HomeMy WebLinkAbout0969SUMMARY OF ORDINANCE NO. 969
GRANTING A FRANCHISE TO FRONTIER COMMUNICATIONS OF MINNESOTA, INC.,
("FRONTIER") TO CONSTRUCT, OPERATE AND MAINTAIN A CABLE SYSTEM IN
THE CITY OF LAKEVILLE AND PROVIDING FOR REGULATION AND USE OF THE
SYSTEM AND THE PUBLIC RIGHTS-OF-WAY
The City Council of Lakeville, Minnesota ("City") adopted an Ordinance granting a Cable
Television Franchise to Frontier. The Ordinance grants a non-exclusive cable franchise to
Frontier to operate, construct and maintain a cable system within the City and contains specific
requirements for Frontier to do so.
The Ordinance includes the following: 1) authorizes Frontier to provide cable service to every
dwelling unit and commercial building in the Service Area; 2) imposes on Frontier a franchise
fee of 5% of Frontier's annual gross revenues; 3) establishes an initial franchise term of five (5)
years with the option to extend an additional five (5) years; 4) provides a list of schools and
public buildings entitled to receive complimentary cable service once passed by the cable
system; 5) requires Frontier to dedicate channel capacity for public, educational and
governmental programming and provides financial support of such channels; 6) mandates
customer service standards regarding Frontier's provision of cable services; and 7) requires a
security fund to enforce Frontier's compliance with the Ordinance.
It is hereby determined that publication of this title and summary will clearly inform the public
of the intent and effect of Ordinance No. 969. A copy of the entire Ordinance shall be available
at the Lakeville City Hall.
It is hereby directed that only the title and summary of Ordinance No. 969 shall be published.
Adopted by the Lakeville City Council this 6b day of September, 2016
CITY OF LAKEVILLE, MINNESOTA
BY:
Matt Li le, Mayor
ATTEST:
Charlene Friedges,
CABLE TELEVISION FRANCHISE ORDINANCE
City of Lakeville, Minnesota
September 1, 2016
Prepared by:
BRIAN T. GROGAN, ESQ.
Moss & Barnett
A Professional Association
150 South Fifth Street, Suite 1200
Minneapolis, MN 55402
(612) 877-5340
TABLE OF CONTENTS
SECTION 1 SHORT TITLE AND DEFINITIONS..........................................................1
SECTION 2 GRANT OF AUTHORITY AND GENERAL PROVISIONS .................... 8
SECTION 3 CONSTRUCTION STANDARDS..............................................................10
SECTION 4 DESIGN PROVISIONS...............................................................................12
SECTION 5 SERVICES PROVISIONS...........................................................................15
SECTION 6 PUBLIC ACCESS PROVISIONS...............................................................19
SECTION 7 OPERATION AND ADMINISTRATION PROVISIONS ....................... 23
SECTION 8 GENERAL FINANCIAL AND INSURANCE PROVISIONS ................. 26
SECTION 9 SALE, ABANDONMENT, TRANSFER AND REVOCATION OF
FRANCHISE................................................................................................. 31
SECTION 10 PROTECTION OF INDIVIDUAL RIGHTS ............................................. 33
SECTION 11 MISCELLANEOUS PROVISIONS............................................................ 34
SECTION 12 PUBLICATION EFFECTIVE DATE; ACCEPTANCE AND EXHIBITS
......................................................................................................................... 36
EXHIBIT A
QUARTERLY MEETING REPORT
EXHIBIT B
CUSTOMER SERVICE STANDARDS
EXHIBIT C
SERVICE TO PUBLIC BUILDINGS
EXHIBIT D
FRANCHISE FEE PAYMENT WORKSHEET
EXHIBIT E
CUSTOMER SERVICE COMPLIANCE REPORT
ORDINANCE NO. 969
AN ORDINANCE GRANTING A FRANCHISE TO FRONTIER COMMUNICATIONS OF
MINNESOTA, INC. ("GRANTEE") TO CONSTRUCT, OPERATE, AND MAINTAIN A
CABLE SYSTEM IN THE CITY OF LAKEVILLE, MINNESOTA ("CITY"); SETTING
FORTH CONDITIONS ACCOMPANYING THE GRANT OF THE FRANCHISE;
PROVIDING FOR REGULATION AND USE OF THE SYSTEM; AND PRESCRIBING
PENALTIES FOR THE VIOLATION OF ITS PROVISIONS.
The City Council ofthe City of Lakeville, Minnesota ordains:
STATEMENT OF INTENT AND PURPOSE
The City intends, by the adoption of this Franchise, to bring about the consumer, business and
economic development benefits of facilities based competition in the cable communications
marketplace. Such competition can contribute significantly to the communication needs and
desires of the residents and citizens of the City and the public generally. Further, the City may
achieve better utilization and improvement of public services and enhanced economic
development with the development and operation of a competitive Cable System.
FINDINGS
In the review of the request for a competitive franchise by Grantee and negotiations related
thereto, and as a result of a public hearing, the City Council makes the following findings:
1. Grantee's technical ability, financial condition, and legal qualifications were considered
and approved in a full public proceeding after due notice and a reasonable opportunity to be
heard;
2. Grantee's plans for operating the Cable System were considered and found adequate and
feasible in a full public proceeding after due notice and a reasonable opportunity to be heard;
3. The Franchise granted to Grantee by the City complies with the existing applicable
Minnesota Statutes, federal laws and regulations; and
4. The Franchise granted to Grantee is nonexclusive.
SECTION 1 SHORT TITLE AND DEFINITIONS
1. Short Title. This Franchise shall be known and cited as the Cable Television Franchise
Ordinance.
2. Definitions. For purposes of this Franchise, the following terms, phrases, words and their
derivations shall have the meaning given herein. Words use in the present tense include the
future, in the plural number include the singular number, and words in the singular number
include the plural number. All capitalized terms used in the definition of any other term shall
have their meaning as otherwise defined in this section. The words "shall and "will" are
mandatory and "may" is permissive. Words not defined shall be given their common and
ordinary meaning.
(a) "Affiliate" means any Person who owns or controls, is owned or controlled by or
is under common ownership or control with the Grantee.
(b) "Applicable Laws" means any and all local, state or federal law, statute, charter,
ordinance, regulation, code, franchise, permit, judgment or decree.
(c) "Basic Cable Service" means any service tier which includes the lawful
retransmission of local television broadcast signals. Basic Cable Service shall be the
definition set forth in 47 U.S.C. § 522(3).
(d) "Cable Act" means the Cable Communications Act of 1984 as amended, 47
U.S.C. §521 et. seq.
(e) "Cable Service" or "Service" means:
(1) The one-way transmission to Subscribers of (i) Video Programming, or
(ii) Other Programming Service, and
(2) Subscriber interaction, if any, which is required for the selection or use of
such Video Programming or Other Programming Service.
Cable Service as defined herein shall be the definition set forth in 47 U.S.C. §
522(6).
(f) "Cable System" or "System" means a facility, consisting of a set of closed
transmission paths and associated signal generation, reception, and control equipment
that is designed to provide Cable Service which includes Video Programming and which
is provided to multiple Subscribers within a community, but such term does not include:
(1) a facility that serves only to retransmit the television signals of one (1) or
more television broadcast stations;
(2) a facility that serves Subscribers without using any public right-of-way;
(3) a facility of common carrier which is subject, in whole or in part, to the
provisions of 47 U.S.C. § 201 et seq., except that such facility shall be considered
a Cable System (other than for purposes of 47 U.S.C. § 541(c)) to the extent such
facility is used 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 47 U.S.C. § 573; or
(5) any facilities of any electric utility used solely for operating its electric
utility system.
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Cable System as defined herein shall be the definition set forth in 47 U.S.C. §
522(7).
(g) "Channel" means a portion of the electromagnetic frequency spectrum which is
used in a Cable System and which is capable of delivering a television Channel as
defined by the FCC. Channel as defined herein shall be the definition set forth in 47
U.S.C. § 522(4).
(h) "City" means the City of Lakeville, a municipal corporation, in the State of
Minnesota as represented by the City Council or any delegate acting within the scope of
its jurisdiction. The City Administrator shall be responsible for the continuing
administration of this Franchise.
(i) "City Code" means the Municipal Code of Lakeville, Minnesota.
0) "City Council" means the City Council of Lakeville, Minnesota.
(k) "Class IV Cable Communications Channel" means a signaling path provided by a
Cable System to transmit signals of any type from a Subscriber terminal to another point
in the System.
(1) "Converter" means an electronic device which converts signals to a frequency
acceptable to a television receiver of a Subscriber.
(m) "Day" unless otherwise specified shall mean a calendar Day.
(n) "Demarcation Point" shall have the meaning set forth in FCC regulations 47
C.F.R. § 76.5 (mm) as may from time to time be amended. Generally it shall mean a
point agreed upon by Grantee and the City up to twelve (12) inches outside of the
building wall. For purposes of PEG upstream feeds in Sections 6.1 and 6.2, a
Demarcation Point shall be the point at which the equipment owned by the PEG
Origination Site interconnects with Grantee's wiring and electronics.
(o) "Drop" means the cable that connects the ground block on the Subscriber's
residence to the nearest terminal on the distribution cable of the System.
(p) "Effective Date" shall mean October 1, 2016.
(q) "FCC" means the Federal Communications Commission and any legally
appointed, designated or elected agent or successor.
(r) "Franchise" shall mean the right granted by this Ordinance and the regulatory and
contractual relationship established thereby.
(s) "Franchise Area" or "Service Area" means the entire geographic area within the
City as it is now constituted or may in the future be constituted.
(t) "Franchise Fee" shall be the definition set forth in 47 U.S.C. §542(g).
(u) "GAAP" means generally accepted accounting principles as promulgated and
defined by the Financial Accounting Standards Board ("FASB"), Emerging Issues Task
Force ("EITF") and/or the U.S. Securities and Exchange Commission ("SEC").
(v) "Grantee" is Frontier Communications of Minnesota, Inc., its lawful successors,
transferees or assignees.
(w) "Gross Revenues" means, and shall be construed broadly to include, all amounts
in whatever form and from all sources derived directly or indirectly by Grantee and/or an
Affiliate from the operation of Grantee's Cable System to provide Cable Services within
the Franchise Area. Gross Revenues include, by way of illustration and not limitation:
(1) Fees for Cable Services, regardless of whether such Cable Services are
provided to residential or commercial Subscribers, including revenues derived
from the provision of all Cable Services (including but not limited to pay or
premium Cable Services, digital Cable Services, pay-per-view, pay -per -event,
audio channels and video -on -demand Cable Services);
(2) Installation, disconnection, reconnection, downgrade, upgrade,
maintenance, repair, or similar charges associated with Subscriber Cable Service;
(3) fees paid to Grantee for Channels designated for commercial/leased access
use; which shall be allocated on a proportionate basis using total Cable Service
Subscribers within the Franchise Area;
(4) Converter, remote control, and other Cable Service equipment rentals,
leases, or sales;
(5) Payments for pre -paid Cable Services and/or equipment;
(6) Advertising Revenues as defined herein;
(7) Fees including, but not limited to: (1) late fees, convenience fees and
administrative fees; and (2) Franchise Fees;
(8) Revenues from program guides; and
(9) Commissions from home shopping channels and other Cable Service
revenue sharing arrangements which shall be allocated on a proportionate basis
using total Cable Service Subscribers within the Franchise Area.
"Gross Revenues" shall not be net of: (1) any operating expense; (2) any accrual,
including without limitation, any accrual for commissions to Affiliates; or (3) any
other expenditure, regardless of whether such expense, accrual, or expenditure
reflects a cash payment. "Gross Revenues", however, shall not be double
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counted. Revenues of both Grantee and an Affiliate that represent a transfer of
funds between the Grantee and the Affiliate, and that would otherwise constitute
Gross Revenues of both the Grantee and the Affiliate, shall be counted only once
for purposes of determining Gross Revenues. Similarly, operating expenses of
the Grantee which are payable from Grantee's revenue to an Affiliate and which
may otherwise constitute revenue of the Affiliate, shall not constitute additional
Gross Revenues for the purpose of this Franchise. "Gross Revenues" shall not
include sales taxes imposed by law on Subscribers that the Grantee is obligated to
collect. With the exception of recovered bad debt, "Gross Revenues" shall not
include bad debt.
