Borough of Millersville, PA Chapter A390 Cable Television Franchise

[HISTORY: Adopted by the Borough Council of the Borough of Millersville 5-26-2020 by Ord. No. 2020-02.[1] Amendments noted where applicable.]

[1] Editor's Note: This ordinance superseded former Ch. A390, Cable Television Franchise, adopted 6-27-2006 by Ord. No. 2006-1.

§ A390-1 Definitions.

The following terms used in this franchise shall have the following meanings:

AFFILIATED ENTITY

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 Southeast Pennsylvania, 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.

BASIC SERVICE

The service tier that includes at least the retransmission of local broadcast television signals.

CABLE ACT

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.

CABLE SERVICE or SERVICE

The one-way transmission to subscribers of video programming or other programming service and subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service.

CABLE SYSTEM or SYSTEM

A facility, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment, that is designed to provide cable service, which includes video programming and which is provided to multiple subscribers within the Borough, 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.

CHANNEL

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.

COMMUNICATIONS ACT

The federal Communications Act of 1934, as amended, and as it may, from time to time, be further amended.

COMPLAINT

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.

DROP

The coaxial or fiber optic or other cable that connects a home or building to the cable system.

EDUCATIONAL AND GOVERNMENTAL (EG) CHANNEL

An access channel that consists of local, educational and/or governmental programming.

EMERGENCY

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.

FCC

Federal Communications Commission.

FORCE MAJEURE

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.

FRANCHISE

The authorization granted by the Borough to construct, operate and maintain a cable system within the corporate limits of the Borough as embodied in the terms and conditions of this agreement.

FRANCHISE FEE

The fee that Comcast remits to the Borough pursuant to Section 622 of the Cable Act, 47 U.S.C. § 542, and § A390-6A of this agreement.

GROSS REVENUES

A. 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 Borough 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:

(1) Basic service fees;

(2) Fees charged to subscribers for any cable service tier other than basic service;

(3) Fees charged for premium cable services;

(4) Fees for all digital video tiers;

(5) Fees for video-on-demand;

(6) Fees charged to subscribers for any optional, per-channel or per-program cable services;

(7) Revenue from the provision of any other cable services;

(8) Charges for installation, additional outlets, relocation, disconnection, reconnection and change-in-service fees for cable service.

(9) Fees for changing any level of cable service programming;

(10) Fees for service calls pertaining to cable services;

(11) Inside wire maintenance fees for cable services;

(12) Service plan protection fees for cable services;

(13) Convenience fees;

(14) Early termination fees on cable services;

(15) Fees for leased access channels;

(16) Charges based on the sale or lease of any portion of the cable system for cable service;

(17) Rental or sales of any and all equipment, including converters and remote control devices;

(18) Any and all locally derived advertising revenues;

(19) Revenues or commissions from locally derived home shopping channels;

(20) Broadcast retransmission fees;

(21) Regional sports fee;

(22) Late payment fees on cable services;

(23) Billing and collection fees on cable services;

(24) NSF check charges; and

(25) Franchise fees.

B. Gross revenue 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 Borough 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").

HD

High definition format.

LEASED ACCESS OR COMMERCIAL ACCESS CHANNEL

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.

MULTIPLE DWELLING UNITS or MDUs

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.

NORMAL BUSINESS HOURS

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.

NORMAL OPERATING CONDITIONS

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.

OUTLET

An interior receptacle that connects a television set to the cable system.

PROGRAMMING

Any video or audio signal carried over the cable system that is generally considered comparable to programming provided by a television broadcast station.

PUBLIC BUILDINGS

The Borough Building, police stations, fire companies, public works buildings, and water and sewer authorities. Public buildings shall not include buildings owned by the Borough 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.

PUBLIC RIGHTS-OF-WAY

The surface and the area across, in, over, along, under and upon the public streets, roads, lanes, avenues, alleys, sidewalks, bridges, highways and other rights-of-way, as the same now or may thereafter exist, which are under the jurisdiction or control of the Borough.

SERVICE INTERRUPTION

The loss of picture or sound on all cable service channels.

SUBSCRIBER

A person or entity who contracts with Comcast for, and lawfully receives, the video signals and cable services distributed by the cable system.

§ A390-2 Grant of franchise.

A. Grant of authority. Pursuant to the Cable Act, the regulations of the FCC and Pennsylvania law, the Borough hereby grants a nonexclusive and revocable franchise to Comcast. Subject to the terms and conditions contained herein, the Borough 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 Borough 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 Borough 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 Borough. Without waiving any of its rights, the Borough agrees that, to the extent any term of this agreement is inconsistent with the terms of any Borough cable franchise ordinance existing as of the effective date, this agreement shall control.

