TC Ord. No. 2016-16 Approving a Franchise Agreement with COMCAST of Colorado VII, LLCA
Avon
COLOnAOO
TOWN OF AVON
ORDINANCE 16 -16
APPROVING A FRANCHISE AGREEMENT WITH
COMCAST OF COLORADO VII, LLC FOR THE PROVISION OF
CABLE SERVICES IN THE TOWN OF AVON
WHEREAS, the Town of Avon, Colorado, ( "Town ") and TCI Cablevision, the predecessor of
Comcast Colorado VII, LLC ( "Comcast "), entered into a Franchise Agreement on January 1,
1996, to allow TCI Cablevision to provide cable service to subscribers of such service in the
Town of Avon, which Franchise Agreement expired on December 31, 2010, and then continued
on a month by month basis in accordance with the Federal Telecommunications Act of 1996;
WHEREAS, negotiations for a new Franchise Agreement have been on- going;
WHEREAS, during negotiations the performance and technical issues of the expired Franchise
Agreement were met within the Town;
WHEREAS, no outstanding areas of noncompliance have been identified within the Town;
WHEREAS Section 17.6 of the Avon Town Charter authorizes the Town Council to grant a
franchise by ordinance and to establish the term, fees, compensation, conditions and any other
matters related to the granting of franchises; and,
WHEREAS, approval of this Ordinance on first reading is intended only to confirm that the
Town Council desires to comply with the requirements of the Avon Home Rule Charter by
setting a public hearing in order to provide the public an opportunity to provide public comment
on this Ordinance and that approval of this Ordinance on first reading does not constitute a
representation that the Town Council, or any member of the Town Council, supports, approves,
rejects, or denies this Ordinance.
NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN
OF AVON, COLORADO, THAT:
Section 1. Recitals Incorporated. The above and foregoing recitals are incorporated herein
by reference and adopted as findings and determinations of the Town Council.
Section 2. Franchise Agreement Approved. The Franchise Agreement between the Town
and Comcast is hereby approved in the form attached hereto as Exhibit A, for a term of six (6)
years, commencing on September 8, 2016.
Ord. 16 -16 Approving Comcast Franchise Agreement
FINAL — August 9, 2016
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Section 3. Mayor and Town Clerk Authorized to Execute Documents. The Mayor and
Town Clerk are authorized to execute documents approved in this Ordinance and take such other
actions as may be reasonably necessary to implement the actions in this Ordinance.
Section 4. Severability. If any provision of this Ordinance, or the application of such
provision to any person or circumstance, is for any reason held to be invalid, such invalidity shall
not affect other provisions or applications of this Ordinance which can be given effect without
the invalid provision or application, and to this end the provisions of this Ordinance are declared
to be severable. The Town Council hereby declares that it would have passed this Ordinance and
each provision thereof, even though any one of the provisions might be declared unconstitutional
or invalid. As used in this Section, the term "provision" means and includes any part, division,
subdivision, section, subsection, sentence, clause or phrase; the term "application" means and
includes an application of an ordinance or any part thereof, whether considered or construed
alone or together with another ordinance or ordinances, or part thereof, of the Town.
Section 5. Effective Date. This Ordinance shall take effect thirty days after public notice
following final passage in accordance with Section 6.4 of the Avon Home Rule Charter.
Section 6. Safety Clause. The Town Council hereby finds, determines and declares that this
Ordinance is promulgated under the general police power of the Town of Avon, that it is
promulgated for the health, safety and welfare of the public, and that this Ordinance is necessary
for the preservation of health and safety and for the protection of public convenience and
welfare. The Town Council further determines that the Ordinance bears a rational relation to the
proper legislative object sought to be obtained.
Section 7. Correction of Errors. Town Staff is authorized to insert proper dates, references
to recording information and make similar changes, and to correct any typographical,
grammatical, cross - reference, or other errors which may be discovered in any documents
associated with this Ordinance and documents approved by this Ordinance provided that such
corrections do not change the substantive terms and provisions of such documents.
Section 8. Publication. The Town Clerk is ordered to publish this Ordinance in accordance
with Chapter 1.16 of the Avon Municipal Code.
[Signature page follows]
Ord. 16 -16 Approving Comcast Franchise Agreement
FINAL — August 9, 2016
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INTRODUCED AND ADOPTED ON FIRST READING AND REFERRED TO PUBLIC
HEARING on July 26, 2016 and setting such public hearing for August 9, 2016 at the Council
Chambers of the Avon Municipal Building, located at One Lake Street, Avon, Colorado.
BY ATTEST:
aZ' 0,,A6 14cipok
Je ie ancher, Mayor Debbie Hoppe, Town U Jerk
ADOPTED ON SECOND AND FINAL READING on August 9, 2016.
B
ie Fancher, Mayor
APP D AS FO
0
Eric J. H61 Xown Attorney
Ord. 16 -16 Approving Comcast Franchise Agreement
FINAL — August 9, 2016
Page 3 of 3
ATTEST:
a,d) X-0 I-L') o ('10-
Debbie Hoppe, Town 'lerr-
TOWN OF AVON - COMCAST
FRANCHISE AGREEMENT
September 8, 2016
TABLE OF CONTENTS
FRANCHISEAGREEMENT................................................................................................................................ 3
SECTION1. DEFINITIONS.....................................................................................................................................3
SECTION2. GRANT OF FRANCHISE..................................................................................................................... 6
2.1 Grant......................................................................................................................................................6
2.2 Use of Public Ways................................................................................................................................ 7
2.3 Term......................................................................................................................................................8
2.4 Effective Date........................................................................................................................................ 8
2.5 Competitive Equity................................................................................................................................8
2.6 Familiarity with Agreement and Acceptance........................................................................................ 9
SECTION 3. FRANCHISE FEE AND FINANCIAL CONTROLS................................................................................... 9
3.1 Franchise Fee.........................................................................................................................................9
3.2 Payments...............................................................................................................................................9
3.3 Audits.....................................................................................................................................................9
3.4 Additional Commitments Not Franchise Fees.....................................................................................10
3.5 Payment on Termination.....................................................................................................................10
3.6 Service Packages..................................................................................................................................10
3.7 Tax Liability..........................................................................................................................................10
SECTION 4. ADMINISTRATION AND REGULATION...........................................................................................10
4.1 Rates and Charges...............................................................................................................................10
4.2 No Rate Discrimination........................................................................................................................ 11
4.3 Time Limits Strictly Construed.............................................................................................................11
4.4 Performance Evaluations..................................................................................................................... 11
4.5 Late Fees and Disconnection...............................................................................................................11
SECTION S. FINANCIAL AND INSURANCE REQUIREMENTS.............................................................................. 11
5.1 Indemnification...................................................................................................................................11
5.2 Indemnification Procedures and Defense...........................................................................................12
5.3 Insurance.............................................................................................................................................12
5.4 Letter of Credit....................................................................................................................................14
SECTION6. CUSTOMER SERVICE.......................................................................................................................14
6.1 Service Availability............................................................................................................................... 14
6.2 Customer Service Standards................................................................................................................15
6.3 Customer Privacy.................................................................................................................................15
6.4 Customer Service Agreement and Manual..........................................................................................15
SECTION7. RECORDS........................................................................................................................................ 15
7.1 Required Records................................................................................................................................15
7.2 Proprietary Information......................................................................................................................18
7.3 Copies of Federal and State Reports...................................................................................................18
SECTION8. PROGRAMMING.............................................................................................................................19
8.1 Broad Programming Categories..........................................................................................................19
8.2 Obscenity.............................................................................................................................................19
8.3 Services for the Disabled.....................................................................................................................19
8.4 Parental Control Device.......................................................................................................................17
8.5 Complimentary Cable Service..............................................................................................................18
SECTION9. ACCESS............................................................................................................................................18
9.1 Access Channels..................................................................................................................................18
9.2 Underutilized Access Channels............................................................................................................18
9.3 Access Channel Location.....................................................................................................................19
9.4 Access Channel Promotion..................................................................................................................19
9.5 PEG Fee................................................................................................................................................19
CONICAST OF COLORADO VII, LLC/ TOWN OF AVON
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9.6 Return Lines.........................................................................................................................................20
SECTION 10. USE OF PUBLIC WAYS...........................................................................................................................20
10.1 Construction and Maintenance...........................................................................................................20
10.2 Location and Movement of Facilities..................................................................................................21
10.3 Acquisition of Facilities........................................................................................................................22
10.4 Reservation of Public Ways.................................................................................................................22
10.5 Discontinued Facilities.........................................................................................................................22
10.6 Use of Conduit or Ducts....................................................................................................................... 22
10.7 Undergrounding.................................................................................................................................. 23
10.8 Tree Trimming.....................................................................................................................................23
10.9 GIS Mapping........................................................................................................................................ 23
SECTION 11. CABLE SYSTEM DESIGN AND TECHNICAL STANDARDS........................................................................ 24
11.1 Technical Performance........................................................................................................................24
11.2 Cable System Performance Testing..................................................................................................... 24
11.3 Standby Power.................................................................................................................................... 24
SECTION 12. VIOLATIONS AND REVOCATION...........................................................................................................24
12.1 Procedure for Remedying Violations................................................................................................... 24
12.2 Alternative Remedies.......................................................................................................................... 25
12.3 Liquidated Damages............................................................................................................................25
12.4 Revocation...........................................................................................................................................27
12.5 Purchase of the Cable System............................................................................................................. 28
SECTION13. TRANSFER............................................................................................................................................. 28
13.1 Transfer of Ownership or Control.......................................................................................................28
SECTION14. MISCELLANEOUS...................................................................................................................................30
14.1 Cumulative Rights................................................................................................................................30
14.2 Costs to be Borne by Comcast............................................................................................................. 30
14.3 Binding Effect......................................................................................................................................30
14.4 Modification........................................................................................................................................ 30
14.5 Regulatory Changes............................................................................................................................. 30
14.6 Governing Law and Venue...................................................................................................................30
14.7 No Joint Venture..................................................................................................................................31
14.8 Waiver.................................................................................................................................................31
14.9 Severability..........................................................................................................................................31
14.10 Force Majeure................................................................................................................................................ 31
14.11 Entire Agreement.......................................................................................................................................... 31
14.12 Notices............................................................................................................................................................ 31
COMCAST OF COLORADO VII, LLC/ TOWN OF AVON
Sept. 8, 2016 - Dec. 31, 2022
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FRANCHISE AGREEMENT
This Franchise Agreement ("Agreement") is made between the Town of Avon,
Colorado, a Colorado home rule municipality ("Town") and Comcast of Colorado VII, LLC
Comcast"), on September 8, 2016.
WHEREAS, the Town, having determined that the financial, legal, and technical ability
of Comcast 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 Agreement with
Comcast for the operation and maintenance of a cable system on the terms and conditions set
forth herein.
NOW THEREFORE, the Town and Comcast agree as follows:
SECTION 1. DEFINITIONS
For purposes of this Agreement, the following terms shall have the following meanings,
provided that terms not defined, or those defined, but not capitalized within the text, shall be
given their common and ordinary meaning, and the word "shall' is always mandatory:
Access" includes Public Access, Educational Access and Governmental Access, collectively
and means the availability for Noncommercial use by various governmental and educational
agencies, institutions and organizations in the community of particular channels on the Cable
System to receive and distribute Video Programming to subscribers as permitted under
applicable law.
Access Channel" means any Channel designated for Access purposes or otherwise made
available to facilitate Access programming.
Affiliate" when used in connection with Comcast means any Person who owns or controls, is
owned or controlled by, or is under common ownership or control of Comcast.
Bad Debt" means amounts lawfully owed by a Subscriber and accrued as revenues on the books
of Comcast, but not collected after reasonable efforts by Comcast.
Basic Service" means any Cable Service Tier that includes, at a minimum, the retransmission of
local television Broadcast Signals and PEG Access Channels required in this Franchise and any
additional programming added by the Town and made available to all Subscribers in the
Franchise Area.
Broadcast Signal" means a television or radio signal transmitted over the air to a wide
geographic audience, and received by a Cable System off -the -air by antenna, microwave,
satellite dishes or any other means.
Cable Act" means the Cable Communications Policy Act of 1984, as amended by the Cable
Television Consumer Protection and Competition Act of 1992, as amended by the
Telecommunications Act of 1996, and any amendments thereto.
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Cable Operator" means any Person or group of Persons, including Comcast, who provides
Cable Service over the Cable System and directly or through one or more Affiliates owns a
significant interest in such Cable System or who otherwise controls or is responsible for, through
any arrangement, the management and operation of the Cable System.
Cable Service" means the one-way transmission to Subscribers of Video Programming, or other
programming service and Subscriber interaction, if any, that is required for the selection or use
of such Video Programming or other programming service.
Cable System" means Comcast's facility, consisting of a set of closed transmission paths and
associated signal generation, reception and control equipment, designed to provide Cable Service
that includes Video Programming and provided to Subscribers in the Franchise Area.
Channel" means a portion of the frequency band capable of carrying a Video Programming
Service or combination of Video Programming Services, whether by analog or digital signal, on
a twenty-four (24) hour per day basis or a portion thereof.
Designated Access Provider" means an entity designated by the Town to manage or co -manage
Public, Educational or Governmental Access Channels and facilities. The Town may be a
Designated Access Provider.
Dwelling Unit" means any building or portion thereof that has independent living facilities,
including provisions for cooking, sanitation and sleeping, and that is designed for residential
occupancy.
Educational Access" means Access where Schools are the primary users having editorial
control over programming and services.
Emergency" means any condition constituting a clear and present danger to life or property.
Expanded Basic Service" means cable programming services not included in the Basic Service
and excluding premium or pay-per-view services.
FCC" means the Federal Communications Commission or its lawful successor.
Fiber Optic" means a transmission medium of optical fiber cable, along with all associated
electronics and equipment capable of carrying electric lightwave pulses.
Franchise Area" means the area within the jurisdictional boundaries of the Town, including
any areas hereafter annexed by Town.
Franchise Fee" includes any tax, fee or assessment of any kind imposed by the Town on
Comcast or Subscribers, or both solely because of their status as such, but excluding: (i) any tax,
fee or assessment of general applicability (including any such tax, fee, or assessment on both
utilities and Cable Operators or their services, but not including a tax, fee, or assessment that is
unduly discriminatory against Cable Operators or cable Subscribers); (ii) capital costs that are
required by the Agreement to be incurred by Comcast for Access facilities; (iii) requirements or
charges incidental to the awarding or enforcing of the Agreement, including but not limited to,
payments for bonds, letters of credit, insurance, indemnification, penalties or liquidated
damages; or (iv) any fee imposed under Title 17, United States Code.
