Franchise Agreement Time Warner Entertainment

155
AN ORDINANCE TO AWARD A FRANCHISE
TO TIME WARNER ENTERTAINMENT /ADVANCE NEWHOUSE
TO CONSTRUCT, MAINTAIN, AND OPERATE A CABLE TELEVISION SYSTEM
IN UNION COUNTY
I‘
WHEREAS, by ordinance entitled “An Ordinance Granting a Franchise to Construct,
Maintain and Operate a Cable Television System in Union County, North Carolina, to Tar River
Communications,” the Union County Board of Commissioners (the “Board”) has granted a cable
franchise to Tar River Communications, which franchise is currently held by Time Warner
Entertainment - Advance Newhouse Partnership (the “Franchisee”); and
WHEREAS, on July 6, 1998, the Board adopted a new cable television ordinance to be
cited as the “Union County Cable Television Regulatory Ordinance,” (the “Ordinance”); and
WHEREAS, the Board desires to award a franchise to Franchisee pursuant to the
Ordinance; and
WHEREAS, pursuant to G.S. 0 153A-46 no grant of a franchise may be made except by
ordinance, and no ordinance making grant of a franchise may be finally adopted until it has been
passed at two regular meetings of the Board.
I’
NOW, THEREFORE, be it ordained by the Union County Board of Commissioners as
follows:
The Franchisee is awarded a franchise (the “Franchise”) to construct and
Section 1 .
operate a cable television system in Union County pursuant to the Ordinance and the “Franchise
Agreement Between Union County, North Carolina, and Time Warner EntertainmentlAdvance
Newhouse, June, 1998” (the “Franchise Agreement”), attached and incorporated herein by
reference.
The right, privilege and franchise herein granted are expressly subject to,
Section 2.
and the construction, operation and maintenance of the cable television system in Union County
by the Franchisee shall be governed by: (i) the Ordinance, (ii) the Franchise Agreement, and (iii)
any rules and regulations of any governmental entity that has control or authority over the
construction, operation and maintenance of a cable television system.
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The effective date of the Franchise shall be the date the Franchisee files
Section 3.
written acceptance with the County; provided, however, that such period for acceptance shall not
exceed sixty (60) days from the date of final approval of this ordinance by the Board upon second
reading.
Introduced the 3rd day of August, 1998.
Passed first reading the 3rd day of August, 1998.
Introduced the 17* day of August, 1998.
Passed second reading the 17th day of August, 1998.
Introduced the 8* day of September, 1998.
Passed third reading the Sthday of September, 1998.
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FRANCHISE AGREEMENT
BETWEEN
UNION COUNTY
NORTH CAROLINA
I
i
AND
TIME WARNER ENTERTAINMENT/ADVANCE NEWHOUSE
June, 1998
TABLE OF CONTENTS
I
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I.
GRANTED TO TIME WARNER ENTERTAINMENTIADVANCE NEWHOUSE . 1
11.
RIGHT OF COUNTY TO ISSUE FRANCHISE. ............................
.2
111.
TERM. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2
IV.
FRANCHISE NONEXCLUSIVE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.2
DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2
VI .
SERVICEAREA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3
VII .
SYSTEM AND CAPACITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.4
VIII.
CONSTRUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
6
IX.
SYSTEM SERVICES AFTER REBUILD. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.7
X.
ACCESS CHANNELS, EQUIPMENT, FACILITIES, AND SERVICES. . . . . . . . . . 8
XI.
INSTITUTIONAL NETWORK. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
10
XI1.
INTERCONNECTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
12
XIII.
SUBSCRIBER INFORMATION AND POLICY. ...........................
12
XIV.
NON-DISCRTMINATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
14
xv.
RATES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
14
XVI.
FRANCHISERENEWAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
14
v*
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XVII .
POLICEPOWERS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
15
XVIII .
FRANCHISE FEE AND PERFORMANCE BOND..........................
15
XIX .
REGULATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
15
xx.
REMEDIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
15
XXI .
FORCEMAJEURE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
16
XXII .
COOPERATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
17
xxIII .
WAIVER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
17
XXIV .
CUMULATIVE PROVISION...........................................
17
XXV .
NOTICES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
17
XXVI .
CAPTIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
17
XXVII . NOJOINTVENTURE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
17
XXVIII . SEVERABILITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
18
APPENDICES
Appendix A .Equipment List
Appendix B .Cutover Plan for System Rebuild
Appendix C .Institutional Network
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the public streets, alleys, and ways within the County such wires, cables, fiber optics, conductors,
ducts, conduits, vaults, manholes, amplifiers, appliances, pedestals, attachments, and other
property and equipment as are nece'ssary and appurtenant to the operation of the cable television
system in the County and in accordance with this Franchise and the Ordinance. All property and
equipment of the Franchisee and its installation and use shall comply with local law and
regulation.
11.
RIGHT OF COUNTY TO ISSUE FRANCHISE.
Franchisee acknowledges and accepts the legal right of the County to issue this Franchise.
111.
TERM.
The term of the Franchise shall be for a period of fifteen (1 5) years from the effective
date, unless sooner terminated as provided in the Ordinance, at which time it shall expire and be
of no further force and effect.
IV.
c
FRANCHISE NONEXCLUSIVE.
Consistent with the requirements of the Ordinance, this Franchise shall not be construed
as any limitation upon the right of the County to grant to other persons rights, privileges, or
authorities similar to the rights, privileges, and authorities herein set forth, in the same or other
streets, alleys, or other public ways. The County specifically reserves the right to grant at any
time during the term of this Franchise or renewal thereof, if any, such additional Franchises for a
cable television system as it deems appropriate. The County shall notify the Franchisee of such
Franchise grant in a timely manner. If any additional cable television franchise granted by the
County shall contain terms and conditions, when taken as a whole, are more favorable and/or less
burdensome than this franchise, the County shall amend the Franchise, upon written request of
the Franchisee, to incorporate the more favorable or less burdensome provisions. The Grantee
must make any such request within ninety (90) days of receipt of notice from the Franchisor and
the County shall act in a timely manner so amending the Grantee(s) Franchise pursuant to this
section. Franchisee agrees to indemnifir the County and to hold the County harmless from all
claims against it by third parties arising out of its compliance with this section to the extent that
such claims are not barred by Section 635A of the Cable Television Consumer Protection and
Competition Act of 1992 (Limitation of Franchise Authority Liability), or by any other provision
of law.
