[HISTORY: Adopted by the Board of Supervisors
of the Township of Lower Makefield as indicated in article histories.
(Former Ch. A206, Cable Television Franchise, adopted 2-22-1988 by Ord. No.
227, was removed as the franchise has expired.)
Amendments noted where applicable.]
[Adopted 12-1-2021 by Ord. No. 427[1]]
[1]
Editor's Note: This ordinance superseded former Art. I, Comcast
of Levittown, Inc., adopted 12-2-2005 by Ord. No. 357.
The Township Board of Supervisors does hereby approve the agreement
negotiated with Comcast, including all of the terms and conditions
contained therein, and does hereby authorize the execution of such
agreement. A copy of the agreement is attached hereto as Exhibit A.[1]
[1]
Editor's Note: Exhibit A is included as Attachment 2 of this
chapter.
All ordinances inconsistent with the attached cable franchise
agreement by and between the Township of Lower Makefield and Comcast
of Levittown, LLC, are hereby repealed.
If any section, subsection, sentence, clause, phrase or word
of this article is for any reason held invalid or unconstitutional
by any court of competent jurisdiction, such portion shall be deemed
a separate, distinct and independent provision, and such holding shall
not render this article invalid.
This article shall become effective as provided
by law.
[Adopted 11-15-2006 by Ord. No. 367]
A.
This cable franchise agreement (the "Franchise" or
"Agreement") is entered into by and between the Township of Lower
Makefield, Bucks County, Pennsylvania, a political subdivision of
the Commonwealth of Pennsylvania (the "Local Franchising Authority"
or "LFA") and Verizon Pennsylvania Inc., a corporation duly organized
under the applicable laws of the Commonwealth of Pennsylvania (the
"Franchisee").
B.
Whereas, the Franchisee is upgrading its existing
telecommunications system under Title II of the Communications Act
(See 47 U.S.C. § 201 et seq.) and is applying for a nonexclusive
cable franchise agreement from LFA to operate a cable system under
Title VI of the Communications Act (See 47 U.S.C. § 521
et seq.);
C.
Whereas, the LFA wishes to grant the Franchisee a
nonexclusive franchise to construct, install, maintain, extend, and
operate a cable system in the LFA as designated in this franchise;
D.
Whereas, the Franchisee is a cable operator and the
LFA is a local franchising authority in accordance with Title VI of
the Communications Act [See 47 U.S.C. §§ 522(5), (10)]
and the LFA is authorized to grant one or more nonexclusive cable
franchises pursuant to applicable law;
E.
Whereas, the Franchisee is in the process of installing
a fiber to the premise telecommunications network ("FTTP network")
in the LFA pursuant to authority granted by the Commonwealth of Pennsylvania;
F.
Whereas, the FTTP network will occupy the public rights-of-way
within the LFA, and the Franchisee desires to use portions of the
FTTP network once installed to provide cable services in the LFA;
G.
Whereas, the LFA has considered the financial, technical,
and legal qualifications of the Franchisee, and has determined that
the Franchisee's plans for its cable system are adequate;
H.
Whereas, the LFA desires to protect and manage the
public rights-of-way, require high standards of customer service,
receive financial compensation for the Franchisee's use of the public
rights-of-way as provided by federal law, obtain complimentary services
for its public buildings, obtain public, educational and governmental
channels, establish certain reporting requirements, and provide for
the future cable-related needs of its residents;
I.
Whereas, the LFA has determined the Franchisee to
be financially, technically and legally qualified to operate the cable
system to provide cable services;
J.
Whereas, the LFA has determined that the grant of
a nonexclusive franchise to the franchisee is consistent with the
public interest; and
K.
Whereas, the LFA and the Franchisee have reached agreement
on the terms and conditions set forth herein and the parties have
agreed to be bound by those terms and conditions.
L.
Now, therefore, in consideration of the LFA's grant
of a franchise to the franchisee, the franchisee's promise to provide
cable service to residents of the franchise/service area of the LFA
pursuant to and consistent with the Communications Act (as hereinafter
defined), pursuant to the terms and conditions set forth herein, the
promises and undertakings herein, and other good and valuable consideration,
the receipt and the adequacy of which are hereby acknowledged:
Except as otherwise provided herein, the definitions
and word usages set forth in the Communications Act are incorporated
herein and shall apply in this agreement. In addition, the following
definitions shall apply:
A video channel that the franchisee shall make available
to the LFA without charge for public, educational or governmental
use for the transmission of video programming as directed by the LFA.
Any such portion of the service area added pursuant to § A206-25A(4) of this agreement.
A person with:
A direct or indirect ownership interest in the
subject entity of 5% or more or controls such interest, including
all forms of ownership such as general, limited, or other partnership
interests, direct ownership interests, limited liability companies
and other forms of business organizations and entities but, not including
corporations; or
A stock interest in the subject entity where
the subject entity is a corporation and such stockholder or its nominee
is an officer or director of the franchisee or who directly or indirectly
owns or controls 5% or more of the outstanding stock, whether voting
or nonvoting; and any person that, directly or indirectly, owns or
controls, is owned or controlled by, or is under common ownership
or control with such person.
Any service tier that includes the retransmission of local
television broadcast signals as well as the PEG channels required
by this franchise.
As defined under Section 602 of the Communications Act, 47
U.S.C. § 522(6) as now or hereafter amended.
As defined under Section 602 of the Communications Act, 47
U.S.C. § 522(6), which currently states "The one-way transmission
to subscribers of video programming or other programming service,
and subscriber interaction, if any, which is required for the selection
or use of such video programming or other programming service."
As defined under Section 602 of the Communications Act, 47
U.S.C. § 522(7), which currently states “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 a community, but such term does not
include (A) a facility that serves only to retransmit the television
signals of one or more television broadcast stations; (B) a facility
that serves subscribers without using any public rights-of-way; (C)
a facility of a common carrier which is subject, in whole or in part,
to the provisions of Title II of this Act, except that such facility
shall be considered a cable system [other than for purposes of Section
621(c)] to the extent such facility is used in the transmission of
video programming directly to subscribers, unless the extent of such
use is solely to provide interactive on-demand services; (D) an open
video system that complies with Section 653 of this title; or (E)
any facilities of any electric utility used solely for operating its
electric utility systems.” The franchisee's and its affiliates'
cable system shall be limited to the optical spectrum wavelength(s),
bandwidth, or future technological capacity that is used for the transmission
of cable services directly to subscribers within the LFA and shall
not include the tangible network facilities of a common carrier subject
in whole or in part to Title II of the Communications Act or of an
information services provider.
As defined under Section 602 of the Communications Act, 47
U.S.C. § 522(4), which currently states “A portion
of the electromagnetic frequency spectrum which is used in a cable
system and which is capable of delivering a television channel (as
television channel is defined by the FCC by regulation).”
The Communications Act of 1934, as amended.
Any written communication by a subscriber expressing dissatisfaction
about any aspect of the franchisee's operation of the cable system
or the Franchisee's cable operations in the LFA.
The ability to exercise de facto or de jure control over
day-to-day policies and operations or the management of the franchisee's
affairs.
An access channel available for the use of the local schools
in the franchise area.
November 1, 2006, the date this agreement becomes effective.
Any such portion of the service area as described in § A206-25A(3) of this agreement and as shown in Exhibit B.[1]
The United States Federal Communications Commission, or successor
governmental entity thereto.
An event or events reasonably beyond the ability of the Franchisee
to anticipate and control. This includes, but is not limited to, severe
or unusual weather conditions, labor strikes, lockouts, war or act
of war (whether an actual declaration of war is made or not), insurrection,
riots, act of public enemy, including terrorist attacks, orders of
the government of the United States or the Commonwealth of Pennsylvania,
actions or inactions of any government instrumentality or public utility
other than the franchisee, including condemnation to the extent such
actions are unforeseeable, accidents for which the Franchisee is not
responsible, fire, flood, or other acts of God, or work delays caused
by waiting for utility providers to service or monitor utility poles
to which the franchisee's FTTP network is attached, and the unavailability
of materials and/or qualified labor to perform the work necessary
to the extent that such unavailability of materials and/or qualified
labor was reasonably beyond the ability of the franchisee to foresee
or control.
The initial authorization, or renewal thereof, issued by
the LFA, whether such authorization is designated as a franchise,
permit, license, resolution, contract, certificate, ordinance or otherwise,
which authorizes construction and operation of the cable system for
the purpose of offering cable service to subscribers in the franchise
area.
The incorporated municipal boundaries (entire territorial
limits) of the LFA and such additional areas as may be included in
the corporate (territorial) limits of the LFA during the term of this
franchise.
Verizon Pennsylvania Inc., and its lawful and permitted successors,
assigns and transferees.
The franchisee's telecommunications facilities in the franchise
area as upgraded with fiber optic technology and other improvements
pursuant to Pennsylvania law.
An access channel available for the use of the LFA for governmental
purposes.