(A) "Advertising Revenues" shall mean amounts derived from sales of
advertising that are made available to Grantee's Cable System Subscribers
within the Franchise Area and shall be allocated on a pro rata basis using
total Cable Service Subscribers reached by the advertising. Whenever
Grantee acts as the principal in advertising arrangements involving
representation firms and/or advertising interconnects and/or other
multichannel video providers, Advertising Revenues subject to Franchise
Fees shall include the total amount from advertising that is sold, and not
be reduced by any operating expenses (e.g., "revenue offsets" and "contra
expenses" and "administrative expenses" or similar expenses), or by fees,
commissions, or other amounts paid to or retained by affiliated advertising
representation firms to Grantee or their successors involved with sales of
advertising on the Cable System within the Franchise Area.
(B) "Gross Revenues" shall not include:
(i) Actual Cable Services bad debt write-offs, except any
portion which is subsequently collected which shall be allocated on
a pro rata basis using Cable Services revenue as a percentage of
total Grantee revenues within the Franchise Area;
(ii) Any taxes and/or fees on services furnished by Grantee
imposed on Subscribers by any municipality, State or other
governmental unit, provided that the Franchise Fee shall not be
regarded as such a tax or fee;
(iii) Launch fees and marketing co-op fees; and,
(iv) Revenues associated with the provision of managed
network services provided under separate business contract.
(v) Unaffiliated third party advertising sales agency fees or
commissions which are reflected as a deduction from revenues,
except when Grantee acts as a principal as specified in paragraph
(A) immediately above.
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(C) To the extent revenues are derived by Grantee for the provision of
a discounted bundle of services which includes Cable Services and non -
Cable Services, Grantee shall calculate revenues to be included in Gross
Revenues using a methodology that allocates revenue on a pro rata basis
when comparing the bundled service price and its components to the sum
of the published rate card prices for such components. In the alternative,
Grantee may calculate revenues to be included in Gross Revenues by
applying a uniform price discount equally to each Cable Service and non -
Cable Service component of a discounted bundle of services. Except as
required by specific federal, State or local law, it is expressly understood
that equipment may be subject to inclusion in the bundled price at full rate
card value. The calculation shall be applied to every bundled service
package containing Cable Service from which Grantee derives revenues in
the Franchise Area. The City reserves its right to review and to challenge
Grantee's calculations.
Example: Prior to any bundle -related price reduction, if Cable Service is
valued at fifty percent (50%) of the total of the services to be offered in a
bundle, then Cable Service is to be valued and reported as being no less
than fifty percent (50%) of the price of the bundled service total.
(D) Grantee reserves the right to change the allocation methodologies
set forth in paragraph (C) above to meet standards mandated by the
Financial Accounting Standards Board ("FASB"), Emerging Issues Task
Force ("EITF") and/or the U.S. Securities and Exchange Commission
("SEC"). City acknowledges and agrees that Grantee shall calculate Gross
Revenues in a manner consistent with GAAP where applicable; however,
the City reserves its right to challenge Grantee's calculation of Gross
Revenues, including Grantee's interpretation of GAAP and Grantee's
interpretation of FASB, EITF and SEC directives. Grantee agrees to
explain and document the source of any change it deems required by
FASB, EITF and SEC concurrently with any Franchise -required document
at the time of submittal, identifying each revised section or line item.
(E) City agrees and acknowledges that Grantee shall maintain its
books and Records in accordance with GAAP.
(x) "Installation" means the connection of the System from distribution cable to the
Point of Connection and the provision of Cable Service.
(y) "Minnesota Cable Communications Act" means the provisions of Minnesota law
governing the requirements for a cable television franchise as set forth in Minn. Stat. §
238, et. seq., as amended.
(z) "Normal Business Hours" means those hours during which most similar
businesses in City are open to serve customers. In all cases, "Normal Business Hours"
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must include some evening hours, at least one (1) night per week and/or some weekend
hours.
(aa) "Normal Operating Conditions" means those service conditions which are within
the control of the Grantee. Those conditions which are not within the control of the
Grantee include, but are not limited to, natural disasters, civil disturbances, power
outages, telephone network outages, and severe or unusual weather conditions. Those
conditions which are ordinarily within the control of the Grantee include, but are not
limited to, special promotions, pay-per-view events, rate increases, regular peak or
seasonal demand periods, and maintenance or upgrade of the Cable System.
(bb) "Other Programming Service" means information that a cable operator makes
available to all Subscribers generally. Other Programming Services as defined herein
shall be the definition set forth in 47 U.S.C. § 522(14).
(cc) "PEG" means public, educational and governmental.
(dd) "Person" means any person, firm, partnership, limited liability entity or
partnership, association, corporation, company, or other legal entity.
(ee) "Point of Connection" means the protective device where Grantee's network
meets the Subscriber's inside wiring located at or in the Subscriber's premises.
(ff) "Service Interruption" means the loss of picture or sound on one (1) or more
Channels. Service Interruption as defined herein shall be the definition set forth in 47
C.F.R. §76.309(c).
(gg) "Standard Installation" means any residential Installation to a Subscriber.
(hh) "State" means the State of Minnesota.
(ii) "Street" means any street, alley, other land or waterway, dedicated or commonly
used for utility purposes, including general or utility easements in which the City has the
right and authority to authorize, regulate or permit the location of facilities other than
those of the City. "Street" shall not include any real or personal City property that is not
specifically described in the previous sentence and shall not include City buildings,
fixtures, and other structures or improvements, regardless of whether they are situated in
the public right-of-way.
6j) "Subscriber" means any Person who lawfully elects to subscribe to Cable Service
via the System. In the case of multiple office buildings or multiple dwelling units, the
"Subscriber" means the lessee, tenant or occupant.
(kk) "Video Programming" means programming provided by, or generally considered
comparable to programming provided by, a television broadcast station. Video
Programming as defined herein shall be the definition set forth in 47 U.S.C. § 522(20).
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(11) "Wireline MVPD" means a multichannel video programming distributor that
utilizes the Streets to install cable or fiber and is engaged in the business of making
available for purchase, by Subscribers, multiple Channels of Video Programming in the
City.
SECTION 2 GRANT OF AUTHORITY AND GENERAL PROVISIONS
1. Franchise Required. The City shall, to the extent permitted by Applicable Law, require a
franchise for any Person to offer Cable Service in the City.
2. Grant of Franchise. This Franchise is granted pursuant to the terms and conditions
contained herein.
3. Grant of Nonexclusive Authority. This grant is non-exclusive and, subject to the
provisions of Minnesota Statutes, Section 23 8.08, Subdivision 1(b), the City reserves the right to
grant a similar use of said Streets to any other qualified Person at any time during the period of
this Franchise, provided, however, that any additional cable franchise granted shall comply with
Minnesota Statutes, Section 238.08 and any other applicable state and federal level playing field
requirements.
(a) The City hereby authorizes Grantee to occupy or use the Streets subject to: 1) the
provisions of this Franchise to provide Cable Services within the City; and 2) all
provisions of the City Code. Nothing in this Franchise shall be construed to prohibit the
Grantee from providing services other than Cable Services as permitted by Applicable
Law. The City hereby reserves all of its rights to regulate such other services to the
extent not prohibited by Applicable Law and no provision herein shall be construed to
limit or give up any regulatory right of the City. The Cable System constructed and
maintained by Grantee or its agents shall not interfere with other uses of Streets.
(b) The terms of this Franchise shall define the contractual rights and obligations of
Grantee with respect to the provision of Cable Service and operation of the Cable System
in City. The Grantee, through this Franchise, is granted the right to construct, maintain,
and operate its Cable System using the Streets within the City in compliance with all
provisions of the City Code, as may be amended periodically. Subject to the police
power exception below, in the event of a conflict between an ordinance regulating use of
the public rights-of-way and this Franchise, the terms of this Franchise shall govern.
(c) The material terms and conditions contained in this Franchise may not be
unilaterally altered by the City through subsequent amendments to the City Code,
ordinances or any regulation of City, except in the lawful exercise of City's police power.
Grantee reserves all rights it may have to challenge any modifications to the City Code
whether arising in contract or at law. The City reserves all of its rights and defenses to
such challenges whether arising in contract or at law.
(d) Nothing in this Franchise shall (A) abrogate the right of the City to perform any
public works or public improvements of any description, (B) be construed as a waiver of
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any codes or ordinances promulgated by the City, or (C) be construed as a waiver or
release of the rights of the City in and to the Streets.
(e) This Franchise shall comply with the Minnesota franchise standards set forth in
Minnesota Statutes, Section 238.084. Grantee shall at all times comply with the City
Code, specifically Title 3 Chapter 11 governing cable communications.
4. Franchise Term. The term of this Franchise shall be for a period of five (5) years from
the Effective Date, unless renewed, revoked or terminated sooner as herein provided ("Initial
Term"). Upon mutual agreement by City and Grantee, the Initial Term may be extended for an
additional five (5) years. Nothing herein shall serve to waive Grantee's right to renewal of the
Franchise under Applicable Law.
5. Rules of Grantee. The Grantee shall have the authority to promulgate such rules,
regulations, terms and conditions governing the conduct of its business as shall be reasonably
necessary to enable said Grantee to exercise its rights and perform its obligation under this
Franchise and to assure uninterrupted service to each and all of its Subscribers; provided that
such rules, regulations, terms and conditions shall not be in conflict with provisions hereto, the
City Code or Applicable Law.
6. Territorial Area Involved. This Franchise is granted for the Service Area.
(a) Grantee shall design, construct and maintain the Cable System to have the
capability to pass every dwelling unit and commercial building in the Service Area,
subject to the System Construction requirements in Section 4.2 and any Service Area line
extension requirements of this Franchise.
(b) After Service has been established by activating trunk and/or distribution cables
for any Service Area, Grantee shall provide Cable Service to residential unit passed by
the Cable System within seven (7) Days from the date service is requested.
(c) No Subscriber shall be refused service arbitrarily. The line extension
requirements of 3-11-1.12.c of the City Code shall not apply to the Grantee until System
Construction is complete. Grantee agrees that its deployment of Cable Service in the
City will be geographically dispersed throughout the City, and shall be made available to
diverse residential neighborhoods of the City without discrimination.
(d) Grantee shall immediately bury all Drops to Subscribers' dwellings when required
by local construction standards. In the event the ground is frozen or otherwise unsuitable
to permit immediate burial, Grantee shall be permitted to delay such burial until the
ground becomes suitable for burial and shall complete said burial no later than June Ist of
each year.
7. Written Notice. All notices, reports, or demands required to be given in writing under
this Franchise shall be deemed to be given when delivered personally to any officer of Grantee or
City's Administrator of this Franchise or forty-eight (48) hours after it is deposited in the United
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States mail in a sealed envelope, with registered or certified mail postage prepaid thereon,
addressed to the party to whom notice is being given, as follows:
If to City: City of Lakeville
20195 Holyoke Avenue
Lakeville, MN 55044
ATTN: City Clerk
If to Grantee: Frontier Communications of Minnesota, Inc.
Attn: Jack Phillips
Director Gov't and External Affairs
14450 Burnhaven Drive
Burnsville, MN 55306
Such addresses may be changed by either party upon notice to the other party given as provided
in this section.
SECTION 3 CONSTRUCTION STANDARDS
1. Permits. Grantee shall not perform any work in the Streets, including the opening or
disturbance of any Street, or private or public property within City, unless Grantee has secured
the necessary permits from City or other governmental authority as required in the City Code or
Applicable Law, for which the City may impose a reasonable fee.
2. Location of Facilities. The Cable System shall be located, constructed and maintained so
as not to interfere with the safety and convenience of ordinary travel along and over Streets and
so as not to disrupt normal operation of any City utility system previously installed therein.
Grantee's Cable System shall be located in Streets as determined by the City in accordance with
the City Code. Grantee's construction, reconstruction, operation, repair, maintenance and
location of its Cable System shall be subject to permits if required by the City Code and to other
reasonable regulations of the City to the extent not inconsistent with the terms of this Franchise.
Grantee may abandon underground facilities in place, provided at the City's request, Grantee
will remove abandoned conduit interfering with a City improvement project, but only to the
extent such conduit is uncovered by excavation as part of the City improvement project.