V.
DEFINITIONS.
All definitions set forth in the Ordinance pertain to this Franchise and shall be relevant to
the purposes and meaning of this Franchise.
VI.
I.
SERVICE AREA.
Service Area. The service area of the Franchisee shall be any area in Union
A.
County that is located outside the corporate limits of any municipality.
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BROADBAND TELECOMMUNICATIONS
FRANCHISE AGREEMENT
THIS AGREEMENT is made and entered into as of this 8th day of September, 1998, by
and between Union County, North Carolina, hereinafter referred to as (County) and Time Warner
Entertainment/Advance Newhouse (Franchisee), a Delaware Corporation, with its principal place
of business in North Carolina, at Time Warner Cable (a division of Time Warner
Entertainment-AdvancehJewhouse),2300 Yorkmont Road, Charlotte, North Carolina 282 17,
hereinafter referred to as (Franchisee), also known as (TWEIAN).
WHEREAS, the County is authorized to grant one or more nonexclusive, revocable,
franchises to construct, operate, and maintain a cable television system within the County;
WHEREAS, Franchisee will construct a cable television system as set forth herein;
WHEREAS, the County, after due evaluation, has determined that it is in the best interest
of the County and its residents to grant a franchise to Franchisee for a fifteen (1 5) year term.
NOW, THEREFORE, IN CONSIDERATION of the mutual promises and covenants
contained herein, the parties do mutually agree as follows:
I.
GRANTED TO TIME WARNER ENTERTAINMENT/ADVANCENEWHOUSE
A.
Purpose. The purpose of this section is to award a Franchise to Time Warner
Entertainment/Advance Newhouse (Franchisee) to construct and operate a cable television
system to provide cable service. The Franchisee will provide top quality cable service.
B.
Enactment. Franchisee is hereby granted a nonexclusive Franchise to operate a
cable television system within the County to provide cable service in accordance with this
Franchise and the Ordinance, which establishes standards, regulations and procedures for the
granting of a Franchise and operating a cable television system, the rules and regulations adopted
by the County, all Ordinances of the County and all applicable rules and regulations of the
Federal Communications Commission and the County.
Effective Date. This Franchise shall not become finally effective until the
C.
Franchisee files an acceptance in writing with the County. The Franchisee shall have up to sixty
(60) days from the date this Franchise is signed by the Chairman of the Board of Commissioners
to provide such written acceptance. Immediately upon the taking effect of this Franchise
Agreement, the prior franchise granted to the Franchisee shall be superseded and of no further
force and effect; provided, however, vested rights relating to billings and the County's rights to
accrued franchise fees shall not be affected thereby and provided that any outstanding consumer
complaints will be resolved.
D.
Use of Public Ways. For the purpose of operating and maintaining a cable
television system in the County, Franchisee may erect, in, over, under, or upon, across, and along
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Service to all Residents. Franchisee shall offer cable television service to all
B.
residences of the County which are in the corporate limits of the County and were served on the
effective date of this Franchise. The Franchisee will construct the cable system to all areas which
have at least eighteen (18) dwelling units per mile. The cost of such construction shall be borne
by Franchisee. For areas not meeting a density of eighteen (18) dwelling units mile, the cost of
construction shall be paid by Franchisee and the affected subscribers, subject to allocation based
on the following formula: If a request for extension of service into a residential area requires the
construction of cable plant which does not pass at least eighteen (18) dwelling units per plant
mile as measured from the nearest point of usable cable plant, or ten (10) subscribers per plant
mile who have committed to purchase a minimum of one (1) year of cable service programming
tier, Franchisee and subscribers will each bear their proportionate share of construction costs.
For example, if there are nine (9) dwelling units per mile, Franchisee's share will equal 9 4 8 t h ~of
the construction cost. The remaining cost will be shared equally by each subscriber served by the
plant extension. This line extension formula shall also be applied to a portion of a mile meeting
proportionate density requirements. For example, if there are nine (9) dwelling units per
one-half mile, the Franchisee shall construct the plant. The cost sharing plan described above
would be utilized if there were less than the proportionate share of dwelling units per the portion
of a mile needed to reach the dwelling units. Any new subscriber in the line extension area shall
pay the new prorata share and all contributing subscribers shall receive appropriate refunds. In
any event, at the end of two (2) years from the completion of residential construction in the area,
the subscribers shall no longer be eligible for refunds and the amounts paid in construction costs
will be credited to the plant account of the Franchisee to be used for future extensions.
C.
New Residential Construction. Franchisee shall extend service to all new
residences in all unwired subdivisions where the density of homes is at least eighteen (1 8) homes
per mile or meet the line extension criteria for service in areas under eighteen (18) homes per
mile, as specified in Section B. above, within sixty (60) days of a qualified request by any
occupant of such new development and after all necessary and timely submitted permits are
received. Franchisee shall use all reasonable efforts to coordinate joint trenching with any public
utilities which will be constructed in and along the same public right-of-ways in new
subdivisions.
D.
Commercial Service Drops. Franchisee shall, upon request, make service drops
available to all commercialhndustrial establishments served aerially which are located within one
hundred fifty feet (150') of the system at Franchisee's standard installation rate expense. For
commercial/industrial establishments requesting a commercial service drop which is served
underground, or for aerial extensions beyond one hundred fifty feet (150'), Franchisee shall make
service available on the basis of a capital contribution from the commercial subscriber for the
additional cost of material, labor, and easements.