All revenue, as determined in accordance with
generally accepted accounting principles, which is received by the
franchisee and its affiliates from the operation of the cable system
to provide cable service in the LFA, including:
Fees charged for basic service;
Fees charged to subscribers for any service
tier other than basic service;
Fees charged for premium services, e.g. HBO,
Cinemax, or Showtime;
Fees charged to subscribers for any optional,
per-channel, or per-program services;
Revenue from the provision of any other cable
services;
Charges for installation, additional outlets,
relocation, disconnection, reconnection and change-in-service fees
for video programming;
Fees for downgrading any level of cable service
programming;
Fees for service calls;
Fees for leasing of channels;
Rental of customer equipment, including converters
and remote control devices;
Fees for digital video recorders;
Advertising revenues as set forth herein;
Revenue from the sale or rental of subscriber
lists;
Revenues or commissions received from the carriage of home shopping channels subject to Subsection C(5) below;
Fees for any and all music services that are
deemed to be a cable service over a cable system;
Revenue from the sales of program guides;
Late payment fees;
NSF check charges;
Franchise fees for the provision of cable service
over the cable system in the LFA;
Fees for video on demand, and any revenues received
by the franchisee for carrying infomercials over its cable system;
and
Forgone revenue that the franchisee chooses
not to receive in exchange for trades, barters, services, or other
items of value.
Advertising commissions paid to independent
third parties shall not be deducted from advertising revenue included
in gross revenue. Advertising revenue is based upon the ratio of the
number of subscribers as of the last day of the period for which gross
revenue is being calculated to the number of the franchisee's subscribers
within all areas covered by the particular advertising source as of
the last day of such period, e.g., the franchisee sells two ads: Ad
A is broadcast nationwide; Ad B is broadcast only within Pennsylvania.
The franchisee has 100 subscribers in the LFA, 500 subscribers in
Pennsylvania, and 1,000 subscribers nationwide. Gross revenue as to
the LFA from Ad A is 10% of the franchisee's revenue therefrom. Gross
revenue as to the LFA from Ad B is 20% of the Franchisee's revenue.
Gross revenue shall not include:
Revenues received from the franchisee by any
affiliate or person other than the franchisee in exchange for supplying
goods or services used by the Franchisee to provide cable service
over the cable system in the LFA.
Bad debts written off by the franchisee in the
normal course of its business; provided, however, that bad debt recoveries
shall be included in gross revenue during the period collected;
Refunds, rebates or discounts made to subscribers
or other third parties;
Any revenues classified, in whole or in part,
as noncable services revenue under federal or state law, including,
without limitation, revenue received from telecommunications services;
revenue received from information services, including, without limitation,
Internet access service, electronic mail service, electronic bulletin
board service, or similar online computer services; charges made to
the public for commercial or cable television that is used for two-way
communications that are not cable services; and any other revenues
attributed to noncable services in accordance with applicable federal
and state laws or regulations;
Any revenue of the franchisee or any other person
that is received directly from the sale of merchandise through any
cable service distributed over the cable system, notwithstanding that
portion of such revenue which represents or can be attributed to a
subscriber fee or a payment for the use of the cable system for the
sale of such merchandise, which portion shall be included in gross
revenue;
The resale of cable services on the cable system
for which the purchaser is required to collect cable franchise fees
from the purchaser's customer;
The imputed value of the provision of cable
services to customers on a complimentary basis, including, without
limitation, the provision of cable services to public institutions
as required or permitted herein;
Any tax of general applicability imposed upon
franchisee or upon subscribers by a city, state, federal, or any other
governmental entity and required to be collected by the franchisee
and remitted to the taxing entity (including, but not limited to,
sales/use tax, gross receipts tax, excise tax, utility users tax,
public service tax, communication taxes, and noncable services revenue);
Any forgone revenue that the franchisee chooses
not to receive in exchange for its provision of free or reduced cost
cable or other communications services to any person, including without
limitation, employees of the franchisee and public institutions or
other institutions designated in the franchise; provided, however,
that such foregone revenue that the franchisee chooses not to receive
in exchange for trades, barters, services, or other items of value
shall be included in gross revenue;
Sales of capital assets or sales of surplus
equipment that are not deemed to be a cable service;
Program launch fees;
Directory or Internet advertising revenue, including,
but not limited to, yellow page, white page, banner advertisement
and electronic publishing;
Amounts paid as the PEG grant designated amount.
As defined under Section 3 of the Communications Act, 47
U.S.C. § 153(20).
Any such portion of the service area as described in § A206-25A(1) of this Agreement and as shown in Exhibit B.[2]
Dial-up or broadband access service that enables subscribers
to access the Internet.
Any LFA ordinance enacted by the governing body of the LFA
related to the provision of cable service.
The Township of Lower Makefield or the lawful successor,
transferee, or assignee thereof, including the incorporated area (entire
existing territorial limits) of the LFA and such additional areas
as may be included in the corporate (territorial) limits of the LFA
during the term of this franchise.
Any service that is not a cable service over the cable system
as defined herein.
Those hours during which most similar businesses in the community
are open to serve customers. In all cases, normal business hours must
include some evening hours at least one night per week and/or some
weekend hours. See CFR 76.309(c)(4)(i).
Those service conditions that are within the control of the
franchisee. Those conditions that are not within the control of the
franchisee include, but are not limited to, natural disasters, civil
disturbances, power outages, telephone network outages, and severe
or unusual weather conditions. Those conditions that are ordinarily
within the control of the franchisee include, but are not limited
to, special promotions, pay-per-view events, rate increases, regular
peak or seasonal demand periods, and maintenance or upgrade of the
cable system. See 47 CFR 76.309(c)(4)(ii).
Public, educational, and governmental.
An individual, partnership, association, joint-stock company,
trust corporation, limited liability company, governmental entity
or other entity recognized under Pennsylvania law as a legal person.
An access channel available for use by residents in the LFA.
The surface and the area across, in, over, along, upon and
below the surface of the public streets, roads, bridges, sidewalks,
lanes, courts, ways, alleys, and boulevards, including, public utility
easements and public lands and waterways used as public rights-of-way,
as the same now or may thereafter exist which are under the jurisdiction
or control of the LFA. Public rights-of-way do not include the airwaves
above a right-of-way with regard to cellular or other nonwire communications
or broadcast services.
All portions of the LFA where cable service is being offered,
including the initial service area and any additional service areas.
The date that the franchisee first provides cable service
on a commercial basis directly to multiple subscribers in the franchise
area. The franchisee shall memorialize the service date by notifying
the LFA in writing of the same, which notification shall become a
part of this franchise.
The loss of picture or sound on one or more cable channels.
A person who lawfully receives cable service distributed
by the cable system with the franchisee's express permission.
The franchisee's existing telecommunications services facilities
and its FTTP network facilities.
As defined under Section 3 of the Communications Act, 47
U.S.C. § 153(46).
Title II of the Communications Act, Common Carriers, as amended.
Title VI of the Communications Act, Cable Communications,
as amended, which governs the provision of cable services by the Franchisee.
Any transaction in which:
The right, title, control or other interest
in the franchisee or the cable system is transferred, directly or
indirectly, from one person or group of persons to another person
or group of persons, so that management or control of the franchisee
is transferred; or
The rights held by the franchisee pursuant to
this agreement are transferred or assigned to another person or group
of persons.
However, notwithstanding Subsection A(1) a "transfer of the franchise" shall not include transfer of an ownership or other interest in the franchisee to the parent of the franchisee or to another affiliate of the franchisee; transfer of an interest in the franchise or the rights held by the franchisee under the franchise to the parent of the franchisee or to another affiliate of the franchisee; any action that is the result of a merger of the parent of the franchisee; or any action that is the result of a merger of another affiliate of the franchisee.
As defined under Section 602 of the Communications Act, 47
U.S.C. § 522(20), which currently states "Programming provided
by, or generally considered comparable to programming provided by
a television broadcast station."
A.
Grant of authority. Subject to the terms and conditions
of this agreement and applicable laws and regulations, the LFA hereby
grants the franchisee the right to own, construct, operate and maintain
a cable system to provide cable services along the public rights-of-way
within the LFA, in order to provide cable service. No privilege or
power of eminent domain is bestowed or waived by this grant or by
this agreement. This franchise does not confer any rights other than
as expressly provided herein.
B.
LFA's regulatory authority. The parties recognize
that the franchisee's FTTP network is being constructed and will be
operated and maintained as an upgrade to and/or extension of its existing
telecommunications facilities for the provision of noncable services.
The jurisdiction of the LFA over such telecommunications facilities
is also governed by federal and state law, and the LFA does not and
will not assert jurisdiction over the franchisee's FTTP network in
contravention of those laws. Therefore, as provided in Section 621
of the Communications Act, 47 U.S.C. § 541, the LFA's regulatory
authority under Title VI of the Communications Act is not applicable
to the construction, installation, maintenance, or operation of the
Franchisee's FTTP network to the extent the FTTP network is constructed,
installed, maintained, or operated for the purpose of upgrading and/or
extending Verizon's existing telecommunications facilities for the
provision of noncable services. This agreement shall not be construed
to limit whatever existing regulatory authority the LFA may have under
federal and state law with respect to the FTTP network facilities,
including the lawful regulatory authority of the LFA over the public
rights-of-way.
C.
Term. This franchise shall become effective on the
effective date. The term of this franchise shall be 12 years from
the effective date unless the franchise is earlier revoked as provided
herein.
D.
Grant not exclusive. The franchise and the rights
granted herein to use and occupy the public rights-of-way to provide
cable services shall not be exclusive, and the LFA reserves the right
to grant other franchises for similar uses or for other uses of the
public rights-of-way, or any portions thereof, to any person, or to
make any such use themselves, at any time during the term of this
franchise. Any such rights that are granted shall not adversely impact
the authority as granted under this franchise and shall not interfere
with existing facilities of the franchisee's cable system.
E.
Franchise subject to federal and state law. Notwithstanding
any provision to the contrary herein, this agreement is subject to
and shall be governed by all applicable provisions of federal and
state law to the extent not in conflict with federal law.
