RENEWAL OF FRANCHISE
BETWEEN THE TOWN OF ATKINSON
AND
ADELPHIA CABLEVISION CORP.
d/b/a
ADELPHIA CABLE COMMUNICATIONS
TABLE OF CONTENTS
* * *(d) Affiliate or Affiliated Person
* * * * *(i) Cable Television System or Cable System
* * * * * * * *(q) Franchise or Franchise Agreement
*(r) Franchisor or Franchising Authority
* * *(u) Institutional Network or I-NET
*(v) Leased Channel or Leased Access
* * * * * * * * * * * * * * * * * * *
SECTION 2.1 - GRANT OF FRANCHISE *
SECTION 2.2 - TERM: NON-EXCLUSIVITY [SEE RSA 53-C:3-b] *
SECTION 2.3 - RENEWAL OF FRANCHISE *
SECTION 2.5 - TRANSFER OR ASSIGNMENT *
SECTION 2.6 - EQUAL PROTECTION PROVISION [See RSA 53-C:3-b] *
SYSTEM SPECIFICATIONS AND CONSTRUCTION *
SECTION 3.1 - SERVICE AREA; LINE EXTENSIONS *
SECTION 3.2 - SUBSCRIBER CONNECTION *
SECTION 3.3 - RESIDENTIAL SYSTEM *
SECTION 3.4 - FUTURE TECHNOLOGY *
SECTION 3.5 - INSTITUTIONAL NETWORK/DARK FIBER LEASE *
SECTION 3.6 - PARENTAL CONTROL CAPABILITY *
SECTION 3.7 - ACCESS PROGRAMMING *
SECTION 3.8 - EMERGENCY OVERRIDE *
SECTION 3.9 - DELIVERY OF SIGNALS *
SECTION 3.10 - LEASED ACCESS CHANNELS *
SECTION 3.11 - GOVERNMENTAL CABLE DROP TO RESIDENTIAL NETWORK *
TECHNOLOGICAL AND SAFETY STANDARDS *
SECTION 4.1 - SYSTEM MAINTENANCE *
SECTION 4.2 - REPAIRS AND RESTORATION *
SECTION 4.3 - CABLE LOCATION *
SECTION 4.6 - BUILDING MOVES *
CUSTOMER SERVICE, MARKETING OF SERVICES AND CONSUMER
PROTECTION *SECTION 5.1 - CUSTOMER SERVICE *
SECTION 5.2 - TERMINATION OF SERVICE *
SECTION 5.3 - SERVICE INTERRUPTIONS *
SECTION 5.4 - IDENTIFICATION *
SECTION 5.5 - SUBSCRIBER ANTENNAE *
SECTION 5.6 - SUBSCRIBER PRIVACY AND RIGHTS TO INFORMATION *
SECTION 7.1 - INDEMNIFICATION *
SECTION 7.3 - ANNUAL REPORTING BY FRANCHISEE *
SECTION 7.4 - PERFORMANCE BOND *
SECTION 7.5 - NOTICE OF OPPORTUNITY TO CURE *
SECTION 7.6 - REVOCATION OF FRANCHISE; DEFAULT *
SECTION 7.7 - REMOVAL OF SYSTEM *
SECTION 8.4 - AMENDMENT OR MODIFICATION *
Exhibit A – Price Schedule
Exhibit B – Service Cost Allocation Schedule
Exhibit C – Origination Sites
Exhibit D – Governmental Service Drops
Exhibit E – Year End Report
RENEWAL OF FRANCHISE
BETWEEN THE TOWN OF ATKINSON
AND
ADELPHIA CABLEVISION CORP.
WHEREAS, Adelphia Cablevision Corp., d/b/a Adelphia Cable Communications (hereinafter "Adelphia" or "Franchisee") is the duly authorized holder of a Franchise to operate a cable communications system in the Town of Atkinson (hereinafter "Town"), said Franchise having originally commenced on 27 May 1983; and
WHEREAS, Adelphia filed a request for a renewal of its Franchise and a renewal proposal in conformity with the Cable Communications Policy Act of 1984, as amended (the "Cable Act"); and
WHEREAS, there has been an opportunity for public comment, as described by Section 626(h) of the Cable Act; and
WHEREAS, the Board of Selectmen, as the Franchising Authority, finds that the renewal of Adelphia’s Franchise is appropriate in light of its past performance, compliance with the terms of its existing Franchise, and based on the Board’s finding that the terms contained in Adelphia’s request for Franchise renewal meet the future cable-related needs of the Town of Atkinson; and
WHEREAS, the Board of Selectmen have determined that the services and programming of such a Franchise can contribute significantly to the communications needs and interests of the Town and its residents and institutions;
NOW THEREFORE, after due and full consideration, the Board of Selectmen ("Franchising Authority") and Adelphia agree that this Franchise is issued upon the following terms and conditions:
ARTICLE I
DEFINITIONS
SECTION 1.1 - DEFINITIONS
The following terms used in this Franchise shall have the following meanings:
(a) Access Channel: One or more channels which the Franchisee shall make available to the Town without charge for the purpose of transmitting non-commercial public, governmental and educational programming.
(b) Access Programming: (i) "Educational": Non-commercial local programming produced by Town Public Schools, or other educational organizations as designated by the Franchising Authority and other non-commercial educational programming offered by them which is not ordinarily offered by operators of cable television systems; (ii) "Governmental": Non-commercial local programming produced by Town departments or agencies and other non-commercial programming offered by them or a duly authorized designee which is not ordinarily offered by operators of cable television systems; (iii) "Public": Non-commercial programming produced by the Town, or produced by an access corporation or nonprofit corporation operating within the Town and other non-commercial programming not ordinarily offered by operators of cable television systems.
(c) Addressable Technology: The capability of a Cable System to electronically add, change or delete certain programming or services from a remote location.
(d) Affiliate or Affiliated Person: Any person who or which directly or indirectly controls and owns an interest in the Franchisee; any person which the Franchisee directly or indirectly controls and in which the Franchisee owns an interest; and any person directly or indirectly subject to control and owned in whole or in part by a person who or which directly or indirectly controls and owns an interest in the Franchisee.
(e) Basic Service: That service tier which includes at a minimum the retransmission of local television broadcast signals, public, educational and governmental access channels and other signals as defined by the FCC and services required by the Cable Act.
(f) Broadcast: Over-the-air transmission by a radio or television station.
(g) Cable Act: Cable Communications Policy Act of 1984, Public Law No. 98-549, 98 Stat. 2779 (1984), 47 U.S.C. 521 et seq., amending the Communications Act of 1934, as further amended by the 1992 Cable Consumer Protection and Competition Act, Public Law No. 102-385 and the Telecommunications Act of 1996, Public Law No. 104-104, Section 101(a), 110 Stat. 56 (1996); 47 U.S.C. '253 et. seq. (1996).
(h) Cable Service: The one way transmission to Subscribers of video programming, or other programming service and Subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service and as otherwise defined by the Cable Act.
(i) Cable Television System or Cable System: A facility consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide cable service which includes video programming and which is provided to multiple subscribers within a community, but such term does not include:
1. A facility that services only to retransmit the television signals of one or more television broadcast stations;
2. A facility that services Subscribers without using any public right-of-way;
3. A facility of a common carrier which is subject, in whole or in part to the provisions of Title II of the Communications Act of 1934, as amended, except that such facility shall be considered a cable system to the extent such facility is used in the transmission of video programming directly to Subscribers, unless the extent of such use is solely to provide interactive on demand services;
4. An open video system that complies with Section 653 of the Communications Act; or
5. Any facilities of any electric utility used solely for operating its electric utility systems.
(j) Channel: A frequency or set of frequencies with sufficient capacity to carry either one standard video signal or a number of audio, digital or other non-video signals.
