damages per annum shall not exceed $12,000 in the aggregate. All similar violations or failures from the same factual events affecting multiple subscribers shall be assessed as a single violation, and a violation or a failure may only be assessed under any one of the above-referenced categories. Violations or failures shall not be deemed to have occurred or commenced until they are not cured as provided in Article XVIII.

C. Notwithstanding any provision in this agreement to the contrary, LFA is not entitled to assess liquidated damages for any violations of this agreement unless all cable operators in the Township are required to comply with, at a minimum, the material provisions of Article XVIII.

§ A301-86 Performance bond.

A. Prior to the service date, franchisee shall provide to LFA security for the performance of its obligations under this agreement in the amount of $25,000. The form of this security may, at franchisee's option, be a performance bond, letter of credit, cash deposit, cashier's check, or any other security acceptable to LFA.

B. If franchisee posts a performance bond, it shall be substantially in the form of Exhibit D.[1]

[1] Editor's Note: Exhibit D is included at the end of this chapter.

C. In the event that a performance bond provided pursuant to the agreement is not renewed or is canceled, franchisee shall provide new security pursuant to this article within 30 days of such cancellation or failure to renew.

D. Neither cancellation, nor termination, nor refusal by surety to extend the bond, nor inability of principal to file a replacement bond or replacement security for its obligations, shall constitute a loss to LFA recoverable under the bond.

E. Notwithstanding any provision in this agreement to the contrary, franchisee shall not be required to maintain a performance bond unless all other cable operators providing cable service in the Borough are also required to maintain a performance bond of the same or greater amount.

§ A301-87 Revocation.

Should LFA seek to revoke this agreement after following the procedures set forth above in this article, including any public hearing described in § A301-84, and LFA chooses not to impose liquidated damages or ceases to impose liquidated damages, LFA shall give written notice to franchisee of such intent. The notice shall set forth the specific nature of the noncompliance. Franchisee shall have 60 days from receipt of such notice to object in writing and to state its reasons for such objection. In the event LFA has not received a satisfactory response from franchisee, it may then seek termination of the agreement at a second public hearing. LFA shall cause to be served upon franchisee, 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 revoke the agreement.

A. At the designated public hearing, Franchisee shall be provided a fair opportunity for full participation, including the rights to be represented by legal counsel, to introduce relevant evidence, to require the production of evidence, to compel the relevant testimony of the officials, agents, or employees of LFA, to compel the testimony of other persons as permitted by law, and to question and/or cross examine witnesses. A complete verbatim record and transcript shall be made of such hearing.

B. Following the public hearing(s), franchisee shall be provided up to 30 days to submit its proposed findings and conclusions to LFA in writing, and thereafter LFA shall determine whether an event of default has occurred under this agreement; whether such event of default is excusable; and whether such event of default has been cured by franchisee. LFA shall also determine whether it will revoke the franchise based on the information presented or, where applicable, grant additional time to franchisee to effect any cure. If LFA determines that it will revoke the franchise, LFA shall promptly provide franchisee with a written determination setting forth LFA's reasoning for such revocation. Franchisee may appeal such written determination of LFA to an appropriate court of competent jurisdiction, which shall have the power to review the decision of LFA de novo to the extent permitted by law. Franchisee shall be entitled to such relief as the court finds appropriate. Such appeal must be taken within 60 days, to the extent permitted by law, of franchisee's receipt of the written determination of LFA.

C. LFA may, at its sole discretion, take any lawful action that it deems appropriate to enforce LFA's rights under the agreement in lieu of revocation of the franchise.

§ A301-88 Franchisee termination.

Franchisee shall have the right to terminate this franchise and all obligations hereunder within 90 days after the end of three years from the service date of this franchise, if at the end of such three-year period franchisee does not then in good faith believe it has achieved a commercially reasonable level of subscriber penetration on its cable system making it commercially impracticable for franchisee to continue the provision of cable service in the Township. Franchisee may consider subscriber penetration levels outside the franchise area in this determination. Notice to terminate under this § A301-88 shall be given to LFA in writing, with such termination to take effect no sooner than 120 days after giving such notice. Franchisee shall also be required to give its then current subscribers not less than 90 days prior written notice of its intent to cease cable service operations.