[HISTORY: Adopted by the City Council of the City of Clairton 8-25-1992 by Ord. No. 1529. Amendments noted where applicable.]
Poles and wires — See Ch. 271.
For the purpose of this agreement, the following terms, phrases, words and abbreviations shall have the meanings ascribed to them below:
- An entity which owns or controls, is owned or controlled by or is under common ownership with the grantee.
- BASIC CABLE
- The tier of service regularly provided to all subscribers that includes the retransmission of local broadcast television signals.
- CABLE OPERATOR
- Any person or group of persons who provides cable service over a cable system and directly or through one or more affiliates owns a significant interest in such cable system or who otherwise controls or is responsible for, through any arrangement, the management and operation of such a cable system.
- CABLE SERVICE
- The one-way transmission to subscribers of video programming or other programming service and subscriber interaction, if any, which is required for the selection of such video programming or any other lawful communication service.
- CABLE SYSTEM
- A facility consisting of a set of closed transmission paths and associated signal generation, reception and control equipment or other communications equipment that is designed to provide cable service and other service to subscribers.
- Federal Communications Commission or successor governmental entity thereto.
- The initial authorization or renewal thereof issued by the franchising authority, whether such authorization is designated as a franchise, permit, license, resolution, contract, certificate or otherwise, which authorizes construction and operation of the cable system for the purpose of offering cable service or other service to subscribers.
- FRANCHISE AUTHORITY or FRANCHISING AUTHORITY
- The City of Clairton or the lawful successor, transferee or assignee thereof.
- TCI of Pennsylvania, Inc., or the lawful affiliate, successor, transferee or assignee thereof.
- GROSS REVENUES
- All revenue derived directly or indirectly by the cable operator from providing cable service within the City, including but not limited to basic subscribers service monthly fees, optional service fees, pay cable fees, installation and reconnection fees, late payment fees, guide sales, leased channel fees, converter rentals, studio rental, production equipment and personnel fees and a pro-rata share of South Hills System advertising revenues based on that percentage of City subscribers as calculated on the system whole; provided, however, that this shall not include any taxes on services furnished by the grantee herein imposed directly upon any subscriber or used by the state, local or other governmental unit and collected by the grantee on behalf of said governmental unit.
- An individual, partnership, association, joint-stock company, trust corporation or governmental entity.
- PUBLIC WAY
- The surface of and the space above and below any public street, highway, freeway, bridge, land path, alley, court, boulevard, sidewalk, parkway, way, lane, public way, drive, circle or other public right-of-way, including but not limited to public utility easements, dedicated utility strips or rights-of-way dedicated for compatible uses and any temporary or permanent fixtures or improvements located thereon now or hereafter held by the franchise authority in the service area which shall entitle the franchise authority and the grantee to the use thereof for the purpose of installing, operating, repairing and maintaining the cable system. "Public way" shall also mean any easement now or hereafter held by the franchising authority within the service area for the purpose of public travel or for utility or public service use dedicated for compatible uses and shall include other easements or rights-of-way as shall within their proper use and meaning entitle the franchise authority and the grantee to use thereof for the purposes of installing or transmitting the grantee's cable service or other service over poles, wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, attachments and other property as may be ordinarily necessary and pertinent to the cable system.
- SERVICE AREA
- The present municipal boundaries of the franchising authority and shall include any additions thereto by annexation or other legal means.
- A person or user of the cable system who lawfully receives cable services or other service therefrom, with the grantee's express permission.
- VIDEO PROGRAMMING
- Programming provided by, or generally considered comparable to programming provided by, a television broadcast station.
When not inconsistent with the context, words used in the present tense include the future tense, words in the plural number include the singular number, and words in the singular number include the plural number.
The franchising authority hereby grants to the grantee a nonexclusive franchise which authorizes the grantee to construct and operate a cable system and offer cable service and other services in, along, among, upon, across, above, over, under or in any manner connected with public ways within the service area and, for the purpose, to erect, install, construct, repair, replace, reconstruct, maintain or retain in, on, over, under, upon, across or along any public way and all extensions thereof and additions thereto, such poles, wires, cables, conductors, ducts, conduits, vaults, manholes, pedestals, amplifiers, appliances, attachments and other related property or equipment as may be necessary or appurtenant to the cable system. The franchising authority reserves the right to grant a similar use to any other person or firm.