COMCAST OF COLORADO VII, LLC/ TOWN OF AVON
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Governmental Access" means Access where governmental institutions or their designees are
the primary users having editorial control over programming and services.
Gross Revenue" means all revenue derived directly or indirectly by Comcast or its Affiliates
from the operation of the Cable System in the Franchise Area, including without limitation
monthly and other fees charged Subscribers for Cable Service including Basic Service,
Expanded Basic Service, any expanded Tiers of Cable Service, other Tiers of Cable Service,
optional Premium Service, pay-per-view and per -program Channels, Cable Service installation,
disconnection, reconnection and change -in-service fees, Leased Access Channel fees, remote
control rental fees, late fees and administrative fees, consideration received by Comcast from
programmers for carriage of Cable Service on the Cable System and recognized as revenue under
generally accepted accounting principles ("GAAP"), revenues from rentals of converters or other
Cable System equipment, advertising sales revenues (including local, regional and a pro rata
share of national advertising carried on the Cable System in the Franchise Area but excluding
commissions paid to an unaffiliated agency), revenues from program guides, additional outlet
fees, revenue from the sale or carriage of other Cable Service, and revenues from home
shopping. Franchise Fees are included in Gross Revenue. Gross Revenue does not include (i) to
the extent consistent with GAAP, Bad Debt, provided, however, that any part of such Bad Debt
that is written off but subsequently collected shall be included in Gross Revenue in the period
collected; or (ii) any taxes on services furnished by Comcast that are imposed directly on any
Subscriber or user by the State, Town or other governmental unit and that are collected by
Comcast on behalf of said governmental unit; or (iii) capital costs or contributions required by
this Franchise.
Headend" or "Hub" means a facility for signal reception and dissemination on a Cable System,
including cable, antennas, wires, satellite dishes, monitors, switchers, modulators, processors for
Broadcast Signals or other signals, and all other related equipment and Facilities.
Incremental Costs" means Comcast's direct and actual material and labor cost (excluding
profit) of constructing, relocating or placing additional facilities for the Town, excluding the
costs that Comcast would otherwise incur to construct, relocate or place facilities for Comcast
including, but not limited to, trenching, pipe bedding, backfilling, compacting, restoring the
surface, and other charges, costs or expenses.
Interconnect" or "Interconnection" means the provision of Access Channel programming to a
geographically contiguous cable system, including technical, engineering, physical, and other
necessary components to accomplish, complete and adequately maintain such provisioning.
Late fee" means and includes any assessment, charge, cost, fee or sum, however characterized,
that Comcast imposes upon a Subscriber solely for late payment of a bill is a late fee.
Leased Access Channel" means any Channel or portion of a Channel commercially available
for programming in accordance with Section 612 of the Cable Act.
Noncommercial" means, in the context of Access Channels, those particular products and
services that are not promoted or sold in order to generate revenue that exceeds the costs of
operations for the Town or any Designated Access Provider. This term shall not be interpreted
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to prohibit an Access Channel operator or programmer from soliciting and receiving
contributions used to produce and transmit Video Programming on an Access Channel, or from
acknowledging a contribution, in the manner of the Corporation for Public Broadcasting or some
similar manner, subject to applicable law.
Person" means any natural person, lawful trustee, successor, assignee, transferee, or personal
representative, sole proprietorship, partnership, joint venture, association, or limited liability
entity or corporation, or any other form of entity or organization.
Public Access" means Access where any member of the general public may be a programmer
on a nondiscriminatory basis, subject to operating rules formulated by the Town or its designee.
Such rules shall not be designed to control the content of public access programming. Such rules
may also address the extent to which and manner in which members of the general public who
are not residents of the Town may be programmers on the Access Channel.
Public Way" means land in the Franchise Area acquired for or dedicated to the public and
maintained under public authority, including but not limited to public streets, roads, highways,
avenues, lanes, alleys, bridges, sidewalks, easements, and similar public property.
Residential Subscriber" means any Person who receives Cable Service delivered to a Dwelling
Unit, excluding such multiple Dwelling Units billed on a bulk -billing basis.
Standard Installation" means a one hundred twenty five (125) foot drop connecting to the
exterior demarcation point.
State" means the State of Colorado.
Subscriber" means any Person who or which elects to subscribe to, for any purpose, Cable
Service provided by Grantee by means of or in connection with the Cable System and whose
premises are physically wired and lawfully Activated to receive Cable Service from Grantee's
Cable System, and who is in compliance with Grantee's regular and nondiscriminatory terms and
conditions for receipt of service.
Tier" means a category of Cable Service provided by Comcast for which a separate rate is
charged.
Video Programming" means programming provided by, or generally considered comparable to
programming provided by, a television broadcast station, or cable programming provider
primarily consisting of full motion video and audio.
SECTION 2. GRANT OF FRANCHISE
2.1 GRANT
A) The Town hereby grants to Comcast a nonexclusive authorization to make reasonable and
lawful use of the Public Ways to construct, operate, maintain, reconstruct, repair and upgrade the
Cable System for the purpose of providing Cable Service, subject to this Agreement and
applicable law. Comcast shall provide Cable Service, as authorized by this Agreement, in the
Franchise Area in accordance with line extension and density provisions as provided herein. The
franchise granted by this Agreement is subject to all prior rights, interests, easements, or
COMCAST OF COLORADO VII, LLC/ TOWN OF AVON
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franchises granted by Town or its predecessors to any Person to any property or Public Way,
including the right of the Town to use same for any purpose it lawfully deems fit. This
Agreement conveys limited rights and interests in only those Public Ways in which the Town has
an actual interest; it is not a warranty of title or interest in any property.
B) Comcast shall comply with the Avon Town Code and the lawful exercise of the Town's
police power. Subject to the Town's lawful exercise of its police power, in the event of a
conflict between the Avon Town Code and the Agreement, the Agreement shall govern.
Comcast acknowledges that the Town may enforce or modify its generally applicable regulatory
policies by lawful exercise of the Town's police powers throughout the term of this Agreement,
and Comcast agrees to comply with such lawful enforcement or modifications. Comcast
reserves the right to challenge provisions of any ordinance, rule, regulation or other enactment of
the Town that conflicts with its contractual rights under the Franchise, either now or in the
future. This Agreement shall not be interpreted to prevent the Town from imposing other
conditions, to the extent permitted by law.
C) No rights shall pass to Comcast by implication. Without limiting the foregoing, by way
of example and not limitation, this Agreement shall not be a substitute for: any other permit or
authorization required for the privilege of transacting and carrying on a business within the Town
that is required by the Town; any permit, agreement or authorization required by the Town for
Public Way users in connection with operations on or in Public Ways or public property; or any
permits or agreements for occupying any other property to which access is not specifically
granted by this Agreement.
D) This Agreement is an express authorization to provide Cable Service only. This
Agreement is not a bar to the imposition of any lawful conditions on Comcast with respect to
non -Cable Service, telecommunications services or information services, whether similar,
different or the same as the condition specified herein. This Agreement does not relieve
Comcast of any obligation it may have to obtain from the Town an authorization to provide non -
Cable Service, telecommunications services or information services or relieve Comcast of its
obligation to comply with any such authorization(s) that may be lawfully required.
E) This Agreement shall have no effect on any obligation of Comcast in effect prior to the
effective date of this Agreement to indemnify or insure the Town against acts and omissions
occurring during the period that the prior franchise agreement was in effect, nor shall it have any
affect upon liability to pay Franchise Fees that were due and owed under a prior franchise.
2.2 USE OF PUBLIC WAYS
A) Subject to the Avon Town Code, as amended, Comcast may erect, install, construct,
repair, replace, reconstruct, and retain in, on, over, under, upon, across, through, below and along
the Public Ways, such wires, cables, conductors, ducts, conduit, vaults, manholes, amplifiers,
appliances, pedestals, attachments and other property and equipment as are necessary and
appurtenant to the operation of the Cable System.
B) Comcast shall install Cable System facilities in a manner that minimizes interference with
the use of the Public Ways by others. To protect public health, safety and welfare, the Town
COMCAST OF COLORADO VII, LLC/ TOWN OF AVON
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may: require that Cable System facilities be installed at a particular time, at a specific place or in
a particular manner as a condition of access to a particular Public Ways; deny access if Comcast
is not willing to comply with Town's requirements; remove, or require removal of, any facility
that is not installed in compliance with the requirements established by Town, or that is installed
without prior Town approval of the time, place or manner of installation and charge Comcast for
all the costs associated with removal; and require Comcast to cooperate with others to minimize
adverse impacts on the Public Ways through joint trenching and other arrangements.
2.3 TERM
This Agreement shall have a term of six (6) years, beginning on the Effective Date and shall
expire on December 31, 2022.
2.4 EFFECTIVE DATE
The Effective Date of this Agreement shall be September 8, 2016.
2.5 COMPETITIVE EQUITY
A) Comcast acknowledges and agrees that the Town reserves the right to grant additional
franchises to provide Cable Service in the Franchise Area; provided that if any such franchise is
granted by the Town which, in the reasonable opinion of Comcast, contains more favorable or
less burdensome Material Terms and Conditions than this Agreement, the Town agrees that,
within ninety (90) days of Comcast's request, the parties shall amend this Franchise to insure that
the regulatory and financial burdens on each entity are materially equivalent. "Material Terms
and Conditions" includes without limitation: Franchise Fees; insurance coverage amounts;
System build -out requirements; Public, Education and Government Access Channels and
support; customer service standards; required reports and related record keeping; and notice and
opportunity to cure breaches. The parties agree that this Subsection does not require a word for
word identical franchise or authorization for a competitive entity if the regulatory and financial
burdens on each entity are materially equivalent.
B) If an application for a new cable franchise is filed with the Town proposing to serve the
Franchise Area, in whole or in part, the Town shall make a good faith effort to provide notice of
such application upon Comcast prior to acting on the application.
C) Notwithstanding any provisions to the contrary, at any time that a facilities -based Cable
Services provider, legally authorized by state or Federal law, makes Cable Services or multiple
Channels of Video Programming within the Franchise Area available for purchase by
Subscribers without a franchise or other similar lawful authorization granted by the Town, then
Comcast may seek modification pursuant to subsection (A) hereof, or the term of this Franchise
shall, upon ninety (90) days written notice from Comcast, be shortened so that the Franchise
shall be deemed to expire on a date six (6) months from the first day of the month following the
date of Comcast's notice; provided, however, that if the provision of Cable Services or Video
Programming by the other facilities -based Cable Services Provider within the Franchise Area is
being legally challenged by the Town, the term of this Franchise shall remain unaffected until
such legal challenge is concluded.
COMCAST OF COLORADO VII, LLC/ TOWN OF AVON
Sept. 8, 2016 — Dec. 31, 2022
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2.6 FAMILIARITY WITHAGREEMENT AND ACCEPTANCE
A) Comcast acknowledges and warrants that it has carefully read and fully comprehends the
terms of this Agreement and that it has fully considered the requirements of this Agreement, and
finds that the same are commercially practicable at this time and consistent with all local, State
and federal laws and regulations currently in effect.
B) By executing this Agreement, Comcast: (1) acknowledges and accepts the Town's legal
right to issue and enforce the Agreement; (2) agrees that it will not oppose the Town's lawful
intervention in any legal or regulatory proceeding affecting the Cable System; (3) accepts and
agrees to comply with every provision of this Agreement; and (4) agrees that the Agreement was
negotiated in compliance with applicable law, and that it will not raise any claim to the contrary.
SECTION 3. FRANCHISE FEE AND FINANCIAL CONTROLS
3.1 FRANCHISE FEE
As compensation for the use of the Public Ways, Comcast shall pay as a Franchise Fee to Town,
for the duration of this Agreement, an amount equal to five percent (5%) of Comcast's Gross
Revenue.
3.2 PA YMENTS
A) Franchise Fee payments to Town shall be computed quarterly for the preceding calendar
quarter ending March 31, June 30, September 30, and December 31. Each quarterly payment
shall be due and payable no later than forty-five (45) days after said dates. For untimely
payments, Comcast shall pay, in addition to the payment or sum due, interest from the due date
at the rate of eight percent (8%) per annum until the date the Town receives the payment.
B) No acceptance of payment shall be construed as an accord by Town that the amount paid
is the correct amount, nor shall an acceptance of payment be construed as a release of any claim
Town may have against Comcast. The period of limitation for recovery of Franchise Fees
payable hereunder shall be three (3) years from the date on which payment by Comcast was due
or such shorter period of time if so provided by law.
C) A report prepared by a representative of Comcast showing the basis for the computation
of the Franchise Fees paid during that period shall either accompany the Franchise Fee payment
or be provided under separate cover within ten days of the report.
3.3 A UDITS
A) On an annual basis, upon thirty (30) days' prior written notice, the Town may conduct an
independent audit of Comcast's financial records necessary to ensure compliance with this
Agreement. If Comcast cooperates in making all relevant records available upon request, the
Town will in good faith attempt to complete each audit within six (6) months, and the audit
period shall not be any greater than the previous three (3) years.
B) Additional amounts due to the Town as a result of the audit shall be paid within sixty (60)
days following written notice to Comcast. If a Franchise Fee underpayment is discovered as the
result of an audit, Comcast shall pay, in addition to the amount due, interest at the maximum
COMCAST OF COLORADO VII, LLC/ TOWN OF AVON
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allowed rate as provided under State law calculated from the date the underpayment was
originally due until the date the Town receives the payment.
C) If the audit shows that Franchise Fees have been underpaid by five percent (5%) or more
in a calendar year, Comcast shall pay the actual cost of the audit in a total amount not to exceed
10,000.
3.4 ADDITIONAL COMMITMENTS NOT FRANCHISE FEES
No term of this Agreement shall affect Comcast's obligation to pay Franchise Fees. Although
the total sum of Franchise Fee payments and additional commitments set forth elsewhere in this
Agreement may total more than five percent (5%) of Gross Revenue in any twelve-month period,
Comcast agrees that the additional commitments regarding PEG funding and Access Channels
are not Franchise Fees, nor are they to be offset or credited against Franchise Fee payments
unless specifically provided by applicable law.
