CABLE FRANCHISE AGREEMENT
BETWEEN
THE CITY OF PITTSBURGH
AND
COMCAST OF
CALIFORNIA/PENNSYLVANIA/UTAH/WASHINGTON, INC.
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TABLE OF CONTENTS
Page
SECTION 1 DEFINITIONS............................................................................... 2
SECTION 2 GRANT OF FRANCHISE…………………………………………….6
2.1 GRANT OF AUTHORITY................................................... 6
2.2 TERM OF FRANCHISE ..................................................... 6
2.3 NON-EXCLUSIVITY........................................................... 6
2.4 POLICE POWERS ............................................................. 7
2.5 NO WAIVER OF RIGHTS .................................................. 7
2.6 FRANCHISE SUBJECT TO FEDERAL,
STATE AND LOCAL LAW.................................................. 7
2.7 COMPETITIVE EQUITY..................................................... 7
SECTION 3 COMPENSATION TO THE CITY................................................. 8
3.1 FRANCHISE FEES ............................................................ 8
3.2 QUARTERLY PAYMENTS................................................. 8
3.3 QUARTERLY REPORTS................................................... 9
3.4 AUDITS .............................................................................. 9
3.5 NO LIMITATION ON TAXING OR
FEE AUTHORITY............................................................... 9
3.6 BUNDLED SERVICES....................................................... 9
SECTION 4 SYSTEM CONSTRUCTION, OPERATION AND
MAINTENANCE ......................................................................... 10
4.1 TECHNICAL REQUIREMENT ......................................... 10
4.2 AREA TO BE SERVED.................................................... 11
4.3 SERVICE TO MULTIPLE DWELLING UNITS ................. 11
4.4 PERMITS ......................................................................... 12
4.5 REPAIRS AND RESTORATION...................................... 12
4.6 SYSTEM MONITORING .................................................. 13
4.7 SERVICE AREA MAPS.................................................... 14
4.8 BUILDING MOVES .......................................................... 14
4.9 DISCONNECTION AND RELOCATION.......................... 14
4.10 EMERGENCY REMOVAL OF EQUIPMENT................... 14
4.11 TREE TRIMMING............................................................. 15
4.12 NON-DISCRIMINATION .................................................. 15
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SECTION 5 CABLE SYSTEM SPECIFICATIONS AND
STATE-OF-THE-ART................................................................. 15
5.1 CABLE SYSTEM SPECIFICATIONS............................... 15
5.2 SYSTEM TESTS AND INSPECTIONS............................ 16
5.3 STATE-OF-THE-ART....................................................... 17
5.4 EMERGENCY ALERT SYSTEM...................................... 17
SECTION 6 CUSTOMER SERVICE STANDARDS....................................... 17
6.1 OFFICE HOURS AND TELEPHONE
AVAILABILITY.................................................................. 17
6.2 INSTALLATIONS AND SERVICE CALLS ....................... 18
6.3 NOTICES ......................................................................... 19
6.4 BILLING............................................................................ 20
6.5 CUSTOMER COMPLAINT PROCEDURES .................... 20
6.6 DISCONNECTION ........................................................... 21
6.7 SERVICE INTERRUPTIONS ........................................... 22
6.8 SERVICES TO PEOPLE WITH DISABILITIES................ 22
6.9 PRIVACY.......................................................................... 23
SECTION 7 SERVICES TO THE COMMUNITY............................................ 24
7.1 SERVICES TO COMMUNITY FACILITIES...................... 24
7.2 INTERNET SERVICE TO COMMUNITY
FACILITIES ...................................................................... 25
7.3 PUBLIC, EDUCATIONAL AND GOVERNMENTAL
("PEG") CHANNELS ........................................................ 25
7.4 PEG GRANTS.................................................................. 28
7.5 INSTITUTIONAL NETWORK........................................... 31
SECTION 8 REGULATION BY THE CITY..................................................... 31
8.1 RIGHT TO INSPECT........................................................ 31
8.2 RIGHT TO CONDUCT COMPLIANCE REVIEW............. 32
8.3 RATE REGULATION ....................................................... 32
8.4 RESERVED AUTHORITY................................................ 32
SECTION 9 REPORTING REQUIREMENTS................................................ 32
9.1 CUSTOMER COMPLAINT REPORTS ............................ 32
9.2 SERVICE CALL REPORTS ............................................. 33
9.3 GOVERNMENT REPORTS ............................................. 33
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SECTION 10 FRANCHISE VIOLATIONS, DAMAGES
AND REVOCATION................................................................... 33
10.1 VIOLATIONS.................................................................... 33
10.2 LIQUIDATED DAMAGES................................................. 34
10.3 PERFORMANCE BOND ................................................... 36
10.4 REVOCATION................................................................... 36
SECTION 11 PROGRAMMING ....................................................................... 38
11.1 CHANNEL CAPACITY ..................................................... 38
11.2 BROADCAST CHANNELS .............................................. 38
11.3 SIGNAL SCRAMBLING ................................................... 39
11.4 CONTINUITY OF SERVICE............................................. 39
11.5 PARENTAL CONTROL CAPABILITY.............................. 39
11.6 TIER BUY THROUGH PROHIBITION............................. 39
SECTION 12 LIABILITY AND INDEMNIFICATION ......................................... 40
12.1 INDEMNIFICATION ......................................................... 40
12.2 INSURANCE .................................................................... 40
SECTION 13 FRANCHISE TRANSFER AND RENEWAL............................... 41
13.1 TRANSFER, ASSIGNMENT OR CHANGE IN
CONTROL........................................................................ 41
13.2 RENEWAL........................................................................ 42
SECTION 14 MISCELLANEOUS..................................................................... 42
14.1 FORCE MAJEURE........................................................... 42
14.2 REMOVAL OF SYSTEM.................................................. 43
14.3 NOTICES ......................................................................... 43
14.4 MINORITY AND WOMEN'S BUSINESS
ENTERPRISES................................................................ 44
14.5 CAPTIONS....................................................................... 45
14.6 GOVERNING LAW........................................................... 45
14.7 ENTIRE AGREEMENT .................................................... 45
14.8 SEVERABILITY ............................................................... 45
14.9 CHANGE OF LAW ........................................................... 45
14.10 COMPLIANCE WITH LAWS............................................ 46
14.11 NO THIRD PARTY BENEFICIARIES .............................. 46
14.12 APPLICABILITY OF AGREEMENT ................................. 46
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14.13 FRANCHISE REPRESENTATIVE................................... 46
APPENDIX A INSTITUTIONAL NETWORK ("I-NET") SERVICES .................. 48
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CABLE FRANCHISE AGREEMENT
This Cable Franchise Agreement (hereinafter referred to as the
“Agreement”) is executed as of the ____ day of _____________, 2010
(hereinafter referred to as the “Effective Date”) by and between the City of
Pittsburgh, a municipality located in Allegheny County, Pennsylvania (hereinafter
referred to as the “City”) and Comcast of
California/Pennsylvania/Utah/Washington, Inc. (hereinafter referred to as
“Comcast”).
WHEREAS, pursuant to the Cable Communications Policy Act of 1984, the
Cable Television Consumer Protection and Competition Act of 1992, the
Telecommunications Act of 1996 and any amendments thereto (hereinafter
collectively referred to as the “Cable Act”), the regulations of the Federal
Communications Commission (hereinafter referred to as the “FCC”) and
Pennsylvania law, the City is authorized to grant and renew franchises to
construct, operate and maintain a Cable System utilizing public rights-of-way and
properties within the City’s jurisdiction; and
WHEREAS, Comcast currently holds a cable franchise from the City by
virtue of a cable franchise agreement originally granting a cable franchise to TCI
of Pennsylvania., Inc. doing business as AT&T Cable Services, Inc. and such
franchise agreement expired on December 31, 2009; and
WHEREAS, Comcast has requested that the City renew Comcast’s
franchise to maintain, construct, operate, and upgrade its Cable System over,
under and along the aforesaid rights-of-ways for use by the City’s residents; and
WHEREAS, the aforesaid rights-of-way used by Comcast are public
properties held in trust on behalf of the citizens by the City and the right to use
said rights-of-way is a valuable property right; and
WHEREAS, the City desires to protect and manage the aforesaid rights-of-
way, require high standards of customer service, maintain the City’s institutional
network, receive franchise fees for Comcast’s use of the City’s rights-of-ways as
provided by federal law, preserve the City’s public, educational and governmental
channels, establish certain reporting requirements, maintain certain
complimentary services and provide for the current and future cable-related
needs of its residents; and
WHEREAS, the City held a public hearing on _______________________
on the subject of cable franchise renewal, which provided citizens with notice and
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opportunity to comment on the cable operator’s past performance and the City’s
future cable-related community needs; and
WHEREAS, the City has determined that Comcast has the financial, legal
and technical ability to provide Cable Services to Subscribers located in the City;
and
WHEREAS, the City has determined that this Agreement and the process
for consideration of this Agreement complies with all applicable federal, state and
local laws and regulations; and
WHEREAS, the City, after affording the public notice and opportunity for
comment, has determined that the public interest would be served by renewing
Comcast’s franchise according to the terms and conditions contained herein;
NOW THEREFORE, in consideration of the mutual promises contained
herein and intending to be legally bound hereby, the City and Comcast agree as
follows:
SECTION 1
DEFINITIONS
The following terms used in this franchise shall have the following
meanings:
(a) Affiliated Entity
- Any corporation, partnership or other business
entity that owns or controls, is owned or controlled by, or is under common
ownership or control with Comcast.
(b) Basic Service
- The service tier that includes at least the
retransmission of local broadcast television signals and the Public, Educational
and Governmental (“PEG”) access Channels.
(c) Cable Act
- Title VI of the Communications Act of 1934, as amended
by the Cable Communications Policy Act of 1984, the Cable Television
Consumer Protection and Competitive Act of 1992 and the Telecommunications
Act of 1996, as it may, from time to time, be further amended.
(d) Cable Ordinance
- Chapter 425 of the City Code of Ordinances as it
may, from time to time, be further amended.
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(e) 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 or use of such video programming or other
programming service.
(f) Cable System
- A facility, consisting of a set of closed transmission
paths and associated signal generation, reception, and control equipment that is
designed to provide Cable Service which includes video programming and which
is provided to multiple Subscribers within the City but such term does not include
(1) a facility that serves only to retransmit the television signals of one or more
television broadcast stations; (2) a facility that serves Subscribers without using
any public right-of-way; (3) a facility of a common carrier which is subject, in
whole or in part, to the provisions of Title II of the Communications Act, except
that such facility shall be considered a Cable System (other than for purposes of
Section 621 of the Cable Act) to the extent that facility is used in the transmission
of video programming directly to Subscribers unless the extent of that use is
solely to provide interactive on-demand services; (4) an open video system that
complies with Section 653 of the Cable Act; or (5) any facilities of any electric
utility used solely for operating its electric utility systems.
(g) Channel
- A portion of the electromagnetic frequency spectrum
which is used in a Cable System and which is capable of delivering a television
channel as defined by the FCC.
(h) Communications Act
– The federal Communications Act of 1934 , as
amended and as it may, from time to time, be further amended.