F.
No waiver:
(1)
The failure of the LFA on one or more occasions
to exercise a right or to require compliance or performance under
this franchise or applicable law shall not be deemed to constitute
a waiver of such right or a waiver of compliance or performance by
LFA, nor to excuse the franchisee from complying or performing, unless
such right or such compliance or performance has been specifically
waived in writing.
(2)
The failure of the franchisee on one or more
occasions to exercise a right under this franchise or applicable law,
or to require performance under this franchise, shall not be deemed
to constitute a waiver of such right or of performance of this agreement,
nor shall it excuse the LFA from performance, unless such right or
performance has been specifically waived in writing.
G.
Construction of agreement.
(1)
The parties agree that this agreement contains
all terms and conditions applicable to this agreement. In the event
of a conflict between the Local Cable Services Ordinance and this
agreement, this agreement shall prevail. Local Cable Services Ordinance
provisions not addressed by this agreement do not apply to this agreement.
(2)
Nothing herein shall be construed to limit the
scope or applicability of Section 625 Communications Act, 47 U.S.C.
§ 545.
(3)
Should any change to state law have the lawful
effect of materially altering the terms and conditions of this agreement,
making it commercially impracticable for the franchisee to continue
the provision of cable services in the LFA, then the parties shall
modify this franchise to the mutual satisfaction of both parties to
ameliorate the negative effects on the franchisee of the material
alteration. Any modification to this agreement shall be in writing
and signed by both parties. If the parties cannot reach agreement
on the above-referenced modification to the agreement, then the franchisee
may terminate this agreement without further obligation to the LFA
or, at the franchisee's option, the parties agree to submit the matter
to binding arbitration in accordance with the commercial arbitration
rules of the American Arbitration Association (or other competent
arbitration organization that is nationally recognized as such).
H.
Police powers. Nothing in this agreement shall be
construed to prohibit the reasonable, necessary, and lawful exercise
of the police powers of the LFA. If the LFA exercise its reasonable,
necessary, and lawful police powers and such exercise results in a
material alteration of the terms and conditions of this agreement
that makes it commercially impracticable for the franchisee to continue
the provision of cable services in the LFA, then the parties shall
modify this agreement to the mutual satisfaction of both parties to
ameliorate the negative effects of the LFA's exercise of its police
powers on the franchisee. Any modification to this agreement shall
be in writing and signed by both parties. If the parties cannot reach
agreement on how to ameliorate the negative effects of the LFA's exercise
of its police powers, then the franchisee may terminate this agreement
without further obligation to the LFA or, at the franchisee's option,
the parties agree to submit the matter to binding arbitration in accordance
with the commercial arbitration rules of the American Arbitration
Association (or other competent arbitration organization that is nationally
recognized as such) before the parties seek any other remedy.
A.
Initial service area.
(1)
Initial service area. The franchisee shall offer cable service to significant numbers of subscribers in residential areas of the initial service area and may make cable service available to businesses in the initial service area, within 36 months of the effective date of this franchise. The franchisee shall offer cable service in the initial service area to all residential areas in the LFA within six years of the effective date of the franchise, except: (a) For periods of force majeure; (b) For periods of unreasonable delay caused by the LFA; (c) For periods of delay resulting from franchisee's inability to obtain authority to access private rights-of-way in the service area; (d) In areas where developments or buildings are subject to claimed exclusive arrangements with other providers; (e) In developments or buildings that the franchisee cannot access under reasonable terms and conditions after good-faith negotiation; and (f) In areas, developments, or buildings where the franchisee is unable to provide cable service for technical reasons or which require nonstandard facilities which are not available on a commercially reasonable basis; and (g) In areas where the occupied residential household density does not meet the density requirements set forth in Subsection A(2).
(2)
Density requirement. The franchisee shall make cable services available to residential dwelling units in all areas of the LFA where the minimum density is 30 occupied residential dwelling units per mile as measured in strand footage from the nearest technically feasible point on the active FTTP network trunk or feeder line. Should, through new construction, an area within the LFA meet such density requirements after the time stated for providing cable service as set forth in Subsection A(1), the franchisee shall provide cable service to such area within six months of receiving notice from the LFA that the density requirements have been met.
(3)
Extended service area. The franchisee shall offer cable service to significant numbers of subscribers in residential areas of the extended service area and may make cable service available to businesses in the extended service area, within 60 months of the effective date of this franchise, and shall offer cable service to all residential areas in the extended service area within 10 years of the effective date of the franchise, subject to the conditions of Subsection A(1) above and the other terms set forth herein; provided, however, that the extended service area may be modified in whole or in part by the franchisee on 30 days' notice to the LFA.
(4)
Additional service area. Except for the service
area, the franchisee shall not be required to extend its cable system
or to provide cable service to any other areas within the LFA during
the term of this franchise or any renewals thereof. If the franchisee
desires to add additional service areas within the LFA, the franchisee
shall notify the LFA in writing of such additional service area at
least 10 days prior to providing cable service in such areas.
B.
Availability of cable service. The franchisee shall make cable service available to all residential dwelling units and may make cable service available to businesses within the service area in conformance with Subsection A and the franchisee shall not discriminate between or among any individuals in the availability of cable service. In the areas in which the franchisee shall provide cable service, the franchisee shall be required to connect, at the franchisee's expense, all residential dwelling units that are within 200 feet of trunk or feeder lines not otherwise already served by the Franchisee's FTTP network. The franchisee shall be allowed to recover from a subscriber that requests such connection, no more than the actual costs incurred for residential dwelling unit connections that exceed 200 feet and actual costs incurred to connect any nonresidential dwelling unit subscriber.
C.
Cable service to public buildings. Subject to Subsection A, the franchisee shall provide, without charge, within the service area, one service outlet activated for basic service to the following:
(1)
Each current municipal building, fire station,
and public library as may be designated by the LFA in Exhibit A;[1] provided, however, that if it is necessary to extend the
franchisee's trunk or feeder lines more than 200 feet solely to provide
service to any such public building, the LFA shall have the option
either of paying the franchisee's direct costs for such extension
in excess of 200 feet, or of releasing the franchisee from the obligation
to provide service to such public building. Furthermore, the franchisee
shall be permitted to recover, from any public building owner entitled
to free service, the direct cost of installing, when requested to
do so, more than one outlet, or concealed inside wiring, or a service
outlet requiring more than 200 feet of drop cable; provided, however,
that the franchisee shall not charge for the provision of basic service
to the additional service outlets once installed.
[1]
Editor's Note: Exhibit A is included at the end of this chapter.
(2)
Each public K-12 school, and each nonpublic
K-12 school that receives funding pursuant to Title I of the Elementary
and Secondary Education Act of 1965, 20 U.S.C. § 6301 et
seq. and is considered a nonpublic, nonlicensed school under the Pennsylvania
Private Academic Schools Act, 24 P.S. §§ 6702 through
6721, located in the LFA, as may be designated by the LFA in Exhibit
A; provided, however, that the franchisee shall not be obligated to
provide any service outlets activated for basic service to home schools;
also provided, however, that if it is necessary to extend the franchisee's
trunk or feeder lines more than 200 feet solely to provide service
to any such school building, the LFA shall have the option either
of paying the Franchisee's direct costs for such extension in excess
of 200 feet, or of releasing the franchisee from the obligation to
provide service to such school building. Furthermore, the franchisee
shall be permitted to recover, from any school building owner entitled
to free service, the direct cost of installing, when requested to
do so, more than one outlet, or concealed inside wiring, or a service
outlet requiring more than 200 feet of drop cable; provided, however,
that the franchisee shall not charge for the provision of basic service
to the additional service outlets once installed.
(3)
In addition to the locations designated in Exhibit A, the franchisee shall provide, without charge, within the Township/Borough, up to one service outlet activated for basic service to one additional new municipal building per year at a location as mutually agreed upon by the parties subject to all conditions set forth in this Subsection C.
(4)
Notwithstanding the foregoing, the franchisee
shall not be required to provide cable service to any building set
forth in Exhibit A[2] until the date that is 180 days after the date on which
the franchisee serves the applicable portion of the franchise area
with its Title II FTTP network, and the applicable wire center serving
such building is video-enabled.
[2]
Editor's Note: Exhibit A included at the end
of this chapter.
A.
Technical requirement.
(1)
The franchisee shall operate, maintain, construct,
and extend the cable system so as to provide high quality signals
and reliable delivery of one-way and two-way cable services for all
cable programming services throughout the LFA. The cable system shall
meet or exceed any and all technical performance standards of the
FCC, the National Electrical Safety Code, the National Electric Code
and any other applicable federal laws and the laws of the Commonwealth
of Pennsylvania, to the extent not in conflict with federal law and
regulations, as determined by a court of competent jurisdiction.
(2)
In addition, to the extent permitted by then-current
FCC regulation, the LFA may request technical tests of the cable system.
The franchisee shall furnish a copy of all technical tests performed
on the cable system by it or on its behalf to the LFA at no cost or
expense to the LFA. In addition, the LFA may perform technical tests
of the cable system during reasonable times and in a manner which
does not unreasonably interfere with the normal business operations
of the franchisee or the cable system. The rights of the LFA under
this section shall at all times be subject to applicable law and FCC
regulation.
B.
