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i
ORDINANCE NO. 17,778
AN ORDINANCE TO SET THE TERMS AND CONDITIONS
FOR COMCAST CABLEVISION OF LITTLE ROCK, INC. TO
USE AND OCCUPY CITY RIGHTS -OF -WAY FOR A CABLE
TELEVISION FRANCHISE; TO APPROVE AN AGREEMENT
THAT SETS FORTH THESE TERMS AND CONDITIONS;
AND FOR OTHER PURPOSES.
"SHORT TITLE"
"AN ORDINANCE GRANTING A CABLE
FRANCHISE TO COMCAST CABLEVISION OF
LITTLE ROCK, INC."
272
WHEREAS, the Board of Directors of the City of Little Rock, Arkansas, and Comcast
Cablevision of Little Rock, Inc., have negotiated terms and conditions of a cable television franchise
for the use and occupancy of City streets; and
WHEREAS, this ordinance has been available for public review for at lest ten (10) days, and
has been the subject of a special public hearing held on Monday, June 15, 1998; and
WHEREAS, these agreed upon terms and conditions are more fully set forth in Exhibit "A'
to this Ordinance.
NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF DIRECTORS OF
THE CITY OF LITTLE ROCK, ARKANSAS:
SECTION 1. The Board of Directors of the City of Little Rock, Arkansas, authorizes the
Mayor to enter into a cable television franchise agreement with Comcast Cablevision of Little Rock,
Inc., in the form set forth in Exhibit "A" to this Ordinance.
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PASSED: July 7, 1998
ATTEST:
(a Qp. Q. �- \0.6 &,
ROBBIE HANCOCK
CITY CLERK
APPROVED AS TO FORM:
� UA-
THOMAS M. CARPENTER
CITY ATTORNEY
APPROVED:
MICHAEL KECK
VICE -MAYOR
273
EXHIBIT "A" (Ord. #17,778)
Franchise Agreement
To Provide Cable Services
between
THE CITY OF LITTLE ROCK, ARKANSAS
FRCJ
COMCAST CABLE VISION OF LITTLE ROCK, INC.
June _, 1998
274
r
Table of Contents
CST
SECTION I —
GRANT OF AUTHORITY ........ ...............................
2
SECTION2 —
THE SYSTEM ............................ ...............................
3
SECTION 3 —
SERVICE OBLIGATION ........... ...............................
6
SECTION 4 —
FEES AND CHARGES ............... ...............................
9
SECTION 5 —
CONSUMER PROTECTION AND CUSTOMER
SERVICE; SUBSCRIBER BILLS; AND
PRIVACY PROTECTION .......... ...............................
11
SECTION 6 —
COMPENSATION AND OTHER PAYMENTS........
12
SECTION 7 —
OVERSIGHT AND REGULATION- ........................
14
SECTION 8 —
RESTRICTIONS AGAINST ASSIGNMENTS
AND OTHER TRANSFERS ...... ...............................
18
SECTION 9 —
SPECIFIC RIGHTS AND REMEDIES .....................
19
SECTION 10 —
SUBSEQUENT ACTION.- ............................... .......
27
SECTION I I —
MISCELLANEOUS ................... ...............................
28
LISTOF
APPENDICES ............. .................... . ..... I...........................
29
2(aD
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Table of Contents
276
Page
SECTION I
GRANT OF AUTHORITY ..................... ...............................
2
SECTION2
THE SYSTEM ......................................... ...............................
4
SECTION 3 -
SERVICE OBLIGATIONS ..................... ...............................
6
SECTION 4
FEES AND CHARGES .......................... ...............................
10
SECTION 5 -
CONSUMER PROTECTION AND CUSTOMER
SERVICE; SUBSCRIBER BILLS; AND
PRIVACY PROTECTION ...................... ...............................
12
SECTION 6
COMPENSATION AND OTHER PAYMENTS ...................
13
SECTION 7
OVERSIGHT AND REGULATION ...... ...............................
15
SECTION 8
RESTRICTIONS AGAINST ASSIGNMENTS
AND OTHER TRANSFERS ................... ...............................
20.
SECTION 9
SPECIFIC RIGHTS AND REMEDIES .. ...............................
21
SECTION 10
SUBSEQUENT ACTION ....................... ...............................
29
SECTION 11
MISCELLANEOUS ................................ ...............................
31
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LIST OF APPENDICES
A Defined Terms
B System Characteristics; Performance
and Testing Requirements; Construction
Terms, Schedule and Sequence
C Subscriber Services to Governmental and
Institutional Facilities
D Listing of Broad Categories of Programming Services, Rates and Charges;
Commercial (Leased) Access Channels
E Consumer Protection Standards
F Procedures for Consideration
of Proposed Transfers
G Insurance Requirements
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AGREEMENT
•
This AGREEMENT, executed as of the _ day of June, 1998 (the "Execution
Date "), by and between THE CITY OF LITTLE ROCK, ARKANSAS (hereinafter referred to
as the "Franchising Authority "), and COMCAST CABLEVISION OF LITTLE ROCK, INC.,
a corporation duly organized and validly existing under the laws of the State of Arkansas,
whose principal place of business is located at 801 Scott Street, Little Rock, Arkansas
(hereinafter referred to as the "Company "). For purposes of this Agreement, unless otherwise
defined in this Agreement or unless the context clearly indicates that another meaning is
intended, the capitalized terms, phrases, words, and their derivations used in this Agreement
shall have the meanings set forth in Appendix A.
WITNESSETH:
WHEREAS, pursuant to Title VI of the Communications Act of 1934, as amended,
the Congress established procedures and standards in order to, among other purposes,
encourage the growth and development of cable systems, assure that cable systems are
responsive to the needs and interests of the local community, and assure that cable
communications provide and are encouraged to provide the widest possible diversity of
services to the public; and
278
WHEREAS, the Franchising Authority finds it necessary and desirable to establish
reasonable consumer protection standards governing such matters as repairs and outages,
information required to be provided to subscribers, Company response time, billing practices,
termination and disconnection of Service; and
WHEREAS, the Franchising Authority intends to exercise the full scope of its
municipal powers, including both its police power and contracting authority, to promote the
public interest and to protect the health, safety and welfare of the citizens of the City of Little
Rock, Arkansas;
NOW, THEREFORE, in consideration of the foregoing clauses, which clauses are
hereby made a part of this Agreement, the mutual covenants and agreements herein contained,
and other good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereby, covenant and agree as follows:
v
SECTION 1
GRANT OF AUTHORITY
• U
1.1 Grant of Franchise. The Company is hereby granted a franchise (the
"Franchise ") to occupy and use the Streets within the Franchise Area in order to construct,
operate, maintain, upgrade, repair and remove the System, and provide Services through the
System, subject to the terms and conditions of this Agreement. Nothing herein shall be
interpreted to authorize the Company to provide Noncable Services through the Cable
System. The Franchise only authorizes the Company to provide Cable Service and does not
authorize any other services. The Company shall obtain a separate franchise or other
authorization required by the Franchising Authority to provide Noncable Services in the City
through the Cable System or otherwise, to the extent such a franchise or authorization is
permitted pursuant to applicable federal, state or local law, regulation or ordinance. Such
Franchise shall not be construed to authorize the license or lease to any Person or entity, of the
right to occupy or use the public rights -of -way for the conduct of any private business unless
such Person or entity has obtained a franchise or right -of -way agreement from the Franchising
Authority for such use.
1.2 Term of Franchise. The Franchise shall commence as of February 19, 4995
(the "Effective Date ") and shall expire on February 19, 2010, unless the Franchise is renewed
or extended for the limited purpose permitted by Section 6.4, or unless such expiration date is
sooner terminated pursuant to this Agreement by (i) the revocation of the Franchise as
provided in Section 9 or (ii) an Abandonment. Upon termination of the Franchise, all rights
of the Company in the Franchise shall cease, and the rights of the Franchising Authority and
the Company to the System, or any part thereof, shall be determined as provided in Section 9.
1.3 Renewal. Subject to Section 626 of the Cable Act (47 U.S.C. § 546), the
Franchising Authority reserves the right to grant or deny renewal of the Franchise.
1.4 Nonexclusive Franchise. The Franchise is nonexclusive. Nothing in this
Agreement shall affect the right of the Franchising Authority to grant to any Person, or itself,
a franchise, consent, or right to occupy and use the Streets, or any part thereof, for the
construction, operation, or maintenance of all or any part of a Cable System within the
Franchise Area or for any other purpose.
1.5 Reservation of Authoritv. Nothing in this Agreement shall (i) abrogate the
right of the Franchising Authority to perform any public works or public improvements of any
description, (ii) be construed as a waiver of any codes or ordinances of the Franchising
Authority or of the Franchising Authority's right to require the Company or any Person
utilizing the System to secure the appropriate permits or authorizations for such use, or (iii) be
construed as a waiver or release of the rights of the Franchising Authority in and to the
Streets. In the event that all or part of the Streets within the Franchise Area are eliminated,
discontinued and closed, the Franchise shall cease with respect to such Streets upon the
effective date of the final action of the Franchising Authority with respect thereto.
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1.6 Additional Cable Franchise Granted on More Favorable Terms. If the Board
of Directors exercises its right to grant to any third party one or more franchises (hereinafter
"Additional Cable Franchise ") for the construction, operation or maintenance of a Cable
System pursuant to the Cable Act and the Company believes the agreement (hereinafter the
"Additional Cable Franchise Agreement ") pursuant to which such Additional Cable Franchise
is granted bestows benefits and imposes burdens on the franchisee which, on balance, are
materially more advantageous to such third party than the benefits bestowed and burdens
imposed on the Company by this Agreement are to the Company, then, at any one time but
not sooner than six (6) months after the effective date of the Additional Cable Franchise, the
Company may request that the Franchising Authority make a determination to such effect
and, in the event of such a determination, renegotiate the terms and conditions of this
Agreement as provided below. The Company may only request such a determination if the
Company is in substantial compliance with the material provisions of this Agreement. In the
event of such a request, the Franchising Authority shall determine, under its standard
procedures, whether the Additional Cable Franchise Agreement bestows benefits and imposes
burdens on the third party which, on balance, are materially more advantageous to the third
party than the benefits and burdens imposed by this Agreement are to the Company. In
making a determination under this subsection, the Franchising Authority shall consider factors
such as, but not limited to: (i) the term of each franchise; (ii) the franchise fee to be paid by
each franchisee, including the Company; (iii) the number and density of dwelling units to be
served; (iv) differences in construction, operational and maintenance costs; (v) differences in
required system characteristics; (vi) differences in service obligations, including public,
educational and governmental access and institutional service requirements; (vii) differences
in permitted fees and charges; and (viii) such other factors and considerations as the
Franchising Authority considers to be relevant to an inquiry into the overall economic
comparability of the agreements. Upon the Company's request, the Board of Directors and
the Company shall enter into good faith negotiations to seek to modify this Agreement to
bestow benefits and impose burdens which, on balance, create overall economic
comparability between this Agreement and the Additional Cable Franchise Agreement.
SECTION 2
THE SYSTEM
2.1 The System and Its Operations
2.1.1 General Obligation. The Company shall construct, operate, maintain,
and upgrade the System as provided in this Agreement. Without limiting the foregoing, the
System shall have the characteristics, shall meet the technical performance and testing
requirements and shall be constructed pursuant to the terms, schedule and sequence set forth
below and in Appendix B.
2.1 .2 Channel Capacity. Upon the completion of the System upgrade as set
forth in Section 2.1.6, the Subscriber Network shall provide at least seventy -seven (77)
activated downstream video Channels, at least seventy (70) of which shall be analog video
Channels.
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2.1.3 Universal Wiring. The Company shall construct, operate, maintain
and upgrade the System so as to make all Services distributed over the System available to all
Persons within the Franchise Area who request Service, in accordance with the schedule and
procedures established in this Agreement, including Appendices B, D and E.
2.1.4 Emergency Override. The Company shall equip the System with an
emergency override system, and shall maintain and operate such system throughout the term
of the Franchise. The emergency override system will be operated in accordance with
Appendix B.
2.1 .5 Interconnection. The Company shall construct, operate, maintain and
upgrade the System such that it is capable of transmitting and receiving Signals to and from
any other Cable System in the State of Arkansas. With respect to connection with other Cable
Systems, the Franchising Authority and Company shall negotiate in good faith the costs to be
incurred by the Company, and any cost sharing arrangements with the Cable Systems to be
connected to the Company's Cable System.
2.1.6 Upgrade. By no later than July 1, 1999, the Company shall
commence and diligently pursue an upgrade of the System to a 750 MHz System, of which
200 MHz may be used for digital services, and that meets the upgrade standards set forth in
Appendix B. Such upgrade shall be completed throughout the entire Franchise Area no later
than July 1, 2002; provided, however, the Company may have up to 180 additional days to
complete such upgrade in the event the Company is unable to complete the upgrade by such
date as a result of circumstances beyond its reasonable control, including, among other things,
any reasons set forth in Section 11.6 of this Agreement, and the Company provides the
Franchising Authority written notice of such circumstances prior to July 1, 2002.
2.1.7 Performance Review. Beginning February 19, 2005 and each year
thereafter, the Franchising Authority may request that the Company participate in an
evaluation and review session to compare the Company's Service and System to that offered
in comparable communities. Topics which may be discussed at such session include, but are
not limited to, rates, channel capacity, System performance, programming, PEG access,
Subscriber complaints, and legal, regulatory and judicial developments. Other topics may be
added for discussion by either the Franchising Authority or the Company. As a result of an
evaluation and review session, the Franchising Authority and Company may determine that a
change in the System or in the terms of the Agreement may be desirable. In such event, the
Company and the Franchising Authority shall negotiate in good faith any proposed
amendment to the Agreement provided that the amendment is not inconsistent with applicable
law or regulation and is economically feasible in light of any additional costs to be incurred
by the Company or Subscribers. Moreover, except as agreed to by the Company and the
Franchising Authority, such amendment shall not result in material alterations of the rights
and duties of the parties under this Agreement.
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2.2 Construction Requirements
2.2.1 General Requirement. The Company shall comply with each of the
terms set forth in this Section 2.2 and Appendix B in connection with all work involved in the
construction, operation, maintenance, repair, upgrade, and removal of the System, in addition
to any other requirements or procedures specified by the Franchising Authority that are
related to the use of the Streets and are generally applicable to other Persons using the Streets.
2.2.2 Qualitv. All work involved in the construction, operation,
maintenance, repair, upgrade, and removal of the System shall be performed in a safe,
thorough and reliable manner using materials of good and durable quality. If, at any time, it is
determined by the Franchising Authority or any other agency or authority of competent
jurisdiction that any part of the System, including, without limitation, any means used to
distribute Signals over or within the System, is harmful to the health or safety of any Person,
then the Company shall, at its own cost and expense, promptly correct all such conditions.
2.2.3 No Liability to Company or Affiliated Persons. Neither the
Franchising Authority nor its officers, employees, agents, attorneys, consultants or
independent contractors shall have any liability to the Company or any Affiliated Person for
any liability as a result of or in connection with the protection, breaking through, movement,
removal, alteration, or relocation of any part of the System by the Company pursuant to the
request of the Franchising Authority or in connection with any emergency, public work,
public improvement, alteration of any municipal structure, any change in the grade or line of
any Street, or the elimination, discontinuation, and closing of any Street, as provided in this
Agreement.
2.2.4 Agreement for Reasonable Moratoria. The Company and the
Franchising Authority recognize that from time to time it may be necessary for the
Franchising Authority to impose reasonable moratoria on construction projects that would
otherwise be authorized by this Franchise. The Company agrees that the Franchising
Authority has the right to impose such moratoria and further agrees that it will waive the right
to challenge the legality of any moratorium the Franchising Authority imposes for a
reasonable period of time in order to accomplish or facilitate any public purpose or a purpose
of particular importance to the Franchising Authority as determined by the Mayor, the Board
of Directors, the City Manager, or the Director of Public Works. The Franchising Authority
acknowledges that a moratorium is a unique power that the Franchising Authority should
exercise only on limited occasions because of a legitimate governmental need or objective
and, that with the exception of undue hardship or emergency situations, as determined by the
Franchising Authority, a moratorium must be applied equally to all Persons impacted by its
terms and conditions.
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SECTION 3
SERVICE OBLIGATIONS
3.1 Service to All Persons. The Company shall make all Services distributed over
the System available to all Persons within the Franchise Area who request Service, subject to
any fees or deposits that may be required of certain categories of Subscribers in accordance
with Section 4.2.of this Agreement and Sections 4.2.1 and 8.2 of Appendix E.
3.2 Programming Services. The Company shall offer to all Subscribers the broad
categories of diverse video programming services as described in Appendix D, but may
change such Services as permitted by this Agreement and applicable law and upon thirty days
notice to the Franchising Authority and Subscribers.
33 No Discrimination. The Company shall not discriminate between or among
any Persons in the availability of Services in the City, except as permitted by this Agreement
and applicable law. Further, the Company and each Affiliated Person shall ensure that access
to any Service is not denied to any group of potential Subscribers because of the income of
the residents of the area in which such group resides, geographic location or any other criteria.
It shall be the right of all Persons to receive all available Services insofar as their financial and
other obligations to the Company are satisfied.
3.4 Service to Governmental and Institutional Facilities. The Company shall
provide wiring and free Service to governmental and institutional facilities in accordance with
Appendix C.
3.5 PEG Access.
3.5.1 PEG Channels.
(a) Until the completion of the upgrade set forth in Section 2.1.6 and Appendix B,
the Company shall maintain the number of public, educational and
governmental ( "PEG ") access channels and the amount of PEG access channel
capacity it provided as of the Execution Date.
(b) Upon the completion of the upgrade set forth in Section 2.1.6 and Appendix B,
the Company shall provide: (I) one full -time analog governmental access
Channel at Channel 11; and (1I) two full -time analog educational access
channels at Channels 4 and 29. All channels provided pursuant to this Section
3.5.1(b) shall remain on the Basic Service tier during the term of this
Agreement, provided, however, the Company shall have until the completion of
the upgrade to move the University of Arkansas, Little Rock educational
channel (Channel 29) to the Basic Service tier. Nothing herein shall be
interpreted to prohibit the Franchising Authority from using the governmental
access channel for educational access purposes, or an educational access
channel for governmental access purposes.
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(c) The Company shall continue to provide throughout the term of the Agreement
the analog public access Channel at its current Channel location (Channel 18),
except to the extent the Company is released of its obligation to provide such
Channel under Section 3.5.2 of this Agreement. Such Channel shall be
provided in addition to the PEG access capacity required under Sections
3.5.1(b) and (d).
(d) Upon the request of the Franchising Authority and after the completion of the
upgrade set forth in Section 2.1.6, the Company shall provide one analog
channel which the Franchising Authority may use for public, educational, or
governmental purposes, or a mixture of such purposes. The Franchising
Authority shall have the right to request such channel at any time after
programming is shown on the access channels required by Section 3.5.1(b)
either: (a) an average of 40 hours per week each over a one month period, or
(b) a collective total for all three channels of 120 hours per week on average
over a one month period. For purposes of this Section 3.5.1(d),
"programming" shall not include character- generated programming.