3. Field Locations and Mapping Information. The Grantee shall provide field locations for
its underground facilities within the City consistent with the requirements of Minnesota Statutes,
Chapter 216D. Grantee shall provide accurate and current mapping information for its Cable
System in accordance with Minnesota Rules Parts 7819.4000 and 7819.4100 and other
Applicable Laws.
4. Street Openings. Grantee shall not open or disturb any Streets for any purpose without
first having obtained a permit from the City, if required by a separate ordinance, for which the
City may impose a reasonable fee. Permit conditions imposed on Grantee shall not be more
burdensome than those imposed on other utilities for similar facilities or work. Grantee may,
however, open and disturb any Street without permission from the City where an emergency
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exists requiring the immediate repair of the Cable System. In such event the Grantee shall notify
the City by telephone to the office designated by the City as soon as practicable. Not later than
the second working day thereafter, Grantee shall obtain any required permits and pay any
required fees.
5. Restoration. After undertaking any work requiring the opening of any Street, Grantee
shall restore the same, including paving and its foundation, in accordance with Minnesota Rules
Part 7819.1100, to as good a condition as formerly existed, and shall maintain any paved surface
in good condition for two (2) years thereafter. The work shall be completed as promptly as
weather permits, and if the Grantee shall not promptly perform and complete the work, remove
all dirt, rubbish, equipment and material, and put the Street in the said condition, the City shall
have, after demand to Grantee to cure and the passage of a reasonable period of time following
the demand, but not to exceed five (5) Days, the right to make the restoration at the expense of
the Grantee. Grantee shall pay to the City the cost of such work done for or performed by the
City. This remedy shall be in addition to any other remedy available to the City for
noncompliance with this Section 3.5.
6. Avoid Damage to Cable Facilities. Nothing in this Ordinance relieves any person from
liability arising out of the failure to exercise reasonable care to avoid damaging the Cable System
while performing any activity.
7. Annexation. Upon the annexation of any additional land area by the City, the annexed
area shall become part of the Franchise Area. Upon the annexation of any additional land area
by the City, the annexed area shall be subject to all the terms of this Franchise upon sixty (60)
Days of written notification by the City to Grantee so long as the annexed area is within the
authorized telephone service area for Grantee as prescribed by the Minnesota Public Utilities
Commission in Grantee's annual eligible telecommunications carrier certification. Such notice
from the City to Grantee shall include a list of addresses if available to the City. In the event
another cable operator is already serving the annexed area, Grantee shall have the option but not
the obligation to extend its Cable System to the newly annexed area. A cable operator who's
Cable System passes homes in an annexed area shall not extend its Cable System beyond those
homes which it passes at the time the annexation occurs unless it otherwise obtains a franchise
from the City.
Conditions on Street Use.
(a) Nothing in this Franchise shall be construed to prevent City from constructing,
maintaining, repairing or relocating sewers; grading, paving, maintaining, repairing,
relocating and/or altering any Street; constructing, laying down, repairing, maintaining or
relocating any water mains; or constructing, maintaining, relocating, or repairing any
sidewalk or other public work.
(b) All System transmission and distribution structures, lines and equipment erected
by the Grantee within City shall be located consistent with City Code provisions.
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(c) Relocation for the City. The Grantee shall, upon receipt of reasonable advance
written notice, to be not less than ten (10) Days, protect, support, temporarily disconnect,
relocate, or remove any property of Grantee when lawfully required by the City pursuant
to its police powers.
(d) Relocation of Cable System in Streets. Grantee shall comply with the
requirements of Minnesota Rules, Part 7 819.3 100 and Applicable Law relating to
relocation of Cable System in Streets.
(e) Relocation of Cable System in the Streets. City may require Grantee, at Grantee's
expense, to relocate or remove its Cable System from Streets upon a finding by City that
the Cable System has become or will become a substantial impairment to the existing
proposed public use of the Street.
(f) Relocation for a Third Party. The Grantee shall, on the request of any Person
holding a lawful permit issued by the City, protect, support, raise, lower, temporarily
disconnect, relocate in or remove from the Street as necessary any property of the
Grantee, provided that the expense of such is paid by any such Person benefiting from the
relocation and the Grantee is give reasonable advance written notice to prepare for such
changes. The Grantee may require such payment in advance. For purposes of this
subsection, "reasonable advance written notice" shall be no less than ten (10) business
days in the event of a temporary relocation and no less than one hundred twenty (120)
Days for a permanent relocation.
(g) Tree Trimming. Grantee shall have the authority to trim trees, in accordance with
City Code.
9. Safety Requirement. The Grantee shall install and maintain its System wires, cables,
fixtures and other equipment in accordance with the applicable requirements of the National
Electric Safety Code and all Applicable Laws.
10. Multiple Dwelling Unit ("MDU") Installations. Grantee shall comply with Applicable
Law, including but not limited to Minn. Stat. § 238.22 to § 238.27, in installing and maintaining
equipment and wiring serving residents of MDUs.
SECTION 4 DESIGN PROVISIONS
System Design.
The Cable System shall have a bandwidth capable of providing the equivalent of a typical 750
MHz Cable System and shall be capable of delivering at least two hundred (200) Channels of
video programming.
2. System Construction.
(a) Pursuant to the requirements of Minnesota Statutes 238.084 subdivision 1 (m),
construction of the Cable System shall commence no later than two hundred forty (240)
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Days after the Effective Date of this Franchise. Construction of the Cable System shall
proceed at a reasonable rate of not less than fifty (50) plant miles constructed per year
during the term of this Franchise. Construction throughout the Service Area shall be
substantially completed within five (5) years of the grant of this Franchise. The
requirements of this Section 4.2(a) may be waived by the City only upon the occurrence
of unforeseen events or acts of God.
(b) Grantee agrees to maintain the Cable System in a manner consistent with, or in
excess of the specifications in Sections 4.1 and 4.2(a) throughout the term of the
Franchise with sufficient capability and technical quality to enable the implementation
and performance of all the requirements of this Franchise, including the exhibits hereto,
and in a manner which meets or exceeds FCC technical quality standards at 47 C.F.R. §
76 Subpart K, regardless of the particular format in which a signal is transmitted.
3. Quarterly meetings. In order to permit the City to monitor and enforce the provisions of
Sections 4.1 and 4.2 above, as well as other provisions of this Franchise, the Grantee shall,
commencing ninety (90) Days after the Effective Date, and continuing throughout the term of
this Franchise, meet quarterly with the City, unless otherwise specified by the City, and provide
reports and make available maps showing the City the following information:
A. Grantee's compliance with Section 4.2(a);
B. The total number of households throughout the City;
C. The total number of households passed by the Cable System;
D. The percentage (%) of households that are passed by the Cable System; and
E. The total number of households actually subscribing to Grantee's Cable Service.
Grantee shall provide a chart including the above mentioned information and any related
information in form and substance substantially the same as Exhibit A, attached hereto.
4. Programming Decisions.
(a) In addition to all PEG Access Programming required by the terms of this
Franchise, Grantee shall provide video programming services in at least the following
broad categories:
(1) Local Broadcast (subject to federal carriage requirements)
(2) Public Broadcast
(3) News and Information
(4) Sports
(5) General Entertainment
(6) Arts/Performance/Humanities
(7) Science/Technology
(8) Children/Family/Seniors
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(9) Foreign Language/Ethnic Programming
(10) Movies
(11) Leased Access
(b) All programming decisions, other than for PEG Access Programming required by
the terms of this Franchise, shall remain in the sole discretion of Grantee provided that
Grantee complies with federal law regarding notice to City and Subscribers prior to any
Channel additions, deletions, or realignments, and further subject to Grantee's signal
carriage obligations pursuant to 47 U.S.C. §§ 531-536, and subject to City's rights
pursuant to 47 U.S.C. § 545.
5. Notice of Planned System -wide Service Interruptions. The Grantee shall notify the City
prior to any planned Service Interruptions for maintenance, construction upgrades or other
purposes that are planned to last longer than forty-eight (48) hours. Such Service Interruption, to
the extent reasonable, shall occur during periods of minimum use of the System.
6. Technical Standards. The technical standards used in the operation of the Cable System
shall comply, at minimum, with the technical standards promulgated by the FCC relating to
Cable Systems pursuant to Title 47, Section 76, Subpart K of the Code of Federal Regulations, as
may be amended or modified from time to time, which regulations are expressly incorporated
herein by reference.
7. Special Testing. City may reasonably require special testing of a location or locations
within the System if there is a particular matter of controversy or unresolved complaints
pertaining to such location(s). Demand for such special tests may be made on the basis of
complaints received or other evidence indicating an unresolved controversy or noncompliance.
Such tests shall be limited to the particular matter in controversy or unresolved complaints. The
City shall endeavor to so arrange its request for such special testing so as to minimize hardship
or inconvenience to Grantee or to the Subscribers caused by such testing. Before ordering such
tests, Grantee shall be afforded thirty (30) Days to correct problems or complaints upon which
tests were ordered. The City shall meet with Grantee prior to requiring special tests to discuss
the need for such and, if possible, visually inspect those locations which are the focus of concern.
If, after such meetings and inspections, City wishes to commence special tests and the thirty (30)
Days have elapsed without correction of the matter in controversy or unresolved complaints, the
tests shall be conducted by a qualified engineer mutually selected by City and Grantee based on a
mutually agreed upon scope of work. If the unresolved complaint is found to have been caused
by Grantee's failure to comply with FCC technical specifications or the National Electric Safety
Code, the Grantee shall reimburse the City for the documented out of pocket costs of such testing
up to a maximum of maximum of Five Thousand and No/100 Dollars ($5,000.00). Nothing in
this Section 4.7 shall waive the City's right to enforce Grantee's compliance with the
requirements of the City Code.
8. FCC Reports. The results of tests required to be filed by Grantee with the FCC shall also
be copied to City within ten (10) Days of the conduct of the date of the test.
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9. EAS/Emergency Use by City.
(a) At all times during the term of this Franchise, the Grantee shall provide and
maintain an Emergency Alert System (EAS) consistent with Applicable Law and
regulation including 47 C.F.R., Part 11 and the Minnesota Emergency Alert System
Statewide Plan.
(b) City shall have authority to test the EAS, consistent with Applicable Law, no
more frequently than once per year and during a time between 12:00 a.m. and 5:00 a.m.
and if the EAS fails to perform Grantee shall immediately make all repairs, at Grantee's
sole cost, and shall retest the EAS to demonstrate compliance. City shall provide notice
to the Grantee at least ten (10) Days prior to any such testing.
10. Parental Control Lock. Grantee shall provide for sale or lease to Subscribers, upon
request, a parental control locking device or digital code that permits inhibiting the video and
audio portions of any Channels offered by Grantee.
SECTION 5 SERVICES PROVISIONS
1. Rate Regulation. ation. The City reserves the right to regulate rates for Basic Cable Service and
any other services offered over the Cable System, to the extent permitted Applicable Laws. The
City and Grantee acknowledge that as of the Effective Date of this Franchise the FCC has
determined that the Grantee is subject to effective competition (See FCC Order CSR 6038-E
adopted March 30, 2004).
(a) In exercising its jurisdiction to regulate any such rates, City will adhere to
regulations adopted by the FCC at 47 C.F.R. § 76.900 et seq. as amended from time to
time.
(b) A list of Grantee's current Subscriber rates and charges shall be maintained on
file with City and shall be available for public inspection. Grantee shall give City and
Subscribers written notice of any change in a rate or charge no less than thirty (30) Days
prior to the date of the change.
2. Leased Channel Service. Grantee shall offer leased channel service on reasonable terms
and conditions and in accordance with Applicable Laws.
3. Service to Public Buildings.
(a) Service to City. Within ninety (90) Days of the Effective Date, Grantee will
provide the City Hall located at 20195 Holyoke Avenue, free of charge and at no cost to
the City, complimentary service with the highest level of standard definition ("SD") and
high definition ("HD") Cable Service offered by Grantee, excluding pay-per-view, pay
per channel (premium) programming, high-speed data services or newly created non -
video Cable Services ("Complimentary City Service"). However, Grantee must provide
the City any platform that includes the PEG Channels. In addition, the Grantee will also
provide the City, free of charge and at no cost to the City, any equipment necessary to
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receive these services at a minimum of five (5) television sets, which shall include SD,
HD, VOD, and new platforms, boxes, devices, remotes, and digital television adaptors
(DTAs). If changes in the technology used by the Grantee require additional equipment
for reception of PEG Channels the Grantee shall make such equipment available at to up
to five (5) television sets free of charge and at no cost to the City.
