2546 TABLE OF CONTENTS
Page
SECTION 1 GRANT OF AUTHORITY .............................. .. .. .................1
SECTION 2 THE CABLE SYSTEM.... .............................. ... ... .................4
SECTION 3 CUSTOMER SERVICE.. ... .. .................................. ... ... ......7
SECTION COMPENSATION.......... .. .. .............................. .. ... ...........7
SECTION 5 COMPLIANCE REPORTS. . .... .............................. .. .. ... ....9
SECTION 6 ENFORCEMENT.................. ... ... ............................. .. ......10
SECTION 7 ASSIGNMENT AND OTHER TRANSFERS..... .. ... ...........11
SECTION 8 INSURANCE AND INDEMNITY .. .. ................................. 12
SECTION 9 PUBLIC, EDUCATION, GOVERNMENT ACCESS............12
SECTION 10 MISCELLANEOUS ... ... .............................. .. ... ._..............13
APPENDIX A DEFINED TERMS........ ... ........................... ... ... ..............A-1
APPENDIX B CUSTOMER SERVICE STANDARDS...................... ... ... B-1
ORDINANCE NO. 2 S`16
AN ORDINANCE GRANTING A FRANCHISE TO COMCAST OF
ARKANSAS/LOUISIANA/MINNESOTA/MISSISSIPPUTENNESSE,LLC TO
CONSTRUCT, OWN, OPERATE AND MAINTAIN A CABLE TELEVISION
SYSTEM IN THE CITY OF WEST MEMPHIS,ARKANSAS SETTING FORTH
CONDITIONS ACCOMPANYING THE GRANT OF THE FRANCHISE AND
PROVIDING FOR REGULATION AND USE OF THE SYSTEM, AND FOR
OTHER PURPOSES.
WHEREAS,the legal character, financial, technical and other qualifications of Comcast
of Arkansas/Louisiana/Minnesota/MississippUTennessee, LLC has been approved by the
franchising authority as part of a full proceeding affording due process;
NOW,THEREFORE,BE IT RESOLVED AND ORDAINED BY THE MAYOR
AND CITY COUNCIL OF THE CITY OF WEST MEMPHIS, ARKANSAS:
This AGREEMENT is effective as of the day of , 2020 (the "Effective Date").
and is between the City of West Memphis, Arkansas (the "Franchising Authority or the "City"),
and Comcast of Arkansas/Louisiana/Minnesota/Mississippi/Tennessee, LLC (the "Company").
For purposes of this Agreement,unless otherwise defined in this Agreement,the capitalized terms,
phrases, words, and their derivations, shall have the meanings set forth in Appendix A.
The Franchising Authority, having determined that the financial, legal, and technical ability of the
Company is reasonably sufficient to provide the services, facilities, and equipment necessary to
meet the current and future cable-related needs of the community and that,as of the Effective Date,
the Company is in material compliance with the terms and conditions of the cable franchise
preceding this Agreement, desires to enter into this Agreement with the Company for the
construction, operation, and maintenance of a Cable System on the terms and conditions set forth
herein. In consideration of the mutual covenants and agreements contained in this Agreement, and
other good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereby covenant and agree as follows:
SECTION 1
GRANT OF AUTHORITY
1.1 Grant of Franchise. The Franchising Authority hereby grants under the Cable Act a
nonexclusive franchise (the "Franchise") to occupy and use the Streets within the Franchise Area
in order to construct operate, maintain, upgrade,repair,and remove the Cable System,and provide
Cable Services through the Cable System, subject to the terms and conditions of this Agreement.
This Franchise authorizes Cable Service, and it does not grant or prohibit the right(s) of the
Company to provide other services.
1.2 Term of Franchise. This Franchise shall be in effect for a period of ten (10) years
commencing on the Effective Date, unless renewed or lawfully terminated in accordance with this
Agreement and the Cable Act.
1.3 Renewal. Subject to Section 626 of the Cable Act (47 U.S.C. § 546) and such terms and
conditions as may lawfully be established by the Franchising Authority, the Franchising Authority
reserves the right to grant or deny renewal of the Franchise.
1.4 Reservation of Authority. Nothing in this Agreement shall (i) abrogate the right of the
Franchising Authority to perform any public works or public improvements of any description,
(ii)be construed as a waiver of any codes or ordinances of the Franchising Authority or of the
Franchising Authority's right to require the Company or any Person utilizing the Cable System to
secure the appropriate permits or authorizations for its use, or (iii)be construed as a waiver or
release of the rights of the Franchising Authority in and to the Streets. Notwithstanding the above,
in the event of any conflict between this Agreement and any code or ordinance adopted by the
Franchising Authority, the terms and conditions of this Agreement shall prevail
1.5 Competitive Equity and Subsequent Action Piovisions
1.5.1 Purposes. The Company 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 West
Memphis 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 all Cable Service Providers
and Video Service Providers using the Streets can compete on a competitively neutral and
nondiscriminatory basis; encourage the provision of new and advanced services to West
Memphis residents; promote local communications infrastructure investments and
economic opportunities in the City of West Memphis; and provide flexibility in the event
of subsequent changes in the law,the Company and the Franchising Authority have agreed
to the provisions in this Section 1.5, and these provisions should be interpreted and applied
with these purposes in mind. The parties agree that the Franchising Authority shall not be
required to execute a franchise agreement or authorization with a competitive CSP or VSP
that is identical, word-for-word, with this Agreement to avoid triggering the provisions of
this Section 1.5, so long as the regulatory and financial burdens on and benefits to each
CSP or VSP are materially equivalent to the burdens on and benefits to the Company.
"Materially equivalent" provisions include but are not limited to: franchise fees and the
definition of Gross Revenues: system build-out requirements; security instruments;public,
education and government access channels and support; customer service standards: and
audits.
1.5.2 Fair Terms for All Providers. Notwithstanding any other provision of this
Agreement or any other provision of law,
(a) If any VSP or CSP enters into any agreement with the Franchising Authority to
provide Video Services or Cable Services to Subscribers in the Franchise Arca,the
Franchising Authority and the Company, upon written request of the Company,will
use best efforts in good faith to negotiate the Companv's proposed Franchise
modifications, and such negotiation will proceed and conclude within sixty (60)
days, unless that period is reduced or extended by mutual agreement of the parties.