(e) The PEG access channels may be used only for purposes permitted by law.
(f) In the event the Company technically reconfigures its System so that
Subscribers receiving only Basic Service are no longer required to lease a
converter box to receive such Service, the Company may change the channel
position of any of the access channels provided pursuant to Sections 3.5.1(a),
(b) and (c), except for Channel 11 which shall remain at its current location
throughout the term of this Agreement, so long as each such channel is
assigned a lower channel position and remains on the Basic Service tier. The
Company shall use reasonable efforts to inform Subscribers of any change in
channel location, including, among other things, a bill stuffer informing
subscribers of such change at least 30 days prior to such change, and public
service announcements on the channels subject to such change at least several
times a day each day for the two month period prior to such channel location
change.
(g) The Franchising Authority agrees to negotiate with the Company in good faith
if the Company requests a change in the channel location for an access channel,
except for Channel 11 which shall remain at its current channel location
throughout the term of this Agreement, as a result of a change in the technical
configuration of the System for a purpose other than that set forth in Section
3.5.1(f), provided, however, nothing herein shall be interpreted to require the
Franchising Authority to accept another channel location. In the event the
Franchising Authority agrees to a change in channel position, the Company
shall use reasonable efforts to inform Subscribers of any such change,
including, among other things, a bill stuffer informing subscribers of such
change at least 30 days prior to such change, and public service announcements
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on the channels subject to such change at least several times a day each day for
the two month period prior to such change.
(h) In the event the Company during the term of this Agreement decides to provide
all Channels as digital Channels and, thus, no longer provide an analog Basic
Service tier, the Company shall provide the Franchising Authority at least 180
days notice before implementing such change. On and after the date of such
change, the Franchising Authority shall have the right to use digital channel
capacity on the digital Basic Service tier equivalent to the spectrum capacity
occupied by the analog access channels provided pursuant to this Section 3.5.1,
provided, however, the Franchising Authority shall have the right to use less
than the full amount of digital capacity made available for its use pursuant to
this Section 3.5.1(h). Such digital capacity may only be used for the lawful
purposes for which the Franchising Authority could use the analog capacity
pursuant to'Section 3.5.1(e) of this Agreement.
3.5.2 PEG Support.
(a) By no later than August 1, 1998, the Company shall provide the Franchising
Authority a $500,000 grant for governmental access capital support.
(b) In addition, as of July 1, 1999, the Company shall provide governmental access
capital support to the Franchising Authority in the amount of $0.10 per
subscriber per month throughout the term of the franchise.
(c) Upon the completion of the upgrade set forth in Section 2.1.6 and Appendix B,
the Franchising Authority may require the Company to assist the Franchising
Authority in establishing a public access entity to support and operate the
public access channel provided pursuant to Section 3.5.1 (c). The Company
also shall provide a Fifty Thousand Dollar ($50,000) capital grant to such
entity, provided the Franchising Authority provides a matching grant in the
amount of $50,000 to such entity. In the event the Franchising Authority elects
not to form an access entity to operate the public access channel, the Company
shall provide a $50,000 grant to the Franchising Authority as capital support for
the governmental access channel and shall have no further obligation to provide
the public access channel as set forth in Section 3.5.1(c). Nothing herein shall
be interpreted to prohibit the Franchising Authority from using any access
channel capacity provided pursuant to Section 3.5.1(d) for public access
purposes.
3.5.3 PEG Rules. In accordance with Section 611 of the Cable Act
(47 U.S.C. § 531), the Franchising Authority: (a) may require rules and procedures for the
use of PEG capacity; and (b) shall prescribe rules and procedures under which the cable
operator is permitted to use PEG channel capacity for the provision of other services if such
channel capacity is not being used for PEG purposes, and under which the Company's use of
such channel capacity shall cease.
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3.6 Local Origination. The Company agrees to provide the current "Black Access"
local origination channel throughout the term of the Agreement at its current channel location
(Channel 14). Notwithstanding the foregoing, the Company may change the channel location
of such channel if a change in the technical configuration of the System requires a change in
the channel location, provided, however, the channel shall remain on its current cable
programming service tier throughout the term of this Agreement and the Company agrees to
use reasonable efforts to inform Subscribers of any such change, including, among other
things, a bill stuffer informing subscribers of such change at least 30 days prior to such
change, and public service announcements on the channel at least several times a day each
day for the two month period prior to such change.
3.7 Institutional Services. The Company shall cooperate with the Franchising
Authority to provide support for the upgrade of the Institutional Network in accordance with
the terms set forth in Appendix B.
SECTION 4
FEES AND CHARGES
4.1 Fees and Charges To Be Set Forth in Appendix D. As of the Execution Date,
the rates, fees, charges, deposits, and associated terms and conditions imposed by the
Company and each Affiliated Person for every Service are set forth on the rate cards located
at Appendix D. During the term of this Agreement, neither the Company nor an Affiliated
Person may make a change in any rate, fee, charge, deposit, or associated term or condition
for any Service unless notice thereof is provided to the Franchising Authority at least thirty
days in advance of the effective date of such change. The Company's obligations pursuant to
this Section 4.1 shall be in addition to any requirements under this Agreement or applicable
law regarding any change in the fees, charges, deposits, and associated terms and conditions
imposed by the Company and each Affiliated Person for any Service.
4.2 Prohibition Against Discrimination in Fees and Charges. Except to the extent
otherwise permitted by applicable law (and after receiving the Franchising Authority's
approval, to the extent the Franchising Authority is exercising such authority pursuant to
applicable law), the Company shall not discriminate among Subscribers of any Service with
respect to any fee, charge, deposit, or other term or condition for any Service or any Service
call, provided that, to the extent permitted by this Agreement and applicable law (and after
receiving the Franchising Authority's approval, to the extent the Franchising Authority is
exercising such authority pursuant to applicable law), the Company may establish: (a)
different charges for residential Subscribers than for nonresidential Subscribers; (b) short-
term sales promotions and other short-term discounts or reduced charges; (c) reasonable
discounts or reduced charges to senior citizens or other economically disadvantaged groups;
(d) bulk rate arrangements; and (e) any other short-term discounts for reasonable categories of
Service.
4.3 Parental Control Devices. The Company shall, within one business day of a
Subscriber's written or oral request and in accordance with this Agreement and applicable
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law, provide (by a sale or lease rate that does not exceed the maximum permitted rate 287
permitted by law) to each Subscriber one of the following devices by which the Subscriber
can block completely the video and audio Signals of a particular Cable Service during periods
selected by that Subscriber: (i) a parental control device; or (ii) a converter with a parental
control feature; or (iii) a filter, trap or other method or device. The choice of such device
shall be at the Subscribers election, to the extent permissible under applicable law and
technically feasible.
4.4 Changes to Fees and Charges. Except to the extent permitted by Section
632(c) of the Cable Act (47 U.S.C. § 552(c)), the Company shall not make any change in any
fee, charge, deposit, term or condition unless at least thirty (30) days prior to the proposed
effective date of any such change, the Company has provided: (a) written notice of the
proposed change to the Franchising Authority; and (b) notice of the proposed change by any
means expressly permitted under applicable law to each affected Subscriber. All notices
required by this Section 4.4 shall specify, as applicable, the service or services affected, the
new rate, charge, term or condition, the cause of the change (e.g., inflation, changes in
external costs or the addition/deletion of channels), and the effective date of the change. The
foregoing notice shall be in addition to the requirements set forth in Appendix E and other
requirements set forth under applicable law and this Agreement, including, without limitation,
any applicable laws or sections in this Agreement requiring the approval of the Franchising
Authority or other governmental entity of any change in any fee, charge, deposit, term or
condition.
4.5 Franchising_ Authority's Regulation of Fees and Charges. The Franchising
Authority reserves the right to regulate the rates, fees, charges, deposits and associated terms
and conditions for any Service provided pursuant to this Agreement to the fullest extent
permitted by applicable law, and the Franchising Authority may establish rules and
regulations in connection therewith from time to time. In connection with such regulation, the
Franchising Authority shall comply with FCC rules and provide the public with an
opportunity to comment.
4.6 Installations. The Company's rates for the installation of Service shall not
exceed the maximum permitted rates under the rate regulations of the Federal
Communications Commission. In calculating the rate for the installation of Service, the
Company shall only include those costs permissible under the FCC's rate regulations.
4.7 Not External Costs, The Company agrees that none of the costs associated
with complying with the following provisions of this Agreement shall constitute "external
costs" within the meaning of 47 C.F.R. § 76.922(f)(iii) and that the Company shall not
otherwise seek to pass through such costs to subscribers: (a) the construction and upgrade of
the System pursuant to Sections 2.1.2 and 2.1.6 of this Agreement and Sections I through IV
of Appendix B; (b) the provision of, or channel location of, access channels pursuant to
Section 3.5.1, provided that nothing herein is intended to prohibit the Company from
recouping any cost it may be permitted for the carriage of a channel pursuant to 47 C.F.R. §
76.922(g); (c) PEG support pursuant to Sections 3.5.2(a) and (c); (d) the provision of the local
origination channel pursuant to Section 3.6; (e) the provision of Service pursuant to Section
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3.4 and Appendix C; (f) compliance with Appendix E; (g) the Security Fund (Section 9.7)
and insurance (Section 11.9.5 & Appendix G) requirements; (h) the service requirements set
forth in Sections 2.1.3 and 3.1; (i) the emergency override provisions in Section 2.1.4 and
Appendix B; 0) any requirement under this Agreement to the extent the Company is
otherwise required by federal or state law or regulation to comply with the requirement,
except that with regard to federal law or regulation, nothing herein shall be interpreted to
prohibit the Company from treating a cost as an external cost to the extent permitted by such
law or regulation unless the Company has otherwise agreed herein not to treat such cost as an
external cost or to pass through such cost to Subscribers; (k) reimbursement of the
Franchising Authority pursuant to Section 6.1.4; (1) compliance with the interest provision
under Section 6.3; (m) the technical performance provisions under Section Il of Appendix B;
(n) compliance with the terms of Section IV of Appendix B; and (o) compliance with Section
I of Appendix D. In the event the Company seeks to pass through costs to subscribers that it
in good faith believes are external costs under the FCC rate regulations which the Company
has not otherwise agreed herein not to treat as an external cost, the Company and the .
Franchising Authority shall in good faith discuss a method to pass through such costs in a
manner permitted by the rate regulation rules of the Federal Communications Commission
(47 C.F.R. § 901, et. seq.), provided the Company and Franchising Authority agree that to the
extent any such costs are capital costs, the Company shall amortize such costs over the longer
of the remaining term of this Agreement or the useful life of the equipment or facilities.
SECTION 5
CONSUMER PROTECTION AND CUSTOMER SERVICE;
SUBSCRIBER BILLS; AND PRIVACY PROTECTION
5.1 Customer Service and Consumer Protection Standards
The Company shall comply in all respects with the requirements set forth in
Appendix E.
5.2 Subscriber Bills
5.2.1 Bill Format Generally. Subscriber bills shall be designed in such a
way as to present the information contained therein in a manner that is clear, concise, and
understandable to Subscribers; that is consistent with applicable law; and that (i) is not
misleading, (ii) does not omit material information, and (iii) does not mischaracterize any
information.
5.2.2 Bill Itemization
5.2.2(1) The Company may itemize costs on Subscriber bills to the extent
permitted by applicable law and any rules or regulations promulgated thereunder.
5.2.2(ii) Any costs itemized on Subscriber bills may not be misleading, omit
material information, or intentionally mischaracterize any information.
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5.3 Privacy Protection
5.3.1 Company To Protect Privacy. The Company shall comply with
applicable privacy laws, including, without limitation, Section 631 of the Cable Act (47
U.S.C. § 55 1) and regulations adopted pursuant thereto.
5.3.2 Company To Provide Certain Information To Franchising Authority.
The Company shall, upon the request of the Franchising Authority from time to time during
the term of the Franchise and consistent with applicable law, provide to the Franchising
Authority Subscriber information requested by the Franchising Authority.
SECTION 6
COMPENSATION AND OTHER PAYMENTS
6.1 Compensation to the Franchising Authority. As compensation for the
Franchise, the Company shall pay, or cause to be paid, to the Franchising Authority the
amounts set forth in this Section 6.1.
6, 1.1 Franchise Fees -- Amount. As compensation for the franchise, the
Company shall pay to the Franchising Authority an amount equal to five percent (5 %) of
Gross Revenue derived from the operation of the System to provide Services. Except for the
payments expressly required by Section 6. 1, none of the payments or contributions made by,
or the Services, equipment, facilities, support, resources, or other activities to be provided or
performed by the Company at the direction of the Franchising Authority or otherwise
pursuant to this Agreement, or otherwise in connection with the construction, operation,
maintenance or upgrade of the System, are franchise fees chargeable against the compensation
payments to be paid to the Franchising Authority by the Company pursuant to Section 6.1 nor
shall any of them be treated as part of the compensation to be paid to the Franchising
Authority pursuant to Section 6.1. If the foregoing sentence for any reason is held invalid, the
compensation payments due from the Company to the Franchising Authority pursuant to
Section 6.1, shall take precedence over all other payments, contributions, Services,
equipment, facilities, support, resources, or other activities to be paid or supplied by the
Company pursuant to this Agreement.
6.1.2 Franchise Fees -- Payment. All such payments of franchise fees shall
be made on a quarterly basis and shall be remitted simultaneously with the submission of the
Company's quarterly report required pursuant to Section 6.1.3.
6.1.3 Company To Submit Franchise Fee Report. The Company shall
submit to the Franchising Authority a report, in such form and containing such detail as the
Franchising Authority deems appropriate in order to determine the Company's compliance
with this Section, not later than thirty (30) days after the last day of each March, June,
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September, and December throughout the term of this Agreement setting forth the Grows 2 �O
Revenue for the quarter ending on said last day.
6.1.4 Franchise Fee Pavments Subject to Audit: Remedy for
Underpavment. Except as otherwise provided by law, no acceptance of any franchise fee
payment by the Franchising Authority shall be construed as an accord and satisfaction that the
amount paid is in fact the correct amount or a release of any claim that the Franchising
Authority may have for further or additional sums payable under this Agreement, and all
amounts paid shall be subject to audit and recomputation by the Franchising Authority for a
three -year period from the date of payment after which period such payment shall be
considered final. _
If, as a result of such audit or any other review, the Franchising Authority
determines that the Company has underpaid its fees in any twelve (12) month period by ten
percent (10 %) or more, then, except in the case of a good faith dispute by the Company, the
Company shall make full payment of the relevant obligation and reimburse the Franchising
Authority for all of the reasonable costs associated with the audit or review.
6.1.5 Company To Deduct and Pay Franchise Fee on Amounts Collected
for Third Parties. If the Company collects from Subscribers any amounts to be paid to any
Person for the provision of Services on the System that fall within the definition of Gross
Revenue, the Company shall deduct the same percentage from such amounts as the then -
applicable franchise fee percentage pursuant to Section 6. 1.1 and include such deducted
amounts in its payment to the Franchising Authority pursuant to this Section 6.1 and include
such payments in its report pursuant to Section 6.13.
6.1.6 Company To Require Third Parties To Pay on Amounts Collected
from Subscribers. If any Person other than the Company directly collects such amounts from
Subscribers that would constitute Gross Revenue if received directly by the Company, the
Company shall include in its contract, or other arrangement with such Person, a provision
(which must be approved in advance by the Franchising Authority) which provides that such
Person shall remit to the Franchising Authority on a quarterly basis an amount equal to the
same percentage of such amounts collected from Subscribers as the then - applicable franchise
fee percentage pursuant to Section 6.1.1, together with a quarterly report similar in form and
content to the report referred to in Section 6.1.3, and that the Franchising Authority may
enforce such provision directly against such Person.
6.2 Payments Not To Be Set Off Against Taxes or Vice Versa. The parties agree
that the compensation and other payments to be made pursuant to this Section 6 and any other
provision of this Agreement are not a tax and are not in the nature of a tax and are in addition
to any and all taxes of general applicability or other fees or charges (including any fees or
charges which may be imposed on the Company for the use of poles, conduits or similar
facilities that may be owned or controlled by the Franchising Authority) which the Company
or any Affiliated Person shall be required to pay to the Franchising Authority or to any other
governmental authority, and neither the Company nor any Affiliated Person shall have or
make any claim for any deduction or other credit of all or any part of the amount of the
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compensation or other payments to be made pursuant to this Agreement, on the one hand, 291
from or against any Franchising Authority or other governmental taxes of general
applicability or other fees or charges which the Company or any Affiliated Person is required
to pay to the Franchising Authority or other governmental agency on the other hand, or vice
versa.
6.3 Interest on Late Payments. If any payment required by this Agreement is not
actually received by the Franchising Authority on or before the applicable date fixed in this
Agreement or by the Franchising Authority, the Company shall pay interest thereon, from the
due date to the date paid, at a rate equal to three (3) percent interest per annum above the
Federal Reserve discount rate at the time of this Agreement, or as otherwise provided by
Article 19, Section 13 of the State of Arkansas Constitution.
6.4 Continuing Obligation. In the event the Company continues to operate all or
any part of the System after the term of this Agreement, then the provisions of this Agreement
shall apply and the Company shall continue to comply with all applicable provisions of this
Agreement, including, without limitation, all compensation and other payment provisions of
this Agreement, throughout the period of such continued operation, provided that any such
continued operation shall in no way be construed as a renewal or other extension of this
Agreement or the Franchise, except to the extent an extension is for purposes of compliance
with Section 626 of the Cable Act.
SECTION 7
OVERSIGHT AND REGULATION
7.1 Franchising Authority's Right of Oversight. The Franchising Authority shall
have the right to oversee, regulate, and periodically inspect the construction, operation,
maintenance and upgrade of the System, and all parts thereof, in accordance with the
provisions of this Agreement and applicable law. Consistent with applicable law, the
Franchising Authority may adopt or issue such rules, regulations, orders, or other directives
governing the Company or the System as it shall find necessary or appropriate in the exercise
of the Franchising Authority's police power, and such other orders as the Franchising
Authority shall find necessary or appropriate pursuant to and in furtherance of the terms of
this Agreement, and the Company expressly agrees to comply with all such lawful rules,
regulations, orders, or other directives, provided that such rules, regulations, orders, or other
directives are not materially in conflict with the Company's rights set forth herein. Nothing
herein shall be interpreted to grant the Franchising Authority any right to adopt any rules,
regulations, orders or other directives it does not otherwise have the righi to adopt under
applicable statute, rule, regulation or ordinance.
7.2 Company Obligation To Have Operational and Managerial Standards. The
Company shall have managerial and operational standards, procedures, records and controls
to enable the Company to be, at all times throughout the term of this Agreement, in
compliance with each term and condition of this Agreement.