(i) Complaint
- Any written or oral communication (including electronic
mail) by a Subscriber expressing dissatisfaction with any aspect of Comcast’s
(j) Drop
- The coaxial or fiber optic or other cable that connects a home
or building to the Cable System.
(k) Educational Access Channel
- An access channel in which the
programming on the channel is educational in nature.
(l) FCC
- Federal Communications Commission.
(m) Franchise
- The right granted by the City to construct, operate and
maintain a Cable System within the corporate limits of the City as embodied in
the terms and conditions of this Agreement and in the Cable Ordinance.
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(n) Government Access Channel - An access channel in which the City
of Pittsburgh is the primary programmer of the channel.
(o) Gross Revenues
- All revenue received directly or indirectly by
Comcast or its Affiliated Entities arising from, attributable to, or in any way
derived from the operation of Comcast’s Cable System in the City to provide
Cable Services, calculated in accordance with Generally Accepted Accounting
Principles (GAAP). Gross Revenues shall include, but are not limited to, the
following:
(1) Basic Service fees;
(2) fees charged to Subscribers for any service tier other than
Basic Service;
(3) fees charged for premium services;
(4) fees charged to Subscribers for any optional, per-channel or
per-program services;
(5) revenue from the provision of any other Cable Services;
(6) charges for installation, additional outlets, relocation,
disconnection, reconnection and change-in-service fees for
video or audio programming;
(7) fees for downgrading any level of Cable Service programming;
(8) fees for service calls;
(9) fees for leased access channels;
(10) charges based on the sale or lease of any portion of the Cable
System or fiber capacity for Cable Service;
(11) rental or sales of any and all subscriber equipment, including
converters and remote control devices;
(12) studio rental, production equipment and personnel fees;
(13) any and all locally-derived advertising revenues;
(14) sale or rental of Subscriber lists;
(15) revenues or commissions derived locally from home shopping
channels;
(16) revenue from interactive television services;
(17) fees for any and all music services;
(18) fees for video-on-demand;
(19) sales of hardcopy program guides;
(20) late payment fees;
(21) NSF check charges; and
(22) franchise fees.
With respect to advertising and/or home shopping revenues, said amounts
shall be determined by multiplying the total revenue by the applicable percentage
resulting from dividing the number of subscribers in the City by the total number
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of regional subscribers from which such advertising and/or home shopping
revenue is received. Gross Revenues shall not include bad debts or any taxes on
services furnished by Comcast and imposed directly upon any Subscriber or user
by the City, state, federal or other governmental unit.
(p) Multiple Dwelling Units or MDU’s
- Any building, buildings or area
occupied by dwelling units, appurtenances thereto, grounds and facilities, which
dwelling units are intended or designed to be owned, occupied or leased for
occupation, or actually occupied, as individual homes or residences for three (3)
or more households.
(q) Non-Cable Service
- Any service that is not Cable Service as defined
herein, including, but not limited to, Information Services and
Telecommunications Services.
(r) Normal Business Hours
- 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.
(s) Normal Operating Conditions
- Business conditions within Comcast’s
service department which are within the control of Comcast. Those conditions
that are not within the control of Comcast include, but are not limited to, natural
disasters, civil disturbances, power outages, telephone network outages and
severe or unusual weather conditions.
(t) Outlet
- An interior receptacle that connects a television set to the
Cable System.
(u) Public Access Channel - An access channel in which members of
the general public are the primary programmers of the channel.
(v) PEG Access Channel - Any access channel, or portion thereof,
designated for Public Access, Educational Access or Government Access
purposes or otherwise made available to transmit access programming.
(w) Programming
- Any video or audio signal carried over the Cable
System generally considered comparable to programming provided by a
television broadcast station.
(x) Public Rights-of-Way
- The surface and the area across, in, over,
along, under and upon the public streets, roads, lanes, avenues, alleys,
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sidewalks, easements, bridges, highways and other rights-of-way, as the same
now or may thereafter exist, which are under the jurisdiction or control of the City.
(y) Service Interruption - The loss of picture or sound on one or more
channels on the Cable System or the degradation of the picture and/or sound
quality on such channel(s) to the extent that the Subscriber is unable to receive a
signal of reasonable quality.
(z) Subscriber
- A person or entity who contracts with Comcast for, and
lawfully receives, the video signals and Cable Services distributed by the Cable
System.
SECTION 2
GRANT OF FRANCHISE
2.1 GRANT OF AUTHORITY
Pursuant to the Cable Act, the regulations of the FCC and Pennsylvania
law, the City hereby grants a non-exclusive and revocable franchise to Comcast,
authorizing and permitting Comcast to construct, operate, and maintain a Cable
System in the City’s public rights-of-way.
Subject to the terms and conditions contained herein, the City hereby
grants to Comcast the right to own, construct, extend, install, operate, maintain,
upgrade and rebuild a Cable System, including such wires, cables, fiber,
conductors, ducts, conduits, amplifiers, pedestals, attachments and other
property and equipment as are necessary and appropriate to the operation of the
Cable System in the Public Rights-of-Way, for the purpose of reception,
transmission, amplification, origination, distribution or redistribution of video and
audio signals to provide Cable Services as permitted by applicable law.
2.2 TERM OF FRANCHISE
The term of this Agreement shall be for a period of ten (10) years commencing
on the Effective Date and expiring on _____________, unless the Franchise is
lawfully terminated prior to the expiration date in accordance with the terms and
conditions of this Agreement.
2.3 NON-EXCLUSIVITY
This Franchise granted to Comcast shall be non-exclusive. Nothing in this
Agreement shall affect the right of the City to grant other franchises to construct,
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operate or maintain a Cable System to provide Cable Service within the City or
for any other purpose.
2.4 POLICE POWERS
Comcast's rights under this Agreement are subject to the police powers of
the City to adopt and enforce laws and regulations necessary for the safety and
welfare of the public. These include general laws and regulations as well as laws
and regulations pertaining to the construction, operation and maintenance of
cable systems. Such laws and regulations are separate and distinct from the
terms and conditions contained in this Agreement.
2.5 NO WAIVER OF RIGHTS
(a) No course of dealing between the City and Comcast, nor any delay
on the part of the City in exercising any rights hereunder, shall operate as a
waiver of any such rights of the City or acquiescence in the actions of Comcast in
contravention of such rights, except to the extent expressly waived by the City.
(b) No course of dealing between the City and Comcast, nor any delay
on the part of Comcast in exercising any rights hereunder, shall operate as a
waiver of any such rights of Comcast or acquiescence in the actions of the City in
contravention of such rights, except to the extent expressly waived by Comcast.
2.6 FRANCHISE SUBJECT TO FEDERAL, STATE AND LOCAL LAW
This Franchise is subject to and shall be governed by all lawful and
applicable provisions of federal, state and local laws and regulations. This
franchise is subject to the Charter of the City of Pittsburgh and all applicable City
Ordinances, including the Cable Ordinance. Without waiving any of its powers,
the City agrees that, to the extent any terms of this Agreement are inconsistent
with the terms of the Cable Ordinance, this Agreement shall control. No future
amendments to the Cable Ordinance in whole or in part will materially vary the
terms of this Agreement.
2.7 COMPETITIVE EQUITY
(a) Comcast acknowledges and agrees that the City reserves the right
to grant one or more additional franchises to construct, operate, and maintain a
Cable System within the City.
(b) The Franchise granted to Comcast is non-exclusive; however, if the
City grants a subsequent franchise that, when taken as a whole upon
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consideration of all of its material obligations, is more favorable or less
burdensome to the subsequent franchisee than this Agreement is to Comcast,
then Comcast may request an amendment to this Agreement to provide Comcast
with competitive equity. If the City agrees with Comcast that, when taken as a
whole upon consideration of all of its material obligations, the subsequent
franchise is more favorable or less burdensome, then the City and Comcast shall
enter into discussions in order to modify this Agreement to the mutual satisfaction
of both parties to provide Comcast with such competitive equity.
SECTION 3
COMPENSATION TO THE CITY
3.1 FRANCHISE FEES
Comcast shall pay to the City an amount equal to five percent (5%) of the
Gross Revenues derived from the operation of its Cable System in the City.
Comcast shall not deduct or otherwise credit against the franchise fee any tax,
fee or assessment of general applicability. The City may amend the franchise
fee upon sixty (60) days written notice to Comcast provided that the franchise fee
may not exceed the maximum percentage permitted by law. A copy of the
Resolution or Ordinance authorizing the franchise fee rate adjustment shall
accompany such written notice.
3.2 QUARTERLY PAYMENTS
Franchise fee payments to the City under this provision shall be computed
at the end of each calendar quarter. Such payments shall be made no later than
forty-five (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). Upon request and if mutually agreeable,
Comcast shall deposit the franchise fee payments electronically into an account
as designated by the City. In the event that any franchise fee payment is not
made on or before the date by which it is due, then interest shall be added at the
rate of five percent (5%) per annum of the amount of franchise fee revenue due
to the City. The interest rate shall be applied as described from the date such
franchise fee payment was originally due. No acceptance of any payment shall
be construed as an accord that the amount paid is in fact the correct amount, nor
shall acceptance of any payment be construed as a release of any claim the City
may have for additional sums payable under this Agreement.
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3.3 QUARTERLY REPORTS
Each franchise fee payment shall be accompanied by a written report
containing an accurate statement of Comcast’s Gross Revenues received for
Cable Services for each calendar quarter in connection with the operation of
Comcast’s Cable System to provide Cable Service and a brief report showing the
basis for computation of fees. Specifically, the report shall contain a line item for
every source of revenue received and the amount of revenue received from each
source. The report shall be certified by a financial representative of Comcast.
3.4 AUDITS
No more than once every three (3) years during the term of the Agreement, upon
thirty (30) days prior written notice, the City shall have the right to conduct an
independent audit or franchise fee review of Comcast’s records reasonably
related to the sources, amounts and computation of Gross Revenues in
accordance with generally accepted accounting principles. Any such franchise
fee audit or review shall commence within five (5) years from the date the City
receives such payment, after which period any such payment shall be considered
final. Upon request, Comcast shall provide the City with copies of financial
records related to the franchise fee audit or review Any confidential information
provided for review shall be afforded all confidential protection available under
state and federal law. Such records shall also be kept or made available to the
City at the notice location for Comcast specified in Section 13.3 below. If the
audit or franchise fee review shows that franchise fees have been underpaid,
then Comcast shall pay the underpaid amount and monetary fines of ten percent
(10%) of the underpayment. If franchise fees have been underpaid by five
percent (5%) or more, then Comcast shall also pay the total cost of the audit or
franchise fee review.
3.5 NO LIMITATION ON TAXING OR FEE AUTHORITY
Nothing in this section or in this Agreement shall be construed to limit the
authority of the City to impose any tax, fee or assessment of general applicability.
Such taxes, fees or assessments shall be in addition to franchise fees.