(k) Converter: An electronic device which converts signals to a frequency not susceptible to interference within the television receiver of a Subscriber and any channel selector which permits a Subscriber to view all signals delivered at designated converter dial locations at the set or by remote control.
(l) Drop: The coaxial cable that connects a home or building to the cable distribution plant.
(m) Effective Date: The date of acceptance by Franchisee.
(n) FCC: Federal Communications Commission.
(o) Feeder Cable: The cable, connected to the trunk cable, from which cable service is distributed to multiple Subscribers, as distinguished from trunk cable (which distributes cable service throughout the franchise area).
(p) Franchisee: Adelphia Cablevision Corp., d/b/a Adelphia Cable Communications ("Adelphia").
(q) Franchise or Franchise Agreement: The Franchise granted herein.
(r) Franchisor or Franchising Authority: The Town of Atkinson, New Hampshire, or its designee, in accordance with applicable federal and state law.
(s) Franchise Fee: The payments to be made to the Franchise Authority or other governmental entity as consideration for the renewal franchise granted herein which shall have the meaning set forth in Section 622 (g) of the Cable Act. The Franchise Fee shall not include capital costs incurred by the cable operator pursuant to the terms of this agreement for public, educational or governmental access facilities or I-NET. In addition, the Franchise Fee shall not include any fee imposed under Title 17, United States Code or any charge incidental to the awarding or enforcing or renewal of the franchise, including payments for bonds, security funds, letters of credit, insurance, indemnification penalties or liquidated damages.
(t) Gross Revenues: Any and all compensation received by the Franchisee which is the result of the provision of Cable Television Service on the Cable System including, but not limited to, all monthly service fees including premium services, all commercial Subscriber revenues, all other service fees including pay-per-view services and others sold on a per-channel basis; installation, reconnection, downgrade, upgrade and any similar fees; franchise fees, advertising fees less agency fees, revenues received by the Franchisee which are derived from home shopping broadcasting; and revenues received from the provision of cable modem service only when a court of competent jurisdiction or a regulatory body of appropriate jurisdiction rules that such service is deemed to constitute a cable service, and converter and remote control rentals, leases or sales. Items to be deducted in computing gross revenues include uncollected bad debt, deposits, refunds, taxes and other fees in accordance with Federal Law and FCC regulations.
(u) Institutional Network or I-NET: A cable network which provides for two way transmission between and among certain designated points within the Town, as part of or connected to the Residential System but not provided to residential Subscribers.
(v) Leased Channel or Leased Access: A channel which the Franchisee shall make available pursuant to Section 612 of the Cable Act.
(w) Other Definitions: Any term defined in FCC rules and/or regulations, or by Federal Law, as of the effective date of this Franchise Renewal, but not included in the foregoing definitions. Other Definitions shall be incorporated herein by reference as is set forth in full and shall be defined as appears in such rules and/or regulations.
(x) Outlet: An interior receptacle that connects a television set to the Cable System.
(y) Pay Cable or Pay Cable Services: Programming delivered for a fee or charge to Subscribers on a per channel basis, in addition to the fee or charge for the basic service.
(z) Pay-per-view: Programming delivered for a fee or charge to Subscribers on a per program basis, in addition to the charge or fee to Subscribers for basic service.
(aa) Person: Any corporation, partnership, limited partnership, association, trust, organization, other business entity, individual or group of individuals acting in concert.
(bb) Private Roads: Private rights-of-way or non-public roadways not classified as highways by Chapter 231 of the Revised Statutes Annotated of New Hampshire which provide access to two or more free-standing, non-connected residential buildings as residential buildings.
(cc) Programming: Any video, audio, text, data or other signal carried over the Cable System.
(dd) Public Way: The surface of, and the space above and below, any public street, highway, freeway, bridge, land path, alley, court, boulevard, sidewalk, parkway, way, lane, public way, drive, circle, or other public right of way, including, but not limited to public utility easements (except those owned by the Town) dedicated utility strips or rights of way dedicated for compatible uses and any temporary or permanent fixtures or improvements located thereon now or thereafter held by the Franchising Authority and the Franchisee for the purpose of installing, operating, repairing and maintaining the cable system. Public Way shall also mean any easement now or hereafter held by the Franchising Authority within the service area for the purpose of public travel, or for compatible uses, and shall include other easements or rights of way and shall, within their proper use and meaning, entitle the Franchising Authority and the Franchisee to the use thereof for the purpose of the installing and transmitting of Franchisee's cable services or other services over poles, wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, compliances, attachments and other property as may be ordinarily necessary and pertinent to the cable system.
(ee) Residential System: The trunk and feeder signal distribution network with bi-directional capability to be operated by the Franchisee over which video, audio, text and data signals can be transmitted to Subscribers, as is described in Section 3.3.
(ff) Scrambling: The electronic distortion of a signal in order to render it unintelligible or unreceivable without the use of a converter or other decoding device.
(gg) Service Interruption: The loss of any signal, video picture or sound on one or more channels carried over the Cable System for distribution to a Subscriber.
(hh) Service Tier: A category of cable service or other services provided by a cable operator for which a separate rate is charged, as may be described and regulated by federal law.
(ii) Signal: Any transmission of electromagnetic or optical energy which carries information from one location to another.
(jj) Standard Service Package: A combination of cable service tiers, consisting of the Basic Broadcast tier and Cable Programming Service tiers, as provided by the Franchisee as of the Effective Date and including any individual broadcast channels or cable networks added to these tiers as a result of the reconstruction of the Cable Communications System.
(kk) Street: The surface of and the space above and below any public street, road, highway, freeway, lane, path, public way, alley, court, sidewalk, boulevard, parkway, drive on any easement or right-of-way now or hereafter held by Town, and dedicated for use by the Town, use by the general public, or use compatible with the Cable System operations.
(ll) Subscriber: A person, firm, company, municipality, corporation or association lawfully receiving either basic cable services or additional services from the Franchisee under the schedule of charges filed with the Town.
(mm) Town: The Town of Atkinson, New Hampshire.
(nn) Transfer: The disposal by the Franchisee by assignment, sale, merger, consolidation or otherwise of the ownership or control of the cable system or the renewal franchise granted herein to a person or a group of persons acting in concert, as described in Section 2.5.
ARTICLE 2
GRANT OF FRANCHISE
SECTION 2.1 - GRANT OF FRANCHISE
Pursuant to the authority of the Cable Act and RSA 53-C of the laws of New Hampshire, as amended from time to time, the Board of Selectmen, acting as the Franchising Authority, hereby grants a non-exclusive Franchise to the Franchisee, authorizing and permitting said Franchisee to construct, upgrade, operate and maintain a Cable System within the municipal limits of the Town of Atkinson.
The Franchise is granted under and in compliance with and subject to the Cable Act and RSA 53-C of the laws of New Hampshire, and in compliance with all rules and regulations of the FCC and all other applicable rules and regulations in force and effect during the period for which this Franchise Agreement is granted. The Franchising Authority specifically reserves all authority granted it under RSA 231:160 et. seq. to manage, regulate and control the public right-of-way, as such authority relates to the provision of telecommunications services.