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7.3 Reports To Be Provided by the Company
7.3.1 Comoliance Report. The Company shall cooperate with the
Franchising Authority so as to ensure the Franchising Authority's ability to enforce the terms
and conditions of this Agreement to the maximum extent permitted by this Agreement and
applicable law. At the request of the Franchising Authority, the Company shall promptly
submit to the Franchising Authority a report or information, in such detail and containing such
substance as the Franchising Authority may reasonably determine, regarding the Company,
and its compliance with any term or condition of this Agreement.
7.3.2 Financial Reports. The Company shall submit to the Franchising
Authority, at the Franchising Authority's request, an appropriate financial statement
containing such information as the Franchising Authority deems relevant to enforcement of,
or to determining the Company's compliance with, this Agreement. _
7.3.3 Company To Submit Conies of Communications With
Government Officials. At the request of the Franchising Authority, the Company shall submit
to the Franchising Authority, for the preceding quarter, all briefs, comments, applications,
petitions, or other similar filings which are in writing or are reduced to writing (in manual or
computer form but not internal file memoranda), which are submitted to any municipal, state,
county or federal agency, court, governmental body or official, and all communications,
applications, correspondence, public reports, petitions, or other filings which are in writing or
are reduced to writing (in manual or computer form but not internal file memoranda), which
are received from any municipal, state, county or federal agency, court, governmental body or
official, which are relevant to any aspect of the operations or the financial arrangements of the
System pursuant to this Agreement or which in any way materially affect the System or any
Service or the Company's representations and warranties set forth herein, but not including tax
returns. Section 7.5.2 is applicable to the treatment of information the Franchising Authority
may request pursuant to this Section 7.3.3 that the Company alleges contains confidential or
proprietary information.
7.4 Company To Maintain
Books. Records and Files
7.4.1 Books and Records. Throughout the term of this Agreement, the
Company shall maintain in the Franchise Area, or make available in the Franchise Area
within ten (10) business days, complete and accurate records of the business, ownership, and
operations of the Company with respect to the System, its operation, any Service distributed
over the System, and which are adequate to enable the Company to demonstrate, at all times
throughout the term of this Agreement, that it is, and has been, in compliance with each term
and condition of this Agreement. All such documents which pertain to financial matters
which may be the subject of an audit by the Franchising Authority shall be retained by the
Company for a minimum of three (3) years following termination of this Agreement.
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7.4.2 File for Public Inspection. Throughout the term of this Agreement, 293
the Company shall maintain, in a file available for public inspection during normal business
hours, in the Franchise Area, a list of the following documents:
7.4.2(1) the initial version of all plans and other documents as submitted by
the Company or, as applicable, by any other Person as provided in this Agreement, all updates
to such plans and other documents, and any modifications to such plans or other documents
that have become effective;
7.4.2(ii) records of all Subscriber complaints received by the Company
during the prior three (3) years, and the action taken by the Company in response to each
complaint, as provided in Appendix E, provided that the name and address of each Subscriber
appearing on such records shall not be disclosed to the Franchising Authority, unless a
Subscriber permits his or her name and address be disclosed to the Franchising Authority;
7.4.2(iii) all periodic reports to be submitted by the Company, as provided
in this Section 7;
7.4.2(iv) all rules and regulations for commercial (leased) access channels
adopted by the Company pursuant to the FCC's regulations under Section 612 of the Cable
Act; and
7.4.2(v) records indicating all uses, and users, of (including suppliers of
Services on) all Channels on the System.
Each entry on the list must be in a form, and provide sufficient detail, to allow a Person to
readily identify the matter to which the list entry pertains. Upon request of a Person, the
Company shall promptly, but in no event more than two (2) business days after the request,
provide such Person a copy of any item requested from the list for inspection during normal
business hours.
7.5 Franchising Authority's
Rights of Inspection and Audit
7.5.1 Right of Inspection -- General. The Franchising Authority or its
designated representatives, shall have the right to inspect or examine during normal hours of
operation and upon three (3) days written notice to the Company, all documents, records and
other information which pertain to the Company or any Affiliated Person with respect to the
System, and which enable the Franchising Authority to determine the Company's compliance
with this Agreement or to otherwise perform its regulatory responsibilities under this
Agreement. All such documents, records and other information shall be made available
within the Franchise Area in order to facilitate said inspection, examination, or audit, as
provided in this Section 7.5. Further, during normal hours of operation and upon three (3)
days written notice to the Company, the Franchising Authority or its designated
representatives may inspect and examine any other aspect of the System, including facilities
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and equipment thereof. The Company shall have the right to be present during any inspection
pursuant to this Section 7.5.1.
7.5.2 Treatment of Proprietary Information.
7.5.2(i) Access by the Franchising Authority to any of the documents,
records or other information covered by this Section 7.5 or Sections 7.3. and 7.4 shall not be
denied by the Company on grounds that such documents, records or information are alleged
by the Company to contain proprietary information, provided that, although the Franchising
Authority has the right to view such documents, records or other information, the Company
shall maintain control of such documents, records or other information and not grant the
Franchising Authority the right to possess any such documents, records, or other information
and that this requirement shall not be deemed to constitute a waiver of the Compan y's right to
assert that the proprietary information contained in such documents, records or other
information, should not be disclosed and to withhold such information from the Franchising
Authority's possession upon the agreement of the Franchising Authority. If the Franchising
Authority concurs with the Company's assertion regarding the proprietary nature of such
documents, records or other information, and if the Franchising Authority has never had
possession of such documents, records or other information but only access to such
documents, records or other information, the Franchising Authority will not disclose such
documents, records or other information to any Person, unless required by applicable law or
order of governmental authority. If the Franchising Authority does not concur with such
assertion, and the Company does not withdraw its assertion, then the Franchising Authority
shall return the material to the Company or shall submit the material containing such
information to a court of competent jurisdiction under seal for in camera inspection. The
Company shall not be required to provide the Franchising Authority possession of the
proprietary portion of such material during the pendency of any court challenge to such
provision unless so ordered by a court of competent jurisdiction, except that the Franchising
Authority shall have the right to review such documents, records or other information. If as a
part of any reporting requirement or request for information the Franchising Authority has
knowingly or unknowingly requested proprietary information, or if the Company feels that it
cannot respond to a request without providing proprietary information, this information shall
be provided under separate seal with the bold notation "Proprietary Information Enclosed:
Not to be Disseminated Without Approval." This material shall be returned immediately to
the Company upon review by the Franchising Authority and shall never become a part of the
Franchising Authority's files concerning this Agreement, provided that failure to so designate
this material shall in no way be a basis for any action by the Company against the Franchising
Authority.
7.5.2(ii) Notwithstanding Section 7.5.2(i), in the event the Franchising
Authority has obtained or set aside funds for the construction of a Cable System in the
Franchise Area and has announced plans to operate a Cable System in the Franchise Area, the
Franchising Authority's right to obtain proprietary information pursuant to Section 7.5.2(1)
shall be limited to those circumstances where the Franchising Authority requests such
information to determine the Company's compliance with this Agreement or to otherwise
perform its regulatory responsibilities under this Agreement. In such circumstance, the
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Franchising Authority and the Company shall agree upon a neutral third party to review such
information on behalf of the Franchising Authority and such third party shall provide the
Franchising Authority with any answers or information the Franchising Authority reasonably
determines it needs to determine the Company's compliance with this Agreement or to
otherwise exercise its regulatory responsibilities under this Agreement.
7.5.3 Franchising Authority Mav Conduct Compliance Audit and Hearings.
The Franchising Authority may conduct a full compliance audit and hold public hearings at
any time during the term of the Franchise, provided it gives the Company written notice
fifteen (15) days in advance of the commencement of such audits and associated hearings.
7.6. Company to Provide Copies to City Manager and City Attorney
The Company shall provide a copy of all documents, records, rate filings or other
information required to be submitted to the Franchising Authority pursuant to this Agreement
or applicable law or regulation to the City Manager and the City Attorney at the addresses and
in the manner set forth in Section 11.7.
SECTION 8
RESTRICTIONS AGAINST ASSIGNMENTS
AND OTHER TRANSFERS
8.1 Transfer of Franchise Agreement or System. Neither the Franchise, nor any
rights or obligations of the Company in the System or pursuant to this Agreement, nor any
part of the capacity of the System, shall be encumbered, assigned, sold, transferred, pledged,
leased, sublet, or mortgaged in any manner, in whole or in part, to any Person, nor shall title
therein, either legal or equitable, or any right or interest therein, pass to or vest in any Person,
either by act of the Company or any Affiliated Person, by act of any Person holding Control
of or any interest in the Company or in the System or the Franchise, by operation of law, or
otherwise, without the prior written consent of the Franchising Authority, provided that the
Franchising Authority shall consider any such action in accordance with applicable law and
its usual procedural rules.
8.2 Transfer of Control. The ownership and Control structure of the Company as
of the Execution Date is set forth on Appendix F. No change in Control of the Company, the
System or the Franchise shall occur after the Execution Date, by act of the Company or any
Affiliated Person, by act of any Person holding Control of the Company, the System or the
Franchise, by operation of law, or otherwise, without the prior written consent of the
Franchising Authority. Notwithstanding the foregoing, the prior consent of the Franchising
Authority shall not be required with respect to solely intracorporate reorganizations between
or among entities wholly owned and wholly controlled by Comcast Corporation to the extent
such transaction does not involve a change in the management, day to day operations, or
financial condition of the Company; provided, the Franchising Authority shall receive thirty
(30) days advance written notice of such intracorporate reorganization.
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8.3 Procedures. The procedures in Appendix F shall be followed with respect to
all proposed actions requiring consent under Section 8.1 or 8.2 and shall also be followed for
any proposed action as to which there is a presumption of a change of Control within the
meaning of Appendix A.
296.
8.4 Consent Not A Waiver. The grant or waiver of any one or more of such
consents shall not render unnecessary any subsequent consent, nor shall the grant of any such
consent constitute a waiver of any other rights of the Franchising Authority.
SECTION 9
SPECIFIC RIGHTS AND REMEDIES
9.1 Not Exclusive. The Company agrees that the Franchising Authority shall have
the specific rights and remedies set forth in this Section 9. These rights and remedies are in
addition to and cumulative with any and all other rights or remedies, existing or implied, now
or hereafter available to the Franchising Authority at law or in equity in order to enforce the
provisions of this Agreement, except that nothing herein shall be interpreted to permit the
Franchising Authority to exercise such rights and remedies in a manner that permits
duplicative recovery from or payments by the Company. Such rights and remedies shall not
be exclusive, but each and every right and remedy specifically provided 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 the Franchising Authority. The exercise of one 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 nor shall any such delay or omission be construed to be a waiver of or
acquiescence to any default. The exercise of any such right or remedy by the Franchising
Authority shall not release the Company from its obligations or any liability under this
Agreement, except as expressly provided for in this Agreement or as necessary to avoid
duplicative recovery from or payments by the Company.
9.2 Events of Default
9.2.1 Grounds. The Company agrees that an Event of Default shall
include, but shall not be limited to, any of the following acts or failures to act by the Company
or any Affiliated Person:
9.2.1(1) except to the extent set forth in Section 9.2.1(ii), any substantial
failure to comply with any material provision of this Agreement which is not cured within
thirty (30) days after notice pursuant to this Section;
9.2.1 (ii) Failure of the Company to complete the upgrade of the System
within 90 days after notice from the Franchising Authority that the Company has not
completed the upgrade by the date set forth in Section 2.1.6;
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9.2.1(iii) The condemnation by a public authority other than the Franchising 297
Authority, or sale or dedication under threat or in lieu of condemnation, of all or a substantial
part of the System, the effect of which would materially frustrate or impede the ability of the
Company to carry out its obligations, and the purposes of this Agreement;
9.2.1(iv) In the event that: (A) the Company shall suspend or discontinue
its business, shall make an assignment for the benefit of creditors, shall fail to pay its debts
generally as they become due, shall become insolvent (howsoever such insolvency may be
evidenced), shall be adjudicated insolvent, shall petition or apply to any tribunal for, or
consent to, the appointment of, or taking possession by, a receiver, custodian, liquidator,
trustee or similar official pursuant to federal, state or local laws, ordinances or regulations of
or for it or any substantial part of its property or assets, including all or any part of the
System; or (B) a writ or warrant of attachment, execution, distraint, levy, possession or any
similar process shall be issued by any tribunal against all or any material part of the
Company's property or assets which is not discharged by the Company within 90 days; or (C)
any creditor of the Company petitions or applies to any tribunal for the appointment of, or
taking possession by, a trustee, receiver, custodian, liquidator or similar official for the
Company or of any substantial parts of the assets of the Company under the law of any
jurisdiction, whether now or hereinafter in effect, and an order, judgment or decree is entered
appointing any such trustee, receiver, custodian, liquidator or similar official, or approving the
petition in any such proceedings which is not rescinded within 120 days; or (D) any order,
judgment or decree is entered in any proceedings against the Company decreeing the
voluntary or involuntary dissolution of the Company;
9.2.1(v) If there shall occur any denial, forfeiture or revocation by any
federal, state or local governmental authority of any authorization required by law or the
expiration without renewal of any such authorization, and such events either individually or in
the aggregate, materially jeopardize or could reasonably be expected to materially jeopardize
the Company's ability to continue to operate the System; or
9.2.1(vi) A persistent failure by the Company or its Affiliated Persons, as
applicable, to comply with any of the provisions, terms or conditions of this Agreement or
with any lawful rules, regulations, orders or other directives of the Franchising Authority after
having received repeated notice of a failure to comply.
9.2.2 Franchising Authority Action Upon Occurrence of Event of Default.
Upon the occurrence of an Event of Default, then, in accordance with the procedures provided
in Section 9.2.3, the Franchising Authority may, at any time during the term of this
Agreement, take any or all of the following actions:
9.2.2(i) Require the Company to take such actions as the Franchising
Authority deems appropriate in the circumstances to ensure compliance with this Agreement;
9.2.2(ii) Seek money damages from the Company as compensation for such
Event of Default, which money damages may come from, among other sources, the Security
Fund established pursuant to Section 9.7;
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9.2.2(iii) Seek to obtain the appointment of a court- appointed trustee or
similar Person to take any actions which the Franchising Authority deems appropriate for an
Event of Default under Section 9.2.1(iv); or
9.2.2(iv) Revoke the Franchise by termination of this Agreement pursuant
to this Section 9 and applicable law.
9.2.3 Breach Procedures. The Franchising Authority shall exercise the rights
provided in Section 9.2.2 in accordance•with applicable law and the procedures set forth
below:
9.2.3(1) The Responsible Franchising Official shall notify the Company, in
writing, of an alleged Event of Default, which notice shall specify the alleged Event of
Default with reasonable particularity. The Company shall, within thirty (30) days after receipt
of such notice or such longer period of time as set forth in this Agreement or as the
Responsible Franchising Official may specify in such notice, either cure such alleged Event of
Default or, in a written response to the Responsible Franchising Official, either present facts
and arguments in refutation or excuse of such alleged Event of Default or state that such
alleged Event of Default will be cured and set forth the method and time schedule for
accomplishing such cure.
9.2.3(ii) The Responsible Franchising Official shall determine (A) whether
an Event of Default has occurred; (B) whether such Event of Default is excusable; (C)
whether such Event of Default has been cured; and (D) whether the Company's plan to, and
schedule for, cure is acceptable.
9.2.3(iii) If the Responsible Franchising Official determines that an Event
of Default has occurred and that such Event of Default is not excusable and has not been or
will not be cured by the Company in a manner and in accordance with a schedule reasonably
satisfactory to the Responsible Franchising Official, then the Responsible Franchising Official
shall prepare a written report which may recommend the action to be taken by the Board of
Directors. The Responsible Franchising Official shall provide notice and a copy of such
report to the Company on or prior to the date it is delivered to the Board of Directors. The
Board of Directors shall: (a) schedule a public hearing on such report; (b) provide the
Company no less than five (5) business days advance notice of such public hearing; and (c)
provide the Company an opportunity to speak at the public hearing. In the event that the
Board of Directors determines that such Event of Default has not occurred, or that such Event
of Default either has been or will be cured in a manner and in accordance with a schedule
reasonably satisfactory to the Board of Directors, or that such Event of Default is excusable,
such determination shall conclude the investigation.
9.2.3(iv) If the Board of Directors determines that such Event of Default has
occurred, and that such Event of Default has not been and will not be cured in a manner and
in accordance with a schedule reasonably satisfactory to the Board of Directors, and that such
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Event of Default is not excusable, then the Franchising Authority may take any of the actions
provided in Section 9.2.2.
9.3 Termination. In the event of any termination of this Agreement, the
Franchising Authority may: (i) direct the Company to operate the System on behalf of the
Franchising Authority pursuant to the provisions of this Agreement, for a period of up to six
months, during which time the Company shall be entitled to the revenues from the System;
(ii) if the Company does not agree to operate the System for the period set forth in this
Section 9.3, authorize any other Person to operate the System on behalf of the Franchising
Authority or otherwise upon such terms and conditions as are equitable to the Franchising
Authority and the Company; or (iii) order the Company to cease all construction and
operational activities in a prompt and workmanlike manner.
9.4 Franchising Authority's Right
To Order Removal or To Acquire
or Effect a Transfer of the System
299
9.4.1 Removal. In addition to its rights under Section 9.3, upon any
termination, the Board of Directors may, in its sole discretion in the event the System is not
sold pursuant to Section 9.4.2, but shall not be obligated to, direct the Company to remove, at
the Company's sole cost and expense, all or any portion of the System from all Streets and
other public property within the Franchise Area, subject to the following:
(i) this provision shall not apply to buried cable which the Franchising
Authority determines should not be removed;
(ii) in removing the System, or part thereof, the Company shall refill and
compact, at its own expense, any excavation that shall be made by it and shall leave
all Streets and other property in as good condition as that prevailing prior to the
Company's removal of the System and without altering or disturbing in any way
any electric, telephone or other utility cables, wires or attachments (except to the
extent such affecting, altering or disturbing is permitted by an agreement between
the Company and the applicable utility);
(iii) the Franchising Authority shall have the right to inspect and approve
the condition of such Streets and public property after removal;
(iv) the liability insurance, indemnity and security fund provisions of this
Agreement shall remain in full force and effect during the entire period of removal
and associated repair of all Streets and other public property;
(v) removal shall be commenced within thirty (30) days of the removal
order by the Franchising Authority and shall be completed within eighteen
(18) months thereafter including all associated repair of all Streets and other public
property;
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(vi) if, in the reasonable judgment of the Franchising Authority, the
Company fails to substantially complete such removal, including all associated
repair of Streets and other public property, within eighteen (18) months thereafter,
then, to the extent not inconsistent with applicable law: (A) the Franchising
Authority shall have the right to declare that all rights, title and interest to the
System in the Streets and public property belong to the Franchising Authority with
all rights of ownership, including, but not limited to, the right to operate the System
or to effect a transfer of such portions of the System to another Person for
operation; or (B) the Franchising Authority shall have the right to authorize
removal of the System in the Streets and public property, at the Company's cost, by
another Person; and (C) to the extent not inconsistent with applicable law, any
portion of the System in the Streets and public property not designated by the
Franchising Authority for removal shall belong to and become the property of the
Franchising Authority withouf compensation to the Company and the Company
shall execute and deliver such documents, as the Franchising Authority shall.
request, in form and substance acceptable to the Franchising Authority, to evidence
such ownership by the Franchising Authority.