E.
Residential Service Drops. Franchisee shall, upon request, make service drops
available to all residential subscribers who can be served by drops, aerially or underground, no
longer than one hundred-fifty feet (1 50') from the cable system. For residential dwelling units
which require a subscriber drop longer than one hundred-fifty feet (150'), Franchisee shall, upon
request, make service available on the basis of a capital contribution from the residential
subscriber for the cost of construction beyond one hundred-fifty feet (150'), including cost of
material, labor, and easements.
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VII.
SYSTEM AND CAPACITY.
A.
System. The parties understand and agree that Franchisee shall construct a cable
system which is capable of delivering cable television signals processed at 750 MHZ utilizing
fiber optics to the node design or better. The system shall be initially activated to 550 MHZ with
the remaining 200 MHZ reserved for future digital services. The rebuilt system will use all new
fiber optics and electronic and passive devices. The system may use existing coaxial cable in
instances where the cable is tested and meets manufacturers specifications. The system will be
designed so that there are no more than six (6) amplifiers in cascade. Fiber optic receiver nodes
located throughout the plant will divide the distribution of cable signals to an average of 500
homes per fiber node or less. The system shall be designed and constructed in accordance with
the then current design specifications of the Grantee. At the completion of the rebuild, the
Franchisee's cable system shall only be placed in public rights-of-way or on private property
where a duly authorized easement has been obtained prior to construction on the property. The
system shall be operated in accordance with FCC technical standards.
Construction Timetable. The rebuild shall be completed and ninety-five (95%) of
B.
subscribers will have available upon request the new services offered on the rebuild, within
eighteen (1 8) months of the effective date of this Franchise. Prior to the initiation of construction
of the rebuild, Franchisee shall provide a neighborhood construction schedule which details the
time frame for construction in each neighborhood and area of the County. Such construction
schedule will be updated monthly and provided to the County.
C.
Construction Oversight. Franchisee will visually inspect 100% of all fiber and
coaxial cable construction to ensure that it meets the specifications of the Ordinance and this
Franchise. The Franchisee shall designate an employee to act as a company representative by
responding to public service complaints on a daily basis during the rebuild and provide the
County with the person's name and telephone number. Franchisee shall use all reasonable efforts
to minimize traffic disruption during construction and coordinate construction scheduling with
the County.
D.
Compliance with Applicable Law. In constructing, operating and maintaining the
system, Franchisee shall at all times comply with the Ordinance and all applicable laws and
regulations.
E.
Drop Audit. Within twenty-four (24) months of the effective date of this
Franchise, Franchisee shall have audited and tested all of the subscriber drops in the County at
the ground block and all drops not meeting the standards of the National Electric Code or
providing adequate signal delivery for the delivery of all services on the rebuilt system, shall be
replaced when found to be substandard. The system shall be designed to ensure that each drop
shall meet FCC specifications.
F.
Equipment Quality. Throughout the term of the Franchise, the equipment used for
the distribution system, headend and reception facilities shall be of good and durable quality and
be serviced and repaired on a regular basis and shall at all times be of equal or better quality than
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that used in the system rebuild. For information purposes, the 750 MHZ equipment the
Company expects to use in the rebuild is included in Appendix A, (Equipment List,) attached
hereto and incorporated by reference.
State of the Art. The Franchisee shall construct, install, operate and maintain its
G.
system in accordance with the highest standards of the art of cable television, such standards to
include, at a minimum, but not be limited to the following:
The system will be constructed to permit a minimum of 750 MHZ operation and
(1)
will be compatible with cable ready television sets, except for those services requiring the use of
an addressable or other subscriber terminal.
1
The Franchisee shall maintain its system facilities served by the same headend, in
(2)
a manner which will continue to enable it to add bandwidth and new services, including but not
limited to, digital services, Internet access, additional bandwidth, and associated equipment as
they are developed and are available. Digital technology, other technology, new services, and
associated equipment will be added to the system facilities when they are provided other similar
sized markets served by the same headend, or smaller, that are owned by the Franchisee or parent
company in the SMSA’s of Charlotte, Raleigh, Salisbury, and Kannapolis, North Carolina,
excluding experimental and pilot projects and such services and associated equipment can be
offered on the Franchisee’s system in an economically viable manner (that is, Franchisee will be
able to earn a reasonable return over the remaining term of this Franchise fiom the provision of
such service or equipment). Such digital technology, other technology and equipment shall
comply with the then national standards for such technology and shall provide features equal to
those being introduced during the same year in other systems owned by Franchisee.
Emergency Alert. Franchisee shall maintain its existing emergency alert system
H.
until the FCC promulgates rules regarding emergency alert service in cable television.
Thereafter, the Franchisee shall provide a state-of-the-art emergency alert system as specified by
the FCC for use by the County but providing, at a minimum, an all channel audio emergency
alert system which can be accessed directly by a designee of the County. To the extent allowed
by law, emergency messages shall be able to be initiated from any touch-tone phone with an
access code. Persons to be provided with access codes shall be selected by the County.
I.
Standby Power. Franchisee shall provide a minimum of eight (8) hours standby
power-generating capacity at the headend. Franchisee shall maintain standby power system
supplies, rated for at least two and one-half (2.5) hours duration at all optical node locations in
the distribution network. Coaxial cable feeder lines will receive standby power from a fiber optic
node location.
I.
J.
Parental Control Devices. Franchisee shall provide to subscribers, upon request,
parental control devices that allow any channel or channels to be locked out. Such devices shall
block both the video and the audio portion of such channels to the extent that both are
unintelligible. The cost to subscribers for parental control devices is subject to FCC regulation.
As required by Federal law and regulation, Franchisee shall block the video and audio portions of
all primarily adult programming services.