3.6 BUNDLED SERVICES
In the event Comcast shall have the right to use and occupy the Public
Rights-of-Way to furnish services other than Cable Service by virtue of legal
authority from a source outside this Franchise (“Other Services”), and Comcast
bundles, integrates, ties, or combines Cable Service with Other Services creating
a bundled package so that Subscribers pay a single fee for more than one class
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of service and receive a discount on Cable Service, Gross Revenue shall be
determined based on an equal allocation of the package revenue in a manner
consistent with GAAP as follows:
(a) Comcast agrees that for purposes of calculation of the franchise
fee, it shall allocate to Cable Service revenue a discount of no more than a pro
rata share of the total discount applied to the bundled or combined services.
(b) The pro rata share shall be computed on the basis of the published
charge for each service of the bundled or combined classes of services when
purchased separately.
(c) If Comcast does not offer any component of the bundled package
separately, it shall declare a stated retail value for each component as reflected
on the books and records of Comcast in accordance with FCC or state public
utility regulatory commission rules, regulations, standards or orders, and/or
based on reasonable comparable prices for the service for the purpose of
determining franchise fees based on the package discount.
SECTION 4
SYSTEM CONSTRUCTION, OPERATION AND MAINTENANCE
4.1 TECHNICAL REQUIREMENT
(a) Comcast shall operate, maintain, construct and extend the Cable
System so as to offer high quality signals and reliable delivery of one-way and
two-way Cable Services for all programming services throughout all parts of the
City. The video programming signals provided by the Cable System shall be
delivered in high quality resolution so that such signals shall meet or exceed any
and all technical performance standards of the FCC. The construction,
installation and maintenance of the Cable System shall meet the standards of the
National Electrical Safety Code, the National Electric Code and any other
applicable federal laws and regulations and the laws, ordinances and
construction standards of the Commonwealth of Pennsylvania and the City of
Pittsburgh. The Cable System shall be installed and located so as to minimize
interference with the rights and convenience of property owners and the use of
the Public Rights-of-Way.
(b) Stand-by power at the headend(s) shall be provided for a minimum
of eight (8) hours in the event of an outage. The power supplies serving the
node(s) shall be capable of providing power for not less than four (4) hours in the
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event of a service interruption. Stand-by power must activate automatically upon
the failure of commercial utility power.
4.2 AREA TO BE SERVED
(a) Comcast shall offer Cable Service to all residential dwellings in the
City and may make Cable Service available to businesses in the City provided
that Comcast is able to obtain from the property owners any necessary
easements and/or permits in accordance with Section 621(a)(2) of the Cable Act.
Comcast shall extend the Cable System into all areas within the City where there
is a minimum of twenty (20) occupied residential dwelling units per linear plant
mile of aerial cable, calculated in strand footage from the end of the nearest trunk
line. Comcast shall complete said extensions within six (6) months of notification
to Comcast by the City that an area has met the minimum density standard set
forth herein. Comcast's obligation hereunder shall be subject to the timely
performance of walk-out, make ready and location of all underground utilities.
(b) Any dwelling unit within one hundred twenty-five (125) feet aerial
distance of the cable plant shall be entitled to a standard installation rate. For
any dwelling unit in excess of one hundred twenty-five (125) feet aerial distance
or that requires an underground installation, Comcast shall extend Cable Service
at a rate not to exceed that based on a time plus materials basis to be calculated
on that portion of the installation that exceeds the standard installation distance
set forth above.
(c) Comcast shall install, at its own cost and expense, cables or other
Cable System facilities underground wherever and at the same time existing
utilities in the immediate vicinity are installed underground, or where statute or
ordinance requires utilities to be placed underground. Previously installed aerial
cable shall be placed underground in concert with other utilities pursuant to the
general ordinances of the City or applicable law, provided that such underground
locations are capable of accommodating Comcast’s cable and/or other
equipment without material technical degradation of the Cable System’s signal
quality. Placing facilities underground does not preclude the use of ground-
mounted appurtenances such as customer taps, line extenders, system passive
devices, amplifiers, power supplies, pedestals, or other related equipment.
(d) Comcast shall adhere to all building and zoning codes currently or
hereafter in effect. Comcast shall arrange its lines, cables and other
appurtenances, on both public and private property, in such a manner as to
cause no unreasonable interference with the use of said public or private
property. In the event of such interference, and upon reasonable prior written
notice, the City may require the removal and relocation of Comcast’s lines,
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cables and other appurtenances from the property in question at no cost to the
City.
4.3 SERVICE TO MULTIPLE DWELLING UNITS
Comcast and the City acknowledge and agree that installation and
provision of Cable Service to multiple dwelling units (“MDU’s”) are subject to a
separate negotiation between the landlord, owner or governing body of any such
MDU and Comcast, which negotiations shall be conducted in accordance with
applicable law.
4.4 PERMITS
Comcast shall apply to the City for all required permits in accordance with
applicable City ordinances and shall not undertake any activities in the public
rights-of-way subject to a permit without receipt of such permit. Comcast shall
pay any and all required permit fees. This section is not intended to require
permits for individual service drops to residential dwellings.
4.5 REPAIRS AND RESTORATION
(a) Whenever Comcast or any agent, including any contractor or
subcontractor, takes up or disturbs any pavement, sidewalk or other
improvement of any public or private property, the same shall be replaced and
the surface restored in as good condition as before the disturbance within ten
(10) business days, weather permitting, of the completion of the disturbance.
Upon failure of Comcast to comply within the time specified and upon written
notice, the City may cause proper restoration and repairs to be made and the
expense of such work shall be paid by Comcast upon demand by the City along
with any liquidated damages applied by the City in accordance with Section 10
below.
(b) Whenever Comcast or any agent, including any contractor or
subcontractor, shall install, operate or maintain equipment, cable, or wires, it
shall avoid damage and injury to property, including structures, improvements
and trees in and along the routes authorized by the City if required for the proper
installation, operation and maintenance of such equipment, cable, or wires.
Comcast shall promptly repair and restore any private property that is damaged
as a result of construction, installation, repair or maintenance of the Cable
System within ten (10) business days. Comcast shall monitor its operating,
construction, repair and maintenance personnel, including contractors and
subcontractors, on a regular basis and ensure that such personnel provide clean-
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up of all work places in manner consistent with applicable federal and state
standards, and local regulations.
(c) Comcast’s operating, construction, repair and maintenance
personnel, including all contractors and subcontractors, shall be thoroughly
trained in the use of all equipment and the safe operation of vehicles. Comcast’s
operating, construction, repair and maintenance personnel shall follow all safety
procedures required by all applicable federal, state and local laws and
regulations. All areas of the Cable System shall be routinely inspected and
maintained in accordance with FCC standards so that conditions that could
develop into safety hazards for the public and/or operating and maintenance
personnel may be corrected before they become a hazard. Comcast shall install
and maintain its wires, cables, fixtures, and other equipment in such a manner as
shall not interfere with any installations of the City or any public utility serving the
City.
(d) Should a public safety emergency occur as a result of, incident to, or
connected with operation, construction, repair, or maintenance activities by
Comcast personnel, including all contractors and subcontractors, then such
personnel shall immediately contact the applicable public safety emergency
dispatcher (e.g. 9-1-1-) and take other reasonable actions to respond to the
emergency.
(e) Whenever Comcast or any agent, including any contractor or
subcontractor, shall disturb any pavement, sidewalk or other public property in
order to perform any underground activity, it shall utilize the Pennsylvania One
Call System prior to any such disturbance. Comcast shall adhere to all
requirements of the Pennsylvania Underground Utility Line Protection Act.
(f) All structures and all lines, equipment and connections in, over,
under and upon streets, sidewalks, alleys, and public and private ways and
places in the City, wherever situated or located, shall at all times be kept and
maintained in a safe and suitable condition and in good order and repair
consistent with federal, state and local law.
4.6 SYSTEM MONITORING
Upon completion of any construction, Comcast shall conduct periodic
signal monitoring in accordance with the requirements of the FCC. Such
capability shall enable Comcast to monitor the signal quality of all channels
delivered on the Cable System, including the Public, Educational and
Governmental Channels.
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4.7 SERVICE AREA MAPS
Upon written request, Comcast shall provide to the City for its exclusive
use and shall maintain at its local offices a complete set of Comcast service area
maps of the City, on which shall be shown those areas in which its facilities exist
and the location of all streets. The maps shall be provided to the City in
hardcopy and also, if technically feasible and available, in an electronic GIS
format which is compatible with the City’s GIS format. The maps shall also
designate where the cable wires and other equipment are aerial and where they
are underground. Comcast shall provide the City with updated maps within thirty
(30) days after a request is made by the City.
4.8 BUILDING MOVES
In accordance with applicable laws, Comcast shall, upon the request of
any person holding a building moving permit issued by the City, temporarily raise
or lower its wires to permit the moving of the building. Comcast shall be given at
least thirty (30) days advance notice to arrange for such temporary wire changes.
If the building to be moved is owned or operated by the City, Comcast shall raise
or lower its wires at no cost to the City.
4.9 DISCONNECTION AND RELOCATION
(a) Comcast shall, at no cost to the City, protect, support, temporarily
disconnect, relocate in the same street, or other public way and place, or remove
from any street or any other public way or place, any of its property as required
by the City or its designee by reason of traffic conditions, street construction,
change or establishment of street grade, site distance visibility, the construction
of any public improvement or structure, or any other reason related to public
health, safety and welfare.
(b) In requiring Comcast to protect, support, temporarily disconnect,
relocate or remove any portion of its property, the City shall treat Comcast the
same as, and require no more of Comcast than, any similarly situated entity.
4.10 EMERGENCY REMOVAL OF EQUIPMENT
(a) If, at any time, in case of fire or other disaster in the City, it shall be
necessary, in the reasonable judgment of the City or its agent, to cut or move any
of the wires, cable or equipment of the Cable System, the City shall have the
right to do so without cost or liability, provided that, wherever possible, the City
shall give Comcast notice and the ability to relocate wires, cable or other
equipment.
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(b) In requiring Comcast to protect, support, temporarily disconnect,
relocate or remove any portion of its property, the City shall treat Comcast the
same as, and require no more of Comcast than, any similarly situated entity.
4.11 TREE TRIMMING
(a) Comcast, or its agents, including contractors and subcontractors,
shall have the authority to trim trees upon and overhanging the Public Rights-of-
Way so as to prevent the branches of such trees from coming into contact with
the wires, cables, or other equipment of Comcast. Any such tree trimming shall
only be performed in accordance with accepted pruning standards (e.g.
International Society of Arboriculture (“ISA”))
and applicable laws and
regulations. Comcast shall be treated the same as other similarly situated
entities with regard to tree trimming.
(b) If Comcast or its agents, including contractors and subcontractors,
wish to cut down and remove any tree or trees as may be necessary for the
installation and maintenance of its equipment, it shall apply to the City for
permission, and if permission is granted, comply with applicable laws and
regulations.
4.12 NON-DISCRIMINATION
(a) Comcast shall not discriminate between or among any individuals in
the availability of Cable Service based upon income in accordance with 47
U.S.C. § 541(a)(3) or based upon race or ethnicity.
(b) Comcast shall establish pricing for Cable Service that is non-
discriminatory within the same general class of Subscribers which must be
applied fairly and uniformly in accordance with federal and state law. Nothing
contained herein shall be construed to prohibit Comcast from offering (i)
discounts to commercial and multiple family dwelling subscribers billed on a bulk
basis; (ii) valid promotional discounts; (iii) reduced rates for Subscribers who
have multiple services, or (iv) or the offering of discounts to senior citizens.