3.5 PAYMENT ON TERMINATION
Within one hundred twenty (120) days of termination of this Agreement, Comcast shall file with
the Town a financial statement, certified by an independent certified public accountant, showing
the Gross Revenue received by Comcast since the end of the previous fiscal year. Within forty-
five (45) days of the filing of the certified statement with the Town, Comcast shall pay any
unpaid amounts as indicated. If Comcast fails to satisfy its remaining financial obligations as
required in this Agreement, the Town may do so by utilizing the funds available in a Letter of
Credit or other security provided by Comcast.
3.6 SERVICE PACKAGES
If Comcast offers bundled Cable Service and non -Cable Service to Subscribers, Comcast shall
fairly and reasonably allocate revenue with regard to Cable Service.
3.7 TAX LIABILITY
The Franchise Fees shall be in addition to all taxes or other levies or assessments now or
hereafter required to be paid by businesses by any applicable law including without limitation
sales, use, utility and other taxes, and business license fees.
SECTION 4. ADMINISTRATION AND REGULATION
4.1 RATES AND CHARGES
A) Comcast's rates and charges for Cable Service shall be subject to regulation by Town to
the full extent authorized by applicable federal, State and local laws. Subscriber billing shall be
itemized by service pursuant to FCC Regulation, 47 C.F.R. § 76.1619 or as amended.
B) Comcast will use best efforts to maintain with the Town a current schedule of applicable
rates charged for Cable Service provided under this Agreement. The Town recognizes that such
rates change periodically, and if the Town clerk has reason to believe that the schedule of rates
on file is not up to date, then upon three (3) days advance request, Comcast shall provide the
Town with a current and complete schedule of applicable rates and charges for Cable Service
provided to Subscribers in the Town. Nothing in this Subsection shall be construed to require
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Comcast to file rates and charges under temporary reductions or waivers of rates and charges in
conjunction with promotional campaigns.
4.2 NO RATE DISCRIMINATION
All Comcast rates and charges shall be published (in the form of a publicly -available rate card),
made available to the public, and shall be non-discriminatory as to all Persons of similar classes,
under similar circumstances. Nothing herein shall be construed to prohibit:
1) The temporary reduction or waiving of rates or charges in conjunction with
promotional campaigns;
2) The offering of reasonable discounts to similarly situated Persons; or
3) The offering of bulk discounts for multiple Dwelling Units.
4.3 TIME LIMITS STRICTLY CONSTRUED
When this Agreement sets forth a time for any act to be performed by Comcast, such time shall
be deemed to be of the essence, and any failure of Comcast to perform within the allotted time
may be considered a breach of this Agreement.
4.4 PERFORMANCE EVAL UA TIONS
Special evaluation sessions may be held at any time upon written request and upon not less than
thirty (30) days prior notice by the Town during the term of this Agreement. All such evaluation
sessions shall be open to the public. Topics that may be discussed at any evaluation session may
include those issues surrounding Comcast's failure to comply with the terms of the Agreement
provided that nothing in this Subsection shall be construed as requiring the renegotiation of this
Agreement or any term or provision therein and further provided that this Subsection need not be
followed before other legal or equitable remedies within this Agreement.
4.5 LATE FEES AND DISCONNECTION
Comcast's late fee and disconnection policies and practices shall be nondiscriminatory, and such
policies and practices, and any fees imposed pursuant to this Subsection, shall apply equally
throughout the Franchise Area without regard to the neighborhood or income level of the
Subscribers.
SECTION 5. FINANCIAL AND INSURANCE REQUIREMENTS
5.1 INDEMNIFICATION
A) Comcast, at its own expense, shall indemnify, defend and hold harmless the Town, its
officers, officials, boards, commissions, agents, representatives and employees, from any action
or claim for injury, damage, loss, liability, settlement, proceeding, judgment, or cost or expense,
including court and appeal costs and attorney fees and expenses, arising from any casualty or
accident to Person or property, including, without limitation, copyright infringement,
defamation, and all other damages in any way arising out of, or by reason of, any construction,
excavation, erection, operation, maintenance, repair or reconstruction, or any other act done
under this Agreement, by or for Comcast, its authorized agents, or by reason of any neglect or
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omission of Comcast, its authorized agents or its employees. Comcast shall consult and
cooperate with the Town while conducting its defense of the Town.
B) The provisions of this Section 5 shall survive the termination of this Agreement unless
superseded by indemnification provisions in a new franchise or in federal or state law.
C) Subject to applicable law, Comcast shall indemnify the Town for any damages, including
but not limited to damages incurred as a result of delay, payable by the Town related to
Comcast's failure to properly install, remove, adjust or relocate any of its facilities in the Public
Ways in accordance with any lawful relocation required by the Town.
D) Comcast shall also indemnify, defend and hold the Town harmless for any claim for
injury, damage, loss, liability, cost and expense, including court and appeal costs and attorney
fees and expenses in any way arising out of any failure by Comcast to secure consents from the
owners, authorized distributors or franchisees/licensors of programs to be delivered by the Cable
System, provided however, that Comcast will not be required to indemnify the Town for any
claims arising out of the use of Access Channels by the Town or its Designated Access Provider
or use by the Town of the emergency alert system.
5.2 INDEMNIFICATION PROCEDURES AND DEFENSE
A) If a claim or action arises, the Town or any other indemnified party shall promptly tender
the defense of the claim or action to Comcast, which defense shall be at Comcast's expense. The
Town may participate in the defense of a claim and Comcast may not agree to any settlement of
claims without the Town's written approval, which shall not be unreasonably withheld.
B) The fact that Comcast carries out any activities under this Agreement through
independent contractors shall not constitute an avoidance of or defense to Comcast's duty of
defense and indemnification.
C) If separate representation is necessary, such as a conflict of interest between the Town
and the counsel selected by Comcast to represent the Town, Comcast shall select other counsel.
5.3 INSURANCE
A) Comcast shall maintain at all times in full force and effect at its own expense each of the
following policies of insurance:
1) Commercial General Liability coverage for bodily injury, personal injury, and
property damage with limits of no less than one million dollars ($1,000,000) per
occurrence. The general aggregate limit shall be no less than two million dollars
2,000,000).
2) Commercial Automobile Liability Insurance with minimum combined single
limits of at least one million dollars ($1,000,000) each occurrence and two million dollars
2,000,000) aggregate with respect to each of Comcast's owned, hired and non -owned,
or any other vehicles assigned to or used in any activities authorized under or used in
conjunction with this Agreement.
3) Employer's Liability with limits of at least one million dollars ($1,000,000).
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4) Workers' Compensation insurance shall be maintained during the life of this
Agreement to comply with State law for all employees.
B) Each policy shall provide that the insurance shall not be canceled or terminated so as to
be out of compliance with these requirements without forty-five (45) days' prior written notice,
and ten (10) days' notice for nonpayment of any premium. Comcast shall maintain continuous
uninterrupted insurance coverage, in at least the amounts required, until all work required to be
performed under the terms of this Agreement is satisfactorily completed and, in the case of
Commercial General Liability Insurance, for at least one (1) year after termination of this
Agreement. A failure of Comcast to comply with any claim reporting provisions or any breach
of an insurance policy warranty shall not affect coverage afforded under the policy to protect the
Town. However, if coverage is not afforded under these circumstances, Comcast shall
indemnify the Town for losses the Town otherwise would have been covered for as an additional
insured.
C) All insurance policies, except Workers' Compensation, shall contain a waiver of transfer
rights of recovery (subrogation) against the Town, its officers, officials, agents, and employees
for any claims arising out of Comcast's work or service. Comcast shall be responsible for
deductibles or self-insured retention.
D) All policies shall contain, or shall be endorsed so that:
1) The Town and its officers, officials, boards, commissions, agents, representatives,
and employees are to be covered as, and have the rights of, additional insureds with
respect to liability arising out of activities performed by, or on behalf of, Comcast under
this Agreement or applicable law, or in the construction, operation, upgrade,
maintenance, repair, replacement or ownership of the Cable System;
2) Comcast's insurance coverage shall be primary insurance with respect to the
Town and its officers, officials, boards, commissions, agents, volunteers and employees.
Any insurance or self insurance maintained by the Town or its officers, officials, boards,
commissions, agents, representatives, volunteers or employees shall be in excess of
Comcast's insurance and shall not contribute to it, provided the occurrence arises out of
Comcast's negligence; and
3) Comcast's insurance shall apply separately to each insured against whom a claim
is made or lawsuit is brought, except with respect to the limits of the insurer's liability.
E) Comcast shall furnish the Town with certificates of insurance and an endorsement
reflecting additional insured status. The certificates for each insurance policy are to be on
standard forms or such forms as are consistent with standard industry practices, and are to be
received and approved by the Town at the time of acceptance of this Agreement by Comcast
with existing insurance coverage to be maintained by Comcast until that date. Comcast hereby
warrants that its insurance policies satisfy the requirements of this Agreement.
F) The insurance limits mandated for any insurance coverage required by this Agreement
are not intended to be an indication of exposure nor are they limitations on liability or
indemnification.
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5.4 LETTER OF CREDIT
A) At any time during the term of this Agreement, if there is a claim by the Town of an
uncured breach by Comcast of a provision of this Franchise, then the Town may require and
Comcast shall establish and provide, as quickly as possible, but no later than thirty (30) days
after a request from the Town, a letter of credit from a financial institution satisfactory to the
Town in the amount of fifty thousand dollars ($50,000).
B) After completion of the procedures set forth in Section 12.1 or other applicable
provisions of this Franchise, the letter of credit may be drawn upon by the Town for purposes
that include, but are not limited to the following:
1) Failure of Comcast to pay the Town sums due under this Agreement;
2) Reimbursement of costs borne by the Town to correct violations not corrected by
Comcast; and
3) Liquidated damages assessed against Comcast as provided in this Agreement.
C) The Town shall give Comcast written notice of any withdrawal under this Subsection
upon such withdrawal. Within ten (10) days following receipt of such notice, Comcast shall
restore the letter of credit to the amount required under this Agreement.
SECTION 6. CUSTOMER SERVICE
6.1 SERVICEAVAILABILITY
A) Except as otherwise provided herein, Comcast shall provide a standard aerial installation
of Cable Service within seven (7) days of a request by any Person in the Franchise Area.
Standard Installations shall be done within seven (7) days of a request for service. Comcast shall
provide such service:
1) With no extension charge except as specifically authorized by this Agreement;
2) At a non-discriminatory installation charge for a Standard Installation and with
additional charges for non -Standard Installations computed according to a non-
discriminatory methodology for such installations; and
3) At non-discriminatory monthly rates for all Subscribers, excepting commercial
Subscribers, Multiple Dwelling Unit Bulk Subscribers and other lawful exceptions to
uniform pricing.
B) No Person shall be refused service arbitrarily. However, for non -Standard Installations or
a density of less than twenty five (25) residences per 5280 aerial cable -bearing strand feet of
trunk or distribution cable, or sixty (60) residences per 5280 underground trench feet of trunk or
distribution cable, Cable Service may be made available on the basis of a capital contribution in
aid of construction, including cost of material, labor and easements. Comcast may require that
the payment of the capital contribution in aid of construction be borne by such potential
Subscribers and be paid in advance.
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6.2 CUSTOMER SERVICE STANDARDS
A) Comcast shall comply with the Customer Service Standards (CSS), which are
attached to this Franchise as Exhibit A.
6.3 CUSTOMER PRIVACY
Comcast shall comply with privacy rights of Subscribers in accordance with applicable law.
6.4 CUSTOMER SERVICE AGREEMENT AND MANUAL
A) Comcast shall provide to Subscribers an accurate, comprehensive service agreement and
Subscriber installation packet for use in establishing Customer service. This material shall, at a
minimum, contain the following:
1) Comcast's procedure for investigation and resolution of Customer complaints;
2) Services to be provided and rates for such services;
3) Billing procedures;
4) Service termination procedure;
5) A complete statement of the Subscriber's right to privacy;
6) Equipment policy; and,
7) The name, address and phone number of the Subscriber service department that is
responsible for handling questions and complaints for Comcast.
B) A copy of the current installation packet shall be available to each Subscriber: (1) at the
time of initial installation and at any time the packet is requested by the Subscriber.
SECTION 7. RECORDS
7.1 REQUIRED RECORDS
A) Comcast shall at all times maintain:
1) Access to a full and complete set of plans, records and maps showing the location
of all Cable System facilities in Public Ways;
2) A copy of all FCC filings on behalf of Comcast, its parent corporations or
Affiliates that relate to the operation of the Cable System in the Franchise Area;
3) A list of Comcast's rates and Channel line-ups; and,
4) Financial records as required by Section 3 hereof.
B) The Town, upon reasonable prior written notice to Comcast, may review Comcast's
records regarding the operation of the Cable System and the provision of Cable Service in the
Franchise Area which are reasonably necessary to monitor and enforce Comcast's compliance
with this Agreement, including without limitation any records required to be kept in a public file
by Comcast pursuant to FCC rules and regulations. All such records shall be retained by
Comcast for at least three (3) years. Comcast shall not deny the Town access to any of
Comcast's records on the basis that Comcast's records are under the control of any parent
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corporation, Affiliate or a third party. The Town may request in writing copies of such records
that are reasonably necessary, and Comcast shall provide such copies within thirty (30) days at
Comcast's sole expense. If the requested records are too voluminous, or for security reasons
cannot be copied or removed, then Comcast may request, in writing within ten (10) days of
receipt of such request, that the Town inspect them at Comcast's local offices or at one of
Comcast's offices more convenient to Town or its duly authorized agent. If any records of
Comcast are not kept in such office and not made available to the Town upon written request,
and if the Town determines that an examination of such records is necessary for the enforcement
of this Agreement, then all reasonable travel expenses incurred in making such examination shall
be paid by Comcast.
C) Comcast shall maintain at its business office, in a file available for public inspection
during regular business hours, those documents required pursuant to FCC rules and regulations.
D) Comcast shall keep an accurate and comprehensive compilation of any and all Subscriber
complaints received and Comcast's actions in response to those complaints, in a manner
consistent with the privacy rights of Subscribers. Comcast shall provide an executive summary
report to the Town on an annual basis within one hundred twenty (120) days of the end of each
year that shall include the following information:
1) Nature, date and type of Subscriber complaints escalated to Comcast by the Town
in writing and date complaints were resolved;
2) Average response time for service calls;
3) Phone activity report;
4) A summary of the previous year's activities regarding the development of the
Cable System, including, beginning and ending plant miles constructed;
5) An annual report of the company on Form 10-K that is filed with the U.S.