System characteristics. The franchisee's cable system,
which utilizes portions of the FTTP network, shall meet or exceed
the following requirements:
(1)
The system shall be designed, constructed, and
maintained with an initial analog and digital passband of between
50 MHz and 860 MHz.
(2)
The system shall be designed, constructed, and
maintained as an active two-way system that allocates sufficient portion
of said bandwidth to deliver reliable two-way cable services.
C.
Interconnection. The franchisee shall design its cable
system so that it may be interconnected with other cable systems in
the franchise area. Interconnection of systems may be made by direct
cable connection, microwave link, satellite, or other appropriate
methods.
D.
Emergency alert system:
(1)
The franchisee shall comply with the Emergency
Alert System ("EAS") requirements of the FCC in order that emergency
messages may be distributed over the system.
(2)
In the event of a state or local civil emergency,
the EAS shall be activated by equipment or other acceptable means
as set forth in the Pennsylvania EAS Plan for the Philadelphia extended
area. The LFA shall allow only appropriately trained and authorized
persons to remotely override the audio and video on all channels on
the cable system, so long as it is consistent with the franchisee's
contractual commitments, without the assistance of the franchisee
through the EAS local primary stations (LP1 or LP2). The LFA shall
take reasonable precautions or prevent any use of the cable system
in any manner that results in inappropriate use thereof, or any loss
or damage to the cable system.
E.
System design. At the national or regional level,
two super headends ("SHE") shall serve as the points of national content
aggregation. Initially all content will be encoded into MPEG2 streams
and transported optically to a video hub office ("VHO"). The VHO serves
as the metro or local point of aggregation and will be located within
Philadelphia and serving Southeastern Pennsylvania including Bucks
County. It is here that off-air and EG channels are combined with
the broadcast video coming from the SHE. Those optical signals aggregated
at the VHO are then transported to video serving offices ("VSO") for
final transport to the customer location. The VSO is a location within
the central office containing FTTP equipment. The key function of
the VSO is to combine broadcast cable television into the voice and
high speed data FTTP network. At the customer location, the optical
video signal is demultiplexed and converted to an electrical signal,
which meets video industry standards for cable services. Standard
home wiring practices, using coax cables, as well as alternative media,
shall distribute the signal to cable-ready TVs and/or set top boxes.
F.
Jurisdiction change. The franchisee and LFA acknowledge
and agree that this franchise is not a contract between a public utility
and, the LFA for purposes of regulation by the Public Utility Commission.
If at any time during this agreement the Public Utility Commission
or any successor does not exercise its jurisdiction over the franchisee's
provision of telecommunications services, the following provisions
shall apply.
(1)
All construction and installation related to
the cable system shall be performed in a workmanlike manner, using
materials of good and durable quality with due regard to the preservation
and protection of existing structures. All work to be performed in,
on, or about the dwelling or structure of a subscriber or potential
subscriber shall be performed under the reasonable direction or with
the consent of such subscriber or potential subscriber.
(2)
The franchisee will inspect all facilities to
ensure that they meet the manufacturer's and governmental technical
specifications. The franchisee shall designate an employee to act
as a franchisee representative by responding to public service complaints
on a daily basis during any construction related to the cable system
and provide the LFA with the person's name and telephone number. Construction
shall be overseen by an employee or agent of the franchisee.
G.
Channel packaging. The franchisee shall make available
programming to subscribers, in broad categories which shall, at a
minimum, include categories such as the following:
A.
PEG set aside; interconnection.
(1)
In order to ensure universal availability of
public, educational, and government programming, the franchisee shall
provide capacity on its basic service tier dedicated channels for
public access, educational access, and government access (collectively,
"PEG channels").
(2)
The LFA will provide the franchisee 60 days'
prior written notice, in the case of any channel then existing on
the incumbent cable operator's system, and 120 days' prior written
notice, in the case of any channel that has been previously reserved
by the LFA but never activated on the franchisee's system. Such notification
shall constitute authorization to the franchisee to transmit such
programming within and without the LFA. The franchisee shall assign
the PEG channel numbers to the extent such channel number assignments
do not interfere with the franchisee's existing or planned channel
number line-up and contractual obligations, provided it is understood
that the franchisee specifically reserves the right to make such assignments
in its sole discretion. The PEG channels shall be used for community
programming related to public, educational and/or governmental activities.
The LFA shall have complete control over the content, scheduling,
and administration of the PEG channels and may delegate such functions,
or a portion of such functions, to an appropriate designee. The franchisee
shall not exercise any editorial control over PEG channel programming.
If a PEG channel provided under this article is not being utilized
by the LFA, the franchisee may utilize such PEG channel, in its sole
discretion, after receiving written approval by the LFA until such
time as the LFA elects to utilize the PEG channel for its intended
purpose. In the event that the LFA decides to exercise its right to
use PEG capacity, the LFA shall provide the franchisee with 90 days'
prior written notice of such request.
(3)
The LFA shall comply with the law regarding
the noncommercial use of PEG channels.
(4)
The franchisee shall use reasonable efforts
to interconnect its cable system with the existing cable operator(s).
Prior to the service date, the franchisee shall initiate interconnection
negotiations with the existing cable operator(s) to cablecast, on
a live basis, any public, educational and governmental access programming
consistent with this agreement. Interconnection may be accomplished
by direct cable, microwave link, satellite or other reasonable method
of connection. The franchisee shall negotiate in good faith with existing
cable operator(s) respecting reasonable, mutually convenient, cost-effective,
and technically viable interconnection points, methods, terms and
conditions. The LFA shall support and encourage good-faith negotiations
between the franchisee and existing cable operator(s) for interconnection
of the existing cable operator(s)' cable system(s) with the cable
system on reasonable terms and conditions. The franchisee and the
existing cable operator(s) shall negotiate the precise terms and conditions
of an interconnection agreement.
(5)
If the procedures of Subsection D do not result in interconnection of the franchisee's cable system with the existing cable operator(s)' for purposes of providing PEG channels, no earlier than 12 months after the service date of this agreement, the LFA may require the franchisee to provide one or more video links (which number of video links shall not be greater than that provided by the incumbent cable operator), without charge to the LFA, from locations within the LFA where PEG access programming is originated for the purpose of cablecasting PEG programming to the franchisee's facilities; provided, however, that the Franchisee shall not be obligated to provide the LFA with either cablecast equipment and facilities or personnel responsible for maintaining and operating such equipment and facilities or generating any such PEG programming. For purposes of this section, the term "video link" means a physical or virtual path established to connect the origination point of a PEG channel to the Verizon hub office for distribution.
B.
Indemnity for PEG. The LFA shall require all local
producers and users of any of the PEG facilities or channels to agree
in writing to authorize the Franchisee to transmit programming consistent
with this agreement and to defend and hold harmless the franchisee
and the LFA from and against any and all liability or other injury,
including the reasonable cost of defending claims or litigation, arising
from or in connection with claims regarding an PEG programming facility,
not including the actual FTTP network, or channel or PEG channel programming,
including claims for failure to comply with applicable federal laws,
rules, regulations or other requirements of local, state, or federal
authorities; for claims of libel, slander, invasion of privacy, or
the infringement of common law or statutory copyright; for unauthorized
use of any trademark, trade name, or service mark; for breach of contractual
or other obligations owing to third parties by the producer or user;
and for any other injury or damage in law or equity. The LFA shall
establish rules and regulations for use of PEG facilities, consistent
with, and as required by, 47 U.S.C. § 531. Notwithstanding
the foregoing, the LFA shall not indemnify the franchisee for any
damages, liability, or claims resulting from acts of willful misconduct
or negligence of the franchisee, its officers, employees, or agents.
C.
Recovery of costs. To the extent permitted by federal
law, beginning at any time after the service date, the franchisee
may recover from subscribers any costs arising from the provision
of PEG services as a separately billed line item on each subscriber's
bill, provided that such costs shall include, without limitation,
the PEG grant designated amount (as hereinafter defined).
D.
PEG grant:
(1)
The LFA is a member of the Bucks County Cable
Consortium (the "Consortium"). The Franchisee has agreed to provide
the Consortium with a grant in the aggregate amount of $160,000 to
be used in support of the production of local PEG programming (the
"PEG grant designated amount"), for PEG access equipment, including,
but not limited to, studio and portable production equipment, editing
equipment and program playback equipment, or for renovation or construction
of PEG access facilities.
(2)
The franchisee has been informed that the LFA's
share of the PEG grant designated amount is $11,651, and the LFA acknowledges
that this amount is correct.
(3)
The PEG grant designated amount shall be payable
in two equal installments, one on the fifth anniversary of the effective
date and one on the 10th anniversary of the effective date.
A.
Payment to LFA. The franchisee shall pay to the LFA
a franchise fee of 5% of annual gross revenue. The franchise fee may
be increased at the sole discretion of the LFA in the event federal
law permits a franchise fee greater than 5%, provided that all cable
operators are required to pay such increased franchise fee. The LFA
may impose these increases in such increments and in such amounts
from time to time as the LFA may elect, upon 180 days' prior written
notice to the franchisee, provided that the failure to impose any
increase at any time shall not constitute a waiver of the LFA's right
to do so at a future date. In accordance with Title VI of the Communications
Act, the twelve-month period applicable under the franchise for the
computation of the franchise fee shall be a calendar year. Such payments
shall be made no later than 45 days following the end of each calendar
quarter. Specifically, payments shall be due and payable on or before
May 15 (for the first quarter), August 15 (for the second quarter),
November 15 (for the third quarter), and February 15 (for the fourth
quarter). In the event that any franchise fee payment is not made
on or before the applicable dates, then interest shall be added at
the rate of 6% of the amount of franchise fee revenue due to LFA.