(b) Service to Designated Public Buildings. Grantee shall provide, free of charge and
at no cost, SD and HD Cable Service (currently Vantage TV Prime) which, at a
minimum, shall include a package of Channels including all Broadcast and PEG
Channels and at least one hundred (100) additional commercial channels (but not
including pay-per-view or premium Channels, ("Complimentary Public Building
Service") including all necessary SD and HD reception equipment for to up to three (3)
television sets at all other government buildings, schools and public libraries passed by
the Cable System and so long as no other franchised cable communications provider is
providing Complimentary City Service at such location. However, City may determine
to disconnect the other franchised cable communications provider and require Grantee to
meet the Complimentary Public Building Service obligations set forth herein, as
determined in City's sole discretion. Initially, the City and Grantee agree that Grantee
shall make available service to those buildings listed on Exhibit C. For purposes of this
Section 5.3(b), "school" means all State -accredited K-12 public and private schools.
Complimentary Public Building Service provided in accordance with this subsection may
be used to distribute Cable Services throughout such buildings provided such distribution
can be accomplished without causing Cable System disruption and general technical
standards are maintained. Such outlets may only be used for lawful purposes. Grantee
shall provide, at the lowest retail rate offered in the market, HD Service as may be
requested by any buildings receiving service under this Section 5.3(b).
(c) Grantee agrees that if any broadband service is required in order to receive the
Complimentary Public Building Service or Complimentary City Service obligations set
forth in this Section 5.3, Grantee will provide such broadband service free of charge for
the sole purpose of facilitating the provision free Cable Service required by Section 5.3.
(d) Additional Subscriber network Drops and/or outlets in any of the locations
identified on Exhibit C will be installed by Grantee at the lowest Actual Cost of
Grantee's time and material. Grantee shall provide the City with a complete and detailed
cost estimate which shall include Grantee's Actual Costs for any additional Subscriber
network Drop and/or outlets. Within no more than ninety (90) Days thereafter, the City
shall work with institution requesting the additional Subscriber network Drop and/or
outlets and provide Grantee with written approval, if applicable, to move forward with
the additional Subscriber network Drop and/or outlets. Grantee shall only begin work on
construction of the additional Subscriber network Drop and/or outlets once final approval
is received from the City, and Grantee shall complete construction within thirty (30) Days
from the date of approval. Grantee shall bill the institution requesting the additional
Subscriber network Drop and/or outlets its Actual Costs in accordance with the agreed
upon estimate. The terms and conditions of such payment shall be between the Grantee
and the institution. Alternatively, said institutions may add outlets at their own expense,
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as long as such Installation meets Grantee's standards and approval which approval shall
not be unreasonably withheld. Grantee shall have three (3) months from the date of City
designation to complete construction of the Drop and/or outlets unless weather or other
conditions beyond the control of Grantee requires more time.
(e) Grantee agrees that it will not offset or reduce its payment of past, present or
future Franchise Fees required pursuant to Section 7.1 of this Franchise, as a result of its
obligation to provide the services listed in Section 5.3 and Exhibit C of this Franchise.
(f) Maintenance of said Complimentary Public Building Service shall be provided by
Grantee free of all fees and charges.
4. Sales Procedures. Grantee shall comply with Minnesota Statutes, Section 325D.43-48
prohibiting deceptive sales procedures when marketing its Cable Services within City. Grantee
shall have the right to market its Cable Services door-to-door during reasonable hours consistent
with Applicable Law.
5. Grantee Identification. Grantee shall provide all customer service technicians and all
other Grantee employees, subcontractors and agents entering private property with appropriate
picture identification so that Grantee employees may be easily identified by the property owners
and Subscribers.
6. Customer Service Provisions.
(a) Customer Service Standards. The Grantee shall comply with the standards and
requirements for customer service set forth in Title 3 Chapter 11 Section 1.18 of the City
Code and Exhibit B throughout the term of this Franchise.
(b) Subscriber Contracts. Grantee shall, written upon request, provide the City with
any standard form residential Subscriber contract utilized by Grantee. If no such written
contract exists, Grantee shall file with the City a document completely and concisely
stating the length and terms of the Subscriber contract offered to customers. The length
and terms of any standard form Subscriber contract(s) shall be available for public
inspection during Normal Business Hours. A list of Grantee's current Subscriber rates
and charges for Cable Service, specifically including Basic Cable Service, shall be
maintained on file with City and shall be available for public inspection. For purposes of
this section, the availability of this information on Grantee's web site shall constitute
compliance.
(c) Refund Policy. In the event a Subscriber establishes or terminates service and
receives less than a full month's service, Grantee shall prorate the monthly rate on the
basis of the number of days in the period for which service was rendered to the number of
days in the billing. If a Subscriber's Cable Service is interrupted or discontinued, without
cause, for twenty-four (24) or more consecutive hours, the Grantee shall, upon request by
the Subscriber, credit such Subscriber pro rata for such interruption. For this purpose,
every month will be assumed to have thirty (30) Days.
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(d) Late Fees. Grantee shall comply with all Applicable Laws with respect to any
assessment, charge, cost, fee or sum, however characterized, that the Grantee imposes
upon a Subscriber for late payment of a bill. The City reserves the right to enforce
Grantee's compliance with all Applicable Laws to the maximum extent legally
permissible.
(e) Subscriber Bills. Subscriber bills shall be designed in such a way as to present the
information contained therein clearly and comprehensibly to Subscribers, and in a way
that (a) is not misleading and (b) does not omit material information. Notwithstanding
anything to the contrary in Section 5.6(d), above, Grantee may, in its sole discretion,
consolidate costs on Subscriber bills as may otherwise be permitted by Section 622(c) of
the Cable Act (47 U.S.C. §542(c)).
(f) Failure to Resolve Complaints. Grantee shall resolve a complaint within thirty
(30) Days in a manner deemed reasonable by the City under the terms of the Franchise.
(g) Maintain a Complaint Repair Line. Grantee shall maintain a local or toll-free
telephone Subscriber repair line, available to its Subscribers twenty-four (24) hours per
Day, seven (7) Days a week.
(h) Notification of Complaint Procedure. Grantee shall have printed clearly and
prominently on each Subscriber bill and in the customer service agreement provided for
in Section 5.6(e), the twenty-four (24) hour Grantee phone number for Subscriber
complaints. Additionally, Grantee shall provide information to Subscribers concerning
the procedures to follow when they are unsatisfied with measures taken by Grantee to
remedy their complaint. This information will include the phone number of the City
office or Person designated to handle complaints. Additionally, Grantee shall state that
complaints should be made to Grantee prior to contacting the City.
(i) Grantee Identification. Grantee shall provide all customer service technicians and
all other Grantee employees entering private property with appropriate picture
identification so that Grantee employees may be easily identified by the property owners
and Subscribers.
7. Disputes. All Subscribers and members of the general public may direct complaints,
regarding Grantee's Service or performance to the City Administrator of the City or the City
Administrator's designee, which may be a board or commission of the City.
8. Subscriber Privacy. To the extent required by Minnesota Statutes, Section 238.084,
Subdivision 1(s) Grantee shall comply with the following:
(a) No signals including signals of a Class IV Channel may be transmitted from a
Subscriber terminal for purposes of monitoring individual viewing patterns or practices
without the express written permission of the Subscriber. The request for permission
must be contained in a separate document with a prominent statement that the Subscriber
is authorizing the permission in full knowledge of its provisions. Such written
permission shall be for a limited period of time not to exceed one (1) year which may be
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renewed at the option of the Subscriber. No penalty shall be invoked for a Subscriber's
failure to provide or renew such permission. The permission shall be revocable at any
time by the Subscriber without penalty of any kind whatsoever.
(b) No information or data obtained by monitoring transmission of a signal from a
Subscriber terminal, including but not limited to lists of the names and addresses of
Subscribers or any lists that identify the viewing habits of Subscribers shall be sold or
otherwise made available to any party other than to Grantee or its agents for Grantee's
business use, and also to the Subscriber subject of that information, unless Grantee has
received specific written permission from the Subscriber to make such data available.
(c) Written permission from the Subscriber shall not be required for the conducting of
system wide or individually addressed electronic sweeps for the purpose of verifying
System integrity or monitoring for the purpose of billing. Confidentiality of such
information shall be subject to the provision set forth in subparagraph (b) of this section.
SECTION 6 PUBLIC ACCESS PROVISIONS
Public, Educational and Government Access.
(a) City or its designee is hereby designated to operate, administer, promote, and
manage the PEG programming for the Cable System established pursuant to this Section
6.
(b) Grantee shall dedicate five (5) Channels for PEG access use by the City ("PEG
Channels"). The PEG Channels shall be activated on or before February 1, 2017. Each
of the PEG Channels shall be made available to Subscribers in both a standard definition
("SD") and a high definition ("HD") digital format on Grantee's Basic Cable Service tier
to the extent City provides Grantee an HD signal. Use of the PEG Channels shall be
determined in City's sole discretion and Grantee shall have no responsibility for the
content, operations or use of the PEG Channels other than as specified herein. In no
event shall any franchised cable operator in the City be required to offer more PEG
channels than any other franchised cable operator.
(c) City may not request additional Channel capacity beyond the five (5) Channels
for PEG use except in accordance with Applicable Laws.
(d) Grantee shall also designate the standard VHF Channel 6 for uniform regional
channel usage currently provided by "Metro Channel 6" as required by Minnesota
Statutes Section 238.43. Programming on this regional channel shall include a broad
range of informational, educational, and public service programs and materials to cable
television subscribers throughout the Twin Cities metropolitan area.
(e) The Grantee and the City shall cooperate to ensure that the quality of the PEG
Channels meets FCC technical standards including those applicable to the carriage of
PEG Channels; provided however, that the Grantee is not responsible for the production
quality of PEG programming.
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(f) The placement of PEG access channels on the system shall not make these PEG
channels more vulnerable to interference or ingress than the primary signals of local
broadcast stations that are delivered using similar transmission technology in City.
Within twenty-four (24) hours of a written request from City to the Grantee identifying a
technical problem with the signal quality of a PEG channel and requesting assistance,
Grantee will provide technical assistance or diagnostic services to determine whether or
not a problem with a PEG signal is the result of matters for which Grantee is responsible
and if so, Grantee will take prompt commercially reasonable corrective action. If the
problem persists and there is a dispute about the cause, then the parties shall meet with
engineering representation from Grantee and the City in order to determine the course of
action to remedy the problem.
(g) In accordance with Section 611 (d) of the Cable Act, the City shall prescribe (1)
rules and procedures under which the Grantee is permitted to use the five (5) PEG
Channels for the provision of other services if such channel capacity is not being used for
the purposes designated, and (2) rules and procedures under which such permitted use
shall cease.
(h) Grantee shall be responsible for the signal transport to deliver all PEG content to
its headend so that signals can be routed onto an appropriate PEG Channel. Grantee shall
transmit the PEG access feeds from the Demarcation Points to the Grantee's headend in
such a manner as to comply with FCC technical standards and with no significant
deterioration in the quality of PEG access signals, using dedicated capacity sufficient for
high-quality transmission of the format used by the PEG User.
2. Digital and HD PEG Carriage Requirements.
(a) Grantee shall provide, free of charge, the PEG Channels in a SD and HD format
on the Basic Cable Service tier or the lowest tier of service offered by Grantee. For so
long as applicable under Minnesota Statutes, Section 238.084, Subdivision 1(bb), the
VHF spectrum must be used for at least one (1) of the PEG Channels required in this
Section 6.2. Nothing herein precludes the Grantee from charging for any Subscriber
equipment needed to receive Basic Cable Service.
(b) Grantee shall, free of charge and at no cost to the City, provide any equipment
that is necessary for the transport of a HD or SD digital signal (digital video with enabled
audio) from the City's two designated head end facilities (located at the City Hall and
ISD 194) to Grantee's head end.
(c) The City acknowledges that receipt of an HD format Channel may require
Subscribers to buy or lease special equipment, or pay additional HD charges applicable to
all HD services provided by Grantee. A Subscriber to the Basic Cable Service tier only
who has Grantee's HD capable set-top box will be able to receive the HD PEG Channel
on that outlet without any additional cost.