Securities and Exchange Commission; and,
6) A copy of all Comcast's rules and regulations applicable to Subscribers.
7.2 PROPRIETAR YINFORMA TION
If Comcast provides records to the Town, the Town agrees to keep confidential any proprietary
information to the extent permitted by law. Comcast shall be responsible for clearly and
conspicuously identifying the work proprietary, and shall provide a brief written explanation as
to why such information is confidential and how it may be treated as such under applicable law.
7.3 COPIES OF FEDERAL AND STATE REPORTS
Within thirty (30) days of the Town's written request, Comcast shall submit to the Town copies
of any pleading, application, notification, communication or document of any kind, submitted by
Comcast or an Affiliate to any federal, State or local court, regulatory agency or other
government body if such documents relate to the operations of the Cable System. Comcast shall
not claim confidential, privileged or proprietary rights to such documents, unless under federal,
State, or local law such documents have been determined to be confidential by a court of
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competent jurisdiction, or a federal or State agency. With respect to all other reports, documents
and notifications provided to any federal, State or local regulatory agency as a routine matter in
the due course of operating the Cable System, Comcast shall make such documents available to
the Town upon the Town's written request.
SECTION 8. PROGRAMMING
8.1 BROAD PROGRAMMING CATEGORIES
A) Comcast shall provide at least the following initial broad categories of programming to
the extent such categories are reasonably available.
Educational programming;
News, weather and information;
Sports;
General entertainment including movies;
Foreign language programming;
Children's programming;
Family oriented programming;
Arts, culture, performing arts programming;
Science and documentary programming;
National/international news; and
Local/regional news.
B) Comcast shall not delete or so limit as to effectively delete any broad category of
programming within its control without prior written notice to the Town.
C) In the event of a modification proceeding under federal law, the mix and quality of Cable
Service provided by Comcast shall follow the guidelines of Federal law.
8.2 OBSCENITY
Comcast shall not transmit, or permit to be transmitted, over any Channel subject to its editorial
control any programming which is obscene under applicable federal, State or local laws.
8.3 SERVICES FOR THE DISABLED
In providing Cable Service to the disabled, Comcast shall comply with the Americans With
Disabilities Act, as amended.
8.4 PARENTAL CONTROL DEVICE
Upon request by any Subscriber, Comcast shall make available at no charge a parental control
device to enable a Subscriber to control access to both the audio and video portions of any
Channels. Comcast shall inform its Subscribers of the availability of the device at the time of
their initial subscription and upon request.
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8.5 COMPLIMENTARY CABLE SERVICE
Comcast, upon request, shall provide without charge, a Standard Installation and one outlet of
Basic Service to those buildings now existing, acquired or hereafter constructed that are either
owned and occupied or leased and occupied by the Town, its designee or other governmental
entity, including without limitation fire stations, police stations, libraries, schools and the Access
studio, provided that they are already served or are within one hundred twenty-five (125) feet of
the Cable System. The Cable Service provided shall not be distributed beyond the originally
installed outlet without authorization from Comcast, which shall not be unreasonably withheld.
In the case of leased facilities, the recipient of service is responsible for securing approval for
appropriate right of entry suitable to Comcast in its reasonable discretion. The Cable Service
provided shall not extend to areas of Town buildings where the Comcast would normally enter
into a commercial contract to provide such Cable Service (e.g., golf courses, airport restaurants
and concourses, and recreation center work out facilities) or be used for commercial purposes.
For new hookups, Comcast shall not provide an outlet to such buildings where a non -Standard
Installation is required, unless the Town or building owner/occupant agrees to pay the cost of the
non -Standard Installation.
SECTION 9. ACCESS
9.1 ACCESS CHANNELS
A) Comcast shall provide, at no charge, two (2) Public, Educational or Governmental (PEG)
Access Channels.
B) The Town may delegate management of the PEG Access Channels to a Designated
Access Provider.
C) All PEG Access Channels provided for in this Agreement shall be carried system -wide in
the Franchise Area, and shall be provided on the Basic Service tier unless otherwise agreed to by
the parties.
D) The technical quality of the PEG Access Channels shall not be lower than the quality of
other Channels on the same tier of service, at the same technical quality that programming is
provided to Comcast by the Town or its Designated Access Provider.
E) The Town shall establish and enforce rules for use of the PEG Access Channels to assure
nondiscriminatory access to the Channels to similarly situated users; and to promote use and
viewership of the channels, consistent with applicable law. PEG Access Channels may not be
used for commercial purposes.
F) Comcast may not exercise any editorial control over the content of programming on
the PEG Access Channels.
9.2 UNDERUTILIZED ACCESS CHANNELS
Comcast and the Town agree that it is their mutual goal to fully and efficiently use the Channel
capacity of the Cable System, which may include allowing Comcast to use underutilized Access
Channels. If Comcast believes that any Access Channel is underutilized, Comcast may file a
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request with the Town to use that Access Channel. The Town shall in its sole discretion render a
decision regarding the matter within six (6) months of receiving the request. Should the Town
find that the Access Channel may be used by Comcast, then Comcast may begin using such
Channel thirty (30) days after receipt of the decision. In the event the Town determines, in
Town's sole discretion, that Town needs to use an Access Channel or Channels that Town has
previously determined that Comcast may use as an underutilized Access Channel, Town may
rescind Town's permission to allow Comcast to utilize an Access Channel or Channels which
rescission shall be effective ninety (90) days after tendering written notice Comcast.
9.3 ACCESS CHANNEL LOCATION
A) Comcast shall use its best efforts to minimize the movement of Access Channel
assignments. Comcast shall provide to the Town a minimum of ninety (90) days prior written
notice, prior to any relocation of its Access Channels, unless the change is required by federal
law, in which case Comcast shall give the Town the maximum notice possible. Comcast shall
pay the Town two thousand dollars ($2,000) per Access Channel, per move.
B) Comcast, at Comcast's expense, shall include notice of Access Channel changes in its
regular monthly billing.
9.4 ACCESS CHANNEL PROMOTION
Comcast shall provide the Town the opportunity to include promotional notices on paper and
electronic bills on not more than two occasions per year. Comcast shall be provided an
opportunity to review all such promotional notices. The Town shall be responsible for any costs
associated with the provision of such notices.
9.5 PEG ACCESS CAPITAL
A) As of the Effective Date of this Agreement, Comcast shall continue to collect and provide
to the Town a monthly fee as capital support for PEG access ("PEG Fee"). The PEG Fee shall be
fifty cents ($0.50) per subscriber per month for individual Residential Subscribers and
commercial subscribers, and twenty-five cents ($0.25) per subscriber per month subject to bulk -
billing. It is understood that pursuant to federal law, Comcast has the right to pass through the
costs of PEG Access capital payments to Subscribers, and Comcast shall be obligated to pay no
more than the amount it actually collects from such Subscribers. The PEG Fee shall be used
solely for capital costs related to PEG Access equipment and facilities. Comcast shall make PEG
Fee payments quarterly, no later than forty-five (45) days following the end of the quarter.
B) Initial Capital Contribution. Within 90 days of the Effective Date of this Franchise,
Comcast shall provide a one-time capital contribution of Eighteen Thousand Dollars ($18,000),
which the Town shall use to purchase Access equipment. Comcast shall be entitled to fully
recover this Initial Capital Contribution from Subscribers pursuant to federal law. As soon as the
Initial Capital Contribution has been provided to the Town, Comcast shall retain seventy percent
70%) of the PEG Fees collected from Subscribers until the Initial Capital Contribution is fully
recovered. Comcast shall provide to the Town the remaining thirty percent (30%) of the PEG
Fees collected during this recovery period. Comcast shall provide notice to the Town when this
Initial Capital Contribution is fully recovered, and at that time, Comcast will resume providing
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the Town the full amount of the PEG Fees collected. The Town shall retain the right to repay to
Comcast the $18,000 Initial Capital Contribution or any portion thereof from other sources.
C) To the extent permitted by law, the PEG Fee may be itemized on Subscriber billing
statements and recovered from Subscribers over the term of this Agreement. Comcast shall not
be responsible for paying the PEG Fee with respect to gratis or Bad Debt accounts.
9.6 RETURNLINES
A) Comcast shall continue to maintain the return lines from all existing Access broadcast
facilities to the Headend in order to enable the distribution of programming to Subscribers on the
Access Channels. Comcast shall continuously maintain these return lines throughout the term of
the Agreement, unless any of these locations are no longer used in the future to originate Access
programming.
B) Within eighteen (18) months of written request by the Town, Comcast shall construct and
maintain additional return lines to other locations in the Franchise Area; provided however, that
Comcast's construction costs shall be paid by the Town or its Designated Access Provider.
C) Return Lines shall be maintained by Comcast in the same manner as the rest of the Cable
System so that Access Channels may be viewed at the same quality that is provided by the Town
or its Designated Access Provider.
SECTION 10. USE OF PUBLIC WAYS
10.1 CONSTRUCTION AND MAINTENANCE
A) The Cable System shall be constructed and maintained so as not to interfere with sewers,
water pipes, or any other property of Town, or with any other pipes, wires, conduits, pedestals,
structures or other facilities installed in Public Ways.
B) In its maintenance and construction of the Cable System, Comcast shall comply with the
Avon Town Code. All construction and maintenance of Comcast's facilities within Public Ways
shall, regardless of who performs the construction, be and remain Comcast's responsibility.
C) Comcast's contractors and subcontractors shall be licensed and bonded in accordance
with the Town's ordinances, regulations and requirements. Work by contractors and
subcontractors is subject to the same restrictions, limitations and conditions as if the work were
performed by Comcast. Comcast shall be responsible for all work performed by its contractors
and subcontractors and others performing work on its behalf as if the work were performed by it,
and shall ensure that all such work is performed in compliance with this Agreement and other
applicable law, and shall be jointly and severally liable for all damages and correcting all damage
caused by them. It is Comcast's responsibility to ensure that contractors, subcontractors or other
Persons performing work on Comcast's behalf are familiar with the requirements of this
Agreement and other applicable laws governing the work performed by them.
D) Comcast shall give reasonable notice to private property owners of construction work in
adjacent Public Ways.
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E) If Comcast disturbs, alters, or damages any public or private property, Comcast shall at
its own expense replace and restore any such Public Way or property to a condition equal to the
condition of the property existing immediately prior to the disturbance.
F) The Town may inspect any of Comcast's facilities or construction upon at least twenty-
four (24) hours' notice, or, in case of emergency, without prior notice, and the Town may charge
Comcast generally applicable inspection fees therefor. If an unsafe condition is found, the
Town, in addition to taking any other action permitted under applicable law, may order Comcast
to make necessary repairs and alterations to correct the unsafe condition by a time the Town
establishes. The Town may correct, inspect, administer and repair the unsafe condition if
Comcast fails to do so, and to charge Comcast therefor.
G) On notice from Town that any work is being conducted contrary to this Agreement, or in
violation of the terms of any applicable law or permit, the work may immediately be stopped by
Town. The stop work order shall: be in writing; be given to the Person doing the work or posted
on the work site; be sent to Comcast by mail; indicate the nature of the alleged violation or
unsafe condition; and establish conditions under which work may be resumed.
10.2 LOCATIONAND MOVEMENT OF FACILITIES
A) After the Town or any franchisee or permittee of the Town notifies Comcast of a
proposed Public Way excavation, or design of any project impacting facilities in the Public Way,
Comcast shall, at Comcast's expense, mark on the surface all of its located underground facilities
within the area of the proposed excavation in accordance with applicable law.
B) The Town may remove or disconnect Comcast's facilities and equipment located in the
Public Way or on any other property of the Town in the case of an emergency. Except in an
emergency, the Town shall provide reasonable notice to Comcast prior to taking such action and
shall provide Comcast with the opportunity to perform such action. Following notice by the
Town, Comcast shall remove, replace, relocate, modify or disconnect any of its facilities in a
Public Way or on any other property of the Town, except that the Town shall provide at least
ninety (90) days written notice of any major capital improvement project that would require the
removal, relocation, replacement, modification or disconnection of Comcast's facilities or
equipment. If Comcast fails to complete this work within the time prescribed and to the Town's
satisfaction, the Town may cause such work to be done at Comcast's expense. Comcast shall
remit payment to Town within thirty (30) days of receipt of an itemized list of those costs.
C) If the Town requires Comcast to relocate its facilities located in a Public Way, the Town
shall make a reasonable effort to provide Comcast with an alternate location within the Public
Way. If funds are generally made available to users of the Public Way for such relocation,
Comcast shall be entitled to its pro rata share of such funds.
C) At the request of any Person holding a valid permit and upon reasonable advance notice,
Comcast shall temporarily raise, lower or remove its wires as necessary to permit the moving of
a building, vehicle, equipment or other item. The cost of such temporary change may be charged
by Comcast to the permit holder, and Comcast may require the estimated payment in advance.
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Such payment is an exchange between Comcast and the permittee, and the Town will not be the
administrator of these transactions.
10.3 ACQUISITION OF FACILITIES
Upon Comcast's acquisition of Cable System related facilities in any Public Way, or upon the
addition or annexation to the Town of any area in which Comcast owns or operates any facility,
such facilities shall be subject to the terms of this Agreement. The Town acknowledges that
inclusion of revenue from Subscribers affected by annexation to the Town will require ninety
90) days to make changes in the billing system affecting those Subscribers.
10.4 RESERVATION OF PUBLIC WAYS
Nothing in this Agreement shall prevent the Town from constructing any public improvement, or
from permitting other utilities the use of the Public Ways. If the Cable System interferes with
the construction, maintenance or repair of any Public Way or public improvement, the Cable
System shall be removed or relocated in the area the Town directs. If the Town requires
Comcast to relocate its facilities located within the Public Way, the Town shall make a
reasonable effort to provide Comcast with an alternate location within the Public Way. All such
removal or relocation shall be preceded by sixty (60) days written notice or such additional time
as may be provided by Town. Should Comcast fail to remove, adjust or relocate its facilities by
the date established by the Town, the Town may effect such removal, adjustment or relocation at
Comcast's sole expense. If funds are generally made available to users of the Public Way for
such relocation, Comcast shall be entitled to its pro rata share of such funds.