F. Competitive equity.

(1) Comcast acknowledges and agrees that the Borough reserves the right to grant one or more additional franchises to construct, operate, and maintain a cable system within the Borough.

(2) The franchise granted to Comcast is nonexclusive; however, if the Borough 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 Borough 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 Borough proposing to serve subscribers within the Borough, then the Borough shall notify Comcast in writing of the submission of the application.

§ A390-3 System construction, operation and maintenance.

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 Borough where the density requirements of Subsection B 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 Borough.

(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 Borough, 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 Borough, Comcast shall conduct a survey to determine the number of dwelling units in the requested area and shall inform the Borough 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 Borough has the authority to require Comcast to place wires and/or equipment underground, provided that the Borough 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 Borough 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 Borough 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 Subsection A.

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 § A390-5B herein, Comcast, upon written request by the Borough, shall perform applicable tests to determine compliance with FCC technical standards. Comcast shall provide a report to the Borough within 30 days of completion of a Borough-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 Borough 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 Borough 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 Borough 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 Borough having notified Comcast in writing of the restoration and repairs required, the Borough may cause proper restoration and repairs to be made, and the expense of such work shall be paid by Comcast upon demand by the Borough.

(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 Borough if required for the proper installation, operation and maintenance of such equipment, cable, or wires. Comcast shall promptly repair and restore any public or 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 Borough or any public utility serving the Borough.

(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 Borough, 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 Borough to view a complete set of Comcast service area strand maps of the Borough 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 Borough officials shall be at a mutually agreed time and location. Should the Borough wish to obtain such strand maps of the Borough 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 Borough and Comcast have executed a nondisclosure agreement as such maps are confidential and proprietary pursuant to § A390-5A of this agreement.

J. Disconnection and relocation.

(1) Comcast shall, at no cost to the Borough, 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 Borough 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 Borough 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 Borough, it shall be necessary, in the reasonable judgment of the Borough or its agent, to cut or move any of the wires, cable or equipment of the cable system, the Borough shall have the right to do so without cost or liability, provided that, wherever possible, the Borough 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 Borough 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 Borough for permission, with the exception of emergency situations as defined in § A390-1, and if permission is granted, shall perform such cutting and removal in accordance with the regulations of the Borough.

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 § A390-9A, 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.

§ A390-4 Subscriber service standards.

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 a historical record of complaints indicates a clear failure to comply. If the Borough determines, after receiving complaints itself and/or receiving a record of complaints made to Comcast in accordance with § A390-4E and/or § A390-5G(1), that there is a clear failure to comply with the telephone answering requirements above, the Borough shall notify Comcast in writing that it must measure its compliance with these requirements for the next three months and report to the Borough 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 Borough 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 Borough 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 Borough hereby requests that Comcast omit the Borough'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 Borough 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 Subsection E(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 the 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 the 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.

§ A390-5 Regulation by Borough.

A. Right to inspect and protection of proprietary information.

(1) The Borough 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 § A390-9C, 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 Borough 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 Borough or its designated representatives shall be treated as confidential by the Borough so long as it is permitted to do so under applicable law. Representatives and/or agents of the Borough 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 Borough. The Borough 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 Borough 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 Borough acting in their official capacity for information related to the franchise and marked by Comcast as confidential and/or proprietary, the Borough 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 Borough 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 Borough. Within 30 days of a written request, Comcast shall provide the Borough 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 Borough shall promptly inform Comcast in accordance with § A390-8A of any alleged noncompliance issues that result from the compliance review.

C. Reserved authority. The Borough 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 Borough'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 Borough 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 Borough'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 Borough 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 Borough 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 Borough. 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 Borough:

(1) Subscriber complaint reports.

(a) Within 30 days of a written request and no more than once per year, Comcast shall submit to the Borough a report showing the number of complaints, as defined in § A390-1, that required a service call, originating from the Borough 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 Borough, 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 Borough. Comcast shall provide copies of such documents no later than 30 days after their request.

§ A390-6 Compensation to Borough.

A. Franchise fees. Comcast shall pay to the Borough an amount equal to 5% of the gross revenues derived from the operation of its cable system to provide cable service in the Borough. Comcast shall not deduct or otherwise credit against the franchise fee any tax, fee or assessment of general applicability, unless required by law. The Borough 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 Borough 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 Borough 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 Borough. 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 Borough 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 Borough.