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Performance Testing. Franchisee shall perform all system tests and maintenance
K.
procedures as required by and in accordance with: the FCC; this Franchise; the Ordinance; and
Franchisee's standards of good operating practice.
L.
Technical Standards. To the extent allowed by law, the cable television system
permitted to be operated hereunder shall be installed and operated in conformance with the
Ordinance, this Franchise, and FCC rules and regulations. To the extent permitted by law, any
FCC technical standards or guidelines related to the cable television system and facilities shall be
deemed to be regulations under this Franchise. At such time as the FCC does not regulate
technical standards, Franchisee will continue to comply with the FCC standards which were in
effect on the effective date of this Franchise.
M.
Employee Identification. Franchisee shall provide a standard identification
document to all employees, including employees of subcontractors, who will be in contact with
the public. Such documents shall include a telephone number that can be used to verify
identification. In addition, Franchisee shall use all reasonable efforts to clearly identify all field
personnel, vehicles, and other major equipment that are operating under the authority of
Franchisee.
Stereo. Upon completion of the rebuild, the system will have the capability and
N.
shall pass Broadcast Television Systems Committee (BTSC) stereo signals for those broadcast,
satellite, and locally originated services which transmit them, excepting alphanumeric channels.
Upstream Capacity. At the request of the County, and at such time as the County
0.
develops a plan that would require use of Franchisee's upstream capacity for municipal services
(i.e., meter reading), and at such time as Franchisee makes upstream capacity available for
commercial sale, Franchisee agrees to negotiate in good faith, using all reasonable diligence, to
enter into an agreement whereby such upstream capacity will be made available for those
purposes. Said agreement shall be commercially reasonable for both parties. Franchisee will
inform County at the time the upstream capacity on the system is activated.
VIII. CONSTRUCTION.
System Design Review. The County shall have the authority to review and
A.
comment on the technical design plans of the system prior to rebuild construction to ensure that
the system design meets the requirements of this Franchise and the Ordinance, providing such
review is completed in a timely manner. The,Franchisee shall provide the County with the
following design information: engineering design maps; key map for design maps; system level
design information (e.g. block diagram of headend, satellite or off-air studies, power supply
map); test plan for the existing coaxial cable to be used in the system; and contact engineer who
will be available to discuss project details. Any noncompliance found in any phase of the design
plans shall be noticed to the Franchisee within forty-five (45) days after design plans are
submitted to the County. The Franchisee may seek use of existing coaxial cable which is tested
prior to use in the rebuilt system and meets manufacturer specifications. The Franchisee shall
follow any generally applicable permitting processes. Internal wiring shall comply with the
County electrical code. To the extent permitted by North Carolina law, the County shall treat the
information so provided to the County as confidential and proprietary; provided, however, that
1
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165
I
each map, document, or other publication shall be plainly marked, (CONFIDENTIAL AND
PROPRIETARY BUSINESS INFORMATION OF TIME-WARNER
ENTERTAINMENT/ADVANCENEWHOUSE.)
B.
Construction Manual. Franchisee shall construct the system in accordance with
Franchisee's construction manual which is available in the County Clerk's office. Such manual
may be amended from time to time so long as the standards are in accordance with accepted,
good quality engineering practices used by the cable television industry and comply with relevant
law and regulation.
Underground Construction. Franchisee shall participate in and use a consolidated
C.
utility and cable facilities locator agency, and ensure that distribution cable is buried at a depth of
at least twelve-inches (12"). Temporary drops will be buried within two (2) months of
installation, weather permitting.
Consumer Compatibility. Franchisee shall comply with FCC consumer
D.
compatibility rules and guidelines and will use all reasonable efforts to provide subscriber
friendly technology. The basic services shall be offered in a format compatible with cable-ready
television sets.
1
,,,
E.
Conversion. Subscribers shall not be charged by Franchisee for conversion from
the existing system to the new system. In the event that special additional or customized
equipment is requested by any subscriber or is required to provide such service to any subscriber,
Franchisee may charge the subscriber for such equipment. So that customers will experience the
least possible interruption of service, Franchisee shall use all reasonable efforts to perform the
cutover to the new system as specified in Appendix B (Cutover Plan for System Rebuild,)
attached hereto and incorporated by reference. Franchisee will notify subscribers and the public
in general of the cutover, which may utilize, but not be limited to, the following: bill stuffers;
direct mail; news releases; radio announcements; door knob hangers; CSR training; and
community bulletin board announcements.
IX.
SYSTEM SERVICES AFTER REBUILD.
A.
Initial Residential Subscriber Services. During the rebuild period, Franchisee
shall initially provide the same mix, level, and quality of programming as provided on the
effective date of this Franchise.
Additional Services. Upon completion of the rebuild and thereafter, Franchisee
B.
shall provide a minimum of fifty-two (52) services and the same mix, level, and quality of
programming as offered to subscribers converted to the rebuilt system.
Leased Access Channels. Franchisee shall follow Federal law and regulation
C.
regarding leased access.
Cable Drops and Monthly Service. Franchisee shall provide one (1) free cable
D.
drop and up to three (3) additional outlets upon request, at Franchisee's cost, and free basic tier
and the cable programming tier, as defined by the FCC prior to rate deregulation of the cable
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programming tier, excluding premium and pay-per-view services, to all public schools,
emergency services of the County, libraries, educational institutions, and public buildings
designated by the County. All non-premium programming and closed-circuit training
programming shall be transmitted to all of these locations on the cable system, free of charge.
E.
Closed-Captioning. Franchisee shall pass through all closed-captioned signals
received by the system for the hearing impaired.
F.
Internet Service to the Schools. Franchisee will provide free Internet Service to
the public schools as specified in the Franchisee’s social contract with the FCC (Social Contract
for Time Warner Cable, FCC Docket No. 95-336).
G.
Pay-per-view Services. Franchisee will provide pay-per-view programming
service on the cable television system after the rebuild.
X.