10.5 DISCONTINUED FACILITIES
A) When Comcast intends to discontinue using any facility within a Public Way, Comcast
shall submit to Town a complete description of the facility and the date on which Comcast
intends to discontinue using the facility. Comcast may remove the facility or request that the
Town allow it to remain in place. Notwithstanding Comcast's request that any such facility
remain in place, the Town may require Comcast to remove the facility from the Public Way or
modify the facility to protect the public health, welfare, safety and convenience. The Town may
require Comcast to perform a combination of modification and removal of the facility.
B) Comcast shall complete such removal or modification in accordance with a schedule set
by the Town. Until Comcast removes or modifies the facility as directed by the Town, or until
the rights to and responsibility for the facility are accepted by another Person having authority to
construct and maintain such facility, Comcast shall be responsible for the facility, as well as
maintenance of the Public Way, in the same manner and degree as if the facility were in active
use, and Comcast shall retain all liability for such facility.
C) If Comcast abandons any facilities, the Town may choose to use such facilities for any
purpose whatsoever.
10.6 USE OF CONDUIT OR DUCTS
A) The Town may install or affix and maintain wires and equipment owned by the Town for
Town purposes in or upon any of Comcast's ducts or conduits in the Public Ways, without charge
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to the Town, to the extent space therein or thereon is reasonably available, and pursuant to all
applicable ordinances and codes. For purposes of this Subsection, "Town purposes" includes,
but is not limited to, the use of the structures and installations for fire, police, traffic, water,
telephone, or signal systems, but not for Cable Service in competition with Comcast. Comcast
shall not deduct the value of such use of its facilities from its Franchise Fee payments or from
other fees payable to the Town.
B) Comcast acknowledges that the Public Ways have a finite capacity for containing conduit
and facilities. Therefore, Comcast agrees that when the Town determines it is impracticable to
permit construction of an underground conduit system by any other Person which may at the
time have authority to construct or maintain conduits or ducts in the Public Ways, but excluding
Persons providing Cable Service in competition with Comcast, the Town may require Comcast
to afford to such Person the right to use Comcast's surplus ducts or conduits in common with
Comcast, pursuant to the terms and conditions of an agreement for use of surplus ducts or
conduits entered into by Comcast and the other Person. Nothing herein shall require Comcast to
enter into an agreement with such Person if, in Comcast's reasonable determination, such an
agreement will compromise the integrity of the Cable System.
10.7 UNDERGROUNDING
Where electric and telephone utility wiring is underground, all Cable System lines, wiring and
equipment shall also be placed underground with other wireline service at no expense to the
Town. Related equipment, such as pedestals, shall be placed in accordance with applicable Town
requirements. In areas where either electric or telephone utility wiring are aerial, Comcast may
install aerial cable, except when a property owner or resident requests underground installation
and agrees to bear the additional cost in excess of aerial installation.
10.8 TREE TRIMMING
Comcast may prune or cause to be pruned, using proper pruning practices, any tree in any Public
Way which interferes with the Cable System. Comcast shall comply with all Town requirements
regarding tree trimming. Except in emergencies, Comcast may not prune trees at a point below
thirty (30) feet above sidewalk grade without seven (7) days prior written notice to the owner or
occupant of the premises abutting the Public Way in or over which the tree is growing. The
owner or occupant of the abutting premises may prune such tree at his or her own expense during
this one (1) week period. If the owner or occupant fails to do so, Comcast may prune such tree at
its own expense. For purposes of this Subsection, emergencies exist when it is necessary to
prune to protect the public or Comcast's facilities from imminent danger only.
10.9 GIS MAPPING
Comcast shall provide the Town with records of Comcast's trunk and distribution facilities in the
Franchise Area in a standard geographic information (GIS) format within thirty (30) days of
receipt of written request or longer if agreed to by the parties.
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SECTION 11. CABLE SYSTEM DESIGN AND TECHNICAL STANDARDS
11.1 TECHNICAL PERFORMANCE
The technical performance of the Cable System shall meet or exceed all applicable technical
standards authorized or required by law, including FCC technical standards as they may be
amended from time to time, regardless of the transmission technology utilized. The Town shall
have the authority provided by law to enforce compliance with these technical standards.
11.2 CABLE SYSTEM PERFORMANCE TESTING
A) Comcast shall, at its expense, perform all tests on the Cable System required by the FCC
including FCC required test points located in the Franchise Area) and shall maintain written
records of its test results in accordance with FCC requirements. Copies of such test results shall
be provided to the Town upon request.
B) All required tests may be witnessed by representatives of the Town. Upon request,
Comcast will notify the Town before any required technical proof -of -performance or other
testing occurs.
C) Comcast shall promptly take all necessary measures to correct any performance
deficiencies and prevent their recurrence. Sites shall be re -tested within five (5) days following
correction until correction has been confirmed and satisfactory results are obtained.
11.3 STANDBYPOWER
Comcast shall provide standby power generating capacity at the Cable System Headend capable
of providing at least twelve (12) hours of emergency operation. Comcast shall maintain standby
power supplies that will supply back-up power of at least two (2) hours duration throughout the
distribution networks, and four (4) hours duration at all nodes and hubs.
SECTION 12. VIOLATIONS AND REVOCATION
12.1 PROCEDURE FOR REMEDYING VIOLATIONS
A) If the Town believes that Comcast has failed to perform any material obligation of this
Agreement, the Town shall notify Comcast in writing, stating with specificity, the nature of the
alleged violation. Comcast shall have thirty (30) days from the receipt of such notice to:
1) Respond to the Town, contesting the Town's assertion that a violation has
occurred, or notifying the Town that violation cannot be cured within thirty (30) days
because of the nature of the alleged violation, and requesting a hearing in accordance
with Subsection (B), below; or
2) Cure the violation.
B) If Comcast does not cure the violation within thirty (30) days, or denies the violation and
requests a hearing, the Town shall set a public hearing on the violation. The Town shall provide
not less than seven (7) days prior written notice of the hearing. At the hearing, Comcast shall be
provided an opportunity to be heard, to present and question witnesses, and to present evidence
in its defense.
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C) If, after considering the evidence presented at the public hearing, the Town Council
determines that a violation exists, the Town may order Comcast to remedy the violation within
fourteen (14) days or within such other reasonable timeframe agreed to by the parties. If
Comcast does not remedy the violation within such time to the Town's reasonable satisfaction,
the Town may:
1) Assess and collect monetary damages in accordance with this Agreement;
2) Terminate this Agreement; and/or,
3) Pursue any other legal or equitable remedy available under this Agreement or
applicable law.
12.2 ALTERNATIVE REMEDIES
A) No provision of this Agreement shall bar the right of either party to seek or obtain
judicial relief from a violation of any provision of the Agreement or any rule, regulation,
requirement or directive promulgated thereunder. Neither the existence of other remedies
identified in this Agreement nor the exercise thereof shall be deemed to bar or otherwise limit the
right of either party to recover monetary damages, as allowed under applicable law, or to seek
and obtain judicial enforcement of obligations by means of specific performance, injunctive
relief or mandate, or any other remedy at law or in equity.
B) The Town does not waive any right, immunity, limitation or protection otherwise
available to the Town, its officers, officials, Boards, commissions, agents, or employees under
any law, including without limitation Section 635A of the Cable Act. Comcast shall not have
any monetary recourse against the Town, or its officers, officials, Board, commissions, agents or
employees for any loss, costs, expenses or damages arising out of any provision of this
Agreement or the enforcement thereof, subject to applicable law.
12.3 LIQUIDATED DAMAGES
A) The Town and Comcast recognize the delays, expense and unique difficulties involved in
proving in a legal proceeding the actual loss suffered by the Town as a result of a violation by
Comcast of this Agreement. Accordingly, instead of requiring such proof of actual loss, the
Town and Comcast agree that Comcast shall pay to the Town the sums set forth in this
Subsection. Such amounts are agreed by both parties to be a reasonable estimate of the actual
damages the Town would suffer in the event of Comcast's violation.
B) In addition to any other remedy, the Town in its sole discretion may, after following the
procedures as provided in this Section 12.1, charge to and collect from Comcast the following
liquidated damages per day, for each day, or part thereof, the violation continues:
1) For failure to provide data, documents, reports or information or to cooperate with
the Town during an application process or Cable System review or as otherwise provided
herein: one hundred fifty dollars ($150).
2) For failure to make timely PEG Fee or Franchise Fee payments: two hundred
fifty dollars ($250).
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3) For failure to comply with any other provision of this Agreement or Customer
Service Standards or the Avon Town Code: one hundred fifty dollars ($150).
C) Each violation shall be considered a separate violation for which separate liquidated
damages can be imposed. In no event shall liquidated damages be imposed for a period greater
than 120 days.
D) Comcast shall have thirty (30) days to pay the liquidated damages. If not so paid, the
Town may draw on any bond or Letter of Credit. The Town shall give Comcast written notice of
any such draw, and within seven (7) days of such notice, Comcast shall restore the bond or Letter
of Credit to the amount required under this Agreement.
12.4 REVOCATION
A) The franchise provided by this Agreement may be revoked and all rights and privileges
rescinded if a material breach of the Agreement is not cured, or in the event that:
1) Comcast attempts to evade any material provision of this Agreement or to practice
any fraud or deceit upon the Town or Subscribers;
2) Comcast makes a material misrepresentation of fact in the negotiation of this
Agreement;
3) Comcast abandons the Cable System, or terminates the Cable System's
operations;
4) Comcast fails to restore service to the Cable System after three (3) consecutive
days of an outage or interruption in service; except in the case of an emergency or during
a force majeure occurrence, or when approval of such outage or interruption is obtained
from the Town; or
5) Comcast becomes insolvent, unable or unwilling to pay its debts, or is adjudged
bankrupt, there is an assignment for the benefit of Comcast's creditors, or all or part of
Cable System is sold under an instrument to secure a debt and is not redeemed by
Comcast within thirty (30) days from said sale.
B) Additionally, the franchise granted in this Agreement may be revoked one hundred
twenty (120) days after the appointment of a receiver or trustee to conduct the business of
Comcast, at the option of the Town and subject to applicable law, whether in a receivership,
reorganization, bankruptcy or other action or proceeding, unless directed otherwise by a court of
competent jurisdiction.
C) If there is a foreclosure or other involuntary sale of the whole or any part of the plant,
property and equipment of Comcast, the Town may serve notice of revocation on Comcast and to
the purchaser at the sale, and the rights and privileges of Comcast under this Agreement shall be
revoked thirty (30) days after service of such notice, unless:
1) The Town has approved the transfer of the Agreement, in accordance with the
procedures set forth in this Agreement and as provided by law; and
2) The transferee has agreed to assume and be bound by all terms of this Agreement.
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12. S PURCHASE OF THE CABLE SYSTEM
If at any time this Agreement lawfully terminates, the Town shall have the option to purchase the
Cable System; provided that nothing in this Agreement shall limit or expand the Town's right of
eminent domain under State law.
SECTION 13. TRANSFER
13.1 TRANSFER OF OWNERSHIP OR CONTROL
A) The Cable System and this Agreement shall not be sold, assigned, transferred, leased or
disposed of, either in whole or in part, either by involuntary sale or by voluntary sale, merger or
consolidation; nor shall title thereto, either legal or equitable, or any right, interest or property
therein pass to or vest in any Person or entity without the prior written consent of the Town,
which consent shall be by the Town Council, acting by ordinance or resolution.
B) Comcast shall promptly notify the Town of any actual or proposed change in control of
Comcast. The word "control" as used herein is defined as an acquisition of 51% or greater
ownership interest in Comcast. Such change of control of Comcast shall make this Agreement
subject to cancellation unless and until the Town has consented in writing.
C) The parties to the transfer shall make a written request to the Town for its approval of a
sale or transfer or change in control and shall furnish all information required by law.
D) In seeking the Town's consent to any transfer, the proposed transferee or controlling
entity shall indicate whether it:
1) Has ever been convicted or held liable for acts involving deceit including any
violation of federal, State or local law or regulations, or is currently under an indictment,
investigation or complaint charging such acts;
2) Has ever had a judgment in an action for fraud, deceit, or misrepresentation
entered against the proposed transferee by any court of competent jurisdiction;
3) Has pending any material legal claim, lawsuit, or administrative proceeding
arising out of or involving a Cable System or the provision of Cable Services;
4) Is financially solvent, by submitting financial data including financial statements
that are audited by a certified public accountant who may also be an officer of the
transferee or controlling entity, along with any other data that is lawfully required; and
5) Has the financial, legal and technical capability to enable it to maintain and
operate the Cable System for the remaining term of the Agreement.
E) The proposed transferee shall provide complete information regarding any potential
impact of the transaction on Subscriber rates and service, as well as any other documentation
reasonably related to the proposed transaction and consistent with applicable law which, in the
reasonable discretion of the Town are necessary to understand the proposed transaction.
F) The Town shall act on the request within one hundred twenty (120) days of receipt of the
FCC Form 394 application and all information expressly required by this Agreement and
applicable law, provided it has received a complete application. Subject to the foregoing, if the
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Town fails to render a final decision on the request within one hundred twenty (120) days, such
request shall be deemed granted unless the requesting party and the Town agree to an extension
of time.
G) Within thirty (30) days of any transfer, Comcast shall file with the Town a copy of the
deed, agreement, lease or other written instrument evidencing such transfer, certified correct by
Comcast and the transferee, and the transferee shall file its written acceptance agreeing to be
bound by all terms of this Agreement, subject to applicable law. In the event of a change in
control in which Comcast is not replaced by another entity, Comcast will continue to be bound
by all terms of the Agreement, subject to applicable law, and will not be required to file an
additional written acceptance. The approval of any transfer shall not waive any rights of Town
to subsequently enforce noncompliance issues relating to this Agreement. If a change of control
involves an entity that was not an Affiliate prior to the contemplated transaction, the Town's
consent shall be required for such change in control.
H) In reviewing a transfer request, the Town may inquire into the legal, technical and
financial qualifications of the transferee, and Comcast shall assist the Town in so inquiring. The
Town may condition said transfer upon such terms as it deems reasonably appropriate, consistent
with applicable law and reasonably related to the qualifications of the prospective transferee to
comply with this Agreement or the resolution of outstanding and unresolved issues of
noncompliance with this Agreement by Comcast.
I) Notwithstanding anything to the contrary in this Subsection, the prior approval of the
Town shall not be required for any sale, assignment or transfer of the Agreement or the Cable
System to an intra -company entity controlling, controlled by or under the same common control
as Comcast, provided that the proposed assignee or transferee shall show financial responsibility
as may be determined necessary by the Town and shall agree in writing to comply with all
provisions of the Agreement. Further, Comcast may pledge the assets of the Cable System for
the purpose of financing without the consent of the Town; provided that such pledge of assets
shall not mitigate Comcast's responsibilities to meet its obligations under this Agreement.