Notwithstanding the foregoing, the Company may dispose of any portion of the System not
designated by the Franchising Authority for removal during such eighteen (18) month period,
provided, however, that if the Company fails to complete the removal of the portion(s) of the
System designated for removal by the Franchising Authority within such period, then all such
portion(s) of the System not disposed of and all amounts collected for any portion(s) of the
System disposed of by the Company during such period shall belong to the Franchising
Authority, with no price due to the Company.
9.4.2 Acquisition or Transfer. Upon any termination and as an alternative
to ordering removal of the System within the Franchise Area, the Franchising Authority shall
have the right to, and may, in its sole discretion and in accordance with Section 627 of the
Cable Act (47 U.S.C. § 547) and applicable law, acquire or effect a transfer to a third party
acceptable to the Franchising Authority of all or any part of the System in the Franchise Area.
9.4.3 Price. The price to be paid by the Franchising Authority to the
Company upon an acquisition or transfer by the Franchising Authority to the Franchising
Authority shall depend upon the nature of the termination. If pursuant to applicable law the
Franchise expires without being renewed or if the renewal of the Franchise is denied, then the
price shall be fair market value, determined on the basis of the System valued as a going
concern but with no value allocated to the Franchise itself (i.e., the fair market value of the
System valued as a going concern, with a deduction for the value allocable to the Franchise
itself). If the termination is due to the revocation of the Franchise for cause, including, but
not limited to, revocation due to an Event of Default by the Company as provided in
Section 9.2 or otherwise, then the price shall be an equitable price.
9.5 Company's Obligations. In the event of any such acquisition, transfer or
Abandonment pursuant to Section 9.4, the Company shall:
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9.5. 1 cooperate with the Franchising Authority or any third party in 301
maintaining the distribution of Services over the System in the Franchise Area in order to
maintain continuity of Service to Subscribers;
9.5.2 promptly execute all appropriate documents to transfer to the
Franchising Authority or third party, title to the System in the Franchise Area, all components
thereof necessary to operate and maintain the System in the Franchise Area pursuant to the
terms and conditions of this Agreement, as well as all contracts, leases, licenses, permits,
rights -of -way, and any other rights, contracts or understandings necessary to maintain the
System and the distribution of Services over the System in the Franchise Area; provided that
such transfers shall be made subject to the rights, under Article 9 of the Uniform Commercial
Code as in effect in the State of Arkansas and, to the extent that any collateral consists of real
property, under the State of Arkansas property law, of banking or lending institutions which
are secured creditors or mortgagees of the Company at the time of such transfers;
9.5.3 promptly supply the Franchising Authority with all necessary records
to reflect the Franchising Authority's or third party's ownership of the System in the City of
Little Rock and to operate and maintain the System in the Franchise Area, including, without
limitation, all Subscriber records and plant and equipment layout documents; and
9.5.4 waive relocation fees in the event of termination, purchase, or
condemnation of the System or this Agreement.
9.6 Other Provisions. The Franchising Authority and the Company shall negotiate
in good faith the terms and conditions of any such acquisition or transfer, except that, in the
event of any acquisition of the System by the Franchising Authority, the Franchising
Authority: (i) shall not be required to assume any of the obligations of any collective
bargaining agreements or any other employment contracts held by the Company or any other
obligations of the Company or its officers, employees, or agents, including, without
limitation, any pension or other retirement, or any insurance obligations; (ii) shall not be
required to assume any liabilities; and (iii) with respect to creditors or mortgagees, shall have
no obligation following said transfers to pay, pledge, or otherwise commit in any way any
general or any other revenues or funds of the Franchising Authority, other than the net
operating revenues received by the Franchising Authority from its operation of the System, in
order to repay any amounts outstanding on any debts secured by the System which remain
owing to such creditors or mortgagees; and provided, finally, that the total of such payments
by the Franchising Authority to such creditors and mortgagees, from the net operating
revenues received by the Franchising Authority from its operation of the System, shall in no
event exceed the lesser of: (a) the fair market value of the System on the date of the transfer
of title to the Franchising Authority or (b) the outstanding debt owed to such creditors and
mortgagees on said date. Nothing in this Sections 9.5 or 9.6 shall be construed to limit the
rights of any such banking or lending institutions to exercise its or their rights as secured
creditors or mortgagees at any time prior to the payment of all amounts due pursuant to the
applicable debt instruments.
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® 302
9.5. 1 cooperate with the Franchising Authority or any third party in
maintaining the distribution of Services over the System in the Franchise Area in order to
maintain continuity of Service to Subscribers;
9.5.2 promptly execute all appropriate documents to transfer to the
Franchising Authority or third party, title to the System in the Franchise Area, all components
thereof necessary to operate and maintain the System in the Franchise Area pursuant to the
terms and conditions of this Agreement, as well as all contracts, leases, licenses, permits,
rights -of -way, and any other rights, contracts or understandings necessary to maintain the
System and the distribution of Services over the System in the Franchise Area; provided that
such transfers shall be made subject to the rights, under Article 9 of the Uniform Commercial
Code as in effect in the State of Arkansas and, to the extent that any collateral consists of real
property, under the State of Arkansas property law, of banking or lending institutions which
are secured creditors or mortgagees of the Company at the time of such transfers;
9.5.3 promptly supply the Franchising Authority with all necessary records
to reflect the Franchising Authority's or third party's ownership of the System in the City of
Little Rock and to operate and maintain the System in the Franchise Area, including, without
limitation, all Subscriber records and plant and equipment layout documents; and
9.5.4 waive relocation fees in the event of termination, purchase, or
condemnation of the System or this Agreement.
9.6 Other Provisions. The Franchising Authority and the Company shall negotiate
in good faith the terms and conditions of any such acquisition or transfer, except that, in the
event of any acquisition of the System by the Franchising Authority, the Franchising
Authority: (i) shall not be required to assume any of the obligations of any collective
bargaining agreements or any other employment contracts held by the Company or any other
obligations of the Company or its officers, employees, or agents, including, without
limitation, any pension or other retirement, or any insurance obligations; (ii) shall not be
required to assume any liabilities; and (iii) with respect to creditors or mortgagees, shall have
no obligation following said transfers to pay, pledge, or otherwise commit in any way any
general or any other revenues or funds of the Franchising Authority, other than the net
operating revenues received by the Franchising Authority from its operation of the System, in
order to repay any amounts outstanding on any debts secured by the System which remain
owing to such creditors or mortgagees; and provided, finally, that the total of such payments
by the Franchising Authority to such creditors and mortgagees, from the net operating
revenues received by the Franchising Authority from its operation of the System, shall in no
event exceed the lesser of (a) the fair market value of the System on the date of the transfer
of title to the Franchising Authority or (b) the outstanding debt owed to such creditors and
mortgagees on said date. Nothing in this Sections 9.5 or 9.6 shall be construed to limit the
rights of any such banking or lending institutions to exercise its or their rights as secured
creditors or mortgagees at any time prior to the payment of all amounts due pursuant to the
applicable debt instruments.
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9.7 Security Fund.
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303
9.7.1 Form and Amount. At or prior to the execution of this Agreement,
and as a condition precedent thereto, the Company has deposited with the Franchising
Authority the amount of Five Hundred Thousand Dollars ($500,000.00), Fifty Thousand
Dollars ($50,000.00) of which shall be provided in cash, with the balance in the form of an
irrevocable, unconditional letter of credit or other instrument satisfactory to the Franchising
Authority, which letter of credit or other instrument shall in no event require the consent of
the Company prior to the collection by the Franchising Authority of any amounts covered by
such letter of credit or other instrument. The Franchising Authority shall deposit the cash in
an interest bearing account. The amount of such cash, any interest earned on such cash in the
interest bearing account, and such letter of credit or other instrument shall constitute the
Company's Security Fund. Upon the completion of the upgrade set forth in Section 2.1.6, the
Company shall have the right to reduce the amount of the Security Fund to Three Hundred
Thousand Dollars ($300,000), provided, however; that such reduction is accomplished by a
reduction in the amount set forth in the letter of credit or other instrument satisfactory to the
Franchising Authority. The amount of cash provided to the Franchising Authority, including
any interest earned on such amount, shall not be affected by such reduction of the Security
Fund.
9.7.2 Purposes. The Security Fund shall serve as security for:
9.7.2(i) the faithful performance by the Company of all terms, conditions
and obligations of this Agreement and to cure any performance failure which can
be cured through payment out of the Security Fund;
9.7.2(ii) any expenditure, damage, or loss incurred by the Franchising
Authority occasioned by the Company's failure to comply with all rules,
regulations, orders, permits and other directives of the Franchising Authority issued
pursuant to this Agreement;
9.7.2(iii) failure to make any payment of compensation set forth in this
Agreement;
9.7.2(iv) the payment of premiums for the liability insurance required
pursuant to this Agreement not made by the Company when due;
9.7.2(v) any removal of the System ordered by the Franchising Authority
and not performed by the Company;
9.7.2(vi) the payment to the Franchising Authority of any amounts for
which the Company is liable pursuant to Section 11.9.5 which are not paid by the
Company's insurance;
9.7.2(vii) the payment of any other amounts which become due to the
Franchising Authority pursuant to this Agreement or law;
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9.7.2(viii) the timely renewal of the letter of credit that constitutes the
Security Fund; and
9.7.2(ix) any costs, losses or damages incurred by the Franchising Authority
as a result of a default of the Company's obligations under this Agreement.
93.3 Replenishment. Throughout the term of this Agreement, or for as
long as the Company operates the System, whichever period is longer, and for at least ninety
(90) days thereafter, the Company shall maintain the Security Fund in the amount specified in
this Section. Within fifteen (15) business days after receipt of notice from the Franchising
Authority that any amount has been withdrawn from the Security Fund, as provided in Section
9.7.4 below, the Company shall restore the Security Fund to the amount specified in Section
9.7.1 above, provided that said restoration obligation shall be suspended during the period of
any judicial challenge by the Company to the propriety of said withdrawal from the Security
Fund. If a court determines that said withdrawal by the Franchising Authority was improper,
the Franchising Authority shall restore to the Security Fund such amount as established by the
Court.
9.7.4 Withdrawals. If the Company fails: (i) to make any payment
required by this Agreement within the time fixed herein; (ii) to pay to the Franchising
Authority, within ten (10) business days after receipt of notice, any liabilities relating to the
System that are due and unpaid; (iii) to pay to the Franchising Authority, within ten
(10) business days after receipt of notice from the Board of Directors, any damages, claims,
costs or expenses which the Franchising Authority has been compelled to pay or incur by
reason of any act or default of the Company; (iv) to comply, within ten (10) business days
after receipt of notice from the Board of Directors, with any provision of this Agreement
which the Board of Directors determines can be remedied by an expenditure of an amount in
the Security Fund; or (v) to cure within ten (10) business days after receipt of notice from the
Board of Directors any of said failures or present written comments contesting the validity of
the withdrawal, then the Franchising Authority may withdraw the amount thereof from the
Security Fund and pay it to the Franchising Authority. The withdrawal of amounts from the
Security Fund shall constitute a credit against the amount of the applicable liability of the
Company to the Franchising Authority but only to the extent of said withdrawal.
9.7.5 Return of Security Fund. Within ninety (90) days after the
termination of this Agreement due to the expiration of the term of the Franchise, the Company
shall be entitled to the return of the Security Fund, or portion thereof as remains on deposit
with the Franchising Authority at said termination, provided that all offsets necessary to
compensate the Franchising Authority for any uncured failure to comply with any provision
of this Agreement or Event of Default have been taken by the Franchising Authority.
Notwithstanding the foregoing sentence, if the Company continues to operate the System
following the termination of this Agreement, the Company shall not be entitled to a return of
the Security Fund until ninety (90) days after the end of such continued operation. In the
event of a termination of this Agreement for cause due to an Event of Default by the
Company or otherwise, such Security Fund shall become the property of the Franchising
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Authority to the extent necessary to satisfy the purposes of the Security Fund as set forth in 305
Section 9.7.2 above, including the covering of any costs, loss or damage incurred by the
Franchising Authority as a result of such termination or Event of Default, provided that any
amounts in excess of such costs, loss or damage shall be refunded to the Company.
SECTION 10
SUBSEQUENT ACTION
10.1 Current Enforceability of Agreement; No Opposition. By execution of this
Agreement, the Company accepts the validity of the terms and conditions of this Agreement
in their entirety and hereby waives and relinquishes, to the maximum extent permitted by
applicable law, any and all rights it has at the time of the date of the execution of this
Agreement or may have had at any time prior to the date of execution of this Agreement, in
law or in equity, fo assert in any manner at any time or in any forum that this Agreement, the
Franchise, or the processes and procedures pursuant to which this Agreement was entered into
and the Franchise was granted are not consistent with applicable law as such law existed on
the date of the execution of this Agreement.
10.2 Company to Comply to Maximum Extent in Event of Subsequent Invalidity.
In addition to complying with Section 10.3, in the event that, after the Execution Date, any
court, agency, commission, legislative body, or other authority of competent jurisdiction:
(i) declares this Agreement invalid, in whole or in part, or (ii) requires the Company either to:
(A) perform any act which is inconsistent with any provision of this Agreement or (B) cease
performing any act required by any provision of this Agreement, then the Company shall
nevertheless comply with the terms of this Agreement to the maximum extent consistent with
law. Nothing herein is intended to limit any right the Company may have to claim that any
action by the Franchising Authority to enforce this Agreement is inconsistent with the terms
of this Agreement.
10.3 Procedures in the Event of Subsequent Invalidity. In the event that, after the
Execution Date, any court, agency, commission, legislative body, or other authority of
competent jurisdiction: (i) declares this Agreement invalid, in whole or in part, or (ii) requires
the Company either to: (A) perform any act which is inconsistent with any provision of this
Agreement or (B) cease performing any act required by any provision of this Agreement,
including any obligations with respect to compensation or other financial obligations pursuant
to this Agreement, then the Company shall promptly notify the Franchising Authority of such
fact. Upon receipt of such notification, the Franchising Authority, acting in good faith, shall
determine whether such declaration or requirement has a material and adverse effect on this
Agreement. If the Franchising Authority acting in good faith, determines that such
declaration or requirement does not have a material and adverse effect on this Agreement,
then the Company shall comply with such declaration or requirement. If the Franchising
Authority, acting in good faith, determines that such declaration or requirement does have
such an effect or that compliance with such declaration or requirement by the Company
would materially frustrate or impede the ability of the Company to carry out its obligations
pursuant to, and the purposes of, this Agreement, then the Company and the Franchising
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306
Authority shall enter into good faith negotiations to amend this Agreement, so as to enable the
Company to perform obligations and provide Services for the benefit of the Franchising
Authority and others equivalent to those immediately prior to such declaration or requirement,
to the maximum extent consistent with said declaration or requirement. In connection with
such negotiations, the Franchising Authority and the Company shall consider whether the
circumstances existing at that time are such that the Company should not or cannot perform
obligations and provide Services for the benefit of the Franchising Authority and others
equivalent to those immediately prior to such declaration or requirement as a direct result of
such declaration or requirement.
10.4 Procedures If Franchising Authority's Abilities Are Enhanced. To the extent
that any statute, rule, regulation, ordinance or any other law is enacted, adopted, repealed,
amended, modified, changed or interpreted in any way during the term of this Agreement so
as to enhance the Franchising Authority's ability to meet the cable - related needs and interests
of the community, then, upon the Franchising Authority's request, the Company and the
Franchising Authority shall enter into good faith negotiations to amend this Agreement to
reflect such enactment, adoption, repeal, amendment, modification, change or interpretation
and the Company agrees to comply with any such modifications arising out of negotiations.
SECTION 11
MISCELLANEOUS
11.1 Police Powers. The Franchising Authority expressly reserves the right to
exercise the full scope of its municipal powers, including both its police power and
contracting authority, to promote the public interest and to protect the health, safety, and
welfare of the citizens of the City of Little Rock.
11.2 Controlling Authorities. This Agreement is made with the understanding that
its provisions are controlled by the Cable Act, other federal laws, state laws, and all locals
laws, ordinances, and regulations. Where this Agreement conflicts with a provision of
applicable federal, state or local law, ordinance, or regulation, this Agreement shall prevail to
the extent permitted by law.
11.3 Appendices. The Appendices to this Agreement, attached hereto, and all
portions thereof and exhibits thereto, are, except as otherwise specified in such Appendices
or unless otherwise set forth herein, incorporated herein by reference and expressly made a
part of this Agreement.
11.4 Action Taken by Franchising Authority. Any action to be taken by the
Franchising Authority pursuant to this Agreement shall be taken in accordance with
applicable laws, rules and procedures, as said laws, rules and procedures may be amended or
modified throughout the term of this Agreement.
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1 I.5 Entire Agreement. This Agreement, including all Appendices, embodies theol
entire understanding and agreement of the Franchising Authority and the Company with
respect to the subject matter hereof and merges and supersedes all prior representations,
agreements, and understandings, whether oral or written, between the Franchising Authority
and the Company with respect to the subject matter hereof, including, without limitation, all
prior drafts of this Agreement and any Appendix to this Agreement and any and all written or
oral statements or representations by any official, employee, agent, attorney, consultant or
independent contractor of the Franchising Authority or the Company.
11.6 Delays and Failures Beyond Control of Company. Notwithstanding any other
provision of this Agreement, the Company shall not be liable for delay in performance of, or
failure to perform, in whole or in part, its obligations pursuant to this Agreement due to strike,
war or act of war (whether an actual declaration of war is made or not), insurrection, riot, act
of public enemy, accident, fire, flood or other act of God, technical failure, loss of utility
service or facilities, any act, order or decree of any governmental agency or judicial body, any
moratoria on construction projects imposed by the Franchising Authority, sabotage or other
events, where the Company has exercised all due care in the prevention thereof, to the extent
that such causes or other events are beyond the control of the Company and such causes or
events are without the fault or negligence of the Company. In the event that any such delay in
performance or failure to perform affects only part of the Company's capacity to perform, the
Company shall perform to the maximum extent it is able to do so and shall take all steps
within its power to correct such cause(s). The Company agrees that in correcting such
cause(s), it shall take all reasonable steps to do so in as expeditious a manner as possible. The
Company shall notify the Franchising Authority in writing of the occurrence of an event
covered by this Section 11.6 within five (5) business days of the date upon which the
Company learns of its occurrence, but failure by the Company to provide such notice shall not
negate an otherwise excusable delay under this Section 11.6.