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(d) Grantee shall provide all necessary transmission equipment from the
Demarcation Point and throughout Grantee's distribution system (including Grantee's
headend), in order to deliver the PEG Channels, but does not require Grantee to incur any
costs downgrading the signal for Subscribers who do not have the necessary equipment to
receive an HD signal.
3. Access Channel Locations.
(a) The designated PEG Channels shall be located on the following channel numbers:
(1) Channel 184 for Lakeville government programming
(2) Channel 187 for Lakeville public programming
(3) Channel 188 for ISD 194 (Lakeville School District) educational
programming
(4) Channel 189 for ISD 196 (Eagan, Apple Valley, Rosemount School
District) educational programming
(5) Channel 185 for ISD 192 (Farmington School District) educational
programming.
(b) Grantee agrees not to encrypt the PEG Channels differently than other
commercial Channels available on the Cable System.
(c) Grantee shall provide City and all Subscribers with at least sixty (60) Days prior
written notice of any relocation of any public or educational access channel to a different
Channel number. In the event any PEG Channel(s) is relocated, Grantee shall, in
advance of the relocation, inform Subscribers of the new Channel location through bill
messages and/or bill inserts, and shall list the new location on the on -air program guide.
4. Video on Demand.
In the event any other franchised cable operator serving the City agrees to a franchise
obligation to provide PEG channel programming in a video -on -demand (VOD) format,
Grantee agrees to meet with the City within a reasonable time to agree upon and provide
comparable PEG VOD capabilities on Grantee's system.
5. PEG Technical Quality.
(a) The placement of PEG Channels on the System shall not make these PEG
Channels more vulnerable to interference or ingress than the primary signals of local
broadcast stations that are delivered using similar transmission technology in City.
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(b) The Grantee will provide all SD and HD PEG Channels to Subscribers at
equivalent visual and audio quality and equivalent functionality to that in which the
Grantee delivers the SD and HD CSPAN channel, or its future equivalent.
(c) There shall be no significant deterioration in a PEG Channel's signal from the
point of origination upstream to the point of reception downstream on the Cable System.
(d) Upon request, throughout the term of the Franchise, Grantee shall provide
updated contact information for a local technical representative with local knowledge of
the City's PEG operations, who shall be available to the City for consultation on
technical matters as the need may arise. This technical representative shall be accessed
through a direct telephone number available to the City (as opposed to a general public
number). The Grantee shall not impose any fees or charges to the City for this technical
consultation. If such consultation is insufficient to diagnose the matter in question,
within twenty-four (24) hours of a written request from City to the Grantee identifying a
technical problem with a PEG Channel signal and requesting assistance, Grantee will
provide, free of charge to City, diagnostic services to determine whether or not a problem
with a PEG signal is the result of matters for which Grantee is responsible) and if so,
Grantee will take prompt corrective action, free of charge to City, subject to the
limitations on Grantee's responsibilities outlined in Section 6.1 herein. If the problem
persists and there is a reasonable dispute about the cause, then the parties shall meet with
engineering representation from Grantee and the City in order to mutually determine the
course of action to remedy the problem. Nothing herein shall be construed to obligate
Grantee to correct problems or take any other action caused by City's signal, City's
network or internal wiring, City's equipment, PEG access program content or other issues
within City's reasonable control.
(e) Grantee shall comply with Applicable Law regarding the carriage of PEG
Channels.
6. Programming Guide. Grantee shall, free of charge and at no cost to the City, include the
basic PEG Channel programming information in any electronic/interactive program guide
offered by Grantee or any third party the Grantee may contract with for such service. The City
shall have the right, in City's sole discretion and at City's sole cost, to pay for more enhanced
program information to be made available on the programming guide(s) including the Channel
name and logo/icon, program titles, program descriptions, and any other information similarly
provided for other commercial cable/satellite Channels.
7. Promotion of PEG Channels. To the extent permitted by Grantee's billing process and
solely for the purpose of promoting the PEG Channels, Grantee shall allow the City to place bill
stuffers in Grantee's Subscriber statements at a cost to the City not to exceed Grantee's cost, no
more frequently than once per year upon the written request of the City and at such times that the
placement of such materials would not materially and adversely affect Grantee's cost for the
production and mailing of such statements.
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8. Access Rules. City shall implement rules for use of the government and educational
access channels. The access rules and any amendments thereto shall be maintained on file with
City and made available for public inspection during Normal Business Hours.
9. PEG Fee.
(a) Upon the Effective Date of this Franchise, Grantee shall collect on behalf of the City a
per Subscriber fee of Fifty Cents (50¢) per month solely to fund public, educational and
governmental access -related expenditures (hereinafter "PEG Fee"). The PEG Fee may be
used for operational or capital support of PEG programming as determined in the City's
discretion.
(b) Upon sixty (60) Days advance written notice to Grantee, the City may increase the
PEG Fee to a per Subscriber fee of not greater than one and one half percent (1.5%) of
Grantee's Gross Revenues.
(c) In no event shall the PEG Fee be assessed in an amount or manner different from
that imposed upon other existing franchised cable communications providers in the City.
In the event the existing cable communications provider agrees to a higher or lower PEG
Fee, Grantee will increase or decrease its PEG Fee upon sixty (60) Days' written notice
from the City.
(d) The City may, at any time, reduce the PEG Fee upon ninety (90) Days written
notice to Grantee.
(e) Grantee shall pay the PEG Fee to the City quarterly, at the same time as the
payment of Franchise Fees under Section 7.1 of this Franchise.
(f) Any PEG Fee amounts owing pursuant to this Franchise which remain unpaid
more than forty-five (45) Days after the date the payment is due shall be past due and
subject to a late fee of not more than three-quarter percent (.75 %) per month or the
maximum amount permitted by law.
(g) The PEG Fee is not intended to represent part of the Franchise Fee and is intended
to fall within one (1) or more of the exceptions in 47 U.S.C. § 542. The PEG Fee may be
categorized, itemized, and passed through to Subscribers as permissible, in accordance
with 47 U.S.C. §542 or other applicable laws. Grantee shall pay the PEG Fee to the City
quarterly at the same time as the payment of Franchise Fees under Section 7.1 of this
Franchise. Grantee agrees that it will not offset or reduce its payment of past, present or
future Franchise Fees required as a result of its obligation to remit the PEG Fee.
SECTION 7 OPERATION AND ADMINISTRATION PROVISIONS
Franchise Fee/Audit.
(a) For as long as this Franchise remains in place, Grantee shall pay to City a
Franchise Fee in an amount equal to five percent (5%) of its annual Gross Revenues. The
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foregoing payment shall be compensation for use of Streets and other public property. At
no time during the term of this Franchise shall the Grantee be required to pay a Franchise
Fee percentage that is greater than the monthly Franchise Fee percentage paid by any
other franchised provider within the City. The Grantee shall comply with the definition
of "Gross Revenues" set forth in Section 3-11-1.2.o of the City Code until such time as
that definition is amended or deleted. In the event Section 3-11-1.2.o of the City Code is
deleted, Grantee shall comply with the definition of `Gross Revenues" set forth in Section
1.2 (w) of this Franchise.
(b) The payment of Franchise Fees shall be made on a quarterly basis and shall be
due forty-five (45) Days after the close of each calendar quarter.
(c) Any Franchise Fees owing pursuant to this Franchise which remain unpaid more
than forty-five (45) Days after the dates specified herein shall be past due and subject to a
late fee of not more than three quarter percent (.75 %) per month or the maximum
amount permitted by law.
(d) Each Franchise Fee payment shall be accompanied by a report prepared by a
representative of the Grantee showing the basis for the computation of the Franchise Fees
paid during that period in a form and substance substantially equivalent to Exhibit D
attached hereto. Nothing in Exhibit D will modify the Gross Revenues definition of this
Franchise.
(e) No acceptance of any payment by the City shall be construed as a release or as an
accord and satisfaction of any claim the City may have for further additional sums
payable as a Franchise Fee under this Franchise or for the performance of any other
obligation of the Grantee.
2. Not Franchise Fees. Taxes.
(a) Grantee acknowledges and agrees that the Franchise Fees payable by Grantee to
City pursuant to this section shall take precedence over all other material provisions of
the Franchise and shall not be deemed to be in the nature of a tax. The Franchise Fees
payable by Grantee to City pursuant to this section shall be defined consistent with 47
U.S.C. § 542 (g).
(b) Upon thirty (30) Days prior written notice, and no more than once per calendar
year, City shall have the right to conduct an independent review/audit of Grantee's
records solely for the purpose of assessing Grantee's compliance with the Franchise Fee
obligations herein.
3. Access to Records. Subject to the privacy provisions of the Cable Act, throughout the
term of this Franchise, the Grantee agrees that the City, upon reasonable prior written notice of
thirty (30) Days to the Grantee, shall have the right to review such of the Grantee's books and
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 Grantee's compliance
with the provisions of this Franchise ("Records"). Such notice shall specifically reference those
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sections of the Franchise that are under review so that the Grantee may organize the necessary
Records for easy access by the City. Grantee shall make available for review such Records at
Grantee's sole cost and expense, free of charge to the City. Records shall be retained by the
Grantee for a period of six (6) years, pursuant to Minnesota Statutes, Section 541.05. The
Grantee shall not deny the City access to Records on the basis that the Records are under the
control of any parent corporation, affiliated entity or a third party. The City may request in
writing copies of any such Records and the Grantee shall provide such copies within thirty (30)
Days of the receipt of such request subject to the provisions of this section regarding confidential
information. Grantee shall provide all Records requested by the City or City's agent in the
following manner: 1) at a conference room in City Hall; or 2) at Grantee's office located in the
City or no further than five (5) miles from the City limits; or 3) via mail or electronic
communication acceptable to the City and Grantee.
4. Confidential Information.
(a) Subject to Applicable Law, Grantee may choose to provide any confidential or
proprietary Records that it is obligated to make available to the City pursuant to this
Franchise, by allowing the City, or its designated representative(s), to view the Records at
a conference room in City Hall or at Grantee's office located in the City, or no further
than five (5) miles from the City limits, without City obtaining its own copies of such
Records. Grantee may also choose to provide any confidential or proprietary Records
pursuant to a mutually acceptable non -disclosure agreement with a City designated agent.
The intent of the parties is to work cooperatively to insure that those Records reasonably
necessary for City's monitoring and enforcement of Franchise obligations are provided to
City. To the extent that Grantee does provide Records directly to the City, City agrees to
keep said Records confidential and proprietary to the fullest extent permitted by
Applicable Law. Grantee shall be responsible for clearly and conspicuously identifying
the Records confidential or proprietary. Grantee acknowledges that the Minnesota Data
Practices Act ("MDPA") places limitations on the ability of the City to protect certain
information unless such information meets the statutory requirements set forth in the
MDPA.
(b) If the City believes it must release any such confidential or proprietary Records in
the course of enforcing this Franchise, or for any other reason including compliance with
the MDPA, it shall advise Grantee in advance so that Grantee may take appropriate steps
to protect its interests. The City agrees that, to the extent permitted by the MDPA and
Applicable Law, it shall deny access to any of Grantee's Records marked confidential, as
set forth above, to any Person and that it shall furnish only that portion of the Grantee's
Records required under the MDPA and Applicable Law.
Reports to be Filed with City.
(a) All reports and Records required under this Franchise shall be furnished at the
sole expense of Grantee.
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(b) Grantee shall at all times maintain the following records and information relating
specifically to the Cable System serving the City as identified by the FCC Community
Unit Identifier ("CUID") as opposed to a regional cable system or other operating unit of
Grantee and shall provide such information to City upon no less than thirty (30) Days
advance written request:
(1) A written or computer -stored record of all truck rolls undertaken by the
Grantee for the preceding two (2) years.
(2) a complaint record for Cable Service which shall contain a semi-annual
(January 1 through June 30 and July 1 through December 31) breakdown
indicating the total number of escalated complaints received for the preceding
reporting period, and shall indicate the classifications of all other complaints in
general categories such as construction, billing, customer relations/service and
miscellaneous. Escalated complaints shall mean those complaints that are
received by the City, or received in writing by Grantee's area management.
(3) At the City's written request, Grantee shall provide the City with
information which shall describe in detail Grantee's compliance with Exhibit B
hereto.
(4) Grantee shall provide City with an annual statement, within ninety (90)
Days of the close of each calendar year end reflecting the total amounts of Gross
Revenues and all payments, and computations of the Franchise Fee for the
previous calendar year.