SECTION 14. MISCELLANEOUS
14.1 CUMULATIVE RIGHTS
Subject to applicable law, all rights and remedies given to the Town or retained by the Town in
this Agreement shall be in addition to and cumulative with any and all other rights and remedies,
existing or implied, now or hereafter available to the Town, at law or in equity, and such rights
and remedies shall not be exclusive, but every right and remedy given by this Agreement or
otherwise existing may be exercised as often and in such order as deemed expedient by the
Town, and the exercise of one right or remedy shall not be deemed a waiver of the right to
exercise at the same time or thereafter any other right or remedy.
14.2 COSTS TO BE BORNE BY COMCAST
Comcast shall pay for all costs of publication of this Agreement, and any and all notices prior to
any public meeting or hearing provided for pursuant to this Agreement in accordance with the
Avon Town Code or Charter.
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14.3 BINDING EFFECT
This Agreement shall be binding upon the parties hereto, their permitted successors, transferees
and assigns.
14.4 MODIFICATION
Either party may at any time seek an amendment of this Franchise by so notifying the other party
in writing. Within sixty (60) days of receipt of notice, the Town and Grantee shall meet to
discuss the proposed amendment(s). If the parties reach a mutual agreement upon the suggested
amendment(s), such amendment(s) shall be submitted to the Town Council for its approval. If so
approved by the Town Council and the Grantee, then such amendment(s) shall be deemed part of
this Franchise. If mutual agreement is not reached, there shall be no amendment.
14.5 GOVERNING LAW AND VENUE
This Agreement shall be governed, construed and enforced in accordance with the laws of the
State of Colorado, the Cable Act, as amended, any applicable rules, regulations and orders of the
FCC, as amended, and any other applicable local, State and federal laws, rules, and regulations.
The venue for any dispute related to a violation of this Agreement shall be in an appropriate state
court of competent jurisdiction in Eagle County, Colorado.
14.6 No JOINT VENTURE
Nothing herein shall be deemed to create a joint venture or principal -agent relationship between
the parties, and neither party is authorized to, nor shall either party act toward third persons or
the public in any manner that would indicate any such relationship with the other.
14.7 WAIVER
The failure of either party at any time to require performance by the other of any provision
hereof shall in no way affect the right of the other party hereafter to enforce the same. Nor shall
the waiver by either party of any breach of any provision hereof be taken or held to be a waiver
of any succeeding breach of such provision, or as a waiver of the provision itself or any other
provision.
14.8 SEVERABILITY
If any provision of this Agreement is determined to be illegal, invalid or unconstitutional by any
court or agency of competent jurisdiction, such determination shall have no effect on the validity
of any other provision of this Agreement.
14.9 FORCE MAJEURE
Comcast shall not be held in violation of this Agreement for any act caused by circumstances
reasonably beyond the ability of Comcast to anticipate and control, including war, riots, civil
disturbances, floods, severe adverse weather conditions or other natural catastrophes, labor
stoppages or power outages exceeding back-up power supplies.
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14. 10 ENTIRE AGREEMENT
This Agreement represents the entire understanding and agreement between the parties hereto
with respect to the subject matter hereof and supersede all prior oral and written negotiations
between the parties.
14.11 NOTICES
Each party shall maintain and file with the other a local address for the service of notices by
mail. All notices shall be sent to such respective address, and such notices shall be effective upon
the date of mailing. On the Effective Date, the following are the addressed on file:
Comcast: With a copy to:
Comcast Comcast
8000 East Iliff Avenue 281 Metcalf Road, Suite 110
Denver, CO 80231 Avon, CO 81620
Attn: Government Affairs Attn: General Manager
Town: With a copy to:
Town of Avon Town of Avon
P.O. Box 975 P.O. Box 975
1 Lake Street 1 Lake Street
Avon, CO 81620 Avon, CO 81620
Attn: Town Manager Attn: Town Attorney
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IN WITNESS WHEREOF, the parties have executed this Agreement on the date first set
forth above.
5WN OF AV? V N, COLORADO
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J ie Fancher, Mayor
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Debbie Hoppe, Town Clerk
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COMCAST OF COLORADO V11, LLC/ TOWN OF AVON
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EXHIBIT A: CUSTOMER SERVICE STANDARDS
TOWN OF AVON
CUSTOMER SERVICE STANDARDS
I. POLICY
The Cable Operator should resolve citizen complaints without delay and interference from the
Franchising Authority.
Where a given complaint is not addressed by the Cable Operator to the citizen's satisfaction, the
Franchising Authority should intervene. In addition, where a pattern of unremedied complaints or
noncompliance with the Standards is identified, the Franchising Authority should prescribe a cure and
establish a reasonable deadline for implementation of the cure. If the noncompliance is not cured within
established deadlines, monetary sanctions should be imposed to encourage compliance and deter future
non-compliance.
These Standards are intended to be of general application, and are expected to be met under normal
operating conditions; however, the Cable Operator shall be relieved of any obligations hereunder if it is
unable to perform due to a region -wide natural emergency or in the event of force majeure affecting a
significant portion of the franchise area. The Cable Operator is free to exceed these Standards to the
benefit of its Customers and such shall be considered performance for the purposes of these Standards.
These Standards supersede any contradictory or inconsistent provision in federal, state or local law
Source: 47 U.S.C. § 552(a)(1) and (d)), provided, however, that any provision in federal, state or local
law, or in any original franchise agreement or renewal agreement, that imposes a higher obligation or
requirement than is imposed by these Standards, shall not be considered contradictory or inconsistent
with these Standards. In the event of a conflict between these Standards and a Franchise Agreement,
the Franchise Agreement shall control.
These Standards apply to the provision of any Cable Service, provided by a Cable Operator over a Cable
System, within the Town of Avon.
II. DEFINITIONS
When used in these Customer Service Standards (the "Standards"), the following words, phrases, and
terms shall have the meanings given below.
Adoption" shall mean the process necessary -to formally enact the Standards within the Franchising
Authority's jurisdiction under applicable ordinances and laws.
Affiliate" shall mean any person or entity that is owned or controlled by, or under common ownership
or control with, a Cable Operator, and provides any Cable Service or Other Service.
Applicable Law" means, with respect to these standards and any Cable Operator's privacy policies, any
statute, ordinance, judicial decision, executive order or regulation having the force and effect of law, that
determines the legal standing of a case or issue.
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EXHIBIT A: CUSTOMER SERVICE STANDARDS
Cable Operator" shall mean 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. Source: 47 U.S.C. § 522(5).
Cable Service" shall mean (A) the one-way transmission to subscribers of (i) video programming, or
ii) other programming service, and (B) subscriber interaction, if any, which is required for the selection
or use of such video programming or other programming service. Source: 47 U.S.C. § 522(6). For
purposes of this definition, "video programming" is programming provided by, or generally considered
comparable to programming provided by a television broadcast station. Source: 47 U.S.C. § 522(20).
Other programming service" is information that a Cable Operator makes available to all subscribers
generally. Source: 47 U.S.C. § 522(14).
Cable System" shall mean a facility, consisting of a set of closed transmission paths and associated
signal generation, reception, and control equipment that is designed to provide Cable Service which
includes video programming and which is provided to multiple subscribers within a community, but
such term does not include (A) a facility that serves only to retransmit the televisions signals of one or
more television broadcast stations, or (B) a facility that serves subscribers without using any public right
of way. Source: 47 U.S.C. § 522(7).
Contractor" shall mean a person or entity that agrees by contract to furnish materials or perform
services for another at a specified consideration.
Customer" shall mean any person who receives any Cable Service from a Cable Operator.
Customer Service Representative" (or "CSR") shall mean any person employed with or under contract
or subcontract to a Cable Operator to assist, or provide service to, customers, whether by telephone,
writing service or installation orders, answering customers' questions in person, receiving and
processing payments, or performing any other customer service -related tasks.
Escalated complaint" shall mean a complaint that is referred to a Cable Operator by the Franchising
Authority.
Franchising Authority" shall mean the Town of Avon.
Necessary" shall mean required or indispensable.
Non -cable -related purpose" shall mean any purpose that is not necessary to render or conduct a
legitimate business activity related to a Cable Service or Other Service provided by a Cable Operator to
a Customer. Market research, telemarketing, and other marketing of services or products that are not
related to a Cable Service or Other Service provided by a Cable Operator to a Customer shall be
considered Non -cable -related purposes.
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EXHIBIT A: CUSTOMER SERVICE STANDARDS
Normal business hours" shall mean those hours during which most similar businesses in the community
are open to serve customers. In all cases, "normal business hours" must include at least some evening
hours one night per week, and include some weekend hours. Source: 47 C.F.R. § 76.309.
Normal operating conditions" shall mean those service conditions which are within the control of a
Cable Operator. Conditions which are not within the control of a Cable Operator include, but are not
necessarily limited to, natural disasters, civil disturbances, power outages, telephone network outages,
and severe or unusual weather conditions. Conditions which are ordinarily within the control of a Cable
Operator include, but are not necessarily limited to, special promotions, pay-per-view events, rate
increases, regular peak or seasonal demand periods and maintenance or upgrade to the Cable System.
Other Service(s)" shall mean any wire or radio communications service provided using any of the
facilities of a Cable Operator that are used in the provision of Cable Service.
Personally Identifiable Information" shall mean specific information about an identified Customer,
including, but not be limited to, a Customer's (a) login information for the use of Cable Service and
management of a Customer's Cable Service account, (b) extent of viewing of video programming or
Other Services, (c) shopping choices, (d) interests and opinions, (e) energy uses, (f) medical
information, (g) banking data or information, or (h) any other personal or private information.
Personally Identifiable Information" shall not mean any aggregate information about Customers which
does not identify particular persons, or information gathered by a Cable Operator necessary to install,
repair or service equipment or Cable System facilities at a Customer's premises.
Service interruption" or "interruption" shall mean (i) the loss or substantial impairment of picture
and/or sound on one or more cable television channels.
Service outage" or "outage" shall mean a loss or substantial impairment in reception on all channels.
Subcontractor" shall mean a person or entity that enters into a contract to perform part or all of the
obligations of another's contract.
Town" shall mean the Town of Avon, Colorado.
Writing" or "written" as the term applies to notification shall include electronic communications.
Any terms not specifically defined in these Standards shall be given their ordinary meaning, or where
otherwise defined in applicable federal law, such terms shall be interpreted consistent with those
definitions.
III. CUSTOMER SERVICE
A. Courtesy
Cable Operator employees, contractors and subcontractors shall be courteous, knowledgeable and
helpful and shall provide effective and satisfactory service in all contacts with customers.
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B. Accessibility
1. A Cable Operator shall provide customer service centers/business offices ("Service Centers") which
are conveniently located, and which are open during Normal Business Hours. Service Centers shall be
fully staffed with Customer Service Representatives offering the following services to Customers who
come to the Service Center: bill payment, equipment exchange, processing of change of service
requests, and response to Customer inquiries and request.
Unless otherwise requested by the Town, a Cable Operator shall post a sign at each Service Center,
visible from the outside of the Service Center, advising Customers of its hours of operation and of the
telephone number at which to contact the Cable Operator if the Service Center is not open at the times
posted.
The Cable Operator shall use commercially reasonable efforts to implement and promote "self-help"
tools and technology, in order to respond to the growing demand of Customers who wish to interact with
the Cable Operator on the Customer's own terms and timeline and at their own convenience, without
having to travel to a Service Center. Without limitation, examples of self-help tools or technology may
include self -installation kits to Customers upon request; pre -paid mailers for the return of equipment
upon Customer request; an automated phone option for Customer bill payments; and equipment
exchanges at a Customer's residence in the event of damaged equipment. A Cable Operator shall
provide free exchanges of faulty equipment at the customer's address if the equipment has not been
damaged in any manner due to the fault or negligence of the customer.
2. A Cable Operator shall maintain local telephone access lines that shall be available twenty-four (24)
hours a day, seven (7) days a week for service/repair requests and billing/service inquiries.
3. A Cable Operator shall have dispatchers and technicians on call twenty-four (24) hours a day, seven
7) days a week, including legal holidays.
4. If a customer service telephone call is answered with a recorded message providing the customer with
various menu options to address the customer's concern, the recorded message must provide the
customer the option to connect to and speak with a CSR within sixty (60) seconds of the commencement
of the recording. During Normal Business Hours, a Cable Operator shall retain sufficient customer
service representatives and telephone line capacity to ensure that telephone calls to technical
service/repair and billing/service inquiry lines are answered by a customer service representative within
thirty (30) seconds or less from the time a customer chooses a menu option to speak directly with a CSR
or chooses a menu option that pursuant to the automated voice message, leads to a direct connection
with a CSR. Under normal operating conditions, this thirty (30) second telephone answer time
requirement standard shall be met no less than ninety (90) percent of the time measured quarterly.
5. Under normal operating conditions, a customer shall not receive a busy signal more than three percent
3%) of the time. This standard shall be met ninety (90) percent or more of the time, measured
quarterly.
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C. Responsiveness
1. Guaranteed Seven -Day Residential Installation
a. A Cable Operator shall complete all standard residential installations or modifications to
service requested by customers within seven (7) business days after the order is placed, unless a later
date for installation is requested. "Standard" residential installations are those located up to one hundred
twenty five (125) feet from the existing distribution system. If the customer requests a nonstandard
residential installation, or the Cable Operator determines that a nonstandard residential installation is
required, the Cable Operator shall provide the customer in advance with a total installation cost estimate
and an estimated date of completion.
b. All underground cable drops to the home shall be buried at a depth of no less than twelve
inches (12"), or such other depth as may be required by the Franchise Agreement or local code
provisions, or if there are no applicable Franchise or code requirements, at such other depths as may be
agreed to by the parties if other construction concerns preclude the twelve inch requirement, and within
no more than one calendar week from the initial installation, or at a time mutually agreed upon between
the Cable Operator and the customer.