Subject to the terms and conditions herein, the Franchising Authority hereby grants to the Franchisee the right to construct, operate and maintain the Cable System, which may include poles, wires, optical fibers, amplifiers and other property and equipment as are necessary in, under, over, along, across and upon the public streets, lanes, avenues, alleys, sidewalks, bridges, highways and other public places and property under the jurisdiction of the Town including other property over which the Town has a sufficient compatible easement or right-of-way, for the purpose of reception, transmission, amplification, origination, distribution or redistribution of video, audio, text, data or other signals in accordance with the laws of the United States of America and the State of New Hampshire and Town of Atkinson.
SECTION 2.2 - TERM: NON-EXCLUSIVITY [SEE RSA 53-C:3-b]
(a) The term of this non-exclusive Franchise Agreement shall be for a period of ten (10) years and shall commence on ____________, the Effective Date as defined herein in Section 1.1 (m), following the expiration of the current franchise, and shall terminate at midnight on _____________. The term of this Franchise Agreement is subject to Section 7.6 of this Franchise and to compliance with the terms of the Franchise by Franchisee. In addition the term is subject to all provisions of New Hampshire law and applicable federal law, as such laws may be from time to time amended, and is subject further to the performance by Franchisee of all terms and conditions set forth herein.
(b) The right to use and occupy the streets, public ways and public places shall not be exclusive, and the Town reserves the right to grant similar or other uses of the said streets, public ways and public places to any persons for a similar Cable System or otherwise at any time during the term of the Franchise Agreement. The Franchisee hereby acknowledges the Town's right to make such grants and permit such uses.
SECTION 2.3 - RENEWAL OF FRANCHISE
The renewal of this Franchise shall be governed by applicable federal law and regulations promulgated thereunder and by applicable New Hampshire law.
SECTION 2.4 - FRANCHISE FEE
(a) Franchisee shall pay to the Town as a Franchise Fee a sum equal to five percent (5%) of the Franchisee's Gross Revenues, as defined herein, derived during each year of the Franchise. Said payment shall not include any PEG facilities capital grants or payment of any damages. Said payment shall be paid semi-annually on or before 31 March and 30 September each year. Each payment shall be accompanied by a statement prepared by a financial representative of Franchisee documenting the factual basis for payment in reasonable detail, including a break-down by category and source of Franchisee’s Gross Revenues upon which such payment is based.
(b) In the event that the payment(s) required herein are not tendered on or before the dates fixed herein, interest due on such payment(s) shall accrue from the date notice is received by Franchisee at the rate of two percent (2%) above the Prime Rate.
(c) Within one hundred twenty (120) days of the payment of the Franchise Fee described above, the Town may, as needed to verify the appropriateness of such payment, request and the Franchisee shall make available its financial records and books insofar as they apply to the calculation of Gross Revenues and the Franchise Fee, and the Town may subject said records and books to an independent audit at the Town's expense so as to verify the amount due to the Town for Franchise Fees. At any other time during the life of this Franchise, the Town may, as needed to verify the information provided hereunder, upon reasonable belief and after notice and an opportunity by the Franchisee to be heard, inspect and subject to independent audit at Town's expense, the financial records and books of Franchisee insofar as they apply to the calculation of Gross Revenues and Franchise Fees paid to the Town. If, after audit and recomputation, an additional payment is owed, such payment shall be paid within thirty (30) days after notice of deficiency. If such audit indicates a franchise fee underpayment of 5% or more, on an annual basis, Franchisee will assume all reasonable costs of such an audit. The interest on such additional payment shall be charged from the date notice is received by Franchisee at the Prime Rate during the period that such additional amount is owed.
(d) No acceptance of any payment shall be construed as an accord that the payment is, in fact, the correct amount, nor shall such acceptance of payment be construed as a release of (i) any claim the Town may have for further or additional sums, including interest, payable under provisions of this Franchise or (ii) any other claim whatsoever, provided, however, that if the Town knows or reasonably should have known that a payment is incorrect, it must challenge such payment within three (3) years of such event.
(e) Franchisee will not be required to supply information that it deems to be confidential or proprietary unless such information is necessary to verify compliance with a material provision of the franchise. In that case, Franchisee will make those records available for review by the Town after the Town has executed an agreement to keep information confidential.
SECTION 2.5 - TRANSFER OR ASSIGNMENT
(a) This Franchise or any part of this Franchise shall not be transferred or assigned in part or as a whole, in any manner, whether by assignment, trust, lease, sublease, pledge or other hypothecation, without the prior written consent of the Franchising Authority, which consent shall not be arbitrarily or unreasonably withheld or delayed, and under such lawful conditions as the Franchising Authority may prescribe and which shall be governed by applicable provisions of the Cable Act.
(b) For purposes of this Section, a transfer or assignment of this Franchise or control thereof between commonly controlled entities, between affiliated companies or between parent and subsidiary corporations shall not constitute a transfer or assignment. Control shall mean majority (over 50%) voting control of the Franchisee. An affiliated company is one that directly or indirectly, or through one or more intermediaries, controls, is controlled by, or is under common control with another person or entity. For purposes of this Section, "transfer" shall include, but not be limited to, (i) sale, lease or assignment of this Franchise pursuant to a pending bankruptcy or receivership proceeding to an entity not under common "control" with Adelphia, as that term is defined herein, (ii) sale, lease or assignment of this Franchise after the Franchisee emerges from bankruptcy proceedings to an entity not under common "control" with Adelphia, as that term is defined herein.
(c) If there shall be filed against Franchisee in any Court, pursuant to any statute either of the United States or of any State, a Petition at Bankruptcy or insolvency or for reorganization or for the appointment of the receiver or trustee of all or a portion of Franchisee's property, and if, within one hundred twenty (120) days thereof, Franchisee fails to secure a discharge or dismissal thereof, or Franchisee shall voluntarily file any such petition or make an assignment for the benefit of creditors, Franchisee shall notify Town of such fact within five (5) business days of its occurrence. Any subsequent sale of the Cable System, or any part thereof, or cable property or facilities, or the Franchise shall be treated as a transfer or assignment and the provisions of this section requiring approval of the Town shall apply. The term "bankruptcy" as used herein shall include an assignment for the benefit of creditors.
(d) In reviewing any request to transfer or assign control or ownership, the Town shall analyze such factors as whether the transferee has the appropriate technical, legal and financial capacity to operate the Cable System in accordance with the Cable Act.
(e) The parties agree that the Town, in consenting to any transfer, does not waive its right to pursue Franchisee for violation of provisions of this contract. All terms of this Agreement shall be binding on transferees except as otherwise agreed to. The Town, as part of its review process, may impose reasonable conditions on the Transferee before granting consent, provided such conditions are consistent with then existing federal law.
SECTION 2.6 - EQUAL PROTECTION PROVISION [See RSA 53-C:3-b]
(a) In the event the Franchising Authority grants an additional cable franchise or franchises, such franchise(s) shall not contain terms and conditions which, viewing the franchise as a whole, violate the standards set forth in NH RSA 53-C:3-b.
(b) Any such additional franchise(s) shall be granted on the condition that such franchise(s) shall indemnify and hold harmless the Town and the Franchisee from and against all costs and expenses incurred in strengthening poles, rearranging attachments, placing underground facilities and all other costs (including those of the Town and Franchisee) incident to inspections, make-ready and construction of an additional cable system in the franchise area.