SECTION 5
CABLE SYSTEM SPECIFICATIONS AND STATE-OF-THE-ART
5.1 CABLE SYSTEM SPECIFICATIONS
(a) Comcast shall design, construct and maintain a Cable System
covering the City that utilizes fiber optic backbone connections from headend to
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hubs, hubs to hubs, and hubs to nodes. This Cable System shall be built for
digital television standards with a bandwidth no less than 750 MHz with
addressable technology with no less than one hundred fifty (150) video channels
received for analog and/or digital transmission and shall allocate sufficient portion
of said bandwidth to deliver reliable two-way Cable Services. The Cable System
shall be capable of providing Internet access via cable modem and video-on-
demand.
(b) Comcast reserves the right to alter, adjust, modify, rebuild, upgrade,
redesign, or otherwise reconfigure the Cable System at any time during the term
of this Agreement, in accordance with the provisions of this Agreement.
Notwithstanding the above, Comcast agrees that no alteration, adjustment,
modification, rebuild, upgrade, redesign, or other reconfiguration of the Cable
System shall have the effect of reducing the technical capabilities of the Cable
System from those that that are described in Section 5.1(a) above.
5.2 SYSTEM TESTS AND INSPECTIONS
Comcast shall conduct the required system tests in accordance with FCC
regulations as follows:
(a) Proof of performance tests on the Cable System at least twice each
calendar year, at intervals not to exceed seven (7) months. Cable System
monitor test points shall be established in accordance with good and sound
engineering practices and consistent with FCC guidelines.
(b) The measurements for proof of performance tests on the Cable
System
may be taken at convenient monitoring points in the Cable System
network. Upon written request, an identification of the instruments, including the
makes, model numbers, and the most recent date of calibration, a description of
the procedures utilized, and a statement of the qualifications of the person
performing the tests shall also be provided to the City
.
(c) The City shall have the right to designate a City employee (or a third
party consultant to the City, provided that such third party consultant executes, in
advance, a nondisclosure agreement in a form reasonably acceptable to
Comcast) and, upon written notice to Comcast, for such employee or consultant
to visually inspect Comcast’s Cable System in order to verify compliance with
Section 5.1 of this Agreement and to witness and/or review all proof of
performance tests required under this Agreement.
(d) Subject to the requirements of Section 8.1 of this Agreement,
Comcast shall retain written reports of the results of any tests required by the
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FCC, and such reports shall be submitted to the City upon thirty (30) days prior
written notice from the City; provided, however, that Comcast shall not be
required to submit such reports more than two (2) times in any calendar year.
5.3 STATE-OF-THE-ART
(a) Comcast and the City acknowledge that the technology of Cable
Systems is an evolving field. Comcast’s Cable System in the City shall be
capable of offering Cable Services that are comparable to other Cable Systems
owned and managed by Comcast or its Affiliated Entities in the County of
Allegheny in the Commonwealth of Pennsylvania (“Comparable Systems”)
pursuant to the terms of this section. The City may send a written notice to
Comcast, not to exceed one request every two (2) years, requesting information
on Cable Services offered by such Comparable Systems.
(b) If the identified Cable Services are being offered by Comcast and/or
its Affiliated Entities to at least forty percent (40%) of the total Subscribers in the
Comparable Systems, then the City may require that Comcast make such Cable
Services available in the City. Should the City determine that Comcast shall
provide comparable Cable Services, then the City and Comcast shall enter into
good faith discussions to negotiate a schedule for deployment of such Cable
Services. The discussions shall take into consideration the benefits from the
provision of such Cable Services, the cost of implementing them in the City, the
technical and economic feasibility of implementing such improvements, and the
impact, if any, on Subscriber rates.
5.4 EMERGENCY ALERT SYSTEM
Comcast shall comply with the Emergency Alert System (“EAS”)
requirements of the FCC in order that emergency messages may be distributed
over the System.
SECTION 6
CUSTOMER SERVICE STANDARDS
6.1 OFFICE HOURS AND TELEPHONE AVAILABILITY
(a) Comcast shall maintain a customer service center that is located in
the City and shall be open during Normal Business Hours. Among other
services, the customer service center shall provide bill payment and equipment
pick-up and drop-off services.
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(b) Comcast shall provide and maintain a toll free telephone customer
service line that will be available to Subscribers twenty-four (24) hours a day,
seven (7) days a week. Trained representatives shall respond to customer
telephone inquiries during Normal Business Hours. After Normal Business
Hours, the access line may be answered by a service or an automated response
system. Inquiries received after Normal Business Hours must be responded to
by a trained company representative on the next business day.
(c) Under Normal Operating Conditions and during Normal Business
Hours, telephone answering time by a customer representative, including wait
time, shall not exceed thirty (30) seconds after the connection is made. If the call
needs to be transferred, transfer time shall not exceed thirty (30) seconds.
(d) Under Normal Operating Conditions, the customer shall receive a
busy signal less than three (3) percent of the time.
(e) Comcast shall not be required to acquire equipment or perform
surveys to measure compliance with the telephone answering requirements
above unless a historical record of Complaints indicates a clear failure to comply.
If the City determines, after receiving Complaints itself and/or receiving a record
of Complaints made to Comcast in accordance with Sections 6.5 and 9.1 below,
that there is a clear failure to comply with the telephone answering requirements
above, the City shall notify Comcast that it must measure its compliance with
these requirements for the next ninety (90) days and report to the City with its
results.
6.2 INSTALLATIONS AND SERVICE CALLS
(a) Comcast shall maintain a competent staff of well-trained employees
sufficient to provide adequate and prompt service to its Subscribers. Comcast
shall require any employee or agent, including any subcontractor, who personally
visits any residential dwelling, shall display a photo identification badge. Any
vehicle used for installation, operation or maintenance activities by any Comcast
employee or agent, including any subcontractor, shall prominently display the
Comcast logo and/or “cable contractor” insignia.
(b) Standard installations will be performed within seven (7) business
days after an order has been placed. “Standard” installations are those aerial
installations that are located up to one hundred twenty-five (125) feet from the
existing distribution system.
(c) Upon scheduling of appointments with the customer for installations,
service calls and other activities, Comcast shall provide the customer with either
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a specific time or an “appointment window” of a maximum of four (4) hours during
Normal Business Hours. Comcast may schedule service calls and installation
activities outside of Normal Business Hours for the express convenience of the
customer. Comcast shall use due care in the process of installation and shall
restore any damaged property to its prior condition.
(d) Comcast may not cancel an appointment with a customer after the
close of business on the business day prior to the scheduled appointment. If, at
any time, an installer or technician is running late, an attempt to contact the
customer must be made prior to the time of the appointment. If the appointment
must be rescheduled, it must be done so at a time that is convenient for the
customer.
6.3 NOTICES
(a) Comcast shall provide written notice to each Subscriber upon initial
subscription, at intervals not more than one (1) per year thereafter to each
Subscriber, and at any time upon request, regarding each of the following areas:
(1) Products and services offered;
(2) Prices and options for programming services and conditions of
subscription to programming services;
(3) Channel positions and programming carried on the Cable
System;
(4) Installation and service maintenance policies;
(5) Instructions on how to use the Cable Service and any
converters;
(6) Billing and customer complaint procedures;
(7) Comcast’s address, telephone number and office hours; and
(8) A notice of Subscriber privacy rights as required by federal
law.
(b) Comcast shall notify Subscribers and the City in writing of any
changes in rates, programming services or channel positions a minimum of thirty
(30) days in advance of such changes, provided such changes are within the
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control of Comcast. Comcast shall not be required to provide prior notice to
Subscribers of any rate change that is the result of a regulatory fee, franchise fee
or any other fee, tax, assessment or charge of any kind imposed by any federal
agency, the Commonwealth of Pennsylvania or the City on the transaction
between Comcast and the Subscriber.
(c) In accordance with applicable federal and City laws, Comcast shall
not charge Subscribers for any services that they have not affirmatively
requested, provided this subsection shall not be construed to limit Comcast’s
right to restructure services or rates as permitted by applicable law.
(d) Comcast shall maintain a file available to the public containing all
written notices provided to Subscribers pursuant to the requirements contained
herein by Comcast during the previous twelve (12) months.
6.4 BILLING
(a) Bills shall be clear, concise and understandable. Bills must be fully
itemized, with itemizations including, all applicable service tiers, equipment
charges and any installation or repair charges. Bills shall state the billing period,
including an effective due date, the amount of current billing and any relevant
credits or past due balances.
(b) Comcast shall not assess late fees for non-payment of a current bill
until at least thirty (30) days have elapsed since the mailing of the bill by
Comcast.
(c) Comcast shall provide its telephone number and address on
Subscribers’ bills.
(d) Comcast shall forward a copy of any Cable Service related billing
inserts or other mailing sent to Subscribers to the City upon request.
(e) The City hereby requests that Comcast omit the City’s name,
address, and telephone number from Subscriber bills as permitted by 47 C.F.R. §
76.952.
6.5 CUSTOMER COMPLAINT PROCEDURES
Comcast shall establish clear written procedures for resolving all customer
Complaints, which shall include at least the following:
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(a) Comcast shall provide the customer with a written response to a
written Complaint within thirty (30) days of its receipt. Such response shall
include the results of its inquiry into the subject matter of the Complaint, its
conclusions based on the inquiry, and its decision in response to the Complaint.
(b) If the City is contacted directly about a customer Complaint, it shall notify
Comcast promptly and in writing. Comcast shall respond to the City in writing
within ten (10) business days regarding the results of its investigation of the
Complaint or, in the alternative, the need for additional time to investigate and
resolve the problem. For purposes of this Section, “resolve” means that Comcast
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.
(c) Any Subscriber who, in good faith, disputes all or part of any bill sent
by Comcast has the option of withholding the disputed amount, without a late fee
or disconnection, until Comcast has investigated the dispute in good faith and
has made a determination that the amount is owed provided that:
(1) The Subscriber provides a written
Complaint to Comcast in a timely fashion
and includes identifying information;
(2) The Subscriber pays all undisputed
charges; and
(3) The Subscriber cooperates in determining
the appropriateness of the charges in
dispute.
(d) Comcast shall maintain customer Complaint records for inspection
by the affected Subscriber, which shall contain the date each Complaint is
received, the name and address of the affected Subscriber, a description of the
Complaint, the date of resolution of the Complaint, and a description of the
resolution.
6.6 DISCONNECTION
(a) Comcast may disconnect or terminate a Subscriber’s service for
cause:
(1) If at least sixty (60) days have elapsed from the due date of
the bill that Subscriber has failed to pay; and
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(2) If Comcast has provided at least ten (10) days written notice to
the affected Subscriber prior to disconnection, specifying the effective date after
which Cable Services are subject to disconnection; and
(3) If there is no pending written dispute with Comcast regarding
the bill; or
(4) If at any time and without notice, Comcast determines in good
faith that Subscriber has tampered with or abused Comcast’s equipment or is
engaged in theft of Cable Service.