2. Residential Installation and Service Appointments
a. The "appointment window" alternatives for specific installations, service calls, and/or other
installation activities will be either a specific time, or at a maximum, a four (4) hour time block between
the hours of 8:00 a.m. and 6:00 p.m., six (6) days per week. A Cable Operator may schedule service
calls and other installation activities outside of the above days and hours for the express convenience of
customers. For purposes of this subsection "appointment window" means the period of time in which
the representative of the Cable Operator must arrive at the customer's location.
b. A Cable Operator may not cancel an appointment with a customer after the close of business
on the business day prior to the scheduled appointment, unless the customer's issue has otherwise been
resolved.
c. If a Cable Operator is running late for an appointment with a customer and will not be able to
keep the appointment as scheduled, the Cable Operator shall take reasonable efforts to contact the
customer promptly, but in no event later than the end of the appointment window. The appointment will
be rescheduled, as necessary at a time that is convenient to the customer, within Normal Business Hours
or as may be otherwise agreed to between the customer and Cable Operator.
d. A Cable Operator shall be deemed to have responded to a request for service under the
provisions of this section when a technician arrives within the agreed upon time, and, if the customer is
absent when the technician arrives, the technician leaves written notification of arrival and return time,
and a copy of that notification is kept by the Cable Operator. In such circumstances, the Cable Operator
shall contact the customer within forty-eight (48) hours.
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3. Residential Service Interruptions
a. In the event of system outages resulting from Cable Operator equipment failure, the Cable
Operator shall correct such failure within 2 hours after the 3rd customer call is received.
b. All other service interruptions resulting from Cable Operator equipment failure shall.be
corrected by the Cable Operator by the end of the next calendar day.
c. Records of Complaints.
i. A Cable Operator shall keep an accurate and comprehensive file of any
complaints regarding the cable system or its operation of the cable system, in a manner
consistent with the privacy rights of customers, and the Cable Operator's actions in response to
those complaints. These files shall remain available for viewing by the Franchising Authority
during normal business hours at the Cable Operator's business office, and shall be retained by
the Cable Operator for a period of at least three (3) years.
ii. Upon written request a Cable Operator shall provide the Franchising Authority an
executive summary quarterly, which shall include information concerning customer complaints
referred by the Franchising Authority to the Grantee and any other requirements of a Franchise
Agreement but no personally identifiable information. These summaries shall be provided within
fifteen (15) days after the end of each quarter. Once a request is made, it need not be repeated
and quarterly executive summaries shall be provided by the Cable Operator until notified in
writing by the Franchising Authority that such summaries are no longer required.
iii. Upon written request a summary of service requests, identifying the number and
nature of the requests and their disposition, shall also be completed by the Cable Operator for
each quarter and submitted to the Franchising Authority by the fifteenth (15th) day of the month
after each calendar quarter. Once a request is made, it need not be repeated and quarterly
summary of service requests shall be provided by the Cable Operator until notified in writing by
the Franchising Authority that such summaries are no longer required. Complaints shall be
broken out by the nature of the complaint and the type of Cable service subject to the complaint.
d. Records of Service Interruptions and Outages. A Cable Operator shall maintain records of all
outages and reported service interruptions. Such records shall indicate the type of cable service
interrupted, including the reasons for the interruptions. A log of all service interruptions shall be
maintained and provided to the Franchising Authority quarterly, upon written request, within fifteen (15)
days after the end of each quarter. Such records shall be submitted to the Franchising Authority with the
records identified in Section 3.c.ii above if so requested in writing, and shall be retained by the Cable
Operator for a period of three (3) years.
e. All service outages and interruptions for any cause beyond the control of the Cable Operator
shall be corrected within thirty-six (36) hours, after the conditions beyond its control have been
corrected.
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4. TV Reception
a. A Cable Operator shall provide clear television reception that meets or exceeds technical
standards established by the United States Federal Communications Commission (the "FCC"). A Cable
Operator shall render efficient service, make repairs promptly, and interrupt service only for good cause
and for the shortest time possible. Scheduled interruptions shall be preceded by notice and shall occur
during periods of minimum use of the system, preferably between midnight and six a.m. (6:00 a.m.).
b. If a customer experiences poor video or audio reception attributable to a Cable Operator's
equipment, the Cable Operator shall:
i. Assess the problem within one (1) day of notification;
ii. Communicate with the customer regarding the nature of the problem and the
expected time for repair;
iii. Complete the repair within two (2) days of assessing the problem unless
circumstances exist that reasonably require additional time.
C. If an appointment is necessary to address any video or audio reception problem, the
customer may choose a block of time described in Section III.C.2.a. At the customer's request, the Cable
Operator shall repair the problem at a later time convenient to the customer, during Normal Business
Hours or at such other time as may be agreed to by the customer and Cable Operator. A Cable Operator
shall maintain periodic communications with a customer during the time period in which problem
ascertainment and repair are ongoing, so that the customer is advised of the status of the Cable
Operator's efforts to address the problem.
Problem Resolution
A Cable Operator's customer service representatives shall have the authority to provide credit for
interrupted service, to waive fees, to schedule service appointments and to change billing cycles, where
appropriate. Any difficulties that cannot be resolved by the customer service representative shall be
referred to the appropriate supervisor who shall contact the customer within four (4) hours and resolve
the problem within forty eight (48) hours or within such other time frame as is acceptable to the
customer and the Cable Operator.
6. Billing, Credits, and Refunds
a. In addition to other options for payment of a customer's service bill, a Cable Operator shall
make available a telephone payment option where a customer without account irregularities can enter
payment information through an automated system, without the necessity of speaking to a CSR.
b. A Cable Operator shall allow at least thirty (30) days from the beginning date of the applicable
service period for payment of a customer's service bill for that period. If a customer's service bill is not
paid within that period of time the Cable Operator may apply an administrative fee to the customer's
account. The administrative fee must reflect the average costs incurred by the Cable Operator in
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attempting to collect the past due payment in accordance with applicable law. If the customer's service
bill is not paid within forty-five (45) days of the beginning date of the applicable service period, the
Cable Operator may perform a "soft" disconnect of the customer's service. If a customer's service bill is
not paid within fifty-two (52) days of the beginning date of the applicable service period, the Cable
Operator may disconnect the customer's service, provided it has provided two (2) weeks notice to the
customer that such disconnection may result.
c. The Cable Operator shall issue a credit or refund to a customer within 30 days after
determining the customer's entitlement to a credit or refund.
d. Whenever the Cable Operator offers any promotional or specially priced service(s) its
promotional materials shall clearly identify and explain the specific terms of the promotion, including
but not limited to manner in which any payment credit will be applied.
7. Treatment of Property
To the extent that a Franchise Agreement does not contain the following procedures for treatment of
property, Operator shall comply with the procedures set forth in this Section.
a. A Cable Operator shall keep tree trimming to a minimum; trees and shrubs or other
landscaping that are damaged by a Cable Operator, any employee or agent of a Cable Operator during
installation or construction shall be restored to their prior condition or replaced within seven (7) days,
unless seasonal conditions require a longer time, in which case such restoration or replacement shall be
made within seven (7) days after conditions permit. Trees and shrubs on private property shall not be
removed without the prior permission of the owner or legal tenant of the property on which they are
located. This provision shall be in addition to, and shall not supersede, any requirement in any franchise
agreement.
b. A Cable Operator shall, at its own cost and expense, and in a manner approved by the property
owner and the Franchising Authority, restore any private property to as good condition as before the
work causing such disturbance was initiated. A Cable Operator shall repair, replace or compensate a
property owner for any damage resulting from the Cable Operator's installation, construction, service or
repair activities. If compensation is requested by the customer for damage caused by any Cable Operator
activity, the Cable Operator shall reimburse the property owner one hundred (100) percent of the actual
cost of the damage.
c. Except in the case of an emergency involving public safety or service interruption to a large
number of customers, a Cable Operator -shall give reasonable notice to property owners or legal tenants
prior to entering upon private premises, and the notice shall specify the work to be performed; provided
that in the case of construction operations such notice shall be delivered or provided at least twenty-four
24) hours prior to entry, unless such notice is waived by the customer. For purposes of this subsection,
reasonable notice" shall be considered:
i. For pedestal installation or similar major construction, seven (7) days.
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ii. For routine maintenance, such as adding or dropping service, tree trimming and
the like, reasonable notice given the circumstances. Unless a Franchise Agreement has a
different requirement, reasonable notice shall require, at a minimum, prior notice to a property
owner or tenant, before entry is made onto that person's property.
iii. For emergency work a Cable Operator shall attempt to contact the property owner
or legal tenant in person, and shall leave a door hanger notice in the event personal contact is not
made. Door hangars must describe the issue and provide contact information where the property
owner or tenant can receive more information about the emergency work.
Nothing herein shall be construed as authorizing access or entry to private property, or any other
property, where such right to access or entry is not otherwise provided by law.
d. Cable Operator personnel shall clean all areas surrounding any work site and ensure that all
cable materials have been disposed of properly.
D. Services for Customers with Disabilities
1. For any customer with a disability, a Cable Operator shall deliver and pick up equipment at
customers' homes at no charge unless the malfunction was caused by the actions of the customer. In the
case of malfunctioning equipment, the technician shall provide replacement equipment, hook it up and
ensure that it is working properly, and shall return the defective equipment to the Cable Operator.
2. A Cable Operator shall provide either TTY, TDD, TYY, VRS service or other similar service that are
in compliance with the Americans With Disabilities Act and other applicable law, with trained operators
who can provide every type of assistance rendered by the Cable Operator's customer service
representatives for any hearing-impaired customer at no charge.
3. A Cable Operator shall provide free use of a remote control unit to mobility -impaired (if disabled, in
accordance with Section III.D.4) customers.
4. Any customer with a disability may request the special services described above by providing a Cable
Operator with a letter from the customer's physician stating the need, or by making the request to the
Cable Operator's installer or service technician, where the need for the special services can be visually
confirmed.
E. Cable Services Information
1. At any time a customer or prospective customer may request, a Cable Operator shall provide the
following information, in clear, concise written form, easily accessible and located on Cable Operator's
website (and in Spanish, when requested by the customer):
a. Products and services offered by the Cable Operator, including its channel lineup;
b. The Cable Operator's complete range of service options and the prices for these services;
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c. The Cable Operator's billing, collection and disconnection policies;
d. Privacy rights of customers;
e. All applicable complaint procedures, including complaint forms and the telephone numbers
and mailing addresses of the Cable Operator, and the FCC;
f. Use and availability of parental control/lock out device;
g. Special services for customers with disabilities;
h. Days, times of operation, and locations of the service centers;
2. At a Customer's request, a Cable Operator shall make available either a complete copy of these
Standards and any other applicable customer service standards, or a summary of these Standards, in a
format to be approved by the Franchising Authority, which shall include at a minimum, the URL address
of a website containing these Standards in their entirety; provided however, that if the Franchising
Authority does not maintain a website with a complete copy of these Standards, a Cable Operator shall
be under no obligation to do so;
If acceptable to a customer, Cable Operator may fulfill customer requests for any of the information
listed in this Section by making the requested information available electronically, such as on a website
or by electronic mail.
3. Upon written request, a Cable Operator shall meet annually with the Franchising Authority to review
the format of the Cable Operator's bills to customers. Whenever the Cable Operator makes substantial
changes to its billing format, it will contact the Franchising Authority at least thirty (30) days prior to the
time such changes are to be effective, in order to inform the Franchising Authority of such changes.
4. Copies of notices provided to the customer in accordance with subsection 5 below shall be filed (by
fax or email acceptable) concurrently with the Franchising Authority.
5. A Cable Operator shall provide customers with written notification of any change in rates for
nondiscretionary cable services, and for service tier changes that result in a deletion of programming
from a customer's service tier, at least thirty (30) days before the effective date of change. For purposes
of this section, "nondiscretionary" means the subscribed tier and any other Cable Services that a
customer has subscribed to, at the time the change in rates are announced by the Cable Operator.
6. All officers, agents, and employees of the Cable Operator or its contractors or subcontractors who are
in personal contact with customers and/or when working on public property, shall wear on their outer
clothing identification cards bearing their name and photograph and identifying them as representatives
of the Cable Operator. The Cable Operator shall account for all identification cards at all times. Every
vehicle of the Cable Operator shall be clearly visually identified to the public as working for the Cable
Operator. Whenever a Cable Operator work crew is in personal contact with customers or public
employees, a supervisor must be able to communicate clearly with the customer or public employee.
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Every vehicle of a subcontractor or contractor shall be labeled with the name of the contractor and
further identified as contracting or subcontracting for the Cable Operator.
7. Each CSR, technician or employee of the Cable Operator in each contact with a customer shall state
the estimated cost of the service, repair, or installation orally prior to delivery of the service or before
any work is performed, and shall provide the customer with an oral statement of the total charges before
terminating the telephone call or before leaving the location at which the work was performed. A
written estimate of the charges shall be provided to the customer before the actual work is performed.
F. Customer Privacy
1. Cable Customer Privacy. In addition to complying with the requirements in this subsection, a Cable
Operator shall fully comply with all obligations under 47 U.S.C. Section 551.
2. Collection and Use of Personallv Identifiable Information.
a. A Cable Operator shall not use the Cable System to collect, monitor or observe Personally
Identifiable Information without the prior affirmative written or electronic consent of the Customer
unless, and only to the extent that such information is: (i) used to detect unauthorized reception of cable
communications, or (ii) necessary to render a Cable Service or Other Service provided by the Cable
Operator to the Customer and as otherwise authorized by applicable law.
b. A Cable Operator shall take such actions as are necessary using then -current industry standard
practices to prevent any Affiliate from using the facilities of the Cable Operator in any manner,
including, but not limited to, sending data or other signals through such facilities, to the extent such use
will permit an Affiliate unauthorized access to Personally Identifiable Information on equipment of a
Customer (regardless of whether such equipment is owned or leased by the Customer or provided by a
Cable Operator) or on any of the facilities of the Cable Operator that are used in the provision of Cable
Service. This subsection F.2.b shall not be interpreted to prohibit an Affiliate from obtaining access to
Personally Identifiable Information to the extent otherwise permitted by this subsection F.
c. A Cable Operator shall take such actions as are necessary using then -current industry standard
practices to prevent a person or entity (other than an Affiliate) from using the facilities of the Cable
Operator in any manner, including, but not limited to, sending data or other signals through such
facilities, to the extent such use will permit such person or entity unauthorized access to Personally
Identifiable Information on equipment of a Customer (regardless of whether such equipment is owned or
leased by the Customer or provided by a Cable Operator) or on any of the facilities of the Cable
Operator that are used in the provision of Cable Service.