No acceptance of any payment shall be construed as an accord that
the amount paid is the correct amount. The franchisee shall be allowed
to submit or correct any payments that were incorrectly omitted, and
shall be refunded any payments that were incorrectly submitted, in
connection with the quarterly franchise fee remittances within 90
days following the close of the calendar year for which such payments
were applicable.
B.
Supporting information. Each franchise fee payment
shall be accompanied by a brief report that provides line items of
revenue sources and is verified by a financial manager of the franchisee
showing the basis for the computation. A sample report is attached
as Exhibit C.[1]
[1]
Editor's Note: Exhibit C on file in the Township
offices.
C.
Limitation on franchise fee actions. The parties agree
that the period of limitation for recovery of any franchise fee payable
hereunder shall be four years from the date on which payment by the
franchisee is due.
D.
Audits.
(1)
The LFA may audit or conduct a franchise fee
review of the franchisee's books and records no more than once every
three years during the term. All records reasonably necessary for
any such audit shall be made available by the franchisee to the LFA.
The franchisee shall provide copies of such records to the LFA upon
written request.
(2)
Each party shall bear its own costs of an audit;
provided, however, that if the results of any audit indicate that
the franchisee underpaid the franchise fees by 5% or more, then the
franchisee shall pay the reasonable, documented, out-of-pocket costs
of the audit up to $5,000.
(3)
If the results of an audit indicate an overpayment
or underpayment of franchise fees, the parties agree that such overpayment
or underpayment shall be returned to the proper party within 45 days;
provided, however, that the franchisee shall be required to remit
underpayments to the LFA together with interest at 5% of the amount
correctly due from the date such underpayment would have been due.
(4)
Any entity employed by the LFA that performs
the audit or franchise fee review shall be a professional firm with
recognized expertise in auditing franchise fees and shall not be permitted
to be compensated on a success-based formula, e.g. payment based on
an underpayment of fees, if any.
E.
Increases in franchise fees. In the event that the franchisee pays to any other municipality located in Bucks County, Pennsylvania, a higher franchise fee percentage than that contained in this agreement, or pays a franchise fee on any revenue sources not included in § A206-23, definition of "gross revenue," of this agreement within three years of the effective date of this agreement, then such more favorable terms shall automatically be applicable to the LFA, and this agreement shall be amended to reflect such more favorable terms.
F.
Bundled services. If cable services subject to the franchise fee required under this § A206-28 are provided to subscribers in conjunction with noncable services, the franchise fee shall be applied only to the value of the cable services, as reflected on the books and records of the franchisee in accordance with FCC or Pennsylvania Public Utility Commission regulatory rules, regulations, standards, or orders, and generally accepted accounting principles and applicable laws and regulations.
These standards shall, starting six months after
the service date, apply to the franchisee to the extent it is providing
cable services over the cable system in the LFA.
A.
RESPOND
SERVICE CALL
SIGNIFICANT OUTAGE
STANDARD INSTALLATION
Definitions.
The franchisee's investigation of a service interruption
after receiving a subscriber call by opening a trouble ticket, if
required, and responding to the call.
The action taken by the franchisee to correct a service interruption,
the effect of which is limited to an individual subscriber.
A significant outage of the cable service shall mean any
service interruption lasting at least four continuous hours that affects
at least 10% of the subscribers in the service area.
Installations where the subscriber is within 200 feet of
trunk or feeder lines.
B.
Telephone availability.
(1)
The franchisee shall maintain a toll-free number
to receive all calls and inquiries from subscribers in the LFA and/or
residents regarding cable service. The franchisee representatives
trained and qualified to answer questions related to cable service
in the LFA must be available to respond to customer telephone inquiries
during normal business hours. Such representatives must be available
to respond to service interruptions 24 hours a day, seven days a week,
and other inquiries at least 45 hours per week. The franchisee representatives
shall identify themselves by name when answering this number.
(2)
The franchisee's telephone numbers shall be
listed, with appropriate description (e.g. administration, customer
service, billing, repair, etc.), in the directory published by the
local telephone company or companies serving the service area, beginning
with the next publication cycle after acceptance of this franchise
by the franchisee.
(3)
The franchisee may use an automated response
unit ("ARU") or a voice response unit ("VRU") to distribute calls.
If a foreign language routing option is provided, and the subscriber
does not enter an option, the menu will default to the first tier
menu of English options. After the first tier menu (not including
a foreign language rollout) has run through three times, if customers
do not select any option, the ARU or VRU will forward the call to
a queue for a live representative. The franchisee may reasonably substitute
this requirement with another method of handling calls from customers
who do not have touch-tone telephones.
(4)
Under normal operating conditions, calls received
by the franchisee shall be answered within 30 seconds. The franchisee
shall meet this standard for 90% of the calls it receives at all call
centers receiving calls from subscribers, as measured on a cumulative
quarterly calendar basis. Measurement of this standard shall include
all calls received by the franchisee at all call centers receiving
calls from subscribers, whether they are answered by a live representative,
by an automated attendant, or abandoned after 30 seconds of call waiting.
(5)
Under normal operating conditions, callers to
the franchisee shall receive a busy signal no more than 3% of the
time during any calendar quarter.
(6)
Notwithstanding the performance criteria of Subsection B(1) through (5) above, the franchisee shall not be required to acquire equipment or perform surveys to measure compliance with the telephone answering standards above unless a historical record of complaints indicates a clear failure to comply.
(7)
Measuring and reporting.
(a)
Upon request from the LFA, but in no event more
than once a quarter 30 days following the end of each quarter, the
Franchisee shall report to the LFA the following for all call centers
receiving calls from subscribers except for temporary telephone numbers
set up for national promotions:
(b)
Subject to consumer privacy requirements, underlying
activity will be made available to the LFA for review upon reasonable
request.
(c)
At the Franchisee's option, the measurements
and reporting above may be changed from calendar quarters to billing
or accounting quarters. The franchisee shall notify the LFA of such
a change at least 30 days in advance of any implementation.
C.
Installations and service appointments.
(1)
All installations will be in accordance with
the rules of the FCC, the National Electric Code, and the National
Electrical Safety Code, including but not limited to, appropriate
grounding, connection of equipment to ensure reception of cable service,
and the provision of required consumer information and literature
to adequately inform the subscriber in the utilization of franchisee-supplied
equipment and cable service.
(2)
The standard installation shall be performed
within seven business days after the placement of the optical network
terminal ("ONT") on the customer's premises or within seven business
days after an order is placed if the ONT is already installed on the
customer's premises. The franchisee shall meet this standard for 95%
of the standard installations it performs, as measured on a calendar
quarter basis, excluding customer requests for connection later than
seven days after ONT placement or later than seven days after an order
is placed if the ONT is already installed on the customer's premises.
(3)
Measurements and reporting.
(a)
The franchisee shall provide the LFA with a
report upon request from the LFA, but in no event more than once a
quarter, 30 days following the end of each quarter, noting the percentage
of standard installations completed within the seven-day period, excluding
those requested outside of the seven-day period by the subscriber.
Subject to consumer privacy requirements, underlying activity will
be made available to the LFA for review upon reasonable request.
(b)
At the franchisee's option, the measurements
and reporting above may be changed from calendar quarters to billing
or accounting quarters. The franchisee shall notify the LFA of such
a change at least 30 days in advance of any implementation.
(4)
The franchisee will offer subscribers appointment
window alternatives for arrival to perform installations, service
calls, and other activities of a maximum four hours scheduled time
block during normal business hours. The franchisee may offer subscribers
appointment arrival times other than these four-hour time blocks,
if agreeable to the subscriber. These hour restrictions do not apply
to the weekends. The franchisee may not cancel an appointment with
a subscriber after the close of business on the business day prior
to the scheduled appointment; provided, however, that if a technician
is running late for an appointment with a subscriber and will not
be able to keep the appointment as scheduled, the subscriber will
be contacted. The appointment will be rescheduled, as necessary, at
a time which is convenient for the franchisee and the subscriber.
D.
Service interruptions and outages.
(1)
The franchisee shall promptly notify the LFA
of any significant outage of the cable service.
(2)
The franchisee shall exercise commercially reasonable
efforts to limit any significant outage for the purpose of maintaining,
repairing, or constructing the cable system. Except in an emergency
or other situation necessitating a more expedited or alternative notification
procedure, the franchisee may schedule a significant outage for a
period of more than four hours during any twenty-four-hour period
only after the LFA and each affected subscriber in the service area
have been given 15 days' prior notice of the proposed significant
outage.
(3)
The franchisee representatives who are capable
of responding to service interruptions must be available to respond
24 hours a day, seven days a week.
(4)
Under normal operating conditions, the franchisee
must respond to a call from a subscriber regarding a service interruption
or other service problems within the following time frames:
(a)
Within 24 hours, including weekends, of receiving
subscriber calls respecting service interruptions in the service area,
and shall diligently pursue to completion.
(b)
The franchisee must begin actions to correct
all other cable service problems the next business day after notification
by the subscriber or the LFA of a cable service problem and shall
diligently pursue to completion.
(5)
Under normal operating conditions, the franchisee
shall complete service calls within 72 hours of the time the franchisee
commences to respond to the service interruption, not including weekends
and situations where the subscriber is not reasonably available for
a service call to correct the service interruption within the seventy-two-hour
period.
(6)
The franchisee shall meet the standard in Subsection D(5) of this section for 90% of the service calls it completes, as measured on a quarterly basis.
