HomeMy WebLinkAboutORDINANCE NO. 06-11-63ORDINANCE NO. 06-11-63
FRANCHISE AGREEMENT
WHEREAS, the Georgia General Assembly authorized the creation of a created a
new political subdivision, the City of Milton (hereinafter, the "Franchising Authority")
effective December 1, 2006; and
WHEREAS, Comcast of Georgia/Virginia, Inc. (hereinafter, the "Grantee")
provides cable and other services to subscribers in the newly incorporated area; and
WHEREAS, the Franchising Authority, pursuant to its charter and police powers,
is authorized to regulate the public rights-of-way within the boundaries of the political
subdivision; and
WHEREAS, the Franchising Authority, having determined that the financial,
legal, and technical ability of the Grantee is reasonably sufficient to provide the services,
facilities, and equipment necessary to meet the future cable -related needs of the
community, desires to enter into this Franchise Agreement with the Grantee for the
construction, operation and maintenance of a Cable System on the terms and conditions
set forth herein.
SECTION 1 - Definition of Terms
For the purpose of this Franchise Agreement, capitalized terms, phrases, words,
and abbreviations shall have the meanings ascribed to them in the Cable Communications
Policy Act of 1984, as amended from time to time, 47 U.S.C. §§ 521 et seq. (the "Cable
Act"), unless otherwise defined herein.
1.1. "Customer" means a Person or user of the Cable System who lawfully
receives Cable Service therefrom with the Grantee's express permission.
1.2. "Effective Date" means December 1, 2006.
1.3. "FCC" means the Federal Communications Commission, or successor
governmental entity thereto.
1.4. "Franchise" means the initial authorization, or renewal thereof, issued by
the Franchising Authority, whether such authorization is designated as a franchise,
agreement, permit, license, resolution, contract, certificate, ordinance or otherwise, which
authorizes the construction and operation of the Cable System.
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1.5. "Franchise Agreement" or "Agreement" shall mean this Agreement and
any amendments or modifications hereto.
`� 1.6. "Franchise Area" means the legal boundaries of the City of Milton as of
the Effective Date, and shall also include any additions thereto, by annexation or other
legal means.
1.7. "Franchising Authority" means the City of Milton or the lawful successor,
transferee, designee, or assignee thereof.
1.8. "Grantee" shall mean Comcast of Georgia/Virginia, Inc.
1.9. "Gross Revenue" means the revenue derived by the Grantee from the
operation of the Cable System in the Franchise Area to provide Cable Services,
calculated in accordance with generally accepted accounting principles, including but not
limited to monthly basic, premium and pay-per-view fees, installation fees, and
equipment rental fees. Gross Revenue shall not include advertising or home shopping
revenue, refundable deposits, bad debt, late fees, investment income, nor any taxes, fees
or assessments imposed or assessed by any governmental authority.
1.10. "Law" shall include all federal, state or local laws, regulations or rules,
and any other action by an authorized entity or person that has the effect of law.
1.11. "Person" means any natural person or any association, firm, partnership,
N•.• joint venture, corporation, or other legally recognized entity, whether for-profit or not -for
profit, but shall not mean the Franchising Authority.
1.12. "Public Way" shall mean the surface of, and the space above and below,
any public street, highway, freeway, bridge, land path, alley, court, boulevard, sidewalk,
way, lane, public way, drive, circle or other public right-of-way, including, but not
limited to, public utility easements, dedicated utility strips, or rights-of-way dedicated for
compatible uses and any temporary or permanent fixtures or improvements located
thereon now or hereafter held by the Franchising Authority in the Franchise Area, which
shall entitle the Franchising Authority and the Grantee to the use thereof for the purpose
of installing, operating, repairing, and maintaining the Cable System. Public Way shall
also mean any easement now or hereafter held by the Franchising Authority within the
Franchise Area for the purpose of public travel, or for utility or public service use
dedicated for compatible uses, and shall include other easements or rights-of-way as shall
within their proper use and meaning entitle the Franchising Authority and the Grantee to
the use thereof for the purposes of installing, operating, and maintaining the Grantee's
Cable System over poles, wires, cables, conductors, ducts, conduits, vaults, manholes,
amplifiers, appliances, attachments, and other property as may be ordinarily necessary
and pertinent to the Cable System.
Now"
1.13. "Video Service Provider" or "VSP" shall mean any entity using the public
Now rights-of-way to provide multiple video programming services to subscribers, for
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purchase or at no cost, regardless of the transmission method, facilities, or technology
used. A VSP shall include but is not limited to any entity that provides cable services,
multichannel multipoint distribution services, broadcast satellite services, satellite -
delivered services, wireless services, and Internet -Protocol based services.
SECTION 2 - Grant of Authority
2.1. Grant. The Franchising Authority hereby grants to the Grantee under the
Cable Act a nonexclusive Franchise authorizing the Grantee to construct and operate a
Cable System in, along, among, upon, across, above, over, under, or in any manner
connected with Public Ways and easements within the Franchise Area, and for that
purpose to erect, install, construct, repair, replace, reconstruct, maintain, or retain in, on,
over, under, upon, across, or along any Public Way and all extensions thereof and
additions thereto, such poles, wires, cables, conductors, ducts, conduits, vaults, manholes,
pedestals, amplifiers, appliances, attachments, and other related property or equipment as
may be necessary or appurtenant to the Cable System. Nothing in this Franchise shall be
construed to prohibit the Grantee from offering any service over its Cable System that is
not prohibited by federal or state law.