3. Disclosure of Personally Identifiable Information. A Cable Operator shall not disclose Personally
Identifiable Information without the prior affirmative written or electronic consent of the Customer,
unless otherwise authorized by applicable law.
a. A minimum of thirty (30) days prior to making any disclosure of Personally Identifiable
Information of any Customer for any Non -Cable related purpose as provided in this subsection F.3.a,
where such Customer has not previously been provided the notice and choice provided for in subsection
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III.F.9, the Cable Operator shall notify each Customer (that the Cable Operator intends to disclose
information about) of the Customer's right to prohibit the disclosure of such information for Non -cable
related purposes. The notice to Customers may reference the Customer to his or her options to state a
preference for disclosure or non -disclosure of certain information, as provided in subsection III.F.10.
b. A Cable Operator may disclose Personally Identifiable Information only to the extent that it is
necessary to render, or conduct a legitimate business activity related to, a Cable Service or Other Service
provided by the Cable Operator to the Customer.
c. To the extent authorized by applicable law, a Cable Operator may disclose Personally
Identifiable Information pursuant to a subpoena, court order, warrant or other valid legal process
authorizing such disclosure.
4. Access to Information. Any Personally Identifiable Information collected and maintained by a Cable
Operator shall be made available for Customer examination within thirty (30) days of receiving a
request by a Customer to examine such information about himself or herself at the local offices of the
Cable Operator or other convenient place within the Town designated by the Cable Operator, or
electronically, such as over a website. Upon a reasonable showing by the Customer that such Personally
Identifiable Information is inaccurate, a Cable Operator shall correct such information.
5. Privacv Notice to Customers
a. A Cable Operator shall annually mail or provide a separate, written or electronic copy of the
privacy statement to Customers consistent with 47 U.S.C. Section 551(a)(1), and shall provide a
Customer a copy of such statement at the time the Cable Operator enters into an agreement with the
Customer to provide Cable Service. The written notice shall be in a clear and conspicuous format, which
at a minimum, shall be in a comparable font size to other general information provided to Customers
about their account as it appears on either paper or electronic Customer communications.
b. In or accompanying the statement required by subsection F.5.a, a Cable Operator shall state
substantially the following message regarding the disclosure of Customer information: "Unless a
Customer affirmatively consents electronically or in writing to the disclosure of personally identifiable
information, any disclosure of personally identifiable information for purposes other than to the extent
necessary to render, or conduct a legitimate business activity related to, a Cable Service or Other
Service, is limited to:
i. Disclosure pursuant to valid legal process authorized by applicable law.
ii. Disclosure of the name and address of a Customer subscribing to any general
programming tiers of service and other categories of Cable Services provided by the Cable
Operator that do not directly or indirectly disclose: (A) A Customer's extent of viewing of a
Cable Service or Other Service provided by the Cable Operator; (B) The extent of any other use
by a Customer of a Cable Service; (C) The nature of any transactions made by a Customer over
the Cable System; or (D) The nature of programming or websites that a Customer subscribes to
or views (i.e., a Cable Operator may only disclose the fact that a person subscribes to a general
tier of service, or a package of channels with the same type of programming), provided that with
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respect to the nature of websites subscribed to or viewed, these are limited to websites accessed
by a Customer in connection with programming available from their account for Cable
Services."
The notice shall also inform the Customers of their right to prohibit the disclosure of their names and
addresses in accordance with subsection F.3.a. If a Customer exercises his or her right to prohibit the
disclosure of name and address as provided in subsection F.3.a or this subsection, such prohibition
against disclosure shall remain in effect, unless and until the Customer subsequently changes their
disclosure preferences as described in subsection F.9 below.
6. Privacy Reporting Requirements. The Cable Operator shall include in its regular periodic reports to
the Franchising Authority required by its Franchise Agreement information summarizing:
a. The type of Personally Identifiable Information that was actually collected or disclosed by
Cable Operator during the reporting period;
b. For each type of Personally Identifiable Information collected or disclosed, a statement from
an authorized representative of the Cable Operator certifying that the Personally Identifiable Information
collected or disclosed was: (A) collected or disclosed to the extent Necessary to render, or conduct a
legitimate business activity related to, a Cable Service or Other Service provided by the Cable Operator;
B) used to the extent Necessary to detect unauthorized reception of cable communications: (C)
disclosed pursuant to valid legal process authorized by applicable law; or (D) a disclosure of Personally
Identifiable Information of particular subscribers, but only to the extent affirmatively consented to by
such subscribers in writing or electronically, or as otherwise authorized by applicable law.
c. The standard industrial classification (SIC) codes or comparable identifiers pertaining to any
entities to whom such Personally Identifiable Information was disclosed, except that a Cable Operator
need not provide the name of any court or governmental entity to which such disclosure was made
pursuant to valid legal process authorized by applicable law;
d. The general measures that have been taken to prevent the unauthorized access to Personally
Identifiable Information by a person other than the Customer or the Cable Operator. A Cable Operator
shall meet with Franchising Authority if requested to discuss technology used to prohibit unauthorized
access to Personally Identifiable Information by any means.
7. Nothing in this subsection III.F shall be construed to prevent the Franchising Authority from
obtaining Personally Identifiable Information to the extent not prohibited by Section 631 of the
Communications Act, 47 U.S.C. Section 551 and applicable laws.
8. Destruction of Personally Identifiable Information. A Cable Operator shall destroy any Personally
Identifiable Information if the information is no longer necessary for the purpose for which it was
collected and there are no pending requests or orders for access to such information under subsection 4
of this subsection III.F, pursuant to a court order or other valid legal process, or pursuant to applicable
law.
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9. Notice and Choice for Customers. The Cable Operator shall at all times make available to Customers
one or more methods for Customers to use to prohibit or limit disclosures, or permit or release
disclosures, as provided for in this subsection III.F. These methods may include, for example, online
website "preference center" features, automated toll-free telephone systems, live toll-free telephone
interactions with customer service agents, in-person interactions with customer service personnel,
regular mail methods such as a postage paid, self-addressed post card, an insert included with the
Customer's monthly bill for Cable Service, the privacy notice specified in subsection III.F.5, or such
other comparable methods as may be provided by the Cable Operator. Website "preference center"
features shall be easily identifiable and navigable by Customers, and shall be in a comparable size font
as other billing information provided to Customers on a Cable Operator's website. A Customer who
provides the Cable Operator with permission to disclose Personally Identifiable Information through any
of the methods offered by a Cable Operator shall be provided follow-up notice, no less than annually, of
the Customer's right to prohibit these disclosures and the options for the Customer to express his or her
preference regarding disclosures. Such notice shall, at a minimum, be provided by an insert in the Cable
Operator's bill (or other direct mail piece) to the Customer or a notice or message printed on the Cable
Operator's bill to the Customer, and on the Cable Operator's website when a Customer logs in to view
his or her Cable Service account options. The form of such notice shall also be provided on an annual
basis to the Franchising Authority. These methods of notification to Customers may also include other
comparable methods as submitted by the Cable Operator and approved by the Franchising Authority in
its reasonable discretion.
G. Safety
A Cable Operator shall install and locate its facilities, cable system, and equipment in compliance with
all federal, state, local, and company safety standards, and in such manner as shall not unduly interfere
with or endanger persons or property. Whenever a Cable Operator receives notice that an unsafe
condition exists with respect to its equipment, the Cable Operator shall investigate such condition
immediately, and shall take such measures as are necessary to remove or eliminate any unsafe condition.
H. Cancellation of New Services
In the event that a new customer requests installation of Cable Service and is unsatisfied with their
initial Cable Service, and provided that the customer so notifies the Cable Operator of their
dissatisfaction within 30 days of initial installation, then such customer can request disconnection of
Cable Service within 30 days of initial installation, and the Cable Operator shall provide a credit to the
customer's account consistent with this Section. The customer will be required to return all equipment
in good working order; provided such equipment is returned in such order, then the Cable Operator shall
refund the monthly recurring fee for the new customer's first 30 days of Cable Service and any charges
paid for installation. This provision does not apply to existing customers who request upgrades to their
Cable Service, to discretionary Cable Service such as PPV or movies purchased and viewed On
Demand, or to customer moves and/or transfers of Cable Service. The service credit shall be provided
in the next billing cycle.
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IV. COMPLAINT PROCEDURE
A. Complaints to a Cable Operator
1. A Cable Operator shall establish written procedures for receiving, acting upon, and resolving
customer complaints, and crediting customer accounts and shall have such procedures printed and
disseminated at the Cable Operator's sole expense, consistent with Section III.E. Le of these Standards.
2. Said written procedures shall prescribe a simple manner in which any customer may submit a
complaint by telephone or in writing to a Cable Operator that it has violated any provision of these
Customer Service Standards, any terms or conditions of the customer's contract with the Cable Operator,
or reasonable business practices. If a representative of the Franchising Authority notifies the Cable
Operator of a customer complaint that has not previously been made by the customer to the Cable
Operator, the complaint shall be deemed to have been made by the customer as of the date of the
Franchising Authority's notice to the Cable Operator.
3. At the conclusion of the Cable Operator's investigation of a customer complaint, but in no more than
ten (10) calendar days after receiving the complaint, the Cable Operator shall notify the customer of the
results of its investigation and its proposed action or credit.
4. A Cable Operator shall also notify the customer of the customer's right to file a complaint with the
Franchising Authority in the event the customer is dissatisfied with the Cable Operator's decision, and
shall thoroughly explain the necessary procedures for filing such complaint with the Franchising
Authority.
5. A Cable Operator shall immediately report all customer Escalated complaints that it does not find
valid to the Franchising Authority.
6. A Cable Operator's complaint procedures shall be filed with the Franchising Authority prior to
implementation.
B. Complaints to the Franchising Authority
1. Any customer who is dissatisfied with any proposed decision of the Cable Operator or who has not
received a decision within the time period set forth below shall be entitled to have the complaint
reviewed by the Franchising Authority.
2. The customer may initiate the review either by calling the Franchising Authority or by filing a written
complaint together with the Cable Operator's written decision, if any, with the Franchising Authority.
3. The customer shall make such filing and notification within twenty (20) days of receipt of the Cable
Operator's decision or, if no decision has been provided, within thirty (30) days after filing the original
complaint with the Cable Operator.
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EXHIBIT A: CUSTOMER SERVICE STANDARDS
4. If the Franchising Authority decides that further evidence is warranted, the Franchising Authority
shall require the Cable Operator and the customer to submit, within ten (10) days of notice thereof, a
written statement of the facts and arguments in support of their respective positions.
5. The Cable Operator and the customer shall produce any additional evidence, including any reports
from the Cable Operator, which the Franchising Authority may deem necessary to an understanding and
determination of the complaint.
6. The Franchising Authority shall issue a determination within fifteen (15) days of receiving the
customer complaint, or after examining the materials submitted, setting forth its basis for the
determination.
7. The Franchising Authority may extend these time limits for reasonable cause and may intercede and
attempt to negotiate an informal resolution.
C. Security Fund or Letter of Credit
A Cable operator shall comply with any Franchise Agreement regarding Letters of Credit. If a
Franchise Agreement is silent on Letter of Credit the following shall apply:
1. Within thirty (30) days of the written notification to a Cable Operator by the Franchising Authority
that an alleged Franchise violation exists, a Cable Operator shall deposit with an escrow agent approved
by the Franchising Authority fifty thousand dollars ($50,000) or, in the sole discretion of the Franchising
Authority, such lesser amount as the Franchising Authority deems reasonable to protect subscribers
within its jurisdiction. Alternatively, at the Cable Operator's discretion, it may provide to the
Franchising Authority an irrevocable letter of credit in the same amount.
The escrowed funds or letter of credit shall constitute the "Security Fund" for ensuring
compliance with these Standards for the benefit of the Franchising Authority. The escrowed funds or
letter of credit shall be maintained by a Cable Operator at the amount initially required, even if amounts
are withdrawn pursuant to any provision of these Standards, until any claims related to the alleged
Franchise violation(s) are paid in full.
2. The Franchising Authority may require the Cable Operator to increase the amount of the Security
Fund, if it finds that new risk factors exist which necessitate such an increase.
3. The Security Fund shall serve as security for the payment of any penalties, fees, charges or credits as
provided for herein and for the performance by a Cable Operator of all its obligations under these
Customer Service Standards.
4. The rights reserved to the Franchising Authority with respect to the Security Fund are in addition to
all other rights of the Franchising Authority, whether reserved by any applicable franchise agreement or
authorized by law, and no action, proceeding or exercise of a right with respect to same shall in any way
affect, or diminish, any other right the Franchising Authority may otherwise have.
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EXHIBIT A: CUSTOMER SERVICE STANDARDS
D. Verification of Compliance
A Cable Operator shall establish its compliance with any or all of the standards required through annual
reports that demonstrate said compliance, or as requested by the Franchising Authority.
E. Procedure for Remedying Violations
1. If the Franchising Authority has reason to believe that a Cable Operator has failed to comply with any
of these Standards, or has failed to perform in a timely manner, the Franchising Authority may pursue
the procedures in its Franchise Agreement to address violations of these Standards in a like manner as
other franchise violations are considered.
2. Following the procedures set forth in any Franchise Agreement governing the manner to address
alleged Franchise violations, if the Franchising Authority determines in its sole discretion that the
noncompliance has been substantiated, in addition to any remedies that may be provided in the
Franchise Agreement, the Franchising Authority may:
a. Impose assessments of up to one thousand dollars ($1,000.00) per day, to be withdrawn from
the Security Fund in addition to any franchise fee until the non-compliance is remedied; and/or
b. Order such rebates and credits to affected customers as in its sole discretion it deems
reasonable and appropriate for degraded or unsatisfactory services that constituted noncompliance with
these Standards; and/or
c. Reverse any decision of the Cable Operator in the matter and/or
d. Grant a specific solution as determined by the Franchising Authority; and/or
e. Except for in emergency situations, withhold licenses and permits for work by the Cable
Operator or. its subcontractors in accordance with applicable law.
V. MISCELLANEOUS
A. Severability
Should any section, subsection, paragraph, term, or provision of these Standards be determined
to be illegal, invalid, or unconstitutional by any court or agency of competent jurisdiction with regard
thereto, such determination shall have no effect on the validity of any other section, subsection,
paragraph, term, or provision of these Standards, each of the latter of which shall remain in full force
and effect.
B. Non -Waiver
Failure to enforce any provision of these Standards shall not operate as a waiver of the
obligations or responsibilities of a Cable Operator under said provision, or any other provision of these
Standards. Revised 6/18/13.
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