SECTION 2.7 - POLE ATTACHMENT RIGHTS
(a) Pursuant to RSA 231:161, permission is hereby granted to the Franchisee to attach or otherwise affix cables, wire, or optical fibers comprising the Cable System to the existing poles on public streets and ways, provided the Franchisee secures permission and consent of the public utility companies to affix the cables and/or wires to their pole facilities. Franchisee may erect its own poles and install its own conduit, with approval of the location of such installation by the Franchising Authority, which approval shall not be unreasonably withheld. The Franchising Authority grants Franchisee equal standing with the power and telephone utilities in the matter of placement of facilities on public ways subject to the ultimate authority of the Franchising Authority to determine the location of all installations. All poles and conduit installed within the service area, as defined herein at Section 3.1, shall be made available for attachment or use by Franchisee, at just and reasonable rates applied to public utilities under the formula presently established by 47 U.S.C., Section 224.
(b) In all areas of Town where public utility lines are aerially placed, if subsequently during the term of the Franchise all such utility lines required by local ordinance or State law to be relocated aerially or underground, Franchisee shall similarly relocate its Cable System. Any costs of relocating utility poles or trenching for the placement of underground conduits shall be equally shared by all affected companies.
SECTION 2.8 - POLICE AND REGULATORY POWERS
(a) Franchisee's rights are subject to the police powers of the Town to adopt and enforce general ordinances necessary for the safety and welfare of the public, provided that such ordinances are of general applicability and not specific to the Cable System, the Franchisee as a cable operator, or this Franchise including ordinances and regulations pertaining to management, control and regulation of public rights-of-way but only to the extent authorized or allowed by state law and federal law.
ARTICLE 3
SYSTEM SPECIFICATIONS AND CONSTRUCTION
SECTION 3.1 - SERVICE AREA; LINE EXTENSIONS
(a) Present Service Area: The Cable System shall pass all residential dwelling units in the Town, subject to Section 3.1(b) below, located on public ways in existence upon the Effective Date of the Franchise. Cable Service shall be provided to every existing dwelling unit requesting Cable Service and located on public streets and private roads within two hundred (200) feet of existing cable plant, provided Franchisee is able to obtain from property owners any necessary easements at no cost and/or any applicable permits.
(b) Future Service Area: The Franchisee shall provide for construction of all necessary line extensions for Cable Service to new dwelling units when the number of new dwelling units reaches the density requirements of 20 per mile of cable facilities. Homes currently using satellite technology shall be counted as 1/4 homes for this section. In areas with less than 20 dwelling units, Adelphia shall require payment as described in Exhibit B.
SECTION 3.2 - SUBSCRIBER CONNECTION
(a) The Franchisee shall, within fifteen (15) days of a written request by the occupant of a dwelling, connect the Cable System to a dwelling at standard installation charges if the dwelling is within two hundred (200) aerial feet of the nearest Feeder Cable and only if the dwelling is properly internally wired to meet the Franchisee's specifications to prevent signal leakage.
(b) Residences located over two hundred (200) aerial feet from Feeder Cable shall be charged an additional one time installation fee, at a reasonable cost of necessary labor and materials as mutually agreed.
(c) Franchisee shall complete construction of any such Subscriber connections within fifteen (15) days of either a written request for such connection by the occupant or owner of the dwelling or within fifteen (15) days of the date any necessary easements are obtained, whichever occurs later, taking into account and subject to weather, force majeure, performance of make ready, availability of construction crews and materials. If requested in writing by the Franchising Authority, Franchisee shall provide a written report to the Town completely explaining its failure to meet the time frame stated herein.
SECTION 3.3 - RESIDENTIAL SYSTEM
(a) Franchisee shall maintain the cable system at 860 MHz bandwidth. Such system shall be bidirectional, utilizing addressable technology and cable electronics capable of transmitting a minimum of 75 channels in the downstream direction and 4 channels in the upstream direction, as well as supporting advanced interactive digital services such as Internet access service.
(b) Within 6 months of the cable rebuild referenced in (a) above, Franchisee shall offer high speed, bi-directional, cable Internet Access Service on the Residential System.
(c) Franchisee shall conduct routine monitoring and testing of the system in compliance with FCC regulations. Test results shall be made available for review by the Franchising Authority upon request.
(d) The Cable System shall be designed and constructed so that television station broadcast signals received by the Franchisee in stereo can be received in stereo by Subscribers without the necessity of subscribing to any other cable system service, provided the Subscriber has video reception equipment capable of receiving stereo signals.
(e) When possible, Franchisee shall provide the Franchising Authority with thirty (30) days notice before making any deletions, additions, relocations to programming or stations or any other change to its channel offerings.
SECTION 3.4 - FUTURE TECHNOLOGY
Franchisee shall maintain a leadership position in providing cable service in the Town and provide the Town Cable Services offering the best available proven technology consistent with the terms of this Franchise Agreement and when technically and economically feasible in the sole discretion of Franchisee.
SECTION 3.5 - INSTITUTIONAL NETWORK/DARK FIBER LEASE
Franchisee agrees to provide a proposal for the construction and lease of a separate network of dark fiber for use by the Town as an Institutional Network. The terms for the Institutional Network Lease shall be the subject of a separate agreement.
SECTION 3.6 - PARENTAL CONTROL CAPABILITY
The Franchisee shall make available to any Subscriber, at their request, a parental control device which will permit the Subscriber at their option to control the reception or to eliminate comprehensive reception of any channels on the Cable System.
SECTION 3.7 - ACCESS PROGRAMMING
(a) Franchisee shall provide at a minimum two Access Channels. Franchisee will provide a third channel at such time as the Town is programming both of the first two Access Channels for at least eighteen (18) hours per day with seventy-five (75%) percent non-duplicated, non-character generated programming over an eight week period.
(b) If a PEG Access Channel location change is necessary, the Franchisee shall (i) notify the Atkinson Cable Advisory Board in writing of such change 90 days in advance subject to must carry and retransmission agreement restrictions; and (ii) assist the Atkinson Cable Advisory Board in advertising and promoting any new channel locations.
(c) Franchisee shall transfer to the Town ownership and maintenance responsibilities for the studio equipment except the modulator that was provided to Town during the current Franchise contract.
(d) To enable the transmission of live PEG Access Programming, origination sites shall be installed and maintained by the Franchisee, without charge to the Franchising Authority, at the sites listed in Exhibit C. During the life of the Franchise, the Town may designate up to three additional origination broadcast points to be created by Franchisee at the expense of the Town at cost of construction.
(e) In the event of an emergency situation, the Town will abide by all applicable federal and state laws in requesting Franchisee to cable cast information by character generation or otherwise.
(f) The Town acknowledges that, under FCC rules, certain external costs including the PEG Access costs described herein are eligible for "pass through" to subscribers as basic service rate increases and separate itemization on the bill.
(g) The Town agrees that it will not use its designated access channel(s), if any, the Institutional Network facilities, if any, or other designated Franchisee Subscriber network facilities to provide for-profit commercial services which compete with the Franchisee’s lines of business.
SECTION 3.8 - EMERGENCY OVERRIDE
The Cable System shall incorporate audio override capabilities for use in the event of an emergency consistent with FCC regulations and State regulations.