2.2. Term of Franchise. The term of the Franchise granted hereunder shall be
ten (10) years, commencing upon the Effective Date of the Franchise, unless the
Franchise is renewed or is lawfully terminated in accordance with the terms of this
Franchise Agreement and the Cable Act.
2.3 Continuing Obligati . In the event the Grantee continues to operate all or
any part of the System after the term of this Agreement expires, then the Grantee shall
continue to comply with all applicable provisions of this Agreement, including, without
limitation, all compensation and other payment provisions of this Agreement, throughout the
period of such continued operation, provided that any such continued operation shall in no
way be construed as a renewal or other extension of this Agreement or the Franchise.
2.4. Renewal. Any renewal of this Franchise shall be governed by and comply
with the provisions of Section 626 of the Cable Act, as amended. Both the Grantee and
the Franchising Authority hereby preserve their rights under the formal renewal
procedure of Section 626 of the Cable Act.
2.5. Reservation of Authority. Nothing in this Franchise Agreement shall (A)
abrogate the right of the Franchising Authority to perform any public works or public
improvements of any description, (B) be construed as a waiver of any codes or
ordinances of general applicability promulgated by the Franchising Authority, or (C) be
construed as a waiver or release of the rights of the Franchising Authority in and to the
Public Ways.
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2.6. Competitive Equity and Subsequent Action Provisions
2.6.1. Purposes. The Grantee and the Franchising Authority acknowledge
``� that there is increasing competition in the video marketplace among cable operators,
direct broadcast satellite providers, telephone companies, broadband content providers
and others; new technologies are emerging that enable the provision of new and advanced
services to City residents; and changes in the scope and application of the traditional
regulatory framework governing the provision of video services are being considered in a
variety of federal, state and local venues. To foster an environment where video service
providers using the Public Ways can compete on a competitively neutral and
nondiscriminatory basis; encourage the provision of new and advanced services to City
residents; promote local communications infrastructure investments and economic
opportunities in the City; and provide flexibility in the event of subsequent changes in the
Law, the Grantee and the Franchising Authority have agreed to the provisions in this
Section 2.6, and they should be interpreted and applied with such purposes in mind.
2.6.2 New Video Service Provider. Notwithstanding any other provision
of this Agreement or any other provision of Law, if any Video Service Provider ("VSP")
(i) enters into any agreement with the Franchising Authority to provide video services to
subscribers in the City, or (ii) otherwise begins to provide video services to subscribers in
the City (with or without entering into an agreement with the Franchising Authority), the
Franchising Authority, upon written request of the Grantee, shall permit the Grantee to
construct and operate its Cable System and to provide video services to subscribers in the
City under the same agreement and/or under the same terms and conditions as apply to
�-• the new VSP. The Grantee and the Franchising Authority shall enter into an agreement
or other appropriate authorization (to the extent the Grantee determines such an
agreement or authorization is necessary) containing the same terms and conditions as are
applicable to the VSP within sixty (60) days after the Grantee submits a written request to
the Franchising Authority.
If there is no written agreement or other authorization between the new
VSP and the Franchising Authority, the Grantee and the Franchising Authority shall use
the sixty (60) day period to develop and enter into an agreement or other appropriate
authorization (to the extent the Grantee determines such an agreement or authorization is
necessary) that to the maximum extent possible contains provisions that will ensure
competitive equity between the Grantee and other VSPs, taking into account the terms
and conditions under which other VSPs are allowed to provide video services to
subscribers in the City.
2.6.3 Subsequent Change in Law. If there is a change in federal, state or
local Law that provides for a new or alternative form of authorization for a VSP to
provide video services to subscribers in the City, or that otherwise changes the nature or
extent of the obligations that the Franchising Authority may request from or impose on a
VSP providing video services to subscribers in the City, the Franchising Authority agrees
that, notwithstanding any other provision of Law, upon the written request and at the
option of the Grantee, the Franchising Authority shall: (i) permit the Grantee to provide
video services to subscribers in the City on the same terms and conditions as are
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W -ft applicable to a VSP under the changed Law; (ii) modify this Agreement to comply with
the changed Law; or (iii) modify this Agreement to ensure competitive equity between
the Grantee and other VSPs, taking into account the conditions under which other VSPs
are permitted to provide video services to subscribers in the City. The Franchising
Authority and the Grantee shall implement the provisions of this Section 2.6.3 within
sixty (60) days after the Grantee submits a written request to the Franchising Authority.
Notwithstanding any provision of Law that imposes a time or other limitation on the
Grantee's ability to take advantage of the changed Law's provisions, the Grantee may
exercise its rights under this Section 2.6.3 at any time, but not sooner than thirty (30)
days after the changed Law goes into effect.
2.6.4 Effect on This Agreement. Any agreement, authorization, right or
determination to provide video services to subscribers in the City under Sections 2.6.2 or
2.6.3 shall supersede this Agreement, and the Grantee, at its option, may terminate this
Agreement or portions thereof, upon written notice to the Franchising Authority, without
penalty or damages.
SECTION 3 — Construction and Maintenance of the Cable System
3.1. Permits and General Obligations. The Grantee shall be responsible for
obtaining all permits, licenses, or other forms of approval or authorization necessary to
construct, operate, maintain or repair the Cable System, or any part thereof, prior to the
• commencement of any such activity. Construction, installation, and maintenance of the
Cable System shall be performed in a safe, thorough and reliable manner using materials
of good and durable quality. All transmission and distribution structures, poles, other
lines, and equipment installed by the Grantee for use in the Cable System in accordance
with the terms and conditions of this Franchise Agreement shall be located so as to
minimize the interference with the proper use of the Public Ways and the rights and
reasonable convenience of property owners who own property that adjoins any such
Public Way.