(5) In addition to the requirements above, Grantee shall continue to submit a
written quarterly report to City utilizing the format outlined in the Customer
Service Report attached hereto as Exhibit E. Grantee will maintain equipment
necessary to measure compliance with the telephone answering standards
contained in Exhibit B of this Franchise.
(c) Upon request of the City and only to the extent mutually upon by Grantee in no
event later than thirty (30) Days from the date of receipt of such request, Grantee shall,
upon mutually acceptable terms and conditions, prepare and furnish to the City such
additional reports with respect to its operation, affairs, transactions or property, as may be
reasonably necessary to ensure compliance with the terms of this Franchise. Neither City
nor Grantee shall unreasonably demand or withhold information requested pursuant with
the terms of this Franchise. The City agrees to request access to only those books and
records, in exercising its rights under this section, which it deems reasonably necessary
for the enforcement and administration of this Franchise.
SECTION 8 GENERAL FINANCIAL AND INSURANCE PROVISIONS
Letter of Credit.
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(a) Upon the Effective Date, Grantee shall deliver to City a cash deposit or an
irrevocable and unconditional letter of credit, in form and substance acceptable to City,
from a national or state bank approved by City, in the amount of Twenty-five Thousand
and No/100 Dollars ($25,000.00). Interest on the deposit shall accrue to the Grantee.
Upon request of the City, Grantee shall provide a copy of the letter of credit. City may,
in its sole discretion, reduce the amount of the letter of credit.
(b) The letter of credit shall provide that funds will be paid to City, upon written
demand of City, and in an amount as outlined in the section in payment for penalties
charged pursuant to this section, in payment for any monies owed by Grantee to City
pursuant to its obligations under this Franchise, or in payment for any damage incurred
by City as a result of any acts or omissions by Grantee pursuant to this Franchise.
(c) In addition to recovery of any monies owed by Grantee to City or damages to City
as a result of any acts or omissions by Grantee pursuant to the Franchise, City in
compliance with this section may charge to and collect from the letter of credit the
following liquidated damages:
(1) For failure to provide data, documents, reports or information or to
cooperate with City during an application process or system review or as
otherwise provided herein, the liquidated damages shall be Two Hundred Fifty
and No/ 100 Dollars ($250.00) per day for each day, or part thereof, such failure
occurs or continues up to a maximum of Ten Thousand and No/ 100 Dollars
($10,000.00).
(2) For failure to comply with construction, operation or maintenance
standards, the liquidated damages shall be Three Hundred Fifty and No/ 100
Dollars ($350.00) per day for each day, or part thereof, such failure occurs or
continues up to a maximum of Ten Thousand and No/ 100 Dollars ($10,000.00).
(3) For failure to meet the PEG access requirements set forth in Section 6 of
this Franchise, the liquidated damages shall be Two Hundred and No/ 100 Dollars
($200.00) per day for each day, or part thereof, such failure occurs or continues
up to a maximum of Ten Thousand and No/ 100 Dollars ($10,000.00).
(4) For failure to comply with any of the provisions of this Franchise, or other
City ordinance related to Franchise operations for which liquidated damages are
not otherwise specifically provided pursuant to this subparagraph (c), the
liquidated damages shall be Two Hundred Fifty and No/100 Dollars ($250.00) per
day for each day, or part thereof, such failure occurs or continues up to a
maximum of Ten Thousand and No/ 100 Dollars ($10,000.00).
(d) Each violation of any provision of this Franchise shall be considered a separate
violation for which a separate penalty can be imposed.
(e) Whenever City finds that Grantee has violated one (1) or more terms, conditions
or provisions of this Franchise, or for any other violation contemplated in subparagraph
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(c), above, a written notice shall be given to Grantee informing it of such violation. At
any time after ten (10) Days for monetary violations and thirty (3 0) Days for non -
monetary violations (or such longer reasonable time which, in the sole determination of
City, is necessary to cure the alleged violation) following local receipt of notice, provided
Grantee remains in violation of one (1) or more terms, conditions or provisions of this
Franchise, in the sole opinion of City, City may draw from the letter of credit all
liquidated damages and other monies due City from the date of the local receipt of notice.
(f) Upon receipt of the violation notice from the City, the Grantee may within thirty
(30) Days of such receipt notify City in writing that there is a dispute as to whether a
violation or failure has in fact occurred. Such written notice by Grantee to City shall
specify with particularity the matters disputed by Grantee. Such notice by Grantee shall
toll the timeframes herein and the accrual of all liquidated damages from the security
fund until the City issues a decision following the required hearing in Section 8.1(f)(1)
herein. If Grantee does not dispute the alleged violation set forth in the violation notice,
Grantee shall have thirty (30) Days from the receipt of the violation notice to cure the
alleged default before the City may impose liquidated damages as set forth Section 8.1(c)
herein.
(1) City shall hear Grantee's dispute within sixty (60) Days and render a final
decision within sixty (60) Days thereafter.
(2) Upon the determination of City that no violation has taken place, City
shall refund to Grantee, without interest, all monies drawn from the letter of credit
by reason of the alleged violation.
(g) If said letter of credit or any subsequent letter of credit delivered pursuant thereto
expires during the term of this Franchise, it shall be renewed or replaced during the term
of this Franchise. The renewed or replaced letter of credit shall be of the same form and
with a bank authorized herein and for the full amount stated in subparagraph (a) of this
section.
(h) If City draws upon the letter of credit or any subsequent letter of credit delivered
pursuant hereto, in whole or in part, Grantee shall replace or replenish to its full amount
up the maximum provided by this Section 8.3(h) the same within ten (10) Days and shall
deliver to City a like replacement letter of credit or certification of replenishment for the
full amount stated in Section 8.1(a) as a substitution of the previous letter of credit. This
shall be a continuing obligation for any draws upon the letter of credit up to an aggregate
total of Seventy -Five Thousand and No/ 100 Dollars ($75,000.00) over the Franchise
term.
(i) The failure to replace or replenish any letter of credit as required by Section 8.1
(h) may also, at the option of the City, be deemed a default by Grantee under this
Franchise. The drawing on the letter of credit by City, and use of the money so obtained
for payment or performance of the obligations, duties and responsibilities of Grantee
which are in default, shall not be a waiver or release of such default.
0) The collection by City of any liquidated damages or monies from the letter of
credit shall not affect any other right or remedy available to City, nor shall any act, or
failure to act, by City pursuant to the letter of credit, be deemed a waiver of any right of
City pursuant to this Franchise or otherwise.
2. Procedures for Revocation, Termination or Cancellation.
(a) City shall provide Grantee with written notice of a cause for revocation,
termination, or cancellation and the intent to revoke, terminate or cancel and shall allow
Grantee thirty (30) Days subsequent to receipt of the notice in which to correct the
violation or to provide adequate assurance of performance in compliance with the
Franchise. In the notice required therein, City shall provide Grantee with the basis of the
revocation, termination or cancellation.
(b) Grantee shall be provided the right to a public hearing affording due process
before the City Council prior to the Effective Date of revocation, termination, or
cancellation, which public hearing shall follow the thirty (30) day notice provided in
subparagraph (a) above. City shall provide Grantee with written notice of its decision
together with written findings of fact supplementing said decision.
(c) Only after the public hearing and upon written notice of the determination by City
to revoke, terminate or cancel the Franchise may Grantee appeal said decision with an
appropriate state or federal court or agency.
(d) During the appeal period, the Franchise shall remain in full force and effect unless
the term thereof sooner expires or unless continuation of the Franchise would endanger
the health, safety and welfare of any Person or the public.
3. Indemnification of City.
(a) Grantee shall indemnify, defend and hold the City, and their officers, boards,
commissions, agents and employees (collectively the "Indemnified Parties") harmless
from and against any and all lawsuits, claims, causes of action, actions, liability,
demands, damages, judgments, settlements, disability, losses, expenses (including
attorneys' fees and disbursements of counsel) and costs of any nature that any of the
Indemnified Parties may at any time, suffer, sustain or incur arising out of, based upon or
in any way connected with the grant of this Franchise, the operation construction,
maintenance, or repair of Grantee's System, the breach by Grantee of its obligations
under this Franchise and/or the activities of Grantee, its subcontractor, employees and
agents hereunder. Grantee shall be solely responsible for and shall indemnify, defend
and hold the Indemnified Parties harmless from and against any and all matters relative to
payment of Grantee's employees, including compliance with Social Security and
withholdings.
(b) The indemnification obligations of Grantee set forth in this Franchise are not
limited in any way by the amount or type of damages or compensation payable by or for
Grantee under Workers' Compensation, disability or other employee benefit acts,
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acceptance of insurance certificates required under this Franchise, or the terms,
applicability or limitations of any insurance held by Grantee.
(c) City does not, and shall not, waive any rights against Grantee which it may have
by reason of the indemnification provided for in this Franchise, because of the acceptance
by City, or the deposit with City by Grantee, of any of the insurance policies described in
this Franchise.
(d) The indemnification of City by Grantee provided for in this Franchise shall apply
to all damages and claims for damages of any kind suffered by reason of any of the
Grantee's operations referred to in this Franchise, regardless of whether or not such
insurance policies shall have been determined to be applicable to any such damages or
claims for damages.
(e) Grantee shall not be required to indemnify City for claims arising from intentional
acts or omissions or negligence on the part of City or its officials, boards, commissions,
agents, or employees or for any claims or damages arising in any way from the PEG
Channels.
(f) In order for City to assert its rights to be indemnified, defended, and held
harmless, City must, with respect to each claim:
(1) Promptly notify Grantee within ten (10) business days in writing of any
claim or legal proceeding which gives rise to such right;
(2) Afford Grantee the opportunity to participate in and fully control any
compromise, settlement or other resolution or disposition of any claim or
proceeding; and
(3) Cooperate with reasonable requests of Grantee, at Grantee's expense, in its
participation in, and control, compromise, settlement or resolution or other
disposition of such claim or proceeding subject to subparagraph (2) above.
4. Insurance.
(a) As a part of the indemnification provided in Section 8.3, but without limiting the
foregoing, Grantee shall file with its acceptance of this Franchise, and at all times
thereafter maintain in full force and effect at its sole expense, a certificate of insurance
evidencing an occurrence -based commercial general liability insurance policy,
including coverage for contractual liability, bodily injury and property damage. City in its
capacity as such, its officers, elected officials, boards, commissions, agents and
employees shall be named as additional insureds under the commercial general liability
insurance policy on a primary, noncontributory basis. The commercial general liability
insurance policy shall be in an amount of not less than One Million and No/ 100 Dollars
($1,000,000.00) per occurrence and Two Million and No/100 dollars ($2,000,000) in the
general aggregate. Grantee shall also maintain an umbrella/excess liability insurance
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policy with a minimum limit of Two Million and No/ 100 Dollars ($2,000,000.00) per
claim/occurrence.
(b) The policy or policies of insurance shall be maintained by Grantee in full force
and effect during the entire term of the Franchise and shall be issued by a
company(ies) authorized to do business in the State of Minnesota with a rating by A.M.
Best & Co. of not less than "A-" upon the Effective Date of this Franchise or at the time a
sale or transfer of ownership is approved by City. Grantee or its insurance carriers shall
provide the City thirty (30) Days advance written or electronic notice of cancellation of
the policy whether for nonpayment of premium, or otherwise, and whether at the request
of Grantee, the insurance carrier or for other reasons.
(c) Grantee shall obtain and maintain Workers' Compensation Insurance for all of
Grantee's employees, and in case any work is sublet, Grantee shall require any
subcontractor similarly to provide Workers' Compensation Insurance for all of their
employees, all in compliance with state laws. Grantee shall provide the City with a
certificate of insurance indicating Workers' Compensation coverage on the Effective
Date.
SECTION 9 SALE, ABANDONMENT, TRANSFER AND REVOCATION OF FRANCHISE
1. Abandonment of Service. Grantee may not abandon the System or any portion thereof
without having first given three (3) months written notice to City. Grantee may not abandon the
System or any portion thereof without compensating City for damages resulting from the
abandonment.
2. Removal After Termination or Forfeiture.
(a) In the event of termination or forfeiture of the Franchise, City shall have the right
to require Grantee to remove all or any portion of the System from all Streets and public
property within City associated solely with the provision of Cable Service; provided,
however, that if Grantee is providing services other than Cable Services or pursuant to
Minnesota Statutes, Section 237.01 et seq., City shall not require the removal of the
System. Nothing in this section shall be deemed either to grant or to preclude the
provision of services other than Cable Services.