If the Franchising Authority and the Company agree to Franchise modifications
pursuant to such negotiations, then the Franchising Authority shall amend this
Agreement to include the modifications.
If there is no written agreement or other authorization between the new VSP or CSP
and the Franchising Authority, the Company 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 Company determines an agreement or
authorization is necessary)that to the maximum extent possible contains provisions
that will ensure competitive equity between the Company and other VSPs or CSPs,
taking into account the terms and conditions under which the new VSP or CSP is
allowed to provide Video Services or Cable Services to Subscribers in the Franchise
Area.
(b) Following the Franchise modification negotiations provided for in Section
1.5 2(a), if the Franchising Authority and the Company fad to reach agreement in
such negotiations, the Company may, at its option, elect to replace this Agreement
by opting in to the same franchise agreement or other lawful authorization that the
Franchising Authority has granted to the new VSP or CSP. If the Company so
elects, the Franchising Authority shall adopt the Company's replacement
agreement at the next regularly scheduled West Memphis City Council meeting.
(c)The Franchising Authority shall at all times enforce the state and federal ban on
providing Cable Service without a franchise The Franchising Authority's
enforcement efforts shall be continuous and diligent throughout the term of this
Agreement. Should the Franchising Authority not commence enforcement efforts
within sixty(60)days of becoming aware of a VSP or CSP providing Video Service
or Cable Service within the Franchise Area, the Company shall have the right to
petition the Franchising Authority for the relief provided in Section 1.5.2 above.
(d) This Section 1.5.2 shall not apply for VSPs or CSPs providing Video Service
or Cable Service in the Franchise Area under the authorization of the Arkansas
Video Service Act(A.C.A. § 23-19-201, et sey.).
1.5.3 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, subsequent to the Effective Date,
for a VSP or CSP utilizing the Streets to provide Video Services or Cable Services to
Subscribers in the Franchise Area, or that otherwise changes the nature or extent of the
obligations that the Franchising Authority may icquest from or impose on a VSP or CSP
providing Video Services or Cable Services to Subscribers in the Franchise Area, the
Franchising Authority agrees that, notwithstanding any other provision of law, upon the
written request and at the option of the Company. the Franchising Authority shall:
(i) permit the Company to provide Video Services or Cable Services to Subscribers in the
Franchise Area on substantially the same terms and conditions as are applicable to a VSP
or CSP under the changed law; (ii) modify this Agreement to comply with the changed
law;or(in)modify this Agreement to ensure competitive equity between the Company and
other VSPs or CSPs, taking into account the conditions under which other VSPs or CSPs
3
are permitted to provide Video Services or Cable Services to Subscribers in the Franchise
Area. The Franchising Authority and the Company shall implement the provisions of this
Section 1 5 3 within sixty (60) days after the Company submits a written request to the
Franchising Authority. Should the Franchising Authority fail to implement these
provisions within the time specified, this Agreement shall, at the Company's option and
upon written notice to the Franchising Authority, be deemed amended as initially requested
by the Company under this Section 1.5.3. Notwithstanding any provision of law that
imposes a time or other limitation on the Company's ability to take advantage of the
changed law's provisions, the Company may exercise its rights under this Section 1.5.3 at
any time, but not sooner than thirty (30) days after the changed law goes into effect.
1.5.4 Effect on This Agreement. Any agreement, authorization, right, or determination
to provide Cable Services or Video Services to Subscribers in the Franchise Area under
this Section 1.5 shall supersede this Agreement
SECTION 2
THE CABLE SYSTEM
2 1 The System and Its Operations.
2.1.1 Service Area. As of the Effective Date, the Company operates a Cable System
within the Franchise Area.
2.1.2 System. As of the Effective Date, the Company maintains and operates a Cable
System capable of providing over 250 Channels of Video Programming, which Channels
may be delivered by analog, digital, or other transmission technologies, at the sole
discretion of the Companv.
2.1.3 System Technical Standards. Throughout the term of this Agreement, the Cable
System shall be designed, maintained, and operated such that quality and reliability of
System Signal will be in compliance with all applicable consumer electronics equipment
compatibility standards, including but not limited to Section 624A of the Cable Act (47
U.S.C. § 544a)and 47 C.F.R. § 76.630, as may be amended from time to time
2.1.4 Testing Procedures Technical Performance. Throughout the term of this
Agreement, the Company shall operate and maintain the Cable System in accordance with
the testing procedures and the technical performance standards of the FCC.
2.2 Requirements with Respect to Work on the System.
22.1 General Requirements. The Company shall comply with ordinances, rules, and
regulations established by the Franchising Authority pursuant to the lawful exercise of its
police powers and generally applicable to all users of the Streets To the extent that local
ordinances, rules, or regulations clearly conflict with the terms and conditions of this
Agreement, the terms and conditions of this Agreement shall prevail, except where such
conflict arises from the Franchising Authority's lawful exercise of its police powers.
4
2.2.2 Protection of Underground Utilities. Both the Company and the Franchising
Authority shall comply with the Arkansas Underground Facilities Damage Prevention Act
(A.C.A. § 14-271-101, et .seq.), relating to notification prior to excavation near
underground utilities, as may be amended from time to time.
2.3 Permits and General Obligations.
2.3.1 The Company 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. The
Franchising Authority shall not charge the Company, and the Company shall not be
required to pay, any fee or charge for the issuance of permits. licenses, or other approvals,
as such payments are included in the franchise fees described in Section 4 below, except
as required by any pole license agreement between the Company and the City of West
Memphis Utility Department. The Franchising Authority shall make all reasonable efforts
to issue permits, licenses, or other approvals within ten (10) business days. The Company
shall be solely responsible, either through its employees or its authorized contractors, for
constructing, installing, and maintaining the Cable System in a safe,thorough, and reliable
manner in accordance with all applicable standards and using materials of good and durable
quality. The Company shall assure that any person installing, maintaining, or removing its
facilities is fully qualified and familiar with all applicable standards. No third party shall
tamper with, relocate,or otherwise interfere with the Company's facilities in the rights-of-
way without the Company's approval and supervision; provided, however, that the
Company shall make all reasonable efforts to coordinate with other users of the Streets to
facilitate the execution of projects and minimize disruption in the public rights-of-way. All
transmission and distribution structures, poles, other lines, and equipment installed by the
Company for use in the Cable System in accordance with this Agreement shall be located
so as to minimize interference with the proper use of the Streets and the rights and
reasonable convenience of property owners who own property adjoining the Streets.