3.2. Conditions on Street Occupancy.
3.2.1. New Grades or Lines. If the grades or lines of any Public Way
within the Franchise Area are lawfully changed at any time during the term of this
Franchise Agreement, then the Grantee shall, upon reasonable advance written notice
from the Franchising Authority (which shall not be less than ninety (90) days) and at its
own cost and expense, protect or promptly alter or relocate the Cable System, or any part
thereof, so as to conform with any such new grades or lines. If public funds are available
to any Person using such street or public right-of-way for the purpose of defraying the
cost of any of the foregoing, the Franchising Authority shall upon written request of the
,,,," Grantee make application for such funds on behalf of the Grantee. To the extent the
relocation of the System, or any portion thereof, is required pursuant to a development or
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streetscaping project, the Company shall not be responsible for the costs associated with
such relocation.
3.2.2. Relocation at request of Third Party. The Grantee shall, upon
reasonable prior written request of any Person holding a permit issued by the Franchising
Authority to move any structure, temporarily move its wires to permit the moving of such
structure; provided (i) the Grantee may impose a reasonable charge on any Person for the
movement of its wires, and such charge may be required to be paid in advance of the
movement of its wires; and (ii) the Grantee is given not less than thirty (30) days advance
written notice to arrange for such temporary relocation.
3.2.3. Restoration of Public Ways. If in connection with the construction,
operation, maintenance, or repair of the Cable System, the Grantee disturbs, alters, or
damages any Public Way, the Grantee agrees that it shall at its own cost and expense
replace and restore any such Public Way to a condition reasonably comparable to the
condition of the Public Way existing immediately prior to the disturbance. If the
Franchising Authority reasonably believes that the Grantee has not restored the Public
Way appropriately, then the Franchising Authority, after providing ten (10) business days
advance written notice, may have the Public Way restored and bill the Grantee for the
cost of such restoration.
3.2.4. Safety Requirements. The Grantee shall, at its own cost and
OWN expense, undertake all necessary and appropriate efforts to maintain its work sites in a
safe manner in order to prevent failures and accidents that may cause damage, injuries or
nuisances. All work undertaken on the Cable System shall be performed in substantial
accordance with applicable FCC or other federal and state regulations. The Cable System
shall not unreasonably endanger or interfere with the safety of Persons or property in the
Franchise Area.
3.2.5. Trimming of Trees and Shrubbery. The Grantee shall have the
authority to trim trees or other natural growth overhanging any of its Cable System in the
Franchise Area so as to prevent contact with the Grantee's wires, cables, or other
equipment. All such trimming shall be done at the Grantee's sole cost and expense. The
Grantee shall be responsible for any damage caused by such trimming and shall make
reasonable efforts to notify the Franchising Authority prior to commencing such
trimming.
3.2.6. Aerial and Underground Construction. If all of the transmission
and distribution facilities of all of the respective public or municipal utilities in any area
of the Franchise Area are underground, the Grantee shall place its Cable Systems'
transmission and distribution facilities underground; provided that such underground
locations are actually capable of accommodating the Grantee's cable and other equipment
without technical degradation of the Cable System's signal quality. In any region(s) of
the Franchise Area where the transmission or distribution facilities of the respective
public or municipal utilities are both aerial and underground, the Grantee shall have the
discretion to construct, operate, and maintain all of its transmission and distribution
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on" facilities, or any part thereof, aerially or underground. Nothing in this Section shall be
construed to require the Grantee to construct, operate, or maintain underground any
ground -mounted appurtenances such as customer taps, line extenders, system passive
devices, amplifiers, power supplies, pedestals, or other related equipment.
SECTION 4 - Service Obligations
4.1. General Service Obligation. The Grantee shall make Cable Service
available to every residential dwelling unit within the Franchise Area where the minimum
density is at least thirty (30) dwelling units per mile and is within one (1) mile of the
existing Cable System. Subject to the density requirement, Grantee shall offer Cable
Service to all new homes or previously unserved homes located within 125 feet of the
Grantee's distribution cable.
The Grantee may elect to provide Cable Service to areas not meeting the
above density and distance standards. The Grantee may impose an additional charge in
excess of its regular installation charge for any service installation requiring a drop in or
line extension in excess of the above standards. Any such additional charge shall be
computed on a time plus materials basis to be calculated on that portion of the installation
that exceeds the standards set forth above.
4.2. Programming. The Grantee shall offer to all Customers a diversity of
video programming services.
4.3. No Discrimination. Neither the Grantee nor any of its employees, agents,
representatives, contractors, subcontractors, or consultants, nor any other Person, shall
discriminate or permit discrimination between or among any Persons in the availability of
Cable Services provided in connection with the Cable System in the Franchise Area. It
shall be the right of all Persons to receive all available services provided on the Cable
System so long as such Person's financial or other obligations to the Grantee are
satisfied. Nothing contained herein shall prohibit the Grantee from offering bulk
discounts, promotional discounts, package discounts, or other such pricing strategies as
part of its business practice.
4.4. New Developments. The Franchising Authority shall provide the Grantee
with written notice of the issuance of building or development permits for planned
developments within the Franchise Area requiring undergrounding of cable facilities.
The Franchising Authority agrees to require the developer, as a condition of issuing the
permit, to give the Grantee access to open trenches for deployment of cable facilities and
at least ten (10) business days written notice of the date of availability of open trenches.