SECTION 3.9 - DELIVERY OF SIGNALS
The Franchisee will abide by the Consumer Electronics Equipment Compatibility provision of federal law (47 USCS '544a). After the completion of the system rebuild, which is to be no later than December 2003, Franchisee shall provide sixty (60) days notice to the Town, prior to activation, if Franchisee is unable to protect the distribution of its signal for the first and second service tiers (presently identified as Basic and Cable Plus) without scrambling. Franchisee shall take all commercially reasonable steps to protect the distribution of its analog signal for the first and second service tiers without scrambling. However, Franchisee retains all authority pursuant to federal law to scramble its signal if necessary. Converter boxes shall also be made available at the normal monthly charge for those who desire to augment reception with non-cable-ready TV sets and/or VCRs.
SECTION 3.10 - LEASED ACCESS CHANNELS
Franchisee shall make channel capacity available as required by the Cable Act.
SECTION 3.11 - GOVERNMENTAL CABLE DROP TO RESIDENTIAL NETWORK
Franchisee shall continue to provide, as directed by the Town (a) one cable drop connected to the Residential network, (b) one outlet, and (c) the existing level of service, without charge, to each primary and secondary public school and government administration building (Exhibit D) located in the Town. Upon request, Franchisee agrees to provide to the Town at prevailing rates said cable and/or equipment in order that the Town can install its own additional outlets.
In addition, Franchisee agrees to provide, at no charge, Internet Service with one high speed cable modem connection, when such service is available to Subscribers, to all public primary and secondary schools and public libraries in the Town.
All products and services provided by Franchisee pursuant to this Section shall be provided at no additional cost to the Town.
ARTICLE 4
TECHNOLOGICAL AND SAFETY STANDARDS
SECTION 4.1 - SYSTEM MAINTENANCE
(a) When installing, operating and maintaining equipment, cable and wires, the Franchisee shall avoid damage and injury to trees, structures and improvements in and along the routes authorized by the Franchising Authority except as may be approved by the Franchising Authority if required for the proper installation, operation and maintenance of such equipment, cable and wires.
(b) The construction, maintenance and operation of the Cable System for which this Franchise is granted shall be done in conformance with OSHA, the National Electrical Safety Code, rules and regulations of the FCC and applicable state and local laws and ordinances.
(c) The Cable System shall be constructed, operated and maintained so as to comply, at a minimum, with all FCC requirements as to signal quality and characteristic and so as to avoid interference with television reception, radio reception, telephone communications or other electronic installations in Town. Upon request by the Franchising Authority or its designee, Franchisee shall provide proof of compliance of FCC signal requirements. Corrective actions are to be taken within 30 days of discovery of non-compliant measurement.
(d) In addition, Franchisee shall make measurements of leakage in accordance with 76.609 of the FCC Rules. A report of these tests shall be provided by the Franchisee to the Franchising Authority upon request. Franchisee agrees to respond within 24 hours to any and all complaints of radio frequency interference alleged to be caused by the operation of its Cable System, and shall address such complaints at the Franchisee’s own expense and initiative. The Franchisee shall advise the Franchising Authority the next business day of its receipt of each complaint of alleged radio frequency interference to other radio or television users or services, along with a plan of action to resolve the complaint.
(e) Operations and maintenance personnel shall be thoroughly trained in the use of all safety equipment and the safe operation of vehicles and equipment. All areas of the Cable System shall be routinely inspected and maintained so that conditions that could develop into safety hazards for the public and/or operations and maintenance personnel can be corrected before they become a hazard. The Franchisee shall install and maintain its wire, cable, fixtures, and other equipment in such a manner as shall not interfere with any installations of the Town.
(f) All structures and all lines, equipment and connections in, over, under, and upon streets, sidewalks, alleys, and public streets and private roads and places of the Town, wherever situated or located, shall at all times be kept and maintained in a safe and suitable condition and in good order and repair.
(g) The signal of any television or radio station carried on the Cable System shall be carried without material degradation in quality at all Subscriber locations within the limits imposed by the technical specifications of the Cable System and as set forth by the FCC. The Cable System shall be operated and maintained so as to comply with the technical standards set forth in the FCC's rules and regulations as they apply to cable systems. The Franchisee shall monitor the PEG Access Channels for technical quality and shall ensure that they are maintained at standards commensurate with those which apply to the Cable System’s commercial channels; provided, however, that the Franchisee is not responsible for the technical quality of PEG Access Programming. Upon request, the Franchisee shall make available a copy of its most recent annual performance tests.
(h) The Town reserves the right to inspect all construction and installation work for compliance with applicable laws, codes, ordinances and regulations and with provisions of the Franchise, and the Town through its code enforcement office. All inspections shall be at the expense of the Town.
(i) All lines, cables and distribution structures and equipment, including poles and towers, erected by Franchisee within the Town shall be located so as not to obstruct or interfere with the proper use of Streets, as defined herein, and to cause minimum interference with the rights of property owners who abut any of the said streets, and not to interfere with existing public utility installations. Franchisee shall have no vested right in a location except as granted herein by the Franchise, and such construction shall be removed by Franchisee at its own cost and expense whenever the same restricts or obstructs or interferes with the operation or location of any future operation or location of said Streets, provided, however, that this standard shall apply to all persons or entities owning lines, cables, and distribution structures, and equipment and provided further that the Franchisee shall not be required to remove any such construction solely to accommodate needs of competing Cable Systems.
(j) Upon written notice from the Town, the Franchisee shall remedy a general deficiency with respect to the technical standards described herein within fourteen (14) days of receipt of notice and a safety deficiency within forty-eight (48) hours of receipt of notice and shall notify the Town when the deficiency has been corrected.
SECTION 4.2 - REPAIRS AND RESTORATION
(a) Franchisee shall promulgate and adhere to a preventive maintenance policy directed toward maximizing the reliability (mean-time-between-malfunctions) and maintainability (mean-time-repair) of the Cable System with respect to its delivery of service to Subscribers at or above the performance standard set by the FCC. Whenever it is necessary to interrupt service for the purpose of making repairs, adjustments, installation or other maintenance activities, Franchisee shall do so at such time as will cause the least inconvenience to Subscribers. Except in an emergency, and except for insignificant interruptions of thirty (30) minutes or less which may occur during the course of normal maintenance, service is to be interrupted only between the hours of midnight and 7:00 a.m., where practicable.
(b) Whenever the Franchisee takes up or disturbs any pavement, sidewalk or other improvement of any public streets or private roads or place, the same shall be replaced and the surface restored in as good condition as before entry as soon as practicable. In no event shall such restoration be made later than ten (10) business days, weather permitting and excepting events beyond the reasonable control of Franchisee, after Franchisee's receipt of written notification from the property owner so damaged unless otherwise agreed by Franchisee and the property owner. Upon failure of the Franchisee to comply within the time specified (unless the Franchising Authority sets an extended time period for such restoration and repairs) or if such damage presents an emergency situation presenting a threat to public safety, the Franchising Authority may cause proper restoration and repairs to be made and the reasonable expense of such work shall be paid by the Franchisee upon demand by the Franchising Authority.
(c) In addition, upon the failure, refusal or neglect of Franchisee to cause any work or other act required by law or by this Franchise to be properly completed in, on, over or under any Street within any time prescribed, the Franchising Authority may cause such work or other act to be performed or completed in whole or in part, and upon so doing shall submit to Franchisee an itemized statement of prevailing rates of the reasonable cost thereof. Franchisee shall, within thirty (30) days after receipt of such statement, pay to the Town the entire amount thereof. The Town, at its option, may draw upon the bond described herein to recover any cost incurred pursuant to this section, should Franchisee fail to pay such costs within ninety (90) days of receipt of the statement of those costs.