(b) If Grantee has failed to commence removal of System, or such part thereof as was
designated by City, within one hundred twenty (120) Days after written notice of City's
demand for removal is given, or if Grantee has failed to complete such removal within
twelve (12) months after written notice of City's demand for removal is given, City shall
have the right to declare all right, title, and interest to the System to be in City with all
rights of ownership including, but not limited to, the right to operate the System or
transfer the System to another for operation by it pursuant to the provisions of 47 U.S.C.
§ 547 (1989).
Sale or Transfer of Franchise.
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(a) No sale, transfer, assignment or "fundamental corporate change", as defined in
Minnesota Statutes, Section 238.083, of this Franchise shall take place until the parties to
the sale, transfer, or fundamental corporate change files a written request with City for its
approval, provided, however, that said approval shall not be required where Grantee
grants a security interest in its Franchise and assets to secure an indebtedness.
(b) City shall have thirty (30) Days from the time of the request to reply in writing
and indicate approval of the request or its determination that a public hearing is necessary
due to potential adverse effect on Grantee's Subscribers resulting from the sale or
transfer. Such approval or determination shall be expressed in writing within thirty (30)
Days of receipt of said request, or the request shall be deemed approved as a matter of
law.
(c) If a public hearing is deemed necessary pursuant to subparagraph (b) above, such
hearing shall be commenced within thirty (30) Days of such determination and notice of
any such hearing shall be given in accordance with local law or fourteen (14) Days prior
to the hearing by publishing notice thereof once in a newspaper of general circulation in
City. The notice shall contain the date, time and place of the hearing and shall briefly
state the substance of the action to be considered by City.
(d) Within thirty (30) Days after the closing of the public hearing, City shall approve
or deny in writing the sale or transfer request. City shall set forth in writing with
particularity its reason(s) for denying approval. City shall not unreasonably withhold its
approval.
(e) The parties to the sale or transfer of the Franchise only, without the inclusion of
the System in which substantial construction has commenced, shall establish that the sale
or transfer of only the Franchise will be in the public interest.
(f) Any sale or transfer of stock in Grantee so as to create a new controlling interest
in the System shall be subject to the requirements of this Section 9.3. The term
"controlling interest" as used herein is not limited to majority stock ownership, but
includes actual working control in whatever manner exercised.
(g) In no event shall a transfer or assignment of ownership or control be approved
without the transferee becoming a signatory to this Franchise and assuming all rights and
obligations there under, and assuming all other rights and obligations of the transferor to
the City.
(h) Grantee shall comply with 3 -11-1.9 and 3 -11-1.10 of the City Code regarding the
City's rights to purchase the Cable System.
4. Extended Operation and Continuity of Services. Upon termination or forfeiture of this
Franchise, Grantee shall remove its cable, wires, and appliances from the Streets, alleys, or other
public places within the Franchise Area if the City so requests. Failure by the Grantee to remove
its cable, wires, and appliances as referenced herein shall be subject to this Franchise.
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Receivership and Foreclosure.
(a) Consistent with Applicable Law, the Franchise granted hereunder shall, at the
option of City, cease and terminate one hundred twenty (120) Days after appointment of
a receiver or receivers, or trustee or trustees, to take over and conduct the business of
Grantee, whether in a receivership, reorganization, bankruptcy or other action or
proceeding, unless such receivership or trusteeship shall have been vacated prior to the
expiration of said one hundred twenty (120) Days, or unless: (1) such receivers or
trustees shall have, within one hundred twenty (120) Days after their election or
appointment, fully complied with all the terms and provisions of this Franchise granted
pursuant hereto, and the receivers or trustees within said one hundred twenty (120) Days
shall have remedied all the defaults and violations under this Franchise or provided a plan
for the remedy of such defaults and violations which is satisfactory to the City; and (2)
such receivers or trustees shall, within said one hundred twenty (120) Days, execute an
agreement duly approved by the court having jurisdiction in the premises, whereby such
receivers or trustees assume and agree to be bound by each and every term, provision and
limitation of this Franchise.
(b) In the case of a foreclosure or other judicial sale of the Franchise property, or any
material part thereof, City may give notice of termination of this Franchise upon Grantee
and the successful bidder at such sale, in which the event this Franchise and all rights and
privileges of the Grantee hereunder shall cease and terminate thirty (30) Days after such
notice has been given, unless (1) City shall have approved the transfer of the Franchise in
accordance with the provisions of this Franchise; and (2) such successful bidder shall
have covenanted and agreed with City to assume and be bound by all terms and
conditions of this Franchise.
SECTION 10 PROTECTION OF INDIVIDUAL RIGHTS
1. Discriminatory Practices Prohibited. Grantee shall comply at all times with all
Applicable Laws relating to nondiscrimination. Access to Cable Service shall not be denied to
any group of potential Subscribers because of the income of the residents of the local area in
accordance and consistent with 47 U.S.C. Section 541(a) (3), or based upon race or ethnicity.
Nothing contained herein shall prohibit the Grantee from offering bulk discounts, promotional
discounts, package discounts, or other such pricing strategies as part of its business practice to
the extent permitted under Applicable Law. Grantee shall provide Cable Service under non-
discriminatory rates and reasonable terms and conditions to all Subscribers who reside in any
location where the Grantee is capable of providing Cable Service. Grantee shall not arbitrarily
refuse to provide Cable Services to any Person or in any location where the Grantee is capable of
providing Cable Service. Any location where the Grantee is capable of providing Cable Service
shall also include Commercially -Zoned Parcels. "Commercially -Zoned Parcels" mean any street
address or municipally identified lot or parcel of real estate with a building. Grantee shall not
base decisions about construction or maintenance of its Cable System or facilities based upon the
income level of residents of the local area. Grantee shall provide such service at non-
discriminatory monthly rates for residential Subscribers, consistent with applicable federal, state,
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or local laws. Grantee shall not discriminate between or among any individuals in the
availability of Cable Service based upon income.
SECTION 11 MISCELLANEOUS PROVISIONS
1. Franchise Renewal. Any renewal of this Franchise shall be in accordance with
Applicable Laws.
2. Work of Contractors and Subcontractors. All provisions of this Franchise shall apply to
any subcontractor or others performing any work or services on Grantee's behalf pursuant to the
provisions of this Franchise. Grantee shall be responsible for ensuring that the work of
contractors and subcontractors is performed consistent with the Franchise and Applicable Laws
and shall indemnify the City pursuant to Section 8.3
3. Amendment of Franchise. Grantee and City may agree, from time to time, to amend this
Franchise. Such written amendments may be made at any time if City and Grantee agree that
such an amendment will be in the public interest or if such an amendment is required due to
changes in federal, state or local laws.
4. Compliance with Federal, State and Local Laws.
(a) If any federal or state law or regulation shall require or permit City or Grantee to
perform any service or act or shall prohibit City or Grantee from performing any service
or act which may be in conflict with the terms of this Franchise, then as soon as possible
following knowledge thereof, either party shall notify the other of the point in conflict
believed to exist between such law or regulation. Grantee and City shall conform to state
laws and rules regarding cable communications not later than one (1) year after they
become effective, unless otherwise stated, and shall conform to federal laws and
regulations regarding cable as they become effective.
(b) If any term, condition or provision of this Franchise or the application thereof to
any Person or circumstance shall, to any extent, be held to be invalid or unenforceable,
the remainder hereof and the application of such term, condition or provision to Persons
or circumstances other than those as to whom it shall be held invalid or unenforceable
shall not be affected thereby, and this Franchise and all the terms, provisions and
conditions hereof shall, in all other respects, continue to be effective and complied with
provided the loss of the invalid or unenforceable clause does not substantially alter the
agreement between the parties. In the event such law, rule or regulation is subsequently
repealed, rescinded, amended or otherwise changed so that the provision which had been
held invalid or modified is no longer in conflict with the law, rules and regulations then
in effect, said provision shall thereupon return to full force and effect and shall thereafter
be binding on Grantee and City.
5. Nonenforcement by City. Grantee shall not be relieved of its obligations to comply with
any of the provisions of this Franchise by reason of any failure or delay of City to enforce
prompt compliance. Any waiver by City of a breach or violation of any provision of this
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Franchise shall not operate as or be construed to be a waiver of any subsequent breach or
violation.
6. Administration of Franchise. The City Administrator shall have continuing regulatory
jurisdiction and supervision over the System and the Grantee's operation under the Franchise.
The City Administrator shall have authority to issue notice of franchise violations to Grantee
under Section 8 of this Franchise; provided, however, the Council shall have sole authority to
conduct any required hearings regarding such alleged violations and issue any decisions
regarding enforcement the Franchise.
7. Periodic Evaluation. The field of cable communications is rapidly changing and may see
many regulatory, technical, financial, marketing and legal changes during the term of this
Franchise. Therefore, in order to provide for a maximum degree of flexibility in this Franchise,
and to help achieve a continued advanced and modern System, the following evaluation
provisions shall apply:
(a) The City may require evaluation sessions at any time during the term of this
Franchise, upon thirty (30) Days written notice to Grantee, so long as such information is
not provided via quarterly meetings as specified in Section 4.3 herein.
(b) Topics which may be discussed at any evaluation session may include, but are not
limited to, new technologies, System performance, programming offered, PEG Channels,
facilities and support, municipal uses of cable, customer complaints, judicial rulings,
FCC rulings, line extension policies and any other topics City and Grantee deem relevant.
(c) As a result of a periodic review or evaluation session, City and Grantee may, upon
mutual agreement, develop such changes and modifications to the terms and conditions
of the Franchise and which are both economically and technically feasible.
8. Rights Cumulative. All rights and remedies given to City by this Franchise shall be in
addition to and cumulative with any and all other rights and remedies, existing or implied, now
or hereafter available to City, at law or in equity, and such rights and remedies shall not be
exclusive, but each and every right and remedy specifically given by this Franchise or otherwise
existing or given may be exercised from time to time and as often and in such order as may be
deemed expedient by City and the exercise of one (1) or more rights or remedies shall not be
deemed a waiver of the right to exercise at the same time or thereafter any other right or remedy.
9. Grantee Acknowledgment of Validity of Franchise. Grantee acknowledges that it has
had an opportunity to review the terms and conditions of this Franchise and has the right to enter
into, execute and perform its obligations under this Franchise and that Grantee believes that said
terms and conditions are not unreasonable and are valid and binding obligations. Subject to the
foregoing, nothing in this Franchise shall be construed as a waiver of any rights of the City or
Grantee.
10. Severability. If any section, subsection, sentence, clause, phrase, or other portion of this
Franchise is, for any reason, declared invalid, in whole or in part, by any court, agency,
commission, legislative body, or other authority of competent jurisdiction, such portion shall be
35
deemed a separate, distinct, and independent portion. Such declaration shall not affect the
validity of the remaining portions hereof, which other portions shall continue in full force and
effect.
11. Force Majeure. In the event Grantee's performance of any of the terms, conditions,
obligations or requirements of this Franchise is prevented or impaired due to any cause beyond
its reasonable control, such inability to perform shall be deemed to be excused for the period of
such inability and no penalties or sanctions shall be imposed as a result thereof, provided Grantee
has notified City in writing within a reasonable time of its discovery of the occurrence of such an
event then the Grantee shall have a commercially reasonable time under the circumstances to
perform such obligation under this Franchise, or to procure a substitute for such obligation to the
reasonable satisfaction of the City. Such causes beyond Grantee's reasonable control shall
include, but shall not be limited to, acts of God, civil emergencies and labor unrest or strikes,
untimely delivery of equipment, inability of Grantee to obtain access to an individual's property
and inability of Grantee to secure all necessary permits to utilize utility poles and conduit so long
as Grantee utilizes due diligence to timely obtain said permits.
12. Governing Law. This Franchise shall be deemed to be executed in the State of
Minnesota, and shall be governed in all respects, including validity, interpretation and effect, and
construed in accordance with the laws of the State of Minnesota.
SECTION 12 PUBLICATION EFFECTIVE DATE; ACCEPTANCE AND EXHIBITS
1. Publication; Effective Date. This Franchise shall be published in accordance with
Applicable Law. The Effective Date of this Franchise shall be the date specified in Section 1.2
("Definitions").