Developer shall be responsible for the digging and backfilling of all trenches. The
Grantee shall be responsible for engineering and deployment of labor applicable to its
cable facilities.
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4.5. Prohibition Against Reselling Service. No Person shall resell,
without the express prior written consent of the Grantee, any Cable
Service, program or signal transmitted over the Cable System by
the Grantee.
4.6 PEG Access. In accordance with Section 611 of the Cable Act (47 U.S.C. §
531), the Grantee agrees to make available channel capacity (up to one channel) to be
designated for governmental use. The Grantee shall not be required to dedicate a channel
for the Franchising Authority's exclusive use until the Franchising Authority has produced a
minimum of ten (10) hours of original video programming per week for ten consecutive
weeks. For purposes of this section original programming shall not include video bulletin
board messages, traffic cameras or other passive sources of video programming. In
accordance with Section 611 of the Cable Act (47 U.S.C. § 531), the Franchising Authority
may require rules and procedures for the use of government access capacity.
SECTION 5 - Fees and Charizes to Customers
5.1. All rates, fees, charges, deposits and associated terms and conditions to be
imposed by the Grantee or any affiliated Person for any Cable Service as of the Effective
Date shall be in accordance with applicable FCC's rate regulations. Before any new or
modified rate, fee, or charge is imposed, the Grantee shall follow the applicable FCC
notice requirements and rules and notify affected Customers, which notice may be by any
means permitted under applicable law.
5.2 Network Support and PEG Fees. The parties to this Agreement
acknowledge that the Grantee had made certain capital investments as required by the
Franchise Agreement between the Grantee, its Affiliates and Fulton County, Georgia. As
of the Effective Date, the Grantee collects additional fees from customers as
reimbursement for those costs.
Additionally, the Grantee will incur significant costs associated with
administration of this Franchise. To offset both the embedded capital costs and the one-
time administrative costs, the parties agree that the Grantee may continue to pass through
and retain fees up to $.70 per customer per month through December 31, 2007. These
fees will be reflected on customer's bill as a "Network Support Fee" and "PEG Support
Fee".
SECTION 6 - Customer Service Standards; Customer Bills;
and Privacy Protection
6.1. Customer Service Standards. The Franchising Authority hereby adopts
the customer service standards set forth in Part 76, §76.309 of the FCC's rules and
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,ow" regulations, as amended and attached hereto as Appendix A. The Grantee shall comply
in all respects with the customer service requirements established by the FCC.
6.2. Customer Bills. Customer bills shall be designed in such a way as to
present the information contained therein clearly and comprehensibly to Customers, and
in a way that (A) is not misleading and (B) does not omit material information.
Notwithstanding anything to the contrary in Section 6.1, above, the Grantee may, in its
sole discretion, consolidate costs on Customer bills as may otherwise be permitted by
Section 622(c) of the Cable Act (47 U.S.C. §542(c)).
6.3. Privacy Protection. The Grantee shall comply with all applicable federal
and state privacy laws, including Section 631 of the Cable Act and regulations adopted
pursuant thereto.
SECTION 7 - Oversight and Regulation by Franchising Authority
7.1. Franchise Fees. The Grantee shall pay to the Franchising Authority a
franchise fee in an amount equal to five percent (5%) of annual Gross Revenues received
from the operation of the Cable System to provide Cable Service in the Franchise Area;
provided, however, that Grantee shall not be compelled to pay any higher percentage of
MOMM franchise fees than any other cable operator providing service in the Franchise Area. The
payment of franchise fees shall relieve the Grantee from any administrative permit fees or
other fees required by the Franchising Authority related to the Grantee's use of Public
Ways. The payment of franchise fees shall be made on a quarterly basis and shall be due
thirty (30) days after the close of each calendar quarter. Each franchise fee payment shall
be accompanied by a report prepared by a representative of the Grantee showing the basis
for the computation of the Franchise Fees paid during that period.
7.2. Franchise Fees Subject to Audit.
7.2.1. Upon reasonable prior written notice, during normal business
hours, at Grantee's principal business office, the Franchising Authority shall have the
right to inspect the Grantee's financial records used to calculate the Franchising
Authority's franchise fees; provided, however, that any such inspection shall take place
within three (3) years from the date the Franchising Authority receives such payment,
after which period any such payment shall be considered final.
7.2.2. Upon the completion of any such audit by the Franchising
Authority, the Franchising Authority shall provide to the Grantee a final report setting
forth the Franchising Authority's findings in detail, including any and all substantiating
documentation. In the event of an alleged underpayment, the Grantee shall have thirty
mom (30) days from the receipt of the report to provide the Franchising Authority with a
written response agreeing to or refuting the results of the audit, including any
am" substantiating documentation. Based on these reports and responses, the parties shall
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agree upon a "Finally Settled Amount." For purposes of this Section, the term "Finally
Settled Amount(s)" shall mean the agreed upon underpayment, if any, to the Franchising
Authority by the Grantee as a result of any such audit. If the parties cannot agree on a
Y.�. "Final Settlement Amount," the parties shall submit the dispute to a mutually agreed
upon mediator within sixty (60) days of reaching an impasse. In the event an agreement
is not reached at mediation, either party may bring an action to have the disputed amount
determined by a court of law.