C. Quarterly reports. Within 10 days of each franchise fee payment described in Subsection B 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 Borough 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 Borough receives such payment, after which period any such payment shall be considered final. Within 30 days of a written request, Comcast shall provide the Borough with copies of financial records related to the franchise fee review or audit.

(1) In the event of an alleged underpayment, the Borough 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 Borough 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 Borough with any written objection to the results of the franchise fee review, including any substantiating documentation. Based on this exchange of information, the Borough 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 Borough's final determination, it may submit the dispute to mediation or arbitration within 30 days of receiving the Borough'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 Borough's final determination shall be binding on Comcast.

(2) Any franchise fee payment due to the Borough as a result of the franchise fee review shall be paid to the Borough by Comcast within 45 days from the date the Borough 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 Borough 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 non-service 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.

§ A390-7 Services to community.

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 Borough in writing regarding the amount of the monthly service fee for each account based on fair market value. The Borough 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 Borough may upgrade the level of cable service received at then-current rate card prices for the higher level of service. The Borough 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: Said exhibit is included as an attachment to this chapter.

(2) In the event the FCC's 2019 Third Report and Order In the Matter of Implementation of Section 621 of the Cable 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 Borough shall continue to be subject to standard rates.

(3) During the term of the franchise, the Borough 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 Borough the use of one or more educational and governmental ("EG") access channel(s) in accordance with Section 611 of the Cable Act. Such EG channel(s) shall be used for community programming related to educational and/or governmental activities. The Borough shall have complete control over the content, scheduling, administration and all other programming aspects of the EG channel(s), 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 channel(s) so that it (they) may be received by all Comcast subscribers in the Borough.

(2) To enable the Borough to utilize the EG channel(s), 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 Borough. 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(s) programming, via the cable system, to subscribers in the Borough.

(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 Borough 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 Borough. The Borough and Comcast further agree that all costs incurred by Comcast for supporting such EG channel, including any and all equipment, and EG 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 Borough 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 Borough and Comcast agree to work cooperatively in implementing the EG channel through such means and in such manner as shall be mutually satisfactory.

(6) Within 180 days of a written request by the Borough, Comcast shall, at the Borough'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 Borough 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.

(7) In the event the Borough or its designee does not program any EG channel, Comcast may request the use of this channel subject to written approval by the Borough. If the Borough approves Comcast's use of an EG channel and, subsequent to such approval, the Borough requests the utilization of the EG channel being programmed by Comcast, Comcast shall relinquish such use no later than 60 days after receipt of written notification from the Borough that it requires such channel for educational and/or governmental use.

(8) 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 Borough 30 days' advance written notice of any change in EG channel assignments.

C. EG capital grant. Comcast shall provide the Borough with a one-time EG capital grant to be used in support of the production of local EG channel programming. The Borough shall ensure the use of the EG capital grant is consistent with federal law. The EG grant provided by Comcast shall be in the amount of $11,226. Such grant is to be paid to the Borough within 90 days of the effective date of this agreement. Comcast and the Borough agree that the cost of such grant may be designated as a "cost of franchise requirements" or "external cost" as defined by the FCC, and Comcast reserves its right to pass these costs through to the subscribers over the entire term of the Agreement pursuant to federal law.

§ A390-8 Enforcement, insurance and indemnification.

A. Violations and opportunity to cure.

(1) If the Borough 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 Borough.

(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 Borough 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 Borough.

(3) If the violation has not been cured within the time period allowed under Subsection A(2) and, in the Borough's judgment, Comcast has not taken reasonable steps to cure the violation, then the Borough may deem that Comcast is liable for liquidated damages and/or any other right or remedy in accordance with this § A390-8.

B. Liquidated damages.

(1) Because Comcast's failure to comply with the material terms of this agreement may result in harm to the Borough and because it will be difficult to measure the extent of such injury, the Borough 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 Subsection A(2). Such damages shall not be a substitute for specific performance by Comcast or legal action by the Borough, 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 Borough. Liquidated damages may not be assessed for a time period exceeding 120 days per violation. The Borough 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 Borough under this agreement, the Borough reserves the separate and distinct right to revoke this franchise if:

(a) It is demonstrated that Comcast practiced any fraud or deceit upon the Borough 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 § A390-3A;

(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 § A390-9A. 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 Borough Council 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 Borough, 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 Borough 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 Borough may recover from the principal and surety any and all liquidated damages and/or compensatory damages incurred by the Borough for Comcast's violations of this agreement, after notice and opportunity to cure, in accordance with Subsections A 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 Borough.