2.32 Code Compliance The Company shall comply with all applicable building, safety,
and construction codes. The parties agree that at present, Cable Systems are not subject to
the low voltage regulations of the National Electric Code, National Electrical Safety Code,
or other such codes or regulations. In the event that the applicable codes are revised such
that Cable Systems become subject to low voltage regulations without being grandfathered
or otherwise exempted, the Company will thereafter be required to comply with those
regulations.
2.4 Conditions on Street Occupancy.
2.4.1 New Grades or Lines. If the grades or lines of any Street within the Franchise Area
are lawfully changed at any time during the term of this Agreement, then the Company
shall, upon at least ninety(90)days' advance wnuen notice from the Franchising Authority
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 the new grades or lures. If public funds are available
to any Person using the Street for the purpose of defraying the cost of any of the foregoing
work, the Franchising Authority shall make application for such funds on behalf of the
5
Company. The Company shall be entitled to reimbursement of its costs should any other
utility be so compensated as a result of a required protection, alteration. or relocation of its
facilities. Notwithstanding the above, the Company shall not be liable for the cost of
protecting, altering, or relocating facilities, aerial or underground, where such work is
required to accommodate a streetscape, sidewalk, or private development project.
2.4.2 Relocation at Request of Third Party. The Company 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 Company 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 Company agrees to arrange for such temporary relocation to be accomplished
as soon as reasonably practicable, not to exceed ninety (90) days without the prior
agreement of the Franchising Authority.
2.4.3 Restoration of Streets. If in connection with construction, operation, maintenance,
or repair of the Cable System, the Company disturbs, alters, or damages any Street, the
Company agrees that it shall at its own cost and expense restore the Street according to the
City of West Memphis Utilities standards set forth in the policy and the Arkansas State
Highway Commission's Utility Accommodation Policy. If the Franchising Authority
reasonably believes that the Company has not restored the Street appropriately, then the
Franchising Authority, after providing ten (10) business days' advance written notice and
a reasonable opportunity to cure, may have the Street restored and bill the Companv for
the cost of restoration.
2.4.4 Trimming of Trees and Shrubbery. The Company 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 Company's wires, cables, or other equipment, the cost of
which trimming shall not be home by the Franchising Authority.
2.4.5 Aerial and Underground Construction. If at the time of Cable System construction
all of the transmission and distribution facilities of all of the respective public or municipal
utilities in the construction area are underground, the Companv shall place its Cable
System's transmission and distribution facilities underground. At the time of Cable System
construction, in any place within the Franchise Area where the transmission or distribution
facilities of the respective public or municipal utilities are both aerial and underground,the
Company shall have the discretion to construct,operate,and maintain all of its transmission
and distribution facilities, or any part thereof, aerially or underground: however, at such
time as all existing aerial facilities of the respective public or municipal utilities are placed
underground, the Company shall likewise place its facilities underground, subject to the
provisions of Section 2.4.1. Company facilities placed underground at the property owner's
request in any area where any of the transmission or distribution facilities of the respective
public or municipal utilities are aerial shall be installed with the additional expense paid by
the property owner.Nothing in this Section 2.4.5 shall be construed to require the Company
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
6
24.6 New Developments The Franchising Authority shall provide the Company 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 to give the Company access to open
trenches for deployment of cable facilities and at least thirty (30) days' written notice of
the date of availability of open trenches.Notwithstanding the foregoing,the Company shall
not be required to utilize any open trench.
2.4.7 Use of Existing Poles. Where possible, the Company shall attach its facilities to
existing utility poles and shall use all reasonable efforts to enter into a pole attachment
agreement with the owners of such existing utility poles. The Franchising Authority
acknowledges that the Company may pass through to Subscribers the costs of attaching to
existing utility poles in the Franchise Area, and does not object.
2.5 Change in Franchise Area. In the event that the borders of the Franchise Area change,
through annexation or otherwise, the Franchising Authority shall piovide to the Company written
notice of such change, including an updated map and an electronic list of all addresses in the
Franchise Area. Franchise fees on gross revenues earned from Subscribers in annexed areas shall
not be payable to the Franchising Authority until sixty (60) days after the Company's receipt of
such updated map and electronic list of addresses, and shall not he remitted to the Franchising
Authority until the next regularly scheduled quarterly franchise fee payment as provided in Section
4 1.2 below
SECTION 3
CUSTOMER SERVICE
Customer Service. The Company shall comply in all respects with the requirements set forth in
Appendix B. Individual violations of those requirements do not constitute a breach of this
Agreement.
SECTION 4
COMPENSATION
4.1 Compensation to the Franchising Authority. As compensation for the Franchise, the
Company shall pay or cause to be paid to the Franchising Authority the amounts set forth in this
Section 4.1.
4.1.1 Franchise Fees Amount. The Company shall pay to the Franchising Authority
franchise fees in an amount equal to five percent (5%)of Gross Revenues derived from the
operation of the Cable System to provide Cable Services in the Franchise Area.
4.1.2 Franchise Fees—Payment. Payments of franchise fees shall be made on a quarterly
basis and shall be remitted not later than thirty (30) days after the last day of March,June,
September, and December throughout the term of this Agreement
4.1.3 Company to Submit Franchise Fee Report. The Company shall submit to the
Franchising Authority, not later than thirty (30) days after the last day of March, June,
September, and December throughout the term of this Agreement, a report setting forth the
7
basis for the computation of Gross Revenues on which the quarterly payment of franchise
fees is being made, which report shall enumerate, at a minimum, the following revenue
categories: limited and expanded basic video service, digital video service, premium video
service, pay-per-view and video-on-demand, equipment, installation and activation,
franchise fees, guide, late fees, ad sales, home shopping commissions, and bad debt.