The franchise granted pursuant to this agreement shall be for an initial term of 10 years from the effective date of the franchise as set forth in § A342-4, unless otherwise lawfully terminated in accordance with the terms of this agreement.
The grantee shall accept the franchise granted pursuant hereto by signing this agreement and filing the same with the Municipal Manager or other appropriate official or agency of the franchising authority within 30 days after the passage and final adoption of this agreement. Subject to the acceptance by the grantee, the effective date of this agreement shall be January 1, 1992.
The right to use and occupy said public ways, as defined above, for the purpose herein set forth, shall not be exclusive in the grantee. However, the franchising authority shall require a franchise agreement for any other person or entity, as defined above, engaging in the cable service business within any portion of the City. In cases were the franchising authority ignores or attempts and fails to meet its responsibility to franchise, the grantee may exercise any rights under the law to ensure equal protection under said law. Should the franchising authority grant additional franchise rights to another person, then this grantee shall immediately receive the benefits of any more favorable terms or conditions enjoyed by another person or entity; otherwise, this agreement and any enabling legislation may only be amended through mutual consent of the parties hereto. In the event that such action takes the form of an appeal made to the franchising authority, the franchising authority shall hear the grantee's petition and shall act upon the grantee's request through majority vote and written notice, written within 60 days of receipt of proper notice. Consent to the grantee's requests shall not be unreasonably withheld, and failure of the franchising authority to act as herein prescribed shall be deemed automatic consent.
All transmission and distribution structures, poles, other lines and equipment installed or erected by the grantee pursuant to the terms hereof shall be located so as to cause a minimum of interference with the proper use of public ways and with the rights and reasonable convenience of property owners who own property that adjoins any of said public ways. Similarly, the grantee shall install and maintain in such manner as to not interfere with any installation of the franchising authority. Matters between the grantee and any public utility shall be in compliance with contracts between these parties. The cable system shall be constructed and operated in compliance with applicable governmental construction and electrical codes.
If, during the course of the grantee's construction, operation or maintenance of the cable system, there occurs a disturbance of any public way by the grantee, it shall, at its expense, replace and restore such public way to a condition reasonably comparable to the condition of the public way existing immediately prior to such disturbance.
Upon its receipt of reasonable advance notice, not to be less than five business days, the grantee shall, at its own expense, protect, support, temporarily disconnect, relocate in the public way or remove from the public way any property of the grantee when lawfully required by the franchising authority by reason of traffic conditions, public safety, street abandonment, freeway and street construction, change or establishment of street grade, installation of sewers, drains, gas or water pipes or any other type of structures or improvements by the franchising authority; but, the grantee shall in all cases have the right of abandonment of its property. In an emergency situation, the grantee shall act immediately upon receipt of any report of such emergency. If public funds are available to any company using such street, easement or right-of-way for the purpose of defraying the cost of any of the foregoing, such funds shall also be made available to the grantee. In cases where the source of public funds for reimbursement costs is an agency other than the franchise authority, application for such funds must include a request made on behalf of the grantee. Should said public fund reimbursement request to fully compensate the grantee be denied, and should the franchising authority and the grantee be unable to agree on an acceptable method and amount of reimbursement, then the grantee shall be released from any obligation to provide cable service to the affected street or area. As an option, the grantee may arrange to continue to serve the affected street(s) or area and achieve appropriate reimbursement by deducting a fixed amount from the franchise fee paid to the municipality. The fixed amount shall be determined in an itemized statement of charges which shall be submitted to the municipality.
The grantee shall, on the request of any person holding a building moving permit issued by the franchising authority, temporarily raise or lower its wires to permit the moving of such building, provided that the expense of such temporary raising or lowering of wires is paid by said person, including, if required by the grantee, making such payment in advance, and the grantee is given not less then 10 business days' advance written notice to arrange for such temporary wire changes.