ACCESS CHANNELS, EQUIPMENT, FACILITIES, AND SERVICES.
In order to develop and promote public, educational, and government access
programming for the system’s access channels, Franchisee hereby agrees to provide the
following:
A.
Access Channels. Upon the request of the County, the Franchisee shall supply,
without charge, the following access channel upon completion of the rebuild: one access channel
for shared use for government and educational access purposes by all communities in Union
County served by Franchisee. Additional access channels shall be reserved for future use based
upon criteria outlined in this section. At any time during the franchise term, the County may
designate capacity on the access channel(s) for public access or community programming. Until
such time as the County makes the request to activate the access channel, it is mutually agreed
that the Franchisee has the right to use said channel for programming purposes. If said access
channel is activated upon the County’s request, Franchisee shall, in a timely manner, notify the
County of its time frame for preparing promotional materials regarding the rebuilt channel
line-up such that the County could request the above-mentioned access channel and have the
requested channel included in the promotional material. After the rebuild and upon request of
the County, whenever the activated access channel(s) as set forth in this section idare
substantially programmed, the Franchisee shall make an additional access channel available for
use. For purposes of this section, (substantially programmed) shall mean the existing access
channel(s) shows documented proof of performance that it is in use for any 6 week consecutive
time frame (at least 8 hours per day, 7 days per week cablecast schedule) with at least 40% of the
time the channel is programmed with unduplicated, non-commercial, full-motion video
programming. The Franchisee shall make such additional access channel(s) available for use
within six (6) months of receipt of request by the County. Activation of additional channels will
be based on documented proof of the community’s needs and interests in the provision of said
additional access channels. For purposes of this section, (documented proof) shall mean a formal
vote of approval by the governing body of the County, and a written request submitted to the
Franchisee. Under these terms, Franchisee shall activate up to four (4)total access channels for
the shared use of the communities served by Franchisee in Union County.
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B.
Initial Access Funds. Franchisee shall provide funds equivalent to $12.00 per
subscriber to the County for the purchase of access equipment, facilities, and services within six
( 6 ) months of a request by the County. Such request shall be made after the County has
developed a plan for access equipment and channels and providing a copy of such plan will be
provided to the Franchisee. The parties agree that such funds will not be deducted from the
franchise fee. If allowed by the FCC, the Franchisee may, at its own discretion, pass through to
its customers the cost of the access equipment specified in this section. Franchisee agrees to
supply these access support funds to the County with no interest charge and will recover said
funds over a five (5) year period.
Equipment Replacement. Upon written request of the County, Franchisee shall
C.
provide funds in year 7, equivalent to $10.00 per subscriber to the County for the purchase of
access equipment, facilities, and service. Prior to making this request, the County shall review
access equipment needs and shall notify the Franchisee if less funds are needed. The parties
agree that such funds will not be deducted from the fkanchise fee. If allowed by the FCC, the
Franchisee may, at its own discretion, pass through to its customers the cost of the access
equipment specified in this section
D.
expense:
Publicity. Franchisee agrees to provide the following publicity services at its own
If the Franchisee offers a guide to subscribers, and is capable of providing
(1)
local program listings, and listings of local access and training channel programs are provided by
the County in a timely manner, the Franchisee shall ensure that the County-provided program
listings are carried, on a daily basis, on the Franchisee’s channel dedicated to providing program
guide information.
Franchisee will include written information about educational and
government access programming and activities in its customer information materials given to
new subscribers.
(2)
At the request of the County, Franchisee will promote specific programs
(3)
through messages on customer bills once each quarter taking into account that FCC or Franchisee
required regulatory notices shall be given precedence. County may annually print and supply bill
stuffers to the Franchisee and the Franchisee shall include such stuffers when space is available,
but at least once a year. The County will coordinate with the cable system manager on
distribution.
E.
Signal Quality. Franchisee shall assure that the access channel delivery system
from the origination points specified herein meets the same technical standards as the remainder
of the system as set forth in Section VII herein.
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F.
Origination Sites. The Franchisee shall construct at its own expense, and
maintain throughout the franchise term, fiber optic origination lines from Monroe City Hall,
Union County Government Building, the access studio site to be designated by the County,
Wingate University, Union Technical Education Center or its successor, and a site selected by the
Public Schools. During the rebuild, the Franchisee shall construct the origination capability
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indicated above. If allowed by the FCC, the Franchisee may, at its own discretion, pass through
to its customers the cost of the origination sites specified in this section, unless waived in writing
by the Franchisee.
XI.
INSTITUTIONAL NETWORK.
Network. Franchisee shall construct, install and maintain an Institutional Network
A.
as part of the subscriber network to the locations indicated in Appendix C, (Institutional Network
Locations,) attached hereto and incorporated by reference. For the purposes of this Section XI,
the term (Institutional Network) shall mean a separate, closed-circuit, private communications
network to be constructed and maintained by the Franchisee and which is available only to those
locations set forth in Appendix C or as hereafter provided. The network will be a passive
point-to-point fiber optic network as set forth in Appendix C, and will meet all technical and
electrical codes specified within the franchise agreement. The County and participating
educational institutions shall only use the Institutional Network for non-commercial,
governmental or educational purposes and shall not directly interconnect the Institutional
Network with any other switched or non-switched network that is not governmental, educational,
or non-profit in nature.
Both parties agree that the Franchisee will not charge the users of the Institutional
Network for video program distribution, training, voice, data transmission, and other applications
(such as energy management), and the participating institutions shall purchase, monitor, repair,
and replace any and all necessary end user equipment for uses of the Institutional Network. The
Franchisee shall engage in cooperative planning with the County for the ascertainment of the
County's requirements, including the routing, scheduling, and placement of additional fibers
and/or coaxial cable for use in the Institutional Network. The Franchisee shall use all reasonable
efforts to integrate the County's needs into the cable system's rebuild design. Upon request, the
Franchisee shall provide to the County the design maps related to the Institutional Network from
time to time as they are completed, and estimated Institutional Network costs. At least sixty (60)
days prior to construction, the Franchisee shall provide to the County for its review and approval,
a quotation of costs and schedules for construction and installation. Within thirty (30) days of
this quotation, the County may exclude any I-net sites at its discretion.