(7)
The franchisee shall provide the LFA with a
report upon request from the LFA, but in no event more than once a
quarter within 30 days following the end of each calendar quarter,
noting the percentage of service calls completed within the seventy-two-hour
period, not including service calls where the subscriber was reasonably
unavailable for a service call within the seventy-two-hour period
as set forth in this section. Subject to consumer privacy requirements,
underlying activity will be made available to the LFA for review upon
reasonable request. At the franchisee's option, the above measurements
and reporting may be changed from calendar quarters to billing or
accounting quarters. The franchisee shall notify the LFA of such a
change at least 30 days in advance of any implementation.
(8)
Under normal operating conditions, the franchisee
shall provide a credit upon subscriber request when all channels received
by the subscriber are out of service for a period of four consecutive
hours or more. The credit shall equal, at a minimum, a proportionate
amount of the affected subscriber(s)' current monthly bill. In order
to qualify for the credit, the subscriber must promptly report the
problem and allow the franchisee to verify the problem if requested
by the franchisee. If subscriber availability is required for repair,
a credit will not be provided for such time, if any, that the subscriber
is not reasonably available.
(9)
Under normal operating conditions, if a significant
outage affects all video programming cable services for more than
24 consecutive hours, the franchisee shall issue an automatic credit
to the affected subscribers in the amount equal to their monthly recurring
charges for the proportionate time the cable service was out, or a
credit to the affected subscribers in the amount equal to the charge
for the basic plus enhanced basic level of service for the proportionate
time the cable service was out, whichever is technically feasible
or, if both are technically feasible, as determined by the franchisee
provided such determination is nondiscriminatory. Such credit shall
be reflected on subscriber billing statements within the next available
billing cycle following the outage.
(10)
With respect to service issues concerning cable
services provided to the LFA facilities, the franchisee shall respond
to all inquiries from the LFA within four hours and shall commence
necessary repairs within 24 hours under normal operating conditions
and shall diligently pursue to completion. If such repairs cannot
be completed within 24 hours, the Franchisee shall notify the LFA
in writing as to the reason(s) for the delay and provide an estimated
time of repair.
E.
Customer complaints. Under normal operating conditions,
the franchisee shall investigate subscriber complaints referred by
the LFA within 72 hours. The franchisee shall notify, the LFA of those
matters that necessitate an excess of 72 hours to resolve, but those
matters must be resolved within 15 days of the initial complaint.
The LFA may require reasonable documentation to be provided by the
franchisee to substantiate the request for additional time to resolve
the problem. For purposes of this section, "resolve" means that the
franchisee shall perform those actions, which, in the normal course
of business, are necessary to investigate the subscriber's complaint
and advise the subscriber of the results of that investigation.
F.
Billing.
(1)
Subscriber bills shall be clear, concise, and
understandable. Bills must be itemized to include all applicable service
tiers and, if applicable, all related equipment charges. Bills shall
clearly delineate activity during the billing period, including optional
charges, rebates, credits, and aggregate late charges. The franchisee
shall, without limitation as to additional line items, be allowed
to itemize as separate line items, franchise fees, taxes, and/or other
governmentally imposed fees. The franchisee shall maintain records
of the date and place of mailing of bills.
(2)
A specific due date shall be listed on the bill
of every subscriber whose account is current. Delinquent accounts
may receive a bill that lists the due date as upon receipt; however,
the current portion of that bill shall not be considered past due
until after the specific due date.
(3)
Any subscriber who, in good faith, disputes
all or part of any bill shall have the option of withholding the disputed
amount without disconnect or late fee being assessed until the dispute
is resolved, provided that:
(a)
The subscriber pays all undisputed charges;
(b)
The subscriber provides notification of the
dispute to the franchisee within five days prior to the due date;
and
(c)
The subscriber cooperates in determining the
accuracy and/or appropriateness of the charges in dispute.
(d)
It shall be within the franchisee's sole discretion
to determine when the dispute has been resolved.
(4)
Under normal operating conditions, the franchisee
shall initiate investigation and resolution of all billing complaints
received from subscribers within five business days of receipt of
the complaint. Final resolution shall not be unreasonably delayed.
(5)
The franchisee shall provide a telephone number
and address on the bill for subscribers to contact the franchisee.
(6)
The franchisee shall forward a copy of any cable
service related billing inserts or other mailing sent to subscribers
to the LFA upon request.
G.
Rates, fees and charges.
(1)
The franchisee shall not, except to the extent
expressly permitted by law, impose any fee or charge for service calls
to a subscriber's premises to perform any repair or maintenance work
related to the Franchisee's equipment necessary to receive cable service,
except where such problem is caused by a negligent or wrongful act
of the subscriber (including, but not limited to a situation in which
the subscriber reconnects the franchisee's equipment incorrectly)
or by the failure of the subscriber to take reasonable precautions
to protect the franchisee's equipment.
(2)
The Franchisee shall provide reasonable notice
to subscribers of the possible assessment of a late fee on bills or
by separate notice.
H.
Disconnection/denial of service.
(1)
The franchisee shall not terminate cable service
for nonpayment of a delinquent account unless the franchisee mails
a notice of the delinquency and impending termination prior to the
proposed final termination. The notice shall be mailed to the subscriber
to whom the cable service is billed. The notice of delinquency and
impending termination may be part of a billing statement.
(2)
Cable service terminated in error must be restored
without charge within 24 hours of notice. If a subscriber was billed
for the period during which cable service was terminated in error,
a credit shall be issued to the subscriber if the service interruption
was reported by the subscriber.
(3)
Nothing in these standards shall limit the right
of the franchisee to deny cable service for nonpayment of previously
provided cable services, refusal to pay any required deposit, theft
of cable service, damage to the franchisee's equipment, abusive and/or
threatening behavior toward the franchisee's employees or representatives,
or refusal to provide credit history information or refusal to allow
the franchisee to validate the identity, credit history, and credit
worthiness via an external credit agency.
(4)
Charges for cable service will be discontinued
at the time of the requested termination of service by the subscriber,
except equipment charges may by applied until equipment has been returned.
No period of notice prior to requested termination of service can
be required of subscribers by the franchisee. No charge shall be imposed
upon the subscriber for or related to total disconnection of cable
service or for any cable service delivered after the effective date
of the disconnect request, unless there is a delay in returning the
franchisee's equipment or early termination charges apply pursuant
to the subscriber's service contract. If the subscriber fails to specify
an effective date for disconnection, the subscriber shall not be responsible
for cable services received after the day following the date the disconnect
request is received by the franchisee. For purposes of this subsection,
the term "disconnect" shall include subscribers who elect to cease
receiving cable service from the franchisee and to receive cable service
or other multi-channel video service from another person or entity.
I.
Communications with subscribers.
(1)
All franchisee personnel, contractors, and subcontractors
contacting subscribers or potential subscribers outside the office
of the franchisee shall wear a clearly visible identification card
bearing their name and photograph. The franchisee shall make reasonable
effort to account for all identification cards at all times. In addition,
all franchisee representatives shall wear appropriate clothing while
working at a subscriber's premises. Every service vehicle of the franchisee
and its contractors or subcontractors shall be clearly identified
as such to the public. Specifically, franchisee vehicles shall have
the franchisee's logo plainly visible. The vehicles of those contractors
and subcontractors working for the franchisee shall have the contractor's/subcontractor's
name plus markings (such as a magnetic door sign) indicating they
are under contract to the franchisee.
(2)
All contact with a subscriber or potential subscriber
by a person representing the franchisee shall be conducted in a courteous
manner.
(4)
The franchisee shall provide reasonable notice
to subscribers of any pricing changes or additional changes (excluding
sales discounts, new products or offers) and, subject to the foregoing,
any changes in cable services, including channel lineups. Such notice
must be given to subscribers and the LFA a minimum of 30 days in advance
of such changes if within the control of the Franchisee, and the franchisee
shall provide a copy of the notice to the LFA, including how and where
the notice was given to subscribers.
(5)
Time frames for provision of information.
(a)
The franchisee shall provide information to all subscribers about each of the following items at the time of installation of cable services, annually to all subscribers, at any time upon request, and, subject to Subsection I(4), least 30 days prior to making significant changes in the information required by this section if within the control of franchisee:
[1]
Products and cable service offered;
[2]
Prices and options for cable services and condition
of subscription to cable services;
[3]
Installation and maintenance policies including,
when applicable, information regarding the subscriber's in-home wiring
rights during the period cable service is being provided;
[4]
Channel positions of cable services offered
on the cable system;
[5]
Procedures for resolving complaints, including
the name, address, and telephone number of LFA, but with a notice
advising the Subscriber to initially contact Franchisee about all
complaints and questions;
[6]
Procedures for requesting cable service credit;
[7]
The availability of a parental control device;
[8]
Franchisee practices and procedures for protecting
against invasion of privacy; and
[9]
The address and telephone number of the franchisee's
office to which complaints may be reported.
(6)
Notices of changes in rates shall indicate the
cable service new rates and old rates, if applicable.
(7)
Notices of changes of cable services and/or
channel locations shall include a description of the new cable service,
the specific channel location, and the hours of operation of the cable
service if the cable service is only offered on a part-time basis.
In addition, should the channel location, hours of operation, or existence
of other cable services be affected by the introduction of a new cable
service, such information must be included in the notice.