The grantee shall not remove any tree or trim any portion, either above, at or below ground level, of any tree within any public place without the prior consent of the franchising authority. In emergency situations, this restriction shall be waived and the grantee may act in a reasonable manner and with minimal corrective action.
Subject to any applicable state or federal regulations or tariffs, the franchising authority shall have the right to make additional use, for any public purpose, of any poles or conduits controlled or maintained exclusively by or for the grantee in any public way, provided that such use by the franchising authority does not interfere with a current or future use by the grantee; the franchising authority holds the grantee harmless against and from all claims, demands, costs or liabilities of every kind and nature whatsoever arising out of such use of said poles or conduits, including but not limited to reasonable attorneys' fees and costs; and at the grantee's sole discretion, the franchising authority may be required either to pay a reasonable rental fee or otherwise reasonably compensate the grantee for the use of such poles, conduits or equipment; provided, however, that the grantee agrees that such compensation or charge shall not exceed those paid by it to public utilities pursuant to the applicable pole attachment agreement or other authorization relating to the service area.
The grantee shall put, keep and maintain all parts of the cable system in good and standard condition throughout the entire franchise period. Construction, installation and maintenance of the cable system shall be performed in an orderly and workmanlike manner. All such work shall be performed in substantial accordance with applicable FCC or other federal, state and local regulations. The cable system shall not unreasonably endanger or interfere with the safety of persons or property in the service area.
In those areas of the service area where all of the transmission or distribution facilities of the respective public utilities providing telephone communications and electric services are underground, the grantee likewise shall construct, operate and maintain all of its transmission and distribution facilities underground, provided that such facilities are actually capable of receiving the grantee's cable and other equipment without technical degradation of the cable system's signal quality. In those areas of the service area where the transmission or distribution facilities of the respective public utilities providing telephone communications and electric services are both aerial and underground, the grantee shall have the sole discretion to construct, operate and maintain all of its transmission and distribution facilities or any part thereof aerially or underground. Nothing contained in this section shall require the grantee to construct, operate and maintain underground any ground-mounted appurtenances such as subscriber taps, line extenders, system passive devices (splitters or directional couplers), amplifiers, power supplies, pedestals or other related equipment. Notwithstanding anything to the contrary contained in this section, in the event that all of the transmission or distribution facilities of the respective public utilities providing telephone communications and electric services are placed underground after the effective date of this agreement, the grantee shall only be required to construct, operate and maintain all of its transmission and distribution facilities underground if it is given reasonable notice and access to the public utilities' facilities at the time that such are placed underground.
The cable system as constructed as of the date of the passage and final adoption of this agreement substantially complies with the material provisions hereof. The grantee is hereby authorized to extend the cable system as necessary, as desirable or as required pursuant to the terms hereof within the service area. Whenever the grantee shall receive a written request for service from at least 15 subscribers within 1,320 cable-bearing strand feet (1/4 cable mile) of its trunk cable or from 25 subscribers in underground construction areas, it shall extend its cable system to such subscribers at no cost to said subscribers for system extension, other than the usual connection fees for all subscribers, provided that such extension is technically feasible and if it will not adversely affect the operation, financial condition or market development of the cable system or as provided for under § A342-15 of this agreement. Written requests shall be numbered at a rate of one head of household per individual address.
No subscriber shall be refused service arbitrarily. However, for unusual circumstances, such as a subscriber's request to locate his cable drop underground, existence of more than 150 feet of distance from distribution cable to connection of service to subscribers or a density of less than 15 subscribers per 1,320 cable-bearing strand feet of trunk or distribution cable (25 subscribers in underground construction areas), cable service or other service may be made available on the basis of a capital contribution in aid of construction, including cost of material, labor and easements. For the purpose of determining the amount of capital contribution in aid of construction to be borne by the grantee and subscribers in the area in which cable service may be expanded, the grantee will contribute an amount equal to the construction and other costs per mile, multiplied by a fraction whose numerator equals the actual number of potential subscribers per 1,320 cable-bearing strand feet of its trunks or distribution cable and whose denominator equals 15 subscribers (25 subscribers underground). Potential subscribers will bear the remainder of the construction and other costs on a pro rata basis. The grantee may require that the payment of the capital contribution in aid of construction borne by such potential subscribers be paid in advance.