7.2.3. Any "Finally Settled Amount(s)" due to the Franchising Authority
as a result of such audit shall be paid to the Franchising Authority by the Grantee within
thirty (30) days from the date the parties agree upon the "Finally Settled Amount." Once
the parties agree upon a Finally Settled Amount and such amount is paid by the Grantee,
the Franchising Authority shall have no further rights to audit or challenge the payment
for that period. The Franchising Authority shall bear the expense of its audit of the
Grantee's books and records.
7.2.4. Interest on Late Payments. If any payment required by this
Agreement is not actually received by the Franchising Authority on or before the applicable
date fixed in this Agreement, the Grantee shall pay interest thereon, from the due date to the
date paid at rates published by the Internal Revenue Service for tax refunds and additional
tax payments for the period of delinquency.
7.3. Oversight of Franchise. In accordance with applicable law, the
Franchising Authority shall have the right to oversee, regulate and, on reasonable prior
written notice and in the presence of Grantee's employee, periodically inspect the
construction, operation and maintenance of the Cable System in the Franchise Area, and
all parts thereof, as necessary to monitor Grantee's compliance with the provisions of this
Franchise Agreement.
7.4. Technical Standards. The Grantee shall comply with all applicable
technical standards of the FCC as published in subpart K of 47 C.F.R. § 76. To the extent
those standards are altered, modified, or amended during the term of this Franchise, the
Grantee shall comply with such altered, modified or amended standards within a
reasonable period after such standards become effective. The Franchising Authority shall
have, upon written request, the right to obtain a copy of tests and records required to be
performed pursuant to the FCC's rules.
7.5. Maintenance of Books, Records, and Files.
7.5.1. Books and Records. Throughout the term of this Franchise
Agreement, the Grantee agrees that the Franchising Authority, upon reasonable prior
written notice to the Grantee, may review such of the Grantee's books and records
regarding the operation of the Cable System and the provision of Cable Service in the
,,,,w Franchise Area which are reasonably necessary to monitor Grantee's compliance with the
provisions of this Franchise Agreement at the Grantee's business office, during normal
business hours, and without unreasonably interfering with Grantee's business operations.
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MMMM Such books and records shall include any records required to be kept in a public file by
the Grantee pursuant to the rules and regulations of the FCC. All such documents
pertaining to financial matters that may be the subject of an inspection by the Franchising
Authority shall be retained by the Grantee for a minimum period of three (3) years.
7.5.2. File for Public Inspection. Throughout the term of this Franchise
Agreement, the Grantee shall maintain at its business office, in a file available for public
inspection during normal business hours, those documents required pursuant to the FCC's
rules and regulations.
7.5.3. Proprietary Information. Notwithstanding anything to the contrary
set forth in this Section, the Grantee shall not be required to disclose information which it
reasonably deems to be proprietary or confidential in nature. The Franchising Authority
agrees to treat any information disclosed by the Grantee as confidential and only to
disclose it to those employees, representatives, and agents of the Franchising Authority
that have a need to know in order to enforce this Franchise Agreement and who agree to
maintain the confidentiality of all such information. The Grantee shall not be required to
provide Customer information in violation of Section 631 of the Cable Act or any other
applicable federal or state privacy law. For purposes of this Section, the terms
"proprietary or confidential" include, but are not limited to, information relating to the
Cable System design, customer lists, marketing plans, financial information unrelated to
the calculation of franchise fees or rates pursuant to FCC rules, or other information that
is reasonably determined by the Grantee to competitively sensitive. In the event that the
Franchising Authority receives a request under a state "sunshine," public records or
similar law for the disclosure of information the Grantee has designated as confidential,
trade secret or proprietary, the Franchising Authority shall notify Grantee of such request
and cooperate with Grantee in opposing such request.
SECTION 8 — Transfer or Change of Control of Cable System or Franchise
8.1. Neither the Grantee nor any other Person may transfer the Cable System
or the Franchise without the prior written consent of the Franchising Authority, which
consent shall not be unreasonably withheld or delayed. No change in control of the
Grantee, defined as an acquisition of 50% or greater ownership interest in Grantee, shall
take place without the prior written consent of the Franchising Authority, which consent
shall not be unreasonably withheld or delayed. No consent shall be required, however,
for (i) a transfer in trust, by mortgage, hypothecation, or by assignment of any rights,
title, or interest of the Grantee in the Franchise or in the Cable System in order to secure
indebtedness, or (ii) a transfer to an entity directly or indirectly owned or controlled by
Comcast Corporation. Within thirty (30) days of receiving a request for consent, the
Franchising Authority shall, in accordance with FCC rules and regulations, notify the
Grantee in writing of the additional information, if any, it requires to determine the legal,
financial and technical qualifications of the transferee or new controlling party. If the
Franchising Authority has not taken action on the Grantee's request for consent within
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one hundred twenty (120) days after receiving such request, consent shall be deemed
given.