SECTION 4.3 - CABLE LOCATION
(a) In all areas of Town where the cable or wire facilities of all public utilities are installed underground, Franchisee shall install its cable system underground. Vaults and pedestals shall be suitably restored to a similar condition prior to underground work.
(b) Where public utility cable or wire facilities are above ground, Franchisee shall follow the then current pole placements in the Town.
(c) The Franchisee’s drops shall be located underground at the request of the property owner, provided the excess cost over aerial cost for such drops shall be borne by the property owner making the request. All Drops which are intended to be underground shall be buried within ten (10) days of placement, weather and ground conditions permitting.
(d) At such time the Franchising Authority requires all utilities to place facilities underground, Franchisee shall likewise place its Cable System underground without cost to the Town.
(e) The rights and privileges granted hereby shall not be in preference or hindrance to the right of Town, or other governmental agency, improvement district or other authority having jurisdiction, to perform or carry on any public works or public improvements, and should the Cable System in any way interfere with the construction, maintenance or repair of such public works or improvements, Franchisee shall, at its own expense, protect or relocate its system or part thereof, as directed by Town or other authority having jurisdiction.
SECTION 4.4 - TREE TRIMMING
The Franchisee shall have the authority to trim trees upon and overhanging Public Ways and places of the Town so as to prevent the branches of such trees from coming in contact with the wires, cables and equipment of the Franchisee, in accordance with applicable state law and any Town ordinances and regulations.
SECTION 4.5 - STRAND MAPS
Within sixty (60) days from a request in writing from the Franchise Authority, the Franchisee shall provide to the Town a complete set of strand maps of the service area, and on which will show the Franchisee's cable in those areas in which its facilities exist, the location of all streets and the locations of all residences. Upon reasonable request by the Franchise Authority, Franchisee shall provide updated maps.
SECTION 4.6 - BUILDING MOVES
In accordance with applicable laws, the Franchisee shall, upon the request of any person holding a building moving permit issued by the Town, temporarily raise or lower its wires to permit the moving of the building(s). The Franchisee shall be given not less than twenty-one (21) days advance notice to arrange for such temporary wire changes. The cost to raise or lower wires shall be borne exclusively by the person(s) holding the building move permit.
SECTION 4.7 - EMERGENCY POWER
The Cable System shall incorporate equipment capable of providing standby powering of the headend for a minimum of forty-eight (48) hours upon failure of the power furnished by the electric utility company unless for reasons of force majeure as defined in Section 8.2 hereof.
SECTION 4.8 - RESIDENTIAL EXTERIOR WIRING
Franchisee shall adhere to Subscriber's reasonable request for location of entry and shall in other respects observe standard specifications for Drop connections into the residence. Exterior wiring on a residence shall be installed as unobtrusively as possible.
ARTICLE 5
CUSTOMER SERVICE, MARKETING OF SERVICES
AND CONSUMER PROTECTION
SECTION 5.1 - CUSTOMER SERVICE
(a) Franchisee shall comply with the federal customer service standards as set forth by the FCC in accordance with the Cable Television Consumer Protection and Competition Act of 1992, as amended from time to time and as set forth in applicable New Hampshire statutes, this Franchise and local ordinances.
(b) At the time of initial subscription and annually thereafter, the Franchisee shall give each subscribing household a written notice, which shall include full disclosure of (i) products and services offered, (ii) prices and options for programming services and conditions of subscription to programming and other services, (iii) installation equipment and service maintenance charges and policies, (iv) instructions on use of the cable service(s) channel assignments of programming carried on the system; (v) instructions for cable converter boxes and the use of various cable services; (vi) billing and complaint procedures for reporting and resolving Subscriber complaints, including the address and telephone number of the local Franchising Authority; (vii) information regarding availability of parental control devices; and (viii) a list of monthly and non-recurring fees and charges.
(c) The Franchisee shall make all reasonable efforts to respond to all service calls within twenty-four (24) hours and correct malfunctions as promptly as possible. A serious system malfunction will be serviced as soon as possible after its discovery. Upon request, Franchisee will provide a written monthly summary to the Franchising Authority of steps taken to correct complaints regarding degraded picture quality.
(d) Except as limited by federal law or FCC regulations concerning privacy, Franchisee shall maintain a record of all such complaints and such records shall be available at Franchisee's local offices for at least two years. The Town may, from time to time, request review during regular business hours and upon reasonable notice. Nothing herein shall be deemed to require Franchisee to maintain records of oral complaints which can be handled to the customer's satisfaction in the course of the initial conversation in which the complaint is made or does not require technical field response. Upon request, the Franchisee shall provide to the Franchising Authority an accounting of the number and nature of such complaints.
(e) The Franchisee shall maintain its records as required by and in a manner not inconsistent with applicable federal or state law or regulation.
SECTION 5.2 - TERMINATION OF SERVICE
(a) In the event a Subscriber's service is terminated, monthly charges for service shall be pro-rated on a daily basis and, where advance payment has been made by a Subscriber, the appropriate refund shall be made by Franchisee to the Subscriber within forty-five (45) days of such termination.
(b) Franchisee shall have the right to disconnect a Subscriber for failure to pay an overdue account; provided, that
(i) Franchisee billing practices and policy statement set forth the conditions under which an account will be considered overdue; and
(ii) Franchisee mails, at least twelve (12) days prior to the proposed disconnection, written notice of intent to disconnect for delinquency in payment; and
(iii) The Subscriber's account is at least thirty (30) days delinquent.
SECTION 5.3 - SERVICE INTERRUPTIONS
In the event of a Cable System failure resulting in a Subscriber experiencing a service interruption for twenty-four (24) or more consecutive hours, Franchisee shall grant such Subscribers a pro rata credit or rebate on a daily basis, of that portion of the service charge during the next consecutive billing cycle, or at its option, apply such credit to any outstanding balance then currently due. Credits shall be applied as described above if Franchisee knew of the interruption or after due notice to the Franchisee from the Subscriber.
Franchisee shall consider a similar credit for any service interruptions lasting less than twenty-four (24) hours, upon notice excluding interruptions which are beyond the control of the Franchisee, such as, but not limited to, electrical outages, acts of God, or for any reason of force majeure.
SECTION 5.4 - IDENTIFICATION
Franchisee shall ensure that all of its vehicles, employees, agents and subcontractors are reasonably identified to the general public. Agents and contractors hired by the Franchisee to perform any substantial work on the Cable System during the rebuild period in the Town and shall inform the Atkinson Police Department of the work location within the Town and provide relevant vehicle identification prior to commencing such work.
SECTION 5.5 - SUBSCRIBER ANTENNAE
Notwithstanding a required disconnection of Subscriber's existing antenna and downloads to receivers connected to the Cable System, Franchisee shall not remove such antennae and downloads. Subscribers may request and Franchisee shall provide and install AB switch or other appropriate switch technology. Franchisee may require payment of an installation charge by each Subscriber. Such charge shall be at the Franchisee’s actual cost, plus reasonable rate of return.