The grantee shall provide, without charge, one outlet of basic service to the franchising authority's office building(s), fire station, police station and public and nonprofit private school building that is passed by its cable system. Channels available through such outlets may be limited to basic service, and this service shall not be sold in any manner. Users of such outlets shall hold the grantee harmless from any and all liability or claims arising out of their use of such outlets, including but not limited to those arising from copyright liability. Notwithstanding anything to the contrary in this section, the grantee shall not be required to provide an outlet to such buildings where the drop line exceeds 150 cable feet; however, the grantee may elect to complete such installation after technical and financial analysis. The distribution of the cable system inside above-noted buildings and the extent thereof shall be accomplished through the advice of the grantee, with final options, responsibilities and expenses being those of the building owner or occupant organization.
In the case of any emergency or disaster, the grantee shall, upon request of the franchising authority, make available its facilities for the franchising authority to provide emergency information and instructions during the emergency or disaster period. The franchising authority shall hold the grantee, its agents, employees, officers and assigns hereunder harmless from any claims arising out of the emergency use of its facilities by the franchising authority, including but not limited to reasonable attorneys' fees and costs.
The grantee shall maintain equipment capable of providing standby power for antenna site, transportation and trunk amplifiers.
The franchising authority is desirous of having incorporated into its cable television system the capacity which will permit the franchising authority, in times of emergency, to override, by remote control, the audio of all channels simultaneously. Such override capability shall be constructed and activated as provided in Subsection C. The grantee would cooperate with the franchising authority in the use and operation of the emergency alert override system. The Mayor or City Manager would be authorized to declare an emergency.
In the event that the grantee shall hereinafter enter into a franchise agreement with a municipality in the South Hills System which contains provisions for emergency override, the grantee shall notify the franchising authority with regard to such provision. The franchising authority and the grantee may then negotiate terms and conditions under which emergency override may be provided. All municipalities served by the South Hills System must agree to have emergency override interrupt programming unless technological exclusion of individual municipalities is possible.
The grantee shall operate and maintain its cable television system in full compliance with the standards set forth by the Federal Communications Commission (FCC) and the Cable Communications Policy Act of 1984, and any amendments thereof, and any other state or federal law or regulation.
The grantee shall have no obligation to construct or extend the system nor to provide, repair, replace, maintain or operate cable television service for any cause beyond the grantee's control, including, without limitation, acts of God, fire, flood, earthquakes, hurricane, unavoidable casualty, extraordinary delays in transportation, strikes, layoffs, boycotts, embargoes, government orders or other requirements, acts of civil or military authorities, governmental restrictions, regulations or controls, enemy or hostile governmental action, civil commotion, energy shortages, acts or omissions of carriers or activities or other emergency conditions, including weather conditions incompatible with good quality workmanship. However, the grantee shall make every effort to provide service in such an event.
The grantee shall, through the entire period of this agreement, provide customer service in concert with the National Cable Television Association (NCTA) Customer Service Standards. To validate agreement with these standards, the grantee shall keep maintenance service records which will indicate the nature of all service complaints, the date and time the complaint was received, the disposition of such complaints and the time and date thereof. These records shall be made available to the City Manager or a named designee in compliance with provisions of § A342-26 herein. All service complaint records shall be retained on file for a period of three years.
The grantee shall pay to the franchising authority a franchise fee equal to 5% of gross subscriber revenues, as defined in § A342-1A, and actually received by the grantee from the operation of the cable system. This payment shall be made within 45 days of the close of each calendar quarter during the term of this agreement and shall be accompanied by a brief statement of gross revenues from City subscribers during the previous quarter. Additionally, the grantee may credit against any such payments any tax or assessment of any kind imposed by franchising authority or other governmental entity on a cable operator or subscribers, or both, solely because of their status as such; any tax or assessment of general applicability which is unduly discriminatory against cable operators or subscribers (including any such tax or assessment imposed, both on utilities and cable operators and their services). Any other special City tax or fee of general applicability and relating to the normal, usual and daily conduct of the grantee with regard to its business operations shall be paid by the grantee and deducted from the fourth quarter franchise fee payment. Sales tax or other tax levied on a subscription basis and collected by the grantee shall be deducted from gross revenues in reporting franchise fees. For the purpose of this section, the twelve-month period applicable under the franchise for the computation of the franchise fee shall be a calendar year. Within 45 days of the close of each calendar year, a representative of the grantee shall present a complete, accurate and verified statement of gross revenues as defined herein and actually collected from subscribers in the City during the previous year. In no event shall franchise fee payments required to be paid by the grantee exceed 5% of gross revenue received by the grantee in any twelve-month period.