4.14 Franchise Fee Payments Subject to Audit Remedy for Underpayment. No
acceptance of any franchise fee payment by the Franchising Authority shall be construed
as an accord and satisfaction that the amount paid is in fact the correct amount or a release
of any claim that the Franchising Authority may have for further or additional sums payable
under this Agreement.The Franchising Authority may conduct an audit no more than once
annually to ensure payments in accordance with this Agreement. The audit of the
Company's records shall take place at a location, in the State of Arkansas, determined by
the Company. The Franchising Authority is prohibited from removing any records, files,
spreadsheets, or any other documents from the site of the audit. In the event that the
Franchising Authority takes notes of any documents, records, or files of the Company for
use in the preparation of an audit report, all notes shall be returned to the Company upon
completion of the audit. The audit period shall be limited to three (3) years preceding the
end of the quarter of the most recent payment.Once the Company has provided information
for an audit with respect to any period,regardless of whether the audit was completed, that
period shall not again be the subject of any audit.
If, as a result of an audit or any other review, the Franchising Authority determines that the
Company has underpaid franchise fees in any twelve (12) month period by ten percent
(10%) or more, then, in addition to making full pavment of the relevant obligation, the
Company shall reimburse the Franchising Authority for all of the reasonable costs
associated with the audit or review, including all reasonable out-of-pocket costs for
attorneys, accountants, and other consultants The Franchising Authority shall provide the
Company with a written notice of audit results and a copy of the final report presented to
the Franchising Authority. The Company shall remit any undisputed amounts owed to the
Franchising Authority as the result of the audit within forty-five (45) days, or other
mutually acceptable timeframe, after the date of an executed settlement and release
agreement.
4.2 Payments Not to Be Set Off Against Taxes or Vice Versa. The parties agree that the
compensation and other payments to be made pursuant to this Section 4 are not a tax and are not
in the nature of a tax. The Company and the Franchising Authority further agree that franchise fee
payments required under Section 4.1.1 shall be in lieu of any permit fees, business license fees,
and occupational license fees as are or may be required by the Franchising Authority. The
Franchising Authority and the Company further agree that no additional taxes, licenses, fees,
surcharges, or other assessments, except as required by any pole license agreement between the
Company and the City of West Memphis Utility Department shall be assessed on the Company
related to the provision of services or the operation of the Cable System, nor shall the Franchising
Authority levy any other tax, license, fee, or assessment on the Company or its Subscribers that is
not generally imposed and applicable to a majority of all other businesses.
8
4.3 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 Company shall pay interest thereon, from the due date to the date paid, at a rate of one percent
(I%) per month.
SECTION 5
COMPLIANCE REPORTS
5.1 Compliance.The Franchising Authority hereby acknowledges that as of the Effective Date,
the Company is in material compliance with the terms and conditions of the cable franchise
preceding this Agreement and all material laws,rules,and ordinances of the Franchising Authority.
52 Reports. Upon written request by the Franchising Authority and subject to Section 631 of
the Cable Act, the Company shall promptly submit to the Franchising Authority such information
as may be necessary to reasonably demonstrate the Company's compliance with any term or
condition of this Agreement.
5.3 File for Public Inspection. Throughout the term of this Agreement, the Company shall
maintain and make available to the public those documents required pursuant to the FCC's rules
and regulations.
5.4 Treatment of Proprietary Information. The Franchising Authority agrees to treat as
confidential, to the maximum extent allowed under the Arkansas Freedom of Information Act
(AGA. § 25-19-101, et .iey.) or other applicable law, any requested documents submitted by the
Company to the Franchising Authority that are labeled as "Confidential" or "Trade Secret" prior
to submission. In the event that any documents submitted by the Companv to the Franchising
Authority are subject to a request for inspection or production, including but not limited to a
request under the Arkansas Freedom of Information Act, the Franchising Authority shall notify
the Company of the request as soon as practicable and in any case prior to the release of such
information,by email or facsimile to the addresses provided in Section 10.6 of this Agreement, so
that the Company may take appropriate steps to protect its interests in the requested records,
including seeking an injunction against the release of the requested records. Upon receipt of said
notice, the Company may review the requested records in the Franchising Authority's possession
and designate as"Confidential"or"Trade Secret"any additional portions of the requested records
that contain confidential or proprietary information.
5.5 Emergency Alert System Company shall install and maintain an Emergency Alert System
in the Franchise Area only as required under applicable federal and state laws. Additionally, the
Franchising Authority shall permit only those Persons appropriately trained and authorized in
accordance with applicable law to operate the Emergency Alert System equipment and shall take
reasonable precautions to prevent any use of the Company's Cable System in any manner that
results in inappropriate use thereof,or any loss or damage to the Cable System. Except to the extent
expressly prohibited by law,the Franchising Authority shall hold the Company and its employees,
officers, and assigns harmless from any claims arising out of use of the Emergency Alert System,
including but not limited to reasonable attorneys' fees and costs.
9
SECTION 6
ENFORCEMENT
6.1 Notice of Violation. If the Franchising Authority believes that the Company has not
complied with the terms of this Agreement,the Franchising Authority shall first informally discuss
the matter with the Company. If discussions do not lead to a resolution of the problem, the
Franchising Authority shall notify the Company in writing of the nature of the alleged
noncompliance("Violation Notice").
6.2 Company's Right to Cure or Respond. The Company .shall have thirty (30) days from the
receipt of the Violation Notice, or any longer period specified by the Franchising Authority, to
respond; cure the alleged noncompliance; or, if the alleged noncompliance, by its nature, cannot
be cured within thirty (30) days, initiate reasonable steps to remedy the matter and provide the
Franchising Authority a projected resolution date in writing.
6.3 Hearing. If the Company fails to respond to the Violation Notice received from the
Franchising Authority, or the alleged noncompliance is not remedied within the cure period set
forth above, the Franchising Authority's governing body shall schedule a hearing if it intends to
continue its investigation into the matter.The Franchising Authority shall provide the Company at
least thirty (30) days' prior written notice of the hearing, specifying the time, place, and purpose
of the hearing. The Company shall have the right to present evidence and to question witnesses.