(8)
Every notice of termination of cable service
shall include the following information:
(a)
The name and address of the subscriber whose
account is delinquent;
(b)
The amount of the delinquency for all services
billed;
(c)
The date by which payment is required in order
to avoid termination of cable service; and
(d)
The telephone number for the franchisee where
the subscriber can receive additional information about his or her
account and discuss the pending termination.
(9)
The LFA hereby requests, and the Franchisee
agrees, that the franchisee omit publishing information specified
in 47 C.F.R. § 76.952(a) from subscriber bills.
J.
Privacy. The franchisee shall protect and abide by
the rights of privacy of every subscriber and shall not violate such
rights through the use of any device or signal associated with the
cable system. The franchisee shall at all times comply with the privacy
provisions of Section 631 of the Cable Act and all other applicable
federal and state privacy laws and regulations.
A.
Open books and records. Upon 30 days' written notice
to the franchisee, the LFA shall have the right to inspect the franchisee's
books and records pertaining to this agreement or the franchisee's
provision of cable service in the LFA at any time during normal business
hours, as are reasonably necessary to ensure compliance with the terms
of this franchise. Such notice shall specifically reference the section
or subsection of the franchise that is under review, so that the franchisee
may organize the necessary books and records for appropriate access
by the LFA. The franchisee shall not be required to maintain any books
and records for franchise compliance purposes longer than four years.
Notwithstanding anything to the contrary set forth herein, the franchisee
shall not be required to disclose information that it reasonably deems
to be proprietary or confidential in nature, nor disclose any of its
or an affiliate's books and records not relating to this agreement
or the provision of cable service in the LFA. If the franchisee claims
any information to be proprietary or confidential, it shall provide
an explanation as to the reason it is claimed to be confidential or
proprietary. The LFA shall treat any information disclosed by the
franchisee as confidential so long as it is permitted to do so under
applicable law, and shall only disclose it to employees, representatives,
and agents thereof that have a need to know, or in order to enforce
the provisions hereof. Each of the parties agrees to execute and deliver
appropriate confidentiality agreements upon the request of the other
party, to the extent consistent with federal and state law. The franchisee
shall not be required to provide subscriber information in violation
of Section 631 of the Communications Act, 47 U.S.C. § 551.
B.
Records required. The franchisee shall at all times maintain the following, which may be inspected pursuant to Subsection A above:
(1)
Records of all written complaints for a period
of four years after receipt by the Franchisee. Complaints recorded
will not be limited to complaints requiring an employee service call;
(2)
Records of outages for a period of four years
after occurrence, indicating date, duration, area, and the number
of subscribers affected, type of outage, and cause;
(3)
Records of service calls for repair and maintenance
for a period of four years after resolution by the franchisee, indicating
the date and time service was required, the date of acknowledgment
and date and time service was scheduled (if it was scheduled), and
the date and time service was provided, and (if different) the date
and time the problem was resolved;
(4)
Records of installation/reconnection and requests
for service extension for a period of four years after the request
was fulfilled by the franchisee, indicating the date of request, date
of acknowledgement, and the date and time service was extended; and
(5)
A map showing the area of coverage for the provision
of cable services and estimated timetable to commence providing cable
service.
A.
Insurance.
(1)
Franchisee shall maintain in full force and
effect, at its own cost and expense, during the franchise term, the
following insurance coverage:
(a)
Commercial general liability insurance in the
amount of $5,000,000 combined single limit for property damage and
bodily injury. Such insurance shall cover the construction, operation,
and maintenance of the cable system, and the conduct of the franchisee's
cable service business in the LFA.
(b)
Automobile liability insurance in the amount
of $1,000,000 combined single limit for bodily injury and property
damage coverage.
(c)
Workers' Compensation insurance meeting all
legal requirements of the Commonwealth of Pennsylvania.
(2)
The LFA shall be designated as an additional insured under each of the insurance policies required in this § A206-31 except Worker's Compensation and employer's liability insurance.
(3)
The franchisee shall not cancel any required
insurance policy without submitting documentation to the LFA verifying
that the franchisee has obtained alternative insurance in conformance
with this agreement.
(4)
Each of the required insurance policies shall
be with sureties qualified to do business in the Commonwealth of Pennsylvania,
with an A- or better rating for financial condition and financial
performance by Best's Key Rating Guide, Property/Casualty Edition.
(5)
Upon written request, the franchisee shall deliver
to the LFA certificates of insurance showing evidence of the required
coverage.
B.
Indemnification.
(1)
The franchisee agrees to indemnify, save, hold
harmless, and defend the LFA, its elected and appointed officials,
officers, agents, boards, and employees, from and against any and
all claims for injury, loss, liability, cost or expense arising in
whole or in part from, incident to, or connected with any act or omission
of the franchisee, its officers, agents, or employees, including the
acts or omissions of any contractor or subcontractor of the franchisee,
arising out of the construction, operation, upgrade, or maintenance
of its cable system. The obligation to indemnify, save, hold harmless,
and defend the LFA shall include the obligation to pay judgments,
injuries, liabilities, damages, penalties, expert fees, court costs,
and the franchisee's own attorneys' fees. The LFA shall give the franchisee
timely written notice via certified mail, return receipt requested,
of the LFA's request for indemnification within 30 days of receipt
of a claim or action pursuant to this subsection or within 10 days
following service of legal process on the LFA or its designated agent
of any action related to this subsection. The LFA agrees that it will
take all necessary action to avoid a default judgment. Notwithstanding
the foregoing, the franchisee shall not indemnify the LFA for any
damages, liability, or claims resulting from, and the LFA shall be
responsible for, the LFA's own acts of willful misconduct, the LFA's
breach of obligation under the franchise agreement, or negligence
of the LFA, its elected and appointed officials, officers, agents,
boards, and employees.
(2)
With respect to the Franchisee's indemnity obligations set forth in Subsection B(1), the franchisee shall provide the defense of any claims brought against the LFA by selecting counsel of the Franchisee's choice to defend the claim, subject to the consent of the LFA, which shall not unreasonably be withheld. Nothing herein shall be deemed to prevent the LFA from cooperating with the Franchisee and participating in the defense of any litigation by its own counsel at its own cost and expense; provided however, that after consultation with the LFA, the franchisee shall have the right to defend, settle, or compromise any claim or action arising hereunder, and the franchisee shall have the authority to decide the appropriateness and the amount of any such settlement. In the event that the LFA does not consent to the terms of any such settlement or compromise, the franchisee shall not settle the claim or action but its obligation to indemnify the LFA shall in no event exceed the amount of such settlement.
A.
Transfer. Subject to Section 617 of the Communications Act, 47 U.S.C. § 537, and applicable federal regulations, no transfer of the franchise shall occur without the prior consent of the LFA, provided that such consent shall not be unreasonably withheld, delayed, or conditioned. The franchisee shall make written application to the LFA of any transfer and shall provide information required by FCC Form 394 and any other applicable law regarding transfer or assignment. The LFA shall have 120 days from the receipt of all required information to take action on the transfer application. No such consent shall be required, however, for a transfer in trust, by mortgage, by other hypothecation, by assignment of any rights, title, or interest of the franchisee in the franchise or cable system in order to secure indebtedness, or for transactions otherwise excluded under § A206-25, the definition of "transfer of the franchise" above. Any consent by the LFA for any transfer 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.
B.
Any foreclosure or judicial sale of all or any part
of the system shall be considered default. Initiation of any such
proceedings shall be treated as a notification of a change of control
of the franchisee.
C.
The LFA shall have the right to cancel this Franchise
120 days after the election or appointment of a receiver or trustee
to take over and conduct the business of the franchisee, whether in
receivership, reorganization, bankruptcy, or other action or proceedings,
unless such receivership or trusteeship shall have been vacated prior
to the expiration of the 120 days; or unless within 120 days after
the election or appointment, such receiver or trustee shall have fully
complied with all provisions of this agreement and remedied all defaults
thereunder; and within said 120 days, such receiver or trustee shall
have executed an agreement, duly approved by the court having jurisdiction
in the premises, whereby such receiver or trustee assumes and agrees
to be bound by each and every provision of this agreement.
A.
Governing law. The LFA and the Franchisee agree that
any proceedings undertaken by the LFA that relate to the renewal of
this franchise shall be governed by and comply with the provisions
of Section 626 of the Communications Act, 47 U.S.C. § 546.
B.
Needs assessments. In addition to the procedures set
forth in said Section 626 of the Communications Act, the LFA may notify
the franchisee of its assessments regarding the identity of future
cable-related community needs and interests, as well as the past performance
of the franchisee under the then-current franchise term, if such assessments
are performed.
A.
Notice of noncompliance. If at any time the LFA believes
that the franchisee has not complied with the terms of the agreement,
the LFA shall informally discuss the matter with the franchisee. If
these discussions do not lead to resolution of the problem in a reasonable
time, the LFA shall notify the franchisee in writing by certified
mail, return receipt requested, of the nature of the alleged noncompliance
(for purposes of this article, "noncompliance notice"). If the LFA
does not notify the franchisee of any alleged noncompliance, it shall
not operate as a waiver of any rights of the LFA hereunder or pursuant
to applicable law.
B.
Franchisee's right to cure or respond.
(1)
The franchisee shall have 30 days from receipt
of the noncompliance notice to:
(a)
Respond to the LFA, if the franchisee contests
(in whole or in part) the assertion of noncompliance;
(b)
Cure such noncompliance; or
(c)
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 the LFA of the steps being taken and the
date by which they are projected to be completed.