11.7 Notices. All notices, statements, demands, requests, consents, approvals,
authorizations, offers, agreements, appointments, designations, or other direction or
communication hereunder by any party to another shall be in writing and shall be sufficiently
given and served upon the other party, immediately if delivered personally or by telex or .
telecopy (provided with respect to telex and telecopy that such transmissions are received on a
business day during normal business hours), the first business day after dispatch if sent by
express mail, and the second business day after dispatch if sent by first class mail, registered
or certified, return receipt requested, postage prepaid, and addressed as follows:
THE FRANCHISING AUTHORITY:
City Manager
City of Little Rock
City Hall
500 West Markham
Little Rock, Arkansas 72201 -1400
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City Attorney
COMPANY:
City of Little Rock
City Hall
500 West Markham
Little Rock, Arkansas 72201 -1400
0
General Manager
Comcast Cablevision of Little Rock, Inc.
801 Scott Street
Little Rock, Arkansas 72201
General Counsel
Comcast Corporation
1500 Market Street
Philadelphia, PA 19102 -2148
11.8 Additional Representations and Warranties. In addition to the
representations, warranties, and covenants of the Company to the Franchising Authority set
forth elsewhere herein, the Company represents and warrants to the Franchising Authority and
covenants and agrees (which representations, warranties, covenants and agreements shall not
be affected or waived by any inspection or examination made by or on behalf of the
Franchising Authority) that, as of the Execution Date:
11.8.1 Organization Standing Power Authorization and Enforceability.
The Company is a corporation duly organized, validly existing and in good standing under the
laws of the State of Arkansas and is duly authorized to do business in the State of Arkansas
and in the Franchise Area. The Company has all requisite power and authority to own or
lease its properties and assets, to conduct its businesses as currently conducted and to execute,
deliver and perform this Agreement and all other agreements entered into or delivered in
connection with or as contemplated hereby, and is qualified to do business and is in good.
standing as an Arkansas corporation. The execution, delivery and performance of this
Agreement and all other agreements entered into in connection with the transactions
contemplated hereby have been duly, legally and validly authorized by all necessary action on
the part of the Company, and this Agreement and all other agreements entered into in
connection with the transactions contemplated hereby have been duly executed and delivered
by the Company and constitute (or upon execution and delivery will constitute) the valid and
binding obligations of the Company, and are enforceable (or upon execution and delivery will
be enforceable) in accordance with their respective terms.
11.8.2 No Coercion or Commercial Impracticability: Full Disclosure. The
Company enters into this Agreement willingly and without coercion, undue influence or
duress. The Company has reviewed each and every obligation imposed upon it pursuant to
this Agreement or otherwise in connection with the Franchise, and hereby certifies that none
of the obligations imposed upon it by this Agreement or otherwise in connection with the
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Franchise is in the Company's informed opinion Commercially Impracticable. Moreover, the
Company, after thoroughly considering all foreseeable economic and business risks, currently
believes that the provision of all Services, facilities and equipment as delineated in this
Agreement are Economically and Technically Feasible and Viable. In addition, the Company
has not entered into this Agreement with the intent to act contrary to the provisions herein.
11.8.3 Litigation; Investigations. Except as disclosed in writing to the
Franchising Authority prior to the execution of this Agreement, there is no civil, criminal,
administrative, arbitration or other proceeding, investigation or claim (including, without
limitation, proceedings with respect to unfair labor practice matters or labor organization
activity matters), pending or threatened against the Company or any Affiliated Person, at law
or in equity, or before any foreign, federal, state, municipal or other governmental
department, commission, board, bureau, agency or instrumentality, including, without
limitation, matters involving the granting of a temporary or permanent injunction against the
Company or any Affiliated Person that, if granted, would have a material adverse effect on the
business, operation, properties, assets or financial condition of the Company, or the System,
or which questions the validity or prospective validity of this Agreement, or of any essential
element upon which this Agreement depends, or of any action to be taken by the Company or
any Affiliated Person.
11. 8.4 Licenses and Permits. The Company has duly secured all necessary
and material permits and licenses in connection with the design, construction, operation,
maintenance, upgrade or repair of the System, or any part thereof, from, and has filed all
required and material registrations, applications, reports and other documents with, the FCC
and if applicable, public utilities commissions, telephone companies and other entities
exercising jurisdiction over the provision of cable services or the construction of delivery
systems therefor. Further, no event has occurred which could (i) result in the revocation or
termination of any material license or authorization, or (ii) materially and adversely affect any
rights of the Company. No event has occurred which permits, or after notice or lapse of time
or both would permit, revocation or termination of any such license or which materially and
adversely affects or, so far as the Company can now foresee, will materially and adversely
affect the System or any part thereof. The Company has obtained all leases, easements and
equipment rental or other agreements necessary for the maintenance and operation of the
System as now conducted.
11.9 Additional Covenants. Until the termination of this Agreement and the
satisfaction in full by the Company of its obligations under this Agreement, in consideration
of the Franchise, the Company agrees that it will comply with the following affirmative
covenants, unless the Franchising Authority otherwise consents in writing:
11.9.1 Compliance with Laws: Licenses and Permits. The Company shall
comply with: (i) all applicable laws, rules, regulations, orders, writs, decrees and judgments
(including, but not limited to, those of the FCC) and any other federal, state agency or
authority of competent jurisdiction; and (ii) all local laws and all rules, regulations, orders, or
other directives of the Franchising Authority issued pursuant to this Agreement. The
Company shall have the sole responsibility for obtaining all permits, licenses and other forms
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of approval or authorization necessary to construct, operate, maintain, upgrade, replace or
repair the System, or any part thereof, and shall submit requests for all necessary operation
authorizations with the FCC within sixty (60) days after the Execution Date.
11.9.2 Company Shall Not Discriminate In Employment. The Company
shall comply in all respects with all applicable federal, state and local employment
discrimination laws and requirements during the term of this Agreement, including, but not
limited to, the equal employment opportunity provisions under Section 634 of the Cable Act
(47 U.S.C. § 554) and federal regulations promulgated pursuant to Section 634. The
Company shall not: (i) refuse to hire, train, or employ; (ii) bar or discharge from
employment; or (iii) discriminate against any individual in compensation, hours of
employment, or any other term, condition, or privilege of employment, including, without
limitation, promotion, upgrading, demotion, downgrading, transfer, layoff, and termination,
on the basis of race, creed, color, national origin, sex, age, handicap, marital status or sexual
orientation.
11.93 Financial Condition. The Company shall throughout the term of this
Agreement and thereafter, for as long as the Company is required to construct, operate,
maintain and upgrade the System pursuant to this Agreement, maintain adequate financial
resources to perform all obligations pursuant to this Agreement.
11.9.4 Condition of System. All of the material properties, assets and
equipment of the System are, and all such items added in connection with any upgrade will
be, maintained in good repair and proper working order and condition throughout the term of
this Agreement.
11.9.5 Insurance
11.9.5(1) Specifications. Throughout the term of this Agreement, the
Company shall, at its own cost and expense, maintain a liability insurance policy or policies,
in a form acceptable to the Franchising Authority, together with evidence acceptable to the
Franchising Authority demonstrating that the premiums for said policy or policies have been
paid. Such policy or policies shall be issued by companies duly licensed to do business in the
State of Arkansas and acceptable to the Franchising Authority. Such companies must carry a
rating by Best of not less than "A ". Such policy or policies shall insure (i) the Company and
(ii) the Franchising Authority and its officers, boards, commissions, councils, elected
officials, agents and employees (through appropriate endorsements if necessary) against each
and every form of liability of the Company referred to in this Agreement in the minimum
combined amount of Three Million Dollars ($3,000,000) for bodily injury and property
damage, and the insurance specified in Appendix G. The foregoing minimum limitation shall
not prohibit the Company from obtaining a liability insurance policy or policies in excess of
such limitations, provided that the Franchising Authority, its officers, boards, commissions,
councils, elected officials, agents and employees shall be named as additional insureds to the
full extent of any limitation contained in any such policy or policies obtained by the
Company.
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11.9.5(ii) Maintenance. The liability insurance policies required by this
Section 11.9.5 shall be maintained by the Company throughout the term of this Agreement
and such other period of time during which the Company operates or is engaged in the
removal of the System. Each such liability insurance policy shall contain the following
endorsement: "It is hereby understood and agreed that this policy may not be canceled nor the
intention not to renew be stated until ninety (90) days after receipt by the Franchising
Authority, by registered mail, of a written notice of such intent to cancel or not to renew."
Within sixty (60) days after receipt by the Franchising Authority of said notice, and in no
event later than thirty (30) days prior to said cancellation, the Company shall obtain and
furnish to the Franchising Authority replacement insurance policies in a form reasonably
acceptable to the Franchising Authority.
11.9.5(iii) Increased Insurance Coverage. The Franchising Authority may,
after consulting with the Company, alter the minimum limitation of the liability insurance
policy or policies required in this Section 11.9.5 to reflect increases in the U.S. Consumer
Price Index after the Effective Date.
11.9.5(iv) Liability Not Limited. The legal liability of the Company and
any Affiliated Person to the Franchising Authority and any Person for any of the matters
which are the subject of the liability insurance policies required by this Section 11.9.5,
including, without limitation, the Company's indemnification obligations set forth in this
Agreement, shall not be limited by such insurance policies nor by the recovery of any
amounts thereunder, except to the extent necessary to avoid duplicative recovery from or
payment by the Company.
11.10 Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted transferees and
assigns. All of the provisions of this Agreement apply to the Company, its successors, and
assigns.
11.11 No Waiver; Cumulative Remedies. No failure on the part of the Franchising
Authority to exercise, and no delay in exercising, any right hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right preclude any other
right, all subject to the conditions and limitations established in this Agreement. The rights
and remedies provided herein are cumulative and not exclusive of any remedies provided by
law, and nothing contained in this Agreement shall impair any of the rights of the Franchising
Authority under applicable law, subject in each case to the terms and conditions of this
Agreement and provided that nothing herein shall be interpreted to permit the Franchising
Authority to exercise its rights and remedies in a manner that permits duplicative recovery
from or payments by the Company. A waiver of any right or remedy by the Franchising
Authority at any one time shall not affect the exercise of such right or remedy or any other
right or other remedy by the Franchising Authority at any other time. In order for any waiver
of the Franchising Authority to be effective, it must be in writing. The failure of the
Franchising Authority to take any action in the event of an Event of Default shall not be
deemed or construed to constitute a waiver of or otherwise affect the right of the Franchising
< -33->
Authority to take any action permitted by this Agreement at any other time in the event that
such Event of Default has not been cured, or with respect to any other Event of Default.
11.12 Severability. If any section, subsection, sentence, clause, phrase, or other
portion of this Agreement is, for any reason, declared invalid, in whole or in part, by any
court, agency, commission, legislative body, or other authority of competent jurisdiction, such
portion shall be deemed a separate, distinct, and independent portion. Except as provided in
Section 10, such declaration shall not affect the validity of the remaining portions hereof,
which other portions shall continue in full force and effect.
I 1.13 Headings; Other Terms. The headings contained in this Agreement are to
facilitate reference only, do not form a part of this Agreement, and shall not in any way affect
the construction or interpretation hereof. Terms such as "hereby," "herein," "hereof,"
"hereinafter," "hereunder," and "hereto" refer to this Agreement as a whole and not to the
particular sentence or paragraph where they appear, unless the context otherwise requires.
The term "may" is permissive; the terms "shall" and "will" are mandatory, not merely
directive. All references to any gender shall be deemed to include all others, as the context
may require. Terms used in the plural include the singular, and vice versa, unless the context
otherwise requires.
11.14 No Agency. , The Company shall conduct the work to be performed pursuant
to this Agreement as an independent contractor and not as an agent of the Franchising
Authority.
11.15 Governing Law. This Agreement shall be deemed to be executed in the City
of Little Rock, State of Arkansas, and shall be governed in all respects, including validity,
interpretation and effect, and construed in accordance with, the laws of the State of Arkansas,
as applicable to contracts entered into and to be performed entirely within that State.
312
11.16 Delegation of Franchising Authority Rights. Except where authority is
expressly granted to the Board of Directors herein, the Franchising Authority reserves the
right to delegate and redelegate, from time to time, any of its rights or obligations under this
Agreement to any body, organization or official. Upon any such delegation or redelegation,
references to "Franchising Authority" in this Agreement shall refer to the body, organization
or official to whom such delegation or redelegation has been made. Any such delegation by
the Franchising Authority shall be effective upon written notice by the Franchising Authority
to the Company of such delegation. Upon receipt of such notice by the Company, the
Company shall be bound by all terms and conditions of the delegation not in conflict with this
Agreement. Any such delegation, revocation or redelegation, no matter how often made, shall
not be deemed an amendment to this Agreement or require any consent of the Company.
11.17 Liability and Indemnitv
11.17.1 Company. The Company shall be responsible for any liability,
including, without limitation, any liability of the Franchising Authority or any Person,
including, without limitation, any officer, employee, agent, attorney, consultant and
< -34 ->
313
independent contractor of the Franchising Authority, arising out of or in connection with the
construction, operation, maintenance, repair, upgrade or removal of the System, any activity
or function associated with the production or distribution of any Service over the System,
except any Service provided by the Franchising Authority, or the distribution of any Service
over the System, except any Service provided by the Franchising Authority. The Company
shall, at its own cost and expense, replace, repair, or restore any damaged property to its prior
condition and shall pay appropriate compensation in the event of any injury to or death of any
individual Person occasioned by any act or failure to act of the Company, any Affiliated
Person, or any officer, employee, agent or subcontractor thereof, in connection with the
construction, operation, maintenance, repair, upgrade or removal of the System.
11.17.2 Franchising Authority. The Franchising Authority, its officers,
employees, agents, attorneys, consultants and independent contractors shall not be liable for
any liability of the Company, any Affiliated Person or any other Person, arising out of or in
connection with the construction, operation, maintenance, repair, upgrade or removal of, or
other action or event with respect to, the System, any activity or function associated with the
production or distribution of any Service over the System, or the distribution of any Service
over the System.
11.17.3 No Liability for Damages. In addition to all rights granted under
Section 635A of the Cable Act (47 U.S.C. § 555a), the Franchising Authority, its officers,
employees, agents, attorneys, consultants and independent contractors shall have no liability
to the Company, any Affiliated Person or any other Person for any special, incidental,
consequential, punitive, or other damages as a result of the exercise of any right of the
Franchising Authority pursuant to this Agreement or applicable law, including, without
limitation, the rights of the Franchising Authority to approve or disapprove the grant,
termination, amendment, renewal, or transfer of the Agreement or the Franchise, or to
otherwise modify all or any part of this Agreement or the Franchise.
11.17.4 Indemnification of the Franchising Authority. The Company and
each Affiliated Person shall: (i) defend, indemnify, and hold harmless the Franchising
Authority, its officers, employees, agents, attorneys, consultants and independent contractors
from and against all liabilities, special, incidental, consequential, punitive, and all other
damage, cost, and expense (including reasonable attorneys' fees) arising out of or in
connection with: (a) the construction, operation, maintenance, repair, upgrade or removal of,
or any other action or event with respect to, the System or any activity or function associated
with the production or distribution of any Service over the System, except any Service
provided by the Franchising Authority; or (b) the distribution of any Service over the System,
except any Service provided by the Franchising Authority; and (ii) cooperate with the
Franchising Authority, by providing such nonfinancial assistance as may be requested by the
Franchising Authority. The Company and each Affiliated Person also shall cooperate with
the Franchising Authority by providing such nonfinancial assistance as may be requested by
the Franchising Authority and any financial assistance on which the Company and
Franchising Authority specifically agree, in connection with any claim arising out of or in
connection with the negotiation or award of this Agreement and Franchise.
< -35 ->
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314
11.18 Claims Under Agreement. The Franchising Authority and the Company
agree that, except to the extent inconsistent with Section 635 of the Cable Act (47 U.S.C.
§ 555), any and all claims asserted by or against the Franchising Authority arising under this
Agreement or related thereto shall be heard and determined either in a court of the United
States located in the City of Little Rock, Arkansas ( "Federal Court") or in a court of the State
of Arkansas located in the City of Little Rock and the County of Pulaski ( "Arkansas State
Court"). To effectuate this Agreement and intent, the Company agrees that if the Franchising
Authority initiates any action against the Company in Federal Court or in Arkansas State
Court, service of process may be made on the Company either in person, wherever such
Company may be found, or by registered mail addressed to the Company at its office in the
Franchise Area as required by this Agreement, or to such other address as the Company may
provide to the Franchising Authority in writing.
11.19 Modification. Except as otherwise provided in this Agreement, any
Appendix to this Agreement, or applicable law, no provision of this Agreement nor any
Appendix to this Agreement, shall be amended or otherwise modified, in whole or in part,
except by an instrument, in writing, duly executed by the Franchising Authority and the
Company, which amendment shall be authorized on behalf of the Franchising Authority
through the adoption of an appropriate resolution or order by the Franchising Authority, as
required by applicable law.
— end of page —
(signatures appear on next page)
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IN WITNESS WHEREOF, the party of the first part, by its Mayor, thereunto duly
authorized by the Board of Directors of said Franchising Authority, has caused the corporate
name of said Franchising Authority to be hereunto signed and the corporate seal of said
Franchising Authority to be hereunto affixed and the Company, the party of the second part,
by its officers thereunto duly authorized, has caused its name to be hereunto signed and its
seal to be hereunto affixed as of the date and year first above written.
CITY OF LITTLE ROCK, ARKANSAS
By _
Name:
Title:
(Seal)
Attest:
COMCAST CABLEVISION OF LITTLE ROCK, INC.
By —
Name:
Title:
(Seal)
Attest:
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316
APPENDIX A
DEFINED TERMS
For purposes of the Agreement to which this Appendix A is appended, the following terms,
phrases, words, and their derivations shall have the meanings set forth herein, unless the
context clearly indicates that another meaning is intended.
"Abandonment" means: (i) the cessation, by act or failure to act of the
Company or any Affiliated Person, of the provision of all, or substantially all, of the
Services then being provided over the System to Subscribers or the Franchising
Authority for one hundred and sixty -eight (168) or more consecutive hours, except if
due to an event beyond the control of the Company as set forth in Section 11.6 of the
Agreement.
"Affiliated Person" means each Person who falls into one or more of the
following categories: (i) each Person having, directly or indirectly, a Controlling
Interest in the Company; (ii) each Person in which the Company has, directly or
indirectly, a Controlling Interest; (iii) each officer, director, general partner, limited
partner holding an interest of fifteen percent (15 1/6) or more, joint venturer or joint
venture partner, of the Company; and (iv) each Person, directly or indirectly,
controlling, controlled by, or under common Control with, the Company; provided that
"Affiliated Person" shall in no event mean the Franchising Authority, the entity, if any,
administering some or all of the access channels, any limited partner holding an interest
of less than fifteen percent (15 %) of the Company, or any creditor of the Company
solely by virtue of its status as a creditor and which is not otherwise an Affiliated
Person by reason of owning a Controlling Interest in, being owned by, or being under
common ownership, common management, or common Control with, the Company.