6.7 SERVICE INTERRUPTIONS
(a) Excluding conditions beyond its control, Comcast shall begin
working on a Service Interruption promptly and in no event later than twenty-four
(24) hours after the interruption becomes known and shall diligently pursue to
completion. Notice of a Service Interruption of a single Subscriber shall give rise
to this obligation on behalf of Comcast. All other service calls not affecting public
health, safety or welfare shall occur within a maximum of forty-eight (48) hours
after notice to Comcast or scheduled at the convenience of the customer and
shall be diligently pursued to completion.
(b) Comcast shall exercise commercially reasonable efforts to limit any
Service Interruption for the purpose of maintaining, repairing, or constructing the
Cable System. Except in cases of an emergency, Comcast shall perform
modifications, repairs, and upgrades to the Cable System between 12.00 a.m.
and 6:00 a.m. which may interrupt service.
(c) In the event that there is a Service Interruption to any Subscriber for
six (6) or more consecutive hours and upon receipt of written or a credible oral
request, it shall grant such Subscriber a pro rata credit or rebate, on a daily
basis, of that portion of the service charge during the next consecutive billing
cycle, or, at its option, apply such credit to any outstanding balance that is
currently due.
6.8 SERVICES TO PEOPLE WITH DISABILITIES
Comcast shall make Cable Services available to the maximum practical
extent provided by law to persons with disabilities. Comcast shall adhere to the
requirements for closed captioning as set forth by the Telecommunications Act of
1996 and FCC rules (47 C.F.R. § 76.606).
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6.9 PRIVACY
(a) Comcast shall respect 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. Comcast 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. At the same time, all references to privacy in
this Section are subject to the provisions of Public Law 107-56 (October 26,
2001), Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism Act of 2001, known as the “USA
PATRIOT ACT.”
(b) Comcast shall be responsible for complying with such privacy policy
and shall at all times maintain adequate physical, technical and administrative
security safeguards to ensure that personal Subscriber information is handled
and protected strictly in accordance with this policy and all applicable laws and
regulations.
(c) Absent a court order or requirement of federal law, neither Comcast
nor its designee shall tap, monitor, arrange for the tapping or monitoring, or
permit any person to tap or monitor, any cable, line, signal, input device, or
Subscriber outlet or receiver for any purpose, without the prior written
authorization of the affected Subscriber or user, provided, however, that Comcast
may conduct system-wide or individually addressed "sweeps" solely for the
purpose of verifying system integrity, checking for illegal taps, controlling return-
path transmission, billing for pay services or monitoring channel usage in a
manner not inconsistent with the federal law. Comcast shall report to the
affected parties any instances of monitoring or tapping of the Cable System, or
any part thereof, of which it has knowledge, whether or not such activity has
been authorized by Comcast. Comcast shall not record or retain any information
transmitted between a Subscriber and any third party, except as required for
lawful business purposes.
(d) Except as permitted by Section 631 of the Cable Act as amended,
neither Comcast nor its designee nor its employees shall make available to any
third party, including the City, information concerning the viewing habits or
subscription package decisions of any individual Subscriber. If a court authorizes
or orders such disclosure, Comcast shall notify the Subscriber prior to disclosure,
unless such notification is otherwise prohibited by applicable law or the court.
(e) Upon a written request by a Subscriber, Comcast shall make
available for inspection at a reasonable time and place all personal Subscriber
information that Comcast maintains regarding said Subscriber. Comcast shall
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ensure that all information related to billing and service requests is accurate and
up to date and shall promptly correct any errors upon discovery.
(f) Comcast shall not make its Subscriber list or lists, or any portion
thereof, available to any other person or entity, with or without remuneration,
except where expressly permitted by law.
SECTION 7
SERVICES TO THE COMMUNITY
7.1 CABLE SERVICE TO COMMUNITY FACILITIES
(a) Comcast shall continue to provide the Standard service (or
equivalent) package, including converter box, digital adapter, and other end user
equipment, to all City-owned and/or operated facilities being provided such
service as of the Effective Date. The City may relocate facilities during the term
of this Agreement to receive such Standard (or equivalent) service, including end
user equipment, at no charge to the City. The City may add new facilities to
receive such Standard (or equivalent) service and end user equipment, provided
that the City shall pay for such service as described in Section 7.1 (b) below.
Comcast shall install service to such additional facilities within thirty (30) days of
receiving a written request from the City. Any service calls needed for the
maintenance or repair of any equipment serving the above-referenced facilities,
including both present and future facilities, shall be performed at no cost to the
City.
(b) The City shall pay Comcast for the Cable Services described in
Section 7.1(a) above at the following discounted rates. For the services being
provided to all City-owned and/or operated facilities receiving such service as of
the Effective Date, Comcast shall credit against the PEG Grant, as described in
Section 7.4 below, the amount of $68,358 per year. For any new facilities for
which Comcast provides Standard (or equivalent) service and end user
equipment, the City shall pay Comcast the bulk service discounted rate for large
multi-dwelling unit customers in effect for this service at the time of the City’s
request for such service. Comcast shall provide the City with the applicable
cable bulk services rate and receive the City’s approval for the rate prior to
charging the City for service to such additional facilities. Payment for such
additional facilities may be made, at the sole discretion of the City, either directly
to Comcast or via credit against the PEG Grant described in Section 7.4 below.
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7.2 INTERNET SERVICE TO COMMUNITY FACILITIES
(a) Comcast shall continue to provide one (1) cable modem internet
access service (Residential standard level equivalent) to all City senior and
recreation centers in the City being provided such service as of the Effective
Date. The cable modem internet access service shall not be networked. The
City may relocate senior centers or recreational centers during the term of this
Agreement to receive such cable modem internet access service at no charge to
the City. The City may add new senior centers or recreation centers to receive
such internet access service, provided that the City shall pay for such service as
described in Section 7.2 (b) below. Comcast shall install service to such
additional facilities within thirty (30) days of receiving a written request from the
City. Any service calls needed for the maintenance or repair of any equipment
serving the above-referenced facilities, including both present and future
facilities, shall be performed at no cost to the City.
(c) The City shall pay Comcast for the internet access service described
in Section 7.2 (a) above at the following discounted rates. For the internet
services being provided to all senior centers and recreation centers in the City
receiving such service as of the Effective Date, Comcast shall credit against the
PEG Grant, as described in Section 7.4 below, the amount of $15,120 per year.
For any new facilities for which Comcast provides internet access service, the
City shall pay Comcast the internet access bulk service discounted rate for large
multi-dwelling unit customers in effect for this service at the time of the City’s
request for service. Comcast shall provide the City with the applicable bulk
services rate and receive the City’s approval for the rate prior to charging the City
for service to such additional facilities. Payment for such additional facilities may
be made, at the sole discretion of the City, either directly to Comcast or via credit
against the PEG Grant described in Section 7.4 below.
7.3 PUBLIC, EDUCATIONAL AND GOVERNMENTAL (“PEG”) CHANNELS
(a) Comcast shall continue to provide to the City three (3) Public,
Educational, and Governmental (“PEG”) Channels in accordance with Section
611 of the Cable Act as follows:
(1) One (1) dedicated Government Access Channel currently
activated for use by the City;
(2) Another one (1) dedicated Government Access Channel
currently activated for use by the City; and
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(3) One (1) dedicated Public Access Channel currently activated
for use by the City and/or the City’s designee.
(b) In addition to the activated channels described in Section 7.3(a)
above, Comcast shall provide, within one hundred and eighty (180) days of a
written notice from the City and in accordance with Section 611 of the Cable Act,
the following two (2) Channels:
(1) One dedicated Public, Educational, and/or Governmental
Access Channel reserved for use by the City and/or its designee; and
(2) One (1) dedicated Educational Access Channel reserved for
use by the City and/or its designee for educational programming.
(c) In the event the City or its designee does not provide any
programming on any of the PEG Channels, Comcast may request the use of the
Channel(s) upon written approval by the City. In turn, should the City request
the use of the access Channel(s) being programmed by Comcast, in full or in
part, Comcast shall relinquish such use no later than sixty (60) days after receipt
of written notification from the from the City that it requires such channel for
public, educational and/or governmental access use.
(d) Such PEG Channels shall be used for community programming
related to public, educational and/or governmental activities. Their purpose is to
contribute to an informed citizenry by, among other things, showing local
government at work, responding to local needs, cablecasting community
programs, and bringing local education into the home. The City shall have
complete control over the content, scheduling, administration and all other
programming aspects of the PEG Channels and may delegate such functions or
a portion of such functions, to an appropriate designee or designees. Comcast
shall not exercise any editorial control over PEG Channel programming.
Whether operating on an analog or digital format, Comcast shall cablecast all
activated PEG Channels so that they may be received by all Comcast
Subscribers in the City.
(e) Comcast shall continue to maintain, at its own cost and expense,
Return Lines to the three (3) PEG Channels described in Section 7.3(a) above.
The term “Return Line” as used in this section refers to the cables, wires, lines,
and other signal distribution equipment that enables programming to originate
from the selected locations and be distributed via the Cable System to
Subscribers in the City. The Return Lines for the PEG Channels described in
Section 7.3(a) above shall continue to be maintained at the City-County Building,
414 Grant Street, Pittsburgh, PA 15219 and at 1300 Western Avenue, Pittsburgh,
27
PA 15233. With respect to the reserved channels described in Section 7.3(b)
above, the City shall select one (1) location within its municipal boundaries and
Comcast shall provide and install, within one hundred eighty (180) days of a
written notice from the City and at Comcast’s own cost and expense, a Return
Line to such location.
(f) Comcast shall be responsible for maintaining the Return Lines to the
video origination points of all of the PEG Channels so long as the City provides
Comcast with access to those locations and access to the PEG equipment within
these locations. Comcast shall provide, install and maintain in good working
order the equipment and the fiber necessary for transmitting the signal to the
channel aggregation site for further processing and distribution to Subscribers.
Comcast shall provide all equipment for amplification, conversion, receiving,
transmitting, routing and headend processing of the signals to be used for the
PEG Channels.
(g) Within one hundred eighty (180) days of a request by the City,
Comcast shall, at its own cost and expense, relocate a single PEG origination
location one time during the term of this Agreement as follows: (1) the new
location must be situated within two hundred (200) feet of Comcast’s distribution
line; (2) Comcast’s obligation shall be subject to the same conditions that apply
to the PEG origination sites in Section 7.3(e) hereof; and (3) the City shall
provide access to such site at least ninety (90) days prior to anticipated use of
the new PEG origination site.
(h) Comcast shall use its best efforts to maintain the channel
assignments for the current PEG Channels as of the Effective Date and the initial
channel assignments for any reserved PEG Channels described in Section 7.3
(b) above. Notwithstanding the foregoing, Comcast does not relinquish its
ownership of or ultimate right of control over a channel by designating it for
access programming use. A PEG access user – whether a public, educational or
governmental user – acquires no property or other interest by virtue of the use of
a channel position so designated or use of a particular channel number no matter
how long a channel may have been designated for such use. Comcast reserves
the right to change channel assignments provided that the PEG Channels
continue to be received by all Comcast Subscribers in the City. In the event that
Comcast deems a change in any PEG Channel assignment to be necessary and
changes any channel assignment in accordance with this Section, Comcast shall
comply with the following requirements:
(1) Comcast shall endeavor to give the City sixty (60) days
advance written notice of any change in PEG Channel assignments (if
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commercially practicable), but in no event fewer than thirty (30) days advance
written notice;
(2) Comcast shall provide, free of charge, public announcements
of such change for at least thirty (30) days prior to the change by providing the
City or its designee with advertising inserts based on its then-current Pittsburgh
18-hour Run of Schedule (“ROS”) in the equivalent amount of thirty thousand
dollars ($30,000).