The franchising authority may not regulate the rates for the provision of cable service and other services, including but not limited to ancillary charges relating thereto, except as expressly provided herein and except as authorized pursuant to federal and state law, including but not limited to the Cable Act and FCC Rules and Regulations relating thereto. From time to time, and at any time, the grantee has the right to modify its rates and charges, including but not limited to the implementation of additional charges and rates; provided, however, that the grantee shall give notice to the franchising authority of any such modifications or additional charges at least 30 days prior to the effective date thereof. A full schedule of rates and charges of the grantee shall be filed with the franchising authority, and no rate or charge shall become effective unless adequate notice is provided to the franchising authority as outlined above. The grantee specifically agrees that, in the event that federal law changes mandating municipal regulation of future increases in rates and charges, with a date specific for implementation of such power, the grantee shall, while retaining full rights of due process under the law, comply with such mandate; provided, however, that such compliance shall encompass only those requirements expressly set forth in such law. Should municipal power to regulate future rate adjustments be contained in law as permissive language, discussion regarding amendment of this agreement shall occur at the request of the franchising authority or the grantee. Relative to any future action creating rate regulation, the franchising authority shall endorse or accept such regulation through majority vote of the franchising authority, with written notice of such action delivered to the grantee. The grantee shall have the right to present, and the franchising authority shall hear, the grantee's requests for compensatory adjustments to provide for amendment of this agreement. The franchising authority shall act on the grantee's requests through majority vote, reported to the grantee in writing, within 60 days. Failure of the franchising authority to act accordingly shall be deemed as automatic consent.
The franchising authority and the grantee agree that any proceedings undertaken by the franchising authority that relate to the renewal of the grantee's franchise shall be governed by and comply with the provisions of Section 626 of the Cable Act (as such existed as of the effective date of the Cable Act), unless the procedures and substantive protection set forth therein shall be deemed to be preempted and superseded by the provisions of any subsequent provision of federal and state law.
In addition to the procedures set forth in said Section 626(a) of the Cable Act, the franchising authority agrees to notify the grantee of its preliminary assessments regarding the identity of future cable-related community needs and interests, as well as the past performance of the grantee under the then current franchise term. The franchising authority further agrees that such a preliminary assessment shall be provided to the grantee prior to the time that the four-month period referred to in Subsection (c) of Section 626 of the Cable Act is considered to begin. Notwithstanding anything to the contrary set forth in this section, the grantee and franchising authority agree that at any time during the term of the then current franchise, while affording the public appropriate notice and opportunity to comment, the franchising authority and the grantee may agree to undertake and finalize negotiations regarding renewal of the then current franchise, and the franchising authority may grant a renewal thereof. The grantee and the franchising authority consider the terms set forth in this section to be consistent with the express provisions of Section 626 of the Cable Act. A reproduction of Section 626 of the Cable Act, as such existed as of the effective date of the Cable Act, is attached hereto as Exhibit A and incorporated herein by this reference.
Editor's Note: Said Exhibit A is on file in the City offices.
Except to the extent expressly required by federal or state law, if a renewal or extension of the grantee's franchise is denied and the franchising authority either lawfully acquires ownership of the cable system or by its actions lawfully effects a transfer of ownership of the cable system to another party, any such acquisition or transfer of the cable system shall be at a fair market value, determined on the basis of the cable system valued as a going concern.