"Agreement means the Agreement to which this Appendix A is appended,
together with all Appendices attached thereto and all amendments or modifications
thereto which are agreed upon by the Company and the Franchising Authority.
"Basic Service" shall mean: (i) "basic cable service" as defined in the Cable
Act; and (ii) any equipment or installation used in connection with Basic Service.
"Cable Act" means Title VI of the Communications Act of 1934, 47 U.S.C. §
521, et seg., and any amendments thereto from time to time.
"Cable System" means a "cable system" as defined in the Cable Act.
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"Cable Service" or "Service' means "cable service' as defined in the Cable
Act, including any Basic Service or any other video or programming service, or the
provision of any equipment and any installation of equipment or facilities and monthly
use therefor, whether originated by the Company or any other Person, which is offered
to any Person in conjunction with, or distributed over, the System, except that the term
does not include Noncable Service.
"Channel" means a "channel" or "cable channel" as defined in the Cable Act.
"Commercially Impracticable" means that the Company is unable to
provide any facility or equipment, or to undertake any other activity or fulfill any other
obligation as provided for in this Agreement, any Appendix to the Agreement, or any
amendment to the Agreement or Appendix thereto, as a result of a change in conditions
which is beyond the control of the Company due to unforeseen supervening
circumstances not within the contemplation of the Company as of the date hereof and
the nonoccurrence of which was a basic assumption on which the requirement for such
facility, equipment, other activity, or obligation was based, consistent with the
definition of commercial impracticability in Section 2 -615 of the Uniform Commercial
Code as in effect in the State of Arkansas.
"Company" means Comcast Cablevision of Little Rock, Inc., a corporation
duly organized and validly existing under the laws of the State of Arkansas, whose
principal place of business is located at 801 Scott Street, Little Rock, Arkansas 72201.
"Control" or "Controlling Interest" means actual working control in
whatever manner exercised, including, without limitation, working control through
ownership, management, debt instruments, or negative control, as the case may be, of
the System, the Franchise or the Company. A rebuttable presumption of the existence
of Control or a Controlling Interest shall arise from the beneficial ownership, directly or
indirectly, by any Person or group of Persons acting in concert (other than underwriters
during the period in which they are offering securities to the public) of fifteen percent
(15 %) or more of any Person (which Person or group of Persons is hereinafter referred
to as "Controlling Person "). "Control" or "Controlling Interest" as used herein may be
held simultaneously by more than one Person or group of Persons.
"Economically and Technically Feasible and Viable" means capable of
being provided: (a) through technology which has been demonstrated in actual
applications (not simply through tests or experiments) to operate in a workable manner;
and (b) in a manner which has a reasonable likelihood of generating a reasonable rate of
return to the Company, when measured over the term of the Franchise.
"FCC" means the Federal Communications Commission, its designee, or any
successor thereto.
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"Franchise Area" means the City of Little Rock, including any areas
annexed by the Franchising Authority during the term of the Franchise as determined by
the Franchising Authority, which could be done by attaching a map with the boundaries
outlined, except that for purposes of rate regulation, the term means the area actually
passed by the Company's Cable System in the City of Little Rock.
"Franchising Authority" means the City of Little Rock, Arkansas, or, as
appropriate in the case of specific provisions of this Agreement, the Board of Directors,
or any board, bureau, authority, agency, commission, or department of the City of Little
Rock, Arkansas with jurisdiction over any matter(s) governed by this Agreement, or any
officer, official, employee in charge of any such board, bureau, authority, agency,
commission or department, or any designee of any of the foregoing, or any successor
thereto.
"Gross Revenue" means all revenue, as determined in accordance with
generally accepted accounting principles, which is derived, directly or indirectly, by the
Company, by each Affiliated Person, or any other Person, from or in connection with
the System from the provision of Cable Service, including, without limitation, all
advertising revenue (including, without limitation, all advertising commissions paid to
or credited to any Affiliated Persons) and the value of any free services provided by the
Company. Gross Revenue shall also specifically, without limitation, include: (i) the
fair market value of any nonmonetary (i.e., barter) transactions between the Company
and any Person, other than an Affiliated Person, but not less than the customary prices
paid in connection with equivalent transactions; (ii) the fair market value of any
nonmonetary (i.e., barter) transactions between the Company and any Affiliated Persons
but not less than the customary prices paid in connection with equivalent transactions
conducted with Persons who are not Affiliated Persons; (iii) revenue which represents
or can be attributed to a Subscriber fee or a payment for the use of the System for the
sale of merchandise through any Service distributed over the System; and (iv) any
revenue received by the Company or by any Affiliated Person, as reasonably
determined from time to time by the Franchising Authority, through any means which is
intended to have the effect of avoiding the payment of compensation based on Gross
Revenues pursuant to Section 6.1 of this Agreement; and (v) to the extent permitted
under applicable law, the amount set forth as a separate line item on a Subscriber's bill
as a franchise fee.
Gross Revenue shall not include: (i) the revenue of any Person, including,
without limitation, a supplier of programming to the Company, to the extent that said
revenue is also included in Gross Revenue of the Company; (ii) taxes imposed by law
on Subscribers which the Company is obligated to collect (it being acknowledged that
franchise fees under this Agreement are not considered taxes); (iii) amounts collected
by the Company from Subscribers on behalf of leased or access channel programmers,
other than Affiliated Persons, to the extent that all of the amounts collected (in excess of
the amounts deducted pursuant to Section 6.1.5 of the Agreement and paid to the
Franchising Authority) are passed on by the Company to said programmers; (iv) the
revenue of any Affiliated Person which represents standard and reasonable amounts
<A -3>
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3118
"Franchise Area" means the City of Little Rock, including any areas
annexed by the Franchising Authority during the term of the Franchise as determined by
the Franchising Authority, which could be done by attaching a map with the boundaries
outlined, except that for purposes of rate regulation, the term means the area actually
passed by the Company's Cable System in the City of Little Rock.
"Franchising Authority" means the City of Little Rock, Arkansas, or, as
appropriate in the case of specific provisions of this Agreement, the Board of Directors,
or any board, bureau, authority, agency, commission, or department of the City of Little
Rock, Arkansas with jurisdiction over any matter(s) governed by this Agreement, or any
officer, official, employee in charge of any such board, bureau, authority, agency,
commission or department, or any designee of any of the foregoing, or any successor
thereto.
"Gross Revenue" means all revenue, as determined in accordance with
generally accepted accounting principles, which is derived, directly or indirectly, by the
Company, by each Affiliated Person, or any other Person, from or in connection with
the System from the provision of Cable Service, including, without limitation, all
advertising revenue (including, without limitation, all advertising commissions paid to
or credited to any Affiliated Persons) and the value of any free services provided by the
Company. Gross Revenue shall also specifically, without limitation, include: (i) the
fair market value of any nonmonetary (i.e., barter) transactions between the Company
and any Person, other than an Affiliated Person, but not less than the customary prices
paid in connection with equivalent transactions; (ii) the fair market value of any
nonmonetary (i.e., barter) transactions between the Company and any Affiliated Persons
but not less than the customary prices paid in connection with equivalent transactions
conducted with Persons who are not Affiliated Persons; (iii) revenue which represents
or can be attributed to a Subscriber fee or a payment for the use of the System for the
sale of merchandise through any Service distributed over the System; and (iv) any
revenue received by the Company or by any Affiliated Person, as reasonably
determined from time to time by the Franchising Authority, through any means which is
intended to have the effect of avoiding the payment of compensation based on Gross
Revenues pursuant to Section 6.1 of this Agreement; and (v) to the extent permitted
under applicable law, the amount set forth as a separate line item on a Subscriber's bill
as a franchise fee.
Gross Revenue shall not include: (i) the revenue of any Person, including,
without limitation, a supplier of programming to the Company, to the extent that said
revenue is also included in Gross Revenue of the Company; (ii) taxes imposed by law
on Subscribers which the Company is obligated to collect (it being acknowledged that
franchise fees under this Agreement are not considered taxes); (iii) amounts collected
by the Company from Subscribers on behalf of leased or access channel programmers,
other than Affiliated Persons, to the extent that all of the amounts collected (in excess of
the amounts deducted pursuant to Section 6.1.5 of the Agreement and paid to the
Franchising Authority) are passed on by the Company to said programmers; (iv) the
revenue of any Affiliated Person which represents standard and reasonable amounts
<A -3>
M � M M
Ml M M Ml
M M M M
0 • r
paid by the Company to said Affiliated Person for ordinary and necessary business
expenses of the Company, including, without limitation, professional service fees and
insurance or bond premiums; (v) to the extent consistent with generally accepted
accounting principles, consistently applied, actual bad debt write -offs; and (vi)
investment income.
"Noncable Service" means any service, including, without limitation,
telecommunications service, other than Cable Service.
"Pay Service" means any Cable Service offered on a per Channel or per
program basis, as set forth in Appendix D.
"Person" means any natural person or any association, firm, partnership,
joint venture, corporation, or other legally recognized entity, whether for - profit or not-
for- profit, but shall not mean the Franchising Authority.
M M
"Responsible Franchising Official" means the body, organization or official
to whom the applicable rights or obligations have been delegated by the Franchising
Authority pursuant to applicable law.
319"
"Signal" means any transmission of radio frequency energy or of optical information.
"Streets" means the surface of, and the space above and below, any and all streets,
avenues, highways, boulevards, concourses, driveways, bridges, tunnels, parks, parkways,
waterways, docks, bulkheads, wharves, piers, public grounds and public places or waters
within and belonging to the Franchising Authority and any other property within the Franchise
Area to the extent to which there exist public easements or public rights of way.
"Subscriber" means any Person lawfully receiving any Service provided by
the Company by means of or in connection with the System.
"Subscriber Network" means that portion of the System over which
Services are provided primarily to residential Subscribers.
"System" means the Cable System which is to be constructed, operated,
maintained and upgraded, as necessary, by the Company in the Franchise Area pursuant
to this Agreement, including, without limitation, all real property, all tangible and
intangible personal property, buildings, offices, furniture, Subscriber lists, cables,
amplifiers and all other electronic devices used in connection therewith and all rights,
contracts and understandings with regard to any matter related thereto, except that such
term does not include the Company's marks and trade name.
<A -4>
so
_ - - - -- - _
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APPENDIX B
SYSTEM CHARACTERISTICS; PERFORMANCEAND
TESTING REQUIREMENTS; SYSTEM PLANS;
CONSTRUCTION TERMS, SCHEDULE AND SEQUENCE
I. SYSTEM CHARACTERISTICS
I.A. Technical Features
The Company shall furnish a Subscriber Network architecture that consists of four
primary levels of distribution. The levels are the master headend, the optical transition node
(OTN), the fiber distribution network and the coaxial distribution network.
The master headend is the primary entry point for services in the network including video,
voice and data. The master headend is designed to accommodate the entire Franchise Area.
Common network services shall be routed from the master headend to OTNs via a dedicated
fiber optic link.
The primary function of the OTN is to receive optical signals from the master headend and
provide an insertion point for the discreet programming services. The combined signals shall
be distributed from the OTN to fiber nodes via the fiber distribution network.
The fiber distribution network includes optical nodes that receive and convert optical signals
into RF signals. RF signals are delivered to the subscribers via the coaxial distribution
network.
The forward operating bandwidth shall be 54 MHz to 750 MHz and shall provide for 77
actived video channels, at least 70 of which shall be analog 6 MHz video channels. The
reverse path operating bandwidth shall be 5 MHz to 40 MHz.
I.B. Standby Power
The System power supplies shall include standby power capability at all OTNs.
Standby time shall be at least two and one -half hours at 80% loading. The headend and OTN
facilities shall contain fuel supplied back -up generators. These generators will provide
standby time for a minimum of 24 hours.
I.C. Cascade
The RF distribution network shall typically consist of seven active devices, but no
more than ten such devices, between the end of the line tap and the optical node launch
amplifier.
<B -1>
I.D. Digital Capacity
M
The System shall be designed to reserve 200 MHz for digital Services.
I.E. Emergency Override System
The System shall be installed and operated with an emergency alert system in
compliance with the rules of the Federal Communications Commission; provided, however,
that, notwithstanding any such FCC rules, the System shall be configured such that, in the
event of a local emergency as reasonably determined by the Franchising Authority, the City of
Little Rock Office of Emergency Services or other appropriate entity designated by the
Franchising Authority shall be able to interrupt, to the extent permitted by FCC regulations,
audio and video Signals distributed over the System for the delivery of appropriate, Signals
necessitated by such emergency. The Franchising Authority and the Company shall negotiate
in good faith procedures which shall govern the Franchising Authority's activation of the
emergency alert system. The Franchising Authority may adopt rules and regulations
governing the Franchising Authority's use of the emergency alert system, provided, however,
if such rules and regulations would impose more than a minimal cost on the Company, the
parties shall negotiate the manner by which the Company may recoup such costs. In the event
of an emergency, however, the Franchising Authority may take such actions as it deems
necessary to protect the health, safety and welfare of the residents of the City of Little Rock.,
II. PERFORMANCE AND TESTING REQUIREMENTS
The System will operate in compliance with applicable FCC signal quality standards.
To the extent permitted by Subpart K of part 76 of title 47 of the Code of Federal Regulations
(47 C.F.R. § 76.601, et. M.), as may be amended from time to time, the Franchising
Authority may require the Company to conduct technical performance testing.
III. SYSTEM PLANS
The Cable System plans shall ensure that, as constructed and operated, the Cable
System shall be able to provide the capacity and Cable Services required by this Agreement in
a manner consistent with the applicable performance standards.
IV. CONSTRUCTION TERMS, SCHEDULE AND SEQUENCE
IV.A. Wiring and Cable Service Schedule
Unless otherwise provided in the Agreement (including the Appendices), the
Company shall use its best efforts to make Cable Service available to every Person in the
Franchise Area that requests Cable Service within thirty (30) days after the request, but in no
event shall the Company take longer than sixty (60) days to provide such Service.
<B -2>
M
IV.B. General Requirements for Work on the System
M M M M
IV.B.1. Licenses and Permits. The Company shall have the sole
responsibility for diligently obtaining, at its own cost and expense, all permits,
licenses, or other forms of approval or authorization necessary to construct, operate,
maintain, repair or upgrade the System, or any part thereof, prior to commencement
of any such activity.
IV.B.2. New Grades or Lines. If the grades or lines of any Street within
the Franchise Area are changed at any time during the term of the Agreement, then
the Company shall, at its own cost and expense and upon the written request of the
Franchising Authority, protect or promptly alter or relocate the System, or any part
thereof, so as to conform with such new grades or lines within thirty (30) days of
such request or such other period as agreed upon by the parties. In the event that
the Company refuses or neglects to so protect, alter, or relocate all or part of the
System, the Franchising Authority shall have the right to break through, remove,
alter, or relocate all or any part of the System without any liability to the Company
and the Company shall pay to the Franchising Authority the costs incurred in
connection with such breaking through, removal, alteration, or relocation.
IV.B.3. Protect Structures. In connection with the construction, operation,
maintenance, repair, upgrade, or removal of the System, the Company shall, at its
own cost and expense, protect any and all existing structures belonging to the
Franchising Authority and all designated landmarks. The Company shall obtain the
prior approval of the Franchising Authority before altering any water main,
sewerage or drainage system, or any other municipal structure in the Streets
required because of the presence of the System in the Streets, and such approval
shall not be unreasonably withheld. Any such alteration shall be made by the
Company, at its sole cost and expense, and in a manner prescribed by the
Franchising Authority. The Company agrees that it shall be liable, at its own cost
and expense, to replace or repair and restore to serviceable condition, in a manner
as may be reasonably specified by the Franchising Authority, any Street or any
municipal structure involved in the construction, operation, maintenance, repair,
upgrade or removal of the System that may become disturbed or damaged as a
result of any work thereon by or on behalf of the Company pursuant to the
Agreement.
IV.B.4. No Obstruction. In connection with the construction, operation,
maintenance, repair, upgrade, or removal of the System, the Company shall not
obstruct the Streets, subways, railways, passenger travel, river navigation, or other
traffic to, from, or within the Franchise Area without the prior consent of the
appropriate authorities.
IV.13.5. Movement of Wires. The Company shall, upon fourteen (14) days
prior written notice by the Franchising Authority or any Person holding a permit to
<B -3>
322
® 323.
move any structure or upon such other notice as agreed to by the parties,
temporarily move its wires to permit the moving of said structure. The Company
may impose a reasonable charge on any Person other than the Franchising
Authority for any such movement of its wires.
IV.13.6. Safety Precautions. The Company shall, at its own cost and
expense and in accordance with applicable law and this Agreement, undertake all
necessary and appropriate efforts to prevent accidents at its work sites, including
the placing and maintenance of proper guards, fences, barricades, watchmen, and
suitable and sufficient lighting.
IV.B.7. Moving Wires. The Franchising Authority may, at any time, in
case of fire, disaster, or other emergency, as determined by the Franchising
Authority, in its sole discretion, cut or move any of the wires, cables, amplifiers,
appliances, or other parts of the System, in which event the Franchising Authority
shall not incur any liability to the Company, any Affiliated Person or any other
Person. When possible, the Company shall be consulted prior to any such cutting
or movement of its wires and be given the opportunity to perform such work itself.
All costs to repair or replace such wires, cables, amplifiers, appliances or other
parts of the System shall be bome by the Company.
V. INSTITUTIONAL NETWORK
The Company and the Franchising Authority shall in good faith negotiate a plan by
January 1, 1999 for the upgrade of and provision of fiber capacity for an
Institutional Network dedicated to use by the Franchising Authority to link
governmental facilities and any other uses as agreed to by the Company and the
Franchising Authority. Such plan shall set forth the design, configuration, technical
characteristics and coordination of the Institutional Network, and shall include an
estimate of the construction, maintenance, and repair costs of the fiber capacity. In
order to limit the cost of the Institutional Network, the Company and Franchising
Authority contemplate that such fiber shall be installed at the same time the
Company upgrades the System in accordance with the terms of this Agreement. In
the event the parties negotiate a plan, the Company, upon the request of the
Franchising Authority, shall construct, maintain and repair the fiber capacity, so
long as the Company is permitted to pass through to Subscribers its costs in
providing such fiber capacity; provided, however, the Company shall only pass
through to Subscribers its actual costs, consistent with the FCC rate regulations, of
providing the Institutional Network, and such costs shall be amortized over a period
to be negotiated by the parties. Nothing herein shall be interpreted to mandate that
the Franchising Authority require the Company to provide the Institutional
Network in accordance with the plan.