SECTION 5.6 - SUBSCRIBER PRIVACY AND RIGHTS TO INFORMATION
The conduct of the Franchisee under this section shall be consistent with and governed by Section 631 of the Cable Act, "Protection of Subscriber Privacy" and other applicable federal and New Hampshire law. Franchisee shall insure that all information related to billing and service requests is accurate and up-to-date and shall promptly correct any errors upon discovery.
ARTICLE 6
RATES AND CHARGES
SECTION 6.1 - RATES AND CHARGES
(a) A price schedule for service and installation in effect on the date of execution of this Franchise Agreement is attached hereto as Exhibit A. Any changes in price for Cable Service, equipment and installation will be in conformance with the Cable Act and the rules and regulations of the FCC, and any currently or hereinafter applicable federal and/or state laws and regulations.
(b) Town shall have the right, to the extent granted under state law, the Cable Act and FCC regulations, to regulate rates, equipment, installation and service charges to Subscribers.
(c) The Franchisee may require a deposit or refuse service to any applicant for a bona fide credit reason which relates to the applicant's overdue or delinquent account with the Franchisee. The Franchisee may require that the account of any Subscriber requesting work be current before such work is performed.
(d) Franchisee shall notify the Franchising Authority in writing at least forty-five (45) days prior to any adjustment in price for Cable Service provided by the Cable System in accordance with FCC rules and regulations.
(e) The Franchisee may levy collection charges not to exceed actual costs on overdue or delinquent accounts, not including reasonable late fees consistent with industry practice and the prevailing law of New Hampshire.
ARTICLE 7
REGULATORY OVERSIGHT
SECTION 7.1 - INDEMNIFICATION
The Franchisee shall, at its sole cost and expense, indemnify and hold the Town harmless at all times during the term of this Franchise Agreement from any and all claims for injury and damage to persons or property, both real and personal, caused by the installation, operation or maintenance of any structure, equipment, wire or cable within the Franchise area. Upon receipt of notice of any such claim in writing from the Board, the Franchisee shall at its own expense defend any action or proceeding against the Town in which it is claimed that personal injury or property damage was caused by activities of the Franchisee, its employees and/or agents, in the installation, operation or maintenance of its Cable System. Franchisee shall not be required to indemnify the Town for claims arising, either in whole or in part, from the negligence of the Town, its officers, commissions, agents or employees.
SECTION 7.2 - INSURANCE
(a) The Franchisee shall carry insurance, with the Town as an additional named insured, with an insurance company licensed to do business in the State of New Hampshire which meets a rating of at least "A", subject to commercial availability, in Standard and Poor’s insurance company rating system. The amount of such insurance against liability for damage to property shall be no less than One Million Dollars ($1,000,000) as to any one occurrence. The amount of such insurance for liability for injury or death to any person shall be no less than One Million Dollars ($1,000,000) and Three Million Dollars ($3,000,000) on account of injury to or death of any number of persons in any occurrence. Such liability insurance shall include products and completed operations, independent contractors, personal injury, and automobile.
(b) Worker's Compensation, including liability benefits and any other legally required employee benefits, shall be supplied in statutory amounts.
(c) All insurance coverage, including Worker's Compensation, shall be maintained throughout the period of this Franchise Agreement. All expenses incurred for said insurance shall be at the sole expense of the Franchisee. No later than thirty (30) days after the execution of this Franchise, Franchisee shall furnish to the Town certificates of insurance.
(d) All such Franchisee insurance policies and certificates of insurance shall stipulate that the coverage afforded by the policies will not be canceled, modified or not renewed until at least thirty (30) days prior notice has been given to Town.
SECTION 7.3 - ANNUAL REPORTING BY FRANCHISEE
One Hundred Eighty (180) days after the end of each year of the Franchise term, the Franchisee shall report to the Town, in writing, responding to a written survey in substantially the form attached hereto as Exhibit "F", such annual report to include, at a minimum, the information described in that Exhibit.
SECTION 7.4 - PERFORMANCE BOND
(a) Within ninety (90) days following the Effective Date of the Franchise, Franchisee shall obtain and maintain during the entire term of this Franchise, at its sole cost and expense, and file with the Town an irrevocable performance bond to guarantee performance of the following terms and conditions:
(i) the satisfactory completion of the cable installation in the time schedule provided herein and satisfactory compliance with provisions of this Agreement;
(ii) the satisfactory restoration of pavements, sidewalks and other improvements in accordance with this Franchise;
(iii)the satisfactory operation of the Cable System
in compliance with the material terms and
conditions of this Franchise;
During the term of this Agreement this performance bond shall be in the amount of Twenty Thousand Dollars ($20,000), which shall be held by the Town during the life of this Agreement. Thereafter, the Town may draw upon this bond for the purpose of curing any deficiency or breach by Franchisee of the terms stated in this Section 7.4. This right to draw upon this bond shall not in any way impede or impair the right of the Franchisee to appeal the basis for such action.
(b) Subject to Section 7.5, the total amount of the bond shall be forfeited in favor of the Town in the event:
(i) Franchisee abandons the Cable System or any part thereof at any time during the term of the Franchise for a period of six (6) months; or
(ii) Franchisee fails to purchase and maintain insurance
as required by this Agreement.(c) The Town may draw upon this bond and may otherwise recover any and all penalties due to the Town and any and all damages, losses, costs, and expenses suffered or incurred by the Town resulting from the failure of Franchisee to comply with one or more provisions of this Section 7.4. Such losses, costs and expenses shall include, but not be limited to, reasonable attorneys fees and other legal, consulting and auditing expenses. Nothing herein shall be deemed to permit the Town to collect more than the sums that it is due. The Town may not recover these sums from multiple parties.
SECTION 7.5 - NOTICE OF OPPORTUNITY TO CURE
Prior to instituting any action against the Franchisee under Section 7.4 (Performance Bond) or Section 7.6 (Revocation of Franchise), the Franchising Authority shall notify the Franchisee in writing of the specific failure and shall give the Franchisee sixty (60) days, or such longer time as may be necessary to cure and granted by the Franchising Authority in its reasonable discretion, in which to demonstrate that a failure does not exist or to rectify such failure, and shall not proceed further if the matter is resolved to the reasonable satisfaction of the Franchising Authority within the specified time period.
SECTION 7.6 - REVOCATION OF FRANCHISE; DEFAULT
The Franchise issued hereunder may, after due notice and hearing as defined herein, be revoked by the Franchising Authority for any of the following reasons:
(a) Subject to Section 7.5 above, for failure to comply with any of the material terms and conditions of the Franchise;
(b) The repeated and willful failure to maintain signal quality as established by standard FCC proof of performance testing.
SECTION 7.7 - REMOVAL OF SYSTEM
Upon termination of the Franchise Agreement and upon written notification by the Franchising Authority, the Franchisee shall remove its supporting structures, poles, transmission and distribution systems and other appurtenances from the Public Ways and other public places in, over, under, or along which they are installed and shall restore the areas to their original condition. If such removal is not completed within six (6) months of such termination, the Franchising Authority may deem any property not removed as having been abandoned, or at the Franchisee's expense remove or cause to be removed any components of the Cable System and restore the areas to their original condition.
SECTION 7.8 - INCORPORATION BY REFERENCE
All presently and hereafter applicable conditions and requirements of federal and state law and the rules and regulations of the FCC, as they may be amended from time to time are incorporated herein by reference.
SECTION 7.9 - PUBLIC HEARING
Upon request by the Franchising Authority, with 15 days notice, the Franchisee shall attend a public hearing to provide or receive information regarding cable services being provided pursuant to this Franchise Agreement.