The Franchising Authority shall determine if the Company has committed a violation and shall
make written findings of fact relative to its determination If a violation is found, the Company
may petition for reconsideration before any competent tribunal having jurisdiction over such
matters.
6.4 Enforcement. Subject to applicable federal and state law, if after the hearing provided for
in Section 6.3, the Franchising Authority determines that the Company is in default of the
provisions addressed in the Violation Notice, the Franchising Authority may
(a) seek specific performance,
(b) commence an action at law for monetary damages or seek other equitable relief; or
(c) in the case of a substantial default of a material provision of this Agreement. seek to
revoke the Franchise in accordance with subsection 6.5 below.
6.5 Revocation
6.5.1 After the hearing and determination provided for in Section 6.3 and prior to the
revocation or termination of the Franchise, the Franchising Authority shall give written
notice to the Company of its intent to revoke the Franchise on the basic of an alleged
substantial default of a material provision of this Agreement. The notice shall set forth the
exact nature of the alleged default. The Company shall have thirty (30) days from receipt
of such notice to submit its written objection to the Franchising Authority or to cure the
alleged default. If the Franchising Authority is not satisfied with the Company's response,
the Franchising Authority may seek to revoke the Franchise at a public hearing. The
Company shall be given at least thirty (30) days' prior written notice of the public hearing.
10
specifying the time and place of the hearing and stating the Franchising Authontv's intent
to revoke the Franchise.
6.5.2 At the public hearing, the Company shall be permitted to state its position on the
matter, present evidence, and question witnesses, after which the Franchising Authority's
governing board 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
Company within ten (10) business days. The decision of the Franchising Authority's
governing board shall be made in writing and shall be delivered to the Company. The
Company may appeal such decision to an apptopriatc court, which shall have the power to
review the decision of the Franchising Authority's governing board. The Company may
continue to operate the Cable Svstem until all legal appeals procedures have been
exhausted.
6.5.3 Notwithstanding the provisions of this Section 6, the Company does not waive any
of its rights under federal law or regulation.
6.6 Technical Violations. The parties hereby agree that it is not the Franchising Authority's
intention to subject the Company to penalties,fines,forfeiture,or revocation of the Agreement for
so-called "technical" breach(es) or violation(s) of the Agreement, where the violation was a good
faith error that resulted to no or minimal negative impact on the Subscribers within the Franchise
Area or where strict performance would result in practical difficulties and hardship to the Company
which outweigh the benefit to be derived by the Franchising Authority or Subscribers.
SECTION 7
ASSIGNMENTS AND OTHER TRANSFERS
The Franchise shall be fully transferable to any successor in interest to the Company. A notice of
transfer shall be filed by the Company to the Franchising Authority within forty-five (45) days of
such transfer. The transfer notification shall consist of an affidavit signed by an officer or general
partner of the transferee that contains the following:
(a) an affirmative declaration that the transferee shall comply with the terms and conditions
of this Agreement, all applicable federal, state, and local laws,regulations, and ordinances
regarding the placement and maintenance of facilities in any public right-of-way that are
generally applicable to users of the public right-of-way and specifically including the
Arkansas Underground Facilities Damage Prevention Act (AGA. § 14-271-101, et seq.);
(b) a description of the transferee's service area: and
(c)the location of the transferee's principal place of business and the name or names of the
principal executive officer or officers of the transferee
No affidavit shall be required, however, for (i) a transfer in trust, by mortgage. hypothecation, or
by assignment of any rights, title, or interest of the Company in the Franchise or in the Cable
System in order to secure indebtedness, or (7t) a transfer to an entity directly or indirectly owned
or controlled by Comcast Corporation.
11
SECTION 8
INSURANCE AND INDEMNITY
8.1 Insurance.
8.1.1 Liability Insurance. Throughout the term of this Agreement, the Company shall, at
its sole expense, maintain comprehensive general liability insurance, issued by a company
licensed to do business in the State of Arkansas with a rating of not less than "A minus;'
and provide the Franchising Authority certificates of insurance demonstrating that the
Company has obtained the insurance required in this Section 8.1.1. This liability insurance
policy or policies shall he in the minimum amount of One Million Dollars($1,000,000.00)
for bodily injury or death of any one person, 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. The
policy or policies shall not be canceled except upon thirty (30) days' prior written notice
of cancellation to the City of West Memphis.
8.1.2 Workers' Compensation. The Company shall ensure its compliance with the
Arkansas Workers' Compensation Law.
8 2 Indemnification.The Company shall indemnify,defend,and hold harmless the Franchising
Authority, its officers, employees, and agents acting in their official capacities from and against
any liability or claims resulting from property damage or bodily injury(including accidental death)
that arise out of the Company'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 Company written notice of its obligation to indemnifv and
defend the Franchising Authority within ten (10) business days of receipt of a claim or action
pursuant to this Section 82. 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. Notwithstanding the foregoing, the Company shall not be obligated to
indemnify the Franchising Authority for any damages, liability,or claims resulting from the willful
misconduct or negligence of the Franchising Authority or for the Franchising Authority's use of
the Cable System.
8.3 Liability and Indemnity. In accordance with Section 635A of the Cable Act, the
Franchising Authority, its officials, employees, members, or agents shall have no liability to the
Company arising from the regulation of Cable Service or from a decision of approval or
disapproval with respect to a grant, renewal, transfer, or amendment of this Franchise. Any relief.
to the extent such relief is required by any other provision of federal, state, or local law, shall be
limited to injunctive relief and declaratory relief.
SECTION 9
PUBLIC,EDUCATION, GOVERNMENT ACCESS
9.1 Channel Capacity The Company agrees to make available channel capacity, one fully
dedicated Channel position, on the digital tier, to be designated for non-commercial, non-revenue
generating public, educational, or governmental ("PEG") access purposes. Unused time on the
12
PEG Channel positions may be utilized by the Company subject to terms to be mutually agreed
upon by the Company and the Franchising Authority.