Features. Features incorporated into the system design shall permit institutions to
B.
transmit video programming via the Institutional Network to access channels on the residential
subscriber network. Franchisee's system shall be capable of switching from the Institutional
Network's channels to the residential subscriber network to program the access channels, and will
allow for switching between the Institutional Network sites. Such switching shall be
accomplished remotely by telephone by the participating institutions.
Design. Each principle origination point on the Institutional Network shall be
C.
able to originate transmissions simultaneously.
Construction and Operation. The Franchisee shall continue to own the
D.
Institutional Network and shall perform all routine maintenance on the I-net in the same manner
as the subscriber network, and will use all reasonable efforts to effect repairs immediately if
required by the County's public safety sites (such sites to be noted in design attached as
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Appendix C). The Institutional Network will be completed during the rebuild in conjunction
with the adjoining portions of the system. Upon the request of the County, the Institutional
Network will be activated within six ( 6 ) months after the completion of the rebuild. The
Institutional Network will be maintained by Franchisee in the same manner as the fiber optic
portions of the subscriber network The County agrees that Franchisee shall be advised of any and
all opportunities to bid on contracts for the provision of telecommunications services to the
County and shall be permitted to provide such services if Franchisee offers a rate that is equal to
or lower than the rate offered by any other party. However, nothing herein will prevent
connection to any communication system of another governmental or noncommercial educational
entity.
Future Extension. Franchisee agrees to construct the Institutional Network to
E.
additional County owned buildings upon the request of the County at the County's expense. The
expense to be borne by the County shall not exceed Franchisee's actual cost of construction from
the connection point to the nearest connection point on the Institutional Network.
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F.
Treatment. External costs or costs paid by the County related to the Institutional
Network will be based on the Franchisee's incremental labor and material costs for the
construction of the Institutional Network. It is mutually understood that (incremental costs) shall
mean the additional labor and material costs incurred by the Franchisee that are attributable to the
construction of the Institutional Network. The Franchisee may, at its own discretion, pass
through to its customers the cost of constructing the I-net. Franchisee agrees there will be no
interest charge on said costs of construction if recovered over a five (5) year period from the date
of activation. Prior to the rebuild, the County may choose to pay portions of the Institutional
Network costs with its own funds. The County reserves the right to pay the Franchisee's cost of
the Institutional Network up front and then to be reimbursed by subscribers within a time frame
as specified by the County. If the County chooses a payment plan for extensions in excess of five
(5) years, the Franchisee may charge interest on such funds.
XII.
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INTERCONNECTION.
Interconnection with Adjacent Communities. The Franchisee shall interconnect the
access channels and the Institutional Network with cable systems in adjacent municipalities, if
requested to do so by the County and other jurisdictions as approved by their respective
governing bodies, and if participating cable television company and/or municipalities pay their
proportionate share of the cost of such interconnection and if all applicable permits and access to
rights-of-way can be obtained. The cost and responsibilities to effect interconnection shall be
negotiated at that time and shall be borne by the participating parties. For example, if two
systems are interconnected, the prorata share may be based on a cost per subscriber, per system
and the costs per system will be divided on this basis and shall be paid as allowed by law or by
the County or institutions involved. If allowed by the FCC regulations, the Franchisee may pass
the County's costs for interconnection with cable systems in adjacent communities, through to
subscribers.
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XIII.
SUBSCRIBER INFORMATION AND POLICY.
A.
Subscriber Information. At the time an installation or service agreement is to be
signed, Franchisee shall furnish to each subscriber a simple, but thorough written explanation of
all services offered; the fees, charges, terms and conditions of such services; information
regarding billing and service calls; complaints; information regarding the availability of parental
control devices; and a complete statement of the subscriber's right to privacy in conformance
with 47 U.S. Section 63 1, as it may be amended. Thereafter, Franchisee shall provide
subscribers with privacy information and other information, as required by FCC regulations, as
amended. Such subscriber information shall be filed with the County concurrent with
distribution to subscribers.
Business Offices and Personnel. Franchisee shall establish and maintain a staffed
B.
business office centrally located in Union County. The business office shall be open a minimum
of forty-five (45) hours per week, including some evening hours. Franchisee shall provide
telephone service with a local number, twenty-four (24) hours per day. Franchisee shall also
provide personnel, telephone service, including a locally listed telephone number, and other
equipment as needed within the area. At the business office, the Franchisee shall ensure timely,
efficient and effective service to consumers and for the purpose of receiving inquiries, requests
and complaints concerning all aspects of the construction, installation, operation, and
maintenance of the system and for the payment of subscribers' service charges.
Subscriber Complaints. Pursuant to the Ordinance, Franchisee shall promptly
C.
respond to and resolve all subscriber complaints. However, nothing herein shall require
Franchisee to maintain or repair any equipment not provided by it.
Major Outages. Franchisee shall maintain records of all major outages defined as
D.
a discontinuation of cable service from one or more fiber nodes in the County. Such records
shall indicate the estimated number of subscribers affected, the date and time of first notification
or of Franchisee knowledge of the outage, the date and time service was restored, the cause of the
outage and a description of the corrective action taken. Such records shall be available to the
County during normal business hours upon reasonable prior notice and retained in Franchisee's
files for not less than three (3) years. Upon written request of the County, a statistical summary
of such records shall be prepared by Franchisee and submitted to the County annually.