ARTICLE 8
MISCELLANEOUS
SECTION 8.1 - SEVERABILITY
If any section, paragraph, term or provision of this Franchise Agreement is determined to be illegal, invalid or unconstitutional, by any court of competent jurisdiction or by any state or federal regulatory agency having jurisdiction thereof, such determination shall have no effect on any other section, paragraph, term or provision hereof, all of which will remain in full force and effect for the term of this Franchise Agreement or any renewal or renewals hereof.
SECTION 8.2 - FORCE MAJEURE
If for any reason of force majeure the Franchisee is unable in whole or in part to carry out its obligations hereunder, said Franchisee shall not be deemed in violation or default during the continuance of such inability. Unless further limited elsewhere in this Franchise Agreement, the term force majeure as used herein shall have the following meaning: strikes; acts of God; acts of public enemies, orders of any kind of government of the United States of America or of the State of New Hampshire or any of their departments, agencies, political subdivisions, or officials, or any civil or military authority; insurrections; riots; epidemics; landslides; lightning; earthquakes; fires; hurricanes; volcanic activity; storms; floods; washouts; droughts; arrests; civil disturbances; explosions; partial or entire failure of utilities; inability to secure materials or any other cause or event not reasonably within the Franchisee's control.
SECTION 8.3 - NOTICES
Every notice to be served upon the Franchising Authority shall be delivered or sent by certified mail (postage prepaid) or by overnight delivery service to the Attn: Atkinson Cable Advisory Board, 21 Academy Avenue, Atkinson, New Hampshire 03811, or such other address as the Franchising Authority may specify in writing to the Franchisee. Every notice served upon the Franchisee shall be delivered or sent by certified mail (postage prepaid) to Attn: Adelphia Communications, Attn: Legal Department, 200 Minuteman Road, Suite 102, Andover, MA 01810 or such other address as the Franchisee may specify in writing to the Franchising Authority. The delivery shall be equivalent to direct personal notice, direction or order, and shall be deemed to have been given at the time of receipt.
SECTION 8.4 - AMENDMENT OR MODIFICATION
This Franchise shall not be amended or modified except by written agreement signed by both parties, following publication of the proposed amendment in a manner consistent with the publication and notice provisions of RSA 33:8-a.
SECTION 8.5 - ANNUAL TOWN REVIEW
At the Franchising Authority's request, the Franchisee shall attend annual meetings with authorized Town official(s) to review compliance with the terms of this Franchise and matters of interest to either party. No later than five (5) days prior to such meeting, either party may submit a list of items to be reviewed.
SECTION 8.6 - DELEGATION
The Franchising Authority may delegate to any Town official, employee, agency or commission the authority to exercise any of the Franchising Authority’s rights hereunder which may lawfully be so delegated.
SECTION 8.7 - FINAL AGREEMENT
The Agreement stated herein, in writing, constitutes the final and entire agreement between the parties and supercedes all previous agreements.
IN WITNESS WHEREOF, the parties hereto have caused this Franchise to be executed by their duly authorized representative this _____ day of ______________, 2003.
THE TOWN OF ATKINSON
BY ITS BOARD OF SELECTMEN
__________________________ ______________________________
Witness Selectman
__________________________ ______________________________
Witness Selectman
__________________________ ______________________________
Witness Selectman
Accepted By:
ADELPHIA CABLEVISION CORP.,
d/b/a Adelphia Cable Communications
By:________________________________
Its:
EXHIBIT A
PRICE SCHEDULE
EXHIBIT B
SERVICE COST ALLOCATION SCHEDULE
The Franchisee shall provide for construction of all necessary line extensions for Cable Service to new dwelling units when the number of homes reaches the density requirement of twenty (20) homes per mile of cable facilities, measured from the nearest feeder plant. In the areas with less than twenty (20) homes per mile of plant, the Franchisee shall require payment, as follows:
(a) where there are between eighteen (18) and twenty (20) homes per mile, the Franchisee shall pay ninety-three (93) percent of the cost of such line extension and the Subscribers shall pay seven (7) percent;
(b) where there are between sixteen (16) and eighteen (18) homes per mile, the Franchisee shall pay eighty-six (86) percent of the cost of such line extension and the Subscribers shall pay fourteen (14) percent;
(c) where there are between fourteen (14) and sixteen (16) homes per mile, the Franchisee shall pay seventy-nine (79) percent of the cost of such line extension and the Subscribers shall pay twenty-one (21) percent;
(d) where there are between twelve (12) and fourteen (14) homes per mile, the Franchisee shall pay seventy-two (72) percent of the cost of such line extension and the Subscribers shall pay twenty-eight (28) percent;
(e) where there are between ten (10) and twelve (12) homes per mile, the Franchisee shall pay sixty-five (65) percent of the cost of such line extension and the Subscribers shall pay thirty-five (35) percent;
(f) where there are nine (9) homes per mile, the Franchisee shall pay fifty-eight (58) percent of the cost of such line extension and the Subscribers shall pay forty-two (42) percent;
(g) where there are eight (8) homes per mile, the Franchisee shall pay fifty-one (51) percent of the cost of such line extension and the Subscribers shall pay forty-nine (49) percent;
(h) where there are seven (7) homes per mile, the Franchisee shall pay forty-four (44) percent of the cost of such line extension and the Subscribers shall pay fifty-six (56) percent;
(i) where there are six (6) homes per mile, the Franchisee shall pay thirty-seven (37) percent of the cost of such line extension and the Subscribers shall pay sixty-three (63) percent;.
(j) where there are five (5) homes per mile, the Franchisee shall pay thirty (30) percent of the cost of such line extension and the Subscribers shall pay seventy (70) percent;
(k) where there are four (4) homes per mile, the Franchisee shall pay twenty-three (23) percent of the cost of such line extension and the Subscribers shall pay seventy-seven (77) percent;
(l) where there are three (3) homes per mile, the Franchisee shall pay sixteen (16) percent of the cost of such line extension and the Subscribers shall pay eighty-four (84) percent;
(m) where there are two (2) homes per mile, the Franchisee shall pay nine (9) percent of the cost of such line extension and the Subscribers shall pay ninety-one (91) percent;
(n) where there is one (1) home per mile, the Franchisee shall pay two (2) percent of the cost of such line extension of the Subscribers shall pay ninety-eight (98) percent.
EXHIBIT C
ORIGINATION SITES
Atkinson Academy
Atkinson Community Center
Atkinson Congregational Church
Atkinson Fire Department
Atkinson Police Station
Atkinson Town Hall
Kimball Public Library
EXHIBIT D
GOVERNMENTAL SERVICE DROPS
Atkinson Academy
Atkinson Community Center
Atkinson Fire Station
Atkinson Police Station
Atkinson Town Hall
Kimball Public Library
"Old" Police Station (located across from the Town Hall)
EXHIBIT E
YEAR END REPORT
Location of Office and Payment Stations:
Office Hours:
Telephone Hours:
Telephone Answering Service Picks Up All Calls During Off Hours
Customer Service Telephone Number:
Location of Headend (Reception Facility)
Miles of Cable Plant
System Wide:
Town Only:
Number of Subscribers
System Wide:
Town Only:
System Error Free Operating Percentage:
Customer Service Statistics:
Projects Constructed:
Franchise Fee Paid: $_______________
S:\Atkinson\Telecom\Cable\Atkinson franchise-FINAL.doc