<B -4>
M i
1.1
1.2
APPENDIX C
SUBSCRIBER SERVICES TO
GOVERNMENTAL AND INSTITUTIONAL FACILITIES
� r•
324
.p
Basic Oblipation
1.1.1 The Company shall, at no charge and at the request of the appropriate
person at each facility listed in Section 1.2 of this Appendix C, or at the
request of the City Manager for the future Clinton Presidential library or
for any governmental, educational or other facility similar to those listed in
Section 1.2 that may be constructed or utilized during the term of this
Agreement, promptly provide: (i) one drop of cable on which Services are
distributed over the System;' and (ii) Basic Service and all cable
programming services, as that term is defined in the Cable Act (47 U.S.C. §
543(1)(2)), to each such drop. Notwithstanding the foregoing, the Company
shall not reduce the number of drops currently provided at a facility set
forth in Section 1.2 of this Appendix C.
1.1.2 Each drop shall include a basic analog converter where needed to receive
Services provided pursuant to Section 1.1.1,
List of Municipal Departments,
Agencies and Institutions
The Company shall satisfy the basic obligation set forth in Section I.1 of this
Appendix C with respect to the facilities listed in Exhibit 1 to this Appendix C.
' To the extent that any such drop is located on a block which is completely unwired, the installation
shall be completed within thirty (30) days of the request. All other installations shall be completed in
accordance with the normal installation obligations of the Agreement.
<C -1>
CMNt=Y ACCOMS
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a
APPENDIX D
LISTING OF BROAD CATEGORIES OF
PROGRAMMINGSERVICES, RATES AND CHARGES;
COMMERCIAL (LEASED) ACCESS CHANNELS
I. BROAD CATEGORIES OF PROGRAMMING SERVICES
The Company has offered and agrees to continue to provide a mix of distinct and
separate programming, including, but not limited to, the following broad categories of
programming: Educational, Arts and Cultural, Children's, News and Public Affairs, Family
Programming, Business and Financial, Weather, Sports, National Television Networks;
Movies, Music, Health, Governmental Affairs Programming; and Local Origination
II. RATES, TERMS AND CONDITIONS FOR BASIC SERVICE ON EFFECTIVE
DATE OF AGREEMENT
[see attached rate card]
III. RATES, TERMS AND CONDITIONS FOR PAY SERVICE ON EFFECTIVE DATE
OF AGREEMENT
[see attached rate card]
IV. RATES, TERMS AND CONDITIONS FOR EQUIPMENT AND INSTALLATION
ON EFFECTIVE DATE OF AGREEMENT
[see attached by rate card]
V. RATES, TERMS AND CONDITIONS FOR NONSTANDARD COMMERCIAL
INSTALLATIONS
In the event the Company receives a request for Service at a commercial
establishment that is more than 125 feet from the Company's existing cable distribution
<D -1>
_ _ _ _ _ _ .� .�- - w -:fie ....v_. - -•... - -v .__ v__._o �._ v._____..:_�.�_.r.�_......_.J..
332
system, the Company shall have the right to charge more than the standard installation rate for
such commercial installation. The charge for such nonstandard commercial installation shall
not exceed the maximum rates permitted by law, and shall include only those costs that are
permissible under such law.
VI. COMMERCIAL LEASED ACCESS CHANNELS
[see attached leased access channel terms)
<D_Z>
333
APPENDIX E
CONSUMER PROTECTION STANDARDS
INDEX
Page
SECTION I SOLICITATION OF SUBSCRIPTIONS ........................... E -1
SECTION 2 TRAINING OF EMPLOYEES; TELEPHONES ............... E -4
SECTION3 BILLING.. ........................................................................... E-5
SECTION 4 EQUIPMENT PROVIDED BY THE COMPANY ............ E -7
SECTION 5 OUTAGE CORRECTION AND REPAIR SERVICE ....... E -8
SECTION 6 SUBSCRIBER COMPLAINTS ........... ............................... E -10
SECTION7 NOTICE ............................................... ............................... E -11
SECTION 8 TERMINATION OF SERVICE
AND DISCONNECTION .................... ............................... E -11 .
SECTION 9 CREDITS AND REFUNDS ................ ............................... E -12
SECTION 10 MISCELLANEOUS REQUIREMENTS ............................ E -15
SECTION 1 I FAILURE TO COMPLY WITH
THESE REQUIREMENTS .................. ............................... E -15
SECTION 12 DEFINITIONS ..................................... ............................... E -16
<E -I>
M M M M
APPENDIX E
CONSUMER PROTECTION STANDARDS
SECTION 1
SOLICITATION OF SUBSCRIPTIONS
1.1 Subscription Information.
1.1.1 Before providing any service to any potential Subscriber and at least
once a year to all Subscribers, the Company shall provide the following subscription
information to all potential Subscribers and all Subscribers, in a clear, complete and
comprehensible form:
1.1.Ia. a description of the Cable Services provided by the
Company, accompanied by a listing of the charges for each such Service, either
alone or in combination;
l.l.lb. a listing of all rates and conditions of subscription for each
Cable Service or tier of Cable Service, and all other charges, such as for returned
checks and for relocating cable outlets;
1.1.1 c. a general explanation of other communications devices
which may be used in conjunction with the System, including, but not limited to,
video cassette recorders'and remote control devices, and, if applicable, the use of
publicly available equipment and a listing of the Company's charges for connecting
such devices to the System;
1.1.1d. a description of the Company's billing and collection
procedures;
1.1.1 e. the procedure for the resolution of billing disputes,
including the telephone number of the City of Little Rock City Manager's office
Subscribers may call with regard to billing disputes, as specified by the Franchising
Authority;
1.1.1 f. a description of the Company's policies concerning credits
for outages, service interruption, and other service and reception problems,
consistent with these consumer protection standards;
1.1.1 g. an explanation of the procedures and charges, if any, for
upgrading, downgrading or disconnecting services, consistent with these consumer
protection standards;
<E_ 1>
334
335
I.1.1 h. the required time periods for the performance of installation
requests as set forth in Section 1.4 of this Appendix E, and an indication of the
penalties for failure to complete installation within such time periods;
1.1.Ii. the complaint resolution process;
1.1.lj. the procedures by which the Subscriber will be notified of
any rate increase in writing;
1.1.1 k. the local numbers for the Company's Subscriber service
telephone system; and
1.1.11, a listing of the access channels and a description of the
purposes and uses of such Channels.
1. 1.2 The Company shall deliver two (2) copies of all such subscription
information to the Franchising Authority within two (2) business days after distributing it to
the first Subscriber or potential Subscriber. The information contained therein shall comport
with these consumer protection standards and shall not be misleading. Nothing herein shall
prohibit the Franchising Authority from reviewing such information to ensure that it complies
with this Section 1.1. The Company agrees that the Franchising Authority assumes no
liability for the subscription information by virtue of its review of such information.
1.2 Right of Rescission. Anyone who requests the installation of Cable Service
from the Company shall have the right to rescind such request at any time prior to the point in
time at which physical installation upon the premises begins. Anyone who requests a
particular Service from the Company shall have the same right of rescission, except that such
right shall expire once the requested Service is actually received by such Person.
1.3 Marker Showing Converter Dial Locations. The Company will provide
Subscribers with a dial location card for all Cable Services, and will provide a new card
showing the then - current Channel lineup on an annual basis thereafter.
1.4 Procedure for Installation
1.4.1 Under normal operating conditions, the standards in this Section 1.4
shall be met no less than ninety -five percent (95 %) of the time measured on a quarterly basis.
1.4.2 Once a request for Cable Service is received, the Company shall
either set a specific appointment time or specify a four (4) hour time block during normal
business hours, as requested by the Subscriber or potential Subscriber, during which the
Company's work crew shall install the necessary equipment to receive Service. The Company
may schedule installation activities outside of normal business hours for the express
convenience of the Subscriber.
<E -2>
M an
336
1.4.3 Unless a later date is requested by a potential Subscriber, the
Company shall complete installation of Service for any new Subscriber within seven (7)
business days after any such request is received, where the installation is located up to 125
feet from the existing distribution system.
1.5 Records of Requests for Cable Service
1.5.1 The Company shall keep records capable of showing all requests for
Cable Service, which shall contain, with respect to each request for Service, the name and
address of the Person requesting Service, the date on which Service was requested, the date on
which Service was scheduled to be provided and the date Service was actually provided.
These records shall be assembled continuously and made available to the Franchising
Authority in summary form and in a legible format upon request.
1.5.2 Any information in the records required by Section 1.5.1 of this
Appendix may be destroyed three (3) years after such information was collected, unless the
Franchising Authority authorizes the Company, in writing, to destroy any information
required by Section 1.5.1 of this Appendix prior to the expiration of such three (3) year
period.
SECTION 2
TRAINING OF EMPLOYEES; TELEPHONES
2.1 Trainine of Employees
2. 1.1 Each employee of the Company who may come into contact with
members of the public at their places of residence shall: (i) wear a Company- provided
uniform identifying the Company; (ii) use a vehicle appropriately identifying the Company;
(iii) wear a picture identification card indicating his or her employment with the Company.
2.1.2 All customer service employees shall identify themselves by name
when answering Company telephone lines routinely used by members of the public.
2.2 Telephone Lines, The Company shall have local telephone lines for receiving
requests for repair or installation services, for reporting outages and for responding to billing
questions. These lines shall be answered twenty -four (24) hours per day, seven (7) days per
week, with an answering service or automated device answering them outside of the
Company's business hours. During normal business hours, trained Company employees shall
be available to respond to customer telephone inquires. If calls concerning area outages are
received, the answering service or automated device shall (i) at the end of the recorded
message, permit Subscribers to report outages and to leave their name, telephone number and
account number, if available, for an outage credit; (ii) contact the person authorized by the
Company to initiate corrective measures; and (iii) with respect to outages known to the
Company, provide up -to -date information on outages, the efforts underway to correct the
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problem and, if reasonably known to the Company, the estimated time when Service will be 3,3 7
restored. The answering service or automated device shall record calls concerning billing
questions, complaints, or other matters and Company employees shall return any such call
within one (1) business day after the answering service or automated device takes the
message.
2.3 Standard of Service for the Telephone System. At the commencement of the
term of this Agreement, the telephone system shall have, at a minimum, enough incoming
lines and adequate staff to process incoming calls such that telephone answer time, 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. Subscribers shall receive
a busy signal less than three percent (3 %) of the time.
2.4 Compliance. The standards in Section 2.3 of this Appendix shall be met no
less than ninety percent (90 %) of the time under normal operating conditions, measured on a
quarterly basis. The Company will not be required to acquire equipment or perform surveys
to measure compliance with the telephone answering standards unless a historical record of
complaints indicate a clear failure to comply.
SECTION 3
BILLING
3.1 The Format of a Subscriber's Bill
3.1.1 The bill shall be designed in such a way as to present the information
contained therein clearly and comprehensibly to Subscribers.
3.1.2 The bill shall contain itemized charges for each category of Service
and equipment and any installation of equipment or facilities and monthly use thereof
(together, "Equipment ") for which a charge is imposed (including late charges, if any), an
explicit due date, the name and address of the Company and telephone number for the
Company's office responsible for inquiries and billing, the telephone number specified by the
Franchising Authority for the resolution of billing disputes, and the FCC Community Unit
Identifier Number. The bill shall state the billing period, amount of current billing and
appropriate credits or past due balances, if any.
3.
1.3 The Company shall not charge a potential Subscriber or Subscriber
for any Service or Equipment that the Subscriber has not affirmatively requested by name. A
Subscriber's failure to refuse a cable operator's proposal to provide such Service or Equipment
shall not be deemed to be an affirmative request for such Service or Equipment.
3.2 Billing Procedures. All bills shall be rendered monthly, unless otherwise
authorized by the Subscriber, or unless Service was provided for less than one (1) month.
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3.3 Procedures for Collecting Late Bills
3.3.1 No bill shall be due less than ten (10) days from the date of the
mailing of the bill by the Company to the Subscriber.
3.3.2 A bill shall not be considered delinquent until at least thirty (30) days
have elapsed from the due date of the bill to the Subscriber and payment has not been
received by the Company, provided that no bill shall be mailed more than fifteen (15) days
prior to the date services covered by such bill commence, except in cases where a Subscriber
requests advance billing. Late fees not to exceed five dollars ($5.00) may be applied to a
delinquent bill, so long as the billing dispute resolution procedures set forth in Section 3.4 of
this Appendix have not been initiated, provided, however, nothing herein requires the
Company to charge a late fee.
3.3.3 The Company shall not physically or electronically discontinue
Service for nonpayment of bills rendered for Service until: (i) the Subscriber is delinquent in
payment for Service; and (ii) at least five (5) days have elapsed after the Company has sent a
representative to the premises at which the Subscriber requests billing in an effort to collect
payment; or (iii) at least eight (8) days have elapsed after mailing to the Subscriber a separate
written notice of impending discontinuance (for which postage is paid by the Company),
addressed to such Person at the premises where the Subscriber requests billing. Notice of .
Service discontinuance must clearly state the amount in arrears, the total amount required to
be paid to avoid discontinuance of Service, reconnection charges if applicable, and the date by
which such payment must be made.
3.4 Procedure for the Resolution
of Billing Disputes
3.4.1 The billing dispute resolution procedure shall be initiated once a
Subscriber contacts the Company's department which handles billing questions or the
Franchising Authority, orally or in writing, so long as such contact occurs within thirty (30)
days from the date of receipt of the bill by the Subscriber. If the Subscriber contacts the .
Franchising Authority, the Franchising Authority shall notify the Company, by mail, by
telephone or by electronic means, that the dispute resolution procedure has been initiated and
the Company shall then contact the Subscriber to discuss the dispute.
3.4.2 The Subscriber shall not be required to pay the disputed portion of the
bill until the dispute is resolved. The Company shall not apply finance charges, issue
delinquency or termination notices, or initiate collection procedures for the disputed portion
of the bill pending resolution of the dispute.
3.4.3 The Company shall promptly undertake whatever review is necessary
to resolve the dispute, and shall notify the Subscriber of the results of the review as soon as it
is completed, but in no case later than twenty (20) business days after receipt from the
Subscriber or Franchising Authority of the billing dispute, problem or complaint notification.
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3.4.4 The Company shall notify the Subscriber in writing or by telephone
of its proposed resolution of the billing dispute.
3.5 Referral of Delinquent Accounts
to a Collection Agency
3.5.1 If the billing dispute resolution procedures have not been initiated, the
delinquent account may be referred to a private collection agency for appropriate action no
sooner than thirty (30) business days after it becomes delinquent.
3.5.2 If the billing dispute resolution procedures have been initiated, the
delinquent account shall not be referred to a collection agency prior to ten (10) business days
after the conclusion of those procedures.
SECTION 4
EQUIPMENT PROVIDED BY THE COMPANY
4.1 Types of Equipment To Be Provided
4, 1.1 The Company shall supply a closed caption decoder to any hearing
impaired Subscriber who requests one at a charge not to exceed the Company's cost, to the
extent applicable law permits the Franchising Authority to limit such charge to the Company's
cost.
4.1.2 The Company shall comply with all rules and regulations
promulgated by the FCC pursuant to Sections 623 and 624A of the Cable Act (47 U.S.C.
§§ 543 and 544a).
4.2 Terms for Rental and Loaner Equipment
4.2.1 The Company may require deposits on certain Equipment it provides
to Subscribers, provided that the Company pays a reasonable interest rate on such accounts.
There shall be no discrimination among or between Subscribers in either the requirement for
or the amount of any deposit, except that the Company may treat as a separate category of
Subscriber for deposit purposes those Persons who have had Service terminated for
nonpayment three or more times, provided that there is no discrimination among or between
Persons who are in such category.
4.2.2 For billing purposes, the return of rental Equipment shall be deemed
to have taken place on the day such equipment is returned.
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SECTION 5 340
OUTAGE CORRECTION AND REPAIR SERVICE
5.1 Interruption of Service. The Company shall exercise its best efforts to limit
any scheduled interruption of any Cable Service for any purpose to periods of minimum use.
Except in emergencies, incidents requiring immediate action, or where Service is already
interrupted because of a System malfunction or problem, the Company shall provide the
Franchising Authority and all affected Subscribers with prior notice of scheduled service
interruptions, if such interruptions will last longer than thirty (30) minutes.
5.2 Time Periods by Which Outages
Must Be Corrected and Repairs Made
5.2.1 The Company shall maintain sufficient repair and maintenance crews
so as to be able to correct or repair any service interruption promptly and in no event later
than twenty-four (24) hours after the Company either receives a request for repair service or
the Company learns of it. The Company must begin actions to correct all other reception
problems or other service problems the next business day after notification of the service
problem. For purposes of this Agreement, "service interruption" shall constitute the loss of
picture or sound on one or more Channels due to a failure or malfunction of, or other problem
with, the Company's System.
5.2.2 The Company shall maintain, at all times, an adequate repair and
service force in order to satisfy its obligations pursuant to Section 5.2.1 of this Appendix, and
in cases where it is necessary to enter upon a Subscriber's premises to correct any reception
problem or other service problem, the Company shall either set a specific appointment time or
specify a four (4) hour time block during normal business hours, as requested by the
Subscriber or potential Subscriber, during which the Company's work crew shall work on the
service problem. The Company may schedule service calls outside of normal business hours
for the express convenience of the Subscriber, provided that the Company's customer service
representatives shall at all times endeavor to be aware of service or other problems in adjacent
areas which may obviate the need to enter a Subscriber's premises.
5.2.3 In no event shall the Company cancel any necessary scheduled
service call after the close of the business on the business day prior to the scheduled
appointment. If the Company needs to cancel a scheduled appointment, it must contact the
Subscriber and reschedule at a time convenient for the Subscriber.
5.3 Failure To Meet Time Periods May Be Excused. The Company's failure to
correct outages or to make repairs within the stated time periods shall be excused in the
following circumstances:
(i) if the Company could not obtain access to the Subscriber's
premises; or
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(ii) if the Franchising Authority, acting reasonably, agrees with the
Company that correcting such outages or making such repairs was
not reasonably possible within the allotted time period.
5.4 No Charge for Repair Service. The Company shall not impose any fee or
charge any Subscriber for any service call to his or her premises to perform any repair or
maintenance work on equipment owned by the Company, except to the extent that the rate
regulations of the Federal Communications Commission may permit the Company to impose
a fee for repair or maintenance of Company -owned equipment that is vandalized by the
Subscriber.
5.5 Records of Repair Service Requests
5.5.1 The Company shall keep records capable of showing all requests-for
repair service and information on outage correction (to the extent available with respect to
each of the following types of information), which shall show, at a minimum, the name and
address of the affected Subscriber, the date of request, the date the Company responds, the
date service is restored, the type and the probable cause of the problem, and the corrective
steps, if any, taken. To the extent permitted by applicable law, the Company shall make such
records available to the Franchising Authority upon request.
5.5.2 Any information in the records required by Section 5.5.1 of this
Appendix may be destroyed three (3) years after such information was collected, unless the
Franchising Authority authorizes the Company, in writing, to destroy any information
required by Section 5.5.1 of this Appendix prior to the expiration of such three (3) year
period.