The grantee and franchising authority agree that in the case of a lawful revocation of the franchise, at the grantee's request, which shall be made in its sole discretion, the grantee shall be given a reasonable opportunity to effectuate a transfer of its cable system to a qualified third party. The franchising authority further agrees that during such a period of time, it shall authorize the grantee to continue to operate pursuant to the terms of its prior franchise; however, in no event shall such authorization exceed a period of time greater than six months from the effective date of such revocation. If, at the end of that time, the grantee is unsuccessful in procuring a qualified transferee or assignee of its cable system which is reasonably acceptable to the franchising authority, the grantee and franchising authority may avail themselves of any rights they may have pursuant to federal or state law, it being further agreed that the grantee's continued operation of its cable system during the six-month period shall not be deemed to be a waiver nor an extinguishment of any rights of either the franchising authority or the grantee. Notwithstanding anything to the contrary set forth in this section, neither the franchise authority nor the grantee shall be required to violate federal or state law.
The grantee's right, title or interest in the franchise shall not be sold, transferred, assigned or otherwise encumbered, other than to an affiliate, without the prior consent of the franchising authority. The proposed assignees must show financial responsibility as reasonably acceptable to the franchising authority and as determined by industry standards of normalcy. Furthermore, the proposed assignee must agree to comply with all provisions of this franchise agreement. This entire section shall be subject to the provisions of § A342-37 herein, except the specified time period shall be 120 days. No such consent shall be required, however, for a transfer in trust, by mortgage, by other hypothecation or by assignment of any rights, title or interest of the grantee in the franchise or cable system in order to secure indebtedness.
The franchising authority 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 grantee or the cable system in order to determine whether or not the grantee is in compliance with the terms hereof and applicable state or federal laws. Except in emergency circumstances, such tests may be undertaken only after giving the grantee reasonable notice thereof, not to be less than two business days, and providing a representative of the grantee an opportunity to be present during such tests. In the event that such testing demonstrates that the grantee has substantially failed to comply with a material requirement hereof, the reasonable costs of such tests shall be borne by the grantee. In the event that such testing demonstrates that the grantee has substantially complied with such material provisions hereof, the cost of such testing shall be borne by the franchising authority. Except in emergency circumstances, the franchising authority agrees that such testing shall be undertaken no more than two times a year in the aggregate and that the results thereof shall be made available to the grantee upon the grantee's request.
The grantee agrees that the franchising authority may review such of its books, records, strand maps, plans and other like materials of the grantee, during normal business hours and on a nondisruptive basis, as is reasonably necessary to monitor compliance with the terms hereof. Such records shall include but shall not be limited to any public records required to be kept by the grantee pursuant to the rules and regulations of the FCC; however, the grantee shall not be required to violate the privacy provisions of Section 631 of the Cable Act. In addition, the City shall have the right to audit and recompute any amounts determined to be payable under this franchise; provided, however, that such audit shall take place within 36 months following the close of each of the grantee's fiscal years. Any additional amount which may be due and owing to the franchising authority as a result of such audit shall be presented to the grantee as supported by a copy of the audit report. Upon receipt of written notice requesting payment of any alleged amount due, the grantee shall have, while retaining all rights under this agreement and under applicable law, 45 days to remit any uncontested amount expressed in the audit. Disputes in this matter of franchise fees may be evaluated and disposed of according to the provision of §§ A342-30 through A342-34 herein. In the event that any franchise payment or recomputed amount, cost or penalty is not made on or before the applicable dates herein referenced or specified, interest shall be charged daily from such date at the annual rate of 15%.
Editor's Note: See 47 U.S.C. § 551.
The grantee shall maintain in full force and effect, at its own cost and expense, during the term of the franchise, comprehensive general liability insurance in the amount of $1,000, combined single limit for bodily injury and property damage. Said insurance shall designate the franchising authority as an additional insured. Such insurance shall be noncancelable except upon 30 days' prior written notice to the franchising authority. The grantee shall provide the franchising authority with a certificate of insurance obtained in compliance with this section and shall maintain the same on file with the City Manager of the franchising authority. The grantee shall immediately advise the franchising authority of any litigation which may develop within the City and which would impact this insurance. The franchising authority shall have this same obligation and shall notify the grantee.