(2)
Upon cure of any noncompliance, the LFA shall
provide written confirmation that such cure has been effected.
C.
Public hearing. In the event that the 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 Subsection B(1)(c) above, if the LFA seeks to continue its investigation into the alleged noncompliance, then the Franchisee may request that a public hearing be held by the governing body of the Township/Borough. If such a hearing is scheduled, the LFA shall provide the 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 the franchisee the opportunity to be heard.
D.
Noncompliance penalties. In accordance with Section 1601(c.1) of the Second Class Township Code (53 P.S. § 66601), any person which commits or suffers the violation of this article, shall, upon being found liable in a civil enforcement proceeding commenced by the LFA, pay a fine of up to $600, plus all court costs, including reasonable attorneys fees incurred by the Township. A separate offense shall arise for each day or portion thereof in which a violation is found to exist or for each section of the article which is found to be violated. In addition, the Township may enforce the article by an action in equity. Notwithstanding the foregoing, the LFA agrees pursuant to this franchise (which constitutes an ordinance of the LFA) that the monetary penalties set forth below are the only monetary penalties that will apply for the specific violations listed below. The LFA further agrees that the notice and opportunity to cure provisions set forth in Subsections A and B above shall apply; provided, however, that if the franchisee disputes the assessment of any noncompliance penalties hereunder, the Franchisee may request and the LFA agrees to schedule a public hearing with regard to such dispute. Following the notice and opportunity to cure periods in Subsections A and B above, the LFA shall provide the Franchisee with written notice that it intends to elect the noncompliance penalties set forth herein. If the LFA elects to recover noncompliance penalties for any item set forth in this Subsection D (including customer service violations), the LFA agrees that such recovery shall be its exclusive remedy for the time period for which such noncompliance penalties are assessed; provided, however, that once the LFA has ceased to assess noncompliance penalties as set forth in this Subsection D, it may pursue other available remedies as set forth in the code provision.
(1)
Pursuant to Subsection B, the following penalties shall apply as liquidated damages:
(b)
For failure to maintain the FCC technical standards as set forth in § A206-26: $100 per day for each day the violation continues.
(c)
For failure to provide PEG services to the community specified in § A206-27A (contingent upon origination discussion): $100 per day for each day the violation continues.
(d)
For failure to permit a franchise fee audit within 45 days of a request as set forth in § A206-28D: $100 per day for each day the violation continues.
(e)
For failure to provide the LFA with any reports
or records required by this agreement within the time period required:
$100 per day for each day the violation continues.
(g)
For failure to carry the insurance specified in § A206-31A: $100 per day for each day the violation continues.
(2)
Notwithstanding anything contained herein to the contrary, the LFA's assessment of penalties for any violation under this section shall in no way prevent the LFA from citing such violation as a basis for the exercise of its revocation remedy in Subsection F.
(3)
The amount of all noncompliance penalties assessed under this section 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 Subsection B.
E.
Performance bond:
(1)
The franchisee shall provide security for the
performance of its obligations under this agreement to the LFA in
the amount of $50,000. The form of this security may, at the franchisee's
option, be a performance bond, letter of credit, cash deposit, cashier's
check, or any other security acceptable to the LFA.
(3)
In the event that a performance bond provided
pursuant to the agreement is not renewed or is canceled, the franchisee
shall provide new security pursuant to this article within 30 days
of such cancellation or failure to renew.
(4)
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 the LFA recoverable under the bond.
(5)
Notwithstanding any provision in this agreement
to the contrary, the 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.
F.
Revocation. Should the LFA seek to revoke this agreement after following the procedures set forth above in this article, including any public hearing described in Subsection C, and the LFA chooses not to impose liquidated damages or ceases to impose them, the LFA shall give written notice to the franchisee of such intent. The notice shall set forth the specific nature of the noncompliance. The 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 the LFA has not received a satisfactory response from the franchisee, it may then seek termination of the agreement at a second public hearing. The LFA shall cause to be served upon the 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.
(1)
At the designated public hearing, the 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 the 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.
(2)
Following the public hearing(s), the franchisee
shall be provided up to 30 days to submit its proposed findings and
conclusions to the LFA in writing, and thereafter the 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 the franchisee. The LFA shall also determine whether
it will revoke the franchise based on the information presented or,
where applicable, grant additional time to the franchisee to effect
any cure. If the LFA determines that it will revoke the franchise,
the LFA shall promptly provide the Franchisee with a written determination
setting forth the LFA's reasoning for such revocation. The franchisee
may appeal such written determination of the LFA to an appropriate
court of competent jurisdiction, which shall have the power to review
the decision of the LFA de novo to the extent permitted by law. The
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 the Franchisee's receipt of the written determination of
LFA.
(3)
The LFA may, at its sole discretion, take any
lawful action that it deems appropriate to enforce the LFA's rights
under the agreement in lieu of revocation of the franchise.
A.
Actions of parties. In any action by the LFA or the
franchisee that is mandated or permitted under the terms hereof, such
party shall act in a reasonable, expeditious, and timely manner.
B.
Binding acceptance. This agreement shall bind and
benefit the parties hereto and their respective heirs, beneficiaries,
administrators, executors, receivers, trustees, successors, and assigns.
This agreement is authorized by the Local Cable Services Ordinance
which has been duly adopted by the governing body of the Township/Borough.
C.
Preemption. In the event that a change in federal
or state law or regulation preempts or limits the enforceability of
a provision of this agreement, the provision shall be read to be preempted
or limited, but only to the extent and for the time required by such
law or regulation. Such change in law or regulation may be evidenced
by legislative or regulatory action, or by issuance of a ruling or
interpretation by the FCC or a court of competent jurisdiction, but
only after all applicable appeals (if any) have been exhausted or
all applicable appeal periods have passed (whichever occurs first).
In the event such federal or state law or regulation is subsequently
repealed, rescinded, amended, or otherwise changed so that the provision
hereof that had been preempted or limited is no longer preempted or
limited, such provision shall thereupon return to full force and effect,
and shall thereafter be binding on the parties hereto, without the
requirement of further action on the part of LFA.
D.
Force majeure. Neither party shall be held in default
under, or in noncompliance with, the provisions of this franchise,
nor suffer any enforcement or penalty relating to noncompliance or
default, where such noncompliance or alleged defaults occurred or
were caused by force majeure.
E.
Furthermore, the parties hereby agree that it is not
the LFA's intention to subject the franchisee to penalties, fines,
forfeitures, or revocation of the franchise for violations of the
agreement where the violation was a good-faith error that resulted
in no or minimal negative impact on subscribers, or where strict performance
would result in hardship being placed upon the franchisee that outweigh
the benefit to be derived by the LFA and/or subscribers.
F.
Notices. Unless otherwise expressly stated herein,
notices required under the franchise shall be mailed first class,
postage prepaid, to the addressees below. Each party may change its
designee by providing written notice to the other party.
(1)
Notices to the franchisee shall be mailed to:
|
William Petersen, President
Verizon Pennsylvania Inc.
1717 Arch Street, Floor 17
Philadelphia, PA 19103
|
(2)
With a copy to:
|
Jack White
Senior VP and Deputy General Counsel
One Verizon Way
Room VC43E010
Basking Ridge, NJ 07920-1097
|
(3)
Notices to the LFA shall be mailed to:
|
Terry S. Fedorchak
1100 Edgewood Road
Yardley, PA 19067
|
(4)
With a copy to:
|
David J. Truelove, Esq.
Curtin & Heefner, LLP
250 N. Pennsylvania Avenue
Morrisville, PA 19067
|
G.
Entire agreement. This franchise and the exhibits
hereto constitute the entire agreement between the franchisee and
the LFA and supersedes all prior or contemporaneous agreements, representations,
or understanding (written or oral) of the parties regarding the subject
matter hereof.
H.
Amendments. Amendments to this agreement shall be
mutually agreed to in writing by the parties.
I.
Captions. The captions and headings of articles and
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.
J.
Severability. If any section, subsection, sentence,
paragraph, term, or provision hereof is determined to be illegal,
invalid, or unconstitutional by any court of competent jurisdiction
or by any state or federal regulatory authority having jurisdiction
thereof, such determination shall have no effect on the validity of
any other section, subsection, sentence, paragraph, term, or provision
hereof, all of which will remain in full force and effect for the
term of the franchise.
K.
Recitals. The recitals set forth in this agreement
are incorporated into the body of this agreement as if they had been
originally set forth herein.
L.
FTTP network transfer prohibition. Under no circumstance,
including, without limitation, upon expiration, revocation, termination,
denial of renewal of the franchise, or any other action to forbid
or disallow the franchisee from providing cable services, shall the
franchisee or its assignees be required to sell any right, title,
interest, use, or control of any portion of franchisee's FTTP network,
including, without limitation, the cable system and any capacity used
for cable service or otherwise, to the LFA or any third party. The
franchisee shall not be required to remove the FTTP network or to
relocate the FTTP network or any portion thereof as a result of revocation,
expiration, termination, denial of renewal, or any other action to
forbid or disallow the franchisee from providing cable services. This
provision is not intended to contravene leased access requirements
under Title VI or EG requirements set out in this agreement.
M.
Certain exceptions. The LFA and the franchisee each
acknowledge that they have received independent legal advice in entering
into this agreement. In the event that a dispute arises over the meaning
or application of any term(s) of this agreement, such term(s) shall
not be construed by the reference to any doctrine calling for ambiguities
to be construed against the drafter of the agreement.
N.
This article shall become effective five days after
enactment.