(i) Comcast shall deliver the PEG Channel signals at a level of
technical quality and reliability that complies with the levels of technical quality
and reliability applied by Comcast for signals of commercial channels transmitted
to Subscribers; provided, however, that Comcast shall have no responsibility to
improve upon or modify the signal quality of any PEG Channels content provided
to Comcast by any PEG Channel programmer.
(j) The City shall require all local producers and users of any of the PEG
facilities or Channels to agree in writing to authorize Comcast to transmit
programming consistent with this Agreement and to defend and hold harmless
Comcast and the City 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 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,
which results from the use of a PEG facility or Channel. Such indemnification by
local producers and users shall not include the technical signal quality of the
PEG Channels.
(k) Comcast shall provide at each PEG origination site one (1)
complimentary cable drop and Standard service (or equivalent) package,
including converter box, digital adapter, and other end user equipment, for
purposes of monitoring the PEG programming content transmitted over the Cable
System.
7.4 PEG GRANTS
(a) Annual PEG Grant: In order to provide financial support for the
production of PEG Channel programming and related uses, Comcast shall pay to
the City a per Subscriber/per month grant (the “Annual PEG Grant”) during the
term of the Agreement in accordance with the following schedule:
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Period Amount
Effective Date – September 30, 2010 $.45 sub/mo
October 1, 2010 – September 30, 2011 $.50 sub/mo
October 1, 2011 – September 30, 2012 $.50 sub/mo
October 1, 2012 – September 30, 2013 $.60 sub/mo
October 1, 2013 – September 30, 2014 $.60 sub/mo
October 1, 2014 – September 30, 2015 $.70 sub/mo
October 1, 2015 – September 30, 2016 $.70 sub/mo
October 1, 2016 – September 30, 2017 $.80 sub/mo
October 1, 2017 – September 30, 2018 $.80 sub/mo
October 1, 2018 – September 30, 2019 $.90 sub/mo
October 1, 2019 – June 30, 2020 $.90 sub/mo
(b) City Allocation of Quarterly PEG Grant: As of the Effective Date,
the City has determined that it intends to allocate a portion of the Annual PEG
Grant described in Section 7.4(a) above to the Cable Bureau of the City of
Pittsburgh Department of Information Systems (“CIS”) in accordance with the
schedule set forth below in this Section 7.4(b). Notwithstanding the foregoing,
the City shall reserve the right to adjust its allocation of the Annual PEG Grants in
its sole discretion.
The allocation of the Annual PEG Grant contemplated in this Section 7.4(b)
is solely for descriptive purposes and shall not be construed to entitle the City or
any PEG Access entity providing PEG programming content to any additional
grant amounts beyond the specific grant amounts specified in Section 7.4(a)
above. The City intends to allocate the Cable Bureau portion of the Annual PEG
Grant as follows:
Period Amount
Effective Date – September 30, 2010 $.00 sub/mo
October 1, 2010 – September 30, 2011 $.05 sub/mo
October 1, 2011 – September 30, 2012 $.05 sub/mo
October 1, 2012 – September 30, 2013 $.10 sub/mo
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October 1, 2013 – September 30, 2014 $.10 sub/mo
October 1, 2014 – September 30, 2015 $.10 sub/mo
October 1, 2015 – September 30, 2016 $.10 sub/mo
October 1, 2016 – September 30, 2017 $.15 sub/mo
October 1, 2017 – September 30, 2018 $.15 sub/mo
October 1, 2018 – September 30, 2019 $.15 sub/mo
October 1, 2019 – June 30, 2020 $.15 sub/mo
(c) Timing of Payments: The Annual PEG Grant payments, along with
a brief summary of the Subscriber information upon which they are based
(subject to applicable privacy laws and regulations) shall be delivered to the City
within sixty (60) days after the beginning of each calendar year during the term of
this Agreement (except for the first (1
st
) full calendar year of the term of the
Agreement, during which the Annual Grant payments shall be delivered to the
City within sixty (60) days after the close of each calendar quarter).
(d) Fixed PEG Grant: In order to further the City’s objective of funding
PEG Access facilities and other technological needs throughout the City,
Comcast hereby agrees to pay to the City a grant in the aggregate amount of
Three Hundred Fifty Thousand Dollars ($350,000) (hereinafter referred to as the
“Fixed PEG Grant”) payable in five (5) installments as follows: 1) the first
installment of the Fixed PEG Grant shall be payable within ninety (90) days of the
Effective Date in the amount of Seventy Thousand Dollars ($70,000); 2) the
second installment of the Fixed PEG Grant shall be payable within ninety (90)
days of the first-year anniversary of the Effective Date in the amount of Seventy
Thousand Dollars ($70,000); 3) the third installment of the Fixed PEG Grant shall
be payable within ninety (90) days of the second-year anniversary of the
Effective Date in the amount of Seventy Thousand Dollars ($70,000); 4) the
fourth installment of the Fixed PEG Grant shall be payable within ninety (90)
days of the third-year anniversary of the Effective Date in the amount of Seventy
Thousand Dollars ($70,000); and 5) the fifth and final installment of the Fixed
PEG Grant shall be payable within ninety (90) days of the fourth-year anniversary
of the Effective Date in the amount of Seventy Thousand Dollars ($70,000).
(e) Advertising Inserts: In addition to the other PEG grants described
in this Section 7.4, Comcast shall provide the City with advertising inserts to
promote the PEG Channels to Subscribers throughout the City of Pittsburgh.
Specifically, Comcast shall provide to the City the equivalent of Three Hundred
Twenty Thousand Dollars ($320,000) in advertising inserts throughout the term of
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this Agreement. Such advertising inserts shall be based on the then-current
Pittsburgh 18-hour ROS rate card. At least twenty-five percent (25%) of the
advertising inserts shall be cablecast in prime time. The City may, in its sole
discretion, designate the use of the advertising inserts, or a portion thereof, to a
PEG administrator. The advertising inserts may be used in conjunction with
sponsorships or underwriting opportunities. Comcast shall credit the dollar
amount of the advertising inserts as specified herein against the Annual PEG
Grant as described in Section 7.4(a).
7.5 INSTITUTIONAL NETWORK
Comcast shall provide the City with Institutional Network (also known as “I-
Net”) services pursuant to the terms of Appendix A to this Agreement, which shall
be binding on the parties. Pursuant to the Pennsylvania Right to Know Law, Act
3 § 708(b)(2), (3) and (4) (2009) , Appendix A is not a “public record” and is
therefore exempt from public disclosure. It shall be afforded confidential
protection at all times.
SECTION 8
REGULATION BY THE CITY
8.1 RIGHT TO INSPECT
(a) The City shall have the right, upon ten (10) business days written
notice and during Normal Business Hours, to inspect at the notice location for
Comcast specified in Section 14.3 below all documents, records and other
pertinent information maintained by Comcast which relate to the terms of this
Agreement.
(b) In addition, Comcast shall maintain for inspection by the public and
the City all records required by the FCC and as specified in 47 C.F.R. § 76.305 in
the manner specified therein.
(c) Notwithstanding anything to the contrary set forth herein, all
information specifically marked by Comcast as proprietary or confidential in
nature and furnished to the City or its designated representatives shall be treated
as confidential so long as permitted to do so under applicable law. Information
and documentation marked by Comcast as proprietary or confidential shall
include a brief written explanation as to its proprietary nature or confidentiality
subject to review by the City. The City and its officially designated
representatives agree in advance to treat any such information or records which
Comcast reasonably deems would provide an unfair advantage for Comcast’s
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competitors (e.g., system design maps, engineering plans, programming
contracts, etc.) as confidential so long as permitted to do so under applicable law
and only to disclose it to City employees, agents, or representatives who have a
need to know or in order to enforce the provisions of this Agreement. In the event
a request is made by an individual or entity not an employee, agent or
representative of the City acting in their official capacity for information related to
the Franchise and marked by Comcast as confidential and/or proprietary, the City
shall notify Comcast of such request. Comcast shall not be required to provide
subscriber information in violation of Section 631 of the Cable Act, or information
which is not relevant to regulation of the Franchise (e.g., employee files, tax
returns, etc.).
8.2 RIGHT TO CONDUCT COMPLIANCE REVIEW
The City or its representatives may conduct a full compliance review,
including possible public hearings but no more than once every two (2) years,
with respect to whether Comcast has complied with the terms and conditions of
this Agreement so long as it provides Comcast with thirty (30) days written notice
in advance of the commencement of any such reviews or public hearings.
8.3 RATE REGULATION
The City reserves its right to regulate certain categories of Comcast’s rates
to the extent permitted by applicable laws and regulations.
8.4 RESERVED AUTHORITY
The City reserves the regulatory authority arising from any and all
applicable federal, state or local laws or regulations. Nothing in this Agreement
shall remove, restrict or reduce the City’s authority, including the right to exercise
its police powers in the regulation and control of the use of the Public Rights-of-
Way.
SECTION 9
REPORTING REQUIREMENTS
In addition to the other reporting requirements contained in this
Agreement, Comcast shall provide the following reports:
9.1 CUSTOMER COMPLAINT REPORTS
Comcast shall maintain customer complaint records, which shall contain
the date each Complaint is received, a description of the Complaint, the date of
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resolution of the Complaint, and a description of the resolution. Comcast shall
submit to the City upon written request, a report showing the number of
Complaints that have generated a work order and/or necessitated a response
(i.e. “trouble calls”) received during a specified reporting period no greater that
twelve (12) months, and the general nature of the complaints generating the
calls. Comcast shall not violate any provision of Section 631 of the Cable Act
pertaining to protection of Subscriber privacy in tracking and reporting such
Complaints.
9.2 SERVICE CALL REPORTS
Comcast shall provide the City upon written request, but in no event more
than twice a year, a written report within a specified reporting period no greater
than twelve (12) months, showing the percentage of service calls in the City
completed within the required time frames as set forth in Section 6.7(a). This
report may exclude service calls in which the Subscriber was reasonably
unavailable for a service call.
9.3 GOVERNMENT REPORTS
Comcast shall provide to the City, upon written request, copies of any and
all communications, reports, documents, pleadings and notifications of any kind
which Comcast or any of its Affiliated Entities have submitted to the Federal
Communications Commission (“FCC”) if such documents relate to Comcast’s
Cable System within the City. Comcast shall provide copies of such documents
no later than thirty (30) days after their request.
SECTION 10
FRANCHISE VIOLATIONS, DAMAGES AND REVOCATION
10.1 VIOLATIONS
(a) If the City has reason to believe that Comcast violated any provision
of this Agreement, it shall notify Comcast in writing of the nature of such violation
and the section(s) of this Agreement that it believes has been violated. If the City
does not notify Comcast of any violation of this Agreement, it shall not operate as
a waiver of any rights of the City hereunder or pursuant to applicable law.