9.2 Programming Obligations. The Franchising Authority certifies and commits to maintain
eight(8)hours per week of non-duplicative original programming on each activated PEG Channel
position throughout the term of the Agreement. Should the Franchising Authority fad to maintain
eight (8) hours of programming per week for any period of three (3) consecutise months on any
PEG Channel, the Company may reclaim that Channel position for its own use. For purposes of
this Agreement, original programming includes programming produced specifically for, about, or
by the City of West Memphis or West Memphis Schools. Character-generated messages, video
bulletin board messages, traffic cameras, or other passively produced content shall not count
towards the programming obligations of this Agreement.
9.3 Channel Positions. At any time during the term of this Agreement and at the Company's
sole option and discretion, the Company may (i) change the transmission technology by which
PEG access programming is delivered to Subscribers, provided, however, that the quality of PEG
access programming transmitted over the Cable System to Subscribers is of a quality comparable
to that which was delivered to the Company by the PEG programmer, or (u) relocate any PEG
programming to a Channel position on its lowest digital tier service delivered to all of the
Company's Subscribers. The Company shall notify the Franchising Authority at least thirty (30)
days in advance of such changes.
9.4 Interconnection with Other Cable and Video Service Providers. Upon written request of
the Franchising Authority, the Company shall interconnect with other cable and video systems in
the Franchise Area as required by A.C.A. Q 23-19-209(c)(1)(B)(4). This subsection 9.4 shall not
be construed to mean that the Company is responsible for costs of said interconnection.
9.5 Ownership. The Company does not relinquish its ownership of its ultimate right of control
over a Channel position by designating it for PEG access use. A PEG access user, whether such
user is an individual, educational, or governmental user, acquires no property or other interest in
the Channel position by virtue of the use of a Channel position so designated.
9.6 Equipment. It shall be the sole responsibility of the Franchising Authority to obtain,
provide, and maintain any equipment necessary to produce and cablecast PEG programming over
the Cable System. The Company shall not be responsible for obtaining, providing, or maintaining
any such equipment.
9.7 No Liability. The Company shall have no liability nor shall it be required to provide
indemnification to the Franchising Authority for PEG programming cablecast over the Cable
System.
SECTION 10
MISCELLANEOUS
10.1 Controlling Authorities.This Agreement is made with the understanding that its provisions
are controlled by the Cable Act, other federal laws, state laws, and all applicable local laws.
ordinances, and regulations. To the extent such local laws, ordinances, or regulations clearly
conflict with the terms and conditions of this Agreement, the terms and conditions of this
13
Agreement shall prevail,except where such conflict arises from the Franchising Authority's lawful
exercise of its police powers.
10.2 Appendices. The Appendices to this Agreement and all portions thereof are, except as
otherwise specified in this Agreement, incorporated by reference in and expressly made a part of
this Agreement.
10.3 Enforceability of Agreement: No Opposition. By execution of this Agreement, the
Company and the Franchising Authority acknowledge the validity of the terms and conditions of
this Agreement under applicable law in existence on the Effective Date and pledge that they will
not assert in any manner at any time or in any forum that this Agreement, the Franchise, or the
processes and procedures pursuant to which this Agreement was entered into and the Franchise
was granted are not consistent with the applicable law in existence on the Effective Date.
10.4 Governmental Powers. The Franchising Authority expressly reserves the right to exercise
the full scope of its powers, including both its police power and contracting authority. to promote
the public interest and to protect the health, safety, and welfare of the citizens of the City of West
Memphis. Arkansas.
10.5 Entire Agreement. This Agreement, including all Appendices, embodies the entire
understanding and agreement of the Franchising Authority and the Company with respect to the
subject matter hereof and merges and supersedes all prior representations, agreements, and
understandings,whether oral or written,between the Franchising Authority and the Company with
respect to the subject matter hereof, including without limitation all prior drafts of this Agreement
and any Appendix to this Agreement, and any and all written or oral statements or representations
by any official,employee,agent,attorney,consultant,or independent contractor of the Franchising
Authority or the Company. All ordinances or parts of ordinances or other agreements between the
Company and the Franchising Authority that are in conflict with the provisions of this Agreement
are hereby declared invalid and superseded.
106 Notices. All notices shall be in writing and shall be sufficiently given and served upon the
other party by first class mail, registered or certified, return receipt requested, postage prepaid; by
third-party commercial carrier;or via facsimile(with confirmation of transmission) and addressed
as follows:
THE FRANCHISING AUTHORITY
City of West Memphis
Attn: Mayor Marco McClendon
205 South Redding
P.O. Boz 1728
West Memphis, Arkansas 72301
14
COMPANY:
Comcast of Arkansas/Louisiana/Minnesota/Mississippi/
Tennessee, LLC
Attn: Vice President, External Affairs
6200 The Comers Parkway, Suite 200
Peachtree Comers. Georgia 30093
With a copy to: Comcast Cable Communications, LLC
Attn: Vice President, Government Affairs
600 Galleria Parkway, Suite 1100
Atlanta, Georgia 30339
And: Comcast Cable Communications, LLC
Attn: Legal Department
One Comcast Center
1701 John F. Kenncdv Boulevard
Philadelphia, Pennsylvanta 19103
10.7 Additional Representations and Warranties In addition to the representations, warranties,
and covenants of the Company to the Franchising Authority set forth elsewhere in this Agreement,
the Company represents and warrants to the Franchising Authority and covenants and agrees
(which representations, warranties, covenants and agreements shall not be affected or waived by
any inspection or examination made by or on behalf of the Franchising Authority) that, as of the
Effective Date:
10.7.1 Organization Standing and Authorization. The Company is a Limited Liability
Company validly existing and in good standing under the laws of the State of Arkansas and
is duly authorized to do business in the State of Arkansas and in the Franchise Area.
10.7.2 Compliance with Law. The Company, to the best of its knowledge.has obtained all
government licenses, permits, and authorizations necessary for the operation and
maintenance of the Cable System.
10.8 Maintenance of System in Good Working Order. Until the termination of this Agreement
and the satisfaction in full by the Company of its obligations under this Agreement, in
consideration of the Franchise, the Company agrees that it will maintain all of the material
properties,assets,and equipment of the Cable System, and all such items added in connection with
any upgrade, in good repair and proper working order and condition throughout the term of this
Agreement.