SECTION 9 - Insurance and Indemnity
9.1. Insurance. Throughout the term of this Franchise Agreement, the Grantee
shall, at its own cost and expense, maintain Comprehensive General Liability Insurance
and provide the Franchising Authority certificates of insurance designating the
Franchising Authority and its officers, boards, commissions, councils, elected officials,
agents and employees as additional insureds and demonstrating that the Grantee has
obtained the insurance required in this Section. Such policy or policies shall be in the
minimum amount of One Million Dollars ($1,000,000.00) for bodily injury or death to
any one person, and One Million Dollars ($1,000,000.00) for bodily injury or death of
any two or more persons resulting from one occurrence, and One Million Dollars
($1,000,000.00) for property damage resulting from any one accident. Such policy or
policies shall be non -cancelable except upon thirty (30) days prior written notice to the
Franchising Authority. The Grantee shall provide workers' compensation coverage in
accordance with applicable law. The Grantee shall indemnify and hold harmless the
Franchising Authority from any workers compensation claims to which the Grantee may
become subject during the term of this Franchise Agreement
9.2. Indemnification. The Grantee shall indemnify, defend and hold harmless
the Franchising Authority, its officers, employees, and agents from and against any
liability or claims resulting from property damage or bodily injury (including accidental
death) that arise out of the Grantee's construction, operation, maintenance or removal of
the Cable System, including, but not limited to, reasonable attorneys' fees and costs,
provided that the Franchising Authority shall give the Grantee written notice of its
obligation to indemnify and defend the Franchising Authority within ten (10) business
days of receipt of a claim or action pursuant to this Section. If the Franchising Authority
determines that it is necessary for it to employ separate counsel, the costs for such
separate counsel shall be the responsibility of the Franchising Authority.
SECTION 10 - System Description and Service
10.1. System Capacity. During the term of this Agreement the Grantee's Cable
System shall be capable of providing a minimum of 85 channels of video programming
with satisfactory reception available to its customers in the Franchise Area.
10.2. Service to School Buildings. The Grantee shall provide free "Basic" and
"Expanded Basic" tier Cable Service and free standard installation at one outlet to each
public and private school, not including "home schools," located in the Franchise Area
WON within 125 feet of the Grantee's distribution cable. For purposes of this subsection,
Page 12 of 20
"Expanded Basic" shall mean that tier of cable service just above the most basic level of
service offered by the Grantee.
10.3. Service to Governmental and Institutional Facilities. The Grantee shall
provide free "Basic" and "Expanded Basic" tier Cable Service and free standard
installation at one outlet to each municipal building located in the Franchise Area within
125 feet of the Grantee's distribution cable. "Municipal buildings" are those buildings
owned or leased by the Franchising Authority for government administrative purposes,
and shall not include buildings owned by Franchising Authority but leased to third parties
or buildings such as storage facilities at which government employees are not regularly
stationed. For purposes of this subsection, "Expanded Basic" shall mean that tier of cable
service just above the most basic level of service offered by the Grantee.
SECTION 11 - Enforcement and Termination of Franchise
11.1. Notice of Violation or Default. In the event the Franchising Authority
believes that the Grantee has not complied with the material terms of the Franchise, it
shall notify the Grantee in writing with specific details regarding the exact nature of the
alleged noncompliance or default.
11.2. Grantee's Right to Cure or Respond. The Grantee shall have forty-five
(45) days from the receipt of the Franchising Authority's written notice: (A) to respond to
the Franchising Authority, contesting the assertion of noncompliance or default; or (B) to
cure such default; or (C) in the event that, by nature of the default, such default cannot be
cured within the forty-five (45) day period, initiate reasonable steps to remedy such
default and notify the Franchising Authority of the steps being taken and the projected
date that they will be completed.
11.3. Public Hearings. In the event the Grantee fails to respond to the
Franchising Authority's notice or in the event that the alleged default is not remedied
within forty-five (45) days or the date projected by the Grantee, the Franchising
Authority shall schedule a public hearing to investigate the default. Such public hearing
shall be held at the next regularly scheduled meeting of the Franchising Authority that is
scheduled at a time that is no less than ten (10) business days therefrom. The Franchising
Authority shall notify the Grantee in writing of the time and place of such meeting and
provide the Grantee with a reasonable opportunity to be heard.
11.4. Enforcement. Subject to applicable federal and state law, in the event the
Franchising Authority, after such public hearing, determines that the Grantee is in default
of any provision of the Franchise, the Franchising Authority may:
11.4.1. seek specific performance of any provision that reasonably lends
itself to such remedy as an alternative to damages, or seek other equitable relief, or
Page 13 of 20
Franchise,
following:
11.4.2. in the case of a substantial default of a material provision of the
declare the Franchise Agreement to be revoked in accordance with the
(i) The Franchising Authority shall give written notice to the
Grantee of its intent to revoke the Franchise on the basis of a pattern of noncompliance
by the Grantee, including one or more instances of substantial noncompliance with a
material provision of the Franchise. The notice shall set forth with specificity the exact
nature of the noncompliance. The Grantee shall have ninety (90) days from the receipt of
such notice to object in writing and to state its reasons for such objection. In the event
the Franchising Authority has not received a response from the Grantee or upon receipt of
the response does not agree with the Grantee's proposed remedy, it may then seek
termination of the Franchise at a public hearing. The Franchising Authority shall cause
to be served upon the Grantee, at least ten (10) days prior to such public hearing, a
written notice specifying the time and place of such hearing and stating its intent to
request termination of the Franchise.
(ii) At the designated hearing, the Franchising Authority shall
give the Grantee an opportunity to state its position on the matter, present evidence and
question witnesses, after which it shall determine whether or not the Franchise shall be
revoked. The public hearing shall be on the record and a written transcript shall be made
available to the Grantee within ten (10) business days. The decision of the Franchising
Authority shall be in writing and shall be delivered to the Grantee by certified mail. The
Grantee may appeal such determination to an appropriate court, which shall have the
power to review the decision of the Franchising Authority "de novo" and to modify or
reverse such decision as justice may require. Such appeal to the appropriate court must
be taken within sixty (60) days of the issuance of the determination of the Franchising
Authority.