(b) Comcast shall have thirty (30) days to cure such violation after
written notice is received by taking appropriate steps to comply with the terms of
this Agreement. If the nature of the violation is such that, in the City’s reasonable
judgment, it cannot be fully cured within thirty (30) days due to circumstances
34
outside of Comcast’s control, the period of time in which Comcast must cure the
violation may be extended by the City in writing for such additional time
necessary to complete the cure, provided that Comcast shall have promptly
commenced to cure and is diligently pursuing its efforts to cure in the reasonable
judgment of the City.
(c) If the violation has not been cured within the time allowed under
Section 10.1(b) above, then Comcast shall be liable for liquidated damages in
accordance with Section 10.2 below.
10.2 LIQUIDATED DAMAGES
10.2.1 Because Comcast’s failure to comply with provisions of this
Agreement will result in harm to the City and because it will be difficult to
measure the extent of such harm, the City may assess liquidated damages
against Comcast in the following amounts provided Comcast has had an
opportunity to cure in accordance with Section 10.1(b). Such damages shall not
be exclusive and shall not prevent the exercise of other remedies by the City.
After the assessment of such damages, the City may commence revocation
proceedings and/or initiate an action in law or equity in a court of competent
jurisdiction.
10.2.2 The first day for which liquidated damages may be assessed, if
there has been no cure after the end of the applicable cure period, shall be the
day after the end of the applicable cure period, including any extension of the
cure period granted by the City. The amount of liquidated damages per year
shall not exceed Fifty Thousand Dollars ($50,000) in the aggregate. All similar
violations from the same factual events affecting multiple Subscribers shall be
assessed as a single violation, and a violation may only be assessed under any
one of the categories listed below.
10.2.3 The City may assess liquidated damages against Comcast in the
following amounts provided Comcast has had an opportunity to cure in
accordance with Section 10.1(b).
(a) For failure to comply with the technical requirements specified in
Section 4.1: $350 per day for each day the violation continues;
(b) For failure to provide and maintain Cable Service as specified in
Section 4.2: $350 per day for each day the violation continues;
(c) For failure to obtain and maintain permits as specified in Section 4.4:
$ $350 per day for each day the violation continues;
35
(d) For failure to make repairs and restorations as specified in Section
4.5: $350 per day for each day the violation continues:
(e) For failure to raise or lower, disconnect, relocate, or remove
equipment as specified in Sections 4.8, 4.9, and 4.10: $350 per day
for each day the violation continues;
(f) For failure to perform tree trimming, cutting, removing, or clearing as
specified in Section 4.11: $350 per tree;
(g) For failure to comply with the Cable System specifications, system
tests and inspections or the state-of-the-art requirements specified in
Sections 5.1, 5.2 and 5.3: $350 per day for each day the violation
continues;
(h) For failure to comply with any customer service standard as
specified in Section 6: $350 per day for each day the violation
continues;
(i) For failure to provide services to the community as specified in
Section 7.1 and 7.2: $350 per day for each day the violation
continues;
(j) For failure to comply with the requirements of Public, Educational,
and Governmental Access Channels and PEG Grants as specified in
Sections 7.3 and 7.4: $350 per day for each day the violation
continues;
(k) For failure to provide Institutional Network services as specified in
Section 7.4: $350 per day for each day the violation continues;
(l) For failure to permit inspections or compliance reviews as specified
in Section 8: $350 per day for each day the violation continues;
(m) For failure to submit reports in a timely fashion as specified in
Section 9: $350 per day for each day the violation continues;
(n) For failure to provide a performance bond as specified in Section
10.3: $350 per day for each day the violation continues;
(o) For failure to comply with programming requirements as specified in
Section 11: $350 per day for each day the violation continues;
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(p) For failure to comply with the indemnification requirements as
specified in Section 12.1: $350 per day for each day the violation
continues;
(q) For failure to carry all the insurance required in Section 12.2: $350
per day for each day the violation continues;
(r) For failure to comply with transfer or renewal provisions as specified
in Section 13: $350 per day for each day the violation continues;
(s) For failure to comply with the removal of system requirements as
specified in Section 14.2: $350 per day for each day the violation
continues.
No cost or liability to Comcast arising from a breach or violation of this
Agreement shall be recovered from Subscribers or shall be offset against any
other sums due to the City.
10.3 PERFORMANCE BOND
(a) Comcast shall obtain and maintain, within thirty (30) days of the
Effective Date of the Agreement and throughout the term of the Agreement, at its
sole cost and expense, security with a surety company licensed to do business in
the Commonwealth of Pennsylvania to ensure Comcast’s faithful performance of
its obligations. The form of this security shall be a performance bond, acceptable
to the City. The security shall provide that the City may recover from the
principal and surety any and all liquidated damages and/or compensatory
damages incurred by the City for Comcast’s violations of this Agreement, after
notice and opportunity to cure, in accordance with Sections 10.1 and 10.2 above.
A copy of the performance bond shall be submitted to the City within sixty (60)
days after the Effective Date of this Agreement.
(b) The security shall be in the amount of Five Hundred Thousand
Dollars ($500,000). Comcast shall not reduce, cancel or materially change said
security from the requirement contained herein without the express prior written
permission of the City.
10.4 REVOCATION
(a) In addition to the other rights, powers and remedies retained by the
City under this Agreement, the City reserves the separate and distinct right to
initiate revocation proceedings with regard to this Franchise if:
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(1) It is demonstrated that Comcast practiced any fraud or deceit
upon the City in its operation of its Cable System or any other activities pursuant
to this Agreement;
(2) Comcast repeatedly fails, after notice and opportunity to cure,
to maintain signal quality pursuant to the standards provided for by the FCC or
the technical requirements set forth in Section 4.1 of this Agreement;
(3) Comcast fails to provide Institutional Network services as set
forth in Section 7.5 of this Agreement;
(4) Comcast fails to pay franchise fees to the City as set forth in
Section 3;
(5) Comcast fails to provide PEG financial support to the City as
set forth in Section 7.4;
(6) Comcast fails to indemnify the City as set forth in Section
12.1; or
(7) Comcast repeatedly violates, after notice and opportunity to
cure, one or more of the material terms or conditions of this Agreement.
(b) The foregoing shall not constitute a violation of a material term or
condition if the violation occurs without the fault of Comcast or occurs as a result
of circumstances beyond its control or by reason Force Majeure. Comcast shall
not be excused from the performance of any of its obligations under this
Franchise by mere economic hardship or by the misfeasance or malfeasance of
its directors, officers or employees.
(c) Should the City seek to revoke this Franchise, it shall give written
notice to Comcast of such intent. The notice shall set forth the specific nature of
the noncompliance. Comcast shall have sixty (60) days from receipt of such
notice to object in writing and to state its reasons for such objection. In the event
the City has not received a satisfactory response from Comcast, it may then seek
revocation of the Franchise at a public hearing before City Council. The City
shall cause to be served upon Comcast, at least thirty (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.
(d) At the designated public hearing, Comcast shall be provided a fair
opportunity for full participation, due process and full opportunity to be heard,
38
including the rights to be represented by legal counsel, to introduce relevant
evidence, to require the production of evidence, to request the relevant testimony
of the officials, agents, or employees of City, to compel the testimony of other
persons as permitted by law, and to question and/or cross examine witnesses,
and to respond to any notice of grounds to terminate in accordance with the
standards of a fair hearing applicable to administrative hearings in the
Commonwealth of Pennsylvania. A complete verbatim record and transcript
shall be made of such public hearing.
(e) Following the public hearing, Comcast shall be provided up to thirty
(30) days to submit its proposed findings and conclusions to the City in writing,
and thereafter the City shall determine (1) whether a violation subject to
revocation has occurred under this Agreement; (2) whether such violation is
excusable; and (3) whether such violation has been cured by Comcast. The City
shall also determine whether it will revoke the Franchise based on the
information presented or, in the discretion of City, grant additional time to
Comcast to affect any cure. The City, after a public hearing and upon finding the
existence of grounds for revocation, may either declare this Franchise terminated
or excuse such grounds upon a showing by Comcast of mitigating circumstances
or good cause for the existence of such grounds. If the City determines that it
will revoke the Franchise, the City shall promptly provide Comcast with a written
determination setting forth City’s reasoning for such revocation within forty-five
(45) days of the close of the hearing. Comcast may appeal such written
determination of the City to an appropriate court of competent jurisdiction. Such
appeal must be taken within the time frame permitted by law.
SECTION 11
PROGRAMMING
11.1 CHANNEL CAPACITY
Comcast shall meet or exceed programming and channel capacity
requirements set forth in this Agreement and required by federal and state law
and regulations.
11.2 BROADCAST CHANNELS
To the extent required by federal law, Comcast shall provide all
Subscribers with Basic Service including, but not limited to: a) all broadcast
television signals carried in fulfillment of the requirements of Section 614 of the
Cable Act; b) the signals of qualified non-commercial educational television
signals carried in fulfillment of the requirements of Section 615 of the Cable Act;
39
and c) the Public, Educational, and Governmental Channels pursuant to Section
611 of the Cable Act. All such signals shall be delivered to Subscribers in high
quality resolution.
11.3 SIGNAL SCRAMBLING
Comcast shall at all times comply with FCC regulations regarding
scrambling or other encryption of audio and video signals.
11.4 CONTINUITY OF SERVICE
Subscribers shall continue to receive service from Comcast provided their
financial and other obligations to Comcast are honored. Subject to the Force
Majeure provisions in Section 14 of this Agreement, Comcast shall use its best
efforts to ensure that all Subscribers receive continuous, uninterrupted service
regardless of the circumstances. For the purpose of construction, routine
repairing or testing of the Cable System, Comcast shall use its best efforts to
interrupt service only during periods of minimum use. When necessary service
interruptions of more than twenty-four (24) hours can be anticipated, Comcast
shall notify Subscribers in advance of such service interruption.
11.5 PARENTAL CONTROL CAPABILITY
Upon request by any Subscriber, Comcast shall provide such Subscriber
with the capability to control the reception of any video and/or audio channel on
the Cable System. Comcast shall inform its Subscribers of the availability of the
parental control device at the time of the original subscription and annually
thereafter, and if requested by the Subscriber, shall provide the device at the
time of the original installation in accordance with Section 640 of the Cable Act.
11.6 TIER BUY THROUGH PROHIBITION
Comcast shall not require Subscribers in the City to purchase a particular
video service tier, other than the Basic Service tier, in order to obtain access to
video programming on a per-channel or per-program basis, unless Comcast has
been granted a written waiver by the FCC pursuant to Section 623(b)(8)(c) of the
Cable Act.