10.9 BindingEffect.£feet.This Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors, permitted transferees, and assigns. All of the provisions of
this Agreement apply to the Company, its successors, and assigns.
10.10 No Waiver Cumulative Remedies. No failure on the part of the Franchising Authority or
the Company to exercise, and no delay in exercising, any right or remedy hereunder including
without limitation the rights and remedies set forth in this Agreement, shall operate as a waiver
15
thereof,nor shall any single or partial exercise of any such right or remedy preclude any other right
or remedy, all subject to the conditions and limitations established in this Agreement. The rights
and remedies provided in this Agreement including without limitation the rights and remedies set
forth in Section 6 of this Agreement, are cumulative and not exclusive of any remedies provided
by law, and nothing contained in this Agreement shall impair anv of the rights or remedies of the
Franchising Authority or Company under applicable law, subject in each case to the terms and
conditions of this Agreement.
10.11 Severability. If any section, subsection, sentence, clause, phrase, or other portion of this
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 of this Agreement, which shall continue in full force and effect.
1012 No Agency. The Company shall conduct the work to be performed pursuant to this
Agreement as an independent entity and not as an agent of the Franchising Authority.
10 13 Governing Law. This Agreement shall he deemed to be executed in the City of West
Memphis, Arkansas, and shall be governed in all respects, including validity, interpretation, and
effect, by and consumed in accordance with the laws of the State of Arkansas, as applicable to
contracts entered into and to be performed entirely within that state.
10.14 Claims Under Agreement.The Franchising Authority and the Company, agree that, except
to the extent inconsistent with Section 635 of the Cable Act (47 U.S.C. 4 555), any and all claims
asserted by or against the Franchising Authority arising under this Agreement or related thereto
shall be heard and determined either in a court of the United States located in Arkansas ("Federal
Court ') or in a court of the State of Arkansas of appropriate jurisdiction("Arkansas State Court ').
To effectuate this Agreement and intent, the Company agrees that if the Franchising Authority
initiates any action against the Company in Federal Court or in Arkansas State Court, service of
process may be made on the Company either in person or by registered mad addressed to the
Company at its offices as defined in Section 10.6, or to such other address as the Company may
provide to the Franchising Authority in writing
10.15 Modification The Company and Franchising Authority may at any time during the term
of this Agreement seek a modification, amendment, or waiver of any term or condition of this
Agreement. No provision of this Agreement nor any Appendix to this 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 Company, which amendment shall be authorized on behalf of
the Franchising Authority through the adoption of an appropriate resolution, letter of agreement,
or order by the Franchising Authority, as required by applicable law.
10.16 Delays and Failures Beyond Control of Company. Notwithstanding any other provision of
this Agreement,the Company shall not be liable for delay in performance of,or failure to perform,
in whole or in part, its obligations pursuant to this Agreement due to strike, war or act of war
(whether an actual declaration of war is made or not), insurrection, riot, act of public enemy,
accident, fire, flood or other act of God, technical failure, sabotage, or other events, where the
Company has exercised all due care in the prevention thereof, to the extent that such causes or
16
other events are beyond the control of the Company and such causes or events are without the fault
or negligence of the Company. In the event that any such delay in performance or failure to perform
affects only part of the Company's capacity to perform, the Company shall perform to the
maximum extent it is able to do so and shall take all steps within its power to correct such cause(s).
The Company agrees that in correcting such cause(s), it shall take all reasonable steps to do so in
as expeditious a manner as possible.The Company shall promptly notify the Franchising Authority
in writing of the occurrence of an event covered by this Section 10.16.
10.17 Duty to Act Reasonably and in Good Faith. The Company and the Franchising Authority
shall fulfill their obligations and exercise their rights under this Agreement in a reasonable manner
and in good faith. Notwithstanding the omission of the words"reasonable.....good faith,"or similar
terms in the provisions of this Agreement, every provision of this Agreement is subject to this
section.
10.18 Contractual Rights Retained. Nothing in this Agreement is intended to impair the
contractual rights of the Franchising Authority or the Company under this Agreement.
10.19 No Third-Party Beneficiaries. Nothing in this Agreement,or any prior agreement, is or was
intended to confer third-party beneficiary status on any member of the public to enforce the terms
of such agreements or Franchise.
IN WITNESS WHEREOF, the party of the first part, by its Mayor Marco McClendon,
thereunto duly authorized by the West Memphis City Council of said Franchising Authority, has
caused the name of said Franchising Authority to be hereunto signed and the corporate seal of said
Franchising Authority to be hereunto affixed, and the Company, the party of the second part. by
its officers thereunto duly authorized, has caused its name to be hereunto signed and its seal to be
hereunto affixed as of the date and year first above written
City of West Memphis, Arkansas
By: 7 e.uA V{t aL�
Name: Marco McClendon
Title: Mayor of West Memphis
(Seal)
Atte
Date: O
Comcast of Arkansas/Louisiana/Minnesota/Mississippi/
Tennessee, LLC
17
By: 7.--._i
Name:(fas n Gumbs
Title: l e iona-Senior,Vice President
Attest: f :"l-'j 22.
Date:
C6% Ill 0
18
APPENDIX A
DEFINED TERMS
For purposes of the Agreement to which this Appendi.r A is appended, the./ollou ing ternnt phrases.
words, and their derivations .shall have the nnanings set forth herein, unless the contest ilearlY
indicates that another meaning is intended.
"Agreement" mean the Agreement to which this Appendix A is appended, together with
all Appendices attached thereto and all amendments or modifications thereto.
"Basic Service" means any service tier that includes the retransmission of local television
broadcast Signals and any equipment or installation used to connection with Basic Service.
"Cable Act" means Title VI of the Communications Act of 1934 as amended, 47 U.S.C.
§ 521, et.sey.
"Cable Service" mean the one-way transmission to Subscribers of Video Programming
or other programming service and Subscriber interaction, if any, which is required for the
selection or use of such Video Programming or other programming service. "Cable
Service" does not include any Video Programming provided by a commercial mobile
service provider as defined to 47 U S.C. §332(d)
"Cable Service Provider" or "CSP" means any person or group of persons (A) who
provides Cable Service over a Cable System and directly or through one or more affiliates
owns a significant interest in such Cable System, or (B) who otherwise controls or is
responsible for, through any arrangement, the management and operation of such a Cable
System.