Customer Handbook. Franchisee shall provide written customer policies or a
E.
handbook to all new subscribers and, thereafter, upon request. Franchisee's written customer
policies or handbook shall, at a minimum, comply with all notice requirements in the Ordinance
and those promulgated by the FCC. If Franchisee's operating rules are changed subscribers shall
be notified in a timely manner. Rate and consumer complaint information will be distributed
annually to subscribers. Franchisee shall file a copy of its written customer policies or its
consumer handbook with the County annually.
F.
Standards. Franchisee shall meet the FCC's Customer Service Obligations. If
Franchisee does not meet the busy standards in two (2) consecutive quarters, the Franchisee shall
take corrective action in order to satisfl the telephone busy standards. Upon request, Franchisee
shall provide to the County, annual management data reports, including data from any service
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centers used by the Franchisee related to compliance with the FCC's customer service standards,
the Ordinance and this Franchise. At such time as Franchisee does not meet the FCC andor the
Ordinance requirements for repair or other requirements for one quarter, Franchisee shall take
corrective action to ensure that such standards are met during the next quarter. At such time as
the FCC no longer promulgates consumer service obligations, the FCC standards in effect on the
effective date of this Franchise will be in force provided all other cable franchises are held to the
same standard.
Downgrades. Subscribers shall have the right to have cable service downgraded
G.
in accordance with FCC rules. No charge shall be made for disconnection of cable service. The
billing for such service will be effective immediately and such disconnection or downgrade shall
be made as soon as practicable. A refund of unused service charges shall be paid to the customer
within forty-five (45) days from the date of termination of service.
H.
Subscriber Contracts. All contracts between Franchisee and their subscribers
shall be in compliance with the Ordinance and this Franchise. Franchisee shall file a copy of the
Franchisee's subscriber contract with the County upon request.
Negative Option Billing. Franchisee shall comply with Federal law regarding
I.
negative option billing.
Payment Stations. Throughout the term of-theFranchise, Franchisee shall
J.
maintain, at a minimum, a payment station in its main office, and the ability to pay through bank
drafts and an after hours drop box at the business office.
L-.
Outage Rebate. Franchisee, upon subscriber request, shall credit the subscriber's
K.
account for a verifiable outage of two (2) hours or more. The Franchisee shall provide annual
written notice to subscribers of the availability of credits for outages for the levels of service
affected by such outages.
L.
Response to the County. The County will notify the Franchisee in writing of
subscriber complaints received by the County. The Franchisee shall use all reasonable efforts to
contact subscribers whose complaints have been handled by the County within twenty-four (24)
hours of County notice to the Franchisee. The Franchisee shall respond in writing to the County
within three (3) business days regarding the resolution of such subscriber complaints. Such
complaints will be handled in accordance with FCC customer service standards and State and
local law. The Franchisee shall provide to the County, the name of the person responsible for
handling County complaints.
M.
Repair Calls. Franchisee shall offer subscribers repair service appointments in
four-hour windows. Upon request, the Franchisee shall telephone the subscriber prior to arriving
for a repair call. Franchisee will conduct repair calls on weekdays, weekday evenings, and
Saturdays. Franchisee shall respond to repair calls within 24-hours ninety five percent (95%) of
the time.
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Installation. Unless otherwise specified by the subscriber, subscriber service shall
N.
be installed within seven (7) days of a request, with the exception of subscribers in new
developments which will be installed in accordance with Section V1.D.
Disconnects. Disconnection of accounts due to non-payment shall occur no
0.
sooner than forty (40) days of due date.
P.
Subscriber Bill. Company shall include its name, address, and telephone number
on the subscriber bill and on the portion of the bill retained by the subscriber.
XIV. NON-DI SCRIMINATION.
Franchisee agrees that it shall not discriminate in providing service to the public nor
against any employee or applicant for employment because of race, color, creed, religion, sex,
disability, national origin, age, or marital status. In the employment of persons, Franchisee shall
fully comply with applicable local, state and federal law, and shall take affirmative action to
ensure that applicants are employed and that employees are treated during employment without
regard to their race, color, creed, religion, sex, disability, national origin, age, or marital status.
XV.
RATES.
The County shall have the ability to regulate rates in accordance with Federal law.
XVI. FRANCHISE RENEWAL.
Subject to Section 626 of the Cable Communications Policy Act of 1984, the Cable
Television Consumer Protection and Competition Act of 1992, and the Telecommunications Act
of 1996, as amended, this Franchise may be renewed or denied by the County in accordance with
the Ordinance.
XVII. POLICE POWERS.
In accepting this Franchise, Franchisee acknowledges that its rights hereunder are subject
to the police powers of the County to adopt and enforce general Ordinances necessary to the
safety and welfare of the public, and it agrees to comply with all applicable general laws and
Ordinances enacted by the County pursuant to such power.
XVIII. FRANCHISE FEE AND PERFORMANCE BOND.
A.
Franchise Payments. Franchisee shall pay to the County a Franchise fee of five
percent (5%) of gross annual revenues or the maximum amount permitted by statutory or judicial
law, whichever is higher, during the period of its operation under the Franchise, pursuant to the
provisions of the Ordinance. Any increase in the franchise fee shall be implemented as soon as
practicable, but no longer than forty-five (45) days.
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B.
Bonds. Franchisee shall furnish a performance bond to County as specified in the
Ordinance during the construction of the rebuild in the amount of $200,000. Franchisee shall
provide such performance bond to the County within thirty (30) days of the effective date of this
Franchise. The Franchisee shall notice the County, and the County shall determine and certify
that the rebuild is completed. Upon receipt of such County certification, the Franchisee may
reduce the performance bond to $50,000. The performance bond shall be maintained during the
life of the Franchise to guarantee the faithful performance of all its obligations under this
Franchise and the Ordinance. The Franchisee shall replenish the performance bonded within ten
(10) days of use by the County as specified in the Ordinance.
XIX. REGULATION.
A.
Regulatory Authority. The County shall exercise appropriate regulatory authority
under the provisions of the Ordinance and this Franchise. Regulation may be exercised through
the County or a duly designated representative.