The grantee agrees to indemnify, save and hold harmless and defend the franchising authority, its officers, boards and employees from and against any liability for damages and for any liability or claims resulting from property damage or bodily injury (including accidental death), which arise out of the grantee's construction, operation or maintenance of its cable system, including but not limited to reasonable attorney's fees and costs.
The grantee shall maintain and specifically agrees that it will maintain throughout the term of this franchise agreement a faithful performance bond running to the franchising authority, with a corporate surety approved by the franchising authority, in the penal sum of $50,000, conditioned that the grantee shall well and truly observe, fulfill and perform each term and condition of this franchise agreement and that, in each case of any breach of condition of the bond, the amount thereof shall be recoverable from the principal and surety thereof by the franchising authority for all damages resulting from the failure of the grantee to well and faithfully observe and perform any provision of this franchise agreement. Said performance bond obtained by the grantee in compliance with this section shall be filed and maintained with the City Manager of the franchising authority during the term of this franchise agreement. In lieu of securing such bond, the grantee shall supply and the franchising authority shall accept a guarantor guarantee as entered into by Tele Communications, Inc., the indirect parent of the grantee.
In the event that the franchising authority believes that the grantee has not complied with the terms of the franchise, it shall notify the grantee, in writing, of the exact nature of the alleged noncompliance.
The grantee shall have 20 days from receipt of the notice described in § A342-30 to respond to the franchising authority contesting the assertion of noncompliance or to cure such default or, in the event that, by the nature of default, such default cannot be cured within the twenty-day period, to initiate reasonable steps to remedy such default and notify the franchising authority of the steps being taken and the projected date that they will be completed.
In the event that the grantee fails to respond to the notice described in § A342-30 pursuant to the procedures set forth in § A342-31 or in the event that the alleged default is not remedied within 45 days after the grantee is notified of the alleged default pursuant to § A342-30, the franchising authority shall schedule a public hearing to investigate the default. Such public hearing shall be held at the next regularly scheduled meeting of the franchising authority which is scheduled at a time which is no less than five business days therefrom. The franchising authority shall notify the grantee of the time and place of such hearing and provide the grantee with an opportunity to be heard.
Subject to applicable federal and state law, in the event that the franchising authority, after such meeting, determines that the grantee is in default of any provision of the franchise, the franchising authority may:
Seek specific performance of any provision, which reasonably lends itself to such remedy, as an alternative to damages.
Commence an action at law for monetary damages or seek other equitable relief.
In the case of a substantial default of a material provision of the franchise, declare the franchise agreement to be revoked.
Seek recovery from the corporate surety or other guarantor guaranty for all damages resulting from the failure of the grantee to observe and perform any provision of the franchise agreement.
The grantee shall not be relieved of any of its obligations to comply promptly with any provision of the franchise by reason of any failure of the franchising authority to enforce prompt compliance.
The grantee shall not be held in default or noncompliance with the provisions of the franchise, nor suffer any enforcement or penalty relating thereto, where such noncompliance or alleged defaults are caused by strikes, acts of God, power outages or other events reasonably beyond its ability to control.
The following documents shall be incorporated herein:
Exhibit A, Section 626, Cable Communications Policy Act of 1984 (P.L. 98-549).
Exhibit B, TCI Customer First Program.
Exhibit C, NCTA Customer Service Standards.
Editor's Note: Said documents, consisting of Exhibits A, B and C, are on file in the City offices.
If the FCC or any other federal or state body or agency shall now or hereafter exercise any paramount jurisdiction over the subject matter of the franchise, then to the extent that such jurisdiction shall preempt and supersede or preclude the exercise of the like jurisdiction by the franchising authority, the jurisdiction of the franchising authority shall cease and no longer exist.
In any action by the franchising authority or representative thereof, mandated or permitted under the terms hereof, such party shall act in a reasonable, expeditious and timely manner. Furthermore, in any instance where approval or consent is required under the terms hereof, such approval or consent shall not be unreasonably withheld, and, in any instance where approval or consent of the franchising authority is requested, a decision is strongly encouraged within 45 days of such request. Should the franchising authority fail to respond within said time, second notice of the grantee request shall be given according to § A342-38 herein, and the franchising authority must render a decision within 15 days of receipt of the grantee request. Absent such decision, approval or consent shall be deemed granted.