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 Borough 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 Borough, its officials and employees, shall be designated as additional insureds under each of the insurance policies required in this Subsection E.

(3) Comcast shall not cancel any required insurance policy without obtaining alternative insurance in conformance with this Subsection E and without submitting insurance certificates to the Borough verifying that Comcast has obtained such alternative insurance. Comcast shall provide the Borough with at least 30 days' prior written notice in the event the policies are canceled or not renewed.

(4) Comcast shall deliver to the Borough certificates of insurance showing evidence of the required coverage within 30 days of a written request by the Borough.

F. Indemnification. Comcast shall indemnify, defend, save and hold harmless the Borough, 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 Borough shall give Comcast timely written notice of its obligation to indemnify and defend the Borough. The obligation to indemnify, defend, save and hold the Borough harmless shall include, but not be limited to, the obligation to pay judgments, injuries, liabilities, damages, penalties, and reasonable attorneys' fees. If the Borough 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 Borough. Comcast shall not indemnify the Borough for any claims resulting from acts of willful misconduct or negligence on the part of the Borough.

§ A390-9 Miscellaneous.

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 Borough 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 Borough or property owner may deem any property not removed as having been abandoned, and the Borough 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 Borough 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 Borough 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 Borough 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:

Millersville Borough

100 Municipal Drive

Millersville, PA 17551

Attention: Borough Manager

(2) Every legal notice to be served upon or made to the Borough shall, in addition to the notice address above, also be delivered or mailed as described above to:

Cohen Law Group

413 S. Main Street

Pittsburgh, PA 15215

(3) The Borough 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:

Comcast of Southeast Pennsylvania, LLC

15 Summit Park Drive

Pittsburgh, PA 15275

Attention: VP, Government Affairs Department

With copies to:

One Comcast Center

1701 John F. Kennedy Boulevard

Philadelphia, PA 19103-2838

Attention: Legal Department/Franchise

AND

Comcast

Northeast Division

676 Island Pond Road

Manchester, NH 03109

Attention: Government Affairs Department

(4) Comcast may specify any changes of address in writing to the Borough. Each delivery to Comcast or the Borough 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 Lancaster, or in the United States District Court for the Eastern District of Pennsylvania.

G. Transfer, assignment or change in control.

(1) Neither Comcast nor its parent nor any affiliated entity shall transfer, assign or otherwise encumber, through its own action or by operation of law, its right, title or interest in the cable system or in this agreement without the prior written consent of the Borough, provided that such consent shall not be unreasonably withheld.

(2) Neither Comcast nor its parent nor any affiliated entity shall change, transfer or assign, through its own action or by operation of law, its control of the cable system or of this agreement without the prior written consent of the Borough, provided that such consent shall not be unreasonably withheld.

(3) Neither Comcast nor its parent nor any affiliated entity shall sell, convey, transfer, exchange or release 51% or more of its direct ownership in the cable system without the prior written consent of the Borough, provided that such consent shall not be unreasonably withheld.

(4) No such consent shall be required for i) a transfer in trust, by mortgage, hypothecation, or by assignment to a financial institution of any rights, title or interest of Comcast in the franchise or in the cable system in order to secure indebtedness; or ii) a transfer to an entity owned and/or controlled by Comcast.

(5) Comcast shall make written application to the Borough of any transfer, assignment or change in control as described above and shall provide all information required by FCC Form 394 and any other applicable federal, state, and local statutes and regulations regarding transfer or assignment. The Borough shall have 30 days from the receipt of FCC Form 394 to notify Comcast of any additional information it needs to make an informed decision on the transfer or assignment. The Borough shall have 120 days from the receipt of all required information to take action on the transfer or assignment.

(6) Any consent by the Borough for any transfer or assignment described above shall not be effective until the proposed transferee or assignee shall have executed a legally binding document stating that it shall be bound by all the terms and conditions contained in this agreement.

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 Borough 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 Borough and Comcast, nor any delay on the part of the Borough in exercising any rights hereunder, shall operate as a waiver of any such rights of the Borough or acquiescence in the actions of Comcast in contravention of such rights, except to the extent expressly waived by the Borough.

(2) No course of dealing between Comcast and the Borough, 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 Borough 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 Borough 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 Borough and Comcast shall amend this agreement to comply with such change in statute or regulation, provided such amendment is approved by the Borough 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 Borough and their respective successors and assigns. This agreement is authorized by Ordinance No. 2020-02 dated May 26, 2020, of the Borough Council.