B.
Acceptance. Franchisee, by accepting the rights hereby granted, agrees that it will
perform and keep all acts and obligations imposed, represented or promised by the provisions of
this Franchise, the Ordinance, and the Renewal Proposal.
XX.
REMEDIES.
A.
Schedule of Liquidated Damages. Because Franchisee's failure to comply with
certain material provisions of this Agreement and the Ordinance will result in injury to the
County or to subscribers, and because it will be difficult to estimate the extent and monetary
value of such injury, the County and Franchisee hereby agree that the liquidated damages stated
herein below, represent both parties' best estimate of the damages resulting fiom the specified
injury.
B.
Violations. For the violation of any of the following, the County shall notify
Franchisee in writing of the violation. The County shall provide Franchisee with a detailed
written notice of any Franchise violation upon which it proposes to take action, and there shall be
a thirty (30) day period within which Franchisee may demonstrate that a violation does not exist
or cure an alleged violation or, if the violation cannot be corrected in thirty (30) days, submit a
plan satisfactory to the County to correct the violation. If an alleged violation is proven to exist,
and no cure or action on a plan to cure acceptable to the County has been received by the County
within thirty (30) days, such liquidated damages shall be payable by the Franchisee within ninety
(90) days and if not paid will be chargeable to the performance bond as set forth in the
Ordinance. Franchisee may petition the County Commission for relief with just cause, which
would include events not within its control. The imposition of liquidated damages shall not
preclude the County from exercising the other enforcement provisions of the Ordinance,
including revocation, or other statutory or judicially imposed penalties. Liquidated damages may
be imposed as follows:
For failure to complete construction or extend service in accordance with
(1)
Franchise: $200/day for each day the violation continues;
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For failure to comply with requirements for public, educational and
government access: $150/day for each day the violation continues;
(2)
For failure to construct and maintain an Institutional Network: $150/day
(3)
for each day the violation continues;
For failure to submit reports, maintain records, provide documents or
(4)
information: $75/day for each day the violation continues;
For violation of customer service standards required by this Franchise, the
(5)
Ordinance, or by FCC regulation for two consecutive quarters: $1,000 per standard violated per
quarter, including the first two quarters in which the violation occurred, if Franchisee does not
meet customer service standard for two consecutive quarters;
For violation of the books and financial records provisions of this
(6)
Franchise and the Ordinance: up to $5O/day for each day the violation continues; and
For violation of other material provisions of this Franchise or the
(7)
Ordinance: up to $150/day for each day the violation continues.
XXI. FORCE MAJEURE.
For purposes of this Franchise, the Franchisee shall not be declared at fault or be subject to any
sanction under any provision of this Franchise in any case, in which performance of any such
provision is prevented or delayed for reasons beyond the Franchisee's control. A fault shall not
be deemed to be beyond the Franchisee's control if committed by a corporation or other business
entity in which the Franchisee holds a controlling interest whether held directly or indirectly.
XXII. COOPERATION.
The parties recognize that it is within their mutual best interests for the cable television
system to be operated as efficiently as possible in accordance with the requirements set forth in
this Agreement. To achieve this, parties agree to cooperate with each other in accordance with
the terms and provisions of this Franchise. Should either party believe that the other is not acting
timely or reasonably within the confines of applicable regulations and procedures in responding
to a request for action, that party shall notify the person or agents specified herein. The person or
agent thus notified will use its best effort to facilitate the particular action requested.
XXIII. WAIVER.
The failure of the County at any time to require performance by Franchisee of any
provision hereof shall in no way affect the right of the County hereafter to enforce the same. Nor
shall the waiver by the County of any breach of any provision hereof be taken to be a waiver of
any succeeding breach of such provision, or as a waiver of the provision itself.
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XXIV. CUMULATIVE PROVISION.
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The rights and remedies reserved to the County by this Franchise are cumulative and shall
be in addition to and not in derogation of any other rights or remedies which the County may
have with respect to the subject matter of this Franchise, and a waiver thereof at any time shall
have no effect on the enforcement of such rights or remedies at a future time.
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XXV. NOTICES.
All notices from Franchisee to the County pursuant to this Agreement shall be sent to the
following address for the conduct of matters related to the Franchise. All notices to the County
should be sent to: County Manager, 500 N. Main St., P.O. Box 218, Monroe, North Carolina
281 12. All notices to Franchisee shall be sent to: Time Warner Cable at 2300 Yorkmont Road,
Charlotte, North Carolina 28217, Attn. Vice President, Public Affairs and to Time Warner
Cable, 813 Charlotte Avenue, Monroe, NC 281 10-2598, Attn. General Manager.
XXVI. CAPTIONS.
Captions to sections throughout this Franchise are solely to facilitate the reading and
reference to the sections and provisions of the Agreement. Such captions shall not affect the
meaning or interpretation of the Agreement.
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XXVII.
NO JOINT VENTURE.
Nothing herein shall be deemed to create a joint venture or principal .agent relationship
between the parties, and neither party is authorized to, nor shall either party act toward third
persons or the public, in any manner which would indicate any such relationship with the other.
XXVIII.
SEVERABILITY.
If any section, subsection, sentence, clause, phrase, or portion of this Agreement is, for
any reason, held invalid or unconstitutional by any court of competent jurisdiction, such portion
shall be deemed a separate, distinct, and independent provision and such holding shall not affect
the validity of the remaining portions of this Agreement, except as provided for in the Ordinance.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of
the day and year first above written.
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ATTEST:
UNION COUNTY
(Signed)
(Signed)
Barbara Moore, Clerk
Leroy J. Pittman 111, Chairman
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Witness
TIME WARNER ENTERTAINMENT/
ADVANCE NEWHOUSE
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(Signed)
(Signed)
Division President
Time Warner Entertainment/Advance Newhouse
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Approved As To Legal Form
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