11.5. Technical Violation. The Franchising Authority agrees that it is not its
intention to subject the Grantee to penalties, fines, forfeitures or revocation of the
Franchise for so-called "technical" breach(es) or violation(s) of the Franchise, which
shall include, but not be limited, to the following:
11.5.1. in instances or for matters where a violation or a breach of the
Franchise by the Grantee was good faith error that resulted in no or minimal negative
impact on the Customers within the Franchise Area; or
11.5.2. where there existed circumstances reasonably beyond the control
of the Grantee and which precipitated a violation by the Grantee of the Franchise, or
which were deemed to have prevented the Grantee from complying with a term or
condition of the Franchise.
Page 14 of 20
SECTION 12 - Miscellaneous Provisions
12.1. Force Majeure. The Grantee shall not be held in default under, or in
noncompliance with, the provisions of the Franchise, nor suffer any enforcement or
penalty relating to noncompliance or default (including termination, cancellation or
revocation of the Franchise), where such noncompliance or alleged defaults occurred or
were caused by strike, riot, war, earthquake, flood, tidal wave, unusually severe rain or
snow storm, hurricane, tornado or other catastrophic act of nature, labor disputes, failure
of utility service necessary to operate the Cable System, governmental, administrative or
judicial order or regulation or other event that is reasonably beyond the Grantee's ability
to anticipate or control. This provision also covers work delays caused by waiting for
utility providers to service or monitor their own utility poles on which the Grantee's cable
or equipment is attached, as well as unavailability of materials or qualified labor to
perform the work necessary.
12.2. Notice. All notices shall be in writing and shall be sufficiently given and
served upon the other party by hand delivery, first class mail, registered or certified,
return receipt requested, postage prepaid, or by reputable overnight courier service and
addressed as follows:
To the Franchising Authority: City Manager
To the Grantee: Comcast of Georgia/Virginia, Inc.
2925 Courtyards Drive
Norcross, Georgia 30071
Facsimile: 770-559-7623
Attention: General Manager
with a copy to: Comcast Cable Communications, Inc.
Attn: Vice President, Government Affairs
360 Interstate North Parkway, Suite 600
Atlanta, GA 30339
Facsimile: (678) 385-5101
with a copy to: Comcast Cable Communications, Inc.
1500 Market Street
Philadelphia, PA 19102
Attn.: Government Affairs Department
„,M 12.3. Entire Agreement. This Franchise Agreement, including all Exhibits,
embodies the entire understanding and agreement of the Franchising Authority and the
taba Grantee with respect to the subject matter hereof and supersedes all prior understandings,
Page 15 of 20
agreements and communications, whether written or oral. All ordinances or parts of
ordinances that are in conflict with or otherwise impose obligations different from the
provisions of this Franchise Agreement are superseded by this Franchise Agreement.
12.4. Severability. If any section, subsection, sentence, clause, phrase, or other
portion of this Franchise Agreement is, for any reason, declared invalid, in whole or in
part, by any court, agency, commission, legislative body, or other authority of competent
jurisdiction, such portion shall be deemed a separate, distinct, and independent portion.
Such declaration shall not affect the validity of the remaining portions hereof, which
other portions shall continue in full force and effect.
12.5. Governing. This Franchise Agreement shall be deemed to be
executed in the State of Georgia, and shall be governed in all respects, including validity,
interpretation and effect, and construed in accordance with, the laws of the State of
Georgia, as applicable to contracts entered into and performed entirely within the State.
12.6. Modification. No provision of this Franchise Agreement shall be
amended or otherwise modified, in whole or in part, except by an instrument, in writing,
duly executed by the Franchising Authority and the Grantee, which amendment shall be
authorized on behalf of the Franchising Authority through the adoption of an appropriate
resolution or order by the Franchising Authority, as required by applicable law.
12.7. No Third -Party Beneficiaries. Nothing in this Franchise Agreement is or
was intended to confer third -party beneficiary status on any member of the public to
enforce the terms of this Franchise Agreement.
12.8. No Waiver of Rights. Nothing in this Franchise Agreement shall be
construed as a waiver of any rights, substantive or procedural, Grantee may have under
federal or state law unless such waiver is expressly stated herein.
IN WITNESS WHEREOF, this Franchise Agreement has been executed by the duly
authorized representatives of the parties as set forth below, as of the date set forth below:
Attest:
kw�ette R. Marchiafava, Clerk
Attest:
Franchising Authority:
By:
Joe Lockwo , Mayor
Comcast of GeorgiaNirginia, Inc.
loV 0, N#A
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1,40A
Page 16 of 20
EXHIBIT A
CUSTOMER SERVICE STANDARDS
[Code of Federal Regulations]
[Title 47, Volume 4, Parts 70 to 79]
[Revised as of October 1, 1998]
From the U.S. Government Printing Office via GPO Access
[CITE: 47CFR76.309]
[Page 561-563]
TITLE 47 --TELECOMMUNICATION
CHAPTER I --FEDERAL COMMUNICATIONS COMMISSION (Continued)
PART 76 --CABLE TELEVISION SERVICE --Table of Contents
Subpart H --General Operating Requirements
Sec. 76.309 Customer service obligations.
(a) A cable franchise authority may enforce the customer service standards set
forth in paragraph (c) of this section against cable operators. The franchise authority must
'AN" provide affected cable operators ninety (90) days written notice of its intent to enforce the
standards.