Unless expressly otherwise agreed between the parties, every notice or response to be served upon the franchising authority or the grantee shall be in writing and shall be deemed to have been duly given to the required party five business days after having been posted in a properly sealed and correctly addressed envelope by certified or registered mail, postage prepaid, at a post office or branch thereof, regularly maintained by the United States Postal Service.
The notices or responses to the franchising authority shall be addressed as follows, with a copy to the City Attorney:
Office of the Municipal Manager
City of Clairton
551 Ravensburg Boulevard
Clairton, PA 15025
The notices or responses to the grantee shall be addressed as follows:
TCI of Pennsylvania, Inc.
5211 Brownsville Road
Pittsburgh, PA 15236
With copies to:
TCI of Pennsylvania, Inc.
Attn.: Legal Department
5619 DTC Parkway
Englewood, CO 80111
TCI of Pennsylvania, Inc.
Attn.: Government Relations
101 Ewing Road
Carnegie, PA 15106
The franchising authority and the grantee may designate such other address or addresses from time to time by giving notice to the other.
The captions to sections contained herein are intended solely to facilitate the reading thereof. Such captions shall not affect the meaning or interpretation of the text herein.
The grantee will provide one channel for PEG access. The grantee will provide equipment to playback tapes of PEG programming. The PEG access channel will be cablecast without charge. The grantee will attempt to accommodate request for the specific time of showing, however the grantee is not obligated to do so.
In the event that the grantee shall hereinafter enter into a franchise agreement with a municipality in the South Hills System which contains provisions for improved PEG access (over the provisions of Subsection A) (e.g., providing a PEG channel solely for one community's use), then the grantee agrees that such provisions shall automatically be incorporated into this franchise. The grantee shall notify the franchising authority when such changes need to be incorporated into this franchise.
In the event that PEG access provisions are changed, as outlined in § A342-40B and the grantee is required to provide a PEG channel solely for the franchising authority's use, then the grantee will also be required to provide to the franchising authority a character generator and all necessary equipment at the head end for the character generator within six months. It is further understood that the franchising authority's PEG channel will be provided on the lowest-priced service tier and that the grantee shall make every effort to provide advice and technical expertise to aid in the utilization of this channel.
It is understood that any favorable change as indicated above may be accompanied by other changes favorable to the grantee. Therefore, the franchising authority and the grantee agree to negotiate all required changes presented by the grantee, as secured in another municipality in the South Hills System, in order to accomplish a change in the PEG access status.
The grantee shall solicit for and provide service under provisions of existing or future law as regards nondiscrimination and shall thereby be evaluated and judged by any government or agency thereof having jurisdiction in such matters. Under such jurisdiction, the grantee may find it necessary to deny individual service in cases of chronically delinquent payment history or in cases of real or threatened violence toward an employee of the grantee. With regard to employment practices, the grantee shall also be evaluated and judged by any government or agency thereof as the same have competent jurisdiction.
The grantee shall maintain a local business office or agent which subscribers may telephone during regular business hours without incurring added message or toll charges, so that complaints regarding cable television operations may be promptly reported to the grantee. The grantee shall notify each subscriber, at the time of initial subscription to the service of the grantee, of the procedure for reporting and resolving complaints.
The grantee shall reimburse the franchising authority for costs actually incurred and clearly demonstrated as being directly associated with the renewal procedure involved with this agreement. Such costs shall be essential and reasonable and shall not exceed $2,500 unless otherwise agreed between the parties. The franchising authority shall submit to the grantee, as soon as practical, an itemized statement of costs incurred. Such statement shall be submitted via certified mail, return receipt requested, and the grantee shall tender payment within 30 days of receipt of such statement.
If any section, sentence, term, paragraph 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, sentence, term, paragraph or provision hereof, all of which will remain in full force and effect for the term of the franchise or any extension, renewal or renewals thereof.