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SECTION 12
LIABILITY AND INDEMNIFICATION
12.1 INDEMNIFICATION
Comcast shall, at its sole cost and expense, indemnify, defend, save and
hold harmless the City, its elected and appointed officials, officers, agents and
employees acting in their official capacities, from any and all claims for injury,
loss, liability, cost or expense arising in whole or in part from, caused by or
connected with any act or omission of Comcast, its officers, agents, contractors,
subcontractors or employees, arising out of, but not limited to, the construction,
installation, upgrade, reconstruction, operation, maintenance or removal of the
Cable System or any other equipment or facilities by or for Comcast or any
Affiliated Entity. The City shall give Comcast timely written notice of its obligation
to indemnify the City pursuant to this subsection. The obligation to indemnify,
defend, save and hold the City harmless shall include, but not be limited to, the
obligation to pay judgments, injuries, liabilities, damages, penalties, attorneys’
fees and expert fees.
12.2 INSURANCE
(a) Comcast shall obtain and maintain, in full force and effect, at its sole
cost and expense, during the Franchise term, the following minimum insurance
coverage. All policies must be on an “occurrence” basis and not on a “claims
made” basis. Comcast’s insurance policies shall apply on a primary and non-
contributory basis to insurance available to the City.
(1) Commercial General Liability Insurance per occurrence and in
the aggregate in the amount of three million dollars ($3,000,000) 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 Comcast’s Cable Service business in the City.
(2) Liability Insurance per occurrence and in the aggregate in
umbrella form in the amount of five million dollars ($5,000,000).
(3) Automobile Liability Insurance per occurrence and in the
aggregate in the amount of two million dollars ($2,000,000) combined single limit
for bodily injury and property damage coverage.
(4) Workers’ Compensation Insurance meeting all legal
requirements of the Commonwealth of Pennsylvania.
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(b) The City, its officials and employees, shall be designated as
additional insureds under each of the insurance policies required in this Section
12.2 except for Worker’s Compensation Insurance.
(c) Comcast shall not cancel any required insurance policy without
obtaining alternative insurance in conformance with this Section and without
submitting insurance certificates to the City verifying that Comcast has obtained
such alternative insurance. Comcast shall provide the City with prior written
notice in the event there is a cancellation or material change in an insurance
policy.
(d) Each of the required insurance policies shall be with insurance
companies qualified to do business in the Commonwealth of Pennsylvania, with
an “A minus – VII” or better rating for financial condition and financial
performance by Best’s Key Rating Guide, Property/Casualty Edition or a
Standard and Poor’s rating of at least AA.
(e) Comcast shall deliver to the City Certificates of Insurance showing
evidence of the required coverage within thirty (30) days of the Effective Date of
the Agreement and upon request.
(f) The limits above may be satisfied with a combination of primary and
excess coverage.
SECTION 13
FRANCHISE TRANSFER AND RENEWAL
13.1 TRANSFER, ASSIGNMENT OR CHANGE IN CONTROL
(a) Neither Comcast nor its parent nor any Affiliated Entity shall transfer,
assign or otherwise encumber, through its own action or by operation of law, its
right, title or interest in the Cable System or in this Agreement without the prior
written consent of the City.
(b) Neither Comcast nor its parent nor any Affiliated Entity shall change,
transfer or assign, through its own action or by operation of law, its control of the
Cable System or of this Agreement without the prior written consent of the City.
(c) Neither Comcast nor its parent nor any Affiliated Entity shall sell,
convey, transfer, exchange or release more than thirty (30%) of its equitable
ownership in the Cable System without the prior written consent of the City.
42
(d) No such consent shall be required for (i) a transfer in trust, by
mortgage, hypothecation, or by assignment to a financial institution (or in
connection with the offer or sale of securities) of any rights, title or interest of
Comcast in the Franchise or in the Cable System in order to secure
indebtedness; or (ii) a transfer to an entity owned and/or controlled by Comcast.
(e) Comcast shall make written application to the City of any transfer,
change in control or assignment as described above and shall provide all
information required by FCC Form 394 and any other applicable federal, state,
and local statutes and regulations regarding transfer or assignment. The City
shall have thirty (30) days from the receipt of FCC Form 394 to notify Comcast of
any additional information it needs to make an informal decision on the transfer
or assignment. The City shall have one hundred twenty (120) days from the
receipt of all required information to take action on the transfer or assignment.
(f) Any consent by the City for any transfer or assignment described
above shall not be effective until the proposed transferee or assignee shall have
executed a legally binding document stating that it shall be bound by all the
terms and conditions contained in this Agreement.
13.2 RENEWAL
The City and Comcast agree that any proceedings or activities that relate
to the renewal of Comcast’s franchise shall be governed by applicable federal
and state law and Section 425 of the Pittsburgh City Code.
SECTION 14
MISCELLANEOUS
14.1 FORCE MAJEURE
If for any reason of Force Majeure, Comcast is unable in whole or in part to
carry out its obligations hereunder, Comcast shall not be deemed in violation of
this Agreement during the continuance of such inability. The term "force
majeure" as used herein shall have the following meaning: acts of God; acts of
public enemies, including terrorist attacks; orders of any kind of the government
of the United States of America or of the Commonwealth of Pennsylvania or any
of their departments, agencies, political subdivisions, or officials, or any civil or
military authority; insurrections, riots, labor strikes, epidemics; landslides;
lightning; earthquakes; fires; hurricanes; volcanic activity; storms; floods;
washouts; droughts; explosions; unavailability of materials or equipment, and
partial or entire failure of utilities.
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14.2 REMOVAL OF SYSTEM
(a) Upon lawful termination or revocation of this Agreement or of any
renewal hereof by passage of time or otherwise, Comcast shall remove its
supporting structures, poles, transmissions and distribution systems and other
appurtenances from the streets, ways, lanes, alleys, parkways, bridges,
highways, and other public and private places in, over, under, or along which
they are installed and shall restore the areas to their original condition. If such
removal is not completed within six (6) months of such lawful termination or
revocation, the City or property owner may deem any property not removed as
having been abandoned and the City may remove it at Comcast’s cost.
(b) During the term of the Agreement, if Comcast decides to abandon or
no longer use all or part of its Cable System, it shall give the City written notice of
its intent at least ninety (90) days prior to the announcement of such decision,
which notice shall describe the property and its location. The City shall have the
right to either require Comcast to remove the property, remove the property itself
and charge Comcast with the costs related thereto, or transfer ownership of the
property to the City’s designee provided fair market value is paid to Comcast.
(c) Notwithstanding the above, Comcast shall not be required to remove
its Cable System, or to relocate the Cable System, or to sell the Cable System,
or any portion thereof, as a result of revocation, denial of renewal, or any other
lawful action to forbid or disallow Comcast from providing Cable Service, if the
System is actively being used to provide any telecommunications or information
services not governed by Title VI of the Communications Act of 1934, as
amended, or any portion thereof.
14.3 NOTICES
Every notice or payment to be served upon or made to the City shall be
sent to:
Chief Information Officer – City of Pittsburgh
City Information Systems
City-County Building
414 Grant Street, Room 604
Pittsburgh, PA 15219
and
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City Solicitor
City of Pittsburgh
Law Department
City-County Building
414 Grant Street, Room 313
Pittsburgh, PA 15219
The City may specify any change of address in writing to Comcast.
Every notice to be served upon Comcast shall be sent to:
Comcast
15 Summit Park Drive
Pittsburgh, PA 15275
Attention: Government Affairs Department
With a copy to:
Comcast Cable
One Comcast Center
1701 John F. Kennedy Boulevard
Philadelphia, PA 19103-2838
Attention: Government Affairs Department
Comcast may specify any changes of address in writing to the City.
Each delivery to Comcast or the City shall be equivalent to direct personal
notice, direction or order, and shall be deemed to have been given at the time of
receipt.
14.4 MINORITY AND WOMEN’S BUSINESS ENTERPRISES
It is the City’s goal to encourage increased participation of minorities and
women in all City contracts. To the extent required by law and/or regulation,
Comcast shall use its best efforts to utilize qualified minority business enterprises
and women-owned business enterprises wherever Comcast employs vendors or
contractors to perform work pertaining to this Franchise or the Cable System in
the City.
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14.5 CAPTIONS
The captions for sections throughout this Agreement are intended solely to
facilitate reading and reference to the sections and provisions of this Agreement.
Such captions shall not affect the meaning or interpretation of this Agreement.
14.6 GOVERNING LAW
This Agreement shall be governed and construed by and in accordance
with the laws of the Commonwealth of Pennsylvania. If suit is brought by a party
to this Agreement, the parties agree that trial of such action shall be vested
exclusively in the state courts of Pennsylvania, County of Allegheny, or in the
United States District Court for the Western District of Pennsylvania.
14.7 ENTIRE AGREEMENT
This written instrument contains the entire agreement between the parties,
supersedes all prior agreements or proposals whether written or oral except as
specifically incorporated herein, and cannot be changed without written
amendment approved by both the City and Comcast. This Agreement
supersedes all cable ordinances or parts of cable ordinances that are in conflict
with any provisions of this Agreement.
14.8 SEVERABILITY
If any section, provision or clause of this Agreement is held by a court of
competent jurisdiction to be unlawful, invalid or unenforceable, or is pre-empted
by federal or state laws or regulations, such section, provision or clause shall be
deemed to be severable from the remaining portions of this Agreement and shall
not affect the legality, validity or enforceability of the remaining portions of this
Agreement.
14.9 CHANGE OF LAW
In the event there is a change in a federal or state statute or regulation
applicable to the Cable System or to this Agreement, the City or Comcast may
notify the other party of its desire to amend this Agreement in order to comply
with the change in statute or regulation. The City and Comcast may amend this
Agreement to comply with such change in statute or regulation provided such
amendment is approved by the City and Comcast.
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14.10 COMPLIANCE WITH LAWS
Comcast shall comply with all applicable federal, state and local laws,
regulations and ordinances.
14.11 NO THIRD PARTY BENEFICIARIES
Except as expressly provided in this Agreement, this Agreement is not
intended to, and does not, create any rights or benefits on behalf of any Person
other than the parties to this Agreement.
14.12 APPLICABILITY OF AGREEMENT
All of the provisions in this Agreement shall bind Comcast, the City and
their respective successors and assigns. This Agreement is authorized by
Ordinance No.______ dated _____________, 2010 of the Pittsburgh City
Council.
14.13 FRANCHISE REPRESENTATIVE
Within thirty (30) days of the Effective Date, Comcast shall assign a
representative to be available to the City to address Franchise implementation
issues. Within such time period, Comcast shall notify the City in writing of the
name and contact information for such representative.
[Signature Page to Follow]
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WITNESS our hands and official seals to this Cable Franchise Agreement.
CITY OF PITTSBURGH
By:
Luke Ravenstahl
Mayor, City of Pittsburgh
By:
Michael E. Lamb
Controller, City of Pittsburgh
By:
Daniel D. Regan
Solicitor, City of Pittsburgh
COMCAST OF CALIFORNIA/ PENNSYLVANIA/UTAH/ WASHINGTON, INC.
By:
David Breidinger
Senior Divisional Vice President, Government Affairs
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APPENDIX A
INSTITUTIONAL NETWORK (“I-NET”) SERVICES
Pursuant to the Pennsylvania Right to Know Law, Act 3 (2009), §
708(b)(2), (3) and (4), this Appendix A is not a “public record” and is therefore
exempt from public disclosure and shall be afforded confidential protection at all
times.