"Cable System" means a facility, consisting of a set of closed transmission paths and
associated Signal generation,reception, and control equipment,that is designed to provide
Cable Service, which includes Video Programming and which is provided to multiple
Subscribers within a community, but "Cable System" does not include:
(A) a facility that serves only to retransmit the television Signals of one(1) or more
television broadcast stations:
(B) a facility that serves Subscribers without using any public right-of-way as
defined herein;
(C) a facility of a common carrier which is subject, in whole or in pan, to the
provisions of 47 U.S.C. §§201-276, except that such facility shall be considered a
Cable System, other than for purposes of 47 U.S C. § 541(c). to the extent such
facility is used to the transmission of Video Programming directly to Subscribers,
unless the extent of such use is solely to provide interactive on-demand services:
(D) an open video system that complies with 47 U S.C. § 573; or
A-]
(E) any facilities of any electric utility used solely for operating its electric utility
system.
"Channel" means a"cable channel" or"channel" as defined in 47 U.S.C. § 522(4).
"Company" means Comcast of Arkansas/Florida/Louisiana/Minnesota/Mississippi/
Tennessee, LLC, Limited Liability Company validly existing under the laws of the State
of Delaware, or lawful successor, transferee, designee, or assignee thereof.
"FCC" means the Federal Communications Commission, its designee, or any successor
thereto
"Franchise Area" means the incorporated areas of the City of West Memphis, Arkansas,
including any areas annexed by the Franchising Authority during the term of the Franchise.
"Franchising Authority" means the City of West Memphis. Arkansas, or lawful
successor, transferee, designee. or assignee thereof.
"Gross Revenues" means all revenues received from operations of a Cable System to
provide Cable Service, including franchise fees for Cable Service Providers and Video
Service Providers and advertising and home shopping services, and shall be determined in
accordance with Generally Accepted Accounting Principles ("GAAP"). Gross Revenues
shall not include:
(A) amounts billed and collected as a line item on the Subscriber's bill to recover
any taxes, surcharges, or governmental fees that are imposed on or with respect to
the services provided or measured by the charges, receipts, or payments therefore:
provided, however, that for purposes of this definition of "Gross Revenue;' such
tax, surcharge, or governmental fee shall not include any ad valorem taxes, net
income taxes, or generally applicable business or occupation taxes not measured
exclusively as a percentage of the charges, receipts,or payments for services to the
extent such charges are passed through as a separate line item on Subscriber's bills,
(B) any revenue not actually received, even if billed, such as bad debt;
(C) any revenue received by any affiliate or any other person in exchange for
supplying goods or services used by the provider to provide Cable or Video
Programming,
(D) any amounts attributable to refunds, rebates, or discounts,
(E) any revenue from services provided over the network that are associated with
or classified as non-Cable or non-Video Services under federal law, including
without limitation revenues received from telecommunications cervices,
information services other than Cable or Video Services. Internet access services,
directory or Internet advertising revenue including without limitation yellow pages,
white pages, banner advertisements, and electronic publishing advertising. Where
A-2
the sale of any such non-Cable or non-Video Service is bundled with the sale of
one or more Cable or Video Services and sold for a single non-itemized price, the
term "Gross Revenues" shall include only those revenues that are attributable to
Cable or Video Services based on the provider's books and records, such revenues
to be allocated in a manner consistent with generally accepted accounting
principles;
(F)any revenue from late fees not initially booked as revenues, returned check fees
or interest;
(G) any revenue from sales or rental of property, except such property as the
Subscriber is required to buy or rent exclusively from the Cable or Video Service
Provider to receive Cable or Video Service;
(H) any revenue received from providing or maintaining inside wiring;
(1)any revenue from sales for resale with respect to which the purchaser is required
to pay a franchise fee, provided the purchaser certifies in writing that it will resell
the service and pay a franchise fee with respect thereto; or
(J) any amounts attributable to a reimbursement of costs including but not limited
to the reimbursements by programmers of marketing costs incurred for the
promotion or introduction of Video Programming.
"Person" means any natural person or any association, firm, partnership, joint venture,
corporation,or other legally recognized entity,whether for-profit or not-for-profit,but shall
not mean the Franchising Authority.
`Signal' means any transmission of radio frequency energy or of optical information.
"Streets"means the surface of,and the space above and below,any and all streets,avenues,
highways, boulevards, concourses, driveways, bridges, tunnels, parks, parkways,
waterways, docks, bulkheads, wharves, piers, public grounds, and public places or waters
within and belonging to the Franchising Authority and any other property within the
Franchise Area to the extent to which there exist public casements or public rights-of-way.
"Subscriber" means any Person lawfully receiving Video Service from a Video Service
Provider or Cable Service from a Cable Service Provider.
"Video Programming" means programming provided by or generally considered
comparable to programming provided by a television broadcast station, as set forth in 47
U.S.C. § 522(20).
"Video Service" means the provision of Video Programming through wireline facilities
located at least in part in the public rights-of-way without regard to delivery technology.
including Internet protocol technology This definition does not include any Video
Programming provided by a commercial mobile service provider as defined in 47 U.S.C.
§ 332(d) or Video Programming provided as part of, and via, a service that enables users
A-3
to access content. information, electronic mail, or other services offered over the public
Internet.
"Video Service Provider" or"VSP" means an entity providing Video Service as defined
herein, but does not include a Cable Service Provider.
A-d
APPENDIX B
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
47 C.F.R. § 76.309
Page 561-63
TITLE 47—TELECOMMUNICATION
CHAPTER I—FEDERAL COMMUNICATIONS COMMISSION
PART 76—CABLE TELEVISION SERVICE
Subpart H—General Operating Requirements
§ 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 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:
(1)Cable system office hours and telephone availability—
(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-1
(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.
(it) 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.
(in) The operator will not be required to acquire equipment or perform surveys to
measure compliance with the telephone 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.
(in)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 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.
B-2
(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:
(I) 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 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
B-3
(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 "sers ice 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, 19961
B-4