SECTION 6
SUBSCRIBER COMPLAINTS
6.1 Complaints. For the purposes of this Agreement, "complaint" shall mean any
written communication by a Subscriber or potential Subscriber or oral communication by a
Subscriber or potential Subscriber reduced to writing, including to a computer form,
expressing dissatisfaction with any nonprogramming aspect of the Company's business or
operation of the System.
6.2 Time Period for the Resolution of Complaints. Except where another time
period is required by any other provision of this Appendix, the Company shall make its best
efforts to resolve, within seven (7) business days or such longer period as requested by a
Subscriber, all complaints after they are received by the Company. Within two (2) business
days of receiving a written complaint or a complaint forwarded to the Company by the
Franchising Authority, the Company shall notify the Person who made the complaint, either
by telephone or in writing, that the complaint has been received and that the Company will
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make its best efforts to resolve such complaint within seven (7) business days of receipt of
such complaint by the Company.
6.3 Referral of Complaints from the
Franchising Authority to the Company
6.3.1 If the Franchising Authority is contacted directly about a complaint
concerning the Company, the Franchising Authority shall notify the Company.
6.3.2 Within ten (10) business days after being notified about the
complaint, the Company shall issue to the Franchising Authority a report detailing the
investigation thoroughly, summarizing the findings, explaining any corrective steps which are
being taken and indicating that the Person who registered the complaint has been notified of
the resolution or will be notified of such resolution within seven (7) days of notification to the
Franchising Authority.
6.4 Complaint Records
6.4.1 The Company shall maintain complaint records, which shall record
the date a complaint is received, the name and address of the affected Subscriber, a
description of the complaint, the date of resolution, a description of the resolution and an
indication of whether the resolution was appealed. To the extent permitted by applicable law,
the Company shall make such records available to the Franchising Authority upon request.
6.4.2 Any information in the records required by Section 6.4.1 of this
Appendix may be destroyed after three (3) years after such information was collected, unless
the Franchising Authority authorizes the Company, in writing, to destroy any information
required by Section 6.4.1 of this Appendix prior to the expiration of such three (3) year
period.
SECTION 7
NOTICE
7.1 Notice Required
7.1.1 If the Company provides a premium Channel without charge to Cable
Subscribers who do not subscribe to such premium Channel, the cable operator shall, not less
than thirty (30) days prior to the time such premium Channel is provided without charge: (i)
notify all Subscribers that the Company plans to operate a premium Channel without charge;
(ii) notify all Subscribers when the Company plans to offer a premium Channel without
charge; (iii) notify all Subscribers that they have a right to request that the Channel carrying
the premium Channel be blocked; and (iv) block the Channel carrying the premium Channel
upon the request of a Subscriber. For the purposes of this Section 7.1.2, the term "premium
Channel" shall mean any Service offered on a per Channel or per program basis, which offers
movies rated by the Motion Picture Association of America as X, NC -17 or R.
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343
7.1.2 The Company shall provide notice, in writing, to the Franchising
Authority and all Subscribers of any change in any Channel assignment or in any Service,
which notice shall be provided no later than thirty (30) days prior to the effective date of any
such change.
SECTION 8
TERMINATION OF SERVICE AND DISCONNECTION
8.1 Notice of Termination of Service. As described in Section 3.3.3 of this
Appendix, the Company may terminate Service to any Subscriber whose bill has not been
paid after it becomes delinquent, so long as the Company gives proper notice to the
Subscriber as provided in Section 3.3.3 of this Appendix and the billing dispute resolution
procedures have not been initiated.
8.2 Resubscription to Cable Service. The Company shall not refuse to serve a
former Subscri ber whose Service was terminated, so long as all past bills and late charges
have been paid in full. The Company may not charge such terminated Subscriber any fee(s)
not applied to former Subscribers who voluntarily terminated Service, except that the
Company may treat as a separate category of Subscriber for purposes of any such fee those .
Persons who have had Service terminated for nonpayment three or more times, provided that
there is no discrimination among or between Persons who are in such category.
8.3 Length of Time to Disconnection. If disconnection of Service occurs at the
Subscriber's written or oral request, then, for billing purposes, it shall be deemed to have
occurred three (3) days after the Company receives the request for disconnection unless (i) it
in fact occurs earlier or (ii) the Subscriber requests a longer period.
8.4 Scheduling Appointments. The Company shall either set a specific
appointment time or specify a four (4) hour time period during normal business hours, during
which its work crew shall visit the Subscriber's premises to disconnect Service and to remove
any Equipment. The Company may schedule such Service outside normal business hours for
the express convenience of the Subscriber.
8.5 Restoration of Subscriber Premises. The Company shall ensure that the
Subscriber's premises are restored to their original condition if damaged by the Company's
employees or agents in any respect in connection with the installation, repair or disconnection
of Cable Service.
8.6 No Fee for Disconnection. The Company shall not charge any fee for
disconnection.
8.7 Wiring. The Company shall comply with the rules and regulations
promulgated by the FCC, as may be amended from time to time, pursuant to Section 624(1) of
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the Cable Act (47 U.S.C. § 544(i)) regarding the disposition of any wires installed by the
Company within a Subscriber's premises.
SECTION 9
CREDITS AND REFUNDS
9.1 Grounds. As a result of the Company's failure to comply with these consumer
protection standards, the Company shall provide to each affected Subscriber or potential
Subscriber, as applicable, the following credits:
(i) In the event the Company does not voluntarily provide a credit equal to
free installation for a failure of the Company's crew to arrive at the Subscriber's
premises at the scheduled time or within the promised four (4) hour period for any
installation service, as provided in Section 1.4.2 of this Appendix, the Company
shall be required by this Agreement to provide a credit equal to free installation;
(ii) for a failure of the Company to complete installation of service within
the scheduled time period provided for in Section 1.4.3 of this Appendix, unless
otherwise excused, a credit equal to free installation;
(iii) for any service interruption, as defined in Section 5.2 of this Appendix,
which remains unrepaired for more than twenty -four (24) hours after either the
Company receives from the Subscriber a request for repair service (provided that,
to the extent access to the Subscriber's premises is required to effect such repair, the
Subscriber has granted the Company such access) or the Company learns of such
problem, in the event the Company does not voluntarily provide such credit, the
Company shall be required by this Agreement to provide a minimum credit in an
amount equal to one - thirtieth (1/30) times the total bill for Cable Services of such
Subscriber for the preceding billing period, for each twenty -four (24) hour period
during which such service interruption persists for any period of time;
(iv) for any other reception or service problem, other than a service
interruption set forth in Section 9.1(iii), on any Channel, or for any other service
problem, which remains unrepaired for more than one (1) business day after either
the Company receives from the Subscriber a request for repair service (provided
that, to the extent access to the Subscriber's premises is required to effect such
repair, the Subscriber has granted the Company such access) or the Company learns
of such problem, in the event the Company does not voluntarily provide such
credit, the Company shall be required by this Agreement to provide a minimum
credit in an amount equal to one - thirtieth (1/30) times the total bill for Cable
Services of such Subscriber for the preceding billing period, for each twenty -four
(24) hour period during which such reception or service problem persists for any
period of time;
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(v) In the event the Company no longer provides a twenty dollar ($20.00)
credit for a failure of the Company's crew to arrive to correct any outage or make
any repair during the stated time period, as specified in Section 5.2.2 of this
Appendix (except where such failure is excused by Section 5.3 of this Appendix or
except where such crew is no longer required due to a repair effected in a nearby
portion of the System, in which case the Subscriber shall be notified by telephone
that a visit to such Subscriber's residence is no longer necessary), the Company
shall be required by this Agreement to provide a twenty dollar ($20.00) credit to
such Subscriber; and
(vi) for the improper termination of Service by the Company to a
Subscriber, free reconnection and a credit in an amount equal to all charges billed
to such Subscriber for a period equal to two (2) times the total number of days after
notification from the Subscriber that such Subscriber does not have Service.
9.2 PuEpose. The Company agrees that each of the foregoing credits is fair and
reasonable compensation to Subscribers and that such compensation constitutes liquidated
damages, not a penalty or forfeiture.
345.
93 Credits. With respect to any credit described in Sections 9.1(i), (ii) and (v) of
this Appendix, the Company shall automatically provide a credit on each Subscribers bill. .
With respect to any credit described in Sections 9.1(iii), (iv) and (vi) of this Appendix, the
Company shall automatically provide to each Subscriber that provides notification a credit on
the Subscriber's bill. If the Company cannot determine who was affected by a service
interruption or other service or reception problem, then it shall provide a credit to any eligible
Subscriber who makes application therefor by written or oral notice within thirty (30) days
after the outage, service interruption, or other service or reception problem occurred. With
respect to any other credits enumerated in Section 9.1 of this Appendix, the Company shall
provide such credit on the affected Subscriber's next bill.
9.4 Refunds. Refund checks shall be issued promptly, but no later than either (a)
the Subscriber's next billing cycle following resolution of the request or thirty (30) days, .
whichever is earlier, or (b) the return of the equipment supplied by the Company if the
Service is terminated.
SECTION 10
MISCELLANEOUS REQUIREMENTS
10.1 Charge for Downgrades. Charges for downgrades shall not exceed the
maximum rate permitted under the rate regulations of the Federal Communications
Commission.
10.2 Refunds. At any time during the term of this Agreement that the Franchising
Authority requires the Company to retroactively decrease or "rollback" rates, fees or charges
for any Service provided pursuant to the Agreement, the Company shall provide refunds in
accordance with the rate regulations of the Federal Communications Commission.
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SECTION 11
FAILURE TO COMPLY WITH THESE REQUIREMENTS
11.1 Material Requirements
346
11.1.1 The Company agrees that substantial failure to comply with any
material requirement set forth in these consumer protection standards shall constitute an Event
of Default.
11. L2 The Company also agrees that if the Franchising Authority
determines, in the exercise of its sole discretion, that the Company has, after notice from the
Franchising Authority , repeatedly failed to comply with any requirement set forth in these
consumer protection standards, then the Franchising Authority may elect to treat such failure
in all respects as an Event of Default.
11.2 Liabilily for Contractors' /Subcontractors' Failure To Comply. If the
Company fails to take reasonable steps to ensure that its contractors, subcontractors or agents
abide by these consumer protection standards, the Company shall be liable for any breach of
these consumer protection standards committed by its contractors, subcontractors, or agents
just as if the Company itself had committed the breach.
SECTION 12
DEFINITIONS
12.1 Normal Business Hours. The term "normal business hours" means those
hours during which most similar businesses in the community are open to serve customers. In
all cases, "normal business hours" must include some evening hours at least one night per
week or some weekend hours, or both.
12.2 Normal Operating Conditions. The term "normal operating conditions"
means those service conditions which are within the control of the Company. Those
conditions which are not within the control of the Company 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
Company 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.
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APPENDIX F
PROCEDURES FOR CONSIDERATION
OF PROPOSED TRANSFERS
I. STATEMENT OF OWNERSHIP AT EXECUTION DATE
The ownership of the Company as of the Execution Date is set forth in Exhibit I to
this Appendix F.
II. PROCEDURES FOR CONSIDERATION
OF TRANSFER PETITIONS
II.A. Company To Provide
Notice and Petition
347
(1) The Company shall promptly notify the Franchising Authority of any
proposed action requiring consideration by the Franchising Authority
pursuant to Sections 8.1 or 8.2 of the Agreement by submitting to the
Responsible Franchising Official a petition requesting the approval of the
Franchising Authority or requesting a determination that no such consent
is required and its argument that the consent of the Franchising Authority
is not required. The petition shall describe the proposed action and shall
be accompanied by a completed FCC Form 394 and all other information
required to be filed with the Franchising Authority pursuant the FCC's
regulations implementing Section 617 of the Cable Act (47 U.S.C. § 537)
and, if applicable, its argument as to why such action would not involve a
change in control of the Company. The petition also shall provide
complete information on the proposed transaction, including details on
the legal, financial, technical, and other qualifications of the transferee
Such information, at a minimum, should include the information in
Exhibit 2 to this Appendix F. The 120 -day period to review a transfer
request under Section 617 of the Cable Act shall not commence until the
Responsible Franchising Official in good faith determines that all of the
information required by this Section II.A(1) is submitted to the
Franchising Authority and notice is provided by the Responsible
Franchising Official to the Company in accordance with the provisions of
this Appendix F. The Responsible Franchising Official shall have thirty
(30) days to review a Petition wherein the Company claims that no
consent is required. Such thirty-day period shall commence once the
Company has provided all information required by Section II.A(I). The
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348
Franchising Authority shall be deemed to have agreed that no consent is
required if the Responsible Franchising Official does not act on the
Petition within such 30 -day period. In the event the Responsible
Franchising official determines that the Franchising Authority's consent
is required, the number of days that the Responsible Franchising Official
used to make such determination shall be offset against the 120 -day
period under federal law to review a transfer request.
(2) In addition, the Franchising Authority has the right to request during the
120 -day period for review of the petition set forth in Section 617 of the
Cable Act and in accordance with the provisions of Section 76.502 of the
FCC regulations (47 C.F.R. § 76.502) such additional information and
documents as it deems appropriate to determine the transferee's
qualifications, and the Company shall promptly respond to such
information and document request. Assuming that the Company has
submitted all of the information required by Section II.A(I ), any
additional information request pursuant to this Section II.A(2) shall not
toll the 120 -day review period under Section 617 of the Cable Act.
II.B. Notice To Company That
Information Is Complete; Extensions
The Responsible Franchising Official shall provide notice to the Company as
soon as all of the information required by FCC regulation and the FCC Form 394, by Section
II.A(1) and Exhibit 2 of this Appendix E, and any applicable state and local law, has been
submitted and therefore the petition is complete, and the Franchising Authority shall act on
the Company's petition within 120 days following the date such notice is provided, pursuant
to Section 617 of the Cable Act. The review period may be extended by any additional time
period necessary for the Franchising Authority to review the request, upon agreement by the
Franchising Authority and the Company.
II.C. Responsible Franchising Official Decision
Upon review of the petition, the Responsible Franchising Official shall either
(A) notify the Company in writing if the Responsible Franchising Official determines that the
consent of the Franchising Authority is not required or (B) submit to the Board of Directors
the Company's petition requesting approval, together with a recommendation for action on the
petition, or, as to a petition requesting a determination that no such consent is required but the
Responsible Franchising Official has determined that consent of the Franchising Authority is
required, such petition and such additional information as the Company submits in response
to the request of the Responsible Franchising Official.
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ILD. Public Hearing
C I
After receipt of the petition, the Board of Directors may, as it deems
necessary or appropriate, schedule a public hearing on the petition. For the purpose of
determining whether the Franchising Authority shall or needs to grant its consent, the
Franchising Authority may inquire into: (i) the qualifications of each proposed transferee in
any action described in Sections 8.1 and 8.2 of the Agreement and any other Person that will
be significantly involved in the operation of the System, and (ii) all matters relevant to
whether said Person will adhere to all applicable provisions of this Agreement. Further, the
Franchising Authority may perform a comprehensive audit of the Company's performance
under the terms and conditions of this Agreement. The Company shall provide all requested
assistance to the Franchising Authority in connection with any such inquiry and, as
appropriate, shall secure the cooperation and assistance of all Persons involved in said action.
Nothing shall be construed to prevent the Board of Directors from prohibiting
the ownership or control of the System by any Person: (i) because of such Person's ownership
or control of any Cable System in the City of Little Rock, Arkansas; or (ii) in circumstances
in which the Board of Directors determines that the acquisition of the System may eliminate
or reduce competition in the delivery of Cable Service in the City of Little Rock, Arkansas.
II.E. Conditions
As a condition to the granting of any consent required by Section 8.1 or 8.2
of the Agreement, the Franchising Authority may: (i) require the Company to remit to the
Franchising Authority any accrued balance of the franchise fee payment due as of the date of
the transfer; or (ii) require that each Person involved in any action described in Section 8.1 or
8.2 of the Agreement shall execute an agreement, in a form and containing such conditions as
may be specified by the Franchising Authority, providing that such Person assumes and
agrees to be bound by all applicable provisions of this Agreement and such other conditions
which the Franchising Authority deems necessary or appropriate in the circumstances to
ensure performance of the Agreement.
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EXHIBIT 2 to
APPENDIX F
List of Information
To Be Provided
> Name and address of the proposed transferee and identification of the ownership and
control of the transferee, including: the names and addresses of the ten (10) largest
holders of an ownership interest in the transferee and cable affiliates of the transferee,
and all persons with five percent (5 %) or more ownership interest in the transferee and
its cable affiliates; the Persons who control the transferee and its cable affiliates; all
officers and directors of the transferee and its cable affiliates; and any other cable
affiliation and Cable System ownership interest of each named Person.
> A demonstration of the transferee's technical ability to construct, maintain, upgrade and
operate the System, including identification of key personnel.
> A demonstration of the transferee's legal qualifications to construct, maintain, upgrade
and operate the System.
> The transferee must show that it has not, at any time during the ten (10) years preceding
the submission of the petition, been convicted of any act or omission of such character
that the transferee cannot be relied upon to deal truthfully with the Franchising
Authority and the Subscribers of the System, or to substantially comply with its lawful
obligations under applicable law.
> The transferee must certify that no elected official of the Franchising Authority holds an
interest in the transferee or an Affiliated Person of the transferee.
> A statement prepared by a certified public accountant or responsible official of the
transferee regarding the transferee's financial ability to construct, upgrade, maintain and
operate the System.
> A description of the transferee's prior experience in Cable System ownership,
construction, and operation, and identification of communities in which the transferee
or any of its principals have, or have had, a cable franchise or license or any interest
therein.
> A detailed description of the transferee's plans for meeting any obligations under this
Agreement, including, but not limited to, any upgrade obligations, upgrade completion
schedules, channel capacity requirements, technical design requirements, and
performance characteristics.
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- -> An affidavit or declaration of the transferee or authorized officer certifying the truth and
accuracy of the information in the petition, acknowledging the enforceability of petition
commitments, and certifying that the proposal meets all federal and state law
requirements.
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Appendix G
INSURANCE REQUIREMENTS
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In addition to the insurance requirements and amounts set forth in Section 11.9.5 of this
Agreement, the Company shall maintain the following insurance coverages:
1. Automobile Liability Insurance --One Million dollars ($1,000,000) each accident —
coverage shall be on "any auto ", including leased, hired, owned, non -owned and
borrowed vehicles.
2. Environmental Impairment Liability including Pollution Liability Insurance if it can
reasonably be obtained in the amount of One Million dollars $1,000,000 each
occurrence — this coverage is to be provided on an occurrence basis and it shall
include claims arising from gradual emissions and sudden accidents. Clean-up and
defense costs shall be covered.
3. Workers Compensation Insurance Statutory Limits — Employer's Liability —
minimum Five Hundred Thousand dollars ($500,000) for each accident/disease -each
employee /disease- policy limit.
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