2. Acceptance.
(a) Grantee shall accept this Franchise on or before the Effective Date. The City's
"Notice of Intent to Consider an Application for a Franchise" ("Notice") provided,
consistent with Minn. Stat. 238.081 subd. 8, that applicants would be required to
reimburse the City for all necessary costs of processing a cable communications
franchise. Grantee submitted an application fee with its application to the City. The
Notice further provided that any unused portion of the application fee would be returned
and any additional fees required to process the application and franchise, beyond the
application fee, would be assessed to the successful applicant. The Grantee shall
therefore submit to the City at the time of acceptance of this Franchise, a check made
payable to the City of Lakeville, Minnesota for all additional fees and costs incurred by
the City. The City shall provide Grantee with a letter specifying such additional costs
following approval of this Franchise by the City Council. Such acceptance by the
Grantee shall be deemed the grant of this Franchise for all purposes, however, this
Franchise shall not be effective until all City ordinance adoption procedures are complied
with and all applicable timelines have run for the adoption of a City ordinance. In the
event acceptance does not take place or should all ordinance adoption procedures,
36
timelines and payments not be completed, this Franchise and any and all rights previously
granted to Grantee shall be null and void.
(b) Upon acceptance of this Franchise, Grantee shall be bound by all the terms and
conditions contained herein.
(c) Grantee shall accept this Franchise in the following manner:
(1) This Franchise will be properly executed and acknowledged by Grantee
and delivered to City.
(2) With its acceptance, Grantee shall also deliver any grant payments, letter
of credit and insurance certificates required herein that have not previously been
delivered.
Adopted this 6th day of September, 2016
ATTEST:
Charlene Friedges, City Clerk
37
CITY OF LAKEVILLE, MINNESOTA
By:
Matt Littl Mayor
EXHIBIT A
Quarterly Meeting= Report
Year
Ouarterly
Meetine Date
Total
households in
the City
Total
households
passed byan
Cable System
0/0 Of
households
seed
Total
households
Subscribing
Franchise Effective Date
1st Ouarter
2nd Ouarter
3rd Ouarter
4th Ouarter
A-1
EXHIBIT B
Customer Service Standards
(a) Cable System office hours and telephone availability:
(1) Grantee will maintain a local, toll-free or collect call telephone access line
which will be available to its Subscribers twenty-four (24) hours a day, seven (7)
days a week.
(2) Trained Grantee representatives will be available to respond to customer
telephone inquiries during Normal Business Hours.
(3) After Normal Business Hours, the access line may be answered by a
service or an automated response system, including an answering machine.
Inquiries received after Normal Business Hours must be responded to by a trained
Grantee representative on the next business day.
(4) Under Normal Operating Conditions, telephone answer time by a
customer representative, including wait time, shall not exceed thirty (30) seconds
when the connection is made. If the call needs to be transferred, transfer time
shall not exceed thirty (30) seconds. These standards shall be met no less than
ninety percent (90%) of the time under Normal Operating Conditions, measured
on a quarterly basis.
(5) Under Normal Operating Conditions, the customer will receive a busy
signal less than three percent (3%) of the time.
(b) Grantee shall maintain a convenient local customer service or bill payment
location for receiving Subscriber payments and where equipment can be dropped off or
exchanged. The local office shall be staffed during Normal Business Hours in order to
provide customer service.
(c) Installations, Outages and Service Calls. Under Normal Operating Conditions,
each of the following standards will be met no less than ninety five percent (95%) of the
time measured on a quarterly basis:
(1) Standard Installations will be performed within seven (7) business days
after an order has been placed.
(2) Excluding conditions beyond the control of the Grantee, the Grantee will
begin working on "Service Interruptions" promptly and in no event later than
twenty-four (24) hours after the interruption becomes known. The Grantee must
begin actions to correct other service problems the next business day after
notification of the service problem.
(3) The "appointment window" alternatives for Installations, service calls, and
other Installation activities will be either a specific time or, at maximum, a four
(4) hour time block during Normal Business Hours. (Grantee may schedule
B-1
service calls and other Installation activities outside of Normal Business Hours for
the express convenience of the customer.)
(4) Grantee may not cancel an appointment with a customer after the close of
business on the business day prior to the scheduled appointment.
(5) If Grantee's representative is running late for an appointment with a
customer and will not be able to keep the appointment as scheduled, the customer
will be contacted. The appointment will be rescheduled, as necessary, at a time
which is convenient for the customer.
(d) Communications between Grantee and Subscribers. Grantee shall comply with
the provisions of 47 CFR § 76.1601-1604 in communicating with Subscribers in the City.
(1) Grantee will provide written information on each of the following areas at
the time of Installation of Service, at least annually to all Subscribers, and at any
time upon request:
(A) Products and Services offered;
(B) Prices and options for programming services and conditions of
subscription to programming and other services;
(C) Installation and Service maintenance policies;
(D) Instructions on how to use the Cable Service;
(E) Channel positions of programming carried on the System; and
(F) Billing and complaint procedures, including the address and
telephone number of the City's cable office.
Subscribers shall be advised of the procedures for resolution of complaints about
the quality of the television signal delivered by the Grantee, including the address
of the responsible officer of the City.
(2) Subscribers will be notified of any changes in rates, programming services
or Channel positions as soon as possible in writing. Notice must be given to
Subscribers a minimum of thirty (30) Days in advance of such changes if the
change is within the control of the Grantee. In addition, the Grantee shall notify
Subscribers thirty (30) Days in advance of any significant changes in the
information required by Section (d) 1(A) — (F) of this Exhibit B.
(3) In addition to the requirement of subparagraph (2) of this section
regarding advance notification to Subscribers of any changes in rates,
programming services or Channel positions, Grantee shall give thirty (30) Days'
written notice to both Subscribers and the City before implementing any rate or
service change. Such notice shall state the precise amount of any rate change and
i�
briefly explain in readily understandable fashion the cause of the rate change
(e.g., inflation, change in external costs or the addition/deletion of Channels).
When the change involves the addition or deletion of Channels, each Channel
added or deleted must be separately identified. For purposes of the carriage of
digital broadcast signals, the Grantee need only identify for Subscribers, the
television signal added and not whether that signal may be multiplexed during
certain dayparts.
(4) To the extent Grantee is required to provide notice of service and rate
changes to Subscribers, the Grantee may provide such notice using any reasonable
written means at its sole discretion.
(5) Notwithstanding any other provision of this section, Grantee shall not be
required to provide prior notice of any rate change that is the result of a regulatory
fee, Franchise Fee, or any other fee, tax, assessment, or charge of any kind
imposed by any federal agency, state, or City on the transaction between the
Grantee and the Subscriber.
(e) Refunds. Refund checks will be issued promptly, but no later than either:
(1) The customer's next billing cycle following resolution of the request or
thirty (30) Days, whichever is earlier, or
(2) The return of the equipment supplied by the Grantee if service is
terminated.
(f) Credits. Credits for Service will be issued no later than the customer's next
billing cycle following the determination that a credit is warranted.
(g) Billing.
(1) Consistent with 47 C.F.R. § 76.1619, bills will be clear, concise and
understandable. Bills must be fully itemized, with itemizations including, but not
limited to, Basic Cable Service and premium service charges and equipment
charges. Bills will also clearly delineate all activity during the billing period,
including optional charges, rebates and credits.
(2) In case of a billing dispute, the Grantee must respond to a written
complaint from a Subscriber within thirty (30) Days.
B-3
EXHIBIT C
Service to Public Buildings
FACH.TTV NAME
ADDRESS
North Trail Elementary ISD 192
5580 — 17& Street W. Farmington 55024
Christian Heritage Academy (currently being built)
7320-1751b Street
Parkview Elementary ISD 196
6795 Gerdine Path, Rosemount 55068
Area Learning Center
20950 Howland Avenue
Community Education Office
8755 Upper 208 Street W.
C stat Lake Education Center
16250 I ava Avenue
Cherry View Elementary
8600 —175 Street W.
Christina Huddleston Elementary
9569 —175 Street W.
Eastview Elementary
18060 I ava Avenue
John F. Kennedy Elementary
21240 Holyoke Avenue
Lake Marion Elementary
19875 Dodd Boulevard
Lakeview Elementary
20500 Jacquard Avenue
Oak Hills Elementary
8640 — 1650 Street W.
Orchard Lake Elementary
16531 Klamath Trail
Kenwood Trail Middle School
16531 Kenwood Trail
McGuire Middle School
21220 Holyoke Avenue
Century Middle School
18610 I ava Avenue
Lakeville North High School
19600 I ava Avenue
Lakeville South High School
21135 Jacquard Avenue
ISD 194 District Office
8670 — 2 1 CP Street W.
Lakeville City Hall
20195 Holyoke Avenue
Lakeville Police Station
9237 — 183rd Street
Fire Station #1
20190 Holyoke Avenue
Fire Station #2
16720 Dodd Boulevard
Fire Station #3
17490 Kenrick Avenue
Fire Station #4
9465 —185 Street W.
Central Maintenance Facility
7570 179Street
Water Treatment Plant
18401 I ava Avenue
Heritage rary
20085 Heritage Drive
Arts Center
20965 Holyoke Avenue
Heritage Center
20110 Holyoke Avenue
Hasse Arena
8525 — 215 Street
Ames Arena
19900 I ava Avenue
Lakeville Liquors Heritage
20164 Heritage Drive
Lakeville Liquors Galaxie
16000 Galaxie Avenue
Lakeville Liquors Kenrick
16179 Kenrick Avenue
C-1
EXHIBIT D
Franchise Fee Payment Worksheet
TRADE SECRET - CONFIDENTIAL
D-1
City Name
Frontier -
State
Franchise Fee Rate: 5.00%
-oar -e,
Monthly Recurring Cable $0.00 $0.00
$0.00
$0.00
Service Charges (e.g. Basic,
Enhanced Basic, Premium and
Equipment Rental)
Usage Based Charges (e.g. Pay $0.00 $0.00
$0.00
$0.00
Per View, Installation)
Advertising $0.00 $0.00
$0.00
$0.00
Home Shopping $0.00 $0.00
$0.00
$0.00
Late Payment $0.00 $0.00
$0.00
$0.00
Other Misc. (Leased Access & $0.00 $0.00
$0.00
$0.00
Other Misc.)
Franchise Fee Billed $0.00 $0.00
$0.00
$0.00
PEG Fee Billed $0.00 $0.00
$0.00
$0.00
Less:
Bad Debt $0.00 $0.00
$0.00
$0.00
Total Receipts subject to $0.00 $0.00
$0.00
$0.00
Franchise Fee Calculation
Franchise Fee Due $0.00 $0.00
$0.00
$0.00
Frontier is hereby requesting that this information be treated as confidential
and proprietary business information
and trade secrets in accordance with applicable law. This information is not otherwise readily ascertainable or
publicly available by proper means by other persons from another source in
the same configuration as provided
herein, would cause substantial hard to competitive position of Frontier in the highly competitive video
marketplace if disclosed, is intended to be proprietary confidential business
information and
is treated by Frontier
as such.
D-1
EXHIBIT E
Customer Service Compliance Report
Activity Report
Homes Marketable
Basic Subscribers
Number of Subscribers in each Tier
Total Connects
Basic Only
% Penetration
Connects
Disconnects
Gain/Loss
Each Premium Service
Total Pay units
Pay to Basic
Per Per View
Add Outlets
Pre Wires
Remotes
Cable Insurance Plans
Converter
Telephone Report
Weekly review of:
Calls received
Calls answered
Calls abandoned
% answered
% abandoned
Average Time on Hold
Mean Time on Hold
Median Time on Hold
Service Report
Service calls completed
Installs completed
❑ not done ❑ installations by reason
Service calls by reason
System outages
date
location (geographic code, subdivision, or other non -personally identifiable information
Number of affected customers
time to repair
cause and repair code
E-1
Detailed Outage Report
date
location (geographic code, subdivision, or other non -personally identifiable information)
Number of affected customers
time to repair
cause and repair code
Construction Report
Number of unburied drops at the beginning of the month
Number of unburied drops at the end of the month
Number of drops buried during the month
Joint Trench Extensions in progress
Extensions in progress not through Joint Trenching
Deployment of Fiber Optic cable, locations and dates
Number of home prewires
Construction Permits obtained, date and number
E-2