(b) Nothing in this rule should be construed to prevent or prohibit:
(1) A franchising authority and a cable operator from agreeing to customer
service requirements that exceed the standards set forth in paragraph
(c) of this section;
(2) A franchising authority from enforcing, through the end of the
franchise term, pre-existing customer service requirements that exceed
the standards set forth in paragraph (c) of this section and are
contained in current franchise agreements;
(3) Any State or any franchising authority from enacting or enforcing any
consumer protection law, to the extent not specifically preempted
herein; or
(4) The establishment or enforcement of any State or municipal law or
regulation concerning customer service that imposes customer service
requirements that exceed, or address matters not addressed by the
standards set forth in paragraph (c) of this section.
(c) Effective July 1, 1993, a cable operator shall be subject to the following
customer service standards:
ft" (1) Cable system office hours and telephone availability --
Page 17 of 20
(i) The cable operator will maintain a local, toll-free or collect call
telephone access line which will be available to its subscribers
.�. 24 hours a day, seven days a week.
(A) Trained company representatives will be available to
respond to customer telephone inquiries during normal
business hours.
(B) After normal business hours, the access line may be
answered by a service or an automated response
system, including an answering machine. Inquiries
received after normal business hours must be responded
to by a trained company representative on the next
business day.
(ii) Under normal operating conditions, telephone answer time by a
customer representative, including wait time, shall not exceed
thirty (30) seconds when the connection is made. If the call
needs to be transferred, transfer time shall not exceed thirty
(30) seconds. These standards shall be met no less than ninety
(90) percent of the time under normal operating conditions,
measured on a quarterly basis.
(iii) The operator will not be required to acquire equipment or
perform surveys to measure compliance with the telephone
soon answering standards above unless an historical record of
complaints indicates a clear failure to comply.
(iv) Under normal operating conditions, the customer will receive a
busy signal less than three (3) percent of the time.
(v) Customer service center and bill payment locations will be
open at least during normal business hours and will be
conveniently located.
(2) Installations, outages and service calls. Under normal operating
conditions, each of the following four standards will be met no less
than ninety five (95) percent of the time measured on a quarterly basis:
(i) Standard installations will be performed within seven (7)
business days after an order has been placed. "Standard"
installations are those that are located up to 125 feet from the
existing distribution system.
(ii) Excluding conditions beyond the control of the operator, the
cable operator will begin working on "service interruptions"
promptly and in no event later than 24 hours after the
interruption becomes known. The cable operator must begin
actions to correct other service problems the next business day
after notification of the service problem.
OWN
(iii) The "appointment window" alternatives for installations,
service calls, and other installation activities will be either a
specific time or, at maximum, a four-hour time block during
Page 18 of 20
L—^
normal business hours. (The operator may schedule service
calls and other installation activities outside of normal business
hours for the express convenience of the customer.)
(iv) An operator may not cancel an appointment with a customer
after the close of business on the business day prior to the
scheduled appointment.
(v) If a cable operator representative is running late for an
appointment with a customer and will not be able to keep the
appointment as scheduled, the customer will be contacted. The
appointment will be rescheduled, as necessary, at a time which
is convenient for the customer.
(3) Communications between cable operators and cable subscribers --
(i) Notifications to subscribers --
(A) The cable operator shall provide written information on
each of the following areas at the time of installation of
service, at least annually to all subscribers, and at any
time upon request:
(1) Products and services offered;
(2) Prices and options for programming services
and conditions of subscription to programming
and other services;
(3) Installation and service maintenance policies;
(4) Instructions on how to use the cable service;
(5) Channel positions programming carried on the
system; and,
(6) Billing and complaint procedures, including the
address and telephone number of the local
franchise authority's cable office.
(B) Customers will be notified of any changes in rates,
programming services or channel positions as soon as
possible in writing. Notice must be given to subscribers
a minimum of thirty (30) days in advance of such
changes if the change is within the control of the cable
operator. In addition, the cable operator shall notify
subscribers thirty (30) days in advance of any
significant changes in the other information required by
paragraph (c)(3)(i)(A) of this section. Notwithstanding
any other provision of Part 76, a cable operator shall
not be required to provide prior notice 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, State, or
Page 19 of 20
franchising authority on the transaction between the
operator and the subscriber.
(ii) Billing --
(A) Bills will be clear, concise and understandable. Bills
must be fully itemized, with itemizations including, but
not limited to, basic and premium service charges and
equipment charges. Bills will also clearly delineate all
activity during the billing period, including optional
charges, rebates and credits.
(B) In case of a billing dispute, the cable operator must
respond to a written complaint from a subscriber within
30 days.
(iii) Refunds --Refund checks will be issued promptly, but no later
than either --
(A) The customer's next billing cycle following resolution
of the request or thirty (30) days, whichever is earlier,
or
(B) The return of the equipment supplied by the cable
operator if service is terminated.
(iv) Credits --Credits for service will be issued no later than the
customer's next billing cycle following the determination that
a credit is warranted.
(4) Definitions --
(i) Normal business hours --The term "normal business hours"
means 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.
(ii) Normal operating conditions --The term "normal operating
conditions" means those service conditions which are within
the control of the cable operator. Those conditions which are
not within the control of the cable operator include, but are not
limited to, natural disasters, civil disturbances, power outages,
telephone network outages, and severe or unusual weather
conditions. Those conditions which are ordinarily within the
control of the cable operator include, but are not limited to,
special promotions, pay-per-view events, rate increases, regular
peak or seasonal demand periods, and maintenance or upgrade
of the cable system.
(iii) Service interruption --The term "service interruption" means
the loss of picture or sound on one or more cable channels.
[58 FR 21109, Apr. 19, 1993, as amended at 61 FR 18977, Apr. 30, 1996]
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